Opinion
CIV-20-562-F
03-02-2022
EDWARD NELLSON, Plaintiff, v. GARY PETRY, et. al, Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff Edward Nellson, a federal inmate appearing in forma pauperis and represented by counsel, brings this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his constitutional rights by Defendants Gary Petry and Theresa Stenmark. (Doc. 58, Amended Complaint). United States District Judge Stephen P. Friot referred this matter to United States Magistrate Judge Suzanne Mitchell for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 46). It was subsequently transferred to the undersigned Magistrate Judge. (Doc. 66).
After careful review of the briefs and the relevant law, the undersigned recommends that the Court overrule the objection of Plaintiff to the substitution of the United States for Defendant Petry on Counts III and IV, dismiss those claims against the United States, dismiss Count I against Defendant Stenmark, and quash service upon Defendant Petry for insufficient service of process.
I. The United States Should Be Substituted For Defendant Petry on Counts III and IV, and Plaintiff's Objection To the Substitution Should Be Overruled.
In the Amended Complaint (Doc. 58), Plaintiff claims that, following a spinal injury in 2016 at the Federal Bureau of Prisons Oklahoma City Transfer Center, Defendants Petry and Stenmark denied Plaintiff medical care in violation of his Eighth Amendment rights. (Id. at 1-3). Specifically, Plaintiff makes the following claims against the Defendants in their individual capacities for monetary damages: Count I, a Bivens claim against Defendants Petry and Stenmark for violating Plaintiff's Eighth Amendment rights; Count II, a Bivens claim for “supervisory capacity” against Defendant Petry; Count III, a claim for “medical malpractice-negligence” against Defendant Petry; and Count IV, a claim for “medical malpractice-gross negligence” against Defendant Petry.” (Id. at 12-15).
On May 7, 2021, Robert J. Troester, the Acting United States Attorney for the Western District of Oklahoma, filed a notice stating that the United States had been substituted for Defendant Gary Petry on Counts III and IV of the Amended Complaint, pursuant to the Federal Tort Claims Act (“FTCA), 28 U.S.C. § 2679(d). (Doc. 82). Plaintiff objected to the substitution (Doc. 85), the United States responded in opposition (Doc. 94), and Plaintiff replied in support of his objection (Doc. 95). The undersigned recommends the Court overrule the objection of Plaintiff and allow the United States to be substituted as the proper Defendant on Counts III and IV.
The FTCA provides absolute immunity for federal government employees “by making an FTCA action against the Government the exclusive remedy for torts committed by Government employees in the scope of their employment.” United States v. Smith, 499 U.S. 160, 163 (1991); see 28 U.S.C. § 2679(b)(1). Even where the FTCA bars recovery for a person's injuries, an action must proceed as an FTCA action upon certification by the Attorney General or his designee that a federal employee defendant “was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” 28 U.S.C. § 2679(d)(1); see Smith, 499 U.S. at 165.
The United States has certified that Defendant Petry acted within the scope of his employment as an employee of the United States at the time of the incidents involved in this action, for purposes of Claims III and IV. (Doc. 82, at 2).
Claims I and II are alleged as “constitutional tort claims, or Bivens claims, ” and “are, by definition, not alleged against the United States but are alleged against individuals.” AAA Pharmacy, Inc. v. Palmetto GBA, L.L.C., 2008 WL 5070958, at *2 (W.D. Okla. Nov. 24, 2008); see also 28 U.S.C. § 2679(b)(2).
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.28 U.S.C. § 2679(d)(1).
“In light of this mandatory language, the government's certification constitutes prima facie evidence that [Defendant Petry] acted within the scope of [his] employment for the United States, placing the burden on the plaintiff to prove otherwise.” AAA Pharmacy, Inc. v. Palmetto GBA, L.L.C., 2008 WL 5070958, at *3 (W.D. Okla. Nov. 24, 2008) (citing Gutierrez de Martinez v. Drug Enforcement Administration, 111 F .3d 1148, 1155 (4th Cir.1997)). “A plaintiff's evidence must be specific evidence, or the forecast of specific evidence, that contradicts the Attorney General's certification, not mere conclusory allegations.” Id. (citation omitted).
