IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
August 30, 2010
EVERTON BAILEY, PLAINTIFF,
C.O. M. FORTIER, DEFENDANT.
The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff Everton Bailey, a federal prison inmate who is proceeding pro se and in forma pauperis , has commenced this Bivens*fn1 action against a corrections officer stationed at the facility in which he was housed at the relevant times, alleging deprivation of his civil rights. In his complaint, Bailey alleges that the defendant failed to protect him from an assault by a cellmate despite prior complaints expressing fear for his safety. As relief, plaintiff's complaint seeks $1 million compensatory damages, as well as punitive damages in the additional sum of $50,000.
Currently pending before the court in connection with the action are two separate motions. In response to plaintiff's complaint defendant has moved for either dismissal of his claims for failure to state a cause of action or, alternatively, for summary judgment, arguing that they are procedurally barred based upon his failure to exhaust available administrative remedies. In addition to opposing that motion plaintiff has moved for leave to amend his complaint, seeking to add the prison facility itself as a named defendant in the case.
Having carefully considered defendant's motion, which has been treated as one for summary judgment, I recommend that it be denied based upon my finding that material issues of fact preclude resolution of the exhaustion defense at this procedural juncture. I also recommend that plaintiff's motion for leave to amend be denied as futile, since in his amendment plaintiff seeks to add as a defendant a party that is not amenable to suit.
Plaintiff is a federal prison inmate within the custody of the United States Bureau of Prisons ("BOP") as a result of a 2007 criminal conviction entered in the United States District Court for the Eastern District of Pennsylvania. See generally Plaintiff's Complaint (Dkt. No. 1); see also VanWeelden Decl. (Dkt. No. 4) ¶ 5. While he is presently housed in another BOP facility, at the times relevant to his claims Bailey was designated by the BOP to the Ray Brook Federal Correctional Institution ("FCI Ray Brook"), located in Ray Brook, New York. Id.
On the morning of February 23, 2009, while housed in a six person cell in the Mohawk Housing Unit at FCI Ray Brook, plaintiff was assaulted by one of his cellmates after being accused of stealing that inmate's prayer oil . Complaint (Dkt. No. 1) ¶¶ 8-9; see also VanWeelden Decl. (Dkt. No. 10-4) Exh. D. Plaintiff reported the incident to defendant Fortier, a corrections officer at the facility, and requested that he be moved to another cell. Complaint (Dkt. No. 1) ¶ at 10. The request was denied, and plaintiff was directed by Corrections Officer Fortier to return to his cell for inmate count. Id . at ¶ 11.
Following the inmate count, plaintiff again was accosted by the same inmate, who on this occasion threw hot oil from a ceramic mug onto plaintiff's face. Complaint (Dkt. No. 1) ¶ 13; VanWeelden Decl. (Dkt. No. 10-4) Exh. D. As a result of the incident plaintiff suffered second degree burns to his face, requiring hospitalization at an outside medical facility for extensive treatment. Complaint (Dkt. No. 1) ¶¶ 13-14. According to the plaintiff, there were no corrections officers present in his cell unit at the time of the assault. Id.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on June 29, 2009. Dkt. No. 1. Plaintiff's complaint identifies Corrections Officer M. Fortier as the sole named defendant and asserts claims against her based upon the failure to protect him from known harm. Id .
On January 8, 2010, prior to answering, defendant moved to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, alternatively, for summary judgment pursuant to Rule 56. Dkt. No. 10. The sole basis for defendant's motion is her contention that plaintiff is precluded from pursuit of his claim based upon his failure to exhaust available administrative remedies before commencing suit, as required under 42 U.S.C. § 1997(e)(a). Defendant's motion was met, on January 27, 2010, with a response in opposition from the plaintiff, as well as a separate motion for leave to amend his complaint to add FCI Ray Brook as a named defendant. Dkt. Nos. 11, 12. Defendant has since submitted papers opposing plaintiff's motion for leave to amend, Dkt. No. 13, and additionally has filed a reply in response to plaintiff's opposition to the original motion and in further support of that application. Dkt. No. 16.
The parties' motions, which are now fully briefed and ripe for determination, have been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
A. Standards of Review
1. Motions to Dismiss
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal , ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, 129 S.Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly , 550 U.S. at 570, 127 S.Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. at 1974).
