Irene Taylor, Pennsauken, New Jersey, Pro Se Plaintiff.
Paul J. Fishman, Esquire, United States Attorney, Elizabeth A. Pascal, Esquire, Assistant United States Attorney, Camden, New Jersey, Attorneys for Defendant United States of America.
NOEL L. HILLMAN, District Judge.
This matter comes before the Court by way of Defendant's motion [Doc. No. 3] to vacate the entry of default against Terri Gilliam, D.D.S., pursuant to Federal Rules of Civil Procedure 55(c) and 60(b) for improper service. Defendant also moves to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) based on her failure to exhaust her administrative remedies under the Federal Tort Claims Act ("FTCA"). Plaintiff has not filed opposition to Defendant's motion and the time within which to do so has now expired. The Court has considered Defendant's submissions, and decides this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendant's motion will be granted.
This suit arises from injuries Plaintiff Irene Taylor allegedly sustained to her teeth and mouth as a result of dental care provided by Terri Gilliam, D.D.S., an employee of CAMcare Health Corporation ("CAMcare"). (Compl. [Doc. No. 1-1], 1.) Plaintiff originally filed this action against Gilliam on December 24, 2012 in the Superior Court of New Jersey, Law Division, Special Civil Part for Camden County seeking $15, 000 in damages and $15, 000 for the costs of bringing the suit. ( Id. 1-2.) On February 11, 2013, the Clerk of the Special Part entered a default against Gilliam for failure to respond to the complaint in a timely manner. (Ex. 1 to Def.'s Br. in Supp. of Mot. to Vacate and Dismiss [Doc. No. 3-2], 3.) The matter was subsequently removed to this Court on May 8, 2013 by the United States of America ("the United States") pursuant to 28 U.S.C. § 2679(d) and 42 U.S.C. § 233(c) on the basis that Plaintiff's complaint asserts claims under the FTCA since Gilliam was, by statute, a federal employee.
The FTCA constitutes a limited waiver of the United States' sovereign immunity for the negligent acts of federal employees committed while acting within the scope of their federal employment. See 28 U.S.C. § 2674. The FTCA specifically provides that the United States shall be liable, to the same extent as a private individual, "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act of omission of any employee of the Government while acting within the scope of his office or employment[.]" 28 U.S.C. § 1346(b)(1). In these cases, "the federal employee is immune from suit and the plaintiff's exclusive right of action lies against the United States.... The FTCA protects federal employees by paying judgments out of the United States Treasury." Dais v. United States, No. 2:11-cv-03986, 2012 WL 5200043, at *1 (Oct. 22, 2012) (citing 28 U.S.C. § 2679(b)).
Pursuant to the Public Health Service Act, "private, nongovernmental health centers that supply medical care to underserved populations may apply for federal grant moneys." Dais, 2012 WL 5200043, at *1 (citing 42 U.S.C. § 254b(e)). The Public Health Service Act was subsequently amended by the Federally Supported Health Centers Assistance Act ("FSHCAA") in order to permit "these private health centers to apply to the Department of Health and Human Services... to be deemed a federal employee' of the Public Health Service." Dais, 2012 WL 5200043, at *1 (citations omitted). Once a health center is deemed "to be a federal employee... that entity is immune from suit and receives protection under the FTCA." Dais, 2012 WL 5200043, at *1 (citing 42 U.S.C. § 233(a)).
The FSHCAA also provides that the employees of eligible health centers may also be deemed to be federal employees qualified for protection under the FTCA. 42 U.S.C. § 233(g)(1)(A) ("... any officer, governing board member, or employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner..., shall be deemed to be an employee of the Public Health Service[.]"). The FSHCAA thus "extends FTCA [medical malpractice] coverage to employees of the Public Health Service." Lacey-Echols ex rel. Lacey v. Murphy, No. 02-2281, 2003 WL 23571269, at *4 (D.N.J. Dec. 17, 2003).
As set forth in the Notice of Removal and the documents filed in support thereof, CAMcare is a federally supported health center, and CAMcare and Gilliam have been deemed Public Health Service employees of the United States pursuant to 42 U.S.C. § 233(g). (See generally Notice of Deeming Action - Federal Tort Claims Act Authorization for CAMcare Health Corporation, Ex. 1 to Declaration of Meredith Torres [Doc. No. 1-2]; Declaration of Meredith Torres,  Ex. B to Notice of Removal [Doc. No. 1-2] ¶¶ 5-6.) The United States has also certified that Gilliam was acting within the scope of her employment as an employee of the United States at the time of the conduct alleged in the complaint. Thus, under the FTCA, Plaintiff's claim must be pursued as an action against the United States. 28 U.S.C. § 1346(b)(1); see also Lackro v. Kao , 748 F.Supp.2d 445, 449 (E.D. Pa. 2010) ("The FTCA permits plaintiffs to recover against the United States in medical malpractice actions, but it prohibits suits against the employee of the United States whose acts or omissions may have led to the suit.")
Accordingly, upon removal to this Court, the United States was substituted as the proper Defendant in place of Gilliam pursuant to 28 U.S.C. § 2679(d)(2). The United States now moves to vacate the default previously entered by the state court pursuant to Federal Rules of Civil Procedure 55(c) and 60(b) and further moves to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
"District courts have exclusive jurisdiction over suits against the United States brought under the FTCA." Santos ex rel. Beato v. United States , 559 F.3d 189, 193 (3d Cir. 2009) (citing 28 U.S.C. § 1346(b)). Accordingly, the Court exercises jurisdiction ...