Cannenier v. Skipper-Scott et al

Filing 56

OPINION AND ORDER re: 36 MOTION to Dismiss . filed by R. Proto, Kiet Vuong, Georgy, Krishna Ajarie, Leslie McPherson-Anderson, Skipper-Scott. For the foregoing reasons, the United States is substituted as the named Defendant f or the FTCA claim, and Defendants' motion to dismiss the Complaint is GRANTED. If Plaintiff seeks leave to file an amended complaint, he shall file a letter application as described above on or before March 22, 2019. The Clerk of Court is resp ectfully directed to close the motion at Docket Number 36 and to mail a copy of this Opinion and Order to pro se Plaintiff. (As further set forth in this Order.) United States added. (Motions due by 3/22/2019.) (Signed by Judge Lorna G. Schofield on 2/20/2019) (cf) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------ X
:
:
QUAYSEAN CANNONIER,
:
Plaintiff,
:
:
-against:
:
WARDEN SKIPPER-SCOTT, et al.,
Defendants. :
------------------------------------------------------------ X

2/20/2019

18 Civ. 2383 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Pro se Plaintiff Quaysean Cannonier brings this action against Shirley Skipper-Scott,
Jossam Georgy, Rosa Proto, Kiet Vuong, Leslie McPherson-Anderson and Krishna Ajarie
(“Defendants”) who are Federal Bureau of Prisons (“BOP”) Officers,1 stemming from a head
wound Plaintiff sustained when stabbed by another inmate. The Complaint is construed to raise
claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), and the Federal Tort Claims Act (“FTCA”). Defendants move to dismiss for lack of
subject matter jurisdiction and for failure to state a claim. Fed. R. Civ. P. 12(b)(1), 12(b)(6). For
the reasons described herein, the motion is granted.

1

The Complaint also names as a Defendant the “Director of Brooklyn First Hospital.” In the
April 13, 2018, Order the Court stated:
The Court declines at this stage to issue a Valentin order as to the hospital
director. Plaintiff fails to provide sufficient detail about who this individual is and
what his role was in what occurred. When Plaintiff files an amended complaint to
add the names of the correction officers, he may provide more information about
the hospital director. The Court will reconsider the matter at that time.
Plaintiff did not provide more information, and thus the Director of Brooklyn First Hospital was
not served. As this Defendant was not served within 90 days after the complaint was filed and
Plaintiff was provided an opportunity to provide more information about the hospital director but
failed to do so, the Director of Brooklyn First Hospital is dismissed from this action pursuant to
Rule 4(m), Fed. R. Civ. P.

BACKGROUND
The facts are taken from the Complaint and Plaintiff’s opposition to the motion to
dismiss, and, as required on a motion to dismiss, these facts are accepted as true and construed in
the light most favorable to Plaintiff. Raymond Loubier Irrevocable Tr. v. Loubier, 858 F.3d 719,
725 (2d Cir. 2017); see also Coke v. Med., Dep’t of Corr. & Cmty. Supervision, No. 17 Civ.
0866, 2018 WL 2041388, at *1 n. 2 (S.D.N.Y. Apr. 30, 2018) (“[W]hen a pro se plaintiff’s
opposition memoranda raises new allegations that are consistent with the allegations in the
Complaint, these allegations may be read as supplements to th[e] pleadings.”) (some alteration in
original) (internal quotation marks omitted).
A.

The Stabbing and Subsequent Medical Treatment

In September 2016, Plaintiff was a pre-trial detainee at the Metropolitan Correctional
Center (“MCC”) in the Unit 11 North housing unit. On September 1, 2016, Defendants Vuong,
McPherson-Anderson and Ajarie conducted a general search of Unit 11 North for weapons and
contraband. Vuong, McPherson-Anderson and Ajarie failed to find a weapon kept by Joan
Vasquez, an inmate. On September 2, 2016, Vasquez used the weapon to stab Plaintiff in the
head. Ajarie was present for the attack but did not help Plaintiff or intervene. Plaintiff’s wound
caused heavy bleeding, and Plaintiff passed out as he tried to seek medical attention.
When Plaintiff awoke, he was being taken to Brooklyn First Hospital. At the hospital,
Plaintiff did not receive an MRI or X-ray.
Once Plaintiff returned to MCC, he was put in the “box” -- a special housing unit -- for
90 days even though no disciplinary charges were filed against him. Although Plaintiff
requested medical attention for his terrible pain, he did not receive medical care for a week. At
that time, he was given an MRI and X-ray.

