United States District Court, S.D. New York
February 27, 2004.
FRED BROWN a/k/a JAMES MALLARD, Plaintiff, -v.- THE UNITED STATES OF AMERICA, FEDERAL BUREAU OF PRISONS, MCC C.O. JARMA, and KEN HAAS, UNIT MANAGER, MCC, Defendants
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff Fred Brown a/k/a James Mallard ("Brown") has brought this
action pro se alleging that the defendants interfered
with his mail during his incarceration at the Metropolitan Correctional
Center ("MCC"). Brown seeks compensatory damages arising from the loss of
his motorcycle, which was allegedly sold as a result of the delay or
obstruction of his mail. He also seeks monetary compensation for mental
anguish. Defendants have moved to dismiss the action pursuant to
Fed.R.Civ.P. 12(b)(1), 12(b)(5), and 12(b)(6). In response, Brown has moved to
amend his complaint a second time. For the following reasons, leave to
amend should be denied and defendants' motion should be granted.
From January 24, 2000 to June 22, 2000, Brown was a state inmate
temporarily housed at the MCC on a Writ of Habeas Corpus Ad Testificandum
in conjunction with a previous case
Brown had brought in the Southern District of New York. Declaration of
Adam M. Johnson, filed October 10, 2003 (Docket #14) ("Johnson Decl."),
¶ 2; Writ of Habeas Corpus Ad Testificandum, dated January 5, 2000
(annexed as Ex. 1 to Johnson Decl.).
On February 2, 2000, Brown placed correspondence in the outgoing mail
which contained a power of attorney form. Affidavit in Support of Amended
Complaint, filed February 19, 2003 (Docket #4) ("Am. Compl."), ¶ 6.
According to Brown, he was sending the power of attorney form to Phil
Higgs, the President of the Southern Christian Leadership Conference, in
order to prevent the sale of his Harley-Davidson motorcycle in North
Carolina. Id. ¶¶ 8, 26, 28. Correction Officer Jorge Jarama
opened this correspondence and brought it to Brown, explaining that the
correspondence could not be sent because there was no return address on
the outside of the envelope and that Jarama had opened the envelope to
identify the sender. Id. ¶¶ 7, 9-12. Jarama asked Brown to
sign a form for the return of the correspondence, which Brown refused to
sign. Id. ¶¶ 14-15. Jarama then threw the envelope in the
garbage can. Id. ¶ 16. Brown retrieved the envelope from
the garbage. Id. ¶ 17. When Brown asked Jarama to return
the contents of the correspondence, however, Jarama refused and advised
Brown that he would have to submit a special form requesting that Jarama
return the correspondence. Id. ¶¶ 18-20. Brown did so but
only the letter was returned to him. Id. ¶ 21. The power of
attorney form was never returned. Id. ¶ 22.
On February 5, 2000, Brown asked Ken Haas, a Unit Manager at MCC, for
postage to send correspondence. Am. Compl. ¶ 29. Brown alleges that
he did not have funds or postage stamps and needed to send legal
correspondence to the North Carolina courts regarding an injunction to
block the sale of his motorcycle. Id. ¶ 28. Haas refused
Brown's request. Id. ¶ 30.
Brown filed a Request for Administrative Remedy on February 7, 2000
regarding Jarama's opening of his mail and refusal to return portions of
the correspondence. Am. Compl. ¶ 31; see also Request for
Administrative Remedy, dated February 7, 2000 (annexed as Ex. B to Am.
Compl.). Dennis W. Hasty, the Warden, responded on February 11, 2000, Am.
¶ 35, stating that an investigation had been conducted and that
Brown's letter had been opened in an attempt to identify the sender since
the letter had an incomplete return address, Response to Request for
Administrative Remedy, dated February 11, 2000 (annexed as Ex. C to Am.
