Swinton v. Western District of New York, U.S.D.C. et al

Filing 80

DECISION AND ORDER: For the reasons set forth in the attached Decision and Order, Defendants' motion for summary judgment 36 is granted in part and denied in part; Defendants' motion to stay discovery 40 is denied as moot; Plaintiff� 39;s motions to amend his Complaint 47 49 are granted in part and denied in part; Plaintiff's motion to lift the stay 59 is denied as moot; Plaintiff's motion for a hearing 67 is denied as moot; and Plaintiff's motion to dismis s 74 is denied in part with leave given to amend consistent with this Decision and Order. The Clerk of the Court shall take all steps necessary to designate a Magistrate Judge to act in this case in accordance with 28 U.S.C. § 636(b)(1). A c opy of the Decision and Order has been mailed to Robert L. Swinton, Jr., 22008-055, DANBURY FEDERAL CORRECTIONAL INSTITUTION, Inmate Mail/Parcels, ROUTE 37, DANBURY, CT 06811. SO ORDERED. Signed by Hon. Richard J. Arcara on 8/26/2022. (LAS)This was mailed to: Robert L. Swinton, Jr..Clerk to Follow up (Main Document 80 replaced on 8/26/2022) (LAS).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ROBERT L. SWINTON, JR.,
Plaintiff,
DECISION AND ORDER
15-CV-47

v.
JON SERDULA, STEVEN PASCUZZI, ABHAY
DAVE, and JAIME TORRES,
Defendants.

Proceeding pro se, plaintiff Robert L. Swinton, Jr. (“Plaintiff”) alleges that while he
was a federal pretrial detainee, defendant employees of the United States Marshals
Service (“USMS”) (“Defendants”) were deliberately indifferent to his dental needs and
also violated his right to access the courts. Dkt. 4. Pending before the Court are
numerous motions filed by both parties, namely Defendants’ motion to dismiss or,
alternatively, for summary judgment (Dkt. 36); Defendants’ motion to stay discovery
(Dkt. 40); two motions to amend Plaintiff’s First Amended Complaint (Dkts. 47 and 49);
Plaintiff’s motion to lift the stay of all proceedings (Dkt. 59); Plaintiff’s motion for a
hearing regarding exhaustion requirements of the Prison Litigation Reform Act (“PLRA”)
(Dkt. 67); and Plaintiff’s motion to dismiss without prejudice to refile and for an
electronic copy of the case file (Dkt. 74).

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FACTS
On October 16, 2012, members of the Rochester, NY Police Department and the
Bureau of Alcohol, Tobacco, Firearms and Explosives executed a state court authorized
search warrant for narcotics and drug proceeds at the residence of Plaintiff. Complaint,
United States v. Swinton, 6:15-CR-6055, (W.D.N.Y. Oct. 19, 2012), ECF No. 1. Law
enforcement seized guns and narcotics from the residence, and on October 19, 2012,
Plaintiff was arrested on a federal warrant. Id.; Arrest Warrant, United States v.
Swinton, 6:15-CR-6055, (W.D.N.Y. Nov. 5, 2012), ECF No. 9.
Plaintiff was housed at the Monroe County Jail (“MCJ”) from the date of his arrest
through February 12, 2014. Dkt. 36-10. On February 12, 2014, Plaintiff was transferred
to the Livingston County Jail (“LCJ”) and remained there through October 8, 2015. Id.
The USMS detains individuals charged with violations of federal law at local jails,
including MCJ and LCJ, pursuant to various Intergovernmental Agreements. Dkt. 3610. Plaintiff alleges that the Defendants were deliberately indifferent to his need for
dental treatment from December 2012 through February 18, 2015. Dkt. 4. He also
alleges that upon his transfer to LCJ, the Defendants violated his right to access the
courts because he was denied access to federal legal research materials. Id.
Defendants Jon Serdula, Jaime Torres, and Abhay Dave are three Deputy United
States Marshals (“DUSMs”), the latter of whom was serving as an Acting Supervisor in
his connection to the instant matter. Dkts. 26; 36-8; 36-16; and 36-17. The fourth and
final defendant, Steven Pascuzzi, was employed as a USMS Operations Support
Specialist (“OSS”) at all times relevant. Dkts. 26 and 36-10.

