United States District Court, S.D. New York
OPINION AND ORDER
GREGORY H. WOODS, District Judge.
Plaintiff Wesam El-Hanafi is currently an inmate at the Metropolitan Correction Center in New York, New York. He claims that he developed deep vein thrombosis as a result of security restraints and a delay in diagnosis and treatment while he was in federal custody. He brings this action asserting negligence claims under the Federal Tort Claims Act and Eighth and Fourteenth Amendment claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The United States and its individual federal employees now move to partially dismiss the Complaint for lack of subject matter jurisdiction and for the failure to state a claim. The Court finds that plaintiff is barred from suing the United States for the acts of its employees arising abroad, the acts of private contractors, and acts within the government's discretion. With respect to plaintiff's Bivens claims, the Court finds that El-Hanafi fails to allege that the individual federal defendants violated his constitutional rights. Accordingly, defendants' partial motion to dismiss is GRANTED in its entirety.
1. Transfer to United States Custody
Plaintiff Wesam El-Hanafi submitted to federal custody on April 27, 2010. Third Amended Complaint ("Compl."), ¶ 30. He was 34 years old and in good health at the time. Id. ¶¶ 24-25. During his three-day detention by the police in Abu Dhabi at the direction of defendant Sean Cooper, an official at the United States consulate there, El-Hanafi was allowed to move his legs for only brief periods of time. Id. ¶¶ 31-32, 37, 211. On April 30, 2010, El-Hanafi was flown on an American Airlines flight to Washington, D.C., accompanied by FBI agents Daniel Withers and Charlotte Ryder. Id. ¶ 52. During the 16-hour flight, while El-Hanafi was not physically restrained, he was "discouraged from the normal and regular use of his legs, " "constrained in his ability to move about, " and therefore "essentially denied the opportunity to move and stretch his legs in a normal and natural fashion, " except for one fifteen-minute break to use the bathroom and pray. Id. ¶¶ 51, 54.
Upon his arrival at Dulles International Airport, El-Hanafi noticed, "for the first time, a stinging sensation in his right calf." Id. ¶ 56. El-Hanafi was then formally arrested and arraigned. Id. ¶ 57. Following the arraignment, El-Hanafi "remained in the custody and control" of the United States and was subsequently held for eleven days at the Alexandria Detention Center in Alexandria, Virginia, which he states was "medically staffed by either [Conmed or CCS], private contractors with the federal [Bureau of Prisons], an agency within the executive branch of the government of the United States." Id. ¶¶ 60, 61. There he remained for eleven days, during which time he complained to the medical staff about the pain in his leg, and was prescribed ibuprofen. Id. ¶¶ 67-70.
2. Transfer to BOP Facilities
On May 11, 2010, El-Hanafi was transferred to the Federal Transfer Center in Oklahoma City, Oklahoma. Id. ¶ 71. For the entire fifteen-hour trip, including four hours in a bullpen, five hours in a prison van, and a four-to-five hour flight, El-Hanafi was fully restrained by metal leg shackles and wrist cuffs, and his hands and legs were tied off with a wristband, which severely limited his ability to move. Id. ¶ 72. The leg shackles caused him continuous, intense pain in his right ankle and calf. Id. ¶¶ 74-75. The morning after his arrival at the prison, El-Hanafi attended "sick call" and was given ibuprofen but nothing more, despite having told federal agents that ibuprofen had previously failed to lessen his pain and that his condition had only worsened. Id. ¶¶ 76, 79. He was also seen by a physician's assistant and a doctor; the doctor informed him that he might have an inflamed cyst in his leg, but did not recommend further tests. Id. ¶¶ 79-80.
On May 24, 2010, El-Hanafi was transported to the Metropolitan Correction Center in New York, New York ("MCC"). Id. ¶ 82. The trip lasted over eleven hours, including five hours of flight time, during which El-Hanafi was restrained in heavy metal ankle shackles that jiggled painfully when he moved. Id. ¶¶ 83, 90. He experienced a stinging sensation upon deplaning and was in "heavy pain by the time he arrived at the MCC." Id. ¶ 83.
3. Medical Condition and Care at the MCC
Upon his arrival at the MCC, El-Hanafi complained about the pain in his lower right ankle and calf. Id. ¶ 84. Medical records indicate that on May 24, 2010, he was given an "intake" examination by defendant Chito Evangelista, a Mid-Level Practitioner at the MCC. Id. ¶ 85. El-Hanafi showed Evangelista his leg and expressed his belief that the condition had been caused by being forced to wear heavy metal shackles. Id. ¶ 85. He also states that he may have told Evangelista that the ibuprofen had reduced his pain. Id. ¶ 89. Evangelista's notes indicate Evangelista's view that El-Hanafi had no serious medical issues that required diagnosis or treatment and that his leg condition had improved after taking meds for the previous few days. Id. ¶¶ 87-88. Evangelista prescribed ibuprofen but did not order further examination. Id.
