Opinion
03 Civ. 2660 (RMB).
April 18, 2005
DECISION AND ORDER
I. Background
On or about April 16, 2003, Ihovany Jose Fuentes ("Fuentes" or "Plaintiff") filed a pro se complaint ("Complaint") against the United States Immigration and Naturalization Service ("INS") (now known as United States Citizenship and Immigration Services), and certain INS officers and United States Public Health Service ("PHS") employees, including Dr. Chang Park, Shelly Hollandsworth, Rebecca A. Bayer (now Rebecca A. Bunnell), Suzie Lee Garza, and Calvin Anderson (collectively, "Defendants"), alleging, among other things, "negligence and deliberate indifference" in violation of Plaintiff's Eighth and Fourteenth Amendment rights in connection with the medical care administered to Fuentes after he slipped and fell at the INS Varick Street Service Processing Center ("Varick St.") on April 1, 2000. (Complaint at 3-6.) "Due to the puddle of water on the floor in front of the phone area . . . I slipped and fell. Landing on my back and hitting my head on the floor." (Id. at 3-4.) After the fall, several officers and "Jane Doe I (R.N.)" entered the room, and "Jane Doe then asked me, Where does it hurt? Touching my legs and my arm . . ." (Id. at 4.) "Lt. Anderson" and Jane Doe then asked Plaintiff to get into a wheelchair but Plaintiff "informed them that [he] couldn't move." (Id.) "Then Lt. Anderson ordered the officers to put me in the wheelchair. As the officers picked me up, I could feel shock pains traveling up and down my spine." (Id.) Plaintiff also alleges that "the only medical treatment I've . . . been getting was 325mg of Ibuprophen" and "600, 800, and 1200mg of Moltrin." (Id. at 5.) Plaintiff states that x-rays were taken, and after "Mr. C. Parks (M.D.)" advised him that the x-rays were negative, he "was denied to see [his] x-rays by Mr. C. Parks (M.D.)." (Id.)
Fuentes was ordered deported by INS on July 24, 1996; arrived at Varick St. on January 3, 2000 and remained there through at least May 24, 2000; was released on an Order of Supervision on June 1, 2000; was taken back into custody by INS on March 12, 2002; and released again on an Order of Supervision on July 5, 2002. (Declaration of Scott A. Whitted dated Sept. 14, 2004 ("Whitted Decl."), Ex. A to Declaration of Lawrence H. Fogelman dated Oct. 1, 2004 ("Fogelman Decl."), ¶ 4.)
Fuentes seeks damages in the amount of "100,000 dollars from each defend[a]nt" and "5 million dollars from the Immigration of Naturalizational Services" for "physical injury to my whole right side of my body, which is feeling numb and tingling" and "to my head also, which . . . had a large bump" and resulted in a "terrible headache." (Id. at 5-6.)
On or about October 1, 2004, Defendants filed a motion for judgment on the pleadings ("Def. Mot.") pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12(c), arguing, among other things, that (i) Plaintiff's "garden variety tort claims" should be dismissed because Fuentes "has failed to bring an administrative claim as required under the Federal Tort Claims Act (`FTCA');" (ii) "his deliberate indifference claim also fails because claims of negligence and medical malpractice do not state a constitutional violation;" and (iii) "Defendants are entitled to either absolute or qualified immunity from plaintiff's constitutional claim." (Def. Mot. at 1.) On or about October 18, 2004, Fuentes filed an "Affidavit in Opposition" to Defendants' Motion ("Pl. Opp'n"), stating, among other things, that "I.N.S. knew about the situation that arose and did nothing about the situation until someone got hurt by their negligence;" and "for (Medical Staff) for telling me that it is just a muscle sprain, and for giving me only a 1200mg of Moltrin for the muscle aches I was experiencing, for they should have prescribed me [Tiognolos, Sodium Salicylate, Zactrin, Robaxin, or Febredyne]." (Pl. Opp'n at 2-3.) Defendants filed a reply memorandum on November 29, 2004 ("Def. Reply").
