Parker v. United States

• Decision Date: 19 June 2018
• Docket Number: 8:18CV123
• Parties: SAMONE T. PARKER, Individually and as Special Administrator of the Estate of Tonya L. Drapeau, deceased; Plaintiff, v. THE UNITED STATES OF AMERICA, ex rel.; THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, INDIAN HEALTH SERVICE, WINNEBAGO HOSPITAL, VISTA STAFFING SOLUTIONS, INC., NEVINE MAHMOUD, M.D.; ROBIN HARRIS, R.N.; and DENA NEIMAN, N.P.; Defendants.
• Court: U.S. District Court — District of Nebraska

SAMONE T. PARKER, Individually and as Special Administrator of theEstate of Tonya L. Drapeau, deceased; Plaintiff, v. THE UNITED STATES OF AMERICA, ex rel.;THE UNITED STATES DEPARTMENT OF HEALTH ANDHUMAN SERVICES, INDIAN HEALTH SERVICE, WINNEBAGO HOSPITAL,VISTA STAFFING SOLUTIONS, INC.,NEVINE MAHMOUD, M.D.; ROBIN HARRIS, R.N.;and DENA NEIMAN, N.P.; Defendants.

8:18CV123

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

June 19, 2018

MEMORANDUM AND ORDER

This matter is before the Court on the Motion to Dismiss, ECF No. 29, filed by Defendants United States, United States Department of Health and Human Services (DHHS), Indian Health Service (IHS), Winnebago Hospital, and Dena Neiman (collectively, Movants). For the reasons stated below, the Motion will be granted.

BACKGROUND

The following facts are those alleged in the Complaint, ECF No. 1, and assumed true for purposes of the pending Motion to Dismiss.

On March 21, 2016, Tonya Drapeau went to the Winnebago Hospital emergency room in Winnebago, Nebraska, and complained about her breathing. Comp. ¶ 18, ECF No. 1, Page ID 4. Drapeau was discharged from the hospital and, two days later on March 23, 2016, she died. Samone Parker, the Plaintiff and Special Administrator of Drapeau's estate, brought this survival and wrongful death action alleging "[o]ne or more or all of Defendants and/or their agent(s) and/or employee(s) failed to properly assess, treat, and/or diagnose Ms. Drapeau while she was at Winnebago Hospital and released her from the hospital." Id. at ¶ 19.

Defendant Vista Staffing Solutions, Inc., and Defendant Nevine Mahmoud submitted an Answer, ECF No. 23, to the Complaint, and Defendant Robin Harris was granted an extension of time to July 13, 2018, to submit an answer or other responsive pleading, ECF No. 39. The Movants filed their Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) arguing DHHS, IHS, Winnebago Hospital, and Dena Neiman should be dismissed from this action and that the Complaint does not state enough factual content to support plausible claims.

STANDARD OF REVIEW¹

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusorystatements, do not suffice." Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S. Ct. 2941 (2015). The complaint's factual allegations must be "sufficient to 'raise a right to relief above the speculative level.'" McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). The Court must accept factual allegations as true, but it is not required to accept any "legal conclusion couched as a factual allegation." Brown v. Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). Thus, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S. Ct. 804 (2016).

On a motion to dismiss, courts must rule "on the assumption that all the allegations in the complaint are true," and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 555 & 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Mickelson v. Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation in original) (quoting Iqbal, 556 U.S. at 679).

DISCUSSION

Parker brought her claims against the Movants under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680. The FTCA "waives federal sovereign immunity andgrants district courts jurisdiction over a certain category of claims against the United States." Lopez v. United States, 790 F.3d 867, 871 (8th Cir. 2015) (quoting Eubank v. Kansas City Power & Light Co., 626 F.3d 424, 427 (8th Cir. 2010)). "The United States can be held liable under the FTCA 'to the extent that a private person, under like circumstances, would be liable to the plaintiff under the substantive law of the state where the alleged wrongful conduct took place[.]'" Lopez, 790 F.3d at 871 (quoting Green Acres Ents., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005)). Federal agencies are not proper defendants under the FTCA, "the United States is the proper defendant." Duncan v. Dep't of Labor, 313 F.3d 445, 447 (8th Cir. 2002) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 476-77 (1994)). Federal employees are also immune from suit where "the United States Attorney certifies that the federal employee acted within the scope of [her] employment." Osborn v. Haley, 549 U.S. 225, 238 (2007) (quoting Mitchell v. Carlson, 896 F.2d 128, 133 (5th Cir. 1990)).

Based on the foregoing principles, the parties agree that, of the Movants, only the United States is the proper defendant. Accordingly, the Court will dismiss DHHS, IHS, Winnebago Hospital, and Dena Neiman from this action.

The United States also argues that the Complaint does not state enough factual content to support plausible claims against it under Rule 8 of the Federal Rules of Civil Procedure. The only factual allegations made in the Complaint are contained in the following four paragraphs:

18. On March 21, 2016, Ms. Drapeau presented to the emergency room at Winnebago Hospital with breathing complaints.

19. One or more or all of Defendants and/or their agent(s) and/or employee(s) failed to properly assess, treat, and/or diagnose Ms. Drapeau while she was at Winnebago Hospital and released her from the Hospital.

20. Due to the actions and/or inactions of one or more or all of Defendants and/or their agent(s) and/or employee(s), Ms. Drapeau died on March 23, 2016.

21. Dr. Mahmoud, Ms. Harris, and Ms. Nieman were working in the course and scope of their agency and/or employment with [t]he United States [ ], DHHS, IHS, Winnebago Hospital, and/or Vista Staffing while they were providing medical care, services, and/or treatment to Ms. Drapeau.

Comp., ECF No. 1, Page ID 4. On their own, these facts are not "sufficient to 'raise a right to relief above the speculative level.'" McDonough, 799 F.3d at 946 (quoting Twombly, 550 U.S. at 555). Therefore, Parker has not stated enough factual content to support plausible negligence claims against the United States, or any other defendant. The...