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finding that allegations of slippery waxed floor, "arguably posed a substantial risk of harm sufficient to satisfy the objective component"
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99 Civ. 9954 (AGS)
September 29, 2000
OPINION AND ORDER
Plaintiff, a former prison inmate, asserts claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking compensatory and punitive damages for injuries suffered while working at the federal correctional facility in which he was incarcerated. Currently before the Court is defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) ("Rule 12(b)(1)") or 12(b)(6) ("Rule 12(b)(6)"), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56 ("Rule 56"). For the reasons set forth below, the motion is granted.
I. Factual Background and Applicable Law
On a Rule 12 motion to dismiss, the Court must accept the allegations contained in the Complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint "unless it appears beyond doubt that the 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). In order to survive dismissal, a plaintiff must assert a cognizable claim and allege facts that, if true, would support such a claim. See Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). Moreover, on a motion to dismiss pursuant to Rule 12 (b)(6), the Court may only consider facts alleged in the Complaint or in documents attached to the Complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be taken, or documents either in the plaintiffs possession or of which the plaintiff had knowledge and relied on in bringing suit. See Brass v. Am. Film Techs., Inc., 987 F.3d 142, 150 (2d Cir. 1993).
The parties have submitted affidavits and documentary exhibits in support of their submissions. The Court declines to consider matters outside of those permissible under Rule 12 (b)(6), and chooses not to convert the motion to dismiss into one for summary judgment pursuant to Rule 56. However, in ruling on the motion, the Court will consider plaintiffs tort claim filed with the Federal Bureau of Prisons on March 19, 1999; and the letter response to this claim dated July 8, 1999. These documents, which are integral to the Complaint and are mentioned therein, (Compl. ¶ 2), may be considered on a motion to dismiss without transforming the motion into a motion for summary judgment. See Int'l Audiotext Network v. Am. Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam); Crawford v. New York City Bd. of Educ., No. 99 Civ. 925, 1999 WL 1072495, at [*]1 (S.D.N Y Nov. 29, 1999). In any event, this motion can be decided solely on the allegations in the Complaint, which make it clear that the Complaint must be dismissed.
Plaintiff, a former inmate at the Federal Correctional Institution at Otisville, New York ("FCI Otisville" or the "facility"), was housed at the facility and awaiting sentencing on September 19, 1997. (Amended Complaint ("Compl.") ¶ 3; Defendants' Memorandum of Law in Support of their Motion to Dismiss or, in the Alternative for Summary Judgment ("Defs.' Mem.") at 2.) Plaintiff had been assigned to work as an orderly in Unit 2A of the facility, and on that day his duties included "the cleaning, wet mopping and waxing" of the floor of Unit. (Id. ¶ 4.) At a certain juncture, defendant Officer James McDonald ("McDonald") directed plaintiff to cease this work assignment and instead proceed immediately to another location. "knowing that the plaintiff would have to traverse the wet, slippery floor." (Id. ¶ 5.) The wax on the floor where plaintiff was working was still wet; a "large fan had been installed to aid in the drying of the floor," but it had not yet been effective. (Id. ¶ 6.) As plaintiff walked across the floor, McDonald told him to "move" and to "keep moving," and as a result, plaintiff slipped on the floor, suffering a fractured leg which "resulted in permanent injury with pain and suffering." (Id. ¶ 7.)
On March 19, 1999, plaintiff filed an administrative tort claim with the Northeast Regional Office of the Federal Bureau of Prisons ("BOP") for personal injuries stemming from the fall. (Declaration of AUSA Michael M. Krauss ("Krauss Decl."), Ex. D.) By letter dated July 8, 1999, the BOP rejected plaintiffs tort claim on the ground that his injury was work-related, and advised plaintiff that the exclusive remedy for inmate work-related injuries is the Inmate Accident Compensation System set forth in 18 U.S.C. § 4126 and 28 C.F.R. § 301 et seq. (Id., Ex. E.) The letter informed plaintiff that any claim for compensation as a result of his injury should be submitted to the Claims Examiner of the Inmate Accident Compensation System, and included the address of the Examiner. ( Id.)
