United States District Court, D. Oregon
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 ...