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United States District Court, S.D. New York

June 24, 2004.


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 complaint continues:

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 here now?'
  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 care.

  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

  1. Rule 12(b)(1)

  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 on the pleadings and supporting affidavits, the plaintiff need only make a prima facie showing of jurisdiction." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994) [hereinafter Robinson].

  2. Sovereign Immunity

  Absent a waiver, sovereign immunity shields the federal government and its agencies from suit. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 1000 (1994). Sovereign immunity is jurisdictional in nature. Id. Indeed, the "terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." Id. (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770 (1941)).

  a. Bivens claims

  In a Bivens action, alleged victims of constitutional violations by federal officials may recover damages despite the absence of any statute specifically conferring such a cause of action. Robinson, 21 F.3d at 510. Such an action, however, must be brought against the federal officers in their individual capacities. Id. Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are barred under the doctrine of sovereign immunity, unless such immunity is waived. Id. In a Bivens claim, "public officials may be held responsible only to the extent that they caused the plaintiff's rights to be violated; they cannot be held liable for violations committed by their subordinates or predecessors in office." Leonhard v. United States, 633 F.2d 599, 621 n. 30 (2d Cir. 1980) (affirming dismissal of action where plaintiff had failed to allege that defendants participated personally in the alleged constitutional deprivation).

  b. Federal Tort Claims Act

  The Federal Tort Claims Act ("FTCA") waives the sovereign immunity of the United States for certain torts committed by federal employees. 28 U.S.C. § 1346(b). Section 1346(b) provides:

"[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."*fn5
  The Federal Employees Liability Reform and Tort Compensation Act of 1988 limits the relief available to people injured by government employees acting within the scope of their employment. For persons so injured, the Act provides that "[t]he remedy against the United States" under the FTCA "is exclusive of any other civil action or proceeding for money damages." 28 U.S.C. § 2679(b)(1). This provision does not apply to suits for violation of federal constitutional or statutory rights, see id. § 2679(b)(2), but provides government employees with immunity against claims of common law tort.

  The FTCA elsewhere provides that "[t]he authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive." 28 U.S.C. § 2679(a). Thus, if a suit is "cognizable" under 1346(b) of the FTCA, the FTCA remedy is "exclusive" and the federal agency cannot be sued "in its own name." Meyer, 510 U.S. at 476, 114 S.Ct. at 1001. c. Rehabilitation Act

  Section 504(a) of the Rehabilitation Act of 1973, 87 Stat. 355, 29 U.S.C. § 791 et seq. ("Rehabilitation Act"), provides in relevant part as follows:

No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." 29 U.S.C. § 794(a).
  Section 505(a)(2) of the Act describes the remedies available for a violation of Section 504(a):


"The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title." § 794a(a)(2).
  Although Title VI provides for monetary damages awards, the Supreme Court has held that the statutory language of the Rehabilitation Act fails to establish a Congressional waiver of the Federal Government's immunity against monetary damages awards beyond the "narrow category of § 504(a) violations committed by federal funding agencies acting as such — that is, by `Federal provider[s].'" Lane v. Pena, 518 U.S. 187, 193, 116 S.Ct. 2092, 2097 (1996) (declining to read "Federal provider[s]" to include not only the funding activities of those providers, but rather "any act" of an agency that serves as a "Federal provider" in any context.).

  Personal Jurisdiction

  1. Rule 12(b)(2)

  The Second Circuit has characterized as follows plaintiff's burden on the issue of personal jurisdiction:

The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing. The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.
Seetransport Wiking Trader Schiffarhtgesellschaft MBH v. Navimpax Centrala Navala, 989 F.2d 572, 580 (2d Cir. 1993).

