Barnhill v. Duke et al
Filing
46
ORDER granting in part 41 Motion to Dismiss for Failure to State a Claim; granting in part 41 Motion for Summary Judgment: For the reasons stated in the attached Memorandum & Order, Defendants' motion to dismiss the complaint is granted in part, and Defendants' motion for summary judgment is granted in part. The Clerk of Court respectfully is directed to enter judgment in favor of Defendants and terminate this matter. Ordered by Judge Pamela K. Chen on 9/29/2014. (Doerr, Mark)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
THOMAS BARNHILL,
NOT FOR PUBLICATION
Plaintiff,
MEMORANDUM & ORDER
12-CV-2420 (PKC)
v.
DUKE TERRELL, SOROYA ROSA,
DR. MICHAEL BORECKY, DR. R. NEWLAND;
SIXTO RIOS, FREDDY NUNEZ, GLENFORD
EDWARDS, GAIL MCMILLAN, and TONI CUYLER,
Defendants.
----------------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Thomas Barnhill, a former inmate at the Metropolitan Detention Center in
Brooklyn, New York (“MDC”), asserts claims relating to allegedly inadequate medical treatment
he received while incarcerated, resulting in recurring skin infections, and causing him pain and
suffering. Plaintiff also alleges that he was exposed to tuberculosis while incarcerated. (Dkts. 13, 42.) Presently before the Court is the motion of all of the Defendants to dismiss Plaintiff’s
complaint pursuant to Federal Rules of Civil Procedure (“FRCP”) 12(b)(1) and (6) or, in the
alternative, for summary judgment pursuant to FRCP 56. (Dkt. 41.) The Court dismisses the
complaint, in its entirety, based on the lack of subject matter jurisdiction as to some of its claims
and the failure to state a claim as to others, and because, as to certain claims relating to certain of
the Individual Defendants, the undisputed facts require judgment in favor those Defendants.
BACKGROUND
Plaintiff ostensibly brings suit against nine individuals (the “Individual Defendants”) who
were at all times relevant to this lawsuit employed at the MDC in Brooklyn and interacted, in
some capacity, with Plaintiff while he was an inmate at the MDC: (1) Duke Terrell, the former
warden; (2) Dr. Michael Borecky, a physician; (3) Dr. R. Newland, a physician 1; (4) Freddy
Nunez, a Physician Assistant (“PA”); (5) Sixto Rios, a “mid-level practitioner” (“MLP”); (6)
Soroya Rosa, also a MLP; and (7)–(9) Glenford Edwards, Gail McMillan, and Toni Cuyler,
whose job titles are not identified in the record. 2
I.
Defendants’ Statement of Facts
The Court takes the following facts from Defendants’ Statement of Undisputed Facts,
pursuant to Local Civil Rule 56.1 (“56.1 Statement” or “St.”). (Dkt. 41-4.) Defendants urge the
Court to convert their motion to dismiss to a motion for summary judgment. (Dkt. 41-5 at 13,
16.) Defendants properly notified Plaintiff that failure to respond to Defendants’ motion for
summary judgment could result in dismissal of this action, which entitles the Court to convert
Defendants’ motion to one for summary judgment. See Groden v. Random House, Inc., 61 F.3d
1045, 1052 (2d Cir. 1995) (the Court may convert a motion to dismiss into a motion for
summary judgment if there is “sufficient notice to [the] opposing party and an opportunity for
that party to respond”). (See Dkt. 41-1) (“Supplemental Notice to Pro Se Plaintiff Opposing
Motion to Dismiss or Motion for Summary Judgment Pursuant to Local Civil Rules 12.1 and
56.2”).
To the extent Plaintiff has responded to Defendants’ motion with an affidavit, as
discussed infra Section I.C, the Court converts the motion to one for summary judgment with
respect to Plaintiff’s Bivens claims against certain of the Individual Defendants.
1
Dr. Newland’s first name does not appear anywhere in the record.
2
Plaintiff misspells the names of several of the Individual Defendants in the Complaint.
Accordingly, the Clerk of Court respectfully is directed to amend the caption of this case as set
forth
above
in
the
case
caption
of
this
Memorandum
&
Opinion.
2
With respect to Defendants’ motion to dismiss pursuant to FRCP 12(b)(1) and (6),
because Plaintiff is proceeding pro se, the Court must construe Plaintiff’s pro se complaint to
raise the strongest arguments it suggests. See Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.
2013); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006). For purposes of
both Defendants’ motion to dismiss and motion for summary judgment, the Court construes the
facts in the light most favorable to Plaintiff, the non-moving party, and assumes as true all of
Plaintiff’s well-pleaded allegations. Major League Baseball Props., Inc. v. Salvino, Inc., 542
F.3d 290, 309 (2d Cir. 2008).
A.
Plaintiff’s Medical Treatment
Plaintiff was detained at the MDC from October 24, 2008 through June 1, 2011. (St. ¶
1.) On October 27, 2008, shortly after Plaintiff began serving his term of imprisonment, a nonparty nurse at the MDC conducted an evaluation of Plaintiff, during which Plaintiff reported a
history of testing positive for tuberculosis, among other chronic ailments. (St. ¶¶ 2–3.) 3 On
October 30, 2008, a chest x-ray of Plaintiff was negative for tuberculosis. (St. ¶ 6.) On
November 5, 2008, Defendant PA Nunez examined Plaintiff and recommended action items for
potential follow-up treatment, including testing for tuberculosis and further testing related to
Plaintiff’s chronic conditions. (St. ¶ 7.)
On several occasions throughout 2009, Plaintiff visited prison medical staff for treatment.
Prison medical staff evaluated and treated Plaintiff for his chronic conditions, including
rheumatoid arthritis, and prescribed him medication for nausea and vomiting and other
3
Three years and one day later, on October 28, 2011, Plaintiff completed a standardized medical
history form in which he set forth a history of arthritis, Hepatitis C, bronchitis, sexually
transmitted diseases, and asthma. (St. ¶ 5.) Plaintiff did not indicate a history of tuberculosis in
this medical history form.
