Opinion
9:06-CV-795 (GLS/DRH).
July 28, 2008
FOR THE PLAINTIFF:, MARK CRUDUP, Last Known Address:, Altamont Program Inc. Schenectady, New York. FOR DEFENDANT JOHN DOE DENTIST:, DIANE J. CAGINO, Assistant United States Attorney, HON. GLENN T. SUDDABY, United States Attorney for the Northern District of New York, James T. Foley U.S. Courthouse, Albany, New York.
The court obtained this zip code from the world wide web:www.treatment4addiction.com website.
FOR DEFENDANTS BUFFARDI AND SCHENECTADY COUNTY JAIL:, WILLIAM J. GREAGAN, ESQ., JONATHAN M. BERNSTEIN ESQ., GOLDBERG SEGALLA LLP, Albany, New York.
TIMOTHY S. BRENNAN, ESQ., PHELAN, PHELAN DANEK, LLP, Albany, New York.
FOR DEFENDANT RESER'S FINE FOODS, INC., HEATH A. BENDER, ESQ., EUSTACE MARQUEZ, White Plains, New York.
DECISION AND ORDER
The court cannot locate pro se plaintiff, Mark Crudup. Accordingly, it considers sua sponte Crudup's noncompliance with this District's Local Rules by failing to notify the court of his current address and by not prosecuting his action.
On June 26, 2006, a notice of removal was filed by defendant John Doe, Dentist. On May 1, 2008, Judge David R. Homer issued a Report-Recommendation and Order. Judge Homer granted the defendant dentist's motion to substitute the United States as party-defendant for defendant dentist (Dkt. No. 5) and denied Crudup's motion for remand and to amend the complaint (Dkt. No. 20). Judge Homer recommended that the defendant dentist's motion to dismiss the complaint (Dkt. No. 5) be granted and the complaint be dismissed in its entirety as to defendant dentist. Judge Homer further recommended that the case be remanded to the New York State Supreme Court, Schenectady County, for all further proceedings. See Dkt. No. 30. Crudup's copy of the Report-Recommendation and Order was returned as undeliverable — attempted not known. See Dkt. No. 31. This district has expended considerable effort in order to familiarize pro se litigants with those Rules by reminding them of their obligations in various documents and orders mailed to them, and by preparing a Pro Se Handbook that is easily accessible. See http://www.nynd.uscourts.gov. In fact, copies of the Handbook have been provided to all prison libraries in the Northern District.
In relevant part, Local Rule ("L.R.") 10.1(b) provides:
All . . . pro se litigants must immediately notify the court of any change of address. The notice of change of address is to be filed with the clerk of the court and served on all other parties to the action. The notice must identify each and every action for which the notice shall apply. . . . (emphasis in original).
In turn, L.R. 41.2(b) provides that the "[f]ailure to notify the Court of a change of address in accordance with L.R. 10.1(b) may result in the dismissal of any pending action."
L.R. 41.2(b) mirrors Rule 41(b) of the Federal Rules of Civil Procedure, which affords the court discretionary authority to dismiss an action because of the failure to prosecute or to comply with any order of the court. Link v. Wabash R.R. County Indep. Sch. Dist., 370 U.S. 626 (1962); see also, Lyell Theater Corp. v. Loews Corp., 628 F. 2d 37 (2d Cir. 1982).
On June 12, 2008, the court issued an order directing Crudup to submit his current address to the court and file any objections to the Report-Recommendation, if he so chooses. within fourteen days from the date of the filing of the order. See Dkt. No. 32. The court warned Crudup that his failure to comply with the order will result in the court considering the Report-Recommendation as unopposed. However, Crudup's copy of the order was mailed to his last known addresses, but returned as Returned to Sender — Attempted not known/Unable to forward. See Dkt. Nos. 33-34.
