Anson v. Bailey et al

Filing 29

ORDER granting 7 Motion to Dismiss for Lack of Jurisdiction. Signed by Hon. H. Kenneth Schroeder, Jr on 2/18/2009. (KER)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

D O N AL D ANSON, P la in t if f , -vB re n d a Bailey, M.D., et al., D e fe n d a n ts 0 6 C V - 0 3 9 4 A( S r )

DECISION AND ORDER Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #20.

Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 against Brenda Bailey, M.D., Captain Yvonne Anthony, Lieutenant Deborah Doody and Captain Richard Lawson alleging denial of adequate medical treatment during his confinement as a pre-trial detainee at the Buffalo Federal Detention Facility following an injury to his shoulder on April 13, 2005. Dkt. #1.1 Because plaintiff named federal officers as

Plaintiff has com m e n c e d a separate lawsuit against the United States claim in g that he injured his s h o u ld e r as he attem p te d to clim b over a seat, as directed by the United States Marshal, to enter the van b e in g used to transport him from the Buffalo Federal Detention Center to the United States District Court in R o c h e s te r , New York. See 07-CV-35.

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defendants, the Court construed his complaint as an action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 398 (1971).2

Currently before the Court is defendant's motion to dismiss this action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) on the ground that the defendants are commissioned officers and employees of the Public Health Service and are absolutely immune from suit for claims related to the performance of medical or related functions. Dkt. #7. For the following reasons, defendants' motion is granted.

DISCUSSION AND ANALYSIS
F e d . R. Civ. P. 12(b)(1) Standard A case is properly dismissed for lack of subject matter jurisdiction under R u le 12(b)(1) of the Federal Rules of Civil Procedure when the Court lacks the statutory o r constitutional power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2 0 0 0 ). The plaintiff bears the burden of proving subject matter jurisdiction by a p re p o n d e ra n c e of the evidence. Id. In resolving a motion to dismiss for lack of subject m a tte r jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside th e pleadings. Id. However, the Court "must accept as true all material allegations in the c o m p la in t" and interpret a plaintiff's pro se complaint "to raise the strongest arguments" th a t the allegations suggest. Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2 d Cir. 2006).

G e n e r a lly speaking, "a Bivens action is the federal analog to suits brought against state officials" u n d e r 42 U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006). "Bivens established that the victim s o f a constitutional violation by a federal agent have a right to recover dam a g e s against the official in federal c o u r t despite the absence of any statute conferring such a right." Id.

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Official Capacity

Plaintiff's pro se complaint names the defendants in both their individual and official capacities. Dkt. #1. However, a Bivens action "must be brought against the federal officers involved in their individual capacities." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) ( "Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are . . . barred under the doctrine of sovereign immunity unless such immunity is waived."). As a result, this court lacks subject matter jurisdiction over plaintiff's claims against these defendants in their official capacities. Id.

Public Health Service Act Section 233(a) of the Public Health Service Act, 42 U.S.C. § 233(a), "makes the Federal Tort Claims Act the exclusive remedy for specified actions against members of the Public Health Service." Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000). This statute "protects commissioned officers or employees of the Public Health Service from being subject to suit while performing medical and similar functions by requiring that such lawsuits be brought against the United States instead." Id. at 108. "The United States thus in effect insures designated public health officials by standing in their place financially when they are sued for the performance of their medical duties." Id.

Richard G. Bergeron, Senior Attorney in the General Law Division of the Office of the General Counsel for the Department of Health and Human Services

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declares that each of the defendants were "employees or officers of the Public Health Service at the time of the events alleged" in plaintiff's complaint. Dkt. #10, ¶ 5. Plaintiff's complaint alleges that each of these defendants denied him adequate medical treatment for his shoulder injury. Dkt. #1. As a result, plaintiff's sole remedy is an action against the United States pursuant to the Federal Tort Claims Act. See Carlson v. Green, 446 U.S. 14, 20 (1980) (citing 42 U.S.C. § 233(a) as an example of Congress explicitly stating its intention to make the Federal Tort Claims Act an exclusive remedy). Accordingly, defendants' motion to dismiss this action against them in their individual capacities for lack of subject matter jurisdiction is granted.