3
medication to treat symptoms of Plaintiff’s asthma and rheumatoid arthritis, (St. ¶¶ 8–15.) On
one such occasion, on February 13, 2009, Plaintiff experienced nausea and vomiting, and
Defendant Dr. Borecky prescribed medication to Plaintiff for treatment. (St. ¶ 11.)
On October 20, 2009, Plaintiff reported to Defendant MLP Rios with a lesion on his right
leg, which Plaintiff reported had been draining.
(St. ¶¶ 16–17.)
Defendant Dr. Borecky
prescribed Plaintiff an antibiotic commonly known as Bactrim to prevent infection, with
instructions to return if the lesion did not heal. (St. ¶ 18.) Plaintiff returned to the infirmary the
next day to report that the lesion was causing him pain and continued to drain, and Defendant
MLP Rosa evaluated him. (St. ¶¶ 19–20.) Rosa cleaned and treated the wound, and took a
sample of the lesion for testing. (St. ¶ 21.) 4 Rosa prescribed Plaintiff drugs for pain, and
directed him to report back if the lesion condition did not improve. (St. ¶ 22.)
Five days later, on October 26, 2009, prison staff followed up with Plaintiff to discuss the
infection. PA Nunez instructed Plaintiff to continue treating the infection with the Bactrim
prescribed to him. (St. ¶¶ 24–25.) On November 3, 2009, non-party MDC staff cleaned and
treated Plaintiff’s lesion. (St. ¶ 26.) On November 8 and 18, 2009, Plaintiff was evaluated and
treated for his chronic conditions by a non-party MDC physician. (St. ¶¶ 27–28.) Plaintiff did
not complain of pain from the lesion on his leg during the November 18 appointment, and the
treating physician noted that the lesion had healed. (St. ¶¶ 29–30.)
Some months later, on January 10, 2010, Plaintiff complained of joint pain arising from
his chronic rheumatoid arthritis, for which PA Nunez prescribed Plaintiff ibuprofen. (St. ¶¶ 31–
32.) Plaintiff was again evaluated and treated for his chronic conditions by a non-party MDC
4
Testing revealed that Plaintiff was infected with Methicillin-Resistant Staphylococcus Aureus
(commonly known as “MRSA”). (St. ¶ 23.)
4
physician on January 20, 2010, during which he complained of joint pain exacerbated by the cold
weather, but did not report pain from the healed lesion. (St. ¶¶ 33–34.)
On March 24, 2010, Plaintiff reported that he had an infected lesion, again on his right
leg. MLP Rios evaluated Plaintiff and again prescribed Bactrim to treat the area, and took a
bacteria culture from Plaintiff’s leg. (St. ¶¶ 35–37.) Five days later, on March 29, 2010,
Plaintiff returned to the infirmary and was treated by PA Nunez for his chronic conditions. (St. ¶
38.) The medical report from this visit indicates “Erythema 5, minor discharge right tibial region
(current abscess TX [treatment]) otherwise nml [normal].” (Dkt. 41-2 at ECF 77.)
On April 7, 2010, Dr. Newland evaluated and treated Plaintiff for his chronic conditions,
and renewed Plaintiff’s prescriptions related to his asthma and rheumatoid arthritis. (St. ¶¶ 40–
41.) Two days later, on April 9, 2010, MLP Rios determined that the lesion on Plaintiff’s right
leg had healed fully. (St. ¶ 43; see also Dkt. 41-2 at ECF 86 (“Inmate for [follow up] on lesion
on his right lower leg, lesion is healed up, no complain[t]s.”).)
On May 5, 2010, following a consultation, Dr. Newland prescribed Plaintiff a course of
isoniazid prophylaxis treatment as a precautionary treatment for tuberculosis. (St. ¶¶ 44–45.) 6
On July 7, 2010, Plaintiff complained of exacerbated joint pain from the cold conditions
in the prison caused by air conditioning. Dr. Newland renewed Plaintiff’s prescription for pain
medication and issued Plaintiff a “lower bunk pass,” which enabled Plaintiff to sleep on the
lower bunk so he did not have to climb a bunk to get into bed. (St. ¶¶ 47–49.) Plaintiff at that
5
Erythema is “abnormal redness of the skin due to capillary congestion.” The Merriam-Webster
Dictionary, “erythema,” available at http://www.merriam-webster.com/dictionary/erythema (last
visited Sept. 25, 2014).
6
There is no indication in the record as to why the preventative tuberculosis treatments were
initiated. Defendants state in their motion that “[p]atients with a latent tuberculosis infection are
often prescribed treatment to prevent them from developing the tuberculosis disease.” (Dkt. 41-4
at 7–8 n.2.)
5
time reported that he was properly taking his medications, including the precautionary
tuberculosis treatment regimen, and had not experienced any side effects. (St. ¶ 50.)
On November 29, 2010, Plaintiff complained of a boil on his left thigh region, which had
started as a rash and was causing him pain. (St. ¶ 52–53.) Plaintiff was again prescribed
Bactrim, and a bacterial culture was taken by a non-party MDC PA. (St. ¶ 54.) Approximately a
week later, on December 6, 2010, Plaintiff returned for treatment and it was found that he again
was infected with MRSA. A non-party MDC PA prescribed further Bactrim treatment although
the wound appeared to have healed by that time. (St. ¶¶ 56–57.)
On January 19, 2011, following Plaintiff’s complaints regarding his treatment, a nonparty MDC PA consulted with Plaintiff regarding his recurrent development of skin infections
and to address Plaintiff’s “concern[s] about how he got tuberculosis in the BOP [Bureau of
Prisons].” (St. ¶ 58–59; Dkt. 41-2 at ECF 111.) Although Plaintiff did not at that time have a
skin infection, he was counseled on proper treatment of such infections, and his prescriptions for
tuberculosis and asthma were refilled. (St. ¶ 60–61.)
