Johnson Barnwell v. FCI Danbury et al

Filing 26

ORDER denying 24 Motion to Dismiss; denying 15 Motion to Dismiss; denying 20 Motion to Amend/Correct; granting 22 Sealed Motion; denying 23 Motion to Dismiss for Lack of Jurisdiction; denying 23 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 11/3/11. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
:
:
:
:
:
:
:
:
:
:
:

INGRA JOHNSON BARNWELL,
Plaintiff,
v.
FCI DANBURY, MAUREEN BAIRD,
and MARVIN BUNDY,
Defendants.

No. 3:10-CV-01301 (DJS)

MEMORANDUM OF DECISION AND ORDER
The plaintiff, Ingra Johnson Barnwell, proceeding pro se,
brings this action against the defendants, the Federal Bureau of
Prisons, the Federal Correctional Institution at Danbury (“FCI
Danbury”), Maureen Baird, and Marvin Bundy, more properly sued
as the United States, alleging liability for the tort of
negligence and seeking damages.
U.S.C. § 1346(b).

Jurisdiction exists under 28

Now at bar are three Motions to Dismiss and a

Motion to Seal by the defendants, as well as a Motion to Amend
the Complaint by Barnwell.

For the following reasons, all three

Motions to Dismiss are DENIED, the Motion to Seal is GRANTED,
and the Motion to Amend is DENIED.
I. BACKGROUND1
Barnwell is an individual currently residing in
Mooresville, North Carolina.

At the time of the events relevant

1

Unless otherwise indicated, the following is drawn from filings
related to the motions at bar.

1

to this action, she was incarcerated at FCI Danbury.
Baird is FCI Danbury’s warden.

Maureen

Marvin Bundy is a safety

inspector at FCI Danbury.
On August 13, 2007, a light fixture weighing 20 to 30
pounds, which was installed on the ceiling above Barnwell’s
bunk, unexpectedly fell to the ground.

Barnwell was not

immediately below the fixture at that time, and thus, was not
harmed.

She immediately reported the incident to correctional

officers.

One week later, the fixture was reinstalled on the

ceiling above her bunk.
On August 28, 2007, the fixture fell again.

This time,

Barnwell was sleeping in her bunk and the fixture landed on her
head and upper body.

She explains that she subsequently

experienced severe pain in her head, right arm, and right
shoulder.

She reported the accident to her work supervisor the

following morning and was sent to the facility’s medical clinic
where she was examined and given medication.
On August 30, 2007, Barnwell returned to the facility’s
medical clinic.
Hospital.

She was seen by two doctors and sent to Danbury

There, she underwent a CAT Scan and was diagnosed

with post-concussive syndrome for which she was prescribed
medication.
Over the two subsequent years, Barnwell has continued to
receive medical treatment related to the injuries she sustained

2

from the fallen light fixture, including a neurologist’s
evaluation in June 2008, an orthopedic surgeon’s evaluation in
March 2009, and an MRI exam in May 2009.

Nonetheless, she has

continued to regularly experience migraine headaches, pain in
her right arm and shoulder, and occasional numbness in her arms
and legs.
Barnwell brought this action seeking compensation for her
injuries.

The defendants now move to dismiss.
II. ANALYSIS
A. Barnwell’s Cause of Action

As a preliminary matter, the parties’ filings exhibit
confusion as to the applicable theory of liability underlying
Barnwell’s claim.

The appropriate cause of action should

therefore be clarified before addressing the merits of the
pending motions.
On August 27, 2009, nearly a year before she initiated this
action, Barnwell filed an Administrative Tort Claim with the
Bureau of Prisons seeking $100,000 in damages for her injuries.
(Dkt. # 1, p. 9.)

Her administrative claim was considered

pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
2672, but was ultimately denied.

(Dkt. # 15-2, p. 81.)

Barnwell then filed her initial pro se Complaint in this
action, alleging that she had “suffered severe, serious and
permanent injuries as a result of the prison’s failure to

3

adequately repair a heavy ceiling light that had fallen before,”
and seeking “damages for personal injuries and maintenance
negligence in the amount provided on [an] original tort claim.”
(Dkt. # 1, p. 4.)
On September 9, 2010, the Court preliminarily examined
Barnwell’s Complaint and issued an Initial Review Order.
# 4.)

(Dkt.