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PROCEDURAL HISTORY
Plaintiff originally brought this pro se suit pursuant to 28 U.S.C. § 1346(b), the
Federal Tort Claims Act (“FTCA”), against the Western District of New York and the
USMS. Dkt. 1. Due to his failure to exhaust administrative remedies under the FTCA,
his claims were dismissed without prejudice; however, the Court granted Plaintiff leave
to file an amended complaint specifically alleging “a Bivens claim against a federal
government officer(s) or employee(s) in his individual capacity whom he claims violated
his constitutional rights” when he was denied dental care and access to the courts. Dkt.
3.
Plaintiff then filed a First Amended Complaint pursuant to 28 U.S.C. § 1331
against unknown USMS supervisors alleging almost identical factual claims as those set
forth in his original Complaint. Dkt. 4. Specifically, he alleged he was subjected to
numerous episodes of oral puss discharge stemming from an abscessed tooth, with
related swelling and jawbone decay, for over two years while the USMS supervisors
were deliberately indifferent to his need for dental care and treatment. Id. Additionally,
Plaintiff alleged that upon his transfer in February 2014 to the Livingston County Jail, he
was denied access to federal treatises and other law library materials he required as a
pro se federal litigant housed in a state facility. Id. According to Plaintiff, a Lexis Nexis
kiosk terminal was installed in September 2014, but prior to that time the jail did not
have resources related to federal law. Id. Even after installation of the kiosk, he alleges
he was being improperly charged for printed copies of his legal research, sometimes
forbidden from receiving printed copies altogether, and that he encountered numerous
technological difficulties that were not timely resolved. Id. Finally, Plaintiff clarified in an

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under-seal filing that he believes his inability to access federal law contributed to him
being designated career offender status, which led to an excessively high imprisonment
range being offered in the plea agreement that he rejected in United States v. Swinton,
6:15-CR-6055. Dkt. 6.
The First Amended Complaint was dismissed with prejudice when the Court
found it failed to state a claim upon which relief could be granted. Dkt. 17. The Court
determined that the allegations amounted to nothing more than claims of vicarious
responsibility under respondeat superior, and therefore critically failed to state that the
defendants had personally contributed to the constitutional violations the First Amended
Complaint set forth. Id.
Plaintiff appealed (Dkt. 19) the order of dismissal and the Second Circuit Court of
Appeals issued a mandate vacating the judgment of dismissal and remanding the case
for further proceedings, instructing that pro se submissions should be construed liberally
as requests for assistance in identifying “John Doe” defendants. Dkt. 21.
At the Court’s direction (Dkt. 25), a Valentin 1 response was filed by the
Government (Dkt. 26), and the above-named Defendants were substituted. Several
weeks later, Defendants filed their pending motion to dismiss. Dkt. 36.
DISCUSSION
I.

Defendants’ Motion to Dismiss and/or for Summary Judgment
A. Legal Standards
Defendants have moved for an order dismissing Plaintiff’s First Amended

Complaint pursuant to Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil

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See Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997).

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Procedure. Plaintiff bears the burden of establishing subject matter jurisdiction under
Rule 12(b)(1) by a preponderance of the evidence and the Court may consider evidence
outside the pleadings without converting the motion to one for summary judgment.
Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). However, if the jurisdictional
question is interwoven with the underlying merits of the case, conversion of a Rule
12(b)(1) motion to a Rule 12(b)(6) or 56 motion is required. Dorchester Fin. Sec, Inc. v.
Banco BRJ, S.A., 722 F.3d 81, 87 (2d Cir. 2013).
To survive a motion to dismiss pursuant to Rule 12(b)(6), “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, 556 U.S. 662, 678 (2009), quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 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, 556 U.S. at 678.
Pursuant to Federal Rule of Civil Procedure 12(d), if matters outside the
pleadings are presented and considered by the court on a Rule 12(b)(6) motion, the
motion “must be treated as one for summary judgment under Rule 56.”
A party is entitled to summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it could affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
regarding a material fact is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. All justifiable inferences are to be drawn
in favor of the nonmovant. Id. at 255. However, the nonmovant “may not rely on mere

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conclusory allegations nor speculation, but instead must offer some hard evidence
showing that its version of the events is not wholly fanciful.” D'Amico v. City of New
York, 132 F.3d 145, 149 (2d Cir. 1998).
B. Analysis
With respect to Federal Rule of Civil Procedure 12(b)(1), Defendants’ motion
argues only that Plaintiff’s FTCA claim must be dismissed. Defendants assert that
Plaintiff’s failure to file an administrative tort claim with the appropriate federal agency is
a jurisdictional defect that cannot be waived. Citing Keene Corp. v. United States,
Defendants argue that the procedures of 28 U.S.C. § 2675 must be strictly adhered to
as they guard against the unauthorized waiver of sovereign immunity. Id., 700 F.2d
836, 841 (2d Cir. 1983).
Section 2675 states that an administrative claim must be presented to the
appropriate federal agency and either denied or left pending with the agency for six
months, at which time it is deemed denied, before a FTCA suit can be initiated against
the United States. Title 28 also contains a provision which governs the time for
commencing tort claims against the United States – § 2401(b) provides that such claim
will be “forever barred unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun within six months
after the date of mailing, by certified or registered mail, of notice of final denial of the
claim by the agency to which it was presented.”
In April 2015, just two months before Plaintiff’s FTCA claims were initially
dismissed, the Supreme Court decided United States v. Kwai Fun Wong, which held
that § 2401(b) was not jurisdictional despite its “forever barred” phrasing. Id., 575 U.S.

