Turkmen et al v. Ashcroft et al

Filing 848

ORDER ADOPTING #834 REPORT AND RECOMMENDATIONS AND GRANTING #808 Defendants' Motion to Dismiss --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, the parties' objections to the Report and Recommendations ("R & R") issued on August 13, 2018 by the Hon. Steven M. Gold, then U.S. Magistrate Judge of this Court (ret.), are overruled and the R & R is adopted in its entirety. Accordingly, Defendants' motion to dismiss this action is granted and this action is dismissed. The Clerk of the Court is directed to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 9/9/2021. (Irizarry, Dora)

Case 1:02-cv-02307-DLI-RML Document 848 Filed 09/09/21 Page 1 of 13 PageID #: 10083

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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IBRAHIM TURKMEN, AKHIL SACHDEVA,
:
AHMER IQBAL ABBASI, ANSER MEHMOOD, :
BENAMAR BENATTA, AHMED KHALIFA,
:
SAEED HAMMOUDA, and PURNA RAJ
:
BAJRACHARYA on behalf of themselves and
:
all others similarly situated,
:
:
Plaintiffs,
:
:
-against:
:
JOHN ASHCROFT, ROBERT MUELLER,
:
JAMES W. ZIGLAR, DENNIS HASTY,
:
MICHAEL ZENK, JAMES SHERMAN,
:
SALVATORE LOPRESTI, and JOSEPH CUCITI, :
:
Defendants.
:
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MEMORANDUM AND ORDER
ADOPTING REPORT AND
RECOMMENDATIONS
02-cv-02307 (DLI) (SMG)

DORA L. IRIZARRY, United States District Judge:
This case arises out of alleged abuse suffered by Plaintiffs Ahmer Abbasi, Anser
Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, and Purna Bajracharya
(collectively, “Plaintiffs”) as detainees at the Metropolitan Detention Center (“MDC”) in
Brooklyn, New York following the September 11, 2011 terrorist attacks.1 The Fourth Amended
Complaint (“FAC”) asserts claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971) against Defendants Dennis Hasty (“Hasty”), Salvatore LoPresti (“LoPresti”), and
Joseph Cuciti (“Cuciti”) (collectively, “Defendants”). See, FAC, Dkt. Entry No. 726. In light of
the Supreme Court’s decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), which dismissed all of

This Memorandum and Order’s caption mirrors that of Plaintiffs’ Fourth Amended Complaint. However, only
Ahmer Abbasi, Anser Mehmood, Benamar Benatta, Ahmed Khalifa, Saeed Hammouda, and Purna Bajracharya have
claims pending. See, Letter from Rachel Meeropol dated February 20, 2018, Dkt. Entry No. 820, at 1. Plaintiffs assert
their sole remaining cause of action only against Defendants Dennis Hasty, Salvatore LoPresti, and Joseph Cuciti.
See, Consent Judgment dated February 27, 2018, Dkt. Entry No. 825 (dismissing the claims against John Ashcroft,
Robert Mueller, James Ziglar, James Sherman, and Michael Zenk).
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Plaintiffs’ claims except for the Bivens claim against Hasty, Hasty moved to dismiss the remaining
claim against him. See, Fully Briefed Hasty Mot. to Dismiss (“Mot. to Dismiss”), Dkt. Entry No.
808. Hasty’s motion also is applicable to Plaintiffs’ Bivens claim against LoPresti and Cuciti as
the viability of the claim depends on the outcome of the motion. See, Pls.’ Mem. of Law in Supp.
of Bivens Liability, Dkt. Entry No. 808-7, at 9; See also, LoPresti’s Mem. in Supp. of Hasty’s Mot.
to Dismiss (“LoPresti Mem.”), Dkt. Entry No. 818. This Court referred the motion to the
Honorable Steven M. Gold, then U.S. Magistrate Judge of this Court (ret.), for a Report and
Recommendations (“R&R”).2 See, Electronic Referral Order dated January 22, 2018.
On August 13, 2018, the magistrate judge issued the R&R, recommending that this Court
grant the motion and dismiss this action in its entirety. See, R&R, Dkt. Entry No. 834. Plaintiffs
and Defendants timely objected to the R&R. See, Pls.’ Obj. to the R&R (“Pls. Obj.”), Dkt. Entry
No. 838; Hasty’s Obj. to the R&R (“Hasty Obj.”), Dkt. Entry No. 839; LoPresti’s and Cuciti’s
Obj. to the R&R (“LoPresti and Cuciti Obj.”), Dkt. Entry No. 840. Plaintiffs and Defendants
responded to each other’s objections.3 See, Pls.’ Resp. to Hasty’s Limited Obj. to the R&R (“Pls.
Resp.”), Dkt. Entry No. 842; Hasty’s Resp. to Pls.’ Obj. to the R&R (“Hasty Resp.”), Dkt. Entry
No. 843; LoPresti’s and Cuciti’s Resp. to Pls.’ Obj. to the R&R (“LoPresti and Cuciti Resp.”),
Dkt. Entry No. 844. Additionally, the parties discussed alleged misrepresentations that Hasty
made in his response to Plaintiffs’ objection to the R&R and a Third Circuit case from 2019 that
Plaintiffs provided as supplemental authority. See, Dkt. Entry Nos. 845-47. For the reasons set
forth below, the R&R is adopted in its entirety and the motion to dismiss is granted.

