Friedenberg v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

SAM FRIEDENBERG, personal Case No. 6:18-cv-00177-MK

representative of the estate of MARC OPINION AND ORDER

SANFORD; DEREK LARWICK, personal

representative of the estate of RICHARD

BATES; and LORRE SANFORD, an

individual,

Plaintiffs,

vs.

LANE COUNTY; LANE COUNTY

MENTAL HEALTH aka LANE COUNTY

BEHAVIORAL HEALTH; CARLA AYRES;

ERIK MORRIS; FRANCES FREUND; and

JULIE RIUTZEL,

Defendants.

AIKEN, District Judge:

Before the Court is United States Magistrate Judge Mustafa T. Kasubhai’s

Findings and Recommendation (“F&R”) (doc. 66), which recommends that this Court

remand the action to state court and deny defendant’s Motion to Join the United

States and Compel its Compliance (doc. 42). The matter is now before me pursuant

to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

Under the Federal Magistrates Act, the Court may “accept, reject, or modify,

in whole or in part, the findings or recommendations made by the magistrate.”

28 U.S.C. § 636(b)(1). Defendant filed timely objections, to which plaintiffs

responded. Docs. 70, 75. Accordingly, I must “make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which

objection is made.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Dawson v. Marshall,

561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121

(9th Cir. 2003) (en banc).

Defendants object to Judge Kasubhai’s findings that defendants Lane County

Mental Health (“LCMH”) and LCMH providers are not entitled to immunity under

42 U.S.C. § 233(a) because defendants’ alleged failure to notify the state court of

Michael Bryant’s failure to comply with his state-funded Jail Diversion Program does

not fall within “the performance of medical . . . or related functions.”

Under § 233(a), a federal Public Health Service (“PHS”) employee qualifies for

immunity under the Federal Torts Claims Act (“FTCA”) if a plaintiff alleges a claim

“for damage for personal injury, including death, resulting from: (a) “the performance

of medical . . . or related functions,” (b) “while acting within the scope of his office or

employment.” 42 U.S.C. § 233(a). Further, the Federally Supported Health Centers

Assistance Act (“FSHCAA”) extends this immunity to federally-funded community

health centers who apply for and receive “deemed” status. 42 U.S.C. § 233 (g)(1)(A).

Thus, the scope of immunity extended to “deemed” PHS employees under the

FSHCAA, § 233(g), is derived from the grant of immunity to true PHS employees

under § 233(a). The parties do not dispute that defendants are “deemed” PHS

employees. Nor do they dispute that the alleged negligent actions occurred within

the scope of defendants’ employment.

Defendants advance four objections to the F&R. First, defendants contend that

the F&R “misconstrues” § 233(a) as a waiver of sovereign immunity—as opposed to a

grant of absolute immunity—and thus improperly bases its reasoning on a narrow

construction of § 233(a). Def.’s Objections at 9 (doc. 70). Defendants argue that,

“[w]hen read correctly, . . . § 233(a) immunity extends to any claim—by patients or

nonpatients—for damage or injury arising out of the deemed PHS defendant’s

performance of medical or related functions.” Id. To support this broad reading of

the statute, defendants rely on the term “related functions” (which the statute does

not define), the exclusive nature of the remedy, and Hui v. Castaneda, 559 U.S. 799

(2010). In Hui, a detained immigrant brought a Bivens action against ICE-employed

medical providers (“true” PHS employees) for failure to provide him appropriate

medical care. Id. at 801–02. The United States Supreme Court held that because

the later-enacted § 233(g)—covering “deemed” PHS employees—makes no exception

for constitutional claims, Congress could not have intended that true PHS employees,

protected under the earlier-enacted § 233(a), be deprived of that protection. Id. at

801–02.

Contrary to defendants’ assertion, nothing in Hui suggests that FSHCAA

immunity be extended to “any claim,” including non-patient claims such as those

here. Further, the F&R makes no reference to a narrow construction of the statute.

The F&R squarely addresses the “related functions” precedent, F&R 7–9, and

defendants’ non-patient precedent, F&R 10–11, and explains why that precedent does

not support defendants’ position. Further, it appropriately cites Hui for the

proposition that “the FSHCAA broadened the FTCA to include . . . community health

centers . . . for actions arising out of the performance of medical or related functions

within the scope of their employment[.]” F&R at 5.

Second, defendants object that the F&R incorrectly reasons that the scope of

immunity hinges on whether a plaintiff is a patient when it should hinge on the

conduct of the “deemed” employee. Defendants rely on statutory text and two cases

to support its proposition that the scope of immunity includes non-patient claims.

The statutory text of § 233(g)(1)(B) and (C) together provide that “[t]he deeming of

any entity or . . . employee . . . shall apply with respect to services provided to [non-

patients]” if the Secretary determines that such non-patient services benefit the

entity’s patients, facilitates the provision of patient services, or are “otherwise

required under an employment contract . . . between the entity and an employee.” 42

U.S.C. § 233(g)(1)(B) &(C). Thus, employees who provide specific pre-approved

services to non-patients are shielded from liability for medical or related services

performed in the scope of employment. Here, LCMH provided no such pre-approved

or any other services to plaintiffs. Thus, defendants’ non-patient claims do not fall

within the statute’s provision for non-patient claims. The statute explicitly

contemplates two categories of claims—patient and non-patient—and extends

immunity for non-patient claims in specific and limited circumstances. Nothing in

the statute supports defendants’ position that the scope of immunity hinges instead

on employee conduct except that that conduct must be within the scope of

employment and performed in the provision of medical and related services.

