D'Alessandro v. United States of America et al
Filing
67
DECISION AND ORDER rejecting the R&R (Docket No. 57) and granting in part and denying in part the Governments Motion to Dismiss (Docket No. 31) as follows: The Motion to Dismiss is granted to the extent that all individual defendants are dismissed wi th prejudice pursuant to 28 U.S.C. § 2679(b)(1), and the sole remaining defendant is the United States of America. The Motion to Dismiss is granted to the extent that DAlessandro is limited to recovery of no more than $1.8 million, pursuant to 28 U.S.C. § 2675(b), in the event that he prevails on his FTCA claim. The Motion to Dismiss is denied in all other respects. The Complaint (Docket No. 1) is deemed timely filed, and the Government is directed to serve a responsive pleading t o the Complaint within thirty (30) days of the date of entry of this Decision and Order.CLERK TO FOLLOW UP: The Clerk of Court is directed to amend the official caption so as to remove all individual defendants, who are dismissed with prejudice. The sole remaining defendant is the United States of America. Signed by Hon. Michael A. Telesca on 6/18/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GIUSEPPE D’ALESSANDRO,
DECISION AND ORDER
Plaintiff,
No. 1:13-cv-00416-MAT-HKS
-vsUNITED STATES OF AMERICA, et al.,
Defendants.
I.
Introduction
This is an action brought pursuant to the Federal Tort Claims
Act
(“FTCA”),
28
U.S.C.
§§
1346(b)(1),
2674.1
The
case
was
transferred to the undersigned on June 4, 2019 (2013 Docket No.
66).2
Currently
pending
before
the
Court
is
the
Report
and
Recommendation (“R&R”) (2013 Docket No. 57) of Hon. H. Kenneth
Schroeder, United States Magistrate Judge recommending that the
Motion to Dismiss (2013 Docket No. 31) filed by the United States
of America (“the Government”) and the individual defendants be
granted and that the 2013 Action be dismissed in its entirety. For
1
The FTCA waives sovereign immunity in certain cases involving negligence
committed by federal employees in the course of their employment, 28 U.S.C. §
1346(b)(1), making the United States liable “in the same manner and to the same
extent as a private individual under like circumstances,” id. § 2674. E.g., Dolan
v. U.S. Postal Serv., 546 U.S. 481, 484-85 (2006).
2
The related case, D’Alessandro v. Chertoff, et al., 1:10-cv-00927-MAT (“the
2010 Action”), was transferred to the undersigned June 11, 2019 (2010 Docket No.
78). Citations to “Docket No.” preceded by 2010 refer to docket entries in the
2010 Action; citations to “Docket No.” preceded by 2013 refer to docket entries
in the 2013 Action.
the reasons discussed below, the Court rejects the R&R and finds
that the 2013 Complaint is timely.
II.
Factual Background and Procedural Status
A.
Plaintiff’s Immigration Detention and Habeas Relief
D’Alessandro’s
underlying
criminal
conviction,
subsequent
immigration proceedings and unlawful civil detention culminating in
the grant of Federal habeas corpus relief, and reversal of his
conviction has been extensively discussed in this Court’s previous
decisions. See, e.g., D’Alessandro v. Chertoff, No. 10-CV-927A,
2011
WL
6148756
D’Alessandro
(Arcara,
v.
(W.D.N.Y.
Mukasey,
Dec.
628
D.J./Bianchini,
F.
M.J.);
12,
2011)
Supp.2d
People
(Arcara,
368
v.
(W.D.N.Y.
D.J.);
2009)
D’Alessandro,
No. 8175-90, 2010 N.Y. Slip Op. 75591 (App. Div. 1st Dep’t June 29,
2010) (unpublished), lv. denied, 909 N.Y.S.2d 28 (Table) (N.Y.
Sept. 29, 2010). The Court need not recite the troubling facts
giving rise to D’Alessandro’s first lawsuit in 2010. However, in
order to resolve the pending Motion to Dismiss, the Court must
delve into the convoluted procedural histories of the 2013 Action
and the related 2010 Action.
B.
The 2010 Action
In the 2010 Complaint, filed November 18, 2010, D’Alessandro
sued Brenda Bailey, M.D. and various other employees and officers
of the Government pursuant to Bivens v. Six Unknown Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dr. Bailey was
-2-
the Clinical Medical Director of the Buffalo Federal Detention
Facility where D’Alessandro was detained from November 19, 2007,
until April 2, 2009. The 2010 Complaint alleged, inter alia, that
Dr. Bailey denied D’Alessandro adequate medical care in violation
of
his
constitutional
rights
and
that
the
Federal
officials
responsible for reviewing his detention denied him due process of
law under the Fifth Amendment by failing to provide him with the
legally required custody reviews and improperly evaluating his risk
of flight and danger to the community. The 2010 Complaint, which
sought compensatory and punitive damages, alleged the following
causes of action: (1) deprivation of liberty without due process of
law in violation of the Fifth Amendment; (2) unreasonable seizure
in violation of the Fourth Amendment; (3) deliberate indifference
to
Plaintiff’s
liberty
interest
in
violation
of
the
Eighth
Amendment; (4) deliberate indifference and denial of medical care
in violation of the Eighth Amendment; and (5) maintaining customs
and
policies
in
violation
of
the
Fourth,
Fifth,
and
Eighth
Amendment.