El-Hanafi's left ankle began to display signs of swelling in June 2010. Id. ¶ 91. In July 2010, he saw MCC clinical director Dr. Glover, who prescribed him ibuprofen and aspirin. Id. ¶ 92. He claims that for the balance of 2010, he was persistent in filing requests to be seen at "sick call" for his painful and swollen right ankle, id. ¶ 94, but does not provide further details of those requests and what responses, if any, they engendered.
On February 27, 2011, El-Hanafi submitted two written "Requests to Staff, " noting that his leg condition had deteriorated, he believed he had several blood clots in his right foot and a swollen vein by his right ankle, two veins in his legs had become dark grey and almost black, and walking was very painful for him. Id. ¶ 95. He asked to see a doctor "ASAP." Id .; see also Compl. Exh. A-1. Nurse Tonya Cooper, one of the defendants in this action, reviewed the requests and scheduled El-Hanafi for a "sick call" on March 11, 2011 and March 30, 2011. Id. ¶¶ 96-98. At those March appointments, El-Hanafi was seen by MCC Mid-Level Practitioners Erwin Ramos and Atef Aboulfateh, respectively. Id. ¶¶ 99-110. El-Hanafi claims that Ramos failed to refer him to an outside specialist, and that both Ramos and Aboulfateh failed to diagnose his condition as deep vein thrombosis ("DVT"). Rather, Ramos described El-Hanafi's condition as "Temporary/Acute" in his notes, suggested that El-Hanafi had arthritis, and ordered an x-ray, allegedly ignoring El-Hanafi's protests that it might be something more serious. Id. ¶¶ 100-105. El-Hanafi received this x-ray on an unspecified date. Id. ¶ 129. Aboulfateh attributed El-Hanafi's condition to a "sprain and strain of the Achilles tendon, " allegedly failing to take into account El-Hanafi's discolored and swollen veins and El-Hanafi's opinion that he had blood clots. Id. ¶¶ 106-110.
El-Hanafi submitted additional requests to MCC staff on May 25, June 23, June 29, and June 30, 2011. Id. ¶¶ 111-21. By that time, the pain prevented him from walking normally, and he states that it was clearly observable to anyone that "something was wrong." Id. ¶ 113. He also states that his painkillers were not working, and that his pain had recently increased. Id. ¶ 117. He points out that although the May 25 and June 23 forms reflect that a nurse scheduled him to be seen at sick call on June 8, 2011, and that defendant Julie Small scheduled him for a June 29, 2011 sick call, the records do not indicate that either of these appointments took place. Id. ¶¶ 112, 116.
The June 29 and 30 requests resulted in an appointment during the week of July 4, 2011, at which Evangelista administered an x-ray and dispensed pain-killing medication to El-Hanafi. Id. ¶ 130, 134, 136. Evangelista also told him to expect x-ray results the following day. Id. On July 14, 2011, El-Hanafi sent an "Inmate to Staff Message" asking to see a specialist, and indicating that for the past 14 months the staff had been unable to diagnose or treat his condition. Id. ¶ 130. He also stated that he had not heard from Evangelista since his last appointment. Id. ¶ 136. El-Hanafi continued to submit requests for medical care on July 17, 18, and 23, 2011, still not having heard from Evangelista regarding the x-ray results. Id. ¶¶ 129-131, 134-146, 140.
El-Hanafi also alleges that around this time, he was denied relief through other informal encounters. For example, he says that Ramos declined to treat him while distributing medications to other prisoners on June 30, 2011. Id. ¶¶ 123, 128. He also says that he spoke to Warden Hastings on July 1, 2011, and that she directed an MCC officer to contact the nurse's office, which was unable to see him that day. Id. ¶ 127. He says he also spoke with various MCC officers between June 28 and 30, 2011, and that he sent an email to the staff on July 3 or 4, 2011 detailing those encounters. Id. ¶ 128.
Nurse Small scheduled El-Hanafi for an appointment on July 27, 2011 with defendant Dr. Anthony Bussanich, the MCC clinical director, and T. Mitchell, a physician's assistant. Id. ¶¶ 136-38. Dr. Bussanich told El-Hanafi that more testing needed to be done, that these tests would be scheduled, and that El-Hanafi would be notified. Id. ¶ 138.
On August 16, 2011, El-Hanafi was approved for ultrasound testing to take place on September 23, 2011. Id. ¶¶ 141, 143. However, when that day arrived, El-Hanafi declined to go because MCC security procedures required him to submit to leg shackles for transport to the hospital. Id. ¶¶ 144. In the elevator afterward, he ran into Dr. Bussanich, and explained to him what had happened. Dr. Bussanich recommended that El-Hanafi submit to the shackles in order to undergo testing. Id. ¶¶ 146-46. El-Hanafi reluctantly agreed to do so, and the testing was rescheduled for September 30, 2011. On that day, he was transported to the hospital with heavy metal shackles around his swollen ankles, causing him "additional unreasonable, and excruciatingly intense pain above and beyond the intense pain he already suffered in his lower right leg/foot/calf/ankle area." Id. ¶¶ 146-48.
