Prentice v. United States

980 F. Supp. 2d 748, 2013 WL 5878437, 2013 U.S. Dist. LEXIS 158035
CourtDistrict Court, N.D. Texas
DecidedJuly 11, 2013
DocketCivil Action No. 5:12-CV-126-C
StatusPublished
Cited by2 cases

This text of 980 F. Supp. 2d 748 (Prentice v. United States) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prentice v. United States, 980 F. Supp. 2d 748, 2013 WL 5878437, 2013 U.S. Dist. LEXIS 158035 (N.D. Tex. 2013).

Opinion

ORDER

SAM R. CUMMINGS, District Judge.

Came on for consideration the following:

(1) Motion to Dismiss, and Brief in Support, of the United States, filed March 11, 2013;

(2) Motion to Dismiss, and Brief in Support, of the Department of Veterans Affairs, filed March 11, 2013; and

(3) Plaintiffs Amended Response, filed March 29, 2013.

Plaintiff, Victor Prentice (“Prentice”), proceeding pro se, filed a lengthy complaint listing the United States as the defendant and a series of agencies, departments, individuals, and entities as “co-defendants.” After Prentice sought in forma pauperis status, the Court screened the original complaint and issued an order requiring Prentice to file an amended pleading. The Court explained that “[wjhile Plaintiff is ostensibly attempting to state a claim for medical malpractice and a deprivation of his civil rights, the Court is at a loss as to which claims Plaintiff contends implicate which defendants and which of the many—sometimes incoherent—facts that Plaintiff alleges support each claim with regard to each Defendant.” Ct.’s August 24, 2012 Order. The Court ordered Prentice to identify, among other things, the specific acts or omissions of each Defendant implicated in each cause of action and to explain how the conduct at issue allegedly would be actionable.

Thereafter, Prentice filed an amended complaint. Although the amended complaint is shorter than the original one, it still failed to clarify the specifics of Prentice’s alleged claims in any meaningful way. The Court then sent Prentice a questionnaire seeking to elicit specific explanations from him about his claims as to each entity or individual referenced as a potential defendant. Prentice was directed to state concisely the cause of action alleged and the specific facts relevant to each Defendant, including dates and locations.

On receiving Prentice’s response to the questionnaire, the Court issued an Order noting that Prentice “still has not clearly described the facts in support of his claim.” Ct.’s November 15, 2012 Order. The Court allowed Prentice to proceed in forma pauperis and ordered service on the United States and the Department of Veterans Affairs (“VA”), but also specifically “reserve[d] the right to dismiss Plaintiffs claims at any time....” Id.

As best the Court can discern, Prentice’s allegations appear to fall into two broad [751]*751categories: (1) issues relating to medical care and alleged medical malpractice and (2) alleged civil rights violations relating to “Church activities.” For each category, however, Prentice has not provided a clear explanation in support of the alleged claims and has not set forth facts showing any entitlement to relief under a cognizable legal theory. Accordingly, dismissal is appropriate.

As an initial matter, the Court is without jurisdiction to entertain Prentice’s claims against the VA. With regard to his claims under the FTCA, these claims may be brought against the United States only, not its agencies or employees. 28 U.S.C. § 2671, 2679(a), b(l) (providing that the FTCA does not authorize suits against federal agencies and that the FTCA is the exclusive remedy with respect to injuries caused by federal employees acting within the scope of their employment); Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir.1988) (“Thus, an FTCA claim against a federal agency or employees as opposed to the United States itself must be dismissed for want of jurisdiction.”). Accordingly, jurisdiction is lacking for any malpractice claim against the VA.

Additionally, to .the extent Prentice is seeking to challenge any denial by the VA of a request for fee-basis care, jurisdiction is likewise absent. By statute, a veteran may request that the VA arrange for fee-basis care from non-VA facilities if VA facilities “are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing the care or services required.” 38 U.S.C. § 1703(a). Prentice states that the VA has denied his requests for fee-basis care and asks the Court to order the VA to approve the requests. Under 38 U.S.C. § 511, the Secretary of Veterans Affairs has responsibility for decisions to grant or deny benefits, and district courts are not a part of that process. See Zuspann v. Brown, 60 F.3d 1156, 1158-59 (5th Cir.1995). Because the Court is without jurisdiction to hear Prentice’s claims against the VA, these claims should be dismissed.

Next, invoking the FTCA, Prentice pleads claims for medical malpractice against the United States. Under the doctrine of sovereign immunity, the United States cannot be sued without its consent. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The FTCA is a limited waiver of that sovereign immunity, and accordingly the limitations of the statute must be strictly construed in favor of the government. See Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); Houston v. U.S. Postal Serv., 823 F.2d 896, 902 (5th Cir.1987). One of the important limitations placed on the waiver of sovereign immunity is that the United States may only be liable if a similarly situated private individual would be subject to liability. 28 U.S.C. § 1346(b)(1). (The government may be liable under the FTCA “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.”). The situs of the alleged wrongs at issue is Texas.

The United States is entitled to dismissal of Prentice’s medical claims because he has not complied with applicable Texas law requiring the submission of a threshold expert report. Under Texas Civil Practice & Remedies Code § 74.351(a), any plaintiff bringing a “health care liability claim”1 [752]*752must submit an expert report no later than 120 days after filing suit. This report must set forth an expert’s opinion of the “applicable standards of care, the manner in which the care ... failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” § 74.351(r)(6). If no threshold expert report is timely served, dismissal is required. § 75.351(b)(2).

The Court notes that the law is unsettled in this circuit as to whether Texas Civil Practice & Remedies Code § 74.351(a) applies in federal court. The Fifth Circuit, in Chapman v. United States, held, albeit in dicta, that dismissal of a medical malpractice claim was proper when the plaintiff failed to comply with the statute. 353 Fed.Appx.

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Bluebook (online)
980 F. Supp. 2d 748, 2013 WL 5878437, 2013 U.S. Dist. LEXIS 158035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prentice-v-united-states-txnd-2013.