For the orderly disposition of cases, it is essential that litigants honor their continuing obligation to keep the court informed of address changes. Michaud v. Williams, 98cv1141, 1999 WL 33504430, at *1 (N.D.N.Y. Nov. 5, 1999) (citing Fenza v. Conklin, 177 F.R.D. 126 (N.D.N.Y. 1998) (Pooler, then D.J.). As Judge Pooler has observed:
It is neither feasible nor legally required that the clerks of the district courts undertake independently to maintain current addresses on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications between the clerk and the parties of their counsel will be conducted principally by mail. In addition to keeping the clerk informed of any change of address, parties are obliged to make timely status inquiries. Address changes normally would be reflected by those inquiries if made in writing.Dansby v. Albany County Corr. Staff, 95cv1525, 1996 WL 172699, *1 (N.D.N.Y. Ap. 10, 1996) (citations omitted)).
As a matter of course, courts in this district have dismissed actions when litigants have failed to abide by either the Local Rules or orders related to address changes, and have subsequently failed to prosecute their actions. See Williams v. Faulkner, 95cv741, 1998 WL 278288 (N.D.N.Y. May 20, 1998); Dansby, 1996 WL 172699, at, *1; Fenza, 177 F.R.D. at 126; cf. Michaud, 1999 WL 33504430, at *1.
Crudup's failure to provide this court with a change of address normally would warrant dismissal, however, the Court will consider the Report-Recommendation as unopposed. The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge David R. Homer, duly filed May 1, 2008. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.
No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby
ORDERED, that the Report-Recommendation of Magistrate Judge David R. Homer filed May 1, 2008 is ACCEPTED in its entirety for the reasons state therein, and it is further. According, it is hereby
ORDERED that defendant dentist's motion to dismiss the complaint (Docket No. 5) is GRANTED and the complaint is DISMISSED in its entirety as to the defendant dentist, and it is further
ORDERED that the case is REMANDED to the New York State Supreme Court, Schenectady County, for all further proceedings; and it is further
ORDERED that the Clerk serve plaintiff at his last known address and all parties by regular mail.
SO ORDERED.
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
I. Background
The facts are presented in the light most favorable to Crudup as the non-moving party. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).
Crudup was incarcerated at the Jail at all relevant times herein. Compl. at ¶ 1. On or about August 15, 2004, Crudup was eating potato salad, bit down on a foreign object, and broke his tooth. Id. at ¶ 5. After submitting multiple requests for treatment, Crudup was finally seen by the Jail's dental staff.id. at ¶ 6. Crudup contends that defendant dentist committed malpractice by improperly breaking off his tooth, leaving the root exposed. Id. at ¶ 6. As a result, Crudup experienced excruciating pain and suffering. Id. at ¶ 6. Id. at ¶ 14.
On or about April 28, 2006, Crudup commenced this action in the Schenectady County Supreme Court. Docket No. 1 at ¶ 1. Defendant dentist is employed by Schenectady Family Health Services, Inc. ("Family Health Services") which
is a grantee of the Department of Health and Human Services and . . . [pursuant to] the Federally Supported Health Centers Assistance Act, [Family Health Services] and its employees are covered under the Federal Tort Claims Act [FTCA] in that the complaint alleges personal injuries incurred as a result of dental services rendered to [Crudup] while an inmate at Schenectady County Jail.Id. at ¶ 3. Defendant dentist has provided certification that Family Health Services was a grantee of the federal government.Id. at ¶ 4 pt. 3; Docket No. 5, pt. 2 at 1-2 pt. 3. Pursuant to 42 U.S.C. §§ 233(a) and (c), defendant dentist removed the case to this court on June 26, 2006. Docket No. 1; Docket No. 5, pt. 2 at 2. These motions followed.
II. Discussion A. Removal
District courts retain original jurisdiction over "all civil actions arising under the . . . laws . . . of the United States." 28 U.S.C. § 1331. Unless expressly prohibited by Congress, "any civil action brought in a State court of which the district courts . . . have original jurisdiction, may be removed by the defendant. . . ." 28 U.S.C. § 1441. The FTCA is a federal statute providing civil relief for damages, including personal injuries, caused by Public Health Service workers. 42 U.S.C. § 233(a). Because Crudup has asserted a civil action for which a federal statute may provide relief, this Court had original jurisdiction over the case and defendant dentist's removal was proper.
