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THOMAS v. ASHCROFT

June 24, 2004.

RODNEY THOMAS, Plaintiff,
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES & DIRECTOR OF THE DEPARTMENT OF JUSTICE; KATHLEEN HAWK SAWYER, DIRECTOR, FEDERAL BUREAU OF PRISONS; ASA HUTCHINSON, ADMINISTRATOR, DRUG ENFORCEMENT ADMINISTRATOR; WARDEN GREGORY PARKS, METROPOLITAN CORRECTION CENTER (New York, New York); MARK GLOVER, M.D., CLINICAL DIRECTOR, MCC MEDICAL UNIT; ULISES VARGAS, HEALTH SERVICES ADMINISTRATOR, METROPOLITAN DETENTION CENTER (Brooklyn, NY); DEA SPECIAL AGENTS: SCOTT SEELEY-HACKER, JOHN SIEDER, JOHN RYAN, BRAD CLEMMER, GREG CONNERS, TOM CIELECY, RICHARD JONES, and DEA G.S. STEVEN WOODLAND; and JOHN and JANE DOE employees of the United States Federal Government (including but not limited to the Drug Enforcement Administration and the Federal Bureau of Prisons), all of the above parties being sued in their individual and official capacities, THE FEDERAL BUREAU OF PRISONS, METROPOLITAN CORRECTIONS CENTER, and the METROPOLITAN DETENTION CENTER, as relevant programs receiving federal assistance, Defendants.



The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

OPINION

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.

I. BACKGROUND

  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.

  II. DISCUSSION

  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 ...


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