United States District Court, M.D. Alabama, Southern Division
AISHA CARTER, individually and as mother and next friend of I.F., and I.F., individually, Plaintiffs,
ALABAMA CVS PHARMACY, LLC #04826,, Defendants.
MEMORANDUM OPINION AND ORDER
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
March 29, 2017, the United States filed a Notice of
Substitution and Notice of Removal of this case from the
Circuit Court of Dale County, Alabama. The plaintiffs filed
this medical malpractice lawsuit in state court after
plaintiff I.F. was incorrectly prescribed Hydralazine, a
medication used to treat high blood pressure, instead of
Hydroxyzine, an antihistamine. The plaintiffs sue Southeast
Alabama Rural Health Associates, Newton Family Health
Associates, Nasser Samuy, D.O., Billy Harmon, P.A., CVS
Pharmacy, LLC, # 4826, Alabama CVS Health Corporation, and
CVS Pharmacy, Inc. Pursuant to 28 U.S.C. § 2679(d)(2)
and 42 U.S.C. § 233(c) and (g), the United States filed
a notice to be substituted for defendants Samuy, Harmon,
Southeast Alabama Rural Health Associates, and Newton Family
Health Associates as the defendant for the plaintiffs'
state law tort claims. The United States has certified that
these defendants “by operation of the Federally
Supported Health Centers Assistance Act of 1992 (FSHCAA), 42
U.S.C. § 233(g)-(n), . . . are deemed to be employees of
the United States Public Health Service (PHS).” (Doc. #
1). The plaintiffs do not oppose the notice of substitution
and have alleged no facts demonstrating that these defendants
should not be deemed federal employees for the purpose of
this litigation. Consequently, the court concludes that,
pursuant to 28 U.S.C. § 2679(d)(1), the United States is
properly substituted for defendants Samuy, Harmon, Southeast
Alabama Rural Health Associates, and Newton Family Health
Associates as a party defendant with respect to the
plaintiffs' state law tort claims.
court has jurisdiction of the plaintiff's federal claims
pursuant to its federal question jurisdiction, 28 U.S.C.
§ 1331 and the jurisdictional grant in 28 U.S.C. §
1346(b) for the federal tort claims. It has supplemental
jurisdiction of the state law claims pursuant to 28 U.S.C.
Alabama CVS Pharmacy, LLC,  CVS Health Corporation, and CVS
Pharmacy, Inc. filed a motion to dismiss in state court
asserting that the plaintiffs have “failed to comply
with the pleading requirements of the Alabama Medical
Liability Act, as amended (“AMLA”) . . . and . .
. failed to state a claim against any of the CVS
defendants” because the plaintiffs have failed to
specifically identify any wrongdoing by these defendants.
See Doc. # 1, Ex. 3. The United States has also
filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1),
asserting that this case is barred from review because this
court lacks subject matter jurisdiction. (Doc. # 4). The
United States contends that the court lacks subject matter
jurisdiction over the plaintiffs' tort claims because
they have failed to exhaust their administrative remedies.
The plaintiffs have filed a response to the pending motions
to dismiss asserting that the United States' motion to
dismiss should be denied because they were unaware of the
need to exhaust, and the CVS defendants' motion should be
denied because they named the entities that were known to
them at the time the complaint was filed. See Doc. #
8. Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR
73.1, the parties have consented to a United States
Magistrate Judge conducting all proceedings in this case and
ordering the entry of final judgment.
careful consideration of the United States' motion to
dismiss and the plaintiffs' response in opposition to the
motion, the court conclude that the United States' motion
is due to be granted, and this case is due to be dismissed
United States' Motion to Dismiss
United States asserts that, pursuant to Fed.R.Civ.P.
12(b)(1), this court lacks subject matter jurisdiction over
the plaintiffs' claims. (Doc. # 5). The law is
well-established that the United States, as sovereign, is
absolutely immune from suit unless it consents to be sued.
United States v. Sherwood, 312 U.S. 589, 586 (1941).
Thus, the plaintiffs' claims against the United States
are barred by the doctrine of sovereign immunity except as to
those tort claims for which Congress waived sovereign
immunity and granted consent for the United States to be
sued. Because the United States has been substituted as a
party defendant with respect to the plaintiffs' state law
tort claims, the plaintiffs' exclusive remedy is pursuant
to the Federal Tort Claims Act (“FTCA”).
See 28 U.S.C. § 2679.
the health care providers were certified by as employees of
the Public Health Service pursuant to 42 U.S.C. §
233(g), the plaintiffs' sole remedy for medical
malpractice claims against them is a claim against the United
States pursuant to the FTCA. However, a prerequisite to
filing suit under the FTCA is that “[a]n action . . .
not be instituted . . . unless the claimant [has] first
presented the claim to the appropriate Federal agency and his
claim [has] been finally decided by the agency in writing and
sent by certified or registered mail.” 28 U.S.C. §
2675(a). See also Barnett v. Okeechobee Hosp., 283
F.3d 1232, 1236-37 (11th Cir. 2002). This administrative
prerequisite is jurisdictional and cannot be waived.
Id. at 1237 quoting Lykins v. Pointer,
Inc., 725 F.2d 645, 646 (11th Cir. 1984).
April 4, 2017, the court directed the plaintiffs to show
cause why the United States' motion to dismiss should not
be granted. In response, the plaintiffs do not dispute the
government's contention that they have failed to exhaust
their administrative remedies. They concede that they did not
file an administrative claim with the appropriate
authorities, primarily because they were unaware of the
necessity to do so. Consequently, the plaintiffs have failed
to establish that they have satisfied the jurisdictional
prerequisite for this court to exercise jurisdiction over
their tort claims. See Lykins, 725 F.2d at 647 (a
plaintiff must provide proof that he satisfied the
jurisdictional requirements to institute suit against the
government). Therefore, the court concludes that the
plaintiffs have failed to exhaust their administrative
remedies, and that the United States' motion to dismiss
with respect to the plaintiffs' federal claims against
the health care providers pursuant to the FTCA is due to be
State Law Claims against defendants the CVS
determined that the court does not have jurisdiction over the
plaintiffs' federal claims, the court declines to
exercise supplemental jurisdiction over the plaintiffs'
state law claims against the CVS defendants pursuant to 28
U.S.C. § 1367. These claims will be dismissed without
it is ORDERED and ADJUDGED that the United States' motion
to dismiss be and is hereby GRANTED, and that the
plaintiffs' federal claims against the health care
provider defendants ...