United States District Court, D. Minnesota
LUIS M. BATISTA, Plaintiff,
UNITED STATES OF AMERICA and NOEL JENSEN, Defendants.
M. Batista, pro se.
Friedrich A. P. Siekert, UNITED STATES ATTORNEY'S OFFICE,
for defendant United States of America.
Christopher A. Wills, Kevin F. Gray, and Michelle Draewell,
RAJKOWSKI HANSMEIER LTD; and Stacy M. Lundeen, BRADSHAW &
BRYANT, PLLC, for defendant Noel Jensen.
Patrick J. Schiltz United States District Judge
Luis M. Batista brought this action against the United States
and various other parties under the Federal Tort Claims Act
(“FTCA”). 28 U.S.C. §§ 1346(b) &
2671 et seq. On July 26, 2017, the Court dismissed all of
Batista's claims against the United States except those
arising out of alleged medical malpractice that occurred
while Batista was incarcerated at the Federal Correctional
Institution, Elkton, in Lisbon, Ohio (“FCI
Elkton”). ECF No. 113. After additional briefing, the
government moved to dismiss these Ohio-based
medical-malpractice claims. ECF No. 131.
matter is before the Court on the government's objection
to the April 13, 2018, Report and Recommendation
(“R&R”) of Magistrate Judge David Schultz.
Judge Schultz recommends denying the government's motion
to dismiss. ECF No. 155. The Court has conducted a de novo
review. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
government raised three arguments in its motion to dismiss.
First, the government argued that Batista did not exhaust his
administrative remedies, as required by the FTCA. 28 U.S.C.
§ 2675(a). Judge Schultz disagreed, finding that
“[Batista] filed his administrative claim no earlier
than April 26, 2015, approximately 14 months after arriving
at Elkton” and that his claim “clearly includes
allegations of malpractice that occurred during the 14 months
between Batista's arrival in Ohio and the date he filed
his administrative complaint, which was subsequently
denied.” ECF No. 155 at 6.
government objects to Judge Schultz's recommendation that
its motion be denied “to the extent any Ohio-based
claims are based on any acts or omissions that occurred on
and after April 26, 2015-the date Batista signed and
submitted [his administrative claim].” ECF No. 157 at
8. The Court doubts that Judge Schultz and the government
actually disagree on this point, but the R&R is
ambiguous, and thus the Court will sustain the
government's objection and clarify that any claim of
Batista that is based on any act or omission occurring on or
after April 26, 2015, is dismissed for failure to exhaust
administrative remedies. This dismissal includes, for
example, any claim arising out of the evaluation conducted by
an orthopedic specialist at FCI Elkton on or about May 29,
2015. See ECF No. 39 ¶¶ 16-17 (alleging
that an orthopedic specialist declined to recommend a hip
replacement, but instead recommended a hip injection that BOP
staff later denied).
the government argued that Batista's Ohio-based claims
should be dismissed because he failed to comply with Ohio
Rule of Civil Procedure 10(D)(2), which requires that
complaints alleging medical malpractice include an
“affidavit of merit” from an expert witness at
the time of filing. After reviewing cases decided after
Fletcher v. University Hospitals of Cleveland, 897
N.E.2d 147 (Ohio 2008), and Daniel v. United States,
716 F.Supp.2d 694 (N.D. Ohio 2010), the government agrees
with Judge Schultz's recommendation that its motion be
denied on these grounds. The government's concession is
well taken, as Rule 10(D)(2) is a procedural (not a
substantive) requirement that directly conflicts with the
Federal Rules of Civil Procedure (which do not impose
heightened pleading standards in medical-malpractice
actions). See ECF No. 157 at 11; see also Larca
v. United States, 302 F.R.D. 148, 159-60 (N.D. Ohio
2014) (“[Federal Rules of Civil Procedure] 8 and 9
displace [Ohio Rule of Civil Procedure] 10(D)(2), and no
affidavit of merit is required.”).
the government appears to request clarification that Batista
“must still produce expert testimony to establish his
prima facie case” and that “the recommendation
was without prejudice to the Government filing its answer,
conducting discovery, and litigating the case on the
merits.” ECF No. 157 at 11. The government states the
obvious, and nothing in the R&R is to the contrary.
See, e.g., White v. Leimbach, 959 N.E.2d
1033, 1039-40 (Ohio 2011) (“In general, when a medical
claim questions the professional skill and judgment of a
physician, expert testimony is required to prove the relevant
standard of conduct.”).
the government argued that the Court lacks jurisdiction to
award injunctive relief under the FTCA. Judge Schultz
agreed-but pointed out that Batista also seeks money damages.
ECF No. 155 at 12.
on the foregoing, and on all of the files, records, and
proceedings herein, the Court SUSTAINS IN PART AND OVERRULES
IN PART the government's objection [ECF No. 157] and
ADOPTS the R&R [ECF No. 155], except as described in this
order. IT IS HEREBY ORDERED THAT the government's motion
to dismiss [ECF No. 131] is GRANTED IN PART AND DENIED IN
PART as follows:
government's motion to dismiss plaintiff's Ohio-based
medical malpractice claims is GRANTED insofar as those claims
(a) arise from acts or omissions occurring on or after April
26, 2015, or (b) seek injunctive relief. ...