Clark v. Neighborhood Health Ctr.

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IAN LEONARD CLARK, Plaintiff, v. NEIGHBORHOOD HEALTH CENTER; COLEMAN BRIGHT; LINDSEY SCOTT; and DARLA LUNDMARK, Defendants.

No. 3:22-cv-00932-SB

United States District Court, D. Oregon

February 7, 2023

FINDINGS AND RECOMMENDATION

STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on the United States of America's (the “United States”) motion to dismiss Ian Clark's (“Clark”) complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, see FED. R CIV. P. 12(B)(1) AND 12(b)(6), and Clark's motion to remove the United States' counsel. The parties have not consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. For the reasons explained below, the Court recommends that the district judge grant the United States' motion to dismiss Clark's complaint for lack of subject matter jurisdiction and deny Clark's motion to remove the United States' counsel.

BACKGROUND

I. STATUTORY BACKGROUND

A. The Federal Tort Claims Act

The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80, “waives the sovereign immunity of the United States for certain torts committed by federal employees 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.” Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006) (quoting Smith v. United States, 507 U.S. 197, 201 (1993)). “The FTCA's purpose is both to allow recovery by people injured by federal employees . . ., and, at the same time, to immunize such employees . . . from [personal] liability for negligent or wrongful acts done in the scope of their employment.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005) (citing, inter alia, 28 U.S.C. § 2679(b)(1)).

Notably, however, the FTCA “provides that an ‘action shall not be instituted upon a claim against the United States for money damages' unless the claimant has first exhausted administrative remedies.” Vacek, 447 F.3d at 1250 (quoting 28 U.S.C. § 2675(a)). “An administrative claim is deemed exhausted once the relevant agency finally denies it in writing, or if the agency fails to make a final disposition of the claim within six months of the claim's filing.” D.L. ex rel. Junio v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017) (citing 28 U.S.C. § 2675(a)). The Ninth Circuit has explained that the FTCA's “exhaustion requirement is jurisdictional in nature[,] . . . must be interpreted strictly,” Vacek, 447 F.3d at 1250, and “may not be waived.” Junio, 858 F.3d at 1244 (citing Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992)).

B. The Federally Supported Health Centers Assistance Act

The Federally Supported Health Centers Assistance Act (“FSHCAA”), 42 U.S.C. § 233(g)-(n), authorizes the Secretary of the Department of Health and Human Services (the “Secretary” or “HHS”) to deem certain health centers that receive federal grant funds under Section 330 of the Public Service Health Act (“PSHA”), 42 U.S.C. § 254b, and their employees, to be employees of the Public Health Service (“PHS”) for purposes of 42 U.S.C. § 233. See Agyin v. Razman, 986 F.3d 168, 171-72 (2d Cir. 2021). Under Section 233(a), “officers and employees of the PHS [are protected] from personal liability ‘for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions' while acting within the scope of their employment.” O'Brien v. United States, 56 F.4th 139, 147 (1st Cir. 2022) (quoting 42 U.S.C. § 233(a)). In lieu of personal liability, Section 233(a) “makes available a tort action against the United States under the FTCA as the ‘exclusive' remedy for certain ‘act[s] or omission[s]' on the part of PHS employees resulting in personal injury or death.” Id. (quoting 42 U.S.C. § 233(a)).

To obtain such protections, a federally funded health center is “required to submit an application [to the Secretary] on behalf of itself and its employees each year,” Agyin, 986 F.3d at 172, “attesting that [the health center] and/or particular officers, board members, employees, or contractors satisfy certain statutory criteria.” O'Brien, 56 F.4th at 148 (citing 42 U.S.C. § 233(g)(1)(D) and 42 U.S.C. §§ 233(g)(1)(B)-(C), (h)). Typically, after “the Secretary makes a determination that an entity . . . is deemed to be an employee of the [PHS] for purposes of [Section 233], the determination [is] . . . final and binding upon the Secretary and the Attorney General and other parties to any civil action or proceeding.” Agyin, 986 F.3d at 172 (quoting 42 U.S.C. § 233(g)(1)(F)); see also 42 U.S.C. § 233(i)(1) (setting forth an exception referenced in § 233(g)(1)(F), and the Attorney General's authority to exclude a federally funded health center's employee from coverage if they would “expose the Government to an unreasonably high degree of risk of loss”).