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402 (2015). Furthermore, in light of § 2401(b)’s legislative history, a rebuttable
presumption in favor of equitable tolling applied to FTCA suits against the United States.
Id.
The jurisdictional question presented in this case is therefore inextricably
intertwined with the underlying merits of the FTCA claim, thus requiring analysis of this
issue under the standards of Rule 12(b)(6) or 56. See Dorchester, 722 F.3d at 87.
Additionally, because the Court considered several declarations attached to
Defendants’ motion to dismiss, pursuant to Rule 12(d) the standards for summary
judgment set forth in Rule 56 must be applied to all aspects of the motion.
i. Bivens Claims
In 1971, the Supreme Court created a limited federal analogue to 42 U.S.C. §
1983 insofar as it found that a plaintiff was entitled to money damages for the
constitutional violations he suffered at the hands of federal officials. Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). In that case, federal employees
had performed unconstitutional searches and seizures in violation of the plaintiff’s
Fourth Amendment rights. Id. In the decades that followed, the Supreme Court itself
has only extended the Bivens concept of invoking general federal question jurisdiction
to obtain money damages against a federal official in the absence of an applicable
statutory protection in two other cases. Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir.
2009).
The first such case involved an employment discrimination claim brought by a
female employee against her Congressman employer alleging sexual harassment and
wrongful termination in violation of the Due Process Clause of the Fifth Amendment.

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Davis v. Passman, 442 U.S. 228 (1979). The second case was brought by the estate of
decedent and alleged that prison officials were deliberately indifferent to decedent’s
serious medical needs, resulting in his death, in violation of the Eighth Amendment and
decedent’s due process rights. Carlson v. Green, 446 U.S. 14 (1980).
In declining to extend a Bivens cause of action to allow recovery against a private
corporation operating a halfway house under contract with the Bureau of Prisons in
2001, the Supreme Court urged “caution toward extending Bivens remedies into any
new context.” Corr. Servs. Corp. v. Malesko, 534 US 61, 74 (2001). More recently, the
Supreme Court announced that courts must assess each Bivens claim presented for
whether it constitutes a new Bivens context by determining whether “the case is
different in a meaningful way from previous Bivens cases decided by [the Supreme]
Court.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1859 (2017).
The Supreme Court used the opportunity provided by Ziglar to delineate
examples of potentially meaningful differences, 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 or emergency to be 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.
In order to maintain a Bivens action, a plaintiff must allege two principal
elements: first, that the defendants deprived him of a right secured by the Constitution;
and second, that the defendants acted under color of federal law. See Mahoney v. Nat'l

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Org. for Women, 681 F.Supp. 129, 132 (D.Conn. 1987). Defendants do not dispute that
at all times relevant they were acting in their capacity as employees of the USMS, under
color of law. Dkt. 38. Our analysis will therefore focus solely on the first prong.
b. Deliberate Indifference
Plaintiff’s first Bivens cause of action alleges that Defendants were deliberately
indifferent to his dental needs from December 2012 through February 2015, during the
time that he was a pretrial detainee. The Eighth Amendment to the Constitution
protects prisoners from cruel and unusual punishment, and it is well-established that
preventing an inmate from receiving necessary medical care constitutes a violation of
this provision. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Eighth Amendment
liability requires more than lack of due care or mere negligence; rather, the standard is
deliberate indifference, which has oft been equated with recklessness. Id. at 835-36,
citing Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“We therefore conclude that
deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain,’ Gregg v. Georgia, 428 U.S. 153, 173
(1976), proscribed by the Eighth Amendment.”); LaMarca v. Turner, 995 F.2d 1526,
1535 (11th Cir. 1993); and Manarite v. City of Springfield, 957 F.2d 953, 957 (1st Cir.
1992).
At all times relevant, Plaintiff was a federal pretrial detainee, and as such was not
afforded the protection of the Eighth Amendment because he was not yet being
punished. 2 Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). Nevertheless, the due

After a jury found him guilty on four of five criminal counts, Plaintiff was sentenced to 270
months of imprisonment. Judgment, United States v. Swinton, 6:15-CR-6055 (W.D.N.Y. Dec.
28, 2017), ECF No. 217.