In response to defendant dentist's motion, Crudup seeks to remand the case back to state court. However, Crudup asserts no basis for removal. Because the Court's jurisdiction over the case is clear, Crudup presumably seeks remand on alternative grounds. However, the motion to remand was made five months late. See 28 U.S.C. § 1447(c) (stating that a motion to remand must be made within thirty days of the filing of the notice of removal). Thus, Crudup's untimely, vague, and conclusory allegations are insufficient to override defendant dentist's removal to this Court and a remand to state court.
B. The United States as a Defendant
The FTCA provides an "[exclusive] remedy against the United States . . . for damage for personal injury . . . resulting from the performance of . . . dental . . . functions . . . by any commissioned officer or employee of the Public Heath Service while acting within the scope of his office or employment. . . ." 42 U.S.C. § 233(a). Subsection 233(g) sets forth the procedure for certain entities and their employees receiving federal grants to be deemed employees of the Public Health Service for purposes of § 233(a). Koehler v. Cortland Memorial Hosp., 65 F. Supp. 2d 103, 106 (N.D.N.Y. 1999). Certified community health centers are among those entities entitled to Public Health Service status.Id. In this case, Family Health Services was a certified community health center entitled to Public Health Service status pursuant to § 233. Docket No. 1, pt. 3; Docket No. 5, pt. 3. Thus, because Crudup brings suit against a Public Health Service, his exclusive remedy lies against the United States as long as defendant dentist was acting within the scope of his employment. As alleged in the complaint, defendant dentist's actions were indisputably undertaken within the scope of his employment. Therefore, Crudup's action lies against the United States.
Additionally,
Upon certification by the Attorney General that the defendant was acting in the scope of his employment at the time of the incident out of which the suit arose, any such civil action . . . commenced in a State court shall be removed . . . any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States. . . .42 U.S.C. § 233(c) (emphasis added). In this case, the Attorney General has certified that defendant dentist was acting in the scope of his employment as to the matters alleged in the complaint. Docket No. 1 at ¶ 3. Additionally, the Attorney General properly and timely removed the case, seeking removal to the district court in which the state action was pending. Docket No. 1. Therefore, the resulting federal litigation is deemed a tort action brought against the United States and not defendant dentist.
Accordingly, defendant's motion to substitute the United States as defendant is granted.
C. Motion to Dismiss
"Under longstanding principles of sovereign immunity, relief may not be awarded against the United States unless it has waived its immunity." Davis v. United States, 430 F. Supp. 2d 67, 72 (D. Conn. 2006) (citing Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999)). "The FTCA constitutes a limited waiver by the United States of its sovereign immunity." Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) (internal citations omitted). The FTCA provides that
An action shall not be instituted . . . against the United States for money damages for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.28 U.S.C. § 2675(a). "This requirement is jurisdictional and cannot be waived." Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (citations omitted).
Moreover, this requirement applies to all actions, including those commenced in state court and removed to federal court. Id. (citing 28 U.S.C. § 2679). This requirement caused concern that plaintiffs filing actions in state court would be unfairly prejudiced by the jurisdictional prerequisites upon the action's removal to federal court. However, FTCA amendments
ensure that state court actions removed to federal court will still be considered timely if (1) the claim would have been timely had it been filed on the date that the underlying [state] civil action was commenced. and (2) the claim is presented to the relevant Federal administrative agency within sixty days after dismissal of the [state] civil action.Celestie 403 F.3d at 83 (citing 28 U.S.C. § 2679(d)(5)).
"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues. . . ." 28 U.S.C. § 2401(b). "Claims under the FTCA accrue either at the time of injury or when the plaintiff has, or with reasonable diligence should have, discovered the facts critical to his or her injury, whichever is earlier." Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) (citations omitted).