On June 16, 2011, the Government filed two motions to dismiss
the 2010 Complaint. One motion (2010 Docket No. 37) was filed on
behalf of the eight local Government officials who were stationed
at
or
around
D’Alessandro
the
was
Batavia
held
in
Federal
custody
Detention
during
the
Facility
relevant
where
time
(Michael T. Phillips, Martin Herron, Charles Mule, Sean Gallagher,
-3-
Earl DeLong, Kevin Oetinger, Darrel Crotzer, and Brenda Bailey,
M.D. (“the Local Defendants”)). The other motion to dismiss (2010
Docket No. 38) was filed on behalf of the remaining six defendants,
who
were
high-level
executive
branch
officials
stationed
in
Washington, D.C. during the relevant time (Eric Holder, Jr.,
Michael B. Mukasey, Janet Napolitano, Michael Chertoff, Julie L.
Myers Wood, and John P. Torres (“the Washington Defendants”)).
On June 17, 2011, the Government submitted a Certification of
Scope
of
Employment
(“Certification”)
pursuant
to
42
U.S.C.
§ 233(g)(1)(F) with regard to Brenda Bailey, M.D. The Certification
stated in relevant part that
with respect to the claims set forth in the [2010]
complaint, Defendant Brenda Bailey, M.D., a commissioned
officer of the U.S. Public Health Service (with the rank
of Captain), was performing medical or related functions,
and acting within the scope of her federal office or
employment, at the time of the incidents out of which the
plaintiff’s claims arose.
Certification, ¶ 2.
In its memorandum of law (2010 Docket No. 37-1) supporting the
Local Defendants’ Motion to Dismiss, the Government argued that
Plaintiff has no right of action under Bivens for any claim
relating to the fact or duration of his immigration detention.
Consequently, the Government argued, all such detention claims
against the Local Defendants, whether pleaded under the Fourth,
Fifth, or Eighth Amendments, should be dismissed as a matter of
law. Second, the Government contended, because Dr. Bailey is a
-4-
commissioned Public Health Service (“PHS”) officer, she enjoys
absolute immunity under 42 U.S.C. § 233(a) with respect to any
claim alleging inadequate medical care. The Government argued that
since Dr. Bailey is not implicated in any detention claim and is
absolutely immune from suit with regard to any claim based on the
alleged provision of inadequate medical treatment, she should be
dismissed as a defendant. Third, the Government contended, all
Bivens claims against all Local Defendants should be dismissed on
the ground of qualified immunity.
D’Alessandro opposed the Local Defendants’ motion, arguing in
his memorandum of law (2010 Docket No. 45) that
his Bivens claims
are well-established in existing precedent and that no alternative
remedies or “special factors” exist such that a Bivens claim is
barred in this particular context. D’Alessandro also argued that
qualified immunity is not available to the Local Defendants because
the Court (Arcara, D.J./Bianchini, M.J.) previously held that a
“reasonable official” could not have found that D’Alessandro’s
continued detention was constitutional, that the Local Defendants
failed to comply with the applicable regulations in determining to
continue his custody, and that the conduct by each of the Local
Defendants was not that of a “reasonable official.” D’Alessandro
agreed that Dr. Bailey was absolutely immune from suit under Bivens
due
to
her
status
as
a
PHS
doctor.
-5-
However,
D’Alessandro
maintained, the claims regarding the denial of medical care were
properly pleaded.
In
its
brief
(2010
Docket
No.
38-1)
in
support
of
the
Washington Defendants’ motion to dismiss, the Government argued
that all
of
the defendants
except
Michael Mukasey
should
be
dismissed for lack of personal jurisdiction under Rule 12(b)(2).3
The
Government
further
urged
that
all
of
these
defendants,
including Michael Mukasey, should be dismissed for improper venue
under Rule 12(b)(3). For the same reasons advanced in the Local
Defendants’ brief, the Government argued that Plaintiff has no
right of action under Bivens as against the Washington Defendants
for any claim relating to the fact or duration of his immigration
detention. Accordingly, the Government argued, any such claim
should be dismissed as to the Washington Defendants under Rule
12(b)(6). Moreover, the Government contended, Plaintiff failed to
allege
the
requisite
personal
involvement
by
the
Washington
Defendants who were, in any event, entitled to qualified immunity.
D’Alessandro filed a brief opposing the Washington Defendants’
motion to dismiss. 2010 Docket No. 46.
On December 12, 2011, the Court (Arcara, D.J.) issued a
Decision and Order (“the 2011 Decision”) (2010 Docket No. 59)
granting Defendants’ Motions to Dismiss (2010 Docket Nos. 37 & 38)
for failure to state a claim under Bivens. Relying on a Ninth
3
Unless otherwise noted, all references herein to “Rule” are to the
Federal Rules of Civil Procedure.
