The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
Plaintiff Rodney Thomas brings this action for alleged
violations of the Fifth and Eighth Amendments to the
Constitution, the Due Process Clause of the Fifth Amendment to
the Constitution, and the Rehabilitation Act of 1973, Section 504,
as amended, 29 U.S.C.A. § 794, and for various common law
torts. Plaintiff is a federal pre-trial detainee held at the
Metropolitan Correctional Center ("MCC") in New York City. He is
legally blind, and has been informed that his vision will not
return. He alleges that his blindness was caused by defendants'
acts and omissions with respect to his medical care while in
federal custody. Specifically, he alleges the unlawful
confiscation at the time of his arrest, and the withholding
thereafter, of medications necessary for the treatment of his
glaucoma and for the preservation of his eyesight, and deliberate
indifference to his need for these medications. This matter comes
before the court on a motion by the named defendants to dismiss
the complaint, on grounds of lack of personal and subject matter
jurisdiction, and failure to state a claim, or, in the
alternative, for summary judgment.*fn1 For the following
reasons, defendants' motion to dismiss is granted.
Plaintiff was diagnosed with glaucoma on March 8, 2000, and was
prescribed a combination of eye drops. The drops were to be taken
daily, with a ten-minute interval between each type of drop.
Plaintiff was arrested and taken into custody in California on
September 7, 2001, at which time, in addition to his glaucoma, he
suffered from Type II diabetes, and was being treated for high
blood pressure.*fn2 Plaintiff alleges that he had followed
the prescribed regimen since March 8, 2000, and that at the time
of his arrest, his vision was still within the normal range.
Plaintiff alleges a catalog of actions and omissions by
defendants in connection with plaintiff's health and disability,
starting with his arrest. These include the confiscation of his
glaucoma medication at the time of his arrest, and the prolonged
failure to provide him with such medication; the loss of
plaintiff's medical records; failure to administer plaintiff's
glaucoma medication properly, in violation of physicians' instructions;
failure to ensure medical care for plaintiff; assignment of
plaintiff to a top bunk, from which he fell, despite his
authorization to sleep in a bottom bunk; failure to provide
consistent monitoring of plaintiff's blood sugar levels, or to
meet his need for a Type II diabetic diet; denial of access to
nitroclycerine or other medication or care for his heart
condition; derogatory comments relating to his disability; the
failure, as of the filing of the original complaint,*fn3 to
assign an inmate assistant to plaintiff. These acts and omissions
are alleged to have occurred in a variety of locations, through
which plaintiff passed from the time of his arrest, including Los
Angeles, where the arrest took place, and MCC and the
Metropolitan Detention Center ("MDC"), the two New York
facilities at which plaintiff has been held.*fn4
Plaintiff arrived at MCC on or about early October, 2001.
Plaintiff alleges that by this time he had been "virtually
without his glaucoma medication for a month," and that "[o]n
those occasions when the glaucoma medication was obtained and
administered, proper care was rarely taken to follow the
requisite sequence and time intervals in applying the eye drops."
As an example, a physician's assistant employed by the federal
government on one occasion "handed Mr. Thomas his second eye drop
with a missing spout which caused the medication to pour into Mr.
Thomas's eye and brought on an intense burning sensation. When
Mr. Thomas asked permission to rinse his eye out in the kitchen,
he was denied and instructed to rinse his eye out in the shower."
On January 4, 2002, a doctor at New York Eye & Ear Clinic
indicated on a Consultation Sheet sent to MCC that ". . . Patient
did not receive meds at facility today. Patient high risk for
blindness w/no meds . . ."
On May 20, 2002, plaintiff was transferred from MCC to the
psychiatric unit of the MDC in Brooklyn, where he stayed for
approximately two weeks, before being returned to MCC. Plaintiff
alleges that during those two weeks, he received no medication to
relieve his optic pressure. Rather, he alleges, staff at MDC
handed him empty eye drop bottles for three consecutive days.
Plaintiff alleges that during that two-week period he experienced
a popping sensation in his right eye, after which his eye would
not stop watering, and the pain increased severely. Plaintiff
alleges that his request that MDC staff arrange a visit to New
York Ear & Eye Clinic was denied.
