Opinion
9:21-CV-0949 (MAD/ML)
03-27-2023
JOSHUA G. STEGEMANN, Plaintiff, v. UNITED STATES OF AMERICA; and PAMELA C. PEDERSEN, Defendants.
JOSHUA G. STEGEMANN Pro Se Plaintiff Ray Brook Correctional Facility CARLA B. FREEDMAN United States Attorney Counsel for Defendants EMER M. STACK, ESQ. Assistant United States Attorney
JOSHUA G. STEGEMANN Pro Se Plaintiff Ray Brook Correctional Facility
CARLA B. FREEDMAN United States Attorney Counsel for Defendants
EMER M. STACK, ESQ. Assistant United States Attorney
ORDER AND REPORT-RECOMMENDATION
Miroslav Lovric, United States Magistrate Judge
Currently before the Court, in this civil rights action filed by Joshua G. Stegemann (“Plaintiff”) against the United States of America and Pamela C. Pedersen (collectively “Defendants”), is (1) Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(2), and 12(b)(6), or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56 (Dkt. No. 37), and (2) Plaintiff's motion to supplement the Amended Complaint pursuant to Fed.R.Civ.P. 15(d) (Dkt. No. 43). For the reasons set forth below, I (1) recommend that Defendants' motion be granted in part and denied in part, and (2) deny Plaintiff's motion to supplement the Amended Complaint.
I. RELEVANT BACKGROUND
A. Administrative Proceedings
On or about February 4, 2021, Plaintiff filed an administrative tort claim-which was assigned number TRT-NER-2021-03094 (“Claim 1”)-alleging that Federal Correctional Institute Ray Brook (“FCI Ray Brook”) failed to protect him from contracting COVID-19 because “the FBOP continues to pack too many prisoners into cramped cellblocks and multiple occupancy cells.” (Dkt. No. 37, Attach. 3 at ¶ 8; Dkt. No. 37, Attach. 6.) On August 13, 2021, Claim 1 was denied. (Dkt. No. 37, Attach. 3 at ¶ 9; Dkt. No. 37, Attach. 7.)
Federal Bureau of Prisons hereinafter referred to as the “FBOP.”
On or about May 17, 2021, Plaintiff filed an administrative tort claim-which was assigned number TRT-NER-2021-05401 (“Claim 2”)-alleging medical staff informed him that his kidneys were failing and his contraction of COVID-19 exacerbated the alleged kidney disease. (Dkt. No. 37, Attach. 3 at ¶ 10; Dkt. No. 37, Attach. 8.) On January 21, 2022, Claim 2 was denied. (Dkt. No. 37, Attach. 3 at ¶ 11; Dkt. No. 37, Attach. 9.)
On or about July 14, 2021, Plaintiff filed an administrative tort claim-which was assigned number TRT-NER-2021-06819 (“Claim 3”)-alleging that he had chronic kidney disease (“CKD”) since February 2017, and that Defendant Pederson “withheld the CKD diagnosis” and failed to treat him for that condition. (Dkt. No. 37, Attach. 3 at ¶ 12; Dkt. No. 37, Attach. 10.) On February 22, 2022, Claim 3 was denied. (Dkt. No. 37, Attach. 3 at ¶ 13; Dkt. No. 37, Attach. 11.)
B. Proceedings in this Court
On August 23, 2021, Plaintiff commenced this action by the filing of a verified complaint against Defendant United States of America. (Dkt. No. 1.) After Plaintiff paid the filing fee, United States District Judge Mae A. D'Agostino reviewed the Complaint pursuant to 28 U.S.C. §§ 1915, 1915A and held that Plaintiff's negligence and medical malpractice claims pursuant to the Federal Tort Claims Act (“FTCA”) survived sua sponte review, but Plaintiff's Bivens claim against Defendant United States of America was not cognizable and was therefore dismissed with prejudice. (Dkt. No. 6.)
On December 9, 2021, Plaintiff filed a verified Amended Complaint against Defendants asserting the following three claims: (1) a claim of negligence pursuant to the FTCA against Defendant United States of America regarding Plaintiff's contraction of COVID-19 at FCI Ray Brook in December 2020; (2) a claim of medical malpractice pursuant to the FTCA against Defendant United States of America regarding Plaintiff's alleged delayed treatment for kidney disease; and (3) a claim of deliberate indifference to a serious medical condition against Defendant Pederson pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Eighth Amendment. (Dkt. No. 9, 10.) On January 6, 2022, Judge D'Agostino accepted Plaintiff's Amended Complaint for filing and deemed it the operative pleading. (Dkt. No. 10.)
On June 27, 2022, Defendants filed the pending motion in lieu of filing an answer. (Dkt. No. 37.) To date, the parties have not engaged in any discovery or exchanged mandatory disclosures.
C. Parties' Briefing on Defendants' Motion to Dismiss
1. Defendants' Memorandum of Law
Generally, in support of their motion to dismiss, Defendants assert the following four arguments: (1) the Court lacks subject matter jurisdiction over Plaintiff's claims because (a) Plaintiff failed to exhaust administrative remedies regarding his FTCA medical malpractice claim in Claims 2 and 3 before commencing this action, (b) the discretionary function exception precludes subject matter jurisdiction over his FTCA negligence claim, and (c) a claim against an employee of the United States in his or her official capacity is a claim against the United States and thus, the Court lacks subject matter jurisdiction over Plaintiff's Bivens claim against Defendant Pederson in her official capacity; (2) the Court lacks personal jurisdiction over Defendant Pederson because (a) the Amended Complaint fails to allege any facts plausibly suggesting that New York's long-arm statute supports jurisdiction over Defendant Pederson as a non-domiciliary, and (b) assuming arguendo that New York's long-arm statute supported jurisdiction over Defendant Pederson, the exercise of personal jurisdiction over her does not comport with due process considerations; (3) in the alternative, Plaintiff fails to state a claim upon which relief may be granted against Defendants because (a) with respect to his negligence claim, Plaintiff fails to allege facts plausibly suggesting any action or inaction by a FBOP employee that caused him to contract COVID-19 or how he came to be infected with COVID-19, (b) with respect to his medical malpractice claim, Plaintiff fails to allege facts plausibly suggesting that Defendant Pederson's purported failure to disclose Plaintiff's abnormal laboratory result deviated from accepted medical practice, and (c) with respect to his Bivens claim, the Amended Complaint fails to allege facts plausibly suggesting the subjective prong of an Eighth Amendment deliberate indifference claim; and (4) in the alternative, summary judgment is warranted on Plaintiff's medical malpractice and Bivens claims because (a) with respect to his medical malpractice claim, the medical records indicate that Plaintiff does not- and did not-have any signs of severe or progressive kidney disease or damage, and (b) with respect to his Bivens claim, (i) the medical records indicate that Plaintiff does not-and did not- have a serious or urgent condition to satisfy the objective prong of an Eighth Amendment claim, and (ii) Defendant Pederson is entitled to qualified immunity. (Dkt. No. 37, Attach. 1.) In addition, Defendants argue that leave to amend should be denied because Plaintiff has already amended the complaint once and thus, “has already had sufficient opportunity to allege a claim against Defendant[s]” and “because a lack of jurisdiction is among the defects in Plaintiff's claims, the claims cannot be cured by further pleading, rendering any attempt at amendment futile.” (Id. at 47-48.)
2. Plaintiff's Opposition Memorandum of Law
Generally, in opposition to Defendants' motion to dismiss, Plaintiff asserts the following four arguments: (1) jurisdiction and venue are proper; (2) Defendant Pederson's failure to disclose and treat Plaintiff's diminished kidney function and correlated symptoms violated New York and New Hampshire law; (3) FBOP has a duty to protect its prisoners from infectious disease and its negligent failure to test and quarantine inmates it was accepting from the United States Marshals is not excused by the discretionary function exception; and (4) based on Defendants' own papers, there are genuine issues of material fact that preclude the granting of summary judgment in favor of Defendants. (See generally Dkt. No. 42.)
More specifically, with respect to his first argument, Plaintiff argues that he filed Claim 1 on December 29, 2020, he filed an amended claim-Claim 2-on May 7, 2021, and a second amended claim-Claim 3-on July 6, 2021. (Dkt. No. 42 at 2.) Plaintiff argues that his amended claims-Claims 2 and 3-incorporated the reference number assigned to Claim 1, which was denied on August 13, 2021. (Id.) Plaintiff argues that pursuant to 28 C.F.R. § 14.2(c), an administrative claim may be amended any time before final agency action and- because the amended claims (Claims 2 and 3) incorporated Claim 1 and were received before the denial on August 13, 2021-all claims were “denied implicitly by the August 13, 2021 denial.” (Id. at 2-3.) In addition, Plaintiff argues that venue is proper in this Court for his Bivens claim pursuant to 28 U.S.C. § 1391(e)(1)(C) because Plaintiff resides in the Northern District of New York. (Id. at 3.)