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B.

Grievance Attempt

Plaintiff requested a BP-8 form (for an informal resolution) from Defendant Proto who
has been a BOP Officer for at least ten years. However, Proto knowingly gave Plaintiff a BP-9
form (a formal written complaint). Plaintiff’s completed BP-9 form includes allegations of
improper medical care because no MRI or X-ray was performed, but does not contain
information about the other claims raised in the Complaint. Plaintiff’s BP-9 was received on
October 27, 2016, and rejected on October 28, 2016. The rejection notice states that the BP-9
was rejected because Plaintiff did not attempt, or provide evidence of an attempt at, informal
resolution (i.e. a BP-8 form). The notice, which is attached to the Complaint, explains that
Plaintiff must first attempt informal resolution and that Plaintiff had five days to submit a proper
form.
LEGAL PRINCIPLES
A.

Motion to Dismiss for Lack of Subject Matter Jurisdiction

In order to survive a motion to dismiss under Rule 12(b)(1), “the plaintiff has the burden
of proving by a preponderance of the evidence that subject matter jurisdiction exists.” Katz v.
Donna Karan Co., 872 F.3d 114, 120 (2d Cir. 2017). All material allegations in the Complaint
are accepted as true, however, “argumentative inferences favorable to the party asserting
jurisdiction should not be drawn.” Atl. Mut. Ins. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196,
198 (2d Cir. 1992); accord Lucas v. Fed. Bureau of Prisons, No. 17 Civ. 1184, 2018 WL
3038496, at *2 (S.D.N.Y. June 19, 2018). In considering a Rule 12(b)(1) motion, a court may
rely on evidence outside the pleadings. Moser v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002);
accord Raymond Loubier Irrevocable Tr., 858 F.3d at 725.

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B.

Motion to Dismiss for Failure to State a Claim

On a motion to dismiss, a court accepts as true all well-pleaded factual allegations and
draws all reasonable inferences in favor of the non-moving party, Montero v. City of Yonkers,
890 F.3d 386, 391 (2d Cir. 2018), but gives “no effect to legal conclusions couched as factual
allegations,” Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017) (internal quotation
marks omitted). To withstand a motion to dismiss, a pleading “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)).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
C.

Pro se Pleadings and Briefs

Courts must “liberally construe pleadings and briefs submitted by pro se litigants, reading
such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the
Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks omitted). “The policy of
liberally construing pro se submissions is driven by the understanding that implicit in the right to
self-representation is an obligation . . . of the court to make reasonable allowances to protect pro
se litigants from inadvertent forfeiture of important rights because of their lack of legal training.”
Id. at 156–57 (internal quotation marks omitted). “We afford a pro se litigant special solicitude
by interpreting a complaint filed pro se to raise the strongest claims that it suggests.” Hardaway
v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018) (internal quotation marks
omitted).

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DISCUSSION
The Complaint is construed to raise an FTCA claim for negligence in failing to find the
weapon and Bivens claims for denying access to the grievance process, failure to protect against
an inmate’s assault, improper placement in a special housing unit, and deliberate indifference to
a serious medical need. For the following reasons, the motion to dismiss is granted.
A.

FTCA Claim

The Complaint raises a negligence claim against Defendants Vuong, McPhersonAnderson and Ajarie for failing to find the weapon used to stab him during their search of
Plaintiff’s housing unit. As explained below, the United States is substituted as the named
Defendant for Plaintiff’s FTCA negligence claim, and the claim is dismissed for lack of subject
matter jurisdiction. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82
(2d Cir. 2005) (“The FTCA requires that a claimant exhaust all administrative remedies before
filing a complaint in federal district court. This requirement is jurisdictional and cannot be
waived.”); accord Shariff v. United States, 689 F. App’x 18, 20 (2d Cir. 2017) (summary order);
Davila v. Gutierrez, 330 F. Supp. 3d 925, 936 (S.D.N.Y. 2018).
1. Substituting the United States as the Named Defendant
The FTCA provides a limited waiver of sovereign immunity for claims “arising from the
negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment . . . .” 28 U.S.C. § 2679(b)(1). “The only proper
defendant to a tort claim under the FTCA is the United States.” Skyers v. Sommer, No. 12 Civ.
3432, 2016 WL 4484241, at *7 (S.D.N.Y. Aug. 23, 2016) (citing Rivera v. United States, 928
F.2d 592, 609 (2d Cir. 1991)).

