Fernandini v. Samuels et al

Filing 106

MEMORANDUM OPINION AND ORDER re: 94 MOTION to Dismiss in Part, and for a Stay of Discovery. filed by John Sacco, Jamal Jamison, Andrew Butler, Federal Bureau of Prisons, Henry Heaney, E. Ramos, MLP, United States Of America, Vi d Parsan, Octavio Matos, Kenneth Alvarado, Charles E. Samuels, Jr., Charles Iwuagwu, Kenneth Haas, Brenda Dean, Catherine L. Linaweaver, Pat Nicholson, Wingate, Metropolitan Correctional Center New York, Chito Evangelista, Anthony Bussan ich, M.D., Dennis Perez, Ivy Jenkins-Cardew. The Court grants Plaintiff leave to amend the complaint, solely with respect to those claims that were not dismissed with prejudice, to correct the deficiencies identified in this opinion. Any amended complaint will replace, not supplement, all prior complaints, and must be filed no later than 30 days after the date of this order The Clerk of Court is directed to terminate the motion pending at Dkt. No. 94. SO ORDERED. (Signed by Judge Gregory H. Woods on 7/26/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------------X
:
LEVIT FERNANDINI,
:
:
Plaintiff,
:
:
-v:
:
UNITED STATES OF AMERICA,
:
METROPOLITAN CORRECTIONAL
:
CENTER NEW YORK, FEDERAL BUREAU
:
OF PRISONS, CHARLES E. SAMUELS, JR.,
:
Director of the FBOP, CATHERINE L.
:
LINAWEAVER, Warden, CHARLES
:
IWAUGWU, Associate Warden; KENNETH
:
HAAS, Unit Manager, 11-South, IVY JENKINS:
CARDEW, Case Manager, 11-South, WANDA
:
WINGATE, Correctional Counselor, ANDREW
:
BUTLER, JAMAL JAMISON, & DENNIS
:
PEREZ, Safety Managers, JOHN SACCO &
:
OCTAVIO MATOS, MCC HVAC Supervisors,
:
KENNETH ALVARADO & HENRY
:
HEANEY, Plumbing Supervisors, PAT
:
NICHOLSON, BRENDA DEAN & VID
:
PARSAN, Facilities Supervisors, ANTHONY
:
BUSSANICH, MD, Medical Director, ERWIN
:
RAMOS & CHITO EVANGELISTA, Medical
:
Practitioners,
:
Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 07/26/2017

1:15-cv-3843-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, District Judge:
I.

INTRODUCTION
Plaintiff Levit Fernandini alleges that, while he was housed at the Metropolitan Correctional

Center New York (“MCC”) as a pre-trial detainee, the plumbing was not maintained and that the
toilets in the facility overflowed, resulting in unbearable filth and smells. He also claims that the
facility was overrun with rats and mice and covered in dust and dust mites. Plaintiff further alleges
that he was bitten by one of the rats, and that the MCC medical staff forced him to wait for
treatment and then failed to provide adequate treatment for his bite. Plaintiff initiated this litigation

in 2015, and over the course of multiple amendments to his complaint, has brought claims under the
Federal Tort Claims Act (“FTCA”) against the United States, and tort and Bivens claims against
nineteen individually-named Federal Bureau of Prisons (“BOP”) employees and officers.
Defendants have moved to partially dismiss Plaintiff’s Third Amended Complaint (“TAC”) because,
among other reasons, Plaintiff’s FTCA claims are time-barred and because his allegations regarding
supervisory liability are not plausible. Because the TAC relates back to an earlier complaint that was
filed when the FTCA claims were timely, and because the TAC pleads direct involvement of all
Defendants and the Court cannot consider the government’s extrinsic evidence concerning those
Defendants’ roles within the BOP, those claims survive. Plaintiff’s claims for deliberate indifference
to serious medical needs are dismissed, however, for failure to state a claim. Defendants’ motion to
dismiss the TAC is GRANTED IN PART and DENIED IN PART.
II.

BACKGROUND
Beginning in July 2011, Plaintiff Levit Fernandini was a pre-trial detainee at the MCC,

housed in a unit referred to in the TAC as “11 South.” TAC ¶ 1. He alleges that while at MCC, he
suffered inhumane conditions of confinement and was given inadequate medical attention. First,
Mr. Fernandini claims that at least twice during the month of December 2013, there were problems
with the plumbing system at MCC such that sewage from toilets was “back[ed]-up for days on end.”
TAC ¶ 2. The TAC alleges that inmates were “force[d] to defecate in plastic bags,” and that many
inmates used the showers as toilets during this time. TAC ¶ 2. This led to repulsive conditions that
gave Plaintiff headaches, caused his eyes to burn, and led to stomach pains. Mr. Fernandini also
alleges that his headaches were caused by the mold, rust, and dust in his unit, all the result of a faulty
ventilation system. TAC ¶ 2. Finally, Mr. Fernandini notes that the unit was infested with rats and
mice. TAC ¶ 2.

