Opinion
No. 98 Civ. 9009 (WHP).
March 31, 2000.
MEMORANDUM ORDER
In this action, the incarcerated pro se plaintiff, John A. Cuoco ("Cuoco"), seeks an unspecified amount of monetary damages against the Bureau of Prisons ("BOP"), the United States of America, Captain William C. Henderson, Lieutenant K. Bittenbender and five unidentified individuals for excessive force, deprivation of equal protection and negligent destruction of personal property. The complaint asserts federal claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 1346(b), 2671 et seq., and 42 U.S.C. § 1985(3).
Defendants move for partial dismissal of the complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Defendants contend that plaintiff's Bivens and Section 1985(3) claims should be dismissed for failure to exhaust administrative remedies as required under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Defendants also argue that plaintiff has not pled viable claims under Section 1985(3) or the Equal Protection Clause. Finally, defendants assert that plaintiff's FTCA claims should be dismissed against all defendants except the United States. For the reasons below, defendants' motion is granted in part and denied in part.
Factual Background
The following facts are taken from plaintiff's complaint and assumed to be true. Cuoco is a pre-operative transsexual currently incarcerated at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. (Compl. pgs. 3, 3a) From November 14, 1995 until approximately February 5, 1996, the period during which the events in question allegedly occurred, Cuoco was incarcerated at the Federal Correctional Institution in Otisville, New York ("FCI Otisville"). (Compl. pgs. 3a, 3d) On December 7, 1995, Cuoco was escorted from the FCI Otisville's Health Services Unit to the Special Housing Unit ("SHU"). (Compl. pg. 3a) He was placed in Cell 100.
By his own admission, Cuoco became "disruptive" when defendant Henderson informed him that he would not be provided with the legal materials that he needed to meet an impending court deadline. (Compl. pg. 3b) As a result, defendants Henderson and Bittenbender, together with Pat Griffin, a psychologist, summoned the Special Operations Response Team ("SORT") to Cuoco's cell. (Compl. pg. 3b) Cuoco alleges that although he complied with a request to submit to handcuffs, defendants Henderson and Bittenbender disregarded his response and directed the SORT team to extract him from the cell. (Compl. pg. 3b) During the extraction, Cuoco claims that he was physically assaulted and injured by members of the SORT team. The incident was recorded on videotape. (Compl. pg. 3d) Cuoco was brought to Cell 108 and placed in "four point" restraints. (Compl. pg. 3b) Although the complaint does not describe what this entailed, defendants state that an inmate is placed on mattress which rests atop a concrete block. The inmate's hands are then put in soft restraints that are attached to the corners of the block. (Defs.' Mem. at 3, n. 1.) It is not clear whether an inmate's feet are also bound, as "four point" would seem to imply. However, Cuoco's assertion that he was placed in four point and ambulatory restraints suggests that both his hands and feet were restrained.
According to defendants, the SORT team consists of corrections officers who respond to institutional disturbances. (Defs.' Mem. at 3, n. 1).
Cuoco asserts that he was kept restrained in this manner for 18 to 24 hours even though he remained passive during the entire period. (Compl. pg. 3c) During this time, Cuoco claims that he was not given food or water, not rotated in his restraints, and not examined by medical or corrections personnel. (Compl. pg. 3c) Cuoco also alleges that he was wearing only boxer shorts, and that the cell's window was deliberately left open despite the winter temperatures outside. (Compl. pg. 3c) Defendant Bittenbender subsequently prepared an "incident report" (No. 368308) concerning Cuoco's extraction, and a disciplinary hearing was held. (Compl. pg. 3c) Cuoco did not attend the hearing but was represented by an FCI Otisville staff member. (Compl. pg. 3d) According to the complaint, the hearing officer expunged the incident report after determining that it was unsubstantiated. (Compl. pg. 3d)
Cuoco alleges that prior to the December 7, 1995 incident, defendants Henderson and Bittenbender made derisive comments to him about his sexual orientation. Cuoco also claims that both defendants threatened him with physical violence in retaliation for Cuoco making allegations of staff misconduct on November 22, 1995. (Compl. pg. 4, 4c) In addition, Cuoco alleges that the officers conspired to misrepresent facts in official documents concerning his cell extraction on December 7, 1994. (Compl. pg. 4c)
Cuoco also seeks monetary relief under the FTCA for the negligent destruction of his personal property. Specifically, Cuoco alleges that he owned a Brother GX-9500 word-processing typewriter which was crushed when it and Cuoco were transported to a different correctional facility on or about February 5, 1996. (Compl. pg. 3d) Cuoco attributes the loss to improper packing by BOP personnel. (Compl. pg. 3e)
Discussion
Dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)). In resolving a motion to dismiss, the pleadings and affidavits must be construed in favor of the plaintiff, and all doubts should be resolved in the plaintiff's favor and against the defendants. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998); Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994). Further, pro se litigants such as Cuoco are allowed "special latitude" in responding to a motion to dismiss. Adams v. Galletta, 966 F. Supp. 210, 211 (S.D.N.Y. 1997); see also McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999); Narvarte v. Chase Manhattan Bank, N.A., 969 F. Supp. 10, 11 (S.D.N.Y. 1997). With these standards in mind, the Court turns to plaintiff's claims under Bivens and Section 1985(3), and defendants' argument that those claims should be dismissed based on plaintiff's failure to exhaust his administrative remedies.
