Cichocki v. United States of America et al
DECISION AND ORDER -- IT HEREBY IS ORDERED, that the government's Motion to Dismiss (Docket No. 28) is GRANTED. FURTHER, that the Clerk of Court is directed to TERMINATE the Department of Veteran Affairs, the Department of Veteran Affairs Medical Center, Joseph Ling, M.D., Cristy Ku, M.D., and Michael L. Vilardo, M.D, as defendants. SO ORDERED. Signed by William M. Skretny, United States District Judge on 8/1/2022. (JCM)Clerk to Follow up
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
DEPARTMENT OF VETERAN AFFAIRS,
DEPARTMENT OF VETERAN AFFAIRS
MEDICAL CENTER, JOSEPH LING, M.D.,
CRISTY KU, M.D., MICHAEL L. VILARDO,
M.D., BEAVER-VISITEC INTERNATIONAL,
INC., and JOHN DOES 1-5,
DECISION AND ORDER
In this action, Plaintiff Jerome Cichocki seeks damages for injuries incurred during
a surgery performed at the Department of Veteran Affairs Medical Center in Buffalo, New
York. He asserts, inter alia, medical-malpractice and lack-of-consent claims against the
Department of Veteran Affairs (“VA”), the VA Medical Center, and VA doctors under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 (b), 2679 (a), which the government
now moves to dismiss on their behalf for lack of subject-matter jurisdiction. 1 (Docket No.
28.) For the reasons that follow, the government’s motion will be granted.
This Court assumes the truth of the following factual allegations contained in
Cichocki’s complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96
Cichocki also brings claims against Defendant Beaver-Visitec International, a non-federal
defendant that has filed an answer. (Docket No. 32.) Beaver-Visitec International is not involved in the
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S. Ct. 1848, 48 L. Ed. 2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc.
v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).
On September 19, 2019, Cichocki underwent bi-lateral cataract surgery at the VA
Medical Center. (Complaint, Docket No. 1, ¶ 15.) Before the surgery, Cichocki met with
Defendant Dr. Joseph Ling, who advised that he would perform the surgery but failed to
inform Cichocki of the risks involved. (Id., ¶ 16.) Dr. Ling, however, did not perform
Cichocki’s surgery and was not present during it. (Id., ¶ 17.) Instead, Defendant Dr.
Cristy Ku, a medical fellow, performed the surgery under Defendant Dr. Michael L.
Vilardo’s supervision. (Id., ¶¶ 17, 18.)
At some point during the surgery, a medical device manufactured by Defendant
Beaver-Visitec International sent a high-pressure stream of water directly into Cichocki’s
right eye, tearing the lens and retina and causing blindness. (Id., ¶¶ 19, 20.) Post surgery,
Cichocki sought follow-up treatment from other doctors and underwent further procedures
on his right eye, but nothing fixed the damage or cured the blindness. (Id., ¶¶ 21-31.)
Cichocki’s right-eye condition continues to require medical care, and Cichocki anguishes
over the possibility that his left eye may also require additional surgery. (Id., ¶¶ 32, 33.)
Rule 12 (b)(1) of the Federal Rules of Civil Procedure provides for dismissal of a
complaint for lack of subject-matter jurisdiction. “Determining the existence of subject
matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of
subject matter jurisdiction under Rule 12 (b)(1) when the district court lacks the statutory
or constitutional power to adjudicate it.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167,
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170 (2d Cir. 2008) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008)).
On a Rule 12 (b)(1) motion, the party invoking jurisdiction bears the burden of
demonstrating that jurisdiction exists. Levinson v. U.S. Fed. Bureau of Prisons, Metro.
Corr. Ctr. – New York, No. 20-CV-7375 (VEC), 2022 WL 909795, at *4 (S.D.N.Y. Mar. 28,
2022) (citing McIntosh v. United States, No. 15-CV-2442 (KMK), 2018 WL 1275119, at *4
(S.D.N.Y. Mar. 7, 2018)). All reasonable inferences, however, are drawn in favor of the
party asserting jurisdiction. Id.
Federal Tort Claims Act
“[S]overeign immunity shields the Federal Government and its agencies from suit.”
F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed.2d 308 (1994). Unless
the government waives its sovereign immunity, a court lacks subject-matter jurisdiction.
Presidential Gardens Assocs. v. U.S. ex rel. Sec. of Hous. & Urban Dev., 175 F.3d 132,
139 (2d Cir. 1999) (“The waiver of sovereign immunity is a prerequisite to subject-matter
jurisdiction.”). Accordingly, “[t]o establish that subject matter jurisdiction exists for a suit,
Plaintiff must identify an applicable waiver of the Government's sovereign immunity;
otherwise, the Court must dismiss the suit, pursuant to Rule 12 (b)(1).” De Masi v.
