Davis v. Goldstein et al

Filing 41

ORDER granting 29 Motion to Dismiss for Lack of Jurisdiction: For the reasons stated in the attached Memorandum and Order, the defendants' motion to dismiss is GRANTED. Davis's action is DISMISSED with prejudice. The Clerk of the Court is directed to enter judgment accordingly, mail a copy of this order and the accompanying judgment to the Plaintiff, and close this case.The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Ordered by Judge Roslynn R. Mauskopf on 6/24/2013. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WINSTON DAVIS
Plaintiff,

MEMORANDUM AND ORDER
11-CV-3628 (RRM)(LB)

- against DR. P. GOLDSTEIN, DR. M. BORECKY, MR.
K. PAGE, THE MEDICAL ADMINISTRATOR,
THE WARDEN OF MDC, MDC BROOKLYN,
UNITED STATES FEDERAL BUREAU OF
PRISONS, HENRY J. SADOWSKI
Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge:

Plaintiff Winston Davis, proceeding pro se, brings this action against Dr. P. Goldstein,
Dr. M. Borecky, Mr. K. Page, the Medical Administrator, the Warden of MDC, MDC Brooklyn,
the United States Federal Bureau of Prisons, and Henry J. Sadowski, (collectively, the
“defendants”), asserting a negligence claim arising out of the defendants’ transferring Davis
from the Metropolitan Detention Center in Brooklyn, New York to the Federal Medical Center in
Butner, North Carolina. The defendants moved to dismiss Davis’s complaint for lack of subject
matter jurisdiction under Fed. R. Civ. P. 12(b)(1). (Doc. No. 33.) Davis filed his opposition to
the motion. (Doc. No. 34.) The defendants filed their reply. (Doc. No. 36.) Davis submitted a
surreply. (Doc. No. 40.) On the basis of these submissions, and for the following reasons, the
defendants’ motion to dismiss is GRANTED. To the extent Davis’s opposition to the motion
requests leave to amend his complaint, that request is DENIED.