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate , 378 U.S. 546, 546, 84 S.Ct. 1733, 1734 (1964); Miller v. Wolpoff & Abramson, LLP , 321 F.3d 292, 300 (2d Cir. 2003), cert. denied , 540 U.S. 823, 124 S.Ct. 153 (2003); Burke v. Gregory , 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.).
The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "'but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C. , 223 F. Supp.2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ. , 69 F.3d 669, 673 (2d Cir. 1995)) (citations and quotations omitted).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus , 551 U.S. 89, 94 127 S.Ct. 2197, 2200 (2007) ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers'") (quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976) (internal quotations omitted)); Davis v. Goord , 320 F.3d 346, 350 (2d Cir. 2003) (citation omitted); Donhauser v. Goord , 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.). In the event of a perceived deficiency in a pro se plaintiff's complaint, a court should not dismiss without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark , 927 F.2d 698, 704-05 (2d Cir.1991); see also Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires").
Additionally, it is appropriate "to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual assertions are consistent with the allegations of the plaintiff's complaint." Hale v. Rao, 2009 WL 3698420, at *3 (N.D.N.Y. 2009) (Hurd, D.J. and Lowe, M.J.) (citing Gadson v. Goord, 1997 WL 714878, at *1, n. 2 (S.D.N.Y. 1997)).*fn3 However, this special leniency "does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Rules 8, 10 and 12." Hale, 2009 WL 3698420, at *3 (citing Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 2008)).
2. Motions for Summary Judgment
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc. , 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson , 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York , 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson ). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. at 2510.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson , 477 U.S. at 250 n.4, 106 S.Ct. at 2511 n.4; Security Ins. , 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex , 477 U.S. at 324, 106 S.Ct. at 2553; Anderson , 477 U.S. at 250, 106 S.Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr. , 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the non-moving party. Jeffreys , 426 F.3d at 553; Wright v. Coughlin , 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan , 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Exhaustion of Administrative Remedies
The sole basis for defendant's motion is her assertion that according to BOP records, and by his own admission, plaintiff never availed himself of the established BOP protocol for grieving the matter which forms a basis for the claims now raised.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[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. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 2382 (2006); Hargrove v. Riley, No. CV-04-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle , 534 U.S. 516, 532, 122 S.Ct. 983, 992 (2002) (citation omitted). In the event a defendant named in such an action establishes that the inmate plaintiff has failed properly to exhaust available remedies prior to commencing the action, his or her complaint is subject to dismissal. See Pettus v. McCoy , No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford , 548 U.S. at 94-95, 126 S.Ct. at 2387-88 (holding that the PLRA requires "proper exhaustion" of available remedies). "Proper exhaustion" requires a plaintiff to procedurally exhaust his or her claims by "compl[ying] with the system's critical procedural rules." Woodford , 548 U.S. at 95, 126 S.Ct. at 2388; see also Macias v. Zenk , 495 F.3d 37, 43 (2d Cir. 2007) (citing Woodford ).*fn4
In a series of decisions rendered since the enactment of the PLRA, the Second Circuit has crafted a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement.*fn5 Macias, 495 F.3d at 41; see Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). Under the prescribed algorithm, a court must first determine whether administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. If such a remedy existed and was available, the court must next examine whether the defendants have forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it or whether, through their own actions preventing the exhaustion of plaintiff's remedies, they should be estopped from asserting failure to exhaust as a defense. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event the proffered defense survives these first two levels of scrutiny, the court lastly must examine whether special circumstances nonetheless exist and "have been plausibly alleged" to justify the plaintiff's failure to comply with the applicable administrative procedural requirements.*fn6 Macias, 495 F.3d at 41; Hemphill , 380 F.3d at 686.
1) Availability of Remedy
The BOP has established an administrative remedy procedure whereby inmates can seek formal review of any complaint regarding any aspect of their imprisonment through a four-step procedure set forth in the agency's Administrative Remedy Program ("ARP"). VanWeelden Decl. (Dkt. No. 10-4) ¶ 7; see also Macias, 495 F.3d at 42; see 28 C.F.R. § 542.
