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Doe v. Torres

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 8, 2006

JOHN DOE, PLAINTIFF,
v.
HEALTH ADMINISTRATOR JORGE TORRES, DR. M. GLOVER, DR. PRADIP M. PATEL, DR. KAHANOWICZ, AND PHYSICIAN ASSISTANT PATEL, AND THE UNITED STATES OF AMERICA, DEFENDANTS.

The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION

John Doe,*fn1 an inmate at a Bureau of Prisons ("BOP") facility proceeding pro se, seeks relief against various BOP employees and a doctor who worked under a contract with the BOP. Doe's claims are based on allegedly improper medical treatment he received. The defendants have moved to dismiss Doe's complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the following reasons, the motions should be granted in part and denied in part.

I. BACKGROUND

A. Factual History

The following facts are alleged by Doe in his complaint and are accepted as true for purpose of the current motions.

In late February 2004, while incarcerated at the Metropolitan Correctional Center in New York City ("MCC"), Doe injured his right knee playing basketball. See Redacted Complaint, dated Feb. 24, 2005 ("Compl.") (Docket #2), ¶ IV. He reported the injury to a "recreation specialist," and the next day to his counselor and his Unit Manager, who put him in touch with a physician's assistant, Gautam Patel. Id. Gautam Patel took him to see Dr. Glover, a staff physician at the MCC. Dr. Glover took an x-ray "which did not show anything," after which Doe told Dr. Glover that "it felt like I tore something." Id. On March 4, 2004, Dr. Glover filled out a diagnostic form and checked a box indicating that any further treatment requiring Doe's transportation outside the prison was "Medically Acceptable But Not Medically Necessary: for the convenience of the inmate." See Diagnostic Report of Dr. M. Glover, dated Mar. 4, 2004 ("3/4/04 Report") (reproduced as Ex. B to Compl.), at 1. On March 11, 2004, Dr. Glover examined Doe again, and this time checked a box indicating that further treatment was "Presently Medically Necessary: treatment that cannot reasonably be delayed without causing further serious deterioration, significant pain or discomfort." See Diagnostic Report of Dr. M. Glover, dated Mar. 11, 2004 ("3/11/04 Report") (reproduced as Ex. B to Compl.), at 2.

At some point following this second visit, Dr. Glover referred Doe to an orthopedist, Dr. Kahanowicz, see 3/11/04 Report at 2, who apparently is not a BOP employee. See Compl. ¶ IV; Professional Services Agreement, dated Dec. 15, 2003 ("Kahanowicz Contract") (reproduced as Ex. B to Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff's Complaint, dated July 8, 2005 ("Kahanowicz Mot. to Dismiss")). Dr. Kahanowicz examined Doe and told him to "just exercise" the knee and return in "a few weeks" for a follow-up. Compl. ¶ IV. After three follow-up visits to Dr. Kahanowicz, Doe's knee was still swollen, which led him to contact Dr. Pradip Patel. Dr. Patel told him to see Dr. Kahanowicz again, and that if he was still unsatisfied, Dr. Patel would give him a second opinion. See Compl ¶ IV. On March 25, 2004, Dr. Patel examined Doe and ordered a magnetic resonance imaging exam ("MRI") on Doe's right knee. See Diagnostic Report of Dr. P. Patel, dated Mar. 25, 2004 (reproduced as Ex. B to Compl.), at 3.

On April 8, 2004, Doe underwent the MRI on his right knee. Compl. ¶ IV-A. Doe states that this procedure revealed a "small subchondral cyst in the femoral condyles, and small cystic area in the inferior patellar attachment" of the right knee. Id. (capitalization omitted). Dr. Patel's own notes of the procedure, recorded on May 13, 2004, read as follows: "Reveal bone bruise, mild arthritis [changes], no meniscal abnormalities." See Diagnostic Report of Dr. P. Patel, dated May 13, 2004 (reproduced as Ex. B to Compl.), at 4.

On July 29, 2004, Doe was still experiencing pain and was referred to an orthopedic surgeon, Dr. Kaplan, who recommended arthroscopic surgery on his knee. See Compl. ¶ IV. Doe had the surgery on October 13, 2004. See id. After surgery, Doe was told he still had "loose chips" and that he might need more surgery. The surgeon also prescribed physical therapy, but did "not want to give to[o] much therapy." Id.

