Francis v. USA

Filing 18

RULING granting 16 Motion to Dismiss. Signed by Judge Alvin W. Thompson on 8/12/2011. (Gallagher, Robyn)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
--------------------------------x
TAMMIE T. FRANCIS,
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA and
:
JAY MANVI,
:
:
Defendants.
:
--------------------------------x

Civil No. 3:10cv1474 (AWT)

RULING ON MOTION TO DISMISS
The plaintiff, Tammie T. Francis (“Francis”), who is serving
a life term of imprisonment at FCI Danbury in Danbury,
Connecticut, commenced this action pro se against the defendants,
United States of America and Jay Manvi (“Manvi”).

The plaintiff

brings a claim pursuant to 42 U.S.C. § 1983 for failure to
provide her with adequate medical care in violation of the Eighth
Amendment, and a claim pursuant to the Federal Tort Claims Act,
28 U.S.C. § 1346, (“FTCA”) for negligence in the provision of
medical care and by virtue of a failure to equip bunk beds in the
cells with ladders.

The defendants have moved to dismiss the

plaintiff’s § 1983 and negligence by virtue of failure to equip
bunk beds in the cells with ladders claims for lack of subject
matter jurisdiction and for failure to state a claim upon which
relief can be granted, respectively.

The claim for negligence in

the provision of medical care is not mentioned in the motion.
For the reasons set forth below, the motion is being granted.

I.

FACTUAL BACKGROUND
On or about May 16, 2009, the plaintiff fell and injured her

ankle as she descended from the top bunk in her prison cell.

The

plaintiff claims that she fell because, at the time of her
injury, the bunk bed was not equipped with a ladder.

After she

fell, the plaintiff promptly sought medical attention.
At health services, the plaintiff was examined by defendant
Manvi, a physician assistant.

Manvi diagnosed the plaintiff’s

injury as a sprained left ankle and instructed her to take
ibuprofen.

The plaintiff requested an x-ray of her ankle and a

pass to sleep in the bottom-bunk so that she would not need to
climb to and from the top-bunk in her cell.
denied.

Both requests were

The plaintiff returned to health services on May 21,

2009 because her ankle remained swollen and she was in constant
pain.

She again requested an x-ray and bottom-bunk pass, and

that time, both requests were granted and her x-ray was scheduled
for June 18, 2009.

During the course of the next several weeks,

the plaintiff complained daily of the pain and swelling in her
ankle.

The plaintiff received an x-ray on June 18, 2009 and was

seen by an orthopedist on June 25, 2009.

The doctor diagnosed

the plaintiff’s injury as a subacute healing non-displaced
fracture of the fibula with callus formation on the ankle.
The plaintiff believed that her injury was caused by the
prison’s failure to equip bunk beds with ladders.

2

Furthermore,

the plaintiff believed that her recovery from the injury was
delayed because she received improper medical treatment from
Manvi when she was initially diagnosed with a sprained ankle.
The plaintiff filed an informal complaint with her Correctional
Counselor on June 25, 2009, stating that she had received
inadequate medical care.

Because the complaint was not resolved

informally, the plaintiff filed a formal written Administrative
Remedy Request to the Warden on July 18, 2009, the day after she
received copies of the medical records pertaining to her injury.
The Warden rejected the plaintiff’s request on July 21, 2009,
determining that the plaintiff’s application was untimely because
it did not comply with the Bureau of Prisons (“BOP”)
Administrative Remedy Program’s requirement that requests be
filed within 20 days of the event complained about.
After receiving the Warden’s response, the plaintiff
submitted an appeal to the Northeast Regional Director of the
Bureau of Prisons on July 23, 2009.

The plaintiff stated that

she had waited until July 18, 2009 to submit her Administrative
Remedy Request because she did not receive her medical records
until July 17, 2009.

Because she waited for the medical records,

the plaintiff did not believe that her request was untimely.

The

Northeast Regional Director denied the plaintiff’s appeal on July
29, 2009, concurring with the determination by the Warden that
the original application was untimely.