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BACKGROUND1
In 2008, Davis was incarcerated at the Metropolitan Detention Center (“MDC”) in
Brooklyn, New York. (Second Am. Compl. (Doc. No. 12) ¶ IV.) Davis was undergoing medical
treatment for prostate cancer. (Id. ¶ I.C.) On January 16, 2008, the warden of the MDC, the
medical administrator, various doctors, and medical staff – here, the defendants – collectively
transferred Davis from the MDC to the Federal Medical Center in Butner, North Carolina
(“Butner”). Davis claims that the defendants were negligent in allowing and effectuating his
transfer. Specifically, Davis alleges that Dr. Goldstein, one of his treating physicians, knew he
would be transferred to FMC Butner but did not object despite the fact that the move would
“serious[ly] jeopardize” Davis’s health. (Id. ¶ I.C.) Davis also alleges that Dr. Borecky, the
Medical Director at the MDC, knew that Butner “was not equipped to follow up on my treatment
without complication.” (Id. ¶ I.E.) Davis also alleges Mr. Page, the unit manager at the MDC,
“was negligent in ignoring my concerns” expressed in a written complaint. (Id. ¶ I.F.) Finally,
Davis alleges that the Federal Bureau of Prisons (“BOP”), the MDC, the warden of the MDC,
and the medical administrator of the MDC were “negligent in allowing my transfer to Butner
after committing me to hormone and radiation therapies. BOP[’]s Butner facility had no prior
knowledge of treating cancer patients with hormone therapy.” (Id. ¶ I.G; see also id. ¶¶ I.H, I.J,
I.K.)
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The following background is derived from Davis’s second amended complaint and the
declarations of Nicole McFarland, a senior staff attorney at the Brooklyn Metropolitan Detention
Center, and the exhibits attached thereto. The Court’s consideration of materials outside of the
complaint does not turn the defendants’ motion into one for summary judgment. “In resolving a
motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . .
may refer to evidence outside the pleadings.” Makarova v. United States, 201 F.3d 110, 113 (2d
Cir. 2000); see also Ireland v. Suffolk County of New York, 242 F. Supp. 2d 178, 185 (E.D.N.Y.
2003) (“When subject matter jurisdiction is challenged under Rule 12(b)(1), ‘evidentiary matter
may be presented by affidavit or otherwise.’”) (quoting Kamen v. Am. Tel. & Tel. Co., 791 F.2d
1006, 1011 (2d Cir. 1986)).
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Davis filed an administrative tort claim on July 3, 2008, claiming negligence arising out
of his transfer. (Ex. A to Am. Compl.) On August 7, 2008, Henry Sadowski, the Regional
Counsel of the Bureau of Prisons, responded to Davis’s claim and stated that the Bureau had six
months to review, consider, and adjudicate his claim. (Ex. B. to Am. Compl.) On January 7,
2009, Sadowski wrote to Davis, advising that, “Investigation reveals that while at MDC
Brooklyn, you received the car necessary for your condition and then were property transferred
to FMC Butner for continued care and treatment.” (Ex. A to McFarland Decl. (Doc. 31).)
Sadowski continued, “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 memorandum.” (Id.)
On June 19, 2010, Davis wrote to Sadowski inquiring about the status of his claim. He
wrote, “It’s been over six months since I received your letter of acknowledgement of my claim
but have not heard from your office.” (Ex. C to Am. Compl.) Davis requested that Sadowski
conclude his review of the claim and asked Sadowski to “notify me of the result expeditiously.”
(Id.) Davis did not file an administrative tort claim arising out of Sadowski’s alleged, or
potential, negligence in failing to resolve Davis’s underlying claim. (McFarland Decl. ¶ 4.)
On July 15, 2011, Davis filed this action. In addition to setting forth the various
allegations of negligence arising out of his transfer, Davis also alleges that Sadowski was
“negligent in failing to resolve my tort claim filed with the BOP as per their procedure[,]
[d]espite [my] follow up letter inquiring about [the] status of my claim.” (Am. Compl. ¶ I.I.)

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DISCUSSION
A. Standard of Review
“A document filed pro se is to be liberally construed and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks
omitted). Therefore, the Court construes Davis’s complaint with “special solicitude” and
interprets it to raise the strongest arguments it suggests. Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006) (quoting Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir.1994)).
A case must be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
“when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova,
201 F.3d at 113. The Court assumes as true the factual allegations contained in Davis’s second
amended complaint, but will not draw jurisdictional inferences in favor of the plaintiff. Fraser v.
United States, 490 F. Supp. 2d 302, 307 (E.D.N.Y. 2007) (citations omitted). “The plaintiff
bears the burden of proving by a preponderance of the evidence that the court retains
jurisdiction.” Id. (citation omitted). Where, as here, the plaintiff’s claim implicates the Federal
Tort Claims Act (“FTCA”), she must “prove the statutory requirements under the FTCA by a
preponderance of the evidence.” Id. (citation omitted). “‘Because the FTCA creates a waiver of
sovereign immunity, it is strictly construed and all ambiguities are resolved in favor of the
United States.’” Fraser, 490 F. Supp. 2d at 309 (citing Moreno v. United States, 965 F. Supp.
521, 524 (S.D.N.Y. 1997)).
B. FTCA
Davis sues a host of federal agencies and federal employees in their official capacities.
Sovereign immunity protects the United States, its agencies, and employees sued in their official

