Rogers v. USA, et a l . CV-99-497-M 06/21/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Douglas Rogers, Plaintiff
v. Civil No. 99-497-M (N.H. 98-373T (R.I . Opinion No. 2000 DNH 141 The United States of America, Cornell Corrections, LP, Cornell Corrections, Inc. City of Central Falls, Rhode Island, Central Falls Detention Facility Corp., Victor Liburdi, William Chang, M.D., and Doe Defendants 1 through 7, Defendants
O R D E R
On March 28, 1998, plaintiff, a pretrial detainee awaiting
trial on federal charges, slipped and fell on the floor of his
cell. He brings this action seeking damages for injuries he
claims to have sustained in that accident and for the sub
standard medical care he claims to have subsequently received.
Upon the recusal of the judges sitting in the United States
District Court for the District of Rhode Island, this court was
designated to hear the matter. Plaintiff has sued various private and state actors (both
named and unknown ) , as well as the federal government, saying
that each played a role in causing his injuries. His complaint
appears to set forth three federal claims. Against the United
States, he brings a claim under the Federal Tort Claims Act, 28
U.S.C. § 2671, et seq. (count four). Against the state actors,
his complaint sets forth claims under 42 U.S.C. § 1983, alleging
that they were deliberately indifferent to his serious medical
needs (count five). In count six, he seeks damages under the
Americans with Disabilities Act, 42 U.S.C. § 12132, et seq.,
saying that defendants unlawfully discriminated and/or retaliated
against him.
Finally, his complaint sets forth three state law claims
(counts one through three), each of which is essentially a
negligence claim and as to which he invokes the court's
supplemental jurisdiction. See 28 U.S.C. § 1367. Pending before
the court are motions to dismiss filed by the United States
(document no. 14) and Cornell Corrections, L.P., Cornell
2 Corrections, Inc., Central Falls Detention Facility Corporation,
and Victor Liburdi (document no. 7).
Background
Viewed in the light most favorable to plaintiff, the
material facts appear as follows. On March 28, 1998, plaintiff
was a federal pretrial detainee at the Wyatt Detention Facility,
in Central Falls, Rhode Island. He claims that the Wyatt
Detention Facility is owned by the City of Central Falls and/or
Central Falls Detention Facility Corporation ("CFDFC") and says
that CFDFC is "an instrumentality and agency of the City of
Central Falls." Amended complaint at para. 10. He also alleges
that the United States Marshals Service has a contract with CFDFC
for the housing of federal prisoners at Wyatt. I d ., at para. 5.
According to plaintiff, that contractual relationship (and the
government's alleged breach of certain duties assumed under that
contract) gives rise to his claim against the federal government.
3 Plaintiff says that Cornell Corrections, L.P., and Cornell
Corrections, Inc. (collectively, the "Cornell Defendants") are
for-profit entities that have contracts with the City and/or
CFDFC for the operation and management of Wyatt. I d ., at para.
6. Defendant Liburdi was the Director of Wyatt at all times
material to plaintiff's complaint. Defendant Chang is a licensed
physician and the medical director of Wyatt. I d ., at paras. 7-8.
Finally, plaintiff says that Doe Defendants One through Seven are
(or were at all times relevant to this proceeding) employees of
the Cornell Defendants. I d ., at para. 9.
Plaintiff says that after the floor of his cell had been
mopped (apparently by him), and while it was still wet. Doe
Defendant One ordered him back into his cell. Plaintiff claims
to have protested, noting that the floor was still slippery and
saying he was afraid that he might fall (due, at least in part,
to a pre-existing medical condition, which required that he walk
with the assistance of a cane). Fearing punishment if he refused
to comply with the order, plaintiff acquiesced and, upon entering
4 the cell, slipped, fell to the ground, struck his head, and may
have lost consciousness. Medical assistance was summoned.
