UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHN SMITH, Plaintiff, v. No. 19-CV-2989 (KMK) UNITED STATES OF AMERICA, et al., ORDER Defendants.

KENNETH M. KARAS, United States District Judge: John Smith (“Plaintiff”) brought this Action on April 2, 2019, alleging that, while in the custody of the Federal Bureau of Prisons (“BOP”), he suffered injuries in an automobile collision during transport between a medical facility and a federal detention facility. (See Compl. (Dkt. No. 2).) Plaintiff originally brought claims against the United States pursuant to the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

(1971). (See id.) Following a Pre-Motion Letter submitted by Defendants, the Court set a briefing schedule for a motion to dismiss. (See Dkt. No. 26.)1 Defendants filed a Motion To Dismiss the Complaint (the “Motion”) on January 27, 2020. (See Not. of Mot.; Defs.’ Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. Nos. 32– 33).) Plaintiff submitted an Opposition on March 16, 2020. (See Pl.’s Mem. in Opp’n to Mot. (“Pl.’s Mem.”) (Dkt. No. 35).) In their Motion, Defendants argued in part that any Bivens claim should be dismissed because the instant circumstances would require the Court to recognize a new kind of Bivens

1 “Defendants” refers to the United States of America (the “Government”), Lieutenant Poitras (“Poitras”), Lieutenant Hunter (“Hunter”), Correctional Officer Zurida (“Zurida”), and Correctional Officer Hoehmann (“Hoehmann”). (See Compl.) claim, which it should not do, especially given that the FTCA already provides a remedy for Plaintiffs’ negligence claims. (See Defs.’ Mem. 6–10.) Defendants also argued that to the extent the Court chooses to recognize a Bivens claim for any purported indifference to serious medical needs, it fails either on the merits of such a claim or because Defendants are entitled to qualified immunity. (See

at 11–14.) In the face of these arguments, Plaintiff stated in his Opposition

that he “concedes that under the Supreme Court’s holding in [Ziglar v. Abbassi,

(2017)], his Bivens claim should be dismissed.” (Pl.’s Mem. 2.) Accordingly, the Court dismisses Plaintiff’s Bivens claim. Defendants also argued, because of lack of clarity regarding what incident exactly underlies Plaintiff’s FTCA claims, that they should be dismissed for failure to state a claim. (See Defs.’ Mem. 3–6.) In response to these arguments, Plaintiff stated that his FTCA claim pertained to the negligence of the drivers of the vehicles leading to the collision and not the lack of adequate medical care that he received afterwards. (See Pl.’s Mem. 2–3.) Plaintiff also argued that he had adequately pled the existence of sufficiently serious injuries as a result of the

collision. (Id. at 4–7.) In response to Plaintiff’s Opposition, Defendants wrote a letter notifying the Court that it wished to withdraw its pending Motion on the FTCA claims. (See Dkt. No. 37.) Accordingly, pursuant to the Parties’ own resolution of the issues raised in the Motion, the Bivens claim is dismissed, and the Action may proceed on the FTCA claim, as described in Plaintiff’s Opposition. It is hereby: ORDERED that the Clerk of Court terminate the pending Motion, (Dkt. No. 32); ORDERED that the Clerk of Court mail a copy of this Order to Plaintiff; and ORDERED that the Parties submit a proposed discovery and case management schedule within 30 days of the date of this Order.

SO ORDERED. Dated: April 6, 2020 White Plains, New York

KENNETH M. KARAS United States District Judge