Booth v. US Department of Veteran Affairs et al
Filing
88
MEMORANDUM AND ORDER: Defendant Jefferson City Health and Rehabilitation Center's Renewed Motion to Dismiss Plaintiff's Claims Against Jefferson City Health and Rehabilitation Center [Doc. 26 ] is GRANTED IN PART, Plaint iff's Motion to Appeal [Doc. 53 ] is DENIED, the United States' Motion to Dismiss [Doc. 72 ] is GRANTED IN PART, and Plaintiff's Motion for Recusal [Doc. 74 ] is DENIED. The Court finds that JCHR is DISMISSED, and the Tennessee Healthcare Liability Act claims and the 42 U.S.C. § 1983 claims against the United States are DISMISSED. Signed by Magistrate Judge H Bruce Guyton on 9/28/18. (JBR) Modified text on 9/28/2018 (JBR).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DEBRA BOOTH,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS et al.,
Defendant.
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No. 3:16-CV-146-HBG
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the
Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings,
including entry of judgment [Docs. 36, 39].
Now before the Court is Defendant Jefferson City Health and Rehabilitation Center’s
Renewed Motion to Dismiss Plaintiff’s Claims Against Jefferson City Health and Rehabilitation
Center [Doc. 26], Plaintiff’s Motion to Appeal [Doc. 53], the United States’ Motion to Dismiss
[Doc. 72], and Plaintiff’s Motion for Recusal [Doc. 74]. The Motions are ripe for adjudication.
Accordingly, for the reasons more fully explained below, the Court hereby GRANTS IN PART
Defendants’ Motions [Docs. 26, 72] and DENIES Plaintiff’s Motions [Docs. 53, 74].
I.
BACKGROUND
The Complaint [Doc. 1] in this case was filed on March 30, 2016, against Defendants
United States Department of Veteran Affairs, William C. Tallent VA Outpatient Clinic, LLC,
Tennessee Valley Healthcare System VA (Nashville Campus), James H. Quillen VA Medical
Center (collectively, “United States”), and Jefferson City Health and Rehabilitation Center
(“JCHR”). On June 21, 2016, JCHR filed a motion to dismiss [Doc. 11], arguing that the
Complaint failed to state a claim upon which relief may be granted and for insufficient service of
process. Specifically, JCHR argued that it was a business name and service had not been directed
to Jefferson Operator LLC or Northpoint Regional LLC. [Doc. 12 at 10]. The District Judge
entered an Order [Doc. 19], providing Plaintiff an opportunity to file an amended Complaint in
compliance with Federal Rule of Civil Procedure 8. In addition, the District Judge denied JCHR’s
motion to dismiss with leave to refile.
Plaintiff filed an Amended Complaint [Doc. 21] on November 9, 2016. In her Amended
Complaint, Plaintiff alleges malpractice due to medical negligence, breach of duty, wrongful
death, violations of the Fifth, Ninth, and Fourteenth Amendments of the Constitution. Throughout
her Amended Complaint, Plaintiff also alleges a number of other violations of various federal and
state statutes.
Specifically, the Amended Complaint alleges that Plaintiff’s brother, Gregory Scott
Tippett, died on March 13, 2014, after being treated by Defendants. [Doc. 21 at 8]. Tippett’s
primary care physician, Dr. Pullen, who works at The William C. Tallent VA Healthcare
Outpatient Clinic, did not continue Tippett’s treatment and did not follow up on his blood infection,
which eventually led to bacterial peritonitis. [Id. at 4]. Plaintiff alleges that instead of treating her
brother, Defendants passed him on to a different clinic. [Id.]. Tippett developed a blood clot in
his left arm, which developed into a blood infection. [Id. at 6]. Further, the Amended Complaint
alleges that Plaintiff was not told that the blood infection could be passed to anyone exposed to it
until much later. [Id.].
The Amended Complaint states that Tippett was eventually sent to JCHR, but all treatment
had to be approved by Mountain Home VA Medical Center. [Id.]. The Amended Complaint states
that JCHR kept Tippett three times but that the VA “remained in charge of any and all treatment[,]
2
which had to be oked [sic] by them.” [Id. at 7]. The Veterans Affairs (“VA”) decided that it would
no longer pay for Tippett’s treatment, so JCHR released him instead of continuing treatment. [Id.].
Defendants also refused to build a wheelchair ramp, even though Tippett could not walk or stand.
[Id.].
