Jensen v. United States of America

Filing 44

ORDER re 37 : For the reasons stated in the attached Memorandum and Order, Defendant's motion is granted in part and denied in part. Ordered by Judge Orelia E. Merchant on 3/6/2025. (RCC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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INGER JENSEN,
Plaintiff,
-against-

MEMORANDUM AND ORDER
22-CV-01116 (OEM) (PK)

UNTIED STATES OF AMERICA,
Defendant.
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ORELIA E. MERCHANT, United States District Judge:
Pro se Plaintiff Inger Jensen (“Plaintiff”) brings this action against Defendant the United
States of America (“Defendant”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346
et seq., and the Eighth Amendment’s prohibition on cruel and unusual punishment. See Second
Amended Complaint (“SAC”), ECF 33. Plaintiff alleges she received inadequate dental treatment
while housed at two United States Bureau of Prisons (“BOP”) facilities, the Federal Correctional
Institution in Danbury, Connecticut (“FCI-Danbury”) and the Metropolitan Detention Center, in
Brooklyn, New York (“MDC”), constituting medical malpractice, because the dental care she
received was “basic,” and she wanted to see a specialist. SAC ¶¶ 2, 20-23. Plaintiff also alleges
that FCI-Danbury had inadequate heating conditions during the winter of 2018-2019. Id. ¶¶ 4782. Further, Plaintiff alleges that FCI-Danbury had inadequate cooling on hot days, that the
incarcerated women at MDC were forced to wear oversized uniforms, and that FCI-Danbury and
MDC had unreliable visitation privileges, a prohibition on having pillows, and a practice of
allowing incarcerated individuals only one blanket during freezing winters, which amounted to
cruel and unusual punishment in violation of the Eighth Amendment. Id. ¶¶ 83-110.

Before the Court is the Defendant’s fully briefed motion to dismiss the SAC for lack of
subject-matter jurisdiction and for failure to state claims on which relief can be granted under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. 1
For the following reasons, Defendant’s motion is granted in part and denied in part.
BACKGROUND 2
A.

Plaintiff’s Allegations in Second Amended Complaint
1.

Alleged Inadequate Dental Care at FCI-Danbury and MDC

Plaintiff surrendered to FCI-Danbury in 2012 to begin her term of incarceration. Before
surrendering, “[Plaintiff] was diagnosed with progressive oral disease,” which “was documented
at FCI-Danbury and MDC.” SAC ¶ 10. During “all [her] years at FCI-Danbury,” Plaintiff was
regularly examined by dental staff regarding her gingivitis condition and the “increasing
deterioration of [her] teeth, gums, [and] jawline” but the staff provided her with only “basic
treatment” that consisted of “nothing more than minimal and routine maintenance.” Id. ¶¶ 16, 19.
According to Plaintiff, the staff knew that her condition required special treatment and that their
“recommended” treatment would not treat her condition, but instead actively worsen it. Id. ¶¶ 18,
20. Plaintiff further alleges that, despite her multiple requests to see a dental specialist, FCIDanbury staff denied her requests. Id. ¶ 19. Plaintiff alleges that “at every visit”, she urged the
staff to reconsider its course of treatment and “even offered” to pay herself to see a dental
specialist. Id. ¶¶ 22, 23.
Plaintiff states that, on an unspecified date, she was transferred from FCI-Danbury to MDC
. SAC ¶ 26. “For all [her] years at MDC[,]” Plaintiff alleges she also regularly saw the dental

Defendant’s Motion to Dismiss (“Def.’s Mot.”), ECF 37; Memorandum of Law (“Def.’s MOL”), ECF 39; Plaintiff’s
Response in Opposition (“Pl.’s Opp.”), ECF 41; Defendant’s Reply (“Def.’s Reply”), ECF 40.
2
Plaintiff’s factual allegations are taken as true only for the purpose of this motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1) standard. See supra at 9-11.
1

staff but received basic treatment, which did nothing to address her deteriorating dental condition,
of which the MDC staff were “fully aware.” Id. ¶¶ 27-30. She alleges that MDC staff ignored her
numerous requests to see a specialist. Id. ¶¶ 30-36.
Plaintiff asserts that she was transferred back to FCI-Danbury, but she does not provide a
timeframe. SAC ¶ 37. Plaintiff alleges that the FCI-Danbury staff eventually “approved [her]
request to see a specialist” but that bureaucratic infighting and red tape ultimately prevented her
from seeing that specialist. Id. ¶ 39. Plaintiff alleges that her last dental visit was in 2020, “just
prior to [her] release to [h]ome [c]onfinement.” Id. ¶ 41. Plaintiff alleges that, because of the
“basic treatment” she received at FCI-Danbury and MDC, she “suffered extensive, irreparable
bone loss in [her] jaw and had to have all of [her] teeth removed” and ultimately received dental
implants. Id. ¶ 44.
2.

Alleged Inadequate Heating Conditions at FCI-Danbury

Plaintiff states that she was incarcerated at FCI-Danbury during the 2018-2019 winter.
SAC ¶ 47. During that winter, Plaintiff alleges that “the heat [at FCI-Danbury] . . . stopped
working” and that instead of fixing the issue, FCI-Danbury staff “resorted to dangerous and
inhumane alternatives to heat the building.” Id. ¶¶ 48-49.
Specifically, Plaintiff alleges that FCI-Danbury staff installed “a makeshift heating system
that pumped chemical-ladened air . . . directly in the building” which “reeked of kerosene.” Id.
¶¶ 50-51. Plaintiff alleges that the makeshift system required the building’s exterior doors “to
remain cracked open at all times” which “counterproductively let in [] freezing winter cold, rain,
and snow into the building” and onto incarcerated person’s beds. Id. ¶¶ 55-56.
Plaintiff further alleges that, to prevent the cold air and snow from entering the building,
FCI-Danbury staff “advised [the inmates] to board up the gaps in the doorways with cardboard”

and to use tape and extra chairs to hold the pieces of cardboard in place. SAC ¶ 58. Plaintiff
alleges that this solution posed a safety hazard because the “fire exits [were only] further
obstructed” by the patchwork of cardboard pieces. Id. ¶ 60. Plaintiff also states that the fumes
that emanated from the makeshift heating system “permeated [throughout] the building,” which
made her and other incarcerated persons sick to the point that on or about December 2018 or
January 2019, Plaintiff lost consciousness. Id. ¶¶ 60, 67, 70. She alleges that, following her loss
of consciousness, an “officer was ordered not to take [her]” to see a doctor. Id. ¶ 70. Plaintiff also
alleges that FCI-Danbury staff and the assistant warden “threatened” to send anyone who
complained about the fumes to the segregated housing unit (“SHU”) and that the warden said “he
would ‘fuck anyone that fuck[ed] with [his] job!” Id. ¶ 65 (alterations in original).
3.

