Provancial v. United States

• Decision Date: 01 February 1972
• Docket Number: No. 71-1207.,71-1207.
• Citation: 454 F.2d 72
• Parties: Antoine Hubert PROVANCIAL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

454 F.2d 72 (1972)

Antoine Hubert PROVANCIAL, Appellant, v. UNITED STATES of America, Appellee.

No. 71-1207.

United States Court of Appeals, Eighth Circuit.

January 21, 1972.

As Corrected February 1, 1972.

John J. Simpson, Winner, S. D., for appellant.

William F. Clayton, U. S. Atty., David R. Gienapp, Asst. U. S. Atty., for appellee.

Before MATTHES and LAY, Circuit Judges, and HUNTER, District Judge.

ELMO B. HUNTER, District Judge.

Appellant, Antoine Hubert Provancial, is a twenty-seven year old male Indian who is an enrolled member of the Rosebud Sioux Tribe in South Dakota. Under date of November 13, 1969, he filed a claim against the United States in the sum of $250,000 for loss of sight of his right eye. The loss allegedly was the result of an arrest and detention incident involving two employees of the Police Department of Mission, South Dakota. On May 20, 1970, the Department of the Interior administratively denied the claim. Appellant then brought his action on the claim in the United States District Court for the District of South Dakota.

The case was tried to the Court without a jury. Judge Bogue (1) denied appellant's request to amend his complaint to include a medical malpractice claim; and (2) held that the arresting officers of the Mission Police Department were not employees of the United States within the meaning of the Federal Tort Claims Act, and, therefore, that the federal district court lacked jurisdiction. This appeal followed his judgment of dismissal.

The pertinent facts as they relate to the two questions presented on this appeal are relatively undisputed. On July 16, 1969, appellant, while accompanied by two other persons, was arrested within the City of Mission on a charge of driving while intoxicated. He was taken directly to the Mission city jail and incarcerated by the arresting officers despite his alleged requests for medical aid.

The arrest was made by Charles Herman and Elmer Bear Heels, officers of the Mission Police Department and employees of the City of Mission, a city incorporated by the State of South Dakota and lying entirely within the boundaries of the Rosebud Indian Reservation. These two officers also were deputized special officers of the Department of Interior, Bureau of Indian Affairs. Each thereby held a special commission granting power to arrest Indians within the Indian Reservation. They were acting under this authority in making the arrest and detention of appellant.

Appellant remained in the Mission jail from the evening of July 16, until approximately 2:00 a. m. on July 17th, at which time an officer of the Rosebud Police, Wayne Claymore, arrived and transported appellant twelve miles to the tribal jail at Rosebud.

In support of his claim, appellant alleged that shortly before his arrest he was endeavoring to fix the battery of his car which had stalled, by striking a portion of the battery with a wrench, unexpectedly causing battery acid to splash into his right eye. He asserts he communicated this event and his need for medical attention to the officers at Mission, and later to the authorities at Rosebud, but that he was not given any aid or medical assistance until he was taken to the Public Health Hospital at Rosebud about 10:00 a. m. on the 17th by officers of the tribal police.

The Amendment Contention

On November 13, 1969, appellant through his attorney filed his claim against the United States Government by sending it to the Department of Justice, which forwarded it to the United States Department of Interior. The claim specifically named the two police officers at Mission as the negligent parties, and did not mention the names of nor allege any negligence against the Rosebud officers, the Rosebud Hospital or any of the doctors or other personnel of the Rosebud Hospital.

At the commencement of the trial appellant unsuccessfully moved to amend his complaint to include a malpractice claim against the United States based on the alleged negligence of the government physician who had treated appellant at the Rosebud hospital. In denying the request to amend, Judge Bogue ruled that the new claim sought to be added to the case was one that had not been presented to the appropriate federal agency and finally denied by such agency as required by 28 U.S.C. § 2675(a).

We are persuaded that Judge Bogue correctly denied the requested leave to amend. The original claim sent to the Department of Justice concerned at most only the alleged negligent actions of two specifically named officers purportedly acting under the authority of the Bureau of Indian Affairs. The Department of Justice appropriately forwarded that claim to the Department of the Interior, which administratively examined and finally denied it.¹ The requested amendment was for the purpose of presenting a new and different claim of medical malpractice involving a medical doctor employee of the United States Public Health Service. The two claims are obviously distinct and different, and involve different federal agencies. The Bureau of Indian Affairs is a part of the Department of the Interior. 25 U.S. C. § 1. The Public Health Service is a part of the Department of Health, Education and Welfare, administered by the Surgeon General under the supervision and direction of the Secretary. 42 U.S. C. § 202. The latter claim for which leave to amend was sought had not been presented to the appropriate federal agency, The United...