2

Plaintiff alleges that on January 6, 2014, he was bitten by a rat on his arm. TAC ¶ 3. The
area around Mr. Fernandini’s rat bite became infected, his arm was swollen “for a period of time,”
and he experienced “a burning sensation and numbness radiating up his arm and down to his hand.”
TAC ¶ 3. He alleges that “he was in fact denied overall medical attention” from the date of the bite
until January 9, 2014, when he was seen by MCC medical staff, and that he was denied any follow-up
care until January 17, 2014. TAC ¶ 3. He also alleges that the medical staff “ignored his request for
additional treatment” and denied a request “to be taken to a[ ] physician outside the facility.” TAC
¶ 3.
Based on the exhibits attached to the TAC, Plaintiff was seen by the MCC medical staff on
three occasions: January 9, 2014, January 17, 2014, and April 30, 2014. See TAC Exs. E, F, and G
(“Clinic Encounter” reports). At the January 9, 2014 clinic encounter, MCC staff diagnosed Plaintiff
with a “lower arm insect bite, nonvenomous, infected,” prescribed him a ten-day dose of
amoxicillin, and gave him a tetanus shot. TAC Ex. E at 2. On January 17, 2014, he was again seen
by MCC medical staff for the bite and was given a second dose of antibiotics and naproxen for his
pain. TAC Ex. F at 2, 4. Three months later, Mr. Fernandini complained to MCC medical staff of a
rash on his arm, expressing to the MCC staff that the rash was a result of the January bite. TAC Ex.
G. at 1. The clinic encounter report from that visit indicates that the MCC medical staff explained
that the rash was unrelated to the bite, prescribed a cream for the rash, and again prescribed
naproxen for Mr. Fernandini’s pain. TAC Ex. G at 2 (“Inmate appears to have two unrelated issues,
inmate advised arm probably dermatitis.”).
Mr. Fernandini also alleges that he made a complaint when he felt chest pain, including
“sever[e] pain whenever he breathed, [and] a pinching pain in the area of his heart.” TAC ¶ 4.
Plaintiff explains that he made this complaint to a correctional officer in his housing unit and to “the

3

medical called down for him,” but that he was merely questioned about his pain without a medical
examination. TAC ¶ 4.
The TAC alleges that Mr. Fernandini filed various written forms complaining of inhumane
conditions and inadequate treatment of his alleged rat bite. TAC ¶¶ 5-14. He attaches to the TAC
administrative forms BP-08, BP-09, BP-10, and his Tort Claim Form. TAC Exs. A, B, C, and H.
III.

PROCEDURAL POSTURE
Plaintiff filed his initial complaint on May 8, 2015, naming multiple John Doe defendants.

Dkt. No. 1. After the U.S. Attorney identified some of the individual John and Jane Doe
defendants, the Plaintiff amended his complaint on September 11, 2015. Dkt. No. 9. After
additional John Doe defendants were identified, Plaintiff filed a second amended complaint on
February 11, 2016. Dkt. No. 35 (“SAC”). Defendants then moved to dismiss the SAC or, in the
alternative, for summary judgment, but the Court withdrew that motion on August 1, 2016
following Plaintiff’s request to amend his complaint. On November 13, 2016, Plaintiff filed his
third amended complaint, adding the United States, the BOP, and the MCC as Defendants. Dkt.
No. 79 (“TAC”).
On December 9, 2016, Defendants filed a partial motion to dismiss the TAC. Dkt. No. 88.
Pursuant to the Court’s November 7, 2016 order, Plaintiff’s opposition was due on January 24,
2017. Dkt. No. 83. Plaintiff did not file a brief in opposition by that date, and on January 31, 2017,
the Court extended Plaintiff’s deadline to February 10, 2017. Dkt. No. 96. Plaintiff did not file any
opposition by that date, and the Court informed Plaintiff that it would decide Defendants’ partial
motion to dismiss in the ordinary course. Dkt. No. 98. As of the date of this opinion, no
opposition had been filed.

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IV.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Rule 8 “does not require
detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, 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. at 678 (2009) (quoting Twombly, 550 U.S. at 570). “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). It is not
enough for a plaintiff to allege facts that are consistent with liability; the complaint must “nudge”
claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
In determining the adequacy of a claim under Rule 12(b)(6), a court is generally limited to
“facts stated on the face of the complaint,” “documents appended to the complaint or incorporated
in the complaint by reference,” and “matters of which judicial notice may be taken.” Goel v. Bunge,
Ltd., 820 F.3d 554, 559 (2d Cir. 2016). The court must accept all facts alleged in the complaint as
true and draw all reasonable inferences in the plaintiff’s favor. Burch v. Pioneer Credit Recovery, Inc., 551
F.3d 122, 124 (2d Cir. 2008) (per curiam). Legal conclusions, unlike facts, are not entitled to an
assumption of truth. Iqbal, 556 U.S. at 679. A complaint that offers “labels and conclusions” or
“naked assertion[s]” without “further factual enhancement” will not survive a motion to dismiss. Id.
at 678 (citing Twombly, 550 U.S. at 555, 557).
Even under this plausibility standard, district courts “remain obligated to construe pro se
complaints liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see Sealed Plaintiff v. Sealed
Defendant # 1, 537 F.3d 185, 191 (2d Cir. 2008); Boykin v. KeyCorp, 521 F.3d 202, 213-14, 216 (2d Cir.
5

