Free Reply to Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona NINA J. RIVERA Assistant U.S. Attorney Arizona State Bar No. 5938 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Etop Morgan Ekwere, CIV-04-0094-PHX-DGC (JI) Plaintiff, v. Tracy Branch; Doctor Luiz Rodriguez; Denise Williams; United States of America, Defendants. The United States, by and through undersigned counsel, respectfully requests that the Court deny plaintiff's request to extend the deadline for service of process on the remaining defendants as this issue is moot, and dismiss defendants Dr. Luiz Rodriguez, Denise Williams, and Tracy Branch. The grounds for this dismissal are set forth in the Memorandum of Points and Authorities attached. Respectfully submitted this 5th day of August 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/Nina J. Rivera NINA J. RIVERA Assistant U.S. Attorney REPLY TO PLAINTIFF'S RESPONSE TO UNITED STATES MOTION TO DISMISS

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MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff Has Not Demonstrated Good Cause For Failure to Timely Serve After Numerous Extensions Although this issue is moot, plaintiff in this case did not deal with service upon the

4 individual defendants in a timely manner. The Court provided the plaintiff with sixty (60) days 5 from filing of its Court Order of February 15, 2005 dealing with this issue or within one hundred 6 twenty (120) days from the date the Amended Complaint was filed (July 27, 2004), whichever 7 is later, to complete service on the individual defendants. Plaintiff did not do so but instead filed 8 an out-of-time motion requesting that the Court Order the U.S. Marshals Find and Serve 9 Summons on individual defendants. Plaintiff filed this motion on May 19, 2005 which was 10 ninety-three (93) days after the Court's Order, ninety-nine (99) days after the plaintiff was 11 released from the Bureau of Immigration and Customs Enforcement ("BICE"), and thirty (30) 12 days after the Court's absolute deadline for service of process (April 18, 2005). Plaintiff had an 13 ample period of time in which to request additional service of process assistance before the 14 deadline on service passed. He also had an ample amount of time to engage an attorney to assist 15 16 Plaintiff was no longer in detention with BICE from February 9, 2005 onward, yet he did 17 not request timely assistance from the Court or an attorney with respect to serving the individual 18 defendants until two to three months after the Marshal's last reported return of service 19 unexecuted which was March 18, 2005, long past the 60 days the Court had given him to 20 complete service. 21 Regardless of plaintiff's background and lack of formal education, plaintiff has not 22 demonstrated good cause under Boudette v. Barnette, 923 F.2d 754, 757. (Boudette's reliance 23 on others did not show good cause when the Court's Order expressly informed him of what to 24 25 26 Plaintiff filed a change of address (Docket Entry #7) stating he had been released from 27 the Bureau of Immigration and Customs Enforcement on February 9, 2005. 28 2
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him after his release in February 2005.1

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1 do and of the 120 day deadline. His reliance on the district court clerk and Post Office was not 2 reasonable in view of his previous experience and express knowledge). 3 4 5 Plaintiff's request for an extension of time to serve the individual defendants named in 6 his constitutional tort claim is moot because plaintiff may not maintain an action against them. 7 Dr. Luiz Rodriguez, Denise Williams and Tracy Branch were all Public Health Officers 8 stationed at the Bureau of Immigration and Customs Enforcement Medical Unit at the time of 9 the conduct alleged in the incident. In Count 1 of plaintiff's Amended Complaint, he avers that 10 defendants Luiz Rodriguez, Tracy Branch and Denise Williams have violated his Eighth 11 Amendment rights through deliberate indifference to his serious medical needs, delayed and 12 inadequate treatment and failure to timely refer plaintiff to an ophthalmologist, causing loss of 13 vision to his left eye, blurred and poor vision to his right eye, pain and suffering and emotional 14 and mental distress. In Count II of his Amended Complaint, plaintiff alleges that these tortuous 15 and negligent acts committed by these employees of the United States led to the injuries 16 described above. Count II is directed to the United States and is seeking compensation under 17 the Federal Tort Claims Act. 18 19 20 21 22 23 24 25 26 27 28 3 The Public Health Services Act provides at 42 U.S.C. § 233: (a) Exclusiveness of remedy The remedy against the United States provided by sections 1346(b) and 2672 of Title 28, or by alternative benefits provided by the United States where the availability of such benefits precludes a remedy under section 1346(b) of Title 28, for damage 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, shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the officer or employee (or his estate) whose act or omission gave rise to the claim. (Emphasis ours) Plaintiff's Claim for Additional Time to Serve Is Moot; 42 U.S.C. § 233(a) Is The Exclusive Remedy When Public Health Service Employees Are Involved

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42 U.S.C. § 233(a) makes the Federal Tort Claims Act the exclusive remedy against

2 Public Health Service employees performing medical or related functions in the course of their 3 employment. Cuoco v. Moritsugu, 222 F.3d 99, 106-107 (2nd Cir. 2000); See also Celestine v. 4 Mount Vernon Neighborhood Health Center, 403 F.3d 76, 80-81 (2nd Cir. 2005). Congress has 5 enacted 42 U.S.C. 233(a) to protect "employees of the Public Health Service from being subject 6 to suit while performing medical and similar functions by requiring that these suits be brought 7 against the United States instead." Cuoco v. Moritsugu, 222 F.3d at 107. 8 The immunity from suit provided by 233(a) extends to even constitutional torts. In the