Plaintiff says that the care he subsequently received was sub
standard and complains that the responding staff members
(including Doe Defendant Two) negligently manipulated his head,
neck, and back, thereby exacerbating his injuries. He was then
transported to the hospital for treatment.
The gist of plaintiff's complaint is that he should not have
been ordered back into his cell while the floor was still wet and
that he received negligent medical treatment from staff members
of Wyatt, all in violation of his constitutionally protected
rights and duties imposed upon defendants by Rhode Island common
law. With regard to his FTCA claim against the United States,
plaintiff says the government failed to adequately supervise
and/or monitor activities at Wyatt. According to plaintiff, that
failure led to improper staffing of the facility, sub-standard
conditions, and poorly trained staff which, in turn, led to his
inj uries.
5 In support of his claim under the ADA, plaintiff claims that
Chang and certain unidentified employees at the Wyatt Detention
Facility retaliated against him by withholding medicine and
medical treatment in response to his having filed a complaint
against Chang with state medical authorities.
Discussion
I. The United States' Motion to Dismiss.
By prior order, the court granted the government's motion to
dismiss plaintiff's claim against John Leyden, in his official
capacity as United States Marshall for the District of Rhode
Island. In his place, the United States of America was
substituted as defendant. The government now moves to dismiss
count four of plaintiff's complaint (the sole count naming the
government as a defendant). In support of that motion, the
government asserts that plaintiff failed to exhaust his
administrative remedies. Consequently, says the government, the
court lacks subject matter jurisdiction over plaintiff's FTCA
claim. The court agrees.
6 In June of 1998, plaintiff filed an administrative claim
with the United States Marshals Service, seeking compensation for
injuries he claims to have sustained when he fell. Approximately
two months later, he amended his complaint in this proceeding to
add former defendant Leyden and the FTCA claim. Importantly, the
amended complaint does not allege that the Marshals Service
denied his administrative claim prior to the date on which he
filed his amended complaint.
The United States Supreme Court has made it very clear that
a plaintiff cannot pursue an action under the FTCA unless he or
she first exhausts all available administrative remedies. See
McNeil v. United States, 508 U.S. 106 (1993) .
Free access — add to your briefcase to read the full text and ask questions with AI
Rogers v. USA, et a l . CV-99-497-M 06/21/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Douglas Rogers, Plaintiff
v. Civil No. 99-497-M (N.H. 98-373T (R.I . Opinion No. 2000 DNH 141 The United States of America, Cornell Corrections, LP, Cornell Corrections, Inc. City of Central Falls, Rhode Island, Central Falls Detention Facility Corp., Victor Liburdi, William Chang, M.D., and Doe Defendants 1 through 7, Defendants
O R D E R
On March 28, 1998, plaintiff, a pretrial detainee awaiting
trial on federal charges, slipped and fell on the floor of his
cell. He brings this action seeking damages for injuries he
claims to have sustained in that accident and for the sub
standard medical care he claims to have subsequently received.
Upon the recusal of the judges sitting in the United States
District Court for the District of Rhode Island, this court was
designated to hear the matter. Plaintiff has sued various private and state actors (both
named and unknown ) , as well as the federal government, saying
that each played a role in causing his injuries. His complaint
appears to set forth three federal claims. Against the United
States, he brings a claim under the Federal Tort Claims Act, 28
U.S.C. § 2671, et seq. (count four). Against the state actors,
his complaint sets forth claims under 42 U.S.C. § 1983, alleging
that they were deliberately indifferent to his serious medical
needs (count five). In count six, he seeks damages under the
Americans with Disabilities Act, 42 U.S.C. § 12132, et seq.,
saying that defendants unlawfully discriminated and/or retaliated
against him.
Finally, his complaint sets forth three state law claims
(counts one through three), each of which is essentially a
negligence claim and as to which he invokes the court's
supplemental jurisdiction. See 28 U.S.C. § 1367. Pending before
the court are motions to dismiss filed by the United States
(document no. 14) and Cornell Corrections, L.P., Cornell
2 Corrections, Inc., Central Falls Detention Facility Corporation,
and Victor Liburdi (document no. 7).
