James v. U.S.

Full title: CHARLES JAMES, Plaintiff, -against- UNITED STATES OF AMERICA, Defendant

Court: United States District Court, S.D. New York

Date published: Sep 17, 2003

99 Civ. 4238 (BSJ)(HBP) (S.D.N.Y. Sep. 17, 2003)

Opinion

99 Civ. 4238 (BSJ)(HBP)

September 17, 2003

Mr. Charles James, Yonkers, New York

Sarah E. Light, Esq., Assistant United States Attorney, Southern District of New York, New York, New York

MEMORANDUM OPINION AND ORDER

HENRY PITMAN, Magistrate Judge

I. Introduction

This is a medical malpractice action arising under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671-80, based on of plaintiff's allegedly involuntary hospitalization at the Veterans Administration Bronx Medical Center ("VABMC") in January 1995. Plaintiff has filed two motions (Docket Items 53 and 55) in which he seeks (1) to amend his notice of claim and complaint to include a claim for a constitutional violation and to assert claims for physical injuries not previously alleged, and (2) to compel production of certain additional documents.¹

1 According to the Court's Docket Sheet, plaintiff filed four documents in connection with these motions: (1) notice of motion to amend the complaint (Docket Item 53); (2) a memorandum of law in support of the motion to amend (Docket Item 54); (3) a notice of motion for an Order pursuant to Fed.R.Civ.P. 37 (Docket Item 55), and (4) a memorandum of law in support of the motion for an Order pursuant to Fed.R.Civ.P. 37 (Docket Item 56). Because defendant's opposition to the pending motions referred to additional documents and in light of plaintiff's pro se status, my staff contacted defendant's counsel to determine if plaintiff had served any other papers on defendant. This inquiry disclosed that plaintiff had served papers on defendant that had not been filed; these documents included (1) an affidavit in support of motion to amend complaint and (2) a document entitled "Statement of Facts Continuum from Statements of Facts Previously Filed with the Court (with Exhibits 6 A-E)." Counsel for defendant has graciously provided me with copies of these additional submissions from plaintiff, and I have considered them in connection with the pending motions.

For the reasons set forth below, plaintiff's motions are denied in all respects.

II. Facts

A. Motion to Amend

As noted above, this action arises out of plaintiff's involuntary admission to the VABMC in January 1995. According to plaintiff, on January 10, 1995 he was released from St. John's Hospital where he had been treated for septicemia.² After his release, plaintiff went to VABMC because he understood that, due to his status as a veteran, he would be able to fill a prescription for antibiotics without charge.

2 Septicemia is a "systemic disease associated with the presence and persistence of pathogenic microorganisms or their toxins in the blood." Borland's Illustrated Medical Dictionary

The parties dispute what occurred at VABMC. Plaintiff alleges that his conduct at VABMC was appropriate in every respect, that he was courteous and coherent and that he did not state to any staff members that he was contemplating suicide. The medical records produced by defendant, on the other hand, indicate that plaintiff was interviewed by VABMC personnel on January 10, stated that he had planned to kill himself within two weeks and claimed that no one could dissuade him from his plan.

Whatever the nature of plaintiff's interview with the staff, there appears to be no dispute that plaintiff was involuntarily admitted to VABMC on January 10, 1995, placed in four-point restraints and involuntarily given Haldol (an anti-psychotic), Ativan (a sleeping medication), and Cogentin (an anti-cholinergic, i.e., a medication that blocks the passage of impulses through the parasympathetic nerves). Among other things, plaintiff claims that while he was so restrained, he was not permitted to use the toilet and was forced to defecate and urinate in his clothes.

Despite defendant's contention that plaintiff was so agitated and suicidal on January 10 that he had to be hospitalized against his will, placed in four-point restraints and given anti-psychotic drugs, there also appears to be no dispute that plaintiff was discharged from VABMC the following day. Apart from the single administration of drugs, it does not appear that plaintiff received any treatment whatsoever for his alleged suicidal ideation. The documents submitted in connection with the present motion do not explain this apparent inconsistency.

The complaint currently before the court, which was drafted by counsel,³ alleges a single claim for medical malpractice:

8. Defendant, its agents, servants and/or employees at the Department of Veteran Affairs, Bronx Medical Center, was negligent, careless, reckless, unskilled and deviated from accepted standards of medical care in connection with the care and treatment rendered to Plaintiff CHARLES JAMES in failing to act in accordance with accepted standards of medical practice, in deviating from accepted standards of medical practice, in failing to properly evaluate and treat his condition, in negligently, carelessly and recklessly managing his medical care and in failing and neglecting to exercise that degree of care or caution, prudence, skill [,] ability, professional knowledge and training generally possessed by physicians and medical providers in the community.

