United States District Court, S.D. New York
DEBORRAH HARVEY, as Administrator of the Estate of Gregory Harvey, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION & ORDER
A. CROTTY United States District Judge.
Deborrah Harvey ("Plaintiff') seeks to recover
damages under the Federal Tort Claims Act ("FTCA")
from the U.S. Department of Homeland Security, Immigration
and Customs Enforcement ("ICE" or
"Defendant"), alleging that ICE employees breached
a duty of care to her husband, the decedent, Gregory Harvey
("Harvey"), She alleges that ICE employees violated
ICE National Detention Standards (the "Standards")
and failed to provide Harvey with appropriate, necessary, and
timely medical care while he was held in federal immigration
custody at the Orange County Correctional Facility
("OCCF") in Goshen, New York. Defendant moves to
dismiss this action pursuant to Federal Rules of Civil
Procedure 12(h)(3) for lack of subject matter jurisdiction,
or alternatively, moves for summary judgment claiming that
the matter falls within the independent contractor exception.
motion to dismiss is DENIED, Plaintiff has sufficiently
alleged a separate undelegated duty, for which Defendant may
be held directly liable under the FTCA, if breached. See
Logue v. United States, 412 U.S. 521, 530 (1973).
Defendant delegated some of its health care responsibilities
to OCCF, an independent contractor, and is not liable for any
actions of private OCCF jail staff. See Id. Federal
ICE employees retained significant responsibilities regarding
off-site medical care for its detainees, however, and these
responsibilities create a positive duty of care sufficient to
a support a claim of federal ICE employees' direct
negligence. See Rodriguez v. United States, No. 1:13
CV 01559, 2015 WL 3645716, at *10 (N.D. Ohio June 10, 2015);
Haskin v. United States, 569 F.App'x 12, 15 (2d
Cir. 2014). When, as here, there is a distinct question
regarding the direct negligence of federal employees,
jurisdiction is appropriate. See Logue, 412 U.S. at
533. The government can delegate its duties, but it cannot
simply abdicate its responsibilities for undelegated duties.
contracted with OCCF, a private county jail, to house federal
immigration detainees under the Intergovernmental Services
Agreement ("IGSA"). Def. 56.1 ECF 47 ¶ 2. OCCF
must comply with the Standards, which require that OCCF
detainees receive "access to appropriate and necessary
medical [services] ... [t]imely responses to medical
complaints; and [hospitalization as needed within the local
community." PI. 56.1 ECF 51 ¶ 3; PI. Decl. Exh. 4
National Detention Standards at 277, 281. ICE conducts
inspections to ensure OCCF complies with the Standards and is
"completely involved, " if need-be, for arranging
both on-site and off-site detainee medical care. PI. 56.1
¶ 3, The ICE Field Medical Coordinator (the
"Medical Coordinator") and the ICE Jail Liaison
Unit (the "Liaison Unit") maintain communication
with OCCF staff and detainees to ensure adequate care.
Id. The Medical Coordinator is the point person for
ICE medical care. PL Decl. Exh. 8 Deposition of Rudolph Small
("'Small Depo.") at 7. Lieutenant Rudolph Small
("Lt. Small"), a registered nurse, was the Medical
Coordinator during Harvey's stay at OCCF. Small Decl.
¶ 2. Liaison Unit officers, on the other hand, are not
medically trained but serve as the "boots on the ground,
to ensure that things are done in a timely manner for the
detainee." Small Depo. at 57-58. A Liaison Unit officer
visits OCCF bi-weekly and maintains a general log of every
detainee interaction. PI. 56.1 ¶ 3. The Liaison
Unit's responsibilities include "following up"
and "immediately notifying]" a supervisory ICE
officer of any medical issues. Id. ¶¶ 3, 19;
PL Decl. ECF 52 Exh. 5 Jail Liaison Unit Standard Operating
Procedures at 96-97.
IGSA provides that OCCF has full responsibility for all
on-site and any emergency medical care provided to federal
detainees. PI. 56.1 ¶ 3. Nonetheless, ICE's Division
of Immigration Health Service ("DIHS") remains the
"agent and final health authority for ICE" when
non-emergency or non-routine off-site healthcare is required.
PI. 56.1 ¶ 3; Small Decl. ECF 44 Exh. A IGSA at 6. OCCF
must request and receive prior approval from DIHS if a
detainee requires non-emergent off-site care. IGSA at 6. DIHS
may override or reject OCCF's request if it determines
that another form of care is cheaper or better fits detainee
needs. Id. But, OCCF remains responsible for
transporting the detainee to and from the off-site facility,
as well as supervising the detainee at the off-site facility
for up to 14 days. Id. at 7-14.