A. Exhaustion of Administrative Remedies Under the PLRA
As amended by the Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e(a) provides:
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.42 U.S.C. § 1997e(a) (amended by Pub.L. 104-134, Title I, S101(a), 110 Stat. 1321-71 (1996)). Prior to its amendment, section 1997e(a) provided that "in any action brought pursuant to section 1983 of this title by an adult convicted of a crime confined in any jail, prison, or other correctional facility, the court shall, if the court believes that such a requirement would be appropriate and in the interests of justice, continue such case for a period of not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available." 42 U.S.C. § 1997e(a)(1) (1996). Thus, the PLRA amendment curtails the exercise of judicial discretion in this area by making exhaustion mandatory.
Cuoco has available to him the four-step administrative procedures set forth in BOP's Administrative Remedy Program. See 28 U.S.C. § 542.10, Part 542. Cuoco admits in his complaint that he did not exhaust these procedures. (Compl. pg. 5) Instead, Cuoco contends that the exhaustion requirements do not apply to him because:
(1) the events at issue occurred prior to the enactment of the PLRA; (2) excessive force claims do not fall within the scope of the PLRA; (3) exhaustion is automatically excused where only money damages are sought; and (4) BOP has a policy foreclosing his case from the administrative process. The Court addresses these arguments seriatim.
1. The PLRA Applies To This Case
Contrary to plaintiff's assertion, the controlling factor for determining applicability of the PLRA's exhaustion requirement is not when his claims accrued, but when he filed suit. See White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (date on which complaint is filed controls the application of the statute, not the date on which the alleged incidents occurred); Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997) (same); accord Hayes v. N.Y.S. D.O.C. Officers, 1998 WL 901730, at *6 (S.D.N.Y. 1998) (97 Civ. 7383) (MBM)) ("[T]he PLRA applies to any case filed after April 26, 1996, even if the claims on which it is based accrued before that date."); Polite v. Barbarin, 1998 WL 146687, at *2 n. 7 (S.D.N.Y. 1998) (96 Civ. 6818 (DLC)) (same).
The PLRA became effective on April 26, 1996, see Blissett v. Casey, 147 F.3d 218, 219 n. 1 (2d Cir. 1998), and plaintiff filed this action in December 1998. Therefore, the exhaustion requirement of the PLRA applies to this action.
2. The PLRA Applies To Excessive Force Claims
Cuoco's next argument, that excessive force claims fall outside the PLRA's scope because the statute is expressly limited to actions challenging "prison conditions", has surface appeal. Indeed, district courts have reached different conclusions on this question, and the Second Circuit has not yet resolved the matter. See generally Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (observing that courts are split on the issue, but declining to reach it). Having carefully considered the arguments on both sides of this nettlesome question of statutory interpretation, this Court joins that line of cases which have concluded that excessive force claims are subject to the PLRA.