On October 28, 1999, plaintiff filed the Complaint in the instant action asserting an FTCA claim against the United States and various government officials and agencies; an Amended Complaint was filed on November 1, 1999. The Amended Complaint asserts two claims: (i) an FTCA claim against the United States and various government officials and agencies (the "FTCA claim"), seeking $1 million in damages for his injuries; and (ii) a Bivens claim against McDonald in his individual capacity for allegedly violating plaintiffs Eighth Amendment rights (the "Bivens claim"), seeking $2 million in damages. (Compl. ¶¶ 14, 20.) Construing the Complaint in the light most favorable to plaintiff, as it must do on a motion to dismiss, the Court considers plaintiffs claims to be grounded in intentional tort, as plaintiff alleges that McDonald ordered plaintiff to "move" and to "keep moving" with an "intent to injure" him and "thereby assaulted him." (Id. ¶¶ 8, 9.)
II. Discussion
Only the United States is a proper defendant in an action under the FTCA. As such, plaintiffs FTCA claim as against defendants Frederick Menifee (the warden of FCI Otisville), Officer McDonald, the BOP, and the Department of Justice are dismissed for lack of subject matter jurisdiction. See 28 U.S.C. § 2679 (a) (stating that federal agencies and employees cannot be sued under the FTCA); C.P. Chem. Co. v. United States, 810 F.2d 34, 37 n. 1 (2d Cir. 1987).
The Inmate Accident Compensation System, 18 U.S.C. § 4126, authorizes Federal Prison Industries, Inc., a federal corporation, to pay "compensation to inmates or their dependents for injuries suffered in any industry or in any work activity in connection with the maintenance or operation of the institution in which the inmates are confined." 18 U.S.C. § 4126 (c)(4); see also 28 C.F.R. § 301 (setting forth the rules and procedures an inmate must follow in pursuing a claim for compensation for work-related injuries.) Under that law, an inmate may receive two forms of compensation: (i) lost time wages for the number of regular work hours absent from work due to an injury sustained in the performance of assigned work; and (ii) after the inmate's release from custody, compensation for work- related physical impairment or death. 28 U.S.C. § 301.101, 301.201, 301.203, 301.301.
The Federal Prison Industries was established as a District of Columbia corporation and a "governmental body" intended to expand an industrial training and rehabilitation program for prisoners initiated by the Act of May 27, 1930, c. 340, 46 Stat. 391. See United States v. Demko, 385 U.S. 149, 149 (1966).
The Inmate Accident Compensation System, the equivalent of a prison inmates worker's compensation program, is the exclusive means of recovery against the Government for a federal prisoner's work-related injuries, and bars a suit for damages for such injuries under the FTCA. See Demko, supra, 385 U.S. at 152 (noting that its decision was based on the principle that "where there is a compensation statute that reasonably and fairly covers a particular group of workers, it . . . is the exclusive remedy to protect that group"); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996); Wooten v. United States, 825 F.2d 1039, 1045 (6th Cir. 1987). In this case, plaintiff's injuries occurred while he was working as a prison orderly and were proximately caused by the performance of his assignment. They are clearly work-related within the meaning of the applicable regulations, notwithstanding the fact that he alleges they resulted from the conduct of a prison official. See 28 C.F.R. § 301.102 (a) (stating that "the term `work-related injury' shall be defined to include any injury . . . proximately caused by the actual performance of the inmate's work assignment"); Wooten, supra, 825 F.2d at 1044-45 (finding that prisoner could not recover under the FTCA even though prison officials allegedly ordered him to do work that aggravated his pre-existing back condition); Lutrell v. United States, No. 93 C 5226, 1994 WL 605746, at [*]2 (N.D. Ill. Nov. 3, 1994) ("[T]he cause of the injury is irrelevant so long as the injury itself occurred while the prisoner was on the job.") (quoting Aston v. United States, 625 F.2d 1210, 1211 (5th Cir. 1980)).