2008). Thus, while pro se complaints must contain sufficient factual allegations to meet the
plausibility standard, district courts should look for such allegations by reading pro se complaints with
“special solicitude” and interpreting them to raise the “strongest [claims] that they suggest.” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (emphasis in original).
Additionally, the Court may consider “‘any written instrument attached to it as an exhibit or
any statements or documents incorporated in it by reference,’” as well as any document not attached
or incorporated by reference if “the complaint ‘relies heavily upon its terms and effect,’ [rendering]
the document ‘integral’ to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002) (internal citations omitted) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir. 1995)). “The court need not accept as true an allegation that is contradicted by
documents on which the complaint relies.” In re Bristol-Myers Squibb Sec. Litig., 312 F. Supp. 2d 549,
555 (S.D.N.Y. 2004); see also Rapoport v. Asia Elecs. Holding Co., 88 F. Supp. 2d 179, 184 (S.D.N.Y.
2000) (“If these documents contradict the allegations of the amended complaint, the documents
control.”); Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 400 (S.D.N.Y. 2002) (“If a plaintiff’s
allegations are contradicted by [a document attached to the complaint as an exhibit], those
allegations are insufficient to defeat a [Rule 12(b)(6)] motion to dismiss.”).
V.

DISCUSSION
A. Plaintiff’s FTCA Claims Against Parties Other than the United States Are Dismissed
In the TAC, Plaintiff brings claims under the FTCA against the United States, the BOP, the

MCC, and some—but not all—of the Individual Defendants (Samuels, Linaweaver, Iwaugwu, Haas,
Jenkins-Cardew, Wingate, Perez, Sacco, Matos, Heaney, Alvarado, Nicholson, Dean, Parsan,
Bussanich, and Evangelista).1
1 On March 22, 2017, the Court dismissed Plaintiff’s claims against the BOP and the MCC because the
United States is the only proper party under the FTCA. Dkt. No. 102.

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Section 2679(b)(1) of the FTCA provides that a plaintiff’s exclusive remedy for tort claims
against individual government employees acting within the scope of their office or employment is to
bring an FTCA claim against the United States.2 This provision of the FTCA “does not, however,
deprive plaintiffs of a remedy; it merely makes suit against the United States the exclusive remedy.”
Rivera v. United States, 928 F.2d 592, 609 (2d Cir. 1991). Because “[t]he only proper defendant to a
tort claim under the FTCA is the United States,” Plaintiff’s FTCA claims against the Individual
Defendants are dismissed. Skyers v. Sommer, No. 12-CV-3432 (RWS), 2016 WL 4484241, at *7
(S.D.N.Y. Aug. 23, 2016).
B. Plaintiff’s FTCA Claim Against the United States Relates Back to a Timely-Filed
Complaint
Defendants contend that although the United States is the properly named party under the
FTCA, Plaintiff’s FTCA claim against the United States is untimely. FTCA claims must be brought
“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); see also Willis v. United
States, 719 F.2d 608, 610-13 (2d Cir. 1983) (explaining the legislative history of § 2401(b)). Plaintiff
alleges that he received the final denial of his administrative tort claim on November 9, 2015. TAC
¶ 14. Defendants contend that because Plaintiff did not formally add the FTCA as a claim and the
United States as a party until the October 13, 2016 filing of the TAC, his FTCA claims are timebarred. The Court disagrees.

As the Court explained in its memorandum opinion and order denying Plaintiff’s motion for summary
judgment, Dkt. No. 105, formal “scope certification” is not required to fulfill this requirement, and a brief
filed by the United States on behalf of defendant employees may serve as a petition to certify that they were
acting within the scope of their employment. See Cates v. Williams, No. 08-CV-1529, 2009 WL 723021, at *5
(S.D.N.Y. Mar. 19, 2009), aff’d sub nom. Cates v. Potter, 363 F. App’x 822 (2d Cir. 2010); Zandstra v. Cross, No.
10-CIV-5143, 2012 WL 383854, at *3 (S.D.N.Y. Feb. 6, 2012) (“A brief on behalf of the named defendants
may serve as such a petition.”) (citing B & A Marine Co., Inc. v. American Foreign Shipping Co., Inc. 23 F.3d 709,
715-16 (2d Cir. 1994)). In its opinion, the Court held that the partial motion to dismiss the TAC served as
the petition certifying that the defendant employees were acting within the scope of their employment at the
time Plaintiff was allegedly injured. Dkt. No. 105 at 5.