Compl.). Further, Warden Hasty stated that correspondence addressed to
the Southern Christian Leadership Conference did not qualify as legal
With respect to Haas's refusal to provide postage, Brown submitted an
"Inmate Request to Staff Member" form to Warden Hasty on February 11,
2000. Inmate Request to Staff Member, dated February 11, 2000 ("Inmate
Request") (annexed as Ex. B to Am. Compl.). Brown explained that he was
indigent and detailed his attempts to obtain stamps for legal mail from
various MCC personnel. Id. He claimed that the Unit Manager
(Haas) told him on February 11, 2000 "[t]hat he would have to check out
my account to find out if I qualify." Id. Warden Hasty
responded on February 22, 2000, informing Brown that he "ha[d] not
requested stamps for legal mail use via the Inmate Request to Staff
Member." Response to Inmate Request to Staff Member, dated February 22,
2000 (annexed as Ex. C to Am. Compl.). Warden Hasty further stated that
the unit team must verify the amount available in Brown's inmate account
and if funds are not available he will be issued up to five stamps for
legal correspondence. Id. Brown alleges that he gave a copy of
Warden Hasty's response to Haas and that Haas, in turn, immediately
transferred Brown out of the unit without providing him with postage
Compl. ¶¶ 37-38. Prison records indicate that Brown was
transferred to another unit within MCC on February 25, 2000.
See Johnson Decl. ¶ 21.
On March 28, 2000, Brown executed a second Request for Administrative
Remedy seeking relief in the amount of $100,000.99 for Jarama opening his
mail without legal authorization and $50,000 for Haas failing to provide
postage and transferring Brown in retaliation for his complaint to Warden
Hasty. See Request for Administrative Remedy, dated March 28,
2000 ("Second Request") (annexed as Ex. 5 to Johnson Decl.). By notice
dated May 24, 2000, Brown's second request was rejected and Brown was
instructed to submit his claim on a Tort Claim Form and to forward it to
the Northeast Regional Office of the Federal Bureau of Prisons ("BOP").
See Rejection Notice Administrative Remedy, dated May
24, 2000 ("Rejection Notice") (annexed as Ex. 6 to Johnson Decl.).
Brown filed an administrative tort claim with the BOP on April 7, 2000.
Am. Compl. ¶ 44; see also Claim for Damage, Injury, or
Death, TRT-NER-2000-01643, stamped June 12, 2000 ("BOP Claim") (annexed
as Ex. 7 to Johnson Decl.). This claim again sought monetary compensation
for Jarama's and Haas's actions in February 2000. See BOP
Claim. By letter dated November 20, 2001, Brown was informed that no
settlement would be offered on his claims. Am. Compl. ¶ 45; Letter
from Henry J. Sadowski to Brown, dated November 20, 2001 ("Nov. 2001
Sadowski Ltr.") (annexed as Ex. 8 to Johnson Decl.). The letter noted
that the rejection was originally mailed to Brown on November 14, 2000
but apparently Brown did not receive it. See Nov. 2001 Sadowski
Ltr. The letter explained that MCC staff had complied with BOP policies
in opening and inspecting Brown's outgoing mail. Id. It further
stated, "The mail in question was not special mail, and you were
attempting to use government envelopes with pre-paid
postage, without authorization." Id. Also, Sadowski
noted that Brown had failed to show that he actually experienced any
By letter dated November 28, 2001, Brown requested a "Rehearing En
Bane" on his claims for money damages. He explained that his unauthorized
use of government envelopes was an unrelated incident which occurred long
after February 2000 and that Jarama had no authorization to open his
mail. Letter from Brown to Sadowski, dated November 28, 2001 (annexed as
Ex. 9 to Johnson Decl.), at 1-2. The BOP reconsidered the claim and again
decided not to offer any settlement because "the contents of [outgoing
social mail written by pretrial inmates] may be read and inspected by
staff." Letter from Henry J. Sadowski to Brown, dated April 16, 2002
(annexed as Ex. 10 to Johnson Decl.). Again, Brown was informed that he
had failed to show either a loss of personal property or a personal
injury resulting from the negligence of any BOP employee. See
B. Procedural History
Brown originally filed the complaint in this action under
42 U.S.C. § 1983 against the BOP, Warden Hasty, Jarama, and Haas. See
Jury Trial Demanded Affidavit and Complaint Pursuant to  U.S.C. §
1983, filed December 27, 2002 (Docket #2). Chief Judge Michael B. Mukasey
dismissed Brown's claims for damages against the BOP and Warden Hasty
because such claims are barred by the doctrine of sovereign immunity.
