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Manswell v. United States

August 12, 2010

CURLENE MANSWELL A/K/A/ CURLENE REID, CURLENE MANSWELL A/K/A/ CURLENE REID, PLAINTIFF,
v.
UNITED STATES OF AMERICA; HARLEY LAPPIN, DIRECTOR OF THE FEDERAL BUREAU OF PRISONS; JAMES CROSS, JR., FORMER WARDEN OF METROPOLITAN CORRECTIONAL CENTER; NEWTON KENDIG, M.D., ASSISTANT DIRECTOR OF HEALTH SERVICES FOR THE FEDERAL BUREAU OF PRISONS; AND MARK GLOVER, CLINICAL DIRECTOR FOR METROPOLITAN CORRECTIONAL CENTER, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge

MEMORANDUM OPINION AND ORDER

At around 5:30pm on January 26, 2008, on the second floor of the C tier in the Metropolitan Correctional Center (MCC), the shower pipes suddenly trembled and shook violently. Plaintiff (then inmate) Curlene Manswell, bathing below, was struck by falling debris, some of which lodged in her left eye. She has sought redress from the United States, the prison warden and doctor, and several other prison officials by bringing this lawsuit pursuant to Bivens v. Six Unknown Federal Agents ("Bivens") and the Federal Tort Claims Act.*fn1 The Bivens defendants-prison system medical and administrative officials-have moved to dismiss the Bivens claims on the grounds that the Complaint does not plausibly allege their personal involvement; or in the alternative that the Complaint does not plausibly allege a cognizable constitutional violation. [16] For the reasons that follow defendants' motion is granted in part, and the Bivens claims against defendants Lappin, Dodrill, Kendig, and Cross are DISMISSED.

I. The Allegations in the Complaint

Because the case is before the Court on defendants' motion to dismiss, the Court takes the well-pled factual allegations of the complaint as true and draws reasonable inferences in plaintiffs' favor. E.g., ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

A. Factual Background

Plaintiff was incarcerated at the MCC from May 2006 through October 2008 and frequently used the C tier shower on the second floor. (Cl. ¶¶ 9, 18.) While showering she often heard thumping noises coming from the pipes, which would be followed by sudden increases in water temperature and shaking of the floor and walls. (Cl. ¶ 19.) The shower area was also completely bare of insulation, with "no tiles, plaster, or sheetrock" in the ceiling, and "only an outlay of pipes and what appeared to be a molded foundation" visible above. (Cl. ¶ 21.) Both plaintiff and the other inmates frequently complained to prison staff and the Warden (defendant Cross) about the problems with the shower, but nonetheless nothing was done during plaintiff's tenure at the prison. (Cl. ¶¶ 21, 24.)

The problems with the shower came to a head on the afternoon of January 26, 2008. (Cl. ¶ 30.) Plaintiff was showering by herself when she "heard a loud succession of noises which sounded like 'drilling' or 'thunder,' followed by the falling of metal from the ceiling." (Cl. ¶ 32.) As the pipes shook, plaintiff was subjected to a shower of a different nature: falling bits of rusty metal rained down on plaintiff, striking her face and lodging in her left eye. (Cl. ¶ 33.) She screamed, prompting a Corrections Officer to escort her out of the shower and to the MCC's medical facility. (Cl. ¶ 34.)

The next few days were difficult for plaintiff. On January 26 she waited to be seen at the medical facility for two hours, during which time other inmates attempted to remove some of the metal from her eye. (Cl. ¶¶ 40-41.) When finally seen she was allegedly given a rushed and incomplete examination, during which her eyes were hastily washed out and announced clear of foreign substances. (Cl. ¶ 43.) She was given some pain medication and returned to her cell, however her eyes had not been adequately cleaned. (Cl. ¶¶ 44, 47.)

The day after the injury, January 27, plaintiff was still in pain. Although she complained to Corrections Officers, she was not treated until after 10:00 pm that night, at which point more metal fragments were removed from her eye. (Cl. ¶¶ 46-47.) At that time she asked to see an eye specialist, but that request was denied. (Cl. ¶ 49.) The next day, January 28, plaintiff continued to experience pain. She then: (1) complained to Corrections Officers and medical personnel, but was refused treatment; (2) wrote a written complaint to the warden; and (3) reiterated her request to see an eye specialist, but was again denied. (Cl. ¶¶ 50-52.)

On the third day after the injury, January 29, plaintiff was still in pain. However the Clinical Director of the MCC, defendant Glover, refused to see her. (Cl. ¶ 53.) Also on the 29th, plaintiff was finally taken to an eye specialist at the New York Eye and Ear Infirmary. (Cl. ¶ 54.) The eye specialist found more metal fragments, removed them, and gave plaintiff an eye patch to cover her eye while it healed. (Cl. ¶ 55.) The specialist also prescribed antibiotics to cure an infection that had developed in plaintiff's left eye since the injury. (Id.)

Plaintiff alleges that she suffered extreme pain and emotional distress throughout this ordeal, and that she continues now to suffer severe emotional distress and persistent physical injury. (Cl. ¶¶ 56-57.)

B. Bivens Allegations

In addition to Federal Tort Claims Act allegations, the Complaint includes four Bivens counts alleged against five federal officials. The four Bivens counts allege that (1) plaintiff's conditions of confinement violated the Fifth Amendment's due process clause; (2) her medical treatment violated the Fifth Amendment's due process clause; (3) her conditions of confinement were cruel and unusual punishment in violation of the Eighth Amendment; and (4) that her medical treatment violated the Eighth Amendment.

Three of the Bivens defendants are prison administrators. Defendant Harley Lappin was at all relevant times the Director of the Federal Bureau of Prisons. (Cl. ¶ 10.) He is alleged to have "authorized, condoned and/or ratified the unreasonable and inhumane conditions under which the Plaintiff was injured." (Id.) Defendant Scott Dodrill was at all relevant times the Director of the Northeast Region of the Federal Bureau of Prisons. (Cl. ¶ 11.) He is also alleged to have "authorized, condoned and/or ratified the unreasonable and inhumane conditions under which the Plaintiff was injured." (Id.) Finally defendant James Cross, Jr. was at all relevant times the Warden at the MCC. In addition to being "responsible for the conditions under which the Plaintiff was confined," and "for supervising the medical and maintenance staff," Cross allegedly received complaints from plaintiff and other inmates. (Cl. ¶¶ 12, 50.) Each of ...


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