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Once his administrative tort claim was denied in November 2015, Plaintiff had six months—
that is, until May 2016—to amend his complaint to add claims under the FTCA. On February 11,
2016—approximately three months into the six-month window—Plaintiff filed his SAC, contending
on the first page that his action was brought pursuant to, among other statutes, 28 U.S.C. §§ 2671,
2674, and 2679. Those three statutes are part of the FTCA, and concern the liability of the United
States and the exclusiveness of the FTCA as a remedy for tort claims against individual government
employees. Further, in at least two of his claims for gross negligence and deliberate/reckless
indifference in the SAC, Plaintiff alleges that “[a]t all times during the course of [a particular
defendant’s] employment, the United States was and is responsible for the behavior of the defendant
as a federal employee, while acting within the scope of his employment.” SAC ¶ 34. That language
is a clear reference to the FTCA statutes. See, e.g., 28 U.S.C. § 2679(b)(1) (“The remedy against the
United States provided by sections 1346(b) and 2672 of this title for injury . . . resulting from the
negligent or wrongful act or omission of any employee of the Government while acting within the scope
of his office or employment is exclusive of any other civil action or proceeding for money damages . . . .)
(emphasis added). Reading Plaintiff’s SAC with the “special solicitude” required for pro se litigants,
the Court interprets the SAC to have raised claims under the FTCA. See Triestman v. Fed. Bureau of
Prisons, 470 F.3d at 474-75. Because the SAC was brought within six months of the denial of
Plaintiff’s administrative tort claim, his FTCA claims were timely.
That Plaintiff only formally added the United States and named the FTCA in his TAC does
not render his claims untimely, even though the TAC was not filed within the six-month period
following Plaintiff’s final notice of denial. Under Federal Rule of Civil Procedure 15(c), “an
amended complaint is not time barred if it ‘relates back’ to a timely filed complaint.” VKK Corp. v.
Nat’l Football League, 244 F.3d 114, 128 (2d Cir. 2001). “The goal of relation-back principles is to
prevent parties against whom claims are made from taking unjust advantage of otherwise
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inconsequential pleading errors to sustain a limitations defense.” Id. (internal citations omitted); see
also Fed. R. Civ. P. 15 Advisory Committee Notes (1991).
Rule 15(c)(1) provides that an amendment will relate back when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on
the merits; and
(ii) knew or should have known that the action would have been brought against it,
but for a mistake concerning the proper party's identity.
The 1966 amendments to the Federal Rules added a provision that specifically applies when
a litigant seeks to add the United States as a defendant by amendment. Rule 15(c)(2) explains that
when the United States is added, “the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied
if, during the stated period, process was delivered or mailed to the United States attorney or the
United States attorneys designee, to the Attorney General of the United States, or to the officer or
agency.” See Wright & Miller, Fed. Prac. & Proc. § 1502 (explaining that 15(c)(2) “establishes an
irrebuttable presumption” that if proper service is made on the U.S. Attorney, the notice
requirements of Rule 15(c)(1)(C) are met).
Here, there is no question that Plaintiff’s FTCA claims “arose out of the conduct,
transaction, or occurrence” set out in the tort claims in SAC. Those claims, which relate to
Plaintiff’s conditions of confinement and his alleged rat bite, are identical to the FTCA claims in the
TAC. Finally, although there were some technical difficulties in actually initiating this litigation and
with Plaintiff acquiring the appropriate forms to effectuate service, the U.S. Attorney’s Office was
served, and accepted service as timely as evidenced by the U.S. Attorney’s active participation in this
case for the last two years. Plaintiff’s addition of the United States as a defendant and his formal
naming of the FTCA in the TAC thus relates back to timely claims contained in the SAC, and are
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not time-barred.3
C. Lack of Administrative Exhaustion Not Apparent on the Face of the TAC
Defendants contend that some of Plaintiff’s Bivens claims—specifically those that relate to
Defendants’ alleged failure to ensure access to a workable toilet, to maintain a ventilation system that
kept the facility free of dust and dust mites, and to adequately respond to Plaintiff’s complaints of
chest pains—must be dismissed for failure to exhaust administrative remedies.
The Prison Litigation Reform Act (“PLRA”) provides: “No action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C.A. § 1997e(a). The purpose of the administrative exhaustion
requirement is to “afford [ ] corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case.” Porter, 534 U.S. at 524-25. Accordingly,
the Second Circuit has held that in order to exhaust his administrative remedies, an inmate must
“provide enough information about the conduct of which they complain to allow prison officials to
take appropriate responsive measures.” Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004).
“[F]ailure to exhaust is an affirmative defense under the PLRA,” and “inmates are not
required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S.

