Ward v. Chemerinski

Background

Antoinette Ward, who was representing herself, sued four employees of the Veterans Administration Medical Center on Kingsbridge Road in the Bronx: Dr. Chemerinski, Dr. Nadia Nord, Lisahia Horton, and Dr. Lee. Ward alleged that the defendants failed to notify her and other medical proxy holders before her mother underwent major surgery on May 1, 2021. Ward’s mother died on July 26, 2021. Ward alleged that the defendants’ failure to use due care caused her stress and pain, and she sought money damages and declaratory relief.

The court had previously allowed Ward to proceed without prepaying filing fees. It therefore reviewed the complaint under the federal screening statute, which requires dismissal of a fee-waived complaint that is frivolous, malicious, fails to state a legally sufficient claim, seeks relief from an immune defendant, or falls outside the court’s jurisdiction.

Constitutional claim under Bivens

Ward invoked Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, a Supreme Court decision recognizing a limited damages remedy for certain constitutional violations by federal officials. The court explained that a Bivens claim requires facts plausibly showing that a federal officer’s conduct deprived the plaintiff of a constitutional right. Bivens provides money damages only, not injunctive or declaratory relief.

The court held that Ward’s allegations about the defendants’ failure to notify her before her mother’s surgery did not fit any of the three contexts in which the Supreme Court has recognized a Bivens remedy: unreasonable search and seizure under the Fourth Amendment, employment discrimination under the Fifth Amendment, or inadequate medical treatment of a convicted prisoner under the Eighth Amendment. The court also stated that expanding Bivens remedies is disfavored. It did not decide whether a Bivens claim for money damages could otherwise be available on Ward’s allegations because Ward had not pleaded facts sufficient to state such a claim.

Possible Federal Tort Claims Act claim

The court construed Ward’s allegations as possibly asserting a claim under the Federal Tort Claims Act (FTCA). That statute waives the United States’ immunity for certain torts committed by federal employees acting within the scope of their employment. The proper FTCA defendant is the United States, not individual federal employees or federal agencies.

Before filing an FTCA lawsuit in federal court, a claimant generally must submit a written claim for damages to the appropriate federal agency and receive a final written decision, or wait six months without a decision. The court described this administrative-exhaustion requirement as jurisdictional, meaning that failure to satisfy it deprives the federal court of authority to hear the FTCA claim.

Ward’s complaint did not allege that she had filed an administrative claim with the Veterans Administration. The court therefore concluded that it lacked subject-matter jurisdiction over an FTCA claim unless Ward had completed the required administrative process. The court granted Ward leave to amend so that she could name the United States as the sole defendant and allege facts showing that she had exhausted the FTCA process.

Claims for the estate

The court said it was unclear whether Ward intended to assert claims on behalf of her mother’s estate. A person representing herself generally may litigate only her own interests and may not represent another person or entity. The court noted an exception where an estate’s administrator and sole beneficiary, with no creditors, appears for the estate because the person is the only party affected by the case’s outcome. The opinion did not determine whether that exception applies to Ward.

Leave to amend and disposition

Because Ward was representing herself, the court granted her an opportunity to amend unless amendment would be futile. The court directed Ward to provide facts showing that she exhausted any FTCA claims brought for herself, for her mother’s estate, or for both, and that she had standing to assert any claim on behalf of the estate. The amended complaint had to identify the relevant people, describe what each defendant did or failed to do and when and where it happened, describe Ward’s injuries, and state the relief sought. The amended complaint would replace the original complaint rather than supplement it, so Ward had to repeat any facts or claims she wanted to preserve.

The court dismissed the complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), granted leave to replead, and directed Ward to submit an amended complaint within 60 days. The court stated that no summons would issue at that time and that failure to comply, without good cause, would result in dismissal for failure to state a claim. It also certified that an appeal would not be taken in good faith and denied Ward permission to proceed without prepaying fees for an appeal.