Allegations Regarding Visitation Privileges, Overize Uniforms, Pillows and
Blankets, and Inadequate Cooling at FCI-Danbury and MDC

In the third cause of action for cruel and unusual punishment under the Eighth Amendment,
Plaintiff raises several allegations regarding her period of incarceration at FCI-Danbury and MDC.
See generally SAC ¶¶ 83-111.
Plaintiff alleges that “FCI Danbury and MDC” staff “repeatedly violated inmate[s’]
[visitation rights], including refus[ing] to let in qualified visitors under ever-changing []schedules
that contradicted the stated visiting hours.” SAC ¶ 98. For example, Plaintiff alleges that at FCIDanbury, on an unspecified Mother’s Day, two of her children arrived “on time before inmate
count” but an officer “refused to let them in,” incorrectly contending that her children had arrived
at the “wrong time.” Id. ¶¶ 99-100. Despite her children insisting that they had arrived on time
and were on Plaintiff’s visitor list, FCI-Danbury supervisors denied them entry. Id. ¶¶ 101-02.
Plaintiff alleges that, because of the incident, her children “were banned from FCI-Danbury for
about a year or more.” Id. ¶ 103. Plaintiff alleges that her children’s visits were “[her] lifeline”

while incarcerated. Id. ¶ 104. Plaintiff asserts that her visitation rights were violated as a result of
“widespread lack of training, poor oversight” and “total disregard for the health and well-being of
prisoners” at FCI Danbury and MDC. Id. ¶ 106.
Further, Plaintiff alleges the following: that incarcerated women at MDC were “forced to
wear grossly plus-size male inmate uniforms, including to visits with family and friends,” SAC
¶ 87; that, during “freezing winters,” incarcerated persons “were given a single blanket and officers
would run ‘shakedowns,’ taking away any extra blankets,” id. ¶ 91; and that during summers at
FCI-Danbury, she and other incarcerated persons “had nothing more than a single giant fan and
were forced to buy mini ones at the commissary (if [they] could afford) to keep cool,” id. ¶ 94, and
that they “were not entitled to pillows,” id. ¶ 96.
B.

Plaintiff’s Administrative Claims 3
On November 28, 2020, Jensen mailed a Standard Form 95 (“SF-95”) to the BOP, which

is a form used to present claims against the United States under the FTCA, seeking $14 million
dollars in damages for personal injury and attached a letter describing her claims of inadequate
dental care at both FCI-Danbury and MDC and inadequate heating conditions at FCI-Danbury.
See Ex. A at 1-4. By a response letter dated December 22, 2020, the BOP returned Plaintiff’s SF95 and attachments “because [her] claim involve[d] separate allegations against [the BOP]” and
therefore Plaintiff would have to “resubmit each claim separately” so that the BOP could “properly
investigate the merits of [each of Plaintiff’s] claims.” Ex. A. at 8.

See Declaration of AUSA Melanie Speigh in Support of Defendant’s Motion to Dismiss the Second Amended
Complaint, ECF 38; Exhibit A -Jensen’s November 28, 2020 Letter to BOP re: dental care and heating conditions at
FCI Danbury during Winter 2018-2019, Jensen’s Standard Form 95, and BOP Regional Counsel’s Denial Letter dated
December 20, 2020 (“Ex. A.”), ECF 38-1; Exhibit B - Jensen’s SF-95 dated January 30, 2021, asserting claims
regarding insufficient dental treatment and heating conditions at FCI Danbury during Winter 2018-2019 (“Ex. B.”),
ECF 38-2; Exhibit C - BOP Regional Counsel’s Denial Letter dated August 11, 2021 and November 3, 2021 (“Ex.
C.”), ECF 38-3.
3

On January 30, 2021, Jensen mailed two new SF-95s with accompanying letters. See Ex.
B. One of the SF-95s concerned only her claim for inadequate dental treatment at FCI-Danbury.
See Ex. B at 2-6. She sought $7 million dollars in damages for personal injury. Id. The other SF95 detailed her claim for inadequate heating conditions at FCI-Danbury during the 2018-2019
winter and again sought $7 million dollars in damages for personal injury. Id. at 9-13. Neither
SF-95 asserted claims regarding dental care at MDC, or visitation privileges, oversize uniforms,
pillows, blankets, inadequate cooling at FCI-Danbury and MDC. In connection with both SF-95s,
Plaintiff also stated by letters that the FCI-Danbury staff had incorrectly advised her on the proper
mechanism for submitting her claims, which, in Plaintiff’s view, “caus[ed] initial delay[s]” in the
BOP receiving her claims. Id. at 5, 12. Moreover, she stated that “procedural hurdles created by
[the BOP] . . . d[id] not change the original service date” of her claims. Id. She also restated that
she would settle both claims for five million dollars each. Id.
The BOP denied Plaintiff’s administrative claims asserted in both SF-95s. See Ex. C. On
August 11, 2021, the BOP denied Plaintiff’s claim for inadequate dental care because “a review
of [her] medical records” showed that “there [was] not sufficient evidence to substantiate [her]
allegations” and that Plaintiff’s records reflected that “[she] received appropriate dental and
medical assessments” including deep scaling, prescription medication, oral rinses, and numerous
clinical encounters.” Ex. C at 2. The BOP informed Plaintiff that she could bring an action in
federal court within six months of the date of this response letter. Id. On November 3, 2021, the
BOP also denied Plaintiff’s claim that “a temporary heating system [] made [her] sick and caused
her to pass out” and that “medical staff did not provide adequate medical care” following the
incident. Id. at 5. The BOP explained that “a review of [her] medical records” showed that “there
[was] not sufficient evidence to substantiate [her]allegations,” that there “[was] no record of any

