Wright v. United States of America
Filing
60
ORDER denying 56 Motion for Summary Judgment; denying 57 Motion to Dismiss for Lack of Jurisdiction. For the reasons set forth herein, the Court denies defendant's motion to dismiss for a lack of subject matter jurisdiction and motion for summary judgment. The Court also denies plaintiff's motion for summary judgment. Ordered by Judge Joseph F. Bianco on 2/11/2016. (Dolecki, Lauren)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-1379 (JFB)(SIL)
_____________________
ALEXIS L. WRIGHT, AS THE ADMINISTRATOR OF THE ESTATE OF JAMES A. WRIGHT,
Plaintiff,
VERSUS
UNITED STATES OF AMERICA,
Defendant.
___________________
MEMORANDUM AND ORDER
February 11, 2016
___________________
the bracelet, resulted in “months of
hospitalization, debridement surgeries to
remove tissue, ligaments and bone, skin
grafting, intravenous antibiotics and
eventually a below the knee amputation.”
(Pl.’s Opp’n, at 1-2.)
JOSEPH F. BIANCO, District Judge:
On March 15, 2013, plaintiff decedent
James Wright (“decedent” or “Wright”)
filed this action, raising claims based in
negligence against the United States of
America under 28 U.S.C. § 1346(b).
Specifically, the complaint alleged that the
United States is liable under the Federal Tort
Claims Act for injury arising from an ankle
bracelet that was negligently placed and
maintained on Wright’s right leg and/or
ankle from April to October 2010. After
plaintiff’s death, the Court permitted the
substitution of Alexis Wright, as the
administrator of the estate of James A.
Wright, as the plaintiff. Plaintiff asserts that
the negligent placement and maintenance of
the ankle bracelet on the right ankle,
notwithstanding Wright’s extensive medical
history (including insulin dependent
diabetes, peripheral neuropathy, and a prior
partial amputation of the left foot) and
alleged complaints about irritation caused by
Defendant United States of America
(“defendant” or “the Government”) now
moves to dismiss for a lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, and for
summary judgment, pursuant to Rule 56(c)
of the Federal Rules of Civil Procedure.
Plaintiff also moves for summary judgment
under Rule 56(c) of the Federal Rules of
Civil Procedure. For the reasons stated
below, both motions are denied.
In particular, defendant argues that
absolute immunity exists for any alleged
negligence
in
the
placement
and
maintenance of an ankle bracelet on a
probationer because the probation officer
1
was implementing Judge Feuerstein’s
directive reflected in the judgment of
conviction. The Court disagrees. Judge
Feuerstein simply ordered home detention
with electronic monitoring; she gave no
direction regarding the manner of such
monitoring. Thus, any negligence in the
application or maintenance of the ankle
bracelet by the Probation Department is not
protected by absolute immunity. Similarly,
any such negligence also would not be
subject to immunity under the discretionary
function exception to the FTCA. The
decision about where, or how tight, to place
an ankle bracelet on a probationer is not
grounded in considerations of public policy;
rather, the allegations in this case relate to
negligence that, if proven, would be
unrelated to any plausible policy objective.
The allegations in this case are akin to
allegations that a police officer, in
effectuating an arrest pursuant to a valid
warrant, placed handcuffs on an arrestee too
tight and refused to loosen them despite
being told that the handcuffs were hurting
the arrestee’s wrists. It is well-settled that a
law enforcement officer would not be
protected by immunity or the discretionary
function exception to the FTCA simply
because he or she was effectuating a court
order in placing the handcuffs on the
arrestee, if the officer was aware of the
excessive and unnecessary tightness of the
handcuffs and failed to address it. Similarly,
in the instant case, if plaintiff can prove that
the probation officer was aware of the injury
being produced by the ankle bracelet and
negligently tightened it or failed to take
reasonable action to allow the probationer to
address the injury, neither absolute
immunity nor the discretionary function
exception to the FTCA would insulate the
government from liability for such
negligence.
issues of material fact that preclude
summary judgment in either party’s favor.
Plaintiff points to evidence, although
disputed by defendant, that Wright began to
experience a rash, irritation, and redness on
his right ankle in August 2010 and
complained to Danielo “a couple of times”
regarding this condition prior the
circumstances that led to hospitalization for
infection to his ankle in October 2010, and
that the probation officer never did anything
to address such complaints. In addition,
plaintiff points to evidence that, when
Wright showed a cut/infection on his ankle
on October 12, 2010 and the probation
officer recommended that Wright see a
doctor, the probation officer moved the
bracelet away from the cut and tightened it
so that it would not slide down, rather than
removing it or seeking some modification of
the conditions of monitoring from the court.
The bracelet remained on Wright’s ankle for
another four days before it was cut off in the
hospital emergency room during treatment
of the ankle. Construing the evidence most
favorably to plaintiff, there are disputed
issues of fact as to whether the probation
officer was negligent in the placement and
maintenance of the ankle bracelet that
caused injury to Wright. Those same issues
of disputed fact also preclude summary
judgment in plaintiff’s favor. Specifically,
the probation officer testified that: (1) he
was not aware of any problems with the
ankle bracelet from Wright or any other
source, prior to October 12, 2010; (2) when
Wright showed him the cut on his ankle on
October 12, 2010, the probation officer told
him to see a doctor, gave him permission to
leave his home to do so, and moved the
bracelet away from the cut so that it would
not cause irritation; and (3) neither Wright
nor any doctor advised the probation officer
after the doctor treated the cut on October
12, 2010, that the electronic bracelet needed
to be removed for medical reasons.
On the ultimate question of negligence,
the Court concludes that there are disputed
2
Therefore, although plaintiff has submitted
the report of a corrections expert (who
opines that the probation officer was
negligent in his handling of Wright’s ankle
bracelet) and a medical doctor (who opines
that the failure of the probation officer to
take action on October 12, 2010 caused a
worsening of Wright’s condition), a rational
jury could conclude, if defendant’s evidence
is credited and all reasonable inferences are
drawn in defendant’s favor, that the
probation officer did not act negligently at
any time, and did not cause any injury to
plaintiff. Finally, even if the probation
officer is proven to have acted negligently,
there are also disputed issues of comparative
negligence that must be resolved by a jury.
Accordingly, the cross-motions for summary
judgment are denied.
are undisputed. Upon consideration of the
motions for summary judgment, the Court
shall construe the facts in the light most
favorable to the non-moving party. See
Capobianco v. New York, 422 F.3d 47, 50
n.1 (2d Cir. 2001).
