Opinion
Case No. 1:03-CV-325
January 5, 2004
ORDER GRANTING DR. VILLASAN'S MOTION TO DISMISS
This matter is before the court on "Defendant Antonio J. Villasan's, M.D., Motion to Dismiss and Brief in Support" (Dkt. # 7). Upon consideration of the motion, response, reply, sur-reply and applicable law, the court is of the opinion that the motion should be granted.
I. FACTUAL BACKGROUND
In this action, Plaintiffs have made the following allegations. Plaintiff William O'Rourke was incarcerated in various federal prisons from March 17, 2000, through January 22, 2002. Pls.' Orig. Compl., ¶ 15. During his incarceration, O'Rourke "complained repeatedly and sought treatment for rectal bleeding, pain and constipation." Id. The doctors who treated O'Rourke failed to diagnose his "rectal cancer," and because of this failure, O'Rourke's cancer spread, causing him to have to undergo "chemotherapy, radiation, and surgery to remove his rectum and colon." Id., ¶¶ 15-16. The cancer was not properly diagnosed until after O'Rourke was released from prison. Id., ¶ 16. O'Rourke's doctors have indicated that his cancer may be terminal. Id. Otherwise, O'Rourke claims to have suffered "impaired sexual functions, depression, disfigurement and permanent physical impairment." Id., ¶ 17. He now has to wear a "permanent colostomy," and he has been "unable to work and provide for his family." Id. Additionally, O'Rourke claims that he "suffered excruciating pain" during the time he was not properly diagnosed and that he "continues to suffer pain as a result of this surgery and subsequent treatment for the rectal cancer." Id., ¶ 18. Finally, O'Rourke claims to have suffered "emotional distress at the change in his lifestyle and the unknown nature of whether or not he will survive his cancer." Id.
II. PROCEDURAL POSTURE
On May 29, 2003, Plaintiffs filed the original complaint in this action, alleging violations of the Federal Tort Claims Act, 28 U.S.C. § 1346(b), Section 101. 101(a) of the Texas Tort Claims Act, and Article 4590i of the Texas Revised Civil Statutes. On August 5, 2003, Defendant Antonio J. Villasan, M.D., one of the doctors who treated Plaintiff O'Rourke while he was incarcerated, filed a motion to dismiss (Dkt. # 7). Dr. Villasan has moved the court to dismiss Plaintiffs' claims against him based on Rule 12(b)(1) of the Federal Rules of Civil Procedure. Def. Antonio J. Villasan's, M.D., Mot. to Dismiss Br. in Supp. at 1.
II. MOTIONS TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
District courts have "the power to dismiss for lack of subject matter jurisdiction on any one 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." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996): Kelly v. Syria Shell Petroleum Development, 213 F.3d 841, 845 (5th Cir. 2000) (quoting Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir. 1997)); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
It is well established that when a defendant files a Rule 12(b)(1) motion, a court may weigh and balance factual evidence to determine whether jurisdiction is appropriate. Williamson, 645 F.2d at 413 (citing Land v. Dollar, 330 U.S. 731, 735 n. 4 (1947)); MD Physicians Assocs., Inc. v. State Bd. of Insurance, 975 F.2d 178, 180-81 (5th Cir. 1992); Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 n. 6 (5th Cir. 1989); Ramming, 281 F.3d at 161.
District courts are not "limited to an inquiry into undisputed facts." Williamson, 645 F.2d at 413. They may, if they choose, "hear conflicting written and oral evidence and decide . . . the factual issues that determine jurisdiction." Id. As no statute or rule proscribes procedures for the determination of facts underlying jurisdictional questions, however, the Supreme Court has held that the method of conducting such a factual determination is left to the discretion of the district court. Land v. Dollar, 330 U.S. at 735 n. 4.
The Fifth Circuit has stated one limitation on the district court's discretion. If a defendant's motion to dismiss raises factual issues, the plaintiff must be given an "opportunity to be heard on the factual matters underlying jurisdiction." Williamson at 414. This is so, at least partly, because "[t]he burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction." Ramming, 281 F.3d at 161 (citation omitted).