-6-
Circuit case, Mirmehdi v. United States, 662 F.3d 1073 (9th Cir.
2011), the 2011 Decision held that relief under Bivens is not
available in the context of “wrongful immigration custody pending
removal.” 2011 Decision at 9. The 2011 Decision noted that “[s]ince
the Court [was] dismissing the complaint in its entirety for
failure to state a claim under Bivens, consideration of defendants’
other arguments for dismissal [was] unnecessary.” Id. at 11.
D’Alessandro then filed a Motion for Reconsideration and Leave
to File an Amended Complaint (“Reconsideration Motion”). 2010
Docket Nos. 61 & 62. D’Alessandro submitted a proposed First
Amended Complaint (2010 Docket No. 63-1) specifically asserting
claims under the FTCA, as well as substituting the Fifth Amendment
for the Eighth Amendment in several of the causes of action. In
addition,
D’Alessandro
submitted
supplemental
legal
authority
distinguishing Mirmehdi and holding that a Bivens action could be
maintained based on the denial of due process in deportation
proceedings. 2010 Docket No. 65.
As grounds for reconsideration,
D’Alessandro argued that the Court had overlooked four of his
arguments as well as controlling case law. First, D’Alessandro
argued, the 2011 Decision failed to distinguish, or even address,
the case law from the Second Circuit which holds contrary to
Mirmehdi. Second, although the Court had requested supplemental
briefing, see 2010 Docket No. 57, on the issue of “whether the
Ninth Circuit’s opinion in the Mirmehdi case is distinguishable,”
-7-
the 2011 Decision did not address D’Alessandro’s contention that
Mirmehdi is limited to illegal aliens whose detention occurred
during deportation proceedings, whereas D’Alessandro is a legal
permanent
resident whose
detention
occurred
after
deportation
proceedings had concluded. Third, D’Alessandro had requested, in
his opposition to the motions to dismiss, that the claims against
Dr. Bailey be converted to claims against the United States under
the FTCA, 28 U.S.C. § 2679, and that he be permitted to replead so
as to assert FTCA claims against the United States. Although
observing that D’Alessandro had raised this argument, the 2011
Decision did not address it. D’Alessandro contended that this
argument was significant, because regardless of the availability of
a Bivens claim, the 2010 Action should have continued against the
United States as the substituted party for Dr. Bailey under the
FTCA. Fourth, D’Alessandro pointed out, the 2011 Decision only
addressed the Bivens claims based on the fact of, and harm caused,
by his unlawful detention; the 2011 Decision did not address his
claim based on the unconstitutional conditions of his detention, a
separate claim which Mirmehdi did not dispute could be maintained
as a Bivens action.
The Government opposed the Reconsideration Motion, arguing
that Plaintiff had not demonstrated reconsideration was warranted
as to the dismissal of his Bivens claims based on his immigration
detention or his request to substitute the United States in place
-8-
of Dr. Bailey. The Government noted that while the 2011 Decision
correctly
dismissed
Plaintiff’s
medical
the
separate
treatment
while
Bivens
in
claim
custody,
challenging
it
had
“no
objection” to the Court clarifying the basis for its decision in
that regard. Lastly, the Government contended that the proposed
First Amended Complaint would be subject to dismissal immediately
because Plaintiff failed to comply with certain FTCA requirements,
including the exhaustion of administrative remedies. 2010 Docket
No. 66.
In
response,
D’Alessandro
submitted
additional
argument
regarding the legal authority previously submitted. 2010 Docket
No. 67. D’Alessandro also filed a Notice of Appeal with the Second
Circuit Court of Appeals. 2010 Docket No. 68. That appeal remains
stayed; D’Alessandro has been filing monthly “update” letters,
advising the Second Circuit about the status of proceedings in this
Court.
On February 8, 2012, while the Reconsideration Motion was
pending, D’Alessandro filed a claim with United States Immigration
and Customs Enforcement (“ICE”) regarding his tort claims vis-a-vis
the Government. ICE denied the claim in a letter dated October 29,
2012, stating that if D’Alessandro wished to file a Federal lawsuit
against the United States for damages, pursuant to 28 U.S.C.
§ 2401(b), he was required to do so no later than six months after
the date of mailing of the letter.
-9-
On March 27, 2013, the Court issued a text order stating as
follows: “[T]he motion for reconsideration is GRANTED. The Court
will advise the parties by Text Order should additional submissions
be required. Oral argument will be at the discretion of the Court.”
2010 Docket No. 72. However, no decision was ever issued on the
branch of the Reconsideration Motion (2010 Docket No. 61) seeking
leave to file the proposed First Amended Complaint in the 2010
Action. D’Alessandro’s Motion for a Telephone Conference or Other
Guidance (2010 Docket No. 74) filed on June 19, 2014 also remains
pending. The Government filed additional notices of supplemental
authority with the Court on May 13, 2013 (2010 Docket No. 73) and
January 9, 2018 (2010 Docket No. 77).
C.