That does not mean that the Secretary's annual “deeming” determination “conclusively establish[es] PHSA and FTCA coverage with respect to a particular lawsuit . . ., [as] coverage hinges on the circumstances in which care has been provided.” O'Brien, 56 F.4th at 148-49 (citing 42 U.S.C. § 233(g)(1)(B)-(C)). However, as “to patients of the health center, coverage is straightforward: the Secretary's ‘deeming' determination ‘appl[ies] with respect to services provided' to ‘all patients of the entity.'” Id. (quoting 42 U.S.C. § 233(g)(1)(B)(i)). “The Attorney General, upon notice from a deemed defendant, shall defend against, or compromise, civil actions or proceedings for [the] damage or injury.” El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep't of Health & Human Servs., 396 F.3d 1265, 1267 (D.C. Cir. 2005) (citing 42 U.S.C. § 233(b), (d)).

II. FACTUAL AND PROCEDURAL BACKGROUND

Clark filed this action against Neighborhood Health Center (“NHC”), Coleman Bright, D.M.D. (“Dr. Bright”), Lindsey Scott, D.M.D. (“Dr. Scott”), and Darla Lundmark (“Lundmark”) (together, “Defendants”) on June 29, 2022. (Compl. at 1-9, ECF No. 1.)

Clark alleges that NHC is a “federally funded dental clinic,” Lundmark and Drs. Bright and Scott (together, the “Individual Defendants”) work at NHC, the “incident at the center of this lawsuit” is a dental surgery Dr. Bright performed on Clark on May 5, 2021, Lundmark served as Dr. Bright's surgical assistant, Dr. Scott provided follow-up care, and Clark's claims are based on statements, acts, and omissions the Individual Defendants allegedly made during the course of his treatment between April 22 and June 14, 2021. (See id. at 2, 5-9.)

Also on June 29, 2022, the United States removed from Clackamas County Circuit Court a nearly identical complaint that Clark had filed against Defendants.^[1] See Notice of Removal Ex. 4 at 1-22, Clark v. United States, Case No. 3:22-cv-00931-SB (D. Or. filed June 29, 2022) (“Clark I”), ECF No. 1-4. In this complaint, Clark complained about the same statements, acts, and omissions that the Individual Defendants allegedly made during the course of his dental treatment and May 5, 2021 surgery at NHC, and asserted the same causes of action, including medical malpractice. See id.

In its Clark I notice of removal, the United States stated that (1) pursuant to the FSHCAA, the Secretary had deemed NHC and the Individual Defendants to be employees of the PHS for purposes of Section 233; (2) the Attorney General, through the United States Attorney for the District of Oregon, certified-pursuant to Section 233-that Defendants were acting in the scope of their employment at the time of the incidents out of which the suit arose; (3) Clark's case must proceed against the United States under the FTCA; and (4) the United States was substituting itself as the defendant in place of NHC, Lundmark, and Drs. Bright and Scott.^[2] (See Notice of Removal at 1-3; id. Ex. 1 at 2-3, stating that at all relevant times, the Individual Defendants were NHC employees). /// About a month and a half later, on August 8, 2022, Clark filed a motion to dismiss in Clark I asking “the Court to dismiss the [removed] case at his request.” (Pl.'s Mot. Dismiss at 2, ECF No. 13.) With Clark's approval, and before an opposing party served an answer or motion for summary judgment, the Court construed Clark's motion as a notice of voluntary dismissal under Federal Rule of Civil Procedure (“Rule”) 41(a)(1), which automatically terminated the case. See generally FED. R. CIV. P. 41(A)(1) (“[T]he plaintiff may dismiss an action without a court order by filing . . . notice of dismissal before the opposing party serves either an answer or a motion for summary judgment[.] . . . Unless the notice . . . states otherwise, the dismissal is without prejudice.”); Am. Soccer Co., Inc. v. Score First Enters., 187 F.3d 1108, 1110 (9th Cir. 1999) (stating that Rule 41(a)(1) “confers on the plaintiff an absolute right to voluntarily dismiss his action prior to service by the defendant of an answer or a motion for summary judgment,” and “the filing of a notice of voluntary dismissal with the court automatically terminates the action as to the defendants who are the subjects of the notice” and “no court order is required”) (simplified).

Thereafter in this case, the United States and Clark filed and completed briefing on their respective motions to dismiss and remove the United States' counsel. (See Def.'s Mot. Dismiss (“Def.'s Mot.”) at 1-13, ECF No. 15; Pl.'s Mot. Remove Counsel (“Pl.'s Mot.”) at 1-4, ECF No. 19.) In its papers, the United States takes the “position . . . that the deeming, certification, and subst[itu]tion actions taken in [the] original lawsuit [removed from state court] apply to this case” (...