Jimenez v. F.C.I. Otisville- Bureau of Prison et al

Filing 35

OPINION & ORDER re: 24 MOTION to Dismiss filed by Bridget Baker, Diane Sommer, United States, 21 MOTION to Amend/Correct filed by Virgilio Jimenez. For the foregoing reasons, Defendants' motion to dismiss is GRANTED an d Plaintiff's motion to amend the Complaint is DENIED without prejudice. Plaintiff's Bivens claim and medical malpractice FTCA claim are dismissed. Defendants are directed to file an answer to the remaining claim within 30 days hereof. The parties are directed to appear for an initial pre-trial conference on March 22, 2016 at 10:00 a.m. Defendants are directed to appear in person. Defendants' counsel shall make arrangements with the appropriate correctional facility for Plaintiff to appear via telephone conference. Defendants shall bring a completed case management plan to the March 22 conference. The Court respectfully directs the Clerk to terminate the motions at ECF Nos. 21 and 24. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 2/3/2016) Copies Mailed By Chambers. (mml)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VIRGILIO JIMENEZ,
Plaintiff,

No. 14-cv-5166 (NSR)
OPINION & ORDER

-againstM.D. DIANE SOMMER, et al.,
Defendants.
NELSON S. ROMAN, United States District Judge

Plaintiff Virgilio Jimenez brings this action prose against Defendants the United States
of America ("United States"), Diane Sonnner, M.D. ("Sonnner"), and Bridget Baker, P.A.
("Baker") (collectively, "Defendants") alleging that Defendants were negligent with respect to
· their maintenance of the facility at the Federal Correctional Institution in Otisville, New York
("Otisville") and deliberately indifferent to his serious medical needs when he broke his ankle in
a fall while incarcerated Otisville. Plaintiff asse1ts the following claims against Defendants: (1)
a Bivens claim for violation of his Eighth Amendment rights 1; (2) a negligence claim under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680; and (3) a medical
malpractice FTCA claini. 2 Presently before the Cou1t is Defendants' motion to dismiss
Plaintiffs complaint pursuant to Rules 12(b)( 1) and 12(b)( 6) of the Federal Rules of Civil
Procedure (ECF No. 24), 3 as well as Plaintiff's motion for leave to amend his complaint (ECF
No. 21). For the following reasons, Defendants' motion to dismiss is GRANTED and Plaintiff's

1

See Bivens v. Six Unknown Agents of the Federal Bureau ofNarcotics, 403 U.S. 388 (1971) ("Bivens").

2

By Order dated September 16, 2014, this Court dismissed Plaintiff's claims against Defendant Warden Hufford of
Otisville and the United States Bureau of Prisons ("BOP"). See ECF No. 7. Additionally, the Court construed the
Complaint to allege claims under the ITCA, which required adding the United States as a defendant. Id.

3

Defendants do not appear to be moving on Plaintitrs negligence FTCA claim.

Copies~ ~I 3 /d-of lo~
Chambers of Nelson S. Roman, U.S.D.J.

motion to amend is DENIED.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff’s complaint (the “Complaint”) (ECF No. 1)
unless otherwise noted and are accepted as true for the purposes of these motions.
On June 28, 2013 at approximately 6:05 a.m., Plaintiff, while incarcerated at Otisville,
stepped out of his cell at the direction of Officer Adam Engualden. (Compl. at 3.) Plaintiff took
a few steps, slipped, and fell onto the floor hitting his head, lower back, right ankle, and right
wrist. (Id.) Plaintiff was able to stand up a few seconds later but could not walk. (Id.) Plaintiff
contends that he slipped on a puddle caused by leaks from broken windows. (Id. at 4.)
Plaintiff alleges that Inmates Franklin Sanchez and Bertram Alexander observed the
incident; Corrections Officer J. Torres observed puddles of water on the floor close to where
Plaintiff slipped; and Corrections Officer Deleo was aware of the puddles and indicated he would
put in a work order to fix the broken windows. (Id. at 3.)
Though Plaintiff required immediate medical attention, pain medication, use of a wheel
chair, x-rays, MRIs, CAT scans, and a lower tier cell, he contends he received no pain
medication and little medical attention. (Id.) In particular, x-rays were not taken until 5 days
after Plaintiff’s fall; he did not undergo an MRI or CAT scan; he received a broken wheel chair 8
days after the accident; and his ankle was put in a cast 11 days after the accident. (Id.)
The Complaint alleges that Plaintiff filed a grievance relating to both his medical
treatment and the damages windows. (Id. at 4.) Plaintiff’s grievance was denied, and the
Complaint notes that he appealed that decision by filing a tort claim. (Id.)
The Declaration of Adam M. Johnson (“Johnson Decl.”) filed in support of Defendants’
motion to dismiss attaches Plaintiff’s various grievances. (Johnson Decl., Exs. A–E.) On July 8,