Here, Plaintiff argues that Defendant Petry's alleged actions or inaction occurred outside the scope of his employment as defined by Oklahoma law. (See Docs. 85, 94). Under the FTCA, “‘scope of employment' is defined by the respondeat superior law of the state where the incident occurred.” Richman v. Straley, 48 F.3d 1139, 1145 (10th Cir. 1995). Under Oklahoma law, “[t]o hold an employer responsible for the tort of an employee, the tortious act must be committed in the course of the employment and within the scope of the employee's authority.” Perkins v. United States, 2009 WL 2169844, at *3 (W.D. Okla. July 20, 2009) (quoting Baker v. Saint Francis Hosp., 126 P.3d 602, 605 (Okla. 2005)). “An employer may be held responsible for the tort committed by the employee where the act is incidental to and done in furtherance of the business of the employer even though the servant or agent acted in excess of the authority or willfully or maliciously committed the wrongs.” Id. (quoting Baker, at 605).
Assuming the truth of the facts on which Plaintiff relies to defeat respondeat liability in this case, Plaintiff has failed to show that Defendant Petry acted outside the scope of his employment. In essence, Plaintiff argues that Defendant Petry's failure or refusal to provide certain medical care to Plaintiff or interference with the same somehow removes Defendant Petry from the scope of his employment. But the evidence provided by Plaintiff shows that, in allegedly failing or refusing to provide treatment to Plaintiff, Defendant Petry was at all times acting in his role and within his responsibilities as the Clinical Director for the BOP's Federal Transfer Center. (Doc. 85, at 2-5; Doc. 95; at 4-5). And, under Oklahoma law, Defendant Petry's employer may therefore be held responsible for his allegedly negligent, grossly negligent, “willful[] or malicious[]” actions.” Perkins, at *3. Plaintiff's Objection to the United States' Substitution of Parties (Doc. 85) should therefore be overruled, and the United States should be substituted pursuant to its Notice (Doc. 82). Accordingly, the Court should proceed to consider the United States' Motion to Dismiss (Doc. 83).
II. Counts III and IV Should Be Dismissed Due To Lack Of Subject Matter Jurisdiction.
Also on May 7, 2021, the United States filed a Motion to Dismiss Counts III and IV of the Amended Complaint, arguing (in part) that Plaintiff failed to allege waiver of the United States' sovereign immunity in his Amended Complaint, and the United States was therefore entitled to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. 83, at 4-6). Plaintiff responded (Doc. 90, at 32-35), and the United States replied in support of its Motion. (Doc. 92). For the reasons discussed below, the undersigned recommends the Court grant the United States' Motion (Doc. 83) and dismiss Counts III and IV for lack of subject matter jurisdiction.
Because the undersigned recommends that the Court dismiss Plaintiff's claims against the United States for lack of subject matter jurisdiction, the undersigned does not reach the United States' arguments regarding exhaustion or timeliness.
A. Standard of Review
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a claim for lack of subject matter jurisdiction. “Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted).
“Because sovereign immunity affects subject matter jurisdiction, the defense may properly be asserted by a motion to dismiss under Rule 12(b)(1).” White v. United States, 2017 WL 4681796, at *2 (W.D. Okla. Oct. 17, 2017) (citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). “Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” City of Albuquerque v. U.S. Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (internal quotation marks omitted). “If the motion challenges only the sufficiency of a plaintiff's jurisdictional allegations, a district court must confine itself to the complaint and accept the factual allegations as true.” White, 2017 WL 4681796, at *2 (citing Holt, 46 F.3d at 1002). “As the party asserting federal jurisdiction, Plaintiff bears ‘the burden of alleging the facts essential to show jurisdiction and supporting those facts with competent proof.'” Id. (quoting United States ex rel. Stone v. Rockwell Int'l Corp., 282 F.3d 787, 797-98 (10th Cir. 2002)).
B. Discussion
The FTCA allows a plaintiff to bring certain state-law tort suits against the federal government. 28 U.S.C. § 2674; see also § 1346(b). “Section 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and rendered itself liable.” F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994) (internal quotation omitted). This includes claims that are:
[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] 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.Id. (quoting 28 U.S.C. § 1346(b)). “[E]ven though a plaintiff need not prove a § 1346(b)(1) jurisdictional element for a court to maintain subject-matter jurisdiction over his claim, a plaintiff must plausibly allege all six FTCA elements not only to state a claim upon which relief can be granted but also for a court to have subject-matter jurisdiction over the claim.” Brownback v. King, 141 S.Ct. 740, 749 (2021) (internal citation omitted).
