Parker v. Blackerby

Citation368 F.Supp.3d 611
Decision Date26 March 2019
Docket Number6:16-CV-06475 EAW
Parties Ronnie Joe PARKER, Plaintiff v. Joel D. BLACKERBY, Douglas Landy, Kim Dean, and Clifton Springs Hospital, Defendants.
CourtU.S. District Court — Western District of New York

Ronnie Joe Parker, Syracuse, NY, pro se.

Michael S. Cerrone, U.S. Attorney's Office, Buffalo, NY, Daniel J. Moore, Lindsey Ann Zullo, Harris Beach LLP, Pittsford, NY, for Defendants.


ELIZABETH A. WOLFORD, United States District Judge


Plaintiff Ronnie Joe Parker ("Plaintiff"), who was criminally charged with threating the life of the President of the United States and ultimately acquitted by a jury, brings various federal and state law claims against the defendants, former United States Secret Service Special Agent Joel D. Blackerby ("Agent Blackerby"), Clifton Springs Hospital ("CSH"), Dr. Douglas Landy ("Dr. Landy"), and registered nurse Kim Dean ("Nurse Dean") (collectively "Defendants"). (Dkt. 8; Dkt. 9). Currently pending before the Court are Agent Blackerby's motion to dismiss the claims against him (Dkt. 26) and CSH's, Dr. Landy's, and Nurse Dean's (collectively the "CSH Defendants") motion for summary judgment (Dkt. 49). For the reasons set forth below, the Court grants Agent Blackerby's motion to dismiss, grants the CSH Defendants' motion for summary judgment with respect to Plaintiff's federal claims against them, and dismisses Plaintiff's state law claims against the CSH Defendants without prejudice for lack of jurisdiction.


CSH is a private community hospital and nursing home located in Clifton Springs, New York. (Dkt. 49-2 at ¶ 1).1 Dr. Landy is a board-certified psychiatrist and has been employed by CSH for approximately six years. (Id. at ¶ 2). Nurse Dean is a registered nurse and has been the unit coordinator for CSH's inpatient psychiatric unit since April 2011. (Id. at ¶ 3).

Plaintiff is diagnosed with paranoid schizophrenia

. (Id. at ¶ 4). On February 4, 2014, Plaintiff was transported via ambulance to CSH's emergency room because he was hearing voices telling him to harm himself and others. (Id. at ¶ 6). Plaintiff was admitted to CSH's inpatient psychiatric unit, where he met with Dr. Landy for an initial inpatient evaluation. (Id. at ¶¶ 8-9). Plaintiff told Dr. Landy that he was having auditory hallucinations commanding him to kill himself and others, including the President of the United States. (Id. at ¶ 9).

Dr. Landy contacted the Secret Service to advise them that "one of his patients had auditory hallucinations of command to kill then-President Obama." (Id. at ¶ 10). Dr. Landy spoke to Agent Blackerby, who requested to meet with Plaintiff at CSH the following morning. (Id. at ¶ 11). Dr. Landy advised Plaintiff that a Secret Service Agent would be coming the following morning to speak with him regarding his statement about the President and Plaintiff indicated that he was agreeable to the meeting. (Id. at ¶ 12).

On February 7, 2014, Agent Blackerby met with Plaintiff in a conference room at CSH's inpatient psychiatric unit. (Id. at ¶ 13). Dr. Landy and Nurse Dean were present for the entirety of the meeting. (Id. ). After the meeting, Agent Blackerby told Dr. Landy and Nurse Dean that he would "report his investigative findings to the appropriate individuals to make a decision regarding whether criminal charges would be pursued against Plaintiff." (Id. at ¶ 18). Agent Blackerby also asked to be contacted when Plaintiff was discharged from CSH. (Id. ). Plaintiff was discharged from CSH on February 28, 2014, and the Secret Service was notified. (Id. at ¶ 19).

Plaintiff was indicted on April 10, 2014, for threatening the life of the President of the United States, in violation of 18 U.S.C. § 871. United States v. Parker, 6:14-CR-06045, Dkt. 11, at *1 (W.D.N.Y. Apr. 10, 2014). Plaintiff was alleged to have "told a special agent of the United States Secret Service that he was going to ‘find him (the President) and kill him....’ " Id. Plaintiff was released on bail, but shortly thereafter he violated the conditions of his pretrial release, his release was revoked, and he was detained until the conclusion of the trial. See Parker, 6:14-CR-06045, Dkt. 36 (W.D.N.Y. Dec. 15, 2014). A jury trial commenced on September 8, 2015, and Plaintiff was acquitted when the jury returned its verdict on September 10, 2015. See Parker, 6:14-CR-06045, Dkt. 78 (W.D.N.Y. Sept. 10, 2015).

