Levinson v. Federal Bureau of Prisons Metropolitan Corrections Center-NY Warden

Filing 3

ORDER TO AMEND: The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note service on the docket. The Court grants Plaintiff leave to file an amended complaint that complies with the standards set forth above. Plaintiff m ust submit the amended complaint to this Court's Pro SeIntake Unit within 60 days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 20-CV-7375 (VEC). An Amended Civil R ights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the Court will dismiss Plaintiff's claims under Biven s for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915A(b)(1), and his claims under the FTCA for lack of subject matter jurisdiction, see Fed. Civ. P. 12(h)(3). The Court certifies under 28 U.S.C. § 1915(a)(3) t hat any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant demonstrates good faith when seeking review of a nonfrivolous issue). SO ORDERED. (Signed by Judge Valerie E. Caproni on 10/13/2020) (ama) Transmission to Docket Assistant Clerk for processing.

Case 1:20-cv-07375-VEC Document 3 Filed 10/13/20 Page 1 of 12
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
DOC #:
SOUTHERN DISTRICT OF NEW YORK
DATE FILED: 10/13/2020
NIKOLAY LEVINSON,
Plaintiff,
-against-

1:20-CV-7375 (VEC)

FEDERAL BUREAU OF PRISONS
METROPOLITAN CORRECTIONS CENTER
– NY WARDEN,

ORDER TO AMEND

Defendant.
VALERIE CAPRONI, United States District Judge:
Plaintiff, who is currently held in the Bergen County Jail, in Hackensack, New Jersey,
brings this pro se action seeking damages. He has sued the Warden of the federal Metropolitan
Correctional Center in New York, New York (“MCC New York”), and asserts that his federal
constitutional rights have been violated. The Court understands Plaintiff’s claims for damages to
have been brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), and, possibly, under the Federal Tort Claims Act.
Plaintiff has paid the relevant fees to bring this action. For the reasons set forth below, the
Court grants Plaintiff leave to file an amended complaint.
STANDARD OF REVIEW
The Prison Litigation Reform Act requires federal courts to screen complaints brought by
prisoners who seek relief against a governmental entity or an officer or employee of a
governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s civil rights
complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. See § 1915A(b); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court

Case 1:20-cv-07375-VEC Document 3 Filed 10/13/20 Page 2 of 12

must also dismiss a complaint if the Court lacks subject-matter jurisdiction. See Fed. R. Civ. P.
12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in
original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –
to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil
Procedure, which requires a complaint to make a short and plain statement showing that the
pleader is entitled to relief.
The Supreme Court of the United States has held that, under Rule 8, a complaint must
include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough
factual detail to allow the Court to draw the inference that the defendant is liable for the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the complaint, the Court
must accept all well-pleaded factual allegations as true. Id. But it does not have to accept as true
“[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal
conclusions. Id. (citing Twombly, 550 U.S. at 555). After separating legal conclusions from wellpleaded factual allegations, the Court must determine whether those facts make it plausible – not
merely possible – that the pleader is entitled to relief. Id. at 678-79.
BACKGROUND
Plaintiff makes the following allegations: On May 17, 2019, while Plaintiff was held in
MCC New York, he slipped on wet stairs, fell, and injured his right foot. There was no “caution
sign” posted near the wet stairs where he slipped and fell. Plaintiff was unable to seek treatment