Despite plaintiff's suggestion to the contrary, (Plaintiff's Memorandum of Law in Opposition to the Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment ("PI.'s Mem.") at 1), there is no exception to this provision where plaintiff's injuries allegedly result from an intentional tort. Section 4126 does not distinguish between actions grounded in intentional tort and those grounded in negligence. In addition, courts have held that an analogous statute, which establishes a workers' compensation scheme for federal employees, the Federal Employee Compensation Act ("FECA"), 5 U.S.C. § 8101et seq., bars federal workers from suing the Government under any other law for work-related injuries, including suits grounded in intentional tort. See Heilman v. United States, 731 F.2d 1104, 1110 n. 6 (3d Cir. 1984) ("If FECA is applicable, therefore, i.e., if the injury is suffered in the course of the employee's duty, then it would not matter whether the cause of the injury was an intentional or negligent act. The fact that a tort is intentional certainly does not preclude it from being suffered while in the performance of a public employee's duty.");Green v. Hill, 954 F.2d 694, 697 (11th Cir.), modified on other grounds, 968 F.2d 1098, 697 (11th Cir. 1992) (finding FECA was exclusive remedy to federal employee alleging assault and battery on the job, and stating that "[t]he FECA covers liability created both by negligent and intentional acts of the Government");Armstrong v. A.C. S., Inc., 649 F. Supp. 161, 163 (W.D. Wash. 1991) (stating that "FECA precludes the United States from having tort liability [under the FTCA], including liability for intentional torts") (citing Yam v. United States, No. 82-4525 (9th Cir. May 11, 1983) [709 F.2d 1520 (table)]).
In support of its argument, plaintiff states only that his suit is permitted pursuant to 28 U.S.C. § 2680 (h). This provision allows for suits against the United States grounded in intentional tort with respect to "acts or omissions of investigative or law enforcement officers of the United States Government." 28 U.S.C. § 2680 (h). However, this provision does not mention suits by prison inmates under the FTCA, and therefore plaintiff's invocation of this provision is inapposite here.
In support of its argument that a federal prisoner may bring suit under the FTCA grounded in intentional tort, plaintiff relies on Barber v. Grow, 929 F. Supp. 820 (E.D. Pa. 1996). In that case, an inmate brought FTCA and Bivens claims alleging that he was intentionally injured when a prison guard pulled a desk chair from under him while he was working. The court, relying onScott v. Reno, 902 F. Supp. 1190, 1193 (C.D. Cal. 1995), held that the Bivens claim was not precluded by Section 4126, because "[a]t least one authority has held . . ., that this statute does not apply to injuries sustained as a result of intentional conduct." Barber, 929 F. Supp. at 822 (citing Scott). Presumably guided by the same rationale, the Barber court also went on to consider the merits of the plaintiffs FTCA claim against the prison guard. See id. at 823-24. However, the Scott court did not make the broad statement that the Barber court attributes to it, and moreover, rejected the argument of plaintiff in this case. Although the Scott court held that Section 4126 did not bar an inmate's Bivens action, it made clear that prisoners were precluded from suing in tort under the FTCA for work-related injuries. See Scott 902 F. Supp. at 1193. Accordingly, plaintiffs reliance on Barber for the proposition that an inmate alleging intentional conduct may sue under the FTCA for work-related injuries is unavailing. Such suits are barred whether the injuries resulted from negligent or intentional tortious conduct by a prison official. Because the Court does not have subject matter jurisdiction over plaintiffs FTCA claim, that claim must be dismissed.