Defendants argue that Plaintiff’s TAC must relate back to Plaintiff’s first-filed complaint. Dkt. No. 90,
Defs.’ Mot. to Dismiss at 10-11. That complaint was filed on May 8, 2015. As such, the government
contends that, to the extent the FTCA claims in the TAC relate back to that complaint, the Court must
dismiss Plaintiff’s claims because Plaintiff had not yet received his denial of his administrative tort claim by
that date, and thus the Court lacks subject-matter jurisdiction over the claims. The government’s arguments
fail to take into account Plaintiff’s SAC, which the Court construes as raising FTCA claims, and which was
filed within the statutory time for bringing those claims. In light of the Second Circuit’s acknowledgement
that the goal of relation-back is to prevent parties from “taking unjust advantage of otherwise inconsequential
pleading errors,” and in particular because the Federal Rules indicate that the addition of Rule 15(c)(2) was
based on the realty that once the U.S. Attorney’s office receives notice, denying relation back for parties also
represented by the U.S. Attorney “is to defeat unjustly the claimant’s opportunity to prove his case,” the
Court does not conclude that Rule 15 limits the relation-back doctrine to Plaintiff’s initial complaint. See
VKK Corp., 244 F.3d at 128; see also Fed. R. Civ. P. 15 Advisory Committee Notes (1966).

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199, 216 (2007); see also Porter v. Nussle, 534 U.S. 516, 524 (2002) (discussing the application of the
exhaustion requirement to Bivens claims). Nevertheless, a complaint may be dismissed where, “on
the face of the [c]omplaint, it is clear that [a] plaintiff did not exhaust [administrative] remedies.”
Williams v. Dep’t of Corr., No. 11-cv-1515 (SAS), 2011 WL 3962596, at *5 (S.D.N.Y. Sept. 7, 2011); see
also McCoy v. Goord, 255 F. Supp. 2d 233, 249 (S.D.N.Y. 2003) (“If failure to exhaust is apparent from
the face of the complaint, however, a Rule 12(b)(6) motion is the proper vehicle.”).
Plaintiff attaches numerous documents to the TAC related to his administrative grievance
process at MCC.4 See TAC, Ex. A (BP-08); Ex. B (BP-09), Ex. C (BP-10). Defendants argue that
those grievance forms do not mention Plaintiff’s complaints concerning toilets, dust, mold, rust, or
Plaintiff’s chest pains, and thus that those claims were not exhausted and cannot proceed in this
litigation. While it is true that the forms Plaintiff attaches to the complaint are solely concerned with
the rodent infestation in the housing unit and the medical response to his alleged rat bite, it is not
clear on the face of the TAC that Plaintiff did not also exhaust the other claims, but did so in
paperwork not attached to the TAC. The Supreme Court has made clear that it is not an inmate’s
burden to plead exhaustion. Jones v. Bock, 549 U.S. at 216. The Court cannot assume that the
attachments to Plaintiff’s complaint constitute the entirety of the relevant record, and will not

Because the MCC is a Federal BOP facility, Plaintiff’s claims must have satisfied the “Administrative
Remedy Program,” which requires that the inmate “(1) seek informal resolution of his grievance through an
internal procedure; (2) file an Administrative Remedy Request using the BP–9 form addressed to the Warden
within twenty days of the incident; (3) file a Regional Appeal of any unfavorable response on a BP–10 form
to the Regional Director within twenty days of the Warden's response; and (4) further appeal any decision to
the General Counsel in Washington D.C. within thirty days of a response.” Rodriguez v. Warden, Metro. Corr.
Facility, No. 13 CIV. 3643, 2015 WL 857817, at *3 (S.D.N.Y. Feb. 27, 2015); see 28 C.F.R. § 542.13-542.15.
The regulations governing this administrative process note that an inmate may only grieve “a single complaint
or a reasonable number of closely related issues” at one time. 28 C.F.R. § 542.14(c) (“If the inmate includes
on a single form multiple unrelated issues, the submission shall be rejected and returned without response,
and the inmate shall be advised to use a separate form for each unrelated issue.”). Furthermore, in each level
of the grievance process (referred to as “Appeals”), an inmate is not permitted to raise issues “not raised in
the lower level filings,” and is not permitted to combine separate lower level responses into one Appeal. 28
C.F.R. § 542.15(b)(2).
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implicitly shift the burden on Plaintiff by drawing conclusions about what he chose to attach to the
TAC. Because it is not clear on the face of the complaint that Plaintiff’s claims have not been
exhausted, Defendants’ motion to dismiss Plaintiff’s Bivens claims related to his conditions of
confinement is denied.
D. Plaintiff Fails to State a Claim for Deliberate Indifference to His Serious Medical
Needs
Plaintiff alleges that Defendants denied him medical treatment for his alleged rat bite for
three days, from January 6, 2014 to January 9, 2014, and that Defendants did not provide any
follow-up care after his January 9, 2014 clinic visit until January 17, 2014. TAC ¶ 3. He also alleges
that the medical staff “ignored his request for additional treatment and his request to be taken to a[]
physician outside the facility [was] denied.” TAC ¶ 3. Plaintiff brings claims related to these
allegations for deliberate indifference to his injuries in violation of the Eighth Amendment.5 TAC at
8 (Count Four).
A claim of deliberate indifference to serious medical needs has typically been analyzed under
a two-pronged standard. “The first requirement is objective: ‘the alleged deprivation of adequate
medical care must be ‘sufficiently serious.’” Spavone v. New York State Dep’t of Correctional Servs., 719
F.3d 127, 139 (2d Cir. 2013) (quoting Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006)). “The
second requirement is subjective: the charged officials must be subjectively reckless in their denial
of medical care.” Id. As the Second Circuit explained in its recent decision concerning this two-

