United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
Plaintiff, D'Angelo Lee (“Lee”) (#37112-177),
filed suit under the Federal Tort Claims Act
(“FTCA”). Lee is an inmate in the custody of the
Federal Bureau of Prisons (“BOP”), incarcerated
at the Federal Correctional Institution in Fort Worth, Texas.
Lee complains that he received negligent medical care while
he was incarcerated at the Federal Correctional Institution
in Pollock, Louisiana.
Dr. Rayburn is not a United States employee, the Court lacks
jurisdiction over Lee's claims.
alleges that Dr. Rayburn was authorized by the BOP to perform
“outpatient exploration of left upper back of Plaintiff
to surgically remove lipoma for biopsy.” (Doc. 6, p.
3). Lee claims that Dr. Rayburn actually performed an
unauthorized surgical procedure by “removing a
herniation of the muscle through facial defect of the
latissimus dorsi.” (Doc. 6, p. 3). According to Lee,
Dr. Rayburn is a surgeon at St. Francis Cabrini Hospital in
Alexandria, Louisiana. (Doc. 1, pp. 3-4; Doc. 1-2, p. 14).
Law and Analysis
United States enjoys sovereign immunity from suit. The Court
may assert jurisdiction over claims against the United States
only where the Government has waived its immunity.
Broussard v. United States, 989 F.2d 171, 173 (5th
Cir. 1993). “Courts must strictly construe all waivers
of the federal government's sovereign immunity, and must
resolve all ambiguities in favor of the sovereign.”
Linkous v. United States, 142 F.3d 271, 275 (5th
Cir. 1998) (citing United States v. Nordic Village,
Inc., 503 U.S. 30, 33 (1992)).
FTCA waives immunity for tortious acts committed by any
“employee of the Government while acting within the
scope of his office or employment.” 28 U.S.C. §
1346(b). For purposes of the FTCA, an “employee of the
government” includes “officers or employees of
any federal agency ... and persons acting on behalf of a
federal agency in an official capacity, temporarily or
permanently in the service of the United States, whether with
or without compensation.” 28 U.S.C. § 2671. The
FTCA, however, does not extend to acts of independent
contractors. See Linkous, 142 F.3d at 275.
the United States is immune from suit for the actions of
persons who are not United States employees. “[I]f the
act was not committed by an ‘employee of the
Government,' then the court must dismiss for lack of
subject matter jurisdiction.” See Linkous, 142
F.3d at 275 (citing Broussard v. United States, 989
F.2d 171, 177 (5th Cir. 1993)).
does not allege that Dr. Rayburn is a BOP doctor or employee
of the United States. Rather, Lee alleges that Dr. Rayburn is
a surgeon at St. Francis Cabrini Hospital. (Doc. 1, pp. 3-4).
The operative report submitted by Lee also indicates that Dr.
Rayburn is a physician at St. Francis Cabrini Hospital. (Doc.
1-2, pp. 14-16). According to a letter Lee received from the
United States Department of Justice, Dr. Rayburn is not a
United States employee. (Doc. 1-2, p. 2). Lee does not
provide any allegations or documents contradicting the
Government's assertion or otherwise indicating that Dr.
Rayburn is a United States employee. Therefore, even assuming
Lee's allegations are true, the United States is immune
from suit for the alleged negligence of Dr. Rayburn.
foregoing reasons, IT IS RECOMMENDED that the complaint be
DISMISSED WITH PREJUDICE for lack of jurisdiction.
the provisions of 28 U.S.C. § 636(b)(1)(c) and
Fed.R.Civ.P. 72(b), parties aggrieved by this Report and
Recommendation have fourteen (14) calendar days from service
of this Report and Recommendation to file specific, written
objections with the Clerk of Court. A party may respond to
another party's objections within fourteen (14) days
after being served with a copy thereof. No. other briefs
(such as supplemental objections, reply briefs, etc.) may be
filed. Providing a courtesy copy of the objection ...