United States District Court, D. Oregon
January 22, 2015
DANIEL CARROLL, Plaintiff,
UNITED STATES OF AMERICA, Defendant
Daniel Carroll, Plaintiff, Pro se, Portland, OR.
For United States of America on behalf of Native American Rehabilitation Association of the Northwest, Inc. Defendant: James E. Cox, LEAD ATTORNEY, Jr. U.S. Attorney's Office District of Oregon, Portland, OR.
FINDINGS AND RECOMMENDATION
John Jelderks, U.S. Magistrate Judge.
Plaintiff Pro Se Daniel Carroll originally brought this action in Multnomah County Circuit Court for the State of Oregon against the Native American Rehabilitation Association of the Northwest, Inc. (" NARA"). Plaintiff asserts tort claims under Oregon law based on medical services provided to him by NARA. The United States Attorney for the District of Oregon, acting under the authority delegated to her by the Attorney General of the United States and pursuant to the Federally Supported Health Centers Assistance Act of 1992 (FSHCAA), 42 U.S.C. § 233(g), certified that NARA was deemed to have been acting within the course and scope of employment of the Public Health Service at all times material to the incidents alleged in the Complaint.
Pursuant to 42 U.S.C. § 233(c), the U.S. Attorney for the District of Oregon removed the case to federal court where the action was thereafter " deemed a tort action brought against the United States under the provisions of Title 28 [the Federal Tort Claims Act] and all references thereto." See 42 U.S.C. § 233(c).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendant United States now moves to dismiss for lack of subject matter jurisdiction. For the reasons set forth below, the motion should be granted.
Plaintiff's state court action alleged claims for negligence, emotional distress, slander and defamation, racial discrimination and medical malpractice against NARA. Plaintiff alleged that he is an enrolled member of the Laguna Tribe and had been treated at NARA for open heart surgery, chronic asthma and a torn Achilles heel. Plaintiff also alleged that he takes several medications that are prescribed by the NARA clinic.
Plaintiff's fifteen page handwritten complaint details a variety of incidents which Plaintiff alleges caused him harm. In essence, Plaintiff alleges (1) that NARA failed to properly diagnose and treat his medical conditions and failed to communicate with him regarding his medical issues and the treatment for those issues; (2) that a NARA employee made " unfair and untrue allegations" about Plaintiff based upon documents in his medical record and communicated those allegations to a third party; and (3) that his race played a role in the treatment he received. Notice of Removal, Ex. 3 (State Court Complaint).
After removal of the case to this Court and Defendant's filing of its motion to dismiss, Plaintiff filed a " Motion for Continuance" requesting a hearing. A Status Conference was set for August 8, 2014. As a result of the Status Conference the Court requested the appointment of pro bono counsel for Plaintiff for the limited purpose of assisting him with the pending motions. A further Status Conference was set for September 18, 2014. At Plaintiff's request, the hearing was reset for September 25, 2014. Plaintiff appeared with pro bono counsel; however, Plaintiff's attorney moved to withdraw and the motion was granted. Based on Plaintiff's assertion during the conference that removal of his case and substitution of the United States as Defendant was based on his pro se status, the Court directed Plaintiff to submit a list of the NARA cases that he believed were proceeding in state court for which the United States had not substituted itself as Defendant.
Plaintiff submitted a letter identifying a single lawsuit in which NARA was not certified under the FSHCAA, 42 U.S.C. § 233, and the FTCA, 28 U.S.C. § 2671, et. seq . Defendant filed a Response asserting that NARA did not request or receive certification in that particular case because it was a premises liability case and not an action for " for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or other related functions, including the conduct of clinical studies or investigation . . ." 42 U.S.C. 233(a). Accordingly, NARA was not eligible for certification under the FSHCAA and the FTCA in the case identified by Plaintiff. See 42 U.S.C. § 233(a).