Although Plaintiff alleges that Defendants violated the Eighth Amendment in failing to provide him with
adequate and timely medical care, when such claims are brought by pretrial detainees, they “are governed by
the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments
Clause of the Eighth Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). This is because “pretrial
detainees have not been convicted of a crime and thus may not be punished in any manner—neither cruelly
and unusually nor otherwise.” Id. (citation and internal quotation marks omitted). Regardless, Darnell held
that the first, objective prong of the standard for deliberate indifference —that the alleged deprivation or
condition is “sufficiently serious”— is the same under both the Eighth and the Fourteenth Amendments. Id.
at 30.
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prong standard, the subjective “mens rea prong” of deliberate indifference to serious medical needs
claims under the Fourteenth Amendment be analyzed objectively: rather than ask whether the
charged official “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety,” courts are
to instead determine whether the official “knew, or should have known” that his or her conduct
“posed an excessive risk to health or safety.” Darnell, 849 F.3d at 33, 35. Here, the Court need not
reach the subjective prong of this standard, because Plaintiff has not pleaded facts to allege that the
alleged deprivation was sufficiently serious.
To meet the objective prong of the deliberate indifference standard, “the alleged deprivation
must be sufficiently serious, in the sense that a condition of urgency, one that may produce death,
degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). As the
Second Circuit explained,
[d]etermining whether a deprivation is an objectively serious deprivation entails two
inquiries. The first inquiry is whether the prisoner was actually deprived of adequate medical
care. As the Supreme Court has noted, the prison official’s duty is only to provide
reasonable care. Thus, prison officials who act reasonably in response to an inmate-health
risk cannot be found liable under the Cruel and Unusual Punishments Clause, and,
conversely, failing to take reasonable measures in response to a medical condition can lead to
liability. Second, the objective test asks whether the inadequacy in medical care is sufficiently
serious. This inquiry requires the court to examine how the offending conduct is inadequate
and what harm, if any, the inadequacy has caused or will likely cause the prisoner. For
example, if the unreasonable medical care is a failure to provide any treatment for an
inmate’s medical condition, courts examine whether the inmate’s medical condition is
sufficiently serious. Factors relevant to the seriousness of a medical condition include
whether a reasonable doctor or patient would find it important and worthy of comment,
whether the condition significantly affects an individual’s daily activities, and whether it
causes chronic and substantial pain.
Salahuddin v. Goord, 467 F.3d at 279-280 (internal citations and quotation marks omitted).
In cases such as this one, where some treatment was given but the plaintiff alleges that that
treatment was inadequate, “the seriousness inquiry focus[es] on the challenged delay or interruption
in treatment rather than the prisoner’s underlying medical condition alone.” Id. at 280 (quoting
Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (internal quotation marks omitted)). “Where
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temporary delays or interruptions in the provision of medical treatment have been found to satisfy
the objective seriousness requirement in this Circuit, they have involved either a needlessly
prolonged period of delay, or a delay which caused extreme pain or exacerbated a serious illness.”
Ferguson v. Cai, No. 11-cv-6181, 2012 WL 2865474, at *4 (S.D.N.Y. July 12, 2012); see also Feliciano v.
Anderson, No. 15-cv-4106, 2017 WL 1189747, at *11 (S.D.N.Y. Mar. 30, 2017) (“Although a delay in
providing necessary medical care may in some cases constitute deliberate indifference, [the Second
Circuit] has reserved such a classification for cases in which, for example, officials deliberately
delayed care as a form of punishment; ignored a ‘life-threatening and fast-degenerating’ condition
for three days; or delayed major surgery for over two years.”) (citing Demata v. N.Y. State Corr. Dep’t
of Health Servs., 198 F.3d 233 (2d Cir. 1999) (unpublished)).
Here, Plaintiff alleges that he was bitten by a rat on his arm on January 6, 2014. TAC ¶ 3. 6
On January 9, 2014—three days later—Plaintiff received medical treatment for his bite from the
MCC staff in the form of a tetanus shot and a ten-day dose of amoxicillin. TAC Ex. E at 2. He also
had an x-ray taken of his arm. Id. On January 17, 2017—before his ten-day dose of amoxicillin had
run its full course—Plaintiff was again seen by MCC medical staff and was given further treatment,
including a new prescription for doxycycline. TAC Ex. F at 5. Plaintiff does not plead facts that
suggest that this treatment was objectively unreasonable. Plaintiff was provided with antibiotics for
his infection, his clinic visit involved what appears to be a comprehensive medical evaluation,

