Free Motion for Summary Judgment - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona NINA J. RIVERA Assistant U.S. Attorney Arizona State Bar No. 5938 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Etop Morgan Ekwere, Plaintiff, v. Tracy Branch; Doctor Luiz Rodriguez; Denise Williams; United States of America, Defendants. Defendant United States of America, hereby moves pursuant to Fed. R. Civ. P. 56 for Summary Judgment based on subject matter jurisdiction for the reason that plaintiff's claim is time-barred by 28 U.S.C. § 2401(b) because he did not file an administrative claim within the two year limitations period required by that statute. This motion is supported by the attached Statement of Facts and Memorandum of Points and Authorities. Respectfully submitted this 13th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona
S/Nina J. Rivera

CIV-04-0094-PHX-DGC (JI) MOTION FOR SUMMARY JUDGMENT

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NINA J. RIVERA Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES The governing case law for Rule 56 motions is that set by the Supreme Court in Anderson

3 v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986), and Celotex Corp. v. Catrett, 477 4 U.S. 317, 325, 106 S.Ct. 2548, 2553-54 (1986), 91 L.Ed.2d 202 (1986). 5 "In considering a motion for summary judgment, the court may not weigh the evidence

6 or make credibility determinations, and is required to draw all inferences in a light most 7 favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A 8 principal purpose of the summary judgment procedure is to identify and dispose of factually 9 unsupported claims. See, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). 10 The party moving for a summary judgment bears the initial burden of identifying those

11 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine 12 issue of material fact. See, Id. at 323. However, once the moving party meets this initial burden, 13 the non-moving party must go beyond the pleading and by its own evidence "set forth specific 14 facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). 15 The non-moving party must "identify with reasonable particularity the evidence that

16 precludes summary judgment". Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting 17 Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)), and noting that it is not a 18 district court's task to "scour the record in search of a genuine issue of triable fact".) If the non19 moving party fails to make this showing, the moving party is entitled to judgment as a matter of 20 law. See, Celotex, 477 U.S. at 323. In the case before the Court, even based upon the factual 21 allegations in the pleadings alone and considering them in a light most favorable to plaintiff, 22 summary judgment should be granted as a matter of law. 23 24 Procedural History The plaintiff filed his Amended Complaint, alleging that defendants Luiz Rodriguez,

25 Tracy Branch, Denise Williams, all Public Health Service Officers, violated his Eighth 26 Amendment rights through deliberate indifference to his serious medical needs, delayed and 27 inadequate treatment and failure to timely refer plaintiff to an ophthalmologist, causing loss of 28 2

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1 vision to his left eye, blurred and poor vision to his right eye, pain and suffering and emotional 2 and mental distress. In Count II of his Amended Complaint, plaintiff alleged that the negligent 3 acts committed by these employees of the United States led to the injuries described above. 4 Count II was directed to the United States and is seeking compensation under the Federal Tort 5 Claims Act. 6 On November 30, 2005, the Court granted defendants motion to dismiss the Bivens

7 portion of this action based on 42 U.S.C. § 233(a), which states that the Federal Tort Claims Act 8 ("FTCA") is the exclusive remedy for personal injury "when the personal injury claim allegedly 9 arises from health care provided by Public Health Service Officers or employees acting within 10 the scope of their employment." 11 This motion relates to the remaining FTCA claim filed by the plaintiff against the United

12 States. The United States moves for summary judgment based upon 28 U.S.C. § 2401(b) due 13 to the fact that plaintiff's administrative claim was not filed timely within two years of when 14 plaintiff discovered or in the exercise of reasonable diligence should have discovered the injury 15 and its cause. 16 17 18 19 The Federal Tort Claims Act (FTCA), 28 U.S.C. §¶ 1346(b), 1402(b), 2401(b), 2402, The Federal Tort Claims Act Administrative Claim Requirement and its Statute of Limitations Are Jurisdictional

20 2671-2680, is a limited waiver of sovereign immunity making the federal government liable to 21 the same extent as a private party for certain torts of federal employees acting within the scope 22 of their employment. United States v. Orleans. 425 U.S. 807, 813 (1976). Since plaintiffs 23 obtain their right to sue under the FTCA from Congress, they necessarily must take that right 24 subject to such restrictions as have been imposed. Dalehite v. United States 346 U.S. 15, 25 31(1953). 26 Two such restrictions are the FTCA's statute of limitations (28 U.S.C. §§ 2401(b)), and

27 its administrative claim requirement (28 U.S.C. § 2675). Section 2401(b) provides: 28 3

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A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. Condition of the Waiver of Sovereign Immunity