A well-worn canon of statutory construction posits that courts interpreting a statute should initially consider the plain language of the statute itself. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056 (1980); Greenery Rehab. Group v. Hammon, 150 F.3d 226, 231 (2d Cir. 1998). Looking to Section 1997e(a), some courts have relied on a "common sense" interpretation of "prison conditions" and concluded that those words cannot encompass excessive force claims because force, an intentional act, is not a "condition." See, e.g., Carter v. Kiernan, 1999 WL 14014, at *3 (S.D.N.Y. 1999) (98 Civ. 2664 (JGK)) (finding that a "common sense interpretation" of the phrase "prison conditions" points to "medical treatment, food, clothing, and the nature and circumstances of the housing available in prison," but not to the use of excessive force by prison officials); White v. Fauver, 19 F. Supp.2d 305, 315 (D.N.J. 1998) ("A common sense interpretation of the phrase `prison conditions' in § 1997e(a) suggests that it does not include the use of excessive physical force").
It is not ineluctable, however, that the common sense meaning of "prison conditions" excludes intentional acts. Many conditions of confinement which courts routinely find within the scope of Section 1997e(a) have a volitional component, e.g., the deliberate disregard of serious medical conditions. See Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 2326 (1991). Those courts holding that excessive force claims transcend prison conditions do not dispute this. See, e.g., Wright v. Dee, 54 F. Supp.2d 199, 205 (S.D.N.Y. 1999) (noting that "prison conditions" encompasses medical treatment); Carter, 1999 WL 14014, at *3 (same); Baskerville v. Goord, 1998 WL 778396, at *5 (S.D.N.Y. 1998) (97 Civ. 6413 (BSJ)). In fact, all claims involving conditions of confinement under the Eighth Amendment require a showing of intent, i.e., deliberate indifference. See McPherson, 174 F.3d at 280. This intent requirement undermines the argument that volitional acts fall outside the scope of Section 1997e(a). Thus, the plain language argument is not determinative.
Although the phrase "prison conditions" is not defined in Section 1997e(a), it is defined in 18 U.S.C. § 3626(g)(2). That statute, which was enacted as part of the PLRA to address prisoner suits for injunctive relief, reads in relevant part:
[T]he term `civil action with respect to prison conditions' means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.18 U.S.C. § 3626(g)(2) (emphasis added). When Congress uses the same words in two places in a single statute, and where the purposes of the two statutory provisions are similar, those words should generally be read to mean the same thing in both places. See Castillo v. Buday, ___ F. Supp.2d ___, 2000 WL 236375, at *2 (S.D.N.Y. Mar. 1, 2000) (99 Civ. 1372 (JES)) (citing Mertens v. Hewitt Assocs., 508 U.S. 248, 260, 113 S.Ct. 2063, 2070-71 (1993)); see also Russo v. Trifari, Krussman Fishel, Inc., 837 F.2d 40, 45 (2d Cir. 1988) ("Construing identical language in a single statute in pari materia is both traditional and logical").
Relying on this canon of statutory construction, many courts have reasoned that "excessive force claims encompass the effects of actions by government officials on an inmate's life." Johnson v. Garraghty, 57 F. Supp.2d 321, 327 (E.D.Va. 1999); accord Booth v. Churner, ___ F.3d ___, 2000 WL 251627, at *4-5 (3d Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999); Santiago v. Meinson, ___ F. Supp.2d ___, 2000 WL 223830, *4 (S.D.N.Y. Feb. 25, 2000) (99 Civ. 3958 (SAS)); Diezcabeza v. Lynch, 75 F. Supp.2d 250, 252-53 (S.D.N.Y. 1999); Moore v. Smith, 18 F. Supp.2d 1360, 1363 (N.D.Ga. 1998); Morgan v. Arizona Dep't of Corrections, 976 F. Supp. 892, 895-96 (D.Ariz. 1997). Some courts have nonetheless declined to rely on the definition set forth in Section 3626(g)(2). See, e.g., Carter, 1999 WL 14014 at *3; Baskerville, 1998 WL 778396, at *4. Instead, these courts have rested on several overlapping arguments in favor of excluding excessive force claims from PLRA coverage. In addition to the plain language argument discussed above, these decisions look to the purpose of the PLRA and its legislative history, as well as Supreme Court precedent. This Court does not find any of these grounds persuasive.
