United States District Court, E.D. New York
ORDER OF PARTIAL DIMISSAL
A. MATSUMOTO UNITED STATES DISTRICT JUDGE.
Roberto Diaz, presently incarcerated at the Metropolitan
Detention Center (“MDC”), brings this pro
se complaint pursuant to 42 U.S.C. § 1983.
Plaintiff's request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915 is granted. For the reasons
stated below, plaintiff's complaint is dismissed against
MDC. As discussed below, the action will proceed against
following facts are drawn from plaintiff's complaint, the
allegations of which are assumed to be true for purposes of
this order. Plaintiff states that on October 19, 2016, he
“faked” that he was going to commit suicide.
(Compl., ECF No. 5 at 4). Defendant Rivera, an officer at MDC,
sprayed plaintiff in the face with mace. (Id.)
Plaintiff alleges that he has lost vision in his left eye and
has been informed by medical personnel that he may lose his
sight in that eye. (Id.) Plaintiff seeks medical
treatment and monetary damages.
Standard of Review
28 U.S.C. § 1915A, a district court “shall review,
before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
employee of a governmental entity.” 28 U.S.C. §
1915A. Upon review, a district court shall dismiss a prisoner
complaint sua sponte if the complaint is
“frivolous, malicious, or fails to state a claim upon
which relief may be granted; or seeks monetary relief from a
defendant who is immune from such relief.” Id.
at § 1915A (b); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007).
pleadings stage of the proceeding, the Court must assume the
truth of “all well-pleaded, non-conclusory factual
allegations” in the complaint. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A complaint must plead
sufficient facts to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
axiomatic that pro se complaints are held to less
stringent standards than pleadings drafted by attorneys and
the Court is required to read the plaintiff's pro
se complaint liberally and interpret it as raising the
strongest arguments it suggests. Erickson v. Pardus,
551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9
(1980); Sealed Plaintiff v. Sealed Defendant #1, 537
F.3d 185, 191-93 (2d Cir. 2008).
Plaintiff's Bivens Claim
Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971), the Supreme Court recognized an implied
private cause of action for damages against federal officers
who allegedly violated a citizen's constitutional rights.
See Id. at 389. A Bivens action is the
federal analog to an action against a state actor under 42
U.S.C. § 1983. See Hartman v. Moore, 547 U.S.
250, 254 n.2 (2006) (noting that a Bivens action is
the federal analog to claims against state actors brought
under § 1983); Tyler v. Dunne, No. 16 CV 2980,
2016 WL 4186971, at *2 (E.D.N.Y. Aug. 8, 2016) (determining
that § 1983 claims against federal actors should be
characterized as Bivens claims). Here, because
plaintiff names as defendants a federal detention facility
and an officer at that federal facility, the Court will
liberally construe his complaint as bringing a
Bivens claim. Pursuant to Bivens, because
plaintiff specifically alleges that defendant Rivera sprayed
mace in plaintiff's face, and that as a result plaintiff
may lose sight in his left eye (Compl. at p. 4.),
plaintiff's complaint may proceed against defendant
Rivera in her personal capacity. See, e.g.,
Elorreage v. Metro. Det. Ctr., No. 12-CV-3344 ARR,
2012 WL 3764428, at *2 (E.D.N.Y. Aug. 27, 2012) (in pro
se action, permitting claims against MDC staff director
and a federal officer to proceed under Bivens
because plaintiff “levie[d] specific allegations”
as to these federal employees).
is advised, however, that his suit against defendant Rivera
is subject to the requirements of the Prisoner Litigation
Reform Act (“PLSRA”). “The PLRA's
exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes,  whether they allege excessive force
or some other wrong . . . [and] whether they are pursuing
monetary or injunctive relief.” Dunster v. Fed.
Bureau of Prisons, No. 10-CV-1735 ARR LB, 2011 WL
2360353, at *3 (E.D.N.Y. June 9, 2011) (citing,
inter alia, Porter v. Nussle, 534 U.S. 516,
532 (2002); Booth v. Churner, 532 U.S. 731 (2001)).
“Failure to exhaust administrative remedies is an
affirmative defense under the PLRA, not a pleading
requirement[, and] inmates are not required to specially
plead or demonstrate exhaustion in their complaints. However,
a district court still may dismiss a complaint for failure to
exhaust administrative remedies if it is clear on the face of
the complaint that the plaintiff did not satisfy the PLRA
exhaustion requirement.” Williams v. Correction
Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016)
(internal quotation marks omitted) (quoting Jones v.
Bock, 549 U.S. 199, 216 (2007); Grullon v. City of
New Haven, 720 F.3d 133, 141 (2d Cir. 2013)). The
complaint is silent as to whether plaintiff has sought to
exhaust his administrative remedies, however, plaintiff has
separately submitted documents relating to his pursuit of
administrative review of the incident (see ECF No.
6). Thus, the court will not dismiss the complaint based on
claim against the MDC is barred under the doctrine of
sovereign immunity. E.g., Williams v. Metro.
Det. Ctr., 418 F.Supp.2d 96, 100 (E.D.N.Y. 2005)
(“As the MDC is a part of the BOP, a federal agency,
[plaintiff's] claims against the MDC and the federal
officers in their official capacities are dismissed on the
grounds of sovereign immunity.”); Elorreage,
2012 WL 3764428, at *2; see Fed. Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 475 (1994) (stating that sovereign
immunity shields the Federal Government and its agencies from
suit); Robinson v. Overseas Military Sales Corp., 21
F.3d 502, 510 (2d Cir. 1994) (same). Without a waiver of
sovereign immunity, federal courts lack subject matter
jurisdiction over a plaintiff's claims against the United
States or agencies thereof. See Fed. Deposit Ins.
Corp., 510 U.S. at 475 (noting requirement of waiver).
It is the Plaintiff's burden to demonstrate that
sovereign immunity has been waived. See Jimenez v. United