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capacities from suit. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.
1994). “The FTCA waives the United States’s sovereign immunity for certain classes of torts
claims and provides that the federal district courts shall have exclusive jurisdiction over damages
claims against the United States for injury or loss of property, or for 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.’” Celestine v. Mt. Vernon Neighborhood
Health Ctr., 403 F.3d 76, 80 (2d. Cir. 2006) (quoting 28 U.S.C. § 1346(b)(1)).
1. The Proper Defendants
The FTCA prohibits a government agency and government employees from being sued in
their own names. See 28 U.S.C. § 2679(a)-(b). Therefore, any tort claim against the BOP and the
MDC, agencies of the federal government, can only be maintained against the United States. See
Hylton v. Federal Bureau of Prisons, No. 00-CV-5747, 2002 WL 720605, at *2 (E.D.N.Y. Mar.
11, 2002). Similarly, upon a certification from the United States Attorney General that, at all
relevant times, the individuals named in the suit were acting within the scope of their
employment, any tort claim against individuals employed by these agencies in their official
capacities can only be maintained against the United States. See Sereika v. Patel, 411 F. Supp.
2d 397, 409 (S.D.N.Y. 2006). Such certification was provided here as to all of the individual
defendants. (Doc. No. 32.) As such, the complaint must be dismissed as to the named agencies
and individuals, and the United States is substituted as a party defendant in their place. See id.;
Hylton, 2002 WL 720605 at *2.
2. Jurisdictional Limitations
Given that the FTCA provides a limited waiver of sovereign immunity, “waivers of
sovereign immunity and their conditions must be strictly applied against the claimant.” Fisko v.

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U.S. Gen. Services Admin., 395 F. Supp. 2d 57, 61-62 (S.D.N.Y. 2005) (citations omitted).
“Accordingly, if the Government has not waived its sovereign immunity, or if the conditions
under which the Government has agreed to waive that immunity have not been met, federal
subject matter jurisdiction does not exist over the plaintiff's claims.” Id. (citations omitted).
One such limitation is applicable here. The FTCA provides that a “tort claim against the
United States shall be forever barred unless it is presented in writing to the appropriate Federal
agency within two years after such claim accrues or unless action is begun within six months
after the date of mailing, by certified or registered mail, of notice of final denial of the claim by
the agency to which it was presented.” 28 U.S.C. § 2401(b). Davis does not satisfy this
requirement. While Davis presented his claim to the appropriate agency within two years of the
date of accrual, the claim was denied, and notice of this action was sent to Davis via certified
mail on January 7, 2009. Based on this chronology, the instant action was initiated well beyond
the six-month limit for filing. (Ex. A. to McFarland Decl.) Davis has provided no evidence to
rebut the content or receipt of the January 7, 2009 denial letter. On its face, the letter clearly
denied Davis’s claim, advised him of the need to file within six months, and states that it was
sent via certified mail. Nor does Davis allege that he did not receive the letter at or near the time
it was sent.
Moreover, to the extent Davis claims that Sadowski was negligent in deciding his
administrative tort claim, such claim is also barred because Davis never presented that
negligence claim to the agency in the first instance, thus failing to meet the first requirement of §
2401(b).
In his opposition to the defendants’ motion, Davis argues that the doctrine of continuous
treatment should toll the time limitations outlined above. (See Pl.’s Opp’n to Mot. ¶ 12.) As an

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initial matter, the Second Circuit has declined to decide whether equitable tolling of the statute of
limitations in § 2401(b) is available. See A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135,
144 (2d Cir. 2011) (noting that “it is not clear that equitable tolling is even available in . . . .
actions brought pursuant to the FTCA,” and highlighting that such question is the subject of a
circuit split, which the Second Circuit has not yet addressed). Even if equitable tolling were
available, Davis has not shown he is entitled to it. “A litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way.” Id. (citation and internal quotation
marks omitted). “Equitable tolling is considered a drastic remedy applicable only in “rare and
exceptional circumstance[s].” Id. (internal quotation marks, citation, and alteration omitted).
Here, Davis knew that the BOP had six months to decide his administrative tort claim,
but waited until January 19, 2010 to inquire about his claim, nearly one and a half years after
Sadowski sent his letter informing Davis that his claim would be decided within six months.
Additionally, Davis waited until July 15, 2011, another year and a half after his January 2010
letter, to file this suit. These facts fall far short of demonstrating that Davis “has been pursuing
his rights diligently.” Id. As such, Davis is not entitled to equitable tolling of the § 2401(b) time
limits.
Accordingly, Davis’s claims against the defendants are DISMISSED.
C. Request to Amend the Complaint
In his opposition to the defendants’ motion, Davis contends that the defendants’ conduct
also violated his constitutional rights against cruel and unusual punishment under the Eighth
Amendment and to due process under the Fifth Amendment, as well as his rights under the
Ninth, Thirteenth, and Fourteenth Amendments. (See Pl.’s Opp’n ¶¶ 2-3.) The Court construes

