United States District Court, E.D. New York
OPINION AND ORDER
ALLYNE R. ROSS, District Judge.
Plaintiff Lyndon Christopher Young brings this suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, for personal injuries arising out of an incident that occurred while he was in federal immigration custody in 2009. Defendant United States of America has moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for summary judgment. For the reasons set forth below, I find that the court lacks subject matter jurisdiction over two of plaintiff's negligence claims because plaintiff did not satisfy the FTCA's presentment requirement, and the court lacks subject matter jurisdiction over the remaining negligence claim because it is barred by the FTCA's discretionary function exception. Accordingly, defendant's motion is granted and the complaint is dismissed for lack of subject matter jurisdiction.
I. Plaintiff's Cell Assignment
The following facts are undisputed unless otherwise noted. Plaintiff was detained on federal immigration charges from 2007 to November 2009 at Federal Detention Center Oakdale ("FDC Oakdale") in Louisiana. Def.'s Local Rule 56.1 Statement of Undisputed Facts ("Def.'s Facts"), Dkt. #43, Ex. 2, ¶¶ 1-2. During part of plaintiff's detention at FDC Oakdale, he was placed in the Special Housing Unit ("SHU"), a unit with increased security designed to house inmates who commit rule infractions. Id . ¶¶ 3, 10. Between July 6, 2009, and August 4, 2009, plaintiff shared a cell in the SHU with inmate Bebb Okitapoy. Id . ¶ 39.
Plaintiff asserts that he made multiple complaints to FDC Oakdale staff members expressing his safety concerns about sharing a cell with Okitapoy. He did not know Okitapoy prior to their assignment to the same cell in the SHU. Decl. of Adanna U. Ugwonali ("Ugwonali Decl."), Dkt. #45, Ex. 3, Dep. of Lyndon Young ("Pl. Dep.") 180. Plaintiff testified that when an FDC Oakdale officer brought plaintiff to the SHU for the first time, plaintiff saw Okitapoy in the cell "making a lot of noise" and was concerned about "the way he was acting." Id. at 178. Plaintiff told the officer, Tony King, that he did not want to share a cell with Okitapoy, but he testified that King "just smiled and put me with him." Id . Plaintiff testified that during the period that he and Okitapoy shared a cell, Okitapoy threatened to harm him on about two occasions. Id. at 91. Okitapoy told plaintiff not to sleep because he would hurt him while he was sleeping. Id. at 77. Plaintiff testified that he filled out written complaint forms, known as "cop-out forms, " in which he described Okitapoy's threats, stated that he feared his life was in danger, and asked for a transfer to a different cell. Id. at 76-77. He recalls filing "a couple" of cop-out forms, but he does not remember exactly how many he filed and did not keep copies. Id. at 76. He testified that FDC Oakdale staff did not respond to the cop-out forms. Id. at 77. Plaintiff also testified that "a couple of times" he told officers on duty that his cellmate was threatening him and asked to be moved to a different cell. Id. at 78-79. He testified that the officers told him to speak to supervising officer Frederick Cobb. Id. at 78. Plaintiff testified that every time Cobb performed rounds, plaintiff would complain to him about his cellmate, but Cobb told him that he would have to wait until the monthly "shift change" when inmates would be moved to different cells. Id. at 79-80.
Defendant denies that FDC Oakdale staff received complaints from plaintiff about his cellmate. Both King and Cobb testified that they did not recall plaintiff making complaints about Okitapoy. Decl. of Matthew Silverman ("Silverman Decl."), Dkt. #44, Ex. E, Dep. of Tony King ("King Dep.") 12-14; Ex. C, Dep. of Frederick Cobb ("Cobb Dep.") 23. Mark Gutierrez, who was at the time the unit manager, testified that inmates' reports of threats from other inmates are typically sent to a lieutenant to investigate. Silverman Decl., Ex. F, Dep. of Mark Gutierrez ("Gutierrez Dep.") 22-24. If the lieutenant determined that there was "some actual justification that there was an issue, " the report would be sent to the Special Investigative Supervisor (SIS) for an investigation. Id. at 43-44. Gutierrez testified that in his role as unit manager he made weekly rounds in the SHU to hear any complaints from inmates, and he does not recall that plaintiff complained to him about wanting to switch his cell. Id. at 40. Lieutenant Brian Webb asserts that the SIS department has no record of a complaint from plaintiff regarding his placement with Okitapoy. Decl. of Brian Webb ("Webb Decl."), Dkt. #44, Ex. 7, ¶ 27.