Doe characterizes his treatment prior to surgery as consisting of "X-ray MRI and Ace Bandage and 8 months and do exercise on weight machine which just irr[i]tate it more." Compl. ¶ IV-A.

B. Administrative Tort Claim

In August 2004, Doe submitted an Administrative Tort Claim to the Office of the Regional Counsel of the BOP, seeking $25,000. See Claim for Damage, Injury, or Death [TRTNER-2004-04547], dated Aug. 11, 2004 (reproduced as Ex. C to Declaration of Adam M. Johnson, dated Aug. 5, 2005 (Docket #18) ("Johnson Decl.")). On February 11, 2005, the Northeast Regional Office of the BOP informed Doe it was declining to offer him a settlement regarding this claim. See Memorandum, dated Feb. 11, 2005 (annexed to Compl.).

C. The Instant Claims and Motions

Doe brought this action using the form complaint for actions brought under 42 U.S.C. § 1983. He alleges that the defendants did not provide "proper medical treatment in the proper amount of time," and that there was "negligence" on the part of the BOP and its "employees." See Compl. ¶ V (capitalization omitted). He requests damages of $150,000. Id.

Defendants Torres, Dr. Glover, Dr. Patel, and Gautam Patel, who are federal employees represented by the United States Attorney's Office, have moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (6). See Notice of Motion, dated Aug. 8, 2005 (Docket #16). Dr. Kahanowicz, represented by private counsel, has moved to dismiss under Fed. R. Civ. P. 12(b)(6). See Notice of Motion, dated July 8, 2005 (Docket #13).

D. The December 2, 2005 Order and Doe's Response

Following review of the defendants' motions, it appeared to the Court that the complaint, liberally construed, sought to assert a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (the "FTCA"), inasmuch as Doe made claims of "negligence" and because he attached to his complaint the decision on his administrative claim under the FTCA. It was unclear, however, whether Doe intended to bring a complaint against the various federal employees in their individual capacities under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Accordingly, the Court issued an order on December 2, 2005, outlining the legal standards for a Bivens action based on "deliberate indifference," see, e.g., Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), and directing Doe to send a letter or affidavit to the Court stating:

(1) whether Plaintiff wishes to pursue a claim against any defendant in his individual capacity on the ground that such defendant acted with "deliberate indifference" to Plaintiff's medical needs and, if so, (2) against which defendants Plaintiff wishes to pursue such a claim.

Order, dated Dec. 2, 2005 (Docket #21), at 2. The Order added that Doe was "free to state any additional factual allegations he wishes with respect to this claim, though the Court is not requiring the plaintiff to do so at this time." Id.

In response, Doe submitted a document stating "that he does in fact intend to pursue a constitutional deliberate indifference claim against the defendants" on the ground that "the defendants either knew or should have known that their actions or lack thereof caused the injury and furthered additional injury through the defendants' deliberate indifference." Plaintiff's Response, dated Dec. 21, 2005 ("Pl. Resp."), at 1-2. The Court deems these allegations to supplement his original complaint. See, e.g., Woods v. Goord, 2002 WL 731691, at *1 n.2 (S.D.N.Y. Apr. 23, 2002) (considering pro se prisoner's factual allegations in briefs as supplementing his complaint); Burgess v. Goord, 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999) ("In general, 'a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum'") (quoting Gadson v. Goord, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997)).

II. APPLICABLE STANDARDS

With respect to a motion to dismiss for lack of subject matter jurisdiction, "[t]he plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. After construing all ambiguities and drawing all inferences in a plaintiff's favor, a district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it." Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir. 2005) (internal citations and quotation marks omitted).