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immediately after he was injured because of a lockdown, apparently due to “a melee on the tier.”
(ECF 1, at 4.) A few days later, Plaintiff spoke to a counselor, who made a report of the injury
and sent Plaintiff to the prison’s medical department. Mandeep Singh, an MCC New York healthcare provider, also made a report and scheduled an X-ray examination. But when Plaintiff went
for the X-ray examination, the technician told him that the X-ray machine was broken. “Instead
of taking [Plaintiff] to the hospital, Singh sent [him] back” to his prison housing unit. (Id.)
On June 20, 2019, more than a month later, Plaintiff was summoned for an X-ray
examination; he was diagnosed with a “non-displaced fracture at the base of the 5th metatarsal
bone, soft tissue swelling, [and] metatarsus primus varus.” (Id.) He was provided with a boot cast
that he had to wear for three months. After those three months, he attended physical therapy. But
“[b]ecause of the delay in X-ray, [his] right foot healed with a lump, it still hurts to walk[,] [and]
it took much longer to heal.” (Id.) MCC New York Physician’s Assistant Kang “saw the delay in
X-ray[;] she was supposed to take [Plaintiff] to an orthopedic surgeon but that never happened.”
(Id.)
On an unspecified date, Plaintiff “filed a claim” with the Bureau of Prisons, but it was
denied. (Id.) He then filed “a reconsideration request” on February 10, 2020, but he has “not
heard a response ever since.” (Id. at 4-5.)
Plaintiff is “requesting compensation for negligence (indifference to inmate safety) and
delay in medical care.” (Id. at 5.)
DISCUSSION
A.

Claims under Bivens
To state a claim under Bivens against an individual federal officer or employee, a plaintiff

must allege facts showing the individual’s direct and personal involvement in the alleged
constitutional deprivation. See Thomas v. Ashcroft, 470 F.3d 491, 496-97 (2d Cir. 2006). An

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individual defendant may not be held liable under Bivens solely because that defendant employs
or supervises a person who violated the plaintiff’s rights. See Iqbal, 552 U.S. at 676
(“Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.”). Under Bivens, an individual can be
personally involved in a constitutional violation if the individual:
(1) directly participated in the constitutional violation; (2) failed to remedy the
violation after learning of it through a report or appeal; (3) created a custom or
policy fostering the violation or allowed the custom or policy to continue after
learning of it; (4) was grossly negligent in supervising subordinates who caused
the violation; or (5) failed to act on information indicating that unconstitutional
acts were occurring.
Thomas, 470 F.3d at 496-97. 1
Plaintiff names the Warden of MCC New York as a defendant, but he alleges no facts
showing how the Warden was personally involved with any of the alleged violations of his
federal constitutional rights. He mentions other individuals who were personally involved with
the alleged violations, but he does not name them as defendants. The Court therefore grants
Plaintiff leave to file an amended complaint in which he names as defendants those individual
federal officers or employees who were personally involved in the violations of his federal
constitutional rights and alleges facts showing those individuals’ personal involvement in the
constitutional violations.
B.

Claims under the Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, allows a

plaintiff to assert claims under tort law for damages arising from the conduct of federal officers

1

“Although the Supreme Court’s decision in [Iqbal, 556 U.S. 662] may have heightened
the requirements for showing a supervisor’s personal involvement with respect to certain
constitutional violations,” the Second Circuit has not yet examined that issue. Grullon v. City of
New Haven, 720 F.3d 133, 139 (2d Cir. 2013); McIntosh v. United States, No. 14-CV-7889, 2016
WL 1274585, at *14 (S.D.N.Y. Mar. 31, 2016).

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or employees acting within the scope of their office or employment. See 28 U.S.C. § 1346(b)(1).
The proper defendant for a claim under the FTCA is the United States of America. See 28 U.S.C.
§ 2675(a); Holliday v. Augustine, No. 3:14-CV-0855, 2015 WL 136545, at *1 (D. Conn. Jan. 9,
2015).
A plaintiff must comply with the FTCA’s procedural requirements before a federal court
can entertain his claim. See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999),
abrogated on other grounds, United States v. Kwai Fun Wong, 575 U.S. 402 (2015). Before
bringing a claim in a federal district court under the FTCA, a claimant must first exhaust his
administrative remedies by filing a claim for damages with the appropriate federal entity and
must receive a final written determination. See 28 U.S.C. § 2675(a). If no final written
determination is made by the appropriate federal entity within six months of the date of the
claimant’s filing, the claimant may bring an FTCA action in a federal district court. See id. This
requirement is jurisdictional and cannot be waived. See Celestine v. Mount Vernon
Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
Plaintiff appears to assert tort claims of medical malpractice or negligence under the
FTCA arising from federal officials’ actions or omissions during his incarceration in MCC New
York, a federal prison. But he has not named the United States of America as a defendant. It is
also unclear from the allegations in Plaintiff’s complaint whether he has exhausted the
appropriate administrative remedies before asserting those claims. The Court therefore grants
Plaintiff leave to file an amended complaint in which he asserts claims under the FTCA, names
the United States of America as a defendant, and alleges facts showing that he has exhausted the
appropriate administrative remedies to assert those claims.