Federal Tort Claims Act "In 1946, Congress adopted the FTCA which, subject to numerous e x c e p tio n s , waives the sovereign immunity of the federal government for claims based on th e negligence of its employees." Coulthurst v. United States, 214 F.3d 106, 108 (2d Cir. 2 0 0 0 ). Specifically, the Federal Tort Claims Act authorizes suits against the government to recover damages for injury or loss of property, or personal injury or death c a u s e d by the negligent or wrongful act or omission of any e m p lo ye e of the Government while acting within the scope of h is office or employment, under circumstances where the U n ite d States, if a private person, would be liable to the c la im a n t in accordance with the law of the place where the a c t or omission occurred. 28 U.S.C. § 1346(b)(1). However, it would be futile to substitute the United States as a d e fe n d a n t in the instant action because plaintiff commenced this action before he e x h a u s te d his administrative remedies.

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The Federal Tort Claims Act "requires that a claimant exhaust all a d m in is tra tiv e remedies before filing a complaint in federal district court." Celestine v. M o u n t Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). Specifically, 28 U.S.C. § 2675(a) provides that A n action shall not be instituted upon a claim against the U n ite d States for money damages for injury or loss of p ro p e rty or personal injury or death caused by the negligent o r wrongful act or omission of any employee of the G o v e rn m e n t while acting within the scope of his office or e m p lo ym e n t, unless the claimant shall have first presented th e claim to the appropriate Federal agency and his claim s h a ll have been finally denied by the agency in writing and s e n t by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be d e e m e d a final denial of the claim for purposes of this s e c ti o n . "This requirement is jurisdictional and cannot be waived." Celestine, 403 F.3d at 82.

In addition, 28 U.S.C. § 2401(b) provides that: A tort claim against the United States shall be forever barred u n le s s it is presented in writing to the appropriate Federal a g e n c y within two years after such claim accrues or unless a c tio n is begun within six months after the date of mailing, by c e rtifie d or registered mail, of notice of final denial of the c la im by the agency to which it was presented. "U n le s s a plaintiff complies with that requirement, a district court lacks subject matter ju ris d ic tio n over a plaintiff's FTCA claim." Johnson v. Smithsonian Inst., 189 F.3d 180, 1 8 9 (2d Cir. 1999). For purposes of both statutes, "a claim shall be deemed to have b e e n presented when a Federal agency receives from a claimant . . . an executed S ta n d a rd Form 95 or other written notification of an incident, accompanied by a claim for

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money damages in a sum certain for injury to or loss of property, personal injury, or death a lle g e d to have occurred by reason of the incident . . . ." 28 C.F.R. § 14.2.

Mr. Bergeron declares that a search of the computerized database of a d m in is tra tiv e claims filed with the Department of Health and Human Services reveals no c la im s filed on plaintiff's behalf. Dkt. #10, ¶ 4.

