Free Other Notice - 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. CIV-04-0094-PHX-DGC (JI) NOTICE OF SUBSTITUTION OF THE UNITED STATES FOR INDIVIDUAL DEFENDANTS TRACY BRANCH, DOCTOR LUIZ RODRIGUEZ AND DENISE WILLIAMS

PLEASE TAKE NOTICE that pursuant to the Public Health Service Act, 42 U.S.C. 201, et seq. and the Federal Tort Claims Act 28 U.S.C. § 1346 and 2671 et seq. (FTCA) the United States is hereby substituted for the individual defendants Dr. Luiz Rodriguez, Tracy Branch, and Denise Williams with respect to plaintiff's causes of action alleged the Amended Complaint. The grounds for substitution are: 1. The plaintiff's cause of action alleged in his Amended Complaint, Count 1 avers

that defendants Luiz Rodriguez, Tracy Branch, Denise Williams, all Public Health Service Officers, have violated his Eighth Amendment rights through deliberate indifference to his serious medical needs, delayed and inadequate treatment and failure to timely refer plaintiff to an ophthalmologist, causing loss of vision to his left eye, blurred and poor vision to his right eye, pain and suffering and emotional and mental distress. In Count II of his Amended Complaint, plaintiff alleges that these tortuous and negligent acts committed by these employees of the United States led to the injuries described above. Count II is directed to the United States and is seeking compensation under the Federal Tort Claims Act.

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The Public Health Services Act provides at 42 U.S.C. § 233: (a) Exclusiveness of remedy The remedy against the United States provided by sections 1346(b) and 2672 of Title 28, or by alternative benefits provided by the United States where the availability of such benefits precludes a remedy under section 1346(b) of Title 28, for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the officer or employee (or his estate) whose act or omission gave rise to the claim. The FTCA, 28 U.S.C. § 1346(b); § 2671 et seq. is the exclusive remedy for

11 common law and constitutional torts by Public Health Service Officers acting within the scope 12 of their employment. The constitutional tort alleged in Count 1 of plaintiff's Amended 13 Complaint falls within 42 U.S.C. § 233(a) as it is the same subject matter1 as alleged in Count 14 II of his Complaint which already seeks compensation from the United States under the FTCA. 15 4. Pursuant to the FTCA, upon certification by the Attorney General or his delegatee

16 that a Public Health Service employee was acting within the scope of his office or employment 17 at the time of the incident out of which a cause of action arises, the United States already a party, 18 shall be substituted as the sole defendant with respect to those claims and the individual 19 defendants should be dismissed. The Attorney General has delegated certification authority to 20 the United States Attorney for the District of Arizona. Appendix II 28 C.F.R. § 15.4. 21 5. Paul K. Charlton, United States Attorney for the District of Arizona, has certified

22 that at the time of the conduct alleged in the Amended Complaint, the individual defendants, Dr. 23 Luiz Rodriguez, Tracy Branch and Denise Williams were all Public Health Service employees, 24 and were acting within the scope of their employment. Exhibit A attached. 25 26 Delayed and inadequate treatment and failure to timely refer plaintiff to an 27 ophthalmologist. 28 2
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For the foregoing reasons, the United States has, by operation of law, been substituted

2 for the individual defendants and remains the sole defendant with respect to the causes of action 3 alleged in the Complaint. The FTCA is plaintiff's exclusive remedy with respect to these claims. 4 The Court is respectfully referred to the certification of scope of employment filed along

5 with this Notice. An Order amending the caption of this case reflecting the substitution of the 6 United States, already a party, and the proposed dismissal of Dr. Luiz Rodriguez, Denise 7 Williams, and Tracy Branch has been tendered for the convenience of the Court. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Respectfully submitted this 5th day of August, 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 August 5, 2005, I electronically transmitted the attached document

3 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of 4 Electronic Filing to the following CM/ECF registrants: 5 Guy P. Rolle The Rolle Law Office, PLLC 6 15300 N. 90th Suite Suite 900 7 Scottsdale, AZ 85200 s/Rufina Lebario ______________________________ 9 Office of U.S. Attorney 8 10 11 I hereby certify that on August 5, 2005, I served the attached document by mail, on the

12 following, who are not registered participants of the CM/ECF System: 13 14 Guy P. Rolle The Rolle Law Office, PLLC 15 15300 N. 90th Suite Suite 900 16 Scottsdale, AZ 85200 17 s/Rufina Lebario 18 _____________________________ Office of U.S. Attorney 19 20 21 22 23 24 25 26 27 28 4

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