The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Plaintiff brings this action for monetary and equitable relief against defendants United States Attorney General Eric Holder, Jr., and Secretary of the Department of Homeland Security Janet Napolitano, in their official capacities; Immigration and Customs Enforcement ("ICE") employees Christopher Shanahan and Melvin Chavez, in their official and individual capacities; and the General Services Administration, a federal agency (this Memorandum and Order refers to the above defendants collectively as the "federal defendants"). Also named as defendants are two private entities, Corrections Corporation of America ("CCA"), and Ahtna Technical Services, Incorporated ("Ahtna"), and two Ahtna employees, Officer Gaston and Lieutenant Smith. Plaintiff seeks to hold defendants liable for a raft of alleged constitutional violations arising out of an injury plaintiff allegedly suffered at the hands of a fellow inmate while detained in a Manhattan ICE facility awaiting removal.
Presently before the Court is the federal defendants' motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim, pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. (Notice of Mot. (Doc. No. 29) at 1.) For the reasons stated below, federal defendants' motion is GRANTED, and all federal and state claims against these defendants are DISMISSED.
The following facts are drawn from plaintiffs' complaint, the factual allegations of which are taken as true for purposes of defendants' motion to dismiss. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). Plaintiff is a native citizen of the People's Republic of China who currently resides in Queens, New York. (Compl. (Doc. No. 1) ¶ 17.) In February 2001, plaintiff was ordered removed from the United States pursuant to a final order of removal signed by an immigration judge. (Id. ¶¶ 27, 29.) ICE first detained plaintiff at its Varick Street Detention Facility, located at 201 Varick Street, Manhattan, in February 2005, and released him in December 2005 pursuant to an Order of Supervision, after failing to obtain from the Chinese Consulate in New York the travel document necessary to execute plaintiff's removal. (Id. ¶ 27.) Plaintiff was subsequently incarcerated for violating a condition of supervised release, though the complaint does not provide specifics of the offense or the nature of the condition violated.*fn1
(Id. ¶¶ 14, 28.) Plaintiff was transferred on June 19, 2009 to ICE custody at the Varick facility. (Compl.¶¶ 3, 14, 28, 37.) On September 3, 2009, "ICE officers" -- unnamed in the complaint -- held an initial custody review and decided to continue plaintiff's detention. (Id. ¶ 37.) On January 8, 2010, anonymous "ICE officers" performed another custody review, and again determined to keep plaintiff in custody. (Id. ¶¶ 5, 34.) On January 28, 2010, the "Embassy of China notified ICE that they [sic] could not issue a travel documents [sic] for plaintiff."*fn2 (Id. ¶¶ 6, 35.) On February 3, 2010, plaintiff was "attacked in his sleep by [fellow inmate Yu Sheng] Huang, who punched Mr. Chen in the head and eyes." (Id. ¶ 38.) Huang is alleged throughout the complaint to have suffered from unspecified "mental incapacitation," "mental disturbance," and "mental infirmity." (See, e.g., id. ¶¶ 8, 65, 66, 86, 103, 161.) As a result of the attack, plaintiff "temporarily los[t] sight in his left eye," his "vision became blurry, and he suffered from pain and sensitivity in his left eye." (Id. ¶¶ 39--40.) At some unspecified time, plaintiff was "diagnosed with a traumatic vitreous hemorrhage in his left eye." (Id. ¶ 41.) On February 16, 2010, plaintiff was released from detention pursuant to an Order of Supervision. (Id. ¶ 37.)
Plaintiff filed the instant action in May 2010. In July 2010, plaintiff and defendant CCA submitted a stipulation of dismissal of plaintiff's claims against CCA without prejudice. (Stipulation of Dismissal (Doc. No. 4) at 1). As more fully discussed below, plaintiff alleges that he was deprived of various constitutional and civil rights because the federal defendants failed to protect him from the injury he suffered at the hands of Huang. The federal defendants filed the instant motion to dismiss on March 25, 2011 (Notice of Mot. (Doc. No. 29) at 1), pursuant to a briefing schedule set at a pre-motion conference held on November 17, 2011,*fn3 at which plaintiff's counsel failed to appear. (See Minute Entry, Nov. 17, 2010 (Doc. No. 22) at 1.) The federal defendants move to dismiss all claims against them in their official capacities for failure to state a claim under Bivens, and failure to exhaust under the Federal Tort Claims Act; all claims for injunctive relief for mootness; and all claims against Chavez and Shanahan in their individual capacities for failure to state a claim, and on grounds of qualified immunity. The federal defendants also move to dismiss all claims against Chavez and Shanahan in their personal capacities for failure to serve. For the reasons set forth below, these motions are GRANTED in their entirety.
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to examine the legal, rather than factual, sufficiency of a complaint. Harris, 572 F.3d at 71. As required by Rule 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
A court considering a 12(b)(6) motion must "take[ ] factual allegations [in the complaint] to be true and draw[ ] all reasonable inferences in the plaintiff's favor." Harris, 572 F.3d at 71 (citation omitted). A complaint need not contain " 'detailed factual allegations,' " but it must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, the plaintiff's complaint must include "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). The determination of whether "a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157--58 (2d Cir. 2007)).
I.Official capacity claims
The federal defendants argue that the Court lacks subject matter jurisdiction over plaintiff's claims against them in their official capacities, and therefore must dismiss those claims under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Under Rule 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 required to draw all reasonable inferences in the plaintiff's favor. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). Rather, 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. Additionally, in deciding a 12(b)(1) motion, the district court may rely on and refer to evidence outside the pleadings. Id. ("In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings").
A.Claims arising under Bivens
The thirteen "counts" of plaintiff's complaint are phrased in terms alleging violations of plaintiff's rights arising under the federal Constitution, or federal civil rights statutes, such as 42 U.S.C. § 1983. (See Compl. ¶¶ 42, 53, 62, 80, 89, 104, 115, 123, 133, 141, 146, 157). Therefore, although the complaint does not mention Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff's claims against the federal defendants are properly characterized as claims arising under Bivens. See Robinson v. Overseas Military Sales Corp., 21 F.3d ...