Giraldo v. United States Of America et al
ORDER granting 18 Motion to Dismiss for Failure to State a Claim: For the reasons stated in the attached opinion, Brooklyn Hospital's motion to dismiss is granted. Ordered by Judge John Gleeson on 3/31/2015. (Levin, Sarah)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION
ROQUE FELIX GENAO GIRALDO,
- versus -
UNITED STATES OF AMERICA; BUREAU
OF PRISONS; METROPOLITAN
DETENTION CENTER; UNITED STATES
MARSHALS SERVICE; BROOKLYN
A P P E A R A N C E S:
ROQUE FELIX GENAO GIRALDO
Moshannon Valley Correctional Institution
555 Geo Drive
Philipsburg, PA 16866
Plaintiff pro se
KAUFMAN BORGEEST & RYAN LLP
120 Broadway, 14th Floor
New York, NY 10271
Cristina La Marca
Rocco P. Matra
Attorneys for Defendant Brooklyn Hospital
JOHN GLEESON, United States District Judge:
Roque Felix Genao Giraldo brings this pro se action against the United States of
America, the Bureau of Prisons, the Metropolitan Detention Center (“MDC”), and the United
States Marshals Service (together, the “Federal Defendants”), and Brooklyn Hospital. He seeks
damages arising from an injury he sustained to his thumb while he was an inmate at the MDC.
Giraldo asserts that his claim is for “negligence” against the named defendants. He does not
specify whether he brings this action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
2671 et seq., or if he alleges Eighth Amendment violations under 42 U.S.C. § 1983 and Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), but I will construe his complaint as
bringing both of these causes of action, in addition to state law claims for medical malpractice
and negligence. Giraldo initially filed his complaint on July 22, 2014, in the Southern District of
New York; it was transferred to this district on September 17, 2014. ECF Nos. 1-2. Brooklyn
Hospital now moves to dismiss. I heard oral argument on March 18, 2015, at which plaintiff
appeared by telephone. For the reasons discussed below, Brooklyn Hospital’s motion to dismiss
For the purposes of this motion, I assume the facts alleged in Giraldo’s complaint
to be true. Giraldo alleges that, on an unspecified date and time, while working in the kitchen of
the MDC, he suffered an injury to his finger that was not given proper medical attention. He
alleges that the inattention to the injury caused him pain and permanent damage to his finger, and
that he would have fully recovered if only he had received proper medical attention at the time of
his injury. Giraldo alleges that upon his release, he will have limited job opportunities because
his skills will limit him to manual labor jobs but he is unable even to hold a fork or a pencil for
long periods of time. See Complaint (ECF No. 1, July 22, 2014).
In an “Affidavit in Support of the Plaintiff’s Complain[t]” submitted in opposition
to the motion, Giraldo specifies that the injury occurred in November 2013 to his left thumb. 1
Pl. Aff. (ECF No. 28, Feb. 2, 2015) ¶ 4. He asserts that he received an x-ray right after the
accident at the MDC, and the staff at the MDC gave him medication and a splint for his finger.
Although Giraldo did not seek leave to amend, with the consent of Brooklyn Hospital (expressed
at oral argument) I consider Giraldo’s affidavit a supplement to the complaint for purposes of this motion.
Then, months after the injury in (April 2014), Giraldo was taken to Brooklyn Hospital and had
images taken of his thumb, but he was sent home without receiving additional treatment. Several
weeks later, he went back to Brooklyn Hospital and had a specialist examine his thumb. The
specialist said that because he waited too long after suffering the injury, there was nothing he
could do; the pain and limited mobility in Giraldo’s thumb would be permanent. The specialist
also told Giraldo that he should have come to the hospital within nine days of his injury. Pl. Aff.
The Standard of Review
In order to survive a motion to dismiss, “a complaint must contain sufficient
factual matter . . . 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 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.” Id. (citing
Twombly, 550 U.S. at 556). The plaintiff therefore is obligated to “provide the grounds of his
entitlement to relief” with “more than labels and conclusions,” and “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quotation marks and
internal alterations omitted).
At the same time, a court must construe a pro se litigant’s pleadings liberally,
especially when those pleadings allege civil rights violations. Sealed Plaintiff v. Sealed
Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).
Brooklyn Hospital’s Motion to Dismiss
Giraldo asserts federal constitutional violations, medical malpractice, and
negligence claims against Brooklyn Hospital. The hospital moves to dismiss under Rule
12(b)(6) for failure to state a claim. It argues that it is not a state actor under § 1983, and even if
the allegations made against the Federal Defendants could be asserted against the hospital, those
allegations do not state a cognizable claim sufficient to survive a motion to dismiss.
Section 1983 Claims
Section 1983 imposes civil liability on any person who, under color of state law,
“subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction [of the United States] to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. It “does not
create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit
established elsewhere.” Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423
F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
Giraldo may assert constitutional violations against federal officials through a Bivens action.
“Bivens actions, however, do not provide for broad recovery from any person or entity alleged to
have violated a plaintiff’s rights under the Constitution or federal laws; recovery is permitted
only from individual federal officials.” Holland v. Pinkerton Sec., 68 F. Supp. 2d 282, 284
(S.D.N.Y. 1999) (citing Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991)).
Brooklyn Hospital argues that it is not a state actor under Section 1983. “[T]he
core purpose of § 1983 is ‘to provide compensatory relief to those deprived of their federal rights
by state actors.’” Hardy v. New York City Health and Hosps. Corp., 164 F.3d 789, 795 (2d Cir.
