Turner v. Lincon-Vitale et al
Filing
18
ORDER granting 12 Motion to Dismiss. Defendants' motion to substitute the United States for Barr and the Warden and to dismiss the complaint for lack of subject matter jurisdiction is GRANTED without prejudice. If Plaintiff does not file an amended complaint within 60 days of the date of this Order, the Court will close the case. SO ORDERED. (Signed by Judge Lewis J. Liman on 12/21/20) (yv)
Case 1:20-cv-05473-LJL Document 18 Filed 12/22/20 Page 1 of 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
WILBERT K.A. TURNER,
:
:
Plaintiff,
:
:
-v:
:
M. LINCON-VITALE & WILLIAM BARR,
:
:
Defendants.
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:
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12/22/2020
20-cv-5473 (LJL)
ORDER
LEWIS J. LIMAN, United States District Judge:
Plaintiff Wilbert K.A. Turner (“Plaintiff” or “Turner”) is an inmate at the Metropolitan
Correctional Center (“MCC”) in New York, New York. He brings this action seeking damages
against M. Lincon-Vitale, Warden of the MCC (the “Warden”), and Attorney General William
Barr (“Barr”) in their “official” capacities, alleging that the Warden failed to follow written
guidance from the Federal Bureau of Prisons and the Centers for Disease Control regarding the
COVID-19 pandemic. Dkt. No. 2. The United States now moves to substitute the United States
of America for the Warden and Barr and to dismiss the complaint based on Plaintiff’s failure to
exhaust administrative remedies under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §
2671, et seq. Dkt. No. 12.
THE ALLEGATIONS OF THE COMPLAINT
The Court construes liberally the allegations of the pro se complaint as well as the facts
stated in Turner’s opposition to the motion to dismiss, all of which the Court accepts as true for
purposes of this motion. The Court eliminates reference to other inmates by their proper name
for reasons of those inmates’ medical privacy.
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Turner is an inmate of the MCC in New York, New York where he has been detained
since April 2018. Dkt. No. 15 at 1. He is housed in a dormitory room which is shared by 25
other inmates and is required to sleep next to five inmates who are less than six feet apart from
him. Id. at 2. He alleges that a fellow inmate became ill on March 27, 2020, after which he was
“put in a wheelchair after sleeping for three consecutive days” and “was not seen again until
approximately thirty days later.” Dkt. No. 2 at 4. After that inmate left, several other inmates
began to display symptoms of COVID-19. Id. at 4-5. Turner suffered the following symptoms:
“diarrhea, drowsiness, no smell, no appetite, and los[s] of weight 20 lbs.” Id. at 5. Those
symptoms caused him “mental anguish, anxiety, [and] sleepless nights.” Id. On March 30,
2020, his temperature was 104.5 degrees Fahrenheit. Id. Two hours later, his temperature was
100.1 degrees, and he was prescribed acetaminophen without explanation. Id. He complains
that the Warden failed to “comply with social distancing or ma[ke] mask[s] available. Id. at 6.1
After the sick inmate returned, the MCC did not inform Plaintiff of the inmate’s condition, “the
area was not disinfected per CDC guidelines,” and the inmate was “returned to population
without a negative testing.” Id. Turner “repeatedly requested testing verbally,” to no avail. Id.
The Warden only provided disinfectant during weekdays and not on weekends, with the result
that “on weekends the bathroom now goes unclean[ed].” Id. “Some [of the guards] wear masks
some don’t.” Id. He asserts that the Warden “fails to ensure my health safety.” Id.
He received a test for COVID-19 on August 3, 2020, which came back positive on
August 12, 2020. Dkt. No. 15, at 3. He was quarantined, forced to sleep on a concrete slab for
four days because the MCC had no other space, and experienced shortness of breath. Id.
1
In his brief in opposition to the motion to dismiss, the allegations of which are also taken as
true, Turner complains that he asked to be tested and asked to be removed from the unit where he
was housed, but that his requests were ignored. Dkt. No. 15 at 2.
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Turner alleges he has several underlying conditions including an autoimmune disease,
bladder cancer, heart disease (for which he wears a defibrillator) and asthma. Dkt. No. 2 at 6.
He is scheduled to be released from the MCC at the end of this month to a detainer from the
United States Immigration and Customs Enforcement (“ICE”) and is not contesting his removal
to Jamaica. Id.
DISCUSSION
As “sovereign,” the United States is subject to suit only to the extent “it consents to be
sued . . ., and the terms of its consent to be sued in any court define that court’s jurisdiction to
entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941). Under the FTCA, “a
suit against the United States is the exclusive remedy for a suit for damages for injury or loss of
property ‘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.’” Rivera v. United
States, 928 F.2d 592, 608 (2d Cir. 1991) (quoting 28 U.S.C. § 2679(b)(1)). Before a tort claim
may be presented to a federal court, it must previously have been “presented to the appropriate
administrative agency.” Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d
Cir. 1998). “[T]he United States has not consented to be sued on a tort claim unless the claim
was first presented to the appropriate federal agency in writing, was so presented within two
years after the claim accrued, and specified the amount of the claim in writing.” Id. at 720.
Thus, the FTCA provides, inter alia, that:
“[a]n 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.
