430 F2d 1331 Bates v. J Carlow

430 F.2d 1331

John R. BATES, Plaintiff-Appellant,
Thomas J. CARLOW, Defendant-Appellee.

No. 593-69.

United States Court of Appeals, Tenth Circuit.

August 24, 1970.

Donald F. Medsker, of Kripke, Hoffman, Carrigan & Dufty, P. C., Denver, Colo., for plaintiff-appellant.

James L. Treece, U. S. Atty., Denver, Colo., for defendant-appellee.

Before LEWIS, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.


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This action, originally filed in the state courts of Colorado, presents a claim by plaintiff Bates for personal injuries suffered through the claimed negligence of Carlow, a physician who at the time of the alleged negligence was commissioned in the Public Health Service, Department of Health, Education, and Welfare. It is undisputed that the acts of Carlow which premise the contention of malpractice were performed during the scope of Carlow's employment by an agency of the United States. The case was properly removed to federal court, Willingham v. Morgan, 395 U. S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396. The court below then dismissed the action on the ground that Carlow was immune from personal liability. The dismissal was specifically without prejudice to any claim Bates might have under the Federal Tort Claims Act. Both the judgment of dismissal and its qualifications were manifestly correct. Morgan v. Willingham, 10 Cir., 424 F.2d 200. The district court did not hold, as appellant would appear to argue, that the alleged acts of Carlow were of a discretionary nature as that term creates an exception to governmental liability under § 2680 of the Act.