Cook v. United States ( 2020 )

1 MUnCiGteRd ESGtaOteRs AWtt.o SrCneOyT T 2 EDWARD A. OLSEN, CSBN 214150 Assistant United States Attorney 3 501 I Street, Suite 10-100 Sacramento, CA 95814 4 E-mail: edward.olsen@usdoj.gov Telephone: (916) 554-2821 5 Facsimile: (916) 554-2900 6 Attorneys for the United States of America 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 TANEYA COOK, an individual, Case No. 2:19-CV-02493-TLN-CKD 12 Plaintiff, STIPULATION TO DISMISS CLAIMS 13 AGAINST THE UNITED STATES; AND v. ORDER 14 UNITED STATES OF AMERICA; SCOTT V. 15 PERRYMAN, M.D.; and DOES 1 through 30, inclusive, 16 Defendants. 17 18 19 Plaintiff Taneya Cook, by and through her attorney of record, and the United States, by and 20 through its attorneys of record, hereby stipulate to dismissal of Plaintiff’s claims against the United 21 States without prejudice and to remand Plaintiff’s claims against Scott Perryman, M.D. back to state 22 court, based on the following: 23 (1) Plaintiff filed a Complaint in Solano County Superior Court on October 4, 2019, alleging 24 that OLE Health, Inc. (“Clinic”), two employees of the Clinic (Karen Kin Yan Chung, M.D. and Mara 25 Adelman), and Scott Perryman committed medical malpractice. 26 (2) Plaintiff filed an Amended Complaint in Solano County Superior Court on November 20, 27 2019. 28 1 (3) The Clinic receives federal funding and both the Clinic and its employees (Karen Kin 2 Yan Chung, M.D. and Mara Adelman) are deemed to be employees of the Public Health Service within 3 the United States Department of Health and Human Services. See Federally Supported Health Centers 4 Assistance Act, 42 U.S.C. § 233. 5 (4) Because the Clinic is deemed to be a federal employee, tort actions against the Clinic and 6 its employees (acting within the scope of their employment) arising from medical or related functions 7 must be brought against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 8 §§ 1346(b), 2671-80. See 42 U.S.C. § 233(a). 9 (5) On December 13, 2019, the United States Attorney removed the state court action to 10 federal district court and filed a certification that the Clinic, Dr. Karen Kin Yan Chung, and Mara 11 Adelman were acting within the course and scope of their employment at the time of the events giving 12 rise to this action. 13 (6) As a result of the certification, the United States was substituted as the federal defendant 14 in place of the Clinic, Dr. Karen Kin Yan Chung, and Mara Adelman by operation of law. See 15 42 U.S.C. § 233(c). 16 (7) “A federal court’s jurisdiction to hear damage actions against the United States is limited 17 by section 2675(a) of the FTCA.” Shipek v. United States, 752 F.2d 1352, 1353 (9th Cir. 1985); accord 18 Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000). 19 (8) Section 2675(a) requires, as a prerequisite to suing the United States, that a plaintiff must 20 first present his or her claim to the appropriate federal agency. Shipek, 752 F.2d at 1353. The plaintiff 21 must then receive a denial of the claim or await the passage of six months before filing suit. Id. “The 22 plaintiff is permitted to sue the United States only after the claim is denied or six months have elapsed 23 without final disposition by the agency.” Warren v. United States Dep’t of Interior, 724 F.2d 776, 778 24 (9th Cir. 1984) (en banc); see also See Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992) 25 (“Section 2675(a) establishes explicit prerequisites to the filing of suit against the Government in district 26 court. It admits of no exceptions.”); McNeil v. United States, 508 U.S. 106, 112-13 (1993) (stating that 27 exhaustion of administrative remedies during the pendency of an action does not cure the failure to 28 exhaust prior to filing the action). 1 (9) Plaintiff has not yet exhausted an administrative tort claim with the United States 2 Department of Health and Human Service. 3 Accordingly, Plaintiff and the United States agree that the claims against the United States must 4 be dismissed without prejudice and that the matter (plaintiff’s claims against Scott Perryman, M.D.) may 5 be remanded to state court. 6 7 Dated: January 9, 2020 Respectfully submitted, 8 MCGREGOR W. SCOTT United States Attorney 9 10 By: /s/ Edward A. Olsen EDWARD A. OLSEN 11 Assistant United States Attorney 12 Attorneys for the United States of America 13 14 15 Dated: January 9, 2020 /s/ Caroline E. Gegg CAROLINE E. GEGG 16 Attorney for Plaintiff 17 18 19 ORDER 20 Pursuant to stipulation, IT IS SO ORDERED. 21 22 Dated: January 9, 2020 23 24 25 26 27 28