Booth v. US Department of Veteran Affairs et al
Filing
95
MEMORANDUM OPINION. Signed by Magistrate Judge H Bruce Guyton on 12/19/18. (JBR) Modified text on 12/19/2018 (JBR).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DEBRA BOOTH,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS et al.,
Defendants.
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No. 3:16-CV-146-HBG
MEMORANDUM OPINION
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 Plaintiff’s Motion to Dismiss [Doc. 90]. The United States filed
a Response [Doc. 91] to Plaintiff’s Motion.1 The Motion is ripe for adjudication. Accordingly,
for the reasons explained below, the Court will GRANT Plaintiff’s Motion [Doc. 90].
I.
POSITIONS OF THE PARTIES
In her Motion [Doc. 90], Plaintiff requests that she be permitted to dismiss her case because
it has been “amended, tried, and verified for the Defendants” and that “there is no other action to
take.”
The United States filed a Response [Doc. 91], stating that it concurs with Plaintiff that the
Court should dismiss the case with prejudice. The United States explains that the Court has already
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The Court notes that Defendant Jefferson City Health and Rehabilitation Center filed a
Motion for Entry of Final Judgment Under Rule 54(b) [Doc. 92] . Prior to its Motion, however,
Plaintiff requested that her case be dismissed.
ruled that Plaintiff did not comply with the prerequisites to filing suit under the Tennessee Health
Care Liability Act (“THCLA”) and that this ruling entitles the United States to judgment in its
favor on all of Plaintiff’s claims because the factual allegations in this case relate to the provisions
of health care and all Plaintiff’s claims are health care liability actions. The United States submits
that because Plaintiff failed to comply with the notice and certificate of good faith requirements of
the THCLA, all of Plaintiff’s claims should be dismissed and the case closed.
In the alternative, the United States asserts that if Plaintiff’s citations to various statutes
and regulations are construed as claims that are not health care liability actions, the Court lacks
subject matter jurisdiction over such claims, including the following claims: (1) failure to build a
wheelchair ramp, (2) the Medicare Act and Patient Safety and Quality Improvement Act of 2005,
(3) claims involving the United States Constitution, and (4) other various violations pursuant to
the Tennessee Code Annotated.
Plaintiff has not filed a reply to the United States’ Response.
II.
ANALYSIS
The Court has considered the history of this case and the instant fillings, and for the reasons
set forth below, the Court will GRANT Plaintiff’s Motion [Doc. 90].
Pursuant to Federal Rule of Civil Procedure 41(a)(B)(2), “[A]n action may be dismissed at
the plaintiff’s request only by court order, on terms that the court considers proper.” Plaintiff has
requested that this Court dismiss her case. The United States concurs with Plaintiff’s request to
dismiss.
By way of background, the Court previously dismissed Defendant Jefferson City Health &
Rehabilitation Center and Plaintiff’s claims that arose under the THCLA and Plaintiff’s claims
under 42 U.S.C. § 1983. The Court agrees with the United States that given its previous ruling,
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the United States is entitled to judgment in its favor on Plaintiff’s remaining claims, except
Plaintiff’s claim under the Emergency Medical Treatment and Labor Act (“EMTALA”). See
Bruce v. Great Britain, No. 3:17-cv-285, 2018 WL 4604020, at *4 (E.D. Tenn. Sept. 25, 2018)
(calling into question whether the failure to comply with Tennessee’s good-faith certification
requirement would defeat a claim under EMTALA), appeal docketed, No. 18-6149 (6th Cir. Oct.
31, 2018).
The Court construes Plaintiff’s Complaint to include a claim under EMTALA. See [Doc.
21 at 4] (stating that the Veterans Administration released Plaintiff’s brother instead of treating or
following up on his condition and citing to 42 U.S.C. § 1395dd). In its Response to the instant
Motion, however, the United States asserts that EMTALA does not apply to Plaintiff’s allegations
against it because the care at issue in this case was provided through the Veterans Administration,
which is a federal agency and not a private medical provider subject to Medicare. Plaintiff has not
challenged this assertion. See 42 U.S.C. § 1395dd; see also Rose v. Borsos, No. 2:17-CV-204,
2018 WL 3967673, at *10 (E.D. Tenn. Aug. 17, 2018) (dismissing with prejudice plaintiff’s claim
under 42 U.S.C. § 1395 because he did not allege that he is a Medicare recipient or that any of the
treatment relates to the Medicare Act). Accordingly, the Court finds it appropriate to dismiss this
claim.
III.
CONCLUSION
Accordingly, for the reasons further explained above, the Court will grant Plaintiff’s
Motion to Dismiss [Doc. 90]. A separate Judgment will follow.
IT IS SO ORDERED.
ENTER:
United States Magistrate Judge
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