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these contentions as a request for leave to amend his complaint to add these constitutional
claims. See Hamilton v. Wilson, No. 03-CV-5685, 2004 WL 169789, at *4 (S.D.N.Y. Jan. 28,
2004) (treating pro se plaintiff’s opposition papers as a request for leave to amend).
Rule 15(a) of the Federal Rules of Civil Procedure instructs courts to grant leave to
amend “freely . . . when justice so requires.” A court may deny leave to amend where such
amendment would be futile. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.
2007). Amendment is futile where the proposed claim could not withstand a motion to dismiss
under Rule 12(b)(6) for failure to state a claim. E.E.O.C. v. Thomas Dodge Corp. of N.Y., 524 F.
Supp. 2d 227, 234 (E.D.N.Y. 2007). Thus, in analyzing a proposed amendment, the Court
applies the same standard it would under Rule 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A complaint need not contain “‘detailed factual allegations,’” but it
must contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In other words, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Rather, the plaintiff’s
complaint must include “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). The
determination of whether “a complaint states a plausible claim for relief will . . . be a context-

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specific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 678 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).
Defendants argue that Davis’s proposed constitutional claims must be dismissed because
they are time-barred. The Court agrees. Davis’s constitutional claims are subject to the
requirements of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See Nwaokocha v.
Sadowski, 369 F. Supp. 2d 362, 267 (E.D.N.Y. 2005) (applying Bivens to constitutional claims
asserted against individual federal employees in their official capacities). “The statute of
limitations for Bivens claims is borrowed from the statute of limitations for personal injury
actions under the law of New York, the state in which this federal court sits.” Latimore-El v.
Doe, No. 12-CV-621, 2012 WL 2131539, at *2 (E.D.N.Y. June 12, 2012) (citations omitted).
Federal courts sitting in New York apply a three-year statute of limitations period to Bivens
claims. Id. (citation omitted). Davis’s claim accrued on January 16, 2008, the date he was
transferred. He filed suit on July 15, 2011, nearly six months beyond the three-year limitations
period.2 As such, Davis’s proposed constitutional claims are time-barred.
Even if the claims were not time-barred, Davis has not adequately pled that the individual
defendants committed these constitutional violations intentionally and outside the scope of their
employment, as is required to state a claim under Bivens. See Latimore-El, 2012 WL 2131539,
at *2 (“Bivens claims can only be stated for constitutional violations by employees or agents of
the United States acting outside the scope of their employment. The complaint is devoid of any
allegations suggesting that any wrongful act or omission of any BOP agent or employee occurred

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Davis’s limitations period is not tolled under the Prisoner Litigation Reform Act, 42 U.S.C. §
1997e(a), as he never sought to exhaust his administrative remedies on his constitutional claims
specifically. See Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir. 2011) (equitably tolling the
statute of limitations under Bivens for the period that a prisoner is exhausting his administrative
remedies).
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outside the scope of their employment or crossed the constitutional threshold.”); Roseboro v.
Gillespie, 791 F. Supp. 2d 353, 380 (S.D.N.Y. 2011) (noting that Bivens provides a remedy only
for intentional violations). Indeed, Davis alleges throughout that the defendants’ conduct was
negligent, not intentional.
Because Davis cannot state a claim against the individual defendants for constitutional
violations, Davis’s request for leave to amend his complaint is DENIED.
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss is GRANTED. Davis’s
action is DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly, mail a copy of this
order and the accompanying judgment to the Plaintiff, and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore in forma pauperis status is denied for purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
June 24, 2013

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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