  2. State law

  Personal jurisdiction of a federal court over a non-resident defendant is governed by the law of the state in which the court sits — subject to certain constitutional limitations of due process. Robinson, 21 F.3d at 510. The relevant provision of New York law, N.Y. CPLR § 302, provides, in part, as follows:

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; . . .
Rule 12(b)(6) — Failure to State a Claim

  On a motion to dismiss for failure to state a claim, a court must read the complaint generously, and draw all inferences in favor of the pleader. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The court must accept as true the material facts alleged in the complaint. Grandon v. Merrill Lynch, 147 F.3d 184, 188 (2d Cir. 1998). The court must not dismiss the action unless "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). In deciding such a motion, the "issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotations omitted). The court must limit itself to a consideration of the facts alleged on the face of the complaint, and to any documents attached [to the complaint] as exhibits or incorporated in it by reference. Cosmas, 886 F.2d. at 13. Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint "relies heavily upon its terms and effect," which renders the document "integral" to the complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). If, as in the present case, extraneous material is presented by the parties, the court must exclude it from consideration. See Fed.R.Civ.P. 12(b). Exhaustion of Administrative Remedies

  1. Prison Litigation Reform Act

  Under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C.A. § 1997e(a), "No 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." Under § 1997e(h), "Prisoner" is defined as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." The exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992 (2002). Exhausting administrative remedies after suit is filed is insufficient. Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). The Supreme Court has held as follows with respect to this provision:

Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory. All "available" remedies must now be exhausted; those remedies need not meet federal standards, nor must they be "plain, speedy, and effective." Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. And unlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all "action[s] . . . brought with respect to prison conditions," whether under § 1983 or "any other Federal law." Thus federal prisoners suing under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit.
Porter, 122 S.Ct. at 988, 534 U.S. at 524 (internal citations omitted.).

  The Second Circuit has recently held that exhaustion of administrative remedies under the PLRA is not jurisdictional. Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003).

  As regards the dismissal of PLRA claims, Section 1997e(c) of the PLRA provides in relevant part:

(1) The court shall on its own motion or on the motion of a party dismiss any action 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 if the court is satisfied that the action is frivolous, malicious, [or] fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. (2) In the event that a claim is, on its face, frivolous, malicious, [or] fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief, the court may dismiss the underlying claim without first requiring exhaustion of administrative remedies. 42 U.S.C. § 1997e(c).
2. Federal Tort Claims Act

  The FTCA requires that a claimant against the federal government file an administrative claim with the appropriate agency prior to institution of suit. Thus, 28 U.S.C. § 2675(a) provides in pertinent part:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.
  The requirement that a notice of claim be filed is jurisdictional and cannot be waived. Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983). Moreover, "because the FTCA constitutes a waiver of sovereign immunity, the procedures set forth in Section 2675 must be adhered to strictly." Id.

  Defendants have supplied a declaration from Adam M. Johnson, a BOP employee at MCC. Mr. Johnson has access to "documentary materials regarding Administrative Tort Claims maintained by the Bureau of Prisons in the ordinary course of business." Mr. Johnson reports that plaintiff submitted an Administrative Tort Claim to the Northeast Regional Office of the BOP on June 23, 2003. Plaintiff included many of the same claims as those alleged in the instant suit,*fn6 and named as the injury his irremediable blindness. The record gives no indication that plaintiff has received a response.

  Denial of Medical Care

  The "cruel and unusual punishments" proscription of the Eighth Amendment does not apply to pre-trial detainees such as plaintiff. Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). Plaintiff's claims arise, instead, under the Due Process Clause of the Fifth Amendment. Id. However, the Eighth Amendment deliberate indifference test is applied to pre-trial detainees bringing actions under the Due Process Clause of the Fifth Amendment. Id. According to that standard, plaintiff's action lies if the defendants denied him "treatment needed to remedy a serious medical condition and did so because of [their] deliberate indifference to that need." Id. (quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)). There are, therefore, two elements to plaintiff's claim: he must show that he had a "serious medical condition" and that it was met with "deliberate indifference." Id.

  A serious medical condition exists where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (internal quotation omitted); see id. at 137 (holding that "because a tooth cavity will degenerate with increasingly serious implications if neglected over sufficient time, it presents a `serious medical need' within the meaning of our case law.") Relevant factors in determining whether a serious medical condition existed include "the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Graham v. Perez, 121 F. Supp.2d 317, 325 (S.D.N.Y. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citations omitted)).

