Opinion
Civil Action 20 Civ. 3643 (JLR) (SLC)
01-24-2024
SAEED KAID, Plaintiff, v. WARDEN E.L. TATUM, JR.; MR. MCBAIN, R&D UNIT MANAGER; ROSA PROTO, 9&11 NORTH UNIT MANAGER; E. WALKES; S. ESPINET, 9&11 NORTH UNIT COUNSELOR; F. OLIVERES, 9 NORTH CASE MANAGER; Z. GARDNER, 9&11 NORTH SECRETARY; S. GREGORY, HEALTH SERVICES ADMINISTRATOR; A. BUSSANICH, DOCTOR; S. MANDEEP, PHYSICIAN ASSISTANT-CERTIFIED; T. THOMAS, REGISTERED NURSE; K. ALRAHEEB; L. ANDERSON, DEPUTY OFFICER; S. ESGUERRA, CONTRACT RADIOLOGY TECHNICIAN; K. MASTERS, SHU OFFICER; T. DOCTOR SPECIAL INVESTIGATIVE SERVICES; L. SHIVERS, DISCIPLINARY HEARING OFFICER; JOHN DOE, SHU LIEUTENANT; JOHN DOE, SHU OFFICER; MR. BANKS, DISCIPLINARY HEARING OFFICER, Defendants.
TO THE HONORABLE JENNIFER L. ROCHON, United States District Judge:
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
I. INTRODUCTION
Pro se Plaintiff Saeed Kaid (“Mr. Kaid”) brings this action based on events that occurred between January 2017 and March 2018 while he was a pretrial detainee at the Metropolitan Correctional Center (“MCC”). The Court construes Mr. Kaid to be asserting in his Amended Complaint (ECF No. 12), Bivens claims and claims under the Federal Tort Claims Act, 28 U.S.C. § 2679(a) (the “FTCA”) for failure to provide adequate medical care (the “Medical Claim”) and failure to protect his safety (the “Failure to Protect Claim”) in violation of the Due Process Clause of the Fifth Amendment,and interference with his pursuit of legal and administrative remedies in violation of the First Amendment(the “Interference Claim”). (See generally ECF No. 12).
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Deliberate indifference claims of a pretrial detainee in federal custody are analyzed under the Due Process Clause of the Fifth Amendment. See Akande v. Graser, No. 08 Civ. 188 (WWE), 2010 WL 3802901, at *2 (D. Conn. Sept. 17, 2010) (“a person detained prior to conviction receives protection against mistreatment at the hands of prison officials under the Due Process Clause of the Fifth Amendment, if the pretrial detainee is held in federal custody”).
The First Amendment affords inmates the right “to complain about prison conditions, especially conditions that the prisoner believes endanger his health and safety.” Petitpas v. Griffin, No. 20 Civ. 769 (JAM), 2021 WL 1812683, at *6 (D. Conn. May 6, 2021); see Rogers v. Lamont, No. 22 Civ. 66 (OAW), 2022 WL 3716446, at *4 (D. Conn. Aug. 29, 2022) (construing pro se prisoner's claims that prison officials “threatened, assaulted, and retaliated against him” for reporting inhumane prison conditions as asserting a First Amendment claim); Mendoza v. Edge, 615 F.Supp.3d 163, 170 (E.D.N.Y. 2022) (construing pro se prisoner's claim that he was denied access to legal mail as raising First Amendment claim).
The Government Defendants and individual defendant Sandra Esguerra (“Ms. Esguerra,” together with the Government Defendants, “Defendants”))have moved to dismiss Mr. Kaid's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56, on the grounds that recent United States Supreme Court precedent forecloses his Bivens claims, his claims are untimely, and he failed to exhaust administrative remedies. (ECF Nos. 105 (the “Government Defendants' Motion”); 111 (“Ms. Esguerra's Motion,” together with the Government Defendants' Motion, the “Motions”)). Mr. Kaid has filed an opposition to the Government Defendants' Motion. (ECF Nos. 131 (the “Second Declaration”); 132 (the “Opposition”)). For the reasons set forth below, the Court respectfully recommends that the Motions (ECF Nos 105; 111) be GRANTED, leave to amend be DENIED, and the Amended Complaint be DISMISSED WITH PREJUDICE.
The Government Defendants include the following 17 individuals, whom Mr. Kaid has sued in their individual capacities: E.L. Tatum; D. Mebane (incorrectly sued as “Mr. McBain”); Rosa Proto; E. Walkes; S. Espinet; F. Olivares (incorrectly sued as “F. Oliveres”); Z. Gardner; H. Georgy (incorrectly sued as “S. Gregory”); A. Bussanich; M. Singh (incorrectly sued as “S. Mandeep”); T. Thomas; K. Elraheb (incorrectly sued as “K. Alraheeb”); L. Anderson; K. Masters; T. Doctor; K. Shivers (incorrectly sued as “L. Shivers”); and J. Banks (sued as “Mr. Banks”). (ECF No. 106 at 8 n.1). The Court refers to the Government Defendants by the corrected names.
Ms. Esguerra, whom the Amended Complaint alleges was a “Contract Radiology Technician,” (ECF No. 12 at 1), has her own counsel. (See ECF Nos. 18; 40; 113 at 1).
Mr. Kaid does not respond to the arguments unique to Ms. Esguerra's Motion. (See generally ECF No. 132; see also ECF No. 133).