2

As of January 7, 2021, upon his retirement, Judge Gold no longer is assigned to this case. The case has been
reassigned to the Honorable Robert M. Levy, U.S. Magistrate Judge.
For both the objection to the R&R and response to Plaintiffs’ objection to the R&R, LoPresti and Cuciti joined in
the memoranda submitted by Hasty and did not file any substantive memoranda of their own. See, LoPresti and Cuciti
Obj.; LoPresti and Cuciti Resp.
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BACKGROUND
The Court presumes the parties’ familiarity with the R&R and Ziglar, which thoroughly
described the facts and the extensive procedural history of this case. Thus, only the facts relevant
to the issues before the Court are set forth herein. In the aftermath of September 11, 2001,
hundreds of people unlawfully present in the United States were arrested and remained in custody
pending determination of their connection to the terrorist acts. See, R&R at 2. Plaintiffs, men of
Arab, South Asian, or Muslim descent, were detained in Brooklyn, New York federal Metropolitan
Detention Center’s (“MDC”) most restrictive unit, the Administrative Maximum Special Housing
Unit (“ADMAX SHU”). Id. At the MDC, guards allegedly abused Plaintiffs physically and
verbally. Id. In the FAC, Plaintiffs assert, inter alia, that Hasty, LoPresti, and Cuciti, as the
warden, captain, and lieutenant at the MDC, respectively, knowingly allowed the guards to abuse
Defendants in violation of the Fifth Amendment (the “prisoner abuse claim”). Id. at 3; See also,
Ziglar, 137 S.Ct. at 1854.
In Ziglar, the Supreme Court dismissed all of Plaintiffs’ claims except for the prisoner
abuse claim. See, Ziglar, 137 S. Ct. at 1863-65, 1869. The Supreme Court remanded the prisoner
abuse claim to the Second Circuit to determine the propriety of extending a Bivens remedy. Id. at
1869. In turn, the Second Circuit mandated this Court to address the matter. See, Second Circuit
Mandate dated December 1, 2017, Dkt. Entry No. 799 (“emphasiz[ing] in particular that the
Supreme Court left open the question as to whether a Bivens claim may be brought under the Fifth
Amendment against the warden of the Metropolitan Detention Center”).
Upon this Court’s referral of the motion to dismiss, the magistrate judge considered the
mandated issue and concluded that a Bivens remedy cannot extend to Plaintiffs’ prisoner abuse
claim. See, R&R at 11. The magistrate judge determined that the potential impact on the Bureau

