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.

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,

, et seq. (count four). Against the state actors,

his complaint sets forth claims under

, 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,

, 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

. 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,

(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

, 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,

. See also United

States v. Burzvnski Cancer Research Institute,

,

1306 (5th Cir. 1987); Salvador v. Meese,

(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 -

. 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

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,

(1989). See

generally Monell v. New York City Dept, of Social Services,

(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,

(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,

(1983) (citing Bell v. Wolfish,

(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

, 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,

, 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

. 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.,

(1st Cir. 2000) .

See also Weinreich v. Los Angeles County,

(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.

. 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.,

(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

.

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.

(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,

(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,

(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.,

(6th Cir. 1996). See also Camelio,

("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.

20