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PETRAZZOULO v. UNITED STATES MARSHALS SERV.

March 16, 1998

MICHAEL C. PETRAZZOULO, Plaintiff,
v.
UNITED STATES MARSHALS SERVICE, J. PECK, JOHN McCAFFREY, CHAUTAUQUA COUNTY, JOSEPH GERACE, JEROME ERNEWEIN and Lt. ZENON PANFIL, Defendants.



The opinion of the court was delivered by: HECKMAN

 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c). Currently pending for decision are the federal defendants' motion for dismissal, or alternatively, for summary judgment (Item 4), and the county defendants' motion for dismissal, or alternatively, for summary judgment (Item 15). For the following reasons, both motions are granted and the case is dismissed.

 BACKGROUND

 The undisputed facts in this case are as follows. Plaintiff was a federal pretrial detainee in the custody of the United States Marshals Service (USMS) from January 8, 1996 to February 6, 1997. He was housed at the Chautauqua County Jail from January 9, 1996 to October 8, 1996, at which time he was transferred to the Erie County Holding Center (ECHC) (Item 6, P 1; Item 19, P 2).

 On August 19, 1996, while at the Chautauqua County facility, plaintiff suffered a right subcondylar fracture (Item 6, P 2; Item 10, Exs. B-2, B-4, B-5 & B-7; Item 19, P 2). Plaintiff was subsequently treated by David Todd, D.M.D., M.D., who determined that because of the severely compromised condition of plaintiff's remaining teeth, the most effective treatment for his fractured jaw would include full mouth extractions (Item 1, P 16; Item 6, P 3; Item 10, Exs. B-2, B-4, B-5, B-7; Item 19, P 3). Oral surgery was performed on August 20, 1996 (Item 1, P 17; Item 10, Ex. B-4).

 Dr. Todd saw plaintiff on three subsequent occasions over a period of a little more than one month (Item 10, Ex. B-2). On visits occurring one week and four weeks after his surgery, plaintiff reported that he was experiencing no difficulties related to the procedure (Id.). Dr. Todd's examination also revealed no sign of complications. Dr. Todd did discover a single retained root tip. It was subsequently removed, again with no evidence of complications (Id.).

 On or about October 1, 1996, the USMS decided not to authorize the expenditure of federal funds for dentures. Their decision was based upon a determination that providing plaintiff with dentures would constitute elective, rather than necessary, medical care (Item 6, P 9; Item 9, PP 4-5; Item 19, P 13).

 In addition to referring the matter for review, the USMS transferred plaintiff to the Erie County Holding Center (ECHC) on October 8, 1996, where a nutritious soft food diet could be provided (Item 6, P 15; Item 9, P 8; Item 10, Ex. B-9). On October 11, 1996, plaintiff was examined by Huron O. Hill, Dental Director at the ECHC (Item 7, P 3). At that time, plaintiff reported no discomfort relating to his fractured jaw and tooth extractions (Id.).

 Plaintiff was released from USMS custody on February 6, 1997, approximately five and one-half months after his teeth were extracted (Item 6, P 19). Following his release, and prior to filing this lawsuit, plaintiff obtained dentures on his own (Item 19, P 7, Ex. C).

 Plaintiff commenced this action on May 2, 1997, seeking relief under the Supreme Court's holding in Bivens, 42 U.S.C. § 1983 and the Federal Tort Claims Act. According to plaintiff, defendants USMS and Chautauqua County were deliberately indifferent to his serious medical needs in violation of the Eighth and Fourteenth Amendments to the United States Constitution when they decided not to provide him with dentures. Plaintiff is seeking declaratory relief, injunctive relief directing the USMS or Chautauqua County to pay the cost of plaintiff's dentures, injunctive relief directing all defendants to secure dental treatment for plaintiff, monetary damages against the USMS and Chautauqua County reimbursing plaintiff for the cost of his dentures, and costs, expenses and attorney's fees (Item 1).

