Turner v. United States

• Decision Date: 02 July 2018
• Docket Number: No. 3:18-cv-0061 (VAB),3:18-cv-0061 (VAB)
• Citation: 327 F.Supp.3d 453
• Parties: Glenford TURNER, and Colleen Jacks-Turner, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Connecticut

327 F.Supp.3d 453

Glenford TURNER, and Colleen Jacks-Turner, Plaintiffs,

v.The UNITED STATES of America, Defendant.

No. 3:18-cv-0061 (VAB)

United States District Court, D. Connecticut.

Signed July 2, 2018

Joel Thomas Faxon, Brittany S. Cates, Faxon Law Group, LLC, New Haven, CT, for Plaintiffs.

John W. Larson, U.S. Attorney's Office, Hartford, CT, Michelle Lynn McConaghy, U.S. Attorney's Office, New Haven, CT, for Defendant.

RULING ON PLAINTIFFS' MOTION FOR LEAVE TO AMEND

Victor A. Bolden, United States District Judge

Glenford Turner and Colleen Jacks-Turner (the "Turners" or "Plaintiffs") filed this lawsuit against the United States of America ("Defendant"), seeking damages after a United States Department of Veterans Affairs ("VA") surgeon allegedly left a scalpel inside Mr. Turner during surgery. The United States operates the VA's hospital in West Haven, Connecticut, and employed Jaimin Shah, M.D., a "5th year urology trainee" at the time of the surgery, as an "agent or employee or governmental actor of the United States of America." Am. Compl. ¶ 4, ECF No. 8.

The Turners now move for leave to file a Second Amended Complaint and add a Bivens claim against Dr. Shah. Pls. Mot. for Leave to Am., ECF No. 12. The Defendant objects.

For the reasons stated below, Plaintiffs' motion for leave to amend is DENIED .

I. FACTUAL AND PROCEDURAL BACKGROUND¹

A. Factual Allegations

Mr. Turner, a veteran of the United States Army, served tours of duty in Iraq and Kuwait. Second Am. Compl. ¶ 3. Ms. Jacks-Turner is Mr. Turner's wife. Id. ¶¶ 4, 26.

On August 30, 2013, Mr. Turner underwent a "robotic-assisted laparoscopic prostatectomy

"² at the VA hospital in West Haven, Connecticut. Id. ¶ 4. In 2017, nearly four years later, he allegedly experienced dizziness and, as a result, underwent a magnetic resonance imagining ("MRI") scan. Id. ¶ 5. During the MRI, he experienced "severe abdominal pain" and subsequent imaging showed that there was a large surgical scalpel in his abdomen. Id. Surgeons removed the scalpel a month later. Id.

The Turners allege that Dr. Shah left the scalpel in Mr. Turner's stomach during the prostatectomy

and "knowingly and intentionally abandoned the large metal scalpel inside of plaintiff's body." Id. ¶ 6. The Turners also allege that it is "inconceivable that a physician could unwittingly abandon a scalpel of this size and mass inside a person's body" or, at the very least, Dr. Shaw was deliberately indifferent to Mr. Turner's needs. Id. ¶¶ 6-7.

B. Procedural History

On January 11, 2018, the Turners filed the initial Complaint in this lawsuit. See generally Compl., ECF No. 1. The initial Complaint included two claims: a negligence claim against the United States under the Federal Torts Claims Act ("FTCA"), and a loss of consortium claim asserted by Ms. Jacks-Turner. Id. ¶ 12. One day later, the Turners filed an amended complaint asserting the same two claims. See generally Am. Compl.

On March 16, 2016, the Turners sought leave to amend the Complaint a second time. See generally Pl. Mot. to Am. ("Pl. Mot."), ECF No. 12. The Second Amended Complaint adds a Bivens claim against Dr. Shah in his individual capacity. Second Am. Compl. at 4-7. The Turners argue that leave is appropriate "for complete relief and judicial economy." Pls. Mot. at 1. They argue that the claim against Dr. Shah is appropriate under a " ‘state created danger’/failure to protect theory" and that Dr. Shah violated Mr. Turner's substantive due process rights under the Fifth Amendment. Id. at 2.

The United States argues that this Court lacks jurisdiction over the Bivens claim, see generally Def. Obj., ECF No. 13; Def. Mem. in Support ("Def. Mem."), ECF 13-1, and that an immunity statute channels all claims arising from VA medical care through the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Def, Mem. at 4-9. This statute, Defendant maintains, provides a remedy, and that it would be inappropriate for the Court to create a Bivens remedy in this context, id. at 16 ("As stated above, Congress has provided a comprehensive statute that expressly states that the FTCA is the exclusive remedy for claims against VA personnel arising from medical treatment"), and thus there is no need to grant leave to add a futile claim.