On January 26, 2011, Dr. Newland evaluated and treated Plaintiff in connection with his
chronic conditions. (St. ¶ 62.)
On April 28, 2011, Plaintiff suffered from an asthma attack for which he received
treatment by non-party MDC medical staff. (St. ¶ 67.) Four days later, on May 2, 2011, Plaintiff
complained to MLP Rosa of an infection on his buttocks. (St. ¶ 69.) MLP Rosa evaluated and
treated Plaintiff, prescribed him medication and ointment for the infection, and advised Plaintiff
to improve his hygiene, which she identified as the potential cause of the recurring infections.
(St. ¶¶ 69–70.)
6
On June 1, 2011, Plaintiff was transferred from the MDC in Brooklyn to the Federal
Correctional Institution Williamsburg (“FCI Williamsburg”) in South Carolina.
(St. ¶ 72.)
There, Plaintiff was examined via a chest x-ray, the results of which came back negative for
infection and “demonstrated the outstanding function of [Plaintiff’s] lungs.” (St. ¶ 73.)
Plaintiff since has been released to a “halfway house” in Brooklyn, New York. (Dkt. 42
at ECF 8.)
B.
Plaintiff’s Administrative Complaints
On or about January 1, 2011, Plaintiff submitted a “Request for Administrative Remedy
Form” (“BP-9”) to the MDC. (St. ¶ 74.) Plaintiff’s complaint concerned the infections on his
leg, and alleged that he had received inadequate medical diagnosis and treatment while
incarcerated at the MDC. (St. ¶ 75.) On February 2, 2011, through Acting Warden Christine
Dynan, Defendant and former Warden Duke Terrell responded to Plaintiff’s complaint. (St. ¶¶
76–79.) The response indicated that recent laboratory tests “returned results within the normal
limits” and that Plaintiff had successfully been treated for the infections, which were no longer
present. (Dkt. 41-3 at ECF 12.) The response concluded that “your request for administrative
remedy has been partially granted as you have been provided with a response regarding your
medical conditions and laboratory studies,” and informed Plaintiff that he could appeal the
warden’s response. (Dkt. 41-3 at ECF 12.)
On or about February 11, 2011, Plaintiff appealed the response to his administrative
complaint, and requested further testing because medical staff purportedly had failed to diagnose
the cause of his skin infections. (St. ¶¶ 80–81.) The Regional Director of the Bureau of Prisons
(“BOP”) responded to Plaintiff’s appeal, informing him that his appeal was denied. (St. ¶ 83–
84.)
7
On or about April 26, 2011, Plaintiff submitted a “Central Office Administrative Remedy
Appeal” (“BP-11”) in which Plaintiff requested an investigation into the cause of his skin
infections. (St. ¶ 85.) Plaintiff’s appeal was denied because the record reflected that Plaintiff
was receiving adequate medical care in accordance with applicable guidelines. (St. ¶ 86–87.)
On or about December 27, 2011, while an inmate in Williamsburg, South Carolina,
Plaintiff initiated the instant action. (Dkt. 1-3.) 7
II.
Plaintiff’s Allegations
Despite largely agreeing with the chronology of events set forth by Defendants in their
56.1 Statement, Plaintiff asserts that Defendants’ arguments in the present motion are based on
“false evidence,” and that Plaintiff “did not get proper medical treatment from [MDC’s] medical
staff[.]” (Dkt. 42 at 1.) Plaintiff further alleges that Defendants’ failure to provide proper
medical treatment “caused [Plaintiff] to go through unbelievable pain [and] suffering.” Id.
With respect to the treatment of Plaintiff’s buttocks infection, Plaintiff states, in his
affidavit in opposition to Defendants’ motion, that he attempted to show Dr. Newland the
infection, but Dr. Newland attempted to place his finger inside Plaintiff’s anus, at which point
Plaintiff “pushed [Dr. Newland’s] hand away and explained to him that the infection is on
[Plaintiff’s] buttocks; a long way from [Plaintiff’s] anus.” (Dkt. 42 at ECF 3.) 8 As a result, Dr.
Newland refused to treat Plaintiff’s infection. (Dkt. 42 at ECF 3.) Notably, the Complaint
provides a slightly different account of the incident:
7
Following submission of Plaintiff’s initial complaint, the South Carolina District Court
instructed Plaintiff to revise his complaint to proper form. Plaintiff complied, and submitted a
revised
complaint
(hereinafter,
the
“Complaint”).
(Dkt.
1-3.)
8
Citations to “ECF” refer to the pagination of the Court’s Electronic Court Filing (“ECF”)
system, rather than to the source’s internal pagination.
8
[Dr. Newland] examined me and wanted to push his finger in my anus. He tried
but I could not [bear] that much pain. He said I refuse[d] treatment because I
won’t let him check for prostate cancer. I told him I had it done three times in the
last two years. I started the remedy process concerning the reoccurring infections
I’m plag[u]ed with[.]
(Dkt. 1-3 at ECF 4–5.)
With respect to Plaintiff’s leg infection, Plaintiff states that Defendant Rosa “cut[] down
into [his] leg with a pair of scissors causing [him] unbelievable pain and suffering” and
“spreading the infection over [his] body.” (Dkt. 42 at ECF 4.) Specifically, the Complaint states
that:
[Defendant] [Rosa] [] examined [his] leg, which was swollen badly. [Rosa] said
she had to cut into my leg to drain the infection. The pain from the process was
excruciating! [Rosa] said she couldn’t use an[]esthesia because of the infection.
[Rosa] squeezed as much of the poison out as possible. Cleaned and [w]rapped
my leg. The results was [sic] staph infection. I was given antibiotics and pain
medication.
(Dkt. 1-3 at ECF 3.)