With respect to his second argument, Plaintiff argues that, to the extent the Court is conducting a choice of law consideration, New York law should apply because the action is proceeding in New York. (Id.) Notwithstanding, Plaintiff argues that the laws of New York and New Hampshire are “remarkably similar” and that a jury should determine whether the FBOP's “failure to disclose and treat [his] diminished eGFR and correlative symptoms for more than 4 years meets the bar for a medical malpractice and/or negligence claim in this case.” (Id. at 5-6.)
With respect to his third argument, Plaintiff argues that the FBOP “operated under a policy and procedure requiring ‘screening of inmates' whereby ‘[a]ll newly-arriving inmates are screened for COVID-19 exposure and risk factors and symptoms.'” (Dkt. No. 42 at 7 [citing N.D.N.Y. Case. No. 1:13-CR-0357 (GLS), Dkt. No. 303, Attach. 1 at 14].) Plaintiff argues that, as a result, the employees of FCI Ray Book had a mandatory duty to test and quarantine newly arriving inmates to prevent the spread of COVID-19 infections among the FCI Ray Brook population. (Dkt. No. 42 at 8.) Thus, Plaintiff argues that the discretionary exception is not applicable to his negligence claim. (Id.)
Finally, with respect to his fourth argument, Plaintiff argues that Defendants are not entitled to summary judgment because the only monitoring of Plaintiff's eGFR between February 2017 (when his low eGFR was detected) and 2021 (when he learned of his low eGFR levels), were urinalysis tests that are inaccurate. (Id. at 9-10.) In addition, Plaintiff argues that after his low eGFR level was detected in April 2021, he began medication, which caused his eGFR levels to normalize and his symptoms to alleviate. (Id. at 10.) Further, Plaintiff argues that Defendant Pederson is not entitled to qualified immunity at this juncture. (Id.)
3. Plaintiff's Letter in Further Support
Approximately four days after filing his opposition to Defendants' motion, Plaintiff filed affidavits in further opposition, which included a cover letter that contained additional arguments. (Dkt. No. 44.) Plaintiff's cover letter argued that he was in receipt of a letter conceding service on Defendant Pederson, which thus waives any argument regarding personal jurisdiction. (Id.) In addition, Plaintiff argues that because Defendant Pederson's employment with the FBOP was “essentially . . . Nationwide” the Court should exercise personal jurisdiction over her. (Id.)
4. Defendants' Reply Memorandum of Law
Defendants' reply memorandum of law also addresses Plaintiff's motion to supplement the Amended Complaint, which is discussed infra in Part I.D. of this Report and Recommendation.
Generally, in further support of their motion to dismiss, or alternatively for summary judgment, Defendants assert the following three arguments: (1) the Court lacks subject matter jurisdiction over Plaintiff's claims because (a) Claims 2 and 3 were not administratively exhausted before Plaintiff filed suit, (b) the discretionary function exception bars Plaintiff's COVID-19 related FTCA claim, and (c) the Court lacks subject matter jurisdiction over Plaintiff's Bivens claim against Defendant Pederson because she was acting in an official capacity; (2) the Court lacks personal jurisdiction over Defendant Pederson; and (3) Plaintiff has not otherwise stated a claim against Defendants because (a) Plaintiff fails to state a negligence claim arising out of his COVID-19 infection, (b) Plaintiff fails to state a FTCA medical malpractice claim and, alternatively, summary judgment is warranted, and (c) Plaintiff fails to state a Bivens claim against Defendant Pederson, and, alternatively, summary judgment is warranted. (See generally Dkt. No. 47.)
More specifically, with respect to their first argument, Defendants argue that Claims 2 and 3 were not amendments to Claim 1. (Dkt. No. 47 at 4.) In support of this argument, Defendants identify that (1) Claim 1 alleged solely that employees at FCI Ray Brook failed to protect Plaintiff from contracting COVID-19, and did not mention any alleged kidney disease, Defendant Pederson, or FCI Berlin, (2) the date of incident listed on Claim 1 (December 23, 2020) differs from the date of incident listed on Claims 2 and 3 (May 3, 2021), (3) Claim 2 did not specify that it was an amendment or correction of Claim 1, and (4) Claim 3 did not (a) mention either Claim 1 or 2, or (b) mention that it was an amendment of any prior administrative tort claims. (Id. at 4-7.) In addition, Defendants argue that the documents supplied by Plaintiff in opposition to Defendants' motion underscore that the discretionary function exception applies to the FBOP's COVID-19 response because those documents “consist largely of non-binding guidance for [F]BOP officials managing prisons” and Plaintiff has failed to meet his burden to prove that the discretionary function does not apply. (Id. at 7-9.) Moreover, Defendants argue that even if the discretionary function does not bar Plaintiff's COVID-19 related claim, that claim still fails pursuant to 28 U.S.C. § 2680(f), which immunizes the Government from suit for damages caused by the negligent carrying out of a quarantine. (Id. at 9-10.) Further, Defendants argue that Plaintiff failed to address their argument that the Court lacks subject matter jurisdiction over his Bivens claim against Defendant Pederson in her official capacity. (Id. at 10-11.)
As set forth below in Part III.A.1. of this Order and Report-Recommendation, this assertion is inaccurate. Claim 3 refers to Claims 1 and 2. (Dkt. No. 37, Attach. 10 at 5.).
With respect to their second argument, Defendants argue that Plaintiff failed to meaningfully address their argument that the Court lacks personal jurisdiction over Defendant Pederson. (Dkt. No. 47 at 11-14.) Defendants argue that the venue provision cited by Plaintiff- 28 U.S.C § 1391(e)(1)(c)-does not apply to Plaintiff's Bivens action against Defendant Pederson in her individual capacity. (Id.) Defendants argue that, in any event, Plaintiff's opposition misses the mark because he focuses on whether venue is proper and fails to present any assertion that the exercise of personal jurisdiction over Defendant Pederson is proper. (Id.) Defendants argue that, to the extent the Court considers Plaintiff's supplemental arguments contained in his letter (Dkt. No. 44): (1) Defendants timely objected to personal jurisdiction over Defendant Pederson and thus, have not waived the defense, and (2) the Court does not have nationwide jurisdiction over a defendant who lives outside of the forum state simply because the individual is a federal government employee. (Id.)
With respect to their third argument, Defendants argue that even if Plaintiff could overcome the jurisdictional deficiencies, the Amended Complaint fails to state a claim upon which relief may be granted. (Dkt. No. 47 at 14-21.) Defendants argue that Plaintiff's Amended Complaint fails to allege facts plausibly suggesting that any FBOP actor caused him to become infected with COVID-19. (Id. at 14-15.) Defendants argue that testing in January 2022 demonstrated no evidence of renal compromise thus undermining any purported kidney disease diagnosis pursuant to which the medical malpractice claim is based. (Id. at 15-17.) Finally, Defendants argue that in the absence of a kidney disease diagnosis, it cannot be said that Plaintiff suffers from the serious medical need he claims to support his Eighth Amendment Bivens claim against Defendant Pederson. (Id. at 17-18.)
D. Parties' Briefing on Plaintiff's Motion to Supplement the Amended Complaint
1. Plaintiff's Motion to Supplement the Amended Complaint
Generally, in support of his motion to supplement the Amended Complaint, Plaintiff argues that because no discovery has occurred, Defendants cannot and will not sustain any prejudice by the supplementation. (Dkt. No. 43 at 1.) In sum, Plaintiff seeks to supplement the Amended Complaint to include (1) allegations that Claims 2 and 3 were amendments to Claim 1, and (2) add a cause of action regarding the management of his antidepressant medications. (See generally Dkt. No. 43, Attach. 1.)
2. Defendants' Opposition to Plaintiff's Motion to Supplement the Amended Complaint
Generally, in opposition to Plaintiff's motion to supplement, Defendants assert the following three arguments: (1) the supplemental facts regarding Plaintiff's antidepressant medication in 2022 are unrelated to those set out in the operative pleading, (2) Plaintiff's proposed supplemental allegations-that Claims 2 and 3 were amendments to Claim 1-do not concern an event that happened after the filing of the Amended Complaint and are a legal conclusion or argument that should be rejected, and (3) any supplementation of the Amended Complaint regarding Plaintiff's antidepressants has not been administratively exhausted and thus, the supplementation would be futile. (Dkt. No. 47 at 18-21.)
