United States District Court, E.D. New York
MIKOL S. KELSIC, Plaintiff,
DUKE TERREL, Defendants.
MEMORANDUM AND ORDER
L. TOWNES UNITED STATES DISTRICT JUDGE.
Mikol S. Kelsic ("Kelsic") commenced this action on
May 23, 2014 for injuries arising out of a medical
examination performed on May 16, 2012 at the Metropolitan
Detention Center ("MDC") in Brooklyn, New York.
Former MDC Warden Duke Terrell, former MDC Associate Warden
Christine Dynan, and former MDC Health Services Assistant
Jeremy Marousis-Bush (collectively
"Defendants")move jointly to dismiss the Complaint
or, in the alternative, for summary judgment. (Doc. 46). Also
before the Court is Kelsic's "Motion for Extension
of Deadline/Continuance of Time." (Doc. 58.) Because
Plaintiff did not administratively exhaust his claim,
Defendants' motion is GRANTED. Because
the deadlines sought in Kelsic's motion have long since
passed without action on his part, and because the extension
he seeks would in any event be futile, that motion is
DENIED as moot.
The Medical Examination and Plaintiffs Administrative
10, 2012, Kelsic was arrested and transferred to MDC as a
pre-trial detainee. As part of MDC intake procedure, Kelsic
received a medical evaluation on May 16, 2012, which included
a rectal examination. The rectal examination consisted of the
care giver placing "several" fingers in
Kelsic's rectum "with excessive force."
(Complaint, Doc. 1, § III.) The test was conducted twice
"for no stated reason." (Affidavit of Mikol S.
Kelsic in Opp'n to Defs.' Mot. To Dismis or
Alternatively for Summary Judgment ("Kelsic Aff"),
Doc. 51, ¶ 8.) As a result of this examination, Kelsic
felt "shame, " suffered "side effects, "
including pain and "warts, " and later developed
ulcerative colitis. (Complaint, Doc. 1, § III; Kelsic
Aff., Doc. 51, ¶ 10; Ex. 1.)
was transferred out of MDC, and out of federal custody, on
June 7, 2012. (Defs.' Statement of Material Facts As To
Which There is No Genuine Issue To Be Tried
("56.1"), Doc. 46-3, ¶ 3.) Kelsic returned to
MDC on May 31, 2013, where he remained until July 3, 2013,
when he was transferred to USP Canaan and then on to FCI
McKean in Bradford, Pennsylvania on July 18, 2013. (M,
initial conference before Magistrate Judge Lois Bloom on
October 31, 2014, Kelsic stated that he filed a complaint
about the rectal examination while he was at MDC in June
2012. (Transcript of Telephone Conference, Oct. 31, 2014,
Doc. 40, 6-7.) The complaint was made on a BP-A0148 form,
informally known as a "cop-out." (Kelsic Aff, Doc.
51, ¶ 11.) The BOP has no record of Kelsic filing the
cop-out, or any other administrative remedy requests
concerning the rectal examination before the initiation of
the instant action. (Declaration of Kenneth Bork ("Bork
DecL"), Doc. 46-5., ¶ 7; Supplemental Declaration
of Kenneth Bork ("Bork Supp."), Doc. 62-2,
September 2013, Kelsic wrote a letter to the Department of
Justice, Office of Inspector General ("OIG") in New
York, which was forwarded to the Federal Bureau of Prisons
("BOP"), Office of Internal Affairs. (Doc. 10, 5.)
In his Complaint, Kelsic alleges the September letter related
to the improper rectal examination. (Complaint, Doc. 1,
¶D.2.) On March 25, 2014, Kelsic wrote a letter
describing the MDC rectal examination directly to BOP, Office
of Internal Affairs, as a follow-up to the September letter
that was forwarded by OIG. (Doc. 9, 4.)
commenced the instant action on May 23, 2014. (Complaint,
Doc. 1.) After being served with the instant motion in
December 2014, and before serving his opposition in March
2015, Kelsic "re-filed" his allegations of sexual
abuse relating to the rectal examination. (Kelsic Aff, Doc.
51, ¶ 24.) BOP database records show the following: 1)
that Kelsic filed an Appeal on a form BP-10 with BOP's
Northeast Regional Office on March 9, 2015 alleging sexual
abuse by staff members at MDC; 2) on April 8, 2015, Kelsic
received the Regional Director's response and filed an
Appeal on form BP-11 with the BOP's Central Office on
April 11, 2015; and 3) the BP-11 Appeal was procedurally
rejected on June 11, 2015 due to Kelsic's failure to
include a copy of his BP-10 and the Regional Director's
response, but Kelsic was advised to refile the BP-11 within
fifteen days. (Bork Supp., Doc. 62-2, ¶¶ 8-9.)
has not filed any administrative tort claims with the BOP.
(Bork Deck, Doc. 46-5, ¶ 10-11.)
The Instant Motions
before the Court is Defendants' motion to dismiss the
Complaint or, in the alternative, for summary judgment.
Defendants construe the Complaint as primarily alleging
Bivens claims against the named Defendants in their
official and individual capacities. Defendants also address
the possibility that the Complaint attempts to raise claims
under the Federal Tort Claims Act ("FTCA").
with respect to the official-capacity Bivens claims,
Defendants move to dismiss pursuant Federal Rule of Civil
Procedure ("FRCP") 12(b)(1) on sovereign immunity
grounds. Second, Defendants argue that the
individual-capacity Bivens claims must be dismissed
pursuant to FRCP 12(b)(6) for Kelsic's failure to allege
that any of the named Defendants were personally involved in
the event giving rise to his claims. Third, Defendants move
for summary judgment on all of Kelsic's Bivens
claims pursuant to FRCP 56 because he failed to exhaust his
administrative remedies. Fourth, Defendants argue that any
potential FTC A claims Kelsic may have must also fail because
Kelsic never filed an administrative tort claim with the BOP.
Affidavit in opposition to Defendants' motion essentially
argues that because his complaints contain allegations of
sexual abuse, they are not subject to the normal BOP
administrative remedy filing time limits. Rather, under the
BOP regulations and program statement promulgated pursuant to
the Prison Rape Elimination Act ("PREA"),
grievances alleging sexual abuse may be filed at any time.
Therefore, Kelsic resubmitted his ...