The 2013 Action
On April 26, 2013, D’Alessandro instituted the 2013 Action
under the FTCA, naming the substantially the same defendants as in
the 2010 Action, including Dr. Bailey. The 2013 Complaint alleged
the
following
causes
of
action:
(1)
negligent
continued
imprisonment and detention; (2) failure to provide proper medical
treatment; (3) false imprisonment; (4) intentional infliction of
emotional distress; and (5) abuse of process. D’Alessandro seeks
compensatory damages in the amount of $8.25 million and attorney’s
fees.
On August 5, 2013, the Government filed a Motion to Dismiss
(2013
Docket
No.
31);
Declaration
-10-
(2013
Docket
No.
);
and
Memorandum of Law in Support (“Gov’t MTD Mem.”) (2013 Docket
No. 33). Pursuant to Rule 12(b)(1), the Government argued that the
2013 Complaint should be dismissed as untimely under 28 U.S.C.
§ 2401(b). That section provides that the “[a] tort claim against
the United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after
such claim accrues . . . .” 28 U.S.C. § 2401(b). The Government
asserted that D’Alessandro’s claim accrued, at the latest, on the
date he was released from ICE custody on April 2, 2009. The
Government noted that D’Alessandro filed an administrative tort
claim with ICE on February 12, 2012; ICE denied the administrative
claim on October 29, 2012; and D’Alessandro commenced this action
on April 26, 2013, alleging that Defendants committed various torts
against him during the time he was in ICE custody from November 19,
2007, until April 2, 2009. Observing that two years, ten months,
and ten days elapsed between April 2, 2009, and the filing of the
administrative claim with ICE on February 12, 2012, the Government
argued that the 2013 Complaint must be dismissed based on the
failure to file an administrative claim within the FTCA’s two-year
statute of limitations. The Government also argued that the 2013
Complaint must be dismissed for lack of subject matter jurisdiction
as against all defendants other than the United States because the
United States is the only proper defendant in an action under the
FTCA, 28 U.S.C. §§ 1346(b)(1) and 2679(a). Alternatively, the
-11-
Government asserted that pursuant to Rule 12(b)(1) and 28 U.S.C.
§
2675(b),
Plaintiff’s
demand
for
damages
in
excess
of
the
$1.8 million sought in his administrative claim should be stricken.
D’Alessandro filed an Memorandum of Law in Opposition (“Pl.’s
MTD Mem.”) (2013 Docket No. 53) arguing that the 2013 Complaint is
timely when considered under provisions of the FTCA that provide
for tolling and extension of the two-year statute of limitations.
D’Alessandro indicated that he did not dispute the Government’s
first and third arguments in support of its motion to dismiss,
namely, that the United States is the only proper defendant and
that
he
is
limited
to
the
amount
of
damages
sought
in
his
administrative claim to ICE.
The Government filed a Reply Memorandum of Law (“MTD Reply”)
(2013 Docket No. 54), arguing that 28 U.S.C. § 2679(d)(5)’s savings
period was not triggered because the two statutory prerequisites
were
not
met,
i.e.,
“an
action
or
proceeding
in
which
the
United States is substituted as the party defendant under this
subsection,” which action then “is dismissed for failure first to
present a claim pursuant to section 2675(a) of this title.” 28
U.S.C.
§
2679(d)(5).
Furthermore,
the
Government
contended,
assuming arguendo that equitable tolling does apply in FTCA cases,
D’Alessandro has not demonstrated that extraordinary circumstances
prevented him from filing a timely claim; that he acted with
reasonable diligence throughout the time he seeks to have tolled;
-12-
and that his lawyers were diligent in determining whom to sue, the
proper forum, and the limitations periods that may apply.
On January 17, 2017, Magistrate Judge Schroeder issued his R&R
(2013 Docket No. 57) which recommended granting the Government’s
Motion to Dismiss the FTCA claim as untimely. The R&R reasoned that
the 2010 Action did not toll the limitations period under 28 U.S.C.
§ 2679(d)(5) because the Government “was not substituted as the
party defendant” in the 2010 Action. R&R at 9-10.
D’Alessandro
filed
a
Memorandum
of
Law
in
Support
of
Objections to the R&R (“Pl.’s Obj. Mem.”) (2013 Docket No. 62-11)
asserting that R&R incorrectly determined that this action is
untimely
because,
pursuant
to
28
U.S.C.
§
2679(d)(1),
the
Government was automatically substituted as the defendant in the
2010 Action once it certified its employees were acting within the
scope of their employment, and the case was dismissed as to those
employees. Therefore, D’Alessandro argued, his claims in the 2013
Action are timely under 28 U.S.C. § 2679(d)(5), which provides for
relation back of an action to the date of the original filing when
such substitution occurs. On March 13, 2017, the Government filed
a memorandum of law in response to Plaintiff’s objections (“Gov’t
Obj. Mem.”) (2013 Docket No. 63). D’Alessandro filed a memorandum
of law in further support of his objections (“Pl.’s Obj. Reply”)
(2013 Docket No. 65).
-13-
III.
