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BAEZ v. BUREAU OF PRISONS

May 11, 2004.

MIGUEL A. BAEZ, Plaintiff, -against- BUREAU OF PRISONS, WARDEN, METROPOLITAN CORRECTION CENTER MEDICAL PERSONNEL, BR. GLOVER, et al., Defendants


The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

REPORT AND RECOMMENDATION

Pro se plaintiff Miguel A. Baez ("Baez") brings this civil rights action under Bivens v. Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),*fn1 apparently alleging that defendants violated his constitutional rights and were negligent by failing to provide adequate treatment for his stomach condition during his incarceration as a pretrial detainee at Metropolitan Correctional Center ("MCC") in Manhattan. Regarding the alleged constitution violation, Baez claims that defendants subjected him to cruel and unusual punishment in contravention of the Eighth Amendment by showing deliberate indifference to his serious medical needs. He seeks monetary relief in the amount of $5,000,000.

Currently pending before the Court is a motion to dismiss by the only defendants who have appeared in this action — Gregory L. Parks, warden of the MCC ("Parks"), and Dr. Mark Glover ("Glover"), clinical director of the MCC (collectively, "Defendants").*fn2 Defendants proffer several grounds in support of their assertion that all claims against them should be dismissed: (1) that Baez has failed to exhaust available administrative remedies; (2) that sovereign immunity protects Defendants from constitutional claims against them in their official capacities; (3) that Baez has failed to assert specific allegations of misconduct against Defendants, and has further failed to state a claim for deliberate indifference; (4) that Defendants are protected by qualified immunity; and (5) that, to the extent Baez's complaint alleges a tort claim, the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), bars any such claim. (See Memorandum of Law in Support of the Named Defendants' Motion to Dismiss the Complaint, filed July 3, 2003 ("Def. Mem."), at 4-16.)

  As more fully set forth below, I recommend that Defendants' motion to dismiss be granted, and that the complaint be dismissed without prejudice, because Baez has failed to exhaust the administrative remedies available to him to seek redress on his constitutional claim, and because the FTCA bars him from asserting any tort claim.

 BACKGROUND

  A. Factual Background

  Baez's claims relate to the alleged failure of Defendants to provide adequate treatment for his preexisting stomach ailment while he was being held at the MCC. Specifically, Baez alleges that he was denied the proper prescription medication for his condition, even though Baez's private physician, Dr. Aviles, contacted "Dr. Glover and the medical person[n]el[] at MCC" to provide the facility with specific information regarding proper treatment and medication. (See Compl. at 4.) According to Baez, his stomach ailment, which he describes as "a bacteria in my body which causes me gastritis [] and ulcers of the stomach," is "easily treatable," and indeed had been successfully treated by Dr. Aviles, through prescribed medication, for six years prior to Baez's incarceration. (See id. at 5.)

  Baez states that, as a result of being denied proper medication, he has become emaciated, losing over 100 pounds, and weak, is constantly nauseated, and suffers from diarrhea. (See id. at 4-5.) MCC personnel purportedly only provided Baez with the proper medication twice since he was first incarcerated at the MCC on October 30, 2001. (See id. at 5.) According to Baez, "Dr. Glover's medical staff transported him, on two separate occasions, to an outside hospital for examinations that allegedly confirmed his condition. (See id.) Through analysis of Baez's blood, Dr. Glover and his staff also purportedly detected the bacteria causing Baez's affliction. (See id.) Additionally, Baez claims that, at one point, his untreated stomach ailment caused him to pass out, at which time he was transported to the hospital, where he spent nine days being treated. (See Baez Mem. at 10-11.)

  Baez alleges that he has sent numerous copouts*fn3 to the MCC personnel about his inadequate medical treatment (See Compl. at 2), and, further, that he has initiated and at least partially pursued the Bureau of Prisons ("BOP") grievance procedure (See Baez Mem. at 2-3), all to no avail.

  Baez's claims, liberally construed,*fn4 charge that: (1) Defendants acted with deliberate indifference to his medical needs in violation of his constitutional rights by failing to provide him with proper medical treatment for his stomach condition; and (2) Defendants were negligent in failing to adequately "attend[] to" Baez's stomach condition. (See Compl. at 4-5.)

  B. Procedural History

  Baez filed his complaint in this action on November 19, 2002 (Dkt. 1), and was granted permission to proceed in forma pauperis (Dkt. 2). The case was accepted by the Court (Lynch, J.) as related to another action initiated by Baez against Parks and other MCC personnel.*fn5 The case was initially referred to me for general pretrial supervision on March 26, 2003 (Dkt. 4), and was further referred for a report and recommendation as to dispositive motions on July 28, 2003. (Dkt. 8.)

  Defendants moved to dismiss the claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds listed above (See supra at 2), and further requested a stay of discovery pending a decision on the motion to dismiss. (Dkt. 5 & 6.) By Order filed July 18, 2003, the Court stayed discovery pending a decision on the dispositive motion. (Dkt. 19 of related matter Baez v. Parks, No. 02 ...


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