Roderick T. Simpson v. Carlyle Holder

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 19, 2006
No. 05-15623 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00192-CV-OC-10-GRJ
RODERICK T. SIMPSON,
Plaintiff-Appellant,
versus
CARLYLE HOLDER, et al.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 19, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Roderick T. Simpson, a federal prisoner proceeding pro se, appeals the
dismissal with prejudice of his amended complaint alleging claims against
Defendant the United States under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346(b). After review, we affirm.
I. BACKGROUND
A. Amended Complaint
We first review the allegations in Simpson’s amended complaint against the
United States. Simpson is a federal prisoner at the Federal Correctional Complex
in Coleman, Florida (“Coleman prison”). After Coleman prison granted Simpson
permission to play flag football, Simpson injured his knee while playing flag
football on October 21, 2000.
Simpson and his medical file were transported from Coleman prison to the
private hospital of Leesburg Regional Medical Center (“LRMC”) in Leesburg,
Florida, where an emergency room physician “snapped” his knee in place. After
the administration of “TPA,”1 Simpson’s condition worsened, and Drs. Roger W.
Sherman and J. Mandume Kerina at LRMC performed a fasciotomy on Simpson’s
knee. They discovered severe damage. During a second surgery, metal pins were
placed in the knee. Dr. Fernando Serra, also at LRMC, performed a debridement
1
Simpson refers to “TPA” without identifying what it is.
2
of Simpson’s leg wounds and a skin graft.
On November 7, 2000, Simpson was transferred to the Federal Medical
Center at Rochester, Minnesota (“the prison hospital”). The doctors at the prison
hospital noted that Simpson’s leg appeared infected and had no movement and
poor sensation. Simpson was transferred to St. Mary’s Hospital, a private hospital
in Rochester, where antibiotics were administered. Further examination and
testing revealed that Simpson’s leg was entirely necrotic. On November 13, 2000,
doctors at St. Mary’s amputated Simpson’s leg from above the knee. On
December 12, 2000, doctors at St. Mary’s told Simpson he would be fitted for a
prosthesis at the prison hospital; however, Simpson alleges that he had yet to
receive one at the time he filed this suit on June 9, 2003.
On July 15, 2002, Simpson filed an administrative claim with the Bureau of
Prisons (“BOP”), identifying the bases for his claim as the actions of doctors at the
LRMC, a private hospital. His claim named Drs. Sherman, Kerina, and Serra and
Dr. Ravi Gupta and other unknown doctors and nurses at LRMC and described
their negligence, as follows:
The Claimant, Mr. Roderick Simpson, was transferred to Leesburg
Regional Medical Center from Coleman Correctional Complex as a
result of a dislocated knee, sustained while playing football. The
Claimant Prison Medical files were transferred with him to the
Hospital. The medical files contained information regarding the
claimant’s diabetic history. The Leesburg Medical Doctors were
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negligent in their treatment and lack of treatment to claiment [sic].
The Doctors should have known that a reduced supply of blood to the
lower extremities may cause irreversible damage and ultimately lead
to the death of the leg tissues unless proper circulation is restored.
On December 20, 2002, the BOP denied Simpson’s claim, finding that he had not
alleged any negligence or wrongful action by government employees of the United
States or by the medical staff at Coleman prison, but only by medical contractors at
LRMC (a private hospital) over whom the United States did not exercise physical,
day-to-day control.
On June 9, 2003, Simpson pro se filed this action alleging claims pursuant to
the FTCA and Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971). His initial complaint named as
defendants: Carlyle Holder, the warden at Coleman prison; Gregory L. Parks, the
former warden; Jamie Cacho, a physician’s assistant at Coleman prison; a John
Doe defendant identified as a recreation specialist at Coleman prison; two John
Doe defendants identified as doctors at LRMC; Drs. Sherman, Kerina, Serra and
Gupta at LRMC; and other unknown BOP employees at Coleman prison and
doctors and nurses at LRMC.
In a frivolity determination, the district court dismissed Simpson’s Bivens
claims against the individually named federal employees for failure to exhaust
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administrative remedies.2 The district court noted that the United States is the
proper defendant in a suit brought under the FTCA and ordered Simpson to file an
amended complaint against the United States.
Simpson filed an amended complaint, entitled “Amended Complaint
Pursuant to Court Order(s) of December 11, 2003 and January 12, 2004 Federal
Tort Claim Act 28 U.S.C. §2672 et. seq.” His amended complaint asserts FTCA
claims against the United States for negligence by “the United States; its
employees; and its employees under contract . . . .” A footnote appended to the
style of his amended complaint states that the United States “includes any and all
its employees whom the Plaintiff specifically names within this complaint.” The
body of the amended complaint identifies as defendants: Jaimie Cacho at Coleman
prison and Drs. Sherman, Kerina and Serra at LRMC.
As to the Coleman prison staff, Simpson’s amended complaint alleges
negligence: (1) in allowing Simpson to play football without first examining him
or his medical records and medically clearing him to play; and (2) in failing to
provide Simpson with a prosthesis. As to the LRMC medical staff, Simpson’s
amended complaint alleges negligence: (1) in failing to consult plaintiff’s prison
medical records before resetting his dislocated knee; (2) in placing metal pins and
2
Simpson does not appeal the dismissal of his Bivens claims.
