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BAEZ v. PARKS

May 11, 2004.

MIGUEL BAEZ, Plaintiff, -against- GREGORY L. PARKS, WARDEN, METROPOLITAN CORRECTION CENTER, et al, Defendants


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

REPORT AND RECOMMENDATION

TO THE HONORABLE P. KEVIN CASTEL, U.S.D.J.:

Pro se plaintiff Miguel Baez ("Baez") brings this civil rights action under Bivens v. Six 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 in treating a wrist injury he sustained during his incarceration as a pretrial detainee at the Metropolitan Correctional Center ("MCC") in Manhattan. Regarding the alleged constitutional violations, 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 and by using excessive force against him. 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 MCC, and corrections officer Salvador Santiago (collectively, the "Moving Defendants").*fn2 The Moving 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 Baez has failed to assert specific allegations of misconduct against the Moving Defendants, and has further failed to state a claim for either deliberate indifference or excessive force; (3) that the Moving Defendants are protected by qualified immunity; (4) 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; and (4) that the Moving Defendants are not responsible for any alleged medical misconduct by third-party independent contractors. (See Memorandum of Law in Support of the Named Defendants' Motion to Dismiss the Complaint, filed Jan. 15, 2003 ("1/15/03 Def. Mem."), at 2-3.)

  As more fully set forth below, I recommend that the Moving 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 claims, and because the FTCA bars him from asserting any tort claim.

  BACKGROUND

  A. Factual Background

  Baez's allegations relate to the treatment he received after being injured in an accident that took place at the MCC on February 13, 2002. (See Baez's Civil Rights Complaint, filed July 24, 2002 ("Compl."), at 3.) Baez states that, while attempting to climb down from an upper bunk in his holding area, he fell and fractured his wrist.*fn3 (See id. at 2) After the fall, Baez allegedly lost consciousness "for a minute or so," and was then escorted to the MCC's medical department, where X-rays were taken, revealing a fractured wrist. (Id.)

  Thereafter, Baez was placed in the "bullpen" for approximately three and one-quarter hours before being transported to a hospital*fn4 for further examination. (See id. at 3.) Baez was allegedly not given any medication for pain during his time in the bullpen, and handcuffs were used during his transportation to the hospital, which purportedly caused him "severe pain." (Id.) Once at the hospital, additional X-rays were taken, which, according to Baez, caused him further pain. (See id.) As a result of defendants' alleged "negligent handling" of Baez's broken wrist, the wrist became too swollen for a cast to be placed on it that day. (See id.) Baez was given an anti-inflammatory medication and returned to the MCC with his wrist wrapped in an ace bandage. (See id.)

  Three days after the accident, Baez was taken to an outside specialist,*fn5 where a cast was placed on his wrist. (See id.) Baez alleges that he continuously complained to MCC medical personnel about pain associated with his wrist, but the medical staff did not respond. (See id.) When the cast was removed in early April of 2002, Baez claims that his wrist was swollen and deformed. (See id.) A month after the removal of the cast, Baez was allegedly informed that surgery, including re-breaking the wrist, would be necessary to correct the deformity. (See id.)

  Baez's claims, liberally construed,*fn6 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 broken wrist; (2) defendants used excessive force in violation of his constitutional rights by placing him in handcuffs during transport; and (3) defendants were negligent in the treatment of his wrist. (See id. at 5.)

  B. Procedural History

  Baez filed his complaint in this action on July 24, 2002. (Dkt. 2.) On September 9, 2002, he applied to the Court for appointment of counsel. (Dkt. 4.) That application was denied without prejudice on September 26, 2002. (Dkt. 4.) The case was initially referred to me for general pretrial supervision on November 12, 2002 (Dkt. 7), and was further referred for a report and recommendation as to dispositive motions on March 17, 2003. (Dkt. 13.)

  The Moving 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. 9 & 10.) By submissions dated April 20 & 21, 2003, Baez opposed the motion to dismiss and for a stay of discovery. By Order dated June ...


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