The opinion of the court was delivered by: JOHN GLEESON, District Judge
Plaintiff Jerome Hartman was attacked by other inmates armed
with razors while incarcerated at the Metropolitan Detention
Center ("MDC"). He brings claims arising from this attack
pursuant to principles set forth in Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (the
"FTCA"). Specifically, Hartman alleges that (1) Unit Counselor
Mieles and Corrections Officer Sanders violated Hartman's due
process rights because they had actual knowledge that Hartman was in danger of being assaulted by other inmates but
failed to protect him; (2) Corrections Officers John Doe 1 and
John Doe 2 violated Hartman's due process rights because they
knew that Hartman's wounds required hospital care, but deprived
him of that care in deference to their own personal schedules;
(3) Sanders breached her duty of care by leaving inmates
unsupervised and not stopping the assault quickly enough once it
was discovered; and (4) Carlyle I. Holder, the Warden of the MDC
at the time of the attack, breached his duty of care to Hartman
by failing to implement a policy to secure razors distributed to
inmates and failing to prevent razors from being used as weapons.
Defendants move to dismiss, arguing that (1) the constitutional
claims should be dismissed for failure to exhaust administrative
remedies pursuant to the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a) ("PLRA"); and (2) this Court lacks subject matter
jurisdiction over Hartman's tort claims because the acts
complained of fall within the discretionary function exception to
the FTCA. For the reasons set forth below, the motion to dismiss
is granted in part and denied in part.
In March 1998, Hartman was arrested and placed in custody at
the MDC pending trial. In early to mid-June 1998, he began to
suspect that inmates Peter Blake and Tyrone Greene were planning
to assault him. Hartman believed that inmates associated with
Blake and Greene had recently assaulted Hartman's acquaintance.
He also noticed that Blake and Greene were hoarding prison essentials, which signaled to Hartman that they
were anticipating transfer to the "hole" as the Special Housing
Unit or "SHU" is referred to which is a common disciplinary
measure following fights between inmates.
At about 10:30 a.m. on June 24, 1998, Hartman approached Unit
Counselor Mieles and requested a transfer out of Unit 3 North
(where he, Blake and Greene were housed) to an adjacent unit.
Hartman told Mieles that he did not feel safe in Unit 3 North.
Mieles assured Hartman that he would be moved out of the Unit at
the 4:00 count. At about 2:30 p.m., Hartman reminded Mieles that
he feared assault and needed to be transferred. At around 3:30
p.m., Hartman again requested a transfer from Mieles. Mieles
replied that it was too late for Hartman to transfer on that day
(Mieles's shift ended at 4:00 p.m.), and Hartman would have to
wait until the next day.
Shortly after 4:00 p.m., Greene approached Hartman, told him
that Hartman's acquaintance was a "snitch," and reminded Hartman
that his acquaintance had been assaulted. Hartman understood this
to be a threat, so he approached Officer Sanders and informed her
of the "ongoing problems" he was having with Greene and Blake.
Hartman again asked to be moved out of Unit 3 North.
Shortly after 11:00 p.m. which was "lights out" Sanders
exited the dormitory room in which the detainees in Unit 3 North
slept, leaving the room unsupervised. Greene, Blake, and other
inmates attacked Hartman. Blake cut Hartman with a razor in the
back and neck while Greene and other inmates held Hartman and
punched him. Hartman yelled for the "C.O." meaning Sanders
and Blake cut him across the face with a razor. Blake continued
to cut Hartman, who assumed a defensive position on the floor while
Greene and other inmates repeatedly kicked and punched him.
When Sanders returned to the dormitory, she saw the assault but
did not act immediately to stop it. Rather, she turned on the
lights, left the room, locked the door behind her, and then
sounded the "body alarm." Subsequently, MDC staff arrived and
pulled Greene and Blake off of Hartman. Hartman was covered in
blood and suffering from numerous lacerations to the face, neck,
chest, back, and arms.
After the attack, an MDC physician's assistant examined Hartman
and recommended that he be sent to the hospital. Corrections
Officers John Doe 1 and John Doe 2 accompanied Hartman to the
hospital. While traveling with Hartman, the officers complained
that they did not want to spend their night supervising Hartman.
At the hospital, Hartman heard a nurse inform the officers that
Hartman's wounds required stitches. Reluctant to supervise
Hartman for the amount of time required to stitch his wounds, the
officers decided to return Hartman to the MDC before he received
stitches or other care. At the MDC, Hartman's wounds were cleaned
superficially; the cuts were never stitched. Hartman was placed
in the SHU with open, bleeding wounds.
Upon admission to the MDC, an inmate is provided with a "kit"
containing a razor, among other items. Despite "rampant use" of
razor blades in inmate-on-inmate assaults, MDC staff does not
maintain an inventory of razors distributed to inmates, nor do
they secure razors once they are distributed. The kits of inmates
in Unit 3 North are not inspected to ensure that an inmate's blade has not been detached from the razor.
Blake was provided with a razor by MDC staff, and at no time
prior to the assault on Hartman did MDC staff inspect or secure
On December 17, 1999, Hartman filed a timely administrative
tort claim with the BOP pursuant to 28 C.F.R. § 543.31. On May
19, 2000, the Bureau of Prisons ("BOP") denied the claim, and
instructed Hartman that he could file a complaint in a federal
district court within six months. On October 11, 2000, Hartman
filed a pro se complaint in this Court, naming Warden Holder as
defendant. Holder was served on January 17, 2001, and his answer
was due on February 6, 2001. Rather than serving the U.S.
Attorney, the Marshal served a copy of the complaint on the New
York City Law Department. On June 3, 2003, the United States
finally filed Warden Holder's answer to the complaint, certifying
that he was acting within the scope of his employment and
substituting the United States as defendant pursuant to
28 U.S.C. § 2679(d).
In January 2005, Hartman secured pro bono counsel. On March 22,
2005, an amended complaint was filed. On May 24, 2005, the
Government moved to dismiss the amended complaint on behalf of
defendants Holder, Mieles, Sanders, and the United States. In its
motion, the Government stated: "At this time, the Office does not
yet represent defendants John Doe 1 or John Doe 2. Plaintiff's
claims against them, however, also should be dismissed [for the
reasons set forth in the motion to dismiss.]" Def.'s Br. at 1 n.
A. The Standard for Dismissal Under Rule 12(b)(1) and
When considering a motion to dismiss for lack of subject matter
jurisdiction or for failure to state a cause of action, a court must accept as true
all material factual allegations in the complaint. See Shipping
Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated
on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
Dismissal under Rule 12(b)(6) may be granted only if "it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Walker
v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quotation
marks omitted). A federal court's task in determining the
sufficiency of a complaint is "necessarily a limited one."
Scheuer, 416 U.S. at 236. The appropriate inquiry is "not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
Id.; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
(2002) ("a court may dismiss a complaint only if it is clear that
no relief could be granted under any set of facts that could be
proved consistent with the allegations.").
When considering a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a court does not draw
inferences favorable to the party asserting jurisdiction.
Shipping Fin., 140 F.3d at 131; Atl. Mut. Ins. Co. v. Balfour
Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). A court
may consider affidavits and other materials in addition to the
pleadings to resolve ...