3

The plaintiff appealed to the General Counsel’s Office at
the Central Office of Appeals on August 2, 2009.

The plaintiff

did not include in her appeal an explanation of why she did not
submit her Administrative Remedy Request until July 18, 2009.
The appeal was again rejected because the original application
was untimely.
The plaintiff subsequently filed an Administrative Tort
Claim under the FTCA on September 16, 2009.

The Northeast

Regional Office of the Federal Bureau of Prisons declined to
offer the plaintiff a settlement and denied her claim.
II.

LEGAL STANDARD
When deciding a motion to dismiss under Rule 12(b)(1) or

12(b)(6), the court must accept as true all factual allegations
in the complaint and must draw inferences in a light most
favorable to the plaintiff.
(1974).

Scheuer v. Rhodes, 416 U.S. 232, 236

Although a complaint “does not need detailed factual

allegations, a plaintiff’s obligation to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Bell Atl. Corp. v. Twombly, 550

U.S. 550, 555 (2007), citing Papasan v. Allain, 478 U.S. 265, 286
(1986) (on a motion to dismiss, courts “are not bound to accept
as true a legal conclusion couched as a factual allegation”).
“Nor does a complaint suffice if it tenders naked assertions

4

devoid of further factual enhancement.”

Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557).
“Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all
allegations in the complaint are true (even if doubtful in
fact).”

Id. (citations omitted).

However, the plaintiff must

plead “only enough facts to state a claim to relief that is
plausible on its face.”

Id. at 1974.

“The function of a motion

to dismiss is ‘merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which might be
offered in support thereof.’”

Mytych v. May Dept. Store Co., 34

F. Supp. 2d 130, 131 (D. Conn. 1999), quoting Ryder Energy
Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779
(2d Cir. 1984).

“The issue on a motion to dismiss is not whether

the plaintiff will prevail, but whether the plaintiff is entitled
to offer evidence to support his claims.”

United States v. Yale

New Haven Hosp., 727 F. Supp. 784, 786 (D. Conn. 1990) (citing
Scheuer, 416 U.S. at 232).
In its review of a motion to dismiss for failure to state a
claim, the court may consider “only the facts alleged in the
pleadings, documents attached as exhibits or incorporated by
reference in the pleadings and matters of which judicial notice
may be taken.”

Samuels v. Air Transp. Local 504, 992 F.2d 12, 15

(2d Cir. 1993).

5

III. DISCUSSION
The plaintiff brings claims under 42 U.S.C. § 1983 and the
FTCA.

Pursuant to § 1983 she claims that she was provided with

constitutionally inadequate medical care in violation of the
Eighth Amendment.

Pursuant to the FTCA, she claims that Manvi

was negligent in providing her with medical care and the BOP was
negligent by failing to equip bunk beds in the cells with
ladders.
A.

Provision of Inadequate Medical Care in Violation of
the 42 U.S.C. § 1983 and the Eighth Amendment

The Prison Litigation Reform Act (“PLRA”) provides that “no
action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.”

42 U.S.C. § 1997e(a).

“[T]he PLRA’s exhaustion

requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong.”

Porter v. Nussle, 534 U.S. 516, 532 (2002).

The administrative remedy process provided to federal
inmates by the BOP consists of four steps.

First, “an inmate

shall . . . present an issue of concern informally to staff, and
staff shall attempt to informally resolve the issue before an
inmate submits a Request for Administrative Remedy.”
6

28 C.F.R.

§ 542.13(a).

Second, if the inmate is dissatisfied with the

informal resolution of her complaint, the inmate must submit a
formal written Administrative Remedy Request on a BP-9 form to
the Warden within 20 days of the date of the occurrence of the
event that is the basis for the remedy request.
§ 542.14(a).

See 28 C.F.R.

“Where an inmate demonstrates a valid reason for

delay, an extension in filing time may be allowed.”
§ 542.14(b).

28 C.F.R.

Third, an inmate who is dissatisfied with the

Warden’s response may submit an appeal on a BP-10 form to the
Regional Director within 20 days of the Warden’s signed response.
See 28 C.F.R. § 542.15(a).

