Elorreage v. Belcher et al

Filing 8

MEMORANDUM AND ORDER: Plaintiff's 1 application to proceed in forma pauperis is granted. Plaintiff's claims against the MDC and the United States Diplomatic Security Service are dismissed for failure to state a claim purs uant to 28 U.S.C. § 1915(e)(2)(B). No summonses shall issue against those defendants. The Clerk of Court is directed to amend the caption to reflect their dismissal. To the extent that plaintiff seeks to pursue a remedy pursuant to the FTCA, he may file an amended complaint in which he also names the United States as a defendant. Accordingly, the Court requests that the United States Attorney for the Eastern District of New York ascertain the full name of the individual whom plaintiff has partially identified as the director of the MDC medical staff and to provide the address where she may be served, within 45 days of the date of this Order. Once this information is provided, plaintiff's complaint shall be deemed amended to reflect the defendant's full name, a summons shall be issued, and the Court shall direct service on the defendant. The Court refers this matter to Magistrate Judge for pretrial supervision. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith; therefore, in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Allyne R. Ross, on 8/27/2012. C/mailed by Chambers. Electronic Service upon the U.S. Attorney's Office, re: 2 Complaint and this 8 Memorandum and Order. (Metropolitan Detention Center; and U.S. State of Diplomatic Security - terminated.) (Latka-Mucha, Wieslawa)

y/F

FILED

IN CLERK's OFFICE
U.S. DfSTRIO't C(")URT E.D.N.Y.

*

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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)(

EDWARD ERIC ELORREAGE,

AUG'2 7 2012

*

BROOKLYN OFFICE
12-CV-3344 (ARR)

Plaintiff,

NOT FOR ELECTRONIC
OR PRINT PUBLICATION

-againstMEMORANDUM AND
ORDER

METRO PO LIT AN DETENTION CENTER; JANE DOE,
Director of Medical Staff of M.D. C.; U.S. STATE OF
DIPLOMA TIC SECURITY; and SPECIAL AGENT
CRAIG S. BELCHER,
)(

Defendants.

ROSS, United States District Judge:
On June 5, 2012, Edward Eric Elorreage ("plaintiff'), filed this pro se complaint in the
United States District Court for the Southern District of New York. It was transferred to this
court on July 6, 2012. Plaintiff's application to proceed in forma pauperis is granted. The
Metropolitan Detention Center ("MDC") and the "U.S. Department of Diplomatic Security,,1 are
dismissed as defendants. Plaintiff's claims against defendant Special Agent Craig S. Belcher and
Jane Doe, the director of the MDC's medical staff, may proceed.

BACKGROUND
It is difficult to comprehend fully the nature of plaintiff's claims. Plaintiff alleges that he

was arrested on March 23, 2011, and thrown to the ground "by the federal officer," presumably
Special Agent Craig Belcher. Compi.

~

lILA. He states that he had a pre-existing condition, that

he "fe[lt] like something rip[pped] off inside" when he was arrested, and that he was accused of
"pretending" when he told the arresting officers about it. Id. Plaintiff states that he was taken to
The court assumes this to be a reference to the United States Diplomatic Security Service, the law
enforcement arm of the Department of State.

I

the MDC and seen by a nurse on the day of his arrest. CompI. ~ III.C. They allegedly ignored
his requests for "the right medical treatment." Id.
That same day, Plaintiff was arraigned in a criminal proceeding before this court, United
States v. FNU LNU, a/k!a Edward Eric Elorreage, etc., No. ll-CR-242 (ARR). He states that I
sent a memorandum to the facility after I saw his condition and that the MDC's medical director
accused him of manufacturing the memorandum and forging my signature. Id.
Plaintiff further alleges that, on December 11, at about 4:00 a.m., he lost his balance and
fell to the ground, face first. CompI. ~ IV. He was seen by medical staff at the facility, who tried
"to push the knot that I have on my abdominal area by force." Id. At his insistence, plaintiff was
eventually taken to the hospital, where he had "a major operation." Id. After the operation, the
doctor told him that there would be complications and that he would be unable to work. Id.
Plaintiff seeks $10 million in compensation for the trauma that he suffered and because
he is "no [longer] able to work." CompI. ~ V.
DISCUSSION

I.

Standard of Review
A district court "shall review, before docketing, if feasible or, in any event, as soon as

practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee ofa governmental entity." 28 U.S.C. § 1915A. The
court is required to read a plaintiffs pro se complaint liberally and to interpret it as raising the
strongest arguments it suggests, particularly where, as here, plaintiffs complaint may be read to
allege civil rights violations. Erickson v. Pardus, 551 U.S. 89,94 (2007); Sealed Plaintiffv.
Sealed Defendant #1,537 F.3d 185, 191 (2d Cir. 2008). Upon review, however, a district court
shall dismiss a prisoner's complaint sua sponte if the complaint is "frivolous, malicious, or fails

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to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant
who is immune from such relief." Id.; Liner v. Goord, 196 F.3d 132, 134 & n.l (2d Cir. 1999)
(noting that, under PLRA, sua sponte dismissal of frivolous prisoner complaints is mandatory).
Similarly, a district court shall dismiss an in forma pauperis action where it is satisfied that the
action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. §
1915(e)(2)(B).
II.