Defendants’ reading of the statute would render the § 233(g)(1)(B) and (C) provisions

superfluous.

Defendants also rely on Hayes v. United States, No. 1:16-cv-00131 (APM), 2016

WL 3465950 (D.D.C June 13, 2016) and Z.B. ex rel. Next Friend v. Ammonoosuc Cmty.

Health Serv., Inc., No. Civ. 03-540(NH), 2004 WL 1571988 (D. Me. June 13, 2004). In

Hayes, the court denied United States’ 12(b)(6) motion to dismiss a claim against a

prison-based mental health provider who allegedly allowed a mentally ill inmate to

be placed in the general population where she attacked plaintiff. Hayes, 2016 WL

3465950, at *2. The F&R explains that Hayes is “inapposite” because, there, the

United States defended the case on the merits and the issue of § 233(a) immunity was

not raised. F&R at 10. Defendants argue that Hayes is “significant,” not inapposite,

because the United States defended against a non-patient claim and its position in

Hayes is thus “at odds with the position it advances here.” Def.’s Objections at 20

(doc. 70). I agree with Judge Kasubhai. Because Hayes does not address § 233(a)’s

scope of immunity, it cannot guide the Court on this matter.

In Z.B., a court held that § 233(a) immunity applied to a claim by a non-patient

child plaintiff who was injured by his father. Z.B., 2004 WL 1571988, at *7. The

plaintiff brought suit against a home health care provider who failed to report the

father’s suspected child abuse. Id. The provider made home visits to the child’s

mother, and even though the child was not the provider’s patient, the court

determined that “the [mother’s] home visiting services . . . were provided only

because of the existence of the [non-patient] plaintiff.” Id. at *3. I agree with Judge

Kasubhai that Z.B. is distinguishable from the case here because, unlike Z.B., the

plaintiffs here “were not the reason why Defendants provided services to their

patient, Bryant.”1 F&R at 11.

Defendants’ third objection is similar to the second. Defendants contend that

the F&R erroneously relies on the absence of a relationship between the parties to

determine that § 233(a) does not apply. But defendants then attempt to forge a

relationship between the parties sufficient to support the application of § 233(a).

Defendants argue that because mental health providers routinely assess their

patients’ risk of harm to unknown members of the general public and because this

risk assessment constitutes the provision of medical or related services, the § 233(a)

shield should apply to claims from unknown general public plaintiffs, such as those

here.

1 The F&R does not disagree with defendants that the reporting of suspected child abuse is a

medical or related function, but that is not the issue in this case. See F&R at 9, 11 (citing Teresa T. v.

Ragalia, 154 F. Supp. 2d 290, 300 (D. Conn. 2001) for the proposition that “a physician’s duty to report

suspected child abuse . . . is ‘inextricably woven’ into the performance of medical functions and

therefore covered under § 233(a)”).

Defendants rely on Jablonski v. United States, 712 F. 2d 391, 392 (9th Cir.

1983), a wrongful death suit brought under the FTCA. There, the decedent’s

daughter sued Veterans Administration Hospital psychiatrists for failing to warn the

plaintiff’s mother that she might be at risk from the patient, her live-in partner.

Jablonski, 712 F. 2d at 392–93. The court held that the action could be brought under

the FTCA and did not fall within the assault and battery or the discretionary

functions FTCA exceptions. Id. 42 U.S.C. § 233(a) was not at issue and was not

discussed by the Ninth Circuit because the defendant was a federal employee whose

alleged tortious actions fell within the broader FTCA scope. Because the court did

not address § 233(a), it is not relevant to this case and does not help defendants

establish a relationship between defendants and plaintiffs here, who received no

services of any kind from defendants.

Defendant’s fourth objection is not an objection to Judge Kasubhai’s findings

but a new argument—a policy argument for why the Court should find that § 233(a)

immunity applies here. Def.’s Objections at 31 (doc.70). Because defendants failed

to raise this argument before Judge Kasubhai, I decline to consider it now. See

Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir. 1988),

overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th

Cir. 1992) (en banc) (holding that a district court’s refusal to hear a new argument

not presented to the Magistrate Judge is “entirely appropriate” because “[w]e do not

believe that the Magistrates Act was intended to give litigants an opportunity to run

one version of their case past the magistrate, then another past the district court”).

Following the recommendation of the Rules Advisory Committee, I have

reviewed the remainder of the F&R for “clear error on the face of the record[.]” Fed.

R. Civ. P. 72 advisory committee’s note (1983) (citing Campbell v. United States

District Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United States v. Vonn, 535

U.S. 55, 64 n.6 (2002) (stating that, “[i]n the absence of a clear legislative mandate,

the Advisory Committee Notes provide a reliable source of insight into the meaning

of” a federal rule). No such error is apparent.

Therefore, I ADOPT the F&R (doc. 66) in its entirety. This case is

REMANDED to state court and Defendant’s Motion to Join the United States and

Compel its Compliance (doc. 42) is DENIED.

IT IS SO ORDERED.

Dated this _3_1_s_t_ day of December 2020.

_________/s_/_A_n_n__ A__ik_e_n_______

Ann Aiken

United States District Judge