Opinion
3:22-cv-00932-SB
02-07-2023
IAN LEONARD CLARK, Plaintiff, v. NEIGHBORHOOD HEALTH CENTER; COLEMAN BRIGHT; LINDSEY SCOTT; and DARLA LUNDMARK, Defendants.
FINDINGS AND RECOMMENDATION
STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the United States of America's (the “United States”) motion to dismiss Ian Clark's (“Clark”) complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, see FED. R. CIV. P. 12(B)(1) AND 12(b)(6), and Clark's motion to remove the United States' counsel. The parties have not consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. For the reasons explained below, the Court recommends that the district judge grant the United States' motion to dismiss Clark's complaint for lack of subject matter jurisdiction and deny Clark's motion to remove the United States' counsel.
BACKGROUND
I. STATUTORY BACKGROUND
A. The Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80, “waives the sovereign immunity of the United States for certain torts committed by federal employees under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006) (quoting Smith v. United States, 507 U.S. 197, 201 (1993)). “The FTCA's purpose is both to allow recovery by people injured by federal employees . . ., and, at the same time, to immunize such employees . . . from [personal] liability for negligent or wrongful acts done in the scope of their employment.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005) (citing, inter alia, 28 U.S.C. § 2679(b)(1)).
Notably, however, the FTCA “provides that an ‘action shall not be instituted upon a claim against the United States for money damages' unless the claimant has first exhausted administrative remedies.” Vacek, 447 F.3d at 1250 (quoting 28 U.S.C. § 2675(a)). “An administrative claim is deemed exhausted once the relevant agency finally denies it in writing, or if the agency fails to make a final disposition of the claim within six months of the claim's filing.” D.L. ex rel. Junio v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017) (citing 28 U.S.C. § 2675(a)). The Ninth Circuit has explained that the FTCA's “exhaustion requirement is jurisdictional in nature[,] . . . must be interpreted strictly,” Vacek, 447 F.3d at 1250, and “may not be waived.” Junio, 858 F.3d at 1244 (citing Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992)).
B. The Federally Supported Health Centers Assistance Act
The Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n), authorizes the Secretary of the Department of Health and Human Services (the “Secretary” or “HHS”) to deem certain health centers that receive federal grant funds under Section 330 of the Public Service Health Act (“PSHA”), 42 U.S.C. § 254b, and their employees, to be employees of the Public Health Service (“PHS”) for purposes of 42 U.S.C. § 233. See Agyin v. Razman, 986 F.3d 168, 171-72 (2d Cir. 2021). Under Section 233(a), “officers and employees of the PHS [are protected] from personal liability ‘for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions' while acting within the scope of their employment.” O'Brien v. United States, 56 F.4th 139, 147 (1st Cir. 2022) (quoting 42 U.S.C. § 233(a)). In lieu of personal liability, Section 233(a) “makes available a tort action against the United States under the FTCA as the ‘exclusive' remedy for certain ‘act[s] or omission[s]' on the part of PHS employees resulting in personal injury or death.” Id. (quoting 42 U.S.C. § 233(a)).
To obtain such protections, a federally funded health center is “required to submit an application [to the Secretary] on behalf of itself and its employees each year,” Agyin, 986 F.3d at 172, “attesting that [the health center] and/or particular officers, board members, employees, or contractors satisfy certain statutory criteria.” O'Brien, 56 F.4th at 148 (citing 42 U.S.C. § 233(g)(1)(D) and 42 U.S.C. §§ 233(g)(1)(B)-(C), (h)). Typically, after “the Secretary makes a determination that an entity . . . is deemed to be an employee of the [PHS] for purposes of [Section 233], the determination [is] . . . final and binding upon the Secretary and the Attorney General and other parties to any civil action or proceeding.” Agyin, 986 F.3d at 172 (quoting 42 U.S.C. § 233(g)(1)(F)); see also 42 U.S.C. § 233(i)(1) (setting forth an exception referenced in § 233(g)(1)(F), and the Attorney General's authority to exclude a federally funded health center's employee from coverage if they would “expose the Government to an unreasonably high degree of risk of loss”).