II. BACKGROUND
A. Factual Background
The following material facts are summarized from Mr. Kaid's pleadings and exhibits annexed thereto or incorporated therein, the truth of which the Court accepts for purposes of the Motions. See N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119 (2d Cir. 2013); Caraballo v. Dep't of Corr. City of N.Y., No. 22 Civ. 971 (JLR), 2022 WL 16555313, at *1 (S.D.N.Y. Oct. 31, 2022).
For the reasons discussed below, the Court declines to convert the Motions to motions for summary judgment (see § IV.A, infra). The documents the Court has considered are the Complaint (ECF No. 2), the Amended Complaint (ECF No. 12), the exhibits Mr. Kaid incorporated by reference therein and attached to his declaration in support of his request to amend filed September 15, 2020 (ECF No. 9 (the “First Declaration”)), and to his letter filed June 4, 2021 in which he asked the Court to deem them as having been attached to the Amended Complaint. (ECF No. 14). See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (for purposes of Rule 12(b)(6) motion, “the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference”). In addition, because Defendants have also moved under Rule 12(b)(1), the Court properly considers with respect to §§ IV.B.2-5 and IV.C.2, infra, the additional declarations and exhibits that Defendants submitted in support of the Motions (ECF Nos. 108; 109; 114), and Mr. Kaid's Second Declaration and exhibits. (ECF No. 131).
Internal citations and quotation marks are omitted from case citations unless otherwise indicated.
1. The January 10, 2017 Incident and Aftermath
On the afternoon of January 9, 2017, Mr. Kaid arrived as a pretrial detainee at the MCC, where he was placed in the general population in the same unit as R.J., a cooperating witness in his criminal case. (ECF No. 12 at 3).He believes that the MCC conducted only a “symbolic” screening that failed to account for the threat posed by R.J. (Id.) Later that evening, Mr. Kaid's cellmate warned him that R.J. had “a big knife” and he should “be careful.” (Id.) When Mr. Kaid asked Anderson to separate him from R.J. because he “felt that his life was in immediate danger,” Anderson instructed Mr. Kaid to notify his unit team. (Id.)
In a superseding indictment filed on January 4, 2017, Mr. Kaid and others were charged with several federal felonies, including racketeering conspiracy, 18 U.S.C. § 1962, and conspiracy to distribute narcotics, 21 U.S.C. § 846. (See United States v. Johnson, et al., No. 16 Cr. 281 (PGG), ECF No. 27). On January 9, 2017, Mr. Kaid was arrested, presented, and ordered detained. (Id., ECF No. 62). On December 15, 2017, Mr. Kaid entered a guilty plea to racketeering conspiracy and narcotics conspiracy, and on June 8, 2028, was sentenced to a term of imprisonment of four years and 10 months followed by a term of five years of supervised release. (Id., ECF min. entry Dec. 15, 2017; ECF Nos. 320; 324). Mr. Kaid's subsequent motion for compassionate release was denied. (Id., ECF No. 1001). In March 2023, Mr. Kaid was indicted for escape, 18 U.S.C. § 751, a charge to which he subsequently pled guilty and for which he received a sentence of time served, to run consecutively with his sentence in the 2016 case. (United States v. Kaid, No. 23 Cr. 130 (LTS), ECF Nos. 7; 40; ECF min. entries Nov. 6, 2023 & Nov. 28, 2023).
The Court cites the ECF page numbers of the Amended Complaint, which does not include paragraph numbers.
The next morning, January 10, 2017, R.J. “asked” Mr. Kaid “to accompany him” and then attacked Mr. Kaid “without any provocation,” stabbing him in the mid-lower back, kicking him in the head, shoving him down stairs, and stomping on his “already injured” ankle. (ECF No. 12 at 3 (the “Incident”)). R.J. ignored Anderson's instructions to “stop,” until other officers arrived and transported Mr. Kaid to the MCC's emergency room. (Id.) In the emergency room, Mr. Kaid told Thomas that he had been stabbed and felt “great pain” in his foot and ankle. (Id.) X-rays showed fractures in Mr. Kaid's left foot and swelling (“effusion”) in his left ankle. (Id.; see ECF No. 9 at 22). Mr. Kaid was fitted with an ankle splint and boot and instructed not to put weight on his left foot until further x-rays could be performed. (ECF No. 12 at 3; see ECF No. 9 at 22). Mr. Kaid was then transported to a cell in the Special Housing Unit (“SHU”), where he was given an inhaler and preexisting prescription of 30 Naproxentablets. (ECF No. 12 at 3-4; see ECF No. 9 at 24-25). He remained in the SHU until February 20, 2017. (ECF No. 131 at 40).
Naproxen is a non-steroidal anti-inflammatory pain medication. See Naproxen Tablet - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-5173-1289/naproxen-oral/naproxen-oral/details (last visited Jan. 24, 2024).
Mr. Kaid served several additional stints in the SHU: February 27, 2017 until March 7, 2017; April 11, 2017 until April 25, 2017; May 16, 2017 until June 7, 2017; July 18, 2017 until September 18, 2017; November 5, 2017 until November 12, 2017; and December 11, 2017 until May 2018. (ECF No. 131 at 40).