As noted above, on a motion to dismiss, “[t]he court need not accept as true an allegation that is
contradicted by documents on which the complaint relies.” In re Bristol-Myers Squibb Sec. Litig., 312 F. Supp.
2d at 555. Here, Plaintiff alleges he was bitten by a rat, and the clinic encounter reports attached to the TAC
show that that is what Plaintiff complained of when he met with MCC medical staff. See TAC Ex. E at 1; Ex.
F at 1; Ex. G at 1. However, all of the clinic encounter reports assess the injury as a “lower arm insect bite,
non venomous.” Id. Because the Court finds below that the treatment of Plaintiff’s bite was reasonable, and
therefore not subject to a claim for deliberate indifference of serious medical needs, it need not reach a
conclusion concerning which kind of vermin bit Plaintiff.

6

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including an x-ray, and Plaintiff was provided with follow-up treatment within two weeks of his first
visit.
Even if the Court found that this treatment was unreasonable, however, the alleged
deprivation of treatment was not sufficiently serious to rise to the level of a constitutional violation.
The allegations in the TAC do not suggest that the three-day delay in receiving medical treatment
was “needlessly prolonged.” While the Court accepts as true that Plaintiff felt pain from the bite,
and that he experienced “a burning sensation and numbness radiating up his arm and down to his
hand,” nothing in the TAC suggests that the three-day wait time caused “chronic and substantial
pain” or worsened Plaintiff’s condition. Plaintiff received treatment within a few days, and received
follow-up treatment soon after. The pleadings do not plausibly allege that Plaintiff suffered a
particular risk of harm by virtue of being required to wait three days for treatment of his bite, and
thus Plaintiff has not adequately pleaded a claim for deliberate indifference to his medical needs
arising from this bite.
Additionally, Plaintiff has not adequately pleaded a claim for deliberate indifference to his
medical needs related to his complaints of chest pain. In February 2014, Plaintiff complained of
chest pains and was questioned but not examined by MCC medical staff. Plaintiff alleges that the
medical staff’s failure to provide treatment after questioning him was inadequate because his pain
“should have been considered by the medical staff as a serious situation.” TAC ¶ 4. Courts in this
district have held, however, that chest pain alone does not meet the objective standard of a
sufficiently serious medical condition for purposes of a deliberate indifference claim. See Hutchinson
v. N.Y. State Corr. Officers, No. 02-CV-2407, 2003 WL 22056997, at *5 (S.D.N.Y. Sept. 4, 2003)
(holding the plaintiffs’ allegation “that [the decedent] was experiencing “chest pains” . . . does not
constitute a sufficiently serious condition” (citation omitted)); Flemming v. Velardi, No. 02-CIV-4113,
2003 WL 21756108, at *2 (S.D.N.Y. July 30, 2003) (finding allegations of “chest pains” and
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“discomfort” insufficient for an Eighth Amendment claim). Plaintiff does not claim that this alleged
deprivation of care resulted in any greater risk of harm, or that it had any effect on his health
whatsoever. Plaintiff’s claims for deliberate indifference to medical needs is dismissed. As a result
of dismissing this claim, Defendants Bussanich, Evangelista, and Ramos—all members of the MCC
medical staff—are dismissed from this case.
E. The Individual Defendants Are Not Dismissed
Defendants move to dismiss the Individual Defendants who they identify as having
supervisory responsibilities from this case because, they assert, Plaintiff’s allegations regarding those
individuals’ personal involvement in the alleged violations are not plausible. In order to state a claim
upon which relief may be granted, a plaintiff must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Because vicarious liability is inapplicable to Bivens . . . suits, a
plaintiff must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Id. at 676.
Plaintiff’s claim concerning his allegedly unconstitutional conditions of confinement has
been brought against Individual Defendants Samuels, Linaweaver, Iwaugwu, Haas, Jenkins-Cardew,
Wingate, Sacco, Matos, Heaney, Alvarado, Nicholson, Dean, Parsan, Jamison, and Butler.7 Plaintiff

