Opinion
CIVIL 3:22-cv-599
01-22-2024
OMAR S. FOLK, Plaintiff v. UNITED STATES OF AMERICA, et al., Defendants
ORDER
ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE
AND NOW, this 22 day of January, 2024, upon consideration of Defendants' motion (Doc. 93) to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56, and the parties' respective briefs in support of and in opposition to said motion, and for the reasons set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendants' Rule 12(b)(1) motion (Doc. 93) is GRANTED.
a. The Bivens official capacity claim against the individual Defendants is DISMISSED for lack of jurisdiction.
b. The FTCA claim against the individual Defendants is DISMISSED for lack of jurisdiction.
2. Defendants' Rule 12(b)(6) motion (Doc. 93) is GRANTED in part and DENIED in part.
a. The Public Health Service Act Precludes suit against Defendant Dr. Buschman and the claims against him are DISMISSED.
b. The motion to dismiss the Bivens claim as a “new context” is DENIED.
3. Defendants' Rule 56 motion (Doc. 93) is GRANTED.
a. Summary judgment on the Bivens claim is GRANTED.
b. The Clerk of Court is directed to ENTER judgment in favor of Defendants Stahl, Buschman, and Cullen, and against Plaintiff on the Bivens claim.
c. Summary judgment on the FTCA claim is GRANTED.
d. The Clerk of Court is directed to ENTER judgment in favor of the United States, and against Plaintiff on the FTCA claim.
4. The Clerk of Court is further directed to CLOSE this case.
5. Any appeal from this Order is DEEMED frivolous and not taken in good faith.