The Amended Complaint alleges that within hours of being home, Tippett continued to be
in pain, so Plaintiff called an ambulance, which took him to The University of Tennessee Medical
Center (“UT Medical Center”). [Id. at 8]. At UT Medical Center, physicians drained forty pounds
of fluid from her brother’s abdominal cavity. [Id.]. Individuals told Plaintiff that her brother
should have sought medical attention sooner because spontaneous bacterial peritonitis is curable
if treated in time. [Id.]. The Amended Complaint states that peritonitis can rapidly lead to
potentially fatal complications, such as sepsis and septic shock, which causes a massive drop in
blood pressure, organ failure, and death. [Id.]. The Amended Complaint states that Plaintiff took
her brother to UT Medical Center on February 17, 2014, and that he died on March 13, 2014. [Id.].
Attached to the Amended Complaint are Tippett’s medical records and information regarding
peritonitis and blood poisoning. [Doc. 21-2].
After Plaintiff filed her Amended Complaint, Defendant JCHR moved to dismiss [Doc. 26]
the Amended Complaint. On August 17, 2018, Plaintiff and JCHR consented to the undersigned.
Subsequently, the United States consented [Doc. 69] to the undersigned, and the District Judge
referred the case to the undersigned. [Doc. 78].1
1
The Court notes that upon a periodic review of this case in March 2018, the undersigned
observed that the United States had not been properly served in accordance with Federal Rule of
Civil Procedure 4(i), and therefore, not all parties had consented to the undersigned. The District
Judge vacated the order of referral [Doc. 50], and the undersigned issued a show cause order to
Plaintiff for not complying with Rule 4. Thereafter, Plaintiff was able to properly serve the United
States, and the United States filed a consent form. [Doc. 69]. To be sure that all parties consented,
the District Judge allowed the parties to file objections to the consent form. [Doc. 70]. When no
objections were received, the District Judge referred the case to the undersigned. [Doc. 78].
3
II.
POSITIONS OF THE PARTIES
The Court will summarize the Motions in the order in which they were filed.
A.
JCHR’s Motion to Dismiss
JCHR raises several arguments that it asserts support dismissal of Plaintiff’s lawsuit. First,
JCHR argues that Plaintiff has failed to state a claim actionable under 42 U.S.C. § 1983.
In
addition, JCHR states that Plaintiff has failed to state a medical negligence claim under Tennessee
law. Third, JCHR asserts that Plaintiff’s claims should be dismissed pursuant to Federal Rules of
Civil Procedure 4(h)(1), 4(m), 12(b)(4) and 12(b)(5) because process was insufficient and
untimely.
Plaintiff filed a Response [Doc. 42], arguing that the case should not be dismissed.2
Plaintiff argues that her lawsuit asserts medical negligence, breach of duty, violation of
constitutional amendments, public health and welfare, wrongful death, and patient dumping under
various state and federal statutes. Plaintiff also filed a document titled, “Federal Rules of Civil
Procedure 8(a) Claim for Relief” [Doc. 43], which the undersigned has also reviewed.
JCHR filed a Reply [Doc. 44], restating its arguments made in its Motion. In addition,
JCHR filed a Supplemental Reply [Doc. 45], correcting a mistake in its earlier filings. JCHR states
that neither Jefferson Operator, LLC, nor Northpoint Regional, LLC, hold title to the real estate
upon which JCHR is located. JCHR explains that its previous statement that Jefferson Operator,
LLC, and Northpoint Regional, LLC “own” JCHR is a misstatement of fact. JCHR maintains,
however, that those entities operate JCHR.
2
The Court notes that Plaintiff did not file her Response to the Motion to Dismiss until
ordered [Doc. 41] to do so. In her Response, she asserts that she did not receive the Motion. [Doc.
42 at 1]. The Court notes, however, that during the Scheduling Conference on August 9, 2018, the
Court inquired as to whether Plaintiff wanted to file additional briefs to Defendants’ Motions to
Dismiss. Plaintiff indicated that she had already filed the documents that she needed to file.
4
Finally, the Court has also reviewed Plaintiff’s filings [Doc. 46] provided to the Court at
the hearing on March 27, 2018.3 Specifically, Plaintiff filed letters to and from the VA, medical
records, and other documents that were previously filed with the Court.
B.
Plaintiff’s Motion to Appeal
Plaintiff requests that she be allowed to appeal pursuant to Rules 7 and 8. For grounds, she
asserts that all parties have been served by the United States Marshal’s Office. Plaintiff states that
the undersigned reviewed documents that were received on March 27, 2018, and that Plaintiff has
resent her summons and Complaint as directed by the Court.
C.
