Free Order on Motion to Dismiss Case - District Court of Arizona - Arizona

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UNITED S TATES DISTRICT COURT DISTRICT OF ARIZONA Etop M organ Ekwere, Plaintiff, v. ORDER Tracy Branch; Doctor Luiz Rodriguez; Denise Williams; United States of America, Defendants. CV-04-0094-PHX-DGC

Pending before the Court are Defendants' motion to dis miss under Federal Rule of Civil Procedure 4(m) and P laint iff's motion for extension of time for service of process. Docs. ##18, 26. Plaintiff filed this pro se action pursuant to Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388 (1971), alleging violation of his right s under the Eight h Amendment to the United States Constitution. Doc. #1, Counts #1-3. Plaintiff als o filed a claim against the United States under the Federal T ort Claims Act ("FTCA"), 28 U.S.C. § 1346, for the tortious acts allegedly committed by its employees. Id., Count #4. Plaintiff claims that Defendants caused unnecessary pain and suffering through their deliberate delay in providing prompt medical care, resulting in t he loss of his left eye. Doc. #1. Defendants argue that as P ublic Health Service Officers they are immune from suit for act s committed within the scope of their employment. They ask the Court to dismis s this action as to them and deny Plaintiff's motion for extension as moot. Doc. # 29. In Biv ens , the Supreme Court established a right for victims to recover damages for

constitutional violations by federal officials. See Bivens, 403 U.S. at 390-97. The Court 28 Case 2:04-cv-00094-DGC-JRI Document 40 1 - Filed 11/30/2005 Page 1 of 3 -

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noted t w o exceptions to this rule. Id. at 396-97. The pertinent exception for this case is that a Bivens action may not be maintained when "defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson v. Green, 466 U.S. 14, 18-19 (1980). T he Public Health Service Act provides that an action against the United Stat es under the FTCA is the exclusive remedy for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment. 42 U .S.C. § 233(a). In Carlson, the Supreme Court cited this section as an example of a statutory provision by which Congress has made the FTCA the sole remedy for an inmate whose injuries were caused by Public Health Service O fficers acting within the scope of t heir employment. See Carlson, 466 U.S. at 20; see also Kitchen v. United States, 741 F.Supp. 182, 184 (D. Alaska 1989) (holding that, pursuant to § 233(a), the FTCA is the exclusive remedy for medical malpractice claims against employees of the Public Health Service.) Defendants have filed a Notice of Subs t it ut ion of the United States for Individual Defendants Tracy Branch, Dr. Luiz Rodriguez, and Denise Williams (Doc. #28), attaching a sworn declaration by U.S. Attorney Paul Charlton that these Defendants were "all Public H ealt h Service employees . . . acting within the scope of their employment" during the events at issue in this case. Doc. # 28. Plaint iff does not dispute this fact, and even notes in his complaint that each of t he defendants was employed within a division of the Public Health Services at the time of the alleged events. Doc. #1 at 4, 5, 6. Because the FTCA claim against the United States constitutes the sole remedy available to Plaintiff under § 233(a), Plaintiff cannot bring a Bivens action against Defendants Branch, Rodriguez, or Williams. The claims against these Defendants will be Page 2 of 3

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Document 40 2 - Filed 11/30/2005 -

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IT IS ORDERED: 1. Defendant s ' M otion to Dismiss the individual Defendants (Doc. #18) is granted. 2. Plaintiff's M otion for Extension of Time for Service of Process (Doc. #26) is denied. DATED this 28th day of November, 2005.

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