For example, some courts read the PLRA as curtailing the reach of Section 1997e(a) since the statute formerly applied to "any action" brought by a prisoner while it now applies to actions "with respect to prison conditions." See, e.g., Carter, 1999 WL 14014, at *4; Baskerville, 1998 WL 778396, at *3. However, the statute's legislative history provides no evidence of such a purpose and, in fact, the PLRA broadened the sweep of Section 1997e(a) from only Section 1983 actions to "any" federal lawsuit over prison conditions. The statutory change thus seems designed to cast a wider net, while continuing to relieve other suits that are wholly unrelated to prison life, e.g., a diversity action, from the exhaustion requirement. See Beeson v. Fishkill Correction Facility, 28 F. Supp.2d 884, 889 (S.D.N.Y. 1998).
This Court also disagrees with characterizations of the statute's legislative history suggesting that Congress intended to target only frivolous lawsuits concerning routine prison operations. See, e.g., White, 19 F. Supp.2d at 314. During the floor debates, neither the proponents nor the opponents of the Act distinguished between conditions of confinement claims and excessive force claims. See Beeson, 28 F. Supp.2d at 891. That some members of Congress cited egregious examples of frivolous prisoner lawsuits involving the conditions of confinement, e.g., not providing chunky peanut butter, does not mean that claims of excessive force must be afforded special deference. The PLRA was intended to "deter frivolous inmate lawsuits . . . clogging the courts and draining precious judicial resources." Beeson, (quoting 141 Cong. Rec. S7526-27 (1995) (statement of Sen. Kyl)).
Given the legislative purpose and broad definition of prison conditions provided by Section 3626(g)(2), courts should avoid drawing abstract generalizations between categories of prisoner claims. That approach is likely to confound the litigation process in prisoner suits, exacerbating a problem that Congress obviously wished to alleviate.
The instant case provides a paradigm. Cuoco alleges that prison personnel used excessive force extracting him from his cell and placing him in restraints, and then denied him food, water and medical attention for an extended period of time. If the term "prison conditions" is read to exclude excessive force claims, then Cuoco would arguably be required to exhaust his administrative remedies with respect to the second series of events, but not the first. The better approach in such cases (which are not uncommon) is to require prisoners to exhaust their available remedies before filing complaints in federal court.
Some courts have also cited Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994), and Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995 (1992), in which the Supreme Court distinguished between claims of excessive force and claims challenging the conditions of confinement in the Eighth Amendment context. See, e.g., Carter, 1999 WL 14014, at *4; Baskerville, 1998 WL 778396, at *3-4; White, 19 F. Supp.2d at 314-15. In Hudson, the Court established different standards for analyzing these two types of prisoner claims, and in Farmer the Court reiterated the rule.
The difficulty in engrafting such a distinction here is that Farmer and Hudson both pre-date the PLRA. See Castillo, 2000 WL 236375, at *3. "[A] court's responsibility in reading Section 1997e is to determine the intent of Congress when it referred to `prison conditions' in the statute, not the intent of the Supreme Court when it used a similar, but not identical, term in a case decided before the statute was passed." Beeson, 28 F. Supp.2d at 890. As demonstrated by McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737 (1991), the meaning of terms such as "prison conditions" and "conditions of confinement" may depend on their context. See McCarthy, 500 U.S. at 141, 111 S.Ct. at 1742 (the term "conditions of confinement" includes challenges not only to ongoing prison conditions, but also to isolated episodes of allegedly unconstitutional conduct by prison officials, such as assault).
For these reasons, this Court holds that Cuoco's excessive force claim is subject to the exhaustion requirement under Section 1997e(a).
3. Exhaustion Is Required Even Where Only Money Damages Are Sought
Cuoco argues that the PLRA's exhaustion requirement does not apply to claims seeking exclusively monetary damages where, as is the case here, such relief is not an available administrative remedy. This question has also divided federal courts. See generally Snider v. Melindez, 199 F.3d 108, 114 n. 2 (2d Cir. 1999) (noting disagreement); Snider v. Dylag, 188 F.3d 51, 55 (2d Cir. 1999) (same).