The United States’ Motion to Dismiss
The United States filed a Motion to Dismiss [Doc. 73], raising several arguments in support
of dismissing Plaintiff’s claims. First, the United States argues that the Federal Tort Claims Act
provides a limited waiver of the sovereign immunity of the United States and that the actions of
JCHR fall outside this limited waiver. Thus, the United States asserts that these claims must be
dismissed for lack of subject matter jurisdiction. Second, the United States argues that Plaintiff
has not pled compliance with or complied with the Tennessee Health Care Liability Act. Finally,
the United States asserts that Plaintiff has not pled a plausible constitutional claim.
In Response [Doc. 75], Plaintiff filed a Motion to Deny Dismissal. Plaintiff asserts that
she has complied with Rule 12 of the Federal Rules of Civil Procedure.
3
During the hearing, Plaintiff submitted to the Court an unopened envelope containing
many documents. The Court requested that the courtroom deputy assist Plaintiff with filing such
documents on ECF. The documents were filed on ECF on the same day. [Doc. 46].
5
D.
Plaintiff’s Motion for Recusal
Plaintiff requests [Doc. 74] that the undersigned recuse from this case.4 Plaintiff states that
the undersigned failed to allow an emergency hearing so that the Court could acknowledge that
Plaintiff followed the proper procedure for serving Defendants.
Both Defendants filed Responses [Docs. 76 and 77], asserting that Plaintiff has not come
forward with any evidence that would support questioning the impartiality of the undersigned.
Plaintiff filed a Reply [Doc. 79], asserting that she has established that she served
Defendants. Plaintiff states that Defendants did not attend the hearing on March 27, 2018, except
JCHR. Plaintiff states that she showed the undersigned certain documents during the March 27
hearing.5 Plaintiff requests that the undersigned recuse.
III.
STANDARD OF REVIEW
The United States has moved to dismiss this case pursuant to Rule 12(b)(1). In addition,
both Defendants challenge the Amended Complaint pursuant to Rule 12(b)(6).
1.
Rule 12(b)(1)
Pursuant to Rule 12(b)(1), a claim for relief may be dismissed if the court lacks subject
matter jurisdiction. “A plaintiff bears the burden of proving jurisdiction and a court is empowered
to resolve factual disputes when subject matter jurisdiction is challenged.” Zundel v. Mukasey,
No. 3:03-cv-105- 2009 WL 3785093, at *3 (E.D. Tenn. Nov. 10, 2009) (citing Hollins v. Methodist
Healthcare, Inc., 474 F.3d 223, 224 (6th Cir. 2007)) (other citations omitted). A challenge of
jurisdiction may be made through a facial attack or a factual attack. Gentek Bld. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat’l Life Ins. Co. v. United
4
Plaintiff also requested that District Judge McDonough recuse. Judge McDonough
denied this request. [Doc. 78].
5
See supra note 3.
6
States, 922 F.2d 320, 326 (6th Cir. 1990)). A facial attack challenges the sufficiency of the
pleading, and a court must take the allegations in the complaint as true. Id.; see also Smith v. Bd.
of Trustees Lakeland Cmty. Coll., 746 F. Supp. 2d 877, 888 (N.D. Ohio 2010) (explaining that that
the court accepts the material allegations in the complaint as true and construes them in the light
most favorable to the nonmoving party, similar to the standard for a Rule 12(b)(6) motion, when
presented with a facial attack). “On the other hand, where there is a factual attack, the Court must
weigh the conflicting evidence provided by the plaintiff and the defendant to determinate whether
subject matter jurisdiction exists.” U.S. v. Chattanooga-Hamilton Cnty Hosp. Authority, 958 F.
Supp. 2d 846, 854 (E.D. Tenn. 2013) (citing Gentek, 491 F.3d at 330). The Court may consider
evidence, including but not limited to, “affidavits, documents, an even a limited evidentiary
hearing to resolve jurisdictional facts.” Id. (citing Gentek, 491 F.3d at 330). As mentioned above,
“The party asserting that subject matter jurisdiction exists has the burden of proof.” Id. (citing
Davis v. United States, 499 F.3d 590, 594 (6th Cir. 2007)).
2.
Rule 12(b)(6)
According to Rule 8 of the Federal Rules of Civil Procedure, a plaintiff’s complaint must
contain “a short plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(1). Though the statement need not contain detailed factual allegations, it must
contain “factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
A defendant may obtain dismissal of a claim that fails to satisfy Rule 8 by filing a motion
pursuant to Rule 12(b)(6). On a Rule 12(b)(6) motion, the Court considers not whether the plaintiff
will ultimately prevail, but whether the facts permit the court to infer “more than the mere
7
possibility of misconduct.” Id. at 679. For purposes of this determination, the Court construes the
complaint in the light most favorable to the plaintiff and assumes the veracity of all well-pleaded
factual allegations in the complaint. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007).
