Robinson v. Lindsay

Filing 42

MEMORANDUM & ORDER: The Court dismisses plaintiff's amended complaint without prejudice. The Clerk of Court is directed to close the case. C/M. Forwarded for judgment. Ordered by Senior Judge Raymond J. Dearie on 9/1/2011. (Chee, Alvin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BRIAN K. ROBINSON,
Plaintiff,
MEMORANDUM & ORDER
- against09 CV 2852 (RJD) (SMG)
WARDEN CAMERON LINDSAY,
CORRECTION OFFICER, MEDICAL
TECHNICIAN and ATTENDING PHYSICIAN
ON DUTY,
Defendants.

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DEARIE, District Judge.

Plaintiff Brian Robinson, proceeding pro se and in forma pauperis, seeks $10 million on
account of his allegedly falling from a si]{-foot-high bunk in his cell at the Metropolitan
Detention Center ("MDC") in Brooklyn, New York, where he was housed briefly during a
transfer between facilities. Plaintiff alleges a pair of missteps by MDC employees: the failure to
provide him with necessary medication, which allegedly made him fatigued; and the prior failure
to grant his request for a bottom bunk, which, when combined with his dizziness from the lack of
medication, set the table for his alleged tumble. In a previous Memorandum and Order, the
Court directed plaintiff to substantiate his allegations. Because he has not, his amended
complaint is dismissed without prejudice pursuant to Federal Rules of Civil Procedure 12(b)(l)
and 12(b)(6).
Background

The relevant allegations are summarized in this Court's Memorandum and Order, dated
September 2,2009, analyzing plaintiffs initial complaint sua sponte.' (Dkt. #20, at 1-2.) In that

, The original complaint named only the MDC and its then-warden, Cameron Lindsay, as
defendants.

decision, the Court dismissed plaintiff s claims for money damages under the Americans with
Disabilities Act ("ADA") and the Rehabilitation Act and ordered plaintiff to amend his
complaint within thirty days to include allegations required for the Court to evaluate his claims
under other theories.
Specifically, the Court noted that "[p]laintiffs claim of deliberate indifference to his
medical needs may suggest a possible violation of his constitutional rights under the Eighth
Amendment," redressable in an action brought pursuant to Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Accordingly, the Court instructed plaintiff to name as defendants
only those MDC staff members who were involved in the events in question and to "specify the
dates and any facts supporting his claims, including the personal involvement of each named
defendant." (Dkt. #20, at 7.) Furthermore, construing the complaint as potentially stating a
claim under the Federal Tort Claims Act ("FTCA"), and observing (from the complaint's
attachments) that plaintiff appears to have completed the required notice of claim, the Court
directed: 'To the extent that plaintiff seeks to pursue a remedy pursuant to the FTCA, he must
name the United States as a defendant and provide information about the resolution of his
February 22, 2008 administrative tort claim or any other efforts to exhaust his administrative
remedies." (Dkt. #20, at 7.)
On April 20, 20 10, plaintiff submitted an amended complaint. (Dkt. #31.) The amended
complaint's allegations are substantively identical to those appearing in the initial complaint?
The only differences between the two are that the amended complaint (a) is typewritten and
(b) includes a cover page describing plaintiffs desire to add the following people as defendants:
"Correction Officer"; "Medical Technician"; and "Attending Physician on Duty." (Id. at I.)

The amended complaint contains ADA and Rehabilitation Act claims. Those claims, however,
were dismissed as a matter oflaw with respect to all potential defendants. (See dkt. #20, at 3-4.)

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Defendants move to dismiss plaintiffs Bivens claim and request that the Court substitute
the United States as the sole defendant for any FTCA claim. Plaintiff did not file opposition
papers. Instead, he asks the Court to stay the proceedings and to appoint counsel to assist him in
prosecuting his "strong case" against defendants. (Dkt. #41, at 3.) The Court declines both
requests and dismisses the complaint.
Discussion
Plaintiff's potential Eighth Amendment claim