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process clauses of both the Fifth Amendment and the Fourteenth Amendment have
been construed to provide equivalent protections for pretrial detainees in federal and
state-level custody, respectively. Id.
Accordingly, the threshold question is whether a Fifth Amendment claim of the
Defendants’ deliberate indifference to Plaintiff’s dental needs presents a new Bivens
context.
Clearly, the facts of Bivens bear little resemblance to the matter at hand. And
while Davis involved the same Constitutional provision, other similarities to Plaintiff’s
allegation are scarce. Carlson offers the most analogous Supreme Court precedent
because it presented a claim of deliberate indifference to an inmate’s healthcare needs.
Upon examination of the examples of potentially meaningful differences that the
Supreme Court set forth in Ziglar, however, it is evident that Plaintiff’s deliberate
indifference claim presents a new context.
The Supreme Court’s instruction to consider “the rank of the officers involved” in
performing the analysis required under Ziglar provides a sufficiently meaningful
distinction as to create a new Bivens context in this case. In Carlson, defendants
included (1) the Chief Medical Officer directly responsible for medical services at the
prison decedent was confined to, Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978);
(2) an unlicensed nurse who treated decedent in his capacity as a medical training
assistant, id.; (3) a staff officer who brought emergency medical equipment to treat
decedent, id.; (4) the Joint Commission of Accreditation of Hospitals, id.; (5) the Director
of the federal Bureau of Prisons, id. at 676; and (6) the Assistant Surgeon General of

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the United States, who was responsible for monitoring medical services at the prison
decedent was confined to, id.
As previously noted, Defendants here are three Deputy United States Marshals
(“DUSMs”), one of whom was acting as a supervisor in his connection to the matter
alleged, and a USMS Operations Support Specialist. Dkts. 36-8, 36-10, 36-16, and 3617. None of these defendants worked in either facility – Livingston Country Jail (“LCJ”)
and Monroe County Jail (“MCJ”) – that Plaintiff was held in during the span of his claim.
Further, DUSMs Dave, Serdula, and Torres all provided declarations asserting that they
have no duties “with respect to prisoner medical care” and emphasizing that they are
not authorized or qualified to “make medical recommendations or decisions regarding a
prisoner’s medical care.” Dkts. 36-8, 36-16, and 36-17.
Defendants Serdula and Torres were assigned to escort Plaintiff to a May 14,
2014 Court appearance in Plaintiff’s then-ongoing criminal case. Dkts. 36-16 and 3617. During that appearance, Plaintiff’s counsel advised Magistrate Judge Payson that
Plaintiff had filed a grievance with LCJ in an attempt to procure dental treatment from an
outside specialist, to no avail. Dkt. 74. Magistrate Judge Payson in turn asked the
DUSMs present – Defendants Serdula and Torres – to contact LCJ and request a status
on Plaintiff’s dental treatment, and report back to the Court. Id.; see also Minute Entry,
United States v. Swinton, 6:15-CR-6055 (W.D.N.Y. May 14, 2014), ECF No. 45.
In contrast, Plaintiff’s First Amended Complaint alleges that these defendants
were “directly responsible for 2 years of medical/dental denial and deliberate
indifference to the plaintiff’s dental needs.” Dkt. 4. The Court has also reviewed
Plaintiff’s proposed Second Amended Complaint, currently under the Court’s

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consideration, for further detail regarding the alleged acts or omissions of Defendants
Serdula and Torres. The “Affirmation of Complaint” which accompanied this filing states
that “[n]either of these defendants can recall reporting the [request of Magistrate Judge
Payson] to a superior U.S. Marshal Service employee, and thereby liable [sic] for the
deliberate indifference of constitutional rights by medical denial after being directed by
the Court to address the dental abscessing.” Dkt. 47.
As previously noted, neither Defendant Serdula nor Torres were authorized to
provide or oversee the provisioning of detainee medical treatment. And while both
defendants admit they do not have specific recollections of the Magistrate Judge’s May
14, 2014 request, they also both assert that their standard practice was to notify their
supervisor when a court made such a request. Dkt. 36-16 and 36-17.
Defendant Dave was serving as the Acting Supervisory DUSM on May 14, 2014.
Dkt. 36-8. Although he does not specifically recall having been informed of the
Magistrate Judge’s request, his declaration asserts that his standard practice was “to
either contact the medical staff of the jail … directly, or to ask the USMS personnel …
who normally have contact with the jail medical staff on medical requests to do so on
my behalf.” Id. Neither Plaintiff’s First Amended Complaint nor his pending proposed
Second Amended Complaint specifically refer to acts or omissions of Defendant Dave;
rather, the former simply alleges that he, like his co-defendants, was “directly
responsible for 2 years of medical/dental and deliberate indifference to the plaintiff’s
dental needs.” Dkt. 4 and 47.
Defendant OSS Pascuzzi’s duties included processing requests for outside
medical care of federal detainees held at state facilities. Dkt. 36-10. According to OSS