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“The FTCA provides that upon certification by the Attorney General that an employee
was acting within the scope of his office or employment when he committed the allegedly
negligent act, the United States shall be substituted as the defendant in place of the employee,
and the FTCA shall be the exclusive remedy for any action or claim arising out of the negligent
act.” Fountain v. Karim, 838 F.3d 129, 133 n.3 (2d Cir. 2016). Because the United States has
certified that Defendants Vuong, McPherson-Anderson and Ajarie were acting within the scope
of their employment in conducting searches of Plaintiff’s unit on September 1, 2016, the United
States is substituted as the named Defendant for Plaintiff’s FTCA claim for the negligent failure
of Defendants Vuong, McPherson-Anderson and Ajarie to find the weapon that was used to stab
Plaintiff.
2. Failure to Exhaust
Under the FTCA, a plaintiff must exhaust administrative remedies prior to bringing a tort
claim against the United States. The FTCA states in relevant part:
(a) An action shall not be instituted upon a claim against the United States for
money damages for injury or loss of property or personal injury or death caused
by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, unless the claimant
shall have first presented the claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency in writing . . . .
28 U.S.C. § 2675(a) (emphasis added). The exhaustion requirement is “strictly construed.” See
Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999); accord Bright-Asante v. Wagner,
No 15 Civ. 9110, 2017 WL 6948359, at *9 (S.D.N.Y. Dec. 1, 2017). A plaintiff bears the burden
to “‘plead and prove compliance with the [exhaustion] requirements’ of the FTCA.” BrightAsante, 2017 WL 6948359, at *9 (quoting In re Agent Orange Prod. Liab. Litig., 818 F.2d 210,
214 (2d Cir. 1987)). Where a plaintiff fails to exhaust his administrative remedies, the district

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court lacks subject matter jurisdiction over the FTCA claims. See Celestine, 403 F.3d at 82;
accord Davila, 330 F. Supp. 3d at 936.
The FTCA claim for the negligent failure to find the weapon that was used to stab
Plaintiff is dismissed because the Court lacks subject matter jurisdiction. The Complaint alleges
no facts to show that a sufficient administrative claim was filed with an appropriate federal
agency as required under the FTCA. See, e.g., Page v. Oath Inc., No. 17 Civ. 6990, 2018 WL
1406622, at *4 (S.D.N.Y. Mar. 20, 2018); Bright-Asante, 2017 WL 6948359, at *9 (dismissing
FTCA claim where plaintiff “wholly fail[ed] to plead the filing of an administrative claim with
the [relevant agency]”).
B.

Bivens Claims

In Bivens, the Supreme Court recognized “an implied private action for damages against
federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66 (2001).
A two-step process determines whether a Bivens remedy is available for an alleged
constitutional injury. First, a court must determine if there is a recognized Bivens action
encompassing that claim. Ochoa v. Bratton, No. 16 Civ. 2852, 2017 WL 5900552, at *6
(S.D.N.Y. Nov. 28, 2017) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)) (“Because
‘the [Supreme] Court has made clear that expanding the Bivens remedy is now a “disfavored”
judicial activity,’ when confronted with claim under Bivens, a district court must first determine
whether a Bivens action encompassing that claim has already been recognized, or whether the
claim presents a potentially new context.”). “The Supreme Court has recognized a Bivens action
in only three contexts: (1) an unreasonable search and seizure in violation of the Fourth
Amendment, (2) employment discrimination in violation of the Due Process Clause of the Fifth