This assumption of veracity, however, does not extend to bare assertions of legal conclusions,
Iqbal, 556 U.S. at 679, nor is the Court “bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
After sorting the factual allegations from the legal conclusions, the Court next considers
whether the factual allegations, if true, would support a claim entitling the plaintiff to relief.
Thurman, 484 F.3d at 859. This factual matter must “state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2)).
IV.
ANALYSIS
The Court has considered the parties’ filings in this case. Accordingly, for the reasons
more fully set forth below, the Court finds that Defendants’ Motions [Docs. 26, 72] are well taken
in part and that Plaintiffs’ Motions [Docs. 53, 74] are not well taken.
The Court will first address Plaintiff’s Motion for Recusal and then turn to the other
Motions.
8
A.
Plaintiff’s Motion for Recusal
Plaintiff requests that the undersigned recuse for failing to allow an emergency hearing on
May 9, 2018, so that the Court could acknowledge that the proper procedure for serving the United
States had been completed. In addition, she asserts that the undersigned disregarded the exhibits
introduced at the hearing on March 27, 2018.
As stated in Judge McDonough’s Order [Doc. 78], 28 U.S.C. §§ 455(a) and (b)(1) provide,
in relevant part, that a judge must disqualify himself “in any proceeding in which his impartiality
might reasonably be questioned” if certain circumstances exist, such as when the judge “has a
personal bias or prejudice concerning a party.” Further, “[r]ecusal is based upon an objective,
rather than a subjective, standard and is required ‘if a reasonable, objective person, knowing all of
the circumstances, would have questioned the judge’s impartiality.’” Zammit v. I.R.S., No. 162703, 2017 WL 6276122, at *2 (6th Cir. June 30, 2017) (quoting Johnson v. Mitchell, 585 F.3d
923, 945 (6th Cir. 2009)).
The Court finds that Plaintiff has not offered sufficient grounds to justify a recusal in this
case. Plaintiff appears to be frustrated by the Court’s Order to Show Cause [Doc. 49], which put
her on notice that she had not served the United States in accordance with Rule 4. Disagreement
with the Court’s orders is not a reason to recuse. Jarrett v. Ashcroft, 24 F. App'x 503, 504 (6th
Cir. 2001) (noting that “[d]isagreement with a court’s ruling in a case is not a ground for recusal”)
(citing Liteky v. United States, 510 U.S. 540, 555-56 (1994)). Accordingly, Plaintiff’s Motion
[Doc. 74] is DENIED.
B.
Plaintiff’s Motion to Appeal
Plaintiff requests that she be permitted to appeal under Federal Rules of Civil Procedure 7
and 8. Plaintiff claims that she sent the summons and Complaint to Defendants as instructed by
9
the Court. She asserts that the Ninth and Fourteenth Amendments of the Constitution guarantee
due process of law and that the letter from the District Judge shows that there is a double standard
of law or “The Hillary Clinton Effect.”
Accordingly, the Court finds Plaintiff’s Motion not well taken. It is not clear what order
Plaintiff is specifically referring to, but it appears she disagrees with the Court’s instructions to
show good cause why the United States had not been properly served. Accordingly, Plaintiff’s
Motion to Appeal [Doc. 53] is DENIED.
C.
Defendant JCHR’s Motion to Dismiss
Before the Court considers JCHR’s argument that the Amended Complaint fails to state a
claim upon which relief may be granted, the Court must first address JCHR’s claim of insufficient
service of process because “proper service of process is an essential prerequisite to the Court
gaining personal jurisdiction over the defendant.” Collett v. Kennedy, Koontz & Farinash, No.
3:14-CV-552-TAV-HBG, 2015 WL 7254301, at *3 (E.D. Tenn. Aug. 14, 2015) (citing Friedman
v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991)) (other citations omitted).
Specifically, JCHR asserts that pursuant to Rule 12(b)(4) and (5), Plaintiff’s claims should
be dismissed. In addition, JCHR argues that Plaintiff’s claims should be dismissed pursuant to
Rule 4(m) because the Amended Complaint was not served within ninety days.
Federal Rules of Civil Procedure 12(b)(4) and (5) state as follows:
(b) How to Present Defenses. Every defendant to a claim for
relief in any pleading must be asserted in the responsive
pleading if one is required. But a party may assert the
following defenses by motion:
(4) insufficient process;
(5) insufficient service of process.
