Rodriguez v. United States
| Docket Number | 1:21-CV-10679 (LTS) |
| Decision Date | 31 January 2022 |
| Parties | ADA RODRIGUEZ, Decedent, and ALBERTO BETANCOURT, personally, and as Legal Representative and Next of Kin of his mother ADA RODRIGUEZ, Decedent, Plaintiffs, v. UNITED STATES, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
ORDER OF DISMISSAL
Plaintiff Alberto Betancourt, who is appearing pro se, filed this action on his own behalf and as the “Legal Representative and Next of Kin” of his deceased mother Ada Rodriguez.[1]Plaintiff asserts claims under the Federal Tort Claims Act, 42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964, the Administrative Procedure Act, and the James Zadroga 9/11 Health and Compensation Act of 2010, as well as under federal criminal statutes, 18 U.S.C §§ 371 and 1031, and state law. The Court also construes Plaintiff's complaint as asserting claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff seeks damages as well as declaratory and injunctive relief.
Plaintiff names the following defendants: (1) the United States of America; (2) the United States Congress: (3) the United States Department Health & Human Services (“HHS”); (4) HHS Secretary Xavier Becerra; (5) the Centers for Disease Control and Prevention (“CDC”); (6) CDC Director Rochelle P. Walensky (7) the World Trade Center Health Program (“WTCHP”); (8) Acting Administrator of the WTCHP, John Howard, M.D.; (9) the National Institute for Occupational Safety & Health; (10) the State of New York; (11) the “New York State Congress” (the New York State Legislature); (12) the New York State Department of Health; (13) the New York City Department of Health & Mental Hygiene; (14) the “Mount Sinai Hospital Corporation”; (15) the Director of the WTCHP at Mount Sinai Hospital, Michael A Crane; (16) “Saint Lukes Hospital at Mount Sinai Hospital”; (17) the New York State Unified Court System; (18) New York State Supreme Court Justice Joan Madden; (19) New York State Supreme Court Justice Eileen A. Rokower; (20) Kauffman, Borgeest & Ryan LLP; (21) Eldar Mayouhas, Esq.; and (22) “John Doe/Jane Doe.”
Plaintiff has also filed a “motion for court assigned counsel and expert medical witness doctor.” (ECF 3.) By order dated January 6, 2022, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”). For the reasons set forth below, the Court dismisses this action.
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court of the United States has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id. But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Id. (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id. at 679.
Plaintiff alleges the following in his 379-page complaint: Plaintiff and his mother, Ada Rodriguez, served as “volunteer emergency first responders” at Ground Zero at the World Trade Center following the events of September 11, 2001. Rodriguez volunteered between September 2001 and December 2001; Plaintiff volunteered between September 2001 and October 2001. In 2002, both of them were treated at Mount Sinai Hospital “for various health conditions[, ] including physical, emotional and mental injuries.” (ECF 2, at 31.) They both became patients of Mount Sinai Hospital's World Trade Center Health Monitoring and Screening Program; Plaintiff continues to be a patient in that program, and his mother, Rodriguez, was a patient in that program until her death on November 16, 2015. As participants in that program, Plaintiff and Rodriguez initially received “mental health therapy and a once-a-year medical screening or tests and other medical exams and treatment.” (Id.) As time passed, however, the Government defendants and Mount Sinai Hospital “began to . . . limit those medical services.” (Id.) Plaintiff asserts that the purpose of the program is to screen for and treat medical conditions associated with Ground Zero at the World Trade Center, including cancers.
On September 17, 2015, Rodriguez arrived at Mount Sinai Hospital's emergency room, complaining about “severe unbearable pain[] and suffering[] in her abdomen . . . area, discomfort[] and pain in using her bowels, an inability to properly use her bowels . . ., vomiting and diarrhea, and other medical difficulties that she was experiencing at the time.” (Id. at 17.) Rodriguez “was misdiagnosed and told that she had only a simple bacterial infection and was sent home very quickly.” (Id.) Physicians took an x-ray of Rodriguez, which “‘was dark and not clear at all'” and, despite the lack of clarity in the x-ray, they failed to take another x-ray. (Id.) Rodriguez was sent home despite “still complaining in agony of terrible abdominal pains and suffering.” (Id.)
On October 23, 2015, Rodriguez was admitted to Mount Sinai Hospital, where, on or about October 27, 2015, she underwent surgery to treat her colon cancer - cancer that had been previously recognized as originating from Rodriguez's work at Ground Zero at the World Trade Center - and she was released five days later. Plaintiff alleges that physicians at Mount Sinai Hospital failed in their duty of care to Rodriguez, failed to diagnose Rodriguez's cancer early, and failed to admit Rodriguez again, after her surgery, to treat a pulmonary embolism that she developed after her surgery, which ultimately caused her death. On November 13, 2015, three days before Rodriguez's death, Plaintiff called a nurse at Mount Sinai to report that Rodriguez's blood pressure was low. The nurse told him, among other things, that “‘Mount Sinai Hospital does not want to readmit [Rodriguez] because if they do so[, ] Medicare will not pay the hospital expenses or bills related to the medical services rendered to the patient as per existing Medicare policy.'” (Id. at 41.)
Since 2002, Plaintiff has received treatment at Mount Sinai Hospital “for serious and permanent injuries he sustained at Ground Zero” in September 2001, including “nerve injuries, neck and spine injuries, muscle wear and tear injuries, muscle and brain spasms and other illnesses....” (Id. at 34-35.) Michael A Crane, Director of the WTCHP at Mount Sinai Hospital, however, “suddenly and without notice and/or without affording [Plaintiff] an opportunity to respond or to appeal, unfairly[, ] wrongfully[, ] and unlawfully terminated and denied those medical services and treatments” for Plaintiff. (Id. at 35.) Plaintiff continues to suffer from those injuries. On or about October 27, 2015, security personnel removed Plaintiff from Mount Sinai Hospital while Rodriguez was undergoing surgery.
Plaintiff alleges that the government defendants have failed to supervise Mount Sinai Hospital. In addition, he alleges that he “has not been able to receive his medical treatment” from the WTCHP at Mount Sinai Hospital “due to his reasonable suspicion and fear that the . . . government defendants [are] acting together in conspiracy with Mount Sinai Hospital.” (Id. at 69.) For these same reasons, Plaintiff believes that “his mother was wrongfully killed by the defendants.” (Id.)
Plaintiff alleges that the defendants' actions “were discriminatory and [that the defendants] are engaged in an unlawful practice that unfairly deprives persons of color or minorities[, ] like [Plaintiff and Rodriguez, ] who are Hispanic[, ] of equal civil rights under the law.” (Id. at 129.) He “sincerely believe[s] that [he and Rodriguez] have been discriminated against by defendants because [he and Rodriguez] are . . . Hispanic.” (Id.) “[B]y reason of the . . . unlawful inhumane negligent and fraudulent actions of defendants at the . . . [9/11 World Trade Center] Health Program, the defendants have neglected, mistreated, abused, rejected and discriminated...
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