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Anson v. Bailey

February 18, 2009

DONALD ANSON, PLAINTIFF,
v.
BRENDA BAILEY, M.D., ET AL., DEFENDANTS



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

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.*fn1 Because plaintiff named federal officers as defendants, the Court construed his complaint as an action under Bivens v. Six Unknown Named Agents , 403 U.S. 388, 398 (1971).*fn2

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

Fed. R. Civ. P. 12(b)(1) Standard

A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure when the Court lacks the statutory or constitutional power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. Id. In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings. Id. However, the Court "must accept as true all material allegations in the complaint" and interpret a plaintiff's pro se complaint "to raise the strongest arguments" that the allegations suggest. Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).

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 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 exceptions, waives the sovereign immunity of the federal government for claims based on the negligence of its employees." Coulthurst v. United States, 214 F.3d 106, 108 (2d Cir. 2000). 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 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. ยง ...


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