In his amended complaint, plaintifflists as defendants the Correction Officer, Medical
Technician and Attending Physician on Duty who allegedly interacted with plaintiff during his
brief stay at the MDC. Simply placing these employees in the caption of the case does not
support the inference that anyone of them, let alone all of them, disregarded plaintiff s serious
medical needs "while actually aware of a substantial risk that serious inmate harm w[ ould]
result." Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). That plaintifffaiis to identify
the individual defendants by name at this stage is unimportant. "[Clourts have rejected the
dismissal of suits against unnamed defendants described by roles ... until the plaintiff has had
some opportunity for discovery to learn the identities of responsible officials." Davis v. Kelly.
160 F.3d 917, 921 (2d Cir. 1998); see also Arar v. Ashcroft, 585 F.3d 559, 591 (2d Cir. 2009)
("It should not be forgotten that the full name of the Bivens case itself is Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics." (Sack, J., dissenting in part».
Absent specific allegations regarding what actions each of these MDC employees took
(or failed to take) regarding the administration of his medication or treatment of his alleged
injuries, however, plaintiff fails to state a Bivens c1aim.3 Despite the Court's prior instruction,
3 This being the case, the Court will not address whether the MDC's administrative remedies
were "available" to plaintiff - whose alleged injuries occurred seven days before he was
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plaintiff does not "specify the dates and any facts supporting his claims, including the personal
involvement of each named defendant." (Okt. #20, at 7.) Plaintiff does not explain, for example,
how the defendant MOC "officials were on notice of [plaintiff]'s medical needs [or] aware of the
improper administration of his medications, yet failed to address the situation." Thomas v.
Ashcroft, 470 F.3d 491, 497 (2d Cir. 2006). Nor does plaintiff suggest how Warden Lindsaywhom plaintiff again names as a defendant - might be liable for any violation, apart from the
Warden's being "responsible for ensuring that his subordinates adhere to state [and] Federal
Law." (Compl. at 3.) This conclusion does not allege the Warden's personal involvement to the
required extent. See Wright v. Smith, 21 F.3d 496,501 (2d Cir.1994) (listing ways in which a
plaintiff might allege the personal involvement of a supervisory defendant in a Bivens action).
The facts gleaned from the existing complaint and attachments, taken together, do not
permit a finding of deliberate indifference relating to the deprivation of plaintiff sHIV
medication. See Chance v. Armstrong. 143 F.3d 698, 700 n.1 (2d Cir. 1998) ("On a motion to
dismiss, the court may consider facts set forth in exhibits attached as part of the complaint as
well as those in the formal complaint itself."). In this regard, the proper focus is on the period of
"missed HIV medication, rather than on [plaintiff]'s HIV -positive status alone." Smith v.
Carpenter, 316 F.3d 178, 187 (2d Cir. 2003). In his Notice of Claim, dated February 22, 2008,
plaintiff asserts that "the medication I was taking ran out" and "medical was not, for whatever
reasons, able to re-supply me with my medications." (Okt. #17-5, at 17.) He likewise states that
the MOC "was very slow in refilling my medication" and that "I fell because I became dizzy and

transferred to another facility - within the meaning of the statute requiring that an inmate exhaust
all available remedies before filing a federal constitutional claim against prison employees. See
42 U.S.C. § 1997e(a); cf. Berry v. Kerik, 366 F.3d 85, 88 n.3 (2d Cir. 2004) ("We have no
occasion to consider the exhaustion requirement in situations where only a brief interval elapses
between the episode giving rise to the prisoner's complaint and the prisoner's transfer to the
custody of another jurisdiction. ").

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disoriented." (Id.) A February 27, 2008, Request for Administrative Remedy addressed to
officials at plaintiffs transferee facility in Butner, North Carolina, somewhat contradicts the
account in the Notice of Claim. In the Administrative Remedy form, plaintiff requests a bottom
bunk because his HIV "medication makes me dizzie, nause[ ous], and disoriented," causing a
"Iagitiment [sic] fear I may pass out and fall down the stairs." (Dkt. #17-5, at 23 (emphasis
supplied).) In light of these prior contentions made to units of the executive branch, plaintiffs
claim of deliberate indifference falls short.
Plaintiffs supposition that his "severe injury was [listed] as a superficial wound" on an
MDC injury assessment form to cover up the extent of harm, (Compl. at 3), likewise will not
support a Bivens claim. Although it is conceivable that prison employees would elect to
downplay the extent of an inmate's injuries caused by the actions or omissions of other prison
staff, the existing submissions do not '''nudge [plaintiffs' claim] across the line from conceivable
to plausible.'" Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d 703,710 (2d CiT. 2010) (quoting
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009)) (alteration in original). The diagnosis contained
in the assessment form, a copy of which accompanies the initial complaint, notes that plaintiff
suffered a "superficial injury" requiring "Minor First Aid" after he "scraped [his left] leg against
the other bed." (Dkt. #17-5, at 8.) The remaining exhibits submitted by plaintiff concern his
subjective reports of discomfort and consequent medical testing during his incarceration in North
Carolina. None suggests that plaintiff lodged similar complaints with staff at MDC, or otherwise
evinces a serious, ongoing, objectively verifiable medical need of which MDC officials must
have been aware but deliberately ignored. And plaintiff submits no express allegation to this
effect.