See Order, filed December 27, 2002 (Docket #3) ("Order"), at
2-3. Because the individual defendants were federal officials acting
under the color of federal law, Judge Mukasey construed Brown's complaint
as being brought under Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). See Order at 1 n. 1. Judge
Mukasey construed Brown's allegations as raising a claim that he was
denied access to the courts but held that the complaint failed to
establish that Jarama or Haas had deprived him of his right of access.
Id. at 3-4. Brown was directed to submit an amended complaint
(1) alleging "how defendant's conduct adversely affected his legal
efforts or prejudiced an existing legal action" and (2) "stat[ing]
whether his letters were eventually mailed out and specifically
describ[ing] all of his legal efforts to obtain his motorcycle from North
Carolina," including "his efforts to present his claims in the courts of
North Carolina and . . . the date the motorcycle was sold."
Id. at 4. Furthermore, Brown was advised that he "must allege
that he has fully exhausted his administrative remedies . . . as to
each claim he seeks to raise in the instant complaint" as required by the
Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).
Id. at 4-5. The Order outlined the procedural steps necessary
for exhaustion. Id. at 5-6.
Thereafter, Brown submitted an amended complaint which omitted Warden
Hasty as a defendant and documented his efforts to exhaust his claims. In
all other respects, the factual allegations contained in the amended
complaint were substantially the same as those in the original complaint.
C. The Instant Motions to Dismiss and to Amend
Defendants have moved to dismiss the amended complaint on three
grounds: (1) the Court lacks subject matter jurisdiction over Brown's
claims, Memorandum of Law in Support of Defendants' Motion to Dismiss,
filed October 10, 2003 (Docket #5) ("Def. Mem."), at 5-12;
(2) Brown has failed to state a cause of action under Bivens,
id. at 12-20; and (3) defendants are entitled to qualified immunity,
id. at 20-21.*fn1
In response, Brown has moved for leave to file a second amended
complaint. See Notice of Motion to Amend Complaint, filed
November 5, 2003 (Docket #17). The proposed second amended complaint
identifies two new legal bases for relief: the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 1346, 2671-2680, and the Uniform Commercial
Code. See Affidavit in Support of Motion to Amend Complaint
from 1983 to FTCA, filed November 5, 2003 (Docket #17) ("Proposed Second
Am. Compl."), ¶¶ 2-6. Brown also adds legal arguments in support of
his claims. See id. ¶¶ 7-18, 56-70. The proposed second
amended complaint does not, however, make new factual allegations of any
consequence. Instead, it repeats the facts set forth in the first amended
complaint, see id. ¶¶ 19-55, and adds that Brown's name and
inmate number were on the outside of the envelope Jarama opened on
February 2, 2000, see id. ¶ 24. The copy of the envelope
provided by Brown shows the words "No Return Address" in the
upper-left-hand corner crossed out and written over by Brown's name,
number, and address. See Photocopy of Envelope (annexed as Ex.
A to Proposed Second Am. Compl.).
In response, defendants argue that leave to submit a second amended
complaint should be denied on the ground that the proposed amendment is
fufile because it cannot withstand a motion to dismiss. Reply Memorandum
of Law in Further Support of Defendants' Motion to Dismiss
and in Opposition to Plaintiff's Motion to Amend, filed December
24, 2003 (Docket #19), at 2-3. Indeed, in their original moving papers,
defendants anticipated that Brown's first amended complaint could be
construed as seeking relief under the FTCA and provided arguments why
such a claim for relief should be dismissed. See Def. Mem. at
For the reasons stated below, neither the existing amended complaint
nor the proposed second amended complaint can survive the defendants'
motion either based on the sovereign immunity defense or Brown's
failure to exhaust his administrative remedies. Thus, leave to replead
should be denied and the defendants' motion should be granted.
II. GOVERNING LEGAL PRINCIPLES
A. Motion to Dismiss
In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(1) or
12(b)(6), the Court must accept the factual allegations set forth in the
complaint as true and draw all reasonable inferences in favor of the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). A complaint
should not be dismissed for failure to state a claim "unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-6 (1957). In making this evaluation, complaints drafted
by pro se plaintiffs are held "`to less stringent
standards than formal pleadings drafted by lawyers,'" Boddie v.
