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Patrick v. United States

United States District Court, S.D. Alabama, Northern Division

July 25, 2018

SONIA PATRICK, Plaintiff,
v.
UNITED STATES OF AMERICA and WHATLEY HEALTH SERVICES, INC., Defendants.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion to partially dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and for an extension of time to file a responsive pleading as to any remaining issues (Doc. 12), and separate supporting memorandum (Doc. 13), filed by Defendant the United States of America, and the First Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) (Doc. 18) filed by Defendant Whatley Health Services, Inc. (“Whatley”) The Court has referred both motions to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (4/24/2018 & 5/3/2018 electronic referrals).

         Plaintiff Sonia Patrick has timely filed a response (Docs. 20, 21) in opposition to the United States' motion, and the United States has timely filed a reply (Doc. 22) to the response. Patrick filed no response to Whatley's motion, and the deadline to do so has passed. (See Doc. 19). Both motions are now under submission. (See Docs. 17, 19).

         I. Legal Standards

         In deciding a motion to dismiss under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted, ” the Court must construe the complaint in the light most favorable to the plaintiff, “accepting all well-pleaded facts that are alleged therein to be true.” E.g., Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013). “[A] motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint. If the challenge is facial, the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised. Accordingly, the court must consider the allegations in the plaintiff's complaint as true. []A ‘facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. ‘Factual attacks,' on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered. Furthermore, …the district court has the power to dismiss for lack of subject matter jurisdiction on any of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citations and quotations omitted).

         II. Analysis A. The Complaint

         Patrick initiated this civil action by filing a two-count complaint (Doc. 1), alleging claims for money damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., [1] arising from a root canal procedure performed on December 2, 2013, by Dr. Adrian Rowe, a dentist employed by Whatley at its Hale County, Alabama clinic. Per the complaint's well-pleaded allegations, Dr. Rowe perforated the buccal surface of Patrick's tooth during the procedure, then attempted to correct the perforation over several painful return visits to the clinic without informing Patrick that the continued treatment was due to Dr. Rowe's error. (Doc. 1, ¶¶ 14 - 15). The clinic administrator eventually sent Patrick to a specialist to repair the damaged tooth. (Id., ¶ 16). Patrick suffered extensive tissue loss in the gum area surrounding the damaged tooth, and the tooth itself was lost when extracted. (Id.). Patrick had to receive painful treatment to the bone and gums to prepare the area for a dental implant and crown. (Id., ¶ 17).

         Dr. Rowe also prescribed Patrick opioid pain medication after the tooth perforation. (Id., ¶ 18). Patrick, who has limited mobility due to a spinal cord injury, takes medication to aid her bowel movements. (Id.). Complications arose when Patrick developed pneumonia after being bedridden with severe constipation, resulting in the need for hospitalization. (Id., ¶ 19). Dr. Rowe allegedly failed to warn Patrick of the possible complications of the prescribed opioid, and to understand the risks particular to spinal cord injury patients with regard to the use of opioids.

         Based on the foregoing allegations, Patrick brings causes of action against the Defendants under the FTCA for negligence and for “vicarious liability, respondeat superior, ostensible agency, and/or agency.”[2]

         B. Claims against Whatley

         Whatley argues that it should be dismissed from this action because “[t]he United States is the only proper defendant in an FTCA action.” Simpson v. Holder, 184 Fed.Appx. 904, 908 (11th Cir. 2006) (per curiam) (unpublished) (citing 28 U.S.C. § 2679(a), (b); Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (per curiam); Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988); Mars v. Hanberry, 752 F.2d 254, 255 (6th Cir. 1985)).[3] See also Hui v. Castaneda, 559 U.S. 799, 801 (2010) (“When federal employees are sued for damages for harms caused in the course of their employment, the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671- 2680, generally authorizes substitution of the United States as the defendant.”). The United States supports this position, Patrick has offered no argument to the contrary, and the undersigned agrees. Accordingly, the claims against Whatley are due to be DISMISSED without prejudice under Rule 12(b)(1) for lack of subject matter jurisdiction.[4]

         C. Claims against United States

         “It is well settled that the United States, as a sovereign entity, is immune from suit unless it consents to be sued. Through the enactment of the FTCA, the federal government has, as a general matter, waived its immunity from tort suits based on state law tort claims. But in offering its consent to be sued, the United States has the power to condition a waiver of its immunity as broadly or narrowly as it wishes, and according to whatever terms it chooses to impose. That being so, a court must strictly observe the limitations and conditions upon which the Government consents to be sued and cannot imply exceptions not present within the terms of the waiver.” Zelaya v. United States, 781 F.3d 1315, 1321-22 (11th Cir. 2015) (citations and quotation omitted).

         One such condition, set forth in 28 U.S.C. § 2675(a), requires that the administrative agency being sued receive notice and an opportunity to resolve the dispute without litigation:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.
28 U.S.C. § 2675(a). If the claim is not presented in writing to the agency within two years after it accrues, it is forever barred. 28 U.S.C. § 2401(b).

Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1236-37 (11th Cir. 2002). “A district court only has jurisdiction over an FTCA action if the plaintiff has met section 2675(a)'s requirements. To satisfy section 2675(a), a claimant must do two things: (1) give the appropriate agency written notice of his or her claim sufficient to enable the agency to investigate and (2) place a value on his or her claim.” Burchfield ...


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