After review of the parties' submissions, a Response deadline to Defendant's motion to dismiss was set and Plaintiff timely filed his Response. Defendant's motion is now before the Court.
Standards for Evaluating Motions to Dismiss Pursuant to Rule 12(b)(1)
" 'A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle it to relief." Colwell v. Department of Health and Human Services, 558 F.3d 1112, 1121 (9th Cir. 2009)(quoting Daniel v. County of Santa Barbara, 288 F.3d 375, 380 (9th Cir. 2002), cert. denied, 537 U.S. 973, 123 S.Ct. 466, 154 L.Ed.2d 329 (2002)). The party asserting a claim bears the burden of establishing that it has standing and that the matter is ripe for adjudication. Id. (citing Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991)).
A moving party may base a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction over the allegations of the complaint, or may bring a factually based motion " by presenting affidavits or other evidence properly brought before the court...." Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003), cert. denied, 541 U.S. 1009, 124 S.Ct. 2067, 158 L.Ed.2d 619 (2004). If the motion to dismiss for lack of jurisdiction is factually based, the court may look beyond the allegations of the complaint. Id. (citing White v. Lee, 227 F.3d, 1214, 1242 (9th Cir. 2000)). If the moving party supports a motion to dismiss for lack of jurisdiction with evidence, the nonmoving party " must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id. The court's consideration of extrinsic evidence presented in support of and opposition to a motion to dismiss for lack of subject matter jurisdiction does not convert the motion to a motion for summary judgment. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989). If necessary, a court presented with a factually based motion to dismiss on jurisdictional grounds may resolve factual disputes. See Berardinelli v. Castle & Cooke, Inc., 587 F.2d 37, 39 (9th Cir.1978).
Defendant moves to dismiss the action against it pursuant to Fed.R.Civ.P. 12(b)(1). Defendant argues that Plaintiff has neither exhausted his administrative remedies as required by the FTCA nor alleged such in his Complaint and, accordingly, this court lacks subject matter jurisdiction over this action.
Defendant asserts, and Plaintiff does not dispute that at all times material to the events alleged, NARA was an entity the Department of Health and Human Services has deemed an employee for purposes of the FSHCAA. See 42 U.S.C. § 233(g)-(n); Decl. of Meredith Torres in Support of Def.'s Motion to Dismiss; Ex.1. As such, NARA is eligible for coverage under the FTCA and the FTCA provides the exclusive remedy " for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or other related functions, including the conduct of clinical studies or investigation . . ." 42 U.S.C. 233(a); 28 U.S.C. § 2679(b)(1). Plaintiff's claims here arise from the performance of medical functions by NARA. The FTCA, therefore, applies to this action.
The FTCA requires a plaintiff seeking money damages based upon a tort allegedly committed by an employee of the United States to first present the claim to the appropriate Federal agency and to wait until the agency has finally denied the claim in writing or failed to act on the claim within six months of the submission, before bringing an action in federal court. 28 U.S.C. § 2675(a). The claim-presentation requirement is " 'jurisdictional in nature and may not be waived.'" Vacek v. United States Postal Serv., 447 F.3d 1248, 1253 (9th Cir. 2006) cert. denied, 550 U.S. 906, 127 S.Ct. 2122, 167 L.Ed.2d 817 (2007)(quoting Blain v. United States, 552 F.2d 289, 291 (9th Cir. 1977)).
Defendant submitted a Declaration from an attorney with the Department of Health and Human Services (DHHS) stating that there is no record of Plaintiff or an authorized representative having filed an administrative tort claim relating to NARA. Plaintiff does not contest this assertion and there is no evidence in the record that Plaintiff ever presented a claim to DHHS before bringing this action. Under these circumstances, this court lacks jurisdiction, and Defendant's motion to dismiss should be granted.
For the reasons set forth above, Defendant's motion (#3) should be GRANTED and this action should be DISMISSED without prejudice.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due February 9, 2015. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.