In resolving a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). "[A] complaint should not be dismissed for failure to state a claim 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." Conley v. Gibson,355 U.S. 41, 45-46 (1957) (footnote omitted). In making this evaluation, complaints drafted by pro se plaintiffs are held "'to less stringent standards than formal pleadings drafted by lawyers,'" Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and they "should be interpreted 'to raise the strongest arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Although a court must construe pro se complaints liberally, especially in instances where a plaintiff alleges civil rights violations, see, e.g., Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001), a pro se litigant is still obligated to comply with the relevant rules of procedural and substantive law. See, e.g., Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

III. ANALYSIS

A. Sovereign Immunity

The United States enjoys sovereign immunity from suit and thus cannot be sued without its consent. See, e.g., United States v. Navajo Nation, 537 U.S. 488, 502 (2003); Coulthurst v. United States, 214 F.3d 106, 108 (2d Cir. 2000). Claims asserted against agencies of the United States government, such as the BOP, or federal officers in their official capacities are considered to be asserted against the United States and are also barred under the doctrine of sovereign immunity. See, e.g., Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing FDIC v. Meyer, 510 U.S. 471, 484-86 (1994)). Congress may waive the sovereign immunity of the United States but may do so only through unequivocal statutory language. E.g., Lane v. Pena, 518 U.S. 187, 192 (1996) ("A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied.") (citations omitted). Congress may define the terms and conditions of such a waiver and "the terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941); accord Meyer, 510 U.S. at 475. Thus, if the United States has not waived its sovereign immunity, or if the conditions of such a waiver have not been met, the Court lacks subject matter jurisdiction over the claim. See, e.g., Meyer, 510 U.S. at 475; Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991), cert. denied, 504 U.S. 942 (1992).

To the extent Doe's complaint relies on 42 U.S.C. § 1983, see Compl. at 1, it must be dismissed as there is no waiver of sovereign immunity effectuated by section 1983. See, e.g., Harrison v. Potter, 323 F. Supp. 2d 593, 604 (S.D.N.Y. 2004). To the extent Doe is alleging that the defendants have violated his constitutional rights under Bivens, 403 U.S. 388, Bivens too does not effectuate a waiver of sovereign immunity. See Robinson, 21 F.3d at 510. Thus, any Bivens claim must be dismissed with respect to the defendants in their official capacities. See, e.g., Meyer, 510 U.S. at 484-86; Robinson, 21 F.3d at 510; Keene Corp. v. United States, 700 F.2d 836, 845 n.13 (2d Cir.), cert. denied, 464 U.S. 864 (1983).

While Doe does not explicitly assert that he is bringing a claim under the FTCA, we will assume the complaint raises such a claim as well, inasmuch as he has attached to his complaint the denial of his administrative claim under that statute. See Memorandum, dated Feb. 11, 2005 (annexed to Compl.. Accordingly, the remaining claims in this case are (1) Doe's claim under the FTCA; and (2) Doe's Bivens claim against the defendants in their individual capacities. We consider each in turn.

B. The FTCA Claim

1. The Claims Relating to Conduct by the Federal Employees

The FTCA states that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.*fn2 The Government seeks dismissal of Doe's FTCA claim based on its argument that Doe has not alleged negligence by any of the federal employees -- that is, employees other than Dr. Kahanowicz. It notes that the "only injury" Doe identifies in his complaint is "the condition identified by the April 8, 2004 MRI." See Memorandum of Law in Support of the Motion to Dismiss the Complaint, dated Aug. 8, 2005 (Docket #19) ("Gov't Mem."), at 11. The Government thus contends that "the negligence at issue is the decision of Dr. Kahanowicz to prescribe physical therapy . . . rather than immediately ordering surgery[.]" Id. The Government also asserts that Doe "does not allege that the Government Defendants caused the condition identified by the April 8, 2004 MRI." Id. Accordingly, the Government concludes that Doe's complaint fails to state a claim of negligence.

While it may eventually become clear that Doe cannot produce evidence demonstrating negligence on the part of the federal defendants, at this stage all Doe need do is give "fair notice of the basis" for his claims. Swierkiewicz, 534 U.S. at 514. The Court notes that Form 9 of the Appendix of Forms annexed to the Federal Rules of Civil Procedure, consisting of a sample complaint for negligence, offers virtually no detail on the manner in which the defendant committed negligence. Apart from supplying location and time, Form 9's sole factual allegation on liability is that the "defendant negligently drove a motor vehicle against plaintiff." Here, Doe has asserted that the defendants' medical treatment of him was "negligen[t]." See Compl. ¶ V. Because, pursuant to Fed. R. Civ. P. 84, Form 9 must be considered sufficient for stating a claim of negligence, Doe's mere statement that the defendants were negligent in their provision of medical treatment to him is sufficient to survive a motion to dismiss.