2

2013, Plaintiff filed a BP-8 Form as part of the Administrative Remedy Program alleging that he
was subjected to cruel and unusual punishment as well as inadequate medical treatment and
attention. (Id. at Ex. A.) Plaintiff did not wish to informally resolve his grievance and requested
a BP-9 Form to elevate his grievance. (Id.) Plaintiff’s appeal was denied by the Regional
Director on September 11, 2013. (Id. at Ex. C.) On July 14, 2014, Plaintiff’s appeal again was
rejected by National Inmate Appeals. (Id. at Ex. D.) Plaintiff separately filed an administrative
claim, dated July 3, 2013, with BOP’s Northeast Regional Office, which was denied on January
10, 2014. (Id. at Ex. E.)
MOTION TO DISMISS STANDARDS
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation omitted). “A plaintiff asserting
subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it
exists.” Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In assessing whether there is
subject matter jurisdiction, the Court must accept as true all material facts alleged in the
complaint, Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009), but “the court may resolve
[any] disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as
affidavits . . . .” Zappia Middle E. Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d
Cir. 2000).
“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, 566
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “A

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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.” Iqbal, 566
U.S. at 678. Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.
2010). A court should accept non-conclusory allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir.
2008). “[T]he duty of a court ‘is merely to assess the legal feasibility of the complaint, not to
assay the weight of the evidence which might be offered in support thereof.’” DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010) (quoting Cooper v. Parsky, 140 F.3d
433, 440 (2d Cir. 1998)).
“Pro se complaints are held to less stringent standards than those drafted by lawyers,
even following Twombly and Iqbal.” Thomas v. Westchester, No. 12–CV–6718 (CS), 2013 WL
3357171 (S.D.N.Y. July 3, 2013); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The
court should read pro se complaints “to raise the strongest arguments that they suggest.” Pabon
v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). Even so, “pro se plaintiffs . . . cannot withstand a
motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to
relief above the speculative level.” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d 218, 224
(S.D.N.Y. 2010) (internal quotation marks omitted). Dismissal is justified where “the complaint
lacks an allegation regarding an element necessary to obtain relief,” and the “duty to liberally
construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. N.Y.

4

Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations
omitted).
When ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
“court may consider the facts as asserted within the four corners of the complaint together with
the documents attached to the complaint as exhibits, and any documents incorporated in the
complaint by reference.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57,
64 (2d Cir. 2010) (internal quotation marks and citation omitted). Courts also may consider
“matters of which judicial notice may be taken” and “documents either in plaintiffs' possession
or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs.,
Inc., 987 F.2d 142, 150 (2d Cir. 1993). One way a document may be deemed incorporated by
reference is where the complaint “refers to” the document. EQT Infrastructure Ltd. v. Smith, 861
F. Supp. 2d 220, 224 n.2 (S.D.N.Y. 2012). “Where . . . ‘exhaustion of administrative remedies is
a prerequisite to bringing suit, a court may take judicial notice of the records and reports of the
relevant administrative bodies, as well as the facts set forth therein.”' Zappulla v. Fischer, No.
11-cv-6733 (JMF), 2013 WL 1387033, at * 1 (S.D.N.Y. Apr. 5, 2013) (quoting Wilson v. N.Y.C.
Police Dep't, No. 09-cv-2632 (PAC) (HBP), 2011 WL 1215031, at *6 (S.D.N.Y. Feb. 4, 2011)).
DISCUSSION
I.