B. Bivens Claim
1. PLRA Exhaustion Requirement
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e (a) et seq. provides inter alia that "[n]o 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 available are exhausted." 42 U.S.C. § 1997e(a) ("Section 1997e(a)"). Defendants state that the PLRA exhaustion requirement is applicable to the instant case, and that plaintiff's Bivens claim must be dismissed because plaintiff did not exhaust his administrative remedies. (Defs.' Mem. at 9-14; Defs.' Rep. at 5-1 1.) However, in a recent decision, the Second Circuit held that the PLRA's exhaustion requirement does not apply to Eighth Amendment assault and excessive force claims. See Nussle v. Willette, No. 99 Civ. 0387, 2000 WL 1199957 (2d Cir. (Conn.) Aug. 24, 2000.)
Nussle focused on a claim brought by the plaintiff in that case against state corrections officers pursuant to 42 U.S.C. § 1983 ("Section 1983"). See Nussle, supra, 2000 WL 1199957, at [*] 11 (stating that the Court "conclude[s] that exhaustion of administrative remedies is not required for claims of assault or excessive force brought under § 1983). However, the court's discussion treats claims for assault or excessive force generally. See id. at [*]2.[*]3 (discussing the PLRA exhaustion requirement in terms of Section 1983 and Bivens actions); id. at [*]4 ("[W]e agree with those courts that have held that § 1997e(a) does not encompass particular instances of excessive force or assault"). In addition, the court's reasoning — which was based on the "background principles that govern exhaustion of administrative remedies generally" and the text, structure, purpose and legislative history of the PLRA see id. at [*]4-[*]11 — is equally applicable to claims against federal prison officials. Cf. Butz v. Economou, 438 U.S. 478, 504 (1978) (holding that there is no distinction for purposes of immunity law between suits brought under Section 1983 or underBivens); Polanco v. U.S. DEA, 158 F.3d 647, 653 (2d Cir. 1998) (noting that the same statute of limitations applies to suits under Section 1983 and under Bivens). In particular, in its textual analysis, the court found that the use of the term "prison conditions" in Section 1997e(a) was ambiguous, and rejected the "blind import[ation]" into that section of the definition in 18 U.S.C. § 3626 (g)(2) ("Section 3626") of "civil actions brought with respect to prison conditions" to clarify the sense of Section 1997e(a). See Nussle, supra, 2000 WL 1199957, at [*]9 Courts have used that definition in finding the PLRA exhaustion requirement applicable in Bivens as well as Section 1983 cases. See. e.g., Cuoco v. U.S. Bureau of Prisons, No. 98 Civ. 90096, 2000 WL 347155, at [*]4-[*]5 (S.D.N.Y. Mar. 31, 2000) (relying on Section 3626's definition of "prison conditions" in finding Bivens claim for excessive force was subject to PLRA exhaustion requirement); Booth v. Churner. C.O., 206 F.3d 289, 291, 294 (3d Cir. 2000) (finding exhaustion requirement applicable by applying 3626's definition, and treating Bivens and Section 1983 actions as "functional equivalents"). The Court therefore reads Nussle as applying to Bivens claims such as the one in the instant action. Therefore, because plaintiffs Eighth Amendment Bivens claim, construed in the light most favorable to plaintiff, is one for assault, the Court finds that the PLRA's exhaustion requirement is inapplicable here.
Moreover, even were the Court to find Nussle inapplicable here, the fact that plaintiffs action is one for monetary damages, which cannot be awarded through the available BOP administrative remedies, may preclude the application of the PLRA's exhaustion requirement here. See Odumosu v. Keller, No. 99 Civ. 0215, 2000 WL 241644, at [*]2 (2d Cir. (N.Y) Feb. 1, 2000) (unpublished); Noguera v. Hasty, No. 99 Civ. 8786, 2000 WE 1011563, at *9 (S.D.N.Y. July 21, 2000) (discussing Odumosu); see also Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997) (holding that Section 1997e(a) applies only to the extent that the administrative process provides the relief requested);Whitley v. Hunt, 158 F.3d 882, 886-87 (5th Cir. 1998) (same);Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir. 1998) (same). But see Vasquez v. Artuz, No. 97 Civ. 8427, 1999 WL 440631, at [*]5 (S.D.N.Y. June 28, 1999) (listing cases, including the majority in this district, holding that the PLRA exhaustion requirement applies to prisoner claims for monetary damages even where monetary damages are not available through the prison).