3. Plaintiff's Letter in Support of his Motion to Supplement
Plaintiff appears to argue that he has now administratively exhausted the claim regarding his antidepressants. (Dkt. No. 49.) Plaintiff attaches a document titled Central Office Administrative Remedy Appeal dated received September 1, 2022 (Dkt. No. 49 at 2), and a document titled “Administrative Remedy No. 1122982-A2, Part B - Response” dated October 6, 2022 (id. at 3), that appears to deny Plaintiff's request that his Mirtazapine be restored.
4. Defendants' Response to Plaintiff's Letter Brief
In response to Plaintiff's letter, Defendants argue that regardless of whether Plaintiff's claims regarding his prescription for antidepressant medication has been administratively exhausted, the Court should still deny Plaintiff's motion to supplement because that claim is unrelated to those set out in the operative pleading. (Dkt. No. 50.)
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing Motions to Dismiss for Lack of Subject Matter Jurisdiction
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be properly dismissed for lack of subject-matter jurisdiction where a district court lacks constitutional or statutory power to adjudicate it. Makarova v. United States., 201 F.3d 110, 113 (2d Cir. 2000). A district court may look to evidence outside of the pleadings when resolving a motion to dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). When a court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must be resolved, and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).
Where a defendant proffers evidence beyond the pleadings in challenging subject-matter jurisdiction, that defendant is said to have made a fact-based challenge. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016). “A court reviewing a Rule 12(b)(1) motion . . . can look to evidence outside the pleadings, including affidavits, to resolve disputed jurisdictional facts.” Glob. Art Exhibitions, Inc. v. Kuhn & Bulow Italia Versicherungsmakler GmbH, 20-CV-1395, 2022 WL 2159823, at *3 (S.D.N.Y. June 15, 2022) (emphasis added) (citing Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)).
B. Legal Standard Governing Motions to Dismiss for Lack of Personal Jurisdiction
Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes motions to dismiss on the basis of lack of personal jurisdiction over a defendant. “On a Rule 12(b)(2) motion . . . the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566-67 (2d Cir. 1996). “When a defendant moves to dismiss a complaint under Rule 12(b)(2) for want of personal jurisdiction, courts must perform a two-part analysis.” Harris v. Ware, 04-CV-1120, 2005 WL 503935, at *1 (E.D.N.Y. Mar. 4, 2005); accord, Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167-68 (2d Cir. 2015). “First, personal jurisdiction over a defendant must be established under the law of the state where the federal court sits.” Harris, 2005 WL 503935, at *1 (citing Bank Brussels Lamber v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)); accord, Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007) (holding that the alleged defamatory remarks of the operator of a website that rates moving companies was not a business transaction for the purposes of jurisdiction under New York State's long-arm statute).
“Second, if jurisdiction is established under the governing statute, courts must determine whether the exercise of jurisdiction under the relevant state law would violate the defendant's due process rights.” Harris, 2005 WL 503935, at *1 (citation omitted); accord, Best Van Lines, Inc., 480 F.3d at 242-43. Due process requires that the defendant have minimum contacts with the forum state and that the exercise of jurisdiction over the defendant does not offend traditional notions of fair play and substantial justice. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). “In reviewing a Rule 12(b)(2) motion, ‘a court may consider documents beyond the pleadings in determining whether personal jurisdiction exists.'” SPV OSUS Ltd. v. UBS AG, 114 F.Supp.3d 161, 167 (S.D.N.Y. 2015) (quoting Greatship (India) Ltd. v. Marine Logistics Solutions (Marsol) LLC, 11-CV-0420, 2012 WL 204102, at *2 (S.D.N.Y. Jan. 24, 2012)).
“In deciding a pretrial motion to dismiss for lack of personal jurisdiction, a district court has considerable procedural leeway.” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). “Where . . . the issue of personal jurisdiction ‘is decided . . . without discovery, the plaintiff need show only a prima facie case' of jurisdiction on a motion under Rule 12(b)(2).” Bonkowski v. HP Hood LLC, 15-CV-4956, 2016 WL 4536868, at *1 (E.D.N.Y. Aug. 30, 2016) (quoting Volkswagenwerk Akiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984)); see Troma Entm't, Inc. v. Centennial Pictures, Inc., 729 F.3d 215, 217 (2d Cir. 2013). Plaintiff's prima facie showing “must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant.” In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (citing Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)); see Troma, 729 F.3d at 217 (noting that, to survive a motion to dismiss for lack of personal jurisdiction, the allegations in the complaint, when taken as true, must be “legally sufficient allegations of jurisdiction.”).
In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(2), the pleadings and affidavits are to be construed in the light most favorable to plaintiff, and all doubts are to be resolved in plaintiff's favor. Bonkowski, 2016 WL 4536868, at *1. Plaintiff's allegations must provide “factual specificity necessary to confer jurisdiction.” Jazini by Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998). Conclusory statements, without supporting facts, are insufficient. Jazini by Jazini, 148 F.3d at 185. The Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, “where a defendant ‘rebuts [a plaintiff's] unsupported allegations with direct highly specific, testimonial evidence regarding a fact essential to jurisdiction-and plaintiff[ ] do[es] not counter that evidence-the allegation may be deemed refuted.'” Leroi, Inc. v. Tran Source Logistics, Inc., 15-CV-0565, 2016 WL 4997228, at *4 (N.D.N.Y. Sept. 19, 2016) (Suddaby, C.J.).
“It is well settled under Second Circuit law that, even where plaintiff has not made a prima facie showing of personal jurisdiction, a court may still order discovery, in its discretion, when it concludes that the plaintiff may be able to establish jurisdiction if given the opportunity to develop a full factual record.” Leon v. Schukler, 992 F.Supp.2d 179, 194 (E.D.N.Y. 2014) (citing In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 208 (2d Cir. 2003)). Thus, jurisdictional discovery is appropriate when the party has made a “colorable basis for personal jurisdiction, which could be established with further development of the factual record.” Leon, 992 F.Supp.2d at 194. However, “[w]here [a plaintiff does] not establish a prima facie case that the district court has jurisdiction over the defendant, the district court does not err in denying jurisdictional discovery.” Chirag v. MT Marida Marguerite Schiffahrts, 604 Fed.Appx. 16, 18-19 (2d Cir. 2015) (citing Jaznini by Jazini, 148 F.3d at 186 (2d Cir. 1998)).
C. Legal Standard Governing Motions to Dismiss for Failure to State a Claim
It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). In the Court's view, this tension between permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed.R.Civ.P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed.R.Civ.P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described “showing,” the pleading standard under Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Jackson, 549 F.Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).
Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.).
The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F.Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F.Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F.Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S.Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted).
However, “in a Pro Se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.'” Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to “‘make reasonable allowances to protect Pro Se litigants'” from inadvertently forfeiting legal rights merely because they lack a legal education. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a result, Twombly and Iqbal notwithstanding, the court must continue to “construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of Educ., 287 F.3d 139, 146 (2d Cir. 2002).
Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case. Moreover, in the Second Circuit, a Pro Se plaintiff's papers in response to a defendant's motion to dismiss for failure to state a claim may be considered as effectively amending the allegations of his complaint-to the extent those papers are consistent with the allegations in the complaint.
See Fed.R.Civ.P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 421-22 (2d Cir. 2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed.R.Civ.P. 12(d) if the “matters outside the pleadings” in consist of (1) documents attached to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint ....Where a document is not incorporated by reference, the court may neverless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document ‘integral' to the complaint .... However, even if a document is ‘integral' to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.”) (internal quotation marks and citations omitted); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (“The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam) (“ “[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,” the court may nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).
See Drake v. Delta Airlines, Inc., 147 F.3d 169, 170, n. 1 (2d Cir. 1998) (per curiam) (“[W]e deem Drake's complaint to include the facts contained in his memorandum of law filed in response to Delta's 1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (“In his affidavit submitted in opposition to defendants' motion to dismiss, Gill asserts that Mooney's actions amounted to deliberate and willful indifference. Liberally construed under Pro Se pleading standards, Gill's allegations against Mooney involve more than ordinary lack of due care for the prisoner's interests or safety, . . . and therefore state a colorable claim under the Eighth and Fourteenth Amendments.”) (internal quotation marks and citation omitted); Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y. 2004) (Sharpe, M.J.) (“[I]n cases where a Pro Se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they “are consistent with the allegations in the complaint.”) (collecting district court cases), vacated on other grounds, 317 F.Supp.2d 160 (N.D.N.Y. 2004) (Hurd, J.)
