Friedenberg et al v. Lane County et al

Filing 76

OPINION AND ORDER: I ADOPT the F&R 66 in its entirety. This case is REMANDED to state court and Defendant's Motion to Join the United States and Compel its Compliance 42 is DENIED. Signed on 12/31/2020 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

SAM FRIEDENBERG, personal
representative of the estate of MARC
SANFORD; DEREK LARWICK, personal
representative of the estate of RICHARD
BATES; and LORRE SANFORD, an
individual,

Case No. 6:18-cv-00177-MK
OPINION AND ORDER

Plaintiffs,
vs.
LANE COUNTY; LANE COUNTY
MENTAL HEALTH aka LANE COUNTY
BEHAVIORAL HEALTH; CARLA AYRES;
ERIK MORRIS; FRANCES FREUND; and
JULIE RIUTZEL,
Defendants.

AIKEN, District Judge:
Before the Court is United States Magistrate Judge Mustafa T. Kasubhai’s
Findings and Recommendation (“F&R”) (doc. 66), which recommends that this Court
remand the action to state court and deny defendant’s Motion to Join the United
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States and Compel its Compliance (doc. 42). The matter is now before me pursuant
to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
Under the Federal Magistrates Act, the Court may “accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate.”
28 U.S.C. § 636(b)(1).

Defendant filed timely objections, to which plaintiffs

responded. Docs. 70, 75. Accordingly, I must “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Dawson v. Marshall,
561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc).
Defendants object to Judge Kasubhai’s findings that defendants Lane County
Mental Health (“LCMH”) and LCMH providers are not entitled to immunity under
42 U.S.C. § 233(a) because defendants’ alleged failure to notify the state court of
Michael Bryant’s failure to comply with his state-funded Jail Diversion Program does
not fall within “the performance of medical . . . or related functions.”
Under § 233(a), a federal Public Health Service (“PHS”) employee qualifies for
immunity under the Federal Torts Claims Act (“FTCA”) if a plaintiff alleges a claim
“for damage for personal injury, including death, resulting from: (a) “the performance
of medical . . . or related functions,” (b) “while acting within the scope of his office or
employment.” 42 U.S.C. § 233(a). Further, the Federally Supported Health Centers
Assistance Act (“FSHCAA”) extends this immunity to federally-funded community
health centers who apply for and receive “deemed” status. 42 U.S.C. § 233 (g)(1)(A).

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Thus, the scope of immunity extended to “deemed” PHS employees under the
FSHCAA, § 233(g), is derived from the grant of immunity to true PHS employees
under § 233(a).

The parties do not dispute that defendants are “deemed” PHS

employees. Nor do they dispute that the alleged negligent actions occurred within
the scope of defendants’ employment.
Defendants advance four objections to the F&R. First, defendants contend that
the F&R “misconstrues” § 233(a) as a waiver of sovereign immunity—as opposed to a
grant of absolute immunity—and thus improperly bases its reasoning on a narrow
construction of § 233(a). Def.’s Objections at 9 (doc. 70). Defendants argue that,
“[w]hen read correctly, . . . § 233(a) immunity extends to any claim—by patients or
nonpatients—for damage or injury arising out of the deemed PHS defendant’s
performance of medical or related functions.” Id. To support this broad reading of
the statute, defendants rely on the term “related functions” (which the statute does
not define), the exclusive nature of the remedy, and Hui v. Castaneda, 559 U.S. 799
(2010). In Hui, a detained immigrant brought a Bivens action against ICE-employed
medical providers (“true” PHS employees) for failure to provide him appropriate
medical care. Id. at 801–02. The United States Supreme Court held that because
the later-enacted § 233(g)—covering “deemed” PHS employees—makes no exception
for constitutional claims, Congress could not have intended that true PHS employees,
protected under the earlier-enacted § 233(a), be deprived of that protection. Id. at
801–02.

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Contrary to defendants’ assertion, nothing in Hui suggests that FSHCAA
immunity be extended to “any claim,” including non-patient claims such as those
here. Further, the F&R makes no reference to a narrow construction of the statute.
The F&R squarely addresses the “related functions” precedent, F&R 7–9, and
defendants’ non-patient precedent, F&R 10–11, and explains why that precedent does
not support defendants’ position.

Further, it appropriately cites Hui for the

proposition that “the FSHCAA broadened the FTCA to include . . . community health
centers . . . for actions arising out of the performance of medical or related functions
within the scope of their employment[.]” F&R at 5.
Second, defendants object that the F&R incorrectly reasons that the scope of
immunity hinges on whether a plaintiff is a patient when it should hinge on the
conduct of the “deemed” employee. Defendants rely on statutory text and two cases
to support its proposition that the scope of immunity includes non-patient claims.
The statutory text of § 233(g)(1)(B) and (C) together provide that “[t]he deeming of
any entity or . . . employee . . . shall apply with respect to services provided to [nonpatients]” if the Secretary determines that such non-patient services benefit the
entity’s patients, facilitates the provision of patient services, or are “otherwise
required under an employment contract . . . between the entity and an employee.” 42
U.S.C. § 233(g)(1)(B) &(C).

Thus, employees who provide specific pre-approved

services to non-patients are shielded from liability for medical or related services
performed in the scope of employment. Here, LCMH provided no such pre-approved
or any other services to plaintiffs. Thus, defendants’ non-patient claims do not fall

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within the statute’s provision for non-patient claims.

