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United States District Court, S.D. New York

May 11, 2004.


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


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.


  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 Civ. 5821.) The case was reassigned from Judge Lynch to Judge Castel on November 7, 2003. (Dkt. 13.)



  As stated above, Baez claims that Defendants violated his constitutional rights under the Eighth Amendment*fn6 by showing deliberate indifference to his serious medical condition. Defendants have moved to dismiss this constitutional claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

  A. Rule 12(b)(1)

  Defendants initially argue that Baez's failure to exhaust all available administrative remedies for his constitutional claim deprives this Court of subject matter jurisdiction, pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("PLRA"), and that his claim must therefore be dismissed under Fed.R.Civ.P. 12(b)(1). (See Def. Mem. at 1-2 (citing 42 U.S.C. § 1997e(a)).) This argument, however, is no longer tenable, as, subsequent to the submission of Defendants' motion to dismiss and memoranda of law, the Second Circuit made clear that "failure to exhaust administrative remedies is not a jurisdictional predicate" under the PLRA. Richardson v. Goord, 347 F.3d 431, 433 (2d Cir. 2003). I therefore recommend that Defendants' motion to dismiss the constitutional claim for lack of subject matter jurisdiction be denied.

  B. Rule 12(b)(6)

  Nonetheless, the exhaustion issue should "be resolved as early as possible by the court," Scott v. Gardner, 287 F. Supp.2d 477, 484 (S.D.N.Y. 2003) (quoting McCoy v. Goord, 255 F. Supp.2d 233, 248 (S.D.N.Y. 2003)), and a court must dismiss a complaint where the plaintiff has not satisfied the PLRA's exhaustion requirement. See, e.g., McCoy, 255 F. Supp.2d 233. Although Defendants' argument that Baez has not fully exhausted his claim does not implicate Rule 12(b)(1), that argument may still be properly considered under Rule 12(b)(6). See Singleton v. Perilli, No. 03 Civ. 2271 (DC), 2004 WL 74238, at *1 n.2 (S.D.N.Y. Jan. 16, 2004) (where defendant incorrectly sought dismissal under Rule 12(b)(1) as well as Rule 12(b)(6), the court decided the failure to exhaust issue in the context of Rule 12(b)(6)); Sharabura v. Taylor, No. 03 Civ. 1866 (JG), 2003 WL 22170601, at *2 (E.D.N.Y. Sept. 16, 2003) (in employment discrimination case, where defendant incorrectly sought dismissal under Rule 12(b)(1) for failure to exhaust, the court construed defendant's motion as one under Rule 12(b)(6)); see also McCoy v. Goord, 255 F. Supp.2d at 249 (where failure to exhaust is evident on the face of the complaint, a court may decide the issue under Rule 12(b)(6)).

  1. Applicable Legal Standard

  In deciding a motion under Rule 12(b)(6), the Court accepts all factual allegations in the complaint as true and "draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (citing Albright v. Oliver, 510 U.S. 266, 268 (1994)); see Alien v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); Johnson v. Wright, 234 F. Supp.2d 352, 356 (S.D.N.Y. 2002). The issue is not whether the plaintiff will ultimately prevail, but whether his claim, as pleaded, is sufficient to afford him the opportunity to proceed on the evidence. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). A claim may not be dismissed under Rule 12(b)(6) unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

  The mandate that a pro se plaintiff's complaint be construed liberally (See n.4, supra) makes it appropriate for the Court to consider the factual allegations in the plaintiff's opposition materials to supplement the allegations in the complaint. See Johnson v. Wright, 234 F. Supp.2d at 356 (considering a pro se prisoner's factual allegations in briefs as supplementing his complaint); Woods v. Goord, No. 01 Civ. 3255 (SAS), 2002 WL 731691, at *1 n.2 (S.D.N.Y. Apr. 23, 2002) (same); Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan 26, 1999) ("In general, a court may not look outside the pleadings on a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum.") (internal quotation marks and citations omitted); see also Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001).

