Grant v. United States Marshal Service Western District of New York et al

Filing 37

DECISION AND ORDER: The Defendant's 19 Motion to Dismiss is granted. Pursuant to Fed. R. Civ. P. 12(b)(1), the action is dismissed for lack of subject matter jurisdiction without prejudice, and the Clerk of Court shall terminate the action. A copy of the Decision and Order, along with this entry, has been mailed to Jerome Nathan Grant, 15114-055, CATTARAUGUS COUNTY JAIL, 301 Court Street, Little Valley, NY 14755. SO ORDERED. Signed by Hon. Richard J. Arcara on 2/13/2018. (LAS)-CLERK TO FOLLOW UP-

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JEROME NATHAN GRANT,
Plaintiff,
-v-

16-CV-0866-A
DECISION AND ORDER

STEPHEN WOLF,
Defendants.
___________________________________

The Plaintiff, Jerome Nathan Grant, who at the time of filing the pro se Complaint
in this action was a federal pretrial detainee at the Allegany County Jail, alleges that
defendant Steven Wolf denied plaintiff Grant adequate medical by denying plaintiff’s
request for a root canal. Plaintiff alleges that because defendant Wolf denied him
adequate dental treatment, for “two years [he has] been in extreme pain [and had] to eat
with only one side oh [his] mouth[. His] tooth has been infected numerous times due to
the . . . [denial of] proper medical treatment.” (Dkt. No. 1, Complaint at 5-6. 1)
Specifically, An exhibit to the Complaint entitled “Prisoner Medical Request,” states that
on February 17, 2015, the defendant denied plaintiff’s request for a root canal while he
was at the Allegany County Jail because the “USMS does not routinely authorize
endodontic treatment (root canal) and associated restorative work to preserve teeth
during the limited duration of USMS custody. If required for relief of pain and suffering,
extraction is authorized.” Plaintiff was prescribed antibiotics for temporary management
of his dental problems. (Docket No. 1, Complaint, Exh. at 9-10.)

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Page references are to those set by the Court’s Case Management and Electronic Case Filing System (CM/ECF).

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Defendant Wolf has moved pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss the
action for lack of subject matter jurisdiction based upon the contention the defendant is
immune from suit as a Public Health Service employee. For the reasons stated below,
the Court finds the defendant does have statutory absolute immunity from suit, and that
the Court lacks subject matter jurisdiction over plaintiff Grant’s allegations. The
defendant’s motion to dismiss is therefore granted.
DISCUSSION
The Public Health Service Act provides that the exclusive remedy for personal
injuries caused by Public Health Service employees acting within the scope of their
employment is an action under the Federal Tort Claims Act. 42 U.S.C. § 233(a); see
e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Defendant Wolf has
established that he is a physician, and that he was a Captain in the United States Public
Health Service, and Medical Director of the Prisoner Operations Division of the U.S.
Marshals Service, at the time he denied plaintiff Grant’s request for a root canal. Dkt.
No. 21. The defendant proffers that the denial of plaintiff’s request for a root canal was
consistent with applicable policies and standard medical practice, and that the denial
was within the scope of his employment. Id. Plaintiff Grant does not contest this
jurisdictional showing. Under the circumstances, the defendant is immune from suit.
See e.g., Robinson v. Knibbs, et al., No. 16-CV-3826 (NSR), 2017 WL 3578700, *3-4
(S.D.N.Y. Aug. 17, 2017). The defendant’s motion to dismiss for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) is therefore granted.
ORDER
Based on the above, it is hereby

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ORDERED, that pursuant to Fed. R. Civ. P. 12(b)(1), the action is dismissed for
lack of subject matter jurisdiction without prejudice to any cognizable suit against the
United States under the Federal Tort Claims Act; and
ORDERED, that the Clerk of Court shall terminate the action.
SO ORDERED.

__s/Richard J. Arcara______
Richard J. Arcara
United States District Judge

DATED:

February 13, 2017
Buffalo, NY

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