Libbett v. Doody

686 F.Supp.2d 271

Eugene LIBBETT, Plaintiff, v. Physician Assistant DOODY, et al., Defendants.

No. 07-CV-6459L.

United States District Court, W.D. New York.

February 23, 2010.

Eugene Libbett, Andelanto, CA, pro se.

Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, Meghann N. Roehl, Damon Morey LLP, Buffalo, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff, Eugene Libbett, appearing pro se, commenced this action on September 20, 2007. At the time of the commencement of this action, Libbett was serving a 110-month sentence imposed by this Court on several firearms and narcotics charges to which Libbett had pleaded guilty in September 2006. His complaint asserted a variety of claims under 42 U.S.C. § 1983, against a number of defendants, arising out of certain events that occurred during 2006, while plaintiff was confined at the Batavia Federal Detention Facility ("Batavia") in Batavia, New York, pursuant to the Court's pretrial detention order.

On October 26, 2007, the Court granted Libbett's application to proceed in forma pauperis, and directed him to file an amended complaint to correct certain defects in the original complaint. Dkt. #3. Plaintiff filed an amended complaint on December 21, 2007. Dkt. #7.

On April 10, 2008, the Court issued a Decision and Order (Dkt. #9), pursuant to the Court's obligation under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A to screen in forma pauperis pleadings, dismissing all of plaintiff's claims except for his Eighth Amendment claims alleging deliberate indifference to his medical needs and his pain. The Court also dismissed certain defendants from the case, leaving five defendants remaining: Batavia Physician Assistant ("P.A.") Deborah Doody, Dr. Brenda Bailey, Dr. Michael Latunji, Monroe County Jail Administration ("MCJA") Sergeant Lawrence Kloner, and MCJA Major Edward Krenzer.¹

Those five defendants have now moved to dismiss the complaint.² Plaintiff has responded to the motions, and has also filed a motion for leave to file a second amended complaint.³

BACKGROUND

According to the amended complaint, on the morning of June 26, 2006, Libbett slipped and fell as he was leaving the shower at Batavia, causing pain and injuries to his back, neck and head. Libbett told the officer on duty that he was hurt, and shortly thereafter P.A. Doody arrived and had plaintiff taken on a stretcher to the facility infirmary, where he was seen by Dr. Bailey.

Plaintiff alleges that he told Doody that he was in extreme pain, and that he asked to be sent to an outside facility for treatment. Doody allegedly responded that she and Dr. Bailey "had decided to wait and see how Libbett felt in a couple of days ...." Dkt. #7 ¶ 8.

The next day, Libbett was transferred to the Monroe County Jail ("Jail") in Rochester. Upon admittance, he was seen by a nurse, who allegedly told plaintiff that he "was a priority due to the seriousness of his injuries," but that he could not be seen by a doctor for another three days.

In fact, however, Libbett was not seen by a physician until July 13, when he was examined by Dr. Latunji at the Jail. Plaintiff asked to be seen by an orthopedist, but Dr. Latunji allegedly stated that he did not believe that was necessary, adding that Libbett had taken "a nasty fall and was going to be in pain for a while, and to be a man." Id. ¶ 34. Dr. Latunji prescribed pain medication for plaintiff.

Plaintiff alleges that he repeatedly informed Dr. Latunji, by means of inmate communication forms, of his continued pain over the following weeks and months. He also alleges that he informed defendant Major Krenzer that he was in pain and that the treatment that he had been given by Dr. Latunji had been ineffective. Id. ¶¶ 37-39.

Plaintiff also alleges that Dr. Latunji had him placed in an "isolation cell," although the reason for that is unclear. Plaintiff alleges that Dr. Latunji ordered this "as a form of punishment," id. ¶ 38, but the complaint does not explain why Dr. Latunji would have wanted to punish Libbett.

Plaintiff alleges that at some point during his confinement in the isolation cell, defendant Sgt. Kloner came to the cell and told Libbett that his criminal defense attorney had called the Jail and asked that plaintiff be sent for an outside evaluation, because the attorney had seen how much pain Libbett was in when the attorney came to meet with him at the Jail. Sgt. Kloner allegedly told Libbett that he had gone to school with Libbett's lawyer, that they were good friends, and that as a favor to the lawyer, Kloner had agreed to have Libbett taken to Strong Memorial Hospital ("Strong") for a medical consult. Id. ¶ 42.

Libbett was taken to Strong in September 2006 for an orthopedic evaluation. After certain tests were performed, Libbett was told by the orthopedic specialist that he would need two months of physical therapy to alleviate his severe muscle spasms, after which the specialist wanted to see him for a follow-up visit. Id. ¶¶ 46-47.

