FanFan v. M.C.C. et al

Filing 7

ORDER OF SERVICE: The Court dismisses without prejudice Plaintiff's claims against MCC and BOP. See 28 U.S.C. 1915(e)(2)(B)(iii). The Court dismisses without prejudice Plaintiffs Bivens claims against Robert Beaudouin, Joaquin Y., Cheryl Ancrum, Lopes Hygor and Singh Mandeep. By March 12, 2021, Plaintiff shall file any letter asking to replead and shall attach a proposed amended complaint providing facts that explain how these defendants were personally involved in violating his constitutional rights. The Court directs the Clerk of Court to mail a copy of this Order and the Complaint to the Civil Division of the Office of the United States Attorney for the Southern District of New York at 86 Chambers Street, 3rd Floor, New York, New York 10007.The Court further directs the Clerk of Court to mail a copy of this Order to Plaintiff and note service on the docket. An amended complaint form is attached.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 an appellant demonstrates good faith when he seeks review of a nonfrivolous issue); accord United States v. Kosic, 944 F.3d 448, 449 (2d Cir. 2019). (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 2/16/2021) (cf) Transmission to Pro Se Assistants for processing. (Additional attachment(s) added on 2/17/2021: #1 Exhibit) (cf).

Case 1:21-cv-00704-LGS Document 7 Filed 02/16/21 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JIMMY FANFAN,
Plaintiff,
-against-

21 Civ. 00704 (LGS)

MCC; FBOP; ROBERT BEAUDOUIN MD;
JOAQUIN Y, MLP; CHERYL ANCRUM DDS;
DR. DANIEL KAUFMAN; LOPEZ HYGOR
NRP; SINGH MANDEEP PA.C,

ORDER OF SERVICE

Defendants.
LORNA G. SCHOFIELD, United States District Judge:
I.

BACKGROUND
WHEREAS, Plaintiff, currently incarcerated in the Metropolitan Correctional Center

(“MCC”), brings this pro se action under the Court’s federal question jurisdiction, alleging that
he has been denied adequate medical care. Dkt. No. 2.
WHEREAS, by Order dated January 29, 2021, the Court granted Plaintiff’s request to
proceed without prepayment of fees, that is, in forma pauperis (“IFP”). 1 Dkt. No. 4.
II.

STANDARD OF REVIEW
WHEREAS, the Prison Litigation Reform Act requires that federal courts 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 IFP 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. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Harnage v. Lightner, 916
1

Prisoners are not exempt from paying the full filing fee, even when they have been granted
permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).

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F.3d 138, 140 n.1 (2d Cir. 2019). The Court must also dismiss a complaint if the court lacks
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
WHEREAS, the Court is obliged to construe pro se pleadings liberally and interpret them
to raise the strongest claims that they suggest. Costabile v. N.Y.C. Health and Hosp. Corp., 951
F.3d 77, 80 (2d Cir. 2020); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir. 2006) (“There are many cases in which we have said that a pro se litigant is entitled to
special solicitude; that a pro se litigant’s submissions must be construed liberally; and that such
submissions be read to raise the strongest arguments that they suggest.” (internal quotation marks
and citations omitted)). But this “special solicitude” in pro se cases, Triestman, 470 F.3d at 477,
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.
WHEREAS, the Supreme Court 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. Id. at 556. In reviewing the complaint, the Court must accept all well-pleaded
factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). 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. at 678 (citing Twombly, 550 U.S. at 555). After separating legal
conclusions from well-pleaded factual allegations, the Court must determine whether those facts
make it plausible -- not merely possible -- that the pleader is entitled to relief. Id.

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III.

SOVEREIGN IMMUNITY
WHEREAS, the doctrine of sovereign immunity bars federal courts from hearing all suits

against the federal government, including suits against federal agencies, unless sovereign
immunity has been waived. United States v. Mitchell, 445 U.S. 535, 538 (1980); see Robinson v.
Overseas Mil. Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal
agency . . . is essentially a suit against the United States, such suits are [] barred under the
doctrine of sovereign immunity, unless such immunity is waived.”); accord Jean v. U.S. Equal
Emp. Comm’n, No. 20 Civ. 9773, 2020 WL 7321057, at *1 (S.D.N.Y. Dec. 3, 2020).
WHEREAS, under the doctrine of sovereign immunity, the MCC and the Federal Bureau
of Prisons (“BOP”) are immune from suit. See 28 U.S.C. § 1915(e)(2)(B)(iii). It is hereby
ORDERED that, Plaintiff’s claims against the MCC and the BOP are DISMISSED.
IV.