In 2004, the Suffolk County District
Attorney’s
Office
commenced
an
investigation into James Wright, who was
employed as the assistant superintendent for
operations, along with other members of the
William Floyd School District, relating to
allegations that they siphoned district money
for personal benefit and did not declare this
money on their income tax returns. (Pl.’s
56.1 ¶ 29.) On August 11, 2008, the United
States commenced criminal proceedings
against James Wright by an Information
charging that Wright filed a false federal tax
return for the year 2002. (Def.’s 56.1 ¶ 6.)
On June 20, 2008, Wright signed a plea
agreement in the federal criminal case and
pled guilty to tax evasion, in violation of 26
U.S.C. § 7201. (Def.’s 56.1 ¶ 8; Pl’s 56.1 ¶
29.) The same day, Wright appeared before
Judge Feuerstein and pled guilty, and Judge
Feurstein accepted his plea. (Def.’s 56.1 ¶
8.) Wright was also charged and pled guilty
in New York State Court to Grand Larceny
I. BACKGROUND
A. Facts
The following facts are taken from the
parties’ depositions, affidavits, and exhibits,
and the parties’ respective Rule 56.1
statements of facts (“Def.’s 56.1” and “Pl.’s
56.1”). 1 Unless otherwise noted, the facts
Although the parties’ respective Rule 56.1
statements of facts contain specific citations to the
record, the Court cites to the Rule 56.1 statements
instead of the underlying citation to the record where
possible. The Court notes that plaintiff’s counsel has
failed to comply with Local Rule 56.1 in that he has
not submitted a Rule 56.1 statement of fact that
includes “a correspondingly numbered paragraph
responding to each numbered paragraph in the
statement of the moving party”; instead, plaintiff’s
Rule 56.1 counterstatement is largely identical to
plaintiff’s original Rule 56.1 statement submitted in
connection with plaintiff’s summary judgment
motion and does not directly correspond to any of the
numbered paragraphs in defendant’s statement.
However, plaintiff’s submissions make clear what
evidence she is citing in response to defendant’s 56.1
statement. Thus, plaintiff’s non-compliance with the
local rule has not prejudiced the defendant, and the
1
Court, in its discretion, overlooks plaintiff’s failure to
fully comply with the local court rules. See Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)
(“A district court has broad discretion to determine
whether to overlook a party’s failure to comply with
local court rules.”) (citations omitted); see also
Capellupo v. Nassau Health Care Corp., No. 06–
CV–4922 (JFB), 2009 WL 1705749, at *1 n.3
(E.D.N.Y. June 16, 2009) (excusing defendant's
failure to include record citations in Rule 56.1
statement, where appropriate record citations were
included elsewhere in attorney’s submissions); cf.
Williams v. R.H. Donnelley, Inc., 199 F. Supp. 2d
172, 174 n.1 (S.D.N.Y. 2002) (excusing failure to
submit statement pursuant to Local Civil Rule 56.1
where the facts were set forth in the party’s
memorandum of law).
3
in the Second Degree and seven counts of
Offering a False Instrument for Filing in the
First Degree. (Def.’s 56.1 ¶ 7; Pl’s 56.1 ¶
30.)
with the first twelve months to be served
under home detention with electronic
monitoring, and on March 18, 2010, the
court entered a judgment of criminal
conviction memorializing that sentence.
(Def.’s 56.1 ¶ 13; Pl.’s 56.1 ¶ 35.)
Probation Officer Steven Guttman
prepared a presentence investigation report
(“PSR”), dated November 13, 2008, which
Supervising Probation Officer Carmen
Leichtle approved. (Def.’s 56.1 ¶ 9.) The
PSR noted Wright’s medical conditions,
including diabetes, hospitalizations, and
medications. (Id.; Pl.’s 56.1 ¶¶ 31, 33.) With
the PSR, on November 13, 2008, Probation
Officer Guttman issued, and Supervising
Probation Officer Leichtle approved, a
Sentence Recommendation of three years’
probation with twelve months’ home
confinement with electronic monitoring.
(Def.’s 56.1 ¶ 10; Pl.’s 56.1 ¶ 34.) The
Sentence Recommendation noted Wright’s
physical ailments, including diabetes, and
stated that the deterioration of his condition
over the past two to three years provided a
basis for a non-custodial sentence. (Def.’s
56.1 ¶ 10; Pl.’s 56.1 ¶ 31.) On February 27,
2009, Probation Officer Guttman and
Supervising Probation Officer Leichtle
submitted an addendum to the PSR, which
noted that the United States had no
objections, that Wright submitted a letter
dated February 13, 2009, and that Wright’s
counsel submitted a letter dated February
17, 2009, which alleged factual errors in the
Offense Category and personal history
sections of the PSR. (Def.’s 56.1 ¶ 11.)
There was no objection to the
recommendation of home confinement with
electronic monitoring. (Def.’s 56.1 ¶ 12.) On
October 22, 2009, a second addendum to the
PSR was filed, which indicated that Wright
underwent a partial amputation of his left
foot during the summer of 2009. (Pl.’s 56.1
¶ 32.)
On March 22, 2010, Wright first met
with Probation Officer John Danielo, who
reviewed the conditions of the electronic
home monitoring program with Wright;
Wright indicated that he understood the
conditions and they both signed a Home
Confinement
Participant
Agreement
(“Agreement”). (Def.’s 56.1 ¶ 14.) The
Agreement provided that “[w]hile in the
home confinement program, [Wright]
agree[s] to wear a non-removable ankle
bracelet that will be attached by [the]
officer”; that Wright would “not [ ] remove
or tamper with the ankle bracelet
(transmitter) except in a life threatening
situation or with the prior permission of
[the] officer”; and that Wright agreed “to
allow authorized personnel to inspect and
maintain the ankle transmitter and
receiver/dialer.” (Def.’s 56.1 ¶¶ 15-16.)
Probation Officer Danielo installed the ankle
bracelet at Wright’s home on April 13,
2010, and tightened the bracelet according
to the “standard” of putting a finger between
the bracelet and the skin. (Def.’s 56.1 ¶ 17;
Pl.’s 56.1 ¶ 37.) At his deposition, Wright
testified that he did not complain to
Probation Officer Danielo when the ankle
bracelet was fitted on his ankle. (Def.’s 56.1
¶ 18.)