Therein, the Court specifically observed that Barnwell

did “not reference the FTCA in the body of her complaint,” but
nonetheless concluded that she had adequately pled a tort claim
against the United States pursuant to the FTCA, 28 U.S.C. §
1346(b).

(Dkt. # 4, pp. 1-2.)

On October 5, 2010, Barnwell filed an Amended Complaint.
(Dkt. # 9.)

Therein, she added Bundy as a defendant, but

otherwise, she merely restated the allegations appearing in her
initial Complaint, albeit somewhat more succinctly.
pp. 3, 5-7.)

(Dkt. # 9,

Significantly, however, she presented her Amended

Complaint on a pre-printed form often used by prisoners for this
purpose.

The second page of that form contains a section

entitled “JURISDICTION” which reads as follows:
Because federal courts cannot hear every kind of
claim, you must identify the law that says this court
can hear your claim.
There are two possibilities.
Check one.
I can bring my complaint in federal court because I am
suing:
1. _______

State,

county

or

4

city

employees

for

violating my federal rights under 42 U.S.C. Sec.
1983/1985/1986; OR
2. _______ Federal employees for violating my federal
rights under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and 28
U.S.C. Sec. 1331.
(Dkt. # 9, p. 2 (emphasis in original).)
In Barnwell’s Amended Complaint, a check mark prominently
appears next to the second choice.

(Dkt. # 9, p. 2.)

Solely on

the basis of that check mark, the defendants argue that Barnwell
now “alleges unspecified violations of her constitutional
rights” under Bivens, explaining that her “amended complaint,
which presumably supercedes [sic] and replaces the original
complaint, specifically references a cause of action under 28
U.S.C. [§] 1331.”

(Dkt. # 15-1, pp. 2-3.)2

The Court disagrees.

A pro se complaint is adequately pled

if its allegations “can conceivably give rise to a viable
claim.”

Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005).

Such a complaint, “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Indeed,

it must be “liberally construed,” id., and interpreted “to raise
the strongest arguments that it suggests,” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010).

2

The defendants adhere to this view in subsequent filings, explaining
that “[o]n a form provided by the court, [Barnwell] made clear that . . . she
considers her cause of action to be a civil rights violation[.]” (Dkt. # 231, p. 3.)

5

Here, Barnwell’s Amended Complaint presents the very same
factual allegations as did her initial Complaint.

Again, she

does not reference the FTCA in the body of her Amended
Complaint, but has nonetheless adequately pled a tort claim
against the United States pursuant to the FTCA, 28 U.S.C. §
1346(b).
The pre-printed form Barnwell used to file her Amended
Complaint states that a basis for jurisdiction “must” be
identified, but fails to indicate that jurisdiction can be
established pursuant to the FTCA.

See, e.g., Triestman v.

Federal Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006);
Coulthurst v. United States, 214 F.3d 106, 111 (2d Cir. 2000).
Barnwell’s check mark indicating that jurisdiction is sought
under Bivens suggests that she has attempted to comply with the
form’s instructions by choosing the option that seemed most
suitable to her claim, which she brings against “Federal
employees,” and not against “State, county or city employees.”
But nowhere in either her initial or amended complaints does she
allege that her constitutional rights were somehow violated, nor
does she even mention her constitutional rights in any respect.
As such, the only cause of action Barnwell here alleges is the
tort of negligence, and thus, she does not allege “unspecified
violations of her constitutional rights” under Bivens.

6

B. The Motions to Dismiss
To date, the defendants have filed three motions to
dismiss.

The first, filed February 18, 2011, argues that

Barnwell is foreclosed from asserting a Bivens claim because she
has failed to exhaust administrative remedies available to her,
(dkt. # 15-1, pp. 3-7), and because she has failed to
demonstrate that each defendant personally participated in the
alleged deprivation of her constitutional rights, (dkt. # 15-1,
pp. 10-12).

As explained above, Barnwell’s claim is not brought

under Bivens, and thus, cannot be dismissed on these grounds.
The defendants’ first motion to dismiss, however, also
specifically argues that Barnwell’s failure to exhaust all
administrative remedies forecloses her assertion of a tort claim
under the FTCA.

(Dkt. # 15-1, pp. 7-10.)

Indeed, an FTCA claim

may only be brought after the claimant’s administrative remedies
have been exhausted.

28 U.S.C. § 2675(a).

See Celestine v.