That does not mean that the Secretary's annual “deeming” determination “conclusively establish[es] PHSA and FTCA coverage with respect to a particular lawsuit . . ., [as] coverage hinges on the circumstances in which care has been provided.” O'Brien, 56 F.4th at 148-49 (citing 42 U.S.C. § 233(g)(1)(B)-(C)). However, as “to patients of the health center, coverage is straightforward: the Secretary's ‘deeming' determination ‘appl[ies] with respect to services provided' to ‘all patients of the entity.'” Id. (quoting 42 U.S.C. § 233(g)(1)(B)(i)). “The Attorney General, upon notice from a deemed defendant, shall defend against, or compromise, civil actions or proceedings for [the] damage or injury.” El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep't of Health & Human Servs., 396 F.3d 1265, 1267 (D.C. Cir. 2005) (citing 42 U.S.C. § 233(b), (d)).
II. FACTUAL AND PROCEDURAL BACKGROUND
Clark filed this action against Neighborhood Health Center (“NHC”), Coleman Bright, D.M.D. (“Dr. Bright”), Lindsey Scott, D.M.D. (“Dr. Scott”), and Darla Lundmark (“Lundmark”) (together, “Defendants”) on June 29, 2022. (Compl. at 1-9, ECF No. 1.)
Clark alleges that NHC is a “federally funded dental clinic,” Lundmark and Drs. Bright and Scott (together, the “Individual Defendants”) work at NHC, the “incident at the center of this lawsuit” is a dental surgery Dr. Bright performed on Clark on May 5, 2021, Lundmark served as Dr. Bright's surgical assistant, Dr. Scott provided follow-up care, and Clark's claims are based on statements, acts, and omissions the Individual Defendants allegedly made during the course of his treatment between April 22 and June 14, 2021. (See id. at 2, 5-9.)
Also on June 29, 2022, the United States removed from Clackamas County Circuit Court a nearly identical complaint that Clark had filed against Defendants. See Notice of Removal Ex. 4 at 1-22, Clark v. United States, Case No. 3:22-cv-00931-SB (D. Or. filed June 29, 2022) (“Clark I”), ECF No. 1-4. In this complaint, Clark complained about the same statements, acts, and omissions that the Individual Defendants allegedly made during the course of his dental treatment and May 5, 2021 surgery at NHC, and asserted the same causes of action, including medical malpractice. See id.
The Court takes judicial notice of the court records from Clark's other case against Defendants. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records available through [the Public Access to Court Electronic Records system].”) (citations omitted); United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (“We take judicial notice of these facts about the suppression hearing from the district court record in the underlying criminal case.”); see also FED. R. EVID. 201(c)(1) (“The court . . . may take judicial notice on its own [motion].”).
In its Clark I notice of removal, the United States stated that (1) pursuant to the FSHCAA, the Secretary had deemed NHC and the Individual Defendants to be employees of the PHS for purposes of Section 233; (2) the Attorney General, through the United States Attorney for the District of Oregon, certified-pursuant to Section 233-that Defendants were acting in the scope of their employment at the time of the incidents out of which the suit arose; (3) Clark's case must proceed against the United States under the FTCA; and (4) the United States was substituting itself as the defendant in place of NHC, Lundmark, and Drs. Bright and Scott. (See Notice of Removal at 1-3; id. Ex. 1 at 2-3, stating that at all relevant times, the Individual Defendants were NHC employees). ///
“The federal government maintains an online public database listing recipients of federal funding whose employees may be deemed employees of the [PHS] for purposes of FTCA coverage.” P.W. by Woodson v. United States, 990 F.3d 515, 518 (7th Cir. 2021) (citing data.hrsa.gov/tools/ftca-search-tool).
About a month and a half later, on August 8, 2022, Clark filed a motion to dismiss in Clark I asking “the Court to dismiss the [removed] case at his request.” (Pl.'s Mot. Dismiss at 2, ECF No. 13.) With Clark's approval, and before an opposing party served an answer or motion for summary judgment, the Court construed Clark's motion as a notice of voluntary dismissal under Federal Rule of Civil Procedure (“Rule”) 41(a)(1), which automatically terminated the case. See generally FED. R. CIV. P. 41(A)(1) (“[T]he plaintiff may dismiss an action without a court order by filing . . . notice of dismissal before the opposing party serves either an answer or a motion for summary judgment[.] . . . Unless the notice . . . states otherwise, the dismissal is without prejudice.”); Am. Soccer Co., Inc. v. Score First Enters., 187 F.3d 1108, 1110 (9th Cir. 1999) (stating that Rule 41(a)(1) “confers on the plaintiff an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment,” and “the filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice” and “no court order is required”) (simplified).