2. Sufficiency of Plaintiff's Eighth Amendment Allegations
Defendants also argue that plaintiff's Bivens claim should be dismissed pursuant to Rule 12(b)(6) because he has not properly asserted an Eighth Amendment cause of action. The Court agrees. The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). The Eighth Amendment's prohibition against cruel and unusual punishment includes an inmate's right to be free from conditions of confinement that impose "an excessive risk to [the] inmate['s] health or safety. . . ." Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). The Eighth Amendment comprises both an objective and subjective component. See Wilson, supra, 501 U.S. at 298. In cases such as the instant action involving failure to prevent harm to inmates the inmate must establish that (i) he is incarcerated under conditions posing a substantial risk of serious harm; and (ii) officials displayed "deliberate indifference" to his health or safety. See Farmer, supra, 511 U.S. at 834. To establish the subjective component of deliberate indifference, an inmate must allege and prove criminal recklessness, namely, the "unnecessary and wanton" infliction of pain. Id., at 840 Hudson v. McMillan, 503 U.S. 1, 8(1992). In particular, an inmate must establish that the prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, supra, 511 U.S. at 537.
In this case, the parties do not contest the objective element of plaintiffs Eighth Amendment claim, which relates to the seriousness of the injury. See Davidson v. Flynn, 32 F.3d 27, 30 (1994); Shabazz v. Pico, 994 F. Supp. 460, 468 (S.D.N.Y. 1998) (noting that the objective component focuses on whether the alleged wrongdoing was objectively "harmful enough" to establish a constitutional violation). Indeed, as demonstrated by the apparent seriousness of plaintiffs injury, the conditions of the waxed floor arguably posed a substantial risk of harm sufficient to satisfy the objective component. Cf. Baumann v. Walsh, 36 F. Supp.2d 508, 513 (N.D.N.Y. 1999) (finding that prisoner alleged a substantial risk of harm when he alleged that he had been required to climb along top shelf of storage room); Thomas v. Coombe, 95 Civ. 10342, 1998 WE 20000, at [*]2 (S.D.N.Y. Jan. 20, 1998) (finding that prisoner set forth Eighth Amendment claim when she alleged that she had been required to perform heavy kitchen work in contravention of doctor's orders).
The second element is more problematic. In his Complaint, which was prepared by counsel, plaintiff asserts the legal conclusion that McDonald "acted with deliberate indifference to the safety of plaintiff," (Compl. ¶ 8), but fails to allege facts that support that conclusion. Specifically, plaintiff fails to allege that McDonald was (i) aware of facts indicating that walking across the floor would place plaintiff at risk of serious harm, or that (ii) he actually considered this possibility before ordering plaintiff to do so.
Other than plaintiffs conclusory statement that McDonald "kn[ew] that the plaintiff would have to traverse the wet slippery floor," the Complaint does not give the Court any reason to infer that McDonald knew of the conditions. The Complaint does not allege that plaintiff informed McDonald that the floor was wet, or voiced concerns that he was at risk of falling. Compare Spencer v. Sylvester, No. 97 Civ. 5491, 1999 WL 61644, at [*]3 (E.D.N.Y. Feb. 2, 1999) (dismissing Eighth Amendment claim where plaintiff did not allege that defendant was aware of slippery conditions on stairs and landing or that he was deliberately indifferent to the alleged conditions), with Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (holding that inmate who fell off a ladder during a work assignment stated an Eighth Amendment claim against defendant corrections officers, where the inmate alleged that the officer had ordered him to continue working after being informed that the ladder was unsafe); Howard v. Headley, 72 F. Supp.2d 118, 124 (E.D.N.Y. 1999) (holding that inmate required to perform sanitation duties despite preexisting medical condition stated an Eighth Amendment claim against defendant prison officials, where the inmate alleged he informed officials that he could not perform work and provided them doctor's notes to support his claim); and Baumaun, supra, 36 F. Supp.2d at 513-15 (finding inmate who was forced to climb on boxes and stand on shelves to perform work assignment stated Eighth Amendment claim against corrections officer, where the inmate alleged he had informed the officer of the unsafe condition). There is no indication that McDonald had been directly supervising plaintiffs work in order to be in a position to know which portions of the floor remained dangerously slippery. Moreover, the Complaint alleges that a "large fan had been installed to aid in the drying of the floor." (Compl. ¶ 7.) While the Complaint states that the fan had not yet been effective in drying the floor, (id.), it alleges nothing to indicate that McDonald knew this to be the case. Rather, it is conceivable that the presence of the fan could have led McDonald to believe that parts of, or all of, the floor were safe for traversing.
