we find that none of his claims withstand the instant motion.
To survive a motion to dismiss an "excessive force" claim, a plaintiff must allege that (1) the use of force was objectively harmful enough to represent a constitutional violation; and (2) the official or officials exerting such force acted with a sufficiently culpable state of mind. Hudson v. McMillian (1992) 503 U.S. 1, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156. The Second Circuit has deemed brief confrontations between prisoners and guards such as the pushing incident alleged here insignificant for Eighth Amendment purposes. See, e.g., DeArmas v. Jaycox (S.D.N.Y. Feb. 8, 1993), 1993 U.S. Dist. LEXIS 1292, No. 92 Civ. 6139, 1993 WL 37501, aff'd (2d Cir. Nov. 19, 1993) 14 F.3d 591 (excessive force claim dismissed where inmate alleged that guards punched, kicked and pushed him against wall); Candelaria v. Coughlin (S.D.N.Y. 1992) 787 F. Supp. 368, 374-75, aff'd (2d Cir. 1992) 979 F.2d 845 (claim dismissed where inmate alleged that guard pressed fist into his neck).
Under Estelle v. Gamble (1976) 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285, to state a claim for improper medical treatment under the Eighth Amendment a plaintiff must assert "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Allegations of merely negligent treatment or of misdiagnosis fail to meet this standard. Id.; see also Church v. Hegstrom (2d Cir. 1969) 416 F.2d 449, 451. Here plaintiff has asserted that he failed to receive medication for three days and that his complaints of insomnia, fever and infection during that time were ignored; that as a result of this deprivation plaintiff suffered fever and developed a mouth infection; and that he did not react well to Vistaril, a sleeping medication which prison doctors had Prescribed. None of these allegations, in our view, meets the stringent "deliberate indifference" standard adopted in Estelle. Accordingly, we dismiss both of plaintiff's Eighth Amendment claims.
Plaintiff's First Amendment claim is similarly deficient. The Supreme Court has held that the Constitution does not prohibit reasonable prison regulations which arguably interfere with an inmate's religious practices. See O'Lone v. Estate of Shabazz (1987) 482 U.S. 342, 349, 96 L. Ed. 2d 282, 107 S. Ct. 2400; Cruz v. Beto (1972) 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (per curiam). Here plaintiff asserts that he was deprived of his Quran and prayer beads for a period of three days. Given the legitimate security concerns which arise in the prison context, such a brief confiscation of religious items seems to us wholly reasonable.
Plaintiff's complaint can be construed as stating Fourteenth Amendment Due Process claims based on (1) the seizure of his property between May 17th and May 19th and (2) his confinement in the SHU. Like plaintiff's First Amendment claim, his seizure claim has no merit in light of defendants' reasonable security concerns. With regard to his confinement claim, the Second Circuit has held that administrative detention does not violate Due Process unless there exist established procedures for detaining an inmate which were not followed in a particular case. See Lowrance v. Achtyl (2d Cir. 1994) 20 F.3d 529, 535. Plaintiff has not alleged that defendants deviated from any such procedures. We thus grant defendants' motion with regard to plaintiff's Fourteenth Amendment claims.
The remaining claims which the complaint attempts to assert are tort claims against Anselmo and Gurliacci. Under the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671, et seq., § 2679(b)(1) (West 1981 & 1995 Supp.) (hereinafter "the FTCA"), the exclusive remedy for claims based on "injury... resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment..." is an action against the United States pursuant to the FCTA. See also Rivera v. United States (2d. Cir. 1991) 928 F.2d 592, 608-609.
As plaintiff's allegations against Anselmo and Gurliacci undoubtedly relate to their duties as prison officials, we must construe them as claims against the United States under the FCTA. Construed as such, they must be dismissed. Absent the filing of an administrative complaint, a federal court lacks subject matter jurisdiction over a tort action against the United States. See Wyler v. United States (2d Cir. 1983) 725 F.2d 156, 159. In the case at bar plaintiff has not alleged that he filed any administrative complaint. Accordingly, we dismiss the tort claims against Anselmo and Gurliacci.
For the reasons stated herein, we dismiss the complaint in its entirety.
New York, New York
September 5, 1995
WHITMAN KNAPP, SENIOR U.S.D.J.