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CONCLUSION
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note
service on the docket.
The Court grants Plaintiff leave to file an amended complaint that complies with the
standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se
Intake Unit within 60 days of the date of this order, caption the document as an “Amended
Complaint,” and label the document with docket number 20-CV-7375 (VEC). An Amended Civil
Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff
fails to comply within the time allowed, and he cannot show good cause to excuse such failure,
the Court will dismiss Plaintiff’s claims under Bivens for failure to state a claim on which relief
may be granted, see 28 U.S.C. § 1915A(b)(1), and his claims under the FTCA for lack of subjectmatter jurisdiction, see Fed. Civ. P. 12(h)(3).
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant
demonstrates good faith when seeking review of a nonfrivolous issue).
SO ORDERED.
Dated:

October 13, 2020
New York, New York
N
VALERIE CAPRONI
CAPRONI
United States District Judge

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U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
(Prisoner)
Do you want a jury trial?
☐ Yes
☐ No

Write the full name of each defendant. If you cannot fit the
names of all of the defendants in the space provided, please
write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The
names listed above must be identical to those contained in
Section IV.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

Case 1:20-cv-07375-VEC Document 3 Filed 10/13/20 Page 8 of 12

I.

LEGAL BASIS FOR CLAIM

State below the federal legal basis for your claim, if known. This form is designed primarily for
prisoners challenging the constitutionality of their conditions of confinement; those claims are
often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a
“Bivens” action (against federal defendants).

☐ Violation of my federal constitutional rights
☐ Other:
II.

PLAINTIFF INFORMATION

Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name

Middle Initial

Last Name

State any other names (or different forms of your name) you have ever used, including any name
you have used in previously filing a lawsuit.
Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency
and the ID number (such as your DIN or NYSID) under which you were held)
Current Place of Detention
Institutional Address

County, City

III.

State

Zip Code

PRISONER STATUS

Indicate below whether you are a prisoner or other confined person:

☐
☐
☐
☐
☐

Pretrial detainee
Civilly committed detainee
Immigration detainee
Convicted and sentenced prisoner
Other:

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Case 1:20-cv-07375-VEC Document 3 Filed 10/13/20 Page 9 of 12

IV.

DEFENDANT INFORMATION

To the best of your ability, provide the following information for each defendant. If the correct
information is not provided, it could delay or prevent service of the complaint on the defendant.
Make sure that the defendants listed below are identical to those listed in the caption. Attach
additional pages as necessary.
Defendant 1:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 3:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 4:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code
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Case 1:20-cv-07375-VEC Document 3 Filed 10/13/20 Page 10 of 12

V.

STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:
FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach
additional pages as necessary.

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Case 1:20-cv-07375-VEC Document 3 Filed 10/13/20 Page 11 of 12

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical treatment,
if any, you required and received.

VI.

RELIEF

State briefly what money damages or other relief you want the court to order.

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Case 1:20-cv-07375-VEC Document 3 Filed 10/13/20 Page 12 of 12

VII.

PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law
or by a nonfrivolous argument to change existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise
complies with the requirements of Federal Rule of Civil Procedure 11.
I understand that if I file three or more cases while I am a prisoner that are dismissed as
frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in
future cases.
I also understand that prisoners must exhaust administrative procedures before filing an action
in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be
dismissed if I have not exhausted administrative remedies as required.
I agree to provide the Clerk's Office with any changes to my address. I understand that my
failure to keep a current address on file with the Clerk's Office may result in the dismissal of my
case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated
First Name

Plaintiff’s Signature
Middle Initial

Last Name

Prison Address
County, City

State

Zip Code

Date on which I am delivering this complaint to prison authorities for mailing:

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