II. STANDARD OF REVIEW

Rule 15 of the Federal Rules of Civil Procedure provides that parties may either amend once as a matter of course or, once the time period has elapsed, move for leave to file an amended complaint. Fed. R. Civ. P. 15(a). Parties who fail to file an amended complaint within the time period, or who seek additional amendments once the time period has elapsed, may seek the consent of the opposing party or the court's leave to amend. Fed. R. Civ. P. 15(a)(2). The "court should freely give leave when justice so requires." Id.

Under Fed. R. Civ. P. 15, the decision to grant leave to amend is within the discretion of the court, but the court must give some "justifying reason" for denying leave. Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Reasons for denying leave to amend include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment[.]" Id. ; see also Lucente v. Int'l Bus. Machines Corp. , 310 F.3d 243, 258 (2d Cir. 2002) (noting leave to amend may be denied when amendment is "unlikely to be productive," such as when an amendment is "futile" and "could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)." (internal citations omitted) ); Park B. Smith, Inc. v. CHF Indus. Inc. , 811 F.Supp.2d 766, 779 (S.D.N.Y. 2011) ("While mere delay, absent a showing of bad faith or undue prejudice, is not enough for a district court to deny leave to amend, the longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice." (internal quotation marks omitted) ).

III. DISCUSSION

The issue is whether a Bivens action may be maintained against a VA doctor where, in the course of medical treatment, the doctor allegedly violated the patient's constitutional rights. Plaintiffs argue that adding this claim only involves seeking Bivens remedies previously recognized, and that these remedies are necessary to provide the Turners complete relief. See Pl. Rep. Br. at 1, ECF No. 14. Defendant argues that to recognize a Bivens remedy here would be unprecedented because such remedies are generally disfavored and inappropriate in cases such as this, given that Congress has prescribed an alternative procedure for these types of claims. The Court agrees.

First, recognizing a Bivens remedy in this case would require an expansion of the remedy and "the [Supreme] Court has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity." Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Second, Congress has enacted an immunity statute that requires all torts to be directed through the provisions of the FTCA, thus providing an "alternative, existing process that amounts to a convincing reason to refrain from creating a new Bivens remedy." Ingram v. Faruque , 728 F.3d 1239, 1244 (10th Cir. 2013).

Without a recourse to Bivens , this Court lacks jurisdiction over a federal government actor sued for money damages in his or her individual capacity. Ingram , 728 F.3d at 1249. The Second Amended Complaint thus would be unable to survive a motion to dismiss, and the amendment therefore is futile. Lucente, 310 F.3d at 258 (holding amendment may be futile if the amended complaint "could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)").

A. Bivens ' History and New Contexts

The Court must first address whether the Turners' claim alleges a Bivens claim that has already been established, or whether it would require an expansion of the remedy into a new context.

Ziglar , 137 S.Ct. at 1864 ; Sanford v. Bruno , No. 17-CV-5132 (BMC), 2018 WL 2198759, at *5 (E.D.N.Y. May 14, 2018) (noting the two step test and that "[f]irst, the court must determine whether a plaintiff's claims arise in a new Bivens context.").

In Bivens , the Supreme Court recognized an implied private cause of action for individuals harmed by federal officers. See generally Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; see also Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (noting in Bivens "we recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.").

The Bivens case involved a search and seizure by the then-Federal Bureau of Narcotics, and the Supreme Court held a plaintiff could pursue "a cause of action for damages" implied directly from the Fourth Amendment. Bivens , 403 U.S. at 388, 91 S.Ct. 1999. Immediately following Bivens , the Supreme Court expanded the remedy to two new contexts: claims challenging sex discrimination under the Fifth Amendment's Due Process Clause, Davis v. Passman , 442 U.S. 228, 244, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and claims arising from the Eighth Amendment's Cruel and Unusual Punishments Clause. Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

After Carlson , however, the Supreme Court "has consistently refused to extend Bivens liability to any new context or new category of defendants." Malesko, 534 U.S. at 68, 122 S.Ct. 515 (declining to recognize Bivens remedy for Eighth Amendment violations against private prison operator under color of federal law); see also Bush v. Lucas , 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (declining to "authorize a new nonstatutory...