De Madrid v. Federal Bureau of Prisons

Filing 9

INITIAL REVIEW ORDER DISMISSING CASE, without prejudice: See text of order. The Clerk is directed to enter judgment for the defendants and close this case. Signed by Judge Vanessa L. Bryant on 08/27/2012. (Blough, B.) Modified text on 8/28/2012 (Blough, B.).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CARMINA PANDO DE MADRID,
Plaintiff,
v.

de

FEDERAL BUREAU OF PRISONS,
Defendant.

PRISONER
CASE NO. 3:12-cv-532(VLB)
August 28, 2012

INITIAL REVIEW ORDER
The plaintiff, currently incarcerated at the Federal Correctional Institution in
Danbury, Connecticut (“FCI Danbury”), has filed a complaint pro se. The plaintiff
names the Bureau of Prisons as the only defendant.
Pursuant to 28 U.S.C. § 1915A(b), the Court must review prisoner civil
complaints against governmental actors and “dismiss ... any portion of [a]
complaint [that] is frivolous, malicious, or fails to state a claim upon which relief
may be granted,” or that “seeks monetary relief from a defendant who is immune
from such relief.” Id. This requirement applies both where the inmate has paid
the filing fee and where he is proceeding in forma pauperis. See Carr v. Dvorin,
171 F.3d 115 (2d Cir. 1999) (per curiam). Rule 8 of the Federal Rules of Civil
Procedure requires that a complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although detailed allegations are not required, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks and citations omitted). A complaint that
includes only “‘labels and conclusions,’ ‘a formulaic recitation of the elements of
a cause of action’ or ‘naked assertion[s]’ devoid of ‘further factual enhancement,’
” does not meet the facial plausibility standard. Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 557 (2007)). Although courts still have an obligation
to liberally construe a pro se complaint, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009), the complaint must include sufficient factual allegations to meet the
standard of facial plausibility.
The plaintiff asserts that in March 2011, she slipped on a piece of ice in
front of an ice machine at FCI Danbury and fractured her right knee. She claims
there was no sign in the area near the ice machine indicating that the floor was
wet or slippery. She seeks monetary compensation, physical therapy and
medical treatment for her injury.
Because the plaintiff has named a federal correctional organization as a
defendant, the court will construe the complaint as having been filed pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.
1994) (section 1983 claim asserted against federal agency and federal officials
should be construed as a Bivens claim). In Bivens, the Supreme Court held that
federal officials may be sued for damages in their individual capacities for the
violations of a person’s constitutional rights. Thus, a Bivens action is the

nonstatutory federal counterpart of a civil rights action pursuant to 42 U.S.C. §
1983. See Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981).
A lawsuit against a federal official in his official capacity is considered a
lawsuit against the United States. See Robinson, 21 F.3d at 509-10. The doctrine
of sovereign immunity protects the United States from suit absent consent. See
FDIC v. Meyer, 510 U.S. 471, 475 (1994). “Because an action against a federal
agency or federal officials in their official capacities is essentially a suit against
the United States, such suits are also barred under the doctrine of sovereign
immunity, unless such immunity is waived.” Robinson, 21 F.3d at 510 (citations
omitted).
Plaintiff seeks monetary damages from the Bureau of Prisons in its official
capacity. The Bureau of Prisons has not consented to be sued in its official
capacity. All claims against the Bureau of Prisons in its official capacity for
monetary damages are dismissed on the grounds of sovereign immunity. See 28
U.S.C. § 1915A(b)(2); Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001)
(Bivens claim may be brought against “offending individual officer” of Bureau of
Prisons, but not against the Bureau of Prisons or the United States).
The plaintiff asserts that the Bureau of Prisons was negligent in failing to
put a warning sign near the slippery spot in front of the ice machine. Inadvertent
or negligent conduct which causes injury, however, does not support a Bivens
action. See Schweiker v. Chilicky, 487 U.S. 412, 447 (1988) (“to prevail in any
Bivens action, recipients such as respondents must both prove a deliberate
abuse of governmental power rather than mere negligence) (citing Daniels v.

