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declining to allow plaintiff's Bivens claim to proceed upon concluding that Congress provided a substituted remedy for constitutionally deficient dental care in the form of the Public Health Service Act
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Civil No. 03-742-HA.
September 22, 2004
ROBERT TILLITZ, Federal Registration No. 27552-086, LEGAL MAIL, Federal Corrections Institution, Sheridan, OR, Plaintiff, Pro se.
KARIN J. IMMERGUT, United States Attorney, District of Oregon, CRAIG J. CASEY, Assistant United States Attorney, Portland, OR, Attorneys for Defendant.
OPINION AND ORDER
Plaintiff Robert Tillitz, an inmate at the Federal Correctional Institution in Sheridan, Oregon, ("FCI Sheridan"), brings this action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), alleging that defendant Michael Jones, the Chief Dental Officer at FCI Sheridan, violated the Fifth and Eighth Amendments by demonstrating deliberate indifference to plaintiff's serious dental needs. (See Complaint (#1) at 1.) Plaintiff is proceeding with this action pro se.
Defendant moves to dismiss the complaint and this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), arguing that this court lacks subject matter jurisdiction and that plaintiff has failed to state a claim upon which relief may be granted. (Def.'s Mem. in Supp. (#12) at 1-2.) For the reasons set forth below, defendant's motion to dismiss (#11) is granted, and plaintiff's Complaint (#1) is dismissed without prejudice to the filing of claims pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 to 2680.
DISCUSSION
I. Legal Standards
A court should not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle [him] to relief."Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (quotingConley v. Gibson, 355 U.S. 41, 45-46 (1957)). To resolve a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), this court considers the allegations in the complaint as true and construes those allegations in favor of the plaintiff. Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.), cert. denied, Wojcik v. Meek, 528 U.S. 1005 (1999). Additionally, in civil rights cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1998); Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).
When a defendant also questions the court's subject matter jurisdiction pursuant to Rule 12(b)(1), the court may look beyond the pleadings and examine affidavits and other documents submitted with the motion to dismiss in order to resolve the jurisdiction issue. Berardinelli v. Castle Cooke, Inc., 587 F.2d 37, 39 (9th Cir. 1978) (citing Land v. Dollar, 330 U.S. 731, 735 n. 4) (additional citations omitted). The plaintiff, who bears the burden to establish that the court has subject matter jurisdiction, must oppose the motion with affidavits or any other evidence necessary to satisfy this burden. Association of Am. Med. Colleges v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000).
If issues of jurisdiction are intertwined with the merits of the plaintiff's case, the grounds for dismissal under Rule 12(b)(1) are narrower. "A court may not resolve genuinely disputed facts where `the question of jurisdiction is dependent on the resolution of factual issues going to the merits.'"Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (internal citation omitted). "In such a case, the district court assumes the truth of allegations in a complaint . . . unless controverted by undisputed facts in the record. . . . Dismissal is then appropriate only under the same standards required for dismissal for motions for failure to state a claim under Fed.R.Civ.P. 12(b)(6)." Id. II. Analysis A. Allegations in the Complaint
For the purposes of the present motion, the following allegations in plaintiff's verified complaint, together with its attached exhibits, are taken as true. On October 1, 2002, while plaintiff was incarcerated at FCI Victorville, he was examined by Dental Officer Shawn J. Hinton for complaints of pain in tooth #19. (Complaint at 3 Ex. 2.) The excerpt of plaintiff's dental records, attached to the compliant, show that Hinton ordered root canal therapy ("RCT") for tooth #19, and that he performed a dental procedure during the October 1, 2002 visit in an apparent attempt to restore plaintiff's tooth. (Id. at Ex. 2.) The procedure performed by Hinton on that date was the first of two stages of the planned RCT; however, plaintiff was transferred to FCI Sheridan before the second stage could be completed. (Id. at 3 Ex. 2.)
On January 6, 2003, while incarcerated at FCI Sheridan, plaintiff complained of dental pain and was examined by defendant Jones. (Id. at 3.) Defendant noted in plaintiff's treatment chart that there was deep decay in tooth #19, and scheduled an appointment for "RCT #19." (Id. at Ex. 3.) On January 30, 2003, plaintiff again complained of dental pain and was evaluated by defendant, who noted that tooth #19 had advanced decay with severe bone loss, and noted that tooth #19 was "not restorable." (Complaint at Ex. 3.) Plaintiff attests that defendant made disparaging remarks to him and refused to treat tooth #19 further, either with antibiotics to address the infection or with additional RCT; instead, defendant insisted that tooth #19 be extracted. (Id. at 3; see also Exs. 1a, 1b, 5 (record of administrative appeals).) Finally, plaintiff attests that during a dental appointment in May of 2003, defendant refused to re-cement a bridge that included five teeth along the right side of plaintiff's mouth — even though past BOP dentists had done so — because the anchor was imperfect and re-cementing the bridge would only be a temporary solution that in plaintiff's experience would last only one to two years. (Id. at 4 Ex. 4a-b.)
On February 11, 2003, plaintiff filed a Request for Administrative Remedy with Warden Charles A. Daniels, asking that he be prescribed antibiotics and that his root canal be completed. (Id. at Ex. 5.) Plaintiff attests that defendant lied when he stated to Warden Daniels that a "pulp cap procedure . . . which is not considered a first stage of a root canal" was performed on plaintiff's tooth at FCI Victorville. (Id. at 4 Ex. 5.) On appeal to the Western Regional Director, it was determined that RCT had been ordered and started at FCI Victorville; plaintiff attests further that defendant's lie caused plaintiff to lose his initial request to Warden Daniels for an administrative remedy. (Complaint at 4.)