Plaintiff alleges that in fact he was taken to only one session of physical therapy in mid-October 2006. He was then moved to a correctional center in Ohio for a little over a month, then sent back to the Jail in early December. On December 11, Libbett was seen by Dr. Latunji, who told plaintiff that he would direct that plaintiff be scheduled to continue his physical therapy. On December 15, however, Libbett was moved back to Batavia, and never received any further therapy or follow-up with the orthopedist at Strong. Id. ¶¶ 50-51.

As stated, pursuant to the Court's April 10, 2008 Decision and Order, the only claims in this case at this point are plaintiff's Eighth Amendment claims. Plaintiff alleges that all of the defendants were deliberately indifferent to his physical suffering and his medical needs. He seeks damages against all the defendants, as well an injunctive relief directing that he be allowed to complete the physical therapy that was prescribed for him by the specialist at Strong.⁴

DISCUSSION

I. Dr. Bailey and P.A. Doody

Plaintiff's claims against the two federal defendants, Bailey and Doody, must be dismissed for several reasons. First, to the extent that plaintiff purports to bring his claims against them under § 1983, those claims must be dismissed, as § 1983 does not provide a remedy against federal defendants. See Abney v. Jopp, 655 F.Supp.2d 231, 233 n. 2 (W.D.N.Y.2009) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 506-07 (2d Cir. 1994)).

Ordinarily, the Court would simply treat plaintiff's § 1983 claims against Bailey and Doody as so-called Bivens claims, which are analogous to § 1983 claims. See, e.g., Abney, 655 F.Supp.2d at 233 n. 2. There is a further obstacle to Libbett's claims against Bailey and Doody, however, which is that as employees of the Public Health Service, Bailey and Doody are absolutely immune from suit, pursuant to the Public Health Service Act, 42 U.S.C. § 233(a), which "makes the Federal Tort Claims Act "FTCA" the exclusive remedy for specified actions against members of the Public Health Service." Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir.2000). See, e.g., Wallace v. Dawson, 302 Fed. Appx. 52, 54 (2d Cir.2008); Anson v. Bailey, No. 06CV-0394, 2009 WL 414017, at *1 (W.D.N.Y. Feb. 18, 2009).⁵

In addition, the United States Attorney has filed a certification in this case (Dkt. #23) stating that at all times relevant to plaintiff's claims, Bailey and Doody were acting within the scope of their employment with the United States Public Health Service. "The Westfall Act, 28 U.S.C. § 2679, allows a federal employee sued in an individual capacity to convert the action to one against the United States, thereby obtaining indirectly the benefit of the United States' sovereign immunity." Winters v. Taylor, 333 Fed.Appx. 113, 116 (7th Cir.2009). Thus, upon the filing of such a certification, "the tort suit automatically converts to an FTCA `action against the United States' in federal court; the Government becomes the sole party defendant; and the FTCA's requirements, exceptions, and defenses apply to the suit.'" Harbury v. Hayden, 522 F.3d 413, 416 (D.C.Cir.2008) (quoting 28 U.S.C. § 2679(d)(1)).

Section 2675 of Title 28, however, "mandates that an FTCA action `shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency....'" White-Squire v. U.S. Postal Service, 592 F.3d 453, 457 (3d Cir.2010) (quoting 28 U.S.C. § 2675(a)). It is the plaintiff's burden to show that he has completed all the conditions precedent to bringing a claim under the FTCA. See McCullough v. United States, No. 08-413, 2009 WL 367371, at *5 (D.S.C.2009); Hill v. United States, 562 F.Supp.2d 131, 134 (D.D.C.2008).

Plaintiff in the case at bar has not presented any proof that he has filed an administrative claim under the FTCA. In addition, defendants have presented proof of their own that plaintiff has not done so. See Declarations of Scott A. Whitted and Marilyn Blandford, Dkt. #25 Exs. C and D. Plaintiff's claim against these defendants must be dismissed for this reason as well.

Finally, even if those statutory bars did not exist, plaintiff's Bivens claim against Bailey and Doody would fail. Such a claim would be subject to the same analysis as a § 1983 Eighth Amendment claim against a state actor alleging deliberate indifference to the plaintiff's serious medical needs. See Cuoco, 222 F.3d at 106; Collazo-Portillo v. D'Avirro, No. 06CV2028, 2007 WL 1614527, at *2 (D.Conn. May 29, 2007). In the case at bar, it would fail for essentially the same reasons as plaintiff's § 1983 Eighth Amendment claim against the other defendants, which is discussed below.

II. Dr. Latunji

It appears from the allegations of the complaint, and there is no dispute here, that at all relevant times, Dr. Latunji was an employee of the Monroe County Jail. Plaintiff...