United States District Court, W.D. Louisiana, Shreveport Division
KENYON J. GARRETT
UNITED STATES OF AMERICA
ROBERT G. JAMES
REPORT AND RECOMMENDATION
L. Hayes, United States Magistrate Judge
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.
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.
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]).
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.
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
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]).
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. Now, however,
briefing is complete; the matter is ripe.
I. Government's Motion to Dismiss
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).
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
28 U.S.C. § 1346(b)(1).
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).
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).
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