9 Bivens case, the Supreme Court established a right of action for victims to recover damages for 10 constitutional torts. However, the Supreme Court has also recognized that 233(a) provides 11 immunity from Bivens type claims. As it stated in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 12 1468 (1980). 13 14 15 16 17 18 19 20 [3] Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right. Such a cause of action may be defeated in a particular case, however, in two situations. The first is when defendants demonstrate "special factors counseling hesitation in the absence of affirmative action by Congress." (Citation omitted) . . . The second is 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. Id. at 18-19, 100 S.Ct, at 147. Bivens, supra, at 397, 91 S.Ct., at 2005; Davis v. Passman, supra, at 245-247, 99 S.Ct., at 2277-2278. Id at 18-19; 100 S.Ct., at 1471. The Court then proceeded to cite 42 U.S.C. § 233(a) in the Bivens context as an example

21 of a statutory provision Congress enacted that specifically designates the Federal Tort Claims 22 Act as the exclusive remedy. See id at 20, 100 S.Ct. at 1468. 23 A number of lower courts have dealt specifically with Public Health Service employees

24 in the context of Bivens claim and have found that the FTCA provides the exclusive remedy in 25 a civil suit that is brought against a Public Health Service Officer if the civil suit involved 26 subject matter that is covered by the FTCA. See Navarette v. Vanyur, 110 F.Supp. 2d 605 (N.D. 27 Ohio 2000) (holding with respect to Bivens actions Congress has expressly made the FTCA an 28 4

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1 inmate's sole remedy for injuries received by Public Health Service Officers acting within the 2 scope of their employment); Lewis v Sauvey, 708 F.Supp. 167 (E.D. Mich. 1989) (Inmate could 3 not maintain a Bivens action against medical officer of Public Health Service based on allegation 4 that officer intentionally deprived him of medical treatment in violation of the Eighth 5 Amendment; action against the United States under FTCA is the exclusive remedy). In two 6 unpublished decisions Beverly v. Gluch, 902 F.2d 1568; 1990 WL 67888 (6th Cir. (Mich.)) and 7 Walls v. Holland, 198 F.3d 248, 1999 WL 993765 (6th Cir. (Ky.)), two 6th Circuit panels reached 8 the same conclusion. 9 The constitutional tort alleged in Count 1 of plaintiff's Amended Complaint falls within

10 42 U.S.C. § 233(a) as it is the same subject matter2 as alleged in Count II of his Complaint 11 which already seeks compensation from the United States under the FTCA. Pursuant to the 12 FTC, upon certification by the Attorney General or his delegatee that a Public Health Service 13 employee was acting within the scope of his office or employment at the time of the incident out 14 of which a cause of action arises, the United States already a party, is substituted as the sole 15 defendant with respect to those claims and the individual defendants are dismissed. The 16 Attorney General (through Appendix II 28 C.F.R. 15.4) has delegated certification authority to 17 the United States Attorney for the District of Arizona. Paul K. Charlton, United States Attorney 18 for the District of Arizona, has certified that at the time of the conduct alleged in the Amended 19 Complaint, the individual defendants, Dr. Luiz Rodriguez, Tracy Branch and Denise Williams 20 were all Public Health Service employees, acting within the scope of their employment. Exhibit 21 A, Certification of Paul K. Charlton. The Bivens Count should be dismissed, as the United 22 States will be substituted for the individual defendants and remain the sole defendant with 23 24 25 26 Delayed and inadequate treatment and failure to timely refer plaintiff to an 27 ophthalmologist. 28 5
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1 respect to the FTCA cause of action.3 The FTCA is plaintiff's exclusive remedy with respect 2 to all claims. 3 Contemporaneous with this reply, Defendant United States intends to file a Notice of

4 Substitution of the United States, a Certification of the United States Attorney as to scope of 5 duty for Public Health Service employees Luiz Rodriguez, Denise Williams, and Tracy Branch 6 and a proposed form of Order. 7 Accordingly, Defendant respectfully requests that the plaintiff's request for additional

8 time to serve the individual defendants be denied as moot because the Bivens claims against 9 individual defendants Dr. Luiz Rodriguez, Denise Williams, and Tracy Branch will be 10 dismissed, based on the fact that the exclusive remedy for these claims is an action against the 11 United States pursuant to the provisions of the FTCA. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendant United States preserves its right to proceed with motion practice based on 27 all affirmative defenses raised in its Answer to the Amended Complaint. 28 6
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Respectfully submitted this 5th day of August, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/Nina J. Rivera NINA J. RIVERA Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby that on August 5, 2005, I electronically transmitted the attached document to the

3 Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic 4 Filing to the following CM/ECF registrants: 5 6 Guy P. Rolle 7 The Rolle Law Office, PLCC 15300 N. 90th Street 8 Suite 900 Scottsdale, AZ 85260 9 s/Rufina Lebario 10 ______________________________ Office of the U.S. Attorney 11 12 I hereby certify that on August 5, 2005, I served the attached document by mail, on the 13 following, who are not registered participants of the CM/ECF System: 14 15 Guy P. Rolle 16 The Rolle Law Office, PLCC 15300 N. 90th Street 17 Suite 900 Scottsdale, AZ 85260 18 s/Rufina Lebario 19 _____________________________ Office of the U.S. Attorney 20 21 22 23 24 25 26 27 28 7

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