Schnieder. 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and they should be
interpreted "`to raise the strongest arguments that they suggest,'"
Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
B. Converting a Motion to Dismiss into a Motion for Summary
In this case, the defendants have presented material outside of the
amended complaint on the issue of exhaustion of remedies. While these
submissions do not contradict any of the allegations of the amended
complaint or the proposed second amended complaint on this point, they
provide additional factual background particularly with respect
to whether Brown filed any appeals from his initial complaints to prison
authorities, see Johnson Decl. ¶ 5. Indeed, the existence
vel non of such appeals are the only facts introduced
by the defendants that have any bearing on the disposition of this
Fed.R.Civ.P. 12(b) provides that "[i]f . . . matters outside the
pleading are presented to and not excluded by the court, [a] motion [to
dismiss under 12(b)(6)] shall be treated as one for summary judgment."
Still, "parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56." Fed.R.Civ.P.
12(b). Because Brown is proceeding pro se, affording him notice
and an opportunity to respond is a particular concern. See, e.g.,
Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983).
"The essential inquiry is whether the [plaintiff] should reasonably have
recognized the possibility that the motion might be converted into one
for summary judgment or was taken by surprise and deprived of a
reasonable opportunity to meet facts outside the pleadings." In re
G. & A. Books. Inc., 770 F.2d 288, 295 (2d Cir. 1985),
cert. denied, 475 U.S. 1015 (1986). Here, Brown was given ample
opportunity to meet the facts outside the pleadings relating to
exhaustion. Judge Mukasey alerted Brown to this potential defect in his
claim and specifically required Brown to "show that he has completely
exhausted the above administrative remedies through the highest
level for each claim he seeks to present." Order at 6 (emphasis
also id., at 5 ("[Brown's] instant action can
only proceed after he has exhausted any available administrative remedies
on each claim, including all appellate remedies provided within the BOP
system."). Brown was warned that a failure to amend his complaint in
compliance with the Order would result in dismissal. See id. at
7. Brown obviously understood his obligations on this score as he
submitted an affidavit in support of his amended complaint that annexed
documentation regarding his pursuit of administrative remedies.
See Am. Compl.
Furthermore, defendants moved to dismiss specifically on the exhaustion
issue, raising the issue of Brown's failure to file appeals,
see Def. Mem. at 9-12, and Brown again had the opportunity to
allege exhaustion in response to that motion.
Because Brown has been given "notice and an opportunity to respond" to
the allegation of non-exhaustion, Mojias v. Johnson,
351 F.3d 606, 610-11 (2d Cir. 2003), the defendants' motion to dismiss
should be converted to one for summary judgment on this limited issue. See,
e.g., Scott v. Gardner, 287 F. Supp.2d 477, 485-86 (S.D.N.Y. 2003)
(converting motion to dismiss under 12(b)(6) for failure to exhaust into
motion for summary judgment on the issue of exhaustion).
C. Motion for Summary Judgment
Summary judgment may not be granted unless "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c): see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A material issue is a
"dispute over facts that might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby. Inc., 477 U.S. 242,
248 (1986). A genuine issue of
material fact exists "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Id. Thus,
"`[a] reasonably disputed, legally essential issue is both genuine and
material'" and precludes a finding of summary judgment. McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
Brown has not contested the accuracy of any of the allegations or
documents submitted by the defendants on the issue of exhaustion.
D. Motion to Amend
Leave to amend a pleading "shall be freely given when justice so
requires." Fed.R.Civ.P. 15(a). "`Where it appears that granting leave
to amend is unlikely to be productive, however, it is not an abuse of
discretion to deny leave to amend.'" Lucente v. IBM Corp.,
310 F.3d 243, 258 (2d Cir. 2002) (quoting Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993)).
When a plaintiff has submitted a proposed amended complaint, the court
"may review that pleading for adequacy and need not allow its filing if
it does not state a claim upon which relief can be granted."
Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.
1991); accord Lucente, 310 F.3d at 258 ("An amendment to a
pleading is fufile if the proposed claim could not withstand a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6)."); Dougherty v. Town
of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.