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of Prisons’ (“BOP”) investigatory procedures is a special factor counseling hesitation to extending
Bivens remedy. Id. at 11-18. The magistrate judge also determined that Plaintiffs are precluded
from pursuing a Bivens claim because Plaintiffs have an alternative remedy under the Federal Torts
Claims Act (“FTCA”). Id. at 19-22. Accordingly, the magistrate judge recommended that this
Court grant the motion to dismiss. Id. at 28.
Plaintiffs object to the R&R contending that: (1) the magistrate judge’s special factors
analysis was “logically and doctrinally incoherent” because he erroneously “speculated” that a
warden facing damages under a Bivens action would violate BOP policy; and (2) the magistrate
judge erred by concluding that the FTCA is an alternative remedy. See, Pls. Obj. at 2-3.
Defendants also object to the R&R arguing that: (1) the magistrate judge erred by declining to
infer congressional intent with respect to extending Bivens based on Congress’ silence and inaction
on the matter; and (2) the magistrate judge erred by finding that injunctive, habeas, or
administrative relief is not an alternative remedy. See, Hasty Obj. at 3.
LEGAL STANDARD
When a party objects to an R&R, a district judge must make a de novo determination as to
those portions of the R&R to which a party objects. See, Fed. R. Civ. P. 72(b)(3); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the
district courts of this Circuit, “[i]f a party . . . simply relitigates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” Antrobus v. N.Y. City Dep’t of
Sanitation, 2016 WL 5390120, at *1 (E.D.N.Y. Sept. 26, 2016) (internal citations and quotation
marks omitted); See also, Rolle v. Educ. Bus Transp., Inc., 2014 WL 4662267, at *1 (E.D.N.Y.
Sept. 17, 2014) (“[A] rehashing of the same arguments set forth in the original papers . . . would
reduce the magistrate’s work to something akin to a meaningless dress rehearsal.”) (internal

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citations and quotation marks omitted).
On the other hand, the Court of Appeals for the Second Circuit has suggested that a clear
error review may not be appropriate “where arguably ‘the only way for [a party] to raise . . .
arguments [is] to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 519 n.2 (2d Cir. 2017) (quoting
Watson v. Geithner, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)). Nonetheless, a court
will not “ordinarily . . . consider arguments, case law and/or evidentiary material which could have
been, but [were] not, presented to the magistrate judge in the first instance.” Santiago v. City of
N.Y., 2016 WL 5395837, at *1 (E.D.N.Y. Sept. 27, 2016) (internal citation and quotation marks
omitted).
After its review, the district court may then “accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3); See also, 28 U.S.C. § 636(b)(1).
DISCUSSION
In Bivens, the Supreme Court recognized “an implied private action for damages against
federal officers alleged to have violated a citizen’s constitutional rights.” McGowan v. United
States, 825 F.3d 118, 123 (2d Cir. 2016) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66
(2001)). The Bivens Court implied a private right of action under the Fourth Amendment for an
unreasonable search and seizure claim against Federal Bureau of Investigation agents for
handcuffing a man in his own home without a warrant. Bivens, 403 U.S. at 389, 397. Since then,
the Supreme Court has recognized Bivens claims in only two other circumstances: (1) under the
Fifth Amendment’s Due Process Clause for gender discrimination against a congressman for firing
his female secretary, Davis v. Passman, 442 U.S. 228 (1979); and (2) under the Eighth

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Amendment’s prohibition on cruel and unusual punishment against prison officials for failure to
treat an inmate’s asthma which led to his death, Carlson v. Green, 446 U.S. 14 (1980).
In Ziglar, the Supreme Court made it clear that the only recognized implied rights of action
are the narrow situations presented in Bivens, Davis, and Carlson. See, Ziglar, 137 S.Ct. at 185557. The Supreme Court emphasized that, “[g]iven the notable change in the [Supreme] Court’s
approach to recognizing implied causes of action, . . . the Court has made clear that expanding the
Bivens remedy is now a ‘disfavored’ judicial activity.” Id. at 1857 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 675 (2009)).
The Supreme Court has set out a rigorous two-step inquiry in order for courts to determine
whether a Bivens cause of action applies in a new context or against a new category of defendants.
First, the court must determine whether a plaintiff’s claims arise in a new Bivens context. “If the
case is different in a meaningful way from previous Bivens cases decided by [the Supreme Court],
then the context is new.” Id. at 1859. If the case presents a new factual context for a Bivens claim,
then the court proceeds to the second step and asks, “whether any alternative, existing process for
protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550
(2007).
Irrespective of whether an alternative remedy exists, a federal court also must conduct a
specific analysis, “paying particular heed . . . to any special factors counselling hesitation before
authorizing a new kind of federal litigation.” Id. (internal quotation marks omitted). This second
step often is referred to as the special factors analysis. “The Court’s precedents now make clear
that a Bivens remedy will not be available if there are special factors counselling hesitation in the
absence of affirmative action by Congress.” Ziglar, 137 S.Ct. at 1857 (internal quotation marks

