Bellecourt v. US, Civ. No. 4-89-828.

• Decision Date: 11 February 1992
• Docket Number: Civ. No. 4-89-828.
• Citation: 784 F. Supp. 623
• Parties: Clyde H. BELLECOURT, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

784 F. Supp. 623

Clyde H. BELLECOURT, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civ. No. 4-89-828.

United States District Court, D. Minnesota, Fourth Division.

February 11, 1992.

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Larry B. Leventhal, Douglas Hall, Minneapolis, Minn., for plaintiff.

Thomas Heffelfinger, U.S. Atty. and Lonnie F. Bryan, Asst. U.S. Atty., Minneapolis, Minn., for federal defendant.

Leo G. Stern, Laurie J. Miller and Fredrikson & Byron, P.A., Minneapolis, Minn., for defendant Wynne.

ORDER

DOTY, District Judge.

This matter is before the court on the federal defendants' motion for dismissal or, in the alternative, for summary judgment and on defendant Wynne's motion for partial summary judgment. Based on the files, records and proceeding herein, the federal defendants' motion for dismissal on plaintiff's federal tort claim will be granted, the federal defendants' motion for summary judgment on plaintiff's other claims against the federal defendants will be granted and defendant Wynne's motion for summary judgment will be granted.

BACKGROUND

Plaintiff Clyde H. Bellecourt asserts causes of action for negligence, medical malpractice, violation of due process, cruel and unusual punishment, civil rights violations under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(3), statutory violations, and violation of various duties owed to him. Those causes of action stem from two alleged incidents of mistreatment plaintiff claims occurred while he was incarcerated in the Federal Medical Center in Rochester, Minnesota ("FMC") in 1987. First, plaintiff, who is over fifty years old, claims that he was assigned to work in the FMC kitchen in contravention of a prison policy that states that persons over fifty are not required to work in the kitchen. Second, plaintiff claims that he suffered a heart attack on September 16, 1987, and that prison officials and the physician at FMC deliberately ignored his requests for treatment of his painful ailment.

Defendant Dr. Wynne moves for summary judgment on all claims of medical malpractice against him on the grounds that plaintiff failed to submit timely affidavits of expert review as required by Minn. Stat. § 145.682. The federal defendants move for dismissal on various grounds or, in the alternative, for summary judgment on all claims against them.

The court heard oral arguments on those motions on March 1, 1991. On March 6, 1991, the court issued a preliminary order regarding plaintiff's negligence claims against the government.¹ The court ruled that before it could consider defendants' motions as they applied to the merits of plaintiff's claims, the court had to decide the threshold jurisdictional issue of whether plaintiff properly presented his negligence claims to the appropriate federal agency, as required by the Federal Tort Claim Act ("FTCA"). The FTCA requires that a plaintiff satisfy the presentment requirement before the court may exercise jurisdiction over the claim.² See Melo v. United States, 505 F.2d 1026, 1028-29 (8th Cir.1974). The presentment requirement is satisfied only when the appropriate federal agency actually receives the claim.³

In its March 6, 1991, order, the court held that plaintiff had not proved that he had satisfied the presentment requirement.⁴ Plaintiff's affidavits indicating that he mailed the claims to the FMC were not sufficient to establish that the agency "received" plaintiff's claim. However, rather than dismissing plaintiff's federal tort claims for want of subject matter jurisdiction, the court provided plaintiff with an additional opportunity to establish that the appropriate federal agency had received his claim. Accordingly, the court ordered that the plaintiff could conduct additional discovery on the issue of presentment of his administrative claims.⁵ That discovery has now been completed.

DISCUSSION

Status of Defendant Dr. Wynne

As a preliminary matter, the court must determine whether Dr. Wynne is a federal or private sector employee. The United States Attorney's office originally represented defendant Dr. Wynne because the Department of Justice and the Bureau of Prisons considered him a federal employee. In August, 1990, the Department of Justice reversed its position and determined that Dr. Wynne was an independent contractor with FMC. Thereafter, Dr. Wynne retained private counsel to represent him in this matter. On May 30, 1991, the federal defendants moved the court to amend its answer in order that it might reflect that Dr. Wynne was an independent contractor and that he was represented by private counsel. Dr. Wynne did not file an objection to the government's motion and plaintiff had no objection to the government's motion.

