The opinion of the court was delivered by: X Matsumoto, United States District Judge:
On December 9, 2008, Jose Urena ("plaintiff") commenced this pro se action against defendants Robert Beaudouin, M.D. ("Beaudouin"), United States Bureau of Prisons Metropolitan Detention Center, ("MDC," together with Beaudouin, "Federal Defendants"), Yan Wolfson, M.D. ("Wolfson"), and New York Downtown Hospital ("NYDH," together with Wolfson, "Non-Federal Defendants"), alleging constitutional violations pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ("Bivens"), the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., and New York state negligence and medical malpractice statutes. Plaintiff allegedly sustained injuries to his bladder, scrotum, and abdomen while incarcerated at the MDC in 2006. This case was initially filed in the Southern District of New York and transferred to this court by order dated February 23, 2009.
Pending before the court are: (1) defendant NYDH's motion to dismiss and motion for summary judgment; (2) defendant Wolfson's motion to dismiss; and (3) defendant Beaudouin's and the MDC's motion to dismiss and motion for summary judgment. For the reasons set forth below, NYDH's and Wolfson's motions to dismiss and for summary judgment are granted in part and denied in part; the MDC's motion for summary judgment is granted; and Beaudouin's motion for summary judgment is granted in part and denied in part.
Plaintiff commenced this action pro se on December 9, 2008, against defendants Beaudouin, MDC, Wolfson, and NYDH. Liberally construed, the amended complaint*fn1 alleges that defendants were negligent, committed medical malpractice, and were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.
On June 3, 2009, Magistrate Judge Bloom held an initial telephone conference with the parties. (ECF No. 22, Transcript of Telephone Conference ("Tr.").) During the course of the call, plaintiff advised that he suffered his injuries in 2006. Judge Bloom informed plaintiff, inter alia, that his claims against the federal defendants would be governed by the FTCA and were barred by the applicable two-year statute of limitations. (See ECF No. 22, Tr. at 7.) Judge Bloom did not specifically state that plaintiff's state law tort claims could proceed against the non-federal defendants.
Plaintiff filed an amended complaint on November 2, 2009. (ECF No. 45, Amend. Compl.) Discovery followed. Defendants filed the pending motions between March 5 and March 26, 2010. Defendant MDC moves to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), arguing first, that a defendant who acts under the color of federal, rather than state, law is not proper defendant in a § 1983 action; and second, that sovereign immunity protects a federal agency from liability under Bivens. Defendant Beaudouin moves for summary judgment pursuant to Fed. R. Civ. P. 56 on the ground that plaintiff failed to present evidence to create an issue of fact as to whether Beaudouin was personally involved in a violation of plaintiff's constitutional rights. Both federal defendants also move for summary judgment on the ground that the court lacks subject matter jurisdiction because plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997(e)(a).
Defendants NYDH and Wolfson move to dismiss the § 1983 claims for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and/or for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) on the ground that they are not state or federal actors. In the alternative, defendant NYDH moves for summary judgment under Fed. R. Civ. P. 56.
II.Undisputed Material Facts*fn2
Unless otherwise indicated, the undisputed material facts, as set forth in the current record and the parties' Rule 56.1 Statements, are as follows. Plaintiff is an inmate who was housed at the MDC from July 6, 2005 to March 21, 2007. (ECF No. 67, Defendants Robert Beaudouin and Metropolitan Detention Center's Rule 56.1 Statement of Material Facts as to Which No Genuine Issue Remains to be Tried ("Fed. Defs. R. 56.1 Stmt.") at ¶ 1.) NYDH is a private medical institution doing business as a private not-for-profit corporation. (NYDH Local Rule 56.1 Statement of Facts ("NYDH R. 56.1 Stmt.") at ¶ 1.)
