The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS
Plaintiff Harry Baptiste, a federal prisoner proceeding pro se and in forma pauperis, brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act. Baptiste claims that Defendants Warden at Ottisville ("Warden Killian"); Dr. D. Sommers, Clinical Director ("Dr. Sommer"); Dr. M. White, M.D. ("Dr. White"); Orange Regional Medical Staff Center Director ("Director"); and John and Jane Doe violated his Eighth Amendment right to adequate medical care by improperly diagnosing and treating his lung condition. Baptiste sues all Defendants in both their official and individual capacities, seeking $3 million in compensatory damages and $6 million in punitive damages.
Defendants Killian and Sommer, both employed by the Federal Correctional Institution in Otisville, New York ("FCI Otisville") and represented by the U.S. Attorney's Office, move for a partial dismissal of the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 Defendant White, represented by private counsel, moves for a dismissal of the complaint pursuant to Rules 12(b)(1), 12(b)(4), 12(b)(5), and 12(b)(6), or in the alternative, for summary judgment pursuant to Rule 56. For the reasons set forth below, I grant in part and deny in part Defendants' motions, and direct Baptiste to file an amended complaint within 60 days of the date of this Order.
For purposes of deciding Defendants' motions to dismiss, the Court assumes that the factual allegations in the complaint, its attached documents,*fn2 and Baptiste's "Rebuttal of Defendant's Response" are true.*fn3
Harry Baptiste, currently an inmate at the Federal Medical Center in Rochester, Minnesota ("FMC Rochester"), has been in the custody of the Federal Bureau of Prisons since November 2000. From November 2000 until his May 2006 transfer to FMC Rochester, Baptiste was incarcerated at FCI Otisville.*fn4
On February 6, 2005, Baptiste fell ill. He requested, but for a month was denied, an x-ray exam. On March 11, 2005, Baptiste underwent a radiologic study at Orange Regional Medical Center ("Hospital"), a medical facility outside FCI Otisville, in order to diagnose his breathing and lung problems. Dr. White, the physician who interpreted the exam at the Hospital, reported to FCI Otisville a "differential diagnosis"*fn5 that "includes sarcoidosis,*fn6 diffuse bronchopneumonia, lymphoma, pulmonary interstitial infiltrates with eosinophilia... among many other possibilities." Based on this diagnosis, Dr. Sommer, Clinical Director of FCI Otisville's Medical Center, began a treatment plan that included high doses of Prednisone.*fn7 Baptiste complained frequently of joint pain, weight gain, partial blindness, and other health problems while on the drug therapy.
Beginning in late 2005, Baptiste visited a pulmonologist at Crystal Run Health Center four times.*fn8 The pulmonologist informed Baptiste and Dr. Sommer that "a [lung] biopsy was needed to make sure [Baptiste] was diagnosed with sarcoidosis." Compl. at 4. Dr. Sommer denied the request and Warden Killian told Baptiste that "they were not going to do the biopsy." Rebuttal of Defendant's Response at 8-9. FCI Otisville's medical staff continued to treat Baptiste's health problems, which were "asthma, hyperlipidemia, BPH, prostate syndrome, and sarcoidosis." Compl. Ex. at 19.
In May 2006, Baptiste was transferred to FMC Rochester to improve the available medical care. After reviewing Baptiste's medical records, Dr. Tran, a physician at FMC Rochester, noted that Baptiste had "significant bilateral pulmonary disease, which was misdiagnosed as sarcoidosis." Compl. Ex. at 21. Physicians at the Mayo Clinic conducted a lung biopsy on August 27, 2007 and sent a letter informing Baptiste that his "final diagnoses" consisted of "interstitial lung disease likely NSIP associated with connective tissue disease, connective tissue disease, and microscopic hematuria." Compl. Ex. at 15. Baptiste claims that he did not become "fully aware that he had been misdiagnos[ed]" until a February 8, 2008 appointment with Dr. Tran.
On February 28, 2008, Baptiste filed a Bureau of Prisons Request for Administrative Remedy, asserting that Warden Killian and the medical staff of FCI Otisville delayed his treatment in February 2005 and administered high doses of Prednisone based on a misdiagnosis. The request was rejected at all stages of the administrative review process on the ground that it was not filed within "twenty days of the event complained about." Compl. Ex. at 6-8.
On March 3, 2008, Baptiste filed an administrative tort claim, again contesting the adequacy of the medical care he received. On September 2, 2008, the Northeast Regional Office of the Bureau of Prisons denied his claim, finding that Baptiste received proper and timely medical care at FCI Otisville.
On February 9, 2009, Baptiste filed his complaint in the Northern District of New York. The matter was subsequently transferred to this Court. As a federal prisoner proceeding in forma pauperis, Baptiste relied on the U.S Marshals Service to serve Defendants. The USMS successfully served Warden Killian and Dr. Sommer. Although Baptiste provided the USMS with the respective addresses of Dr. White and the Director of Orange Regional Medical Center, neither was properly served. The Director has not yet entered an appearance in the action. Dr. White received actual notice of suit and has entered an appearance.
All defendants who have entered an appearance -- Defendants Sommer, Killian, and White -- move to dismiss the complaint. Defendants Sommer and Killian move to dismiss Baptiste's Bivens claims against them under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants Sommer and Killian argue that Baptiste failed to adequately plead the elements of an Eighth Amendment deliberate indifference claim. They also move to substitute the United States as the defendant in place of Sommer and Killian with regard to Baptiste's claims under the FTCA.
Defendant White moves to dismiss the complaint on several grounds. First, he moves to dismiss under Rule 12(b)(4) for insufficient process and under Rule 12(b)(5) for insufficient service of process. He argues that he was not served in accordance with Rule 4(e), as he received only the copy of the summons and complaint that had been served care of the Hospital, where he no longer works.
Because Baptiste is an incarcerated pro se litigant with in forma pauperis status, I deny White's motion to dismiss the complaint on the grounds of defective service of process. See Romandette v. Weetabix, 807 F.2d 309, 311 (2d Cir. 1986) (finding that where incarcerated pro se plaintiff is entitled to rely on USMS to effect proper service and defendant has received actual notice of action, service requirements under Rule 4 are liberally construed).
Next, Defendant White contends that the complaint should be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim under Bivens and the FTCA. Defendant White has alternatively moved for summary judgment and, to that end, has submitted a declaration and Local Rule 56.1 statement. In light of Baptiste's pro se and in forma pauperis status and the lack of any discovery, I decline to convert his motion to one for summary judgment. See Perez v. Hawk, 302 F. Supp. 2d 9, 16 (E.D.N.Y. 2004) (declining to convert Rule 12(b)(6) motion to one for summary judgment where plaintiff was pro se prisoner raising Bivens claims).
a. Lack of Subject Matter Jurisdiction
A claim 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). The plaintiff bears the burden of "showing by a preponderance of the evidence that subject matter jurisdiction exists." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court may refer to matters ...