Fourth, an inmate who is dissatisfied

with the Regional Director’s response may submit a final appeal
on a BP-11 form to the General Counsel’s Office at the Central
Office of Appeals within 30 days of the Regional Director’s
signed response.

See 28 C.F.R. § 542.15(a).

“When the inmate

demonstrates a valid reason for delay, [the appeal] time limits
may be extended.”

28 C.F.R. § 542.15(a).

“Filing an untimely or otherwise procedurally defective
administrative grievance or appeal” does not satisfy the PLRA’s
exhaustion requirement.
(2006).

Woodford v. Ngo, 548 U.S. 81, 83-84

Failure to timely exhaust administrative remedies

results in procedural default, which precludes judicial review of
the defaulted claim unless the inmate is able to justify the
failure to exhaust.

See Carmona v. U.S. Bureau of Prisons, 243

7

F.3d 629, 634 (2d Cir. 2001).
“The Second Circuit has established a three-part inquiry for
when ‘a prisoner plaintiff plausibly seeks to counter defendants’
contention that the prisoner has failed to exhaust administrative
remedies.’”

Petrucelli v. Hasty, 605 F. Supp. 2d 410, 422

(E.D.N.Y. 2009), quoting Hemphill v. New York, 380 F.3d 680, 686
(2d Cir. 2004).
Depending on the inmate’s explanation for the alleged
failure to exhaust, the court must ask whether
administrative remedies were in fact available to the
prisoner. The court should also inquire as to whether
the defendants may have forfeited the affirmative
defense of non-exhaustion by failing to raise or
preserve it, or whether the defendants’ own actions
inhibiting the inmate’s exhaustion of remedies may
estop one or more of the defendants from raising the
plaintiff’s failure to exhaust as a defense. If the
court finds that administrative remedies were available
to the plaintiff, and that the defendants are not
estopped and have not forfeited their non-exhaustion
defense, but that the plaintiff nevertheless did not
exhaust available remedies, the court should consider
whether special circumstances have been plausibly
alleged that justify the prisoner’s failure to comply
with administrative procedural requirements.
Hemphill, 380 F.3d at 686.

In determining whether the prisoner’s

failure to comply is justified and may be excused, courts will
look to whether “legitimate circumstances beyond the prisoner’s
control preclude[d] him from fully pursuing his administrative
remedies.”

Carmona, 243 F.3d at 634; see also Murray v. Carrier,

477 U.S. 478, 488 (1986) (“[T]he existence of cause for a
procedural default must ordinarily turn on whether the prisoner
can show some objective factor external to the defense impeded
8

. . . efforts to comply with the . . .

procedural rule.”).

In the present case, the plaintiff failed to exhaust her
administrative remedies because she filed an untimely
Administrative Remedy Request.

“A section 1983 claim accrues

when the plaintiff knows of or has reason to know of the harm.”
Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994).

The

plaintiff became aware of “the harm” on June 25, 2009 when she
learned that the diagnosis after the x-ray was different than the
original diagnosis of a sprained ankle.

Accordingly, she had 20

days from June 25, 2009 to file her Administrative Remedy
Request.

The plaintiff did not request an extension of the time

limit and submitted the Administrative Remedy Request on July 18,
2009, after the 20 day period had passed.

Therefore the Warden

concluded that her request was untimely.
The plaintiff states that she submitted her request late
because she was waiting to receive the medical records pertaining
to her ankle injury.

While receiving the records in time to

submit a timely request may have been beyond the plaintiff’s
control, the plaintiff has made no showing that she was unable to
request an extension of the 20 day time limit pursuant to 28
C.F.R. § 542.14(b).

Because the plaintiff did not comply with

the requirements for timely filing an Administrative Remedy
Request, she has not exhausted her administrative remedies.
Additionally, the plaintiff has not alleged circumstances beyond

9

her control sufficient for the court excuse her failure to
exhaust.