Background
Viewed in the light most favorable to plaintiff, the
material facts appear as follows. On March 28, 1998, plaintiff
was a federal pretrial detainee at the Wyatt Detention Facility,
in Central Falls, Rhode Island. He claims that the Wyatt
Detention Facility is owned by the City of Central Falls and/or
Central Falls Detention Facility Corporation ("CFDFC") and says
that CFDFC is "an instrumentality and agency of the City of
Central Falls." Amended complaint at para. 10. He also alleges
that the United States Marshals Service has a contract with CFDFC
for the housing of federal prisoners at Wyatt. I d ., at para. 5.
According to plaintiff, that contractual relationship (and the
government's alleged breach of certain duties assumed under that
contract) gives rise to his claim against the federal government.
3 Plaintiff says that Cornell Corrections, L.P., and Cornell
Corrections, Inc. (collectively, the "Cornell Defendants") are
for-profit entities that have contracts with the City and/or
CFDFC for the operation and management of Wyatt. I d ., at para.
6. Defendant Liburdi was the Director of Wyatt at all times
material to plaintiff's complaint. Defendant Chang is a licensed
physician and the medical director of Wyatt. I d ., at paras. 7-8.
Finally, plaintiff says that Doe Defendants One through Seven are
(or were at all times relevant to this proceeding) employees of
the Cornell Defendants. I d ., at para. 9.
Plaintiff says that after the floor of his cell had been
mopped (apparently by him), and while it was still wet. Doe
Defendant One ordered him back into his cell. Plaintiff claims
to have protested, noting that the floor was still slippery and
saying he was afraid that he might fall (due, at least in part,
to a pre-existing medical condition, which required that he walk
with the assistance of a cane). Fearing punishment if he refused
to comply with the order, plaintiff acquiesced and, upon entering
4 the cell, slipped, fell to the ground, struck his head, and may
have lost consciousness. Medical assistance was summoned.
Plaintiff says that the care he subsequently received was sub
standard and complains that the responding staff members
(including Doe Defendant Two) negligently manipulated his head,
neck, and back, thereby exacerbating his injuries. He was then
transported to the hospital for treatment.
The gist of plaintiff's complaint is that he should not have
been ordered back into his cell while the floor was still wet and
that he received negligent medical treatment from staff members
of Wyatt, all in violation of his constitutionally protected
rights and duties imposed upon defendants by Rhode Island common
law. With regard to his FTCA claim against the United States,
plaintiff says the government failed to adequately supervise
and/or monitor activities at Wyatt. According to plaintiff, that
failure led to improper staffing of the facility, sub-standard
conditions, and poorly trained staff which, in turn, led to his
inj uries.
5 In support of his claim under the ADA, plaintiff claims that
Chang and certain unidentified employees at the Wyatt Detention
Facility retaliated against him by withholding medicine and
medical treatment in response to his having filed a complaint
against Chang with state medical authorities.
Discussion
I. The United States' Motion to Dismiss.
By prior order, the court granted the government's motion to
dismiss plaintiff's claim against John Leyden, in his official
capacity as United States Marshall for the District of Rhode
Island. In his place, the United States of America was
substituted as defendant. The government now moves to dismiss
count four of plaintiff's complaint (the sole count naming the
government as a defendant). In support of that motion, the
government asserts that plaintiff failed to exhaust his
administrative remedies. Consequently, says the government, the
court lacks subject matter jurisdiction over plaintiff's FTCA
claim. The court agrees.
6 In June of 1998, plaintiff filed an administrative claim
with the United States Marshals Service, seeking compensation for
injuries he claims to have sustained when he fell. Approximately
two months later, he amended his complaint in this proceeding to
add former defendant Leyden and the FTCA claim. Importantly, the
amended complaint does not allege that the Marshals Service
denied his administrative claim prior to the date on which he
filed his amended complaint.