In this case, the motion for leave to amend was made in response to
what is for all intents and purposes a motion for summary judgment. In
such a situation, a court may look outside the pleadings in order to
determine whether a proposed amended complaint is fufile. See, e.g.,
Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110-11 (2d Cir. 2001)
standard applied where motion for leave to amend was made in
response to summary judgment motion); Health-Chem Corp. v.
Baker, 915 F.2d 805, 810 (2d Cir. 1990) (same).
Brown's claims may be divided as follows: (1) those against the United
States or its officers in their official capacities and (2) those against
the officers in their individual capacities. Each is discussed
A. Claims Against the United States or Its Officers in Their
The United States of America enjoys sovereign immunity from suit and
thus cannot be sued without its consent. E.g., United States v.
Lee. 106 U.S. 196, 204 (1882); Coulthurst v. United
States. 214 F.3d 106, 108 (2d Cir. 2000). Claims asserted against
agencies of the United States government, such as the BOP, or federal
officers in their official capacities are considered to be asserted
against the United States and are also barred under the doctrine of
sovereign immunity. E.g., Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing FDIC v.
Meyer, 510 U.S. 471, 484-86 (1994)). Congress may waive the
sovereign immunity of the United States but may do so only through
unequivocal statutory language. E.g., Lane v. Pena,
518 U.S. 187, 192 (1996) ("A waiver of the Federal Government's sovereign
immunity must be unequivocally expressed in statutory text and will not be
implied." (citations omitted)). Congress may define the terms and
conditions of such a waiver and "the terms of [the United States']
consent to be sued in any court define that court's jurisdiction to
entertain the suit." United States v. Sherwood, 312 U.S. 584,
586 (1941): accord Meyer, 510 U.S. at 475. Thus, if the United States has
not waived its sovereign immunity, or if the conditions of such a waiver
have not been met, the Court lacks subject matter jurisdiction over the
claim. See, e.g.,
Meyer, 510 U.S. at 475; Williams v. United
States, 947 F.2d 37, 39 (2d Cir. 1991), cert. denied,
504 U.S. 942 (1992).
Brown's amended complaint and proposed second amended complaint may be
liberally construed as suggesting three potential bases on which he seeks
to sue the United States or the defendants in their official capacities:
for constitutional violations, for non-constitutional torts, and under
the Uniform Commercial Code. Each is discussed in turn.
1. Constitutional Claims
Under Bivens, an individual injured by a federal agent's
violation of his or her federal constitutional rights may bring an action
for damages against the agent in his or her individual capacity. 403 U.S.
at 397. However, such an action cannot be brought against the United
States, a federal agency, or a federal officer in his or her official
capacity. Meyer, 510 U.S. at 484-86. In other words, the United
States has not consented to suit under Bivens and such suits
are routinely dismissed for lack of subject matter jurisdiction.
See, e.g., Robinson. 21 F.3d at 510; Keene Corp. v. United
States. 700 F.2d 836, 845 n. 13 (2d Cir.), cert. denied,
464 U.S. 864 (1983). Thus, to the extent that Brown seeks to hold the
United States, the BOP, or the individual defendants in their official
capacities liable for constitutional violations, there is no jurisdiction
over such claims. See, e.g., Mever, 510 U.S. at 478 ("the
United States simply has not rendered itself liable under [28 U.S.C.]
§ 1346(b) for constitutional tort claims"); Castro v. United
States, 34 F.3d 106, 110 (2d Cir. 1994) ("the United States has not
waived its sovereign immunity with respect to claims that its employees
have committed constitutional torts").
2. Non-Constitutional Torts
The United States has consented to suit with respect to certain
non-constitutional tort claims by virtue of the FTCA. The FTCA states
generally that "[t]he United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same manner and
to the same extent as a private individual under like circumstances."
28 U.S.C. § 2674. The remedy against the United States provided by the
FTCA is exclusive of any other remedy for money damages against a federal
employee acting within the scope of his or her employment. Id.
Nonetheless, the liability of the United States is limited by a number
of exceptions. One of these exceptions is for "[a]ny claim arising in
respect of . . . the detention of any goods, merchandise, or
other property by . . . any other law enforcement officer."
28 U.S.C. § 2680(c) (emphasis added). The term "law enforcement officer"
has been consistently interpreted as encompassing BOP employees.
See, e.g., Chapa v. United States Dep't of Justice.
