Graham v. Metropolitan Detention Center

Filing 7

ORDER granting 4 Motion for Leave to Proceed in forma pauperis. Plaintiff's claim against defendant MDC is dismissed for lack of subject matter jurisdiction. Plaintiff must timely comply with the administrative exhaustion requirements of the Bureau of Prisons, the Prison Litigation Reform Act, and the Federal Tort Claims Act, and timely refile a complaint in federal court. Judgment shall enter dismissing this action. 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, 269 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to serve a copy of this Memorandum and Order on pro se plaintiff, enter judgment for defendant, and note service on the docket within two days of the date of this Order. Ordered by Judge Kiyo A. Matsumoto on 9/8/2014. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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COLLETTE GRAHAM,
MEMORANDUM AND ORDER
14 CV 4831 (KAM)(RLM)

Plaintiff,
-againstMETROPOLITAN DETENTION CENTER,
Defendant.
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MATSUMOTO, United States District Judge:

Plaintiff Collette Graham (“plaintiff”), currently incarcerated at the Metropolitan
Detention Center (“MDC”), brings this pro se complaint and alleges negligent maintenance of a
fitness bicycle and inadequate medical care while a prisoner at the MDC. (See ECF No. 1,
Complaint filed 8/12/14 (“Compl.”).) As the named defendant is a federal agency, the court
construes plaintiff's complaint under the Federal Tort Claim Act, 28 U.S.C. §§ 2671 et seq. and
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted.
Plaintiff’s claim, discussed below, against defendant MDC is dismissed for lack of subject
matter jurisdiction. Fed. R. Civ. P. 12(h)(3). Plaintiff must timely comply with the administrative
exhaustion requirements of the Bureau of Prisons, see 28 C.F.R. § 542.10 et seq., the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), and the Federal Tort Claims Act, and
timely refile a complaint in federal court.
Background
Plaintiff alleges that on June 20, 2014, she was using a fitness bike at MDC when her foot
slipped, causing her to sustain a severe laceration on her shin. (Compl. at 1.) Plaintiff states that
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the laceration was 15 inches long and was close to the bone. (Id. at 2.) Plaintiff avers that she
was not seen by medical staff until July 23, 2014, and at that time she received a tetanus shot.
(Id.) Plaintiff alleges that her shin is permanently scarred from her injury and that the fitness bike
was negliegently maintained. (Id. at 3.) She seeks monetary damages in the amount of $350,000.
(Id.)
Standard of Review
Under 28 U.S.C. § 1915A, 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 of a governmental entity.” 28
U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner’s complaint sua sponte if
the complaint is “frivolous, malicious, or fails 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.1 (2d Cir. 1999) (noting that under PLRA, sua sponte dismissal of
frivolous prisoner complaints is not only permitted but mandatory); see also Tapia-Ortiz v.
Winter, 185 F.3d 8, 11 (2d Cir. 1999).
Moreover, at the pleadings stage of the proceeding, the court must assume the truth of “all
well-pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
A complaint must plead sufficient facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
It is axiomatic that pro se complaints are held to less stringent standards than pleadings
drafted by attorneys and the court is required to read the plaintiff's pro se complaint liberally and