 On July 21, 1997, the federal defendants, the United States Marshals Service, Jay Peck and John McCaffrey, moved for dismissal or summary judgment on the grounds that all requests for injunctive relief are moot, there is no subject matter jurisdiction over plaintiff's tort claim, plaintiff failed to exhaust administrative remedies, plaintiff's constitutional claims against the USMS are barred by the doctrine of sovereign immunity, plaintiff failed to allege personal involvement on the part of the individual federal defendants, plaintiff has failed to demonstrate that he suffered a violation of his constitutional rights, and the individual federal defendants are entitled to qualified immunity.

 The county defendants, Chautauqua County, Joseph Gerace, Jerome Ernewein and Zenon Panfil, moved for dismissal or summary judgment on September 10, 1997, on the grounds that plaintiff fails to state a claim against the county defendants, all requests for injunctive relief are moot, plaintiff has failed to demonstrate that he suffered a violation of his constitutional rights, and the individual county defendants are entitled to qualified immunity.

 On December 1, 1997, plaintiff responded to defendants' motions, addressing only defendants' claims that he did not suffer a violation of his constitutional rights.

 DISCUSSION

 I. INJUNCTIVE RELIEF.

 In his first cause of action, plaintiff alleges that the USMS violated the eighth amendment's prohibition against cruel and unusual punishment when they refused to provide him with dentures. Plaintiff's second cause of action directs the same allegations at Chautauqua County through the fourteenth amendment. With respect to both of these defendants, plaintiff seeks declaratory relief as well as injunctive relief directing the USMS or Chautauqua County to pay for plaintiff's dentures and to secure such treatment for plaintiff (Item 1, PP 21-24).

 Injunctive relief is an equitable remedy that is typically invoked to preserve the status quo pending a final determination or to prevent future harm. To the extent that plaintiff is seeking an injunction directing reimbursement for the cost of his dentures, his claim should be construed as one for monetary damages rather than for injunctive relief. See Edelman v. Jordan, 415 U.S. 651, 668, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84 (2d Cir. 1991) (rejecting argument that retroactive reimbursement represented injunctive relief rather than damages).

 As to plaintiff's requests that the court order the USMS and Chautauqua County to secure dental treatment for plaintiff, the request is moot. "The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed." Martin-Trigona v. Shiff, 702 F.2d 380 (2d Cir. 1983). See also North Carolina v. Rice, 404 U.S. 244, 30 L. Ed. 2d 413, 92 S. Ct. 402 (1971); Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 11 L. Ed. 2d 347, 84 S. Ct. 391 (1964). By plaintiff's own admission, he has already obtained the treatment requested -- that is, he now has dentures (Item 19, P 7).

 Accordingly, defendants' motions are granted with respect to all claims for injunctive relief.

 II. BIVENS CLAIM.

 In his first cause of action, plaintiff claims that the USMS's refusal to provide him with dentures gives rise to "a cause of action resting directly on the Eighth Amendment's prohibition against cruel and unusual punishment pursuant to the United States Supreme Court decisions in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), and Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980)" (Item 1, P 22). *fn1"

 The federal defendants move for dismissal pursuant to Rule 12(b)(6) for failure to state a claim, or in the alternative, for summary judgment. Because the federal defendants have submitted affidavits and exhibits in support of their motion, the motion is treated as one for summary judgment and disposed of as provided in Rule 56. Plaintiff had notice of defendants' alternative motion, and submitted his own affidavits and exhibits in response.

 A. Defendant United States Marshals Service.

 To the extent that plaintiff relies on Bivens, summary judgment is granted as to the USMS. Bivens held that where an individual's constitutional rights are violated by a federal agent, the victim has a right to recovery in federal court, even in the absence of a statute conferring such a right. Carlson, supra, 446 U.S. at 18. However, jurisdictional limitations allow a plaintiff to sue only the government officials responsible for the violation, and not the federal agency where they are employed. Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 483-86, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994) (Bivens does not imply cause of action against the federal government or its agencies); Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991); Mack v. United States, 814 F.2d 120, 122-23 (2d Cir. 1987) (Bivens actions against the United States are routinely dismissed for lack of subject ...


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