The opinion of the court was delivered by: John Gleeson, United States District Judge:
Anthony Valentine brings this action pursuant to Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971),*fn1 for injunctive
relief and damages arising from injuries to his hand and leg sustained
while he was incarcerated at the Metropolitan Detention Center ("MDC")
in Brooklyn, as well as for having allegedly been deprived of access
to a handicap-accessible shower. He further alleges under 42 U.S.C. §§
1981, 1985, and 1986 a conspiracy to interfere with his civil rights.
Reading his complaint liberally, I also find that he alleges each of
these claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671-80 ("FTCA"). Defendants Lindsay, Ittayem, Beard, Kaufman,
Anderson, Parbone, Guimond, Flores, Campos, and Mitchell*fn2
have moved to dismiss the complaint, or in the alternative
for summary judgment.*fn3 For the reasons stated
below, I grant the defendants' motion to dismiss.
From August 2006 through February 2009, Valentine was an inmate at the MDC in Brooklyn, which is run by the Federal Bureau of Prisons ("BOP"). While there he suffered several injuries that ultimately led to this law suit.
On January 4, 2007, while was playing basketball in the MDC's recreational area, Valentine suffered an injury to his left hand that was later determined to be a broken metacarpal bone. He was examined several hours later in the MDC infirmary by Tunesia Mitchell, a physician's assistant. Valentine alleges that Mitchell, by "pulling and squeezing [his] injured hand," determined "without tak[ing] one x-ray" that the hand was not broken. (Compl. ¶ 7.) Mitchell then wrapped Valentine's hand, gave him pain medication, and sent him back to his unit. (Id.)
Five days later, on January 9, 2007, Valentine was taken to the Lutheran Medical Center in Brooklyn for an examination by Dr. Erkin Seytnazarov. (Id.) Seytnazarov diagnosed Valentine with a metacarpal fracture, prescribed rest, elevation, ice, and Motrin, and instructed him to follow up with a hand surgeon within three to four days. (Exh. G at 6.*fn5 ) However, he was not taken to see a hand surgeon until a month later, on February 9, 2007, at which point he was prescribed physical therapy. (See Rule 56.1 Statement ¶ 56-57.) He attended two physical therapy sessions in March of 2007, but those sessions abruptly ceased because the MDC lost its in-house physical therapy contract. (Compl. ¶ 7.)
2. The Leg Injury and the Shower Claim a. The Leg Injury
On August 24, 2008, Valentine again sustained an injury playing basketball -- this time, to his leg. He was taken by stretcher to the medical services wing of the MDC where he was seen by physician's assistant J. St. Preux,*fn6 who "also had no idea of what type of injury [Valentine] had." (Compl. ¶ 9.)*fn7 St. Preux "gave [Valentine] pain-killers, sent [him] back to [his] unit in a wheel chair." (Id.) Valentine was subsequently diagnosed with a nontraum rupture of the Achilles tendon, and underwent surgery to repair the tear on September 17, 2008. (Rule 56.1 Statement ("R. 56") ¶¶ 84, 91.) He received "a few sessions" of physical therapy for his leg injury at Kingsbrook Jewish Medical Center. (Compl. ¶ 9.)
b. Access to Handicap-Accessible Sanitary Facilities
Valentine alleges that during the time he was confined to a wheelchair or restricted to ambulating on crutches, from August 24, 2008 to October 15, 2008, he was not provided with a handicap-accessible shower (the "shower claim"). Shortly after his injury, upon realizing that the handicap-accessible shower in his housing unit was out of order, he requested to use the shower in another unit. However, when he was taken to the other unit he found that that shower too was out of order. He then submitted informal grievance forms (known as "BP-8s" or "cop-outs") on August 26, September 15, October 7, and October 9, 2008, asking MDC staff to provide him with access to a shower. For part of that time, between September 22 and October 2, 2008, he was in the Special Housing Unit ("SHU"), where his cell had a foot-high partition that caused him difficulty due to his cast. (Compl. ¶ 9.)
On October 14, 2008, shortly after he was returned to his unit from SHU, Valentine approached unit team manager Beard about the problem. Valentine was referred to safety director Butler, who allegedly responded "it will be taken care of." (Id.) The next day, after almost two months of being unable to bathe, Valentine attempted to wash in a shower stall that was not handicap-accessible. His injured leg could not hold him, and he fell. He sustained injuries to his back, head, and neck, for which he was treated in the prison infirmary. (Id.; see
Rule 56.1 Statement ¶ 95 (noting that Valentine had "injured the right side of his head while getting out of the shower" and had sustained "abrasions, contusions, trauma and inflammation" as a result of the fall).) He also developed various skin problems and rashes due to his prolonged inability to clean himself, some of which remain to this day. (Exh. H at 4.)