Bivens Claims
In his opposition brief, Plaintiff appears to withdraw his Bivens claims. 4 (Motion for

4

Plaintiff’s opposition brief contains the following language: “Despite the fact the Plaintiff strongly feels the
inadequate and inappropriate medical care [Defendants] gave rises to the level of deliberate indifference, and despite
the fact that Plaintiff feels their actions were, at best, unprofessional, he does concede that the Biven’s claims against
them are likely to fail. Plaintiff, therefore, does not challenge the affirmative defenses brought against the Bivens
claims in this complaint.” (Pl.’s Opp. at 7.) While merely declining to challenge a defendant’s affirmative defenses
does not constitute withdrawal of a claim, an acknowledgement that a claim is “likely to fail,” even made
begrudgingly, would seem to indicate a plaintiff had withdrawn that claim. However, out of an abundance of
caution, the Court still will address the merits of the Bivens claim.

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Leave to Amend and Opposition to Defendant’s Motion to Dismiss (“Pl.’s Opp.”) at 7.)
Nevertheless, in light of Plaintiff’s pro se status, the Court finds it appropriate to analyze
Plaintiff’s Bivens claim. Bivens provides “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). In this case, Plaintiff’s assertion that he was provided inadequate
medical care implicates his constitutional rights under the Cruel and Unusual Punishments clause
of the Eighth Amendment. Est v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (citing Weyant v.
Okst, 101 F.3d 845, 856 (2d Cir. 1996)). An Eighth Amendment claim of inadequate medical
care requires a demonstration of “deliberate indifference to [a prisoner's] serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Defendants advance two primary arguments in support of their motion to dismiss
Plaintiff’s Bivens claim: (1) Plaintiff failed to exhaust his administrative remedies as required
under the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e et seq. (“PLRA”) with respect to
his claim against Sommer, and (2) Baker is entitled to absolute immunity as an employee of the
Public Health Service. (Memorandum of Law in Support of Defendants’ Motion to Dismiss the
Complaint (“Defs.’ Mot.”) at 1.)
A. Failure to Exhaust Administrative Remedies
“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life . . . .”
Porter v. Nussle, 534 U.S. 516, 532 (2002); see 42 U.S.C. § 1997e (“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.”) “Failure to exhaust may be excused only where (1)
administrative remedies were not in fact available; (2) prison officials have forfeited, or are

6

estopped from raising, the affirmative defense of non-exhaustion; or (3) ‘special circumstances ...
justify the prisoner's failure to comply with administrative procedural requirements.’ Adekoya v.
Fed. Bureau of Prisons, 375 F. App’x 119, 121 (2d Cir. 2010) (quoting Hemphill v. New York,
380 F.3d 680, 686 (2d Cir.2004) (internal quotation marks omitted)).
A prisoner is required “to exhaust every claim he wishes to assert prior to filing a claim in
district court.” Hernandez v. Coffey, No. 99-cv-11615 (WHP), 2003 WL 22241431, at *2
(S.D.N.Y. Sept. 29, 2003) (collecting cases); Verley v. Goord, No. 02-cv-1182, 2004 WL
526740, at *27 (S.D.N.Y. Jan. 23, 2004) (“A prisoner must completely exhaust the
administrative remedies to the highest level for each claim he seeks to present.”); Petty v. Goord,
No. 00-cv-803 (MBM), 2002 WL 31458240, at *4 (S.D.N.Y. Nov. 4, 2002) (“allegations in the
complaint that were not mentioned in [prior] grievance are barred by section 1997e(a)”) (citing
Williams v. Muller, No. 98-cv-5204, 2000 U.S. Dist. LEXIS 5286, at *8 (S.D.N.Y. Apr. 25,
2000)). “This Circuit has expressly stated that, ‘[i]n order to exhaust . . . inmates must provide
enough information about the conduct of which they complain to allow prison officials to take
appropriate responsive steps.’” Strong v. Edwards, No. 05-cv-0104 (PAC), 2005 WL 2542910,
at *4 (S.D.N.Y. Oct. 11, 2005) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)
(quotation and citation omitted)).
An inmate in the custody of Otisville is required to avail himself of BOP’s
Administrative Remedy Program prior to filing a Bivens claim. See generally 28 C.F.R. § 542;
Macias v. Zenk, 495 F.3d 37, 42 (2d Cir. 2007) (outlining multi-step program to exhaust claims).
First, the inmate must present the issue informally to staff utilizing a “BP-8” form. Second, if
the complaint is not resolved informally, an inmate must submit a formal written Administrative
Remedy Request to the Warden on a “BP-9” form within 20 days of the event(s) underlying the