Probation Officer Danielo made five
home visits to Wright after fitting the ankle
bracelet – on April 30, June 16, July 8,
September 9, and October 12, 2010 – and
also made telephone contact with Wright in
the interim. (Def.’s 56.1 ¶ 19; Pl.’s 56.1 ¶
38.) Probation Officer Danielo testified that
it was his normal practice to view ankle
bracelets from a distance and that he did not
On March 3, 2010, Judge Feuerstein
sentenced Wright to three years’ probation
4
occasion, and that he responded, “Nothing I
can do about it, Jim.” (Id. at 78-79.) 2
inspect the area for evidence of irritation
prior to October 12, 2010. (Pl.’s 56.1 ¶ 38;
Def.’s Counter 56.1 ¶ 38.)
On October 12, 2010, Wright showed
Probation Officer Danielo a cut/infection on
his ankle; Danielo told Wright and Sprague
that Wright should see a doctor and gave
Wright permission to leave his home that
day. (Def.’s 56.1 ¶ 22; Pl.’s 56.1 ¶ 40.)
Probation Officer Danielo also moved the
bracelet away from the cut, tightened it so it
would not slide down, and told Wright to
put a band on the bracelet to hold it in place
until he visited a doctor. (Id.) On October
12, Sprague and Wright went to Dr. Lucks
who treated Wright with an antibiotic.
(Def.’s 56.1 ¶¶ 25-26; Pl.’s 56.1 ¶ 47.)
Wright was admitted to John T. Mather
Memorial Hospital four days later, on
October 16, 2010. (Def.’s 56.1 ¶ 26; Pl.’s
56.1 ¶ 48.) That same day, Wright called
Probation Officer Danielo to inform him that
he was admitted to the hospital due to the
infected cut on his ankle, and Danielo gave
permission for the electronic bracelet to be
cut off and requested that it be safeguarded
for return. (Def.’s 56.1 ¶ 27; Pl. 56.1 ¶ 41.)
Emergency room doctors cut off the ankle
bracelet and gave it to Sprague who returned
it to Probation Officer Danielo. (Def.’s 56.1
¶ 28.) After the bracelet was removed on
October 16, 2010, Wright did not
subsequently wear an electronic bracelet.
(Def.’s 56.1 ¶ 28.)
Before October 12, 2010, Wright did not
complain to his attorney or the court about
the ankle bracelet, and did not request
permission to seek medical treatment.
(Def.’s 56.1 ¶ 24.) However, the parties
dispute whether Wright complained to
Probation Officer Danielo before October
12, 2010. Defendant points to the fact that,
according to the entries in the
chronology/case history and Probation
Officer Danielo’s deposition testimony,
Wright never complained of the ankle
bracelet until October 12, 2010. (Def.’s 56.1
¶¶ 20-21.) However, plaintiff contends that
he began to experience a rash, irritation, and
redness on his right ankle in August 2010
and complained to Danielo “a couple of
times” regarding this condition. (Pl.’s 56.1 ¶
39.) For example, Wright testified in his
deposition that he first complained to
Danielo “probably two months” before the
October 2010 hospitalization, and that
Danielo did not take any action:
Q. Do you remember what you told him
[i.e., Probation Officer John Danielo]?
A. “It hurts. John, there’s something
wrong with this.”
Q. Did you tell him why it hurt?
During Probation Officer Danielo’s
home visit on January 4, 2011, Wright
signed an agreement by which he waived his
right to a hearing and counsel, and agreed to
a modification of the terms of his home
confinement to non-electronic home
A. Friction, rubbing up against my
ankle.
Q. What did he say? Did he respond?
A. “Nothing I can do about that, Jim.”
In any event, Dorothy Sprague, Wright’s
companion, testified that she and Wright first realized
how serious the ankle condition had become on
October 12, 2010, when they went to see Dr. Lucks.
(Def.’s 56.1 ¶ 25; Pl.’s 56.1 ¶ 39.)
2
(Pl.’s 56.1 Ex. D, Wright Dep. at 77.)
Plaintiff also testified that he showed
Danielo the ankle on more than one
5
confinement. (Def.’s 56.1 ¶ 29.) Probation
Officer Danielo then applied to the court,
with his supervisor David Washington’s
approval, to modify the conditions of
Wright’s confinement so that the balance of
his home confinement would be completed
“non-electronically using the BI Voice
system.” (Def.’s 56.1 ¶ 30; Pl.’s 56.1 ¶ 44.)
The court approved the modification on
January 24, 2011, and Wright signed a
Voice Verification Participant Agreement on
February 9, 2011. (Def.’s 56.1 ¶ 31; Pl. 56.1
¶ 45.) On April 27, 2011, Probation Officer
Danielo petitioned the court to credit Wright
with the time spent in the hospital and to end
his home confinement. (Def.’s 56.1 ¶ 32.)
On May 5, 2011, the court approved the
request, and Wright’s home confinement
ended. (Id.)
May 29, 2015, plaintiff filed an amended
complaint and a renewed motion for
summary judgment. On June 1, 2015,
defendant filed a renewed motion to dismiss
the complaint and for summary judgment.
Oral argument was held on August 7, 2015.
The Court has fully considered the parties’
submissions.
II. DISCUSSION
A. Motion to Dismiss
1. Standard of Review
When a court reviews a motion to
dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), it “must
accept as true all material factual allegations
in the complaint, but [it is] not to draw
inferences from the complaint favourable to
plaintiffs.” J.S. ex rel. N.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004).
The burden of proving subject matter
jurisdiction by a preponderance of the
evidence is on the plaintiff. Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir. 2005). “In resolving a motion to
dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a district
court . . . may refer to evidence outside the
pleadings” to resolve the jurisdictional issue.
Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000) (citing Kamen v. Am. Tel.
& Tel. Co., 791 F.2d 1006, 1011 (2d Cir.
1986)).
Wright was treated at Stony Book
University Hospital from January 29, 2013
through March 4, 2013. (Pl. 56.1 ¶ 51.) On
February 5, 2013, Wright underwent an
amputation of digits four and five and fourth
and fifth metatarsal heads on the right foot,
and on February 21, 2013, Wright
underwent a below the knee amputation to
his right leg. (Pl.’s 56.1 ¶¶ 57, 63.)
B. Procedural History
Plaintiff commenced this action on
March 15, 2013. Defendant moved to
dismiss for lack of subject matter
jurisdiction and for summary judgment on
December 5, 2014, and plaintiff crossmoved for summary judgment the same day.