B. Subject Matter Jurisdiction
Defendant does not dispute the underlying facts in this case. (Def.'s Mem. in Supp. at 2.) However, defendant argues that plaintiff is statutorily precluded from bringing a Bivens action against him to obtain compensatory and punitive damages; that plaintiff must bring his claims under the Federal Tort Claims Act ("FTCA") to obtain the relief requested; and that plaintiff has failed to demonstrate that he has satisfied the FTCA's specific jurisdictional prerequisites. (Id. at 4-5.) Plaintiff argues in his response that his cause of action against defendant is proper under Bivens, so that he does not need to pursue a claim under the FTCA. (Pl.'s Traverse to Def.'s Mot. to Dismiss (#13) at 2.)
Plaintiff's complaint clearly sets forth four Bivens claims against defendant Jones, a federal employee acting under color of federal law and named in his individual capacity, and plaintiff specifically alleges violations of his rights under the Eighth and Fifth Amendments to the United States Constitution. (Complaint at 1-7.) Furthermore, plaintiff specifically invoked the court's "federal question" jurisdiction pursuant to 28 U.S.C. § 1331, as well as 28 U.S.C. § 1343(a)(4), which is applicable to civil rights actions. (Id. at 2.)
In Bivens, the Supreme Court established that victims have the right to sue in federal court to recover damages for constitutional violations committed by federal officials, despite the absence of any statute conferring such a right. 403 U.S. at 390-97. However, the Court also defined two situations in which aBivens action cannot be maintained: 1) "when defendants demonstrate special factors counselling hesitation in the absence of affirmative action by Congress," Carlson v. Green, 446 U.S. 14, 18 (1980) (internal quotations and citations omitted); and 2) "when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Id. at 18-19 (citing Bivens, 403 U.S. at 397; Davis v. Passman, 442 U.S. 228, 245-47 (1979)) (emphasis in original).
In this case, defendant has shown that Congress provided a substitute remedy under the Public Health Service Act. (Def.'s Mem. in Supp. at 3-4.) The Act specifies that bringing a civil action against the United States pursuant to the FTCA is the exclusive remedy for civil actions "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." 42 U.S.C. § 233(a). Thus, Congress has expressly made the FTCA an inmate's sole remedy to recover damages for injuries received from a Public Health Service Officer, thereby precluding aBivens action against an individual federal prison doctor for acts or omissions committed while performing official tasks.See Carlson, 446 U.S. at 20 (noting that in 42 U.S.C. § 233(a) Congress explicitly stated that it meant to make the FTCA the exclusive remedy); see also Seminario Navarrete v. Vanyur, 110 F.Supp.2d 605, 606 (N.D. Ohio 2000) (holding that federal inmate could not maintain a Bivens action against prison doctors for acts or omissions made while performing official tasks); and see Kitchen v. United States, 741 F.Supp. 182, 184 (D. Alaska 1989) (holding that pursuant to 42 U.S.C. § 233(a) the FTCA was the exclusive remedy for medical malpractice claims committed by employees of the Public Health Service).
In support of his Rule 12(b)(1) motion, defendant attached a sworn declaration that he is currently, and was at all times material to this case, employed as a general dentist for the United States Public Health Service. (Def.'s Mem. in Supp. at 4;see also Ex. B, p. 1 Attach. 1 (Public Health Service Commission Order dated March 5, 1997, authorizing transfer of defendant Jones to FCI Sheridan)). Plaintiff does not dispute this fact; thus, there is no need for this court to resolve a factual issue that is intertwined with the merits of plaintiff's claims.
The medical records in this case show, and plaintiff attests, that defendant's contacts with him were made for the purpose of obtaining dental treatment at FCI Sheridan, and that defendant was acting within the scope of his employment. (See Complaint at 3-5; and see Exs. 2 3.) Although plaintiff argues that defendant was not acting in his capacity as a government employee when he "made cruel and taunting statements . . . [and] lied when he informed the Warden that a root canal had not been ordered at FCI Victorville," (Pl.'s Traverse to Def.'s Mot. to Dismiss at 2), plaintiff attested in his complaint that defendant made the offending statements during a treatment consultation, and that defendant's false testimony was given during an administrative review made by Warden Daniels at FCI Sheridan. (Complaint at 3-4 Ex. 5.) Thus, defendant's activities occurred within the scope of his employment duties at FCI Sheridan.
Finally, the subject matter of plaintiff's Bivens claims, as demonstrated by the undisputed allegations discussed above in Part A, clearly constitutes a "personal injury" resulting from a Public Health Service officer's performance of dental or related functions. Plaintiff's claims fall into one of the categories covered by the Public Health Service Act, see 42 U.S.C. § 233(a), and therefore could form the basis for a medical malpractice action under the FTCA. See 28 U.S.C. § 2674 (The United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances."). However, plaintiff cannot bring a Bivens action against the individual defendant named in this case because by operation of § 233(a) he must bring his claim against the United States pursuant to the FTCA. Accordingly, this court lacks federal subject matter jurisdiction over the claims against Chief Dental Officer Jones.
Because plaintiff must pursue any claims related to the deficiencies in the dental treatment provided at FCI Sheridan under the FTCA, this action suffers from additional jurisdictional defects. First, the United States was not named as a defendant in this action. Second, to proceed with a claim under the FTCA, plaintiff must demonstrate both that a written tort claim was filed with the appropriate federal agency within two years of its accrual, and that a civil action was commenced within six months of the agency's final denial of the claim. See 28 U.S.C. § 2401(b) (time limits for commencing an action against the United States); Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984). In this case, plaintiff has not satisfied either of these jurisdictional hurdles.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss (#11) is GRANTED; and this action is DISMISSED, without prejudice to the filing of claims pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 to 2680.
IT IS SO ORDERED.