heating system producing toxic fumes,” and that there “[was] also no record of [Plaintiff]
complaining to medical staff of illness or fainting caused by any fumes.” Id. The BOP informed
Plaintiff that she could bring an action in federal court within six months of the date of this response
letter. Id.
PROCEDURAL HISTORY
On February 28, 2022, Plaintiff commenced this action, see Complaint, ECF 1, and she
subsequently filed an amended complaint, Amended Complaint, ECF 20. In lieu of filing an
answer, Defendant requested a pre-motion conference on its anticipated motion to dismiss the
amended complaint. Renewed Motion for Pre-Motion Conference, ECF 21. In response, Plaintiff
requested an unopposed extension of time to allow her to obtain a certificate of merit, which the
Court granted. Response Letter to Renewed Motion for Pre-Motion Conference, ECF 22; Docket
Order dated February 14, 2023.
Plaintiff’s attorney moved to withdraw, which the Court granted, and Plaintiff indicated
that she would proceed pro se in this action. Minute Entry Order dated November 2, 2023. On
November 26, 2023, Plaintiff filed her second amended complaint, which is the operative pleading
in this action, see SAC, ECF 33, and on March 18, 2024, Defendant filed a fully briefed motion to
dismiss the second amended complaint.
LEGAL STANDARDS
A.

Federal Rule of Civil Procedure 12(b)(1)
Federal courts are courts of limited jurisdiction. “A case is properly dismissed for lack of

subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000). The party asserting subject matter jurisdiction must establish by a preponderance of the

evidence that jurisdiction exists. Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008). In evaluating a Rule 12(b)(1) motion to dismiss, a district judge must “accept[ ] all
material factual allegations in the complaint as true,” but should “refrain from drawing inferences
in favor of the party asserting subject matter jurisdiction.” Gonzalez v. Inn on the Hudson LLC,
20-CV-9196, 2022 WL 974384, at * 2 (S.D.N.Y. Mar. 30, 2022). Further, a district judge “may
consider evidence outside of the pleadings to resolve the disputed jurisdictional fact issues.” Id.;
see Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)
(finding court “has the power and obligation to decide issues of fact by reference to evidence
outside the pleadings, such as affidavits”).
B.

Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, 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 plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 556). While the Court “must accept as true all of the allegations
contained in a complaint,” this “tenet . . . is inapplicable to legal conclusions.” Ashcroft, 556 U.S.
at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.

DISCUSSION
Plaintiff asserts the following claims in this action. With respect to alleged inadequate
dental care at FCI-Danbury and MDC, Plaintiff asserts tort claims for medical malpractice,
intentional and reckless disregard, gross negligence, negligence, failure to train and supervise, and
emotional distress. SAC ¶¶ 10-46. With respect to the inadequate heating conditions at FCIDanbury, Plaintiff asserts tort claims of intentional and reckless endangerment, intentional and
reckless disregard, gross negligence, negligence, failure to train and supervise, and emotional
distress. Id. ¶¶ 47-82. Finally, Plaintiff asserts a cruel-and-unusual-punishment claim under the
Eighth Amendment related to her visitation privileges, oversized uniforms, inadequate heating and
cooling, and limitations on blankets and pillows. Id. ¶¶ 83-111.
Defendant makes the following jurisdictional arguments for dismissal. First, Defendant
states that Plaintiff’s administrative claims in the SF-95s were limited to the alleged inadequate
dental care at FCI-Danbury and the alleged inadequate heating conditions at FCI-Danbury during
the winter of 2018-2019 and therefore argues that any other claims asserted in the SAC should be
dismissed for lack of subject-matter jurisdiction because Plaintiff did not administratively assert
them in the SF-95s and therefore did not adequately present to the BOP. Specifically, Defendant
argues that the following claims in the SAC should be dismissed for failure to satisfy the FTCA’s
presentment requirement: (1) Plaintiff’s claims in the SAC related to MDC, (2) Plaintiff’s claims
in the SAC for cruel and unusual punishment regarding visitation privileges, oversize uniforms,
pillows, blankets, and inadequate cooling. Def.’s MOL at 11, 12. Second, Defendant argues that
part of Plaintiff’s claims for alleged inadequate dental care premised on events that occurred before
January 30, 2019, are time-barred because Plaintiff submitted her SF-95 on January 30, 2021, and
the FTCA requires a claimant to submit claims within two years of their accrual date. Id. at 12.

Third, Defendant argues that Plaintiff’s Eight Amendment claim should be dismissed because the
FTCA has not waived immunity for constitutional tort claims. Id. at 14. Fourth, Defendant argues
that Plaintiff’s claims related to the inadequate heating conditions at FCI-Danbury during the 20182019 winter fall under the discretionary function exception to the FCTA and therefore are subject
to dismissal. Id. at 15. Alternatively, Defendant argues that Plaintiff fails to state a claim for
medical malpractice related to the alleged inadequate dental care because Plaintiff did not file a
certificate of merit as required under Connecticut and New York law to sustain that claim. Id. at
17. The Court addresses each argument in turn.
A.

The FTCA’s Presentment Requirement
A plaintiff asserting claims under the FTCA “bears the burden of proving subject matter

jurisdiction by a preponderance of the evidence” and that “she exhausted her administrative
remedies by presenting her claims to the appropriate federal agency before filing suit.” Cooke v.
United States, 918 F.3d 77, 80 (2d Cir. 2019) (citations omitted), cert. denied, 139 S. Ct. 2748,
(2019); see also 28 U.S.C. § 2675(a). Adequate presentment of a claim under the FTCA requires
“a written notice of [the] claim which provides enough information to enable an agency to
investigate and ascertain the strength of a claim,” including sufficient information for the agency
to “estimate the claim’s worth.” Collins v. United States, 996 F.3d 102, 109, 111 (2d Cir. 2021);
Romulus v. United States, 160 F. 3d 131, 132 (2d Cir. 1998). Such notice must provide the agency
“sufficiently specific information as to the basis of the claim, the nature of claimant’s injuries, and
the amount of damages sought such that the agency can reasonably understand what it must
investigate to determine liability, to value the claim, and to assess the advisability of settlement.”
Collins, 996 F.3d at 119.