Unlike the circumstance in which a defendant attacks jurisdiction based solely on the allegations of the complaint, a plaintiff's factual allegations are not presumed to be true when a defendant's motion to dismiss hinges on the determination of a factual issue. Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981) (citing Williamson at 412-23 Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)). The party opposing the motion to dismiss must actually prove facts supporting the determination that federal subject matter jurisdiction exists. Otherwise, dismissal for lack of subject matter jurisdiction is appropriate where "the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
III. ANALYSIS
B. The Federal Tort Claims Act
Plaintiffs have asserted a claim against Dr. Villasan under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1). Pls.' Orig. Complaint, ¶¶ 17-19. The FTCA grants jurisdiction to federal district courts over:
civil actions on claims 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, 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.28 U.S.C. § 1346(b)(1). Significantly, the FTCA only grants jurisdiction to district courts over claims against the United States, which may be based on an "act or omission of any employee of the Government." Id. For FTCA purposes, Congress has defined "employee of the Government" to mean:
officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard, . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation. . . .28 U.S.C. § 2671. Though the text of § 2671 seems broad, the Supreme Court has held that the FTCA does not grant jurisdiction over the torts of independent contractors — even those working for the benefit of the United States. United States v. Orleans, 425 U.S. 807, 814 (1976); Logue v. United States, 412 U.S. 521, 532 (1973); Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998); Rodriguez v. Sarabyn, 129 F.3d 760, 765 (5th Cir. 1997); Broussard v. United States, 989 F.2d 171, 174 (5th Cir. 1993); Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991). In fact, § 2671 defines "federal agency" to exclude "any contractor with the United States." Because the work of independent contractors is not supervised or controlled by the United States, the United States is not liable for their conduct and the FTCA does not grant jurisdiction over their actions — even those that may be plainly tortious. Orleans, 425 U.S. at 814-15; Logue, 412 U.S. at 528.
In this case, Plaintiffs argue that federal jurisdiction is available under the FTCA because, they claim, Dr. Villasan failed to provide Plaintiff O'Rourke with adequate medical treatment while acting within the scope of his employment as an agent of the United States. Pls.' Orig. Complaint, ¶¶ 17-19.
Defendant Villasan argues, however, that he is neither an agent nor employee of the United States, and as such, no jurisdictional basis exists for Plaintiffs' FTCA action against him. Def. Antonio J. Villasan's, M.D., Mot. to Dismiss Br. in Supp. at 3. No party has disputed the fact that Dr. Villasan treated Plaintiff O'Rourke while he was in the custody of the Federal Bureau of Prisons, but the question remains regarding whether such treatment makes Dr. Villasan an agent or employee of the United States. For reasons described below, the court finds that it does not.
Plaintiffs have supplied no evidence that Dr. Villasan is actually an agent or employee of the United States. In the alternative, Plaintiffs have supplied evidence that Dr. Villasan is an employee of UTMB, which provides medical care under a "managed health care contract" with the Federal Correctional Complex in Beaumont, Texas. Pls.' Orig. Complaint, Ex. A Ex. B. In Exhibit A, Plaintiff Laura O'Rourke indicates that, while her husband was incarcerated, he was treated by Dr. Villasan, an employee of UTMB. In Exhibit B, the United States Department of Justice states, "[a]ll health care at the Federal Correctional Complex, Beaumont, Texas is provided under a managed health care contract by the University of Texas Medical Branch (UTMB)." The court infers from this evidence that Dr. Villasan treated Plaintiff, if at all, as the employee of a contract healthcare provider to the federal government. The court must determine, therefore, whether this makes Dr. Villasan an independent contractor to the federal government.
Plaintiffs do not actually designate the documents attached to "Plaintiffs' Original Complaint" as Exhibits "A" and "B." The court, however, designates them as such to make them easier to cite. To be clear, when the court refers to "Exhibit A" to Plaintiffs' Original Complaint, the court refers to a letter dated August 30, 2002, from Plaintiff Laura O'Rourke to Linda Smith, an employee of UTMB. Further, when the court refers to "Exhibit B" to Plaintiffs' Original Complaint, the court refers to a letter dated January 6, 2003, from the U.S. Department of Justice, Federal Bureau of Prisons, to Laura O'Rourke regarding "Administrative Tort Claim No. TRT-SCR-2003-00093."