339 F.3d 388, 389-91 (5th Cir. 2003) (no subject matter jurisdiction over
inmate's claim that a box of his belongings was not returned to him after
transferring facilities); Crawford v. United States Dep't of
Justice, 123 F. Supp.2d 1012, 1014-15 (S.D. Miss. 2000) (no subject
matter jurisdiction over inmate's claim that his property was wrongfully
seized and destroyed by BOP employee); Dennison v. United
States. 2000 WL 206317, at *3 (D. Kan. Jan. 14, 2000) (no subject
matter jurisdiction where BOP official did not return property seized in
a criminal investigation); Hernandez v. Hawks, 1995 WL 692982,
at *4-*6 (D. Minn. Sept. 28, 1995) (no subject matter jurisdiction over
inmate's claim that BOP employees lost certain items of his personal
property). The allegations that the BOP officers improperly opened
Brown's mail and/or failed to transmit
the materials Brown wanted mailed fall within this exception.
Because any of the acts alleged by Brown that might constitute torts
"aris[e] in respect of the alleged detention of his mail, they are barred
by this provision, see 28 U.S.C. § 2680(c).
In addition, the FTCA contains a separate exception barring suits for
"[a]ny claim arising out of the loss, miscarriage, or negligent
transmission of letters or postal matter." 28 U.S.C. § 2680(b);
see Ruiz v. United States. 160 F.3d 273, 275 (5th Cir. 1998)
(inmate's claim for damages based on his failure to receive incoming mail
dismissed as statutorily barred); Lucas v. United States, 228
Ct. Cl. 860, 860 (Ct. C1. 1981) (no jurisdiction over inmate's claim
regarding a delay in delivering a certified letter addressed to district
court seeking some form of relief); Rogers v. United States Postal
Serv., 1999 WL 58852, at *2 (N.D. Tex. Feb. 3, 1999) (court lacks
jurisdiction over inmate's claim against the Postal Service for
negligently losing a certified mail package containing a lawsuit to be
filed in federal court). This provision, which was designed to shield the
government from "liability arising from loss of . . . the mail
itself," Raila v. United States, 335 F.3d 118, 122 (2d Cir.
2004), also bars Brown's claims.
Brown's proposed second amended complaint contains no allegations that
would bring this case outside the FTCA's exceptions. Where, as here, a
case is brought against the United States that is barred by one of the
exceptions to the FTCA, a court lacks subject matter jurisdiction to
consider such claims. See, e.g., Adeleke v. United States,
355 F.3d 144, 153-54 (2d Cir. 2004); see also Meyer, 510 U.S. at
475 ("the terms of the United States' consent to be sued in any court
define that court's jurisdiction to entertain the suit" (internal
quotation marks and citation omitted)). Thus, any claims asserted against
the United States of America, the BOP, and the individual defendants
under the FTCA are dismissable under Fed.R.Civ.P. 12(b)(1).
3. Claims Under the Uniform Commercial Code
Brown states generally that he is entitled to relief under the Uniform
Commercial Code. See Proposed Second Am. Compl. ¶¶ 6-10,
18a, 56-59, 64-69. Brown's premise appears to be that his claim is in
fact one for "contract" and that he is entitled to compensation because
the BOP has failed to produce any contract authorizing it to open his
outgoing mail. See id. ¶¶ 7-8, 18a, 57-58.
This claim fails because there is no express or implied contractual
relationship between Brown and any governmental party regarding the
sending of his mail let alone a contract supported by
consideration. Brown does submit an acknowledgment form he signed stating
that he understood that incoming correspondence would be
examined by prison officials. See Acknowledgements [sic] of
Inmate, dated January 24, 2000 (annexed as Ex. A (second) to Am. Compl.).
But this document is irrelevant to the claims here, which involve
outgoing correspondence. In addition, the Court is unaware of
any case suggesting that the Uniform Commercial Code or the common law of
contracts governs the relationship between inmates and correction
officers with respect to the transmission of mail. Clearfield Trust
Co. v. United States, 318 U.S. 363 (1943), a case cited by Brown in
various submissions, is irrelevant because Clearfield Trust was
a case brought by the United States to recover for a payment on a check
that had been fraudulently endorsed, id. at 364-65. It says
nothing about whether the United States has waived its sovereign immunity
with respect to a suit regarding mail-related dealings between an inmate
and prison officials.