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interpret it to raise the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007);
Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185,
191-93 (2d Cir. 2008).
Discussion
In Bivens, the Supreme Court created an implied right of action where an individual
alleges a federal official violated his or her constitutional rights. Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 66 (2001). A Bivens cause of action “is the federal analog to suits brought against
state officials under . . . 42 U.S.C. § 1983.” Iqbal, 556 U.S. at 683. The constitutional standard of
review for Bivens actions is the same as for claims brought under 42 U.S.C. § 1983. Tavarez v.
Reno, 54 F.3d 109, 110 (2d Cir. 1995).
Sovereign Immunity
The United States and its agencies have sovereign immunity from suit and can only be
sued with their consent and under the terms Congress may impose. United States v. Sherwood,
312 U.S. 584 (1941); Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004). Without a
waiver of sovereign immunity, a district court lacks subject matter jurisdiction to hear a claim.
See Liranzo v. U.S., 690 F.3d 78, 84 (2d Cir. 2012) (“The United States, as sovereign, is immune
from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court
define that court's jurisdiction to entertain the suit.”).
Bivens actions do not lie against the United States, federal agencies, or federal employees
sued in their official capacities. See, e.g., FDIC v. Meyer, 510 U.S. 471, 484–86 (1994);
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (noting that Bivens
claims “must be brought against the federal officers involved in their individual capacities.”).
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Thus, where a Bivens action is filed against the United States, its agencies, or its employees in
their official capacities, the court lacks jurisdiction to hear the claim and the action must be
dismissed. See Jordan v. Federal Bureau of Prisons, No. 09 CV 8561, 2013 WL 1143617, at *4
(S.D.N.Y. Mar. 19, 2013) (dismissing claims against BOP, a federal prison and prison officer
under FRCP 12(b)(1) because sovereign immunity had not been waived and the court therefore
lacked subject matter jurisdiction). Accordingly, this Court lacks subject matter jurisdiction over
plaintiff’s claims for monetary damages against the Metropolitan Detention Center. See 28
U.S.C. § 1915A.
A plaintiff can pursue constitutional tort claims against federal officials in their personal
capacities. Robinson, 21 F.3d at 510. However, a Bivens action lies against an individual
defendant only when the plaintiff can show the defendant's personal involvement in the
constitutional violation. See, e.g., Iqbal, 556 U.S. at 676 (“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.”); Thomas
v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (“[I]n Bivens actions, a plaintiff must allege that the
individual defendant was personally involved in the constitutional violation.”). Moreover, a
plaintiff in federal custody must first timely exhaust administrative remedies before commencing
a federal court action. See 42 U.S.C. § 1997e(a); 28 C.F.R. § 542.10 et seq.; Porter v. Nussle, 534
U.S. 516, 532 (2002); Torres v. Anderson, 674 F. Supp. 2d 394, 397 (E.D.N.Y. 2009). Here,
plaintiff’s complaint fails to allege that administrative remedies were exhausted and fails to name
any individual defendant or allege any facts to support a claim that any potential Jane or John Doe
defendants had any direct involvement with, knowledge of, or responsibility for the alleged
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deprivation of plaintiff’s civil rights.
Federal Tort Claims Act
Read liberally, plaintiff’s complaint may state a claim under the Federal Tort Claims Act
(“FTCA”). Although the United States is generally entitled to sovereign immunity from suit, the
FTCA grants subject matter jurisdiction to federal courts over claims against the United States
seeking money damages for personal injury caused by the negligence of federal employees while
acting within the scope of their employment. 28 U.S.C. § 1346(b)(1); see Celestine v. Mount
Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005). The FTCA requires a claimant
to exhaust administrative remedies prior to initiating an FTCA action in federal court, a
“requirement [that] is jurisdictional and cannot be waived.” Celestine, 403 F.3d at 82. Before
initiating an FTCA action in federal district court, a claimant must file an administrative tort claim
with the appropriate federal agency within two years of the date of the claim's accrual. 28 U.S.C.
§§ 2401(b), 2675(a); Genao v. United States, No. 08 CV 878, 2010 WL 3328017, at *1 (E.D.N.Y.
Aug. 19, 2010). If the agency denies the claim within six months after it is filed, the claimant
must then initiate an FTCA action in a district court (or seek reconsideration from the agency)
within six months of the notice of denial of the claim. Genao, 2010 WL 3328017, at *1. If the
claimant fails to timely comply with the FTCA's exhaustion requirement and timely commence an
action in federal court, the claim is forever barred. Id.; 28 U.S.C. § 2401(b).1 Here, there is no

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“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).

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indication that plaintiff filed an administrative tort claim prior to initiating the instant action and
consequently the court lacks subject matter jurisdiction over plaintiff’s negligence claims.
Conclusion
Accordingly, plaintiff's claim against the Metropolitan Detention Center is dismissed for
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); 28 U.S.C. § 1915A. To the extent
that plaintiff seeks to assert a Bivens claim against prison officials for allegedly inadequate
medical treatment and negligent claims, she must first exhaust her administrative remedies. Any
amended complaint filed timely in this court must name individual defendants if plaintiff wishes
to pursue Bivens claims. Cruz v. Gomez, 202 F.3d 593, 597–98 (2d Cir. 2000). If plaintiff
wishes to bring claims against a defendant and does not know the name of the individual, she may
identify each of them as John or Jane Doe, and to the best of her ability describe each individual
and the role he or she played in the alleged deprivation of plaintiff’s rights. Further, plaintiff is
reminded that prior to initiating an FTCA action in federal district court, she must timely file an
administrative tort claim with the appropriate federal agency.
Plaintiff is advised that an amended complaint does not simply add to the first complaint.
Once an amended complaint is filed, it completely replaces the original. Therefore, plaintiff must
include in the amended complaint all the necessary information that was contained in the original
complaint. The amended complaint must be captioned as an “Amended Complaint” and bear the
same docket number as this order.
Judgment shall enter dismissing this action. 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, 269 U.S. 438, 444–45 (1962).
The Clerk of Court is respectfully requested to serve a copy of this Memorandum and Order on
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pro se plaintiff, enter judgment for defendant, and note service on the docket within two days of
the date of this Order.
SO ORDERED.
______/s/________________
KIYO A. MATSUMOTO
United States District Judge
Dated: Brooklyn, New York
September 8, 2014

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