Stegemann v. United States

• Decision Date: 27 March 2023
• Docket Number: 9:21-CV-0949 (MAD/ML)
• Parties: JOSHUA G. STEGEMANN, Plaintiff, v. UNITED STATES OF AMERICA; and PAMELA C. PEDERSEN, Defendants.
• Court: U.S. District Court — Northern District of New York

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JOSHUA G. STEGEMANN, Plaintiff, v. UNITED STATES OF AMERICA; and PAMELA C. PEDERSEN, Defendants.

No. 9:21-CV-0949 (MAD/ML)

United States District Court, N.D. New York

March 27, 2023

JOSHUA G. STEGEMANNPro Se Plaintiff Ray Brook Correctional Facility

CARLA B. FREEDMAN United States Attorney Counsel for Defendants

EMER M. STACK, ESQ. Assistant United States Attorney

ORDER AND REPORT-RECOMMENDATION

Miroslav Lovric, United States Magistrate Judge

Currently before the Court, in this civil rights action filed by Joshua G. Stegemann(“Plaintiff”) against the United States of America and Pamela C. Pedersen(collectively “Defendants”), is (1)Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(2), and12(b)(6), or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56(Dkt. No. 37), and (2)Plaintiff's motion to supplement the Amended Complaint pursuant to Fed.R.Civ.P. 15(d)(Dkt. No. 43).For the reasons set forth below, I (1) recommend that Defendants' motion be granted in part and denied in part and (2) deny Plaintiff's motion to supplement the Amended Complaint.

I.RELEVANT BACKGROUND

A.Administrative Proceedings

On or about February 4, 2021, Plaintiff filed an administrative tort claim-which was assigned number TRT-NER-2021-03094(“Claim 1”)-alleging that Federal Correctional Institute Ray Brook (“FCI Ray Brook”) failed to protect him from contracting COVID-19 because “the FBOP continues to pack too many prisoners into cramped cellblocks and multiple occupancy cells.”^[1](Dkt. No. 37, Attach. 3 at ¶ 8;Dkt. No. 37, Attach.6.)On August 13, 2021, Claim 1 was denied.(Dkt. No. 37, Attach. 3 at ¶ 9;Dkt. No. 37, Attach.7.)

On or about May 17, 2021, Plaintiff filed an administrative tort claim-which was assigned number TRT-NER-2021-05401(“Claim 2”)-alleging medical staff informed him that his kidneys were failing and his contraction of COVID-19 exacerbated the alleged kidney disease.(Dkt. No. 37, Attach. 3 at ¶ 10;Dkt. No. 37, Attach.8.)On January 21, 2022, Claim 2 was denied.(Dkt. No. 37, Attach. 3 at ¶ 11;Dkt. No. 37, Attach.9.)

On or about July 14, 2021, Plaintiff filed an administrative tort claim-which was assigned number TRT-NER-2021-06819(“Claim 3”)-alleging that he had chronic kidney disease (“CKD”) since February 2017, and that Defendant Pederson “withheld the CKD diagnosis” and failed to treat him for that condition.(Dkt. No. 37, Attach. 3 at ¶ 12;Dkt. No. 37, Attach.10.)On February 22, 2022, Claim 3 was denied.(Dkt. No. 37, Attach. 3 at ¶ 13;Dkt. No. 37, Attach.11.)

B.Proceedings in this Court

On August 23, 2021, Plaintiff commenced this action by the filing of a verified complaint against Defendant United States of America.(Dkt. No. 1.)After Plaintiff paid the filing fee, United States District JudgeMae A. D'Agostino reviewed the Complaint pursuant to 28 U.S.C. §§ 1915,1915A and held that Plaintiff's negligence and medical malpractice claims pursuant to the Federal Tort Claims Act (“FTCA”) survived sua sponte review, but Plaintiff's Bivens claim against Defendant United States of America was not cognizable and was therefore dismissed with prejudice.(Dkt. No. 6.)

On December 9, 2021, Plaintiff filed a verified Amended Complaint against Defendants asserting the following three claims: (1) a claim of negligence pursuant to the FTCA against Defendant United States of America regarding Plaintiff's contraction of COVID-19 at FCI Ray Brook in December 2020; (2) a claim of medical malpractice pursuant to the FTCA against Defendant United States of America regarding Plaintiff's alleged delayed treatment for kidney disease; and (3) a claim of deliberate indifference to a serious medical condition against Defendant Pederson pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971), and the Eighth Amendment.(Dkt. No. 9, 10.)On January 6, 2022, Judge D'Agostino accepted Plaintiff's Amended Complaint for filing and deemed it the operative pleading.(Dkt. No. 10.)

On June 27, 2022, Defendants filed the pending motion in lieu of filing an answer.(Dkt. No. 37.)To date, the parties have not engaged in any discovery or exchanged mandatory disclosures.

