United States District Court, E.D. New York
NICHOLAS G. GARAUFIS, District Judge.
Plaintiff, a federal prisoner currently incarcerated at the Donald W. Wyatt Detention Facility in Central Fall, Rhode Island, filed this pro se action alleging that Defendants were indifferent to his medical needs while he was incarcerated at the Metropolitan Detention Center ("MDC") in Brooklyn, New York. (Compl. (Dkt. 1).) Pending before the court are Defendant Sixtos Rios's Motion to Dismiss (Mot. to Dismiss (Dkt. 20)) and Plaintiff's Motion to Amend/Correct/Supplement Claim (Mot. to Amend (Dkt. 30)). For reasons stated below, Defendant Rios's motion is GRANTED IN PART AND DENIED IN PART, and Plaintiff's motion is DENIED. The Complaint against Defendant Lindsay is DISMISSED WITHOUT PREJUDICE.
Plaintiff states that the incidents in question took place between May 15 and June 15, 2009. (Compl. at 2.) He alleges that, on or about May 15, 2009, he began to "send sick call slips" to the Medical Department at the MDC, informing them at least five times that he was suffering from fever, body aches, swelling in his left leg, and dizziness. (Id. at 8.) At some point, Plaintiff spoke to Defendant Sixtos Rios, a Physician's Assistant, and showed Rios his leg, saying that it needed medical attention. (Id.) Plaintiff did the same with "several other staff members from officers to medical staff." (Id.) Soroya Rosa, a Mid-Level Provider, allegedly told Plaintiff "not to worry about it" and that the swelling in his leg would go down. (Am. Compl. (Dkt. 10) at 1.)
On May 29, 2009, Plaintiff fell in the shower, due to dizziness caused by his fever and the swelling in his leg. (Compl. at 8.) He subsequently approached a corrections officer named Perry and again requested medical attention. (Id.) Perry called the Medical Department, "and their response was go lay down." (Id.) Perry also called Lt. Guimond, who came to see Plaintiff and informed him that the Medical Department staff had ignored Perry's call and had simply gone "home for the night." (Id.)
The next day, Plaintiff was brought to the Medical Department at his own request and was then "immediately" taken to the hospital, because of the "seriousness" of the swelling in his leg. (Id.) Plaintiff subsequently had two (unspecified) surgeries and remained in the hospital for treatment for over three weeks. (Id. at 3, 8.) At some point, Plaintiff was informed by "medical staff at the hospital this would have never occurred had [prison staff] not waited so long to give [him] proper medical attention." (Id. at 8.) After the surgeries, Plaintiff continued to suffer from "pain and discomfort" in his knees and back and had problems walking. (Id.) At the time of filing his Complaint, Plaintiff stated that he was "[s]till awaiting proper medical attention to solve this matter." (Id.)
II. PROCEDURAL HISTORY
Plaintiff initiated this pro se action on June 1, 2011, pursuant to 42 U.S.C. § 1983, seeking money damages for alleged medical malpractice and seeking a court order that he receive proper medical treatment. (Compl. at 5.) By Memorandum and Order on October 14, 2011, the court reviewed the Complaint sua sponte pursuant to 28 U.S.C. § 1915A(a). (Dkt. 8.) Because Defendants are staff members of a federal prison, rather than a state entity, the court construed Plaintiff's Complaint as having been brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Id. at 4.) The court concluded that the Complaint failed to allege facts sufficient to state either a negligence claim or an Eighth Amendment deliberate indifference claim. (Id. at 8.) However, because "a liberal reading of Vailette's Complaint indicates that he may be able to state a valid claim, " Plaintiff was granted leave to amend his Complaint within 60 days to bring a negligence claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), or a Bivens deliberate indifference claim alleging a violation of the Eight Amendment. (Id. at 4.) To the extent that Plaintiff wanted to pursue an FTCA claim, the court directed him to add the United States as a defendant and to attach to his Amended Complaint a copy of his administrative claim filed with the Bureau of Prisons ("BOP") pursuant to the FTCA and the BOP's response to that claim. (Id. at 5.)