Here, Plaintiff’s SF-95s are limited to alleged conditions at FCI-Danbury. Indeed, Plaintiff
did not assert in the SF-95s any claims related to her incarceration at MDC. Nor did she
administratively assert claims related to visitation privileges, oversize uniforms, inadequate
cooling during winters, lack of blankets during freezing winters, and prohibition on more than one
pillow. As such, these claims are subject to dismissal for failure to satisfy the FTCA’s presentment
requirement because the BOP did not have notice to reasonably investigate these claims.
Further, contrary to Plaintiff’s assertions, the absence of any specific information regarding
MDC in the SF-95 (in the face of numerous explicit references to FCI-Danbury) did not provide
notice and reasonable opportunity to the BOP to investigate claims at MDC. See Collins, 996 F.3d
at 119. Plaintiff argues that Defendant’s position that it did not have notice of her dental claims at
MDC “is disingenuous” because she “complained to staff at both FCI-Danbury and MDC” and
her “medical records necessarily include[d] treatment at both facilities.” Pl.’s Opp. at 3. Plaintiff
also asserts, without citation to any legal authority, that “there is no requirement under [the FTCA]
that [she] specifically distinguish [her] claim of ongoing mistreatment on the same issue based on
the facility at which [she] was incarcerated.” Id. at 4. Plaintiff’s arguments are unavailing.
Plaintiff’s assertion that MDC officials had access to her medical records through the BOP
and therefore she did not need to mention MDC in her SF-95, is inconsistent with the FTCA’s
requirement of notice. The spirit of the FTCA’s presentment requirement is to put an agency on
notice of a claimant’s particular claims. Access or possession by that agency of documents that
may potentially be relevant to a claim does not clear the notice bar. In other words, notice upon
the BOP may not be assumed simply because FCI-Danbury and MDC, facilities managed by the
BOP, have access to documents about Plaintiff’s medical treatment.

In sum, Plaintiff did not administratively assert claims related to dental care at MDC and
did not assert claims that form the basis of her third cause of action of unusual and cruel
punishment under Eighth Amendment. Her failure to do so “deprives [this Court] of subject matter
jurisdiction over [these] FTCA claims” asserted in the SAC. Leytman v. United States, 832 F.
App’x 720, 722 (2d Cir. 2020) (citation omitted). Consequently, all of Plaintiff’s claims in this
action that she did not administratively assert and present to the BOP are dismissed for lack of
subject matter jurisdiction. 4 Id.
The third cause of action for alleged violation of her Eighth Amendment right is dismissed
for the independent reason that the FTCA “has not waived [the Government’s] sovereign immunity
with respect to claims that its employees have committed constitutional torts under the federal
constitution.” Hernandez v. United States, 939 F.3d 191, 205 (2d Cir. 2019) (alteration in
original); see F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994) (where a plaintiff asserts a
deprivation of a federal constitutional right in FTCA action, such as violation of the Eighth
Amendment, no subject-matter jurisdiction exists over that claim); see also Tigano v. United
States, 527 F. Supp. 3d 232, 254 (E.D.N.Y. 2021) (dismissing plaintiff’s Eighth Amendment claim
against United States as barred by sovereign immunity); Gonzalez v. United States, 16-CV-1494
(KAM), 2018 WL 1597384, at *6 (E.D.N.Y. Mar. 31, 2018) (dismissing plaintiff’s violation of
due process count under FTCA against United States because “FTCA’s waiver of sovereign
immunity does not extend to constitutional tort claims against the United States”).

Moreover, “[i]n the interest of speedy resolution of [her] claims, [Plaintiff] concede[s] to [the United States] . . . any
factual situations not related to [her] dental or heating claims.” Pl.’s Opp. at 3. Thus, Plaintiff has withdrawn her
claims related to the alleged violation of her visitation rights.
4

B.

Plaintiff’s Alleged Inadequate Dental Care at FCI-Danbury
Plaintiff alleges that she received inadequate dental care at FCI-Danbury “for all [her]

years” at FCI-Danbury, without providing any specific dates or timeframes. See SAC ¶¶ 10, 1625, 37-46. Defendant construes this as Plaintiff referencing to her entire period of incarceration
from 2012 until her release in 2020. Def.’s Mot. at 12. With respect to these allegations, Plaintiff
asserts tort claims for medical malpractice, intentional and reckless disregard, gross negligence,
negligence, failure to train and supervise, and emotional distress. See SAC. Defendant construes
Plaintiff’s claims to be one for medical malpractice. Def.’s MOL at 3, 17. Defendant argues that
any claims premised on alleged violations that occurred before January 30, 2019, should be
dismissed as time-barred because the FTCA has a two-year statute of limitations and Plaintiff
submitted the SF-95 on January 30, 2021. For the alleged violations that occurred after January
30, 2019, which fall within the limitations period, Defendant argues that Plaintiff’s medical
malpractice claim should be dismissed because Plaintiff did not file the SAC with a certificate of
merit as required for medical malpractice claims brought in Connecticut and New York.
1.

Statute of Limitations Regarding Claims Premised on Events Occurring
before January 30, 2019

The FTCA has a two-year statute of limitations. “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[.]” 28 U.S.C. § 2401(b). “A claim under the Federal Tort
Claims Act accrues on the date that a plaintiff discovers that he has been injured,” Valdez v. United
States, 518 F.3d 173, 177 (2d Cir. 2008), or at the time that a plaintiff “has or with reasonable
diligence should have discovered the critical facts of both [her] injury and its cause,” Corcoran v.
New York Power Authority, 202 F.3d 530, 544 (2d Cir. 1999) (citation omitted). A plaintiff is not
required to “know each and every relevant fact of [her] injury or even that the injury implicates a

