Southern District Judge Paul Crotty found that ICE retained certain responsibilities to provide Gregory Harvey with adequate medical care despite having delegated duties to the Orange County Correctional Facility.
Crotty ruled that Deborrah Harvey, as administrator of her husband’s estate, sufficiently alleged a separate, undelegated duty for which ICE may be held directly liable. Therefore, he said, the government’s motions to dismiss her lawsuit based on lack of subject matter jurisdiction or, alternatively, for summary judgment based on an independent contractor exception, must be denied.
“When … there is a distinct question regarding the direct negligence of federal employees, jurisdiction is appropriate,” Crotty wrote in Harvey v. United States, 14cv1787. Harvey filed suit under the Federal Tort Claims Act, saying ICE employees violated national detention standards by failing to give her husband appropriate and timely medical care while he was held between 2010 and 2012.
ICE had contracted with the private jail to house detainees. Under an agreement, the jail had responsibility for on-site and emergency medical care. But ICE’s Division of Immigration Health Services was ICE’s final health authority when nonemergency or nonroutine off-site health care was required, Crotty noted.
Gregory Harvey, a Jamaican, made numerous complaints to ICE’s Liaison Unit officers about abdominal pain and vomiting. In March 2012, an off-site doctor recommended he have an endoscopy. But he didn’t get the procedure until more than four months later.
He was diagnosed with cancer the next day.
Adam Handler, a partner with Pollack, Pollack, Isaac & DeCicco, represented Deborrah Harvey. Steven Warshawsky of The Warshawsky Law Firm was co-counsel for Harvey and could not be reached for comment Tuesday.
The Southern District U.S. Attorney’s Office, representing ICE, declined to comment.