D'Alessandro v. United States

GIUSEPPE D'ALESSANDRO, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

No. 1:13-cv-00416-MAT-HKS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

June 18, 2019

DECISION AND ORDER

I. Introduction

This is an action brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2674.¹ The case was transferred to the undersigned on June 4, 2019 (2013 Docket No. 66).² Currently pending before the Court is the Report and Recommendation ("R&R") (2013 Docket No. 57) of Hon. H. Kenneth Schroeder, United States Magistrate Judge recommending that the Motion to Dismiss (2013 Docket No. 31) filed by the United States of America ("the Government") and the individual defendants be granted and that the 2013 Action be dismissed in its entirety. Forthe reasons discussed below, the Court rejects the R&R and finds that the 2013 Complaint is timely.

II. Factual Background and Procedural Status

A. Plaintiff's Immigration Detention and Habeas Relief

D'Alessandro's underlying criminal conviction, subsequent immigration proceedings and unlawful civil detention culminating in the grant of Federal habeas corpus relief, and reversal of his conviction has been extensively discussed in this Court's previous decisions. See, e.g., D'Alessandro v. Chertoff, No. 10-CV-927A, 2011 WL 6148756 (W.D.N.Y. Dec. 12, 2011) (Arcara, D.J.); D'Alessandro v. Mukasey, 628 F. Supp.2d 368 (W.D.N.Y. 2009) (Arcara, D.J./Bianchini, M.J.); People v. D'Alessandro, No. 8175-90, 2010 N.Y. Slip Op. 75591 (App. Div. 1st Dep't June 29, 2010) (unpublished), lv. denied, 909 N.Y.S.2d 28 (Table) (N.Y. Sept. 29, 2010). The Court need not recite the troubling facts giving rise to D'Alessandro's first lawsuit in 2010. However, in order to resolve the pending Motion to Dismiss, the Court must delve into the convoluted procedural histories of the 2013 Action and the related 2010 Action.

B. The 2010 Action

In the 2010 Complaint, filed November 18, 2010, D'Alessandro sued Brenda Bailey, M.D. and various other employees and officers of the Government pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Dr. Bailey wasthe Clinical Medical Director of the Buffalo Federal Detention Facility where D'Alessandro was detained from November 19, 2007, until April 2, 2009. The 2010 Complaint alleged, inter alia, that Dr. Bailey denied D'Alessandro adequate medical care in violation of his constitutional rights and that the Federal officials responsible for reviewing his detention denied him due process of law under the Fifth Amendment by failing to provide him with the legally required custody reviews and improperly evaluating his risk of flight and danger to the community. The 2010 Complaint, which sought compensatory and punitive damages, alleged the following causes of action: (1) deprivation of liberty without due process of law in violation of the Fifth Amendment; (2) unreasonable seizure in violation of the Fourth Amendment; (3) deliberate indifference to Plaintiff's liberty interest in violation of the Eighth Amendment; (4) deliberate indifference and denial of medical care in violation of the Eighth Amendment; and (5) maintaining customs and policies in violation of the Fourth, Fifth, and Eighth Amendment.

On June 16, 2011, the Government filed two motions to dismiss the 2010 Complaint. One motion (2010 Docket No. 37) was filed on behalf of the eight local Government officials who were stationed at or around the Batavia Federal Detention Facility where D'Alessandro was held in custody during the relevant time (Michael T. Phillips, Martin Herron, Charles Mule, Sean Gallagher,Earl DeLong, Kevin Oetinger, Darrel Crotzer, and Brenda Bailey, M.D. ("the Local Defendants")). The other motion to dismiss (2010 Docket No. 38) was filed on behalf of the remaining six defendants, who were high-level executive branch officials stationed in Washington, D.C. during the relevant time (Eric Holder, Jr., Michael B. Mukasey, Janet Napolitano, Michael Chertoff, Julie L. Myers Wood, and John P. Torres ("the Washington Defendants")).

On June 17, 2011, the Government submitted a Certification of Scope of Employment ("Certification") pursuant to 42 U.S.C. § 233(g)(1)(F) with regard to Brenda Bailey, M.D. The Certification stated in relevant part that

with respect to the claims set forth in the [2010] complaint, Defendant Brenda Bailey, M.D., a commissioned officer of the U.S. Public Health Service (with the rank of Captain), was performing medical or related functions, and acting within the scope of her federal office or employment, at the time of the incidents out of which the plaintiff's claims arose.

Certification, ¶ 2.