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Pascuzzi’s declaration, routine medical decisions concerning detainees are made by the
state facilities where they are housed, but requests involving treatment outside of the
jails must be submitted in the form of a USMS Prisoner Medical Request Form (“PMR”)
and authorized by the Office of Intra-Agency Medical Services (“OIMS”) at USMS
Headquarters prior to the inmate receiving the requested treatment. Id.
As a matter of course, Defendant Pascuzzi refers all requests for outside medical
care to OIMS for review, and medical personnel in the Prisoner Operations Division
(“POD”) of OIMS are responsible for determining whether to approve such requests. Id.
Defendant Pascuzzi avers that this is precisely what happened when he processed
PMRs from LCJ dated August 7, 2014 and November 24, 2014 requesting outside
dental services for Plaintiff. 3 Id.
In sum, each of the Defendants had limited involvement in Plaintiff’s pursuit of
outside dental care and served roles quite distinct from each of the defendants in
Carlson. Pursuant to Ziglar, this claim therefor presents a new Bivens context, and the
Court must undertake the two-step analysis the Supreme Court established in Wilkie v.
Robbins, 551 U.S. 537 (2007). First, the Court must determine whether “any
alternative, existing process for protecting [plaintiff’s] interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new and freestanding remedy
in damages.” Id. at 550. If there is no such statutory alternative, the Court must then

The August 7, 2014 PMR for a tooth extraction was approved by OIMS that day. Dkt. 36-13.
The November 24, 2014 PMR for a root canal was not approved by OIMS until January 23,
2015. Dkt. 36-15. This delay was caused by OIMS requests for additional information from
LCJ, some of which LCJ procured from an outside dental office, and cannot reasonably be
attributed to Defendant Pascuzzi. Id; Dkt. 36-10, 36-13, and 36-14.

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ask whether there are “special factors counselling hesitation” before authorizing a new
Bivens context. Id.
Plaintiff had alternative means of relief, including a suit under the FTCA, as
Defendants acknowledge. Dkt. 65. As will be discussed in detail below, Plaintiff has
actually sued the Government pursuant to the FTCA in this case. Plaintiff has also
brought three additional suits against other defendants, including medical providers and
employees of LCJ, concerning his dental care or lack thereof while he was a pretrial
detainee. See Swinton v. Livingston County, et al., 15-CV-53; Swinton v. Steuben
County, et al., 16-CV-116; and Swinton v. Correct Care Solutions, Inc., et al., 16-CV165. These civil cases sought damages for the same harm alleged in this matter, albeit
based on the actions or inactions of different individuals and entities. Put another way,
Plaintiff not only had means of obtaining relief other than initiating a Bivens claim, but he
actively pursued such relief.
As there is a statutory alternative to this claim that amounts to a compelling
reason for this Court not to create a new implied cause of action, we need not analyze
whether special factors counsel hesitation in creating this new Bivens context. The
Court finds that there is no Bivens remedy available for this claim under the
circumstances of the case. Defendants’ motion for summary judgment is therefore
granted with respect to Plaintiff’s claim that Defendants Serdula, Torres, Dave, and
Pascuzzi were deliberately indifferent to his dental needs.
c. Access to Court
Plaintiff’s second Bivens cause of action alleges that the Defendants are
responsible for “the denial of access to Court and deliberate indifference to the legal

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needs of the plaintiff.” Dkt. 4. Although the constitutional right of access to the courts is
established by the First Amendment, which Plaintiff’s complaints do not reference, the
due process clause affords prisoners access to the courts in order to “seek redress for
violations of their constitutional rights.” Adekoya v. Chertoff, et al., 2:08-CV-3994, 2009
U.S. Dist. LEXIS 16980 at *11 (D.N.J. Mar. 4, 2009) citing Procunier v. Martinez, 416
U.S. 396 (1974), overruled on other grounds; Thornburgh v. Abbott, 490 U.S. 401
(1989).
Since Plaintiff alleges this violation began on February 12, 2014 – the day he
was transferred from MCJ to LCJ – he was a federal pretrial detainee at all times
relevant. As discussed above, the due process clause of the Fifth Amendment has
been interpreted to provide pretrial detainees in federal custody with protections similar
to those that the Eight Amendment imparts to prisoners. Cuoco at 106 (2d Cir. 2000).
This Court sees no reason why that logic should not apply in the context of an access to
courts claim, as well.
Therefore, the threshold question concerning this claim is whether it presents a
new Bivens context. None of the Supreme Court Bivens precedent – Bivens, Davis, or
Carlson – resembles the instant claim. As such, allowing this claim to move forward
would extend Bivens remedies into a significantly new context, one this Court finds to
be meaningfully different from prior Bivens cases.
Under the two-step Wilkie analysis, it is again apparent that Plaintiff could have,
and in fact did, pursue an alternative process for relief – specifically, suit under the
FTCA. One of Plaintiff’s other three civil suits mentioned above, Swinton v. Steuben
County, et al., also overlaps with this claim. Just as with respect to Plaintiff’s deliberate

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indifference Bivens claim, there is also a statutory alternative to this claim, so it is not
necessary to examine whether special factors counsel hesitation in extending Bivens to
this context. Accordingly, Defendants’ motion for summary judgment is granted with
respect to Plaintiff’s claim that Defendants Serdula, Torres, Dave, and Pascuzzi
prevented his access to the Court.
II.

