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Gordon v. Lee

United States District Court, S.D. Mississippi, Northern Division

January 11, 2019

KEITH A. GORDON PLAINTIFF
v.
CENEDRA D. LEE, ET AL. DEFENDANTS

          ORDER

          DANIEL P. JORDAN, JUDGE.

         This matter is before the Court on the Motion to Dismiss [89] and Motion for Extension of Time [97] filed by Defendant the United States of America (the “Government”). For the reasons that follow, the Court denies the Government's motion to dismiss without prejudice and denies its motion for additional time as moot.

         I. Background

         Gordon's case stems from complaints about the medical treatment he received for a hernia. After visiting other doctors, Gordon came to Dr. Meseret Teferra, a doctor at Family Health Care Clinic (“FHCC”), complaining about pain. Dr. Teferra ordered ultrasounds though Gordon told the doctor he needed a CT scan instead because an earlier ultrasound failed to detect the problem. Some months later, Gordon received a CT scan; the hernia was detected; and Gordon underwent emergency surgery. See Compl. [1] at 5.

         Based on these and other alleged facts, Gordon alleged that Dr. Teferra and FHCC committed malpractice and violated his civil rights. He therefore asserted pro se claims against those defendants under 42 U.S.C. § 1983 and the Federal Tort Claims Act (“FTCA”). He also asserted state-law claims against other defendants who remain in this case.

         On February 27, 2018, the Government moved to substitute itself for Dr. Teferra and FHCC under the Federally Supported Health Centers Assistance Act of 1992, see 42 U.S.C.§ 233. Gordon did not oppose the motion at that time-though he now does-and the Government was substituted on March 29, 2018. See Mar. 29, 2018 Text-Only Order.

         The Government now moves to dismiss Gordon's claims against it for four reasons: (1) Gordon failed to properly serve the United States Attorney and Attorney General; (2) he did not exhaust his administrative remedies under the FTCA; (3) he failed to state a claim for relief under Mississippi law; and (4) his constitutional claims are barred. See Def.'s Mem. [90]. Gordon responded [95] and filed a separate memorandum of law [96]. The Government then sought a short extension before filing a three-page reply [97]. The reply did not address many of Gordon's substantive arguments.

         Some of those arguments seem frivolous, but others may not be. Plus, there are jurisdictional and procedural issues the parties did not address. While it is not the Court's intent to help either side, it does have an independent duty to ensure jurisdiction and needs substantive input from the parties. Finally, there are potentially dispositive motions that neither side has addressed, yet the Court cannot rule on such issues without giving both sides notice and an opportunity to be heard. See John Deere Co. v. Am. Nat.'l Bank, Stafford, 809 F.2d 1190, 1192 (5th Cir. 1987).

         This leaves the Court with three options: (1) deny the motion without prejudice; (2) research the issues sua sponte; or (3) allow the Government to file supplemental briefing. While the third option has some appeal, it would be unfair to Gordon to give the Government a second bite at the apple without allowing Gordon an opportunity to respond. And if he responded, then the Government would be entitled as the movant to the final word.

         Accordingly, it is better to deny the motion without prejudice and start over with some direction from the Court.

         II. Instructions Upon Refiling

         In addition to issues the parties themselves may raise during this process, the Court has questions they should address related to the Government's four grounds for dismissal.

         A. Ineffective Service of Process

         The parties seem to agree that Gordon served Dr. Teferra and FHCC rather than the United States Attorney and the Attorney General. But Gordon offers three responses: (1) service was proper; (2) even if improper, Defendants waived this defense; and (3) the Government was improperly substituted in violation of 28 U.S.C. § 2680(a) and (h) and cannot therefore assert this defense. Pl.'s Mem. [96] at 3-4. The ...


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