Mr. Kaid complains about the quality of the medical treatment he received at the MCC for the remainder of January 2017. On January 11, 2017, he complained of pain to Singh and asked for “stronger medication.” (ECF No. 12 at 4). Mr. Kaid's medical records indicate that he was kept in the air splint and was not given a boot and cane for “security reasons.” (ECF No. 9 at 27). In response to his January 13, 2017 sick call request, Singh said he would notify Georgy and Bussanich. (ECF No. 12 at 4). When Mr. Kaid complained of pain several days later, “John Doe, SHU Lieutenant” (later identified as Omar Lopez (“Lopez”) (ECF Nos. 19; 33)) responded that it was “above [his] pay grade.” (ECF No. 12 at 4). Because he did not receive crutches or stronger pain medication, Mr. Kaid had to “painfully use his fractured foot” and “hop” on his right leg. (Id.) In response to Mr. Kaid's January 23, 2017 sick call request, Thomas stated, “all I can do is give them your slip, I can't make any promises after that.” (Id.)
In late January 2017, Mr. Kaid submitted a written complaint that Walkes and Proto reviewed. (ECF No. 12 at 4). Walkes asked Mr. Kaid if he was “f***ing crazy,” and said Mr. Kaid's life in MCC “will be a living hell.” (Id.) Mr. Kaid believes that, because he upset Walkes, another unnamed officer served him “watery rice” for dinner. (Id.)
On February 3, 2017, Mr. Kaid was taken to the podiatry clinic at Brooklyn Hospital Center, where his left foot was placed in a hard cast and he was provided with crutches and recommended Tramadoland ice for pain. (ECF No. 12 at 5; see ECF No. 9 at 30-31). Mr. Kaid was not provided with Tramadol or an ice pack. (ECF No. 12 at 5).
Tramadol is an opiate analgesic used to treat moderate to severe pain. See Tramadol HCL - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-4398-5239/tramadol-oral/tramadol-oral/details (last visited Jan. 24, 2024).
2. Alleged Mistreatment Between February 2017 and March 2018
As noted above, in his Amended Complaint, Mr. Kaid added allegations about mistreatment at the MCC following his hospital visit on February 3, 2017 and March 2018. (ECF No. 12 at 5-11). In February 2017, Doctor “denied [him] forms and threatened [r]etaliation” if he pursued grievances about his treatment. (Id. at 5). On March 20, 2017, Mr. Kaid spoke with a psychologist, at his request, about “stress and difficulty sleeping” arising in part from the Incident. (ECF No. 9 at 38; see ECF No. 12 at 5). The psychologist concluded that there was “no need for follow-up at this time,” but provided him with information about sleep hygiene, coping strategies, and self-help programs and reading materials, to which he was “receptive.” (ECF No. 9 at 38).
On March 22, 2017, Walkes “interfered” with Mr. Kaid's legal representation by failing to send legal mail to an attorney interested in his case. (ECF No. 12 at 5). On April 5, 2017, Walkes provided Mr. Kaid with one grievance form, instead of two, “knowing” that it would lead to Mr. Kaid's complaint being rejected. (Id.) On April 10, 2017, Proto failed to give Mr. Kaid's complaint form to a supervisor to sign and respond, and instead provided her own “misleading” response. (Id. at 6). On April 18, 2017, Georgy and Bussanich failed to provide Mr. Kaid with an ice pack. (Id.) When seen in the MCC clinic that day, however, Mr. Kaid stated that he was “without any complaint at this time.” (ECF No. 9 at 33). On May 16, 2017, Esguerra filed a false misbehavior report after Mr. Kaid informed her of his intent to take legal action based the failure to provide him with adequate medical care for his foot and ankle. (ECF No. 12 at 6).
In July 2017, Olivares told Mr. Kaid's cellmate that Mr. Kaid was “squealing” on him, which provoked an argument between Mr. Kaid and his cellmate in which the cellmate struck him in the face. (ECF No. 12 at 7). By August 22, 2017, Mr. Kaid denied having any pain his left foot. (ECF No. 9 at 35). On August 22, 2017 and October 6, 2017, Georgy and Bussanich “denied” Mr. Kaid's prescription for Voltaren. (ECF No. 12 at 7-8). On September 22 and 29, 2017, someone who “resemble[d]” Walkes precluded Mr. Kaid's grandmother from visiting him because of a dress code violation. (Id. at 8).
Voltaren is a medication, often prescribed in gel form, for joint pain. See Voltaren Gel - Uses, Side Effects, and More, WEBMD, https://www.webmd.com/drugs/2/drug-150270/voltaren-topical/details (last visited Jan. 24, 2024).
On November 5, 2017, Mr. Kaid “was singled out during a random group urinalysis test” by Olivares and an unnamed officer, who placed him in restraints, transported him to the SHU, and told him to “choose [his] battles wisely” because the officers “stick together in here.” (ECF No. 12 at 9). Mr. Kaid believes that Walkes and Proto then “monitored” his mail and grievance activities more actively and ignored his requests for grievance forms. (Id.) On December 11, 2017, Proto and Gardner “were present during an attack” on Mr. Kaid by another inmate “but refused to help or intervene,” after which Mr. Kaid was taken to the MCC emergency room. (Id.) After the attack and until March 24, 2018, Doctor and Shivers used the altercation with the other inmate “to retaliate against” him for filing grievances. (Id. at 10). On March 24, 2018, Masters asked Mr. Kaid, “what did you tell my supervisor about me?” (Id.) Masters then “filed a false misbehavior report in retaliation.” (Id.)
