The opinion of the court was delivered by: Matsumoto, United States District Judge
On September 16, 2009, Marquaillas Gray ("plaintiff") commenced this pro se action pursuant to 42 U.S.C. Section 1983, alleging violations of his constitutional rights by the Federal Bureau of Prisons' ("BOP") Metropolitan Detention Center ("MDC"), Marquea Rice, Senior Officer Specialist at the MDC ("Rice"), and Lesley Foreman, Senior Officer Specialist at the MDC ("Foreman") (collectively, "defendants"). The court construes plaintiff's claims principally under Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens").*fn1 Construed broadly, the Complaint alleges that defendants served plaintiff food containing glass fragments, causing him to sustain lacerations to his gums and mouth, and that defendants subsequently delayed treatment of plaintiff's injuries, resulting in prolonged pain and anguish and the loss of a tooth.
Pending before the court is defendants' motion to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. (See ECF No. 22, Notice of Motion, dated July 28, 2010 ("Notice of Mot.").) For the reasons set forth below, defendants' motion to dismiss and, in the alternative, for summary judgment is granted.
I.Procedural History and Complaint Allegations
Plaintiff, a former inmate at the MDC, commenced this action pro se on September 16, 2009, against defendants MDC, Rice, and Foreman. (See ECF No. 1, Complaint ("Compl.") at 1; Defendants' Statement Pursuant to Local Civil Rule 56.1 ("Defs.'R. 56.1 Stmt.") ¶ 1.) Liberally construed, the Complaint asserts claims against defendants for cruel and unusual punishment in violation of the Eighth Amendment, and for negligence. Specifically, plaintiff alleges that on July 6, 2009, while plaintiff was in solitary confinement in the MDC, defendants Rice and Foreman (the "Individual Defendants") served plaintiff food that contained fragments of glass. (Compl. app.A.) Plaintiff suggests that the food was intentionally contaminated as "retaliation" against plaintiff's cellmate, who had filed complaints against a "couple of officers [who] work with Officer Foreman" at the MDC. (Compl. apps. A, B.) As a result of eating glass fragments, plaintiff claims to have suffered bleeding, sharp pains, lacerations to his gums and mouth, and a broken tooth. (Id.)
Plaintiff further asserts that he reported his injury the same day to the Individual Defendants. (Id. app. A) Plaintiff alleges that he was taken to see a doctor, who promised plaintiff an x-ray to ensure that he was not bleeding internally. (Id.) Plaintiff claims, however, that he did not receive an x-ray at the MDC. (Id.) As a result of this delay in medical treatment, plaintiff claims to have suffered pain and anguish and lost a tooth. (Id. app. B.) He seeks money damages in the amount of $70,000. (Id.) Plaintiff asserts that he "ha[s] copies of all [his] unheard request[s] that were submitted" (id. app. A), but he has not submitted to the court copies of any administrative requests.
On October 28, 2009, the court granted plaintiff's motion to proceed in forma pauperis. (ECF No. 4, Order dated Oct. 28, 2009.) On January 25, 2010, the court denied defendants' request for a pre-motion conference, directed defendants to advise plaintiff of the steps necessary to oppose a motion to dismiss, and directed defendants to submit a proposed briefing schedule for their anticipated motion to dismiss and, in the alternative, for summary judgment. (See Order Denying Request for Pre-Motion Conference, dated Jan. 25, 2010.) Defendants sent a letter to plaintiff on February 8, 2010 seeking his consent to a proposed briefing schedule and notifying him of the steps necessary to oppose their anticipated motion. (See ECF No. 11-1, Letter from Orelia E. Merchant to Marquaillas Gray, dated Feb. 8, 2010.) On April 9, 2010, defendants filed their proposed briefing schedule with the court. (See ECF No. 11, Letter from Orelia E. Merchant to the Honorable Kiyo Matsumoto, dated Apr. 9, 2010.) In a letter to the court dated April 15, 2010, plaintiff acknowledged that he "need[ed] to generate a response before the end of April 2010" and requested that the court appoint counsel to represent him. (ECF No. 12, Letter from Marquaillas Gray to the Honorable Lois Bloom, dated Apr. 15, 2010.)
