United States District Court, W.D. Louisiana, Lake Charles Division
JOSEPH L. JAMES
OUTPATIENT MEDICAL CENTER, INC.; ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
the court is a Motion to Dismiss [doc. 5] filed by the
government pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure. Plaintiff Joseph L. James, who is proceeding
pro se in this matter, has not filed a response to
the motion and his time for doing so has passed.
reasons stated below, IT IS RECOMMENDED that
the motion be GRANTED and that all claims
against the United States through Outpatient Medical be
DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction.
initiated this action by filing a Motion to Produce Documents
in the 30th Judicial District Court, Vernon Parish,
Louisiana, in August 2016. Doc. 4, att. 2, pp. 155-56. On
January 25, 2017, he filed a “supplemental”
petition, requesting that he be allowed to combine that
petition with his earlier-filed Motion to Produce Documents.
Id. at 137-42. In his petition he raised claims
against the City of Leesville, Leesville Police Department,
Byrd Memorial Hospital, Outpatient Medical Center, Inc.
(“Outpatient Medical”), and Dr. Robert Lamme.
Id. He stated that he was currently incarcerated at
the Vernon Parish Sheriff's Prison and alleged that he
had received negligent medical care for his high blood
pressure at Outpatient Medical and Byrd Memorial while
incarcerated at the Leesville City Jail. Id. He
filed an amended petition on or about July 8, 2017, which was
served on Outpatient Medical on July 24, 2017. Doc. 1, att.
2. There he reiterated the allegations made in the previous
petition: as a result of visits to Byrd Memorial and
Outpatient Medical in 2015 and 2016, he had been prescribed
too much medication to treat his high blood pressure by Dr.
Lamme, who had treated him at both facilities. See
Id. at 6-7. These medications were administered to him
concurrently by Leesville Police Department staff while he
was in the city jail, resulting in an overdose. Id.
Memorial and Lamme filed dilatory exceptions of prematurity
based on James's failure to receive an opinion from a
medical review panel as required under Louisiana law. Doc. 4,
att. 1, pp. 112-13, 140-41. The court granted the exceptions
and dismissed the claims against Lamme and Byrd Memorial
without prejudice on September 14, 2017. Doc. 4, att. 1, pp.
46, 48. On November 15, 2017, the government filed a notice
of removal to this court pursuant to 28 U.S.C. § 1346.
Doc. 1. There it asserted that the Secretary of the
Department of Health and Human Services (“HHS”)
had deemed Outpatient Medical eligible for coverage under the
Federal Tort Claims Act (“FTCA”), making the
United States the proper defendant in this
suit. Id. Accordingly, the United
States was added as a defendant. The government has now filed
this motion to dismiss based on James's failure to
exhaust remedies with the Department of Health and Human
Services. Doc. 5.
motion under Rule 12(b)(1) attacks the court's
jurisdiction to hear and decide the case. Fed.R.Civ.P.
12(b)(1). The burden on such a motion lies with the party
seeking to invoke the court's jurisdiction. Menchaca
v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
1980). Accordingly, the plaintiff at all times bears the
burden of showing that subject matter jurisdiction exists.
Id.; Paterson v. Weinberger, 644 F.2d 521,
523 (5th Cir. 1981). Lack of subject matter jurisdiction may
be found based on any of the following: (1) the complaint
alone; (2) the complaint supplemented by undisputed facts in
the record; or (3) the complaint supplemented by undisputed
facts plus the court's resolution of disputed facts.
Ramming v. United States, 281 F.3d 158, 161 (5th
FTCA Exhaustion Requirements
United States is immune from tort suits, except to the extent
that it waives that immunity. Gregory v. Mitchell,
634 F.2d 199, 203 (5th Cir. 1981). One such waiver is the
FTCA, 28 U.S.C. § 2671 et seq., which provides
the exclusive remedy for damages for injury, death, or loss
of property “resulting from the negligent or wrongful
act or omission of any employee of the Government while
acting within the scope of his office or employment.”
Id. at § 2679(b)(1).
coverage over James's claims against Outpatient Medical
is uncontested and properly established with the scope
certification provided, above. As the government notes, the
FTCA requires a plaintiff to properly exhaust his claims
before filing suit. Price v. ...