Plaintiff’s Motions to Amend
Approximately one week after Defendants’ motion to dismiss was filed, Plaintiff

submitted a proposed Second Amended Complaint to the Court. Dkt. 47. Through it,
he seeks to (1) reinstate his FTCA claims under 28 U.S.C. § 1346(b); (2) add Maureen
Cippel as a defendant; (3) reinstate official capacity claims against all USMS
defendants, including Cippel; and (4) amend the monetary remedy previously sought.
Ten days later, Plaintiff docketed a proposed Third Amended Complaint, seeking to
modify his proposed Second Amended Complaint only to add the United States of
America as a named defendant. Dkt. 49.
Plaintiff filed his First Amended Complaint after the Court dismissed Plaintiff’s
original Complaint, so he no longer retains the right to amend as a matter of course
pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). Under Rule 15(a)(2), however,
the Court may grant leave freely “when justice so requires.” Since these requests to
amend were made after Defendants’ filing for summary judgment and the parties have
fully briefed the issues, the Court next considers whether the proposed amendments
withstand scrutiny under the summary judgment standard. See Milanese v. Rust-Oleum
Corp., 244 F.3d 104 (2d Cir. 2001).

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A. FTCA Claims
With respect to Plaintiff’s FTCA claims, there is a genuine issue of material fact
regarding whether Plaintiff administratively exhausted his claims. The Court previously
found that administrative exhaustion under 28 U.S.C. § 2675(a)4 was jurisdictional in
nature, and since Plaintiff had not alleged that he filed an administrative claim with the
USMS prior to initiating suit, the Court lacked subject matter jurisdiction. Dkt. 3; see
also Dkt. 1.
As previously noted, two months before Plaintiff’s FTCA claims were initially
dismissed, the Supreme Court decided Kwai Fun Wong, which held that 28 U.S.C. §
2401(b) 5 was not jurisdictional despite its “forever barred” phrasing. Id., 575 U.S. 402
(2015). Due to the significant overlap in the language of these statutory provisions, it
stands to reason that neither provision ought to be viewed as jurisdictional in nature.
Furthermore, the Supreme Court found in Kwai Fun Wong that § 2401(b)’s
legislative history cleared the way for a rebuttable presumption in favor of equitable
tolling in FTCA suits. Id. Plaintiff has specifically requested equitable tolling here.
Dkts. 47 and 76.

Section 2675(a) states “[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 and his claim shall have been finally denied by the agency in
writing and sent by certified or registered mail. The failure of an agency to make final
disposition of a claim within six months after it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim for purposes of this section.”

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Section 2401(b) states “[a] tort claim against the United States shall be forever barred unless it
is presented in writing to the appropriate Federal agency within two years after such claim
accrues or unless action is begun within six months after the date of mailing, by certified or
registered mail, of notice of final denial of the claim by the agency to which it was presented.”

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The Court remains mindful that Plaintiff has litigated the entirety of this case pro
se, and accordingly it interprets Plaintiff’s submissions “to raise the strongest arguments
they suggest” under the summary judgment standard. Triestman v. Fed. Bur. of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Numerous factors contribute to the Court’s decision to allow Plaintiff to reinstate
his FTCA claims. First, it is clear that Plaintiff did file an administrative claim with
USMS, and received a formal denial letter dated July 22, 2021. Dkt. 74. The letter
advised Plaintiff that he could file suit regarding the claim within six months of that date
in federal district court. Second, Plaintiff’s claims were timely when he initiated this
lawsuit on January 16, 2015, as the harms were still ongoing. 6 Third, Plaintiff argues
that he was not aware of the need to exhaust his administrative remedies due to the
insufficient access to federal legal materials he was subjected to while housed at LCJ.
Dkt. 66. Fourth, the Court’s dismissal of the FTCA claims and clear instruction that only
Bivens claims could be brought in an amended complaint arguably hindered Plaintiff
from amending his FTCA claims and timely exhausting his administrative claim with
USMS. Dkt. 3.
It would be nothing short of a Joseph Heller-esque Catch-22 if Plaintiff, while
representing himself, was prevented from adequately researching law pertaining to his
legal matters by the jail housing him, and yet was ultimately prevented from litigating his

