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El-Hanafi v. United States

United States District Court, S.D. New York

August 22, 2014

WESAM EL-HANAFI, Plaintiff(s),
v.
UNITED STATES OF AMERICA, ET AL., Defendant(s)

Page 359

For Wesam El-Hanafi, Plaintiff: Jake Richey Harper, Solo Practitioner, New York, NY.

For United States Of America, Sean Cooper, Vice Consul of the U.S. Embassy in Dubai, officially, Sean Cooper, Vice Consul of the U.S. Embassy in Dubai, individual capacities, Daniel Withers, agent of the Federal Bureau of Investigation, officially, Daniel Withers, agent of the Federal Bureau of Investigation, individual capacities, Charlotte Doe, agent of the Federal Bureau of Investigation, official, Charlotte Doe, agent of the Federal Bureau of Investigation, individual capacities, John and Jane Does, agents of the Federal Bureau of Investigation or the Office of the United States Marshals, individual capacities, Federal Bureau of Prisons (BOP) and Metropolitan Correctional Center (MCC), a Monell claim, Suzanne Hastings, Warden, MCC, official, Suzanne Hastings, Warden, MCC, individual capacities, Supervising Attorney Adam Johnson, Esq., MCC, official, Supervising Attorney Adam Johnson, Esq., MCC, individual capacities, Clinical Director Mark Glover, M.D., MMC, (Retired) official, Clinical Director Mark Glover, M.D., MMC, (Retired), individual capacities, Clinical Director Anthony Bussanich, M.D., MCC, official, Clinical Director Anthony Bussanich, M.D., MCC, individual capacities, Clinical Director John/Jane Doe, M.D., Federal Transfer Center, Oklahoma City, Oklahoma, official, Clinical Director John/Jane Doe, M.D., Federal Transfer Center, Oklahoma City, Oklahoma, individual capacities, Clinical Director John/Jane Doe, M.D., Alexandria, Virginia Facility, official, Clinical Director John/Jane Doe, M.D., Alexandria, Virginia Facility, individual capacities, C. Evangelista, MCC/MLP, A. Aboulfateh, MCC/MLP, E. Ramos, MCC/MLP, Julie Small, MCC/Health Information Technician, John/Jane Does, MCC Staff Health Care, John/Jane Does, OKC Federal Transfer Center Staff Health Care, John/Jane Does, Alexandria Facility (Va.) Staff Health Care, John/Jane Does, MCC Staff Health Care, Individually, John/Jane Does, OKC Federal Transfer Center Staff Health Care, Individually, John/Jane Does, Alexandria Facility (Va.) Staff Health Care, Individually, Dr. Thomas Goforth, C.D., Federal Transfer Center, Oklahoma City Oklahoma, official and individual capacities, Defendants: Michael J. Byars, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY.

For Conmed Healthcare Management, Inc., Alexandria Detention Center, Alexandria, Va., official and individual capacities, Correct Care Solutions, Alexandria Detention Center, Alexandria, Va., Official and Individual Capacities, Defendants: Denise M. Cossu, Gaines, John Martin Murtagh, Jr, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, NY.

Page 360

OPINION AND ORDER

GREGORY H. WOODS, United States District Judge.

Defendants Conmed Healthcare Management, Inc. (" Conmed" ) and Correct Care Solutions (" CCS" ) are private companies that provided medical services to federal inmates at the Alexandria Detention Center in Alexandria, Virginia. Plaintiff Wesam El-Hanafi brings this action against Conmed and CCS, together with the individual employees of these companies, for failure to diagnose and treat his medical condition during his eleven-day incarceration at the Alexandria Detention Center. Conmed and CCS move to dismiss the complaint on the grounds that it fails to state a Bivens claim against them and their employees, and that the state law claims asserted by El-Hanafi are time-barred.[1] This case raises the question whether a private company under contract with the federal government to provide medical services, as well as its employees, can be held liable under Bivens. Because the Supreme Court rejected the expansion of Bivens under these circumstances in Correctional Services Corporation v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) and Minneci v. Pollard, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012), respectively, the Court grants the defendants' motion to dismiss

Page 361

with respect to the federal claims against them. Additionally, the Court dismisses El-Hanafi's state law claims against Conmed, CCS, and their employees as time-barred.

I. BACKGROUND

A. Facts[2]

On April 27, 2010, El-Hanafi was detained by the Abu Dhabi Police at the direction of the government of the United States. Third Amended Complaint (" Compl." ) ¶ 31. He was held in the custody of the Abu Dhabi police until April 30, 2010, when he was delivered to agents of the United States. Id. ¶ ¶ 47-48. That same day, El-Hanafi was transported to the United States by plane on a flight that lasted 16 hours. Id. ¶ ¶ 47, 50. Upon his arrival at Dulles International Airport, El-Hanafi claims that he noticed, " for the first time, a stinging sensation in his right calf." Id. ¶ 56. Approximately five hours after his arrival in the United States, El-Hanafi was arraigned in the United States District Court for the Northern District of Virginia. Id. ¶ 57. Prior to the arraignment, El-Hanafi says he complained to " government agents near his holding cell" about " the stinging sensation in his calf." Id. ¶ 58.

El-Hanafi was subsequently held at the Alexandria Detention Center in Alexandria, Virginia, which he alleges was " medically staffed by either [Conmed or CCS], private contractors with the federal [Bureau of Prisons], an agency within the executive branch of the government of the United States." Id. ¶ ¶ 60, 61. He remained there for eleven days until being transferred to another facility. Id. ¶ ¶ 60, 71.

During his incarceration at the Alexandria Detention Center, El-Hanafi was held in isolation for twenty-two hours a day and received two hours per day for recreation. Id. ¶ ¶ 62-63. He says he continued to experience a " stinging pain in his calf," and decided to " make the most out of his two-hour period of 'recreation'" by doing " strenuous exercises in hopes of alleviating the pain he felt in his right leg." Id. ¶ 65. Those exercises did not help abate the pain, however, and it soon spread to his right ankle. Id. ¶ 66. On the first or second day of his confinement at the Alexandria Detention Center, El-Hanafi says he complained to unnamed " agents of the government of the United States" about the pain. Id. ¶ 67. El-Hanafi also spoke to an unidentified " female clinician who made rounds at the Virginia facility," describing to her the pain and the restrictions on his movement during the 16-hour flight from Dubai. Id. ¶ 68. The employee told El-Hanafi that " the pain was probably the result of a slower circulation of his blood in his lower extremities." Id. El-Hanafi states that he was given one or two tablets of ibuprofen, but that nothing else was done to address his condition, and that " no agent of the government referred [him] for an examination and medical ...


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