The purpose of the ARP is to provide inmates with the procedure to seek formal review of an issue relating to any aspect of his/her confinement. 28 C.F.R. § 542.10(a). In accordance with the established procedures, an inmate must first attempt informal resolution of his or her complaint by presenting the issue formally to staff, and staff must attempt to resolve the issue. 28 C.F.R. § 542.13(a); see also Johnson , 380 F.3d at 693. If the complaint cannot be resolved informally, the inmate may submit a formal written Administrative Remedy Request to the Warden, on the appropriate form (BP-9), within twenty calendar days of the event that generated the inmate's complaint. 28 C.F.R. § 542.14(a). If the inmate's formal request is denied, the inmate may next appeal the matter to the appropriate BOP Regional Director on the appropriate form (BP-10), again within twenty calendar days of the date the grievance was denied by the facility Warden.
28 C.F.R. § 542.15(a); see also Johnson , 380 F.3d at 693. An unfavorable decision from the Regional Director can then be appealed to the General Counsel's office on the appropriate form (BP-11), within twenty calendar days of the date of the Regional Director's response. 28 C.F.R. § 542.15(a). Complete exhaustion has not occurred, for purposes of the PLRA, until all of the foregoing steps have been taken. Macias , 495 F.3d at 44; see also Johnson v. Rowley , 569 F.3d 40, 45 (2d Cir. 2009); Strong v. Lapin , No. 90-CV-3522, 2010 WL 276206, at *4 (E.D.N.Y., 2010) ("Until the BOP'S Central Office Considers the appeal, no administrative remedy is considered to be fully exhausted."). . Both plaintiff's complaint and the additional submissions of the parties firmly establish that plaintiff failed to file and pursue an ARR under the BOP's ARP with regard to the events of February 23, 2009.
2) Presentation of Defense/Estoppel
The focus of the second prong of the Hemphill analysis is upon "whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense." Hemphill, 380 F.3d at 686 (citations omitted).
It should be noted that courts are generally hesitate to dispose of the exhaustion defense on a motion to dismiss, and ordinarily will dismiss a complaint at that stage only if it is patently clear from the face of plaintiff's complaint that exhaustion has not occurred and there is no basis to excuse PLRA exhaustion requirement. Torrence v. Pesanti , 239 F. Supp.2d 230, 231-232 (D. Conn. 2003).
Viewing this second element first from the perspective of defendant's dismissal motion highlights the pitfalls associated with resolving the exhaustion defense on such a motion. In his complaint, the contents of which must be accepted as true, with all inferences drawn in his favor, Bailey asserts that he attempted to exhaust administrative remedies by requesting BP-8, BP-9, BP-10, and BP-11 forms from his counselor, who refused to provide the necessary forms. Complaint (Dkt. No. 1) ¶ 6. The plaintiff's allegations regarding the failure of prison officials to provide him with requested grievance forms would seem to present a question of whether the second prong of the Hemphill analysis would apply and excuse exhaustion.
A potentially different result obtains with regard to the issue when the full record now before the court is considered against the backdrop of the applicable summary judgment standard. Looking to the submissions received from both parties, however, it nonetheless seems clear that issues of material fact exist regarding plaintiff's entitlement to a Hemphill exemption, and whether the plaintiff can convince a reasonable factfinder that grounds exists to excuse the exhaustion requirement in this case. Plaintiff claims to have requested the requisite forms for pursuing a grievance from his counselor, identified as a Mr. Snyder. Complaint (Dkt. No. 1) ¶ 6. Defendant's submissions confirm that ordinarily inmates are directed to seek grievance forms from their counselors and that at the relevant times plaintiff's counselor was Hawley Snyder. VanWeelden Decl. (Dkt. No. 10-4) ¶ 12.
The defendant responds that even if plaintiff was denied the necessary forms for filing and pursing his grievance, however, other avenues for raising his grievance were available to him. See id. According to Robin VanWeelden, a legal assistant at the facility, members of plaintiff's unit team as well as department heads make regular rounds within the special housing unit ("SHU") where the plaintiff was housed at the relevant times for the purpose of addressing inmate concerns, and plaintiff could have requested the requisite grievance forms from any of those staff members. Id. Ms. VanWeelden also states that in her capacity as a legal assistant, she made weekly rounds within the SHU, but at no time during any of those rounds did plaintiff raise the issue with her request grievance forms. VanWeelden Decl. (Dkt. No. 10-4) ¶ 12.