7

complaint. 28 C.F.R. § 542.14(a). In the case an inmate’s formal request is denied, he may
submit an appeal via a “BP-10” form to the BOP Regional Director. Id. § 542.15(a). Finally, an
inmate, if issued a negative decision by the Regional Director, may appeal within thirty days to
the General Counsel’s office. Id.
While Plaintiff submitted BP-8, BP-9, BP-10, and BP-11 forms (the “BP Forms”) in
which he contends that he received inadequate medical treatment subsequent to his fall, (see
Declaration of Adam M. Johnson (“Johnson Decl.”) Exs. A–D), none of the forms contain any
reference to Sommer. A review of the BP Forms reveals that his complaints regarding
inadequate medical treatment center on the conduct of Baker. (Johnson Decl. Exs. A–D.)
Defendants assert, and the Court agrees, that Plaintiff’s failure to mention Sommer in these
forms warrants dismissal of Plaintiff’s Bivens claim against her. See Skyers v. United States, No.
12-cv-3432, 2013 WL 3340292, at *8 (S.D.N.Y. July 2, 2013) (citing Collins v. Goord, 438 F.
Supp. 2d 399, 413 (S.D.N.Y. 2006) (dismissing claims against specific defendants for failure to
exhaust because the “grievance does not name or even allude generally to defendants.”).
B. Absolute Immunity
In Hui v. Castaneda, the Supreme Court held that 42 U.S.C. § 233(a) “precludes Bivens
actions against individual [Public Health Service] officers or employees for harms arising out of
conduct described in that section.” 559 U.S. 799, 812 (2010). Conduct set forth in Section
233(a) includes “damage for personal injury . . . resulting from the performance of medical,
surgical, dental, or related functions.” 42 U.S.C. § 233.
Though not referenced by name in the Complaint, Baker is singled out in the BP Forms
as an individual that provided Plaintiff with inadequate medical treatment. It is uncontested that
Baker was serving as a PHS employee in her capacity as a Health Services Officer at the time

8

Plaintiff claims that Baker provided him with inadequate medical treatment. Even if this Court
were to construe the allegations in the Complaint as containing any reference to Baker, “such
allegations are directed at the performance of medical functions and within the scope of
[Baker’s] employment. Therefore § 233(a) of the PHSA bars [Plaintiff] from bringing such
claims under Bivens against [Baker].” Adekoya v. Holder, 751 F. Supp. 2d 688, 694 (S.D.N.Y.
2010).
Having concluded that Plaintiff failed to exhaust his administrative remedies with respect
to his claim against Sommer and that Baker is entitled to absolute immunity, the Court
accordingly dismisses Plaintiff’s Bivens claims.
II.

FTCA Claims
The Court finds that the Complaint seeks to assert FTCA claims premised upon (1)

medical malpractice and (2) negligence. While Defendants seeks dismissal of the medical
malpractice FTCA claim, they do not appear to contest the validity of the negligence FTCA
claim at this stage of the litigation. With respect to the medical malpractice FTCA claim,
Defendants assert two grounds for dismissal: (1) Plaintiff failed to exhaust the appropriate
administrative process, and (2) Plaintiff failed to state a claim.
It is beyond cavil that the principle of sovereign immunity shields the United States from
being sued without its consent and that “the existence of consent is a prerequisite for
jurisdiction.” United States v. Mitchell, 564 U.S. 206, 212 (1983). See also FDIC v. Meyer, 510
U.S. 471, 475 (1994); Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004). In the FTCA,
Congress waived sovereign immunity for suits arising from injury “caused by the negligent or
wrongful act or omission of any employee of the Government while acting within the scope of
[her] office or employment.” 28 U.S.C. § 1346(b)(1). A suit against the United States is the