Constitutional Claims
Plaintiff s claims may be construed as claims for excessive force and deliberate

indifference to his medical needs under the Fourth, Fifth, and Eighth Amendments. I Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), permits
recovery for certain constitutional violations by federal agents in the absence of any statute
conferring such a right. Carlson v. Green, 446 U.S. 14, 18 (1980). Like actions brought against
state officials pursuant to 42 U.S.C. § 1983, Bivens claims must be brought against the
individuals personally responsible for the alleged deprivation of plaintiff s constitutional rights
and not against the federal government or its agencies. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948
(2009) ("Because the doctrine of respondeat superior does not apply in Bivens actions, a plaintiff
must allege that "each Government-official defendant, through the official's own individual
actions, has violated the Constitution.") Plaintiffs claims against the MDC and the Diplomatic
Security Service must, therefore, be dismissed. Because plaintiff levies specific allegations

I To the degree that some of plaintiffs claims of inadequate medical care appear to arise from his period of pre-trial
detention, those claims are properly addressed under the Fifth Amendment's Due Process Clause, rather than the
Eighth Amendment. "This distinction is not significant, however, since the analysis ofa pre-trial federal detainee's
claim of deliberate indifference to his medical needs under the Due Process Clause of the Fifth Amendment is the
same as that for a convicted federal inmate under the Eighth Amendment." Gumbs v. Dynan, No. ll-CV-857, 2012
U.S. Dist. LEXIS 120664, at *30 (E.D.N.Y. Aug. 26, 2012)

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against the MDC's medical staff director and Special Agent Belcher, plaintiffs claims against
them may proceed.
III.

Possible Claims Under the Federal Tort Claims Act
In light ofplaintiffs pro se status, the court has also considered whether his claims could

be brought under the Federal Tort Claims Act ("FTCA"). The FTCA waives sovereign
immunity and permits some suits for damages against the United States "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). In order to bring a claim in federal district court pursuant to the FTCA, a claimant
must first exhaust his administrative remedies within the appropriate federal agency, see 28
U.S.C. § 2675(a); Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76,82 (2d
Cir. 2005), and he must name the United States as the defendant. In this case, plaintiff has not
indicated whether he has exhausted his claims by filing an administrative claim with the relevant
agencies and what resolution, if any, he received. Accordingly, it is impossible to determine if
his claim was properly exhausted, such that plaintiff could pursue relief under the FTCA.
CONCLUSION

Plaintiff s claims against the MDC and the United States Diplomatic Security Service are
dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). No summonses
shall issue against those defendants. The Clerk of Court is directed to amend the caption to
reflect their dismissal.
To the extent that plaintiff seeks to pursue a remedy pursuant to the FTCA, he may file an

4

amended complaint in which he also names the United States as a defendant. The amended
complaint must provide information about any administrative tort claims he has pursued or other
efforts he has made to exhaust his administrative remedies. He should also include any available
documentary evidence. Plaintiff is reminded that any amended complaint he files will
completely replace his original complaint and must include all of the claims that he wishes to
pursue. It must be captioned "Amended Complaint" and shall bear the same docket number as
this order.
Plaintiff s claims shall proceed against the remaining defendants. The Clerk of Court is
directed to issue a summons to the named defendant and to mail a courtesy copy of this order and
the complaint to the United States Attorney for the Eastern District of New York. The United
States Marshals Service shall serve, on the named defendant, the summonses, together with
plaintiff s complaint and this order.
The United States Marshals Service will not be able to serve the Jane Doe defendant
without further identifying information. In Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per
curiam), the Second Circuit made clear that a pro se litigant is entitled to assistance from the
district court in identifying a defendant. Accordingly, the court requests that the United States
Attorney for the Eastern District of New York ascertain the full name of the individual whom
plaintiff has partially identified as the director of the MDC medical staff and to provide the
address where she may be served, within 45 days of the date of this order. Once this information
is provided, plaintiff s complaint shall be deemed amended to reflect the defendant's full name, a
summons shall be issued, and the court shall direct service on the defendant.
The court refers this matter to Magistrate Judge Lois Bloom for pretrial supervision.
The court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be

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taken in good faith; therefore, in forma pauperis status is denied for purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438,444-45 (1962).

SO ORDERED.

S/Judge Ross

{-S

Allyne R. Ro
United States
Dated:

August 2f,2012
Brooklyn, New York

6

lstnct Ju ge

SERVICE LIST:
Plaintiff:
Edward Erie Elorreage
168-30 Gothie Dr.
Jamaica, NY 11432