3. Mr. Kaid's Administrative Complaints
On April 5, 2017, Mr. Kaid filed an informal resolution form (BP-8), under the Bureau of Prisons' (“BOP”) Administrative Remedy Procedure, seeking “compensation” for officers' “negligence” in failing to protect him from R.J. on January 10, 2017 and “misdiagnos[ing]” his “broken left foot.” (ECF Nos. 9 at 39; 12 at 5). Over the next several months while at MCC, Mr. Kaid filed eight administrative complaints based on the same failure to protect and medical negligence allegations. (ECF Nos. 9 at 39, 45, 47-49, 52, 54, 56; 12 at 7-10; 109-1 at 1). Mr. Kaid's requests for an administrative remedy were rejected, and many of the written decisions noted that his grievances were untimely filed outside the applicable 20-day deadline. (ECF Nos. 9 at 50, 53, 67, 71, 72, 80, 81; 109-1 at 2-23). In the September 29, 2017 and October 10, 2017 denials of his administrative complaints, Mr. Kaid was informed that he could “file a regional tort claim and send it to the Northeast Regional Office,” but he did not do so at that time. (ECF Nos. 9 at 56-57; 109-1 at 5; see ECF No. 9 at 50; see also ECF No. 14 at 76 (notation by Defendant Georgy on September 28, 2017 that Mr. Kaid could file a “tort claim through TRULINCS”)).Nor did Mr. Kaid complete the administrative appeal process for any of the administrative complaints he filed while at MCC. (See ECF No. 109 ¶¶ 18-22). In July 2018, Mr. Kaid was transferred to New York State custody, where he remained until he returned to BOP custody on April 8, 2019. (ECF Nos. 109-2 at 2; 132 at 22).
TRULINCS is the acronym for “Trust Fund Limited Inmate Computer System,” the platform through which BOP provides to inmates discretionary email access to the general public in a secure manner. See https://www.bop.gov/inmates/communications.jsp (last visited Jan. 24, 2024).
Beginning in January 2020, when he was incarcerated at the Federal Correctional Center in Fairton, New Jersey (“Fairton”), Mr. Kaid submitted to Fairton officials administrative complaints based on the alleged failure to protect and medical negligence at MCC in January and February 2017. (ECF No. 9 at 69-70, 73, 75, 78-79, 82, 85; see ECF No. 109-1). Mr. Kaid was informed that these complaints were untimely and/or that they pertained to a different facility. (ECF No. 9 at 69, 71, 72, 74, 76-78, 80, 81, 83, 84, 86, 87; see ECF No. 109-1).
On January 6, 2020, the BOP's Regional Office received from Mr. Kaid two Forms SF-95, in which he asserted the Medical and Failure to Protect Claims-but not the Interference Claim- to recover damages for the injuries he sustained during the Incident. (ECF No. 109-3 (the “SF-95s”)). On January 31, 2020, the BOP denied Mr. Kaid's claims on the SF-95s as untimely because he had failed to submit them within two years after the claims accrued and advised him of his right to bring an action in federal court within six months. (ECF No. 9 at 77 (citing 28 U.S.C. § 2401(b) (the “Denial Letter”))).
Mr. Kaid signed the SF-95s on December 23, 2019, and Fairton officials mailed it on January 2, 2020. (ECF No. 109-3 at 1, 3).
B. Procedural Background
In the Complaint, which Mr. Kaid signed February 6, 2020 and was filed on May 11, 2020, Mr. Kaid asserted the Medical and Failure to Protect Claims based on events that occurred between January 9, 2017 and February 3, 2017 against 28 defendants-only four of whom he named-Tatum (MCC's Warden), Elraheb (MCC's Associate Warden of Programs), Jane Doe (Associate Warden of Operations), and John Doe (an MCC Captain). (See generally ECF No. 2).Following a preliminary review of the Complaint, on August 6, 2020, the Honorable Louis L. Stanton found that, because the three-year statute of limitations for Bivens inadequate medical treatment claims “generally accrues on the date of the alleged incident”-here, January 9, 2017 to February 3, 2017-Mr. Kaid “had until February 3, 2020 to file a timely Bivens claim,” but did not sign the Complaint until February 6, 2020 and failed to “indicate when he submitted the [C]omplaint for mailing to his prison's mail system.” (ECF No. 8 at 6 (the “OTSC”) (citing Noble v. Kelly, 246 F.3d 93 (2d Cir. 2001) (per curiam)).Accordingly, Judge Stanton ordered Mr. Kaid to show cause why the action should not be dismissed as time-barred. (ECF No. 8 at 6).
When he filed the Complaint, Mr. Kaid was incarcerated at Fairton. (Id. at 17).
Pursuant to the “prison mailbox rule,” a pro se prisoner satisfies the filing deadline “if he delivers the notice to prison officials within the time specified.” Noble, 246 F.3d at 97 (citing Houston v. Lack, 487 U.S. 266, 270-71 (1988)); see Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (extending Houston “prison mailbox” rule to pro se prisoner's filing of civil complaints), modified in part on other grounds by, 25 F.3d 81 (2d Cir. 1994).