  2. Failure to Exhaust Administrative Remedies

  All claims of misconduct regarding prison conditions must be exhausted before they can be raised in this Court. The PLRA provides that "[n]o 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). The Supreme Court has held that this exhaustion requirement "applies to all inmate suits about prison life, whether they involve general or particular episodes, and whether they allege excessive force or some other wrong." See Porter v. Nussle, 534 U.S. 516, 532 (2002). Moreover, a claim of deliberate indifference regarding medical care is a claim "with respect to prison conditions" under § 1997e and, as such, must be exhausted under the PLRA. See Wagnoon v. Johnson, No. 02 Civ. 10282 (RCC) (GWG), 2004 WL 583764 (S.D.N.Y. Mar. 23, 2004) (dismissing deliberate indifference claim because inmate had failed to exhaust administrative remedies and the claim was thus barred by the PLRA).

  The Bureau of Prisons Administrative Remedy Program provides a procedure which 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. To exhaust a claim, an inmate must first attempt to resolve his complaint by presenting the issue informally to the staff of the facility. If that effort is unsuccessful, the inmate may submit a written Administrative Remedy Request to the Warden, on a standard form, within 20 days of the incident that is the subject of the complaint. If that request is denied, the inmate may, within 20 days of the denial, submit an appeal to the appropriate Regional Director, again on a standard form. Finally, if that appeal is denied as well, the inmate may appeal to the General Counsel's office, within 30 days of the Regional Director's decision. See § 542.10 et seq.; see also Joost v. Menifee, No. 03 Civ. 1608 (DLC), 2003 WL 22977499, at *2 (S.D.N.Y. Dec. 19, 2003). A prisoner must completely exhaust the administrative remedies to the highest level for each claim he seeks to present. See Santiago v. Meinsen, 89 F. Supp.2d 435, 440 (S.D.N.Y. 2000). Further, a claim must be completely exhausted prior to commencing a suit; it is not enough to take steps towards exhaustion, or even to exhaust a claim, during the pendency of the case. See, e.g., Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001). Under Section 1997e, all institutional remedies must be pursued, even if the prisoner is ultimately time-barred from pursuing the administrative process or is seeking a remedy that cannot be awarded in the administrative proceeding. See Santiago, 89 F. Supp.2d at 440; see also Booth v. Churner, 532 U.S. 731, 736-37 (2001) (requiring an inmate to exhaust claims through all available proceedings, even those that could not provide the relief sought); Cruz v. Jordan, 80 F. Supp.2d 109, 117 (S.D.N.Y. 1999) (even though monetary damages sought by the plaintiff were not available in the administrative proceeding, the exhaustion requirement remained applicable).

  Because dismissal on the basis of failure to exhaust is mandatory, Baez's deliberate indifference claim can only proceed in this Court if he exhausted all available administrative remedies with respect to that claim, including all appellate remedies provided within the BOP system, prior to filing suit. See Porter, 534 U.S. at 524 (citing Booth, 532 U.S. at 739); Neal, 267 F.3d at 122-23; see also Woods, 2002 WL 731691, at *11;Mendez v. Artuz, No. 01 Civ. 4157 (GEL), 2002 WL 313796, at *1 (S.D.N.Y. Feb. 27, 2002).

  Defendants argue that Baez's deliberate indifference claim should be dismissed because Baez "has not alleged, because he cannot, that he attempted to exhaust his remedies under the [Administrative Remedy Program]." (Def. Mem. at 6.) In his complaint, Baez contends, and Defendants do not dispute, that he has submitted many copouts to the MCC personnel regarding his allegedly inadequate medical care. (See Compl. at 2.) This informal attempt to resolve the dispute, however, does not satisfy the requirements of the Administrative Remedy Program for federal prisoners. (See supra at 8; see also Def. Mem. at 6-7).