D. Legal Standard Governing Motions for Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmovant is proceeding Pro Se. (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) As has often been recognized by both the Supreme Court and Second Circuit, even Pro Se litigants must obey a district court's procedural rules.
Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
Cusamano, 604 F.Supp.2d at 426 & n.3 (citing cases).
Cusamano, 604 F.Supp.2d at 426-27 & n.4 (citing cases).
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement-even when the non-movant was proceeding Pro Se .
Among other things, Local Rule 56.1 (previously Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1.
Cusamano, 604 F.Supp.2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”).
Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3). Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein ....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1[b][3]); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
E. Legal Standards Governing Exhaustion of FTCA Claims
“The United States, as sovereign, is immune from suit unless it waives immunity and consents to be sued.” Cooke v. United States, 918 F.3d 77, 81 (2d Cir. 2019). The FTCA includes a “limited waiver” of sovereign immunity and “allows for a tort suit against the United States under specified circumstances.” Hamm v. United States, 482 F.3d 135, 137 (2d Cir. 2007). Under the statute, a private citizen may sue for injuries caused by “the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). “Any waiver of the government's sovereign immunity is to be strictly construed in favor of the government.” Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 (2d Cir. 1988).
The FTCA requires that a claimant must first exhaust all administrative remedies before filing an action in federal district court. See Phillips v. Generations Family Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013) (citing 28 U.S.C. § 2675(a)) (“The claimant can only initiate his or her lawsuit once the claim has been denied by the agency (or if the agency has failed to make a decision within six months after the claim was filed).”). “In other words, the FTCA requires a plaintiff to exhaust all administrative remedies before filing suit in federal court.” Chapman v. Doe (One), 19-CV-1257, 2019 WL 6493971, at *6-7 (N.D.N.Y. Dec. 3, 2019) (citing Celestine v. Mount Vernon Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005)). That requirement is jurisdictional and cannot be waived. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
The FTCA requires tort claimants against the federal government to “present” an administrative claim to the alleged agency tortfeasor as a precondition to bringing a lawsuit. 28 U.S.C. § 2675(a). More specifically, that provision mandating presentment before claimants can sue the government states:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.28 U.S.C. § 2675(a). Proper presentment allows the government to “investigate, evaluate, and consider settlement of a claim” in order to “eas[e] court congestion and avoid unnecessary litigation.” Romulus v. United States (“Romulus I”), 983 F.Supp. 336, 338 (E.D.N.Y. 1997) (internal quotation marks omitted), aff'd, 160 F.3d 131 (2d Cir. 1998) (“Romulus II”).
To satisfy the presentment requirement, the claimant has the burden to sufficiently provide information regarding the nature and merits of their claim. Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983). The “mere act of filing a SF-95 [notice of claim] does not necessarily fulfill the presentment requirement.” Romulus II, 160 F.3d at 132. Rather, “[a] claimant must provide more than conclusory statements which afford the agency involved no reasonable opportunity to investigate.” Id. An SF-95 “must provide a reviewing agency with sufficiently specific information as to the basis of the claim, the nature of the claimant's injuries, and the amount of damages sought such that the agency can reasonably understand what it must investigate to determine liability, to value the claim, and to assess the advisability of settlement.” Collins v. United States, 996 F.3d 102, 119 (2d Cir. 2021). A claimant can provide this information by narrative, evidence, or other means. Id. at 114. While “a conclusory assertion of claims” will not suffice, the presentment requirement “does not necessarily require that a claimant provide an agency with supporting evidence.” Id. at 105.
Pursuant to Department of Justice regulations, a claimant may amend a properly presented claim “at any time prior to final agency action or prior to the exercise of the claimant's option under 28 U.S.C. § 2675(a)” to treat a claim as final after six months without a final agency disposition. 28 C.F.R. § 14.2(c). The filing of an amendment restarts the agency's time to respond to the claim. 28 C.F.R. § 14.2(c) (“Upon the timely filing of an amendment to a pending claim, the agency shall have six months in which to make a final disposition of the claim as amended and the claimant's options under 28 U.S.C. § 2675(a) shall not accrue until six months after the filing of an amendment.”).
F. Legal Standards Governing the Discretionary Exception to FTCA Claims
Under the FTCA, the United States has consented to be sued under certain conditions, but has expressly declined to be sued “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved [was] abused.” 28 U.S.C.A. § 2680(a). This “discretionary function exception”
is a form of retained sovereign immunity. As a result, the FTCA's waiver of federal sovereign immunity does not encompass actions based upon the performance of, or failure to perform, discretionary functions. Because the FTCA is structured as a grant of subject matter jurisdiction to the federal courts, a finding that the discretionary function exception applies is tantamount to holding that the court lacks jurisdiction. The exception applies only if two conditions are met: (1) the acts alleged to be negligent must be discretionary, in that they involve an ‘element of judgment or choice' and are not compelled by statute or regulation and (2) the judgment or choice in question must be grounded in considerations of public policy or susceptible to policy analysis.Reichhart v. U.S., 408 Fed.Appx. 441, 443 (2d Cir.2011) (citations and internal quotation marks omitted).
See also, Molchatsky v. United States, 713 F.3d 159, 161-163 (2d Cir. 2013) (indicating that if the discretionary function exception applies, the Court lacks subject matter jurisdiction.).
In determining whether the allegedly-negligent acts “involved an element of judgment or choice,”
it is the nature of the conduct, rather than the status of the actor that governs whether the exception applies. The requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive.United States v. Gaubert, 499 U.S. 315, 322 (1991) (citations and internal quotation marks omitted); see also Berkovitz v. United States, 486 U.S. 531, 544 (1991) (“When a suit charges an agency with failing to act in accord with a specific mandatory directive, the discretionary function exception does not apply.”). The aforementioned reference to “statute, regulation or policy” includes internal “agency guidelines.” Gaubert, 499 U.S. at 322.
Furthermore, even assuming the challenged conduct involves an element of judgment, it [must then be] decided whether that judgment is of the kind that the discretionary function exception was designed to shield. Because the purpose of the exception is to prevent judicial ‘second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort, when properly construed, the exception protects only governmental actions and decisions based on considerations of public policy.Gaubert, 499 U.S. at 322-323 (citations and internal quotation marks omitted). Where the alleged “type of negligence” arises from factors such as inattentiveness, laziness, absentmindedness or other such “conduct unrelated to any plausible policy objectives,” it is not shielded by the discretionary function exception. Coulthurst v. United States., 214 F.3d 106, 110-111 (2d Cir.2000); see also Id., 214 F.3d at 109 (“Such negligent acts neither involve an element of judgment or choice within the meaning of Gaubert nor are grounded in considerations of governmental policy.”).
“Plaintiff bears the initial burden to state a claim that is not barred by the discretionary function exception.” Molchatsky, 713 F.3d at 162 (citing Gaubert, 499 U.S. at 324-25 (1991)).
III. ANALYSIS
Because Defendants have moved for dismissal under Fed.R.Civ.P. 12(b)(1), 12(b)(2), 12(b)(6) and 56, the Court must first assess whether it has jurisdiction over Plaintiff's claims under Fed.R.Civ.P. 12(b)(1) and 12(b)(2) before turning to the question of whether Plaintiff has failed to state a claim upon which relief can be granted or is entitled to summary judgment relief. See Corrado v. New York United Court Sys., 163 F.Supp.3d 1, 10-11 (E.D.N.Y. 2016) (quoting Hertzner v. United States Postal Serv., 05-CV-2371, 2007 WL 869585, at *3 (E.D.N.Y. Mar. 20, 2007); Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963) (“[L]ogic compel[s] initial consideration of the issue of jurisdiction over the defendant-a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim.”)) (holding that “‘the Court must first address the preliminary question[] of . . . personal jurisdiction' before considering the legal sufficiency of the allegations in the amended complaint.”); Wong v. CKX, Inc., 890 F.Supp.2d 411, 414-15 (S.D.N.Y. 2012) (“When presented with a motion under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction and Rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the Court must first analyze the Rule 12(b)(1) motion to determine whether the Court has subject matter jurisdiction necessary to consider the merits of the action.”).
A. Subject Matter Jurisdiction
1. FTCA Negligence Claim Regarding Plaintiff's Contraction of COVID-19
After carefully considering the matter, I recommend that Defendants' motion to dismiss based on the discretionary exception be denied without prejudice to renew.