5 The FTCA waives the United States' immunity from suit, and its statute of limitations is 6 a condition of that waiver. See United States v. Kubrick, 444 U.S. 111, 117-18 (1979). In 7 addition, 28 U.S.C.§ 2401(b) is part of the statute which created the right of action against the 8 United States and, as such, it fixes an indispensable condition of the liability and action which 9 is created. See Simon v. United States, 244 F.2d 703, 704-05 (5th Cir. 1957). 10 As a condition of the wavier of sovereign immunity, no waiver exists under 28 U.S.C. 11 1346 (b) once the two year period of limitations has run on filing an administrative claim. This 12 limitation is a threshold jurisdictional requirement, McGraw v. United States, 281 F.3d 997, 13 14 the two year period, the district court has no subject matter jurisdiction over the action. Jerves 15 16 17 18 19 20 21 22 23 24 quoting Jerves, 966 F.2d at 521 (internal quotations and citations omitted). See, McNeil [T]he administrative claim requirements of Section 2675 (a) are jurisdictional in nature, and thus must be strictly adhered to. This is particularly so since the FTCA waives sovereign immunity. Any such waiver must be strictly construed in favor of the United States. Section 2675 (a) establishes explicit prerequisites to the filing of suit against the Government in district court. It admits of no exceptions. Given the clarity of the statutory language, we cannot enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit. v. United States, 966 F.2d 517, 519 (9th Cir. 1992). The 9th Circuit interprets the administrative claim requirement strictly. In Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir. 1995) the 9th Circuit stated as follows: 1001 (9th Cir. 2002); Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir. 1986). Thus after

25 v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, (1993) (requiring "strict adherence 26 to the procedural requirements" of section 2675 (a)). 27 28 4

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When the Limitation Period Begins to Run The 2-year time limit begins to run when the tort claim "accrues." When a claim accrues

3 is determined by federal law. See Goodhand v. United States, 40 F.3d 209, 213 (7th Cir. 1994); 4 In re Swine Flu Products Liability 764 F.2d 637, 638(9th Cir. 1985). 5 The general rule under the Federal Tort Claims Act is "that a tort claim accrues at the

6 time of the plaintiff's injury...."United States v. Kubrick, 444 U.S. 111, 120 (1979). See also 7 Steele v. United States, 599 F.2d 823, 828(7th Cir. 1979) ("The governing rule is that when the 8 injury coincides with the negligent act and some damage is discernible at that time, the cause of 9 action accrues and the statute of limitations begins to run immediately."); K.E.S. v. United States, 10 38 F.3d 1027, 1029 n.2 (8th Cir. 1994) ("It is only in exceptional cases that a reasonably diligent 11 plaintiff cannot immediately know the fact of injury and its cause."). 12 In certain types of medical malpractice cases, the claim does not accrue until the claimant

13 discovers or in the exercise of reasonable diligence, should discover the injury and its cause. 14 United States v. Kubrick, 444 U.S. at 123-124. The diligence of the claimant is to be judged by 15 an objective standard [emphasis added]. See, e.g., Herrera-Diaz v. United States Dept. of Navy, 16 845 F.2d 1534, 1537 (9th Cir.), cert. denied, 488 U.S 924 (1988); Barren by Barren v. United 17 States, 839 F.2d 987, 992 (3rd Cir. 1988). 18 In Kubrick. the Supreme Court stated that "[t]he prospect is not so bleak for a plaintiff

19 in possession of the critical facts that he has been hurt and who has inflicted the injury." United 20 States v. Kubrick, 444 U.S. at 122. Most courts have rejected attempts to read Kubrick to say 21 that a claim does not accrue until the claimant has knowledge of who caused the injury. 22 "The burden is on the plaintiff to ascertain the existence and source of fault within the

23 statutory period.. . . In the absence of fraudulent concealment, it is the plaintiff's burden, within 24 the statutory period, to determine whether and whom to sue." Davis v. United States, 642 F.2d 25 328, 331 (9th Cir. 1981). See also Outman v. United States, 890 F.2d 1050, 1052 (9th Cir. 1989); 26 Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986), cert denied, 479 U.S. 1054 (1987); 27 Dyniewicz v. United States, 742 F.2d 484 (9th Cir. 1984). 28 5

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In the case before this Court plaintiff filed1 his administrative claim on July 8, 2003,

2 over two years after the plaintiff alleges the negligent acts of the United States occurred 3 Plaintiff alleges in his Complaint as follows: "Foregoing occurrence transpired between

4 March 14, 2001 and April 13, 2001." Complaint C. Cause of Action, Count II Con't, Supporting 5 Facts, Section 3, ¶ 3. 6 Plaintiff also alleges in his Complaint that on March 14, 2001, he was taken to Florence

7 Medical Unit to be seen by Physician Assistant defendant Branch regarding pains and poor 8 vision due to glaucoma. "During this visit defendant Branch refused to give plaintiff treatment 9 and denied plaintiff's request to be seen by an eye specialist. There plaintiff submitted several 10 health needs requests outlining his critical conditions and stressing the need for immediate 11 treatment." Complaint C. Cause of Action Count 1, Supporting Facts Section 3 ¶ 2. 12 In deposition, plaintiff stated that it was between March and April 13, 2001 that the BICE