Plaintiff’s claim regarding denied dental care was resolved on February 18, 2015 when a root
canal was performed. Dkt. 74. Plaintiff’s claim regarding access to the courts is not nearly as
cut and dried, as it relates to his criminal case which is currently on its second appeal to the
Second Circuit. See United States v. Swinton, 6:15-CR-6055. For the instant purpose, it
suffices to say that the claim was not yet resolved when Plaintiff filed his original complaint in
this case on January 16, 2015.
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claims due to a procedural error amounting to a late filing that could have been avoided
had he been able to adequately research his claims.
The Supreme Court has stated that the doctrine of equitable tolling permits
courts to pause the running of a statute of limitations “when a litigant has pursued his
rights diligently but some extraordinary circumstance prevents him from bringing a
timely action.” Lozano v. Alvarez, 572 U.S. 1, 10 (2014). Plaintiff initiated this lawsuit
while the harms he sought to rectify were still ongoing, and he has alleged from the start
of this action that he was denied access to federal legal research material. Dkt. 1. This
strikes the Court as an extraordinary circumstance. In the context of equitable tolling,
the Second Circuit Court of Appeals has previously found that “[t]he term ‘extraordinary’
refers not to the uniqueness of a party’s circumstances, but rather to the severity of the
obstacle impeding compliance with a limitations period.” Harper v. Ercole, 648 F.3d
132, 137 (2d Cir. 2011). Plaintiff has provided the Court with various prison grievances
he filed between September 2014 and May 2015 concerning lack of access to federal
legal materials. If this allegation is true, as the Court assumes it is for purposes of
summary judgment, the obstacle very well may have fully impeded Plaintiff’s
compliance with the timeframe in which he was to file an administrative claim with the
USMS.
Accordingly, Plaintiff’s request to amend his First Amended Complaint to
reinstate his FTCA claims under 28 U.S.C. § 1346(b) and to add the United States as a
defendant is granted. Relatedly, Defendants’ motion for summary judgment is denied
with respect to Plaintiff’s FTCA claims.

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B. Maureen Cippel
Plaintiff also seeks to amend his First Amended Complaint to add Maureen
Cippel, Chief U.S. Public Health Services Officer, USMS, as a defendant. As a
Commissioned Nurse Officer in the Office of Medical Operations, USMS, Maureen
Cippel is a Public Health Service (“PHS”) employee. Dkt. 36-2. The Defendants
correctly note that PHS officers may not be sued individually for torts committed within
the scope of their employment due to the Public Health Service Act which mandates
that FTCA claims are the exclusive remedy for personal injuries allegedly caused by
PHS employees. Dkt. 54; see 42 U.S.C. § 233(a).
Furthermore, Plaintiff appears to allege that a policy implemented or maintained
under Maureen Cippel’s leadership unduly prolonged his suffering with respect to
denied and delayed dental treatment. Dkts. 47 and 59; see also Dkt. 36-2. However, in
Plaintiff’s subsequently filed supplemental memorandum of law opposing Defendants’
motion to dismiss, he explicitly acknowledged that “[t]he policy itself is not challenged
here.” Dkt. 66. In any event, it is well established that the FTCA is not the proper
channel to remedy detention policy disputes. See, e.g., Ojo v. United States, 2019 U.S.
Dist. LEXIS 139302, at *26 (E.D.N.Y. Aug. 15, 2019) (“Numerous courts have found
decisions regarding prison management, inmate security, and the security of officers
are policy considerations. Accordingly, the discretionary-function exception applies to
plaintiff's FTCA claims….”).
For the foregoing reasons, allowing Plaintiff leave to amend his First Amended
Complaint to add Maureen Cippel as a defendant would be futile. The request is
therefore denied.

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C. Official Capacity Claims
As to Plaintiff’s desire to amend his First Amended Complaint to pursue claims
against each individual defendant in their official capacities, the Court find such
amendment would also be futile. Bivens claims must be brought against federal officers
in their individual capacities, and by way of this decision Plaintiff’s Bivens claims in this
action are fully resolved. FTCA claims may only be pursued against the United States.
Plaintiff’s request is therefore denied.
D. Relief Requested
Plaintiff also seeks to modify his First Amended Complaint to the extent that he
claims he is owed nearly one million dollars more in damages than previously
requested. As documentation supporting the amended request has not been provided
to the Court, the request is premature and is denied. Should Plaintiff’s claims ultimately
be sustained, the Court will provide Plaintiff with adequate opportunity to plead his
damages.
III.

Plaintiff’s Motion for an Exhaustion Hearing 7
In apparent response to Defendants’ argument that Plaintiff had not exhausted

his administrative claim and was therefore foreclosed from pursuing claims under the
FTCA, Plaintiff filed a motion advising the Court that “[a]ll available administrative
remedies for this claim were exhausted, and no remedies were available for U.S.
Marshal [sic] Service exhaustion in the State facilities where the plaintiff was housed.”
Dkt. 67. Plaintiff further asserted that he submitted a document equivalent to a Form

Although Plaintiff’s motion requests a hearing on the exhaustion requirements of the PLRA, it
appears that he misapprehends the Defendants’ argument regarding administrative exhaustion
of the FTCA claims. Dkt. 67.