28 U.S.C. § 2675(a).
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If the claim has not previously been presented to the appropriate federal agency, the
District Court lacks subject matter jurisdiction to entertain it. 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 court. This requirement
is jurisdictional and cannot be waived”); Millares Guraildes, 137 F.3d at 720-21 (same); Wyler
v. United States, 725 F.2d 156, 159 (2d Cir. 1983) (same); Mil’chamot v. United States, 2016
WL 10570933 (S.D.N.Y. Dec. 9, 2016) (same). “The burden is on the Plaintiff to both plead and
prove compliance with the [FTCA’s] statutory requirements.” In re Agent Orange Prod. Liab.
Litig., 818 F.2d 210, 214 (2d Cir. 1986); Bonifacio v. United States, 2020 WL 5801475, at *4
(S.D.N.Y. Sept. 28, 2020); Vailette v. Lindsay, 2014 WL 4101513, at *5 (E.D.N.Y. Aug. 18,
2014). “[T]his ‘procedural hurdle applies equally to litigants with counsel and to those
proceeding pro se.’” Bonifacio, 2020 WL 5801475, at *4 (quoting Adeleke v. United States, 355
F.3d 144, 153 (2d Cir. 2004)).
Section 2679 further provides that upon certification by the “Attorney General that the
defendant employee was acting within the scope of his office or employment,” the United States
“shall be substituted as the party defendant,” 28 U.S.C. § 2679(d)(1), and the “action or
proceeding shall be deemed to be an action or proceeding brought against the United States
under the provisions of this title . . .” Id. § (d)(2). In the absence of such certification, the court
may certify that the United States be substituted for its employees upon a determination that they
were acting within the scope of their employment. See B&A Marine Co., Inc. v. Am. Foreign
Shipping Co., Inc., 23 F.3d 709,715-16 (2d Cir. 1994) (court may certify that the United States
be substituted for its employees upon a ruling that the employees were acting within the scope of
their employment in absence of certification of the Attorney General); Vailette, 2014 WL
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4101513, at *4 (“A brief on behalf of named defendants is sufficient to certify that they were
employees acting within the scope of their employment.”).
The Court substitutes the United States as Defendant for Barr and the Warden. 28 U.S.C.
§ 2679(d)(3). Construing the allegations of the complaint generously for Plaintiff, it alleges
conduct by Barr and the Warden within the scope of their employment. Indeed, the Government
itself requests that it be substituted for Barr and Warden, Dkt. No. 13, at 4 n.2, and Plaintiff does
not oppose such relief.
The Court also dismisses the complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). The Complaint does not allege that Turner presented
his claim to any Federal agency before commencing litigation and the Government has presented
undisputed evidence in the form of declarations from a legal assistant at the MCC that Tucker
did not present his claim to the Bureau of Prisons. See Vailette, 2014 WL 4101513, at *3 (court
can consider declarations on motion to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1)). Specifically, the declaration of Marc Peakes, legal assistant at the
MCC, reflects that he has reviewed the Bureau of Prisons’ computerized inmate management
program, SENTRY, which contains a record of every grievance filed by any inmate throughout
the agency. Dkt. No. 13-1. Although Turner has filed a total of 11 grievances while incarcerated
at the MCC, including four grievances since January 1, 2020 (and one as recent as August 8,
2020), none of the grievances concern COVID-related conditions at the MCC or any of the
events or conditions alleged in the Complaint. Id.; Dkt. No. 16-1 ¶ 6. Plaintiff does not dispute
the accuracy of these records.
Plaintiff notes in his opposition that he did file an application for compassionate release
pursuant to 18 U.S.C. § 3582, through counsel on April 20, 2020. Dkt. No. 15, at 2, 7. The
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application was denied by the Bureau of Prisons by letter of May 11, 2020, which also informed
Turner of his right to appeal administratively within the Bureau of Prisons. Id. at 8-9. Turner
did not appeal. Dkt. No. 16-1. The application for compassionate release does not substitute for
a FTCA claim presented to the appropriate Federal agency setting out the amount of money
claimed and finally denied by the agency in writing. 28 U.S.C. § 2675. Moreover, Turner states
that he is scheduled for release on December 25, 2020, and he does not appear to seek
compassionate release.
The Court also notes that the FTCA does not apply to suits for violation of federal
constitutional or statutory rights. 28 U.S.C. § 2679(b)(2). Leaving aside that Plaintiff has failed
to exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e,
the Complaint alleges that Plaintiff is suing the Warden and Barr in their official capacity and
therefore the Court does not construe the Complaint as alleging a Bivens claim, which applies
only to claims against officers in their individual capacities. Nonetheless, because this is a pro se
complaint, and without expressing any view either as to whether exhaustion has been satisfied or
excused as to a Bivens claim or whether Turner can state such a claim, the Court will dismiss the
current complaint without prejudice and give Turner leave to replead within 60 days.
CONCLUSION
Defendants’ motion to substitute the United States for Barr and the Warden and to
dismiss the complaint for lack of subject matter jurisdiction is GRANTED without prejudice. If
Plaintiff does not file an amended complaint within 60 days of the date of this Order, the Court
will close the case.
SO ORDERED.
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Case 1:20-cv-05473-LJL Document 18 Filed 12/22/20 Page 7 of 7
Dated: December 21, 2020
New York, New York
__________________________________
LEWIS J. LIMAN
United States District Judge
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