C.Parties' Briefing on Defendants' Motion to Dismiss

1.Defendants' Memorandum of Law

Generally, in support of their motion to dismiss, Defendants assert the following four arguments: (1)the Court lacks subject matter jurisdiction over Plaintiff's claims because (a)Plaintiff failed to exhaust administrative remedies regarding his FTCA medical malpractice claim in Claims 2 and 3 before commencing this action, (b) the discretionary function exception precludes subject matter jurisdiction over his FTCA negligence claim, and (c) a claim against an employee of the United States in his or her official capacity is a claim against the United States and thus, the Court lacks subject matter jurisdiction over Plaintiff's Bivens claim against Defendant Pederson in her official capacity; (2)the Court lacks personal jurisdiction over Defendant Pederson because (a) the Amended Complaint fails to allege any facts plausibly suggesting that New York's long-arm statute supports jurisdiction over Defendant Pederson as a non-domiciliary, and (b) assuming arguendo that New York's long-arm statute supported jurisdiction over Defendant Pederson, the exercise of personal jurisdiction over her does not comport with due process considerations; (3) in the alternative, Plaintiff fails to state a claim upon which relief may be granted against Defendants because (a) with respect to his negligence claim, Plaintiff fails to allege facts plausibly suggesting any action or inaction by a FBOP employee that caused him to contract COVID-19 or how he came to be infected with COVID-19, (b) with respect to his medical malpractice claim, Plaintiff fails to allege facts plausibly suggesting that Defendant Pederson's purported failure to disclose Plaintiff's abnormal laboratory result deviated from accepted medical practice, and (c) with respect to his Bivens claim, the Amended Complaint fails to allege facts plausibly suggesting the subjective prong of an Eighth Amendment deliberate indifference claim; and (4) in the alternative, summary judgment is warranted on Plaintiff's medical malpractice and Bivens claims because (a) with respect to his medical malpractice claim, the medical records indicate that Plaintiff does not- and did not-have any signs of severe or progressive kidney disease or damage, and (b) with respect to his Bivens claim, (i) the medical records indicate that Plaintiff does not-and did not- have a serious or urgent condition to satisfy the objective prong of an Eighth Amendment claim, and (ii)Defendant Pederson is entitled to qualified immunity.(Dkt. No. 37, Attach.1.)In addition, Defendants argue that leave to amend should be denied because Plaintiff has already amended the complaint once and thus, “has already had sufficient opportunity to allege a claim against Defendant[s]” and “because a lack of jurisdiction is among the defects in Plaintiff's claims, the claims cannot be cured by further pleading, rendering any attempt at amendment futile.”(Id. at 47-48.)

2.Plaintiff's Opposition Memorandum of Law

Generally, in opposition to Defendants' motion to dismiss, Plaintiff asserts the following four arguments: (1) jurisdiction and venue are proper; (2)Defendant Pederson's failure to disclose and treat Plaintiff's diminished kidney function and correlated symptoms violated New York and New Hampshire law; (3) FBOP has a duty to protect its prisoners from infectious disease and its negligent failure to test and quarantine inmates it was accepting from the United States Marshals is not excused by the discretionary function exception; and (4) based on Defendants' own papers, there are genuine issues of material fact that preclude the granting of summary judgment in favor of Defendants.(See generallyDkt. No. 42.)

More specifically, with respect to his first argument, Plaintiff argues that he filed Claim 1 on December 29, 2020, he filed an amended claim-Claim 2-on May 7, 2021, and a second amended claim-Claim 3-on July 6, 2021.(Dkt. No. 42at 2.)Plaintiff argues that his amended claims-Claims 2 and 3-incorporated the reference number assigned to Claim 1, which was denied on August 13, 2021.(Id.)Plaintiff argues that pursuant to 28 C.F.R. § 14.2(c), an administrative claim may be amended any time before final agency action and- because the amended claims (Claims 2 and 3) incorporated Claim 1 and were received before the denial on August 13, 2021-all claims were “denied implicitly by the August 13, 2021 denial.”(Id. at 2-3.)In addition, Plaintiff argues that venue is proper in this Court for his Bivens claim pursuant to 28 U.S.C. § 1391(e)(1)(C) because Plaintiff resides in the Northern District of New York.(Id. at 3.)

With respect to his second argument, Plaintiff argues that, to the extent the Court is conducting a choice of law consideration, New York law should apply because the action is proceeding in New York.(Id.)Notwithstanding, Plaintiff argues that the laws of New York and New Hampshire are “remarkably similar” and that a jury should determine whether the FBOP's “failure to disclose and treat [his] diminished eGFR and correlative symptoms for more than 4 years meets the bar for a medical malpractice and/or negligence claim in this case.”(Id. at 5-6.)

With respect to his third argument, Plaintiff argues that the FBOP “operated under a policy and procedure requiring ‘screening of inmates' whereby ‘[a]ll newly-arriving inmates are screened for COVID-19 exposure and risk factors and symptoms.'”(Dkt. No. 42at 7[citingN.D.N.Y. Case.No. 1:13-CR-0357 (G...