1999) (quoting Felder v. Casey, 487 U.S. 131, 141 (1988)). Usually, a private hospital will not
be considered a state actor. See Urena v. Wolfson, No. 09-CV-1107 (KAM) (LB), 2010 WL
5057208, at *10 (E.D.N.Y. Dec. 6, 2010) (citing White v. St. Joseph’s Hosp., 369 Fed. App’x
225, 226 (2d Cir. 2010) (“[P]rivate actors and institutions, such as . . . hospitals . . . are generally
not proper § 1983 defendants because they do not act under color of state law.”)); Sockwell v.
Bernstein, No. 07–CV–00866, 2007 WL 879582 at *2 (E.D.N.Y Mar. 21, 2007) (holding that a
private hospital cannot be sued under § 1983 or Bivens). In Urena, the district court granted
summary judgment for New York Downtown Hospital in a § 1983 case because it was
undisputed that the hospital was a “private medical institution.” Urena, 2007 WL, at *2.
If Brooklyn Hospital is also a “private medical institution,” it will not be
considered a state actor for purposes of § 1983 or Bivens. But if Giraldo could show Brooklyn
Hospital is a public hospital or a private hospital that has a contract to provide services to
inmates, the hospital may be considered a state actor. See West v. Atkins, 487 U.S. 42 (1988)
(holding that a private physician, under contract with the state to provide medical services to
inmates, was liable as a state actor under § 1983). I need not decide whether discovery into the
nature of Brooklyn Hospital’s status or relationship with the MDC is appropriate, however,
because even if it (or the doctor who evaluated Giraldo) were properly considered a state actor,
Giraldo has not stated a claim for a violation of his Eighth Amendment rights. 2 “The Cruel and
Unusual Punishments Clause of the Eighth Amendment imposes a duty upon prison officials to
ensure that inmates receive adequate medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d
Cir. 2006) (citation omitted). There are two requirements Giraldo must meet to establish an
Eighth Amendment violation. The first is an objective test with two components: was Giraldo
“actually deprived of adequate medical care”; and if so, was the alleged deprivation “sufficiently
serious.” Id. at 279-80. The second requirement is subjective, and asks whether the official
Because Giraldo is a convicted inmate (as he confirmed at oral argument), his claim is construed
as alleging violations of his Eighth Amendment protection against cruel and unusual punishment. Barrett v.
Goldstein, No. 07-cv-2483 (RJD) (LB), 2009 WL 1873647, at *2 (E.D.N.Y. June 29, 2009).
acted “with a sufficiently culpable state of mind,” or was deliberately indifferent to an inmate’s
health. Id. (citation omitted).
Giraldo’s allegations fail, as a matter of law, to satisfy the first prong of this test.
The harm caused to his thumb was not sufficiently serious. I consider several factors in making
this determination: “the existence of an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment[,] the presence of a medical condition that
significantly affects an individual’s daily activities[,] or the existence of chronic and substantial
pain.” See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citations and internal
alterations omitted). Giraldo alleges that he received medical treatment, suffered severe pain,
and that his injuries have affected his daily activities and his potential for finding employment
upon release. However, a broken finger is not “sufficiently serious” to state a claim under the
Eighth Amendment. See Barrett v. Goldstein, No. 07-cv-2483(RJD)(LB), 2009 WL 1873647, at
*3 (E.D.N.Y. June 29, 2009) (dismissing plaintiff’s claim on this basis).
Giraldo also fails the second prong of the test because he has not alleged that the
treating physician or anyone at Brooklyn Hospital acted with a culpable state of mind. He
acknowledges he received some treatment at the MDC and was seen later by a specialist at
Brooklyn Hospital, but the specialist said there was nothing that could be done. At most, Giraldo
only disagrees with the specialist’s decision. But “[i]t is well-established that the mere
disagreement over the proper treatment does not create a constitutional claim.” Chance, 143
F.3d at 703. Even if the treatment were negligent or constituted malpractice, that alone is not
enough. Id.; see also Barrett, 2009 WL, at *3 (“[M]ere malpractice allegations do not rise to the
level of a constitutional violation in the context of a Bivens claim.”) (citation omitted). For these
reasons, Giraldo’s § 1983 claim against Brooklyn Hospital is dismissed.
2. Conceivable State Law Claims
Brooklyn Hospital argues that to the extent Giraldo’s complaint can be read as
raising related state law claims, i.e., of negligence or medical malpractice, I should refrain from
exercising supplemental jurisdiction over it. I agree. Because I grant the hospital’s motion to
dismiss Giraldo’s federal claims, I decline to exercise supplemental jurisdiction over any related
state law claims discernible in Giraldo’s complaint. See 28 U.S.C. § 1367(c)(3) (district court
“may decline to exercise supplemental jurisdiction” over related state law claims if the court “has
dismissed all claims over which it has original jurisdiction”); United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as
I am mindful that federal claims still remain against other defendants, and that
those claims support supplemental jurisdiction over Giraldo’s state claims. However, those
claims—which are subject to a pending motion to dismiss by the Federal Defendants—appear to
suffer from the same disability that has resulted in the dismissal of the federal claim against
Brooklyn Hospital. In any event, the exercise of supplemental jurisdiction is discretionary, and I
decline to exercise it here with respect to Giraldo’s state law claims.
For the reasons discussed above, Brooklyn Hospital’s motion to dismiss is
John Gleeson, U.S.D.J.
Dated: March 31, 2015
Brooklyn, New York
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