Plaintiff cites to memoranda from the FBOP establishing “Action Plans” for federal prisons on how to manage the COVID-19 pandemic. (Dkt. No. 42 at 7 [citing Dkt. No. 42, Attach. 1 at 4, 9].) “On this record, [I am unable] to determine whether these memoranda represent official policy of the [F]BOP such that prison officials lacked the discretion to take different actions, whether the memoranda were mere guidance to federal prison officials, or whether [FCI Ray Brook] adopted or adhered to the memoranda.” Sanford v. United Sates, 21 2552, 2022 WL 1446881, at *4 (D.S.C. Mar. 22, 2022), report and recommendation adopted by, 2022 WL 1210717 (D.S.C. Apr. 25, 2022); see Sanford, 2022 WL 1210717 (denying without prejudice to renew the defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) because it was unclear whether the FBOP's “Coronavirus (COVID-19) Phase Eight Action Plan,” “Coronavirus (COVID-19) Phase Nine Action Plan, and “Modified Operations,” implemented mandatory or discretionary protocol).
Defendants characterize these memoranda as consisting of “largely . . . non-binding guidance for [F]BOP officials managing prison facilities” (Dkt. No. 47 at 7), whereas, Plaintiff describes them as “non-discretionary . . . written policy and procedure (Dkt. No. 42 at 8).
More specifically, the memoranda cited by Plaintiff do not establish whether the protective measures described in them are mandatory policies, mere guidance, or something else. (See generally Dkt. No. 42, Attach. 1 at 2-10.) For example, the “[F]BOP Modified Operations” that Plaintiff cites states, inter alia,
Prior to entering the institution, or in Receiving and Discharge: All new intakes to an institution including voluntary surrenders, [F]BOP-to-[F]BOP transfers, or transfers from outside the [F]BOP system are screened by medical staff for COVID-19 - including a symptom screen, a temperature check, and an approved viral PCR test (either an Abbott ID NOW point-of-care [POC] test or a commercial PCR test) performed on a sample obtained from a nasopharyngeal, mid-turbinate, or anterior nares swab.(Dkt. No. 42, Attach. 1 at 9.) Indeed, Defendants appear to concede that the memoranda cited by Plaintiff may include some binding policy. (Dkt. No. 47 at 7 [referring to the memoranda as consisting “largely of non-binding guidance”] [emphasis added].) In addition, the record does not reflect whether the memoranda was adopted as policy by FCI Ray Brook.
Thus, I conclude that the record before the Court is insufficiently developed to determine whether the discretionary function exception bars Plaintiff's claims that FCI Ray Brook officials failed to follow policy to protect incarcerated individuals from COVID-19. See Gaubert, 499 U.S. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)) (A defendant fails to meet the first prong of the test for the discretionary function exception if “a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because ‘the employee has no rightful option but to adhere to the directive.'”); cf. Cohen v. United States, 21-CV-10774, 2022 WL 16925984, at *15 (S.D.N.Y. Nov. 14, 2022) (dismissing the plaintiff's FTCA negligence claim because the plaintiff admitted that he was not asserting a negligent guard theory of liability and instead was alleging negligence in the design of policies and procedures regarding the maintenance and upkeep of the prison, which was barred by the discretionary exception). As a result, I recommend that the Court deny without prejudice to renew Defendants' motion to dismiss arguing that the Court lacks subject matter jurisdiction over Plaintiff's FTCA negligence claim. See Farmer v. United States, 21-2572, 2022 WL 4180995, at *4 (D.S.C. Mar. 24, 2022) (recommending denial of the defendant's motion to dismiss without prejudice because on the record before the court, the court was unable “to determine whether” the FBOP memoranda “establishing ‘Action Plans' for federal prisons on how to manage the COVID-19 pandemic ....represent official policy of the [F]BOP such that prison officials lacked the discretion to take different actions, whether the memoranda were mere guidance to federal prison officials, or whether FCI-Williamsburg adopted or adhered to the memoranda.”), report and recommendation adopted by, 2022 WL 3500363 (D.S.C. Aug. 18, 2022).
2. FTCA Medical Malpractice Claim Regarding Plaintiff's Kidney Disease
Upon close review of Plaintiff's Claims 1, 2, and 3, I conclude that Claims 2 and 3 were amendments within the meaning of 28 C.F.R. § 14.2(c).
Claim 1 states that it was signed by Plaintiff on December 29, 2020. (Dkt. No. 37, Attach. 6 at 2.) In addition, Claim 1 lists a “date and day of accident” as December 23, 2020, and seeks $1,000,000.00 in damages. (Id.) Claim 1 alleges, in sum, that Plaintiff contracted COVID-19 because too many prisoners were housed in close proximity to one another and that, as a result of his infection, Plaintiff has experienced severe headaches, muscle spasms, muscle aches, loss of smell, and loss of taste. (Id. at 4.)
Claim 2 states that it was signed by Plaintiff on May 7, 2021. (Dkt. No. 37, Attach. 8 at 3.) In addition, Claim 2 lists a “date and day of accident” as May 3, 2021, and seeks $500,000.00 in damages. (Id.) Claim 2 states that “[i]n addition to the things listed in [Plaintiff's] 12/29/20 Standard Form 95 Tort Claim (See Claim No.: TRT-NER-2021-03094), FBOP medical staff has informed [Plaintiff that his] kidneys are failing....COVID infection like the COVID infection inflicted on [Plaintiff] in December, 2020, (Cf. Claim No.: TRT-NER-2021-03094) causes and exacerbates AKI [acute kidney injury].” (Id. at 3-4.)
Claim 3 states that it was signed by Plaintiff on July 6, 2021. (Dkt. No. 37, Attach. 10 at 3.) In addition, Claim 3 lists a “date and day of accident” as May 3, 2021, and seeks $500,000.00 in damages. (Id.) Claim 3 alleges that on May 3, 2021, ANP Sorrell informed Plaintiff that he suffers from CKD dating back to February 2017 when Defendant Pederson learned of his condition. (Id.) Moreover, Claim 3 alleges that Plaintiff “suffer[ed] through a COVID infection” caused by “FBOP's clear negligence . . . (Cf. Claim Nos. TRT-NER-2021-03094 and TRT-NER-2021-05401) while unknowingly suffering from severe CKD comorbidity, thus resulting in exacerbated and accelerated damaged to [his] life-sustaining organs.” (Id. at 5.)
Thus, Claim 1 relates to Plaintiff's COVID-19 diagnosis on December 23, 2020 (see generally Dkt. No. 37, Attach. 6), and Claims 2 and 3 relate to Plaintiff's alleged diagnosis of kidney disease on May 3, 2021-which was known to FBOP officials including Defendant Pederson in February 2017 but not disclosed to Plaintiff-that both intensified his COVID-19 symptoms and was exacerbated by his COVID-19 infection (see generally Dkt. No. 37, Attach. 8; Dkt. No. 37, Attach. 10). I conclude that Claims 1, 2, and 3 overlap and are interconnected, which supports a finding that Claims 2 and 3 were amendments to Claim 1. See Martinez v. United States, 20-CV-7275, 2021 WL 4224955, at *12-13 (S.D.N.Y. Sept. 16, 2021) (concluding that the second claim was its own discrete, separate claim and noting, inter alia, that the plaintiff's claims “appear to pertain to different time periods during which [the p]laintiff was in the custody of different facilities and was receiving medical care from different providers”).
Moreover, Claim 2 references Claim 1, and Claim 3 references Claims 1 and 2, which also supports a finding that Claims 2 and 3 were amendments to Claim 1. See Martinez, 2021 WL 4224955, at *12 (noting that the plaintiff's later-filed claim did not contain any reference to his previously-filed claim “nor was there any indication that [the p]laintiff then had a claim outstanding with [F]BOP.”).
Penultimately, Claims 2 and 3 relate to events that occurred before the event at issue in Claim 1, which also supports a finding that Claims 2 and 3 were amendments to Claim 1. More specifically, Claims 2 and 3, relate to Plaintiff's kidney disease, which, although diagnosed after his COVID-19 diagnosis, was allegedly left untreated for over four years and caused an exacerbation of Plaintiff's COVID-19 symptoms. See Rawers v. United States, 488 F.Supp.3d 1059, 1131 (D.N.M. 2020) (finding that the plaintiff's letter could not “be characterized soundly as an amendment” to her initial claim because the letter made “no additional claim or statements concerning the accident or events before [her] initial Form SF-95 filing” and concluding that because the letter “provid[ed] additional [information about events] that occurred after she first filed her claim” the letter was “not an amendment under 28 C.F.R. § 14.2.”).