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omitted). Although the Supreme Court “has not defined the phrase ‘special factors counselling
hesitation,’” the Court has observed that “[t]he necessary inference, though, is that the inquiry
must concentrate on whether the Judiciary is well suited, absent congressional action or instruction,
to consider and weigh the costs and benefits of allowing a damages action to proceed.” Id. at
1857-58. Put more simply, “to be a ‘special factor counselling hesitation,’ a factor must cause a
court to hesitate before answering that question in the affirmative.” Id. at 1858.
As the magistrate judge properly noted, the Supreme Court already has analyzed the first
step and held that “this case does seek to extend Carlson to a new context” as this case implicates
a different constitutional right than that in Carlson. Id. at 1864; See also, R&R at 8. Accordingly,
as the Supreme Court has directed, and the magistrate judge correctly has stated, “the only
remaining issue is whether there are ‘special factors counseling hesitation’ or alternative remedies
that would preclude the extension of Bivens required for [P]laintiffs’ claims to proceed.” R&R at
10; See also, Ziglar, 137 S.Ct. at 1865.
I.

Special Factors Analysis
A.

Defendants’ Objection

The magistrate judge determined that Congress’ silence and inaction in enacting a Bivens
type remedy is a not a special factor because “congressional intent here is too ambiguous.” Id. at
16. Defendants object to the magistrate judge’s determination on three grounds: (1) rather than
enacting a damages remedy statute, Congress sought to address complaints of detainee abuse with
an investigation by the Office of Inspector General (“OIG”) of the U.S. Department of Justice as
part of the USA PATRIOT Act; (2) Congress chose not to enact a damages remedy even though
it was aware of the detainee abuse allegations specifically at the MDC through a supplemental
OIG report and hearings; and (3) by passing the Prison Litigation Reform Act of 1995 (“PLRA”)

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without enacting a corresponding Bivens type remedy, Congress indicated its reluctance to create
a damages remedy. See, Hasty Obj. at 5-9. Defendants contend that Congress’ inaction despite
its “active interest in this field” demonstrates that “this is properly an area of congressional interest
and inquiry” and “not one into which the Judiciary ought lightly intrude.” Id. at 9. The objected
portion of the R&R is reviewed for clear error because the magistrate judge addressed these same
arguments in the R&R. See, R&R at 11-16.
In reaching his conclusion, the magistrate judge not only considered Defendants’
arguments but also Plaintiffs’ counterarguments. Plaintiffs argued that Congress’ silence “in the
face of [the OIG] reports in fact suggests its tacit approval of extending Bivens and allowing
[P]laintiffs to proceed with their claims,” especially given that the reports specifically referred to
the present litigation. Id. at 12. Moreover, with respect to the PLRA, Plaintiffs contended that the
PLRA does not apply to undocumented alien detainees like Plaintiffs and, thus, has no bearing on
whether a Bivens remedy should extend to Plaintiffs’ prisoner abuse claim. Id. at 13. Plaintiffs
further contended that, when Congress passed the PLRA, it presumed the existence of a Bivens
cause of action for prisoner abuse. Id. at 14.
The Court finds that the magistrate judge did not commit any clear error in considering the
parties’ arguments and finding that the congressional intent here is “too ambiguous to provide
meaningful support for either side’s position.” Id. at 16 (citing Wilkie, 551 U.S. at 554). As the
magistrate judge properly found, inferring congressional intent in this context requires a level of
speculation and such speculation is difficult and inconclusive when it involves deciphering “the
inaction of a legislative body with hundreds of members, each of whom may have his or her own
reasons for not acting.” Id. Therefore, Defendants’ objection is overruled.

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B.