On or about October 4, 2004, Fuentes moved to file an amended complaint ("Pl. Mot. to Am.") "so Ms. Chang can be served properly and also add to my complaint Ms. Janis Horsford (Registered Nurse) who happens to be Ms. Jane Doe." (Pl. Mot. to Am. at 1.) Defendants did not respond to Plaintiff's Motion to Amend.
Defendant Vebian Chang was named in, but not properly served with, the Complaint filed April 16, 2003. (See Transcript of Proceedings dated Sept. 9, 2004, at 4-5.)
For the foregoing reasons, Defendants' Motion for Judgment on the Pleadings is granted and Plaintiff's Motion to File an Amended Complaint is granted in part and denied in part.
II. Standard of Review
"The test for evaluating a 12(c) motion is the same as that applicable to a motion to dismiss under Fed.R.Civ.Proc. 12(b)(6)." Irish Lesbian Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). In reviewing a motion to dismiss, "the court must accept as true the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995) (citations omitted). Dismissal of the claim is proper when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996). "[T]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims."Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quotations omitted).
"Leave to amend should be freely granted, but the district court has the discretion to deny leave if there is a good reason for it, such as futility, bad faith, undue delay, or undue prejudice to the opposing party." Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002).
Where, as here, a plaintiff is proceeding pro se, the Court will construe the complaint liberally and "apply a more flexible standard in determining [its] sufficiency . . ." Platsky v. Cent. Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991).
III. Analysis
A. Tort Claims
Defendants argue that "[t]o the extent that plaintiff's complaint is based in tort, under the FTCA, this Court does not have subject matter jurisdiction" because "Plaintiff's complaint does not allege that an administrative claim was filed with respect to the alleged torts committed by the Government Defendants" and Plaintiff cannot, in fact, "plead compliance with the statutory requirements of the FTCA because he has never filed an administrative claim with the appropriate agency." (Def. Mot. at 4, 6; see also Whitted Decl. ¶ 3; Declaration of Marilyn Blandford dated Sept. 22, 2004 ("Blandford Decl."), Ex. B to Fogelman Decl., ¶ 4.) Defendants also state that "the United States should be substituted as the defendant with respect to plaintiff's tort claim against the Government Defendants." (Def. Mot. at 4.) Plaintiff's Opposition did not address Defendants' subject matter jurisdiction (exhaustion) argument. (See Pl. Opp'n at 1-3.)
"In resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists."Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002).
"The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, requires that a claimant against the federal government file an administrative claim with the appropriate agency prior to institution of suit." Keene Corp. v. United States, 700 F.2d 836, 840 (2d Cir. 1983); see 28 U.S.C. § 2675(a) ("An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . 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 . . ."). "This requirement is jurisdictional and cannot be waived." Celestine v. Mount Vernon Neighborhood Health Ctr., No. 04-0839, 2005 WL 730079, at *5 (2d Cir. Mar. 31, 2005) ("Celestine II"); see also McNeil v. United States, 508 U.S. 106, 113 (1993).
See C.P. Chem. Co. v. United States, 810 F.2d 34, 37 n. 1 (2d Cir. 1987) ("The FTCA expressly provides that only the United States may be held liable for torts committed by a federal agency, and not the agency itself.") (citing 28 U.S.C. § 2679(a)); 28 U.S.C. § 2679(d)(1) ("Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding . . . shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant."); Certification of David N. Kelley dated Feb. 18, 2004, Ex. D to Fogelman Decl. ("Dr. Chang Park, Shelley Hollandsworth, Rebecca A. Bunnell (formerly Rebecca A. Bayer), and Suzie Lee Garza, were acting within the scope of their employment as employees of the Public Health Service, and Calvin Anderson was acting within the scope of his employment as an employee of the Immigration and Naturalization Service, at the time of the incidents alleged . . .").