Standard of Review
Recommendations made by a magistrate judge pursuant to 28
U.S.C. § 636(b)(1)(B) “need not be automatically accepted by the
district court.” Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).
Should either party object to a magistrate judge’s report and
recommendation, “[a] judge of the court shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Second Circuit has clarified that “[e]ven if
neither party objects to the magistrate’s recommendation, the
district
court
is
not
bound
by
the
recommendation
of
the
magistrate.” Grassia, 892 F.2d at 19. Rather, “‘[a] judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate. . . .’” Id.
(quoting 28 U.S.C. § 636(b)(1); citing Mathews v. Weber, 423 U.S.
261, 271 (1976); McCarthy v. Manson, 714 F.2d 234, 237 n. 2 (2d
Cir. 1983)).
IV.
Discussion
A.
Plaintiff’s
First
Objection:
The
Government’s
Substitution
as
Defendant
Was
Compulsory
Upon
Certification
D’Alessandro takes issue with the R&R’s finding that 28 U.S.C.
§
2679(d)(5)
did
not
apply
because
the
Government
did
not
substitute itself as a party in the 2010 Action. D’Alessandro notes
that
despite
filing
the
Certification
-14-
in
June
of
2011,
the
Government did not move to substitute the United States as a
party-defendant pursuant to 28 U.S.C. § 2679(d)(1). Regardless,
D’Alessandro argues, pursuant to 28 U.S.C. § 2679(d)(1), the United
States was,
by
statute,
substituted
for
Dr.
Bailey
upon the
Certification’s filing. D’Alessandro accuses the Government of
sharp practice insofar as it waited until just after two years from
the granting of the habeas petition on May 29, 2009, long after the
2010
Action
D’Alessandro
was
argues
commenced,
that
to
had
the
submit
the
Government
Certification.
submitted
the
Certification substituting itself as party-defendant at the outset
of the 2010 Action, D’Alessandro could have explicitly asserted his
FTCA claims earlier. Moreover, D’Alessandro points out, the Court
overlooked his request, made in his opposition to the Government’s
Motions to Dismiss the 2010 Complaint, that the Court effect the
substitution of the United States as a party defendant in place of
Dr. Bailey. The 2011 Decision noted this request and cited the
relevant statutory provision but dismissed the 2010 Complaint
without addressing the substitution issue.
The Westfall Act’s certification and compulsory substitution
provision, 28 U.S.C. § 2679(d)(1), provides as follows:
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district
court shall be deemed an action against the United States
under the provisions of this title and all references
-15-
thereto, and the United States shall be substituted as
the party defendant.
28 U.S.C.A. § 2679(d)(1) (West).
The Government argues that because the Certification was made
“pursuant to the provisions of 42 U.S.C. § 233” of the Public
Health Services Act,4 rather than the Federal Employees Liability
Reform and Tort Compensation Act of 1988, Pub. L. No. 100–694,
§
8(b),
102
Stat.
4563,5
its
certification
and
compulsory
substitution provision, see 28 U.S.C. § 2679(d)(1), and relation
back provision, see 28 U.S.C. § 2679(d)(5), do not apply.
D’Alessandro counters by noting that courts routinely accept
certification pursuant to 42 U.S.C. § 233(g)(1)(F) for purposes of
requiring substitution of the Government as a party defendant
without the necessity of supplying additional certification through
28 U.S.C. § 2679(d)(1). See Pl.’s Obj. Mem. (Docket No. 62-11) at
12-13; see also Pl.’s Obj. Reply (Docket No. 65) at 2-3 (citing,
4
The Public Health Services Act (“PHSA”), 42 U.S.C. § 201, et seq., as
amended by the Federally Supported Health Centers Assistance Act of 1992
(“FSHCAA”), “provides that eligible community health centers and their employees
are considered federal agency employees under the PHS Act for certain purposes.”
Mele v. Hill Health Ctr., 609 F. Supp.2d 248, 256 (D. Conn. 2009) (citing 42
U.S.C. § 233(g)(1)(A), (F)). Under 42 U.S.C. § 233(a), employees of covered
health centers “enjoy immunity from medical malpractice claims or other claims,
including claims for violating constitutional rights, if the alleged harmful
action occurred while the employees were providing medical or related services.”
Id. (citing Cuoco v. Moritsugu, 222 F.3d 99, 108 (2d Cir. 2000))
5
The Federal Employees Liability Reform and Tort Compensation Act of 1988
is commonly known as the Westfall Act. Gutierrez de Martinez v. Lamagno, 515 U.S.
417, 420 (1995). Pursuant to the Westfall Act, Federal employees are afforded
“absolute immunity from common-law tort claims arising out of acts they undertake
in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229
(2007) (citing 28 U.S.C. § 2679(b)(1)).