Finally, I find unpersuasive Defendants' argument that the Court is beholden to FBOP's interpretation of Claims 2 and 3 as discrete claims, as opposed to amendments of Claim 1. (Compare Dkt. No. 47 at 6 [arguing that because “the [F]BOP did not view the second and third SF-95s as amendments” “[t]he Court must defer to an agency's interpretation of its own regulations”] [internal quotation marks omitted], with Dkt. No. 47 at 20 [arguing that Plaintiff's supplementation including allegations that Claims 2 and 3 were amendments of Claim 1, should be rejected because, inter alia, those allegations are “nothing more than a legal conclusion or argument.”].) Although the denial letter dated August 13, 2021, from the Northeast Regional Office only referred to Claim 1, it failed to specify that Claims 2 and 3 were still pending despite the explicit references in Claims 2 and 3 to Claim 1. (Compare Dkt. No. 37, Attach. 7 at 2, with Dkt. No. 37, Attach. 8 at 3-4 and Dkt. No. 37, Attach. 10 at 5.) I decline to conclude that any denial letter must explicitly reference other pending claims to clarify the status of those claims. However, where, as here, Defendants intend to argue that later-filed claims that reference previously filed claims are not amendments and, instead, are stand-alone, discrete claims, it would behoove the Government to make its position clear when responding to the initially filed claim.
For each of these reasons, resolving all ambiguities and drawing all inferences in favor of Plaintiff, I find that Claims 2 and 3 were amendments to Claim 1. Aurecchione, 426 F.3d at 638 (citing Makarova, 201 F.3d at 113); see Wooding v. United States, 05-CV-1681, 2007 WL 2071674, at *3 (W.D. Pa. July 13, 2007) (“I note that the Government has not identified a single case, nor has independent research revealed one, where a claimant who had timely submitted a Standard Form 95 with respect to a particular incident, and who had submitted, prior to final agency action, an amendment pursuant to § 14.2(c) of that Form setting forth additional facts relating to that incident, was not permitted to pursue a particular legal theory which would have arisen from those additional facts.”). As a result, I recommend that the Court deny Defendants' motion to dismiss arguing that the Court lacks subject matter jurisdiction over Plaintiff's FTCA medical malpractice claim.
3. Bivens Claim Against Defendant Pederson in her Official Capacity
After carefully considering the matter, I recommend that, to the extent Plaintiff's Amended Complaint is construed as alleging a Bivens claim against Defendant Pederson in her official capacity, it be dismissed because the Court lacks subject matter jurisdiction for the reasons set forth in Defendants' memoranda of law. (Dkt. No. 37, Attach. 1 at 23-25; Dkt. No. 47 at 10-11); see Mendez v. Schenk, 21-CV-1090, 2022 WL 17729301, at *3 n.5 (N.D.N.Y. Dec. 16, 2022) (Sannes, C.J.) (citing Bivens, 403 U.S. at 410; Chapman v. Doe (One), 19-CV-1257, 2019 WL 6493971, at *6-7 (N.D.N.Y. Dec. 3, 2019) (Suddaby, C.J.) (noting that Bivens does not “allow claims for monetary damages against the United States, federal agencies, or federal agents in their official capacities”); Carno v. United States, 17-CV-7998, 2019 WL 2287966, at *6 (S.D.N.Y. May 28, 2019) (“Under the Eleventh Amendment to the U.S. Constitution, the United States, as a sovereign, is immune from suits raising Constitutional violations.”)) (“Neither Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and its progeny nor Section 1983 allow claims for monetary damages against the United States, federal agencies, or federal agents in their official capacities.”).
B. Personal Jurisdiction Over Defendant Pederson
After carefully considering the matter, I recommend that Plaintiff's Bivens claim against Defendant Pederson in her individual capacity be dismissed because the Court lacks personal jurisdiction over her for the reasons set forth in Defendants' memoranda of law. (Dkt. No. 37, Attach. 1 at 27-32; Dkt. No. 47 at 11-14). The following is intended to supplement, not supplant, those reasons.
As stated above in Part II.B. of this Report and Recommendation, “personal jurisdiction over a defendant must be established under the law of the state where the federal court sits.” PDO Max, Inc. v. Malcmacher, 21-CV-1274, 2022 WL 17415123, at *4 (N.D.N.Y. Dec. 5, 2022) (Suddaby, J.) Here, Plaintiff must establish that Defendant Pederson should be subject to personal jurisdiction under New York State law. As a non-domiciliary of New York, the Court has jurisdiction over Defendant Pederson if she:
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or
(2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
(3) commits a tortious act without the state causing injury to a person or property within the state, . . . if [s]he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or
(4) owns, uses or possesses any real property situated within the state.N.Y. C.P.L.R. § 302(a).
As set forth in Defendants' moving memorandum of law (Dkt. No. 37, Attach. 1) and the accompanying declaration of Defendant Pederson (Dkt. No. 37, Attach. 13), New York's long-arm statute does not permit the assertion of personal jurisdiction over Defendant Pederson. Although Defendant Pederson owns real property located in New York, N.Y. C.P.L.R. § 302(a)(4) requires “a relationship between the property and the cause of action sued upon.” Stroud v. Tyson Foods, Inc., 91 F.Supp.3d 381, 390 (E.D.N.Y. Mar. 10, 2015) (quoting Lancaster v. Colonial Motor Freight Line, Inc., 177 A.D.2d 152, 159 (N.Y.App.Div. 1st Dep't 1992)). Plaintiff's allegations and the evidence before the Court fail to show any such relationship. See, e.g., A.W.L.I. Grp., Inc. v. Amber Freight Shipping Lines, 828 F.Supp.2d 557, 574 (E.D.N.Y. 2011) (holding that the plaintiff failed to establish jurisdiction over the defendant under section 302(a)(4) where the plaintiff did not “allege any connection between the property in New York State and the claimed injury”).
Moreover, as set forth in Defendants' reply memorandum of law (Dkt. No. 47), Plaintiff's opposition, which focused on venue, missed the mark because venue and personal jurisdiction are two distinct concepts. Further, the Supreme Court held:
A suit for money damages which must be paid out of the pocket of the private individual who happens to be-or formally was-employed by the Federal Government plainly is not one “essentially against the United States,” and thus is not encompassed by the venue provisions of § 1391(e).Stafford v. Briggs, 444 U.S. 527, 542 (1980). It is also unclear whether 28 U.S.C. § 1391(e) applies to former federal employees, like Defendant Pederson who retired on July 31, 2021, before the commencement of this action. (Dkt. No. 37, Attach. 12 at ¶ 2); Compare Ross v. United States, 574 F.Supp. 536, 540 (S.D.N.Y. 1983) (quoting 28 U.S.C. § 1391(b); citing Stafford, 444 U.S. at 535-36) (holding that “Section 1391(e) applies only to present federal employees. These individual defendants are all former federal employees. The proper venue, thus, ‘is only in the judicial district where all defendants reside or in which the claim arose.'”), with Stafford, 444 U.S. 533 n.4 (noting that the First Circuit concluded “that because 28 U.S.C. § 1391(e) was drafted in the present tense, Congress did not mean it to apply to former officials. Although respondents sought certiorari on this question, we declined review.”).
As a result, I recommend that Plaintiff's Bivens claim against Defendant Pederson in her individual capacity be dismissed because the Court lacks personal jurisdiction over her.
In the alternative, I recommend that the Court sever Plaintiff's Bivens claim against Defendant Pederson in her individual capacity and transfer it to District Court for the District of New Hampshire. See Williams v. Smith, 16-CV-0115, 2020 WL 759684, at *6-7 (W.D.N.Y. Feb. 11, 2020) (citing Fed.R.Civ.P. 22; 28 U.S.C. §§ 113(a), 1404(a)) (severing the plaintiff's “North Carolina claims” and noting that the court had the option to either dismiss the severed claims or transfer them to the Eastern District of North Carolina).
C. Failure to State a Claim Upon Which Relief May be Granted
1. FTCA Negligence
Under New York state law, a plaintiff alleging negligence must establish “(1) that the defendant owed the plaintiff a cognizable duty of care; (2) that the defendant breached that duty, and (3) that the plaintiff suffered proximately caused damages.” Feder v. Target Stores, 15 F.Supp.3d 253, 256 (E.D.N.Y. 2014) (citing King v. Crossland Savings Bank, 111 F.3d 251, 255 (2d Cir. 1997)).
Based on the undersigned's independent research, there are few cases considering whether an incarcerated plaintiff can assert a negligence claim alleging that he contracted an infectious disease while incarcerated because of the defendants' failure to comply with proper procedures to protect him. I find unpersuasive Defendants' argument that Plaintiff does not- and could never-assert a negligence claim based on such allegations merely because he cannot point with certainty to the cause of his COVID-19 infection. It is virtually impossible for anyone to identify with certainty the cause of a respiratory virus, like COVID-19. Notwithstanding, other courts have recognized the viability of similar negligence claims against the United States brought by FBOP prisoners.