The contract between Dr. Wynne and the Bureau of Prisons repeatedly describes Dr. Wynne as a contractor. The contract states that Dr. Wynne's position with FMC "is ... contractual and not an appointment.... Contractor shall not be subject to government supervision." Exhibit C to federal defendant's motion to dismiss or, in the alternative for summary judgment at 1. The contract further specifies that the "government will not withhold any taxes and the contractor is not entitled to any fringe benefits." Id. Other documents submitted with the federal defendants' motions also allude to the contractual nature of Dr. Wynne's employment with FMC. The court finds that Dr. Wynne was an independent contractor with FMC at the time of the alleged malpractice and grants the federal defendants' May 30, 1991, motion to amend their answer to reflect Dr. Wynne's independent contractor status. Because Dr. Wynne was an independent contractor at the time of the alleged malpractice, the court concludes that Dr. Wynne is not an appropriate party to plaintiff's federal tort claim but is subject to his separate state law claim of medical malpractice.

The court also finds that plaintiff can assert his fifth and eighth amendment Bivens claims against Dr. Wynne. Generally, a plaintiff may assert a constitutional claim only against a federal official. See Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In a case similar to the one at bar, however, the Supreme Court held that an inmate in a state prison could bring an eighth amendment claim, pursuant to 42 U.S.C. § 1983, against a doctor who contracted with the state to provide medical care to inmates on a part-time basis. West v. Atkins, 487 U.S. 42, 55-57, 108 S.Ct. 2250, 2258-60, 101 L.Ed.2d 40 (1988). The Court found that the doctor's treatment of the inmate "was state action fairly attributable to the State, and that ... the doctor acted under color of state law for purposes of § 1983." Id. at 57, 108 S.Ct. at 2260.

"The fact that the State employed respondent pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other `state employees' does not alter the analysis. It is the physician's function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State.... Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights."

Id. at 55-56, 108 S.Ct. at 2259. The holding in West is instructive to the determination to be made in the case at hand because a Bivens claim is analogous to a § 1983 claim. "The effect of Bivens was, in essence, to create a remedy against federal officers, acting under color of federal law, that was analogous, to the § 1983 action against state officials." Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir.1980); see also Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1337-38 (9th Cir. 1987) (finding that the private status of a defendant will not serve to defeat a Bivens claim for violation of constitutional rights provided that defendant engaged in federal action). Therefore, the court concludes that Dr. Wynne is an appropriate party to plaintiff's Bivens claims.

Presentment of the Administrative Claim

Whether plaintiff properly presented his administrative claim is a jurisdictional issue. The federal defendants move the court for an order dismissing plaintiff's federal tort action pursuant to Fed.R.Civ.P. 12(b)(1). Rule 12(b)(1) "jurisdictional issues, whether they involve questions of law or of fact, are for the courts to decide." Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990). The court may consider matters outside the pleadings in a challenge to subject matter jurisdiction. Id. at 728 n. 4 (citations omitted).

Plaintiff continues to allege that he properly presented an administrative claim under 28 U.S.C. § 2675(a). First, plaintiff alleges a presumption of receipt. Plaintiff submitted affidavits stating that his claim was mailed to the FMC. Second, plaintiff claims that deposition testimony indicates that FMC received plaintiff's administrative claim, thereby supporting the presumption of receipt and satisfying plaintiff's burden of establishing presentment. Plaintiff alleges that the depositions of Dr. Daniel Foster, Chief Psychologist at FMC, and John Chreno, coordinator of social services at FMC when plaintiff had his heart attack, provide sufficient evidence that FMC received plaintiff's claim. Plaintiff cites a portion of Dr. Foster's deposition in which the doctor states that he overheard a conversation regarding plaintiff's claim shortly after plaintiff allegedly mailed the claim. Plaintiff also cites a portion of John Chreno's deposition in which he states that he remembered a discussion about the claim at a department head meeting. Chreno attributed that discussion to a newspaper article. Plaintiff also submitted the affidavit of Ray Howe, Director of Research Unlimited in Rochester, Minnesota, in which Howe states...