John R. Bates v. Thomas J. Carlow

Tenth Circuit

John R. Bates v. Thomas J. Carlow

430 F.2d 1331, 1970 U.S. App. LEXIS 7604

CourtCourt of Appeals for the Tenth Circuit

DecidedAugust 24, 1970

Docket593-69

StatusPublished

Cited by7 cases

This text of 430 F.2d 1331 (John R. Bates v. Thomas J. Carlow) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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John R. Bates v. Thomas J. Carlow, 430 F.2d 1331, 1970 U.S. App. LEXIS 7604 (10th Cir. 1970).

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Opinion

PER CURIAM.

This action, originally filed in the state courts of Colorado, presents a claim by plaintiff Bates for personal injuries suffered through the claimed negligence of Carlow, a physician who at the time of the alleged negligence was commissioned in the Public Health Service, Department of Health, Education, and Welfare. It is undisputed that the acts of Carlow which premise the contention of malpractice were performed during the scope of Carlow’s employment by an agency of the United States. The case was properly removed to federal court, Willingham v. Morgan, 395 U. S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396. The court below then dismissed the action on the ground that Carlow was im- *1332 muñe from personal liability. The dismissal was specifically without prejudice to any claim Bates might have under the Federal Tort Claims Act. Both the judgment of dismissal and its qualifications were manifestly correct. Morgan v. Willingham, 10 Cir., 424 F.2d 200. The district court did not hold, as appellant would appear to argue, that the alleged acts of Carlow were of a discretionary nature as that term creates an exception to governmental liability under § 2680 of the Act.

Affirmed.

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PER CURIAM.

This action, originally filed in the state courts of Colorado, presents a claim by plaintiff Bates for personal injuries suffered through the claimed negligence of Carlow, a physician who at the time of the alleged negligence was commissioned in the Public Health Service, Department of Health, Education, and Welfare. It is undisputed that the acts of Carlow which premise the contention of malpractice were performed during the scope of Carlow’s employment by an agency of the United States. The case was properly removed to federal court, Willingham v. Morgan, 395 U. S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396. The court below then dismissed the action on the ground that Carlow was im- *1332 muñe from personal liability. The dismissal was specifically without prejudice to any claim Bates might have under the Federal Tort Claims Act. Both the judgment of dismissal and its qualifications were manifestly correct. Morgan v. Willingham, 10 Cir., 424 F.2d 200. The district court did not hold, as appellant would appear to argue, that the alleged acts of Carlow were of a discretionary nature as that term creates an exception to governmental liability under § 2680 of the Act.

Affirmed.

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Bluebook (online)

430 F.2d 1331, 1970 U.S. App. LEXIS 7604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-r-bates-v-thomas-j-carlow-ca10-1970.

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