10
“An objection under Rule 12(b)(4) ‘concerns the form of the process rather than the manner
or method of its service. Technically, therefore, a Rule 12(b)(4) motion is proper only to challenge
noncompliance with the provisions of Rule 4(b) or any applicable provision incorporated by Rule
4(b) that deals specifically with the content of the summons.’” Phillips v. Tennessee Hotel Supply,
No. 1:04-CV-353, 2006 WL 897985, at *1 (E.D. Tenn. Apr. 4, 2006) (quoting 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed. 2004)). “A Rule
12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack of delivery
of the summons and complaint.” Whitaker v. Stamping, 302 F.R.D. 138, 146 (E.D. Mich. 2014)
(quoting 5B Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1353 (3d ed.
2014)). A plaintiff is responsible for serving the summons and complaint in accordance with Rule
4 and within the time allowed by Rule 4(m)(1). See Fed. R. Civ. P. 4(c)(1). As explained in
Whitaker:
To constitute sufficient service of process, a summons must be
served, along with a copy of the complaint, by either a non-party
who is at least 18 years old or a marshal or specially appointed
person. Fed. R. Civ. P. 4(c). Absent an extension of time for service,
such service must occur within [90] days after the summons is
issued. Fed. R. Civ. P. 4(m). If the defendant is a corporation or a
partnership or other unincorporated association, the summons may
be delivered to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service of
process. Fed. R. Civ. P. 4(h)(1)(B).
302 F.R.D. at 146.
In the present matter, JCHR states that it is simply a business name and that Jefferson
Operator, LLC is the licensed operator of the facility and Northpoint Regional, LLC is the
management company. JCHR states that the actual defendant is either Jefferson Operator, LLC,
Northpoint Regional, LLC, or both, depending on the nature of the claim. JCHR states that process
was not directed at these entities. Further, JCHR has offered evidence to establish that it is simply
11
a business name and that the proper defendants have not been served. [Doc. 26-1].6 JCHR’s
exhibit shows that Jefferson Operator, LLC is the administrator, and Northpoint Regional, LLC
manages JCHR. [Id.].
Accordingly, because JCHR has shown that it is simply a business name, and not a legal
entity, the Court will DISMISS the claims against JCHR. See Mnzava v. Diverse Concepts, LLC,
No. 3:14-CV-386-TAV-CCS, 2015 WL 6449656, at *4 (E.D. Tenn. Oct. 26, 2015) (“Diverse
Concepts has submitted evidence that Parkside Grill is not a legal entity. Thus, any claim against
it would be futile.”); Nelson v. Putnam Cty. Justice Ctr., No. 2:13-CV-00029, 2013 WL 1623686,
at *3 (M.D. Tenn. Apr. 15, 2013) (finding that the plaintiff failed to state a claim against the named
defendant because the named defendant was a building and not a legal entity).
Plaintiff does not specifically respond to JCHR’s argument, and it appears to the Court that
Plaintiff has not issued a summons for Jefferson Operator, LLC or Northpoint Regional, LLC and
she has not named them in her Amended Complaint. The summons was directed to JCHR and
served via certified mail at 283 West Broadway Boulevard, Jefferson City, Tennessee 37760.
Plaintiff does not argue otherwise. A plaintiff “bears the burden of perfecting service of process
and showing that proper service was made.” Sawyer v. Lexington–Fayette Urban Cnty Gov't, No.
00–6097, 18 F. App’x 285, 287 (6th Cir. Aug. 21, 2001) (citing Byrd v. Stone, 94 F.3d 217, 219
(6th Cir. 1996)); see also McGath v. Hamilton Local Sch. Dist., 848 F. Supp. 2d 831, 836 (S.D.
Ohio 2012) (“When service of process is challenged, the burden rests with the plaintiff to establish
that service is properly made.”).
6
The Court observes, “Because the pleadings themselves will typically shed no light on
service issues, motions to dismiss need not be treated as motions for summary judgment even if
they are supported by affidavits or other evidence outside the pleadings.” Boulger v. Woods, 306
F. Supp. 3d 985, 993 (S.D. Ohio 2018), appeal docketed, No. 18-3170 (6th Cir. Feb. 22, 2018).
12
In addition, JCHR asserts that the action must be dismissed because Plaintiff did not serve
process on anyone within ninety days of filing the Complaint. Specifically, Rule 4(m) provides as
follows:
(m) Time Limit for Service. If a defendant is not served within 90
days after the complaint is filed, the court--on motion or on its own
after notice to the plaintiff--must dismiss the action without
prejudice against that defendant or order that service be made within
a specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.
This subdivision (m) does not apply to service in a foreign country
under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under
Rule 71.1(d)(3)(A).