cognizable legal claim.” Corcoran, 202 F.3d at 544. Rather, a plaintiff only needs to know “the
basic facts of the injury, i.e., knowledge of the injury’s existence and knowledge of its cause or of
the person or entity that inflicted it.” Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)
(citation omitted).
Plaintiff presented her claims to the BOP on January 30, 2021, therefore Plaintiff’s claims
premised on alleged inadequate dental care that accrued before January 30, 2019, are time-barred
under the FTCA’s two-year statute of limitation. There is no question that Plaintiff was aware that
she was not receiving the dental care she believed she was entitled to and necessary to treat her
gingivitis as early as the beginning of her incarceration at FCI-Danbury in 2012. Indeed, according
to the SF-95s, Plaintiff was aware of her chronic gingivitis before she began her term of
incarceration at FCI-Danbury in 2012. Ex. B at 4; see SAC ¶ 10. Plaintiff also stated that she was
aware “[f]or years” that she was not receiving adequate treatment for chronic dental disease while
incarcerated, noting that it “progressively [got] worse.” Ex. B at 4; see SAC ¶¶ 14, 17. She also
urged the medical staff “at every visit” to provide her with a different treatment, including seeing
a specialist, and she asserted that, when her requests were denied, she “followed the necessary
administrative steps to seek such relief.” SAC ¶¶ 22-25; see Ex. B at 4. Thus, Plaintiff knew the
“basic” and “critical facts of [her] injury and causation” well before January 30, 2019, and because
the alleged violation occurred more than two years—and up to nearly nine years—before she
submitted her SF-95 to the BOP in January 2021, they are time-barred.
Plaintiff invokes the continuing violation doctrine to maintain suit based on alleged
inadequate dental care that occurred before the January 30, 2019 accrual date. Defendant argues
that the continuing violation doctrine, which is an exception to the normal knew-or-should-haveknown discovery rule for accrual date in FTCA actions, does not apply here. Specifically,

Defendant characterizes Plaintiff’s claims as discrete denials of dental care and requests for
specialized care at separate dental visits, even though the claims involved ongoing care, and her
disease was progressive in nature. Def.’s MOL at 13-14. Plaintiff disagrees, arguing that requiring
her “to plead every factual moment of [her] claim as an individual cause of action” would render
the doctrine “a nullity.” Pl.’s Opp. at 5. Plaintiff’s argument is without merit.
A continuing violation is a tort that persists for a long period of time. Under the continuing
violation doctrine, the statute of limitations for a continuing violation begins to run only after the
date of the last injury and allows a plaintiff to sue and recover for acts that otherwise would be
time-barred when other related tortious conduct occurred within the limitations period. Flores v.
United States, 885 F.3d 119, 122 (2d Cir. 2018) (citing Cornwell v. Robinson, 23 F.3d 694, 703
(2d Cir. 1994)). That doctrine applies to claims “composed of a series of separate acts that
collectively constitute one unlawful [ ] practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 111 (2002). However, it does not apply to “discrete unlawful acts,” even when those acts are
part of a “‘serial violation’ but applies to claims that by their nature accrue only after the plaintiff
has been subject to some threshold amount of mistreatment.” Gonzalez v. Hasty, 802 F.3d 212,
220 (2d Cir. 2015) (quoting Morgan, 536 U.S. at 114–15). A discrete act “‘occur[s]’ on the day
that it ‘happen[s]’” and “starts a new clock for filing charges alleging that act.” Morgan, 536 U.S.
at 110, 113.
The continuing violation doctrine does not apply to Plaintiff’s claims related to dental care
that pre-date January 30, 2019. This is because the doctrine applies to circumstances where
plaintiff’s injury was unknown or undiscoverable to her and plaintiff was unable to determine that
a violation had occurred until after a threshold amount of mistreatment. That is not the case in this
action. Here, Plaintiff alleges that she was aware that FCI-Danbury medical officials denied her

dental care between 2012 and 2019, repeatedly voiced her disagreement with dental treatment at
every visit and took the “necessary administrative steps” to get the care she believed she was
entitled to. Thus, for the pre-January 2019 claims, Plaintiff knew that the alleged violations had
occurred by that time and asserted her rights at the time of the violation. Kronisch, 150 F.3d at
121 (a plaintiff’s knowledge of both the existence and the cause of her injury is dispositive); see
also Valdez, 518 F.3d at 177. As such she cannot now rely on the continuing violation doctrine to
bring claims related to the otherwise time-barred events. Kronisch, 150 F.3d at 122. Further, the
alleged violations were clear and distinct to Plaintiff at each dental visit that preceded the
limitations period, and she has not alleged that she discovered a distinct injury thereafter during
the limitations period.
Moreover, the Court finds that none of the rationales supporting a plaintiff availing herself
of the continuing violation doctrine in the context of medical malpractice claims are implicated
here. The Second Circuit provided two rationales that undergird the doctrine: (1) “it is not
reasonable to expect a patient who is in the continuing care of a doctor to discover that the doctor’s
acts may be the cause of his injuries,” and (2) “it [is] absurd to expect a patient being treated by a
doctor or hospital to interrupt corrective treatment by instituting suit against either while under
their continuing care.” Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080-81 (2d Cir. 1988).
None are present in Plaintiff’s claims in this case. By Plaintiff’s own allegations, she has
“demonstrated that [she] was aware of the alleged deficiency of the treatment [she] was receiving. 5
Barbaro v. U.S. ex rel. Fed. Bureau of Prisons FCI Otisville, 05-CV-6998 (DLC), 2006 WL

Plaintiff’s assertion that she was “lulled into complacency with the promise of treatment that never came” is
unavailing. Pl.’s Opp. at 6. Plaintiff has complained that her chronic gingivitis required treatment by a specialist
doctor. And in context of FTCA medical malpractice suit, “[t]he Supreme Court explained its unwillingness to treat
‘a plaintiff’s ignorance of his legal rights’—the right to sue for malpractice—in the same forgiving way that it was
willing to treat his ‘ignorance of the fact of his injury or its cause.’” Valdez, 518 F.3d at 178 (quoting United States v.
Kubrick, 444 U.S. 111, 122 (1979)).