Plaintiff filed this action on July 8, 2016, alleging violations of his constitutional rights relating to his arrest, incarceration, and prosecution. (Dkt. 1). Plaintiff filed an amended complaint on January 10, 2017, (Dkt. 6), and a second amended complaint on February 14, 2017 (Dkt. 8) (the "Second Amended Complaint"). On April 14, 2017, the Court entered a Decision and Order screening Plaintiff's Second Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2). (Dkt. 10). The Court dismissed certain of Plaintiff's claims, and permitted the following claims to proceed to service: (1) a false arrest claim against Agent Blackerby; (2) a First Amendment retaliation claim as to Agent Blackerby, Dr. Landy, and Nurse Dean; (3) a malicious prosecution claim against Agent Blackerby and Dr. Landy; (4) a false imprisonment claim against Agent Blackerby, Dr. Landy, and Nurse Dean; and (5) a negligence/medical malpractice claim against the CSH Defendants. (Id. at 7-12).

Agent Blackerby filed his motion to dismiss on December 18, 2017. (Dkt. 26). Plaintiff filed a declaration opposing Agent Blackerby's motion on January 10, 2018 (Dkt. 36), and Agent Blackerby filed a reply on January 23, 2018 (Dkt. 38).

The CSH Defendants filed their motion for summary judgment on April 20, 2018. (Dkt. 49). Plaintiff filed opposition papers on November 26, 2018. (Dkt. 69). The CSH Defendants filed a reply on December 20, 2018. (Dkt. 73).

I. Agent Blackerby's Motion to Dismiss

Agent Blackerby seeks dismissal of Plaintiff's claims on a number of grounds. First, Agent Blackerby contends that any state common-law tort claims against him are barred by the Federal Tort Claims Act (the "FTCA"). Second, Agent Blackerby argues that Plaintiff cannot maintain a First Amendment retaliation claim against him because there is no Bivens2 remedy for First Amendment retaliation. Third, Agent Blackerby argues that Plaintiff cannot maintain a Bivens claim against him in his official capacity. Fourth, Agent Blackerby argues that Plaintiff has failed to state a claim under Bivens . Fifth, Agent Blackerby argues that, in any event, he has qualified immunity from Plaintiff's claims. Sixth and finally, Agent Blackerby contends that he has not been properly served.

For the reasons discussed below, the Court agrees that (1) Plaintiff's state common-law claims are barred by the FTCA, (2) Plaintiff cannot maintain a Bivens claim against Agent Blackerby in his official capacity, and (3) Plaintiff has failed to state a viable Bivens claim. Because these conclusions mandate dismissal of all Plaintiff's claims against Agent Blackerby, the Court need not and does not reach Agent Blackerby's remaining arguments.

A. State Common-Law Claims

As noted above, Plaintiff has asserted claims against Agent Blackerby for false arrest, malicious prosecution, and false imprisonment. Such claims generally may be asserted both as constitutional claims and as state common-law claims. See Crews v. Cty. of Nassau, 996 F.Supp.2d 186, 203 (E.D.N.Y. 2014). However, as Agent Blackerby correctly points out in his motion to dismiss, state common-law claims cannot be brought against a federal employee acting within the scope of his employment. See Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994) ("[T]he FTCA makes individual government employees immune from common-law tort claims for acts committed within the scope of their employment[.]").

The "United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quotation omitted). The FTCA provides a limited waiver of sovereign immunity for claims against the United States for money damages for injury or loss of property caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his or her office or employment. See 28 U.S.C. § 1346(b). Under the FTCA, when a federal employee is sued for negligence, a United States Attorney determines whether the employee was acting within the scope of his or her employment, and if so, "the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(l)-(2) ; see 28 C.F.R. § 15.4 ("The United States Attorney for the district where the civil action or proceeding is brought ... is authorized to make the statutory certification that the Federal employee was acting within the scope of his office or employment with the Federal Government at the time of the incident out of which the suit arose.").

The FTCA applies to false arrest, false imprisonment, and malicious prosecution claims when they are asserted against "law enforcement officers of the United States Government," where "law enforcement officer" is defined as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." 28 U.S.C. § 2680(h) ; see Murphy v. United States, 121 F.Supp.2d 21, 24 (D.D.C. 2000), aff'd , 64 F. App'x 250 (D.C. Cir. 2003) (discussing applicability of § 2680(h) to Secret Service agents).

In this case, the United States Attorney for the Western District of New York has certified that Agent Blackerby was acting within the scope of his employment with respect to Plaintiff's claims. (Dkt. 30). Accordingly, the United States must be substituted in as the sole defendant with respect to these claims and they...

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