-16-
inter alia, Bryant v. Roosa, No. 15-CV-440-FPG, 2016 WL 320990, at
*2 (W.D.N.Y. Jan. 25, 2016) (in an medical malpractice action
brought under the FTCA, the Department of Health and Human Services
deemed defendant Universal Primary Care to be an employee of the
PHS and the Government certified that certain defendants all acted
within the scope of their employment as health care providers under
the FSHCAA; “based upon these certifications,” the district court
substituted the United States in place of those defendants);
Rosenblatt v. St. John’s Episcopal Hosp., No. 11-CV-1106 ERK CLP,
2012 WL 294518, at *1 & n. 2 (E.D.N.Y. Jan. 31, 2012) (following
Department of Health and Human Services’ issuance of certification
pursuant to 42 U.S.C. § 233(g) that a defendant physician was
acting within the course and scope of her federal employment as an
employee
of
a
covered
medical
center,
the
district
court
substituted the United States of America as a party defendant
pursuant to 42 U.S.C. § 233(a), (c), and (g), and 28 U.S.C.
§ 2679(d)(2), for the physician); Hutchinson v. United States,
01-cv-1198(ILG), 2006 WL 1154822, at *1 (E.D.N.Y. Apr. 28, 2006)
(court noted that effective October 1, 1996, BMS and BMS employees
Gumbs and Alerte were indemnified by the government as federal
employees
pursuant
to
42
U.S.C.
§
233(g)
and
28
U.S.C.
§§ 2671-2680; consequently, the United States was substituted for
those defendants as of October 1, 1996)).
-17-
The Government cites Hui v. Castaneda, 559 U.S. 799 (2010), as
controlling authority rebutting the above-cited cases. The question
presented in Hui was whether the immunity provided by 42 U.S.C.
§ 233(a) precludes Bivens actions against individual PHS employees
for harms arising out of constitutional violations committed while
acting within the scope of their employment. The Supreme Court held
that it did: “Section 233(a) makes the FTCA remedy against the
United States ‘exclusive of any other civil action or proceeding’
for any personal injury caused by a PHS officer or employee
performing a medical or related function ‘while acting within the
scope of his office or employment.’ . . .” 559 U.S. at 802; see
also id. at 808-11. From this holding, the Government extrapolates
that because Dr. Bailey asserted absolute immunity under 42 U.S.C.
§ 233(a) of the PHSA rather than under 28 U.S.C. § 2679(d)(1) of
the FTCA, and because the PHSA lacks the sort of “substitution”
provision contained in § 2679(d)(1) of the FTCA, Hui, 559 U.S. at
810
n.
9,
“substitution”
of
the
United
States
in
place
of
Dr. Bailey in 2010 Action raising Bivens claims action was not
possible under 42 U.S.C. § 233. The Government reasons that since
Dr.
Bailey
United
was
States
only
sued
Constitution
for
under
alleged
Bivens,
violations
of
substitution
the
under
28 U.S.C. § 2679(d)(1) of the FTCA would have been inappropriate as
that statute excludes constitutional claims from its reach. See
28 U.S.C. § 2679(b)(2)(A) (the FTCA’s exclusive-remedy provisions
-18-
in § 2679(b)(1) do not “extend or apply to a civil action against
an employee of the Government . . . which is brought for a
violation of the Constitution of the United States”); Hui, 559 U.S.
at
805
(recognizing
this
“exception”
in
the
FTCA
for
“constitutional violations”).
The Court finds that the Government is reading too much into
Hui,
which
dealt
with
the
scope
of
immunity
rather
than
substitution of parties and thus was not called upon to address the
precise question presented here. There, the key issue was whether
the respondents, survivors of an immigration detainee, could hold
PHS employees liable under Bivens. To that end, they argued that 42
U.S.C. § 233’s lack of a procedure for “scope certification” in
federal-court actions meant that 42 U.S.C. § 233(a) does not make
the remedy under the FTCA exclusive of all other actions against
PHS personnel. 559 U.S. at 810. Thus, the respondents in Hui
reasoned, PHS employees seeking to invoke the immunity provided by
§ 233(a) must rely on the FTCA’s scope certification procedure in
28 U.S.C. § 2679(d), which is in turn subject to the “limitations
and exceptions” applicable to FTCA actions, including the exception
for Bivens actions provided by 28 U.S.C. § 2679(b)(2).
Hui, 559
U.S. at 810-11 (citation omitted). The Supreme Court disagreed,
siding with the PHS employees who argued that there is “no reason
to believe” that scope certification by the Attorney General is a
prerequisite to immunity under 42 U.S.C. § 233(a). Id. at 811. The
-19-
Supreme Court observed that “in most § 233(a) cases,” “proof of
scope is . . . established by a declaration affirming that the
defendant was a PHS official during the relevant time period.”
Id. “Thus, while scope certification may provide a convenient
mechanism for establishing that the alleged misconduct occurred
within the scope of the employee’s duties, the procedure authorized
by § 2679(d) is not necessary to effect substitution of the United
States.” Id.
The Supreme Court observed that the FTCA’s scope
certification procedure was enacted almost two decades after 42
U.S.C. § 233(a), which “confirms that Congress did not intend to
make that procedure the exclusive means for PHS personnel to invoke
the official immunity provided by § 233(a).” Id. In this Court’s
view, the foregoing language in Hui undercuts rather than bolsters
the Government’s substitution argument.
