Gregor et al v. United States of America et al

Filing 37

OPINION AND ORDER by Judge Terence Kern, terminating party United States of America; granting 7 Motion to Dismiss for Lack of Jurisdiction (lmc, Chambers) Modified on 1/10/2022 to correct ruling that only the United States of America is terminated. (clb, Dpty Clk).

Case 4:19-cv-00719-TCK-CDL Document 37 Filed in USDC ND/OK on 01/10/22 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
(1) DALE A. GREGOR, JR. and
(2) DEBRA GREGOR, individually and as
Co-Guardians of KAYLA THETFORD
(3) JONATON THETFORD, as parent and
next friend of Z.L.T., Z.D.T., and Z.A.T.,
minor children of Kayla and
Jonathon Thetford
Plaintiffs.
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Case No. 19-CV-719-TCK-CDL

OPINION AND ORDER
Before the Court is Defendant United States of America’s Motion to Dismiss. (Doc. 7).
For the reasons stated herein, the government’s Motion is granted, and the claims against it are
dismissed without prejudice.
I.

Background

On January 7, 2018, Kayla Thetford presented to the Muscogee Creek Nation Hospital
(MCNH) in Okemah, Oklahoma, with headache, dizziness, nausea, vomiting, numbness and
tingling in the right side of her face, right arm, and right leg, and the inability to fully mobilize one
of her arms. (Doc. 1 at 3). Ms. Thetford was treated by Defendant Dr. West, who diagnosed her
with vertigo and a migraine headache. Dr. West prescribed Ms. Thetford two antihistamines and a
steroid medication and then discharged her. Two days later, Ms. Thetford presented to the
emergency room at the Stillwater Medical Center exhibiting symptoms of a stroke and was
immediately transferred to the OU Medical Center where it was discovered that she had suffered
an acute ischemic stroke. (Id. at 3-4.).

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At the time of her injury, Ms. Thetford was 31 with three young children. She now lives
with her parents, Plaintiffs Dale and Debra Gregor, and is unable to communicate, is quadriplegic,
and requires around-the-clock care. Plaintiffs sued Dr. West for providing negligent medical care,
as well as Emcare, Inc., Emcare Physician Providers, Inc., and Emcare Physician Services, Inc.
(collectively Emcare) under a theory of respondeat superior. Plaintiffs also sued the United States
of America pursuant to the Federal Tort Claims Act (FTCA). Specifically, Plaintiffs allege that
Emcare contracted with MCNH under an Indian Self-Determination contract, which, in Plaintiffs’
view, means that Emcare is deemed to be a part of the Department of Health and Human Services
and liable to Plaintiffs under the FTCA. See 25 U.S.C. § 5321. Plaintiffs also claim that a
representative of the Muscogee Creek Nation told them that Defendant West was an employee of
MCNH and liable under the FTCA. Id. at 7-8.
On March 5, 2020, the Government filed its Motion to Dismiss (Doc. 7), arguing that
Defendant West was not an employee of MCNH at the time of the alleged negligent care, and thus,
the government is not liable under the FTCA. (Doc. 7 at 2). The Government further argues that
Plaintiffs failed to exhaust their administrative remedies because they failed to allow for the full
six-month period to run before filing their Complaint, which is required under the FTCA. See 28
U.S.C. § 2675(a).
In their Response (Doc. 10), Plaintiffs argue that the Government’s Motion should be
converted to a motion for summary judgment and denied because Plaintiffs should be allowed to
conduct discovery regarding the amount of control MCNH had over Dr. West. As to the
Government’s argument regarding exhaustion of administrative remedies, Plaintiffs concede that
they filed this lawsuit before the expiration of the mandatory six-month waiting period. (Id. at 2).

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To remedy that, Plaintiffs filed a second lawsuit against the Government. See Gregor et al v.
United States of America, 20-CV-128-TCK-CDL (Gregor II) (N.D. Okla. filed Mar. 27, 2020).
II.

Discussion

“The administrative-exhaustion requirement applicable to FTCA claims ‘bars claimants
from bringing suit in federal court until they have exhausted their administrative remedies.’”
Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015) (quoting McNeil v. United States,
508 U.S. 106, 113 (1993)). “This exhaustion requirement is ‘jurisdictional and cannot be waived’”
Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) (quoting Bradley v. United States by
Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991)). “[T]o meet the threshold requirement of
administrative exhaustion, plaintiffs must either (1) have their administrative claims finally denied
by the relevant federal agency; or (2) if the agency fails to act on their administrative claims
withing six months of presentment, they may thereafter deem the claims (constructively) denied.”
Barnes, 776 F.3d at 1139. “[A]s a general rule, a premature ‘complaint cannot be cured through
amendment, but instead, plaintiff must file a new suit.’” Duplan v. Harper, 188 F.3d 1195, 1199
(10th Cir. 1999) (quoting Sparrow v. U.S. Postal Serv., 825 F. Supp. 252, 255 (E.D. Cal. 1993)).
Importantly, “[c]ourts must dismiss these claims ‘without regard to concern for judicial
efficiency.’” Gonzagowski v. United States, 495 F. Supp. 3d 1048, 1098 (D.N.M. 2020).
Here, there is no dispute that Plaintiffs failed to exhaust their administrative remedies, as
Plaintiffs admit to doing so in their Response. (Doc. 10 at 2 (“The six-month period ran from July
1, 2019 to January 1, 2020 and Plaintiffs filed their lawsuit on December 30, 2019. Plaintiffs agree
to a dismissal without prejudice of its actions against the United States in this lawsuit on the
grounds for filing the lawsuit two days too early.”)). Thus, this Court lacks jurisdiction to decide
the merits of the Government’s Motion.
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IT IS THEREFORE ORDERED that Defendant United States of America’s Motion to
Dismiss (Doc. 7) is granted. Plaintiffs’ claims against the United States of America are dismissed
without prejudice.
DATED this 10th day of January, 2022.

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