II. Incident on August 4, 2009
There is no dispute that an incident occurred between plaintiff and Okitapoy on the morning of August 4, 2009. Plaintiff testified that Okitapoy was using the toilet in the cell and had his hands in the toilet. Def.'s Facts ¶ 54. Plaintiff asked Okitapoy to flush the toilet because it was starting to smell, and Okitapoy took his hands out of the toilet and flung something at plaintiff, causing plaintiff to feel a "splash." Id . Okitapoy then rushed at plaintiff, grabbed him by the jumpsuit, and head butted him. Id . ¶ 55. Plaintiff fell straight back and hit his head on the bunk bed and floor. Id . Plaintiff testified that he may have been "knocked out" temporarily and felt "dizzy." Pl. Dep. 105. When plaintiff revived, he saw that Okitapoy was on top of him and that plaintiff's right foot was facing backwards. Id. at 105-07. Plaintiff testified that Okitapoy was not hitting him but was holding plaintiff's jumpsuit so that plaintiff could not move. Id. at 107. Plaintiff testified that he did not feel pain at this time and only felt pain later when officers pulled Okitapoy off of him. Id.
The record does not clearly establish how long it took for the officers to intervene. Plaintiff testified that he heard other inmates in the unit calling for officers to come and assist. Id. at 108. Plaintiff testified that he may have been knocked out for about two or three minutes, then after he revived and found Okitapoy on top of him, it took about eight minutes for officers to enter his cell. Id. at 110. He also testified that he saw an officer at the window of the cell telling Okipatoy to get off him, then, about five minutes later, four or five officers entered the cell wearing "riot gear" and carrying shields and batons. Id. at 111-12. Plaintiff testified that after the officers entered the cell, it took about three minutes for them to pull Okipatoy off plaintiff. Id. at 113. For their part, Senior Officer Joseph Manuel and Senior Officer M.B. Cole reported that they responded to the cell, heard screaming, and saw Okitapoy on top of plaintiff holding him down. Webb Decl., Ex. 2-3. The officers called for assistance and waited for Lieutenant Webb and other staff members to arrive. Id . Manuel testified that it would have taken no more than a minute and a half for officers to arrive at the scene. Silverman Decl., Ex. D, Dep. of Joseph Manuel ("Manuel Dep.") 15-16. Webb asserted that he responded to the incident as soon as he heard about it on the radio and that it would have taken him less than three minutes to get to plaintiff's cell, even from the farthest point on the FDC Oakdale grounds. Webb Decl. ¶¶ 28-29, 31. Webb stated that once he arrived on the scene, he waited for enough staff members to arrive before ordering that they enter the cell. Id. at ¶ 31.
It is undisputed that once the officers entered the cell, they pulled Okitapoy off plaintiff, restrained both plaintiff and Okitapoy, and sent both of them for medical assessment. Def.'s Facts ¶¶ 65-66. Around 8:45 a.m., staff at the SHU assessed plaintiff's injuries and provided treatment, then moved him to FDC Oakdale's Health Services Unit for further treatment. Id . ¶ 67. An ambulance then took plaintiff to a local hospital for further evaluation and treatment of an injury to his right leg. Id . According to hospital records, doctors diagnosed plaintiff with fractures in his right leg and performed surgery. Ugwonali Decl., Ex. 7. When plaintiff returned from the hospital to FDC Oakdale, he was placed in a cell by himself and was no longer housed with Okitapoy. Pl. Dep. 80.
III. Plaintiff's FTCA Claim
Plaintiff was deported to his native country of Trinidad in November 2009 and returned to the United States on May 18, 2011. Def.'s Facts ¶ 2. After plaintiff returned to the United States, while he was in federal immigration custody at LaSalle Detention Facility ("LaSalle") in Louisiana, he filed a claim with the federal government regarding the injuries he sustained at FDC Oakdale. Pl. Dep. 139-40.
Plaintiff filed his claim by filling out a "Claim for Damage, Injury, or Death, Standard Form 95" ("SF 95"). Ugwonali Decl., Ex. 9. On the form, plaintiff stated that his claim concerned an incident that occurred on August 4, 2009, at 10:45 a.m. Id . Section 8 of the form, labeled "Basis of Claim, " instructs claimants to "[s]tate in detail the known facts and circumstances attending the damage, injury, or death, identifying persons and property involved, the place of occurrence and the cause thereof." Plaintiff's response to this section, in full, consisted of the following statement:
[P]ain and suffering $10, 000.00 dollars per day. Psycological [sic] trauma "mentally and emotionally punitive damages" $10, 000.00 per day, Negligent in ICE security custody. $10, 000.00 per day, occurred at F.D.C. P.o. Box 5010, Oakdale, la 71463.
Id. In the section of the form labeled "State the nature and extent of each injury or cause of death, which forms the basis of the claim, " plaintiff wrote: "[B]odily damage extreme injury continuous pain and suffering-see medical records from incident in Oakdale F.D.C, MR lyndon young inplate of a stainless steel rod." Plaintiff continued this answer on a separate typed page on which he stated: "My right leg bone was drilled from my knees down to my ankle and implanted with a stainless steel rod that was placed with three pins holding the bone together, based on my injury I need to seek disability and medical coverage." Id . Plaintiff signed this separate page and dated it May 31, 2011. Id . At the bottom of the SF 95, in the section entitled "Amount of Claim (in dollars), " plaintiff filled in the box for "Personal Injury" with the phrase "Bodily harm" and filled in the box for "Total" with "$20, 650.000." Id . Plaintiff testified that he typed his answers onto the form himself with assistance from a fellow inmate in LaSalle who helped inmates with legal issues. Pl. Dep. 140-41. He sent the form from LaSalle by certified mail to the Department of Homeland Security, U.S. Immigration and Customs Enforcement ("ICE"). Id. at 139, 146-47. On July 22, 2011, the Federal Bureau of Prisons ("BOP") sent plaintiff a letter acknowledging that ICE received the claim on June 8, 2011, and forwarded it to the BOP for processing. Ugwonali Decl., Ex. 10.
