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Harvey v. United States

United States District Court, S.D. New York

July 10, 2017

DEBORRAH HARVEY, as Administrator of the Estate of Gregory Harvey, Plaintiff,

          OPINION & ORDER

          PAUL A. CROTTY United States District Judge.

         Plaintiff 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.

         Defendant's 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. See id.


         ICE 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.[1] Id. ¶¶ 3, 19; PL Decl. ECF 52 Exh. 5 Jail Liaison Unit Standard Operating Procedures at 96-97.

         The 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.

         Gregory 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.[2] 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[3] 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.

         After 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.[4] 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."[5] 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.

         Between 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)[6] 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.


         I. Subject Matter Jurisdiction

         The 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)).

         II. Summary Judgment

         Summary 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 whom ...

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