While a complaint containing additional -- and legally unnecessary --detail could show an absence of negligence and thus support dismissal, see generally Colodney v. Continuum Health Partners, Inc., 2004 WL 829158, at *7 (S.D.N.Y. Apr. 15, 2004) (no claim for slander stated where the "facts contained in [plaintiff's] own pleading contradict[ed] any naked assertion that [the] statements about him were false"), the Court does not believe that such is the case here.

For example, the exhibits Doe attached to his complaint demonstrate that while the diagnostic report of March 4, 2004 -- the apparent date of his first visit to Dr. Glover -- stated that no additional consultation was required, and that further treatment outside the prison was not "medically necessary," see Compl. ¶ IV(A); 3/4/04 Report, a second report by Dr. Glover one week later stated that treatment for Doe "cannot be reasonably delayed without causing further serious deterioration, significant pain or discomfort." See 3/11/04 Report. Further, Doe alleges that when he saw Dr. Patel, Dr. Patel told him "all he can do is go by [Dr. Kahanowicz's] decision." See Compl. ¶ IV. Finally, the complaint, as supplemented by Doe's response to the Court's December 2, 2005 Order, states that all the defendants "should have known that their actions or lack thereof caused the injury and furthered additional injury." See Pl. Resp. at 2. Taking these allegations together, it is a fair inference that Doe is alleging that this conduct constituted negligence. The Court cannot say that these allegations show that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley,355 U.S. at 45-46.

2. The Claims Involving Conduct by Dr. Kahanowicz

The Government argues that this Court lacks subject matter jurisdiction over Doe's FTCA claim to the extent it rests on any conduct by Dr. Kahanowicz because the United States is only liable under the FTCA for the negligent act or omission of any "employee" of the government. 28 U.S.C. §1346(b). The Government asserts that "28 U.S.C. § 2671 clarifies that the term 'employee' specifically excludes 'any contractor with the United States.'" See Gov't Mem. at 10.

In fact, 28 U.S.C. § 2671 does not define the term "employee." It says only that the term "Federal agency" does not include a contractor. Nonetheless, in determining whether a person may be considered an "employee" for purposes of the FTCA, courts have held that an "independent contractor" does not come within the FTCA. See, e.g., Logue v. United States, 412 U.S. 521, 527-28 (1973); Leone v. United States, 910 F.2d 46, 49 (2d Cir. 1990). Logue held that "the critical factor" in making the determination of whether an individual is an independent contractor "is the authority of the principal to control the detailed physical performance of the contractor." 412 U.S. at 527-28. In Leone, the Second Circuit characterized the test as a determination of whether the individual's "day-to-day operations are supervised by the Federal Government." 910 F.3d at 50 (citing United States v. Orleans, 425 U.S. 807, 815 (1976)). Leone makes clear that the analysis is a fact-intensive one, requiring consideration of

"the extent of control which, by agreement, the master [here, the federal agency] may exercise over the details of the work; whether or not the one employed is engaged in a distinct occupation or business; the kind of occupation, with reference to whether the work is usually done under the direction of the employer or by a specialist without supervision; the skill required in the particular occupation; whether the employer or the workman supplies the instrumentalities, tools and the place of work; and the method of payment, whether by time or by the job."

Id. at 50 (quoting 1 L. Jayson, Handling Federal Tort Claims § 203.01, at 8-58 (1990)).