Thereafter, in this case, the United States and Clark filed and completed briefing on their respective motions to dismiss and remove the United States' counsel. (See Def.'s Mot. Dismiss (“Def.'s Mot.”) at 1-13, ECF No. 15; Pl.'s Mot. Remove Counsel (“Pl.'s Mot.”) at 1-4, ECF No. 19.) In its papers, the United States takes the “position . . . that the deeming, certification, and subst[itu]tion actions taken in [the] original lawsuit [removed from state court] apply to this case” (Def.'s Mot. at 3 n.2), and asks “it be substituted as the sole party defendant[.]” (Def.'s Reply Supp. Mot. Dismiss (“Def.'s Reply”) at 2, ECF No. 17.) Clark objects to the United States' and its counsel's involvement in this case. (Pl.'s Mot. at 1-2.)
DISCUSSION
The United States moves to dismiss Clark's complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. SeeFED. R. CIV. P. 12(b)(1), 12(b)(6). (Def.'s Mot. at 2.) Clark moves to remove the United States' counsel. (Pl.'s Mot. at 1-3.)
As explained below, the United States' counsel was required to appear and defend this case. Further, the Court lacks subject matter jurisdiction over Clark's complaint because NHC and the Individual Defendants are absolutely immune from suit under the circumstances presented, and because Clark's exclusive remedy is an action against the United States under the FTCA and Clark has not exhausted his administrative remedies. The Court therefore recommends that the district judge grant the United States' request to be substituted as the named defendant and its motion to dismiss Clark's complaint pursuant to Rule 12(b)(1), and deny Clark's motion to remove counsel.
I. SUBJECT MATTER JURISDICTION
A. Applicable Law
The Ninth Circuit has explained that “[t]o contest a plaintiff's showing of subject matter jurisdiction, a defendant may file two types of Rule 12(b)(1) motions[.]” Bedwell v. TBLB Enters. LLC, No. 21-56245, 2022 WL 3083320, at *1 (9th Cir. Aug. 3, 2022). Specifically, a defendant may file “a facial attack, which challenges jurisdiction ‘facially,' by arguing that the allegations . . . are insufficient on their face to invoke federal jurisdiction, or a ‘factual' attack, which presents extrinsic evidence . . . disputing the truth of the allegations of the complaint that would otherwise invoke federal jurisdiction.” Id. (citing Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)).
The United States' Rule 12(b)(1) motion presents a factual attack because it relies on extrinsic matters of public record to challenge subject matter jurisdiction. (See Def.'s Mot. at 3 n.2, relying on the “deeming, certification, and subst[itu]tion actions taken in [the] original lawsuit”; cf. Compl. at 3, alleging that the Court has federal question jurisdiction over certain federal statutory claims against Defendants); cf. Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016) (reviewing “a dismissal for lack of subject matter jurisdiction under the FTCA,” and observing “the United States mounted a factual attack when it filed declarations and affidavits challenging [certain] allegations”).
Where, as here, “the moving party converts ‘the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.'” Wolfe, 392 F.3d at 362 (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004)).
B. Analysis
The Court concludes that it lacks subject matter jurisdiction, and therefore recommends that the district judge grant the United States' motion to dismiss pursuant to Rule 12(b)(1).
In his complaint, Clark alleges, among other things, that he consented to the extraction of his first molar; during the May 2021 surgery, Dr. Bright “was assisted by Lundmark” in “drill[ing] a hole” in his second molar and “plac[ing] a very large piece of previously extracted tooth fragment . . . into the socket of [his first molar, which] became infected”; and during a June 2021 follow-up appointment, Dr. Scott failed to “mention the large tooth fragment in the socket” of his first molar, “altered the [x]-rays to remove th[e] fragment,” and “used her tools to cause pain.” (Compl. at 5-9.) Citing an unnamed dental assistant's comments about England and observations during his treatment at NHC, “a federally funded dental clinic,” Clark also alleges the Individual Defendants were engaged in a conspiracy to injure him on the basis of his national origin. (Id.)
Clark seeks damages resulting from the Individual Defendants' performance of dental and related functions (i.e., acts within the scope of their employment) during Clark's time as a patient at a federally funded health center, the Individual Defendants' employer. (See Pl.'s Obj. Def.'s Mot. Dismiss (“Pl.'s Obj.”) at 2, ECF No. 16, alleging that the Individual Defendants were acting in “their official capacit[ies] as [f]ederal/public employees”; Compl. at 2, 6, listing the same address for Defendants, identifying NHC as a “federally funded dental clinic,” and alleging that Dr. Bright and Lundmark were “motivated to attack” Clark, in part because they knew that “they are both FTCA covered” and that Clark was “unable to sue them”). Furthermore, it is undisputed that the Secretary has deemed NHC and the Individual Defendants to be employees of the PHS for purposes of Section 233, and the Attorney General, through the United States Attorney for the District of Oregon, has certified that Defendants were acting within the scope of their employment at the time of the incidents giving rise to this suit. (See Notice of Removal at 1-3; id. Ex. 1 at 19; id. Ex. 2 at 1-2; see also data.hrsa.gov/tools/ftca-search-tool).
