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Kelsic v. Terrel

United States District Court, E.D. New York

June 13, 2017

MIKOL S. KELSIC, Plaintiff,
v.
DUKE TERREL, Defendants.

          MEMORANDUM AND ORDER

          SANDRA L. TOWNES UNITED STATES DISTRICT JUDGE.

         Plaintiff 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")[1]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.

         FACTS[2]

         1. The Medical Examination and Plaintiffs Administrative Remedy Requests

         On May 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.)

         Kelsic 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, ¶4.)

         At an 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, ¶¶ 7-9.)

         In 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.)

         Plaintiff 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.)

         Kelsic has not filed any administrative tort claims with the BOP. (Bork Deck, Doc. 46-5, ¶ 10-11.)

         2. The Instant Motions

         Currently 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").

         First, 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.

         Kelsic's 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 ...


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