5

2882975, at *3 (S.D.N.Y. Oct. 10, 2006) (declining to find continuing violation doctrine applied
when plaintiff knew that “he was not receiving the treatment he believed was necessary as early
as his first few months at Otisville”). Plaintiff’s repeated complaints to FCI-Danbury officials
about the treatment she was receiving shows that she was not afraid to take issue with FCI-Danbury
dental staff’s treatment course and decisions while she was in their care. Id.
This Court also finds persuasive out-of-circuit decisions that held that the continuing
violation doctrine does not apply to claims regarding dental care brought under the FTCA. See,
e.g., Crooker v. United States, 13-CV-30199 (FDS), 2014 WL 3699172, at *9 (D. Mass. July 23,
2014) (where complaint listed multiple instances before accrual date when plaintiff requested
restorative dental care, “indicating that he knew of his injury” before accrual date, continuing
violation doctrine did not apply); Kannell v. Griffin, 20-CV-1575 (CLM) (NAD), 2022 WL
2441293, at *1 (N.D. Ala. July 5, 2022) (declining to apply continuing violation doctrine where
plaintiff knew that defendants had denied her medical and dental care between period outside of
limitations period and finding that plaintiff’s claims are barred by statute of limitations). This is
because “[t]he rationale behind the ‘discrete act’ rule is that when a plaintiff is harmed by a discrete
act, [she] should be aware of it . . . .” Powell v. United States, 18-CV-5378 (ERK) (MMH), 2024
WL 4329842, at *3 (E.D.N.Y. Aug. 20, 2024) (quoting Stephens v. Hofstra Univ. Sch. of L., 01CV-5388, 2005 WL 1505601, at *4 (E.D.N.Y. June 24, 2005)). “To permit [her] to wait and toll
the running of the statute simply by asserting that a series of separate wrongs were committed . . .
would be to enable [her] to defeat the purpose of the time-bar, which is to preclude the resuscitation
of stale claims.” Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1980). Accordingly,
Plaintiff’s claims related to alleged dental care that occurred before January 30, 2019, are
dismissed.

2.

Plaintiff’s Dental Care Post-January 30, 2019

As stated above, see Discussion Section A, Plaintiff has only presented her inadequate
dental treatment claims from her time at FCI-Danbury, located in Connecticut. Thus, with respect
to Plaintiff’s claims related to alleged inadequate dental care at FCI-Danbury, only those premised
on conduct that occurred after January 30, 2019, remain. Defendant seeks dismissal of these
remaining claims, construing them as medical malpractice claims. Def.’s Mot. at 3 (“Finally, as
to the remaining claims asserted in Plaintiff’s first cause of action, stemming from her dental care
and grounded in medical practice, Plaintiff has failed to state a cognizable claim); id. at 17
(“Plaintiff fails to state claim for medical malpractice.”). Defendant argues that Plaintiff has failed
to state a claim for medical malpractice under Connecticut and New York state law.
The FTCA requires courts to apply the law of the state where the alleged tort occurred,
here Connecticut. 28 U.S.C. § 1346(b)(1) (the FTCA provides that United States “would be liable
to the claimant in accordance with the law of the place where the act or omission occurred.”);
Borley v. United Sates, 22 F.4th 75, 78 (2d Cir. 2021) (“[I]n an FTCA action, ‘courts are bound to
apply the law of the state . . . where the [tort] occurred’—in this case, [Connecticut].”) (citing
§ 1346(b)(1)) (second alteration in original) (quoting Makarova v. United States, 201 F.3d 110,
114 (2d Cir. 2000)). Thus, Connecticut law governs the analysis of the medical malpractice claim.
To state a claim for medical malpractice under Connecticut law, a plaintiff must allege “(1)
the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a
causal connection between the deviation and the claimed injury.” Wynne v. Town of E. Hartford,
30-CV-001834, 2021 WL 5494606, at *7 (D. Conn. Nov. 23, 2021) (quoting Gold v. Greenwich
Hosp. Ass’n, 262 Conn. 248, 254-55 (2002)). The SAC alleges that “[i]t is widely known that, if
left untreated, [Plaintiff’s] oral disease could lead to life-threatening complications.” SAC ¶ 11. It

goes on to state that FCI-Danbury medical staff “knew that [Plaintiff’s] condition required special
medical treatment to eradicate the [chronic dental] disease and prevent further damages” but that
they “refused to provided [her] with the treatment [she] needed.” Id. ¶¶ 18, 19, 21. The staff
instead only provided her “basis treatment” and they “knew that the recommend ‘basic treatment’
would not help [her] condition” and would rather worsen it “while having admitted that [she]
needed to see a specialist.” Id. ¶¶ 19, 20. The staff subsequently “approved [her] request to see a
specialist.” Id. ¶ 39. Finally, she alleges that once she was released from FCI-Danbury, she sought
professional dental care, where it was “confirmed that FCI-Danbury […] w[as] grossly negligent
and careless in [her] treatment.” Id. ¶ 42. While Plaintiff does not explicitly use the terms
“standard of care” and “deviation,” these facts are sufficient to plead these two elements. These
allegations suffice to plausibly plead a deviation of standard of care because a reasonable inference
could be drawn that the applicable standard of care for chronic gingivitis required special treatment
or at least more than basic treatment—as she received special treatment after her incarceration—
and that FCI-Danbury staff deviated from that standard by providing her only basic treatment. See
Jones v. Forbes, 16-CV-14 (VAB), 2016 WL 4435081, at *5 (D. Conn. Aug. 19, 2016) (plaintiff
stated plausible medical malpractice where plaintiff alleged that defendants did not give him the
medical treatment that he should have received). The SAC is replete with allegations that the
denial of the treatment Plaintiff believed she should have received caused her disease to worsen,
therefore has sufficiently pleaded the third element of causation. See, e.g., SAC ¶¶ 17, 44.
Defendant nonetheless advances several arguments for dismissal of plaintiff’s medical
malpractice claim, none of which the Court finds meritorious. First, Defendant argues that
Plaintiff’s medical malpractice claim is subject to dismissal because she failed to comply with
Connecticut’s special pleading requirement for medical malpractice claims. Def.’s MOL at 18.

