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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 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.


  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 9, 2003, the Court stayed discovery pending a decision on the dispositive motion. (Dkt. 18.)



  ____As stated above, Baez claims that the Moving Defendants violated his constitutional rights under the Eighth Amendment*fn7 by showing deliberate indifference to his serious medical condition and by using excessive force against him. The Moving Defendants have moved to dismiss these constitutional claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

  ____A. Rule 12(b)(1)

  The Moving Defendants initially argue that Baez's failure to exhaust his administrative remedies regarding his constitutional claims deprives this Court of subject matter jurisdiction, pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("PLRA"), and that his claims must therefore be dismissed under Fed.R.Civ.P. 12(b)(1). (See 1/15/03 Def. Mem. at 2 (citing 42 U.S.C. § 1997e(a)).) This argument, however, is no longer tenable, as, subsequent to the submission of the Moving 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 the Moving Defendants' motion to dismiss the constitutional claims 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 the Moving Defendants' argument that Baez has not exhausted his claims 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. West Point-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.6, 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, claims for deliberate indifference regarding medical care are claims "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 ("BOP") 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). 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 id; 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 a failure to exhaust is mandatory, Baez's deliberate indifference and excessive force claims can only proceed in this Court if he has exhausted all available administrative remedies with respect to those claims, including all appellate remedies provided within the BOP system. See Porter, 534 U.S. at 524 (citing Booth, 532 U.S. at 739); 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).

  The Moving 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]." (1/15/03 Def. Mem. at 8.) Baez contends, and the Moving Defendants do not dispute, that he has submitted "many copouts"*fn8 to the MCC personnel regarding his allegedly inadequate medical care. (Memorandum of Law in Support of Plaintiff's Response to Defendants' Notice of Motion to Dismiss, dated Apr. 20, 2003 ("Baez Mem."), at 3.) This informal attempt to resolve the dispute, however, would, at best, satisfy only the first step of the Administrative Remedy Program for federal prisoners. (See supra at 8; see also 5/15/03 Def. Mem. at 2).

  Indeed, Baez does not even attempt to argue that he has fully exhausted his administrative remedies, instead apparently taking the position that, since his claim is one involving deliberate indifference, exhaustion was not required prior to bringing his claim in federal court. (See Baez Mem. at 3.) Baez offers no authority in support of this position, and, in fact, the current case law is to the contrary. Specifically, in Porter v. Nussle, 534 U.S. 516, 532 (2002), the Supreme Court held that the exhaustion requirement of the PLRA applies to any actions brought with respect to "prison conditions" that are filed pursuant to federal law, including those filed under Bivens. Baez's deliberate indifference and excessive force claims are therefore both covered by the exhaustion requirement. See id.

  Although not raised in his complaint or opposition memorandum,*fn9 Baez also appears to argue, in a motion for an extension of time received by my chambers on March 19, 2003, that the PLRA's exhaustion requirements do not apply to him because he is a pretrial detainee and not a convicted prisoner. This argument, however, is without merit, as the PLRA's strict exhaustion requirement does indeed apply in actions brought by pretrial detainees. See United States v. Al-Marri, 239 F. Supp.2d 366, 367-68 (S.D.N.Y. 2002) (pretrial detainee required to exhaust administrative remedies under PLRA before filing suit); Rivera v. State of New York, No. 96 Civ. 7697 (RWS), 1999 WL 13240, at *4-5 (S.D.N.Y. Jan. 12, 1999) (finding pretrial detainee's claim barred under PLRA for failure to exhaust administrative remedies); see also Samuels v. Jackson, No. 97 Civ. 2420 (MBM), 1999 WL 92617, at *2 n.3 (S.D.N.Y. Feb. 22, 1999) (though decided on other grounds, the court indicated that pretrial detainee's failure to exhaust administrative remedies under PLRA "would in itself probably warrant dismissal").

  Further, Baez has not asserted or offered any evidence that he was somehow prohibited from exhausting his administrative remedies after reasonable effort, which may preclude a court from dismissing based on exhaustion grounds. 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).

  As it is clear that Baez has not exhausted his administrative remedies with regard to his claims of deliberate indifference and excessive force, those claims should be dismissed. See 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 and excessive force claims be dismissed without prejudice. See, e.g., Flores v. New York City Health and Hasps. 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 the date by which Baez was supposed to file a formal administrative remedy request has passed, see 28 C.F.R. § 542.14(a) (requiring prisoner to file such a request within 20 days of the incident giving rise to the complaint), Baez may be able to file a late administrative remedy request upon a sufficient showing of cause for the delay, see 28 C.F.R. § 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"). Thus, I recommend that Baez be allowed the option of attempting to file a late administrative remedy request, if he believes he can demonstrate a valid reason for his delay. Should his request for late consideration be denied, Baez 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 Indelicato, 207 F. Supp.2d 216 (Bivens case dismissed with prejudice where a claim could no longer be administratively exhausted)). II. BAEZ'S TORT CLAIM

  Baez's complaint and other papers, when liberally construed, arguably raise a tort claim of negligence against the Moving Defendants for inadequate medical treatment. (See, e.g., Compl. at 3 & 4.) 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 River a 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 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 any sort of submission to the BOP Regional Office regarding his negligence claim, let alone that he pursued all available administrative remedies on this claim. Moreover, the Moving Defendants offer an affidavit stating that a search of prisoner filings has revealed that Baez has not instituted any formal administrative action of any kind with the Bureau of Prisons. (See Declaration of Patricia M. Gotts, executed Jan. 10, 2003, at 2.)10

  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 claims (see supra at 11-12).


  For all of the foregoing reasons, I recommend that all of Baez's claims against the Moving Defendants be dismissed, without prejudice.

  Further, because the same pleading defects described above would necessarily apply to Baez's claims against the remaining defendants, who have never been specifically named or served with process (see n.2, supra), I recommend that the claims against them be dismissed as well, also without prejudice. Thus, I recommend that the entire complaint be dismissed, without prejudice to Baez's right to replead, if he is first able to exhaust 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 10 The declaration of Ms. Gotts is attached to the Moving Defendants' Notice of Motion to Dismiss as Exhibit C. 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. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Hermann, 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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