FEDERAL TORT CLAIMS ACT
WHEREAS, the Court construes the Complaint as asserting a claim for money damages

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, because Plaintiff
asserts that Defendants were negligent in providing medical treatment.
WHEREAS, the FTCA provides for a waiver of sovereign immunity for injuries arising
from the tortious conduct of federal officers or agents acting within the scope of their office or
employment. See § 1346(b)(1). The only proper defendant for an FTCA claim is the United
States of America. See § 1346(e); see, e.g., Coyle v. United States, 954 F.3d 146, 148 (2d Cir.
2020) (“Under the FTCA, the United States is liable for the negligent acts of federal employees
acting in the scope of their employment.”).
WHEREAS, an FTCA claimant must exhaust his administrative remedies before filing
suit in federal court by: (1) filing a claim for money damages with the appropriate federal
government entity and (2) receiving a final written determination from that agency. See 28
3

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U.S.C. § 2675(a); Cooke v. United States, 918 F.3d 77, 80 (2d Cir. 2019) (“[P]laintiff likewise
bears the burden of showing that she exhausted her administrative remedies by presenting her
claim to the appropriate federal agency before filing suit.”). FTCA claims must be “presented in
writing to the appropriate Federal agency within two years after such claim accrues” and an
FTCA action must be commenced within six months of when the agency issues its final denial of
administrative remedy. Roberson v. Greater Hudson Valley Fam. Health Ctr., Inc., No. 17 Civ.
7325, 2018 WL 2976024, at *2 (S.D.N.Y. June 12, 2018) (citing 28 U.S.C. § 2401(b)). This
exhaustion requirement is jurisdictional and cannot be waived. Celestine v. Mount Vernon
Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005); accord Cotto v. Fed. Bureau of
Prisons, No 20 Civ. 3011, 2020 WL 2036700, at *2 (S.D.N.Y. Apr. 28, 2020).
WHEREAS, there are no facts in the Complaint suggesting that Plaintiff filed an FTCA
claim with the BOP for money damages, or that he received a final written determination from
the BOP. It is hereby
ORDERED that, Plaintiff’s FTCA claim is DISMISSED without prejudice to Plaintiff’s
filing an action asserting an FTCA claim against the United States after he has exhausted his
administrative remedies.
V.

BIVENS CLAIMS
WHEREAS, Because Plaintiff alleges that employees of the federal government violated

his constitutional rights, his claims are construed as arising under Bivens v. Six Unknown Named
Agents of FBI, 403 U.S. 388, 389-90 (1971) (considering whether a complaint stated a federal
cause of action under the Fourth Amendment for damages, where the complaint alleged agents of
the Federal Bureau of Narcotics, acting under color of federal law, made a warrantless entry); see
Iqbal, 556 U.S. at 675-76 (“[Bivens] is the federal analog to suits brought against state officials
under [] 42 U.S.C. § 1983.”) (internal citation omitted).
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WHEREAS, to state a claim for relief under Bivens, a plaintiff must allege facts that
plausibly show that: (1) the challenged action was attributable to an officer acting under color of
federal law, and (2) such conduct deprived him of a right, privilege, or immunity secured by the
Constitution. See Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (citing Bivens, 403 U.S.
at 389); accord Dubois v. City of White Plains, 16 Civ. 07771, 2018 WL 6025868, at *3
(S.D.N.Y. Nov. 16, 2018).
WHEREAS, Bivens relief is available only against federal officials who are personally
liable for the alleged constitutional violations. Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017);
Turkmen v. Hasty, 789 F.3d 218, 233 (2d Cir. 2015) (citing Iqbal, 556 U.S. at 676-77). A
plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged
constitutional deprivation. See Spavone v. N.Y. State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (2d
Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in [the]
alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”)
(internal quotation marks omitted); accord Nguedi v. Caulfield, 813 F. App’x 1, 3 (2d Cir. 2020)
(summary order) (affirming dismissal of claims brought against a former police commissioner
for failure to allege personal involvement). A 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, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.”). Rather, “a plaintiff must
plead and prove the elements of the underlying constitutional violation directly against the
official.” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).
WHEREAS, the Eight Amendment protects federal pretrial detainees from deliberate
indifference to their serious medical needs. See Charles v. Orange Cnty., 925 F.3d 73, 85 (2d