In her declaration Legal Assistant VanWeelden goes on to note that in addition to these avenues plaintiff had other recourse, including to submit an informal "cop-out" or "request to staff" with any staff member, raising any issue, but did not do so. Id. at ¶ 14. In addition, plaintiff could have filed a "sensitive" request with prison officials in the event of his belief that his safety and well-being was in jeopardy, but once again did not do so. Id. at ¶ 15.
In response to these assertions, plaintiff states he asked various staff members at the facility, including the warden, for the necessary grievance forms but was advised that it was his counselor who should supply them. See Bailey Decl. (Dkt. No. 11) p. 2. Plaintiff also notes that cop-out forms are not available to inmates confined within the SHU. Id.
Given these circumstances, however skeptical the court may be that plaintiff ultimately will be able to establish that through the actions of prison officials at FCI Ray Brook he was unable to perfect and pursue a grievance regarding the claims now raised in the action, particularly in the face of the statements set forth in the declaration of Legal Assistant VanWeelden, it is plain that there exist genuine issues of material fact as to whether plaintiff was precluded by the actions of prison officials from pursuing a grievance in this matter. Such a dispute may only be resolved by a jury at trial.*fn7
Accordingly, I recommend against the granting of defendant's motion for summary judgment on this element of the tripartite exhaustion test.
3) Special Circumstances
The third, catchall factor that must be considered here under the Second Circuit's prescribed exhaustion rubric focuses upon whether special circumstances have been plausibly alleged which, if demonstrated, would justify excusing a plaintiff's failure to exhaust administrative remedies. Hemphill, 380 F.3d at 689; see also Giano, 380 F.3d at 676-77; Hargrove, 2007 WL 389003, at *10. Among the circumstances potentially qualifying as "special" under this prong of the test is where a plaintiff's reasonable interpretation of applicable regulations regarding the grievance process differs from that of prison officials and leads him or her to conclude that the dispute is not grievable. Giano , 380 F.3d at 676-77; see also Hargrove, 2007 WL 389003, at *10 (quoting and citing Giano ). Special circumstances may also exist when a facility's "[f]ailure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward plaintiff's appeals-which effectively rendered the grievance process unavailable to him." Murray v. Palmer, 2010 WL 1235591, at *6 (N.D.N.Y. Mar. 31,2010) (Suddaby, D.J.) (quoting Sandlin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y. 2008) (noting that "[s]uch facts support a finding that defendant's are estopped from relying on exhaustion defense as 'special circumstances' excusing plaintiff's failure to exhaust")).
For the same reasons as were articulated with regard to the second Hemphill factor, consideration of the record now before the court discloses the existence of questions of fact concerning whether the special circumstances prong should also apply to excuse the requirement of exhaustion in this case.
D. Plaintiff's Motion to Amend the Complaint
Plaintiff seeks leave to amend his complaint to add FCI Ray Brook as a named defendant. Defendant opposes plaintiff's motion, arguing that any claim against that entity would be futile.
Motions for leave to amend are governed by Rule 15(a) of the Federal Rules of Civil Procedure which provides, in pertinent part, that unless amendment as a matter of right is permitted based upon the circumstances -- a circumstance that does not exist in this action -- a party may amend its pleading "only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a). Under Rule 15(a), leave to amend ordinarily should be liberally granted absent undue delay, bad faith, dilatory tactics, undue prejudice in being served with the proposed pleading, or futility. Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962); Elma RT v. Landesmann Int'l Mktg. Corp., No. 98 CIV. 3662, 2000 WL 297197, at *3 (S.D.N.Y. Mar. 22, 2000) (citing Foman).