In light of the foregoing, the Individual Defendants are immune from liability and Clark's exclusive remedy is a claim against the United States under the FTCA. SeeJunio, 858 F.3d at 1244 (“The [FSHCAA] . . . provides that the exclusive remedy for damages resulting from the performance of medical functions by employees of the U.S. [PHS] acting within the scope of their employment is a claim against the United States under the FTCA. Upon certification that the defendant employee was acting within the scope of his employment at the time of the incident giving rise to the suit, the case must be . . . deemed a tort action brought against the United States under the FTCA” (citing 42 U.S.C. §§ 233(c), (g))); Garcia v. Ives, No. 3:18-cv- 0176-HZ, 2020 WL 6323934, at *6 (D. Or. Oct. 25, 2020) (dismissing the plaintiff's “claims against the PHS officers pursuant to Rule 12(b)(1)” on the ground that “[Section] 233(a) grants ‘absolute immunity to PHS officers and employees for actions arising out of the performance of medical or related functions within the scope of their employment by barring all actions against them for such conduct'” (quoting Hui v. Castaneda, 559 U.S. 799, 806 (2010))); see also G.B. v. United States, No. 21-cv-08071, 2022 WL 18142526, at *6 (C.D. Cal. Sept. 30, 2022) (concluding that the defendant nurse was “entitled to absolute immunity under Section 233(a) and the Court therefore lack[ed] subject matter jurisdiction over [the defendant],” because at all relevant times, she was a PHS employee acting within the scope of her employment).
Consistent with these facts and authorities, the Court recommends that the district judge grant the United States' request to “be substituted as the sole party defendant[.]” (Def.'s Reply at 2.) However, Clark cannot proceed against the United States unless he has exhausted his administrative remedies under the FTCA. See Vacek, 447 F.3d at 1250 (explaining that the FTCA “provides that an ‘action shall not be instituted upon a claim against the United States for money damages' unless the claimant has first exhausted administrative remedies” (quoting 28 U.S.C. § 2675(a))).
Clark has not alleged that he exhausted his administrative remedies. See Brunson v. Kijakazi, No. 21-16380, 2023 WL 166425, at *1 (9th Cir. Jan. 12, 2023) (“The district court did not err in holding that it had no jurisdiction, as [the plaintiff] failed to allege that she exhausted her administrative remedies as required under the [FTCA.]”). Accordingly, the Court recommends that the district judge grant the United States' motion to dismiss for lack of subject matter jurisdiction, decline to reach the merits of Clark's claims, and dismiss this action without prejudice. See Wiggins v. U.S. Gov't, 859 Fed.Appx. 52, 52-53 (9th Cir. 2021) (affirming the dismissal of a plaintiff's FTCA “claim for lack of subject matter jurisdiction because [he] failed to exhaust her administrative remedies”); Tunac v. United States, 897 F.3d 1197, 1201 (9th Cir. 2018) (stating that “a federal court generally may not rule on the merits of a case without first determining that it has jurisdiction”) (simplified); Wilson v. Horton's Towing, 906 F.3d 773,783 (9th Cir. 2018) (“Because Plaintiff can potentially renew his claims in federal court after the appropriate remedies have been exhausted, we hold that dismissal with prejudice was improper.”).
II. CLARK'S MOTION
Clark objects to the United States' and its counsel's involvement in this proceeding, and asks the Court to remove the United States' counsel. (Pl.'s Mot. at 1-2.) The Attorney General, acting through the United States Attorney for the District of Oregon, was required to defend this case upon notice from the deemed defendants. See El Rio Santa Cruz, 396 F.3d at 1267 (“The Attorney General, upon notice from a deemed defendant, shall defend against, or compromise, civil actions or proceedings for [covered] damage or injury.” (citing 42 U.S.C. § 233(b), (d))). Accordingly, the Court recommends that the district judge deny Clark's motion to remove counsel.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT the United States' motion to dismiss (ECF No. 15), DENY Clark's motion to remove the United States' counsel (ECF No. 19), and dismiss this action without prejudice.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (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.