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James v. Outpatient Medical Center, Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

February 14, 2018

JOSEPH L. JAMES
v.
OUTPATIENT MEDICAL CENTER, INC.; ET AL.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         For 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.

         I.

         Background

         James 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. at 7-8.

         Byrd 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.[1] 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.

         II.

         Law & Analysis

         A. Rule 12(b)(1)

         A 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 Cir. 2001).

         B. FTCA Exhaustion Requirements

         The 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).

         FTCA 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. ...


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