In response to the OTSC, Mr. Kaid submitted the First Declaration, in which he described additional events that occurred between February 10, 2017 and March 24, 2018 and to which he attached documents concerning his medical treatment and administrative grievances. (ECF No. 9 at 4-11, 13-88). In an Order dated March 18, 2021, Judge Stanton noted that, while Mr. Kaid had not addressed the issue of timeliness, he did “allege[] additional facts in support of other violations of his constitutional rights that occurred from February 10, 2017, through March 24, 2018,” and attached “additional documents in support of his claims and refers to individuals [] who are not named in the caption of the [C]omplaint or the caption of” the First Declaration. (ECF No. 11 at 6). Construing the First Declaration as an “attempt to amend his claims,” Judge Stanton directed Mr. Kaid to amend his Complaint to “reallege his claims regarding events that occurred from January 9, 2017, through March 24, 2018[, . . .] clearly identify in the caption of his amended complaint the Defendants whom he seeks to assert claims against and state in the body of the [amended] complaint how each Defendant named in the caption of the amended complaint violated his constitutional rights.” (Id.)
On May 25, 2021, Mr. Kaid filed the Amended Complaint, which named 28 Defendants and added what the Court and Defendants construe as the Interference Claim. (ECF No. 12; see ECF Nos. 106 at 8; 113 at 6). Mr. Kaid separately submitted exhibits to the Amended Complaint (ECF No. 14), some of which were attached to the First Declaration. (ECF No. 9). On June 14, 2021, the Honorable Andrew L. Carter, Jr., to whom the case had been reassigned, issued an Order of Service directing the Clerk of Court to complete forms to facilitate service by the United States Marshals Service (the “Marshals”). (ECF No. 15). On September 3, 2021, the Marshals filed process receipts indicating that the MCC had declined to accept service on behalf of nine Defendants-Walkes, Espinet, McBain, Doctor, Oliveres, Esguerra, Thomas, Mandeep, and Proto-“who [we]re employed by MCC as contractors.” (ECF No. 32 at 1-2; see ECF Nos. 22; 2431). On September 14, 2021, Judge Carter ordered that, “[b]ecause [these] Defendants are employed by MCC as contractors, MCC shall provide residential addresses where each of these Defendants may be served.” (ECF No. 32 (the “Valentin Order”)).
See Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (holding that pro se plaintiff is entitled to assistance from district court in identifying defendants) (per curiam).
The United States Attorney's Office for the Southern District of New York (the “USAO”), counsel for the Government Defendants, advised the Court that the individual named as “John Doe, SHU Lieutenant,” was Lopez, who could be served at the Federal Correctional Institution, Bennettsville, but that despite their efforts and requests to Mr. Kaid (to which he had not responded), they were unable to identify the individual named as “John Doe, SHU Officer.” (ECF Nos. 19; 33). The USAO also advised that it would represent all Government Defendants, who had authorized counsel for the BOP to accept service, and therefore requested that the Valentin Order be vacated and the Marshals be directed to serve the Government Defendants at the BOP's address. (ECF No. 33). Judge Carter then vacated the Valentin Order as to the Government Defendants, directed the Marshals to serve them at the BOP address, and ordered Mr. Kaid to respond within two weeks to the USAO's request for additional information regarding “John Doe, SHU Officer.” (ECF No. 36). In the meantime, private counsel entered notices of appearance for Esguerra and indicated that they were authorized to accept service on her behalf. (ECF Nos. 18; 40; 62; see ECF No. 59 (ordering her counsel to provide address for service); 65 (amended order of service as to Esguerra)).
After receiving additional information from Mr. Kaid, the USAO continued its efforts to identify “John Doe, SHU Officer” and contact the remaining Government Defendants regarding service and representation. (ECF Nos. 44 at 1; 56; 66; 68). On October 31, 2022, Defendants informed the Court that, as of that date, all Defendants, including Esguerra, had been served with the summons and Amended Complaint and requested until December 30, 2022 to respond to the Amended Complaint, which Judge Carter granted. (ECF Nos. 88; 90). On December 30, 2022, Defendants notified Judge Carter of their intent to move to dismiss the Amended Complaint. (ECF Nos. 93-94).
On January 25, 2023, the action was reassigned to the Honorable Jennifer L. Rochon, who set a deadline of April 13, 2023 for the Motions. (ECF Nos. 95; 99). On April 11, 2023, Defendants filed the Motions. (ECF Nos. 105; 111). Judge Rochon granted Mr. Kaid's eight requests for extensions of time to file his Opposition, which the Court received, with the Second Declaration, on November 9, 2023. (ECF No. 132; see ECF Nos. 118; 119; 122; 123; 125-130). In his Opposition, Mr. Kaid indicated for the first time that he is asserting an FTCA claim. (ECF No. 132 at 5). Defendants filed reply memoranda of law (ECF Nos. 133; 136), and, on November 21, 2023, Judge Rochon referred the Motions to the undersigned for this Report and Recommendation. (ECF No. 135).