9

exclusive remedy for a suit for damages for such injury or loss of property. 28 U.S.C. §
2679(b)(1). This waiver of sovereign immunity must be “strictly construed in favor of the
government.” Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir. 1988) (quotation and
citation omitted).
“Before an action may be filed under the Federal Tort Claims Act, an administrative
claim must be presented to the federal agency employing the person whose act or omission
caused the injury.” Valdez v. United States, No. 08-cv-4424, 2009 WL 2365549, at *5, n.7
(S.D.N.Y. July 31, 2009). “Presentation of an administrative claim to the appropriate agency is a
jurisdictional prerequisite to suit.” Id. (citing 28. U.S.C. § 2675(a) (“An action shall not be
instituted upon a claim against the United States . . . 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 and sent by . . . mail.”)). A claimant must “exhaust all administrative
remedies before filing a complaint in federal district court.” Celestine v. Mount Vernon
Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). The agency has up to six months to
respond to a claim, and if there is no response after six months, the claim can be assumed denied,
and plaintiff can file an action in district court. See 28 U.S.C. § 2675(a); 28 C.F.R. § 543.32(1);
Bakowski v. Hunt, 150 F. App’x 19, 21 (2d Cir. 2005); Cuello v. Lindsay, No. 09-cv-4525
(KAM) (MDG), 2011 WL 1134711, at *10 (E.D.N.Y. Mar. 25, 2011). The administrative
exhaustion requirement is “jurisdictional and cannot be waived.” Celestine, 403 F.3d at 82
(citing McNeil v. United States, 508 U.S. 106, 113 (1993); Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 510 (2d Cir. 1994)). Notably, the FTCA’s presentment process is separate
and distinct from the exhaustion requirement under the PLRA. Owusu v. Fed. Bureau of
Prisons, No. 02-cv-0915 (NRB), 2003 WL 68031, at *2 (S.D.N.Y. Jan. 7, 2003) (“The

10

exhaustion procedures under the two statutes differ and the fulfillment of one does not constitute
satisfaction of the other.”).
A plaintiff’s administrative tort claim “must provide enough information to permit the
agency to conduct an investigation and to estimate the claim’s worth.” Romulus v. United States,
160 F.3d 131, 132 (2d Cir. 1998) (citing Keene Corp. v. United States, 700 F.2d 836, 842
(1983)). In this case, Defendants assert that Plaintiff failed to exhaust his medical malpractice
claim brought under the FTCA because his Form SF-95 only contains descriptions of the
circumstances surrounding his fall—which would substantiate a negligence claim—and not his
subsequent medical treatment. (Defs.’ Mot. at 15.) Plaintiff contends, on the other hand, that
Defendants were in a position to “ascertain a theory of negligent medical care based on the
paperwork in their possession.” 5 (Pl.’s Opp. at 5.) In support of this proposition, Plaintiff cites
Johnson by Johnson v. United States, 788 F.2d 845 (2d Cir. 1985) and Lopez v. Zenk, No. 08-cv4601 (RJD), 2008 WL 3285895 (E.D.N.Y. Aug. 8, 2008)—both of which are distinguishable
from the instant action. In Johnson by Johnson, the Second Circuit held that an administrative
claim stating the injury’s cause, the name of the offending employee, and the date and location of
the attack furnished the agency with sufficient facts “to enable it to investigate the matter.” 788
F.2d at 849. The court noted that “[a]lthough the claim supplied no facts evidencing negligent
supervision and did not allege all the factual elements of such a theory of liability, a reasonably
thorough investigation of the incident should have uncovered any pertinent information in the
government’s possession . . . .” Id. Here, however, the facts alleged in Plaintiff’s Form SF-95

5

Plaintiff additionally argues that Defendants were on notice of his medical malpractice claim vis-à-vis Plaintiff’s
grievances outlined in the BP Forms. However, these forms “do not establish exhaustion under the FTCA; rather
they constitute BOP Administrative Remedy Program forms used to exhaust remedies for Bivens claims, pursuant to
the PLRA.” Fiore v. Medina, No. 11-cv-2264 (RJS), 2012 WL 4767143, at *7, n.5 (S.D.N.Y. Sept. 27, 2012)
(citation omitted). As stated above, the exhaustion procedures for FTCA claims are distinct from those procedures
for PLRA claims. See Owusu, 2003 WL 68031, at *2.