In his Response, Plaintiff largely reasserts his argument that the United States should not be substituted for Defendant Petry on Counts III and IV because Defendant Petry did not act within the scope of his employment for purposes of the acts alleged. (Doc. 90, at 32-34). Indeed, in addressing the merits of Defendant's Motion, Plaintiff says:
As the FTCA does not apply to this case, the FTCA's exhaustion and pleading requirements are irrelevant to Mr. Nellson's claims. Accordingly, the United States' assertion that, “Plaintiff has failed to plead a waiver of the United States' sovereign immunity, ” (ECF 83 at 5) and their assertion that Plaintiff failed to file in accordance with the time constraints of Section 2401(b) (ECF 83 at 6-7) are irrelevant to the Plaintiff's claims against Defendant Petry.(Id. at 34-35).
In the Reply, the United States argues that Plaintiff has confessed the Motion to Dismiss by failing to respond to and oppose the merits of the argument. (Doc. 92, at 1); see LCvR7.1(g) (“Each party opposing a motion shall file a response within 21 days after the date the motion was filed. Any motion that is not opposed within 21 days may, in the discretion of the court, be deemed confessed.”). The undersigned agrees. Moreover, it is plain from the face of the Amended Complaint that Plaintiff has not alleged “all six FTCA elements . . . for [the] court to have subject-matter jurisdiction over the claim.” Brownback 141 S.Ct. at 749. Indeed, Plaintiff argues that Defendant Petry did not act “within the scope of his office or employment, ” a necessary element of a FTCA claim. The United States' Motion to Dismiss (Doc. 83) should therefore be granted and Counts III and IV against the United States should be dismissed for want of subject matter jurisdiction.
III. Defendant Stenmark Is Entitled To Absolute Immunity.
Also on May 7, 2021, Defendants Gary Petry and Theresa Stenmark filed a Motion to Dismiss Counts I and II of the Amended Complaint (Doc. 84). The Motion argued, in part, that Defendant Stenmark is entitled to absolute immunity in this proceeding as an employee of the United States Public Health Service. (Id. at 19-20). In response, Plaintiff “concedes to the dismissal of claims I and II against [Defendant] Stenmark on the basis of absolute immunity.” (Doc. 90, at 1). Defendants' Motion to Dismiss (Doc. 84) should thus be granted in part, and Count I against Defendant Stenmark should be dismissed without prejudice.
Although Plaintiff concedes to the dismissal of both Counts I and II against Defendant Stenmark, the Amended Complaint only asserts Claim I against Defendant Stenmark. (Doc. 58, at 12-15).
IV. Plaintiff Has Failed To Properly Serve Defendant Petry and Service Should Be Quashed.
In Proposition I of the Motion to Dismiss (Doc. 84, at 16-19), Defendants Petry and Stenmark argue that Plaintiff's claims must be dismissed for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). The undersigned agrees and recommends the Court grant the Motion in part and quash service of process to Defendant Petry.
Although both individual defendants contest service, the undersigned reviews service upon Defendant Petry only as the parties have agreed to dismissal of Defendant Stenmark.
A. Standard of Review
“Personal service under Rule 4 . . . notif[ies] a defendant of the commencement of an action against him.” Okla. Radio Assocs. v. Fed. Deposit Ins. Corp., 969 F.2d 940, 943 (10th Cir. 1992). Further, such service “provides the mechanism” for the court to “assert[] jurisdiction over the person of the party served.” Id.; see also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51 (1999). “Effectuation of service is a precondition to suit . . . .” Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Thus, a plaintiff's unexcused failure to comply with Rule 4 allows a district court to dismiss the action. See Jones v. Frank, 973 F.2d 872, 873-74 (10th Cir. 1992); Fed.R.Civ.P. 4(m).
A Rule 12(b)(5) motion challenges the plaintiff's mode of serving process on the moving party. Craig v. City of Hobart, 2010 WL 680857, at *1 (W.D. Okla. Feb. 24, 2010) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1353 (3d ed. 2004)). In opposing a Rule 12(b)(5) motion, the plaintiff bears the burden of showing that he or she has “complied with all statutory and due process requirements.” Craig, 2010 WL 680857, at *1. Motions under Rule 12(b)(5) offer the Court the option of quashing the improper service of process without dismissing the action. See Washington v. City of Oklahoma City, 2021 WL 798379, at *3 (W.D. Okla. Mar. 2, 2021).
