Ross v. United States

MARY ANN ROSS; JOHN L. ROSS - DECEASED SPOUSE, Plaintiffs, v. UNITED STATES OF AMERICA; ALBANY STRATTON VA MEDICAL CENTER;DRS. & NURSE PRACTITIONERS IN CARDIOLOGY DEPT.;VA PRIMARY CARE DR./ GLENS FALLS, N.Y. OFFICE, Defendant.

1:15-cv-01094 (MAD/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 28, 2016

APPEARANCES:

MARY ANN ROSS

114 Main Street

Argyle, New York 12809

Plaintiff pro se

OFFICE OF THE UNITED STATES

ATTORNEY

James T. Foley Courthouse

445 Broadway, Room 218

Albany, New York 12207

Attorneys for Defendants United States of

America; Albany Stratton VA Medical Center;

Albany Stratton VA Cardiology Department;

Marisa Orgera, MD; Michele K. Rawlins;

Mohamma El-Hajjar, MD; Jessica Saunders; and

Mandeep Sidhu, MD

HEIDELL, PITTONI, MURPHY &

BACH, LLP

99 Park Avenue, 7^th Floor

New York, New York 10016

Attorneys for Defendant Doris Scheweickert

OF COUNSEL:

CATHLEEN B. CLARK, AUSA

JOHN C. O'BRIEN, ESQ.

VINCENT L. GALLO, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On September 10, 2015, Mary Ann Ross ("Plaintiff") commenced this action pro se pursuant to 42 U.S.C. § 1983 ("Section 1983") against the United States of America (VA Administration), Albany Stratton VA Medical Center, Cardiology Department of the Albany Stratton VA Medical Center, Marisa Orega, MD, Michele K. Rawlins, Mohomma El-Hajjar, MD, Jessica Saunders, Sidhu Mandeep, MD, and Doris Scheweickert (collectively "Defendants"). See Dkt. No. 1. In the complaint, Plaintiff asserts causes of action for medical negligence and wrongful death. See id. at ¶ 5. Presently before the Court are Defendants' motions to dismiss Plaintiff's action or, in the alternative, a motion for a more definite statement. See Dkt. Nos. 13, 21.

II. BACKGROUND

Plaintiff is the surviving spouse of John L. Ross.¹ See Dkt. No. 1 at ¶ 2. Between 2004 and the date of Mr. Ross' death on May 26, 2013, he was treated by various medical providers at VA medical centers in Massachusetts and New York. See id. at ¶¶ 4, 5. At some point in 2004, a nuclear stress test was requested by a provider at a VA medical center in Massachusetts, but the diagnostic test was cancelled by Defendant Rawlins, according to Plaintiff. See id. In 2008, "problems came about," which caused Mr. Ross to have heart surgery at the Buffalo VA Medical Center located in Buffalo, New York. See id. Mr. Ross underwent "Cabg, Caroided [sic] Artery Surgery, Conversion and Ablation." Id. An undefined "they" were aware that Mr. Ross was experiencing atrial fibrillation for fourteen months, and "they" continued to treat him withmedications during that time but did not investigate or follow through with tests and treatment to "fix it." See id. Plaintiff claims that the medical records documented "what could have been wrong in 2008 at the time of the ablation," but, in 2012, this was mentioned as something to look into.² See id. Plaintiff claims that the medical providers were not "completely informative with information" of Mr. Ross' medical condition, and Plaintiff generally states that he was not treated and cared for in a reasonable and timely manner, which led to his death. See id. Plaintiff filed an administrative tort claim, which was denied. See id. at 8. Plaintiff filed a request for reconsideration, which was denied by letter prior to March 12, 2015. See id. Plaintiff commenced this action on September 10, 2015. See id. Plaintiff's complaint is titled as a civil rights complaint and states that the Court has jurisdiction over the action pursuant to Section 1983, but her complaint alleged medical malpractice, loss of consortium, and wrongful death. See id. All Defendants have moved to dismiss Plaintiff's action against them pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. See Dkt. Nos. 13, 21.

III. DISCUSSION

A. Rule 12(b)(1) - Motion to Dismiss for Lack of Subject Matter Jurisdiction

Defendant Scheweickert moves to dismiss Plaintiff's action against her, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Rule 12(b)(1)") for lack of subject matter jurisdiction. Defendant Scheweickert contends that this Court does not have subject matter jurisdiction over her because she was not an employee of the United States. See Dkt. No. 21-8 at15-17. In opposition, Plaintiff states that she is not sure what is meant by subject matter jurisdiction. See Dkt. No. 23 at 3.