11

are insufficient to enable the agency to investigate a medical malpractice claim because Plaintiff
only describes the circumstances surrounding his fall, the injury sustained from the fall, and the
cause of the water leak. Zenk is distinguishable because the grievance in that case, unlike
Plaintiff’s grievance, made reference to plaintiff’s receipt of medical treatment. 2008 WL
3285895, at *3. In that case, the court found that plaintiff’s statement that he was treated at the
Downstate Hospital Emergency Room furnished BOP with information sufficient to conduct an
investigation and uncover a potential medical malpractice claim. Id. In contrast, Plaintiff’s
grievance only contains a description of his injuries and pain. The Form SF-95 is silent as to
whether Plaintiff even sought treatment for his injuries.
“Claiming an injury is not at all the same thing as claiming a deprivation of adequate
medical treatment; an injury does not imply a wrongful denial of medical treatment.” Turkmen
v. Ashcroft, No. 02-cv-2307 (JG), 2006 WL 1662663, at *54 (E.D.N.Y. June 14, 2006) aff’d in
part, vacated in part, remanded, 589 F.3d 542 (2d Cir. 2009) (citing Palay v. United States, 349
F.3d 418, 425 (7th Cir. 2003) (affirming dismissal of claim of inadequate medical care for failure
to exhaust where “[a]lthough [plaintiff] described the injuries he sustained and the physical
effects-including the recurrent seizures-that he suffered, he stated no facts suggesting that the
prison medical staff had treated him inappropriately.”)). The Court declines to adopt a standard
that would require agencies to investigate potential medical malpractice in every instance in
which an individual alleged a physical injury. Accordingly, the Court dismisses Plaintiff’s
FTCA claim premised upon medical malpractice because Plaintiff failed to exhaust his claim.

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III.

Leave to Amend
Plaintiff’s opposition brief seeks leave to amend the Complaint. (Pl.’s Mot. at 1.)

“‘Generally, leave to amend should be freely given, and a pro se litigant in particular should be
afforded every reasonable opportunity to demonstrate that he has a valid claim.’” Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Mattima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000)
(internal quotation marks and citation omitted)). “‘A pro se complaint should not be dismissed
without the Court granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.’” Nielsen, 746 F.3d at 62 (quoting
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal brackets and quotation marks
omitted)). “However, ‘leave to amend a complaint may be denied when amendment would be
futile.’” Nielsen, 746 F.3d at 62 (quoting Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d
Cir. 2006)).
An amendment of an FTCA claim is futile when a plaintiff fails to exhaust his
administrative remedies. See Dockery v. Tucker, No. 97-cv-3584 (ARR), 2007 WL 5303009, at
*17 (E.D.N.Y. Dec. 5, 2007) report and recommendation adopted in part, No. 97-cv-3584
(ARR) (RLM), 2008 WL 2673307 (E.D.N.Y. June 26, 2008); see also Funches v. Reish, No. 97cv-7611 (LBS), 1998 WL 695904, at *9–10 (S.D.N.Y. Oct. 5, 1998) (limiting plaintiff’s leave to
amend his complaint to only that claim that was set forth in plaintiff’s Administrative Tort
Claim). Having concluded that Plaintiff failed to exhaust his administrative remedies with
respect to the medical malpractice FTCA claim, the Court denies Plaintiff leave to amend the
Complaint with respect to that claim. As for the negligence FTCA claim, Plaintiff fails to
delineate the nature of his proposed amendments. Indeed, Plaintiff merely states in conclusory
fashion that he seeks leave to amend “his complaint to more fully state his claims for relief.”

13

(Pl. 's Opp. at 1.) Because the Couit cannot assess the potential futility of Plaintiff's proposed
amendments, the Court accordingly denies Plaintiffs motion to amend without prejudice to
renew upon a proper showing of the proposed amendments.

CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED and Plaintiff's
motion to amend the Complaint is DENIED without prejudice. Plaintiff's Bivens claim and
medical malpractice FTCA claim are dismissed. Defendants are directed to file an answer to the
remaining claim within 30 days hereof. The parties are directed to appear for an initial pre-trial
conference on March 22, 2016 at 10:00 a.m. Defendants are directed to appear in person.
Defendants' counsel shall make anangements with the appropriate conectional facility for
Plaintiff to appear via telephone conference. Defendants shall bring a completed case
management plan to the March 22 conference. The Court respectfully directs the Clerk to
te1minate the motions at ECF Nos. 21 and 24.
Dated:

February 3, 2016

SO ORDERED:

White Plains, New York

United States District Judge

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