  To establish deliberate indifference, "a plaintiff must show `something more than mere negligence'; but proof of intent is not required, for the deliberate indifference standard `is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Weyant, 101 F.3d at 856 (quoting Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970 (1994)). "An official acts with the requisite deliberate indifference when that official `knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Chance, 143 F.3d at 702 (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970). "`[M]ere medical malpractice' is not tantamount to deliberate indifference," but it may rise to the level of deliberate indifference when it "involves culpable recklessness, i.e., an act or a failure to act . . . that evinces `a conscious disregard of a substantial risk of serious harm.'" Id. at 703 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks omitted)). "Deliberate indifference" may be manifested "by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291 (1976).

  Application to Plaintiff's Claims

  1. Claims against the Named D.E.A. Agents

  Plaintiff has failed to sustain his burden of showing that the court has personal jurisdiction over the eight named D.E.A. agents.*fn7 In this connection, the complaint describes these defendants as "New York-based DEA agents," and alleges that plaintiff "has personal jurisdiction by virtue of diversity of citizenship against all named defendant DEA agents who obtained a wire-tap authorization from the United States District Court in the Southern District of New York, initiated an investigation in New York and filed a criminal complaint against Mr. Thomas in the Southern District of New York based on said New York investigation, thereafter travelling to California to place Mr. Thomas under arrest and return him to MCC in New York City, New York." (emphasis in original).*fn8 Even if we interpret plaintiff as attempting to rely on New York's long-arm statute, under which a court may exercise personal jurisdiction over a non-domiciliary who "transacts any business within the state," provided that the cause of action arises from that transaction of business, plaintiff fails in his attempt. N.Y. CPLR § 302. Plaintiff's claims against these defendants arise from acts alleged to have occurred at the time of plaintiff's arrest, which took place in California, and not from any transaction of business within New York.

  In a Memorandum of Law dated May 16, 2004, plaintiff made a further attempt to establish that the Court has personal jurisdiction over these defendants. However, that submission was invited for the sole purpose of addressing the issue of exhaustion of administrative remedies, and it is for that purpose alone that the submission has been considered. The claims against these defendants, are dismissed pursuant to Rule 12(b)(2).

  2. Claims against Ashcroft, Sawyer, Hutchinson, Parks, Glover, Vargas

  Plaintiff's claims against the remaining individual named defendants must also be dismissed. At the outset, we note that the constitutional claims against these defendants in their official capacities must be dismissed for want of subject matter jurisdiction, according to the restrictions on Bivens actions.*fn9 Robinson, 21 F.3d at 510. Further, Bivens claims are dismissed where they fail to allege violations in which the defendants, as opposed to their subordinates, participated. See Leonhard, 633 F.2d at 621 n. 30. Plaintiff's claims are unsupported by factual allegations of personal involvement in wrongdoing by any of these six defendants. No allegations at all are made against Ashcroft, Sawyer, or Hutchinson, and it is "well-settled that `where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.'" Dove v. Fordham Univ., 56 F. Supp.2d 330, 335 (S.D.N.Y. 1999) (quoting Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981)). The conclusory nature of the references to Parks, Glover, and Vargas can be seen from what follows.

  The complaint states that "[t]he refusal of federal employee John Does, Warden Parks, and Clinical Director Mark Glover, M.D., to insure the proper administration of Mr. Thomas's eye medications amounts to deliberate indifference to Mr. Thomas's serious medical needs and is a significant causative element in Mr. Thomas's blindness." The complaint also includes the following paragraph:

Warden Parks was placed on notice that plaintiff required medical attention for glaucoma and enlarged heart by a United States Magistrate Judge on 10.12.01, shortly after Mr. Thomas arrived at MCC. Dr. Glover has acknowledged, by his testimony in federal court, his awareness that a particularized and complex regimen exists in relation to the administration of plaintiff's glaucoma medications. Dr. Glover also heard testimony in federal court that the prescribed regimen for plaintiff's glaucoma medications was recklessly implemented at best.
  The complaint also states, with regard to plaintiff's transfer to the psychiatric unit of MDC that "[u]pon information and belief, this transfer was either directed by and/or acquiesced in by defendants Warden Parks of MCC, Clinical Director Mark Glover of MCC, MDC Health Services Administrator Vargas and/or, the subordinate unnamed John Does at MCC and MDC who were supervised by Parks, Glover and Vargas."