"The critical factor in determining whether an individual is an employee of the government or an independent contractor is the power of the federal government to control the detailed physical performance of the individual." Linkous, 142 F.3d at 275 (citing Orleans, 425 U.S. at 814 Broussard, 989 F.2d at 174); see also Logue, 412 U.S. at 527 (stating that "the distinction between the servant or agent relationship and that of independent contractor turn[s] on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract"). If the court determines that the government lacks the ability to control the contractor, the court must consider the factors listed in § 220 of the Restatement (Second) of Agency before concluding that the contractor is an "independent contractor" as opposed to an agent. Linkous, 142 F.3d at 276 (citing Rodriguez, 129 F.3d at 765). Assuming for the moment that the Federal Bureau of Prisons has no general right to control the Dr. Villasan's practice of medicine, the court turns to consideration of the specific factors listed in § 220. These factors include:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
RESTATEMENT (SECOND) OF AGENCY § 220 (1958). Though the court has no evidence regarding factors (e), (f), (g) and (i), the court can resolve the remainder of the factors in favor of independent contractor status. The court finds that the Bureau of Prisons does not control the "details" of Dr. Villasan's medical practice because, as a doctor in the employ of UTMB, Villasan is "engaged in a distinct occupation" of the type usually done "by a specialist without supervision." See Linkous, 142 F.3d at 277. Factors (a), (b) (c) are thus resolved. Factor (d) further weighs in favor of independent contractor status because the practice of medicine requires a high degree of skill. See Id. Finally, the court finds that factors (h) and (j) weigh in favor of independent contractor status because the Federal Bureau of Prisons is generally in the business of incarcerating prisoners and not providing medical care.
Regardless, the courts of appeals have held that doctors whose employers have contracted to provide services for the United States are to be considered independent contractors and not agents of the United States. See, e.g., Lurch v. United States, 719 F.2d 333, 337-38 (10th Cir. 1983) (in which the Tenth Circuit held that a doctor employed by the University of New Mexico School of Medicine was not an employee or an agent of the United states merely because the University contracted with the Department of Veterans Affairs to provide medical services); see also Broussard, 989 F.2d at 176 n. 22 (citing Lurch, 719 F.2d at 337-38); and see Rodriguez, 129 F.3d at 766 (for the proposition that "a doctor employed by an independent contractor to the federal government is not an employee of the federal government").
The court has been supplied with no other evidence regarding whether Dr. Villasan is an agent of the United States or an independent contractor. As such, Plaintiffs have failed to meet their burden on this issue. Ramming, 281 F.3d at 161 (holding that dismissal for lack of subject matter jurisdiction is appropriate where "the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief).
Moreover, when confronted on the issue of whether Dr. Villasan is an employee or an independent contractor of the United States, Plaintiffs have waived their opportunity to respond. In Dr. Villasan's motion to dismiss, Dr. Villasan argues that he "is neither a federal agency nor an employee of the government." Def Antonio J. Villasan's, M.D., Mot. to Dismiss Br. in Supp. at 3. In their response, Plaintiffs fail to address Dr. Villasan's argument. Pls. `Resp. to Def.'s (Antonio J. Villasan, M.D.) Mot. to Dismiss, ¶¶ 2-3. Instead, Plaintiffs merely argue that since federal questions remain in this litigation, the court should exercise its discretion to retain supplemental jurisdiction over Plaintiffs' state claims against Villasan. Id., Because Plaintiffs have not opposed the assertion that Dr. Villasan "is neither a federal agency nor an employee of the government," the court will assume that Plaintiffs agree with that assertion. EASTERN DlST. TEX. R. CV-7(d). Otherwise, as stated above, Plaintiffs have failed to supply any evidence whatsoever supporting subject matter jurisdiction over Plaintiffs' FTCA claim.
Based on the foregoing, the court concludes that Dr. Villasan is not agent or employee of the United States. As such, no basis for federal jurisdiction exists supporting Plaintiffs' FTCA claim against Villasan. Plaintiffs' FTCA claim against Dr. Villasan is therefore DISMISSED.
2. The Texas Tort Claims Act
In the second count of Plaintiffs' complaint, Plaintiffs claim that the actions of Dr. Villasan amount to medical malpractice as that term is defined in Article 4590i § 4.01(a) of the Texas Revised Civil Statute Annotated. Pls.' Orig. Complaint, ¶¶ 1 29. Plaintiffs have brought this claim under the Texas Tort Claims Act, § 101.100 et seq., Id., ¶¶ 1 29.