Plaintiff filed opposition papers on January
19, 2015, and defendant filed opposition
papers on January 22, 2015. Plaintiff filed
reply papers on February 5, 2015, and
defendant filed its reply papers on February
6, 2015. James Wright died in February
2015, and Alexis Wright was thereafter
appointed as administrator of the estate and
substituted as plaintiff in this action. On
Federal courts are courts of limited
jurisdiction and may not preside over cases
if subject matter jurisdiction is lacking.
Lyndonville Sav. Bank & Trust Co. v.
Lussier, 211 F.3d 697, 700-01 (2d Cir.
2000). Unlike lack of personal jurisdiction,
lack of subject matter jurisdiction cannot be
waived and may be raised at any time by a
party or by the Court sua sponte. Id. at 700.
“If subject matter jurisdiction is lacking, the
6
action must be dismissed.” Id. at 700-01;
see also Fed. R. Civ. P. 12(h)(3).
John Danielo to make any inspections of the
ankle bracelet, rather Danielo’s half-hearted
and negligent inspection of the ankle
bracelet during home visits was as a result of
Federal and EDNY electronic monitoring
policies. The court did not direct U.S.
Probation Officer John Danielo to make the
bracelet tighter and instruct Mr. Wright to
wedge a band in it. The court certainly did
not direct U.S. Probation Officer John
Danielo to not report any injuries of Mr.
Wright to the court. None of these negligent
acts and omissions were under the direction
of the court, rather, John Danielo took
matters into his own hands, and unilaterally
made decisions without consulting his
supervisors, medical professionals or the
court.”).)
It is axiomatic that “[a] case is properly
dismissed for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) when
the district court lacks the statutory or
constitutional power to adjudicate it.”
Makarova, 201 F.3d at 113. “[T]he United
States, as sovereign, is immune from suit
save as it consents to be sued . . . and the
terms of its consent to be sued in any court
define that court’s jurisdiction to entertain
the suit.” United States v. Testan, 424 U.S.
392, 399 (1976) (internal quotation marks
and citation omitted). In other words, the
United States enjoys sovereign immunity
from suit except to the extent to which, and
under the terms of which, it consents to be
sued. See Millares Guiraldes de Tineo v.
United States, 137 F.3d 715, 719 (2d Cir.
1998) (citing United States v. Sherwood, 312
U.S. 584, 586 (1941)).
As an initial matter, the Court makes
clear that Probation Officer Danielo has
absolute immunity for any claim that
electronic monitoring should not have been
ordered by Judge Feuerstein in the first
place. However, for the reasons that follow,
the Court concludes that court-ordered
electronic monitoring does not immunize a
probation officer from alleged negligence, if
proven, in the placement and maintenance of
an ankle bracelet pursuant to that
monitoring. Similarly, the discretionary
function exception to the FTCA would not
apply to any such negligence. Thus, the
Court declines to dismiss plaintiff’s
negligence claim under Rule 12(b)(1).3
2. Application
Defendant argues that the court lacks
subject matter jurisdiction over plaintiff’s
claim because “the Probation Officers, and
thus the United States, are absolutely
immune from claims regarding the
preparation of a presentence report and the
implementation of a court order.” (Def.’s
Mem. of Law, at 11.) Plaintiff counters that
the alleged negligent acts related to the
ankle bracelet were not “under judicial
direction” or “integrally related” to the
judicial process. (See Pl.’s Opp’n, at 18-19
(“The Court never directed [the Probation
Officer] to place the radiofrequency
transmitter on Mr. Wright’s ankle as
opposed to his wrist because the order is
silent on the location of placement, and the
location is determined based on Federal and
EDNY electronic monitoring policies. The
court did not direct U.S. Probation Officer
3
As a threshold matter, the government suggests that
plaintiff’s claim is limited to the decision by the
Probation Department to implement electronic
monitoring at the time of sentencing. Although the
defendant is correct that the Amended Complaint
does focus on negligence by the Probation Officers in
failing to take plaintiff’s medical condition into
account at the time of sentencing in recommending
monitoring, the Court does not believe that the claim
should be construed to be so limited. First, not all of
the allegations in the Amended Complaint make
7
It is well-established that the United
States is immune from suit unless it consents
to be sued. United States v. Dalm, 494 U.S.
596, 608 (1990). This immunity extends to
federal agencies and officers acting in their
official capacities. FDIC v. Meyer, 510 U.S.
471, 475 (1994) (“Absent a waiver,
sovereign immunity shields the Federal
Government and its agencies from suit.”);
Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir.
2005). The Federal Tort Claims Act
(“FTCA”) provides the framework under
which the United States has consented to
suits involving common law tort or
negligence claims. 28 U.S.C. §§ 2671-80.
The FTCA provides a limited waiver of the
Government’s sovereign immunity for
claims “for injury or loss of property, or
personal injury or death caused by the
negligence or wrongful act or omission of
any employee of the Government while
acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1); see
also Leone v. United States, 910 F.2d 46,
48-49 (2d Cir. 1990). “In other words, for
the Government to be liable under the
FTCA, a federal employee must be found to
be both negligent and acting within the
scope of his duties.” Hentnik v. United
States, No. 02 CIV. 9498 (DC), 2003 WL
22928648, at *1 (S.D.N.Y. Dec. 10, 2003)
(citing 28 U.S.C. § 1346(b)).
reference to negligence “at the time of sentencing.”
For example, towards the end of paragraph 31 of the
Amended Complaint, there are a number of
allegations that are not limited to the time of
sentencing. (See Am. Compl. ¶ 31.) In addition,
paragraph 20 makes reference to the entire time
period from April 13, 2010 to October 16, 2010. (See
Am. Compl. ¶ 20 (“That beginning on or about April
13, 2010, John D’anelo [sic] negligently placed an
ankle monitoring bracelet on plaintiff’s decedent’s
right leg and/or ankle as a means to monitor
plaintiff’s decedent’s home confinement resulting
from a sentence that occurred on March 3, 2012, and
that this ankle bracelet remained on plaintiff’s
decedent’s right leg and/or ankle up to and including
October 16, 2010.”) (emphasis added).) Second, it is
clear from the Court’s review of the discovery that
both sides explored not just the initial decision to
utilize an ankle bracelet at the time of sentencing, but
also the alleged negligent acts by the Probation
Department in connection with the continued use and
maintenance of that bracelet through October 2010.
In fact, the defendant briefed this issue in its initial
memorandum of law. (See Def.’s Mem. of Law, at
18-20.) Moreover, in her opposition papers, plaintiff
made clear that the claim is not based upon any acts
or omissions in the sentencing phase, but rather
negligence in the supervision phase. (See Pl.’s Opp’n,
at 13.) Given that defendant has been aware of these
alleged negligent acts, explored them fully in
discovery, and briefed them in the summary
judgment motion, the Court deems the claim (even if
not pled clearly in the complaint) amended to
conform with the evidence in the summary judgment
motion. See M.V.B. Collision, Inc. v. Allstate Ins.
