Opinion
CV 00-5747(RR).
March 7, 2002
MICHAEL ANGELO HYLTON, # 94A0812, Elmira Correctional Facility, Elmira, New York, Plaintiff, pro se.
HONORABLE ALAN VINEGRAD, UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK, Brooklyn, New York, By: Sharon L. Volckhausen, Assistant U.S. Attorney, Attorney for Defendants.
Memorandum and ORDER
Michael Angelo Hylton was convicted before this court on July 14, 2000, having pleaded guilty to one count of receiving stolen bank funds.See United States v. Hylton, CR 98-241 (RR). The court sentenced Hylton to twelvemonths' imprisonment to run consecutive to a twelve-year New York State sentence for robbery. Hylton, who did not appeal his federal conviction, is presently incarcerated at Elmira Correctional Facility, where he is serving his state sentence.
A liberal reading of Hylton's complaint suggests that he now sues the Federal Bureau of Prisons, the Metropolitan Detention Center ("MDC"), and MDC Warden Dennis Hasty pursuant to both the Federal Torts Claims Act, 28 U.S.C. § 1346(b), 2671-80 (1993, 1994) ("FTCA"), and the United States Constitution, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for injuries sustained while a pre-trial detainee at the MDC. This is one of three lawsuits that Hylton has filed with this court since his federal conviction, all seeking damages for alleged wrongs occurring in federal custody. See Hylton v. Fortier, CV 00-6308 (RR); Hylton v. U.S. Marshal "Debbie", CV 00Z6673.
In Fortier, the court awaits Hylton's response to defendants' motion to dismiss. In U.S. Marshal "Debbie", the parties are pursuing discovery.
Defendants now move for dismissal of Hylton's constitutional claim against the Bureau of Prisons, the MDC, and Warden Hasty. They also move for partial dismissal of the FTCA claim, asserting that the United States must be substituted for the named defendants. Having carefully reviewed the submissions of the parties, this court grants defendants' motion in its entirety, but without prejudice to Hylton moving formally to amend his Bivens claim, which motion must be accompanied by the proposed amended pleadings and a memorandum of law addressing certain issues discussed herein.
Factual Background
On June 1, 2000, plaintiff Michael Angelo Hylton used a shower located in the two-man cell in which he was housed in the MDC Special Housing Unit ("SHU"). Because the shower had no shower curtains, water routimely escaped onto the cell floor. Nonetheless, there were no floor mats to prevent the inmates from slipping. When exiting the shower, Hylton slipped on the wet floor and hit his face against a wall, cracking one of his back teeth. The MDC medical staff temporarily repaired his tooth the same day. Later, when Hylton was incarcerated at Fort Dix Federal Correctional Institute, his tooth was permanently repaired.
Neither party advises the court when this occurred.
Hylton asserts that sometime prior to his accident, he filed an administrative complaint about the lack of shower curtains and floor mats in the SHIU cells. Not receiving any response, he raised the issue with MDC Captain Betler, who told him that his administrative complaint was a waste of time because no mats or shower curtains would be put in prisoner cells.
Hylton further states that after his accident, he also filed an administrative complaint about the circumstances giving rise to his accident, to which he received no response. After being transferred to state custody, he wrote the warden of MDC about the status of his complaint, but received no reply.
Discussion
I. Federal Torts Claims Act
Although Hylton initially sued the Bureau of Prisons, the MDC, and Warden Hasty pursuant to the FTCA for negligence in connection with his June 1, 2000 accident, all parties agree that such a claim can only be maintained against the United States. See 28 U.S.C. § 2679(a);Mignogna v. Sair Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991). Accordingly, plaintiff's complaint is deemed amended to name the United States as a defendant in the FTCA claim. The FTCA claim is hereby dismissed as against the Bureau of Prisons, the MDC, and Warden Hasty for lack of subject matter jurisdiction.
II. Bivens Claim
Hylton further sues the defendants pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, for violating his constitutional rights in connection with his June 1, 2000 accident and the subsequent treatment of his injuries. The claim is deficient in several respects.
First, a Bivens claim can only be brought against a federal employee in his individual capacity. It cannot be maintained against the United States, its agencies, or its employees in their official capacities. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). Thus, Hylton's Bivens claim against the Bureau of Prisons, the MDC, and Warden Hasty in his official capacity must be dismissed, and his proposal to proceed against the United States alone must be denied.
Further, to the extent Hylton sues Warden Hasty in his individual capacity, his Bivens claim must also be dismissed since, as Hylton concedes in his reply papers, Hasty was not the MDC warden at the time of the facts alleged. See Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (to state Bivens claim, plaintiff must allege personal involvement of defendant in violation); accord Cuoco v. Moritsugu, 222 F.3d 99, 109 (2d Cir. 2000).
In nevertheless opposing total dismissal of his Bivens action, Hylton seeks leave to amend to clarify his constitutional claim. Because Hylton has failed to submit a proposed amended pleading or even to identify whom he would sue pursuant to Bivens, the court can neither grant nor deny this application on the present record. It grants Hylton thirty days from this order to submit his proposed amended pleading as well as papers addressing a procedural question relating to his claim.