It is undisputed that Plaintiff did not file an administrative claim with the appropriate federal agency prior to institution of this suit. (Whitted Decl. ¶ 3; Blandford Decl. ¶ 4; Complaint at 2 ("Q: Did you present the facts relating to your complaint in the state prisoner grievance procedure? A: No. . . . Q: If your answer is NO, explain why not. A: At the time, I didn't know that I had to put in a grievance on [t]he accident that happened to me.").) Because Fuentes failed to pursue his administrative remedies, the Court has no jurisdiction to entertain his tort claims. See McNeil, 508 U.S. at 113 ("The FTCA bars claimants from bringing suits in federal court until they have exhausted their administrative remedies. Because petitioner has failed to heed that clear statutory command, the District Court properly dismissed his suit."); accord Celestine v. Mount Vernon Neighborhood Health Ctr., 289 F. Supp. 2d 392, 399-400 (S.D.N.Y. 2003), aff'd, 2005 WL 730079 (2d Cir. 2005) ("Celestine I");Pentagen Techs. Int'l Ltd. v. United States, No. 01 Civ. 3078, 2002 WL 465308, at *4 (S.D.N.Y. Mar. 26, 2002); Finelli v. Drug Enforcement Agency, No. 92 Civ. 3463, 1993 WL 51105, at *2 (S.D.N.Y. Feb. 24, 1993).
The FTCA "does not apply to suits for violation of federal constitutional or statutory rights, but provides government employees with immunity against claims of common-law tort."Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991) (citing 28 U.S.C. § 2679(b)(2)).
B. Constitutional Claims
The Complaint states: "I am asking the Courts to grant me 100,000 dollars from each defend[a]nt for their negligence and deliberate indifference. And 5 million dollars from the Immigration of Naturalizational Services for violating my 8th and my 14th Amendments." (Complaint at 6.) Defendants, in their motion, have construed Plaintiff's allegations as a claim brought under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (Def. Mot. at 6.) "It is unclear from the complaint whether plaintiff has sued defendants in their individual or official capacities, or both. However, to the extent plaintiff seeks to recover damages from the Defendants in their official capacities based on the alleged constitutional violation of deliberate indifference, thisBivens claim is barred by sovereign immunity . . ." (Id.) Defendants also argue that, with respect to individual capacity claims, "Plaintiff has failed to allege that any action taken by any of the Government Defendants rises to the level of deliberate indifference," which requires "`more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger.'" (Id. at 7-9 (quoting LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998)).) Plaintiff did not specifically address these arguments. (Pl. Opp'n at 1-3.)
"Bivens essentially provides for a private right of action against federal government officials for money damages for violations of constitutional rights analogous to the right of action for money damages against state officials acting under color of state law provided by 42 U.S.C. § 1983." Langella v. United States, No. 01 Civ. 11583, 2002 WL 1218524, at *3 (S.D.N.Y. June 5, 2002); see also Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).
(i) Official Capacity Claims
Defendants correctly point out that "the doctrine of sovereign immunity precludes a Bivens action against an officer in his or her official capacity, a federal agency or the United States" and "[t]herefore, any allegations of constitutional violations against the defendants, if named in their official capacity, should be dismissed for lack of subject matter jurisdiction." Def. Mot. at 7; see also Robinson, 21 F.3d at 510 (constitutional claims "against [agency] and the individual federal defendants in their official capacities were properly dismissed on the ground of sovereign community"). This is because "any lawsuit against an agent or employee of the United States in his/her official capacity is an action against the sovereign itself," Perez v. Hawk, 302 F. Supp. 2d 9, 18 (E.D.N.Y. 2004);see also Serra v. U.S. Gen. Servs. Admin., 667 F. Supp. 1042, 1046 (S.D.N.Y. 1987), aff'd, 847 F.2d 1045 (2d Cir. 1988) ("The same principles of sovereign immunity which would apply to a suit against the United States apply to a suit against a government agency, because the United States is the real party in interest."), and, "[u]nder the doctrine of sovereign immunity, an action for damages will not lie against the United States absent consent," Robinson, 21 F.3d at 510. "The United States has not waived its sovereign immunity with respect to . . . constitutional tort claims and, thus, no subject matter jurisdiction exists against the United States on such claims."Finelli, 1993 WL 51105, at *5.