The United States Supreme Court has made it very clear that
a plaintiff cannot pursue an action under the FTCA unless he or
she first exhausts all available administrative remedies. See
McNeil v. United States, 508 U.S. 106 (1993) . To do so, a
plaintiff must present a written claim to the appropriate federal
agency, which must then either actually or constructively deny
the claim. See 28 U.S.C. §§ 2401, 2671, 2675(a). Section
2675(a) provides that a plaintiff may treat a claim as
constructively denied if the agency fails to finally dispose of
the claim within six months after it was filed. Here, however,
7 plaintiff's administrative claim was neither denied nor did the
six month period lapse before he filed his FTCA claim against the
government.
Should a plaintiff file suit under the FTCA prior to the
agency's actual or constructive denial of his or her claim, it is
subject to dismissal for lack of subject matter jurisdiction.
This is true even if the agency subsequently denies the
administrative claim, after the plaintiff files his or her
federal suit. See McNeil, 508 U.S. at 111-12. See also United
States v. Burzvnski Cancer Research Institute, 819 F.2d 1301,
1306 (5th Cir. 1987); Salvador v. Meese, 641 F. Supp. 1409, 1418
(D.Ma. 1986). Accordingly, plaintiff's claims against the United
States were filed prematurely and must be dismissed for lack of
subject matter jurisdiction.
II. Cornell Corrections, L.P., Cornell Corrections, Inc., Central Falls Detention Facility Corporation, and Victor Liburdi's Motion to Dismiss.
A. Count Five - 42 U.S.C. § 1983. In count five of his complaint, plaintiff appears to claim
that he received inadequate medical care following his accident.
When he complained about the perceived deficiencies in that care
(to individuals at Wyatt and to the Rhode Island Medical
Licensing Board), he says defendant Chang retaliated by canceling
his scheduled surgery and stopped providing him with prescribed
pain medication. Plaintiff summarizes his section 1983 claim as
follows:
The retaliation and adverse treatment of Plaintiff by Defendant Chang and others at the Wyatt Detention Facility (including the withholding of medication and medical care . . .), as a consequence of Plaintiff's efforts to complain about Defendant Chang . . . violated rights guaranteed to Plaintiff by [the United States Constitution].
The intentional and retaliatory denial of medical care to Plaintiff by Defendant Chang and others violates the right of Plaintiff, a pretrial detainee, to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the Constitution of the United States.
Amended complaint, at paras. 53-54.1
1 Parenthetically, the court notes that Rogers alleges he was a pretrial detainee when he suffered the injuries identified
9 It is well established that a municipal entity cannot be
held liable under 42 U.S.C. § 1983 on a theory of respondeat
superior or vicarious liability; the municipality itself must
proximately cause the constitutional injury, through the
promulgation (or tacit approval) of a policy or custom. See City
of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). See
generally Monell v. New York City Dept, of Social Services, 436
U.S. 658 (1978). And, to state a viable claim under § 1983, a
plaintiff must allege in substance that the challenged municipal
custom or policy was the "moving force" behind the constitutional
injuries at issue. See Board of County Commissioners of Bryan
County v. Brown, 520 U.S. 397, 404 (1997) .
Even liberally construing the allegations set forth in
plaintiff's amended complaint, the court cannot reasonably
in his amended complaint. Accordingly, the constitutional obligations owed to him by the various defendants flow from the provisions of the Fourteenth, rather than the Eighth Amendment. See, e.g., City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)).
10 conclude that he has alleged that the wrongful conduct he
ascribes to Chang and others was the product of any municipal
custom or policy. Instead, his complaint very plainly alleges
that the wrongful treatment to which he was subjected was the
product of Chang's alleged personal efforts to retaliate against
him for having complained about the medical care that he had
received. Thus, the sole basis upon which he attempts to impose
liability on the Cornell Defendants, CFDFC, and Liburdi is
respondeat superior. Because it is well established that such a
claim fails to state a viable cause of action under § 1983, count
five of plaintiff's amended complaint must be dismissed as to
those defendants.
