Homesly, April v. United States of America

Filing 15

ORDER granting defendant's 6 Motion for Summary Judgment. Plaintiff April Homesly's claims are DISMISSED WITHOUT PREJUDICE for her failure to file an administrative claim before filing suit. The clerk of court is directed to enter judgment for defendant and close this case. Signed by District Judge Barbara B. Crabb on 7/22/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - APRIL J. HOMESLY,
ORDER
Plaintiff,
13-cv-259-bbc
v.
UNITED STATES,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff April Homesly, proceeding without counsel, filed this personal injury lawsuit
against Dr. Demetria Sifakis in the Circuit Court for Dane County, Wisconsin for injuries
she suffered as a result of oral surgery performed by Dr. Sifakis. In particular, plaintiff
alleges that during a teeth extraction surgery performed on January 13, 2013, Dr. Sifakis
injured her mouth and lips, used tools that were not sterilized, failed to give plaintiff
antibiotics and generally acted unprofessionally, causing plaintiff to experience significant
pain and suffering.
The United States removed the case to this court under 42 U.S.C. § 233(c) on the
ground that Dr. Sifakis was acting within the scope of her employment as an employee of
the United States Public Health Service at the time of the incident out of which plaintiff’s
claims arose. The court subsequently granted a motion to substitute the United States as
the proper defendant under § 233(c) and 28 U.S.C. § 2679(d)(2). As a result, plaintiff’s

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negligence claim is actually a claim under the Federal Tort Claims Act, which makes the
federal government liable for acts or omissions by its employees that would be torts in the
state in which they occurred had they been committed by someone other than a federal
employee. 28 U.S.C. § 2674. See also 42 U.S.C. § 233 (plaintiff suing for personal injury
as result of actions taken by employee of Public Health Service while acting within scope of
employment must bring claim under Federal Tort Claims Act); Jackson v. Kotter, 541 F.3d
688, 693 (7th Cir. 2008).
The United States has now moved for summary judgment on plaintiff’s claims on the
ground that plaintiff did not present an administrative tort claim to the Department of
Health and Human Services relating to the allegations of the complaint before bringing this
lawsuit. Dkt. #6. As the United States explains in its motion, an injured party must present
an administrative tort claim before the appropriate federal agency to give the agency an
opportunity to investigate and act on that claim before she can sue the United States under
the Federal Tort Claims Act. 28 U.S.C. § 2675(a); Glade ex rel. Lundskow v. United States,
692 F.3d 718, 723 (7th Cir. 2012). In this case, the appropriate federal agency is the
Department of Health and Human Services because the Public Health Service is a division
of that department.
I am granting the motion for summary judgment. The United States submitted a
declaration from a senior attorney at the Department of Health and Human Services stating
that there is no record of any administration claim from plaintiff. Dkt. #9. Plaintiff did not
respond to the motion for summary judgment and has not denied that she failed to file an

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administrative claim.

Therefore, it is undisputed that plaintiff failed to satisfy the

prerequisite of filing an administrative claim before bringing suit. As a result, her complaint
must be dismissed.

ORDER
IT IS ORDERED that defendant the United States’s motion for summary judgment,
dkt. #6, is GRANTED. Plaintiff April Homesly’s claims are DISMISSED WITHOUT
PREJUDICE for her failure to file an administrative claim before filing suit. The clerk of
court is directed to enter judgment for defendant and close this case.
Entered this 22d day of July, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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