In short, the gravamen of the Complaint is that medical staff at the MDC provided him
inadequate medical treatment, causing him pain and suffering and the proliferation of skin
infections on his legs and buttocks. Plaintiff also claims that he was exposed to tuberculosis
when he was housed with another inmate suffering from that disease. (Dkt. 42 at ECF 4.) As
such, Defendants “created or failed to correct conditions that caused [his] medical condition,”
causing Plaintiff injury and violating his constitutional rights. (Dkt. 42 at ECF 3.) Plaintiff
seeks compensation for pain and suffering due to inadequate medical treatment. (Dkt. 1-3 at
ECF 6.)
LEGAL STANDARDS
Defendants move for both dismissal of the Complaint pursuant to FRCP 12(b)(1) and (6),
and for summary judgment pursuant to FRCP 56. The Court will convert the present motion into
9
a hybrid motion, and will consider Defendants’ arguments for dismissal pursuant to FRCP 12
with respect to all of Plaintiff’s claims, except his Bivens claims against certain of the Individual
Defendants in their individual capacities, which the Court will consider pursuant to FRCP 56.
See infra Section I.C.
A.
FRCP 12(b)(1)
A claim must be dismissed under FRCP 12(b)(1) for lack of subject matter jurisdiction
“when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction, “the district court must take all uncontroverted facts in the
complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting
jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.
2014). “Where jurisdictional facts are placed in dispute, the court has the power and obligation
to decide issues of fact by reference to evidence outside the pleadings, such as affidavits,” id.
(quoting APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003)), in which case, “the party asserting
subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it
exists.’” Id. (quoting Makarova, 201 F.3d at 113).
B.
FRCP 12(b)(6)
To withstand a motion to dismiss pursuant to FRCP 12(b)(6), a complaint must plead
facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In evaluating a 12(b)(6) motion to dismiss, the district
court must accept the factual allegations set forth in the complaint as true, and draw all
reasonable inferences in favor of the plaintiff. See Nielsen, 746 F.3d at 62; Cleveland v. Caplaw
Enter., 448 F.3d 518, 521 (2d Cir. 2006). The liberal notice pleading standard of FRCP 8(a)
10
only requires that a complaint set forth “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Twombly, 550 at 555. Under FRCP 8(a)(2), the complaint need not
set forth “detailed factual allegations,” but the plaintiff must present “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at
555. “Factual allegations must be enough to raise a right to relief above the speculative level[.]”
Id. A complaint should be dismissed where a plaintiff has not “nudged [its] claims across the
line from conceivable to plausible[.]” Id. at 570.
C.
FRCP 56
Summary judgment pursuant to FRCP 56 “is warranted when, after construing the
evidence in the light most favorable to the nonmoving party and drawing all reasonable
inferences in its favor, there is no genuine issue as to any material fact.” Sledge v. Kooi, 564
F.3d 105, 108 (2d Cir. 2009) (citing Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247–50, 255
(1986)). The party opposing summary judgment must set forth evidence demonstrating a genuine
issue for trial, and may not rely solely on allegations in its pleadings. Salahuddin v. Goord, 467
F.3d 263, 273 (2d Cir. 2006). When, as here, a litigant is proceeding pro se, the Court must
“read his supporting papers liberally, and will interpret them to raise the strongest arguments that
they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). With respect to Defendants’
summary judgment motion, the Court construes the facts in the light most favorable to the nonmoving party and resolves all ambiguities and draws all reasonable inferences against the
movant.
Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008).
Nonetheless,
“conclusory statements, conjecture, or speculation by the party resisting the motion will not
defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
11
DISCUSSION
As an initial matter, the Court liberally construes Plaintiff’s pro se complaint to assert
causes of action for: (1) common-law tort claims against the United States and the Individual
Defendants, in their official capacities, pursuant to the Federal Tort Claims Act (“FTCA”),
sounding in negligence and medical malpractice; 9 and (2) Bivens claims against the Individual
Defendants 10, in their individual capacities, for violating Plaintiff’s constitutional rights, to wit,
his Eighth Amendment right to be free from “cruel and unusual punishments.” (See Dkt. 41-5
(construing Plaintiff’s claims).) 11
9
Even though the United States is not named as a defendant in the Complaint or Plaintiff’’s
opposition to the present motion, because a logical reading of the Complaint indicates that
Plaintiff sought to allege a common law tort claim against the Bureau of Prisons as an agency of
the United States, the Court construes the Complaint as alleging a common law tort against the
United States under the FTCA. See Torres v. Anderson, 674 F. Supp. 2d 394, 396 (E.D.N.Y.
2009) (construing claims under the FTCA to be implicitly asserted against the United States as
the proper party to be sued); Megna v. Food & Drug Admin., 2009 WL 749900, at *5 (E.D.N.Y.
Mar. 17, 2009) (construing tort claims brought against the Food & Drug Administration to be
asserted against the United States, the proper party in an FTCA suit).
10
Bivens claims do not lie against the United States or its agencies. See Correctional Servs.
Corp. v. Malesko, 534 U.S. 61, 72 (2001) (“The prisoner may not bring a Bivens claim against
the officer’s employer, the United States, or the BOP.”).
11
Claims for constitutionally inadequate medical treatment generally fall under the auspices of
the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that although
“deliberate indifference” to a prisoner’s serious medical needs is cruel and unusual punishment,
not every claim by a prisoner that he has not received adequate medical treatment establishes a
violation of the Eighth Amendment.) “In order to state a cognizable claim [under the Eighth
Amendment], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Id. at 106. “It is only such indifference that can offend
‘evolving standards of decency’ in violation of the Eighth Amendment.” Id.
12
I.
Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)(1) and (6)
A.
The FTCA Permits the United States, but not the Individual Defendants,
to be Sued for Common Law Torts
The United States is immune from lawsuits except in instances where the United States
has consented to being sued. Nwaokocha v. Sadowski, 369 F. Supp. 2d 362, 368–69 (E.D.N.Y.