  The complaint also states that "[t]he failure to insure that plaintiff's glaucoma medications . . . travelled with Mr. Thomas to MDC was either malice or deliberate indifference to plaintiff's serious medical needs by defendants Warden Parks, Clinical Director Glover, and unnamed John Does," and that "[t]he failure of MDC defendants John Does and Health Services Administrator Ulises Vargas to treat plaintiff's elevated optic nerve pressure by properly administering plaintiff's glaucoma medications, was either malicious or deliberate indifference to plaintiff's serious medical needs and a proximate cause of plaintiff's irrevocable blindness."

  The complaint states that "[t]he inaction of defendants John Doe federal employees 36 through 45 and Health Services Administrator Vargas in remaining deliberately indifferent to plaintiff's requests for treatment was both an act of medical malpractice and a violation of plaintiff's constitutional right to receive reasonably adequate medical care." It also states that "[t]he action by [an MCC Physician's Assistant who is alleged to have brought plaintiff, for the second time, an empty container of medication] and by Clinical Director Mark Glover, M.D., was an action of deliberate indifference to plaintiff's serious medical needs."

  Out of these allegations, only one contains a possible allegation of personal involvement, and even that allegation is hedged with caution. The allegation is that plaintiff's transfer to MDC's psychiatric unit was "either directed by and/or acquiesced in by defendants Warden Parks of MCC, Clinical Director Mark Glover of MCC, MDC Health Services Administrator Vargas and/or, the subordinate unnamed John Does at MCC and MDC who were supervised by Parks, Glover and Vargas." This does not suffice to state a claim against any of these defendants.

  The Bivens prohibition against allegations that rely upon a theory of respondent superior does not, of course, apply to plaintiff's common law tort claims. These, however, must be dismissed for lack of subject matter jurisdiction.*fn10 The United States is the only proper defendant in a tort claim for money damages against federal employees acting within the scope of their employment. See 28 U.S.C. § 2679(b)(1). Plaintiff's allegations against these defendants undoubtedly relate to actions taken within the scope of their employment. See 28 U.S.C. § 1346(b). Yet even if plaintiff had brought his claim against the United States, he would have fallen at the hurdle of administrative exhaustion, since the FTCA provides that an action for money damages against the United States may not be instituted "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency . . ." 28 U.S.C. § 2675(a); see Robinson, 21 F.3d at 510 (holding that because the plaintiff "failed to first present his claim to the appropriate agency, the district court properly dismissed his tort claims for want of subject matter jurisdiction."). Plaintiff's Administrative Tort Claim, which, according to the record before us, appears not to have received a response, was submitted to the Northeast Regional Office of the BOP on June 23, 2003, subsequent to the filing of the instant lawsuit.*fn11 Therefore, plaintiff failed to satisfy the exhaustion requirement.

  We note that in his complaint plaintiff "reserves the right" to bring an FTCA claim. Plaintiff's tort claims are dismissed without prejudice to the refiling of a tort claim that names the United States as defendant, and complies in all other regards with the provisions of the FTCA, once the relevant administrative remedies have been exhausted.

  3. Claims against BOP, MCC, MDC

  Plaintiff's claims must also be dismissed with respect to the three institutional defendants. The constitutional claims must be dismissed because a Bivens claim can only be brought against federal officers in their individual capacities. See Robinson, 21 F.3d at 510. The tort claims must be dismissed because the United States, rather than federal agencies or institutions, is the only proper defendant in a suit of this nature seeking monetary damages. See 28 U.S.C. § 2679(b)(1). As for the Rehabilitation Act claim, the Supreme Court has declined to find that the Act waives the immunity of federal agencies from suits seeking monetary damages, other than in situations where the defendant agency is sued in its capacity as a "Federal provider." Lane, 518 U.S. 187, 116 S.Ct. 2092. Plaintiff does not offer any indication or argument that any of the institutional defenders is a "Federal provider" within the meaning of the Act. Plaintiff's claims are therefore dismissed pursuant to Rule 12(b)(1).


  For the foregoing reasons, plaintiff's complaint is dismissed in its entirety. Plaintiff's tort claims are dismissed without prejudice to their refiling, in accordance with the provisions of the FTCA, upon exhaustion of the relevant administrative remedies.

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