The determination of this question is unsuited to the Government's motion to dismiss in Doe's case. While Dr. Kahanowicz has appended a copy of the contract between him and the BOP, and the BOP has made certain inferences based on that contract, see, e.g., Gov't Mem. at 12 (Dr. Kahanowicz "had full autonomy in the performance of his work"), the Court declines to consider this evidence in the context of the Government's motion to dismiss. The Second Circuit has made clear that a court "may" consider materials outside the pleadings for purposes of a motion to dismiss for lack of subject matter jurisdiction, see Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000), but there is no requirement that a Court do so in every case. Such consideration would be inappropriate here because Doe has not been put on notice that he was required to contest the factual allegations regarding Dr. Kahanowicz's relationship with the BOP. Local Civil Rule 12.1 required the Government to "serve and file the notice required by Local Civil Rule 56.2 at the time" its motion to dismiss was served. Here, the Government served a notice, see Notice to Pro Se Litigants Opposing Motion for Summary Judgment, dated Aug. 8, 2005 (Docket #17), but changed the version of the notice contained in Local Civil Rule 56.2 in a manner that rendered it confusing. The Government's version of this notice -- unlike that contained in Local Civil Rule 56.2 itself -- informed Doe that he must file affidavits or other papers in response to the Government's motion "as required by . . . Local Rule 56.1." The Government's notice also attached the text of Local Civil Rule 56.1.*fn3 -- also not an action required by Local Rule 56.2. These two references to Local Civil Rule 56.1 made the Government's notice confusing because the Government in fact had not submitted a statement pursuant to Local Rule 56.1(a) of material facts that were not dispute. Thus the Rule 56.2 notice, through its reference to Local Rule 56.1(b), informed Doe that he had to respond to a statement that the Government had never submitted.

Accordingly, the Court will not make a determination regarding the status of Dr. Kahanowicz based on the current record. Obviously, the Government will be given the opportunity to move for summary judgment on this point in a manner that puts Doe on notice of his obligation to set forth the necessary evidence.

C. The Bivens Claim Against the Federal Employees

1. Failure to State a Claim

As noted previously, where an agent of the federal Government is alleged to have violated an individual's federal constitutional rights, Bivens permits that individual to bring an action for damages against the agent in his or her individual capacity.

To state a claim for deprivation of medical treatment in violation of the Eighth Amendment, a prisoner must show that the defendant acted with "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "The deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995).

Under the subjective component, the prisoner must demonstrate that the defendants acted with "a sufficiently culpable state of mind." Hathaway, 37 F.3d at 66 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The subjective element of the deliberate indifference test "requires more than negligence, but less than conduct undertaken for the very purpose of causing harm." Id. (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). Specifically, a prison official does not act in a deliberately indifferent manner unless 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." Farmer, 511 U.S. at 837; see also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("Deliberate indifference is 'a state of mind that is the equivalent of criminal recklessness.'") (quoting Hathaway v. Coughlin ("Hathaway II"), 99 F.3d 550, 553 (2d Cir. 1996)), cert. denied, 125 S. Ct. 971 (2005).

The Government argues that Doe has not sufficiently alleged that the BOP employees were "deliberately indifferent" to Doe's medical needs. See Gov't Mem. at 15-18. But inasmuch as Doe has alleged that defendants "either knew or should have known that their actions or lack thereof" caused his injury and that they were "deliberate[ly[ indifferen[t]" to his medical needs, see Pl. Resp. at 2, the complaint should not be dismissed on this ground given the liberal pleading standards contemplated under the Federal Rules.

Under the objective prong, the alleged medical need must be "sufficiently serious." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway, 37 F.3d at 66) (internal quotation marks omitted). The Second Circuit has held that a "sufficiently serious" injury contemplates "'a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway II, 99 F.3d at 553); accord Chance, 143 F.3d at 702. Thus, a "sufficiently serious" injury exists "where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Chance, 143 F.3d at 702 (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)) (internal quotation marks omitted); accord Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000); see also Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 310 (S.D.N.Y. 2001) (a serious injury occurs "if 'unnecessary and wanton infliction of pain' results, or where the denial of treatment causes an inmate to suffer a life-long handicap or permanent loss") (quoting Harrison, 219 F.3d at 136). In determining whether a serious medical need exists, the Second Circuit has noted several factors for courts to consider, including "'[t]he 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.'" Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)) (alteration in original).

Doe's complaint does not make any allegations that would suggest that he has met the "serious harm" requirement. In fact, his complaint says nothing about any injury that was caused by the allegedly deliberately indifferent conduct of the defendants. While his complaint may be construed as asserting by implication that his knee injury was misdiagnosed initially and that he did not receive surgery that he required immediately, nothing in the complaint explains the consequence of these actions. Given the complete absence of allegations as to what was the effect of the purported improper treatment, the complaint should be dismissed for failure to allege this aspect of Doe's deliberate indifference claim.