5
staples in Simpson’s knee when they should have known that he would suffer
complications due to his diabetes; and (3) in prematurely performing a skin graft.
B. Summary Judgment Notice
On April 1, 2004, the magistrate judge issued an order styled “Order to
Answer and Notice to Plaintiff.” The order directed the defendant government to
answer Simpson’s amended complaint within 60 days of service.
The April 1, 2004 order also warned Simpson that, if the defendant filed a
motion to dismiss and attached documents and supporting affidavits, the court
would treat the motion as a summary judgment motion. The order further warned
that Simpson would have twenty days to respond to the defendant’s converted
summary judgment motion and produce sworn affidavits and other documents
demonstrating a genuine issue of material fact or risk entry of final judgment in the
government’s favor, as follows:
If Defendant files a motion to dismiss, Plaintiff shall have
TWENTY (20) DAYS to file his response to the motion to dismiss.
Pro se Plaintiff is advised out of an abundance of caution that the
granting of this motion would represent an adjudication of this case
which may foreclose subsequent litigation on the matter. If Defendant
files a motion to dismiss that is supported by affidavits or other
documents, the Court will construe the motion to dismiss as a motion
for summary judgment, and Plaintiff shall have TWENTY (20)
DAYS to file his response. If Defendant files a motion for summary
judgment, Plaintiff shall have TWENTY (20) DAYS to file his
response. In preparing a response to a motion to dismiss (construed as
a motion for summary judgment), or a motion for summary judgment,
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Plaintiff should be aware of the provisions of Rule 56 of the Federal
Rules of Civil Procedure.
Rule 56 provides that when a motion for summary judgment is
supported by affidavits and/or other documents, the party opposing
the motion may not depend on the mere allegations in his pleadings to
counter it. Pursuant to Rule 56, the party opposing the motion must
respond with counter sworn affidavits and/or documents to set forth
specific facts showing that there is a genuine issue of material fact in
dispute. If the opposing party fails to respond to the motion or
responds, but the response does not comply with the requirements of
Rule 56 as stated above, the Court may declare that the facts in the
affidavits and/or documents supporting the motion are established as
true and that there is no genuine issue of material fact in dispute. In
that event, if the applicable law allows, the party or parties who filed
the motion will be entitled to have the motion granted and final
judgment entered in his/their favor based upon the pleadings,
affidavits, and other documentation. If the motion is granted, there
will be no trial, and the case will be terminated in this Court.
(Footnote omitted.)
C. Defendant’s Motion to Dismiss
About two months after the above notice was sent, the defendant
government did file a motion to dismiss, arguing that Simpson failed to exhaust
available administrative remedies as to the Coleman prison staff claims. With
regard to the LRMC medical claims, the government’s motion argued that it could
not be held liable under the FTCA for acts of its medical contractors at LRMC. In
support of its motion, the government submitted evidence, including, inter alia,
various documents and a declaration indicating that Drs. Sherman, Kerina and
Serra were members of LRMC’s staff, not federal employees at Coleman prison,
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and provided medical services to the prison on a contract basis.
Simpson filed a response to the motion, which he styled “Plaintiff’s
Affidavit in Opposition to Defendant’s Motion to Dismiss Amended Complaint.”
Simpson’s response was sworn to and signed by Simpson. He also attached two
pages of his medical records to his response.
The district court granted the motion and dismissed Simpson’s amended
complaint with prejudice. As to the individual defendants, the district court
concluded that the proper defendant in FTCA claims is the United States and
Simpson’s FTCA claims against the individual defendants were improper and must
be dismissed. As to the liability of the defendant United States, the district court
determined that: (1) Simpson had failed to exhaust his administrative remedies
with regard to his Coleman prison staff claims; and (2) the United States could not
be held liable under the FTCA for the negligence of the doctors and nurses at
LRMC, a private hospital, because they were independent contractors. Although
ruling on a motion to dismiss, the district court relied on the government’s
evidence about the medical persons being independent contractors and noted that
Simpson had not alleged that the BOP supervised the doctors’ day-to-day activities
at the LRMC hospital. Simpson timely appealed.
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II. DISCUSSION
A. Individual Defendants
The United States is the only proper defendant in an FTCA action. See 28
U.S.C. § 2679(a), (b); see also Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078
(9 th Cir. 1998); Galvin v. OSHA, 860 F.2d 181, 183 (5 th Cir. 1988); Mars v.
Hanberry, 752 F.2d 254, 255 (6 th Cir. 1985). Therefore, the district court properly
dismissed Simpson’s FTCA claims against the individually named defendants.