B. Count Six - The Americans with Disabilities A c t .
In count six of his amended complaint, plaintiff advances
the following claim:
The retaliation and adverse treatment of Plaintiff by Defendant Chang and others at the Wyatt Detention Facility (including the withholding of medication and medical care, provision of false information, and other adverse treatment for which Plaintiff has been singled
11 out) as a consequence of Plaintiff's efforts to complain about Defendant Chang, the denial of medical care and of Plaintiff's seeking redress from the courts and administrative agencies violated rights guaranteed to Plaintiff by 42 U.S.C. § 12132, et seq., the Americans with Disabilities Act.
Amended complaint, at para. 61 (emphasis supplied). In short,
plaintiff claims that Chang and certain other defendants
(precisely who is unclear) unlawfully retaliated against him, in
violation of the ADA, when he complained about the medical
treatment he was receiving.
Plainly, plaintiff's allegations fail to state a viable
claim under the ADA. Title II of the ADA, 42 U.S.C. § 12131, et
seq. (upon which plaintiff bases his claim), prohibits public
entities from discriminating against individuals with
disabilities and provides that:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits or the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
12 42 U.S.C. § 12132. To state a cognizable claim under the ADA, a
plaintiff must allege: (1) he suffers from a disability; (2) he
was denied a public benefit; and (3) the denial of that benefit
was because of his disability. See generally Tompkins v. United
Healthcare of New England, Inc., 203 F.3d 90 (1st Cir. 2000) .
See also Weinreich v. Los Angeles County, 114 F.3d 976, 978 (9th
Cir. 1997) ("To prove a public program or service violates Title
II of the ADA, a plaintiff must show: (1) he is a 'qualified
individual with a disability'; (2) he was either excluded from
participation in or denied the benefits of a public entity's
services, programs or activities, or was otherwise discriminated
against by the public entity; and (3) such exclusion, denial of
benefits, or discrimination was by reason of his disability.")
(emphasis in original). Even if the court were to assume that
plaintiff is a "qualified individual with a disability," his
amended complaint fails to allege that he suffered some form of
prohibited discrimination as a result of that alleged disability.
To the contrary, plaintiff clearly asserts that defendants
discriminated against him because he complained about the medical
13 care he was receiving. Such a claim is not cognizable under §
12132.
The same conclusion is reached if plaintiff's claim is
analyzed under section 12203, which provides:
Retaliation. No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
42 U.S.C. § 12203. Although plaintiff claims that defendants
"retaliated" against him, he does not allege that such conduct
was motivated by his having engaged in conduct protected by the
ADA. See, e.g., Soileau v. Guilford of Maine, Inc., 105 F.3d 12,
16 (1st Cir. 1997) ("[T]o establish a claim of retaliation
[plaintiff] must show that he was engaged in protected conduct,
that he [suffered adverse consequences], and that there was a
causal connection between [those consequences] and the
conduct.").
14 Consequently, count six of plaintiff's amended complaint
fails to state a viable cause of action under the ADA against the
Cornell Defendants, CFDFC, or Liburdi.
C. Plaintiff's State Law Claims.
Counts one through three of plaintiff's amended complaint
set forth state common law claims for negligence. And, while
plaintiff says that count four is actually brought against the
government under the FTCA, see plaintiff's memorandum in
opposition to motion to dismiss, at 1 (R.I. document no. 30), it
also arguably asserts a state law claim for breach of contract
(in the form of an intended third-party beneficiary claim)
against various other defendants. See Amended complaint, at
para. 34. The Cornell Defendants, CFDFC, and Liburdi move the
court to decline to exercise supplemental jurisdiction over all
state law claims set forth in plaintiff's complaint that might
conceivably be viewed as being against them. See 28 U.S.C. §
1367 .