For example, Defendants' moving memorandum of law highlighted a Third Circuit case for the proposition that “bacteria, [like viruses] . . . are apt to spread, even potentially in the face of disease prevention efforts of the highest quality, and the mere contraction of an infection would not, on its own, put [a federal inmate] on notice that some act or omission by prison officials was the cause.” (Dkt. No. 37, Attach. 1 at 36 [citing Royster v. United States, 475 F. App'x 417, 421 (3d Cir. 2012)].) Despite Defendants' use of this quote to suggest that Plaintiff does not-and could not-assert a claim, the Third Circuit in Royster was considering when the statute of limitations accrues and held that it begins to accrue when the plaintiff learned of the allegedly negligent acts taken by the United States actors that caused his injury (not when he learned of his diagnosis). Royster, 475 Fed.Appx. at 421. As a result, the Third Circuit vacated the district court's granting summary judgment to the United States and remanded the case for further proceedings. Id. Thus, the Royster decision implies that an incarcerated plaintiff may assert a FTCA negligence claim against the United States based on the contraction of a communicable disease without identifying with certainty the source of the infection. Id.
The undersigned's independent research identified two additional cases that considered similar arguments as those set forth in Defendants' motion pursuant to Fed.R.Civ.P. 12(b)(6). In Bailey v. Bauer, 20-CV-0802, 2021 WL 1720269, at *4 (S.D. Ill. Apr. 30, 2021), the District Court for the Southern District of Illinois held-with minimal analysis-that the inmate plaintiff's FTCA negligence claim alleging, inter alia, that he was negligently exposed to the risk of infection with COVID-19 by allowing another inmate to access the plaintiff's cell “may proceed at this time” and survived sua sponte review pursuant to 28 U.S.C. §§ 1915, 1915A. Bailey, 2021 WL 1720269, at *4.
In Walker v. United States, 21-CV-1881, 2022 WL 1472872, at *3 (M.D. Pa. May 10, 2022), the District Court for the Middle District of Pennsylvania held that the inmate plaintiff failed to plausibly allege the third and fourth elements of a negligence claim pursuant to Pennsylvania law (that such a breach caused the harm in question and that the plaintiff incurred actual loss or damage) because he “fail[ed] to show a causal connection between the conduct of prison staff and his COVID-19 infection.” Walker, 2022 WL 1472872, at *3. The court held that “[w]ithout knowing when he was exposed to the virus, [the plaintiff] is unable to identify the individuals who exposed him to COVID-19 and fails to precisely identify the actions or inactions that resulted in his exposure to the virus.” Id. The court noted that “[a]t this time, there are no inmates that are infected with COVID-19” (without a citation to the record) and concluded that “[i]t is clear from the complaint that USP-Canaan took COVID-19 seriously and took reasonable steps to address the COVID-19 pandemic within the constraints of appropriate institutional safety concerns.” Id. As a result, the district court held that “the conduct of the [F]BOP officials did not proximately cause [the plaintiff]'s infection of COVID-19.” Id.
Although there was minimal analysis by the court in Bailey, and the Royster court did not squarely address the issues presently before this Court, I find them compelling. The court in Walker appears to make a factual determination with a more robust record than is presently before this Court.
Defendants also cite to a case from 1921 issued by the Supreme Court of Arkansas. (Dkt. No. 37, Attach. 1 at 36 [citing Davis v. Rodman, 227 S.W. 612, 613 (Ark. 1921)].) The undersigned found this case-from over one hundred years ago issued by state (other than New York State) court, unpersuasive. Moreover, Defendants cite several cases that granted summary judgment to support their position that Plaintiff fails to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 37, Attach. 1 at 37 [citing Mabry v. N.Y.C. Dep't of Corr., 465 Fed.Appx. 31, 32 (2d Cir. 2012); Davis v. Cruise Operator, Inc., 16-CV-62391, 2017 WL 3057610, at *6 (S.D. Fla. July 19, 2017); Malles v. Lehigh Cnty., 639 F.Supp.2d 566, 581 (E.D. Pa. 2009)].) Finally, Defendants cited a case dismissing a conditions of confinement claim pursuant to the Eighth Amendment and 42 U.S.C. § 1983, which has different elements than that of a negligence claim. (Dkt. No. 37, Attach. 1 at 37 [citing Narvaez v. City of New York, 16-CV-1980, 2017 WL 1535386, at *9 (S.D.N.Y. Apr. 17, 2017)].)
Here, Plaintiff alleges in the Amended Complaint that he was “exposed to COVID infection . . . because the FBOP failed to properly test and quarantine the hold-over prisoners it housed at [FCI] Ray Brook.” (Dkt. No. 9 at 4, ¶ 8.) At this juncture-during which the pleadings are to be construed in the light most favorable to plaintiff, and all doubts are to be resolved in plaintiff's favor-I find that Plaintiff states a claim upon which relief may be granted. Bonkowski, 2016 WL 4536868, at *1. As a result, I recommend denying Defendants' motion to dismiss for failure to state a claim.
Further, it is undisputed that Plaintiff was in the custody of FBOP at all times relevant to his contraction of COVID-19. Thus, any exposure that Plaintiff had to COVID-19 was caused by the action-or inaction-of FBOP employees.
The Court may decline to address Defendants' immunity argument pursuant to 28 U.S.C. § 2680(f) because it was made for the first time in their reply memorandum of law (Dkt. No. 47 at 9-10) and “[t]he law in the Second Circuit is clear that arguments or requests for relief raised for the first time in reply briefs need not be considered.” Adecco USA, Inc. v. Staffworks, Inc., 20-CV-0744, 2022 WL 16571380, at *5 n.4 (N.D.N.Y. Nov. 1, 2022) (D'Agostino, J.) (citing ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 485 F.3d 85, 100 n.16 (2d Cir. 2007) (“[W]e decline to consider an argument raised for the first time in a reply brief.”); see also Sacchi v. Verizon Online LLC, 14-CV-0423, 2015 WL 1729796, at *1 n.1 (S.D.N.Y. Apr. 14, 2015) (“Generally, a court does not consider issues raised in a reply brief for the first time because if a party raises a new argument in a reply brief the opposing party may not have an adequate opportunity to respond to it”)). To the extent that the Court is inclined to consider this argument, I recommend that it be rejected at this juncture. “[T]here is scant caselaw applying the quarantine exception to humans.” Pressley v. United States, 21-CV-0202, 2023 WL 22192, at *4 (S.D. Ind. Jan. 3, 2023). “The questions of whether-and if so, how-the quarantine exception applies to humans in the context of the COVID-19 pandemic has not been addressed by the [Second] Circuit.” Pressley, 2023 WL 22192, at *4. The undersigned is “reluctant to rely on a single district case [Wallace v. United States Dep't of Just., 21-CT-3035-D, 2021 WL 2853692, at *1 (E.D. N.C. June 24, 2021), aff'd, 21-7017, 2022 WL 1024613 (4th Cir. Apr. 6, 2022)] outside the [Second] Circuit, or to conclude that [Plaintiff's] claims-raised by human beings- in this case [is] barred by an exception that has previously only been applied to livestock. The exception is an affirmative defense, and the application of it to [Plaintiff's] claims are not clear enough to dismiss the claims without discovery.” Id. (citing Parrott v. United States, 536 F.3d 629, 634-35 (7th Cir. 2008)).
2. FTCA Medical Malpractice
For the reasons set forth by Defendants in their memorandum of law, I find that New Hampshire law governs Plaintiff's FTCA medical malpractice claim. (Dkt. No. 37, Attach. 1 at 38 [citing Coyle v. United States, 954 F.3d 146, 148 (2d Cir. 2020)].) In addition, Defendants correctly cite the standard for establishing a medical malpractice claim in New Hampshire. (Dkt. No. 37, Attach. 1 at 38 [citing N.H. Rev. Stat. Ann. § 507-E:2 (I)].)
I find that the Amended Complaint alleges facts plausibly suggesting that Defendant Pederson's failure to disclose to Plaintiff his abnormal laboratory result deviated from accepted medical practice. More specifically, Plaintiff alleges that Defendant Pederson “discovered that [Plaintiff] had severely diminished eGRF and elevated creatine level, which indicates kidney disease and reduced kidney function,” but did not treat, diagnose, or reveal that information to Plaintiff. (Dkt. No. 9 at 3.) Instead, Plaintiff alleges that it was not until May 2021, when “[s]taff explained [to Plaintiff] that . . . [his] kidneys are damaged and not working properly and that [his] kidney function was diminished.” (Id. at 4.)
