United States District Court, D. Massachusetts
JOSEPH P. BOLDIGA, Plaintiff,
FEDERAL BUREAU OF PRISONS, Defendant.
MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION TO DISMISS COMPLAINT FOR LACK OF TIMELY SERVICE OF PROCESS AND LACK OF SUBJECT MATTER JURISDICTION (DOCKET ENTRY # 9); MOTION FOR DAMAGES (DOCKET ENTRY # 28)
MARIANNE B. BOWLER,
On May 15, 2014, plaintiff Joseph P. Boldiga ("plaintiff"), a former inmate at the Federal Medical Center in Devens, Massachusetts ("FMC Devens"), filed a complaint against defendant Federal Bureau of Prisons ("the FBP") based on inadequate medical care at FMC Devens of his chronic inflammatory demyelinating polyneuropathy ("CIDP"). (Docket Entry # 1). The FBP moves to dismiss the complaint under Fed.R.Civ.P. 12(b)(5) ("Rule 12(b)(5)") for improper service of process. (Docket Entry # 10). It also seeks to dismiss the complaint as untimely under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), pursuant to Fed.R.Civ.P. 12(b)(1) ("Rule 12(b)(1)"). (Docket Entry # 10). The FBP further contends that the United States is the only proper defendant.
Plaintiff, proceeding pro se, submits that the FBP did not send a claim denial letter by certified mail. (Docket Entry # 12). Noting "[i]t was [not] until April 30, 2014, " that an electromyography ("EMG") conclusively showed CIDP, plaintiff asks for "indulgence in [any] tardiness." (Docket Entry # 1). In light of his pro se status, this court construes the statement as asserting that the discovery rule salvages any untimeliness. Plaintiff, who filed various medical documents to support the merits of the inadequate medical care claim, additionally argues that denying the claim for lack of service or untimeliness denies him a remedy in violation of the Due Process Clause. (Docket Entry # 13).
STANDARD OF REVIEW
"When a district court considers a Rule 12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor." Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010); Sanchez ex rel. D.R.-S. v. United States, 671 F.3d 86, 92 (1st Cir. 2012), cert. denied, 133 S.Ct. 1631 (2013) ("credit[ing] the plaintiff's well-pled factual allegations and draw[ing] all reasonable inferences in the plaintiff's favor'" under Rule 12(b)(1)). "The district court may also consider whatever evidence has been submitted, such as the depositions and exhibits submitted.'" Merlonghi v. United States, 620 F.3d at 54 (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)). As to the Rule 12(b)(5) challenge to service of the summons and complaint, this court can "look beyond the pleadings and may consider affidavits and other documents to determine whether process was properly served, however, any factual ambiguities are to be resolved squarely in the plaintiff's favor." Morse v. Massachusetts Executive Office of Public Safety, 2013 WL 1397736, at *1 (D.Mass. April 4, 2013).
The complaint alleges that plaintiff received "no medical care for the CIDP while" incarcerated at FMC Devens. In particular, at an October 15, 2011 office visit, a nurse practitioner disregarded the progressive deterioration of plaintiff's condition and his swollen legs. She also failed to perform a complete physical examination. The nurse practitioner then "dismissed [plaintiff's] complaints." (Docket Entry # 1).
Prior to his incarceration at FMC Devens, plaintiff underwent physical examinations and testing at Neurology Associates of York Hospital in York, Maine. (Docket Entry # 1-2). A clinical note for a 2010 examination reflects a past diagnosis of CIDP by Scott Heller, M.D. at Beth Israel Deaconess Hospital and a five day course of intravenous immunoglobulin ("IVIG"). (Docket Entry # 1-2). After the diagnosis of CIDP and the short course of IVIG therapy, plaintiff entered FMC Devens. Medical records provided to FMC Devens of plaintiff's treatment before his incarceration disclose the prior history of CIDP. (Docket Entry ## 1, 13-1). The FBP nevertheless did not provide medical care for the condition during plaintiff's incarceration. (Docket Entry # 1).
Before plaintiff's October 2013 release from FMC Devens, he submitted an administrative claim to the FBP in February 2013 complaining about the failure to provide IVIG therapy for his CIDP at the October 15, 2011 visit. (Docket Entry # 1-2). By letter dated August 9, 2013, the Regional Counsel of the northeast regional office of the FBP located in Philadelphia, Pennsylvania denied the claim. The letter recites that the Regional Counsel sent the letter "Via Certified and Return Receipt Mail" to plaintiff at his FMC Devens address. (Docket Entry # 1-2, p. 1). It also sets out certain medical treatment plaintiff received at FMC Devens, including a purported April 29, 2011 evaluation by a neurologist regarding plaintiff's CIDP and plaintiff's purported refusals to undergo prednisone therapy. (Docket Entry # 1-2).
Significantly, the letter informed plaintiff that, if dissatisfied with the decision, he could "bring an action against the United States in an appropriate United States District Court within six (6) months of the date of this letter, " i.e., February 9, 2014. (Docket Entry # 1-2). Plaintiff filed this action on
By affidavit, plaintiff states that he served the summons and complaint on May 15, 2014, on "J. Brown, " a person designated to accept service on behalf of the FBP, at the agency's northeast regional office in Philadelphia. (Docket Entry # 6). On May 22, 2015, a Process Server also served the FBP by leaving copies of the summons and complaint with an authorized agent at the FBP's northeast regional office in Philadelphia. (Docket Entry # 7). On the same day, the Process Server served the FBP by leaving copies of the summons and complaint with an authorized agent at the United States Attorney's office in Philadelphia. (Docket Entry # 7).
The FBP's motion is twofold. First, it submits that plaintiff did not effectuate service of process. Second, the FBP argues that the inadequate medical care claim brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680 ("FTCA"), is untimely because plaintiff did not file suit within six months after the FBP mailed the August 9, 2013 letter denying the claim.
Addressing the limitations argument, a suit against the FBP, an agency of the United States, is tantamount to a suit against the United States which, as a sovereign, is immune from suit without its prior consent. United States v. Dalm, 494 U.S. 596, 608 (1990); Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 57 (1st Cir. 2007) ("as an attribute of sovereign immunity, the United States and its agencies may not be subject to judicial proceedings unless there has been an express waiver of [sovereign] immunity'"); Sarit v. U.S. Drug Enforcement Administration, 987 F.2d 10, 16 (1st Cir. 1993) (Fourth Amendment claim directed at agency of United States implicates sovereign immunity). Accordingly, absent an express waiver of immunity, the FBP is immune from suit. See Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28, 36 (1st Cir. 2006) ("United States, as a sovereign, cannot be sued absent an express waiver of its immunity").
By enacting the FTCA, Congress expressly "waived the government's sovereign immunity with respect to private tort actions." Roman-Cancel v. United States, 613 F.3d 37, 41 (1st Cir. 2010); Roman v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000) (FTCA waives "sovereign immunity of the United States with respect to tort claims"); see 28 U.S.C. § 2674. The gravamen of the complaint seeks monetary relief and consists of a tort claim against the FBP for inadequate medical care of plaintiff's CIDP during his incarceration at FMC Devens. The complaint also attaches copies of various ...