Jimenez v. United States of America

Filing 14

MEMORANDUM AND ORDER: As set forth in the Court's June 19, 2017 Memorandum and Order, Plaintiff's motion 6 for leave to proceed in forma pauperis is granted. Plaintiff's Bivens claims against the United States, Bureau of Prisons, an d Metropolitan Detention Center are dismissed. Plaintiff is granted 30 days' leave from the date of this Order to file a second amended complaint under the Federal Tort Claims Act ("FTCA"). See attached Memorandum and Order for details. The Clerk of the Court is respectfully requested to serve a copy of this Memorandum and Order on the pro se Plaintiff. Ordered by Judge LaShann DeArcy Hall on 6/19/2017. (Zdanys, Joanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHARLIE JIMENEZ,
Plaintiff,

NOT FOR PUBLICATION

MEMORANDUM AND ORDER
16-CV-7089 (LDH) (RLM)

-againstUNITED STATES OF AMERICA;
METROPOLITAN DETENTION CENTER;
BUREAU OF PRISONS (BOP),
Defendants.
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LASHANN DEARCY HALL, United States District Judge:
Plaintiff Charlie Jimenez, currently incarcerated at the Federal Correctional Institution Otisville, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s request to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. For the reasons discussed
below, Plaintiff’s claims are dismissed. Plaintiff is granted 30 days’ leave to file a second
amended complaint as set forth below.
BACKGROUND
On October 8, 2015, Plaintiff was allegedly hit on the head by a falling pipe in the
laundry room at the Metropolitan Detention Center because correction officers had allowed other
inmates to use the pipes “as a pull up bar.” (See Am. Compl. at 4.) 1 Plaintiff states that he has
pain in his head, neck, and lower back, and also suffers from “dizziness, headaches, depression,
sleepless nights, blurry vision, lost [sic] of appetite, sensitivity to light, forgetfulness, [and]
mental anguish.” (Id.) Plaintiff further alleges that he “received inadequate medical care.” (Id.)
Plaintiff seeks “money damages and proper medical treatment.” (Id. at 5.)

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The Court refers to the page numbers assigned by the Court’s Electronic Case Filing (“ECF”) system.

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STANDARD OF REVIEW
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). 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).
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(a). Furthermore, 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
Plaintiff’s pro se complaint liberally and interpret it to raise the strongest arguments it suggests.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d
185, 191 (2d Cir. 2008).
DISCUSSION
I.

Bivens Claims
Plaintiff complains that his rights were violated by persons acting under color of federal

law. As such, the Court construes those claims as being brought under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme
Court recognized an implied private cause of action for damages against federal officers who
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violate a citizen’s constitutional rights. See id. at 389. A Bivens action is the federal analog to
an action against a state actor under 42 U.S.C. § 1983, though the two types of cases are not
entirely parallel. Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) (noting that a Bivens action is
the federal analog to claims against state actors brought under § 1983); Tyler v. Dunne, No. 16cv-2980, 2016 WL 4186971, at *2 (E.D.N.Y. Aug. 8, 2016) (determining that § 1983 claims
against federal actors should be characterized as Bivens claims).
Here, Plaintiff brings his claims against three Defendants: the United States, the Bureau
of Prisons, and the MDC. As a threshold matter, suits against these Defendants, as well as
officers in their official capacities, are barred under the doctrine of sovereign immunity. See
Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (stating that sovereign immunity
shields the Federal Government and its agencies from suit); Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 510 (2d Cir. 1994). Without a waiver of sovereign immunity, federal courts
lack subject matter jurisdiction over a plaintiff’s claims against the United States or agencies
thereof. See Fed. Deposit Ins. Corp, 510 U.S. at 475 (noting requirement of waiver). It is the
plaintiff’s burden to demonstrate that sovereign immunity has been waived. See Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000) (plaintiff must “establish[] that her claims fall
within an applicable waiver”). Here, Plaintiff has failed to demonstrate the requisite waiver of
sovereign immunity by the United States. Accordingly, Plaintiff’s Bivens claims are barred.
Further, even if the doctrine of sovereign immunity did not bar Plaintiff’s Bivens claims,
they would be dismissed because Plaintiff has not alleged Defendants’ personal involvement in
the alleged violation of his rights. A Bivens action lies against a defendant only when the
plaintiff can show the defendant’s personal involvement in the alleged constitutional violation.
See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009) (“Because vicarious liability is inapplicable to
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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.”). Here, the Court cannot
discern the constitutional rights that Plaintiff alleges were violated. Further, Plaintiff does not
allege any personal involvement or name any individual federal officials as a Defendant. Thus,
his Bivens claims against the United States, the Bureau of Prisons and the Metropolitan
Detention Center are dismissed.
II.