Plaintiff's memorandum of law claims that he "did fill out and send three [S F -9 5 ] Forms." Dkt. #18, p.4. Specifically, plaintiff states that he re q u e s te d information on who, or which agency, to send such fo rm too [sic]. I made this request through `Detainee Request to Medical Dept. Administrator' and via `Sick Call Slip' to m e d ic a l. After receiving no reply to either request, I sent (2) tw o SF-95 forms to the head of the Medical Dept. (A d m in is tra to r) ­ one via U.S. first class mail with postage a ffix e d and one via inter facility mail. I also sent one copy to th e address posted in the medical dept. and in the housing u n it to which complaints were to be sent in regard to p ro b le m s with the medical service. W ith each SF-95 Form I s e n t a letter explaining that I did not know, nor could I find o u t, where to send the SF-95 Forms. I also asked that either th e medical dept., or the address for complaints, forward the S F -9 5 to the proper address or reply with information a v a ila b le to direct me to the proper agency. Dkt. #18, pp.4-5. Subsequently, plaintiff attached copies of a "Detainee Request to F a c ility Employee," dated December 26, 2006, requesting an SF-95 and the proper a d d re s s to mail such form and an SF-95 which plaintiff claims to have mailed to the DHS O IG at 245 Murphy Drive, Building 410, W a s h in g to n , DC 20526. Dkt. #22-2, pp.27 & 29. Plaintiff declares that this address was located on a poster located in the medical area at th e Buffalo Federal Detention Center. Dkt. #22, p.10. Plaintiff's notations on the SF-95 in d ic a te that it was mailed on January 1, 2007. Dkt. #22-2, p.27.

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Michael Knorr, Special Agent in Charge of the United States Department of H o m e la n d Security Office of Inspector General ("DHS-OIG"), acknowledges receipt of the SF-95 in an envelope postmarked January 3, 2007. Dkt. #25, ¶ 4 & Dk.t. #25-2, p.9. Attached to his declaration is a copy of plaintiff's cover letter dated January 1, 2007 which in d ic a te s that plaintiff enclosed the SF-95 "as required under 28 U.S.C. § 2675(a), to start a n action under 28 U.S.C. 1346(b), 2401(b), [illegible], and/or 1983 civil rights violation." Dkt. #25-2, p.3. Mr. Knorr declares that after processing and review by the DHS-OIG, the S F -9 5 was transferred to the United States Department of Homeland Security Im m ig ra tio n s Customs Enforcement Office of Professional Responsibility on March 26, 2 0 0 7 . Dkt. #25, ¶ 7.

It is clear, therefore, that plaintiff did not file an SF-95 before he filed this la w s u it on June 15, 2006. Dkt. #1. An action commenced prior to the exhaustion of a d m in is tra tiv e remedies must be dismissed as premature. McNeil v. United States, 508 U .S . 106 (1993). In McNeil, plaintiff filed a pro se complaint on March 6, 1989 and s u b m itte d a claim for damages to the Department of Health and Human Services on July 7 , 1989. 508 U.S. at 107-08. The United States Supreme Court determined that the text o f 28 U.S.C. § 2675(a) was "unambiguous" and that the Court was not free to rewrite the statutory text. As of March 6, 1989, p e titio n e r had neither presented his claim to the Public Health S e rv ic e , nor had his claim been "finally denied" by that a g e n c y. As the Court of Appeals held, petitioner's complaint w a s filed too early. Id . at 111. The Supreme Court then rejected petitioner's argument that the exhaustion of th e administrative claim during the pendency of the action was sufficient, stating:

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The most natural reading of the statute indicates that C o n g re s s intended to require complete exhaustion of E x e c u tiv e remedies before invocation of the judicial process. Every premature filing of an action under the FTCA imposes s o m e burden on the judicial system and on the Department of J u s tic e which must assume the defense of such actions. Although the burden may be slight in an individual case, the s ta tu te governs the processing of a vast multitude of claims. The interest in orderly administration of this body of litigation is best served by adherence to the straightforward statutory com m and. Id . at 112. As plaintiff commenced this action before exhausting his administrative re m e d ie s as required by 28 U.S.C. § 2675(a), the Court lacks subject matter jurisdiction to construe this action as a claim against the United States pursuant to the Federal Tort C la im s Act.

CONCLUSION Based on the foregoing, defendants' motion to dismiss the complaint for
la c k of subject matter jurisdiction (Dkt. #7), is granted.

SO ORDERED.

D a te d :

B u ffa lo , New York F e b ru a ry 18, 2009

s/ H. Kenneth Schroeder, Jr. H. KENNETH SCHROEDER, JR. United States Magistrate Judge

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