15 Section 1367 of Title 28 provides that the court may decline
to exercise supplemental jurisdiction over a plaintiff's state
law claim when:
[1) the claim raises a novel or complex issue of State law,
\2 ) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
[3) the district court has dismissed all claims over which it has original jurisdiction, or
[4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). To assist district courts, the Court of
Appeals has suggested that they also consider the following
additional factors when determining whether to exercise
supplemental jurisdiction over state law claims: (1) the
interests of fairness; (2) judicial economy; (3) convenience; and
(4) comity. See Camelio v. American Federation, 137 F.3d 666,
672 (1st Cir. 1998). With regard to principles of comity, the
Supreme Court has observed:
16 Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not unsubstantial in a jurisdictional sense, the state claims should be dismissed as well.
United Mine Workers of America v. Gibbs, 383 U.S. 715, 726
(19 6 6) .
Most federal courts addressing this issue appear to agree
that if a plaintiff's federal claims have been dismissed
(particularly if done early in the proceedings) , the district
court should ordinarily decline to exercise supplemental
jurisdiction over his or her state law claims.
After a 12(b) (6) dismissal, there is a strong presumption in favor of dismissing supplemental claims. There are two reasons for this presumption. First, a 12(b)(6) dismissal usually comes early in the proceedings, when the court has not yet invested a great deal of time into resolution of the state claims. Second, a 12(b) (6) dismissal implies that the substance of the federal claims was somehow lacking, even if the claims were sufficient to survive a motion for dismissal under 12 (b) (1) .
17 Musson Theatrical, Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1255
(6th Cir. 1996). See also Camelio, 137 F.3d at 672
("Accordingly, the balance of competing factors ordinarily will
weigh strongly in favor of declining jurisdiction over state law
claims where the foundational federal claims have been dismissed
at an early stage in the litigation.").
In this case, several factors counsel against the exercise
of supplemental jurisdiction over plaintiff's state law claims
against these defendants. First and perhaps most notably,
plaintiff's foundational federal claims against these defendants
have been dismissed at an early stage of this litigation. Next,
his state law claims raise potentially complex issues of state
law, including the ability of these arguably quasi-municipal
defendants to avail themselves of statutory immunity afforded by
Rhode Island law to municipal entities.
Additionally, plaintiff's state and federal claims against
these defendants do not appear to arise out of the same common
18 nucleus of operative facts. His state law claims appear to
relate primarily to his slip and fall (e.g., design of the
facility, training of corrections officers, etc.). His federal
claims, however, appear to relate to the retaliation he says he
suffered after complaining about the care he received from Chang
and others. Finally, although the remaining defendants have not
yet filed dispositive motions, it is likely that they will be
forthcoming. And, based upon the present record, it is possible
that plaintiff's federal claims against those defendants will be
resolved prior to trial, leaving plaintiff with no federal claims
against any defendants.
In light of the foregoing, the court, in the exercise of its
discretion, declines to exercise supplemental jurisdiction over
plaintiff's state law claims against the Cornell Defendants,
CFDFC, and Liburdi.
Conclusion
19 The motion to dismiss submitted by Cornell Corrections,
L.P., Cornell Corrections, Inc., Central Falls Detention Facility
Corporation, and Victor Liburdi (document no. 7) as to all of
plaintiff's federal claims against those defendants is granted.
The court also declines to exercise supplemental jurisdiction
over plaintiff's state law claims against those defendants, which
are dismissed without prejudice to plaintiff's asserting them in
state court.
Similarly, the motion to dismiss submitted by the United
States of America (document no. 14) is granted.
SO ORDERED.
Steven J. McAuliffe United States District Judge
June 21, 2000
cc: Douglas K. Rogers Jay M. Elias, Esq. Dennis T. Grieco, II, Esq. Clerk, USDC-Rhode Island Anthony C. DiGioia, Esq.