Fed. R. Civ. P. 4. “The Advisory Committee's Notes on Rule 4(m) indicate that the rule requires
a court to allow additional time for service if there is good cause for the plaintiff's failure to effect
service within the prescribed [90] days and permits a court to allow additional time for service
even in the absence of good cause.” Phillips, 2006 WL 897985, at *2.
In the instant matter, the Court declines to extend the time for service of process. As an
initial matter, the Court observes that Plaintiff has not requested additional time to serve the correct
entities, nor has she moved to amend the Amended Complaint to name these entities. See Warrior
Imports, Inc. v. 2 Crave, 317 F.R.D. 66, 69 (N.D. Ohio 2016) (“[e]stablishing good cause is the
responsibility of the party opposing the motion to dismiss”).7 Even in the absence of good cause,
however, the Court has discretion to extend the time for service. See id. at 70. In determining
whether to exercise this discretion, the factors considered by the Court include:
(1) whether a significant extension of time was required; (2) whether
an extension of time would prejudice the defendant other than the
inherent ‘prejudice’ in having to defend the suit; (3) whether the
defendant had actual notice of the lawsuit; (4) whether a dismissal
without prejudice would substantially prejudice the plaintiff[;] and
7
The Court also observes that on May 9, 2018, Plaintiff filed a document stating that she
filed an Amended Complaint on November 9, 2016, and that she does not need to amend her
Complaint again. [Doc. 65].
13
(5) whether the plaintiff had made any good faith efforts at effecting
proper service of process.
Id. (citations omitted). The Court, however, declines to exercise its discretion in the instant matter.
The Court notes that Plaintiff was granted in forma pauperis status and the U.S. Marshals
sent the summons by certified mail to JCHR at 283 West Broadway Bld., Jefferson City, Tennessee
37760. [Doc. 8]. The return receipt was received on April 25, 2016. [Id.]. As mentioned above,
on June 21, 2016, JCHR filed a motion to dismiss, arguing, in part, that the actual defendant is
Northpoint Regional, LLC, or Jefferson Operator, LLC, or both, depending upon the nature of
Plaintiff’s claim and that neither of these entities had been served. See [Doc. 12 at 10] (“JCHR is
simply a business name. The actual defendant, therefore, is either Jefferson Operator, LLC, or
Northpoint Regional LLC, or both, depending upon the nature of Plaintiff’s claim.”). The District
Judge allowed Plaintiff to file an Amended Complaint and denied JCHR’s motion to dismiss with
leave to refile. Plaintiff filed an Amended Complaint, which again named JCHR, and JCHR
responded by filing the instant Motion to Dismiss, raising the same arguments previously raised
in its original motion to dismiss. The instant Motion was filed on June 9, 2017.
The Court observes that since the filing of JCHR’s original motion to dismiss or the instant
Motion, Plaintiff has not attempted to serve Northpoint Regional, LLC or Jefferson Operator, LLC,
nor has she requested an extension of time to do so. Although Plaintiff is acting pro se in this
matter, which normally results in somewhat more lenient treatment by the Court, the Court does
not believe this is an appropriate case in which to allow additional time for service of the correct
defendants. Specifically, JCHR raised this issue more than two years ago, and the issues have not
been corrected. While no party argues that an extension, or the lack thereof, will prejudice them,
the Court finds an extension unwarranted, given the significant length of an extension, coupled
with JCHR raising the same issues two years ago. Accordingly, Plaintiff’s claims against JCHR
14
are dismissed, and the Court declines to extend the time for serving the proper defendants. The
Court does not need to consider JCHR’s remaining arguments.
D.
The United States’ Motion to Dismiss
As mentioned above, the United States asserts that the actions of JCHR fall outside the
limited waiver provided under the FTCA, Plaintiff has not pled compliance with or complied with
the Tennessee Health Care Liability Act, and Plaintiff has not pled a constitutional claim. The
Court will address these arguments separately.8
1.
Federal Tort Claims Act
The United States asserts that the FTCA provides a limited waiver of the sovereign
immunity of the United States and that the actions of JCHR fall outside this limited waiver.
Plaintiff does not specifically respond to this argument, but she requests that the Court deny the
request to dismiss.
The FTCA sets the limitations and procedures for private actions against the United States.
In pertinent part, the FTCA provides as follows:
(b)(1) Subject to the provisions of chapter 171 of this title, the
district courts, together with the United States District Court for the
District of the Canal Zone and the District Court of the Virgin
Islands, shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages, accruing on and after
January 1, 1945, for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States,
8
The Court observes that in a footnote, the United States asserts that it was not served
within ninety days, which also supports dismissal. The Court issued an Order to show cause [Doc.
