The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Pro se plaintiff Joseph Gumbs ("Gumbs"), a pre-trial detainee held at the Metropolitan Detention Center ("MDC") Brooklyn, filed the present action against the Medical Department at the MDC as well as individual MDC employees pursuant to 42 U.S.C. § 1983, asserting an Eighth Amendment claim of deliberate indifference to petitioner's medical needs after he allegedly sustained neck, back and shoulder injuries from a March 2009 fall at the MDC. (Compl. Addendum (Doc. No. 1) ¶¶ 2, 5.) Defendants move to dismiss plaintiff's claim pursuant to Fed. R. Civ. P. 12(b) or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff is granted in forma pauperis status for purposes of the present action. For the reasons set forth herein, defendants' motion is GRANTED with respect to defendant MDC Medical Department pursuant to Fed. R. Civ. P. 12(b)(1), under the doctrine of sovereign immunity, and with respect to individual defendants pursuant to Fed. R. Civ. P. 56.
Plaintiff arrived at the MDC Brooklyn for pre-trial detention in February 2009. (Defs.' 56.1 Stmt. (Doc. No. 26) ¶ 1.) On March 10, 2009, plaintiff fell in the MDC shower and the "unit officer"*fn1 called for medical assistance on his behalf. It is alleged that despite further phone calls by unit officers to the Medical Department at the MDC "in the days following" the fall, plaintiff received no medical attention. Plaintiff states that he had no other means of seeking medical attention except through filing sick call slips and written requests,*fn2 which he did numerous times to no avail. (Compl. Addendum ¶¶ 2-5.) Plaintiff states that because he was suffering extreme pain, he next sought the assistance of defendant Counselor Edwards, the counselor assigned to plaintiff's unit at the MDC, to schedule a medical appointment. Defendant Edwards allegedly told plaintiff that "pre-trial inmates are of no great concern here at MDC-Brooklyn. You'll have to just keep filing requests. Now get out of my office." (Id. ¶ 6.)
Plaintiff further alleges that a five-month delay between the March 2009 injury and August 2009 medical visit "prevented the plaintiff from receiving treatment for his injuries and left the plaintiff in a perpetual state of pain." (Id. ¶ 7). Medical records show that on August 14, 2009, roughly five months after plaintiff's alleged fall, plaintiff received medical attention from defendant Dr. Borecky for a six-month follow-up regarding his diabetes.*fn3 (Defs.' 56.1 Stmt. ¶ 75; see Compl. Addendum ¶ 7.) Plaintiff reported that he had been experiencing intermittent pain in his left shoulder for the past two and half months but made no mention of neck or back pain. (Decl. of Layaliza K. Soloveichik ("Soloveichik Decl.") Ex. B (Doc. No. 29, Attach. 1) at 24.) Dr. Borecky assessed plaintiff's condition as joint pain in the left shoulder region stemming from a 2005 injury, gave plaintiff a new painkiller prescription, and ordered x-ray films to be taken of plaintiff's left shoulder. (Id. at 26; see Compl. Addendum ¶ 9.) Contrary to plaintiff's assertion that "the medical staff delayed an additional three months before actually conducting the x-ray" ordered by Dr. Borecky on August 14, 2009 (Compl. Addendum ¶ 9), medical records show that on August 27, 2009, x-rays were taken of plaintiff's left shoulder and the findings of the radiologist were negative. (Soloveichik Decl. Ex. B at 28.)
In November 2009, plaintiff filed an Inmate Request for Informal Resolution, otherwise known as a BP-8. A BP-8 is the first step in the administrative remedy process. Plaintiff's BP-8, dated November 12, 2009, only identified pain in his left shoulder and was received by MDC staff on November 24, 2009. (Id. at 29.) The next day, plaintiff was seen by Dr. Borecky for "progressively worsening pain in the left shoulder." (Id. at 30.) On this visit, plaintiff reported that the history of trauma date back to 2005 when his left arm was twisted behind his back during the course of an arrest. (Id..) Dr. Borecky prescribed medication and requested an orthopedic consultation. A follow-up visit was scheduled for February 2010. (Id. at 32.) On February 3, 2010, defendant Dr. Jusayan,*fn4 who was plaintiff's assigned treating physician approximately from the latter part of 2009 until March 2010 (Defs.' 56.1 Stmt. ¶ 63), examined plaintiff. (Soloveichik Decl. Ex. B at 34.)
Plaintiff alleges that approximately thirteen months after sustaining the injuries, plaintiff was sent to see an orthopedic specialist who ordered an MRI scan to be performed, and that it took an additional three months for plaintiff to receive the MRI. (Compl. Addendum ¶ 10.) Medical records indicate that on February 17, 2010, roughly eleven months after plaintiff's March 2009 injury, plaintiff received an orthopedic consultation at New York downtown Hospital, which recommended an MRI of his left shoulder and a return for a second consultation after the MRI. On the same day, Dr. Jusayan requested an MRI for plaintiff's left shoulder as recommended by the orthopedic clinic, orthopedic surgery as a follow-up after the MRI, and authorized plaintiff to request a two-piece prison jump suit. (Soloveichik Decl. Ex. B at 43-44.) On October 4, 2010, plaintiff underwent an MRI of his left shoulder at New York Downtown hospital. (Id. at 49-50.)