Notwithstanding the familiar and well-accepted precept that leave to amend should be granted freely and is typically permitted, if a claim contained in a proposed amended complaint would be vulnerable in the face of a Rule 12(b)(6) motion then permitting amendment would be an act of futility which should not be sanctioned. See, e.g., Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 124 (E.D.N.Y. 1996); In re Boesky Sec. Litig., 882 F.Supp. 1371, 1379 (S.D.N.Y. 1995). "In considering whether to grant a motion for leave to amend, the court may properly take into account the futility associated with the newly added claims or defenses." Clarke v. Max Advisors, LLC, 235 F. Supp.2d 130, 151 (N.D.N.Y. 2002) (citing Foman, 371 U.S. at 182, 83 S.Ct. at 230). "Quite sensibly, a court may properly deny leave to amend when the claim or defense sought to be added would not withstand a likely motion to dismiss for failure to state a legally cognizable claim or defense." Clarke, 235 F. Supp.2d at 151 (citing Lucente v. International Business Machines Corp., 310 F.3d 243, 259 (2d Cir. 2002)). If, on the other hand, a proposed claim sets forth facts and circumstances which may entitle the pleader to relief, then futility is not a proper basis on which to deny the right to amend. Saxholm , 938 F. Supp. at 124 (citing Allstate Ins. v. Administratia Asigurarilor De Stat, 875 F.Supp. 1022, 1029 (S.D.N.Y. 1995) and Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y. 1995) (leave to replead granted where court could not say that under no circumstances would proposed claims provide a basis for relief)).
To determine futility "a proposed amendment should be reviewed under a standard analogous to the standard of review applicable to a motion brought under Rule 12(b)(6)." Oneida Indian Nation of New York State v. County of Oneida, N.Y., 199 F.R.D. 61, 88 (N.D.N.Y. 2000) (McCurn, S.D.J.) (citing Rotter v. Leahy, 93 F. Supp.2d 487, 496 (S.D.N.Y. 2000)). Additionally, "[u]nless a proposed amendment is clearly frivolous or legally insufficient on its face, the substantive merits of a claim or defense should not be considered in a motion to amend." Lerman v. Chuckleberry Publishing, Inc., 521 F.Supp. 228, 231 (S.D.N.Y. 1981) (citing Nyscoseal Inc. v. Parke, Davis & Co., 28 F.R.D. 24, 25 (S.D.N.Y. 1961), rev'd on other grounds, sub nom., Lerman v. Flynt Distributing Co., Inc. , 745 F.2d 123 (2d Cir. 1984)).
Plaintiff's effort to assert claims against FCI Raybook, an entity which in reality is a prison facility operated by the BOP, an agency of the federal government, implicates questions of sovereign immunity. Correctional Services Corp. v. Malesko , 534 U.S. 61, 71-72, 122 S.Ct. 515, 522 (2001). While the United States has waived its sovereign immunity under certain circumstances, those circumstances are limited and, in an instance such as this, depends upon compliance with the Federal Tort Claims Act ("FTCA"). See Ali v. Federal Bureau of Prisons , 552 U.S. 214, 217-18, 128 S.Ct. 831, 835 (2008). It is well established that while a Bivens action may be brought against an individual federal employee, such a claim may not be asserted against the officer's employee, whether the United States or an agency such as the BOP. See F.D.I.C. v. Meyer, 510 U.S. 471, 485-86, 114 S.Ct. 996, 1005-06 (1994).
Since plaintiff's putative claim against FCI Ray Brook is in reality one brought against the BOP, a federal agency, the proposed amendment is futile, and his motion for leave to amend should be denied on this basis.*fn8
IV. SUMMARY AND RECOMMENDATION
While defendant has sought the dismissal of plaintiff's complaint for failure to exhaust available administrative remedies, genuine issues of material fact exist as to whether plaintiff was precluded by the actions of prison personnel from fulfilling his exhaustion obligation. It is therefore inappropriate to address and resolve the defense at this early procedural juncture. Turning to plaintiff's motion for leave to amend, because the proposed addition of FCI Ray Brook and the assertion of claims against that entity would, in effect, be the equivalent of raising claims against the United States, plaintiff's proposed amendment is futile, and his motion for leave to amend should be denied on this basis.
It is therefore hereby respectfully
RECOMMENDED, that defendants' motion to dismiss, or in the alternative for summary judgment (Dkt. No. 10) be DENIED, and that plaintiff's motion to amend his complaint (Dkt. No. 12) be DENIED;
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the Clerk of the Court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.