Defendants move to dismiss the claims against Defendant Butler because the three-year statute of
limitations on Bivens claims in New York is three years, and Mr. Butler only worked at MCC from July to
November 2011. Defendants measure the three-year limitations period from the date commencement of this
action, and contend that any claims made concerning conduct before May 8, 2012 should be dismissed.
Defs.’ Mot. to Dismiss, at 26 n.15. At the motion to dismiss stage, however, dismissal on the grounds that
the statute of limitations has expired is appropriate only if the “complaint clearly shows the claim is out of
time.” Biro v. Conde Nast, 963 F. Supp. 2d 255, 266 (S.D.N.Y. 2013) (quoting Harris v. City of New York, 186
F.3d 243, 250 (2d Cir. 1999)); see also Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., 14 F. Supp. 3d 191, 209
(S.D.N.Y. 2014) (“Because the defendants bear the burden of establishing the expiration of
the statute of limitations as an affirmative defense, a pre-answer motion to dismiss on this ground may be
granted only if it is clear on the face of the complaint that the statute of limitations has run.”) (citation
omitted). Defendants urge the Court to rely on its response to the Court’s Valentin order as evidence that
Defendant Butler was only employed from July to November 2011. See Letter in Response to Valentin Order,
7

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alleges that the Individual Defendants “all in fact had knowledge of the tiers . . . of 11-South being
infested with mice, rats, and insects because they were required to make daily routine inspection
checks of the living areas.” TAC at 18. Defendants move to dismiss only Defendants Samuels,
Linaweaver, Iwaugwu, Haas, and Jenkins-Cardew, contending that Plaintiff’s allegations against
these “high-level supervisor[s]” are implausible because these individuals “would not have had such
responsibilities” by virtue of their positions within the BOP or at the MCC facility. Defs.’ Mot. to
Dismiss at 21. Defendants conclude—without citation to the TAC—that Plaintiff “appears to be
suing [these Individual Defendants] based on their supervisory positions alone.” Id. at 22.
The Court cannot adopt Defendants’ conclusion. On a motion to dismiss, the Court may
only consider facts stated on the face of the complaint or documents incorporated into the
complaint by reference. Goel v. Bunge, Ltd., 820 F.3d at 559. Nothing in Plaintiff’s TAC suggests
that these particular individuals were supervisors that would not have had the responsibilities of
making daily checks of Plaintiff’s housing unit. Instead, Defendants urge the Court to accept the
factual statements presented in their motion to dismiss that these individuals would have only had
supervisory roles and then to weigh those facts against Plaintiff’s pleaded facts in the Court’s
assessment of the plausibility of Plaintiff’s allegations. The information regarding the roles of these
Individual Defendants provided in their motion to dismiss is plainly outside the four corners of the
TAC. Moreover, in deciding a motion to dismiss, the Court “must accept all facts alleged in the
complaint as true.” Burch, 551 F.3d at 124. Thus the Court must accept Plaintiff’s allegation that all
Individual Defendants did have the responsibilities he alleges, and that they were all involved in the

Dkt. No. 25 at 1. That response, and the date range that Defendant Butler supposedly worked at the MCC, is
not incorporated into Plaintiff’s complaint. Nowhere in the TAC did Plaintiff adopt those dates, and thus the
Court may not consider that information—yet alone accept the information as true—on a motion to dismiss.
As such, it is not apparent on the face of the TAC that Plaintiff’s claims against Defendant Butler are
untimely, and the Court cannot dismiss that Defendant from the case.

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alleged constitutional violations as set forth in the TAC.8
VI.

CONCLUSION
For the reasons stated above, Defendants’ partial motion to dismiss is GRANTED IN

PART and DENIED IN PART. Plaintiff’s claims for deliberate indifference to medical needs are
dismissed without prejudice, as are Defendants Bussanich, Evangelista, and Ramos. Plaintiff’s
FTCA claim against the Individual Defendants is dismissed with prejudice. Plaintiff’s FTCA claim
against the United States of America, and his Bivens claim relating to the allegedly unconstitutional
conditions of confinement at MCC, may proceed as to the remaining Individual Defendants.
In this circuit, “[i]t is the usual practice upon granting a motion to dismiss to allow leave to
replead.” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991); see also Fed. R. Civ. P.
15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). Accordingly,
the Court grants Plaintiff leave to amend the complaint, solely with respect to those claims that were
not dismissed with prejudice, to correct the deficiencies identified in this opinion. Any amended
complaint will replace, not supplement, all prior complaints, and must be filed no later than 30 days
after the date of this order
The Clerk of Court is directed to terminate the motion pending at Dkt. No. 94.
SO ORDERED.
Dated: July 26, 2017
New York, New York

_____________________________________
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GREGORY H. WOODS
REGORY H
OR
OR
United States District Judge
nited

The Court observes that Defendants’ motion does not challenge the sufficiency of Plaintiff’s allegations
with respect to “non-supervisor” Defendants. But there is no difference in the facts pleaded as the basis for
liability for the Defendants labeled in their motion as “supervisors.” The only difference between the two
groups are the facts provided by Defendants in their motion, which the Court cannot consider in this context.

8