Prior to passage of the PLRA, Section 1997e(a) gave district courts discretion to dismiss a Section 1983 action if a prisoner failed to exhaust "such plain, speedy, and effective remedies as are available." The statute now requires exhaustion of "such remedies as are available" without exception. A majority of courts, relying on the plain language of the amended statute, require exhaustion of administrative remedies even in cases where only monetary damages are sought. See, e.g., Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999); Perez v. Wisc. Dep't of Corrections, 182 F.3d 532, 538 (7th Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, 1325-27 (11th Cir. 1998); Beatty v. Goord, 2000 WL 288358, at *2-3 (S.D.N.Y. Mar. 16, 2000) (98 Civ. 2136 (RMB)); Castillo, 2000 WL 236375, at *4; Santiago, 2000 WL 223830, at *5; Edney v. Karrigan, 69 F. Supp.2d 540, 543 (S.D.N.Y. 1999); Lawrence v. Goord, 1999 WL 311812, at *1 (S.D.N.Y. May 17, 1999) (98 Civ. 7212 (AGS)); Cruz v. Jordan, 80 F. Supp.2d 109, 116 (S.D.N.Y. 1999); Vasquez v. Artuz, 1999 WL 440631, at *6 (S.D.N.Y. Jun. 28, 1999) (97 Civ. 8427 (AJP)); Decker v. Doe, 1998 WL 883300, at *2 (S.D.N.Y. Dec. 17, 1998) (97 Civ. 5343 (MBM)); Funches v. Reish, 1998 WL 695904, *8-9 (S.D.N Y Oct. 5, 1998) (97 Civ. 7611 (LBS)).
This Court joins the majority of courts which have declined to create a per se rule excusing exhaustion under Section 1997e(a) for litigants who seek only monetary relief. A contrary rule would essentially reintroduce the "effective" qualifier in the statute that Congress deliberately excised. See Beeson, 28 F. Supp.2d at 893. Cuoco cites Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir. 1998), where the Fifth Circuit recognized such a per se rule, reasoning that it is senseless to force a prisoner to engage in the "empty formality" of petitioning the prison administrative process for a form of relief that it cannot provide. This Court disagrees that it is an "empty formality."
Even where monetary damages are the exclusive remedy sought, the requirement that an inmate proceed administratively in the first instance may have salutary effects for the inmate and the custodial facility. For example, if the administrative process is properly utilized, it may provide prison officials with a mechanism for receiving prompt notice of emerging problems in a facility. Since the administrative process is unencumbered by the Federal Rules of Civil Procedure, administrative complaints should find their way to responsible prison officials more quickly than if they are routed through the United States Marshals Service attached to a summons. By "reviewing, investigating, and responding to", 28 C.F.R. § 542.11(a)(1), all administrative complaints, including those seeking only money damages, BOP has an initial opportunity to determine whether an inmate's claims have substance. The agency's investigation and development of the facts may inform its response if a lawsuit is filed. It may also facilitate the joinder of necessary parties and thereby promote efficiency in pretrial proceedings.
Additionally, whether an administrative complaint alleges excessive force or involves some other aspect of prison life, prison officials may choose to respond in a variety of ways. A complaint that raises what appears to be a serious and legitimate claim of excessive force might prompt prison administrators to transfer an accused corrections officer to a different tier or to a non-operational post while it reviews the matter.
Alternatively, the complaining inmate might be relocated to a different housing unit. In another vein, a complaint challenging the adequacy of medical care might demand only monetary relief, but once alerted to an issue, prison officials may cause medical staff to ameliorate the problem.
Such prophylactic measures themselves are valuable and ought to be encouraged. They may even obviate some lawsuits altogether. At a minimum, the administrative process may allow prisons to respond to small problems before they become endemic.
Other courts have noted similar benefits to exhaustion under these circumstances. Alexander, 159 F.3d at 1327 (quoting Kobleur v. Group Hosp. Med. Servs., Inc., 954 F.2d 705 (11th Cir. 1992)); see also Cruz, 80 F. Supp.2d at 119.
Cuoco also contends that he is not required to exhaust his administrative remedies because he did not reside at FCI Otisville when this suit was filed. The Court rejects this argument.
4. A Fact Question Exists As To Whether BOP's Administrative Remedies Are Actually "Available" In This Case
Cuoco makes an additional argument that exhaustion should be excused in his case because the administrative process has been foreclosed by BOP's practices. He alleges that when BOP receives an administrative complaint from an inmate that seeks money damages exclusively, it returns the complaint unread because BOP has no ability to provide the requested relief.
In that regard, Cucco's complaint alleges:
Most importantly, had plaintiff submitted a grievance seeking monetary relief the grievance would not simply have been denied, but rejected and returned unanswered as improper subject matter for administrative review.
(Compl. pg. 5) This language closely tracks an observation made in Whitley, 158 F.3d at 887, which Cuoco cites.