2005) (citing Fed. Deposit. Ins. Corp. v. Meyer, 510 U.S. 471, 478 (1994)) (“[T]he United States
simply has not rendered itself liable . . . for constitutional tort claims.”). Under the FTCA, the
United States has waived its sovereign immunity, and consented to being sued, with respect to
certain common law tort claims arising out of the conduct of its employees, such as Plaintiff’s
negligence and medical malpractice claims. See 28 U.S.C. §§ 2674, 2679; Devlin v. United
States, 352 F.3d 525, 530 (2d Cir. 2003) (“[T]he FTCA waives the federal government’s
sovereign immunity against certain tort claims arising out of the conduct of its employees.”);
Nwaokocha, 369 F. Supp. 2d at 371 (quoting Celestine v. Mount Vernon Neighborhood Health
Ctr., 403 F.3d 76, 80 (2d Cir. 2005) (“The FTCA ‘waives the United States’[] sovereign
immunity for certain classes of torts claims.”). The FTCA provides, in relevant part:
“[T]he district courts . . . shall have exclusive jurisdiction of civil actions on
claims against the United States, for money damages, accruing on and after
January 1, 1945, 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)(1). The FTCA is the exclusive remedy for a suit for damages for personal
injury or damage to property “resulting from the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment.” 28
U.S.C. § 2679(b)(1) (emphasis added).
13
However, the limited waiver of the FTCA applies only to the United States itself, and not
federal employees, such as the Individual Defendants, acting within the scope of their
employment, i.e., acting in their official capacities. See Liranzo v. United States, 690 F.3d 78,
84–85 (2d Cir. 2012) (noting that the FTCA “constitutes a limited waiver by the United States of
its sovereign immunity and allows for a tort suit against the United States under specified
circumstances”). 12
Furthermore, the United States has not waived its sovereign immunity as to lawsuits
grounded in constitutional violations, and no subject matter jurisdiction lies with respect to such
claims. See id. Because claims brought against federal employees in their official capacities are
deemed to be brought against the United States, such these claims are also barred by sovereign
immunity. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)
(noting that Bivens actions “must be brought against the federal officers involved in their
individual capacities” because “[u]nder the doctrine of sovereign immunity, an action for
damages will not lie against the United States absent consent. . . . Therefore, to the extent that
[plaintiff’s] claims constituted a Bivens action against [the Federal agency] or the individual
federal defendants in their official capacities, they were properly dismissed for want of subject
matter jurisdiction.”) (emphasis added). Thus, the only claims that can be brought against the
Individual Defendants must allege a constitutional violation against these Defendants, in their
individual capacities, as part of a Bivens action. See id.; Kurzberg v. Ashcroft, 619 F.3d 176, 176
n.* (2d Cir. 2010) (quoting Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (“The only
12
The FTCA also does not provide a remedy for violations of constitutional or statutory rights by
federal employees, acting in their individual capacities, such as alleged in Plaintiff’s Bivens
claims. 28 U.S.C. § 2679(b)(2)(A)–(B).
14
remedy available in a Bivens action is an award for monetary damages from defendants in their
individual capacities.”).
Therefore, Plaintiff’s common law tort claims against the Individual Defendants are
dismissed as barred by the doctrine of sovereign immunity, and the Court lacks subject matter
jurisdiction to consider them under the FTCA. See 28 U.S.C. § 1346(b); Rivera v. United States,
928 F.2d 592, 608–09 (2d Cir. 1991) (the FTCA “provides government employees with
immunity against claims of common-law tort”).
Any Bivens claims against the Individual
Defendants, in their official capacities, are also dismissed as barred by sovereign immunity. See
Robinson, 21 F.3d at 510 (“Therefore, to the extent that Robinson’s claims constituted a Bivens
action against . . . the individual federal defendants in their official capacities, they were properly
dismissed for want of subject matter jurisdiction.”).
B.
Plaintiff’s Common Law Tort Claims Against the United States Fail
for Failure to Exhaust Administrative Remedies
A Plaintiff’s ability to sue under the FTCA is subject to strict administrative remedy
exhaustion requirements. “The 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
(1993). Exhaustion under the FTCA requires that the claim be “presented in writing to the
appropriate Federal agency within two years after such claim accrues” or if the “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) (emphasis
added). The FTCA’s exhaustion requirement is a matter of jurisdiction and, therefore, is not
subject to waiver. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82
(2d Cir. 2005). “Because the FTCA constitutes a waiver of sovereign immunity, the procedures
set forth [therein] must be adhered to strictly.” Keene Corp. v. United States, 700 F.2d 836, 841
15
(2d Cir. 1983). Accordingly, “[t]he burden is on the plaintiff to both plead and prove compliance
with the [FTCA’s] statutory requirements.” In re Agent Orange Prod. Liab. Litig., 818 F.2d 210,
214 (2d Cir. 1987).
In order to exhaust the FTCA administrative review requirements with respect to a BOPrelated claim, the inmate must file his claim with the appropriate BOP Regional Office and then
appeal, if that request is denied, to the BOP General Counsel’s office. 28 C.F.R. §§ 543.21,
543.32; see Celestine, 403 F.3d at 82 (“The FTCA requires that a claimant exhaust all
administrative remedies before filing a complaint in federal district court.”).
Moreover,
applicable BOP regulations provide that, in order to exhaust administrative remedies, a
complainant must submit a claim for money damages for personal injury with the BOP. See 28
C.F.R. § 543.30 (“Pursuant to the [FTCA], a claim for money damages for personal injury or
death and/or damage to or loss of property must be filed against the United States by the injured
party with the appropriate Federal agency for administrative action.”). The form created for
purposes of submitting a claim for money damages with the BOP is the Form SF-95.
Plaintiff’s Complaint and opposition to the motion do not plead compliance with the
FTCA exhaustion requirements. Although Plaintiff submitted at least three complaint forms to
administrators within the BOP system, 13 he failed to exhaust his administrative remedies. First,
Plaintiff did not submit a written demand for damages to the BOP within two years of the claim
accruing. See 28 U.S.C. § 2401(b) (requiring the plaintiff to first present his or her tort claims
“in writing to the appropriate Federal agency within two years after such claim accrues”).