In an affidavit attached to plaintiffs opposition papers, plaintiff states for the first time that "[he] informed Officer J. McDonald that the floor was wet and therefore dangerous." (Affidavit of Ramon Antonio Gomez dated Mar. 6, 2000 ¶ 7.) Plaintiff states in his memorandum of law that plaintiff "informed the defendant Officer McDonald that the floor was wet and therefore dangerous"; therefore, "McDonald knew that the waxed floor was wet and therefore slippery" and "knew that the inmate plaintiff faced a substantial risk of serious harm if he walked upon it." (Pl.'s Mem. at 4, 6.) Such allegations are not present in the Complaint, and plaintiff cannot amend his complaint by means of a memorandum of law opposing a motion to dismiss. The Court therefore declines to consider such new assertions.
Further, even if plaintiffs allegations were sufficient to demonstrate McDonald's knowledge of the dangerous conditions, plaintiff has failed to allege the criminal recklessness necessary to establish McDonald's subjective intent to injure him. In order to state a claim for a constitutional violation under the Eighth Amendment, an inmate must allege facts demonstrating that the prison official "had a `wanton' state of mind when engaging in the alleged misconduct." See Davidson, supra, 32 F.3d at 30; see also Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999) (stating that the deliberate indifference standard "requires that only the deliberate infliction of punishment, not an ordinary lack of due care for prisoner interests or safety, lead to liability"); Wilson, supra, 501 U.S. at 297 ("[O]nly the unnecessary and wanton infliction of pain implicates the Eighth Amendment.") (internal quotation marks, emphasis, and citations omitted). Plaintiff's allegations fall short of that here. In particular, plaintiff does not allege that McDonald considered the potential harm to plaintiff when he ordered him to traverse the floor. Accordingly, plaintiffs Bivens claim is dismissed without leave to replead. The Court dismisses the claim without leave to replead because plaintiff, who is represented by counsel, has already had two opportunities to plead the facts necessary to support his Bivens cause of actions and has failed to properly do so.
Because the Court dismisses plaintiff's Bivens claim under Rule 12(b)(6), it need not consider defendants' argument that McDonald is entitled to qualified immunity because he "did not act in violation of a clearly established constitutional right." (Defs.' Mem. at 19.) The Court notes, however, that "qualified immunity is an affirmative defense that the defendants have the burden of raising in their answer and establishing at trial or on a motion for summary judgment," rather than on a motion to dismiss. Black v. Coughlin, 76 F.3d 72, 75 (2d Cir. 1996). As such, "a plaintiff, in order to state a claim of constitutional violation, need not plead facts showing the absence of such a defense." Id.
III. Conclusion
For the foregoing reasons, the Court finds that it does not have subject matter jurisdiction over plaintiffs FTCA claim, and that plaintiff has failed to sufficiently plead his Bivens cause of action. Accordingly, defendants' motion to dismiss is granted in its entirety. The Clerk of the Court is directed to close the file in the action.
SO ORDERED.