B. Administrative Exhaustion
As to Defendant the United States, the district court properly dismissed
Simpson’s FTCA claims based on acts of the Coleman prison staff. Before a
plaintiff may file suit asserting an FTCA claim for negligence, the plaintiff must
have “first presented the claim to the appropriate Federal agency.” 28 U.S.C. §
2675(a). “Section 2675(a) is satisfied if the claimant (1) gave the appropriate
agency written notice of the tort claim to enable the agency to investigate; and (2)
stated a sum certain as to the value of the claim.” Orlando Helicopter Airways v.
United States, 75 F.3d 622, 625 (11 th Cir. 1996). Compliance with § 2675(a) is a
jurisdictional prerequisite to maintaining an FTCA action. Tidd v. United States,
786 F.2d 1565, 1567 (11 th Cir. 1986).
Simpson’s amended complaint against the United States for the acts of the
9
Coleman prison staff alleged that the staff: (1) failed to clear him medically before
permitting him to play flag football in prison, and (2) refused to fit him with a
prosthesis.3 However, Simpson’s administrative complaint filed with the BOP
described only the allegedly negligent medical treatment he received for his injured
knee. It did not mention the prison staff’s alleged failure to screen him prior to his
playing football. In fact, his administrative complaint did not name any Coleman
prison personnel when identifying those involved in his injury. It also did not
mention the prison staff’s alleged failure to provide him with a prosthesis. Even
under a liberal construction of Simpson’s administrative complaint, the district
court properly concluded that Simpson’s flag football and prosthesis claims fell
outside the scope of his administrative complaint and had not been exhausted.
C. Medical Claims
The FTCA provides a limited waiver of sovereign immunity for claims
against the United States for the negligence of “any employee of the Government .
. . .” 28 U.S.C. § 1346(b)(1). The United States is not liable under the FTCA for
the negligence of “any contractor with the United States.” 28 U.S.C. § 2671. The
distinction between an employee and an independent contractor turns on the power
of the United States “to control the detailed physical performance of the
3
It is unclear whether Simpson now has a prosthesis, but construing the pleadings
liberally and in a light most favorable to Simpson, we will assume he does not.
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contractor.” Logue v. United States, 412 U.S. 521, 527-28, 93 S. Ct. 2215, 2219
(1973). That is, the United States is not liable for a contractor’s negligence unless
it supervises the contractor’s “day-to-day operations . . . .” Id. at 529, 93 S. Ct. at
2220.4
In analyzing whether the medical doctors and nurses at LRMC were
employees or independent contractors, the district court relied on matters outside
the pleadings. The district court then dismissed Simpson’s claims under Rule
12(b)(1) for lack of subject matter jurisdiction.
However, the government’s motion to dismiss was a facial attack on subject
matter jurisdiction that was intertwined with the merits of Simpson’s claim.
Whether the LRMC medical staff are government employees or independent
contractors affects both subject matter jurisdiction under the FTCA and the merits
of the FTCA claim. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11 th Cir. 1990)
(concluding that whether an employee was acting within the scope of his
employment implicated both subject matter jurisdiction and the merits of the
FTCA claim); see also Tisdale v. United States, 62 F.3d 1367, 1370-71 (11th Cir.
1995) (affirming district court’s decision at summary judgment that the United
States was not liable for contractor’s actions forming the basis of the FTCA claim).
4
We review de novo dismissals for lack of subject matter jurisdiction under the FTCA.
Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001).
11
As the district court considered matters outside the pleadings, the district court
was required to comply with the notice requirements of Rule 56. See Fed. R. Civ.
P. 56(c); Massey v. Cong. Life Ins. Co., 116 F.3d 1414, 1417 (11 th Cir. 1997). The
district court did so here through the magistrate judge’s “Order to Answer and
Notice to Plaintiff.” Given the clarity and thoroughness of the notice given in the
magistrate judge’s order, coupled with the fact that Simpson responded to the
motion by producing a sworn statement and documents of his own, we conclude
that the notice given here was sufficient. See Coleman v. Smith, 828 F.2d 714,
715-17 (11 th Cir. 1987) (concluding that orders by magistrate judge prior to district
court’s ruling upon converted motion to dismiss adequately notified pro se litigant
under Rule 56(c)).
Even assuming the Rule 56(c) notice should have been sent again after the
motion to dismiss had been filed with supporting declarations and documents, any
error was harmless. See Denis v. Liberty Mut. Ins. Co., 791 F.2d 846, 850 (11 th
Cir. 1986) (applying harmless error analysis to failure to give Rule 56(c) notice).
Simpson has never alleged or argued that the government supervised the day-to-
day operations of the LRMC medical staff who treated him. Indeed, on appeal
Simpson contends that the government failed to supervise the LRMC medical staff
who treated him. Given that Simpson does not dispute that the LRMC medical
12
staff were independent contractors and that the government did not supervise them,
any failure to give Simpson adequate Rule 56(c) notice was harmless. See Byrne
v. Nezhat, 261 F.3d 1075, 1104 n.63 (11 th Cir. 2001) (concluding that district
court’s failure to give Rule 56(c) notice was harmless error where there was no
factual dispute).
For all these reasons, the district court properly concluded that the United
States was immune from suit under the FTCA for the acts of the doctors and nurses
at LRMC, a private hospital.
AFFIRMED.
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