Therefore, the court does not have subject matter

jurisdiction over the plaintiff’s § 1983 claim and the
defendants’ motion to dismiss that claim is being granted.
Moreover, even if the plaintiff had exhausted her
administrative remedies, her claim that the medical care she
received was constitutionally inadequate fails on the merits.

In

order to establish an Eighth Amendment violation, a plaintiff
must show that the defendants were deliberately indifferent to
her serious medical needs.

See Estelle v. Gamble, 429 U.S. 97,

104 (1976).
The deliberate indifference standard embodies both an
objective and a subjective prong. Objectively, the
alleged deprivation must be “sufficiently serious,” in
the sense that “a condition of urgency, one that may
produce death, degeneration, or extreme pain” exists.
Subjectively, the charged official must act with a
sufficiently culpable state of mind.
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).

“Mere

negligence will not support a section 1983 claim; the Eighth
Amendment is not a vehicle for bringing medical malpractice
claims, nor a substitute for state tort law.”

Pimentel v. Deboo,

411 F. Supp. 2d 118, 128 (D. Conn. 2006) (internal quotation
marks and citations omitted).
Assuming arguendo that the plaintiff’s injury was
“sufficiently serious,” the plaintiff makes only conclusory
allegations that Manvi was deliberately indifferent to her

10

serious medical needs.

The plaintiff does not allege facts that

could establish that Manvi acted with a sufficiently culpable
state of mind.

She only alleges that Manvi diagnosed her injury

as a sprained ankle and would not give her an x-ray, and that she
later received a diagnosis which was different than that made by
Manvi.

While these allegations may support a claim that Manvi

negligently provided medical care, they do not support a claim
that Manvi acted with deliberate indifference.

Therefore, even

if the plaintiff had exhausted her administrative remedies, her
claim that defendant Manvi violated her rights under the Eighth
Amendment fails on the merits.
B.
Negligence Claim for Failure to Equip Bunk Beds with
Ladders
The FTCA is a limited waiver of sovereign immunity by the
federal government.

The discretionary function exception of the

FTCA is “a form of retained sovereign immunity.

As a result, the

[FTCA’s] waiver of federal sovereign immunity does not encompass
actions based upon the performance of, or failure to perform,
discretionary functions.”

In re World Trade Ctr. Disaster Site

Litig., 521 F.3d 169, 190 (2d Cir. 2008).

The Supreme Court has

applied a two-step test to determine whether an act is
discretionary and falls within the waiver of sovereign immunity
exception under the FTCA.
U.S. 531, 536-37 (1998).

See Berkovitz v. United States, 486
First, a discretionary act must be

involved such that there is “an element of judgment or choice.”
11

United States v. Gaubert, 499 U.S. 315, 322 (1991).
Discretionary acts include “day-to-day management decisions if
those decisions require judgment as to which of a range of
permissible courses is wisest.”
535, 538 (2d Cir. 1991).

Fazi v. United States, 935 F.2d

“The court only needs to consider the

second step if the action was discretionary under the first
step.”

Bultema v. United States, 359 F.3d 379, 383 (6th Cir.

2004).
Second, “even assuming the challenged conduct involves an
element of judgment, it remains to be decided whether that
judgment is of the kind that the discretionary function exception
was designed to shield.”

Gaubert, 499 U.S. at 322.

“Because the

purpose of this exception is to prevent judicial second-guessing
of legislative and administrative decisions grounded in social,
economic, and political policy . . . , the exception protects
only governmental actions and decisions based on considerations
of public policy.”

Id. at 323.

“When established governmental

policy, as expressed or implied by statute, regulation, or agency
guidelines, allows a Government agent to exercise discretion, it
must be presumed that the agent’s acts are grounded in policy
when exercising that discretion.”

Id. at 324.

The BOP is charged with, inter alia, “provid[ing] for the
safekeeping, care, . . . subsistence . . . protection,
instruction, and discipline” of prisoners.

