Marshall's speculative or conclusory assertion to the contrary is
insufficient to defeat the Government's motion for summary judgment.
See Celotex, 477 U.S. at 324; Scotto,
143 F.3d at 114.
Without a sufficient showing that Thompson's assault against Marshall
was reasonably foreseeable and avoidable, there is no evidentiary basis
to support a rational determination that Marshall has satisfied the
requirements of an action for negligence under New York law, an essential
element of which is defendant's breach of a duty owed to plaintiff that
causes a reasonably foreseeable injury to plaintiff. See Akins v. Glen
Falls City Sch. Dist., 424 N.E.2d 531, 535 (N.Y. 1981); see also Smith
v. Chief Exec. Off., No. 00 Civ. 2521, 2001 WL 1035136, at *5-6
(S.D.N.Y. Sept. 7, 2001); Leibach v. State, 627 N.Y.S.2d 463, 464 (App.
Div.3d Dept. 1995). Consequently, Marshall's suit reduces to nothing more
than a claim for assault and battery.
Courts in this Circuit have held uniformly that § 2680(h) of the
FTCA "prohibits claimants from clothing assault and battery actions in
the garb of negligence by claiming negligent failure to prevent [an]
attack." Johnson v. United States, 788 F.2d 845, 850 (2d Cir. 1986),
cert. denied, 479 U.S. 914 (1986); see also Guccione v. United States,
847 F.2d 1031, 1034 (2d Cir. 1988), reh'g denied, 878 F.2d 32 (2d Cir.
1989), cert. denied, 493 U.S. 1020 (1990); Lambertson v. United States,
528 F.2d 441, 445 (2d Cir. 1976), cert. denied, 426 U.S. 921 (1976).
C. MEDICAL CARE CLAIM
Marshall asserts in his Amended Complaint that as a result of
Thompson's attack he sustained "head trauma, deep lacerations and
contusions as well as mental and psychological injuries," including post
traumatic stress disorder, headaches, and insomnia, and that he received
"little medical attention" for these conditions. (Gentin Decl. Ex. A at
Marshall's inadequate medical care allegation, viewed in the light most
favorable to him as a pro se plaintiff and construed to intend the most
viable claims it expresses, see Garcia v. West, No. 98 Civ. 3905, 1999 WL
782563, at *3 (S.D.N.Y. Sept. 30, 1999) ("A complaint and supporting
papers prepared by a pro se plaintiff must be read liberally and construed
so as to raise the strongest arguments they suggest."), may be read to
suggest: (1) a deprivation of a constitutional right by Government
officials acting under color of federal law; (2) deliberate indifference
under the Eighth Amendment of the United States Constitution, or (3)
medical malpractice under state law. Neither theory is sufficiently
supported on the record before the Court to survive a motion for summary
First, when Marshall filed his original complaint in this case, the
Court read it as an action submitted under Bivens v. Six Unknown Named
Agents of Fed. Bur. of Narcs., 403 U.S. 388 (1971). See Marshall v.
Metropolitan Corr. Ctr., No. 99 Civ. 3877, slip op. (S.D.N.Y. May 27,
1999). The Court then held that Marshall's action would not be construed
under Bivens because: (1) it was not brought against any individual
federal agents or employees, but against the Government through a federal
agency, and (2) a claim that a prison official negligently failed to
protect an inmate from injury is not cognizable under Bivens, and thus
such acts do not violate the United States Constitution. See id. at 2
(citing Daniels v. Williams, 474 U.S. 327, 328, 331 (1986), Davidson v.
Canon, 474 U.S. 344, 347-48 (1986), and
Hayes v. New York City Dept. of
Corrections, 84 F.3d 614, 620 (2d Cir. 1996)).
Second, Marshall's statement of the injuries he allegedly sustained,
and his conclusory assertion that he received "little medical attention"
from the Government to treat his various wounds and disorders, are not
supported by the record before the Court. Marshall has adduced no expert
medical evidence confirming any of the conditions which he alleges having
In fact, the MCC health services unit's Record of Medical Cases
prepared shortly after Marshall's injury, reported that Marshall was alert
and ambulatory, and in no acute distress. (See Gentin Decl. Exs. D, I.)
An examination conducted nine days later indicated that while Marshall
complained of headaches there was "no apparent distress"; "no
echymosis"; "no external signs present"; "no contusion noted." (Id. Ex.
F.) Six days later, a report of another examination noted no blurred
vision or vomiting. (Id.) On each occasion, Marshall was provided pain
Moreover, a review of Marshall's full chronological medical record
performed by a neurologist retained by the Government, reported that
between October 21, 1996 and the end of December 1996, Marshall made 12
visits for treatment at the MCC health services unit. Though he
complained of back and shoulder pain and headaches, there is no notation
on any of these occasions of Marshall showing any sign of apparent
distress, disorientation or loss of consciousness. (Id. Ex. I.) Following
a subsequent examination, Marshall underwent a cat scan of the brain on
January 13, 1997, the result of which indicated no abnormality. (Id.
Exs. I, J.)
On June 12, 1997, Marshall was given a psychiatric examination, which
revealed that he had a history of multiple gunshot wounds to the head,
shoulder and back as well as various other injuries and traumas prior to
1996, including some related to an automobile accident. The Government
expert's report documenting the continuous medical treatment Marshall
received on numerous occasions each year from 1997 through 1999, observed
[s]ustained no significant head injury as a result of the
incident on October 21, 1996. He has been examined on
several occasions and no neurologic deficit was [sic]
been found. He was examined on multiple occasions by
multiple professionals who always noted him to be in no
apparent distress, to be fully oriented, and was noted on
several occasions to have a normal neurologic
(Id. Ex. I.) The report concludes that the treatment Marshall received
was appropriate in light of his medical history.
On this record, there is no evidence that Marshall could reasonably
support an action establishing the elements of a claim of deliberate
indifference under the standards articulated in Estelle v. Gamble,
429 U.S. 97, 106 (1976) ("In-order to state a cognizable claim, a
prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs."); see also Williams
v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974). Nor does anything in the
record indicate that Marshall can meet his burden of proof to support a
claim for medical malpractice under New York law. Such an action would
require evidence sufficient to establish a deviation from accepted
practice and that such departure was a proximate cause of the injury in
question. See Holton v. Sprain Brook Manor Nursing Home, 678 N.Y.S.2d 503
(App. Div.2d Dept. 1998). The Court finds no such evidence on the record
Accordingly, the Court concludes that Marshall has failed to establish
the existence of a genuine issue of material fact
that requires a trial
of this action. The Government is therefore entitled to summary
For the reasons described above, it is hereby
ORDERED that the Government's motion for summary judgment dismissing
the complaint herein is GRANTED.
The Clerk of Court is directed to close this case.
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