Schumer, 608 F. Supp. 2d 516, 524 (S.D.N.Y. 2009) (citing Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000)).
“[W]aivers of sovereign immunity must be
‘unequivocally expressed’ in statutory text, and cannot simply be implied.” Adeleke v.
United States, 355 F.3d 144, 150 (2d Cir. 2004) (citing United States v. Nordic Vill., Inc.,
503 U.S. 30, 33, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992)).
The United States has established a limited waiver of sovereign immunity in the
FTCA for certain suits. Levinson, 2022 WL 909795, at *5. Specifically, suits can be
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brought only for:
money damages . . . loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.
28 U.S.C. § 1346 (b)(1).
When a suit falling within this limited waiver of sovereign immunity is brought, the
only proper defendant is the United States. Charles v. Potter, 07 Civ. 10572 (SHS), 2008
WL 4499130, at *2 (S.D.N.Y. Oct. 7, 2008) (noting that the United States is the “only
proper federal defendant in an FTCA suit”). As such, FTCA claims asserted directly
against federal employees for conduct taken within the scope of their employment cannot
survive. 28 U.S.C. § 2679 (b); see also Rivera v. United States, 928 F.2d 592, 608-09
(2d Cir. 1991) (explaining that government employees are not proper defendants under
the FTCA). Rather, “[a] claimant's exclusive remedy for nonconstitutional torts by a
government employee acting within the scope of his employment is a suit against the
government under the FTCA.” Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994)
(citing Rivera, 928 F.2d at 608–09 and 28 U.S.C. § 2679 (b)(1)).
The FTCA provides that
[u]pon 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 thereto, and the United
States shall be substituted as the party defendant.
28 U.S.C. § 2679 (d)(1).
Here, the Attorney General, through a delegation of authority to the United States
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Attorney for the Western District of New York, has certified that the defendant doctors
were acting within the scope of their employment at the time of the incident in question.
(Certification, Docket No. 28-2.) Consequently, the individual defendants—Drs. Ling, Ku,
and Vilardo—are immune from suit under the FTCA and must be dismissed for lack of
Likewise, “[a] federal agency is not a proper defendant under the FTCA; only the
United States can be sued for claims within the law's scope.” Page v. Oath Inc., 17 Civ.
6990 (LGS), 2018 WL 1406622, at *3 (S.D.N.Y. Mar. 20, 2018) (citing 28 U.S.C. § 2679
(b)(1)). “[I]f a suit is ‘cognizable’ under § 1346 (b) of the FTCA, the FTCA remedy is
‘exclusive’ and the federal agency cannot be sued ‘in its own name.’” Meyer, 510 U.S. at
476 (quoting 28 U.S.C. § 2679 (a)); Rivera, 928 F.2d at 609 (“The FTCA . . . precludes
tort suits against federal agencies. The only proper federal institutional defendant in such
an action is the United States.”) (citing 28 U.S.C. § 2679(a)).
Because the United States is the only proper defendant in this action, Cichocki’s
complaint must be dismissed as to the VA and the VA Medical Center for lack of subjectmatter jurisdiction. 28 U.S.C. §§ 1346 (b), 2679 (a)–(b)(1).
Cichocki concedes that the United States is the only proper defendant in this action
yet urges this Court to deny the individual doctors’ bid for dismissal as a matter of equity.
(Declaration of Kevin T. Stocker, Esq., Docket No. 30, ¶ 8.) Cichocki argues that retaining
the individual defendants would provide public notice of their alleged malpractice and
ease discovery. But the principles of sovereign immunity discussed above, particularly
the limited waiver in 18 U.S.C. § 1346 (b)(1), do not yield to such considerations. The
government’s motion to dismiss will therefore be granted.
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Because this Court lacks subject-matter jurisdiction over the individual doctors, the
VA, and the VA Medical Center, it will grant the government’s motion and dismiss Drs.
Ling, Ku, and Vilardo, the VA, and the VA Medical Center as defendants in this action.
IT HEREBY IS ORDERED, that the government’s Motion to Dismiss (Docket No.
28) is GRANTED.
FURTHER, that the Clerk of Court is directed to TERMINATE the Department of
Veteran Affairs, the Department of Veteran Affairs Medical Center, Joseph Ling, M.D.,
Cristy Ku, M.D., and Michael L. Vilardo, M.D, as defendants.
August 1, 2022
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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