Co., 728 F. Supp. 2d 205, 213 n.8 (E.D.N.Y. 2010)
(collecting cases).
In
determining
whether
absolute
immunity or qualified immunity applies to a
particular officer, courts apply “a
‘functional’ approach to immunity questions
other than those that have been decided by
express
constitutional
or
statutory
enactment.” Forrester v. White, 484 U.S.
219, 224 (1988). “[I]mmunity is justified
and defined by the functions it protects and
serves, not by the person to whom it
attaches.” Id. at 227 (emphasis removed).
Accordingly, absolute immunity extends to
officers who “perform[ ] ‘functions’ which
are an ‘integral part of the judicial process’
and ‘comparab[le] . . . to those of the
judge.’” Dudek v. Nassau Cnty. Sheriff’s
Dep’t, 991 F. Supp. 2d 402, 415 (E.D.N.Y.
2013) (quoting Imbler v. Pachtman, 424
U.S. 404, 420, 423 n.20 (1976)).
Thus, the Second Circuit has held that
“federal probation officers preparing and
furnishing presentence reports to the court”
are entitled to absolute immunity because
“in preparing presentence reports, a federal
probation officer acts as an arm of the court
8
and that task is an integral part of one of the
most critical phases of the judicial process.”
Dorman v. Higgins, 821 F.2d 133, 137 (2d
Cir. 1987).4 Courts have also found absolute
judicial immunity warranted when an officer
acts “pursuant to a court order that he is
required to execute.” Dudek, 991 F. Supp.
2d at 415 (quoting Maldonado v. N.Y.
County Sheriff, 2006 WL 2588911, at *5
(S.D.N.Y. Sept. 6, 2006) (collecting cases))
(internal quotation marks omitted).
longarms without guidance from the court
once the order by which they seized the
longarms was vacated). “[I]mmunity will
not attach where an individual acted under
her own initiative rather than “at the
initiative of the court.” McKnight v.
Middleton, 699 F. Supp. 2d 507, 527
(E.D.N.Y. 2010) (quoting Scotto, 143 F.3d
at 111), aff’d, 434 F. App’x 32 (2d Cir.
2011); see also Scotto, 143 F.3d 113
(holding probation officer who made
discretionary decision to issue a warrant and
initiate parole revocation was not entitled to
absolute immunity); Hamilton v. New York
City Mun., No. 9:11-CV-0348 DNH/DEP,
2012 WL 398819, at *12 (N.D.N.Y. Jan. 10,
2012) (“Absolute immunity is less likely to
attach when the official function involved is
less adjudicative in nature, such as when the
officer acts under his or her own initiative
rather than that of the court.”) (citing Scotto,
143
F.3d
at
111),
report
and
recommendation
adopted
sub
nom.
Hamilton v. New York City Mun., No. 9:11CV-0348 DNH/DEP, 2012 WL 386631
(N.D.N.Y. Feb. 7, 2012).
However, probation officers are not
always entitled to absolute immunity. “[T]he
more distant a function is from the judicial
process, the less likely absolute immunity
will attach.” Scotto v. Almenas, 143 F.3d
105, 113 (2d Cir. 1998) (internal citation
and quotation marks omitted). Court officers
who enforce judicial orders are not entitled
to absolute immunity if they exceed the
scope of the court’s order or enforce it in an
improper manner. See Levine v. Lawrence,
No. 03-CV-1694 (DRH ETB), 2005 WL
1412143, at *9 (E.D.N.Y. June 15, 2005)
(collecting cases); Dudek, 991 F. Supp. 2d at
416 (declining to dismiss claim based on
absolute immunity where officers retained
Here, although defendant argues that
Probation Officer Danielo is entitled to
absolute immunity because he was enforcing
a valid court order, Judge Feuerstein gave no
directive regarding the placement, manner,
or maintenance of an ankle bracelet; rather,
Judge Feuerstein simply ordered electronic
monitoring. Thus, for example, when
Danielo allegedly tightened the ankle
bracelet upon inspection in October 2010, he
was not doing so at Judge Feuerstein’s
direction. In other words, the fact that
Probation
Officer
Danielo
was
implementing a court order in attaching the
electronic monitoring device to Wright’s
body does not entitle the defendant to
absolute immunity for his discretionary
decisions regarding the precise placement,
monitoring, and maintenance of Wright’s
Although plaintiff’s complaint pled a negligence
claim against Probation Officer Guttman for his part
in preparing the Presentence Investigation Report and
its addendum, plaintiff’s opposition brief stated that
she was “not alleging that the United States is liable
for negligence under the FTCA with respect to the
acts and/or omissions of [Probation Officers Guttman
and Leichtle] during the sentencing phase.” (Pl. Opp.
at 13.) Further, at oral argument, plaintiff’s counsel
confirmed that plaintiff was not pursuing claims
regarding preparation of the PSR. Accordingly, the
Court considers this claim abandoned. In any event,
such a claim would be dismissed pursuant to Rule
12(b)(1) because Probation Officer Guttman (as well
as Supervising Probation Officer Leichtle) would
have absolute immunity in preparing the PSR. See,
e.g., Dorman, 821 F.2d at 137; Hili v. Sciarotta, 955
F. Supp. 177, 179-181 (E.D.N.Y. 1997); Hirsch v.
Desmond, No. 08-CV-2660 (JS) (AKT), 2012 WL
537567, at *3-4 (E.D.N.Y. Feb. 15, 2012).
4
9
tort must involve a “judgment or choice,”
United States v. Gaubert, 499 U.S. 315, 322
(1991), and thus, cannot apply if a “federal
statute, regulation, or policy mandates a
specific course of conduct,” Saint-Guillen v.
United States, 657 F. Supp. 2d 376, 386
(E.D.N.Y. 2009). Second, the judgment or
choice “must be grounded in considerations
of public policy or susceptible to policy
analysis.” Coulthurst v. United States, 214
F.3d 106, 109 (2d Cir. 2000) (citations and
internal quotation marks omitted). The
second requirement “reflects Congress’s
decision to ‘prevent judicial secondguessing of legislative and administrative
decisions grounded in social, economic, and
political policy through the medium of an
action in tort.’” Saint-Guillen, 657 F. Supp.
2d at 386 (quoting United States v. S.A.
Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 814 (1984)).
“When established governmental policy, as
expressed or implied by statute, regulation,
or agency guidelines, allows a Government
agent to exercise discretion, it must be
presumed that the agent’s acts are grounded
in policy when exercising that discretion.”
Gaubert, 499 U.S. at 324. “The interplay
between the first and second prongs . . .
means that certain acts, although
discretionary, are not covered by the
exception because they involve ‘negligence
unrelated to any plausible policy objective.’”
Doe v. United States, No. 02 CIV 8974
DLC, 2010 WL 3562568, at *4 (S.D.N.Y.
Sept. 8, 2010) (quoting Coulthurst, 214 F.3d
at 111).
electronic bracelet, which plaintiff contends
were done negligently, from April 2010
through October 2010.5
Further, the allegations regarding
Probation Officer Danielo’s negligence are
not subject to immunity under the
discretionary function exception to the
FTCA. Under the FTCA, Congress’s
authorization of tort suits against the United
States “shall not apply to . . . [a]ny claim . . .
based upon the exercise or performance or
the failure to exercise or perform a
discretionary function or duty on the part of
a federal agency or an employee of the
Government, whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a).
This exception only applies if two
requirements are satisfied. First, the alleged
5
Plaintiff contends in her briefing that Probation
Officer Danielo acted upon his own initiative in
placing the electronic monitoring bracelet on
Wright’s ankle, rather than his wrist. In particular,
plaintiff points to a Federal Monograph that states
that the device can be placed on the wrist, or that a
Voice Verification System, can be used if medical
reasons prevent the use of the ankle. (Pl.’s 56.1 at ¶¶
16-17, Ex. E.) Defendant has submitted evidence that
the Probation Department in the Eastern District of
New York has not used electronic wrist bracelets
apart from a period from May to October 2012.
(Def’s Counter 56.1 Ex. B, Sandford Decl. ¶ 4.)
However, apart from the availability of a wrist
bracelet, plaintiff contends that the Probation Officer
should have realized that Wright was unsuitable
given his medical conditions, and advised the Court
immediately of such unsuitability, pursuant to the
Eastern District of New York Location Monitoring
Program. The Court concludes that, even in the
absence of the availability of a wrist bracelet, there
are disputed issues of material fact that preclude
summary judgment (and absolute immunity) on
whether there was any negligence in the placement of
the device on the ankle under the particular
circumstances of this case. Moreover, as noted supra,
there are disputed issues of fact as to alleged
negligent monitoring and maintenance of the device
on the ankle, including after alleged complaints of
irritation in or about August 2010.
Thus, acts such as negligently driving a
car on duty, Gaubert, 499 U.S. at 325 n.7, or
negligently maintaining gym equipment,
Coulthurst, 214 F.3d at 109, are not
protected by the discretionary function
exception. In Coulthurst, the plaintiff, a
federal inmate, was injured when a weight
lifting machine cable snapped; he sued,
10
alleging that the defendant “failed to
diligently and periodically inspect the
weight equipment and cable.” Id. at 107108. The Second Circuit found that the
complaint “fairly alleg[ed] negligence
outside the scope of the [discretionary
function
exception]”
because
“[a]n
inspector’s decision (motivated simply by
laziness) to take a smoke break rather than
inspect the machines, or an absent-minded
or lazy failure to notify the appropriate
authorities upon noticing the damages cable,
are examples of negligence fairly
encompassed by the allegations of the
complaint that do not involve considerations
of public policy” and thus, “do not reflect
the kind of considered judgment grounded in
social, economic, and political policy which
the [discretionary function exception] is
intended to shield from judicial second
guessing.” Id. at 111 (internal citations and
quotation marks omitted).
and omissions were contrary to the policies
and procedures of the Probation Department.
Accordingly, plaintiff’s negligence claims
are not barred by the discretionary function
exception.
In sum, because the precise placement of
the monitoring device and the handling of
problems with the ankle bracelet were not
dictated in any way by the court order
directing that electronic monitoring take
place, the alleged negligence by Probation
Officer Danielo in connection with the
precise placement, and the ongoing
monitoring and maintenance of the ankle
bracelet through October 2010, are not
covered by absolute immunity or the
discretionary function exception to the
FCTA. Accordingly, given the nature of the
disputed issues of fact regarding the alleged
negligent conduct by the Probation Officer
under the circumstances of this case, the
Court declines to dismiss this case due to a
lack of subject matter jurisdiction under
Rule 12(b)(1).
Here,
plaintiff’s
allegations
that
Probation Officer Danielo, among other
things, negligently failed to act promptly or
appropriately when notified that Wright had
an injury to his ankle are analogous to the
claims stemming from a failure to act raised
in Coulthurst. Further, those allegations, as
well as the other allegations, regarding
Probation Officer Danielo’s alleged
negligence, if proven, do not involve a
reasoned policy decision made by the United
States Probation Department such that
judicial
second-guessing
would
be
inappropriate. Cf. Banks v. United States,
No. 10 CIV. 6613 GBD GWG, 2011 WL
4100454, at *14 (S.D.N.Y. Sept. 15, 2011)
(collecting cases holding decision how to
respond to inmate violence is grounded in
policy
considerations),
report
and
recommendation adopted, No. 10 CIV. 6613
GBD GWG, 2011 WL 5454550 (S.D.N.Y.
Nov. 9, 2011). Instead, plaintiff argues that
Probation Officer Danielo’s negligent acts
B. Summary Judgment
1. Standard of Review
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also
Gonzalez v. City of Schenectady, 728 F.3d
149, 154 (2d Cir. 2013). The moving party
bears the burden of showing that he is
entitled to summary judgment. See Huminski
v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005).
“A party asserting that a fact cannot be or is
genuinely disputed must support the
assertion by: (A) citing to particular parts of
11
materials in the record, including
depositions,
documents,
electronically
stored
information,
affidavits
or
declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
Once the moving party has met its burden,
the opposing party “‘must do more than
simply show that there is some metaphysical
doubt as to the material facts . . . . [T]he
nonmoving party must come forward with
specific facts showing that there is a genuine
issue for trial.’” Caldarola v. Calabrese,
298 F.3d 156, 160 (2d Cir. 2002) (alteration
and emphasis in original) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” 477 U.S. at 249-50
(citations omitted). Indeed, “the mere
existence of some alleged factual dispute
between the parties alone will not defeat an
otherwise properly supported motion for
summary judgment.” Id. at 247-48
(emphasis in original). Thus, the nonmoving
party may not rest upon mere conclusory
allegations or denials but must set forth
“‘concrete particulars’” showing that a trial
is needed. R.G. Grp., Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “‘merely to
assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co.Conn., 77 F.3d 603, 615 (2d Cir. 1996)
(quoting Research Automation Corp., 585
F.2d at 33).