As Plaintiff noted in his opposition memorandum of law, “eGFR is a measure of kidney function. In adults, the normal eGFR number is more than 90. An eGFR below 60 for three months or more . . . indicates chronic kidney disease.” Pullins v. Comm'r of Soc. Sec., 18-CV-1303, 2019 WL 6724586, at *3 n.2 (W.D.N.Y. Dec. 11, 2019). Moreover, “[t]he Renal Association emphasizes that values around 60 should not be ‘over-interpreted' and the importance of repeat testing.” Saxon v. United States, 12-CR-0320, 2020 WL 4548078, at *2 n.6 (S.D.N.Y. Aug. 5, 2020) (citation omitted).
Despite Plaintiff's eGFR level of 59 in February of 2017, Plaintiff asserts in his opposition that follow-up blood tests were not ordered and that the routine urine tests were insufficient because “they display the same results as the urine test taken simultaneous to the blood test that revealed an eGFR of 59.” (Dkt. No. 42 at 5.) Although not entirely clear, it appears as though Plaintiff is alleging that the urine test taken at the same time as his blood sample in February 2017, indicated normal kidney functioning, while his blood reflected a low eGFR. (See Dkt. No. 42 at 9-10 [arguing that “[t]he urinalysis taken on August 15, 2017 and October 15, 2017 mean nothing because the results of those urine samples are identical to the results of the urinalysis taken simultaneously with the initial eGFR of 59.”].) Thus, Plaintiff alleges that urinalysis is an insufficient mode of “repeated tested.” Moreover, Plaintiff alleges that the next time his blood was drawn-over four years later-it again reflected a low eGFR level. (Dkt. No. 9 at 4.)
Construing the Amended Complaint and Plaintiff's opposition liberally and drawing all reasonable inferences in favor of Plaintiff, I find that he alleges facts plausibly suggesting that Defendant Pederson deviated from accepted medical practice by failing to conduct follow up blood testing of Plaintiff's kidney functions after the February 2017 urine test was inconclusive or contradictory to the February 2017 blood test. As a result, I recommend that Defendant's motion to dismiss Plaintiff's medical malpractice claim for failure to assert a claim be denied.
D. Motion for Summary Judgment
For the reasons set forth in Plaintiff's opposition memorandum of law and the reasons set forth above in Part III.C.2. of this Report and Recommendation, I find that genuine issues of material fact remain for trial regarding Plaintiff's medical malpractice claim. (Dkt. No. 42 at 910.) For example, Defendants aver that the laboratory results after the February 2017 result “yielded no significant abnormalities with respect to Plaintiff's kidney function.” (Dkt. No. 37, Attach. 1 at 39.) However, as Plaintiff identifies, the urinalysis taken simultaneous to Plaintiff's blood work in February 2017 reflected normal levels in contrast with Plaintiff's blood results, which indicated an eGFR value of 59. (Dkt. No. 42 at 10.) Thus, there is an issue of fact regarding whether it was a deviation from the standard of care to rely on uranalysis under these circumstances. Moreover, the mere fact that Plaintiff may not have sustained any long-term kidney damage-as Defendants assert-does not mean necessarily that Plaintiff will be unable to establish a medical malpractice claim premised on Defendant Pederson's alleged deviation from the standard of medical care, which caused Plaintiff, inter alia, pain and suffering until he was prescribed the proper medication in 2021.
Further, although Defendants' motion provided sufficient notice to Plaintiff regarding its request that the Court, in the alternative, convert their Rule 12(b)(6) motion into a summary judgment motion pursuant to Rule 56, I find that at this juncture, the granting of summary judgment in favor of Defendants would be inappropriate. To date, the parties have not exchanged mandatory disclosures, attended a conference pursuant to Fed.R.Civ.P. 16, or engaged in any discovery. (See generally docket sheet.) This court lacks the medical training and expertise necessary to determine, in the absence of expert opinion evidence, whether the medical judgment exercised by Defendant Pederson-and any other FBOP medical providers involved with the care of Plaintiff's kidneys between February 2017 and May 2021-fell below an acceptable standard of professional care. See Brady v. Weeks Medical Center, 19-CV-0655, 2021 WL 3115940, at *5 (D.N.H. July 22, 2021) (citing N.H. Rev. Stat. Ann. § 507-E:2 (emphasis added) (“In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses” three essential elements: (1) the standard of reasonable care; (2) defendant's breach of that standard; and (3) proximate causation.); see also Smith v. HCA Health Servs. of New Hampshire, Inc., 159 N.H. 159, 161 (N.H. 2009); Goudreault v. Kleeman, 158 N.H. 236, 245 (N.H. 2009)) (holding that the plaintiff's medical malpractice claims were subject to dismissal because “absent expert medical testimony, those claims cannot proceed”); Roberts v. Wentworth-Douglass Hosp., 09-CV-0034, 2011 WL 1230334, at *4 (D.N.H. Mar. 29, 2011) (noting that “[u]nder New Hampshire law, a plaintiff cannot prevail on a medical malpractice claim without expert testimony as to the applicable medical standard of care and causation.”)
As a result, I recommend that Defendants' motion pursuant to Fed.R.Civ.P. 56 be denied at this juncture without prejudice to renew at the close of discovery.
IV. PLAINTIFF'S MOTION TO SUPPLEMENT THE AMENDED COMPLAINT
The standard for a motion to supplement is the same as for a motion to amend the pleadings under Fed.R.Civ.P. 15(a). Klos v. Haskell, 835 F.Supp. 710, 715 (W.D.N.Y. 1993) (Fisher, M.J.), adopted by 835 F.Supp. at 713 (W.D.N.Y. 1993) (Telesca, D.J.). Leave to amend should be given “absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility.” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000); see also Couloute v. Ryncarz, 11-CV-5986, 2012 WL 541089, at *3 (S.D.N.Y. Feb. 17, 2012) (quoting Monahan, 214 F.3d at 283). However, “[c]ourts regularly deny motions to amend where the moving party seeks to add claims involving collateral matters, based on different factual allegations and distinct legal theories, from the claims already at issue in a case.” Amusement Indus. v. Stern, 07-CV-11586, 2014 WL 4460393, at *13 (S.D.N.Y. Sept. 10, 2014); see also Mitchell v. Cuomo, 17-CV-0892, 2019 WL 1397195, at *3 (N.D.N.Y. Mar. 28, 2019) (McAvoy, J.) (overruling the plaintiff's objections to the Magistrate Judge's denial of the plaintiff's motion to supplement where “[t]he proposed First Amendment claims are neither related to nor pertain to the allegations in the operative pleading, thus providing a basis to deny amendment under Rule 15(d)”); Beckett v. Inc. Vill. of Freeport, 11-CV-2163, 2014 WL 1330557, at *6 (E.D.N.Y. Mar. 31, 2014) (“Supplemental pleadings are limited to subsequent events related to the claim or defense presented in the original pleading.” (internal quotation marks omitted)); Brooks v. Rock, 11-CV-1171, 2014 WL 1292232, at * 3 (N.D.N.Y. Mar. 28, 2014) (Sharpe, C.J.) (denying motion to amend to add allegations of retaliation and failure to protect from alleged conspiracy, where the original facts occurred in 2011 and the proposed new facts occurred in 2013); Smith v. Goord, 04-CV-6432, 2007 WL 496371, at *3 (W.D.N.Y. Feb. 12, 2007) (denying motion to add claims against original and new defendants based on events occurring more than one year after the original alleged events).
For the reasons set forth in Defendants' memoranda of law (Dkt. No. 47 at 19-20; Dkt. No. 50), asserting that Plaintiff's proposed supplements are unrelated to the events set forth in his Amended Complaint, Plaintiff's motion to supplement is denied.
ACCORDINGLY, it is
ORDERED that Plaintiff's motion to supplement the Amended Complaint (Dkt. No. 43) is DENIED; and it is further respectfully
RECOMMENDED that Plaintiff's Amended Complaint (Dkt. No. 9) be DISMISSED to the extent that it asserts a Bivens claim against Defendant Pederson in her individual and official capacities, and SURVIVE to the extent that it asserts FTCA claims for negligence and medical malpractice against Defendant United States; and it is further respectfully
RECOMMENDED that Defendants' motion to dismiss and motion for summary judgment (Dkt. No. 37) be GRANTED in part and DENIED in part; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Order and ReportRecommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).