13
Plaintiff’s opposition to the motion states several instances in which Plaintiff submitted
administrative complaint forms to various administrators in the prison system. (See Dkt. 42 at
5.) Indeed, Defendants acknowledge that Plaintiff submitted these administrative complaints.
(See Dkt. 41-5 at 8–9.)
16
Second, Plaintiff did not submit a “Form SF-95 with the Bureau of Prisons Regional Office
where the claim occurred” (Dkt. 41-5 at 15), or, for that matter, any claim for money damages
with the BOP. Rather, as Plaintiff acknowledges, he submitted only general complaint forms,
the BP-8, BP-9, BP-10, and BP-11, relating to prison conditions, and not asserting a tort claim
against the BOP. (Dkt. 42 at 5.) Accordingly, Plaintiff has not alleged, and cannot allege, that
he exhausted his administrative remedies, as required under the FTCA, and the Court thus lacks
subject matter jurisdiction over his FTCA claims against the United States, which are dismissed
pursuant to FRCP 12(b)(1) for lack of subject matter jurisdiction. 14
C.
Plaintiff’s Bivens Claims Against Certain of the Individual Defendants,
In Their Individual Capacities, Fail to State a Claim
Under the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, a plaintiff may assert claims for damages against federal officers in their individual
capacities for violating the plaintiff’s constitutional rights. See Correctional Servs. Corp. v.
Malesko, 534 U.S. 61, 66 (2001); Carlson v. Green, 446 U.S. 14 (1980) (recognizing private
right of action against individual prison officials apart from FTCA claim, and noting that
“[b]ecause the Bivens remedy is recoverable against individuals, it is a more effective deterrent
than the FTCA remedy”).
14
This is more than a matter of procedural hurdles. The purpose of the so-called “presentment”
requirement is to enable the federal government to expedite the fair settlement of tort claims.
See Romulus v. United States, 160 F.3d 131, 131 (2d Cir. 1998) (“A claimant must provide more
than conclusory statements which afford the agency involved no opportunity to investigate.”).
Here, by failing to properly present his claims for money damages to the BOP, Defendant
deprived the BOP of the opportunity to efficiently investigate and remedy Plaintiff’s tort claims.
Although Plaintiff complained at different times while at the MDC about certain health care
issues, he never raised the core allegations now in his Complaint, such as not receiving proper
medical attention or treatment and being exposed to tuberculosis through the placement of
another inmate in his cell.
17
To properly assert a claim under Bivens, a plaintiff must allege that the particular
defendant, by way of an act or omission, directly contributed to a violation of the plaintiff’s
constitutional rights. See Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (“Because the
doctrine of respondeat superior does not apply in Bivens actions, a plaintiff must allege that the
individual defendant was personally involved in the constitutional violation.”); see also Ashcroft
v. Iqbal, 556 U.S. 662, 675–76 (2009) (“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior. . . .
Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.”).
Plaintiff makes no specific arguments with respect to Defendants’ motion to dismiss the
Bivens claims against the Individuals Defendants, other than to reiterate that he received
inadequate medical treatment due to the “deliberate indifference” of the Defendants, causing him
pain and suffering. (Dkt. 42 at ECF 3.) The Court addresses Plaintiff’s Bivens claims as to each
of the Individual Defendants.
1.
Plaintiff’s Bivens Claims Against Defendant Terrell
With respect to Plaintiff’s Bivens claim against Defendant Terrell, the former warden of
the MDC, Plaintiff argues in his opposition that he “asked him personally every week to help me
with my situation because I need to see an outside doctor.” (Dkt. 42 at 2.) Defendants argue that
Terrell cannot be held liable, in his individual capacity, merely through his supervisory role as
warden and that Plaintiff must, but has failed to, allege specific acts or omissions by Terrell.
18
(Dkt. 41-5 at 16.) 15 Plaintiff’s allegation that Terrell refused to let Plaintiff see an outside
doctor, accepted as true, constitutes an act or omission on Terrell’s part, thus taking Plaintiff’s
claims outside of merely alleging respondeat superior liability as to Terrell. However, even
construed as such, this allegation is insufficient to state a plausible claim that it was medically
necessary for Plaintiff to see an outside doctor or that Terrell’s alleged refusal to allow Plaintiff
to obtain outside treatment resulted in any injury. Plaintiff alleges no facts showing that the care
he received at MDC was infirm, nor has he alleged any facts demonstrating that Terrell was
deliberately indifferent to his medical needs. See infra Section I.C.1. Thus, the single factual
allegation that Plaintiff told Terrell that he wanted to see an outside doctor fails to state a
plausible claim that Terrell violated Plaintiff’s Eighth Amendment rights, and Plaintiff’s Bivens
claims as to Terrell are dismissed pursuant to FRCP 12(b)(6).
2.
Plaintiff’s Bivens Claims Against Defendant Nunez
Plaintiff’s Bivens claims against Nunez must be dismissed because, as a public health
service employee, Nunez is immune from suit under the Public Health Service Act (“PHSA”).
42 U.S.C. § 233(a). The PHSA “grants absolute immunity to [public health service] officers and
employees for actions arising out of the performance of medical or related functions within the
scope of their employment by barring all actions against them for such conduct.” Hui v.
Castaneda, 559 U.S. 799, 806, 809–10 (2010) (citing 42 U.S.C. § 233(a)). BOP health care
employees, such as Nunez, qualify as public health workers under the PHSA and are entitled to
immunity under the Act. See Ford v. Spears, 10-CV-1314, 2012 WL 4481739, at *5 (E.D.N.Y.