Plaintiffs’ Objection

The magistrate judge concluded that the potential impact on the BOP’s investigatory
procedures and policies is a special factor counseling hesitation against extending a Bivens remedy
to Plaintiffs’ prisoner abuse claim. Id. at 16. In reaching this conclusion, the magistrate judge
considered procedures promulgated by the Office of Internal Affairs (“OIA”) and BOP for
investigating and handling allegations of abuse by correctional officers. Id. at 16-18. The
magistrate judge found that imposing personal liability on a warden who is indifferent to abuse by
correctional officers under his or her supervision “might impede, or at least affect, the efficacy of
these practices and procedures” in order to avoid liability under a Bivens type remedy. Id. at 18.
Plaintiffs argue that the magistrate judge erroneously “assumes that federal employees will
violate their own regulations to escape potential liability.” Pls. Obj. at 14. Plaintiffs contend that
the magistrate judge’s “distrust of federal officials is wholly unsupported” as Hasty did not make
such an argument. Id. at 15. Plaintiffs also contend that the magistrate judge’s finding is “flawed
as a matter of logic and precedent” because a warden seeking to avoid liability is more likely to
follow the relevant investigatory procedures rather than violating them. Id. at 15-16. Relying on
the Supreme Court’s remark in Ziglar that Plaintiffs’ allegations here are “just as compelling as
those at issue in Carlson[,]” Plaintiffs assert that the magistrate judge “transforms what made
Plaintiffs’ claim compelling to the Supreme Court into an argument against a Bivens remedy.” Id.
at 16 (citing Ziglar, 137 S.Ct. at 1864). Lastly, Plaintiffs assert that a different special factors
analysis must be applied in this case because Plaintiffs seek only “a modest extension” of a Bivens
remedy. Id. at 17-18.
Reviewing the magistrate judge’s findings and recommendations on this issue de novo, the
Court finds no merit to Plaintiffs’ arguments. As an initial matter, contrary to Plaintiff’s assertion,

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the magistrate judge was not limited to the parties’ arguments in conducting his analysis. Indeed,
the magistrate judge properly analyzed the very factors that the Supreme Court set forth in Ziglar.
In Ziglar, the Supreme Court stated that:
[T]he decision to recognize a damages remedy requires an assessment of its impact
on governmental operations systemwide. Those matters include the burdens on
Government employees who are sued personally, as well as the projected costs and
consequences to the Government itself when the tort and monetary liability
mechanisms of the legal system are used to bring about the proper formulation and
implementation of public policies. These and other considerations may make it less
probable that Congress would want the Judiciary to entertain a damages suit in a
given case.
Ziglar, 137 S.Ct. at 1858.
Accordingly, the magistrate judge considered the following potential impacts: a warden
choosing not to report abusive acts by correctional officers to OIA; a warden deciding to report
abusive acts only after conducting his or her own preliminary inquiry; and a warden not enforcing
BOP requirements of recording detainee movements or abuse in order to avoid liability. See, R&R
at 17-18. The magistrate judge further considered the costs to the government in the form of
defense and indemnification, resources and time required for litigations, the disruptive impact
litigations will have on wardens and supervisory officials from performing their duties, and the
possibility of wardens adopting supervisory practices they otherwise might not because they may
be accountable for failing to monitor and control the actions of officers under their command. Id.
at 18.
In addition, Plaintiffs’ reliance on the Supreme Court’s comparison of their claims to the
claims in Carlson is misplaced. In Ziglar, while recognizing that this case “has significant
parallels” to Carlson, the Supreme Court nonetheless emphasized the necessity for a special factors
analysis because this case “seeks to extend Carlson to a new context.” Ziglar, 137 S.Ct. at 1864.
Moreover, without citing to support, Plaintiffs baldly assert that the special factors analysis must

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differ in this case. As the magistrate judge properly and thoroughly explained, whether a case
seeks “a modest extension” of a Bivens remedy is immaterial to applying the special factors
analysis and standard. See, R&R at 10-11. The Supreme Court emphasized that “even a modest
extension is still an extension” and directed the lower courts to conduct a special factors analysis
without distinguishing between an extension and a modest extension. See, Ziglar, 137 S.Ct. at
1864-65.
Furthermore, as the magistrate judge correctly stated, the threshold for finding a special
factor that counsels hesitation “is remarkably low. . . . Hesitation is a pause, not a full stop, or an
abstention; and to counsel is not to require. ‘Hesitation’ is ‘counseled’ whenever thoughtful
discretion would pause even to consider.” R&R at 18 (quoting Arar v. Ashcroft, 585 F.3d 559,
574 (2d Cir. 2009) (internal quotation marks omitted)). The magistrate judge appropriately applied
this standard to conclude that a special factor exists in this case that counsels hesitation against
extending a Bivens remedy. Id. at 18-19. Accordingly, Plaintiffs’ objection here is overruled.
II.

