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Herbert F. Warrender v. United States

February 17, 2011


The opinion of the court was delivered by: Matsumoto, United States District Judge:


On June 1, 2009, Herbert F. Warrender ("plaintiff") commenced this pro se action against several individuals in their official and individual capacities at the Metropolitan Detention Center ("MDC") alleging constitutional violations pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) ("Bivens"), and tort claims pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Plaintiff allegedly sustained a seizure on April 1, 2008, that required hospitalization from April 1 to April 3, 2008, while a "holdover" inmate at MDC between March 28 and April 15, 2008.

Pending before the court is a motion to dismiss or, in the alternative, for summary judgment by defendants Michael Berecky, C. Brooks, Ignatius Hall, Raul Campos, and John Saint-Preux (the "Individual Defendants"). For the reasons set forth below, the Individual Defendants' motion to dismiss and for summary judgment is granted. This opinion does not address any potential claims plaintiff has against defendant United States.


I.Procedural History

Plaintiff commenced this action pro se on June 1, 2009, against Harvey Lappon, Director of the Federal Bureau of Prisons ("BOP"), Henry Sadowski, Regional Counsel for the Northeast Regional Office of the BOP, Cameron Lindsay, Warden of MDC, Michael Berecky, physician at MDC, C. Brooks, physician's assistant at MDC, and John Does 1 and 2. The complaint alleges that defendants were negligent, committed medical malpractice, and were deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth and Fourteenth Amendments. On June 30, 2009, the court granted plaintiff's motion to proceed in forma pauperis, directed that the United States be added as a defendant for purposes of plaintiff's claims under the FTCA, and dismissed defendants Lappon, Sadowski, and Lindsay from the case. (ECF No. 3, Memorandum and Order, dated June 30, 2009.)

The United States filed its answer on October 27, 2009, denying the plaintiff's allegations and asserting affirmative defenses. (ECF No. 10, Answer, dated Oct. 27, 2009.) Defendants were ordered to identify the "John Doe" defendants, (ECF No. 21, Order, dated Nov. 30, 2009), and the United States subsequently identified Raul Campos, MDC Health Services Administrator, as John Doe #1, and John Saint-Preux and Ignatius Hall, MDC medical practitioners, as John Doe #2. (ECF No. 22, Defs. Letter, dated Dec. 28, 2009.) Campos, Saint-Preux, and Hall were then added as defendants in this matter.

The Individual Defendants served the instant motion on plaintiff on June 25, 2009 and reminded plaintiff that his responsive pleading was due by August 13, 2010. (See ECF No. 36.) Plaintiff failed to oppose the motion, despite twice being apprised of the briefing schedule. (ECF Nos. 35, 36.) Subsequently, on September 7, 2009, the Individual Defendants filed this unopposed motion via ECF. (See generally ECF No. 41, Memorandum of Law in Support of Motion to Dismiss Plaintiff's Complaint or, In the Alternative, for Summary Judgment on Behalf of Defendants C. Brooks, Michael Borecky [sic], Raul Campos, Ignatius Hall, and John Saint-Preux ("Defs. Mot.").)

II.Undisputed Material Facts

The following facts are taken from plaintiff's complaint and defendants' unopposed statement of material facts pursuant to Local Civil Rule 56.1.

Plaintiff is an inmate who was housed at MDC as a "hold-over" for approximately three weeks from March 28, 2008 to April 15, 2008. (ECF No. 41-3, [Defendants'] Local Rule 56.1 Statement ("Defs. R. 56.1 Stmt.") at ¶¶ 3, 9.) Plaintiff alleges that he was processed by MDC on March 28, 2008 and that either defendant Hall or defendant Saint-Preux performed a medical screening intake of plaintiff and received medical records and medication transported with plaintiff on that day. (Id. at ¶¶ 3, 4.) Plaintiff further alleges that on April 1, 2008, he saw defendant Brooks, an employee of the Public Health Service of the United States Department of Health and Human Services, who was assigned to the MDC, and informed her that he needed epilepsy medication, but defendant Brooks told plaintiff that he would need to wait to be seen until she reached his name on her alphabetized list. (Id. at ¶ 5; Declaration of Assistant United States Attorney Kelly Horan Florio ("Florio Decl.") ¶ 3; Florio Decl., Ex. A.) Later that day, plaintiff suffered a seizure and was taken to a local hospital. (Def. R. 56.1 Stmt. ¶ 6.) Plaintiff alleges that this seizure was the result of inadequate medical treatment by Berecky and Brooks. (Id. at ¶ 7.) Plaintiff was treated at the hospital and returned to MDC on April 3, 2008. (Id. at ¶ 6.) Plaintiff remained at MDC until April 15, 2008. (Id. at ¶ 9.)

Plaintiff made several complaints about the medical treatment he received and the injuries he suffered. Regarding his FTCA claims, plaintiff filed an administrative tort claim on form SF-95 on or about June 5, 2008, which was denied on December 2, 2008. (Id. at ¶ 11.) Plaintiff filed a second administrative tort claim on June 11, 2009, which was rejected as duplicative of his first claim and denied on December 8, 2009. (Id. at ¶ 12.) Regarding plaintiff's constitutional claims, on June 15, 2009, he filed a BP-9 administrative remedy request form seeking monetary compensation for injuries allegedly sustained during his April 2008 seizure. (Id. at ¶ 13.) This request was rejected as improperly filed. (Id. at ¶ 14.) On June 22, 2009 and July 16, 2009, plaintiff filed BP-10 and BP-11 administrative remedy request forms. (Id. at ¶ 15.) These forms were also rejected as improperly filed. (Id.)



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