Giraldo v. United States Of America et al

Filing 40

ORDER granting 31 Motion to Dismiss for Lack of Jurisdiction. For the reasons discussed in the attached opinion, the Federal Defendants' motion to dismiss is granted. Ordered by Judge John Gleeson on 7/6/2015. (Levin, Sarah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION

ROQUE FELIX GENAO GIRALDO,
Plaintiff,
- versus -

MEMORANDUM
AND ORDER
14-CV-5568 (JG)

UNITED STATES OF AMERICA; BUREAU
OF PRISONS; METROPOLITAN
DETENTION CENTER; UNITED STATES
MARSHALS SERVICE; BROOKLYN
HOSPITAL,
Defendants.

A P P E A R A N C E S:
ROQUE FELIX GENAO GIRALDO
92071-054
Moshannon Valley Correctional Institution
555 Geo Drive
Philipsburg, PA 16866
Plaintiff pro se
KELLY T. CURRIE
Acting United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Dara A. Olds
Attorney for Federal Defendants
JOHN GLEESON, United States District Judge:
Roque Felix Genao Giraldo brings this action seeking damages from an injury he
sustained to his thumb while he was an inmate at the Metropolitan Detention Center (“MDC”).
He asserts claims against United States of America, the Bureau of Prisons, the MDC, and the
United States Marshals Service (together, the “Federal Defendants”), and Brooklyn Hospital. On
March 31, 2015, I dismissed Giraldo’s claims against Brooklyn Hospital. See Giraldo v. United

States, No. 14-CV-5568 (JG), 2015 WL 1476409 (E.D.N.Y. Mar. 31, 2015), ECF No. 35. The
Federal Defendants now move to dismiss for lack of subject matter jurisdiction. I heard oral
argument on May 13, 2015, at which Giraldo appeared by video conference. For the reasons
stated below, the Federal Defendants’ motion is granted.
I assume familiarity with the facts and legal standards as stated in my March 31
written opinion. Giraldo does not specify whether he asserts claims under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., or Eighth Amendment violations under 42
U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). I previously construed his complaint as bringing both causes of action, and state law
claims for medical malpractice and negligence as well. Giraldo, 2015 WL 1476409, at *1-2.
The Federal Defendants argue that Giraldo’s claims must be dismissed for lack of subject matter
jurisdiction because (1) the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126,
bars Giraldo’s claims; (2) Giraldo failed to exhaust administrative remedies under the FTCA;
and (3) Giraldo fails to state a claim for violation of his constitutional rights.
A.

The Inmate Accident Compensation Act
The Federal Defendants assert that the IACA bars Giraldo’s tort action. The

IACA provides “compensation to inmates or their dependents for injuries suffered in any
industry or in any work activity in connection with the maintenance or operation of the
institution in which the inmates are confined.” 18 U.S.C. § 4126(c)(4). This statutory scheme is
the exclusive remedy for prisoners who sustain work-related injuries while they are in prison.
United States v. Demko, 385 U.S. 149, 152-54 (1966); see also 28 C.F.R. § 301.319 (“Inmates
who are subject to the provisions of these Inmate Accident Compensation regulations are barred
from recovery under the Federal Tort Claims Act.”); Barrett v. Goldstein, No. 07-CV-2483

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(RJD) (LB), 2009 WL 1873647, at *4 (E.D.N.Y. June 29, 2009) (citing Demko, 385 U.S. at 152).
Courts in this Circuit have also found that the IACA serves as the exclusive remedy for inmates
“when a work-related injury is further aggravated by negligence or medical malpractice on the
part of prison medical personnel.” Barrett, 2009 WL 1873647, at *4 (quoting Moore v. United
States, No. 85-CV-1151, 1988 WL 70025, at *3 (N.D.N.Y. June 30, 1988)).
In Giraldo’s opposition to the defendants’ motion, he says that, “even thoug[h] the
accident that caused his injury had occurred during the timeframe of his work-shift,” the accident
“probably” was not work-related because it occurred “at lunch time in an area specifically
[designed] to eat . . . .” Pl. Opp. at 3you ca. However, in the affidavit submitted with Giraldo’s
opposition, he asserts that he sustained the injury in question “while working in the main kitchen
at MDC-BROOKLYN.” Id. at 15 (citing Pl. Aff., Feb. 2, 2015, ECF No. 28, ¶ 4).1 In the
affidavit, Giraldo says that the accident occurred while Giraldo was sitting down to eat lunch at
the scheduled time for inmate orderlies. Pl. Aff. ¶ 4.
Under the applicable regulations, an injury is “work-related” if it is “proximately
caused by the actual performance of the inmate’s work assignment.” 28 C.F.R. § 301.102(a).
See also Dunn v. U.S. Fed. Bureau of Prisons, No. 03-CV-1928 (JBA), 2006 WL 695805, at *34 (D. Conn. Mar. 20, 2006) (injuries were “work-related” under the IACA when sustained while
inmate was leaving her work area); Codianni-Robles v. United States, No. 04-CV-1725 (JCH),
2005 WL 2098837, at *1-2 (D. Conn. Aug. 29, 2005) (denying defendant’s motion to dismiss
because inmate’s injuries were not clearly “work-related” when she alleged she was walking to a
social gathering to discuss a work-related matter); Gomez v. Warden of Otisville Corr. Facility,
No. 99-CV-9954 (AGS), 2000 WL 1480478, at *1-2 (S.D.N.Y. Sept. 29, 2000) (inmate’s injuries

