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Kimbugwe v. United States

United States District Court, D. New Jersey

November 24, 2014

ERICK K. KIMBUGWE, Plaintiff,
v.
UNITED STATES OF AMERICA., et al., Defendants

APPEARANCES: ERICK K. KIMBUGWE, Linden, NJ, Plaintiff Pro Se.

MICHAEL E. CAMPION, Office of the United States Attorney., Newark, NJ, Attorney for Donna Campbell and Jennifer Chhibber.

JEFFREY S. MCCLAIN, Linwood, NJ, Attorney for Lionel Anicette, Vincent Okabekwa, Stephanie Zdanowski, Wanda Hicks.

ALAN RUDDY, Assistant County Counsel, Newark, NJ, Attorney for Roy Hendricks.

OPINION

FREDA L. WOLFSON, UNITED STATES DISTRICT JUDGE.

While proceeding in forma pauperis, Erick K. Kimbugwe filed a Complaint, an Amended Complaint, and a Second Amended Complaint concerning the denial of adequate medical care while he was confined by immigration officials at Essex County Correctional Facility (" ECCF") in New Jersey. Presently before the Court are (1) motion to dismiss, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, filed by Donna Campbell and Jennifer Chhibber (" federal Defendants"); (2) motion for judgment on the pleadings, pursuant to Rule 12(c), filed by Dr. Lionel Anicette, Dr. Vincent Okabekwa, Stephanie Zdanowski, Wanda Hicks (" medical Defendants"); and (3) motion for judgment on the pleadings, pursuant to Rule 12(c), filed by Defendant Warden Hendricks. For the reasons expressed below and pursuant to Rule 78, this Court grants the motion to dismiss for lack of jurisdiction filed by Defendant Chhibber; denies the motion to dismiss for failure to state a claim filed by Defendant Campbell; grants the motions for judgment on the pleadings filed by Defendants Dr. Anicette and Warden Hendricks; denies the motions for judgment on the pleadings filed by Defendants Okabekwa, Zdanowski, and Hicks; grants the motion for judgment on the pleadings filed by Warden Hendricks; and appoints counsel for Plaintiff.

I. BACKGROUND

This Court will take judicial notice of the docket of Plaintiff's habeas proceeding and the prior opinion of an Immigration Judge that was filed in that proceeding, see Kimbugwe v. Holder, Civ. No. 13-7321 (KM) (D.N.J. filed Dec. 5, 2013). See McTernan v. City of York, 577 F.3d 521, 525 (3d Cir. 2009) (observing that, in deciding a motion to dismiss, " a court may take judicial notice of a prior judicial opinion."). Plaintiff was detained by the Department of Homeland Security (" DHS") at ECCF from May 10, 2012, until about February 27, 2014, when the Immigration Judge granted him relief from removal. It appears from the Immigration Judge's opinion attached to Plaintiff's petition that, when Plaintiff was six years old and living with his family in Uganda, several guerilla soldiers entered his house, killed his parents, abducted him, subjected him to psychological trauma, including the forced use of drugs and alcohol while witnessing the torture and death of others, and required him to serve as a child soldier. The Immigration Judge noted that a medical report corroborated Plaintiff's past physical harm, including bodily scars, and that a psychological report from clinical psychologist Dr. Monica Indart indicated that Plaintiff's mental health problems, due to his experiences as a child soldier, included post-traumatic stress disorder. In addition, the Immigration Judge noted that Plaintiff had been seeing a psychologist on a regular basis and that he had been prescribed Remeron for his mental health issues.

On December 28, 2012, the Clerk received Plaintiff's original Complaint in this case naming the United States as Defendant, together with applications to proceed in forma pauperis and for the appointment of pro bono counsel. (ECF Nos. 1, 2.) On January 23, 2013, Judge Cavanaugh directed the Clerk to file Plaintiff's similar pleading, which had been docketed in Civil Number 12-7941 (DMC), as an Amended Complaint in the instant action. (ECF No. 3.) On March 7, 2013, Judge Cavanaugh granted Plaintiff's application to proceed in forma pauperis, dismissed Warden Hendricks and John Tsoukaris as defendants, and directed the United States Marshal to serve the remaining Defendants. (ECF No. 5.) On August 13, 2013, Magistrate Judge Dickson granted Plaintiff's request to file a Second Amended Complaint, which was filed on September 9, 2013, and denied his application for the appointment of pro bono counsel without prejudice. (ECF Nos. 18, 23.) On December 13, 2013, Defendants Anicette, Okabekwa, Zdanowski and Hicks filed an Answer and on February 6, 2014, Defendant Hendricks filed an Answer. (ECF Nos. 33, 40.)

On April 23, 2014, Defendants Campbell and Chhibber filed a motion to dismiss, which is presently before this Court. (ECF No. 50.) On August 22, 2014, Defendants Anicette, Okabekwa, Zdanowski and Hicks filed a motion for judgment on the pleadings, and on September 3, 2014, Defendant Roy Hendricks filed a motion to dismiss. (ECF Nos. 59, 61.) Plaintiff has not filed opposition or otherwise responded to these motions.

II. DISCUSSION

A. Motion to Dismiss For Lack of Jurisdiction

Defendant Jennifer Chhibber seeks an order dismissing the claims against her in the Complaint, as amended, for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1). (ECF No. 50 at 1.) In support of her motion, Chhibber relies on a supporting brief and her own declaration. (ECF No. 50 at 1-2.) In her declaration, Defendant Chhibber avers that, when Plaintiff was detained at ECCF, she was employed by the United States Public Health Service (" PHS") as a Lieutenant Commander, she was the Field Medical Coordinator stationed at the Newark Field Office, and she served as a liaison between DHS and the detention facility regarding medical issues. (ECF No. 50-2.) She argues that this Court lacks jurisdiction over Plaintiff's claims against her because 42 U.S.C. § 233(a) precludes an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against PHS personnel for constitutional violations arising out of their official duties. See Hui v. Castaneda, 559 U.S. 799, 801, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010).

Rule 12(b)(1) authorizes a defendant to move to dismiss a claim for relief for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Where, as in this case, a defendant's Rule 12(b)(1) motion presents a factual attack on subject matter jurisdiction, a court may consider material outside the pleadings in determining jurisdiction.[1] See U.S. ex rel. Schumann v. AstraZeneca Pharmaceuticals L.P., 769 F.3d 837, 845 (3d Cir. 2014); Constitution Party of Pennsylvania ...


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