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Cir. 2019). To state a claim for inadequate medical care, 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”; and (2) the defendant-official
“knew . . . or should have known that failing to provide the omitted medical treatment would
pose a substantial risk to detainee’s health.” Id. at 86-87.
WHEREAS, with the exception of Dr. Kaufman, Plaintiff does not allege how the other
Defendants were personally involved in the events giving rise to this Complaint. Plaintiff alleges
that Lopes Hygor administered the “wrong medication,” and he attaches to the Complaint a
document referring to Cheryl Ancrum as Plaintiff’s “provider” and Robert Beaudouin as the
“review[er]” of Plaintiff’s medical record. These facts are insufficient to state a claim against
Lopes Hygor, Cheryl Ancrum or Robert Beaudouin. In addition, the Complaint does not set
forth any allegations against Joaquin Y. or Singh Mandeep. See Iwachiw v. N.Y. State Dep’t of
Motor Vehicles, 299 F. Supp. 2d 117, 121 (E.D.N.Y. 2004), aff’d, 396 F.3d 525 (2d Cir. 2005);
Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) (“[W]here the complaint names
a defendant in the caption but contains no allegations indicating exactly how the defendant
violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that
defendant should be granted.”) (citations omitted). It is hereby
ORDERED, that by March 12, 2021, if Plaintiff has additional facts that he believes will
sustain claims against these named Defendants, Plaintiff may file a letter asking to replead and
attach a proposed complaint. Failure to file the letter with a proposed amended complaint will
result in the dismissal of claims against Lopes Hygor, Cheryl Ancrum, Robert Beaudouin,
Joaquin Y. and Singh Mandeep.

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VI.

VALENTIN ORDER
WHEREAS, under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the

district court in identifying a defendant. 121 F.3d 72, 76 (2d Cir. 1997); accord Genao v. City of
New York, No. 20 Civ. 8721, 2020 WL 7360650, at *1 (S.D.N.Y. Dec. 15, 2020).
WHEREAS, in the Complaint, Plaintiff supplies sufficient information to permit the
United States Attorney for the Southern District of New York to identify Dr. Daniel Kaufman. 2
Dkt. No. 2. It is hereby
ORDERED that, the United States Attorney for the Southern District of New York, who
is the attorney for and agent of the BOP, shall ascertain the service address for Dr. Kaufman, and
provide this information to Plaintiff and the Court within sixty days of the date of this Order.
Thereafter, the Court will issue an order directing the Clerk of Court to complete a USM-285
form with the address for Dr. Kaufman and deliver all documents necessary to effect service on
Dr. Kaufman to the U.S. Marshals Service.
VII.

CONCLUSION
The Court dismisses without prejudice Plaintiff’s claims against MCC and BOP. See 28

U.S.C. § 1915(e)(2)(B)(iii).

2

Private doctors can be federal actors depending on their relationship with a prison facility. Cf.
West v. Atkins, 487 U.S. 42, 56 (1988) (“Whether a physician is on the state payroll or is paid by
contract, the dispositive issue concerns the relationship among the State, the physician, and the
prisoner. Contracting out prison medical care . . . does not deprive the State’s prisoners of the
means to vindicate their Eighth Amendment rights.”); Iqbal, 556 U.S. at 675 (noting that Bivens
“is the federal analog to suits brought against state officials under [] 42 U.S.C. § 1983.”) (internal
citation omitted). The exact nature of Dr. Kaufman’s relationship with MCC is not clear. Cf.
Young v. Smith, No. 07 Civ. 6312, 2008 WL 4561605, at *4 (W.D.N.Y. Oct. 10, 2008) (denying
motion to dismiss because the terms of the relationship between the physician and the State
would be clarified during discovery). Should Plaintiff file an amended complaint asserting
federal claims against the other named defendants, Plaintiff could arguably assert state law
negligence claims against Dr. Kaufman.

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The Court dismisses without prejudice Plaintiff’s Bivens claims against Robert
Beaudouin, Joaquin Y., Cheryl Ancrum, Lopes Hygor and Singh Mandeep. By March 12, 2021,
Plaintiff shall file any letter asking to replead and shall attach a proposed amended complaint
providing facts that explain how these defendants were personally involved in violating his
constitutional rights.
The Court directs the Clerk of Court to mail a copy of this Order and the Complaint to the
Civil Division of the Office of the United States Attorney for the Southern District of New York
at 86 Chambers Street, 3rd Floor, New York, New York 10007.
The Court further directs the Clerk of Court to mail a copy of this Order to Plaintiff and
note service on the docket. An amended complaint form is attached.
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 an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue); accord United States v.
Kosic, 944 F.3d 448, 449 (2d Cir. 2019).
SO ORDERED.
Dated:

February 16, 2021
New York, New York
LORNA G. SCHOFIELD
United States District Judge

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