13 Medical Unit did not assist him when he mentioned his eye problems to them. Statement of 14 Facts, [SOF 2 Exhibit A]. 15 Plaintiff cannot extend the limitations period in this case by alleging that he was not

16 aware of the seriousness of his condition until much later on. In his own Complaint, plaintiff 17 alleges that after the Medical Unit referred him to Dr. Kian, an ophthalmologist at Advanced 18 Laser and Eye Center of Arizona, that on his first visit on May 2, 2001, Dr. Kian told him the 19 following: 20 21 22 23 "Plaintiff glaucoma was in its most advanced stage caused by delayed and denied medical attention, at which time Dr. Kian stated that it won't be long before plaintiff looses sight in his left eye and he will have to take care of his right eye unless he looses that vision too." Complaint. C. Cause of Action, Supporting Facts, Count 1, p. 2, ¶ 2.. The medical records from BICE document that on May 2, 2001, plaintiff told his

24 Physician's Assistant at the BICE Medical Unit, Mr. McBride, the same thing and he noted it 25 in the BICE medical record. [SOF 8, Exhibit F]. Additionally, in plaintiff's deposition, taken 26
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Claims are deemed to be filed when received by the appropriate agency. 28 C.F.R. 6

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1 on September 20, 2005 plaintiff stated that on his first visit to the ophthalmologist on May 2, 2 2001, that Dr. Kian stated ". . .It would not be long before he loses his sight in the left eye and 3 he will have to take care of his right eye until he loses that visions, too. That is what he said." 4 [SOF 10, Exhibit H]. 5 On May 11, 2001, plaintiff was again seen by Dr. Kian who determined that the

6 medication he had given him was not sufficient to treat the condition and recommended surgery 7 to reduce intraocular pressure. [SOF 11, Exhibit I]. 8 9 10 11 L] 12 On July 8, 2001, plaintiff filed his administrative claim with the Department of Health On June 4, 2001, the surgery was performed. [SOF 12, Exhibit J]. On June 20, 2001, Plaintiff was informed that the surgery had failed.[SOF 13, Exhibit K]. On June 25, 2001, plaintiff had a second trabeculectory on his left eye. [SOF 14, Exhibit

13 and Human Services, Public Health Service, Claims Branch. [SOF 15, Exhibit M, Exhibit N 14 Declaration of Dorothea P. Koehler], 15 Plaintiff's claim arose between March 14 and April 13, 2001, when he claims he was

16 allegedly denied treatment by the United States and knew that he had a serious problem with his 17 eyes that needed treatment. [SOF 1 and 2]. At the very latest, plaintiff was made abundantly 18 aware of his very serious condition on May 2, 2001, when he was told by his ophthalmologist 19 that he had end stage glaucoma in his left eye and advanced chronic glaucoma in his right eye. 20 [SOF 7, 8, 9, 10]. At that point, plaintiff knew or had reason to know of his pre-existing 21 condition and its cause and the accrual clock had started to run. He knew the party he intended 22 to sue and the alleged negligence involved, although that is not a requirement.2 Plaintiff is not 23 alleging fraudulent concealment or misrepresentation in his Complaint with respect to the 24 25 26 As the Kubrick Court stated "We thus cannot hold that Congress intended "accrual" of a claim must await awareness by the plaintiff that the injury was negligently inflicted." U.S. v. 27 Kubrick, 444 U.S. 111, 123; 100 S.Ct. 352, 360. 28 7
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1 existence of his injury, nor has he alleged non-disclosure by the government health care 2 providers of a hidden medical problem and its cause, to toll the statute. 3 Because plaintiff's medical negligence claim accrued at the very latest on May 2, 2001,

4 and he did not file a timely administrative claim within the two year limitations period, 5 plaintiff's claim is time barred by 28 U.S.C. § 2401(b). Because there is no subject matter 6 jurisdiction for this claim and the statute of limitations under 28 U.S.C. §§ 2401 has clearly run, 7 this motion for summary judgment should be granted and plaintiff's Complaint dismissed with 8 prejudice. 9 For the foregoing reasons, defendant United States requests that plaintiff's FTCA claim

10 be dismissed with prejudice. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Respectfully submitted this 13th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona
S/Nina J. Rivera

NINA J. RIVERA Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on December 13th, 2005, I electronically transmitted the attached

3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 4 of Electronic Filing to the following CM/ECF registrants: 5 Guy P. Roll The Roll Law Office, PLLC 6 398 S. Mill Avenue, Suite 201 Tempe, AZ 85281 7
S/Rufina Lebario

8 Office of U.S. Attorney 9 I hereby certify that on December 13th, 2005, I served the attached document by mail, 10 on the following, who are not registered participants of the CM/ECF System: 11 12 Guy P. Roll 13 The Roll Law Office, PLLC 398 S. Mill Avenue, Suite 201 14 Tempe, AZ 85281 15
S/Rufina Lebario

16 Office of U.S. Attorney 17 18 19 20 21 22 23 24 25 26 27 28 9

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