Finally, because the claim made by Brown is for more than $10,000,
jurisdiction over any claim even properly brought under a contract theory
would exist only in the United States Court
of Federal Claims, see 28 U.S.C. § 1491, not a
district court. See, e.g., Adeleke. 355 F.3d at 151-52.
B. Claims Against the Officers in Their Individual Capacities
While the point is contested by defendants, see Def. Mem. at
12-20, the Court will assume arguendo that Brown's allegations
against Jarama and Haas in their individual capacities state a
constitutional claim for damages under Bivens. See
403 U.S. at 397. A Bivens action filed by an inmate in federal
court concerning prison conditions, however, may only proceed after the
inmate has exhausted all available administrative remedies. See
42 U.S.C. § 1997e(a); see also Order at 4-6. The PLRA
No action shall be brought with respect to prison
conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility
until such administrative remedies as are
available are exhausted.
42 U.S.C. § 1997e(a). Accordingly, a prisoner "must pursue his
challenge to the conditions in question through the highest level of
administrative review prior to filing his suit." Flanagan v.
Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002); see also
Porter v. Nussle, 534 U.S. 516
, 524 (2002) ("All `available'
remedies must now be exhausted; those remedies need not meet federal
standards, nor must they be `plain, speedy, and effective.'" (citations
omitted)). The Supreme Court has clarified that "PLRA's exhaustion
requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong." Porter, 534 U.S.
at 532. The PLRA's exhaustion requirement applies to actions brought
under Bivens, Id. at 524; accord Owusu v. Fed.
Bureau of Prisons, 2003 WL 68031, at *1 (S.D.N.Y. Jan. 7, 2003)
(inmate must exhaust all
remedies under the BOP's Administrative Remedy Program prior to
filing a Bivens claim); Phillips v. Carrasquillo,
268 F. Supp.2d 127, 129 (D. Conn. 2002) (same); Indelicato v.
Suarez, F. Supp.2d 216, 218-19 (S.D.N.Y. 2002) (same).
The exhaustion procedures under the FTCA and the PLRA differ, and
"fulfillment of one does not constitute satisfaction of the other."
Owusu, 2003 WL 68031, at *2 (citations omitted).
Compare 28 C.F.R. § 543.30-.32 (exhaustion procedure for
FTCA claims), with 28 C.F.R. § 542.10-.19 (exhaustion
procedure for claims governed by the PLRA). Thus, whether or not Brown
has exhausted his administrative remedies under the FTCA is irrelevant to
the determination of whether he exhausted his remedies for the purposes
of filing suit against Jarama and Haas under Bivens.
The BOP's Administrative Remedy Program, 28 C.F.R. § 542.10-.19,
requires an inmate to seek administrative relief through its four-step
grievance and appeal procedure. See Owusu, 2003 WL 68031, at *2
n.2; Indelicato, 207 F. Supp.2d at 218-19. First, an inmate
must present the issue of concern to prison staff, who must attempt to
resolve the issue informally. 28 C.F.R. § 542.13(a). Second, if the
issue has not been resolved informally, the inmate must file an
Administrative Remedy Request with the Warden within 20 calendar days of
the alleged event. Id. § 542.14(a). The Warden must then
respond within 20 days. Id. § 542.18. Next, the inmate must
appeal the Warden's decision to the Regional Director within 20 days.
Id. § 542.15(a). The Regional Director has 30 days to
respond. Id. § 542.18. Finally, the inmate must appeal the
decision of the Regional Director to the General Counsel within 30 days.
Id. § 542.15(a). The General Counsel's response is due
within 40 days. Id. § 542.18. If at any point the inmate
does not receive a response within the allotted time period, the inmate
may consider the absence of a
response to be a denial and proceed to the next level of review.
Id. The inmate's complaint is exhausted once the General
Counsel denies the final appeal. See id. § 542.15(a)
("Appeal to the General Counsel is the final administrative appeal.");
accord Phillips. 268 F. Supp.2d at 129 ("Only after a decision
has been rendered at each level can an inmate satisfy the exhaustion
requirement."); Indelicato, 207 F. Supp.2d at 219 ("The inmate
may file an action in federal court only after these four steps have been
The Administrative Remedy Program allows "an inmate to seek formal
review of an issue relating to any aspect of his/her own confinement."