Mount Vernon Neighborhood Health Center, 403 F.3d 76, 82 (2d
Cir. 2005).

A claimant’s administrative remedies are only

exhausted when the claim has been finally denied in writing by
the appropriate federal agency.

28 U.S.C. § 2675(a).

Here, the

appropriate federal agency is the Bureau of Prisons, which
requires that claims be filed with its regional office in the
region where the loss or injury occurred.
543.31(c).

7

28 C.F.R. §

On August 27, 2009, the Jerome N. Frank Legal Services
Organization at Yale Law School (the “YLS Clinic”), representing
Barnwell pro bono, initiated her administrative claim by sending
the appropriate form to Henry Sadowsky, Regional Counsel for the
Northeast Regional Office of the Federal Bureau of Prisons.
(Dkt. # 1, p. 9.)
On February 24, 2010, Sadowsky denied that claim.

His

denial letter concludes as follows: “If you are dissatisfied
with this decision, you may bring an action against the United
States in an appropriate United States District Court within six
(6) months of the date of this letter.”

(Dkt. #15-2, p. 81.)

On June 17, 2010, the YLS Clinic sent a letter to Sadowsky
requesting that he reconsider the claim’s denial.
10.)

(Dkt. # 1, p.

That same day, the YLS Clinic also sent Barnwell a letter

informing her that reconsideration was being sought, and stating
the following:
Please remember that if you would like to proceed on
your claim you only have until August 24, 2010 to file
your complaint in the United States District Court.
Unfortunately, . . . the clinic will be unable to help
represent you going forward.
We suggest that you
start looking for a new attorney now. Even if you are
unable to find a new attorney by early August, you may
want to consider filing a complaint pro se. . . . We
do not suggest that you wait for an answer to our
reconsideration letter before beginning this process,
as we are not hopeful that, even with all the attached
documentation, Attorney Sadowski will change his mind.
(Dkt. # 1, p. 11.)

On August 12, 2010, Barnwell filed her

8

initial Complaint in this action.3

Ultimately, on February

1, 2011, Sadowsky notified Barnwell that her claim, upon
reconsideration, remained denied.

(Dkt. # 15-3, p. 61.)

The defendants now argue that Barnwell’s initial Complaint
in this action was “prematurely filed” and, on that basis, seek
its dismissal.

Specifically, they concede that she could have

initiated this action within six months of the Bureau of
Prisons’ February 24, 2010, decision denying her administrative
claim, but argue that her administrative remedies effectively
ceased to be exhausted when she sought reconsideration of her
claim’s denial on June 17, 2010, thus barring her from seeking
relief in federal court until after receiving a decision from
the Bureau of Prisons with respect to her request for
reconsideration.
As the defendants note, no binding precedent speaks
directly to this issue.

(Dkt. # 15-1, pp. 9-10, n.1.)

Another

district court within this Circuit, however, has concluded that
“a final denial [by an] agency in writing is, in fact, final for
the purpose of exhaustion under § 2675, irrespective of the
possibility for reconsideration by the agency.”

State Farm Mut.

Auto. Ins. Co. v. United States, 326 F. Supp. 2d 407, 417

3
On September 3, 2010, Sadowsky sent a letter to Barnwell acknowledging
his receipt of her initial Complaint, but erroneously characterizing it as
another “request for reconsideration,” and stating: “[u]nder the provisions
of the applicable federal statutes, we have six months from the date of
receipt to review, consider, and adjudicate your claim.” (Dkt. # 15-3, p.
59.)

9

(E.D.N.Y. 2004).

There, the court emphasized a passage from a

letter denying the plaintiff’s administrative claim, which
stated that “if the plaintiff does not agree with the denial,
the plaintiff may file suit in the appropriate Federal District
Court not later than six months after the date of the mailing of
this notification.”

Id.

The court explained that “[t]his

direct reference to the language of the FTCA indicates that this
is the final denial for the purpose of filing suit under §
2675,” and that “[i]t would be unfair to punish a plaintiff for
relying on the agency’s own clear statement that its written
denial triggers the ‘window of opportunity’ to file suit.”

Id.

Here, the same language prominently appears in the Bureau
of Prisons’ letter denying Barnwell’s administrative claim.

As

in State Farm, the Court here concludes that it would be unfair
to punish Barnwell for relying on the Bureau of Prisons’ own
clear statement that its written denial permitted her to
initiate this action.