  Indeed, Baez concedes that he did not fully exhaust his administrative remedies prior to filing suit, stating: "Yes, this is true to a certain degree. . . ." (Baez Mem. at 2.) Baez, however, claims that his failure to exhaust is not his fault, but is instead attributable to his counselor's failure to explain the grievance process to him, following the filing of his BP-8*fn7 grievance form, as well as the counselor's failure to respond after Baez filed that form. (See id. at 2-3.) Even assuming, however, that the alleged misconduct of Baez's counselor resulted in some delay in the processing of his grievance after he filed his initial BP-8 form, that would not excuse Baez's failure to make that initial filing until many months after he had already submitted his complaint in this action. (See id. at 2.) Where external forces have prohibited a plaintiff from exhausting his administrative remedies after reasonable effort, a court may be precluded from dismissing the complaint for failure to exhaust, see, e.g., O'Connor v. Featherston, No. 01 Civ. 3251 (HB), 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002) (collecting cases where motions to dismiss based on failure to exhaust were denied because external forces or conduct of prison officials prevented plaintiff from exhausting administrative remedies), but, here, Baez makes no assertion that official misconduct or some other obstacle prevented him from pursuing the initial step of the administrative remedy process before he sought recourse in this Court. Further, even if, as Baez claims, he has taken at least some steps to exhaust available administrative remedies during the pendency of this action (See Baez Mem. at 2-4), that is insufficient to satisfy the PLRA's exhaustion requirement. See Neal, 267 F.3d at 122-23 (dismissal for failure to exhaust is proper even where steps toward exhaustion were taken, and certain claims exhausted, during the pendency of the case); see also Richardson v. Romano, No. 00 Civ. 1076 (LEK) (DEP), 2003 WL 1877955, at *2 (N.D.N.Y. Mar. 31, 2003) (following the Neal holding); By as v. State of New York, No. 99 Civ. 1673 (NRB), 2002 WL 1586963, at *3 (S.D.N.Y. July 17, 2002) (plaintiff's efforts to pursue formal grievance procedures after filing suit did "not cure his failure to exhaust administrative remedies") (citing Neal, 267 F.3d at 117-18). Complete pre-suit exhaustion is required even though dismissing a case and requiring a plaintiff to refile after exhaustion may be, in individual cases, "judicially inefficient." See Neal, 267 F.3d at 123. This is because "allowing prisoner suits to proceed, so long as the inmate eventually fulfills the exhaustion requirement, undermines Congress' directive to pursue administrative remedies prior to filing a complaint in federal court." Id.

  As it is clear that Baez did not exhaust his administrative remedies with regard to his deliberate indifference claim prior to filing this action, that claim should be dismissed. See Neal, 267 F.3d at 121-23; see also McCoy v. Goord, 255 F. Supp.2d 233, 249-52 (S.D.N.Y. 2003) (where it appears from the face of the complaint that a plaintiff concedes lack of exhaustion, or non-exhaustion is otherwise apparent, a court may decide the issue on a motion to dismiss); Burns v. Moore, No. 99 Civ. 0966 (LMM) (THK), 2002 WL 91607, at *3 (S.D.N.Y. Jan. 24, 2002) (granting defendant's motion to dismiss for failure to exhaust administrative remedies based on the pleadings and accompanying affidavits). I recommend, however, that Baez's deliberate indifference claim be dismissed without prejudice. See, e.g., Flores v. New York City Health and Hosps. Corp., No. 02 Civ. 6058 (DC), 2003 WL 21709512, at *2 (S.D.N.Y. July 22, 2003) ("If a claim is to be dismissed for failure to exhaust, dismissal is usually without prejudice, because failure to exhaust is ordinarily a temporary, curable, procedural flaw.") (internal quotation marks and citation omitted). Although Baez claims to have already completed several of the necessary steps towards exhausting his administrative remedies (See Baez Mem. at 2-4), the Court has not been apprised of the current status of Baez's administrative claims. If Baez has now succeeded in exhausting all of his administrative remedies, then, provided his claims are not time-barred, he should be allowed to refile his case. See Neal, 267 F.3d at 123 (where plaintiffs complaint was properly dismissed without prejudice for failure to exhaust administrative remedies prior to his commencement of the action, he could "simply re-file his pleadings, if so advised, after fully complying with the exhaustion requirement"). Even if Baez has failed to meet established deadlines for pursuing all administrative remedies, he may still be able to exhaust those remedies in some circumstances, see 28 C.F.R. § 542.15 & 542.14(b) (allowing a prisoner to file a late administrative remedy request in certain instances, if "the inmate demonstrates a valid reason for delay"), and, if he can do so, he should then be permitted to return to this Court in a timely manner.