28 C.F.R. § 542.10(a). The only exceptions provided by the regulations
are for tort claims, Inmate Accident Compensation claims, and Freedom of
Information Act or Privacy Act requests, where statutorily-mandated
exhaustion procedures are in place. Id. § 542.10(c). Thus,
the administrative review process outlined above was "available" to Brown
for purposes of the PLRA. It is irrelevant that the Administrative Remedy
Program does not allow an inmate to seek monetary relief. See
Rejection Notice. As stated in Booth v. Churner, 532 U.S. 731,
740-41 (2001), the PLRA still requires an inmate to exhaust his remedies
even though he seeks money damages not available in those proceedings.
Here, it is undisputed that Brown filed a Request for Administrative
Remedy on the appropriate form on February 7, 2000 complaining that
Jarama had opened Brown's outgoing mail and had refused to return
portions of the correspondence. Am. Compl. ¶ 31; Johnson Decl. ¶¶
5-6. Although Brown's Request for Administrative Remedy was denied by
Warden Hasty within four days, Am. Compl. ¶ 35; Johnson Decl. ¶
7, Brown did not appeal this decision to the Regional Director or to the
General Counsel, see Johnson Decl. ¶¶ 3-5, as is required
under the Administrative Remedy Program, 28 C.F.R. § 542.15(a).
Brown executed a second Request for Administrative Remedy on March 28,
2000 seeking monetary relief for injuries caused by the actions of both
Jarama and Haas. See Second Request; Johnson Decl. ¶ 8. The
last event complained of in Brown's second request occurred on February
25, 2000. See id. (complaining that Haas transferred
Brown to another unit when presented with Warden Hasty's letter regarding
the provision of stamps to indigent inmates); Johnson Decl. ¶ 21
(Brown was transferred to another unit on February 25, 2000). Under the
Administrative Remedy Program, an inmate is required to file a Request
for Administrative Remedy within 20 days of the alleged event.
28 C.F.R. § 542.14(a). Brown's second request failed to comply with this
requirement. In any event, even if this request could be considered
timely, Brown again failed to appeal Warden Hasty's rejection of his
request, see Johnson Decl. ¶¶ 3-5, as required by the
Administrative Remedy Program, 28 C.F.R. § 542.15(a). Brown has
offered evidence that, in addition to the two Request for Administrative
Remedy forms, he also submitted an "Inmate Request to Staff Member" form
to Warden Hasty on February 11, 2000 regarding Haas's failure to provide
him with postage. See Inmate Request.
This submission does not show exhaustion, however, since submitting
such a form is not part of the Administrative Remedy Program except
insofar as it constitutes an attempt at informal resolution, see
28 C.F.R. § 542.13(a). See Quinn v. Menifee, 2000 WL 680360,
at *3 (S.D.N.Y. May 25, 2000) (correspondence does not constitute
exhaustion merely because it reaches the BOP since inmate "is required to
exhaust the remedies in accordance with the procedures set out in the BOP
regulations"). In any event, Brown undertook none of the appeals mandated
by the Administrative Remedy Program.
In failing to advance his complaints past the initial level of review,
Brown has failed to exhaust his administrative remedies prior to filing
suit in federal court with respect to his Bivens claims.
Brown's proposed second amended complaint does not add any new factual
allegations suggesting that he properly exhausted his claims. Thus, leave
to amend the complaint should be denied as fufile and summary judgment
should be granted in favor of Jarama and Haas.
For the foregoing reasons, Brown's motion to amend his complaint a
second time should be denied and judgment should be entered in favor of
the defendants dismissing the amended complaint.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from service of
this Report and Recommendation to file any objections. See also
Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with copies sent
to the Hon. Kimba M. Wood, 500 Pearl Street, New York, New York 10007,
and to the undersigned at 40 Centre Street, New York, New York 10007. Any
request for an extension of time to file objections must be directed to
Judge Wood. If a party fails to file timely objections, that party will
not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Am, 474 U.S. 140