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Amendment, and (3) failure to treat an inmate’s medical condition in violation of the Eighth
Amendment.” Modest Needs Found. v. Bianco, No. 16 Civ. 3144, 2017 WL 3130416, at *9
(S.D.N.Y. July 21, 2017) (internal citations omitted). “The proper test for determining whether a
case presents a new Bivens context is as follows. If the case is different in a meaningful way
from previous Bivens cases decided by this Court, then the context is new.” Ziglar, 137 S. Ct. at
1859. The Supreme Court has provided some examples of ways in which a case “might differ in
a meaningful way” including:
the rank of the officers involved; the constitutional right at issue; the generality or
specificity of the official action; the extent of judicial guidance as to how an
officer should respond to the problem confronted; the statutory or other legal
mandate under which the officer was operating; the risk of disruptive intrusion by
the Judiciary into the functioning of other branches; or the presence of potential
special factors that previous Bivens cases did not consider.
Id. at 1860. Although “the new-context inquiry is easily satisfied,” the Supreme Court has
recognized that “[s]ome differences, of course, will be so trivial that they will not suffice to
create a new Bivens context.” Id. at 1865.
Second, if the claim arises in a new context, a court must consider whether there are
special factors counseling hesitation in creating a Bivens remedy. Id. at 1857. The question of
what special factors counsel hesitation “must concentrate on whether the Judiciary is well suited,
absent congressional action or instruction, to consider and weigh the costs and benefits of
allowing a damages action or proceed.” Id. at 1857–58. “Thus, to be a ‘special factor
counselling hesitation,’ a factor must cause a court to hesitate before answering that question in
the affirmative.” Id. at 1858. “[I]f there is an alternative remedial structure present in a certain
case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.” Id.

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1. Denying Access to the Grievance Process
The Complaint is construed to include a claim against Defendant Proto for denying
access to the grievance system. The Complaint states that Defendant Proto intentionally gave
Plaintiff a BP-9 instead of a BP-8 for informal resolution, so that Plaintiff’s BP-9 form would be
rejected, which the Court assumes to be true for purposes of this motion and does not condone.
But this does not state a Bivens claim because there is no constitutional right to the grievance
process. See, e.g., Conquistador v. Adimitis, No. 18 Civ. 1240, 2018 WL 6344187, at *2 (D.
Conn. Dec. 5, 2018) (“[P]risoners do not have a due process right to a thorough investigation of
grievances.”) (internal quotation marks omitted); Young v. Tryon, No. 12 Civ. 6251, 2015 WL
309431, at *14 (W.D.N.Y. Jan. 23, 2015), report and recommendation adopted, 2015 WL
554807 (W.D.N.Y. Feb. 11, 2015) (“[T]he law is clear that [inmates] ha[ve] no constitutional
right to have [their] grievances processed at all, or if processed, to have the procedure done
properly.”) (alternation in original) (internal quotation marks omitted). The denial of access to
the grievance process claim is dismissed.
2. Failure to Protect and Improper Placement in a Special Housing Unit
The Complaint is construed to include a claim for failure to protect based on the
allegation that Ajarie was present during the attack on Plaintiff but did not help Plaintiff or
intervene. See Poulos v. City of New York, No. 14 Civ. 3023, 2015 WL 5707496, at *6
(S.D.N.Y. Sept. 29, 2015) (“‘Where a prison inmate has alleged that he was not protected
by prison officials, this court has recognized that an inmate who is injured as a result of
a prison official’s deliberate indifference to his safety may maintain a damage action for the
deprivation of his civil rights under the Eighth and Fourteenth Amendment.’”) (quoting Snider v.
Dylag, 188 F.3d 51, 54 (2d Cir. 1999)). The Complaint is also construed to include a claim for

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improper placement in a special housing unit based on the allegation that Plaintiff was placed in
a special housing unit for 90 days even though no disciplinary charges were filed against him.
See Smith v. New York State Dep’t of Corr. Servs., No. 15 Civ. 3455, 2018 WL 2305566, at *4
(S.D.N.Y. May 21, 2018) (“A prisoner’s liberty interest may be implicated by [special housing
unit] confinement only if the discipline imposes [an] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”) (some alteration in original) (internal
quotation marks omitted)).
These claims are dismissed. First, both claims present a new Bivens context. The
Supreme Court has recognized only three Bivens contexts, none of which include failure to
protect or improper placement in a special housing unit. Second, there are special factors that
counsel against expanding a new Bivens remedy, including the availability of alternative relief
(the BOP administrative grievance process and habeas corpus) and Congress’s legislation in the
area of prisoners’ rights. See Ziglar, 137 S. Ct. at 1865 (noting that post-Carlson, “Congress
passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the
way prisoner abuse claims must be brought in federal court [without providing for a standalone
damages remedy against federal jailers],” therefore “Congress had specific occasion to consider
the matter of prisoner abuse and to consider the proper way to remedy those wrongs”) (internal
citation omitted). As a result, there is no Bivens remedy for failure to protect or improper
housing. See Turkmen v. Ashcroft, No. 02 Civ. 2307, 2018 WL 4026734, at *13 (E.D.N.Y. Aug.
13, 2018) (collecting cases); Gonzalez v. Hasty, 269 F. Supp. 3d 45, 61 (E.D.N.Y. 2017), aff’d,
No. 17 Civ. 3790, 2018 WL 5960773 (2d Cir. Nov. 14, 2018) (declining to extend a Bivens
remedy for confinement in special housing unit). The failure to protect claim and improper
placement claim are dismissed.