Federal Tort Claims Act
Notwithstanding the above, Plaintiff may have a claim against the United States under the

Federal Tort Claims Act (“FTCA”). The FTCA provides for a suit for damages for injury or loss
of property “resulting from the negligence 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). The United States has waived its sovereign immunity for these certain classes of
tort actions and is the only proper defendant. 28 U.S.C. §§ 2679, 1346(b)(1). This waiver is
contingent, however, on the plaintiff having previously presented his or her claim to the
appropriate federal agency and on that agency’s having denied the claim. 28 U.S.C. § 2675(a)
(“An action shall not be instituted . . . [u]nless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been finally denied by the agency in
writing and sent to him by certified or registered mail.”). 2 This exhaustion requirement is

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The FTCA further provides:
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

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jurisdictional and cannot be waived. Celestine v. Mount Vernon Neighborhood Health Center,
403 F.3d 76, 82 (2d Cir. 2005) (citing McNeil v. United States, 508 U.S. 106, 113 (1993));
Rosenblatt v. St. John’s Episcopal Hosp., No. 11-cv-1106, 2012 WL 294518, at *8 (E.D.N.Y.
Jan. 31, 2012). Here, Plaintiff’s references “Administrative Claim Number TRT-NER2016.01413” in his original one-page complaint, but it is unclear as to what claim it refers or
whether Plaintiff received a final agency decision. (See Compl. at 1, ECF No. 1.) This claim is
therefore dismissed.
CONCLUSION
Plaintiff’s Bivens claims against the United States, Bureau of Prisons, and the
Metropolitan Detention Center are dismissed. 28 U.S.C. § 1915A. Plaintiff is granted 30 days’
leave from the date of this Order to file a second amended complaint. Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000).
Plaintiff should provide facts that demonstrate that he satisfies the elements of an FTCA
claim against the United States. It may be helpful for Plaintiff to append any documents
concerning his administrative claim to the second amended complaint. Plaintiff must also
identify each individual Defendant in both the caption and the body of the second amended
complaint, and name as proper Defendants those individuals who have some personal
involvement in the actions he alleges occurred. Plaintiff must set forth factual allegations that
are personal to him to support his claims against all individually named Defendants. Even if
Plaintiff does not know the names of the individuals, he may identify each of them as John Doe

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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or Jane Doe along with their titles (for example, Police Officer John Doe or Correction Officer
Jane Doe). To the best of his ability, Plaintiff should describe each individual and the role he or
she played in the alleged deprivation of Plaintiff’s rights. Plaintiff should also provide the dates
and locations for each relevant event.
Plaintiff is advised that any second amended complaint he files will completely replace
his original and amended complaints. Plaintiff’s second amended complaint must be captioned
as “SECOND AMENDED COMPLAINT” and bear the same docket number as this Order. All
further proceedings shall be stayed for 30 days for Plaintiff to comply with this Order. If
Plaintiff fails to comply with this Order in the time allowed, a judgment shall be entered closing
this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for purpose of
an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

__/s/ LDH___________
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
June 19, 2017

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