9. As a result of the foregoing, CHARLES JAMES has suffered severe and permanent personal injuries, has experienced pain, suffering, emotional and psychic trauma, mental anguish, loss of enjoyment of life, has incurred otherwise unnecessary expenses and has suffered permanent injury.

10. The aforesaid injuries were caused wholly and solely by the carelessness, recklessness, negligence and malpractice of the Defendant herein without any negligence or want of care on the part of [CHARLES JAMES] contributing thereto.

3 Although plaintiff is now proceeding pro se, he was represented by counsel from the commencement of this action in June, 1999 through April, 2002.

(Plaintiff's Complaint ¶¶ 8-10).

In his current motion, plaintiff apparently seeks to amend both his administrative claim and his complaint to include an allegation that his constitutional rights were violated and that he suffered physical injuries and damages that were not previously asserted.⁴ Specifically, plaintiff seeks to amend his notice of claim to add the underlined language to his statement of the basis for his claim:

4 Plaintiff's motion papers do not expressly state that plaintiff is seeking to amend his notice of claim; his papers do, however, contain an amended notice of claim, and, given the fact that this action is brought under the Federal Tort Claims Act which prohibits the filing of an action against the United States "unless the claimant shall have first presented the claim to the appropriate Federal Agency . . .," 28 U.S.C. § 2675 (a), an amended notice of claim is an essential condition precedent to an amended complaint that adds new theories of recovery and asserts new types of injuries. See Portillo v. United States, 816 F. Supp. 444, 446 (W.D. Tex. 1993), aff'd without opinion, 29 F.3d 624 (5th Cir. 1994); see also McNeil v. United States, 508 U.S. 106, 113 (1993). Accordingly, I shall construe plaintiff's papers, as does defendant, as including an application to file an amended notice of claim.

On January 10, 1995 Veterans Administration Hospital Bronx New York to fill prescription for medication [sic]. Mr. James was forcibly restrained without cause during which he suffered torn meniscus of left knee. Mr. James was involuntarily confined, injected with three different psychotropic drugs against his protest. Mr. James was involuntarily confined to the psychiatric ward without cause unlawfully for approximate [ly] 24 hours during which time he was maint[ained] in restraint[s]. Mr. James was subsequently released and continues to treat with the Bronx VA Hospital for the knee injury [for] which surgery has been recommended.

Plaintiff's proposed amended notice of claim also adds the language underlined below to his statement of injuries:

Improper forcible restraint and imprisonment, embarrassment, public humiliation, anxiety and emotional distress, torn m[i]niscus of the left knee, collateral damage to right knee, torn medial meniscus causing chronic and debilitating pain, retinal damage RL eye, dream disturbances, lost wages.

Consistent with the foregoing, plaintiff seeks to amend paragraph 10 of his complaint to add the following language:

The defendant United States through its agent clinicians and staff of the VA, VHA, Bronx Veterans Administration Medical Center, a person as Defined by law, acting under the color of the laws of the state of New York and the United States of America-committed with gross malice, reckless punitive aggression, willful negligence, intentionally, permanently harmed, and deliberately endangered Charles James, January 10, 1995. Knowingly endangered the life of Plaintiff with punishment by violent actions without causation and depraved indifference to Plaintiff [']s health, and life. Defendant violated Plaintiff [']s constitutional, civil, natural, and other rights guaranteed by such laws as are appropriate that is ordinarily expected of Defendant, Bronx Veterans Affairs Medical Center, a health care facility controlled by the Department of Veterans Health Administration which is located at 130 Kings Bridge Road, Bronx, New York, with malice aforethought.

B. Motion to Compel

In addition, to seeking to amend his notice of claim and complaint, plaintiff seeks to compel production of twenty (20) categories of documents (Plaintiff's Motion to Compel Inspection/Production at 7-12). Plaintiff does not indicate when, if ever, he served a written request for these documents. Plaintiff's motion does not indicate what response, if any, defendant made concerning the documents. Plaintiff's motion does not claim that plaintiff attempted to resolve the dispute without the intervention of the Court, as required by Fed.R.Civ.P. 37(a)(2)(A)(B).

III. Analysis

A. Motion to Amend

The standards applicable to a motion to amend a pleading are well settled and require only brief review.