In this case, Crudup was allegedly injured on or about August 15, 2004 and received dental treatment sometime thereafter. Compl. at ¶ 5. Crudup commenced this case in state court on April 10, 2006, well before the two year statute of limitations expired. Compl. at ¶ 14. Thus, the claim is timely as it satisfies the first prong of the analysis. However, it is undisputed that Crudup failed to file a complaint with the appropriate federal agency. Bergeron Aff. (Docket No. 5, pt. 4) at ¶ 4. Because Crudup did not comply with the jurisdictional prerequisites of the FTCA, the claim against the United States has not satisfied the second prong of the amendment and the FTCA compels dismissal.
Therefore, defendant's motion on this ground is granted.
D. 42 U.S.C. § 1983 Claim
When, as here, a party seeks dismissal against a pro se litigant, a court must afford the non-movant special solicitude.See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). This includes liberally construing the litigant's submission, reading it "to raise the strongest arguments that [it] suggest[s]. . . ." Id. (citations and footnotes omitted). Liberally construing Crudup's complaint and motion for remand, there is also asserted a claim for deprivation of Crudup's Eighth Amendment rights under 42 U.S.C. § 1983 against defendant dentist.A prisoner advancing an Eighth Amendment claim for denial of medical care must allege and prove deliberate indifference to a serious medical need. Wilson v. Seiter, 501 U.S. 294, 297 (1991);Hathaway, 37 F.3d at 66. More than negligence is required "but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66. The test for a § 1983 claim is twofold. First, the prisoner must show that there was a sufficiently serious medical need. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Second, the prisoner must show that the prison official demonstrated deliberate indifference by having knowledge of the risk and failing to take measures to avoid the harm. Id. "[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Farmer v. Brennan, 511 U.S. 825, 844 (1994).
"`Because society does not expect that prisoners will have unqualified access to healthcare', a prisoner must first make [a] threshold showing of serious illness or injury" to state a cognizable claim. Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Because there is no distinct litmus test, a serious medical condition is determined by factors such as "(1) whether a reasonable doctor or patient would perceive the medical need in question as `important and worthy of comment or treatment,' (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and substantial pain." Brock v. Wright, 315 F.3d 158, 162-63 (2d Cir. 2003) (citing Chance, 143 F.3d at 702). The severity of the denial of care should also be judged within the context of the surrounding facts and circumstances of the case.Smith, 316 F.3d at 185.
Deliberate indifference requires the prisoner "to prove that the prison official knew of and disregarded the prisoner's serious medical needs." Chance, 143 F.3d at 702. Thus, prison officials must be "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104, (1976). "Mere disagreement over proper treatment does not create a constitutional claim" as long as the treatment was adequate. Id. at 703. Thus, "disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists . . . are not adequate grounds for a § 1983 claim." Magee v. Childs, No. 04-CV-1089 (GLS/RFT), 2006 WL 681223, at *4 (N.D.N.Y. Feb. 27, 2006). Furthermore, allegations of negligence or malpractice do not constitute deliberate indifference unless the malpractice involved culpable recklessness. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
In this case, Crudup appears to have asserted a serious medical need. See Chance, 143 F.3d at 702 (holding that a plaintiff suffered a serious medical need when "he suffered extreme pain, his teeth deteriorated, and he [became] unable to eat properly."). Like the plaintiff in Chance, crediting all Crudup's allegations as true, he has suffered pain, loss of a tooth, and loss of function in his jaw and mouth which constitute serious medical needs.
However, even if Crudup sufficiently asserts a serious medical condition, mere negligence by defendant dentist does not rise to the level of deliberate indifference unless there was culpable recklessness. Hathaway, 99 F.3d at 553. However, culpable recklessness is neither asserted nor indicated by Crudup's allegations. Thus, Crudup's Eighth Amendment claim would also fail.