El-Hanafi was treated at New York Downtown Hospital from September 30 to October 4, 2011, during which time he was shackled with metal clasps around his ankles while in his hospital bed and handcuffed to the bed post. Id. ¶¶ 150, 152. The hospital performed a venous duplex of El-Hanafi's lower extremities, finding that some of the veins in his right leg, ankle, and foot area were blocked, and that he had been suffering from DVT. Id. ¶¶ 150-52. He was informed by a doctor that the blood clot in his right leg could have migrated upwards toward his lung, creating a potentially lethal risk of pulmonary embolism. Id. ¶¶ 159, 162-63.
On October 4, 2011, El-Hanafi was released from the hospital under a treatment regimen of anti-coagulant therapy. Id. ¶ 158. After his return to the MCC, he claims that his blood level was inadequately monitored, and that as a result, he was re-hospitalized on October 19, 2011 after his blood medication became sub-therapeutic and he began coughing up blood and experienced trouble breathing. Id. ¶¶ 167-69.
El-Hanafi claims that the compression socks ordered for him in December 2011 did not fit properly. Id. ¶ 174. He requested replacement socks on January 12, 2012, referring to his right leg pain. Id.; Compl. Exh. D-1. He also filed requests for medical socks, footwear, and pain remedies for his right leg on February 13, March 16, and March 19, 2012. On February 6, 2013, he requested care for his right leg pain. By August 10, 2013, his pain had become more localized in his right knee, and he filed a request for medical care on August 16 and 21, 2013. On August 30, 2013, he was taken to Brooklyn Hospital Center for right knee pain. Id. ¶ 172.
B. Procedural History
On March 28, 2013, El-Hanafi commenced this action, culminating in the Third Amended Complaint filed on February 19, 2014. He alleges five causes of action (1) denial of medical care and medical malpractice against the United States of America under the Federal Tort Claims Act ("FTCA"); (2) negligence in the delivery of medical care against the United States of America under the FTCA, and in violation of state law and applicable federal common law against the employees of the Alexandria Detention Center, the Federal Transfer Center, and the Metropolitan Correction Center under this Court's supplemental jurisdiction; (3) negligent enforcement of extraordinary restrictions on movement during the flight from Dubai to the United States in violation of state law and applicable federal common law against federal agents Daniel Withers, Charlotte Ryder, and Vice Consul Sean Cooper; (4) negligent infliction of emotional distress against the United States under the FTCA, and (5) Bivens claims for violations of the Eighth and Fourteenth Amendments against employees of the Alexandria Detention Center, the Federal Transfer Center, and the Metropolitan Correction Center, as well as federal agents Daniel Withers, Charlotte Ryder, and Vice Consul Sean Cooper. Id. ¶¶ 180-233.
On March 28, 2014, the United States and the individual federal defendants moved to partially dismiss the Complaint against them under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 28-35. Specifically, the defendants sought dismissal of the Third and Fifth Causes of Action against them in their entirety, and to narrow the scope of the FTCA claims underlying the First, Second, and Fourth Causes of Action to limit them to FTCA claims against the United States regarding El-Hanafi's medical treatment. See Dkt. 29 ("Def. Br."). On June 6, 2014, El-Hanafi submitted his opposition to defendants' motion to dismiss. Dkt. 52 ("Pl. Br."). Dkt. 52 ("Pl. Br."). On June 20, 2014, the federal defendants submitted a reply brief. Dkt. 52 ("Def. Rep. Br."). On August 22, 2014, the Court granted the April 14, 2014 motion to dismiss filed by Conmed and CCS, Dkt. 56, leaving only the United States and its individual federal employees as defendants in this case.
II. STANDARD OF REVIEW
A. Rule 12(b)(1)
"A case is properly dismissed for lack of subject matter jurisdiction under 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). A plaintiff must prove subject matter jurisdiction by a preponderance of the evidence. Id. (citation omitted). And "[w]hile it is generally true that [m]otions to dismiss for [lack of] subject matter jurisdiction under Rule 12(b)(1) are reviewed under the same standards as motions to dismiss for failure to state a claim under Rule 12(b)(6), which requires a court [to] take the facts as alleged in the complaint to be true, and [ ] draw all reasonable inferences from those facts in favor of the plaintiff, " where "the jurisdictional challenge is based on the FTCA, the government receives the benefit of any ambiguities." Loew v. U.S. Postal Serv., No. 03 Civ. 5244, 2007 WL 2782768, at *4 (E.D.N.Y. Feb. 9, 2007) (internal quotations and citations omitted). Finally, a court may refer to evidence outside the pleadings in deciding a 12(b)(1) motion, such as affidavits. See Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
B. Rule 12(b)(6)
Pursuant to Rule 12(b)(6), a plaintiff's complaint must be dismissed if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 663 (quoting Fed.R.Civ.P. 8(a)(2)). While "detailed factual allegations" are not required, the complaint must advance more than "labels or conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the moving party, "then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 663-64. "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. The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678 (quoting and citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
In applying these principles, the Court may consider facts alleged in the complaint and documents attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (internal quotation marks and citation omitted). "Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its ...