Furthermore, the Government’s argument conveniently glosses
over the interrelatedness between the PHSA and the FTCA. As an
initial matter, 42 U.S.C. § 233(a) is narrower in scope than the
FTCA; it applies to a discrete group of Federal employees working
at covered health centers who statutorily “enjoy immunity from
medical malpractice claims or other claims, including claims for
violating constitutional rights, if the alleged harmful action
occurred while the employees were providing medical or related
services.” Mele v. Hill Health Ctr., 609 F. Supp.2d 248, 256
(D. Conn. 2009) (citing Cuoco v. Moritsugu, 222 F.3d 99, 108
-20-
(2d Cir. 2000)). The Certification in this case was signed by the
Acting
Director,
Torts
Branch,
Civil
Division,
United
States
Department of Justice, acting pursuant to the provisions of 42
U.S.C. § 233, and “by virtue of the authority vested in [him] by 28
C.F.R. § 15.4.” 2010 Docket No. 37-12.
The regulation cited in the Certification, 28 C.F.R. § 15.4,
provides that “[t]he United States Attorney for the district where
the civil action or proceeding is brought, or any Director of the
Torts Branch, Civil Division, Department of Justice, is authorized
to make the statutory certification that the Federal employee was
acting within the scope of his office or employment with the
Federal Government at the time of the incident out of which the
suit arose.” 28 C.F.R. § 15.4(a). It further provides that the
officials specified in subsection (a) are “authorized to make the
statutory certification that the covered person was acting at the
time
of
the
incident
out
of
which
the
suit
arose
under
circumstances in which Congress has provided by statute that the
remedy
provided
by
the
Federal
Tort
Claims
Act
is
made
the
exclusive remedy.” 28 C.F.R. § 15.4(b); see also Cuoco, 222 F.3d at
107 (defendants’ “complained of behavior . . . occurred within the
scope of their offices or employment and during the course of their
‘performance of medical . . . or related functions,’ 42 U.S.C.
§ 233(a),” and, as such, plaintiff’s “exclusive remedy for injuries
caused by that behavior is . . . against the United States under
-21-
the Federal Tort Claims Act”). “When federal employees are sued for
damages for harms caused in the course of their employment, the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680,
generally authorizes substitution of the United States as the
defendant.” Hui, 559 U.S. at 801-02. After reviewing Hui and
reading in context the applicable regulation and statutory sections
(28 C.F.R. § 15.4 and 42 U.S.C. § 233), the Court is not persuaded
by the Government’s interpretation of Hui as requiring additional
certification
substitute
beyond
the
certification
is
United
made
42
U.S.C.
States
§
as
pursuant
233(g)(1)(F)
a
to
party
42
in
order
defendant.
U.S.C.
§
Once
to
a
233(g)(1)(F),
28 C.F.R. § 15.4 mandates that the exclusive remedy against the
subject employee is the FTCA, which itself authorizes substitution.
See Hui, 559 U.S. at 801-02.
The fact that D’Alessandro did not specifically identify the
FTCA in the 2010 Complaint does not alter this Court’s analysis. As
D’Alessandro points out, the original 2010 Complaint set forth all
the facts necessary to allege a cause of action under the FTCA
against Dr. Bailey for her alleged negligence in rendering medical
care.6
The
Government
does
not
dispute
that
the
substantive
6
Pursuant to the FTCA, the United States has waived sovereign immunity only
for claims asserted
[1] against the United States, [2] for money damages . . . [3] for
injury or loss of property, or personal injury or death [4] caused
by the negligent or wrongful act or omission of any employee of the
Government [5] while acting within the scope of his office or
employment, [6] under circumstances where the United States, if a
-22-
allegations against Dr. Bailey are the same in both the 2010 Action
and
2013
Action.
Indeed,
courts
have
construed
complaints
specifically asserting Bivens claims as raising FTCA claims even
though the FTCA was not mentioned by the plaintiffs. See, e.g.,
Early v. Shepherd, No. 216CV00085JMSMJD, 2017 WL 4650873, at *4
(S.D. Ind. Oct. 17, 2017) (ordering the substitution of the United
States as the proper defendant as to the claim that defendant
Shepherd
provided
inadequate
dental
care
under
the
FTCA,
notwithstanding the fact certification was made pursuant to 42
U.S.C. § 233 and that the complaint specifically referenced Bivens
and a racketeering statute and did not cite the FTCA); Cuello v.
United States, No. 11-CV-2216(KAM), 2013 WL 1338839, at *1, *3 & n.
4
(E.D.N.Y.
Mar.
29,
2013)
(court
noted
that
plaintiff’s
allegations in the Bivens action against certain defendants could
liberally
be
construed
as
FTCA
claims,
insofar
as
plaintiff
appeared to allege that these defendants negligently failed to
adhere to the BOP’s safety regulations regarding segregation of
inmates and negligently failed to provide plaintiff with prompt and
adequate medical care after the alleged attack); Robinson v.
Lindsay, No. 09 CV 2852(RJD)(SMG), 2011 WL 3876977, at *3 (E.D.N.Y.