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95 8 to the USMS after learning of this requirement from Defendants’ motion to dismiss
and/or for summary judgment.
Upon review of the docket, it appears that Plaintiff attempted to initiate an
administrative claim on June 14, 2017, approximately two weeks after Defendants’
motion to dismiss was filed. Dkts. 38 and 48. Plaintiff’s November 2019 motion also
indicates that the USMS had not yet adjudicated his claim.
The procedural history of the administrative claim would certainly benefit from the
parties’ clarification. As the Court understands it, Plaintiff filed multiple requests for
information with the USMS, including the Freedom of Information Act (“FOIA”) Division,
in August and September 2015. Dkt. 8. He wrote a letter to the Office of General
Counsel (“OGC”), USMS, in October 2015. Dkt. 9. That letter explicitly mentioned that
Plaintiff was pursuing claims in civil case 15-CV-47 and wanted to provide “notification”
of the same to OGC. Plaintiff alleges that none of these letters to USMS garnered
responses. Dkts. 6 and 8. Plaintiff later attempted to file a formal administrative claim
by way of the June 14, 2017 letter previously mentioned. Dkt. 48. OGC responded by
letter dated July 24, 2017, advising that the claim (which OGC erroneously referred to
as having been received on June 22, 2016) was rejected for failure to state a sum
certain. 9 Dkt. 59. OGC’s response did not indicate that the claim was untimely; rather,
Plaintiff was advised that he could resubmit his claim to include a sum certain. Id.

A Standard Form 95 (“SF-95”) is typically used to submit claims for damages, injury, or death
to federal agencies.

8

The Court notes that the initial claim letter indicated that the proposed Second Amended
Complaint in this case was attached. Dkt. 48. That document (Dkt. 47) clearly states that
Plaintiff’s demand is $1,316,500.00; however, it is an issue of fact to be determined at a later
point whether this attachment was actually provided to OGC.
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Plaintiff then resubmitted his claim by way of certified mail sent August 7, 2017. Id. The
parties do not dispute that the administrative claim was not denied until July 22, 2021.
Dkt. 74.
In any event, it is clear to the Court that Plaintiff diligently attempted to pursue his
claim. As discussed above, Plaintiff’s FTCA claims have been reinstated and as such a
hearing regarding exhaustion is unnecessary at this time. Plaintiff’s motion is therefore
denied as moot.
IV.

Plaintiff’s Motion to Dismiss and for a Copy of the Case File
Plaintiff’s motion to dismiss without prejudice to refile as a FTCA claim against

the United States is largely duplicative of his previously filed proposed Second and
Third Amended Complaints. Compare Dkt. 74 with Dkts. 47 and 49. As to Plaintiff’s
desire to add DUSM Christopher Lamp as a defendant in his official capacity, the Court
finds this would be futile since FTCA claims can only lie against the United States.
Plaintiff’s motion also asserts that many of his case related documents have
been either destroyed or misplaced during his numerous facility transfers over the
pendency of this case. He requests a free copy of “all filings of the case” on a thumb
drive.
As an initial matter, the Court notes that 28 U.S.C. § 1915, which governs
proceedings in forma pauperis, does not state that indigent parties are entitled to
complimentary copies of materials contained in the Court’s files. In light of the unusual
procedural history of this case, the Court is willing to consider a limited exception, in the
interest of justice. Plaintiff is directed to submit a request limited to the specific
documents he seeks in order to further litigate this matter, taking the entirety of this

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decision into account. An explanation must be included as to why each document is
necessary.
Plaintiff’s motion to dismiss is therefore denied, and his motion for the case file
should be amended per the Court’s foregoing instructions and resubmitted within 30
calendar days of the date of this Decision and Order.
V.

Remaining Motions
Both Defendants’ motion to stay discovery (Dkt. 40) and Plaintiff’s motion to lift

the stay of all proceedings (Dkt. 59) are denied as moot in light of this decision and
order.
VI.

Conclusion
Based on the foregoing, it is hereby
ORDERED that the Defendants’ motion for summary judgment (Dkt. 36) is

GRANTED, in part, as to Plaintiff’s Bivens claims of deliberate indifference to his dental
needs and violation of his right to access the courts, and DENIED as to the FTCA
claims; and it is
ORDERED that Defendants’ motion to stay discovery (Dkt. 40) is DENIED as
moot; and it is
ORDERED that Plaintiff’s motions to amend his First Amended Complaint (Dkts.
47 and 49) are GRANTED, in part, with respect to reinstating his FTCA claims and
adding the United States as a defendant, and DENIED in all other respects as futile;
and it is
ORDERED that Plaintiff’s motion to lift the stay of proceedings (Dkt. 59) is
DENIED as moot; and it is

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ORDERED that Plaintiff’s motion for a hearing regarding exhaustion
requirements of the PLRA (Dkt. 67) is DENIED as moot; and it is
ORDERED that Plaintiff’s motion to dismiss without prejudice to refile and for an
electronic copy of the case file (Dkt. 74) is DENIED as to his request to dismiss this
action and otherwise redirected to Plaintiff for amendment within 30 calendar days of
the date of this Decision and Order, consistent with the instructions detailed above; and
it is
ORDERED that the Clerk of the Court shall take all steps necessary to designate
a Magistrate Judge to act in this case in accordance with 28 U.S.C. § 636(b)(1).

IT IS SO ORDERED.

s/Richard J. Arcara_________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: August 26, 2022

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