On May 19, 2010, Magistrate Judge Bloom held an initial telephone conference with the parties. (See ECF No. 18, Transcript of Telephone Conference, dated May 19, 2010 ("May 19 Tr.").) During the course of the call, plaintiff stated that he had "filed [a] BP-8 at M.D.C." but that he did not have a copy of the form because he was transferred to another facility shortly after he filed it and he was not permitted to take any documents with him to the new facility. (Id. at 16.) Plaintiff further stated that on July 6, 2009, the night he was allegedly injured, he saw a doctor who examined his mouth and scheduled him for an x-ray. (Id. at 19.) Additionally, plaintiff noted that he could not say whether or not defendants Rice and Foreman had put the glass in his meal; he only knew that they "were the two Officers that gave [him] the glass." (Id. at 24.) On June 22, 2010, Magistrate Judge Bloom held a second telephone conference with the parties. (See ECF No. 16, Minute Entry for Telephone Conference, dated June 22, 2010.) On June 24, 2010, Judge Bloom denied without prejudice plaintiff's request to appoint counsel and established a briefing schedule for defendants' motion. (See ECF No. 17, Order Denying Without Prejudice Plaintiff's Letter Motion to Appoint Counsel, dated June 24, 2010.)*fn2
Defendants served plaintiff with the instant motion on July 28, 2010 and reminded him that "opposing affidavits and/or answering memorandum of law" were due by August 30, 2010. (See ECF No. 21, Letter Transmitting Notice of Motion, Notice to Pro Se Litigant Opposing Motion, Declaration of Nicole McFarland, Declaration of Orelia E. Merchant, 56.1 Statement, and Defendants' Memorandum in Support, dated July 28, 2010 ("Letter Transmitting Notice").) Despite having received adequate notice of the briefing schedule and a copy of the Notice to Pro Se Litigant Opposing a Rule 12 Motion Supported by Matters Outside the Pleadings and Motion For Summary Judgment, plaintiff did not oppose defendants' motion.*fn3 (See Letter Transmitting Notice; ECF No. 23, Notice to Pro Se Litigant Opposing a Rule 12 Motion Supported by Matters Outside the Pleadings and Motion For Summary Judgment, dated July 28, 2010.) On September 13, 2010, defendants filed their unopposed motion via ECF. (See ECF No. 26, Defendants' Memorandum of Law in Support of Their Motion to Dismiss the Complaint, or In the Alternative, For Summary Judgment ("Defs.' Mem.").)
Defendants move to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, arguing that (1) plaintiff's constitutional tort claims against defendant MDC and against defendants Rice and Foreman in their official capacities are barred by sovereign immunity; and (2) to the extent plaintiff's claims are construed as arising under the Federal Tort Claims Act, 28 U.S.C. § 2079 ("FTCA"), such claims must be dismissed because plaintiff failed to exhaust his administrative remedies. (See Defs.' Mem. at 3-6.)
In the alternative, the Individual Defendants seek summary judgment pursuant to Federal Rule of Civil Procedure 56 with respect to claims against them in their individual capacities, arguing that (1) plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a) (the "PLRA"); (2) plaintiff failed to allege facts supporting a claim that the Individual Defendants were personally involved in a violation of his constitutional rights; (3) plaintiff failed to allege facts supporting a claim that the Individual Defendants exercised deliberate indifference to his medical needs; and (4) the Individual Defendants are entitled to qualified immunity because plaintiff failed to allege facts supporting a claim that the Individual Defendants violated his constitutional rights. (See Defs.' Mem. at 6-16.)
II.Undisputed Material Facts*fn4
The following facts are taken from the Complaint, defendants' unopposed statement of material facts pursuant to Local Civil Rule 56.1, and materials in the record.
Plaintiff is an inmate who was housed at the MDC from October 16, 2008 to July 15, 2009. (Defs.' R. 56.1 Stmt. ¶ 1.) A search of the BOP's computerized database maintained in the ordinary course of business revealed that plaintiff did not file any claims through the BOP's administrative remedy process while he was housed at the MDC between October 16, 2008 and July 15, 2009. (ECF No. 24, Declaration of Nicole McFarland ("McFarland Decl.") ¶ 14, Ex. A; Defs.' R. 56.1 Stmt. ¶¶ 14-15.) The BOP has not received an SF-95 form from plaintiff. (Defs.' R. 56.1 Stmt. ¶ 17.)
Medical records maintained by BOP reveal that on July 10, 2009, four days after the alleged incident, plaintiff saw a doctor at the MDC to complain about chest pain from a bullet lodged in his body. (Defs.' R. 56.1 Stmt. ¶ 19; McFarland Decl. Ex. B at US000002.) The doctor noted in plaintiff's file that "x-rays will be performed." (McFarland Decl. Ex. B at US000003.) During that visit, plaintiff did not complain of any mouth, gum, or tooth pain and he did not mention to the doctor that he had ingested any glass. (Defs.' R. 56.1 Stmt. ¶ 19; McFarland Decl. Ex. B at US000002-05.) Plaintiff's BOP records do not reflect that he ever complained of eating or swallowing glass. (See generally McFarland Decl. Ex. B.)
On July 15, 2009, plaintiff was transferred from the MDC to the Queens Private Detention Center ("QPDC"). (Defs.' R.56.1 Stmt. ¶ 20.) Medical records maintained by the QPDC reveal that during his intake screening at the QPDC on July 15, 2009, plaintiff did not complain to QPDC medical staff of any pain or injuries. (Id. ¶ 21; Declaration of Orelia E. Merchant ("Merchant Decl.") Ex. A at QPDC000000111, QPDC000000113.) According to plaintiff's medical records, the first time plaintiff ever complained to a doctor of swallowing any foreign object was on September 25, 2009. On that date, he complained to QPDC staff that he had swallowed a "plastic wrapper 2cm long," "choked," and "couldn't breath[e]." (Merchant Decl. Ex. A at QPDC000000105-06.) In a medical request dated September 26, 2009, he complained, "[m]y throat is on fire, it feels scar[r]ed. It burns [harshly] everytime I swallow d[ue] to the incident that occurred yesterday." (Id. Ex. A at QPDC000000079.) On September 29, 2009, plaintiff again saw QPDC medical staff and complained that five days earlier he had "swallowed a piece of [staple] remover that was in [his] food" and he now saw blood in his stool. (Id. Ex. A at QPDC000000103.) At a psychological ...