III. LEGAL STANDARDS
A. Motion to Dismiss
Under Rule 12(b)(1), a district court may dismiss an action when it “lacks the statutory or constitutional power to adjudicate it.” Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002); accord Aris v. N.Y., No. 22 Civ. 5019 (JLR), 2023 WL 5003581, at *2 (S.D.N.Y. Aug. 4, 2023). “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint [] as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). The Court may “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, 290 F.3d at 497.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Ent., 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“In applying this standard, a court accepts as true all well-pled factual allegations but does not credit ‘mere conclusory statements' or ‘[t]hreadbare recitals of the elements of a cause of action.'” Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *4 (S.D.N.Y. Mar. 6, 2020) (quoting Iqbal, 556 U.S. at 678). The Court shall not give “effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007). “Where a court can infer no more than the mere possibility of misconduct from the factual averments - in other words, where the well-pled allegations of a complaint have not ‘nudged [plaintiff's] claims across the line from conceivable to plausible' - dismissal is appropriate.” Gottesfeld, 2020 WL 1082590, at *4 (quoting Twombly, 550 U.S. at 570).
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). “Where a document is not incorporated by reference, the court may never[the]less consider it where the complaint ‘relies heavily upon its terms and effect,' thereby rendering the document ‘integral' to the complaint.'” Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). For a document to be integral to the complaint, “the plaintiff must have (1) ‘actual notice' of the extraneous information and (2) ‘relied upon th[e] document[] in framing the complaint.'” DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 60 (S.D.N.Y. 2010) (quoting Chambers, 282 F.3d at 153).
In deciding a motion to dismiss a pro se complaint, “the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam); see Aris, 2023 WL 5003581, at *2 (noting that submissions from pro se litigants are generally “held to less stringent standards than formal pleadings drafted by lawyers”). Despite that consideration, “a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face.” Gottesfeld, 2020 WL 1082590, at *5. While the Court has an obligation “to draw the most favorable inferences” from a complaint, it “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). The Court also “need not accept allegations that are ‘contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint.'” Tsinberg v. City of New York, No. 20 Civ. 749 (PAE), 2021 WL 1146942, at *4 (S.D.N.Y. Mar. 25, 2021) (quoting Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005)).
IV.DISCUSSION
A. Motions to Dismiss, Not Motions for Summary Judgment
Defendants styled their Motions as seeking dismissal under Rules 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment under Rule 56. (ECF Nos. 105; 111). The Government Defendants did not, however, submit any statement of undisputed material facts as required by Local Civil Rule 56.1, nor did they give Mr. Kaid the notice required under Local Civil Rule 56.2 of his obligations in responding to a motion for summary judgment. See generally, Brown v. City of New York, No. 21 Civ. 4632 (PGG) (SLC), 2023 WL 2908661, at *5 (S.D.N.Y. Jan. 30, 2023) (discussing requirements of Local Civil Rules 56.1 and 56.2), adopted by, 2023 WL 2496089 (S.D.N.Y. Mar. 14, 2023). Although Esguerra did provide the notice required by Local Civil Rule 56.2, that notice applied only to her Motion. (ECF No. 115). Accordingly, the Court will not convert the Motions into motions for summary judgment and will proceed to analyze the Motions under Rules 12(b)(1) and 12(b)(6). See Hester-Bey v. Eastern Dist. Ct. Officer, No. 13 Civ. 4656 (CBA) (LB), 2014 WL 1761028, at *4 (E.D.N.Y. Apr. 9, 2014) (declining to convert motion to dismiss to motion for summary judgment where defendant failed to provide notices required by Local Civil Rules 12.1 and 56.2), adopted by, 2014 WL 1779468 (E.D.N.Y. Apr. 30, 2014); see also Irby v. N.Y. City. Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001) (explaining that, in the absence of Local Civil Rule 56.2 notice, “vacatur of the summary judgment is virtually automatic”) (per curiam); McPherson v. Coombe, 174 F.3d 276, 280-81 (2d Cir. 1999) (explaining that district court's failure “to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal”).
In any event, given the Court's findings below that Mr. Kaid has failed to state any viable claim as a matter of law, treatment of Esguerra's Motion as one for summary judgment is unnecessary. (See §§ IV.B, IV.C, infra).
B. Bivens Claims
1. Legal Standard
In Bivens, the United States Supreme Court “held that, even absent statutory authorization, it would enforce a damages remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search[es] and seizures.” Ziglar v. Abbasi, 582 U.S. 120, 130-31 (2017) (citing Bivens, 403 U.S. at 397). The Supreme Court subsequently recognized Bivens constitutional claims in two other contexts: a gender discrimination claim against a member of Congress under the Fifth Amendment Due Process Clause, see Davis v. Passman, 442 U.S. 228, 248-49 (1979), and a claim against federal prison officials for failure to provide adequate medical treatment under the Eighth Amendment Cruel and Unusual Punishment Clause. See Carlson v. Green, 446 U.S. 14, 19 (1980). “These three cases-Bivens, Davis, and Carlson-represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.” Ziglar, 582 U.S. at 131.
In recent years, the Supreme Court has “expressed a need for restraint in expanding the Bivens remedy to additional contexts, and cautioned that courts should not imply rights and remedies pursuant to Bivens as a matter of course, ‘no matter how desirable that might be as a policy matter, or how compatible with the statute [or constitutional provision].'” Rivera v. Fed. Bureau of Prisons, No. 17 Civ. 5103 (GBD) (DF), 2018 WL 11312146, at *7 (S.D.N.Y. Dec. 14, 2018) (quoting Ziglar, 582 U.S. at 133), adopted in relevant part by, 368 F.Supp.3d 741 (S.D.N.Y. Mar. 15, 2019). Given the significant retrenchment in the Supreme Court's willingness to recognize implied causes of action, “the Court has made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity.” Ziglar, 582 U.S. at 135 (quoting Iqbal, 556 U.S. at 675); see Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (urging that courts exercise “caution” before “extending Bivens remedies into any new context”).