Sept. 1, 2011) (plaintiff asserted an Eighth Amendment claim for
private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
FDIC v. Meyer, 510 U.S. 471, 477 (1994) (quoting 28 U.S.C. § 1346(b)).
-23-
deliberate medical indifference under Bivens; court found that he
had alleged at most negligence which would “support an FTCA claim
against the federal government as a whole”; “[d]efendants concede
as much and request that the United States be substituted as a
defendant”).
In sum, the Court concludes that it is proper to accept
certification pursuant to 42 U.S.C. § 233(g)(1)(F) as triggering
the mandatory substitution of the United States as the proper
defendant under the Westfall Act, and that no special certification
through the Westfall Act was required.
B.
Plaintiff’s Second Objection: The 2013 Complaint Relates
Back to the 2010 Complaint
D’Alessandro
argues
that
in
light
of
the
compulsory
substitution of the Government as the defendant in the 2010 Action,
occasioned by the Government’s filing of the Certification under 42
U.S.C. § 233(g)(1)(F), the instant action is timely under the
“savings clause” or “relation back” provision of the Westfall Act,
28 U.S.C. § 2679 (d)(5). Section 2679(d)(5) states as follows:
Whenever an action or proceeding in which the United
States is substituted as the party defendant under this
subsection is dismissed for failure first to present a
claim pursuant to section 2675(a) of this title, such a
claim shall be deemed to be timely presented under
section 2401(b) of this title if-(A) the claim would have been timely had it
been filed on the date the underlying civil
action was commenced, and
(B) the claim is presented to the appropriate
Federal agency within 60 days after dismissal
of the civil action.
-24-
28 U.S.C.A. § 2679(d)(5) (West).
The Government argues that the savings clause of 28 U.S.C.
§ 2679(d)(5) is not applicable in this case because (1) express
substitution did not occur in the 2010 Action, and (2) the 2010
Action was dismissed due to special factors counseling against
extending Bivens to what the Court viewed as a new context, as
opposed to being dismissed for a failure to exhaust administrative
claims under the FTCA. First, as discussed above, the Court already
has found that substitution of the United States effectively
occurred the instant the Government certified that Dr. Bailey was
a PHS employee under 42 U.S.C. § 233.
Second, the Court disagrees that the 2011 Decision dismissing
the 2010 Action precludes applicability of the Westfall Act’s
savings clause because the 2011 Decision did not refer to failureto-exhaust as a basis for dismissal. See Cuello, 2013 WL 1338839,
at *4 (construing a Bivens cause of action as an FTCA claim where
the government certified the employees were acting within the scope
of their employment, and the Bivens actions were dismissed for
reasons unrelated to the exhaustion requirements of the FTCA). It
bears noting that the Government did raise the failure to exhaust
administrative remedies in its opposition to Plaintiff’s request to
amend the 2010 Complaint. The 2010 Complaint, as noted above,
contained sufficient factual matter to state a plausible FTCA
-25-
claim, although that legal theory was not labeled as such by
D’Alessandro. And, as discussed above, the necessary substitution
occurred upon
the
filing
of
the Certification,
and
the 2010
Complaint should have been construed as raising an FTCA claim. At
that
time,
D’Alessandro
had
not
submitted
a
claim
to
the
appropriate Federal agency. Thus, any FTCA claim would have been
subject
to
dismissal
for
failure
to
exhaust
administrative
remedies. Following the dismissal of the 2010 Action on December
12, 2011, D’Alessandro had 60 days to present his FTCA claim to the
appropriate agency; he met this deadline when he filed his notice
of claim for damages with ICE on February 8, 2012, less than
60 days from the date the 2010 Action was dismissed. See 28 U.S.C.
§ 2679(d)(5). D’Alessandro’s FTCA claim accordingly relates back to
the
date
the
2010
Action
was
commenced,
November
18,
2010.
Therefore, the Court considers it to have been timely filed under
28 U.S.C. § 2401(b).
V.
Conclusion
For the foregoing reasons, the Court rejects the R&R (2013
Docket
No.
57)
and
grants
in
part
and
denies
in
part
the
Government’s Motion to Dismiss (2013 Docket No. 31). Accordingly,
it is hereby
ORDERED that the Motion to Dismiss is granted to the extent
that
all
pursuant
individual
to
28
defendants
U.S.C.
§
are
2679(b)(1),
-26-
dismissed
and
the
with
prejudice
sole
remaining
defendant is the United States. The Clerk of Court is directed to
amend the official caption accordingly. It is further
ORDERED that the Motion to Dismiss is granted to the extent
that
D’Alessandro
is
limited
to
recovery
of
no
more
than
$1.8 million, pursuant to 28 U.S.C. § 2675(b), in the event that he
prevails on his FTCA claim. It is further
ORDERED that the Motion to Dismiss is denied in all other
respects. The 2013 Complaint is deemed timely filed, and the
Government is directed to serve a responsive pleading to the 2013
Complaint within thirty (30) days of the date of entry of this
Decision and Order.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
June 18, 2019
Rochester, New York
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