The first mention in plaintiff's medical records of lower back pain, but not neck pain, by plaintiff to a member of the MDC medical staff was during a February 2, 2011 visit with defendant Dr. Newland.*fn5 (See id. at 66.)On March 11, 2011, plaintiff received a follow-up consultation with an orthopedic surgeon, who recommended physical therapy. (Id. at 71.) the MDC approved the request for said physical therapy on March 18, 2011. (Defs.' 56.1 Stmt. ¶¶ 131-33.) On April 18, 2011, plaintiff was evaluated by an outside rehabilitation specialist for the appropriate course of physical therapy and, upon plaintiff's return to the MDC, defendant Dr. Borecky prescribed medication for plaintiff's left shoulder pain and ordered physical therapy to begin. On the same visit, Dr. Borecky also ordered x-rays of plaintiff's cervical and lumbar spine because plaintiff complained of neck and lower pain; this appears to be the first mention of neck pain in plaintiff's medical records. (See Soloveichik Decl. Ex. B at 73.)
Plaintiff underwent three sessions of physical therapy in June 2011. (Defs.' 56.1 Stmt. ¶¶ 143-44, 147.) On July 7, 2011, plaintiff was seen by Dr. Newland and requested a stop to the physical therapy because of unbearable pain he experienced on each of the three sessions. Dr. Newland granted plaintiff's request to discontinue physical therapy. (See Soloveichik Decl. Ex. B at 86, 88.)
Plaintiff, proceeding pro se, filed the present action on February 15, 2011. By Order dated March 3, 2011, the Court construed plaintiff's § 1983 action as one pursuant to Bivens v. Six Unkown Fed. Marc. Agents, 403 U.S. 388 (1971) and dismissed the Bivens claims against defendant Federal Bureau of Prisons ("BOP") and against individual defendants in their official capacities under the doctrine of sovereign immunity.*fn6 (March 3, 2011 Order (Doc. No. 3).)
"A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks omitted). Accordingly the Court construes plaintiff's Complaint with "special solicitude" and interprets it to raise the strongest arguments it suggests. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (quoting Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)).
Legal Standards Governing Motions Pursuant to Fed. R. Civ. P. 12(b) To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, "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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).Acomplaint 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 570). 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)).
"The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is 'substantively identical' to the 12(b)(6) standard, except that the plaintiff has the burden of establishing jurisdiction in a 12(b)(1) motion." S & R Dev. Estates, LLC v. Bass, 588 F. Supp. 2d 452, 460 (S.D.N.Y. 2008); see Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003). "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." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)); see also Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003) ("Failure of subject matter jurisdiction, of course, is not waivable and may be raised at any time by a party or by the court sua sponte.") In considering a motion to dismiss for lack of subject matter jurisdiction, a district 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. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citation omitted). This Court, however, "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." Id. (citations omitted). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2005). Legal Standards Governing Motions Pursuant to Fed. R. Civ. P. 56 Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In deciding a summary judgment motion, a district court must draw all reasonable inferences in favor of the non-moving party. See id. at 249 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)); Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998). Thus, the court must not "weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty America v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2007) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). Any evidence in the record of any material fact from which an inference could be drawn in favor of the non-moving party precludes summary judgment. See Castle Rock Entm't, 150 F.3d at 137.
Once the movant has demonstrated that no genuine issue of material fact exists, such that it is entitled to judgment as a matter of law, then "the non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). "Conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to the material facts.'" Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (citing Anderson, 477 U.S. at 252; Matsushita, 475 U.S. at 586.) Instead, the non-moving party must present "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Only disputes over material facts "that might affect the outcome of the suit under the governing law" will properly preclude the entry of summary judgment. Id. at 248; see also Matsushita, 475 U.S. at 586.
I.DOCTRINE OF SOVEREIGN IMMUNITY BARS CLAIM AGAINST MDC'S MEDICAL DEPARTMENT
All of plaintiff's claims against the MDC's Medical Department must be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). "Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived." Robinson v. Overeas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994); Kentucky v. Graham, 473 U.S. 159, 166-67 (1985)). As such, the Court hereby dismisses plaintiff's Bivens claims against defendant Medical Department at MDC, a federal agency, for a lack of subject matter jurisdiction under the doctrine of sovereign immunity. See, e.g., Nkansah v. Medical Dept. of MCC, No. 10 CV 3211, 2011 WL 4073362, at *3 (E.D.N.Y. Sept. 13, 2011) (dismissing claims against the MDC's Medical Department for lack of subject matter jurisdiction); Demartino v. Zenk, No. 04 CV 3880(SLT)(LB), 2006 WL 1455456, at *4 (E.D.N.Y. May 25, 2006) (dismissing Bivens claims against the MDC's Medical Department under doctrine of sovereign immunity); cf. Keene Corp. v. United States, 700 F.2d 836, 845 n.13 (2d Cir. 1983) ("Bivens authorizes suits against the responsible federal official, not against the government itself, and Bivens-type actions against the United States are . . . routinely dismissed for lack of subject matter jurisdiction." (citations omitted)).
II.CLAIMS AGAINST INDIVIDUAL DEFENDANTS ARE NOT ADMINSTRATIVELY EXHAUSTED UNDER THE PLRA AND REQUIRE DISMISSAL
Plaintiff's Bivens claims against individual defendants are dismissed for failure to exhaust administrative remedies before bringing said claims in federal court.
A.Standard for Administrative Exhaustion Under the PLRA
The Prison Litigation Reform Act ("PLRA") requires inmates to exhaust available administrative remedies before filing actions under federal law challenging prison conditions.*fn7
42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."); see Porter v. Nussle, 534 U.S. 516, 532 (2002) ("[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."). The PLRA's administrative exhaustion requirement applies equally to Bivens claims, including but not limited to Bivens claims ...