2. Application
In New York, in an action for negligence,
a plaintiff must prove three elements: “‘(1)
the existence of a duty on defendant’s part to
plaintiff; (2) a breach of this duty; and (3)
injury to the plaintiff as a result thereof.’”
Alfaro v. Wal-Mart Stores, Inc., 210 F.3d
111, 114 (2d Cir. 2000) (quoting Akins v.
Glens Falls City Sch. Dist., 53 N.Y.2d 325,
333 (1981)).
a. Defendant’s Motion
Defendant argues that plaintiff’s claims
alleging negligence by Probation Officer
Danielo are meritless and should be
dismissed because Danielo acted reasonably
in enforcing Judge Feuerstein’s order and
seeking modification of the order upon a
showing of medical justification. (Def.’s
Mem. of Law, at 18-20.)
However, plaintiff has pointed to
evidence that could cause a jury, if it viewed
the evidence most favorably to the plaintiff,
to reasonably conclude that Probation
Officer
Danielo
acted
negligently.
Specifically, plaintiff points to Probation
Officer Danielo’s testimony that he
inspected the bracelet “from a distance” and
12
never inspected the ankle for evidence of
irritation prior to October 12, 2010. (Pl.’s
56.1 Ex. E, Danielo Dep. at 111-13.)
Probation Officer Danielo further testified
that, when Wright and Sprague complained
about the cut on Wright’s ankle, he
tightened the bracelet and told Wright to use
a band to hold it in place. (Id. at 117, 130.)
A rational jury could certainly find that,
after being put on notice that Wright’s ankle
was irritated, Probation Officer Danielo
acted negligently in tightening the ankle
bracelet and leaving it on Wright’s ankle,
rather than removing it (or immediately
seeking permission from Judge Feuerstein to
remove it). Cf. Breen v. Garrison, 169 F.3d
152, 153 (2d Cir 1999) (vacating grant of
qualified immunity where officer cuffed
plaintiff too tightly not withstanding his
protests of pain); Sterlin v. City of New York,
No. 11 CIV. 0715 JPO, 2014 WL 2560595,
at *5 (S.D.N.Y. June 6, 2014) (collecting
cases and denying summary judgment on
excessive force claim where plaintiff’s
handcuffs were so tight that they caused
pain and numbness, plaintiff complained of
the tightness, and after the handcuffs were
removed, plaintiff’s wrists remained visibly
swollen into the next day). On this issue,
plaintiff also points to the fact that Probation
Officer Danielo first informed the court that
he believed Wright was unsuitable for
electronic monitoring on October 16, 2010,
four days after Wright complained of the cut
on his ankle. (Danielo Dep. at 72-73.)
October 12 was the first time that he was
alerted to any problem with the ankle
bracelet. (Danielo Dep. at 124.) Such
disputed issues of fact preclude summary
judgment on the negligence claim and, if
plaintiff’s version of events is believed,
provide additional support for her claim that
Probation Officer Danielo was negligent in
failing to take action to remove the bracelet
until October 16, 2010.
In sum, accepting Wright’s version of the
events and construing the evidence most
favorably to plaintiff, there is sufficient
evidence to create disputed issues of fact as
to whether Probation Officer Danielo
breached his duty of care to Wright in (1)
placing the bracelet on the ankle,
notwithstanding
Wright’s
medical
conditions as noted in the PSR and addenda
(including a partial amputation of his left
foot in the summer of 2009); (2) failing to
timely and properly inspect Wright’s ankle
from April to October 2010; (3) tightening
the bracelet and keeping it on the leg rather
than removing it, or notifying the court of
Wright’s injury, on October 12, 2010; and
(4) failing to notify the court of Wright’s
injury
before
October
16,
2010.
Accordingly, defendant’s motion for
summary judgment is denied.6
6
To the extent that defendant argues that Wright was
at fault for his injuries in failing to notify Probation
Officer Danielo or otherwise take action sooner, such
an argument goes to the issue of comparative
negligence rather than absolving the government of
all liability, and further, cannot be decided at this
juncture. See, e.g., Boutsis v. Home Depot, 371 F.
App’x 142, 144 (2d Cir. 2010) (“To the extent that
defendant suggests that it should be relieved of
liability because of plaintiff’s negligence . . . , it is
clear under New York law that the issue of
comparative negligence is a question of fact proper
for determination by a jury.”); Tuthill v. United
States, 270 F. Supp. 2d 395, 399 (S.D.N.Y. 2003) (“It
is well settled that comparative negligence must be
determined by a jury, and therefore cannot be decided
Further, there is a disputed issue of fact
as to whether Wright told Probation Officer
Danielo that the electronic monitoring
bracelet was bothering his ankle before
October 12, 2010. Plaintiff contends that
Wright complained to Danielo “a couple of
times” before the October 12 visit regarding
a rash, irritation, and redness on his right
leg. (Wright Dep. at 69.) However,
according to Probation Officer Danielo,
13
b. Plaintiff’s Motion
bracelet tighter and instructing Mr. Wright
to wedge a band in it on October 12, 2010,
were all substantial factors in causing an
aggrevation
[sic],
exacerbation
and
worsening of Mr. Wright’s cut and infection
on the ankle.” (Ex. Q to Pl.’s 56.1,
Harrington Decl. at ¶¶ 11-15.)
Plaintiff argues that she is entitled to
summary judgment on the negligence claim
because Probation Officer John Danielo had
a duty of reasonable care to Wright, which
he breached by failing to timely inspect
Wright’s ankle monitor, failing to timely
remove the ankle monitor, and failing to
timely notify the court of an injury. (Pl.
Mem. of Law, at 8-15.)
Second, plaintiff has submitted the expert
report of a corrections consultant, Robert
Thornton, who opines that Probation Officer
Danielo “acted in contravention of both
national and local [ ] policy, without proper
training and far below the standard of care
that govern the profession of a community
corrections agency and officer.” (Ex. T to
Pl.’s Counter 56.1, Expert Witness Report of
Robert L. Thornton, M.Ed. at 14.) In
particular, the expert opines that “[b]y
Officer Danielo’s own statement, he knew
Mr. Wright’s case was not appropriate for
electronic monitoring but against policy,
took no action to at least inform the court of
the potential complications of wearing an
electronic transmitter, even though other
options of monitoring that would not
endanger Wright’s health were readily
available.”
