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Crudup v. Doe

May 1, 2008

MARK CRUDUP, PLAINTIFF,
v.
JOHN/JANE DOE, CED, RESER'S FINE FOODS, INC.; JOHN DOE, DENTIST, CARVER COMMUNITY MEDICAL CENTER;*FN1 HARRY C. BUFFARDI, SHERIFF, CITY COUNTY JAIL OF SCHENECTADY; SCHENECTADY COUNTY JAIL;AND RESER'S FINE FOODS, INC. DEFENDANTS



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

REPORT-RECOMMENDATION AND ORDER*fn2

Plaintiff pro se Mark Crudup ("Crudup"), formerly an inmate in the custody of the Schenectady County Jail ("Jail"), brought an action in the Schenectady County Supreme Court alleging that defendants, the Schenectady County Sheriff and individuals providing services to inmates at the Jail, were negligent in serving food and providing dental care. Compl. (Docket No. 1, pt. 2). On June 26, 2006, defendant dentist removed the action to federal court pursuant to 28 U.S.C. § 1442(a)(1) and 28 U.S.C. §2679(b)(2) on the ground that defendant dentist's employer was a grantee of a federal agency giving the federal courts exclusive jurisdiction over Crudup's claim. Docket No. 1. Presently pending is defendant dentist's motions to (1) substitute the United States as defendant for defendant dentist pursuant to 42 U.S.C. § 233 and (2) dismiss the case against the United States pursuant to 28 U.S.C. § 2675(a). Docket No. 5, pt. 2. Also pending is Crudup's motion to remand.*fn3 Docket No. 20. For the following reasons, it is recommended that defendant dentist's motion be granted in its entirety and that Crudup's motion to remand also be granted.

I. Background

The facts are presented in the light most favorable to Crudup as the non-moving party. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).

Crudup was incarcerated at the Jail at all relevant times herein. Compl. at ¶ 1. On or about August 15, 2004, Crudup was eating potato salad, bit down on a foreign object, and broke his tooth. Id. at ¶ 5. After submitting multiple requests for treatment, Crudup was finally seen by the Jail's dental staff. id. at ¶ 6. Crudup contends that defendant dentist committed malpractice by improperly breaking off his tooth, leaving the root exposed. Id. at ¶ 6. As a result, Crudup experienced excruciating pain and suffering. Id. at ¶ 6. Id. at ¶ 14.

On or about April 28, 2006, Crudup commenced this action in the Schenectady County Supreme Court. Docket No. 1 at ¶ 1. Defendant dentist is employed by Schenectady Family Health Services, Inc. ("Family Health Services") which is a grantee of the Department of Health and Human Services and . . . [pursuant to] the Federally Supported Health Centers Assistance Act, [Family Health Services] and its employees are covered under the Federal Tort Claims Act [FTCA] in that the complaint alleges personal injuries incurred as a result of dental services rendered to [Crudup] while an inmate at Schenectady County Jail.

Id. at ¶ 3. Defendant dentist has provided certification that Family Health Services was a grantee of the federal government. Id. at ¶ 4 & pt. 3; Docket No. 5, pt. 2 at 1-2 & pt. 3. Pursuant to 42 U.S.C. §§ 233(a) and (c), defendant dentist removed the case to this court on June 26, 2006. Docket No. 1; Docket No. 5, pt. 2 at 2. These motions followed.

II. Discussion

A. Removal

District courts retain original jurisdiction over "all civil actions arising under the . . . laws . . . of the United States." 28 U.S.C. § 1331. Unless expressly prohibited by Congress, "any civil action brought in a State court of which the districtcourts . . . have original jurisdiction, may be removed by the defendant . . . ." 28 U.S.C. § 1441. . The FTCA is a federal statute providing civil relief for damages, including personal injuries, caused by Public Health Service workers. 42 U.S.C. § 233(a). Because Crudup has asserted a civil action for which a federal statute may provide relief, this Court had original jurisdiction over the case and defendant dentist's removal was proper.

In response to defendant dentist's motion, Crudup seeks to remand the case back to state court. However, Crudup asserts no basis for removal. Because the Court's jurisdiction over the case is clear, Crudup presumably seeks remand on alternative grounds. However, the motion to remand was made five months late. See 28 U.S.C. § 1447(c) (stating that a motion to remand must be made within thirty days of the filing of the notice of removal). Thus, Crudup's untimely, vague, and conclusory allegations are insufficient to override defendant dentist's removal to this Court and a remand to state court.

B. The United States as a Defendant

The FTCA provides an "[exclusive] remedy against the United States . . . for damage for personal injury . . . resulting from the performance of . . . dental . . . functions . . . by any commissioned officer or employee of the Public Heath Service while acting within the scope of his office or employment . . . ." 42 U.S.C. § 233(a). Subsection 233(g) sets forth the procedure for certain entities and their employees receiving federal grants to be deemed employees of the Public Health Service for purposes of § 233(a). Koehler v. Cortland Memorial Hosp., 65 F. Supp. 2d 103, 106 (N.D.N.Y. 1999). Certified community health centers are among those entities entitled to Public Health Service status. Id. In this case, Family Health Services was a certified community health center entitled to Public Health Service status pursuant to ยง 233. Docket No. 1, pt. 3; Docket No. 5, pt. 3. Thus, because Crudup brings suit against a Public Health Service, his exclusive remedy lies against the United States ...


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