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In short, although the Court previously allowed plaintiff the opportunity to advance a
non-pleaded Bivens claim, "no non-conclusory allegations suggest that [defendants] acted with a
sufficiently culpable state of mind," Whitfield v. O'Connell, 402 F. App'x 563, 566 (2d Cir.
2010) (citing Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005». At best, the skeletal
narrative created by plaintiffs submissions "tends to show that Defendants may have been
negligent. But negligence is insufficient to support an Eighth Amendment claim" against
individual prison officials. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010).

Plaintiff's potential FTCA claim
Negligence will, however, support an FTCA claim against the federal government as a
whole. 4 Defendants concede as much and request that the United States be substituted as a
defendant to the action. See 28 U.S.C. §§ 1346(b), 2679(d). The Court would grant this request
ifit were persuaded that it had jurisdiction to hear the dispute. See Makarova v. United States,
201 F.3d 110, 113 (2000) (affirming dismissal of the plaintiffs FTCA claim under Rule 12(b)(I)
because "the district court lack[ ed] the statutory or constitutional power to adjudicate it").
"When an action is brought against the United States government, compliance with the
conditions under which the government has agreed to waive sovereign immunity is necessary for
subject matter jurisdiction to exist." Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991).
Accordingly, "[t]he FTCA bars claimants from bringing suit in federal court until they have
exhausted their administrative remedies." McNeil v. United States, 508 U.S. 106, 113 (I993);
see 28 U.S.c. § 2675(a) (requiring that a plaintiff, before commencing a tort suit against the

Plaintiff may not bring an Eighth Amendment claim against the government because "Congress
has not waived the government's sovereign immunity ... from lawsuits based on constitutional
claims." King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999).
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government, file a notice of claim with the appropriate federal agency); id. § 2401(b) (requiring
that the notice be filed "within two years after [the] claim accrues" and that any lawsuit be
commenced "within six months after ... notice of final denial of the claim"). The FTCA's
"requirement that a notice of claim be filed is jurisdictional and cannot be waived." Keene Corp.
v. United States, 700 F.2d 836,841 (2d Cir. 1983).
This Court previously directed plaintiff to "name the United States as a defendant and
provide information about the resolution of his February 22, 2008 administrative tort claim or
any other efforts to exhaust his administrative remedies." (Dkt. #20, at 7.) Plaintiff does
neither. The Court thus cannot tell whether plaintiff in fact submitted his notice of claim to the
appropriate federal agency, whether that agency denied his claim and whether this lawsuit was
commenced within six months of the denial, if any. But '''jurisdiction must be shown
affirmatively, and that showing is not made by drawing from the pleadings inferences favorable
to the party asserting it.'" APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (quoting Shipping
Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998». Hence, the Court may not fill
these gaps in plaintiff's favor.
Moreover, a '''party's pro se status does not exempt [that] party from compliance with
relevant rules of procedural and substantive law.'" Evans v. Nassau County, 184 F. Supp. 2d
238,242 (E.D.N.Y. 2002) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983». In general,
courts apply a "more flexible standard to evaluate" pro se pleadings because "most pro se
plaintiffs lack familiarity with the formalities of pleading requirements." Taylor v. Vt. Dep't of
Educ., 313 F.3d 768, 776 (2d Cir. 2002) (internal quotation marks omitted). In this case,
however, such a concern is mooted by this Court's prior Memorandum and Order. Faced with
his initial pleading, the Court recharacterized plaintiff's claims on his behalf and then spelled out

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precisely what he needed to do to advance those claims. In response to these directions, plaintiff
resubmitted the same pleading. That pleading, as it did previously, fails to state a cognizable
claim for relief.

Conclusion
For the reasons given above, the Court dismisses plaintiffs amended complaint without
prejudice. The Clerk of Court is directed to close the case.

SO ORDERED.
Dated: Brooklyn, New York
September I, 20 II

s/ Judge Raymond J. Dearie
RA

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J. DEARIE