Harvey, a citizen of Jamaica, was detained at OCCF from 2010
to 2012. PI. 56.1 ¶L Officer Daniel Marino
("Marino") and Officer Shaun McAuliffe
("McAuliffe") of ICE's Liaison Unit were
assigned to OCCF during this period. PI. 56.1 ¶ 3. In
January 2011, Harvey began complaining to OCCF's on-site
medical staff of an upset stomach, lumbar pain, abdominal
pain, and vomiting. Id. ¶ 23. Between January
2011 and February 2012, Harvey made six complaints to
OCCF's on-site medical center regarding the same
gastrointestinal issues. Id. ¶¶ 23-24.
Harvey raised these medical issues during a meeting with
Marino in August 2011 and again during a meeting with McAuliffe
in February 2012. Def. 56.1 ¶¶ 23, 25. All of the
known interactions between Harvey and the Liaison Unit
officers, including the two meetings in August and February,
are based on the Liaison Unit logbook. PI. 56.1 ¶ 22.
Plaintiff claims that the entries in the log books are not
reliable; and that, "Mr. Harvey spoke to the ICE
officers about his health problems and the lack of adequate
medical care at OCCF more frequently than is recorded in the
log books." Id.
the February 2012 meeting, OCCF requested DIHS' approval
of an off-site gastrointestinal consultation. Def. 56.1
¶ 8. DIHS approved the request two days later.
Id., ¶¶ 8-9. At the off-site consultation
on March 13, 2012, Dr. John Podeszwa ("Dr.
Podeszwa") recommended an endoscopy procedure for
Harvey. Id. ¶ 10; PI. Decl. Exh. D. As will be
seen, the expected procedure was still months away. Def. 56.1
¶ 30. On March 20, Harvey met with McAuliffe and
requested an update on an outside medical procedure.
Id. ¶ 25. McAuliffe noted in his logbook that
he "will check with medical" regarding the issues
Harvey brought up on March 20, but there is no confirmation
that he did in fact check. McAuliffe Decl. Exh. B Liaison Logbook
at 25. On May 10, Harvey met with McAuliffe again and was
very irritated, telling McAuliffe that "ICE [was]
ignoring his medical needs" and that he was
"coughing up blood." PI. 56.1 ¶ 26. In his
logbook for that day, McAuliffe wrote, "Lt. Small
notified;" but in his deposition, Lt. Small had "no
recollection" of whether McAuliffe notified him of
Harvey's medical status following their May 10th meeting.
McAuliffe Decl. Exh. B Liaison Logbook at 33; Small Depo. at
59. On May 11, Harvey complained to McAuliffe about his
health again and refused to see on-site OCCF doctors despite
McAuliffe's instruction to engage with OCCF's on-site
medical staff. Def. 56.1 ¶ 27. There is no indication in
McAuliffe's May 11 Jog entry that McAuliffe planned to
notify medical staff about the issue: the entry only states
that Harvey "[c]ontinues to complain about health,
refuses to see Medical, wants an outside doctor."
See McAuliffe Decl. Exh. B Liaison Logbook at 34.
May 25, 2012 and June 15, 2012, Harvey had five more meetings
with McAuliffe. Def. 56.1 ¶¶ 28-29. The parties
dispute whether medical issues were brought up during these
meetings. See id.; PL 56.1 ¶¶ 28-29. It is
uncontroverted, however, that four months passed from the
time of Dr. Podeszwa's recommendation in March, until
OCCF contacted DIHS on July 3 to approve an EGD
(esophagogastroduodenoscopy) request for Harvey. Def. 56.1
¶ 30. DIHS approved the request two days later and
another three weeks passed before Harvey had his EGD on July
25. Id. ¶¶ 13-14. The next day, Harvey was
admitted to the hospital, diagnosed with cancer, and
thereafter released from OCCF. See PI. 56.1 ¶
30. In the hospital, as McAuliffe served Harvey with his
release papers, Harvey told McAuliffe that "he
wasn't lying about his medical concerns, that they were,
in fact, real." Id. McAuliffe "just kind
of listened to what he said and, on a human level, apologized
for the circumstances, but [he] served him the paperwork and
departed the room." Id.
Subject Matter Jurisdiction
court must dismiss an action at any time if it finds that it
lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3). The
plaintiff has the burden of proving subject matter
jurisdiction by a preponderance of the evidence. Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Although all material factual allegations in the complaint
are accepted as true, the court must not draw inferences in
favor of the plaintiff. Takeda Chem. Indus., Ltd. v.
Watson Pharm., Inc., 329 F.Supp.2d 394, 401-02 (S.D.N.Y.
2004) (citing Shipping Fin. Serv. Corp. v. Drakos,
140 F.3d 129, 131 (2d Cir. 1998) mdAPWUv. Potter,
343 F.3d 619, 623 (2d Cir. 2003)).
judgment is appropriate where the party seeking summary
judgment proves that there are no issues of material fact.
See Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc.,477 U.S. 242, 247-55 (1986). Moreover,
"the court is required to resolve all ambiguities and
draw all factual inferences in favor of the party against