O'Bryant v. Hopewell Health Centers, Inc. et al

Filing 8

OPINION AND ORDER granting 6 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge James L Graham on 8/12/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michelle O’Bryant,
Administrator of the
Estate of Roger A. Kellough,
Plaintiff,
v.

Case No. 2:14-cv-618

Hopewell Health
Centers, et al.,
Defendants.
OPINION AND ORDER
This is a medical malpractice action brought by Michelle
O’Bryant, as the administrator of the estate of Roger A. Kellough,
against Hopewell Health Centers, Inc., Family Healthcare, Inc., and
John Ucci, M.D. The complaint was originally filed in the Court of
Common Pleas of Ross County, Ohio, on March 4, 2014.

On June 26,

2014, the United States of America filed a notice of removal of the
action to this court.

The United States indicated that on January

1, 2012, defendant Family Healthcare, Inc. (n/k/a Hopewell Health
Centers) had been deemed by the Department of Health and Human
Services to be an employee of the Public Health Service pursuant to
42 U.S.C §233, and that Family Healthcare, Inc., and John Ucci,
M.D., an employee of Family Healthcare, Inc., were deemed to be
employees of the Public Health Service at the time of the alleged
incident which formed the basis for this action.

Doc. 1, ¶¶ 2 and

3. The notice of removal further stated that plaintiff’s exclusive
remedy is an action against the United States under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§1346(b) and 2671-2680.
1, ¶ 5.

Doc.

This matter is before the court on the unopposed motion of the
United States to dismiss the complaint for lack of subject matter
jurisdiction due to plaintiff’s failure to exhaust administrative
remedies under the FTCA.

Prior to filing a complaint under the

FTCA, a plaintiff must exhaust administrative remedies.
§2675(a).

This

exhaustion

requirement

is

28 U.S.C.

jurisdictional.

Bumgardner v. United States, 469 F.App’x 414, 417 (6th Cir.
2012)(citing Joelson v. United States, 86 F.3d 1413, 1422 (6th Cir.
1996)).

The United States indicates that plaintiff filed an

administrative claim with the Department of Health and Human
Services on February 25, 2014, but that there has been no final
denial of that claim.

Denial of an administrative claim is

statutorily presumed if six months pass without action on a
properly filed administrative claim. 28 U.S.C. §2675(a). However,
the six months has not run in this case.

Even if the time were

permitted to run, the Sixth Circuit has held that a district court
would still lack subject matter to hear a plaintiff’s FTCA claim if
the claim was not yet ripe when the complaint was filed, and that
dismissal in such a case would be appropriate.

See Harris v. City

of Cleveland, 7 F.App’x 452, 458-59 (6th Cir. 2001).
Because plaintiff has not yet exhausted her administrative
remedies, this court lacks subject matter jurisdiction in this
case.

The motion to dismiss (Doc. 6) is granted, and this action

is dismissed without prejudice.

Date: August 12, 2014

s/James L. Graham
James L. Graham
United States District Judge

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