Specifically, Conn. Gen. Stat. § 52-190a provides that a plaintiff asserting a medical malpractice
claim in Connecticut state court must include with the complaint a certificate of good faith and a
written opinion from a health care provider regarding the evidentiary basis for her claim. Conn.
Gen. Stat. § 52–190a. Defendant is correct that Plaintiff did not attach a certificate of good faith
nor a written opinion from a health provider when she filed the SAC, even though the basis for
seeking leave from the Court to file the SAC was for her to obtain and submit a certificate of good
faith and merit.
Regardless, the Second Circuit has rejected this basis for dismissal of medical practice
claims in FTCA actions, holding that Conn. Gen. Stat. § 52–190a is a procedural rule and therefore
inapplicable in federal court. Corley v. United States, 11 F.4th 79, 84-85 (2d Cir. 2021) (finding
“particularly instructive” a district court decision in Shields v. United States, 436 F. Supp. 3d 540
(D. Conn. 2020) that rejected Conn. Gen. Stat. § 52–190a’s applicability in federal court). The
Court reasoned that this law, by requiring certificates and medical opinions to be filed to
commence a federal action and state a claim for relief, constitutes a “heighted pleading
requirement” that is “in direct contrast” with Federal Rule of Civil Procedure 8’s “notice pleading”
and Rule 4’s rules regarding service of process—when the Federal Rules of Civil Procedure
controls in federal action. Id. at 89. The Court further stated that “the United States as a defendant
must comply with the same standard of care and is liable ‘in the same manner and to the same
extent’ as a similarly situated private party” and “by requiring tort cases against it to be brought in
federal court, the United States forgoes any tactical advantages a defendant might have under the
procedural rules applied in state court.” Id. The Court vacated the lower court’s decision for
“applying § 52-190a instead of the Federal Rules of Civil Procedure.” Id. Here, Defendant has
not addressed the Second Circuit’s controlling decision in Corley nor has it argued that it is

disguisable from this action. Consequently, Plaintiff’s failure to attach a certificate of merit does
not support dismissal of her medical malpractice claim asserted in a federal court.
Second, Defendant argues that “the lack of medical support for Plaintiff’s alleged theory
of malpractice is telling” and that a difference of opinion between an incarcerated person and a
medical doctor is insufficient to state a plausible claim for medical malpractice. 6 Def.’s MOL at
19 (first citing to Jiminez v. United States, 11-CV-4593 (RJS), 2013 WL 1455267, at *2 (S.D.N.Y.
Mar. 25, 2013); then citing Darby v. Greenman, 14 F.4th 124, 128 (2d Cir. 2021)). However,
these cases do not support Defendant’s position that, in the context of a medical malpractice claim,
a difference of opinion about a course of treatment cannot form the basis of a plausible claim for
relief. 7
Finally, Defendant relies on a New York state court decision and a New York federal
court’s decision applying New York medical malpractice common law to argue that Plaintiff has
failed to allege causation, asserting that while Connecticut state law governs, the medical
malpractice claim analysis is the same under New York and Connecticut state law. Def.’s MOL
at 18 (citing Imperati v. Lee, 132 A.D.3d 591 (1st Dep’t 2015) and Koulkina v. City of N.Y., 559
F. Supp. 2d 300 (S.D.N.Y. 2008); see Def.’s Reply at 9-10. Even assuming arguendo that the
elements of a medical malpractice claim are the same under New York and Connecticut, the SAC
sufficiently pleads medical malpractice claim under New York law. See, e.g., Jones v. Beth Isr.

6

After Plaintiff correctly argued in opposition that she is not required to provide evidentiary support for her claim at
the pleading stage, Defendant walked back that argument and argued that it presented other bases for dismissal but
nonetheless maintained that a disagreement of opinion with respect to course of treatment does not sustain a medical
malpractice claim. Def.’s Reply at 10.
7
Jiminez dismissed the medical malpractice claim because “[plaintiff] fail[ed] to set forth any injury that is the
proximate result of the medical attention he received—or failed to receive—on these four [medical visits]” even
though “he sought an MRI and examination by an “outside independent Specialist” in addition to the treatment that
he received, see Jiminez, 2013 WL 1455267, at *13, and Darby, after finding that the plaintiff had failed to state an
42 U.S.C. § 1983 claim for deliberate indifference to serious medical needs, declined to exercise supplemental
jurisdiction over the medical malpractice claim, see Darby, 2019 WL 1994490, at *7.

Hosp., 17-CV-3445 (GHW), 2018 WL 1779344, at *9-10 (S.D.N.Y. Apr. 12, 2018) (plaintiff
adequately pleaded medical malpractice claim even where plaintiff did not expressly allege
applicable standard of care but stated that “he ‘should have been medicated’ yet ‘was not’” and
pleaded causation when he alleged that his injury was “because of his lack od medication”).
Further, it is worth noting that a New York court’s interpretation of New York tort law
sheds no light on how Connecticut tort law is interpreted or applied. Defendant has not provided
any case law holding that Connecticut and New York courts interpret medical malpractice claims
in the same way, such that Defendant could rely on New York state and federal decisions to support
its position that Plaintiff has not adequately pleaded causation. Consequently, Defendant has failed
to carry its burden. Muhammad v. N.Y.C. Transit Auth., 450 F. Supp. 2d 198, 202 (defendant bears
burden to entitlement to dismissal of claims) (citing Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128
(2d Cir. 2003)); see also Charles Alan Wright & Arthur R. Miller, 5B Federal Practice and
Procedure § 1357 (4th ed. 2024) (on a motion to dismiss for failure to state claims, “[u]ltimately,
the burden is on the moving party to prove that no legally cognizable claim for relief exists”).
For the above reasons, Defendant’s motion to dismiss Plaintiff’s medical malpractice
claim is denied.
C.

Heating Conditions at FCI-Danbury
With respect to the alleged inadequate heating conditions at FCI-Danbury during the winter

of 2018-2019, Plaintiff asserts tort claims of intentional and reckless endangerment, intentional
and reckless disregard, gross negligence, negligence, failure to train and supervise, and emotional
distress. SAC ¶¶ 47-82. Defendant argues that Plaintiff’s negligence claims should be dismissed
for lack of subject-matter jurisdiction because these claims fall under the discretionary function
exception to the FCTA. Def.’s MOL at 15-17.

