The opinion of the court was delivered by: Robert J. Ward, District Judge.
Plaintiff, appearing pro se, filed an action claiming that
his constitutional right under the Eighth Amendment to be free
from cruel and unusual punishment was violated because he was
required to share a prison cell with an inmate diagnosed as
having the antibodies to the Human Immunodeficiency Virus
("HIV"), a virus which is often a precursor to Acquired Immune
Deficiency Syndrome ("AIDS"). Plaintiff has also asserted
various common law tort claims against defendants. Defendants
move to dismiss the action, arguing that: (1) the claims
against the Federal Bureau of Prisons and the individual
defendants in their official capacities should be dismissed
pursuant to Rule 12(b)(1), Fed.R.Civ.P., for lack of subject
matter jurisdiction; (2) the constitutional tort claims against
the individual defendants personally should be dismissed
pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P., because
plaintiff has failed adequately to allege a constitutional tort
and because their alleged conduct is protected by qualified
immunity; and (3) the common law tort claims against the
individual defendants should be dismissed pursuant to Rule
12(b)(6), Fed.R.Civ.P., because federal officials acting within
the scope of their employment are absolutely immune from such
claims.*fn2 For the reasons that follow, defendants' motion is
granted and the action is dismissed.
Plaintiff, Melvin Deutsch ("Deutsch") alleges that, while he
was an inmate at the Federal Correctional Institute in
Otisville, New York ("Otisville"), defendant Lawrence Coe, Jr.
("Coe"), a corrections counselor at Otisville, assigned him to
a prison cell with another inmate ("the cellmate") for a
ten-day period beginning July 27, 1988 and ending August 5,
1988. Statement of Claim, attached to Complaint, filed May 19,
1989, at ¶¶ 5-6.
Deutsch claims that during the first three days that he
roomed with the cellmate, he shared many personal belongings
with him. Id. at ¶ 11*fn3. On the fourth day, July 30, 1988,
the cellmate allegedly informed Deutsch that, on June 14, 1988,
had tested positive for the antibodies to HIV. Id. at ¶¶ 7-8.
According to Deutsch, the cellmate claimed that the
administration at Otisville knew he had tested HIV positive,
returned him to the prison because his positive HIV test made
him a danger to the public, and warned him not to inform other
inmates of his test results. Id. at ¶¶ 9-10. Deutsch maintains
that, was he made aware of the cellmate's HIV test results, he
would not have shared his personal items with him. Id. at 11.
Also on July 30, 1988, after Deutsch was told by the cellmate
of his HIV test results, Deutsch asked Coe to assign him to
another cell. Coe allegedly denied the request on the ground
that inmates may not select their own cellmates, adding that if
Deutsch "got AIDS, it was just to [sic] bad," and warning
Deutsch that if he told other prisoners about the cellmate's
HIV test results, he would be punished for inciting a riot.
Id. at ¶¶ 12-13.*fn4
Plaintiff contends that the quality of his life and his
ability to maintain relationships with others have been
hampered by a fear that he has AIDS. Id. at ¶¶ 15-17. He also
asserts that defendants' actions have unjustly sentenced him to
death, "by way of `TORTURE'." Id. at ¶ 14. Plaintiff, however,
has not alleged that he has tested positive for the antibodies
Aside from Coe, defendants in this action include the Federal
Bureau of Prisons, J. Michael Quinlan ("Quinlan"), the Director
of the Federal Bureau of Prisons, Jessie R. James ("James"),
formerly the warden of Otisville, and John Brown ("Brown"),
formerly Deutsch's unit manager at Otisville.
Deutsch seeks one hundred billion dollars in compensatory
damages, along with punitive damages, treble "anti-trust"
damages, and attorney's fees, but the complaint does not
specify the legal theories he seeks to rely on for recovery.
Affording the complaint the liberal construction warranted by
plaintiff's pro se status, see Haines v. Kerner, 404 U.S. 519,
520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam), it
can be viewed as asserting both constitutional and common law
tort claims against the Federal Bureau of Prisons and the
individual defendants in their official and personal
The Court's role on a motion to dismiss is a limited one: it
must accept plaintiff's well-pleaded allegations at face value
and construe the allegations in the complaint in plaintiff's
favor. Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir. 1985), mod.,
793 F.2d 457 (2d Cir. 1986). The Court may dismiss the
complaint only if "it appears beyond doubt that plaintiff can
prove no set of facts in support of his claim that would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).
In comparison, a motion for summary judgment may be granted
only when it is clear both that no genuine issue of material
fact remains to be resolved at trial and that the movant is
entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P.
In deciding a summary judgment motion, the Court is not to
resolve disputed issues of fact, but rather, while resolving
ambiguities and drawing reasonable inferences against the
moving party, to assess whether material factual issues remain
for the trier of fact. Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct.
1570, 94 L.Ed.2d 762 (1987) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-250, 106 S.Ct. 2505, 2509-2510, 91
L.Ed.2d 202 (1986)). Only if "no reasonable trier of fact could
find in favor of the nonmoving party" should summary judgment
be granted. H.L. Hayden Co. v. Siemens Medical Systems, Inc.,
879 F.2d 1005, 1011 (2d Cir. 1989). In other words, only where
the entire record would inevitably lead a rational trier of
fact to find for the moving party is summary judgment
warranted. National Railroad Passenger Corp. v. New York,
882 F.2d 710, 713 (2d Cir. 1989).
While the party seeking summary judgment bears the burden of
the lack of material factual issues in dispute, Schering Corp.
v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983), "the mere
existence of factual issues — where those issues are not
material to the claims before the court — will not suffice to
defeat a motion for summary judgment." Quarles v. General
Motors Corp. (Motors Holding Div.), 758 F.2d 839, 840 (2d Cir.
1985) (per curiam). Once the moving party has demonstrated the
absence of any genuine issue of material fact, the non-moving
party must establish "`specific facts showing that there is a
genuine issue for trial.'" Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986) (quoting Rule 56(e), Fed.R.Civ.P.; emphasis
supplied in Matsushita).
Although the movant faces a difficult burden to succeed,
motions for summary judgment, properly employed, permit a court
to terminate frivolous claims and defenses, and to concentrate
its resources on meritorious litigation. Knight v. U.S. Fire
Ins. Co., supra, 804 F.2d at 12. See also Celotex Corp. ...