49] on April 18, 2018, because Plaintiff had not properly served the United States, although she
had previously attempted service. While the extension to serve was significant, Plaintiff was not
aware that service of process was technically inadequate until the status conference on March 27,
2018, and the Court’s Order to show cause. Further, after the status conference and Court’s Order,
Plaintiff was able to effect service. See Habib v. Gen. Motors Corp., 15 F.3d 72, 74 (6th Cir. 1994)
(explaining that Rule 4(m) “must be construed leniently with regard to pro se litigants”).
15
if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
28 U.S.C. § 1346. “Generally, the United States is not liable under the FTCA for injuries caused
by the negligence of its independent contractors.” Dyer v. United States, 96 F. Supp. 2d 725, 729
(E.D. Tenn. 2000). The United States is not liable for its independent contractors because the
“FTCA grants original jurisdiction to federal district courts over claims against the United States
arising from the negligence of its employees and agencies, but it specifically excepts ‘contractors’
from the definition of federal agencies.” Russell v. United States, No. 3:17-cv-77, 2018 WL
1475603, at *5 (E.D. Tenn. Mar. 26, 2018) (citing 28 U.S.C. § 2671).
“The Supreme Court has said that ‘the power of the Federal Government to control the
detailed physical performance of the contractor is a critical factor distinguishing federal agents and
employees from independent contractors.’” Zion v. United States, 913 F. Supp. 2d 379, 383 (W.D.
Ky. 2012) (quoting United States v. Orleans, 425 U.S. 807, 814 (1976)) (other internal quotations
omitted). “A component of this factor is whether the government supervises the actor’s day-today operations.” Id. at 384 (citing Orleans, 425 U.S. at 815). The Sixth Circuit has not addressed
the application of this standard in detail, but other courts have followed the Fourth Circuit by
holding that “the real test is control over the primary activity contracted for and not the peripheral
administrative acts relating to such activity.” Id. (quoting Wood v. Standards Prods. Co., Inc., 671
F.2d 825, 832 (4th Cir. 1982)); see also McGhee v. United States, No. 7:13-CV-00123, 2014 WL
896748, at *2 (W.D. Va. Mar. 6, 2014) (“The Fourth Circuit has applied a “control test” to
physician-contractors, stating: ‘only where the Government has the power under the contract to
supervise a contractor's ‘day-to-day operations' and ‘to control the detailed physical performance
of the contractor’ can it be said that the contractor is an employee or agent of the United States
within the [FTCA].’” (quoting Wood, 671 F.2d at 829, 832).
16
In the instant matter, the United States acknowledges that it has asserted a facial challenge.
See Doc. 73 at 2-3 (“In this case, the United States presents a facial attack, and thus, the Court
takes the allegations in the complaint as true.”). Thus, the Court has reviewed the allegations in
the Amended Complaint. Here, Plaintiff has alleged that the VA sent Tippett to JCHR but that the
VA maintained “any and all treatment which had to be oked [sic] by the Mt. Home VA Medical
Center.” [Doc. 21 at 6]. She later alleges that JCHR kept Tippett three times and that the VA sent
him to JCHR but that the VA “remained in charge of any and all treatment which had to be oked
[sic] by them.” [Id. at 7]. Accordingly, given these allegations, which the Court deems to be true,
the Court finds the United States’ argument not well taken at this time.
2.
Tennessee Healthcare Liability Act
The United States submits that it appears Plaintiff has raised a claim for medical
malpractice, alleging that the United States, through its medical providers at the VAMC, was
negligent in providing medical care to Tippett. The United States asserts that Plaintiff’s medical
malpractice claims must be dismissed because she has not pled compliance or complied with the
Tennessee Health Care Liability Act.
Healthcare liability actions are governed under the Tennessee Healthcare Liability Act
(“THLA”). The THLA requires a plaintiff to provide: (1) pre-suit notice under Tennessee Code
Annotated § 29-26-121, and (2) a certificate of good faith with the complaint under Tennessee
Code Annotated § 29-26-122. Specifically, pursuant to Tennessee Code Annotated § 29-26-121,
“any person, or that person’s authorized agent, asserting a potential claim for health care liability
shall give written notice of the potential claim to each health care provider that will be a named
defendant at least sixty (60) days before the filing of the complaint based upon health care liability
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in any court of this state.” The notice prescribed by § 121 contains six requirements. Tenn. Code
Ann. § 29-26-121(a)(2).
With respect to § 29-26-122, “[i]f the certificate is not filed with the complaint, the
complaint shall be dismissed, as provided in subsection (c), absent a showing that the failure was
due to the failure of the provider to timely provide copies of the claimant’s records requested as
provided in § 29-26-121 or demonstrated extraordinary cause.” Tenn. Code Ann. § 29-26-122(a).