The discretionary function exception exempts the United States from liability for:
[a]ny claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not such
statute or regulation be valid, or based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the discretion involved
be abused.
28 U.S.C. § 2680(a). The two-prong Berkvoitz-Gaubert test determines whether government
conduct involves a discretionary function or duty under § 2680(a). Coulthurst v. United States,
214 F.3d 106, 109-10 (2d Cir. 2000). That test bars suit only if two conditions are met:
(1) the acts alleged to be negligent must be discretionary, in that they involve “an
element of judgment or choice” and are not compelled by statute or regulation and
(2) the judgment or choice in question must be grounded in “considerations of
public policy” or susceptible to policy analysis.
Id. (citations omitted).
As a threshold matter, Plaintiff’s claims for negligent failure to train and supervise related
to the inadequate heating condition fall within the discretionary function exception and therefore
are dismissed. See Cohen v. United States, 640 F. Supp. 3d 324, 347-48 (S.D.N.Y. 2022)
(Plaintiff’s “negligent hiring, retention, training, and supervision claim[s] . . . cannot proceed”
because they fall “within the discretionary function exception”); see also Tigano, 527 F. Supp. 3d
at 255 (same); Saint-Guillen v. United States, 657 F. Supp. 2d 376, 387 (E.D.N.Y. 2009)
(“[F]ederal courts have found such hiring, training, and supervision decisions generally fall within
the exception.”).
With respect Plaintiff’s remaining claims, whether the discretionary function exception
applies is a closer call. Plaintiff alleges that FCI-Danbury was “grossly negligent” and “careless
[in the] manner” they treated her, which, according to Plaintiff, was due to a “widespread . . . poor

oversight or quality assurance by FCI-Danbury” and a “total disregard for the health and wellbeing of prisoners.” SAC ¶ 80.
Applying the Berkvoitz-Gaubert test, the Court must first determine whether FCI-Danbury
officials’ actions were “discretionary in nature” involving an “an element of judgment or choice.”
United States v. Gaubert, 499 U.S. 315, 322 (1991) (citation omitted). If an exercise of discretion
is involved, then the discretionary function exception applies. But the element of discretion is not
present when a “federal statute, regulation, or policy specifically prescribes a course of action for
an employee to follow.” Id. The exception thus does not apply to a claim that an agency failed to
“perform its clear duty” or to “act in accord with a specific mandatory directive.” Berkovitz v.
United States, 486 U.S. 531, 544 (1988).
The statute governing the duties of the BOP provides that the BOP is in “charge of the
management and regulation of all Federal penal and correctional institutions and must “provide
suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with
or convicted of offenses against the United States.” 18 U.S.C. § 4042(a)(1), (2). That statute “does
not direct the BOP how to fulfill [these] duties, nor does the statute mandate particular conduct by
the BOP”; rather, “[t]he statute gives the BOP officials great discretion to administer their duties
as they see fit.” Ojo v. United States, 16-CV-4112 (MKB) (LB), 2019 WL 3852391, at *7
(E.D.N.Y. Aug. 15, 2019), report and recommendation adopted, 2019 WL 4602823 (E.D.N.Y.
Sept. 23, 2019). Here, the acts alleged in the SAC to be negligent and careless are not compelled
by statute and are therefore discretionary in nature because they involved some level of judgment
or choice by FCI-Danbury staff. Thus, the first prong of the Berkovitz-Gaubert is satisfied. See
Scott v. Quay, 19-CV-1075 (MKB) (SMG), 2020 WL 8611292, at *13 (E.D.N.Y. Nov. 16, 2020),
report and recommendation adopted by Dkt. Order Adopting R&R (E.D.N.Y. Mar. 22, 2021).

Under the second prong of the Berkovitz-Gaubert test, a court must evaluate whether a
judgment or choice is “grounded in ‘considerations of public policy’ or susceptible to policy
analysis.” Coulthurst, 214 F.3d at 109 (2d Cir. 2000) (quoting Gaubert, 499 U.S. at 322-23).
Where a “complaint was broad enough to cover both the types of negligence that are covered by
the [discretionary function exception]” and “the types of negligence that fall outside of the
[discretionary function exception],” a district court “err[s] in assuming that the negligence alleged
in the complaint involved only discretionary functions.” Id. at 109-10 (vacating dismissal of
complaint because the complaint “[was] susceptible to various readings” on how government
official’s conduct may have caused the injuries complained of).
Here, the SAC is likewise subject to various readings, including that FCI-Danbury staff
were careless, or inattentive with respect to the consequences of the lack of heat at FCI-Danbury
for weeks. Plaintiff alleges that FCI-Danbury was aware that the heat had stopped working during
the 2018-19 winter and, instead of fixing the issue, the staff installed a makeshift heating system
that pumped chemical-ladened air into the facility. SAC ¶¶ 48-50. According to Plaintiff, inmates
were told to use cardboards to cover gaps in the doorways where the makeshift was installed to
block the incoming cold air and they were denied additional blankets. Id. ¶¶ 58, 61. Plaintiff
asserts that she and other inmates were threatened to be sent to SHU if they complained about the
lack of heat and the toxic fumes and an assistant warden sent to SHU an inmate who had
complained to make a public example of her, id. ¶62-63, and further, she recounts that the warden
said that he would “fuck anyone that fucked with his job!” Id. ¶ 65. Plaintiff alleges that she told
an officer that she was feeling sick from the fumes but he ignored her, and when she lost
consciousness, the officer was ordered not take her to medical unit for treatment. Id. ¶¶ 67-73.
Therefore, she asserts that FCI Danbury was “reckless, grossly negligent, and careless” in how it

“treated [her]” and exhibited a “total disregard for the health and well-being of prisoners.” Id. ¶
80.
At the pleading stage, the Court need not determine the merits of the “negligent guard
theory” in this case or even its capacity to withstand summary judgment, to allow a claim to
proceed. See Scott, 2020 WL 8611292, at *14 (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 475-76 (2d Cir. 2006)); cf. Coulthurst, 214 F.3d at 111 (while a plaintiff is not entitled
to trial on an ambiguous complaint, dismissal “cannot be justified given the ambiguous
allegations”). On these facts, Plaintiff has plausibly alleged that the inadequate heating conditions
at FCI-Danbury were the result of the FCI Danbury staff’s careless inattention and the harsh
conditions they created. Plaintiff has also plausibly alleged that the decisions leading to the
inattention and conditions “were not properly addressed out of lack of concern and laziness” and
were not rooted in policy considerations. Scott, 2020 WL 8611292, at *14.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is granted with respect to
Plaintiff’s claims related to dental treatment received prior to January 30, 2019, and Plaintiff’s
claim for unusual and cruel punishment under Eighth Amendment, and denied with respect to

Plaintiff’s claims related to dental treatment received at FCI-Danbury after January 30, 2019, and
related to heating conditions at FCI-Danbury during winter 2018-19.

SO ORDERED.

March 6, 2025
Brooklyn, New York

/s/
ORELIA E. MERCHANT
United States District Judge