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3. Deliberate Indifference to a Serious Medical Need2
The Complaint is construed to include a claim for deliberate indifference to a serious
medical need against Defendants Skipper-Scott and Georgy.3
To assert a viable constitutional claim for deliberate indifference to a serious medical
need, a plaintiff must plead facts showing that (1) the deprivation of medical care is objectively
“sufficiently serious” in light of a medical condition “that may produce death, degeneration, or
extreme pain,” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), and (2) “the defendantofficial . . . intentionally . . . or recklessly failed to act with reasonable care . . . even though the

2

Defendants argue that it is clear from the face of the Complaint that Plaintiff failed to exhaust
his administrative remedies for his Bivens claims for deliberate indifference to a serious medical
need. This argument is unpersuasive. Since “failure to exhaust is an affirmative defense under
the [Prison Litigation Reform Act], . . . inmates are not required to specially plead or
demonstrate exhaustion in their [Bivens] complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007).
Nevertheless, “a district court still may dismiss a complaint for failure to exhaust administrative
remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA
exhaustion requirement.” Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016). Here, it is not
clear on the face of the Complaint that Plaintiff failed to exhaust his administrative remedies.
The Complaint attaches Plaintiff’s BP-9 form and the response dated October 28, 2016, rejecting
Plaintiff’s BP-9 form because Plaintiff did not provide evidence that he attempted an informal
resolution (i.e. a BP-8 form) before submitting his BP-9 form. The Complaint states that because
of Proto’s actions, Plaintiff could not exhaust his administrative remedies and his only recourse
was to file this action over a year later. It is unclear what administrative remedy steps Plaintiff
may have taken between receiving the notice and filing this action. Because Plaintiff is not
required to plead exhaustion in the Complaint on a Bivens claim, the deliberate indifference to a
serious medical need claim is not dismissed for failure to exhaust administrative remedies. See,
e.g., White v. Westchester Cty., No. 18 Civ. 730, 2018 WL 6726555, at *9 (S.D.N.Y. Dec. 21,
2018) (declining to dismiss a complaint for failure to exhaust administrative remedies where the
plaintiff submitted evidence that he attempted to comply with two of four administrative remedy
steps).
3
Defendants do not question whether a Fifth Amendment Bivens remedy for deliberate
indifference to a serious medical need exists after Ziglar; for the purposes of this motion, its
existence is assumed. See Morgan v. Shivers, No. 14 Civ. 7921, 2018 WL 618451, at *7 n.4
(S.D.N.Y. Jan. 29, 2018) (“The Court notes that, even in light of the proscription against creating
new Bivens remedies, it would be counterintuitive if a convicted prisoner could remedy a federal
officer’s failure to provide medical care amounting to punishment, but a pre-trial detainee—who,
‘unlike convicted prisoners[,] cannot be punished at all,’ could not. Kingsley v. Hendrickson,
135 S.Ct. 2466, 2475 (2015).”) (alteration in original).
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defendant-official knew, or should have known,” that the alleged medical condition “posed an
excessive risk to health or safety.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); see also
Hill, 657 F.3d at 122–23.
A plaintiff must plead “that the alleged deprivation of medical treatment is, in objective
terms, ‘sufficiently serious’ -- that is, . . . that his medical need was a condition of urgency, one
that may produce death, degeneration, or extreme pain.” Johnson v. Wright, 412 F.3d 398, 403
(2d Cir. 2005) (internal quotation marks omitted). “Because ‘[t]he objective component . . . is
. . . [necessarily] contextual’ and fact-specific, the serious medical need inquiry must be tailored
to the specific circumstances of each case.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.
2003) (alterations in original) (internal citation omitted) (quoting Hudson v. McMillian, 503 U.S.
1, 8 (1992)).
Deliberate indifference may be “manifested by prison doctors in their response to the
prisoner’s needs.” Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). Non-medical personnel may
be deliberately indifferent by “intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed.” Id.; Wright, 412 F.3d at 404 (citing
Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987)) (“[A] deliberate indifference claim can lie
where prison officials deliberately ignore the medical recommendations of a prisoner’s treating
physicians.”). Still, “a plaintiff must prove that [nonmedical] prison personnel intentionally
delayed access to medical care when the inmate was in extreme pain and has made his medical
problems known to the attendant prison personnel or that the inmate suffered a complete denial
of medical treatment.” Roundtree v. City of New York, No. 15 Civ. 8198, 2018 WL 1586473, at
*6 (S.D.N.Y. Mar. 28, 2018) (alteration in original) (internal quotation marks omitted).