On the day that he was finally returned to MCC, plaintiff
alleges that a physician's assistant at MCC brought him the same
medication that had been empty over a week previously at MDC.
Plaintiff also alleges that on or about December 2002, when he
began experiencing chest pains, he was told by federal employees
at MCC that no nitroglycerine tablets were available, that there
was no record of his ever having been given nitroglycerine, and
that he would be required to find a used bottle of nitroglycerine to
prove to staff that he had been given such medicine before. The
When Mr. Thomas did not receive any nitroglycerine,
he found himself on the floor. When his fellow
inmates complained to staff, they were threatened.
One staff member was heard singing, as Mr. Thomas lay
on the floor, `I've fallen and I can't get up.'
Upon his arrival at the outside hospital emergency
room, the treating physician expressed anger and
disbelief at the time elapsed before Mr. Thomas was
transported, stating in substance: `This man had
chest pains before last night and you bring him in
Plaintiff also alleges that during his time at MCC, he has been
forced to wear the same eye patch for longer than ten days,
despite the fact that MCC staff have been directed by physicians
to make certain that it is changed every other day.
Plaintiff seeks declaratory and injunctive relief, as well as
compensatory and punitive damages. His causes of action can be
grouped as follows:
I. Fifth/Eighth Amendment denial of medical care. Eight
named Drug Enforcement Administration ("DEA") agents, Gregory
Parks, Mark Glover, and Ulises Vargas, are alleged, from the time
of plaintiff's arrest on September 7, 2001, when they confiscated
his medicine, and refused to respond to plaintiff's appeals that
it be returned to him, to have acted with deliberate indifference
to plaintiff's serious medical needs, resulting in plaintiff's
permanent loss of sight. In addition, plaintiff alleges the
failure of defendants regularly to monitor plaintiff's blood
sugar levels and to provide a diet which controls plaintiff's
Type II Diabetes, and the denial of plaintiff's access to
nitroglycerine and/or other medicines or care procedures
appropriate for the treatment of plaintiff's heart condition.
This claim is brought pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388,
91 S.Ct. 1999 (1971).
II. Medical malpractice, gross negligence in supervising
subordinates, negligence in failing to provide reasonable and
adequate medical care, and intentional and/or negligent
infliction of emotional distress. This cause of action is based
on the allegations that underlie the claim of denial of medical
III. Fifth Amendment Procedural Due Process. Plaintiff alleges
that defendants "den[ied], ignor[ed] and stonewall[ed]"
plaintiff's verbal and administrative complaints and requests for
adequate medical care for his glaucoma, diabetes, blood pressure
and heart condition, made from the date of his arrest on
September 7, 2001. The complaint makes specific reference to
complaints communicated by plaintiff and his attorney in federal
criminal court proceedings, and complaints made verbally by
plaintiff to MCC and MDC staff (including defendants Parks,
Glover, and Vargas). This claim is brought pursuant to Bivens,
403 U.S. 388, 91 S.Ct. 1999 (1971).
IV. Rehabilitation Act. Plaintiff alleges a failure by the
Bureau of Prisons ("BOP"), MCC and MDC to provide plaintiff with
necessary medical care, and the required support mechanisms to insure that he would not be denied the benefits of
relevant services, activities and programs, or be subject to
discrimination by relevant bodies. Plaintiff alleges that none of
these defendants took steps to insure that his particularized and
unique medical needs, as a qualified individual with a
disability, were reasonably and adequately cared for, that he was
assigned an inmate assistant to assist him in participating in
the grievance process and in performing legal tasks to assist his
criminal attorney in defending him, in order to avoid unnecessary
discrimination and/or lack of access to the services available to
pre-trial detainees due to his status as a qualified individual
with a disability.
Subject Matter Jurisdiction
A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory or constitutional power to adjudicate it. Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000). If a
defendant challenges only the legal sufficiency of the
plaintiff's allegations, the court must take all facts alleged in
the complaint as true, and draw all reasonable inferences in
favor of the plaintiff. Robinson v. Gov't of Malaysia,
269 F.3d 133, 140 (2d Cir. 2001). In resolving a motion to dismiss for
lack of subject matter jurisdiction, the court may refer to
evidence outside the pleadings. Makarova, 201 F.3d at 113. A
plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists. Id.
Where the district court "relies solely ...