Such dismissal should be granted, however, with leave to replead the claim in the event Doe is able to do so. See, e.g., Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (it is "usual practice" to allow leave to replead upon granting motion to dismiss), cert. denied, 503 U.S. 960 (1992); Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990).

2. Exhaustion

The Government also argues that the complaint should be dismissed because Doe does "not allege or indicate" that he exhausted his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). See Gov't Mem. at 14. But given that the Second Circuit has squarely held that the exhaustion of administrative remedies is an affirmative defense, see, e.g., Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004), there is no reason why Doe was required to plead the absence of this defense in his complaint. See generally Harris v. City of New York, 186 F. 3d 243, 251 (2d Cir. 1999) (the "statute of limitations is an affirmative defense . . . that [plaintiff's] pleading need not have anticipated").

The Government has also presented materials outside the pleadings in its effort to show that the plaintiff did not exhaust administrative remedies. See Gov't Mem. at 13-14. But to consider such materials, the Court would have to convert the Government's motion for failure to state a claim to one for summary judgment. See Fed. R. Civ. P. 12(b). Once again, the Court will not exercise its discretion to consider these materials because, for the same reasons given previously, see Section II.B.2 above, it is not clear that Doe understood that he was required to make a factual showing controverting the Government's factual assertion that he failed to exhaust his administrative remedies.

Accordingly, the Court will not dismiss Doe's complaint for failure to allege the exhaustion of administrative remedies at this stage of the proceedings. Again, the Government will be given the opportunity to move for summary judgment on this point.

D. The Bivens Claim Against Dr. Kahanowicz

Dr. Kahanowicz contends that because he is "retained on a contractual basis" to examine inmates, he "cannot be considered a prison official" and therefore is not liable for violations alleged under 42 U.S.C. § 1983. See Kahanowicz Mot. to Dismiss ¶ IV(A). Since the filing of Dr. Kahanowicz's papers, however, it has been made clear that Doe is proceeding under Bivens rather than section 1983. Accordingly, the Court assumes that Dr. Kahanowicz would make the same arguments with respect to Doe's claim under Bivens.

It is well-established that conduct "fairly attributable" to a government actor may be the basis for a claim of a violation of a federal right. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 432-33 (2d Cir. 1995) (citing Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991)). With regard to doctors who treat prison inmates, the Supreme Court has held that it is "the physician's function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State" in a suit under 42 U.S.C. § 1983. West v. Atkins, 487 U.S. 42, 55-56 (1988). "Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care . . . does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights." Id. at 56. In West, an inmate injured his leg playing volleyball and was sent by a prison doctor to see a private orthopedist who had contracted with the state prison system to provide treatment to inmates. See id. at 43-44. The Court held that the orthopedist's "delivery of medical treatment to West was state action fairly attributable to the State, and that [he] therefore acted under color of state law for purposes of § 1983." Id. at 57.

While West arose from a section 1983 action, there is no reason to differentiate between a section 1983 claim and a Bivens claim for this purpose. Both apply to defendants acting under "color of law": section 1983 applies to those acting under color of state law and Bivens applies to those acting under color of federal law. See, e.g., Commodari v. Long Island University, 89 F. Supp. 2d 353, 373 n.10 (E.D.N.Y. 2000) ("For the purposes of determining whether a private party acts under color of federal law, courts apply the same principles as in [sic] they do in determining whether a private party acts under color of state law in a § 1983 action.") (citations omitted); accord Island Online, Inc. v. Network Solutions, Inc, 119 F. Supp. 2d 289, 304 (E.D.N.Y. 2000). Doe has made sufficient allegations at this stage of the proceedings to permit the conclusion that Dr. Kahanowicz's actions were attributable to the BOP. Nonetheless, because of his failure to meet the "serious harm" prong of a Bivens suit alleging "deliberate indifference," the claim against Dr. Kahanowicz must be dismissed with leave to replead. See Section III.C.1 above.

Conclusion

For the foregoing reasons, the defendants' motion to dismiss Doe's Bivens action should be granted, with Doe being given leave to replead the claim if he is able to do so. The Government's motion to dismiss the FTCA claim should be denied.*fn4

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Jed S. Rakoff, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Rakoff. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140, 144-45 (1985).

GABRIEL W. GORENSTEIN United States Magistrate Judge


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