12

18 U.S.C. §§

4042(a)(2) and (3).
While it is true that the statute sets forth a
mandatory duty of care, it does not, however, direct
the manner by which the BOP must fulfill this duty.
The statute sets forth no particular conduct the BOP
personnel should engage in or avoid while attempting
to fulfill their duty to protect inmates.
Scrima v. Hasty, No. 97 Civ. 8433, 1998 U.S. Dist. LEXIS 15050,
at *7-8 (S.D.N.Y. Sept. 24, 1998), quoting Calderon v. United
States, 123 F.3d 947, 950 (7th Cir. 1997).

Thus, deciding what

steps should be taken to provide for prisoners’ safety involves
judgment and discretion.

“[T]here are no BOP rules,

regulations, or policies governing the use of ladders or bunks .
. . these decisions are made independently by the administrators
of each institution. [T]he decision [as to whether to provide
ladders] clearly involve[s] ‘an element of judgment or choice.’”
Lee v. United States, No. 5:10cv16, 2010 U.S. Dist. LEXIS
105921, at *10-11 (N.D. W. Va. Oct. 4, 2010).

Because the

decision as to whether to provide ladders on bunk beds is a
matter of safety, involves discretion and is not specifically
provided for by statute, the first prong of the discretionary
function exception is satisfied.
The decision as to whether to provide ladders on bunk beds
in prison cells is also subject to a policy analysis.

Providing

ladders presents “valid safety and security concerns relating to
the beds at issue.

Guard rails, and sometimes ladders, are not

included because of the danger that they can be broken off and
13

used as weapons or escape devices.”

Bultema, 359 F.3d at 384.

“The decision generally not to have bed rails . . . involve[s]
the type of across-the-board policy-making judgment that the
discretionary function exception was meant to leave to federal
administrators, in this case prison administrators.”

Id.; see

also Preston v. United States, No. 1:08cv2493, 2010 U.S. Dist.
LEXIS 75386, at *12 (N.D. Ga. July 27, 2010) (“[The] decision
not to add ladders to the bunk beds . . . was grounded in prison
and inmate safety, which is precisely the type of policy
decision that is protected by the discretionary function
exception.”) (internal citation and quotation marks omitted).
Because the decision is subject to a policy analysis, the second
prong of the discretionary function exception is also satisfied.
Other courts that have considered this issue have also held
that the decision not to provide ladders on bunk beds in prison
cells falls within the discretionary function exception.

See,

e.g., Fernandez v. Fed. Bureau of Prisons, No. 99 Civ. 4944,
2001 U.S. Dist. LEXIS 11730, at *2 (S.D.N.Y. Aug. 13, 2001)
(“[W]hether to provide ladders for bunk beds . . . involve[s]
the exercise of discretion . . . [and] the Government enjoys
sovereign immunity for these types of discretionary functions
under the FTCA.”); Preston, 2010 U.S. Dist. LEXIS 75386, at *12
(“Warden Zenk’s failure to provide a ladder for Preston’s use in
obtaining access to his upper bunk is protected by the FTCA’s

14

discretionary function exception.”); Lee, 2010 U.S. Dist. LEXIS
105921, at *12 (“This Court finds that the discretionary
function exception applies and that valid safety and security
reasons exist for the BOP’s decision to refuse to install
ladders on the bunk beds.”); Jackson v. United States, No. 0688, 2007 U.S. Dist. LEXIS 50475, at * 8 (W.D. Pa. July 12,
2007).
Because the decision as to whether to provide ladders on
bunk beds in prison cells falls within the discretionary
function exception in the FTCA, the court lacks subject matter
jurisdiction over the plaintiff’s claim for negligence based on
failure to equip bunk beds in cells with ladders.

Therefore,

the defendants’ motion to dismiss this claim is being granted.
IV.

CONCLUSION
For the reasons set forth above, the defendants’ motion to

dismiss (Doc. No. 16) is hereby GRANTED.

The plaintiff’s claim

for negligence in the provision of medical care under the FTCA
remains because it was not addressed in the motion to dismiss.
It is so ordered.
Dated this 12th day of August, 2011 at Hartford,
Connecticut.
/s/AWT
Alvin W. Thompson
United States District Judge

15