B. Discussion
Pursuant to Federal Rule of Civil Procedure 4(e)(1), service may be made upon an individual within a judicial district of the United States by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). The State of Oklahoma is both where this Court is located and where service is to be made. Thus, service upon Defendant Petry in accordance with the Oklahoma Pleading Code would satisfy Rule 4.
Pursuant to the Oklahoma Pleading Code, a summons and initial pleading may be served by “certified mail, return receipt requested and delivery restricted to the addressee.” Okla. Stat. tit. 12, § 2004(C)(2)(b). Defendant Petry contends that Plaintiff's service upon him failed to comply with the Oklahoma statutory requirements because Plaintiff directed the mailing to the Federal Transfer Center, where Defendant Petry was not employed at the time, and Defendant Petry did not receive the delivery. (Doc. 84, at 16-19; Doc. 93, at 2); see Okla. Stat. tit. 12, § 2004(C)(2)(c) (directing that service by mail requires “a return receipt showing acceptance by the defendant” (emphasis added)); Fed.R.Civ.P. 4(e)(1). In fact, another individual, “C. BEBOLIT, ” signed for the delivery. (Doc. 11, Ex. 1, at 2).
Plaintiff did not comply with the technical requirements of service. However, strict compliance with the Oklahoma statutory scheme is not required for service to be proper. See Graff v. Kelly, 814 P.2d 489, 495 (Okla. 1991). “Substantial compliance” is sufficient. Id. “To determine whether substantial compliance has occurred, the court must consider the circumstances and ‘determine whether the found departure offends the standards of due process and thus may be deemed to have deprived a party of its fundamental right to notice.'” Shaffer v. Skechers, USA, Inc., 2009 WL 3837408, at *2 (W.D. Okla. Nov. 16, 2009) (unpublished) (citing Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 798 (10th Cir. 2008)). “‘The adopted test requires that under all the circumstances present in a case there be a reasonable probability the service of process employed apprized its recipient of the plaintiff's pressed demands and the result attendant to default.'” Hukill, 542 F.3d at 799 (quoting Vance v. Fed. Nat'l Mortg. Ass'n, 988 P.2d 1275, 1279-80 (Okla. 1999)).
“A plaintiff fails to substantially comply with a service statute specifying who is authorized to accept or refuse service on behalf of the defendant, when service is accepted or refused by an unauthorized person.” Hukill, 542 F.3d at 800 (finding service of process on unauthorized person at defendant's place of business did not sufficiently comply with Oklahoma's service by certified mail statute, and thus district court did not have personal jurisdiction over defendant). Plaintiff attempted to serve Defendant Petry at the Federal Transfer Center, where he was not employed at the time; Plaintiff did not restrict delivery to Defendant Petry; and service was in fact received by “C. BEBOLIT, ” an unauthorized person. (Doc. 11, Ex. 1, at 2; Doc. 93, at 2). Plaintiff has therefore not substantially complied with the requirements of service.
Plaintiff has not properly effectuated service upon Defendant Petry. Motions under Rule 12(b)(5) offer the Court the option of quashing the improper service of process without dismissing the action. See Washington v. City of Oklahoma City, 2021 WL 798379, at *3 (W.D. Okla. Mar. 2, 2021). Here, there is no indication that Plaintiff cannot properly serve Defendant Petry. Thus, the Court should grant in part Defendants' Motion to Dismiss (Doc. 84), quash the original service, and order Plaintiff to effectuate proper service on Defendant Petry within an appropriate time, or risk dismissal as to this Defendant.
V. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that the Court:
• OVERRULE the objection of Plaintiff (Doc. 85) to the substitution of the United States for Defendant Petry on Counts III and IV;
• GRANT the United States' Motion to Dismiss (Doc. 83) and DISMISS Counts III and IV against the United States;
• GRANT IN PART Defendants' Motion to Dismiss (Doc. 84), and DISMISS Count I against Defendant Stenmark; and
• GRANT IN PART Defendants' Motion to Dismiss (Doc. 84), and QUASH service upon Defendant Petry for insufficient service of process.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before March 16, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation does not terminate the referral herein.