Date: 10-18-2024

Case Style:

James Morrison v. United States et al.

Case Number: 23-CV-34

Judge: Donald W. Molloy

Court: United States District Court for the District of Montana (Yellowstone County)

Plaintiff's Attorney:

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Defendant's Attorney: United States District Attorney in Billings

Description:

Billings, Montana lawyer represented the Plaintiff who sued on medical malpractice theory.

Morrison's claims relate to medical treatment he did or did not receive in November, 2021 and associated events. Morrison sought treatment at the Indian Health Services. (Doc 5 at 2.) He was then transferred to Billings Clinic, who then treated him improperly. (Doc. 5 at 3.) He was then retaliated against by various tribal personal for threatening legal action. (Doc. 5 at 3.) He asserts claims under Bivens v. United States, and 42 U.S.C. § 1395dd, the Emergency Medical Treatment and Labor Act. He also asserts supplemental jurisdiction state law claims of negligence and medical malpractice. (Doc. 5 at 5.)

The United States has moved to dismiss the Amended Complaint, as to it[1], under Fed.R.Civ.P. 12(b)(1), asserting that this Court has no subject matter jurisdiction over Morrison's claims. (Doc. 17 at 3.) The United States makes three arguments. First, Bivens claims cannot be pursued against the United States for reasons of sovereign immunity. (Doc. 17 at 5 - 6.) Second, Morrison has failed to exhaust his administrative remedies, as required by the Federal Tort Claims Act. (Doc. 17 at 6 - 7.) And finally, the United States claims that Morrison's tort claims are barred by the statute of limitations. (Doc. 17 at 7 - 9.)

In response, Morrison asserts that the United States is attempting to circumvent the alleged import of Judge Watters' previous screening order in this matter, and “take a second and third bite of the apple with a different judge.” (Doc. 18 at 3.) In this argument, Morrison contends that Judge Watters' statement, in a companion case, that the Federal Torts Claim Act was the proper venue for Morrison's tort claims against the United States had somehow resolved the issue of subject matter jurisdiction. (Doc. 18 at 2 (referring to Order, Doc. 7, Morrison v. Billings Clinic, et al.,
CV 23-109-BLG-DWM.)) Morrison further asserts, relying on Fed.R.Civ.P. 8(c) that Defendants' failure to assert the defense of jurisdiction in their responsive pleading waived the issue. (Doc. 18 at 1.)

Morrison then contends that the Indian Health Service is liable under 42 U.S.C. § 1395dd, the Emergency Medical Treatment and Labor Act, because that act waives sovereign immunity. (Doc. 18 at 4.)

Third, Morrison asserts that Billings Clinic, Inc. is subject to default for failing to answer the Amended Complaint. (Doc. 18 at 4.)

Fourth, Morrison reiterates the grounds for his First Amendment retaliation claims against Northern Cheyenne Health Services provider Kala McKinney and “malicious prosecution and arrest” against criminal investigator John Grinsell. (Doc. 18 at 5.)

Finally, Morrison contends that his claims are not barred by the statute of limitations. He asserts that he originally filed this claim on September 21,2023. (Doc. 18 at 6-7.)...

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Morrison v. United States, CV 24-34-BLG-DWM (D. Mont. Oct 18, 2024)

Outcome: Accordingly, IT IS ORDERED that:

1. Defendant U.S.'s motion to dismiss is GRANTED. (Doc. 16.) Morrison's Bivens and Emergency Medical Treatment and Labor Act claims against federal defendants are dismissed with prejudice.

2. Morrison's potential tort claim against any individual federal defendant under the Federal Tort Claims Act is dismissed without prejudice.

3. If Morrison intends to pursue entry of default against any defendant for failure to appear, he must proceed pursuant to Fed.R.Civ.P. 55.

3. At all times, Morrison must promptly advise the Court of any change of address. Failure to do so may result in dismissal.

Plaintiff's Experts:

Defendant's Experts:

Comments: