Smith v. Redman

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAN SMITH,
Plaintiff,
v. No. 1:25-cv-01183-KG-SCY
THE UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Government’s Motion to Dismiss for Lack of
Jurisdiction, Doc. 7, Pro Se Plaintiff Dan Smith’s response,1 Doc. 18, and the Government’s reply,
Doc. 16. For the reasons below, the Court grants the Government’s motion and dismisses
Plaintiff’s complaint without prejudice.
I. Background
Plaintiff filed this tort action in New Mexico State Court. See Doc. 1-1. Plaintiff alleges
that Kay Redman, a physician at the Veterans Administration Medical Center in Farmington, New
Mexico, prescribed him “at least 6 drugs that are dangerous/deadly FDA Blackbox warning drugs,
placing [Plaintiff’s] life in danger.” Id. at 3. Plaintiff contends that these medications were
prescribed based on errors in a health information factsheet stating that Plaintiff has “a malignant
brain tumor.” Id.
Acting on behalf of Dr. Redman, the Government filed a notice of removal under 28 U.S.C.
§ 1442(a). Doc. 1. See § 1442(a) (authorizing the removal to federal district court of any civil
action commenced in a state court against any officer of the United States “in an official or
individual capacity, for or relating to any act under color of such office”). Upon certification by the
Government that Dr. Redman was acting within the scope of her employment at the time of the
1Plaintiff filed three separate, but identical responses to the Government’s motion to dismiss.
See Docs. 11, 13, 18. For clarity, the Court references the third, most recent response.
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alleged incident, the case was removed to this Court, and the Government was substituted as
Defendant in place of Dr. Redman. Doc. 5; Doc. 1-2; see also 28 U.S.C. § 2679(d)(1)–(2).
The Government moves to dismiss Plaintiff’s complaint. Doc. 7. It argues that because the
state court lacked subject matter jurisdiction over Plaintiff’s Federal Tort Claims Act (“FTCA”)
claim, this Court could not acquire jurisdiction from the state court upon removal under the
derivative jurisdiction doctrine. Id. at 4. Plaintiff contends that Congress has abrogated derivative
jurisdiction “in many removal contexts…meaning federal courts can exercise jurisdiction even if
state courts lacked it.” Doc. 18.
II. Analysis
This Court lacks jurisdiction over Plaintiff’s tort claim. Removal jurisdiction “is, in a
limited sense, a derivative jurisdiction.” Jiron v. Christus St. Vincent Reg’l Med. Ctr., 960 F. Supp.
2d. 1147, 1149 (D.N.M. 2012). Under the doctrine of derivative jurisdiction, “if the state court
lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon
removal, even though the federal court would have jurisdiction if the suit had originated there.”
Bowers v. J & M Disc. Towing, 472 F. Supp. 2d 1248, 1253 (D.N.M. 2006) (quoting Arizona v.
Manypenny, 451 U.S. 232, 242 (1981)). The doctrine applies to removals pursuant to the federal
officer removal statute, § 1442(a). Id. at 1265; but see 28 U.S.C. § 1441(f) (abrogating derivative
jurisdiction doctrine for removals under general removal statue, § 1441).
District courts have “exclusive jurisdiction” over actions brought under the FTCA, which
waives the sovereign immunity of the United States “with respect to certain injuries caused by
government employees acting within the scope of their employment.” Domme v. United States, 61
F.3d 787, 788 (10th Cir. 1995). With limited exceptions, the FTCA “provides the exclusive avenue
to bring a tort claim against the United States.” In re Franklin Sav. Corp., 385 F.3d 1279, 1287
(10th Cir. 2004). 28 U.S.C. § 1346(b)(1).
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Under these principles, the state court lacked jurisdiction over Plaintiff’s tort claim because
it is governed by the FTCA. Plaintiff does not contest that his claim is governed by the FTCA. See
Doc. 18. He alleges that Dr. Redman negligently prescribed him six dangerous “FDA Blackbox”
drugs based on erroneous medical information. Doc. 1-1 at 3. The Government certifies that Dr.
Redman was acting within the scope of her employment “as a medical doctor for the Veterans
Administration Medical Center” at the time of the incident. Doc. 1-2. Given these facts, Plaintiff’s
claim falls within this Court’s exclusive jurisdiction.
The state court lacks jurisdiction based on the derivative jurisdiction doctrine, this Court is
also without jurisdiction. For that reason, the Court dismisses Plaintiff’s complaint without
prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)
(“[D]ismissals for lack of jurisdiction should be without prejudice because the court, having
determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the
merits of the underlying claims.”).
IV. Conclusion
The Court grants the Government’s Motion to Dismiss for Lack of Jurisdiction, Doc. 7.
Plaintiff’s complaint is dismissed without prejudice.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its authenticity,
please refer to the Digital File Stamp on the
NEF (Notice of Electronic Filing)
accompanying this document. Electronically
filed documents can be found on the Court’s
PACER public access system.
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