Rivers v. The Clinic of Sierra Vista, 013113 CAEDC, CV F 13-0087 LJO BAM

Docket NºCV F 13-0087 LJO BAM
Opinion JudgeLAWRENCE J. O'NEILL, District Judge.
Party NameDONNA M. RIVERS, Plaintiffs, v. THE CLINIC OF SIERRA VISTA, Defendant.
Case DateJanuary 31, 2013
CourtUnited States District Courts, 9th Circuit, Eastern District of California

DONNA M. RIVERS, Plaintiffs,

v.

THE CLINIC OF SIERRA VISTA, Defendant.

No. CV F 13-0087 LJO BAM

United States District Court, E.D. California.

January 31, 2013

ORDER ON GOVERNMENT'S F.R.Civ.P. 12 MOTION TO DISMISS

LAWRENCE J. O'NEILL, District Judge.

INTRODUCTION

Defendant United States of America ("Government") seeks to dismiss pro se plaintiff Donna M. Rivers' ("Ms. Rivers'") medical malpractice sounding claims as barred for failure to exhaust administrative remedies and in turn to invoke this Court's subject matter jurisdiction. Ms. Rivers has filed papers to dismiss her medical malpractice sounding claims and to seek remand to the Fresno County Superior Court. This Court considered the Government's F.R.Civ.P. 12(b)(1) motion to dismiss and Ms. Rivers' papers on the record and VACATES the February 28, 2013 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES Ms. Rivers' medical malpractice sounding claims and REMANDS to FRESNO County Superior Court Ms. Rivers' remaining claims.

BACKGROUND

Ms. Rivers proceeds on her California Judicial Council form complaint ("complaint") to allege medical malpractice sounding and other claims. The Government removed Ms. Rivers' action to this Court. The complaint identifies the defendant as The Clinic of Sierra Vista, the true name of which is Clinica Sierra Vista ("clinic").

The Government has certified the clinic and its employee nurse Joanna Washington ("Nurse Washington") as deemed Public Health Service employees pursuant to the Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C. § 233 ("section 233"). Section 233(a) and (c) provide that on filing such certification, an action for personal injury resulting from the performance of medical functions is "deemed a tort action brought against the United States" under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. The FTCA "shall be exclusive of any other civil action or proceeding by reason of the same subject matter" against a deemed employee. 42 U.S.C. § 233(a). The FTCA provides such action "shall be deemed an action against the United States under the provisions of this title..., and the United States shall be substituted as the party defendant." 28 U.S.C § 2679(d)(2); see United States v. Smith, 499 U.S. 160, 164, n. 5, 111 S.Ct. 1180, 1184, n. 5, 113 L.Ed.2d 134 (1991).

The complaint appears to attempt to allege a medical malpractice claim in that the clinic "has failed to warn rivers [sic] of there [sic] constant change in doctor and tha rivers [sic] would never ever be seen by the doctor she had chosen and was assighned [sic] to in contract." The complaint includes form attachments for fraud, premises liability and breach of contract to appear to take issue with Ms. Rivers' treatment by multiple physicians although she was assigned to "specific doctors" and experienced delay and interruption in treatment. The complaint references Nurse Washington as a supervisor.

The Government challenges the complaint's medical malpractice sounding claims in absence of an administrative claim to invoke this Court's subject matter jurisdiction. Upon dismissal of the medical malpractice sounding claims, the Government seeks remand of remaining claims to Fresno County Superior Court. Ms. Rivers agrees to such dismissal and remand.

DISCUSSION

F.R.Civ.P. 12(b)(1) Motion To Dismiss Standards

F.R.Civ.P. 12(b)(1)...

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