Leave to amend a pleading should be freely granted when justice so requires. Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); Dluhos v. Floating Abandoned Vessel, Known as "New York". 162 F.3d 63, 69 (2d Cir. 1998); Gumer v. Shearson, Hammill Co., 516 F.2d 283, 287 (2d Cir. 1974). "Nonetheless, the Court may deny leave if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced [sic], or (4) would be futile."Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303 (S.D.N.Y. 1996), aff'd, 116 F.3d 465 (2d Cir. 1997). Accord American Home Assur. Co. v. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184, 187-88 (S.D.N.Y. 1997). The Court of Appeals has repeatedly noted that the trial court has "broad" discretion in ruling on a motion to amend.Local 802, Associated Musicians v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998); Krumme v. Westpoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998). See generally Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000), cert. denied, 532 U.S. 923 (2001).

A proposed amendment is futile when it fails to state a claim.Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("Although Fed.R.Civ.P. 15(a) provides that: leave to amend should be given freely when justice so requires, where, as here, there is no merit in the proposed amendments, leave to amend should be denied."); Mina Inv. Holdings Ltd. v. Lefkowitz, 184 F.R.D. 245, 257 (S.D.N.Y. 1999); Parker v. Sony Pictures Entm't. Inc., 19 F. Supp.2d 141, 156 (S.D.N.Y. 1998), aff'd in pertinent part, vacated in part on other grounds sub nom.,Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000); Yaba v. Cadwalader, Wickersham Taft, 931 F. Supp. 271, 274 (S.D.N.Y. 1996); Prudential Ins. Co. v. BMC Indus., Inc., 655 F. Supp. 710, 711 (S.D.N.Y. 1987) (Although leave to amend should be freely given, "it is inappropriate to grant leave when the amendment would not survive a motion to dismiss."). See generally Dluhos v. Floating Abandoned Vessel Known as "New York",supra, 162 F.3d at 69-70. "The Proposed Amended Complaint may therefore be scrutinized as if defendants' objections to the amendments constituted a motion to dismiss under Fed.R.Civ.P. 12(b)(6)."Journal Publ'g Co. v. American Home Assur. Co., 771 F. Supp. 632, 635 (S.D.N.Y. 1991).

Finally, since plaintiff is proceeding pro se and asserting civil rights claims, I must construe his proposed amendments leniently.Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995); Stewart v. United States Postal Serv., 649 F. Supp. 1531, 1535 (S.D.N.Y. 1986) (pro se papers alleging violations of civil liberties require an even greater liberal construction); accord Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).

To the extent plaintiff is seeking to amend his complaint and his notice of claim to assert a claim against the Federal Government for the alleged violation of his constitutional rights, plaintiff's claim is futile. "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The United States, through the FTCA, has made a limited waiver of sovereign immunity. F.D.I.C. v. Meyer, supra, 510 U.S. at 475 (Federal Tort Claims Act waived sovereign immunity for "certain torts committed by federal employees."). The FTCA waiver of sovereign immunity does not, however, extend to constitutional claims. Although individual employees of the Federal Government may be sued for alleged violations of the plaintiff's constitutional rights, see generaly Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), such claims may not be asserted against the Federal Government itself. As the Court of Appeals explained in Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994):

The district court correctly held both that the United States has not waived its sovereign immunity with respect to claims that its employees have committed constitutional torts, and that a claimant's exclusive remedy for nonconstitutional torts by a government employee acting within the scope of his employment is a suit against the government under the FTCA. See generally Rivera v. United States. 928 F.2d 592, 608-09 (2d Cir. 1991); 28 U.S.C. § 2679(b)(1). It also correctly held that although the FTCA makes individual government employees immune from common-law tort claims for acts committed within the scope of their employment, it does not make them immune from claims of constitutional violations. See. e.g., Carlson v. Green, 446 U.S. 14, 20, 100 S.Ct. 1468, 1472, 64 L.Ed.2d 15 (1980); Rivera v. United States, 928 F.2d at 608.

See also F.P.I.C. v. Meyer, supra, 510 U.S. at 478 ("[T]he United States simply has not rendered itself liable under [28 U.S.C.] § 1346(b) for constitutional tort claims."); Keene Corp. v. United States, 700 F.2d 836, 845 n. 13 (2d Cir. 1983) ("Bivens authorizes suits against the responsible federal official . . ., not against the government itself, andBivens-type actions against the United States are . . . routinely dismissed for lack of subject matter jurisdiction." (citations omitted)); Norwood v. Esmoor, Inc., 95 Civ. 8281 (LAP), 1997 WL 65913 at *3 (S.D.N.Y. Feb. 13, 1997) ("[T]he United States has not waived its sovereign immunity with respect to damages claims arising from constitutional torts. . . ."); Berman v. Turecki, 885 F. Supp. 528, 536 n. 25 (1995) ("The United States has not waived sovereign immunity for constitutional tort claims.").