B. Valentine's Pursuit of Administrative Remedies
a. Internal MDC Grievance System
On October 12, 2008, Valentine submitted a BP-8 to prison officials regarding the hand injury. According to Valentine the complaint went unanswered. (Compl. ¶ 7.) He resubmitted his BP-8 on March 14, 2008, April 21, 2008, and June 12, 2008, but received no response. (Compl. ¶¶ 7-8.) He also submitted two cop-outs directly to Warden Lindsay on May 5, 2008. (Compl. ¶ 8.)
On November 10, 2008, Valentine began the formal BOP grievance process by submitting a form known as a BP-9 to Warden Lindsay. (McFarland Decl. ¶ 17; see Exh. C at 2.) The form sought follow-up medical care for Valentine's broken hand. The BP-9 was rejected the same day because (1) he had not submitted the form through his counselor as prison regulations required, and (2) he had not attempted (or presented evidence of an attempt at) informal resolution via a BP-8. He was advised to resubmit his BP-9 within five days through the proper channels and to attach evidence of any informal attempts at resolution. However, prison officials also forwarded his BP-9 to the MDC's Health Services department for review and appropriate action. (McFarland Decl. ¶ 17; Exh. C at 2.) As instructed, Valentine timely refiled his BP-9 on November 14, 2008, but on December 30, 2008 it was rejected for the stated reason that he had already received the requested treatment. (McFarland Decl. ¶ 18; see Exh. C at 2.)
On January 20, 2009, Valentine timely filed a BP-10 form with the BOP regional office appealing the denial of his BP-9. This appeal was denied on February 19, 2009, for the stated reason that he had already received the prescribed treatment. (McFarland Decl. ¶ 19; see Exh. C at 3.)
On April 21, 2009, Valentine appealed the denial of his BP-10 using a form known as a BP-11, which he filed with the general counsel of the BOP. (McFarland Decl. ¶ 21.) On May 1, 2009, the appeal was rejected as untimely, and Valentine was advised to resubmit the BP-11 with a notice on BOP letterhead indicating that the untimeliness was not his fault. (Id.; see Exh. C at 4.) Valentine resubmitted his BP-11 without alteration or explanation on May 18, 2009, and it was again rejected as untimely on May 30, 2009 with the same instruction giving him an opportunity to explain his untimeliness. (McFarland Decl. ¶ 22.) Valentine resubmitted his BP-11 for the third time on June 16, 2009, still without the required explanation, and on August 21, 2009, the BP-11 was denied and closed. (Id. ¶ 24).*fn8 Valentine filed no further BOP administrative grievances regarding his hand injury.
On August 28, 2008, Valentine filed an administrative claim regarding his hand injury with the BOP's regional office, pursuant to the exhaustion requirement of the FTCA. The claim made substantially the same allegations as the complaint in the instant action: that he was "not provided timely nor appropriate medical care for an injury suffered to [his] left hand . . . at the [MDC] on January 4, 2007." (Exh. F at 1.) His principal complaints were that "the administration at MDC . . . disregarded the importance" of Dr. Seytnazarov's recommendation that Valentine's wrist "would need surgery within 3-4 days" of the injury, and did not take him for surgery until five weeks later, at which point surgery was no longer a viable treatment option. (Id. at 4-5.) He also alleged that he had not received sufficient physical therapy, and stated his belief that "the administration at MDC Brooklyn is at fault for [his] current physical condition." (Id. at 5.)
The BOP denied the claim on February 23, 2009. (Id. at 1.) It determined that Valentine was "provided with the necessary and appropriate emergent care" after the injury, and given "follow up care with a hand surgeon on two occasions, provided physical therapy, and provided medication for pain." It further noted that Valentine had "not provided evidence that the MDC Brooklyn Health Services Department acted negligently or otherwise denied [him] appropriate medical care." (Id.) The denial notice instructed Valentine that if he wished to appeal the BOP's decision he should bring suit against the United States in the appropriate United States District Court within six months of the date of the denial (i.e., prior to August ...