15
Although Plaintiff argues in opposition to the motion that he complained to Terrell regarding
his health issues, no such allegation appears in the Complaint. However, the Court may consider
allegations contained in a pro se plaintiff’s memorandum of law insofar as such allegations are
consistent with those contained in the complaint. Andino v. Fischer, 698 F. Supp. 2d 362, 765–
76 (S.D.N.Y. 2010 (citing Donahue v. United States Dep’t of Justice, 751 F. Supp. 45, 49
(S.D.N.Y. 1990)).
19
Sept. 27, 2012) (Dearie, J.) (finding specifically that Nunez was a covered employee under the
PHSA and dismissing claims against him under 42 U.S.C. § 233(a) and FRCP 12(b)(1)).
Plaintiff makes no allegation that his interactions with Nunez were in any way outside Nunez’s
employment as a public health worker. Accordingly, Plaintiff’s claims with respect to Nunez are
barred by the PHSA, and are dismissed, pursuant to FRCP 12(b)(1).
4.
Bivens Claims as to Defendants Cuyler, Edwards, and McMillan
Plaintiff’s only allegation with respect to the personal and direct involvement of
Defendants Cuyler, Edwards, and McMillan is that they were negligent in placing an inmate who
allegedly was suffering from tuberculosis in Plaintiff’s cell. (Dkt. 42 at ECF 4.) However,
Plaintiff provides no factual basis for his belief that the inmate had active tuberculosis, except
that the inmate would cough “day [and] night.” (Dkt. 42 at ECF 4.) Nor does Plaintiff allege
any facts indicating that Cuyler, Edward, or McMillan knew, or had reason to believe, that the
other inmate had tuberculosis. Plaintiff also has failed to allege any facts to support a claim that
he was injured or suffered pain as a consequence of this alleged exposure.
Indeed, the
undisputed record shows that Plaintiff, in fact, was not exposed to, and did not contract,
tuberculosis. See infra Section I.C. Plaintiff’s threadbare and conjectural allegation regarding
Cuyler, Edwards, and McMillan engaging in conduct that purportedly caused Plaintiff to be
exposed to tuberculosis is plainly insufficient to state a claim that these Individual Defendants
violated Plaintiff’s Eighth Amendment rights. Accordingly, Plaintiff’s Bivens claims against
Cuyler, Edwards, and McMillan are dismissed pursuant to FRCIP 12(b)(6). 16
16
Given the Court’s dismissal of the Bivens claims against Cuyler, Edwards, and McMillan, the
Court need not consider Defendant’s summary judgment motion with respect to these three
Individual Defendants. However, the Court also finds that Plaintiff has failed to adduce
sufficient evidence to withstand summary judgment on these claims. Plaintiff has not raised a
genuine issue of fact regarding whether the inmate housed with Plaintiff suffered from
20
II.
Defendants’ Motion for Summary Judgment
Defendants move for summary judgment with respect to Plaintiff’s Bivens claims against
the Individual Defendants. (Dkt. 41-5 at 16–25.) As previously discussed, in connection with
their motion, Defendants warned Plaintiff that failure to respond to Defendants’ 56.1 Statement
could result in dismissal of these claims. (See Dkt. 41-1.) Such warning constitutes “sufficient
notice to [the] opposing party and an opportunity for that party to respond,” Groden, 61 F.3d at
1052, which permits the Court, in its discretion, to convert all or part of Defendants’ motion to a
motion for summary judgment, where appropriate. Fonte v. Bd. of Managers of Cont’l Towers
Condo., 848 F.2d 24, 25 (2d Cir. 1988) (holding that a district court may convert a FRCP
12(b)(6) motion to one for summary judgment as long as all parties are granted an opportunity to
submit supporting material). Plaintiff had the opportunity to submit supporting materials, and,
indeed, submitted his opposition to Defendants’ summary judgment motion in the form of a
sworn affidavit. (Dkt. 42.) Accordingly, the Court finds it proper to convert the motion to one
for summary judgment with respect to Plaintiff’s remaining Bivens claims against Individual
Defendants Dr. Newland, Dr. Borecky, MLP Rios, and MLP Rosa.
Additionally, because Plaintiff did not oppose Defendants’ 56.1 Statement (Dkt. 41-4) by
submitting a counterstatement, despite notice that failure to do so could result in all of the facts
set forth therein being deemed admitted, the Court deems Defendant’s 56.1 Statement
unopposed, and all of the facts contained therein as admitted. Nevertheless, the Court has
considered Plaintiff’s opposition to Defendants’ motion in determining whether Plaintiff’s
factual assertions raise genuine issues of material fact.
tuberculosis, whether Plaintiff was exposed to tuberculosis, or whether he contracted
tuberculosis. Indeed, as discussed infra, the undisputed evidence does not show that Plaintiff
was exposed to tuberculosis while at the MDC.
21
A.
Deprivation of Medical Treatment under the Eighth Amendment
To establish a claim for violation of Eighth Amendment rights arising from inadequate
medical treatment, a plaintiff must demonstrate that the defendants exhibited “‘deliberate
indifference to [his] serious medical needs.’” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
The standard for deliberate
indifference consists of a subjective and an objective component. “First, the alleged deprivation
must be, in objective terms, ‘sufficiently serious,’” and the subjective component requires that
the defendant “must act with a sufficiently culpable state of mind.” Id. (citing Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)).
“An official acts with the requisite deliberate
indifference when that official ‘knows of and disregards an excessive risk to inmate health or
safety’” which requires that “‘the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Here, even liberally construing the Complaint, along with the allegations contained in
Plaintiff’s opposition to the present motion, Plaintiff’s allegations do not raise a genuine issue of
triable fact as to his Eighth Amendment claims. Upon any reading of the Complaint and
Plaintiff’s opposition, it is readily apparent that Plaintiff received timely and substantial medical
treatment on numerous occasions, and was never denied access to medical care and treatment.