Defendant Villasan has moved the court to dismiss Plaintiffs' state-law cause of action for lack of jurisdiction under Rule 12(b)(1). Def. Antonio J. Villasan's, M.D., Mot. to Dismiss Br. in Supp. at 1. Dr. Villasan correctly asserts that no diversity exists between the parties and that the court may not exercise federal question jurisdiction over Plaintiffs' state tort claim. Id. at 3. Further, Dr. Villasan has moved the court to decline to extend supplemental jurisdiction over Plaintiffs' medical malpractice claim. Id.
This court has already held that it has no jurisdiction to hear claims filed under the Texas Tort Claims Act. See Order Granting University of Texas Medical Branch's Motion to Dismiss at 7 (citing TEX. CIV. PRAC. REM. CODE § 101.102 which mandates that suits brought under the Texas Tort Claims Act "shall be brought in state court"). This court's grant of supplemental jurisdiction "does not extend to claims against nonconsenting state defendants." Raygor v. Regents of the Univ. of Minnesota, 534 U.S. 533, 541 (2002). Because the Eleventh Amendment ensures that "an unconsenting state is immune from suits brought in federal courts by her own citizens," this court has no jurisdiction, absent a waiver by the state, to hear a claim against Dr. Villasan regarding acts done in his capacity as an employee of UTMB, a Texas State Agency. Puerto Rico Aqueduct Sewer Auth., 506 U.S. at 144; Papasan, 478 U.S. at 276; Edelman, 415 U.S. at 662-63; Hans, 134 U.S. at 18-19.
This court must look to state substantive law to determine whether a state has waived immunity to suit in federal court. Erie R. Co. v. Tompkins, 304 U.S. 64(1938); Felder v. Casey, 487 U.S. 131, 151 (1988) (holding that federal district courts must apply state substantive law to pendent claims). When considering whether a law is substantive or procedural, district courts must consider "the `twin aims' of the Erie rule: the discouragement of forum shopping and the avoidance of the inequitable administration of the laws." Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428 (1996); Hall v. G.E. Plastic Pacific PTE, Ltd., 327 F.3d 391, 395 (5th Cir. 2003). When the difference between applying state law and federal law is outcome-determinative, that factor is a strong indicator that the federal court should apply state law. Gasperini, 518 U.S. at 426-28; Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99 (1945). Perhaps nothing would encourage vertical forum shopping more than a federal court's decision to entertain tort claims against a state or its agents that the state's own courts would not entertain. For this reason, Erie mandates that this court look to Texas law to determine whether a claim filed under the Texas Tort Claims Act against Dr. Villasan is tenable in federal court.
Under Texas law, "public employees who work in a state agency and commit acts in their official capacity are shielded by sovereign immunity." Whitehead v. Univ. of Tex. Health Science Center at San Antonio, 854 S.W.2d 175, 180 (Tex.App.-San Antonio 1993, no writ). Further, the Texas Tort Claims Act "does not provide recovery against individuals employed by the state." Denson v. T.D.C.J.-I.D., 63 S.W.2d 454, 459 (Tex.App.-Tyler 1999, pet. denied); Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex.App.-Tyler 1996, writ denied); Perales v. Kinney, 891 S.W.2d 731, 733 (Tex.App.-Houston [1st Dist.] 1994, no writ). "A person making a claim under the Act must sue the governmental unit responsible for allegedly causing the harm in order to invoke the waiver of sovereign immunity." Denson, 63 S.W.2d at 459 (citing TEX, CIV. PRAC. REM. CODE ANN. § 101.025(b)). Even a claim against the governmental unit, however, must be filed in Texas state court. TEX. Civ. PRAC. REM. CODE § 101.102.
Because Dr. Villasan is an employee of UTMB, an agency of the State of Texas, he is therefore immune from suit filed under the Texas Tort Claims Act in federal court. Plaintiffs' medical malpractice claim filed against Dr. Villasan under the Texas Tort Claims Act is therefore DISMISSED.
III. CONCLUSION
For the reasons stated above, Defendant Villasan's motion to dismiss for lack of jurisdiction is GRANTED. It is so ORDERED.