(Id.) Moreover, the expert
further opines, “[t]hen, without any form of
training regarding diabetes, a disease that is
especially prevalent in the corrections
population, failed to follow agency
guidelines for inspection of the ankle device
which resulted in infection of Mr. Wright’s
leg. When advised of the soreness and upon
seeing the injury already caused, Danielo
made the decision on his own and without
any form of consultation with the court, his
superiors or medical professionals, to
actually tighten the ‘bracelet’ and left it up
to the offender, who was in the officer’s
care, to seek medical attention.” (Id.)7
In addition to the evidence already
discussed above in connection with the
analysis of defendant’s motion for summary
judgment, the Court also notes that plaintiff
relies upon expert evidence to support her
negligence claim. First, plaintiff has
submitted the declaration of Dr. Elizabeth
Harrington who opines, among other things,
that (1) “given Mr. Wright’s medical
history, (especially diabetes, peripheral
neuropathy and prior partial amputation due
to diabetes), the U.S. Department of
Probation and its employee were negligent
and failed to use reasonable care under the
circumstances in placing the radiofrequency
transmitter on Mr. Wright’s ankle and
failing to timely take actions to remove it”
(2) “the irritation and redness from the ankle
bracelet would have been visible upon
inspection as of September 9, 2010” and
“the failure of U.S. Probation Officer John
Danielo on September 9, 2010 to properly
inspect the transmitter, remove it and inform
the Court were substantial factors in causing
injury to Mr. James Wright, including
months of hospitalizations, surgeries,
debridements and ultimately a below the
knee amputation”; and (3) “the failure to
remove the ankle transmitter and inform the
court, and instead, acting to make the
on a summary judgment motion.”) (citing Louise
B.G. v. New York City Bd. Of Educ., 533 N.Y.S.2d
293, 295 (N.Y. App. Div. 1988)).
7
Although the expert also suggests that the Probation
Department should not have recommended electronic
monitoring in the PSR, (see id.), that
14
Notwithstanding these expert opinions,
the disputed issues of fact that preclude
summary judgment for the defendant also
preclude summary judgment for the
plaintiff. As previously described, there is a
disputed issue of fact as to whether Wright
complained to Probation Officer Danielo
about irritation to his right leg before
October 12, 2010. In particular, according
to Danielo, October 12 was the first time
that he was alerted to any problem with the
ankle bracelet. (Danielo Dep. at 124.)
Further, defendant points to the fact that
Sprague testified that she and Wright did not
consider Wright’s condition to be severe
until October 12, 2010, (Def.’s 56.1 Ex. Q,
Sprague Dep. at 35-36), and that prior to
complaining to Probation Officer Danielo on
that date, Wright never complained to his
attorney or the court about his condition and
never requested medical treatment, or
permission to obtain medical treatment.
(Wright Dep. at 70, 73-76, 81.) Further, the
defendant points out that, on October 12,
Probation Officer Danielo told Wright to
notify him that day of Dr. Lucks’ medical
opinion as to whether the bracelet should be
removed; however, he did not hear from
Wright until four days later when he
checked into the hospital, and once
Probation Officer Danielo was told that the
emergency room doctors recommended
removal, he directed removal and
subsequently applied to the court for an
order modifying the terms of Wright’s home
confinement. (Danielo Dep. at 129, 143,
147, 149, 155; Def.’s 56.1 Ex. T, Request
for Modifying the Conditions of Home
Supervision.) If defendant’s evidence is
credited and viewed most favorably to the
defendant, a jury could reject these expert
opinions and reasonably conclude that
Probation Officer Danielo did not act
negligently in the placement and monitoring
of Wright’s electronic ankle bracelet from
April 2010 to October 2010. 8 Thus,
plaintiff’s motion for summary judgment on
the negligence claim must be denied.
8
Further, these factual disputes also create a genuine
issue of disputed fact as to any comparative
negligence by Wright. See, e.g., Dasher v. Wegmans
Food Mkts. Inc., 758 N.Y.S.2d 585 (N.Y. App. Div.
2003) (“‘[T]he question of a plaintiff’s comparative
negligence almost invariably raises a factual issue for
resolution by the trier of fact.’ Here, the evidence
submitted by plaintiff does not establish a total
absence of comparative negligence as a matter of
law.”) (quoting Gudenzi-Ruess v. Custom Envtl. Sys.,
622 N.Y.S.2d 833, 834 (N.Y. App. Div. 1995)
(additional citations omitted)); see also Calcano v.
Rodriguez, 936 N.Y.S.2d 185, 186-187 (“[A] plaintiff
moving for summary judgment on the issue of
liability in an action for negligence must eliminate
any material issue, not only as to the defendant’s
negligence, but also as to whether the plaintiff’s own
comparative negligence contributed to the
incident.”); Sale v. Lee, 853 N.Y.S.2d 888 (N.Y.
App. Div. 2008) (affirming denial of plaintiffs’
summary judgment motion where plaintiffs’ evidence
did not establish that they were free from
comparative negligence); Maiello v. Kirchner, 949
N.Y.S.2d 200, 203 (N.Y. App. Div. 2012). Although
plaintiff argues that summary judgment is appropriate
because the defendant failed to rebut Dr.
Harrington’s medical opinion, Dr. Harrington merely
opines that Probation Officer Danielo was a cause of
Wright’s hospitalization and amputation. Dr.
Harrington does not make any judgments as to
Wright’s own possible negligence. (See Harrington
Decl.) In any event, as previously discussed,
comparative negligence is inappropriate for
resolution on a summary judgment claim in this case.
See, e.g., Boutsis, 371 F. App’x at 144.
recommendation (as plaintiff now concedes) is
certainly protected by absolute immunity.
15
V. CONCLUSION
For the foregoing reasons, the Court
denies defendant’s motion to dismiss for a
lack of subject matter jurisdiction and
motion for summary judgment. The Court
also denies plaintiff’s motion for summary
judgment.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Dated:
February 11, 2016
Central Islip, NY
***
Plaintiff is represented by Joseph Miklos,
Robert A. Miklos, and Daniel Patrick
Miklos of Silberstein, Awad & Miklos, P.C.,
600 Old Country Road, Suite 412, Garden
City, NY 11530. Defendant is represented
by Vincent Lipari, U.S. Attorney’s Office
for the Eastern District of New York, 610
Federal Plaza, Central Islip, NY 11722.
16
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