(ii) Individual Capacity Claims
Assuming arguendo that there were allegations in the Complaint that the individual defendants were acting "outside the scope of their authority" and were being sued in their individual capacities (which there are not), see id. at *7 (where "complaint [did] not allege that the agents were acting outside the scope of their authority" court refused to "read the complaint as implicitly bringing an action against the agents in their individual capacities"), Plaintiff's Eighth and Fourteenth Amendment claims based on "negligence and deliberate indifference" would nevertheless fail. For one thing, "negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim."Chance, 143 F.3d at 703; Connors v. Heywright, No. 02 Civ. 9988, 2003 WL 21087886, at *3 (S.D.N.Y. May 12, 2003); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). Second, liberally construing the Complaint in Plaintiff's favor, Plaintiff does not allege facts that support a claim of deliberate indifference. "In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove `deliberate indifference to his serious medical needs.'" Chance, 143 F.3d at 702 (citation omitted). Fuentes alleges that he slipped and fell on a puddle of water. (Complaint at 3-4.) Thereafter, "Jane Doe then asked me, Where does it hurt?"; "Lt. Anderson ordered the officers to put me in the wheelchair;" the medical staff gave "only a 1200mg of Moltrin for the muscle aches I was experiencing, [but] they should have prescribed me . . . a muscle relaxant or . . . a pain reliever;" and "I was denied to see my x-rays by Mr. C. Parks (M.D.)" when "I asked him can I see my x-rays to show him where it was hurting me." (Complaint at 4-5; Pl. Opp'n at 2.) These allegations do not satisfy either the objective prong of the deliberate indifference standard, i.e., that "the alleged deprivation must be, in objective terms, `sufficiently serious,'" or the subjective prong, i.e., that "the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); see also Farmer v. Brennan, 511 U.S. 825, 835 (1994) ("Eighth Amendment liability requires `more than ordinary lack of due care for the prisoner's interests or safety.'") (citation omitted); Perez, 302 F. Supp. 2d at 20 ("facts must give rise to a reasonable inference that the persons charged with providing medical care knew of those serious medical needs and intentionally disregarded them").
The analysis of "deliberate indifference" under the Eighth Amendment, which proscribes "cruel and unusual punishments," and the Fourteenth Amendment, which guarantees due process of law, is substantially the same. See Vazquez v. Parks, No. 02 Civ. 1735, 2003 WL 1442087, at *10 n. 5 (S.D.N.Y. Feb. 4, 2003) ("[T]he substantive standards [of deliberate indifference] appear to be the same under [the] Fifth, Eighth and Fourteenth Amendments.").
In Estelle v. Gamble, the United States Supreme Court summarized cases that stated claims for "deliberate indifference to a prisoner's serious illness or injury." 429 U.S. at 105 n. 10 (citing, e.g., Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (doctor's choosing the "easier and less efficacious treatment" of throwing away the prisoner's ear and stitching the stump); Thomas v. Cannon, 419 U.S. 879 (1974) (injection of penicillin with knowledge that prisoner was allergic, and refusal of doctor to treat allergic reaction); Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970) (prison physician refusing to administer prescribed pain killer and rendering leg surgery unsuccessful by requiring prisoner to stand despite contrary instructions of surgeon)).
Third, "[a] plaintiff's disagreement with his treatment or a difference of opinion over the type or course of treatment does not support a claim of deliberate indifference." Swindell v. Supple, No. 02 Civ. 3182, 2005 WL 267725, at *6 (S.D.N.Y. Feb. 3, 2005); Chance, 143 F.3d at 703 ("So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation."); Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986) ("The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves. . . . The essential test is one of medical necessity and not one simply of desirability.") (quotations omitted).
Because Plaintiff fails to state a claim, it is unnecessary for the Court to consider arguments pertaining to absolute or qualified immunity.
C. Amendment
Without ruling upon the likelihood that Plaintiff can fashion a sustainable complaint, the Court will afford Plaintiff the opportunity to amend his complaint. Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires");Gumer v. Shearson, Hammill Co., 516 F.2d 283, 287 (2d Cir. 1974). If Plaintiff wishes to file an amended complaint, it shall be consistent with this Decision and Order and shall be served and filed within forty-five (45) days New York, New York, (212) 805-0177, for assistance in determining appropriate amendments consistent with this Decision and Order, and also to follow the Court's individual rules.
IV. Conclusion Order
For the foregoing reasons, Defendants' Motion for Judgment on the Pleadings [20] is granted and Plaintiff's Motion to File an Amended Complaint [23] is granted in part and denied in part.