"The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332. Section 1331 provides for '[f]ederal-question' jurisdiction, § 1332 for '[d]iversity of citizenship' jurisdiction. A plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable claim 'arising under' the Constitution or laws of the United States. . . [and] [s]he invokes § 1332 jurisdiction when she presents a claim between parties of diverse citizenship that exceeds the required jurisdictional amount."

Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006) (quoting Bell v. Hood, 327 U.S. 678, 681-85 (1946)). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The Court is permitted to consider evidence outside the pleading in determining whether it has subject matter jurisdiction. See id. (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)).

Ostensibly, Plaintiff's substantive claims seeks to invoke the subject matter jurisdiction of this Court pursuant to the FTCA, which provides "[t]he district courts shall have original jurisdiction" over civil actions claiming negligence against the United States caused by any employee of the Government while acting within the scope of his or her employment. See 28 U.S.C. § 1346 (a), (b)(1). "[T]he term 'Federal agency' includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States." 28 U.S.C. § 2671. Accordingly, this waiver of sovereign immunity by the United States specifically does not extendto independent contractors. See Leone v. United States, 910 F.2d 46, 49 (2d Cir. 1990); Logue v. United States, 412 U.S. 521, 528 (1973) (stating that Congress does not allow the state law to determine whose negligence the United States will be liable for under the FTCA, as it has in other circumstances, but, instead, the Act incorporated the exemption from liability for injury caused by contractors). "Because the FTCA creates a waiver of sovereign immunity, it is strictly construed and all ambiguities are resolved in favor of the United States." Moreno v. United States, 965 F. Supp. 521, 524 (S.D.N.Y. 1997) (citing Williams v. United States, 50 F.3d 299, 305 (4th Cir. 1995)). The courts are not at liberty "to abrogate the exemption that the Act provides." See Logue, 412 U.S. at 528. Whether a person is a federal employee or an independent contractor is a question of federal law. Leone, 910 F.2d at 49 (citing Logue, 412 U.S. at 528).

The Second Circuit held that the strict control test and the principles of agency govern this inquiry. See id. The strict control test is whether the federal government controlled the contractor's "day-to-day operation." Id. Further, the Second Circuit, in applying the principles of agency law, found that the term "'federal agency' is synonymous with 'servant or agent' of the government" and determined that contractors are not servants where the government lacked the authority "'to control the detailed physical performance of the contract.'" Id. (quoting Logue, 412 U.S. at 527) In Leone, the Court determined that private physicians, who have been designated by the Federal Aviation Administration ("FAA") as Aviation Medical Examiners, were contractors and not employees. See id. The Court found that, although these physicians were obligated to comply with FAA regulations and apply FAA standards, these medical examiners did not have their day-to-day actions examined by the federal government. See id. at 50 (finding that the Federal Aviation Administration is an overseer, it does not manage or supervise the medical examiners daily duties). The Court, in that case, also noted that the medical examiners arequalified professionals with special skill and training, who "necessarily rely on their own professional judgment" in making decisions." Id.

In support of her motion, Defendant Scheweickert submitted the affidavit of Kenneth Kio, a Human Resources Officer, whose position allows him to identify the status of individuals who are employed by the United States Department of Veterans Affairs ("USDVA"). See Dkt. No. 133 at ¶ 1. Mr. Kio attests that Defendant Scheweickert was working as a private contract employee at the Glens Falls Community Outpatient Clinic in Glens Falls, New York. See Dkt. No. 13-3 at ¶ 3. At all relevant times, Defendant Scheweickert was not an employee of the United States. See id. In opposition, Plaintiff states the Defendant Scheweickert was Mr. Ross' primary care physician. See Dkt. No. 23. However, Plaintiff does not discuss or submit any information to dispute that Defendant Scheweickert was not an employee of the USDVA. See id. Further, Plaintiff does not describe any facts or circumstances to support that the federal government was controlling Defendant Scheweickert's day-to-day operation or the detailed physical performance of her contract. Accordingly, Plaintiff has failed to meet her burden to demonstrate that this Court has subject matter jurisdiction over Defendan...