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Garrett v. United States

United States District Court, W.D. Louisiana, Shreveport Division

December 20, 2017

KENYON J. GARRETT
v.
UNITED STATES OF AMERICA

          JUDGE ROBERT G. JAMES

          REPORT AND RECOMMENDATION

          Karen L. Hayes, United States Magistrate Judge

         Before the undersigned magistrate judge, on reference from the district court, are two motions: 1) motion for partial dismissal for lack of subject matter jurisdiction [doc. # 7] filed by the United States; and 2) motion to dismiss for perjury [doc. # 26] filed by plaintiff Kenyon Garrett. For reasons assigned below, it is recommended that the government's motion [doc. # 7] be granted-in-part and denied-in-part, and that plaintiff's motion be denied.

         Background

         On June 16, 2017, Kenyon Garrett filed the instant pro se medical malpractice action against the United States under the Federal Tort Claims Act (“FTCA”) 28 U.S.C. §§ 1346(b), 2671-2680. According to the complaint, plaintiff's father, Clarence Garrett, was a patient at Overton Brooks VA Medical Center (“Overton Brooks”) from April 11 to July 1, 2015. Plaintiff contends that his father received substandard care during his almost three month hospitalization at Overton Brooks, which culminated in his premature death on August 28, 2015. Besides the United States, plaintiff named several other defendants in his original complaint, such as, the Department of Veterans Affairs, Overton Brooks, plus various medical providers including, Kenneth Booth, Toby Mathew, Larry G. Thirstrup, Robert Lukeman, Agmasie B. Woldie, Furqan Muhammad, Arvind Yekanath (incorrectly spelled as “Arvid Yekanath”), together with “other known and unknown medical and non-medical staff.” (Compl.). Plaintiff alleged that defendants were responsible for abuse, negligence, false imprisonment, intimidation, and medical malpractice, which resulted in Clarence Garrett's psychological injury, emotional distress, and wrongful death. Id. Plaintiff requested compensatory damages totaling $4 million. Id.

         On July 20, 2017, plaintiff supplemented his complaint to correct the spelling of one defendant (Yekanath) and to add eight paragraphs, specifying claims for delayed diagnosis, failure to diagnose, false imprisonment, intimidation, inappropriate discharge, emotional distress, and failure to treat medical diagnosis, resulting in physical and mental anguish, pain and suffering, medication toxicity, and loss of mobility, which combined to cause Clarence Garrett's wrongful death. (Suppl. Compl. [doc. # 3]).

         On August 31, 2017, plaintiff voluntarily dismissed his claims against Toby Mathew. (Stipulation of Dismissal [doc. # 5]). On September 1, 2017, the United States filed an answer to the complaint, as amended [doc. # 8], together with the instant motion seeking the dismissal of defendants, Kenneth Booth, Toby Mathew, Larry Thirstrup, Robert Lukeman, Agmasie Woldie, Furqan Muhammad, Arvind Yekanath, the Department of Veteran Affairs, and Overton Brooks [doc. # 7]. The motion also sought dismissal of all claims - aside from medical negligence - on the twin grounds that plaintiff failed to exhaust administrative remedies as to these claims and because the government did not waive its sovereign immunity for intentional torts.

         On September 14, 2017, plaintiff filed a response to the motion to dismiss, in which he did not oppose the dismissal of any defendant - aside from the United States - but did oppose the dismissal of any claims. [doc. # 17]. Plaintiff also filed a second amended complaint (styled as “Amended Complaint”) [doc. # 18] - without obtaining prior leave of court or the written consent of defendant.[1]

         On September 15, 2017, plaintiff and the United States filed a joint stipulation of dismissal as to plaintiff's claims against Kenneth Booth, Toby Mathew, Larry Thirstup, Robert Lukeman, Agmasie Woldie, Furqan Muhammad, Arvind Yekanath, the Department of Veteran Affairs, and Overton Brooks VA Medical Center. [doc. # 19]. On September 22, 2017, the United States filed its reply in support of its motion for partial dismissal, whereby it conceded that its motion was moot as it related to dismissal of parties, but still actionable as to plaintiff's claims for intimidation, abuse, emotional distress, false imprisonment, and psychological injury. (Def. Reply [doc. # 24]).

         On September 28, 2017, plaintiff filed the instant “Motion to Dismiss for Perjury, ” in which plaintiff prayed that the “Court grant Plaintiff's Motion to Dismiss this lawsuit in favor of the Plaintiff on the grounds of Perjury that was committed by the Defense, and grant Plaintiff the requested full judgement sum of $4, 000, 000 . . .” The parties filed several rounds of briefs related to this motion. See doc. #s 28-35.[2] Now, however, briefing is complete; the matter is ripe.

         Law and Analysis

          I. Government's Motion to Dismiss

          The United States, as sovereign, is immune from suit except in the manner and degree sovereign immunity is waived. United States v. Testan, 424 U.S. 392, 96 S.Ct. 948 (1976). In the absence of an express congressional waiver of immunity, an action against the United States or its agencies does not fall within the judicial power of the federal courts. See Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (1962).

         The FTCA represents a limited waiver of sovereign immunity; suits filed thereunder must be filed in exact compliance with its terms. Childers v. United States, 442 F.2d 1299, 1303 (5th Cir. 1971). Under the FTCA,

the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States for money damages . . . for . . . 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).

         The FTCA establishes the exclusive remedy for tort claims arising out of the actions of the federal government and its employees. 28 U.S.C. § 2679. The Act subjects the United States to tort liability if a private person would be liable for the same act under state law. Life Partners Inc. v. United States, 650 F.3d 1026, 1030-31 (5th Cir.2011) (citations omitted).

         In its motion, the United States contends that some of plaintiff's claims are subject to dismissal because they constitute intentional torts which are excepted from the FTCA's waiver and because plaintiff failed to exhaust administrative remedies as to other claims. Both arguments potentially impact the court's subject matter jurisdiction to entertain the claims, and therefore, are analyzed via motion to dismiss for lack subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Hinojosa v. U.S. Bureau of Prisons, 506 Fed.Appx. 280, 282 (5th Cir.2013); James v. Mason, 513 Fed.Appx. 364, 366 (5th Cir.2013), on reh'g in part, 12-30308, 2013 WL 6481622 (5th Cir. May 20, 2013).[3]

         “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted). The party seeking to invoke jurisdiction bears the burden of demonstrating its existence. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). The court can resolve a motion to dismiss for lack of subject matter jurisdiction “based on (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.” Enable Mississippi River Transmission, L.L.C. v. Nadel & Gussman, L.L.C., 844 F.3d 495, 497 (5th Cir.2016) (citations and internal quotation marks omitted).

         a) FTCA ...


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