The statute explicitly

contemplates two categories of claims—patient and non-patient—and extends
immunity for non-patient claims in specific and limited circumstances. Nothing in
the statute supports defendants’ position that the scope of immunity hinges instead
on employee conduct except that that conduct must be within the scope of
employment and performed in the provision of medical and related services.
Defendants’ reading of the statute would render the § 233(g)(1)(B) and (C) provisions
superfluous.
Defendants also rely on Hayes v. United States, No. 1:16-cv-00131 (APM), 2016
WL 3465950 (D.D.C June 13, 2016) and Z.B. ex rel. Next Friend v. Ammonoosuc Cmty.
Health Serv., Inc., No. Civ. 03-540(NH), 2004 WL 1571988 (D. Me. June 13, 2004). In
Hayes, the court denied United States’ 12(b)(6) motion to dismiss a claim against a
prison-based mental health provider who allegedly allowed a mentally ill inmate to
be placed in the general population where she attacked plaintiff. Hayes, 2016 WL
3465950, at *2. The F&R explains that Hayes is “inapposite” because, there, the
United States defended the case on the merits and the issue of § 233(a) immunity was
not raised. F&R at 10. Defendants argue that Hayes is “significant,” not inapposite,
because the United States defended against a non-patient claim and its position in
Hayes is thus “at odds with the position it advances here.” Def.’s Objections at 20
(doc. 70). I agree with Judge Kasubhai. Because Hayes does not address § 233(a)’s
scope of immunity, it cannot guide the Court on this matter.

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In Z.B., a court held that § 233(a) immunity applied to a claim by a non-patient
child plaintiff who was injured by his father. Z.B., 2004 WL 1571988, at *7. The
plaintiff brought suit against a home health care provider who failed to report the
father’s suspected child abuse. Id. The provider made home visits to the child’s
mother, and even though the child was not the provider’s patient, the court
determined that “the [mother’s] home visiting services . . . were provided only
because of the existence of the [non-patient] plaintiff.” Id. at *3. I agree with Judge
Kasubhai that Z.B. is distinguishable from the case here because, unlike Z.B., the
plaintiffs here “were not the reason why Defendants provided services to their
patient, Bryant.”1 F&R at 11.
Defendants’ third objection is similar to the second. Defendants contend that
the F&R erroneously relies on the absence of a relationship between the parties to
determine that § 233(a) does not apply. But defendants then attempt to forge a
relationship between the parties sufficient to support the application of § 233(a).
Defendants argue that because mental health providers routinely assess their
patients’ risk of harm to unknown members of the general public and because this
risk assessment constitutes the provision of medical or related services, the § 233(a)
shield should apply to claims from unknown general public plaintiffs, such as those
here.

The F&R does not disagree with defendants that the reporting of suspected child abuse is a
medical or related function, but that is not the issue in this case. See F&R at 9, 11 (citing Teresa T. v.
Ragalia, 154 F. Supp. 2d 290, 300 (D. Conn. 2001) for the proposition that “a physician’s duty to report
suspected child abuse . . . is ‘inextricably woven’ into the performance of medical functions and
therefore covered under § 233(a)”).
1

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Defendants rely on Jablonski v. United States, 712 F. 2d 391, 392 (9th Cir.
1983), a wrongful death suit brought under the FTCA.

There, the decedent’s

daughter sued Veterans Administration Hospital psychiatrists for failing to warn the
plaintiff’s mother that she might be at risk from the patient, her live-in partner.
Jablonski, 712 F. 2d at 392–93. The court held that the action could be brought under
the FTCA and did not fall within the assault and battery or the discretionary
functions FTCA exceptions. Id. 42 U.S.C. § 233(a) was not at issue and was not
discussed by the Ninth Circuit because the defendant was a federal employee whose
alleged tortious actions fell within the broader FTCA scope. Because the court did
not address § 233(a), it is not relevant to this case and does not help defendants
establish a relationship between defendants and plaintiffs here, who received no
services of any kind from defendants.
Defendant’s fourth objection is not an objection to Judge Kasubhai’s findings
but a new argument—a policy argument for why the Court should find that § 233(a)
immunity applies here. Def.’s Objections at 31 (doc.70). Because defendants failed
to raise this argument before Judge Kasubhai, I decline to consider it now. See
Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir. 1988),
overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th
Cir. 1992) (en banc) (holding that a district court’s refusal to hear a new argument
not presented to the Magistrate Judge is “entirely appropriate” because “[w]e do not
believe that the Magistrates Act was intended to give litigants an opportunity to run
one version of their case past the magistrate, then another past the district court”).

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Following the recommendation of the Rules Advisory Committee, I have
reviewed the remainder of the F&R for “clear error on the face of the record[.]” Fed.
R. Civ. P. 72 advisory committee’s note (1983) (citing Campbell v. United States
District Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United States v. Vonn, 535
U.S. 55, 64 n.6 (2002) (stating that, “[i]n the absence of a clear legislative mandate,
the Advisory Committee Notes provide a reliable source of insight into the meaning
of” a federal rule). No such error is apparent.
Therefore, I ADOPT the F&R (doc. 66) in its entirety.

This case is

REMANDED to state court and Defendant’s Motion to Join the United States and
Compel its Compliance (doc. 42) is DENIED.
IT IS SO ORDERED.
31st
Dated this _____ day of December 2020.

/s/Ann Aiken
__________________________
Ann Aiken
United States District Judge

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