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Lowman v. Baird

United States District Court, S.D. New York

December 14, 2017

MAUREEN BAIRD, et al., Defendants.

          Sharif Marcus Lowman Brooklyn, New York Pro se Plaintiff.

          Sharanya Mohan Assistant United States Attorney New York, New York Counsel for Defendants.



         Plaintiff Sharif Marcus Lowman brings this action pro se alleging claims pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Maureen Baird, the warden of the Metropolitan Correctional Center at the times at issue, and David Gonzalez and Tijuana Doctor[1], Lieutenants with the Federal Bureau of Prisons (“BOP”) (collectively, the “Individual Defendants”), for failure to protect him from an attack by another inmate, and under the Federal Tort Claims Act (“FTCA”) against the United States (together with the Individual Defendants, “Defendants”), for providing negligent medical care following the attack. Before me is Defendants' motion to dismiss Plaintiffs complaint and, in the alternative, for summary judgment. (Doc. 16.) Because I find that Plaintiff failed to exhaust his administrative remedies, Defendants' motion is GRANTED.

         I. Background [2]

         As of at least July 2015, Plaintiff was a pretrial detainee housed at the Metropolitan Correctional Center (“MCC”) in Manhattan. (Compl. 2, 4.)[3] In July 2015, Plaintiff told Lieutenant Doctor that he needed to be separated from an inmate named “Azouki”. (Id. at 22.) Later that month, Plaintiff and Azouki were brought to Lieutenant Doctor's office following an altercation between the two prisoners. (Id. at 24.) Plaintiff states that he informed Lieutenant Doctor that he and Azouki “may need to be separated.” (Id.) Lieutenant Doctor responded saying that Plaintiff “need[ed] to learn how to get along or [he] will be sent to the [Special Housing Unit].” (Id.)

         Plaintiff claims that on August 11, 2015, he was attacked by Azouki who used a padlock wrapped in a sock to strike Plaintiff in the head and face several times. (Id.) Plaintiff asserts that as a result of the attack he sustained several injuries, including deep lacerations on his head and face, contusions, memory loss, dizzy spells, migraines, and nightmares. (Id. at 5, 25.) Following the attack, while suffering from open and bleeding wounds and without receiving immediate medical attention, Plaintiff was placed in a cell in the Special Housing Unit. (Id. at 25-26.) Terrance Thomas, a prison nurse, later took Plaintiffs temperature but returned Plaintiff to his cell without further tending to Plaintiffs injuries. (Id. at 27.)

         On October 22, 2015, Plaintiff submitted an informal request for administrative resolution, known as a “BP-8.” (Id. at 8, 28.) Plaintiff's BP-8 concerned the injuries Plaintiff suffered during the August 2015 attack. (Id.) The BOP's response indicated that Plaintiff had been “added to sick call to discuss your medical concerns.” (Id.)

         On November 18, 2015, Plaintiff filed a Request for Administrative Remedy form, known as a “BP-9.” (Id. at 9, 31.) In his BP-9, Plaintiff complained that his BP-8 had been “lost by [BOP] staff.” (Id. at 9, 16.) On February 3, 2016, the warden of MCC responded to Plaintiff's BP-9, informing Plaintiff that his BP-8 had in fact been addressed and resolved and not discarded. (Id. at 16.) Because Plaintiff had been transferred to the Metropolitan Detention Center (“MDC”) in Brooklyn by February 3, the MDC warden provided a similar response denying Plaintiff's BP-9. (Id. at 17.)

         On December 14, 2015, prior to receiving the responses to his BP-9, Plaintiff submitted a Regional Administrative Remedy Appeal, known as a “BP-10, ” regarding the August 2015 attack and the lack of subsequent medical treatment provided. (Id. at 18.) In particular, Plaintiff complained that he was placed in the Special Housing Unit without being tested for a concussion or otherwise being medically treated or evaluated. (Id. at 10-13.) On December 18, 2015, Plaintiff's BP-10 was rejected because Plaintiff had not filed a BP-9 concerning the subject of his BP-10 appeal. (Id. at 19.)

         On approximately January 13, 2016, Plaintiff submitted a Central Office Administrative Remedy Appeal, known as a “BP-11.” (Id. at 20.) In his BP-11, Plaintiff contended that he was placed in the Special Housing Unit following the August 2015 attack without receiving needed medical treatment. (Id.) On January 20, 2016, Plaintiff's BP-11 was rejected because, among other reasons, Plaintiff had not submitted a request concerning the subject of the BP-11 through a BP-9. (Id.)

         II. Procedural History

         Plaintiff commenced this action by filing his Complaint on August 16, 2016. (Doc. 2.) On November 8, 2016, counsel for Defendants submitted a letter requesting an extension until December 21 to answer or otherwise respond to the Complaint, (Doc. 13), which I granted, (Doc. 15). On December 21, 2016, Defendants filed their motion, (Doc. 16), along with a memorandum of law in support, (Doc. 17), the declaration of Adam M. Johnson with exhibits, (Doc. 18), the declaration of Terrance Thomas with exhibits, (Doc. 19), Rule 56.1 Statement, (Doc. 20), and Local Rule 12.1 Notice to Pro Se Litigant, (Doc. 21). On December 27, 2016, I ordered the parties to participate in a pre-motion conference, to be held on February 10, 2017. (Doc. 23.) I ordered Defendants' motion to be held in abeyance pending the conference. (Id.) I informed Plaintiff that he need not submit an opposition to Defendants' motion until otherwise directed, and instructed Plaintiff to submit a letter responding to Defendants' motion by January 20, 2017. (Id.)

         On January 6, 2017, Plaintiff submitted a letter requesting that I appoint an investigator to assist Plaintiff with locating and obtaining witness declarations. (Doc. 26.) On January 10, 2017, I denied Plaintiffs request. (Doc. 27.)

         On January 19, 2017, Plaintiff submitted a letter in response to Defendants' motion, along with an opposition to the motion. (Docs. 29, 30.) At the conference held on February 10, 2017, I granted Plaintiffs request to submit an additional response to Defendants' motion by February 20, and directed Defendants to submit their reply papers by March 20.

         On February 22, 2017, Plaintiff moved to substitute the United States as Defendant in place of nurse Terrance Thomas, who was originally named in the Complaint as a defendant. Plaintiff sought this substitution because 42 U.S.C. § 233(a), which provides that a claim against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq., is the exclusive remedy for injuries arising from care provided by a Public Health Service employee, such as nurse Thomas, acting within the scope of his employment. (Doc. 34.) Defendants consented to Plaintiffs request, (Doc. 35), and I ordered that Plaintiffs Complaint be deemed amended without the issuance of a new complaint, (Doc. 38).

         On February 22, 2017, Plaintiff also submitted a supplemental memorandum of law in opposition to Defendants' motion. (Doc. 37.) Defendants filed their reply and the Supplemental Declaration of Adam M. Johnson on March 20, 2017. (Docs. 39, 40).

         III. Le ...

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