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For individual liability to attach, Bivens defendants -- even those in supervisory positions
-- must be personally involved such that “through their own actions, they satisfy each element of
the underlying constitutional tort.” Turkmen v. Hasty, 789 F.3d 218, 250 (2d Cir. 2015), rev’d
on other grounds, Ziglar v. Abbasi, 137 S. Ct. 1843, 1869 (2017); see also Gonzalez v. Hasty,
No. 17 Civ. 3790, 2018 WL 5960773, at *4 (2d Cir. Nov. 14, 2018) (summary order) (“A Bivens
plaintiff cannot rely on respondeat superior to establish the liability of defendants; instead, he
must prove that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.”) (internal quotation marks omitted).
The Complaint does not plausibly allege a claim for deliberate indifference to a serious
medical need against Defendants Skipper-Scott and Georgy because Skipper-Scott and Georgy
appear only in the caption of the Complaint. The Complaint contains no allegations that
Skipper-Scott or Georgy knew of -- or acted with deliberate indifference to -- Plaintiff’s severe
medical condition. The deliberate indifference to a serious medical need claim is accordingly
dismissed. See Calix v. Fed. Bureau of Prisons, No. 18 Civ. 3980, 2018 WL 3518509, at *2
(E.D.N.Y. July 20, 2018) (dismissing a Bivens claim against a defendant where the only mention
of defendant was the caption of the complaint).
C.

Leave to Replead

Leave to amend should be freely given when justice so requires. Fed. R. Civ. P. 15(a).
“However, where the plaintiff is unable to demonstrate that he would be able to amend his
complaint in a manner which would survive dismissal, opportunity to replead is rightfully
denied.” Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999). Leave to amend also may be
denied where the plaintiff “fails to specify either to the district court or to the court of appeals
how amendment would cure the pleading deficiencies in its complaint.” TechnoMarine SA v.

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Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014). Any motion for leave to replead shall be filed
as provided below.
If Plaintiff believes that he can sufficiently replead the FTCA claim against the United
States or deliberate indifference to a serious medical need claim against Defendants SkipperScott and Georgy, he may file a letter (by filing it with the Pro Se Intake Office), not to exceed
three, single-spaced pages, describing how he would amend the Complaint to cure the
deficiencies described in this Opinion -- including (1) for an FTCA claim, how Plaintiff has
exhausted all necessary administrative remedies prior to bringing such a tort claim against the
United States; (2) for a deliberate indifference to a serious medical need claim against SkipperScott and Georgy, how Skipper-Scott and/or Georgy knew or should have known of Plaintiff’s
severe medical condition and what they did to deprive Plaintiff of medical care. Any such
application for leave to replead shall be filed as provided below.
CONCLUSION
For the foregoing reasons, the United States is substituted as the named Defendant for the
FTCA claim, and Defendants’ motion to dismiss the Complaint is GRANTED. If Plaintiff seeks
leave to file an amended complaint, he shall file a letter application as described above on or
before March 22, 2019.
The Clerk of Court is respectfully directed to close the motion at Docket Number 36 and
to mail a copy of this Opinion and Order to pro se Plaintiff.
Dated: February 20, 2019
New York, New York

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