United States District Court, S.D. Mississippi, Northern Division
KEITH A. GORDON PLAINTIFF
CENEDRA D. LEE, ET AL. DEFENDANTS
P. JORDAN, JUDGE.
matter is before the Court on the Motion to Dismiss  and
Motion for Extension of Time  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.
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.  at 5.
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.
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.
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. . Gordon responded  and filed a
separate memorandum of law . The Government then sought a
short extension before filing a three-page reply . The
reply did not address many of Gordon's substantive
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).
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.
it is better to deny the motion without prejudice and start
over with some direction from the Court.
Instructions Upon Refiling
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.
Ineffective Service of Process
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.  at 3-4.