Churuk v. Canarozzi et al

Filing 50

ORDER: For the reasons stated in the attached memorandum, Defendant Escobar's Motion to Dismiss (ECF No. 42 ) is GRANTED. It is so ordered. Signed by Judge Vernon D. Oliver on 9/25/2024.(Lapsia, T)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
--------------------------------------------------------------YAROSLAV CHURUK,
Plaintiff,
-againstROBERT T. GREENE and WERNER ESCOBAR,
Defendants.
--------------------------------------------------------------VERNON D. OLIVER, United States District Judge:

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ORDER GRANTING
DEFENDANT
ESCOBAR’S MOTION
TO DISMISS
22-CV-1395 (VDO)

Plaintiff Yaroslav Churuk, a sentenced inmate incarcerated at the Federal Correctional
Institution in Danbury, Connecticut (“FCI Danbury”), filed this action pro se and in forma
pauperis under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). The remaining claims are for deliberate indifference to medical needs against Defendants
Escobar and Greene. Pending is Defendant Escobar’s motion to dismiss the amended complaint
under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the
following reasons, Defendant Escobar’s motion to dismiss the Amended Complaint is granted.
I.

BACKGROUND
The following facts are relevant to the claim against Defendant Escobar (“Defendant”).

In November 2022, Plaintiff began experiencing severe pain, “as if his internal organs were on
fire.” (ECF No. 15 ¶ 37.) On November 7 or 8, 2022, Defendant called Plaintiff into his office
and yelled at Plaintiff because a lieutenant called him at 2:00 a.m. (Id. ¶ 39.) Defendant told
Plaintiff that Defendant did not care if Plaintiff died. (Id. ¶ 40.) Defendant prescribed Plaintiff a
constipation medication even though Plaintiff had complained of chest and kidney pain, not
bowel issues. (Id. ¶¶ 42-43.)

Defendant told Plaintiff, “I saw your criminal case. You punish people. Now I will punish
you. Now you have a huge problem.” (Id. ¶ 44.) Defendant changed Plaintiff’s prescription for
Gabapentin, which he had taken to address back pain, to Lyrica. (Id. ¶¶ 45-46.) Plaintiff
submitted many requests to Defendant stating that Lyrica did not work and filed administrative
remedies but was ignored. (Id. ¶¶ 47-48.)
II.

LEGAL STANDARD
“Dismissal of a complaint for lack of subject matter jurisdiction is proper ‘when the

district court lacks the statutory or constitutional power to adjudicate it.’” Thompson v. United
States, 795 F. App’x 15, 17 (2d Cir. 2019) (quoting Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000)). To survive a Rule 12(b)(1) motion to dismiss, the plaintiff “has the burden
of proving by a preponderance of the evidence that [subject matter jurisdiction] exists.”
McArthur v. Nail Plus, No. 3:21-cv-961(SRU), 2022 WL 1605538, at *1 (D. Conn. May 20,
2022) (quoting Makarova, 201 F.3d at 113). When considering a motion to dismiss under Rule
12(b)(1), the Court is not limited to the pleadings; it “may instead consider all evidentiary
material bearing on whether it has subject matter jurisdiction.” Kistler v. Stanley Black &
Decker, Inc., No. 3:22-cv-966(SRU), 2024 WL 3292543, at *5 (D. Conn. July 3, 2024) (citation
and internal quotation marks omitted); see also Luckett v. Burre, 290 F.3d 493, 496-97 (2d Cir.
2002) (court may refer to evidence outside the pleading when resolving questions of jurisdiction
under Rule 12(b)(1)). Although the court must accept as true all material facts alleged in the
complaint, “jurisdiction must be shown affirmatively, and that showing is not made by drawing
from the pleading inferences favorable to the party asserting it.” Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998).

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III.

DISCUSSION
Defendant argues that the Court lacks subject matter jurisdiction over the claims against

him because he is immune from suit under Bivens.
Under the Public Health Service Act of 1944 (“PHSA”), the remedies provided under the
Federal Tort Claims Act (“FTCA”) are the exclusive means for resolving tort complaints against
employees of the Public Health Service who are acting within the scope of their employment.
See 42 U.S.C. § 233(a); Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) (42 U.S.C. § 233(a)
“makes the [FTCA] the exclusive remedy for specified actions against members of the Public
Health Service”).
Defendant submits his declaration stating that he is Lieutenant in the United States Public
Health Service, has held that status at all times relevant to the claims against him, and works as
a Family Nurse Practitioner at FCI Danbury. (ECF No. 42 at 11 ¶¶ 1, 3.) Thus, Plaintiff’s
exclusive remedy against Defendant is an FTCA claim.
Plaintiff provides no evidence to contradict Defendant’s statements and demonstrate
subject matter jurisdiction over the claim. In opposition to the motion, Plaintiff states only that
Defendant “can’t escape liability” because “Bivens is a constitutionally created remedy, and a
Congressional statute cannot override a constitutional remedy.” (Doc. No. 47 at 4.) Plaintiff is
mistaken.
The Supreme Court has held that, even though Bivens was decided after section 233(a)
was enacted, Bivens does not override the immunity from suit afforded to PHS employees. Hui
v. Casteneda, 559 U.S. 800, 806-07 (2010) (citing United States v. Stanley, 483 U.S. 669, 684
(1987) (“[T]he availability of a damages action under the Constitution for particular injuries ...
is a question logically distinct from immunity to such an action on the part of particular
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defendants”)). Thus, even though a Bivens remedy is generally available on claims for deliberate
indifference to serious medical needs by federal inmates, “an action under Bivens will be
defeated if the defendant is immune from suit.” Id. at 807.
Plaintiff’s claims against Defendant arise from Defendant’s provision of medical care.
Thus, Defendant was acting within the scope of his employment and is “entitled to the
protections of the FTCA ... including absolute immunity ... for actions arising out of the
performance of medical or related functions within the scope of [his] employment.” Agyin v.
Razmzan, 986 F.3d 168, 172 (2d Cir. 2021) (quoting Hui, 559 U.S. at 806 (internal quotation
marks omitted)). This Bivens claim against Defendant is dismissed for lack of subject matter
jurisdiction.
IV.

CONCLUSION
Defendant Escobar’s Motion to Dismiss (ECF No. 42) is GRANTED.

SO ORDERED.
Hartford, Connecticut
September 25, 2024
/s/Vernon D. Oliver
VERNON D. OLIVER
United States District Judge

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