Accordingly, the defendants’ first Motion

to Dismiss (dkt. # 15) is denied.
The defendants’ second motion to dismiss, filed July 11,
2011, again argues that Barnwell is foreclosed from asserting a
Bivens claim because she has failed to exhaust the
administrative remedies available to her, (dkt. # 23-1, pp. 37), and because she has failed to demonstrate that each
defendant personally participated in the alleged deprivation of

10

her constitutional rights, (dkt. # 23-1, pp. 9-14).

In

addition, the defendants argue that Barnwell has failed to
allege sufficient facts to support liability for deliberate
indifference to medical need in violation of the Eighth
Amendment to the United States Constitution.
14-19.)

(Dkt. # 23-1, pp.

Again, Barnwell’s claim is not brought under Bivens,

and thus, cannot be dismissed on these grounds.

Accordingly,

the defendants’ second Motion to Dismiss (dkt. # 23) is denied.
The defendants’ third motion to dismiss, filed October 4,
2011, observes that Barnwell has filed no response to the
defendants’ second motion to dismiss, and therefore, seeks
dismissal on the ground that she has failed to prosecute this
action.

(Dkt. # 24.)

Barnwell, however, has filed a response

to the defendant’s first motion to dismiss.

(See dkt. # 19.)

Given the significant overlap that exists between the arguments
defendants make in their first and second motions, Barnwell’s
response to the first motion also largely responds to the
second. Accordingly, the defendants’ third Motion to Dismiss
(dkt. # 24) is denied.
C. The Motion to Seal
The defendants move to seal documents drawn from Barnwell’s
personal medical records at FCI Danbury.

(Dkt. # 22-1.)

“[T]he

courts of this country recognize a general right to inspect and
copy . . . judicial records and documents.”

11

Nixon v. Warner

Comm., Inc., 435 U.S. 589, 597 (1978).

See Lugosch v. Pyramid

Co. of Onondaga, 435 F.3d 110, 120-27 (2d Cir. 2006).

Courts

are therefore reluctant to limit public’s access to the judicial
process without demonstrated good cause.

Hartford Courant Co.

v. Pellegrino, 380 F.3d 83, 96 (2d Cir. 2004) (Judicial records
enjoy a “presumption of openness,” that is rebuttable “upon
demonstration that suppression is essential to preserve higher
values and is narrowly tailored to serve that interest.”); In re
Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir. 1994) (“In most
cases, a judge must carefully and skeptically review sealing
requests to insure that there really is an extraordinary
circumstance or compelling need.”).
Here, Barnwell does not oppose the motion, which only seeks
to seal records relating to her personal medical treatment.
Federal law generally treats such records as confidential.

See

Health Insurance Portability and Accountability Act of 1996
(“HIPAA”), Pub.L. 104-191 (1996).

Accordingly, the Motion to

Seal is granted.
D. The Motion to Amend
On April 27, 2011, Barnwell filed a motion to further amend
her Complaint in order to add Donna Zickefoose and Darin Daly as
defendants.
warden.

(Dkt. # 20.)

Zickefoose is FCI Danbury’s former

Daly is a health services administrator at FCI Danbury.

The amendment Barnwell seeks would be futile.

12

A suit

against the United States under the FTCA is the “exclusive
remedy for nonconstitutional torts by a government employee
acting within the scope of his employment.”
States, 34 F.3d 106, 110 (2d Cir. 1994).
2679(b)(1).

Castro v. United

See 28 U.S.C. §

In other words, “the FTCA makes individual

government employees immune from common-law tort claims for acts
committed within the scope of their employment.”
F.3d at 110.
Cir. 1991).

Castro, 34

See Rivera v. United States, 928 F.2d 592, 608 (2d
Ultimately, the United States will be substituted

as the party defendant in this action if it appropriately
certifies that the individuals involved in this action were
acting within the scope of their employment at the time of the
incident out of which her claim arose.
2679(d)(1).

See 28 U.S.C. §

Accordingly, Barnwell’s Motion to Amend is denied.
III. CONCLUSION

For the foregoing reasons, the defendants’ three pending
Motions to Dismiss (dkt. # 15, 23, 24) are DENIED, their Motion
to Seal (dkt. # 22) is GRANTED, and Barnwell’s Motion to Amend
(dkt. # 20) is DENIED.
SO ORDERED this 3rd day of November, 2011.

___________/s/DJS____________
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE

13