Alternative Remedies
A.

Plaintiffs’ Objection

Plaintiffs object to the magistrate judge’s finding that the FTCA provides a sufficient
alternative remedy that precludes authorizing a Bivens action. See, Pls. Obj. 19-22. Plaintiffs’
entire objection relies on the Carlson holding that the FTCA is “not a relevant remedial scheme
bearing on Bivens availability.” Id. at 21. Plaintiffs contend that the magistrate judge erred by
ignoring this precedent set in Carlson. Id. at 19. Since the magistrate judge already has addressed
this contention in the R&R, the Court reviews this portion of the R&R for clear error. See, R&R
at 20.

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As the magistrate judge correctly pointed out, the FTCA analysis in Carlson “cannot
survive Ziglar.” Id. In Ziglar, the Supreme Court made it clear that the legal landscape has
changed since Carlson. As the Supreme Court noted, “expanding the Bivens remedy is now
considered a ‘disfavored’ judicial activity.” Ziglar, 137 S.Ct. at 1857 (quoting Iqbal, 556 U.S. at
675). Accordingly, the Supreme Court has urged “caution” before “extending Bivens remedies
into any new context. . . . The Court's precedents now make clear that a Bivens remedy will not
be available if there are special factors counselling hesitation in the absence of affirmative action
by Congress.” Id. at 1857 (internal quotation marks and citations omitted). Indeed, the Supreme
Court stated that Bivens, Carlson and Davis are a relic of an “ancien regime” and “might have
been different if they were decided today.” Id. at 1855-66 (citing Alexander v. Sandoval, 532 U.S.
275, 287 (2001)). As such, Plaintiffs’ reliance on Carlson or any other pre-Ziglar case to object
to the R&R is misplaced. See, Pls. Obj. at 19-24.
“[W]hen alternative methods of relief are available, a Bivens remedy usually is not.”
Ziglar, 137 S.Ct. at 1863 (citing cases). In determining that the FTCA is an available alternative
remedy to preclude a Bivens remedy, the magistrate judge properly compared Carlson and Ziglar
and found that “Ziglar takes a far broader view of” alternative remedies that preclude a Bivens
remedy. R&R at 20. The magistrate judge accurately relied on the Supreme Court’s finding that,
“if Congress has created any alternative, existing process for protecting the [injured party’s]
interest that itself may amount to a convincing reason for the Judicial Branch to refrain from
providing a remedy.” Ziglar, 137 S.Ct. at 1858 (internal quotation marks and citations omitted).
The magistrate judge further considered relevant district court cases, as well as a Ninth Circuit
case offered by Plaintiffs, to conclude that the Carlson holding concerning FTCA no longer has
“vitality” in light of Ziglar. Id. at 21-22. Thus, Plaintiffs’ objection here is overruled.

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B.

Defendants’ Objection

Defendants object to the magistrate judge’s finding that “neither injunctive nor habeas
relief, nor administrative remedies constituted alternative remedies.” Hasty Obj. at 10. However,
this contention is moot in light of the Court’s adoption of the magistrate judge’s conclusion that
the FTCA is an available alternative remedy. See, discussion supra Section II.A. As the magistrate
judge found, since the FTCA provides Plaintiffs with an alternative remedy precluding their Bivens
claim, this Court “need not decide whether injunctive or habeas relief, or an administrative
grievance, did as well.” R&R at 24. Accordingly, Defendants’ objection here is overruled.
It is clear from a review of the magistrate judge’s exceptionally detailed, thorough, and
well reasoned R&R that the magistrate judge disposed of Plaintiffs’ prisoner abuse claim
appropriately, abundantly supporting his findings with facts from the record and legal precedent.
As set forth above, the parties’ objections are overruled, and the R&R is adopted in its entirety.
Thus, the motion to dismiss is granted and Plaintiffs’ claim against Defendants is dismissed.
CONCLUSION
The parties’ objections are overruled, and the R&R is adopted in its entirety. Accordingly,
the motion to dismiss this action is granted.
SO ORDERED.
Dated: Brooklyn, New York
September 9, 2021
/s/
DORA L. IRIZARRY
United States District Judge

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