Williams, 474 U.S. 327, 330-36 (1986)); Davidson v. Cannon, 474 U.S. 344, 347
(1986) (“Due Process clause of the Fourteenth Amendment is not implicated by
lack of due care of an official causing unintended injury to life, liberty or
property”). Accordingly, the claim of negligent conduct on the part of the Bureau
of Prisons is dismissed as lacking an arguable legal basis. See 28 U.S.C. §
1915A(b)(1).
The court will not construe the complaint as having been filed pursuant to
the Federal Tort Claims Act [“FTCA”] because the plaintiff does not assert that
she exhausted her administrative remedies prior to filing suit. The FTCA “waives
the sovereign immunity of the federal government for claims based on the
negligence of its employees.” Coulthurst v. United States, 214 F.3d 106, 108 (2d
Cir. 2000). Specifically, the Federal Tort Claims Act authorizes suits against the
government to recover damages
for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or employment,
under circumstances where the United States, if a
private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.
28 U.S.C. § 1346(b)(2). The proper defendant in an FTCA claim is the United
States.
An FTCA claim against the United States may not be asserted in the United
States District Court unless the plaintiff has first exhausted his or her
administrative remedies. Specifically, the FTCA provides that:

An action shall not be instituted upon a claim against
the United States for money damages for injury or loss
of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, unless the claimant shall have
first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by
the agency in writing and sent by certified or registered
mail. The failure of an agency to make final disposition
of a claim within six months after it is filed shall, at the
option of the claimant at any time thereafter, be deemed
a final denial of the claim for purposes of this section.
28 U.S.C. 2675(a).
The FTCA also includes limitations periods for filing a claim and for filing a
lawsuit in federal court. An FTCA claim is time-barred unless a claimant presents
the claim in writing to the appropriate Federal agency within two years after the
claim accrues. See 28 U.S.C. § 2401(b). Any lawsuit in federal court asserting an
FTCA claim must be commenced within six months of either the final agency
denial of the claim or the expiration of six months after the presentation of the
claim, whichever comes first. Failure to timely and completely exhaust
administrative remedies prior to filing a complaint operates as a jurisdictional bar
to proceeding in federal court. See McNeil v. United States, 508 U.S. 106, 111-13
(1993) (“FTCA bars claimants from bringing suit in federal court until they have
exhausted their administrative remedies”); Johnson v. The Smithsonian
Institution, 189 F.3d 180, 189 (2d Cir. 1999) (a district court lacks subject matter
jurisdiction over a plaintiff’s FTCA claim, unless the plaintiff complies with
requirement set forth in 28 U.S.C. § 2401(b) that the claim be submitted in writing

to appropriate Federal agency within two years after accrual of claim) (citations
omitted). The plaintiff bears the burden of pleading and proving compliance with
section 2401(b). See id.
The plaintiff concedes that she did not exhaust any administrative
remedies prior to filing her complaint. Because the plaintiff has not exhausted
her administrative remedies prior to filing this lawsuit, the court has no subject
matter jurisdiction over any FTCA claim that might be asserted by the plaintiff.
See Adeleke v. United States, 355 F.3d 144, 153 (2d Cir. 2004) (failure to exhaust
administrative remedies is a jurisdictional bar to FTCA claims).
ORDERS
In accordance with the foregoing analysis, the court enters the following
orders:
(1)

The Bivens claims against defendant United States Bureau of

Prisons are DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1) and (2). The court
does not construe the complaint as having been filed pursuant to the FTCA
because the plaintiff concedes that she did not exhaust administrative remedies
prior to filing the complaint. If the plaintiff seeks to assert a claim under the
FTCA against the Bureau of Prisons, she may exhaust her remedies pursuant to
28 U.S.C. § 2401(b) and then file a new complaint against the United States.1

1

As indicated above, an FTCA claim must be filed with the relevant
Federal agency within two years of the date on which the claim accrued or it will
be barred from review. See 28 U.S.C. § 2401(b). Here, the plaintiff stated that she
slipped and fell due to the negligence of the Bureau of Prisons on or about March
23, 2011.

Thus, the dismissal of this action is without prejudice to the plaintiff’s filing a new
action under the FTCA after she has exhausted her administrative remedies.
(2) If the plaintiff chooses to appeal this decision, she may not do so in
forma pauperis, because such an appeal would not be taken in good faith. See 28
U.S.C. § 1915(a)(3). The Clerk is directed to enter judgment for the defendants
and close this case.
SO ORDERED at Hartford, Connecticut this 27th day of August, 2012.

___________________________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE