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October 18, 2005.

OFFICER BURGOS (FNU), Individually and as an Officer employed by the Bureau of Prisons, Defendant.

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Pro se plaintiff, Jean Joseph Dufort ("Dufort"), sues defendant, Michael Burgos ("Burgos"), in both his individual capacity and as an officer of the federal Bureau of Prisons ("BOP"). Dufort, a former inmate at the Metropolitan Detention Center ("MDC") in Brooklyn, alleges that while he was in a bathroom stall at MDC, Burgos repeatedly struck him in the back with the stall door.

  Burgos moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56; pursuant to Local Rule 56.2, Burgos provided Dufort with the required notice to pro se litigants opposing motions for summary judgment. Because both parties have presented material outside the pleadings, the Court treats the motion as one for summary judgment. For the following reasons, the motion is granted in part.


  In his complaint, Dufort alleges that, on July 13, 2002, at approximately 4 p.m., MDC conducted its daily inmate count. After the count was over, Dufort "proceeded to the bathroom to ease himself." Compl. ¶ 6. "As [he] busied himself with cleaning the seat of the commode, a sharp bang came at the [stall] door, striking [him] on the back. It was Officer Burgos, who continued to strike [Dufort] with the door, shouting `I am the man in this Unit, and I didn't clear count [i.e., authorize Dufort to go to the bathroom].'" Id. ¶ 7. Dufort alleges that he suffered a "back injury caused by the striking of the bathroom door by Officer Burgos." Id. ¶ 9.

  These allegations of Dufort's complaint are disputed. By affidavit, Burgos attests that the inmate count was still in progress when Burgos went to the bathroom and that, therefore, he did so without permission; he further attests that, when he went to retrieve Dufort from the stall, "the door did not touch or strike [him]." Burgos Aff. ¶ 7. In a responsive affidavit, Dufort attests that the count had been "cleared" when he went to the bathroom, and that he "was repeatedly struck on [his] back with a bathroom stall door by Officer Burgos." Dufort Aff. ¶¶ 2, 4.

  The following facts, however, are not in dispute. On December 5, 2003, Dufort filed a claim with BOP's Northeast Regional Office. Using the Department of Justice's "Standard Form 95," he recounted the facts of the July 13 incident and claimed $250,000 for "personal injury." Compl., Ex. ("Claim for Damage, Injury, or Death"). On June 30, 2004, BOP's Regional Counsel sent Dufort a written response denying the claim and informing Dufort of his right to "bring an action against the United States in an appropriate United States District Court within six (6) months of the date of this memorandum." Compl., Ex. ("Memorandum"). Dufort did not pursue any other administrative remedies and filed his complaint in this Court on November 12, 2004, within the six-month time frame.


  A district court must grant summary judgment "whenever it determines that there is no genuine issue of material fact to be tried." Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Fed.R.Civ.P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). "A genuine issue of material fact exists `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In considering a motion for summary judgment, the Court must "resolve all ambiguities and draw all factual inferences in favor of the nonmoving party." Id. (citing Anderson, 477 U.S. at 255). Moreover, "[w]here the non-moving party is proceeding pro se, the court must interpret that party's supporting papers liberally, that is, interpret them `to raise the strongest arguments that they suggest.'" Forsyth v. Federation Employment & Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005) (quoting Burgos v. Hopkins, 14 F.3d 787 (2d Cir. 1994)).

  Dufort's complaint does not specify the legal theory or theories upon which it rests. Liberally construed, however, it suggests two possible theories: (1) an excessive-force claim under the Eighth Amendment and (2) a common-law claim for battery.*fn1 Burgos argues that the first claim must be dismissed because it is unexhausted and that the second claim must be dismissed because he is not the proper defendant.*fn2

  A. Excessive-Force Claim

  The Eighth Amendment excessive-force claim is actionable, if at all, under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). "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 v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). "Such an action, however, must be brought against the federal officers involved in their individual capacities" because "an action against . . . federal officers in their official capacities is essentially a suit against the United States, [and] such suits are . . . barred under the doctrine of sovereign immunity, unless such immunity is waived." Id. "[T]he United States has not waived its sovereign immunity with respect to claims that its employees have committed constitutional torts." See Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994). Thus, although Dufort has sued Burgos in both his individual and official capacities, sovereign immunity bars the official-capacity claim.

  Burgos argues that the individual-capacity claim is barred because Dufort failed to comply with the exhaustion requirement of the Prisoner Litigation Reform Act of 1995 ("PRLA"). Under the PLRA, "[n]o 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." 42 U.S.C. § 1997a(e). "Thus federal prisoners suing under [Bivens] must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit[,]" Porter v. Nussle, 534 U.S. 516, 524 (2002); this exhaustion requirement applies "whether they allege excessive force or some other wrong." Id. at 532. As Dufort was and is confined in a correctional facility, the PLRA's exhaustion requirement applies to his Bivens claim. See Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) ("Because [plaintiff] was a confined prisoner at the time he filed his lawsuits, section 1997e(a) is applicable.").

  To satisfy the exhaustion requirement, federal prisoners must comply with BOP's four-step Administrative Remedy Program ("ARP"):
Under the ARP, an inmate must first attempt to informally resolve his claims. See 28 C.F.R. § 542.13(a). Second, if dissatisfied with the informal resolution, the inmate must use a designated form to submit a written "Administrative Remedy Request" to the Warden within twenty days of the events triggering the complaint. See 28 C.F.R. § 542.14(a). Third, if the formal request is denied, the inmate must appeal to the appropriate BOP Regional Director. See 28 C.F.R. § 15(a). Finally, an inmate must appeal a negative decision by the BOP Regional Director ...

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