Accordingly, plaintiff's motion to amend his complaint and notice of claim to assert a constitutional tort claim against the Federal Government is clearly futile and must be denied.

Even if I construed plaintiff's motion as a motion to join unnamed individual defendants against whom constitutional tort claims could be properly asserted, the motion would still have to be denied. The limitations period applicable to a Bivens claim arising in New York is three years. Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999); Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir. 1987). There is no dispute that the alleged incident giving rise to plaintiff's claim occurred in January 1995, more than eight (8) years ago. Thus, any claim against the individuals involved in the allegedly unconstitutional conduct would be time barred and, therefore, futile. Northbrook Nat'l Ins. Co. v. J R Vending Corp., 167 F.R.D. 643, 647 (E.D.N.Y. 1996) ("A motion to amend is futile if the claims sought to be added are barred by the relevant statute of limitations."); accord DC Comics v. Kryptonite Corp., 00 Civ. 5562 (ACS), 2002 WL 1303110 at *4 (S.D.N.Y. June 13, 2002).

To the extent plaintiff is seeking to amend his notice of claim and complaint to assert new injuries, his motion must also be denied. Fact discovery in this matter was completed on March 6, 2002 — nine (9) months prior to the filing of the present motion (Docket Item 32). In addition, defendant has filed a motion for partial summary judgment. Because plaintiff is now asserting new types of physical injuries, permitting plaintiff to amend his notice of claim and complaint at this late date would require re-opening fact discovery and a renewed round of expert discovery in a case that is already four years old. As the Court of Appeals has repeatedly noted, "`[a] proposed amendment . . . [is] especially prejudicial . . . [when] discovery ha[s] already been completed and [non-movant] ha[s] already filed a motion for summary judgment." Krumme v. Westpoint Stevens Inc., supra, 143 F.3d at 88, quoting Ansam Associates v. Cola Petroleum. Ltd., 760 F.2d 442, 446 (2d Cir. 1985). See also Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 101-02 (2d Cir. 2002); O'Hara v. Weeks Marine. Inc., 294 F.3d 55, 70 (2d Cir. 2002).

Finally, to the extent plaintiff is seeking to amend his notice of claim, the motion must be denied for the additional reason that it is too late to amend the notice of claim. 28 C.F.R. § 14.2 (c) provides:

A claim presented in compliance with paragraph (a) of this section may be amended by the claimant at any time prior to final agency action or prior to the exercise of the claimant's option under 28 U.S.C. § 2675(a). Amendments shall be submitted in writing and signed by the claimant or his duly authorized agent or legal representative. Upon the timely filing of an amendment to a pending claim, the agency shall have six months in which to make a final disposition of the claim as amended and the claimant's option under 28 U.S.C. § 2675 (a) shall not accrue until six months after the filing of an amendment.

In this case, the Department of Veterans Affairs took final action rejecting plaintiff's administrative claim on October 5, 1998. Accordingly, plaintiff can no longer amend his administrative claim.Stokes v. U.S. Postal Service, 937 F. Supp. 11, 16 n. 15 (D.D.C. 1996); Willie v. United States, 92-CV-1143, 1993 WL 184149 at *7 n. 23 (N.D.N.Y. May 26, 1993); McFarlane v. United States, 684 F. Supp. 780, 782 (E.D.N.Y. 1988).

Accordingly, plaintiff's motion to amend his notice of claim and his complaint is denied in all respects.

B. Motion to Compel Discovery

Plaintiff's motion to compel discovery is denied as untimely. As noted above, fact discovery in this matter closed in March, 2002, approximately six months before the current motion was served and filed. Since plaintiff offers no argument that justifies why his discovery motion should be entertained at this late date, it is denied as untimely.⁵

5 It appears that plaintiff's discovery motion suffers from a number of other defects. Given the untimeliness of the motion, it is not necessary to address those other issues.

IV. Conclusion

Accordingly, for all the forgoing reasons, plaintiff's motions to amend his notice of claim and his complaint and to compel additional, discovery are denied in all respects.

SO ORDERED.