In its memorandum of law (2010 Docket No. 37-1) supporting the Local Defendants' Motion to Dismiss, the Government argued that Plaintiff has no right of action under Bivens for any claim relating to the fact or duration of his immigration detention. Consequently, the Government argued, all such detention claims against the Local Defendants, whether pleaded under the Fourth, Fifth, or Eighth Amendments, should be dismissed as a matter of law. Second, the Government contended, because Dr. Bailey is acommissioned Public Health Service ("PHS") officer, she enjoys absolute immunity under 42 U.S.C. § 233(a) with respect to any claim alleging inadequate medical care. The Government argued that since Dr. Bailey is not implicated in any detention claim and is absolutely immune from suit with regard to any claim based on the alleged provision of inadequate medical treatment, she should be dismissed as a defendant. Third, the Government contended, all Bivens claims against all Local Defendants should be dismissed on the ground of qualified immunity.

D'Alessandro opposed the Local Defendants' motion, arguing in his memorandum of law (2010 Docket No. 45) that his Bivens claims are well-established in existing precedent and that no alternative remedies or "special factors" exist such that a Bivens claim is barred in this particular context. D'Alessandro also argued that qualified immunity is not available to the Local Defendants because the Court (Arcara, D.J./Bianchini, M.J.) previously held that a "reasonable official" could not have found that D'Alessandro's continued detention was constitutional, that the Local Defendants failed to comply with the applicable regulations in determining to continue his custody, and that the conduct by each of the Local Defendants was not that of a "reasonable official." D'Alessandro agreed that Dr. Bailey was absolutely immune from suit under Bivens due to her status as a PHS doctor. However, D'Alessandromaintained, the claims regarding the denial of medical care were properly pleaded.

In its brief (2010 Docket No. 38-1) in support of the Washington Defendants' motion to dismiss, the Government argued that all of the defendants except Michael Mukasey should be dismissed for lack of personal jurisdiction under Rule 12(b)(2).³ The Government further urged that all of these defendants, including Michael Mukasey, should be dismissed for improper venue under Rule 12(b)(3). For the same reasons advanced in the Local Defendants' brief, the Government argued that Plaintiff has no right of action under Bivens as against the Washington Defendants for any claim relating to the fact or duration of his immigration detention. Accordingly, the Government argued, any such claim should be dismissed as to the Washington Defendants under Rule 12(b)(6). Moreover, the Government contended, Plaintiff failed to allege the requisite personal involvement by the Washington Defendants who were, in any event, entitled to qualified immunity.

D'Alessandro filed a brief opposing the Washington Defendants' motion to dismiss. 2010 Docket No. 46.

On December 12, 2011, the Court (Arcara, D.J.) issued a Decision and Order ("the 2011 Decision") (2010 Docket No. 59) granting Defendants' Motions to Dismiss (2010 Docket Nos. 37 & 38) for failure to state a claim under Bivens. Relying on a NinthCircuit case, Mirmehdi v. United States, 662 F.3d 1073 (9th Cir. 2011), the 2011 Decision held that relief under Bivens is not available in the context of "wrongful immigration custody pending removal." 2011 Decision at 9. The 2011 Decision noted that "[s]ince the Court [was] dismissing the complaint in its entirety for failure to state a claim under Bivens, consideration of defendants' other arguments for dismissal [was] unnecessary." Id. at 11.

D'Alessandro then filed a Motion for Reconsideration and Leave to File an Amended Complaint ("Reconsideration Motion"). 2010 Docket Nos. 61 & 62. D'Alessandro submitted a proposed First Amended Complaint (2010 Docket No. 63-1) specifically asserting claims under the FTCA, as well as substituting the Fifth Amendment for the Eighth Amendment in several of the causes of action. In addition, D'Alessandro submitted supplemental legal authority distinguishing Mirmehdi and holding that a Bivens action could be maintained based on the denial of due process in deportation proceedings. 2010 Docket No. 65. As grounds for reconsideration, D'Alessandro argued that the Court had overlooked four of his arguments as well as controlling case law. First, D'Alessandro argued, the 2011 Decision failed to distinguish, or even address, the case law from the Second Circuit which holds contrary to Mirmehdi. Second, although the Court had requested supplemental briefing, see 2010 Docket No. 57, on the issue of "whether the Ninth Circuit's opinion in the Mirmehdi case is distinguishable,"the 2011 Decision did not address D'Alessandro's contention that Mirmehdi is limited to illegal aliens whose detention occurred during deportation proceedings, whereas D'Alessandro is a legal permanent resident whose detention occurred after deportation proceedings had concluded. Third, D'Alessandro had requested, in his opposition to the motions to dismiss, that the claims against Dr. Bailey be converted to claims against the United...