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August 21, 2005.

CARLYLE I. HOLDER, et al., Defendants.

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.


  A. The Assault

  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.

  B. The Medical Treatment

  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.

  C. The Razor Policy

  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 Blake's razor.

  D. Procedural History

  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. 1.


  A. The Standard for Dismissal Under Rule 12(b)(1) and 12(b)(6)

  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 ...

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