Plaintiff filed an Amended Complaint on December 21, 2011. (Am. Compl.) In his Amended Complaint, Plaintiff pleaded certain additional facts, such as the names of certain MDC employees, which he had omitted from his initial Complaint. However, Plaintiff did not attach an FTCA administrative claim nor add the United States as a defendant, as directed by the court. (Id.) Rather, Plaintiff requested the appointment of counsel and an opportunity to take discovery. (Id. at 3.) Proof of service of process on Defendant Rios was filed on February 16, 2012, showing that Defendant Rios was served on January 20, 2012, after the filing of the Amended Complaint. (Dkt. 13.) No proof of service was ever filed as to Defendant Lindsay.
On May 11, 2012, the court granted leave to Defendant Rios to bring a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(1), (b)(6), and (h)(3). (May 11, 2012, Order.) Defendant Rios filed his motion on June 14, 2012. (Mot. to Dismiss.) Appended to the Motion to Dismiss was a declaration of a BOP staff attorney and records of Plaintiff's administrative remedies from the BOP database. (Decl. of Nicole McFarland ("McFarland Decl.") (Dkt. 20).)
Plaintiff did not file a response by his deadline; instead he filed a motion to appoint counsel on July 24, 2012. (See Dkt. 22.) On August 15, 2012, Magistrate Judge Roanne L. Mann denied Plaintiff's motion without prejudice and extended the time for Plaintiff to file his response until September 14, 2012. (Aug. 15, 2012, Order (Dkt. 23).) Plaintiff requested and received two more extensions to serve his response to Defendant Rios's Motion to Dismiss. (Dkts. 24, 25, 27, 28.)
Despite receiving the benefit of three extensions, Plaintiff failed to submit a response to Defendant Rios's Motion to Dismiss. Instead, Plaintiff submitted his Motion to Amend on October 15, 2013 (Dkt. 30), and a letter requesting discovery on December 9, 2013 (Dkt. 31). Annexed to the Motion to Amend is documentation of an administrative remedy dated December 25, 2012, and a rejection letter dated July 22, 2013. (Dkt. 30-1.) Defendant Rios did not oppose Plaintiff's Motion to Amend nor request leave to file an amended motion to dismiss.
On April 12, 2014, Plaintiff received one final extension to file a response to Defendant Rios's Motion to Dismiss. (Apr. 12, 2014, Order (Dkt. 32).) The court warned that if Plaintiff failed to serve a timely response by April 30, 2014, Defendant Rios's Motion to Dismiss would be deemed unopposed. (Id.) Plaintiff again failed to serve a response, and the court now addresses the unopposed Motion to Dismiss.
III. DEFENDANT RIOS'S MOTION TO DISMISS
Defendant Rios has filed the Motion to Dismiss pursuant to Fed.R.Civ.P. 12 (b)(1), (6), and (h)(3). (Mot. to Dismiss at 2.) When faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6), a court should "decide the jurisdictional question [under Rule 12(b)(1)] first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.'" Tirone v. N.Y. Stock Exch., Inc., No. 05-CV-8703 (WHP), 2007 WL 2164064, at *3 (S.D.N.Y. July 27, 2007) (quoting Magee v. Nassau Cnty. Med. Ctr., 27 F.Supp.2d 154, 158 (E.D.N.Y. 1998)); see also Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
A. Legal Standard
1. Motion to Dismiss Pursuant to Rule 12(b)(1)
"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). The party invoking the court's jurisdiction has the burden of proving such jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996); Makarova, 201 F.3d at 113. When considering a motion to dismiss under this subsection of Rule 12, the allegations of the complaint are construed in the plaintiff's favor. See Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). However, in reaching its decision, the "court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 948 ...