III. Remand
Defendant dentist constitutes the sole basis for federal jurisdiction in this case. Therefore, if the district court adopts the recommendation herein that the complaint be dismissed as to defendant dentist, no basis exists for subject matter jurisdiction over the remaining claims and defenses and the case should then be remanded to state court.
IV. Conclusion
For the reasons stated above, it is hereby ORDERED that:
1. Defendant dentist's motion to substitute the United States as party-defendant for defendant dentist (Docket No. 5) is GRANTED; and
2. Crudup's motion for remand and to amend the complaint (Docket No. 20) is DENIED; and
IT IS RECOMMENDED that:
1. Defendant dentist's motion to dimiss the complaint (Docket No. 5) be granted and the complaint be dismissed in its entirety as to defendant dentist; and
2. The case be REMANDED to the New York State Supreme Court, Schenectady County, for all further proceedings.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
DECISION AND ORDER
On May 1, 2008, Judge David R. Homer issued a Report-Recommendation and Order. Judge Homer granted the defendant dentist's motion to substitute the United States as party-defendant for defendant dentist (Dkt. No. 5) and denied Crudup's motion for remand and to amend the complaint (Dkt. No. 20). Judge Homer recommended that the defendant dentist's motion to dismiss the complaint (Dkt. No. 5) be granted and the complaint be dismissed in its entirety as to defendant dentist. Judge Homer further recommended that the case be remanded to the New York State Supreme Court, Schenectady County, for all further proceedings. See Dkt. No. 30. Crudup's copy of the Report-Recommendation and Order was returned as undeliverable — attempted not known. See Dkt. No. 31. Accordingly, it considers sua sponte Crudup's noncompliance with this District's Local Rules by failing to notify the court of his current address and by not prosecuting his action.In relevant part, Local Rule ("L.R.") 10.1(b) provides: All . . . pro se litigants must immediately notify the court of any change of address. The notice of change of address is to be filed with the clerk of the court and served on all other parties to the action. The notice must identify each and every action for which the notice shall apply. . . . (emphasis in original).
In turn, L.R. 41.2(b) provides that the "[f]ailure to notify the Court of a change of address in accordance with L.R. 10.1(b) may result in the dismissal of any pending action." For the orderly disposition of cases, it is essential that litigants honor their continuing obligation to keep the court informed of address changes. Michaud v. Williams, 98cv1141, 1999 WL 33504430, at *1 (N.D.N.Y. Nov. 5, 1999) (citing Fenza v. Conklin, 177 F.R.D. 126 (N.D.N.Y. 1998) (Pooler, then D.J.). As Judge Pooler has observed:
It is neither feasible nor legally required that the clerks of the district courts undertake independently to maintain current addresses on all parties to pending actions. It is incumbent upon litigants to inform the clerk of address changes, for it is manifest that communications between the clerk and the parties of their counsel will be conducted principally by mail. In addition to keeping the clerk informed of any change of address, parties are obliged to make timely status inquiries. Address changes normally would be reflected by those inquiries if made in writing.Dansby v. Albany County Corr. Staff, 95cv1525, 1996 WL 172699, at *1 (N.D.N.Y. Ap. 10, 1996) (citations omitted)).
As a matter of course, courts in this district have dismissed actions when litigants have failed to abide by either the Local Rules or orders related to address changes, and have subsequently failed to prosecute their actions. See Williams v. Faulkner, 95cv741, 1998 WL 278288 (N.D.N.Y. May 20, 1998); Dansby, 1996 WL 172699, at *1; Fenza, 177 F.R.D. at 126; cf. Michaud, 1999 WL 33504430, at *1. Nonetheless, the court will afford Crudup an additional fourteen days to comply.
THEREFORE, IT IS ORDERED, that Crudup be granted FOURTEEN (14) days from the date of the filing of this order to submit his current address to the court and file any objections to the Report-Recommendation, if he so chooses, and it is further
ORDERED, that if Crudup fails to comply, the court will consider the Report-Recommendation as unopposed.