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In my opinion dismissing Brooklyn Hospital’s claims, I decided to consider Giraldo’s affidavit
submitted in opposition to Brooklyn Hospital’s motion as a supplement to his complaint.

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were clearly “work-related” when he was injured when walking from one work assignment to
another).
The Federal Defendants point to a series of cases in other circuits finding that the
IACA applies even if an inmate is on a break from work or traveling to or from a break when the
injury occurs. See Def. Reply at 3-4 (citing cases including Mays v. United States, No. 13-CV0522, 2013 WL 6709761, at *3 (M.D. Pa. Dec. 18, 2013) aff’d 567 F. App’x 81, 82 (3d Cir.
2014)). In Mays, the Third Circuit affirmed the district court’s decision that an inmate who
slipped and fell on a wet floor during a scheduled break time was limited to remedies prescribed
by the IACA. See 567 F. App’x at 81-82 (also citing Wooten v. United States, 437 F. 2d 79, 80
(5th Cir. 1971) (per curiam)). This exact set of facts has not yet been decided by the Second
Circuit. However, I am persuaded by the reasoning in Mays and by the cases from this Circuit
discussed above. Therefore, even if Giraldo were eating lunch during a scheduled break when he
sustained the injury to his thumb, he is limited to recovery under the IACA.
For these reasons, Giraldo’s tort claim under the FTCA is dismissed.2 To assert a
claim under the IACA, Giraldo must submit a claim to the Institution Safety Manager or
Community Corrections Manager between 45 and 15 days prior to his release. See 28 C.F.R. §
301.303(a); see generally 28 C.F.R. §§ 301.101-319. The claim may be filed by completing
form BP-AO658, which is available at http://www.bop.gov/policy/forms/BP_A0658.pdf.

B.

Giraldo’s Additional Claims
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Because I find that the IACA provides Giraldo’s exclusive remedy for his tort action against the
United States, I need not consider the additional evidence submitted by the Federal Defendants in support of their
argument that Giraldo failed to exhaust administrative remedies under the FTCA. See Fed. Def. Ex. A, ECF No. 33
(Bork Decl.). Giraldo admits he “probably” did not exhaust the administrative remedies necessary under the FTCA
as stated in 28 U.S.C. § 2401(b). See Pl. Opp. at 15.

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The question of whether Giraldo may assert a Bivens claim against federal
officials in addition to his claim against the United States under the IACA has not been decided
by the Second Circuit. See Smith v. United States, 561 F.3d 1090, 1102 (10th Cir. 2009)
(concluding that the IACA did not preclude the plaintiff’s Bivens claim and noting that only the
Seventh Circuit has previously considered the issue). As the Tenth Circuit discussed in Smith,
the Supreme Court has held that a Bivens remedy may be available against prison officials even
where the inmate asserts a FTCA claim. Id. at 1099-1100 (citing Carlson v. Green, 446 U.S. 14,
18 (1980)). The issue has not been decided by the Supreme Court or the Second Circuit as it
relates to the availability of a Bivens claim when an inmate brings a claim under the IACA.
Assuming without deciding that Giraldo could bring a Bivens claim in addition to
the IACA claim, Giraldo’s Bivens claim would not survive a motion to dismiss. First, Giraldo
sued the United States and its agencies, and not the federal officials involved in his accident.
Bivens actions are properly asserted against federal officials, not the United States. See
Schweitzer v. Dep't of Veterans Affairs, 23 F. App’x 57, 59 (2d Cir. 2001); see also F.D.I.C. v.
Meyer, 510 U.S. 471, 485 (1994). Even if Giraldo had sued the prison officials who allegedly
caused the deprivation of rights, his Eighth Amendment claim would fail for the reason stated in
my March 31 opinion, i.e., the allegations fail to establish that the harm caused to Giraldo’s
thumb was sufficiently serious. See Giraldo, 2015 WL 1476409, at *3 (citing Barrett, 2009 WL
1873647, at *3).
Finally, because I grant the Federal Defendants’ 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

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exercise supplemental jurisdiction” over related state law claims if the court “has dismissed all
claims over which it has original jurisdiction”).
CONCLUSION
For the reasons discussed above, the Federal Defendants’ motion to dismiss is
granted. The Clerk is respectfully directed to close the case.

So ordered.

John Gleeson, U.S.D.J.
Dated: July 6, 2015
Brooklyn, New York

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