Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ordonez Velazquez v. Doe Corp.

United States District Court, D. Nebraska

March 26, 2018

ELBA ALICIA ORDONEZ VELAZQUEZ, and LUIS ALBERTO ARRIAGA GUZMAN, Plaintiffs,
v.
DOE CORPORATION, real name unknown; and UNITED STATES OF AMERICA, Defendants.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge.

         This matter is before the Court on defendant United States of America's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) (Filing No. 8) and plaintiffs Elba Alicia Ordonez Velazquez (“Velazquez”) and Luis Alberto Arriaga Guzman's (“Guzman” and collectively, “plaintiffs”) Motion for Leave to Conduct Limited Discovery (Filing No. 11). For the reasons stated below, the Motion to Dismiss is granted, the Motion for Leave to Conduct Limited Discovery is denied, and the case is dismissed for lack of subject-matter jurisdiction.

         I. BACKGROUND

         Oneworld Community Health Centers, Inc. (“Oneworld”) operates medical facilities located at 4920 South 30th Street in Omaha, Nebraska (“health center”).[1] On October 19, 2015, Velazquez visited the health center complaining of acute abdominal pain. She was seen and discharged with the instructions “h/o bariatric surgery, ” “has not been to GI this year, ” and “need ROR for surgery records from Methodist hospital at next apt.”[2] Velazquez returned to the health center with abdominal pain on November 6, 2015. She was assessed and given a treatment plan consisting of “referral: acupuncture” and “medication: continue oxycodone-acetaminophen 5 mg-325 mg.”

         On November 7, 2015, a rescue squad took Velazquez to Methodist Hospital where she was diagnosed with a bowel obstruction and underwent emergency laparotomy surgery and bowel resection. Velazquez continues to suffer from extensive and severe abdominal disfigurement.

         On November 2, 2017, the plaintiffs filed a Complaint (Filing No. 1-1, pp. 3-9) in the District Court of Douglas County, Nebraska. Velazquez sought damages for medical malpractice, and Guzman sought damages for loss of consortium. The Complaint identified the defendants as Oneworld, “John or Jane Doe, M.D., ” and “Doe Corporation.”

         On February 9, 2018, Robert C. Stuart, Acting United States Attorney for the District of Nebraska (“Stuart”), certified (Filing No. 1-2) Oneworld “to be part of the Public Health Service, an agency of the United States, by the Department of Health and Human Services pursuant to the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(a)-(n).” See 42 U.S.C. § 233(c) and (g); 28 C.F.R. § 15.4(a). He found Oneworld to be “acting within the scope of its employment as an employee of the Public Health Service and therefore an employee of the United States at the time of the conduct alleged in the Complaint.” Stuart identified “John or Jane Doe, M.D.” as Dr. Donna Faber and Dr. Carlos Giraldo (collectively, the “doctors”). He concluded Oneworld and the doctors were (1) “employees of the Public Health Service and therefore employees of the United States” and (2) acting with the scope of their employment.

         Pursuant to Stuart's certification, the government removed (Filing No. 1) the case to this Court on February 12, 2018, and moved (Filing No. 4) to substitute the United States of America for defendants Oneworld and John or Jane Doe, M.D.[3] On February 13, 2018, the magistrate judge[4] substituted (Filing No. 7) the United States as a party. The plaintiffs did not timely object to the substitution. NECivR 72.2(a).

         On February 15, 2018, the government moved to dismiss, claiming the plaintiffs failed to comply with the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et seq. Specifically, the government claims the plaintiffs have not exhausted their administrative remedies because they have not filed any administrative tort claims with the United States Department of Health and Human Services. In support of this claim, the government filed an affidavit (Filing No. 1-3) from a Senior Attorney in the Department of Health and Human Services confirming the plaintiffs have not filed an administrative claim.

         The plaintiffs did not file a brief in response to the Motion to Dismiss but did move for leave to perform limited discovery[5] for sixty days “in order to determine whether the Defendant's employees fall under the protection of the [FTCA].” The plaintiffs claimed they needed sixty days “to obtain information required to respond to Defendant's Motion.” The plaintiffs offered no further explanation for discovery and did not attach a supporting brief. See NECivR 7.1(a). The government filed a brief (Filing No. 12) opposing limited discovery.

         II. DISCUSSION

         “The [FTCA] allows plaintiffs to seek damages from the United States for certain torts committed by federal employees.” Simmons v. Himmelreich, 578 U.S.___, ___, 136 S.Ct. 1843, 1845 (2016). “The FTCA ‘was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances.'” Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004) (quoting Richards v. United States, 369 U.S. 1, 6 (1962)). The FTCA is the exclusive remedy for claims “resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment.” 42 U.S.C. § 233(a).

         When a suit potentially implicating § 233 is filed, the Secretary of the Department of Health and Human Services is required to “make a determination of whether an entity or an officer, governing board member, employee, or contractor of the entity is deemed to be an employee of the Public Health Service.” Id. § 233(g)(1)(E).[6] This determination is “final and binding.” Id. § 233(g)(1)(F). The Secretary has delegated the authority to make the determination to “[t]he United States Attorney for the district where the civil action or proceeding is brought.” 28 C.F.R. § 15.4. After the certification that a defendant was an employee of the Public Health Service acting in the scope of employment, a civil action “commenced in a State court shall be removed . . . to the district court of the United States” and “deemed a tort action brought against the United States.” Id. § 233(c).

         The government first notes that certifications under 28 U.S.C. § 2679 are non-reviewable for removal purposes but can be challenged for substitution purposes. Brown v. Armstrong, 949 F.2d 1007, 1011 (8th Cir. 1991). It then argues certifications under § 233 are functionally the same as § 2679 certifications, and the plaintiffs can only challenge the certification's effect on substitution. See Carrizales v. United States, Nos. 8:14CV3104, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.