Under this recent precedent, federal courts must now assess the “antecedent issue,” Wood v. Moss, 572 U.S. 744, 757 (2014), i.e., “whether a Bivens cause of action is available” using the “cohesive-and narrow-two-step test” set forth in Ziglar. Cohen v. United States, 640 F.Supp.3d 324, 334, 336 (S.D.N.Y. 2022). Under the Ziglar test, a court must first ask "[i]f the case is different in a meaningful way from previous Bivens cases decided by” the Supreme Court. Ziglar, 582 U.S. at 139. “[Differences that are meaningful enough to make a given context a new one” include:
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 special factors that previous Bivens cases did not consider.Id. at 139-40. Second, the court must ask if there are “‘special factors counselling hesitation in the absence of affirmative action by Congress,'” id. at 136 (quoting Carlson, 446 U.S. at 18), “in which case a court should decline to extend Bivens.” Cohen, 640 F.Supp.3d at 336.
Since Ziglar, the Supreme Court has declined to extend Bivens in two other contexts: a lawsuit by the family of a teenage Mexican citizen shot and killed by a federal border patrol agent without provocation, see Hernandez v. Mesa, 140 S.Ct. 735, 741 (2020), and a lawsuit involving a First Amendment retaliation claim and a Fourth Amendment excessive force claim. Egbert v. Boule, 596 U.S. 482, 486 (2022) (noting that “our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts”). Egbert, in fact, “provided an even narrower test than that articulated in Ziglar and Hernandez, ” Cohen, 640 F.Supp.3d at 337, reducing the inquiry to the “single question[] whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 596 U.S. at 492. Courts in this Circuit have since recognized that Egbert “made clear that, effectively, it operates as a bar to a Bivens claim in all cases except, perhaps, those involving Fourth, Fifth and Eighth Amendment claims factually indistinguishable from Bivens, Passman, or Carlson, ” and that even “claims that paralleled” those three cases “exactly could also be foreclosed.” Cohen, 640 F.Supp.3d at 337; see Egbert, 596 U.S. at 500-01 (“Even assuming the factual parallels are [] close [], Passman carries little weight because it predates our current approach to implied causes of action and diverges from the prevailing framework in three important ways”). Thus, “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances' with Bivens, Passman, or Carlson unless he also satisfies the ‘analytic framework' prescribed by the last four decades of intervening case law.” Egbert, 596 U.S. at 501 (quoting Ziglar, 582 U.S. at 139).
“Suits against a federal agency or a federal official in his or her official capacity are considered suits against the United States and are thus barred unless the United States has waived sovereign immunity.” Banks v. United States, No. 10 Civ. 6613 (GBD) (GWG), 2011 WL 4100454, at *8 (S.D.N.Y. Sept. 15, 2011), adopted by, 2011 WL 5454550 (S.D.N.Y. Nov. 9, 2011); see Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are barred under the doctrine of sovereign immunity, unless such immunity is waived”). A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed” by an act of Congress. U.S. v. Mitchell, 445 U.S. 535, 538 (1980). “The United States has not waived its immunity ‘with respect to claims that its employees have committed constitutional torts.'” Banks, 2011 WL 4100454, at *8 (quoting Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994)). Accordingly, “where a Bivens action is filed against the United States, its agencies, or its employees in their official capacities, courts lack[] jurisdiction to hear the claim and the action must be dismissed.” Banks, 2011 WL 41100454, at *8 (recommending dismissal under Rule 12(b)(1) pro se prisoner's claims against MCC officers “to the extent he intended to sue them in their official capacities”); see Hollman v. Lindsay, No. 08 Civ. 1417 (NGG), 2009 WL 3112076, at *8 (E.D.N.Y. Sept. 23, 2009) (dismissing under Rule 12(b)(1) pro se prisoner's claims against federal prison officials in their official capacities).
2. Medical Claim
Mr. Kaid alleges that, when he was a pretrial detainee “at the MCC between January and February 2017,” Defendants failed to provide him with adequate medical treatment for the injuries he sustained to his foot and ankle during the Incident. (ECF No. 132 at 5; see ECF No. 12 at 3-5).As a pretrial federal detainee, Mr. Kaid's claim arises under the Fifth Amendment to the United States Constitution. See Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (holding that pretrial detainee's inadequate medical treatment claims against federal prison officials arose under the Due Process Clause of the Fifth Amendment, not the Eighth Amendment); accord Bravo v. U.S. Marshals Serv., No. 22 Civ. 6736 (GHW), 2023 WL 4763207, at *8 (S.D.N.Y. July 26, 2023). The Court finds that Mr. Kaid's Medical Claim presents a new Bivens context in at least two respects, and that special factors counsel against expanding Bivens to recognize a new claim here.