Plaintiff fails to raise a genuine dispute that the care he received at the MDC was inadequate or
that any act or omission by the Individual Defendants constituted a deprivation, in objective
terms, of necessary medical treatment. At best, Plaintiff alleges that he experienced pain during
the course of his medical treatment and that he was personally dissatisfied with the treatment he
received at the MDC, and, at some point, wanted to be treated by an outside medical
22
professional. (Dkt. 42 at ECF 3–4; Dkt. 1-3 at ECF 3–6.) Such disagreement or preference for
treatment of one’s own choosing, absent allegations demonstrating deliberate indifference, is
inadequate to give rise to a constitutional claim. See Armstrong, 143 F.3d at 703 (“It is wellestablished that mere disagreement over the proper treatment does not create a constitutional
claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different
treatment does not give rise to an Eighth Amendment violation.”). Construed in the light most
favorable to Plaintiff, there is inadequate factual material to satisfy either the objective
component of the inquiry, i.e., that the Individual Defendants deprived Plaintiff of adequate or
necessary medical treatment, or the subjective component, i.e., that the Individual Defendants
acted with deliberate indifference to Plaintiff’s medical needs. Additionally, Plaintiff adduces no
evidence that “the medical attention rendered [was] so woefully inadequate as to amount to no
treatment at all,” which could substitute for a finding of deliberate indifference. Johnson v.
Wright, 234 F. Supp. 2d 352, 360 (S.D.N.Y. 2002) (quoting Westlake v. Lucas, 537 F.2d 857,
860 n.5 (6th Cir. 1976)).
With respect to Plaintiff’s Bivens claims as to the remaining Individual Defendants, Drs.
Newland 17 and Borecky and MLPs Rios and Rosa, based upon the Court’s review of the record,
there are no genuine issues of material fact that could give rise to a finding that these Individual
Defendants violated Plaintiff’s Eighth Amendment rights. The undisputed record reveals that
Plaintiff frequently sought, and timely received, adequate medical treatment for his health
complaints. Again, that Plaintiff may have experienced pain during certain medical procedures
performed by these Individual Defendants does not provide a sufficient basis for Plaintiff’s
17
Plaintiff’s claims against Dr. Newland also are dismissed pursuant to FRCP 12(b)(5) for
insufficient service of process. Plaintiff has not demonstrated that Dr. Newland ever was
properly served.
23
claims that he was provided inadequate medical care or that the Individual Defendants were
negligent or deliberately indifferent in providing him medical treatment. 18 (See, e.g., Dkt. 42 at
ECF 3 (alleging that MLP Rosa caused Plaintiff “unbelievable pain and suffering” when she
drained fluid from an infected area on Plaintiff’s leg).) See Armstrong, 144 F.3d at 703 (“[T]he
deliberate indifference standard requires the plaintiff to prove that the prison official knew of and
disregarded the plaintiff’s serious medical needs.”).
With respect to the only instance where Plaintiff alleges he was denied medical treatment,
Plaintiff claims that Dr. Newland declined to provide medical treatment relating to Plaintiff’s
buttocks infection after Plaintiff refused to allow Dr. Newland to examine Plaintiff’s anus. (Dkt.
42 at ECF 3.) However, Plaintiff does not allege that Dr. Newland’s purported refusal to treat
Plaintiff, on this one occasion, resulted in any injury or other adverse results to Plaintiff, such as
exacerbated symptoms, additional infection, or further pain and suffering.
Plaintiff also alleges that he was exposed to tuberculosis while at the MDC, but sets forth
no allegation that he ever contracted tuberculosis or received inadequate treatment for the
exposure. (See Dkt. 42 at ECF 3.) Indeed, Plaintiff’s only allegation with respect to his
purported exposure is that Defendants Cuyler, Edwards, and McMillan “put an inmate in my
(two man) cell that was suffering from tuberculosis.” Id. Furthermore, the undisputed record
shows that (1) Plaintiff had a history of tuberculosis prior to his incarceration at the MDC (St. ¶¶
2–3); (2) Plaintiff was treated with anti-tuberculosis drugs as a precautionary measure due to
Plaintiff’s latent tuberculosis and his belief that he had been exposed (St. ¶¶ 44–45); and (3)
Plaintiff never tested positive for active tuberculosis while incarcerated at the MDC or after
18
Plaintiff’s bare allegation that the procedure resulted in “The infection spread[ing] over his
body for 3 years” (Dkt. 42 at ECF 1) is baseless and unsupported by the record, which indicates
Plaintiff’s leg lesions were healed.
24
being transferred to FCI Williamsburg. (See Dkt. 41-2; St. ¶ 3.) 19 Plaintiff’s bare allegation that
he was placed in the same prison cell as another inmate who Plaintiff believed had tuberculosis
does not raise a genuine issue of fact requiring a trial. Accordingly, the Court grants summary
judgment in favor of Individual Defendants Dr. Newland, Dr. Borecky, MLP Rios, and MLP
Rosa with respect to Plaintiff’s claims that they violated Plaintiff’s Eighth Amendment rights
with respect to his alleged exposure to tuberculosis at the MDC.
CONCLUSION
For the reasons stated above, Plaintiff’s Complaint is dismissed in its entirety. The Clerk
of Court respectfully is directed to enter judgment in favor of Defendants and terminate this
matter. Plaintiff’s claims are dismissed with prejudice because amendment would be futile.
“While district courts should generally not dismiss pro se claims without affording leave to
amend, it need not do so when amendment would be futile.” Cancel v. New York City Human
Resources Admin./Dep’t of Soc. Servs., 527 Fed. App’x 42, 44 (2d Cir. 2013) (citing Cuoco v.
Moritsugu, 222 F.3d 99, 112) (2d Cir. 2000) (holding that amending the complaint would be
futile where the complaint did not indicate that “plaintiff has a claim that she has inadequately or
inartfully pleaded and that she should therefore be given a chance to reframe”). The Clerk of
Court respectfully is directed to terminate this matter.
SO ORDERED:
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: September 29, 2014
Brooklyn, New York
19
Indeed, Plaintiff’s only test for tuberculosis in the record was negative. (Dkt. 41-2 at ECF 15.)
25
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