Specifically, Hylton is asked to clarify his exhaustion of administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (Supp. 2001) ("PLRA"). That statute provides that "iIn]o action shall be brought with respect to prison conditions.., by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." See Porter v. Nussle, ___U.S. ___, 2202 "ML 261683, at *10 (Feb. 26, 2002) (holding that statute's reference to "prison conditions" applies "to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong"). Although Hylton insists that he did exhaust administrative remedies, the present record is devoid of any documentation indicating that plaintiff did pursue the specific four-step procedure established by the Bureau of Prisons. 28 C.F.R. § 542.10 (2001); see Funches v. Reish, 97 Civ. 7611, 1998 WL 695904, at *2 (S.D.N.Y. Oct. 5, 1998) (Sand, J.) (detailing four-step procedure: (1) inmate must first seek informal resolution of complaint; (2) if no resolution achieved, prisoner may submit written request for relief on designated form to warden; (3) if request denied, inmate has twenty days to file appeal with Bureau of Prisons Regional Director; (4) upon adverse determination by Regional Director, inmate has thirty days to appeal to Bureau of Prisons General Counsel). Defendants have apparently searched computerized indices at the Bureau of Prisons that track inmate grievances and found none relating to Hylton's June 1, 2000 accident. They have, however, located Hylton's administrative tort claim for $20,000, dated June 8, 2000. Tort claims, however, are not subject to the same four-part administrative procedure that must be exhausted to pursue other claims. See 28 C.F.R. § 542.10, 542.12, 543.30 (2001). A prisoner need only file an administrative tort claim with the Bureau of Prisons Regional Office. See 28 C.F.R. § 543.31(c) (2001). Denial of that claim constitutes the final administrative action. See 28 C.F.R. § 543.32 (6) (2001). Thus, it is entirely possible that Hylton exhausted his administrative remedies for purposes of the FTCA without exhausting remedies pursuant to the PLRA for purposes of filing aBivens claim. See generally Funches v. Reish, 1998 WL 695904, *7.9 (finding FTCA claim exhausted, but not Bivens claim). Thus, if Hylton wishes to amend his complaint to pursue a Bivens action, he must show that he exhausted the Bureau of Prisons four-part procedure for resolving grievances either by producing copies of his filing or by submitting a detailed affidavit indicating the actions taken to comply with all four steps of the administrative process.
Even if Hylton can clear the procedural hurdle of the PLRA, he is cautioned that his pursuit of an amended Bivens action depends on his ability to plead both the objective and subjective components of any Eighth Amendment claim of cruel and unusual punishment. See Hudson v. McMillian, 503 U.S. 1, 8 (1992).
Hylton was a sentenced state prisoner when he was transferred to the MDC to face federal charges, the parties agree that the Eighth Amendment applies to his Bivens claim about the conditions of his confinement and medical treatment. See Laza v. Reish, 84 F.3d 578, 580 (2d Cir. 1996).
The objective component is contextual. Id. Thus, when a claim challenges a prisoner's conditions of confinement — as in Hylton's case, where he challenges the conditions under which he was required to shower — a showing of "extreme deprivation[is] required." Id. at 9. This is because "routine discomfort" is considered inherent in the fact of incarceration. Id. Thus, "only those deprivations denying "the minimal civilized measure of life's necessities' are sufficiently grave" to give rise to an Eighth Amendment claim. Id. (citations omitted). To meet this high objective standard, Hylton must plead more than the fact that he was injured in a shower accident. He must plead circumstances — for example, recurring serious injuries to prisoners using MDC showers — sufficient to support an inference that the challenged conditions were so obviously hazardous as to constitute cruel and unusual punishment.
As for Hylton's complaint about delay in the permanent repair of his cracked tooth, the Eighth Amendment does not mandate that prisoners "have unqualified access to health care." Id. Thus, Hylton must plead facts showing that the temporary repair of his tooth at the MDC was so obviously insufficient to protect him from "death, degeneration or extreme pain" that "a condition of urgency existed requiring more expeditious permanent correction of his condition. Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)).
To then satisfy the subjective component of an Eighth Amendment claim, Hylton must show that whatever individual he names as a Bivens defendant acted with deliberate indifference to the serious prison condition causing his injury. See Wilson v. Seiter, 501 U.S. 294, 299 (1991) (holding that Eighth Amendment requires an "inquiry into a prison official's state of mind when it is claimed that the official has inflicted cruel and unusual punishment"); c.f. Branham v. Meachum, 77 F.3d 626, 631 (2d Cir. 1996) (holding that allegations of various prison restraints was not enough, by itself, to suggest that officials acted with deliberate indifference to plaintiff's health and safety). This requires, at a minimum, that Hylton plead a defendant's knowledge of the serious condition or medical problem at issue, an awareness of the risk of grave harm presented by the situation, an ability to take action to remedy the situation, and a failure to do so. See Farmer v. Brennan, 511 U.S. 825, 837-38, 844 (1994).
Conclusion
For the reasons stated, the court dismisses with prejudice Hylton' s FTCA claim as against the Bureau of Prisons, the MDC, and Warden Dennis Hasty, and substitutes the United States as the sole defendant. The court further dismisses with prejudice Hylton's Bivens claim against the Bureau of Prisons, the MDC. and Warden Hasty for injuries arising out of an accident on June 1, 2000 and the dental care afforded thereafter. Hylton is, however, granted thirty days from the date of this order to submit a proposed amendment to his Bivens claim, provided he also demonstrates that he has complied with the exhaustion requirements of the PLRA. Hylton is advised that, even if he does not submit a proposed Bivens amendment, his FTCA claim will go forward as against the United States.
SO ORDERED.
Dated: Brooklyn, New York March 7, 2002
REENA RAGGI UNITED STATES DISTRICT JUDGE