Hu v. Brooke Army Medical Center
Filing
10
ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATION re 7 Memorandum and Recommendation; 2 Motion to Appoint Counsel filed by Lingzhi Hu. For the reasons given, the Court ADOPTS the Magistrate Judges Memorandum and Recommendation as the opinion of the Court; Plaintiffs Motion for Appointment of Counsel is DENIED, and the above-entitled and numbered case is DISMISSED WITH PREJUDICE. Signed by Judge David Ezra. (kh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LINGZHI HU.,
Plaintiff,
vs.
BROOKE ARMY MEDICAL
CENTER,
Defendant.
§
§
§
§
§
§
§
§
§
§
Cv. No. SA:13-CV-00060-DAE
ORDER ADOPTING MAGISTRATE JUDGE’S
MEMORANDUM AND RECOMMENDATION
On January 22, 2013, Plaintiff Lingzhi Hu filed a Motion to Proceed
in Forma Pauperis, attaching a proposed Complaint that brought malpractice
claims against the Booke Army Medical Center. (Doc. # 1.) On the same day,
Plaintiff filed a Motion for Appointment of Counsel. (Doc. # 2.) The Court
referred both Motions to the Magistrate Judge, who directed Plaintiff to respond to
a questionnaire in order to provide more information on her claim. (Doc. # 4.)
On March 11, 2013, the Magistrate Judge granted Plaintiff’s Motion
to Proceed in Forma Pauperis (doc. # 5) and filed a Memorandum and
Recommendation (doc. # 7) recommending that Plaintiff’s Motion for
Appointment of Counsel be denied and that the above-entitled and numbered case
be dismissed with prejudice. The Magistrate Judge found that Plaintiff’s answers
1
to the questionnaire “establish[ed] that plaintiff [could not] state a claim upon
which relief can be granted.” (Id. at 1.) The Magistrate Judge’s Memorandum and
Recommendation also advised Plaintiff of her right to file specific written
objections within fourteen days of being served and of the consequences of her
failure to object. (Id. at 5–6.) The Memorandum and Recommendation was duly
served by mail upon Plaintiff on March 12, 2013. (Doc. # 8.) However, Plaintiff
filed no objections.
Where, as here, neither party objects to the Magistrate Judge’s
findings, the Court reviews the Memorandum and Recommendation for clear error.
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
After careful consideration, the Court adopts the Magistrate Judge’s
Memorandum and Recommendation. In Feres v. United States, the Supreme Court
held that the government “is not liable under the Federal Tort Claims Act
(‘FTCA’) for injuries to servicemen where the injuries arise out of or are in the
course of activity incident to service.” 340 U.S. 135, 146 (1950); accord Filer v.
Donley, 690 F.3d 643, 648 (5th Cir. 2012). Medical malpractice by a physician
employed by the military, in a military hospital, and in the course of treatment of a
person in active military service has been held to fall within “the course of activity
incident to service.” Hayes v. U.S. on Behalf of U.S. Dep’t of Army, 44 F.3d 377,
378–79 (5th Cir. 1995) (quoting Shults v. United States, 421 F.2d 170, 171–72
2
(5th Cir. 1969)). Plaintiff was on active duty at the time of the alleged malpractice
by medical personnel employed by the military in a military hospital.
Accordingly, the Magistrate Judge’s conclusion that Plaintiff cannot sue the United
States (which owns and operates the Brooke Army Medical Center) is neither
clearly erroneous nor contrary to law.
For the reasons given, the Court ADOPTS the Magistrate Judge’s
Memorandum and Recommendation as the opinion of the Court; Plaintiff’s Motion
for Appointment of Counsel is DENIED, and the above-entitled and numbered
case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
DATED: San Antonio, Texas, May 24, 2013.
_____________________________
David Alan Ezra
Senior United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?