Plaintiff testified that he also sent a handwritten letter to ICE with additional details about his claim. Ugwonali Decl., Ex. 8. In the handwritten letter, dated June 6, 2011, and addressed to "chief counsel, " plaintiff asked ICE to acknowledge receipt of his tort claim. Id . He also stated:
On Aug 04, 2009 at 10:45 am, whiles being in Protected Custody my cell mate who is mentaly disturb attacted me causing me bodily damage to my left eye and nose by a head bott causing my eye to swell and nose to bleed. I slip and fell whiles on the floor I heard other inmates from other Cells Calling for the Staff Employes to help me that's when I notice my right leg was broken, it was approximately 7 to 8 minutes it took the Officers to come to my Aid when they came to the Cell they ask the disturb inmate to get off me he answer back saying no they then rushed in the Cell and grabed him off me, it took the Ambulance 15 minutes to get to the Facility, I then was tooken at Christus St Frances Cabrini Hospital at Alexandria, LA, and was rushed for Emergency Surgury.... I told the C.O.'s not to put me together with that inmate but they still put me with him.
Id. Plaintiff also provided his contact information. Id . In his deposition, plaintiff initially testified that he wrote this handwritten letter before he filled out the SF 95, to make sure he "wrote it properly" before typing the information onto the form. Pl. Dep. 147. Plaintiff testified that he included just a "brief" description on the typed claim form and that he also enclosed the handwritten letter with his claim form to give "a rundown of what happened." Id. at 148. After further questioning regarding the dates on the SF 95 and the handwritten letter, plaintiff stated that he had sent two different mailings to ICE and had only received an acknowledgement of receipt for one of the mailings, but he could not remember what documents he had included in each mailing. Id. at 158-59. Plaintiff later testified that he had written the handwritten letter on June 6, 2011, and had sent the letter by certified mail two or three days later. Id. at 176-77. He testified that the staff at the mail room at LaSalle gave him receipts when he mailed letters, but he no longer has the receipts because he could not take his paperwork with him when he left the detention center. Id. at 152.
Defendant asserts that the government never received plaintiff's June 6 handwritten letter. Defendant submitted a declaration from Steven G. Ohrvall, an Associate Legal Advisor in the ICE department that is responsible for reviewing all FTCA claims submitted to ICE. Decl. of Steven G. Ohrvall, Dkt. #44, Ex. 4, ¶¶ 1-2. Ohrvall states that all administrative claims, including ones addressed to "Office of Chief Counsel, " would be forwarded to his office for processing. Id . ¶ 2. He states that a review of ICE records shows that ICE received one FTCA claim from plaintiff, consisting of a SF 95 and a one-page typed attachment that was signed on May 31, 2011. Id . ¶¶ 4-5. Ohrvall states that "ICE records contain no further correspondence from Plaintiff or his attorneys regarding this tort claim." Id . ¶ 7. Defendant also submitted a declaration from Tamala Robinson, a BOP legal assistant. Decl. of Tamala Robinson, Dkt. #44, Ex. 5, ¶ 1. Robinson states that, according to a review of BOP files, the BOP received the following documents regarding plaintiff's tort claim: the SF 95 and one-page typed attachment forwarded from ICE; a letter from plaintiff dated September 26, 2011, with an updated address; and a letter from plaintiff dated November 10, 2011, asking the BOP to forward any decision or response to his attorneys. Id . ¶¶ 8, 10, 12. Robinson states that "[n]o further correspondence was received from Plaintiff or his attorneys regarding this tort claim." Id . ¶ 14.
There is no dispute that the BOP sent plaintiff a letter dated December 30, 2011, informing plaintiff that the BOP had denied his FTCA claim. The letter states, in relevant part:
You claim government liability in the amount of twenty thousand six hundred fifty and 00/100 dollars ($20, 650.00) for alleged personal injury.... You appear to claim that on August 4, 2009, staff at the Federal Correctional Complex (FCC) in Oakdale, Louisiana, implanted a steel rod in your right leg, resulting in a disability. An investigation into your claim revealed on August 4, 2009, you were involved in an altercation with another inmate at FCC Oakdale. Staff completed an injury assessment and noted a laceration on your left eyebrow, a bruise on your lower eye, and a deformed right lower leg. You were transported to a contract local hospital for an emergency surgical procedure to repair spiral fractures of your right tibia and fibula.... No evidence supports your claim of negligence. Bureau of Prisons staff provided timely and appropriate medical treatment for your condition, including medication and surgery by a ...