  Thus, I recommend that Baez be allowed the option of attempting to exhaust his administrative remedies, if he has not already done so. If, however, he is unable to exhaust those remedies, he should then be precluded from refiling his complaint in this Court. See Benjamin v. Goord, No. 02 Civ. 1703 (NRB), 2002 WL 1586880, at *2 n.5 (S.D.N.Y. July 17, 2002) (citing Indelicate, 207 F. Supp.2d 216 (Bivens case dismissed with prejudice where a claim could no longer be administratively exhausted)).


  Although it is not clear that Baez intends to pursue a common-law tort claim against Defendants,*fn8 Baez's complaint and other papers, when liberally construed, arguably raise a tort claim of negligence for failure to provide adequate medical treatment. (See, e.g., Compl. at 4 & 5.) Any such claim is vague and not well pleaded, but, in any event, would be barred by the FTCA, and thus subject to dismissal under Fed.R.Civ.P. 12(b)(1).

  The FTCA allows a waiver of the federal government's sovereign immunity in certain instances, but requires that suit be brought against the United States itself, not against individual defendants or agencies. See 28 U.S.C. § 2679(a) & (b); see also Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991) ("[A]n action [under the FTCA] must be brought against the United States rather than an agency thereof."); Williams v. M.C.C. Institution, No. 97 Civ. 5352 (LAP), 1999 WL 179604, at *3 (S.D.N.Y. Mar. 31, 1999). Government employees are immune from common-law tort suits when acting in the course of their employment. See Rivera v. United States, 928 F.2d 592, 608-609 (2d Cir. 1991). As Baez has not named the United States in his suit, but rather individuals acting within the scope of their federal employment, his negligence claim should be dismissed for lack of subject matter jurisdiction. See, e.g., Williams, 1999 WL 179604, at *3.

  Further, even if Baez were to attempt to replead his complaint to add the United States as a defendant on a negligence claim, the claim would still be subject to dismissal because, once again, Baez has not fully exhausted his administrative remedies. See id. at *4. "The FTCA requires the exhaustion of administrative remedies before an individual can bring suit in district court." Id. Exhaustion under the FTCA, including presentation to and rejection by the appropriate federal agency, is required before a court may assert subject matter jurisdiction over an action. See 28 U.S.C. § 2401(b) & 2675; see also Williams at *4. Further, Baez bears the burden of pleading compliance with the statutory exhaustion requirements. See, e.g., In re Agent Orange Product Liability Litig., 818 F.2d 210, 214 (2d Cir. 1987) (stating that, in a tort claim against the United States, "[t]he burden is on the plaintiff to both plead and prove compliance with the statutory requirements").

  Here, in order to exhaust administrative remedies, Baez would have been required to submit his tort claim to the BOP Regional Office, and that office would have had to reject his claim. See 28 C.F.R. § 542.10, 543.30, 543.31(b) & (c). Baez, however, does not allege that he made a submission to the BOP Regional Office regarding his negligence claim before filing this action, let alone that he pursued all available administrative remedies on this claim. Moreover, Defendants offer an affidavit stating that a search of prisoner tort claim filings has revealed that Baez has not instituted any formal administrative action with the Bureau of Prisons. (See Declaration of Adam M. Johnson, executed June 27, 2003, at 3.)*fn9

  Accordingly, I recommend that Baez's negligence claim be dismissed for lack of subject matter jurisdiction. Again, I recommend dismissal of this claim without prejudice, for the same reasons as noted above with regard to the constitutional claim (See supra at 12).


  For all of the foregoing reasons, I recommend that all of Baez's claims against Defendants be dismissed, without prejudice. As Baez has not served any additional parties other than defendants Parks and Glover, and as he has, in fact, acknowledged that Parks and Glover are the only defendants he wishes to pursue in this action (See n.2, supra), I recommend that the entire complaint be dismissed, without prejudice to Baez's right to replead, if he is first able to exhaust all of his administrative remedies.

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, United States Courthouse, 500 Pearl Street, Room 2260, New York, New York, 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

  Respectfully Submitted,

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