United States District Court, D. Connecticut
RULING ON PLAINTIFFS' MOTION FOR LEAVE TO
A. Bolden, United States District Judge.
Turner and Colleen Jacks-Turner (the “Turners” or
“Plaintiffs”) filed this lawsuit against the
United States of America (“Defendant”), seeking
damages after a United States Department of Veterans Affairs
(“VA”) surgeon allegedly left a scalpel inside
Mr. Turner during surgery. The United States operates the
VA's hospital in West Haven, Connecticut, and employed
Jaimin Shah, M.D., a “5th year urology trainee”
at the time of the surgery, as an “agent or employee or
governmental actor of the United States of America.”
Am. Compl. ¶ 4, ECF No. 8.
Turners now move for leave to file a Second Amended Complaint
and add a Bivens claim against Dr. Shah. Pls. Mot.
for Leave to Am., ECF No. 12. The Defendant objects.
reasons stated below, Plaintiffs' motion for leave to
amend is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
Turner, a veteran of the United States Army, served tours of
duty in Iraq and Kuwait. Second Am. Compl. ¶ 3. Ms.
Jacks-Turner is Mr. Turner's wife. Id.
¶¶ 4, 26.
August 30, 2013, Mr. Turner underwent a
prostatectomy” at the VA hospital in West Haven,
Connecticut. Id. ¶ 4. In 2017, nearly four
years later, he allegedly experienced dizziness and, as a
result, underwent a magnetic resonance imagining
(“MRI”) scan. Id. ¶ 5. During the
MRI, he experienced “severe abdominal pain” and
subsequent imaging showed that there was a large surgical
scalpel in his abdomen. Id. Surgeons removed the
scalpel a month later. Id.
Turners allege that Dr. Shah left the scalpel in Mr.
Turner's stomach during the prostatectomy and
“knowingly and intentionally abandoned the large metal
scalpel inside of plaintiff's body.” Id.
¶ 6. The Turners also allege that it is
“inconceivable that a physician could unwittingly
abandon a scalpel of this size and mass inside a person's
body” or, at the very least, Dr. Shaw was deliberately
indifferent to Mr. Turner's needs. Id.
January 11, 2018, the Turners filed the initial Complaint in
this lawsuit. See generally Compl., ECF No. 1. The
initial Complaint included two claims: a negligence claim
against the United States under the Federal Torts Claims Act
(“FTCA”), and a loss of consortium claim asserted
by Ms. Jacks-Turner. Id. ¶ 12. One day later,
the Turners filed an amended complaint asserting the same two
claims. See generally Am. Compl.
March 16, 2016, the Turners sought leave to amend the
Complaint a second time. See generally Pl. Mot. to
Am. (“Pl. Mot.”), ECF No. 12. The Second Amended
Complaint adds a Bivens claim against Dr. Shah in
his individual capacity. Second Am. Compl. at 4-7. The
Turners argue that leave is appropriate “for complete
relief and judicial economy.” Pls. Mot. at 1. They
argue that the claim against Dr. Shah is appropriate under a
“‘state created danger'/failure to protect
theory” and that Dr. Shah violated Mr. Turner's
substantive due process rights under the Fifth Amendment.
Id. at 2.
United States argues that this Court lacks jurisdiction over
the Bivens claim, see generally Def. Obj.,
ECF No. 13; Def. Mem. in Support (“Def. Mem.”),
ECF 13-1, and that an immunity statute channels all claims
arising from VA medical care through the Federal Torts Claims
Act (“FTCA”), 28 U.S.C. § 2671 et
seq. Def, Mem. at 4-9. This statute, Defendant
maintains, provides a remedy, and that it would be
inappropriate for the Court to create a Bivens
remedy in this context, id. at 16 (“As stated
above, Congress has provided a comprehensive statute that
expressly states that the FTCA is the exclusive remedy for
claims against VA personnel arising from medical
treatment”), and thus there is no need to grant leave
to add a futile claim.
STANDARD OF REVIEW
of the Federal Rules of Civil Procedure provides that parties
may either amend once as a matter of course or, once the time
period has elapsed, move for leave to file an amended
complaint. Fed.R.Civ.P. 15(a). Parties who fail to file an
amended complaint within the time period, or who seek
additional amendments once the time period has elapsed, may
seek the consent of the opposing party or the court's
leave to amend. Fed.R.Civ.P. 15(a)(2). The “court
should freely give leave when justice so requires.”
Fed.R.Civ.P. 15, the decision to grant leave to amend is
within the discretion of the court, but the court must give
some “justifying reason” for denying leave.
Foman v. Davis, 371 U.S. 178, 182 (1962). Reasons
for denying leave to amend include “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of
amendment[.]” Id.; see also Lucente v.
Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d
Cir. 2002) (noting leave to amend may be denied when
amendment is “unlikely to be productive, ” such
as when an amendment is “futile” and “could
not withstand a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6).” (internal citations omitted)); Park B.
Smith, Inc. v. CHF Indus. Inc., 811 F.Supp.2d 766, 779
(S.D.N.Y. 2011) (“While mere delay, absent a showing of
bad faith or undue prejudice, is not enough for a district
court to deny leave to amend, the longer the period of an
unexplained delay, the less will be required of the nonmoving
party in terms of a showing of prejudice.” (internal
quotation marks omitted)).
issue is whether a Bivens action may be maintained
against a VA doctor where, in the course of medical
treatment, the doctor allegedly violated the patient's
constitutional rights. Plaintiffs argue that adding this
claim only involves seeking Bivens remedies
previously recognized, and that these remedies are necessary
to provide the Turners complete relief. See Pl. Rep.
Br. at 1, ECF No. 14. Defendant argues that to recognize a
Bivens remedy here would be unprecedented because
such remedies are generally disfavored and ...