Subsection (c) requires the Court to dismiss the action with prejudice should a plaintiff fail to file
a certificate of good faith. Tenn. Code Ann. § 29-26-122(c).
As mentioned above, Plaintiff does not respond to the United States’ argument. In any
event, the Court has reviewed all of Plaintiff’s filings in this case to determine if she complied
with the above requirements. Hamilton v. Abercrombie Radiological Consultants, Inc., 487
S.W.3d 114, 117 (Tenn. Ct. App. 2014) (“Our Supreme Court has recently explained that
substantial compliance with Tennessee Code Annotated Section 29–26–121 et seq. is the proper
standard in determining whether the contents of the pre-suit notice meet the statutory
requirements.”) (citing Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433
S.W.3d 512 (Tenn. 2014)).
With respect to the first requirement (i.e., providing pre-suit notice), it does not appear to
the Court that Plaintiff has complied. Specifically, the Court has reviewed Plaintiff’s letter to the
VA dated February 25, 2016, [Doc. 1-1], a letter by Plaintiff dated May 31, 2016, [Doc. 10], and
Plaintiff’s letter to the VA dated July 25, 2016, [Doc. 15]. While the February 25 letter contains
some of the requirements, it does not contain all six of the requirements and is dated less than sixty
days before Plaintiff filed the Complaint. See Tenn. Code Ann. § 29-26-121(a)(1). Accordingly,
the Court finds that Plaintiff has not substantially complied with the pre-suit notice requirement.
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Even if Plaintiff had complied with the pre-suit notice requirement, she did not file the
required certificate of good faith with her Complaint or her Amended Complaint. Instead, in her
Amended Complaint, Plaintiff requests that the Court waive this requirement because it is
impossible for her to obtain a medical expert. She explains that she cannot find a medical expert
“who is willing to go against the VA.” [Doc. 21 at 2]. Pursuant to the statute, the good faith
requirement is waived in two circumstances: (1) the failure of the provider to timely provide copies
of the claimant’s records as requested, or (2) extraordinary cause. Plaintiff’s statement that she
cannot find a medical expert who is willing to go against the VA, with nothing more, is insufficient
to establish extraordinary cause. See Goodwin v. United States, No. 2:13-cv-13445, 2014 WL
1685899, at *3 (E.D. Mich. Apr. 29, 2014) (dismissing plaintiff’s complaint with prejudice against
the United States because plaintiff did not comply with the presuit notice requirements and did not
file a certificate of good faith). Accordingly, the Court finds Plaintiff has not complied with the
THLA and that such claims against the United States shall be dismissed with prejudice.
3.
Constitutional Claim
The United States asserts that Plaintiff has not pled a constitutional claim. Pursuant to 42
U.S.C. § 1983, an individual has a cause of action against government officials who violate the
individual’s rights. Specifically, § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State .... subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law.
To survive a motion to dismiss under § 1983, the plaintiff must properly allege two
elements: (1) defendant was acting under color of state law, and (2) the offending conduct deprived
the plaintiff of rights secured under federal law. Mezibo v. Allen, 411 F.3d 712m, 716 (6th Cir.
19
2005). The Court agrees with the United States in that Plaintiff has not pled either element in her
Amended Complaint. Specifically, she has not pled facts sufficient to show she or Tippettt were
denied a constitutional privilege or right. Further, the United States and its officials act under the
color of federal law and are not subject to suit under 42 U.S.C. § 1983. See Haines v. Fed. Motor
Carrier Safety Admin., 814 F.3d 417, 429 (6th Cir. 2016) (explaining that actions taken by federal
agencies are actions under federal law and not under the color of state law). Accordingly, the
Court will dismiss Plaintiff’s claim under 42 U.S.C. § 1983.
V.
CONCLUSION
Accordingly, for the reasons further explained above, Defendant Jefferson City Health and
Rehabilitation Center’s Renewed Motion to Dismiss Plaintiff’s Claims Against Jefferson City
Health and Rehabilitation Center [Doc. 26] is GRANTED IN PART, Plaintiff’s Motion to Appeal
[Doc. 53] is DENIED, the United States’ Motion to Dismiss [Doc. 72] is GRANTED IN PART,
and Plaintiff’s Motion for Recusal [Doc. 74] is DENIED. The Court finds that JCHR is
DISMISSED, and the Tennessee Healthcare Liability Act claims and the 42 U.S.C. § 1983 claims
against the United States are DISMISSED.
IT IS SO ORDERED.
ENTER:
United States Magistrate Judge
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