Defendant complained of pain and other bladder-related symptoms to medical personnel at the MDC, including defendant Beaudouin, between at least May 12, 2006 and November 12, 2006. (Exhibit L to Declaration of Alexandra Fridel in Support of NYDH's Motion for Summary Judgment ("Fridel Decl.") at B000000053, B000000041.) On September 21 and October 5, 2006, plaintiff was brought to Dr. Wolfson's office at NYDH by the Bureau of Prisons for urology examinations, including a cystoscopy, after which a diagnosis of bladder cancer was reached. (ECF No. 80, Ex. 2, L. Civ. R. 56.1(a) Statement of Undisputed Facts in Support of Motion to Dismiss on Behalf of Yan Wolfson, M.D. ("Wolfson R. 56.1 Stmt.") at ¶ 2; ECF No. 82, Affidavit of Yan Wolfson, M.D. ("Wolfson Aff.") at 7.) On November 2, 2006, Dr. Wolfson performed a transurethral resection of bladder tumors on plaintiff at the NYDH. (Wolfson R. 56.1 Stmt. at ¶ 3; NYDH R. 56.1 Stmt. at ¶¶ 4-5.) On November 3, 2006, plaintiff returned to the MDC after his first surgery. (Fed. Defs. R. 56.1 Stmt. at ¶ 3.) He was found by Dr. Wolfson to be in stable condition and fit for confinement. (NYDH R. 56.1 Stmt. at ¶ 7.) On November 13, 2006, plaintiff was transported from the MDC to the emergency room at NYDH after he continued to complain of pelvic pain and inability to urinate. (Id. at ¶ 8.) Plaintiff was diagnosed with a bladder perforation and immediate surgical repair was advised. (Id. at ¶ 9.) Plaintiff refused surgical repair on November 13, 2006 and did not give consent to surgical repair until November 17, 2006. (Id. at ¶ 10.) On November 17, 2006, Dr. Wolfson performed a second surgery on plaintiff to repair his bladder perforation. (Wolfson R. 56.1 Stmt. at ¶ 4; Fed. Defs. R. 56.1 Stmt. at ¶ 4; NYDH R. 56.1 Stmt. at ¶ 11.) Plaintiff had an unremarkable post operative course at NYDH and was discharged in stable condition on November 22, 2006, with no activity or dietary restrictions. (NYDH R. 56.1 Stmt. at ¶ 12.)
Upon admission to a BOP facility, all inmates are given an Admission and Orientation ("A&O") booklet that advises them of the policies and procedures of both the BOP and of the individual institution. (Fed. Defs. R. 56.1 Stmt. at ¶ 8.) The A&O Booklet sets forth in detail the Administrative Remedy process and advises inmates of the proper method to start the Administrative process. (Id.) BOP's computerized database, SENTRY, did not indicate that plaintiff filed any claims under the BOP's Administrative Remedy process while he was housed at the MDC, between July 6, 2005 until March 21, 2007. (Id.) Plaintiff's original complaint, however, attached forms entitled "Central Office Administrative Remedy Appeal" and "Regional Administrative Remedy Appeal." (ECF No. 4-2, Compl., at 8, 9.) Moreover, plaintiff asserts in his opposition to the federal defendants' motion that he filed claims with the BOP. (See ECF No. 62 at 4; ECF No. 87 at 2.)
I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) Standard
Under Fed. R. Civ. P. 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ("A case 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."). In reviewing a motion to dismiss under Rule 12(b)(1), the court "must accept as true all material factual allegations in the complaint, but [is] not to draw inferences from the complaint favorable to plaintiffs." J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. Makarova, 201 F.3d at 113. In deciding a Rule 12(b)(1) motion to dismiss, the court may rely on and refer to evidence outside the pleadings. J.S., 386 F.3d at 110.
II.Summary Judgment Standard
A court may grant summary judgment only "if 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 moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party carries the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding a motion for summary judgment, the court's function is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must construe the facts in the light most favorable to the nonmoving party and all reasonable inferences and ambiguities must be resolved against the moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001).
Nevertheless, the nonmoving party cannot rest "merely on allegations or denials" but must instead "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); see also National Westminster Bank USA v. Ross, 676 F. Supp. 48, 51 (S.D.N.Y. 1987) ("Speculation, conclusory allegations, and mere denials are not enough to raise genuine issues of fact."); Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) ("[M]ere speculation and conjecture is [sic] insufficient to preclude the granting of the motion.").
Nor can the nonmoving party rest only on the pleadings. Celotex, 477 U.S. at 324 ("Rule 56(e) requires the nonmoving party to go beyond the pleadings."); Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). Instead, each statement of material fact by the movant or opponent must be followed by citation to evidence which would be admissible, as required by Fed. R. Civ. P. 56(e) and Local Civil Rule 56.1(d). Moreover, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). No genuine issue of material fact exists "unless there is sufficient evidence favoring the nonmoving party for a ...