This Court declines to create a per se rule excusing exhaustion under Section 1997e(a) for litigants who seek only monetary relief because of the salutary effects administrative proceedings may bring to the inmate and the custodial facility. See supra Section A.3. However, no such benefits can be realized if a prison adopts a practice of returning unread administrative complaints that demand only monetary relief. Cuoco's complaint can be fairly read to assert such an allegation.
Assuming the truth of that allegation, as this Court must, then Cuoco's theoretically "available" administrative remedy has been rendered unavailable in fact by BOP's practices. On the present record, defendants' motion to dismiss plaintiff's claims under Bivens and Section 1985(3) must be denied without prejudice.
The Court is aware of a summary order issued in Odumosu v. Keller, ___ F.3d ___, 2000 WL 241644 (2d Cir. Feb. 1, 2000), holding that the plaintiff there was not required to exhaust his administrative remedies because none were available. That order cannot be invoked as precedent in the context of this case. See Rules Relating to the Organization of the Court, United States Court of Appeals for the Second Circuit, Part I, § 0.23. Moreover, this Court has no way of determining at this juncture whether the practice alleged by Cuoco is prevalent at other federal facilities.
Nevertheless, in the interests of judicial economy the threshold issue of exhaustion should be addressed and resolved before discovery. Under Fed.R.Civ.P. 12(d), this Court has discretion on a motion to dismiss to hear and decide certain jurisdictional issues before trial. See CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986). Exhaustion of administrative remedies under the PLRA is not jurisdictional, see Santiago, 2000 WL 223830, at *7 n. 5, but rather is an affirmative defense. See Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999); German v. Pena, ___ F. Supp.2d ___, 2000 WL 279890, at *3 (S.D.N.Y. Mar. 10, 2000) (97 Civ. 6691 (JES)); Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999) (98 Civ. 7471 (FB)). However, courts have held that Rule 12(d) is not limited to Rule 12(b) defenses and have applied it in the context of other defenses, such as statute of limitations. See Rivera-Gomez v. de Castro, 900 F.2d 1, 16 (1st Cir. 1990) (observing that Rule 12(d) "can be an excellent device for conserving time, expense, and scarce judicial resources by targeting early resolution of threshold issues").
Accordingly, this Court will conduct a pretrial conference on April 18, 2000 at 11:30 a.m. to address the nature and timing of the parties' proposed submissions pursuant to Fed.R.Civ.P. 12(d).
B. The FTCA Claims
The FTCA confers jurisdiction over actions against the United States based on alleged tortious conduct of federal employees acting within the scope of their employment. However, government agencies and employees cannot be held liable under the statute. See 28 U.S.C. § 2679(a) and 2679(d)(1); Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994) ("[A] claimant's exclusive remedy for nonconstitutional torts by a government employee acting within the scope of his employment is a suit against the government under the FTCA").
The United States Attorney for the Southern District of New York has certified that defendants Henderson and Bittenbender acted within the scope of their employment at the time of the incidents giving rise to this suit. Such certifications are reviewable, see Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 435-37, 115 S.Ct. 2227, 2236-37 (1995), but Cuoco has offered no evidence to rebut the certification in this case. See McHugh v. University of Vermont, 966 F.2d 67, 74 (2d Cir. 1992). Accordingly, Cuoco's FTCA claims against BOP and the individual defendants are dismissed.
Conclusion
For these reasons, defendants' motion to dismiss plaintiff's Bivens and Section 1985(3) claims is denied without prejudice. Defendants' motion to dismiss plaintiff's FTCA claims against defendants Henderson, Bittenbender and the Bureau of Prisons is granted. Those claims are dismissed with prejudice.
This Court will conduct a pretrial conference on April 18, 2000 at 11:30 a.m. to address the nature and timing of the parties' proposed submissions pursuant to Fed.R.Civ.P. 12(d). Defendants' counsel will make the necessary arrangements for plaintiff to participate in the conference by telephone.
SO ORDERED
Copies mailed to:
Mr. John A. Cuoco, #80894-054, ADX Florence, P.O. Box 8500, Florence, CO 81226, Plaintiff Pro Se.
Lisa R. Zornberg, Esq., Assistant United States Attorney, 100 Church Street, 19th Floor, New York, N Y 10007, Attorney for Defendants.