Opinion
No. 05 CIV. 6998 (DLC).
October 27, 2006
MEMORANDUM OPINION ORDER
On October 10, 2006, an Opinion and Order (the "Opinion") was issued granting in part and denying in part defendants' motion to dismiss the amended complaint in the above-captioned action. On October 25, defendants Jayne Vander Hey-Wright ("Vander Hey-Wright") and Frederick Menifee ("Menifee") submitted a motion for reconsideration requesting that the remaining claim against them — which alleges violations of plaintiff's Eighth Amendment rights — be dismissed. They argue that (1) as a commissioned officer of the United States Public Health Service, Vander Hey-Wright is immune from suit under the Public Health Service Act ("PHSA"), 42 U.S.C. § 233, and (2) plaintiff has stipulated to the fact that he is not pursuing any claims against Menifee.
Local Civil Rule 6.3 reads in pertinent part as follows:
A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion. There shall be served with the notice a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.
S.D.N.Y. Local Civil Rule 6.3. In moving for reconsideration, the moving party "must demonstrate that the court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000) (citation omitted). Here, Menifee and Vander Hey-Wright have identified two issues raised in the briefs on the original motion that the Court did not address in the Opinion. Therefore, the motion for reconsideration is granted, and this Memorandum Opinion will consider the merits of their arguments.
The analysis here is based solely on the papers submitted on the underlying motion, and to the extent any new facts or law are included in the brief supporting the motion for reconsideration, they are not considered here. Therefore, plaintiff has already been afforded a complete opportunity to respond to defendants' arguments.
It is uncontested that Vander Hey-Wright is a commissioned officer with the United States Public Health Service and served as the Health Services Administrator at the Federal Correctional Institution where plaintiff was housed during the period at issue. The PHSA provides that
The remedy against the United States provided by [the Federal Tort Claims Act] . . . for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding.42 U.S.C. § 233(a). In other words, the PHSA "makes the Federal Tort Claims Act the exclusive remedy for specified actions against members of the Public Health Service" while they are acting within the scope of their employment. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005) (citation omitted). Barbaro argues that Vander Hey-Wright was acting outside the scope of her employment when she denied him the "community standard" of health care in violation of his Eighth Amendment rights. The Second Circuit, however, has squarely rejected Barbaro's position, holding that PHSA immunity can extend to alleged constitutional violations premised on the denial of adequate medical treatment. Cuoco v. Moritsugu, 222 F.3d 99, 107-08 (2d Cir. 2000). The remaining claim against Vander Hey-Wright will therefore be dismissed.
Although Menifee is not named as a defendant in the caption of the amended complaint, plaintiff refers to Menifee as a defendant throughout the document. As a result, defendants brought their motion to dismiss the action on behalf of Menifee, and the Opinion treated Menifee as a defendant in the case. See Barbaro v. United States ex rel. Federal Bureau of Prisons, 05 Civ. 6998 (DLC), 2006 WL 2882975, at *5 n. 10 (S.D.N.Y. Oct. 10, 2006). The Opinion overlooked the fact that plaintiff stated in his opposition papers that the "Court should not Review [defendants'] naming of Prison Official Warden Menifee, who isnot a Named Defendant in the Instant Action." (Capitalization and emphasis in original.) The action will therefore be dismissed in its entirety as to Menifee.
Conclusion
For the foregoing reasons, the motion for reconsideration is granted, and all claims against Vander Hey-Wright and Menifee are dismissed.
SO ORDERED.