Although Mr. Kaid alleges that R.J. also stabbed him in the “mid-lower back,” “shoved” him “down a set of steps,” and “kicked” him in the head (ECF No. 12 at 3), he does not allege that the medical treatment he received for these injuries was inadequate. (See generally id.; ECF Nos. 131-32). The Court's analysis therefore interprets his Medical Claim as predicated only on allegedly inadequate medical treatment of his foot and ankle.
a. New Bivens Context
As noted above, district courts in this Circuit have recognized that the Egbert test “operates as a bar to a Bivens claim in all cases except, perhaps, those involving Fourth, Fifth and Eighth Amendment claims factually indistinguishable from Bivens, Passman, or Carlson.” Cohen, 640 F.Supp.3d at 337. The Court finds that Mr. Kaid's Medical Claim is distinguishable from the closest analog of these three cases, Carlson, in two respects.
First, Mr. Kaid's Medical Claim arises under a different constitutional provision-the Fifth Amendment-than the plaintiff's claim in Carlson, where the Supreme Court allowed a Bivens deliberate indifference claim under the Eighth Amendment based on federal prison officials' inadequate treatment of a prisoner's asthma attack, resulting in his death. 446 U.S. at 17 n.1.As the Supreme Court recognized in Ziglar, however, a claim predicated on the Fifth Amendment presents a “different” constitutional right than a claim under the Eighth Amendment. 582 U.S. at 148 (“The constitutional right is different here, since Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth.”); see Bravo, 2023 WL 4763207, at *8 (finding that deliberate indifference claim under Fifth Amendment would be “apply[ing] Bivens in a new context” different from the one presented in Carlson) (citing Ziglar, 582 U.S. at 148); but see Mirvis v. Quay, No. 19 Civ. 2573 (LDH) (VMS), 2023 WL 5671935, at *5-6 (E.D.N.Y. Sept. 1, 2023) (acknowledging that “the Supreme Court has not explicitly recognized a Bivens remedy for deliberate indifference to serious medical needs under the Fifth Amendment,” but finding that federal pretrial detainee could assert a Fifth Amendment claim for deliberate indifference to his serious medical needs under Bivens because the distinction from the Eighth Amendment claim in Carlson was “neither meaningful nor relevant”).
Specifically, the complaint in Carlson alleged that prison officials:
being fully apprised of the gross inadequacy of medical facilities and staff at the [FCI], and of the seriousness of [the prisoner's] chronic asthmatic condition, nonetheless kept him in that facility against the advice of doctors, failed to give him competent medical attention for some eight hours after he had an asthmatic attack, administered contraindicated drugs which made his attack more severe, attempted to use a respirator known to be inoperative which further impeded his breathing, and delayed for too long a time his transfer to an outside hospital,leading to the prisoner's death. Id.
See also Stennis v. Armstrong, No. 18 Civ. 7846 (MSS), 2023 WL 1319561, at *6-7 (N.D. Ill. Jan. 31, 2023) (finding that pretrial detainee's Fifth Amendment claim for inadequate medical care “present[ed] a new Bivens context” and therefore was not cognizable); Choice v. Michalak, No. 21 Civ. 0060 (MEA), 2022 WL 4079577, at *4 (N.D. Ill. Sept. 6, 2022) (finding that pretrial detainee's Fifth Amendment claim for inadequate medical care “present[ed] a new Bivens context” different from Carlson and was thus not cognizable).
Other district court decisions within the Second Circuit suggesting that a federal inmate could bring a Bivens claim for failure to provide adequate medical treatment all pre-date the Supreme Court's constriction of the path to recognizing a Bivens claim in Egbert. See Sisk v. MCC, No. 20 Civ. 10293 (LLS), 2021 WL 412487, at *3 (S.D.N.Y. Feb. 3, 2021) (granting leave to amend and noting that “[f]ederal pretrial detainees may bring a Fifth Amendment claim for failure to provide medical treatment as a Bivens action because such a claim bears a strong resemblance to the claim in Carlson”); Geritano v. AUSA Off. for E.D.N.Y., No. 20 Civ. 781 (LLS), 2020 WL 2192559, at *4 (S.D.N.Y. May 5, 2020) (granting leave to amend and noting that “[c]ourts in this district have held that a federal pretrial detainee may bring a medical claim under the Fifth Amendment because such a claim is in the same context as an Eighth Amendment claim already recognized in Carlson”); Martinez v. D'Agata, No. 16 Civ. 44 (VB), 2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18, 2019) (analyzing federal pretrial detainee's claim for deliberate medical indifference claims as a Bivens claim under the Fifth Amendment Due Process Clause); Laurent v. Borecky, No. 17 Civ. 3300 (PKC) (LB), 2018 WL 2973386, at *5 (E.D.N.Y. June 12, 2018) (same); Morgan v. Shivers, No. 14 Civ. 7921 (GHW), 2018 WL 618451, at *7 n.4 (S.D.N.Y. Jan. 29, 2018) (same).
Second, the “severity of the alleged indifference to Mr. [Kaid's] medical needs varies substantially from that presented to the Supreme Court in Carlson.” Bravo, 2023 WL 4763207, at *8. In Carlson, prison officials had been “fully apprised” of both the “gross inadequacy” of the medical facilities at the prison as well as the nature and severity of the prisoner's asthma condition. 446 U.S. at 17 n.1. Despite that knowledge, they failed to provide him with medical care for eight hours after the asthma attack started, used defective equipment, and gave him medical treatment that worsened the attack, leading to his death. Id. While the Court acknowledges the discomfort Mr. Kaid experienced in his foot and ankle, “the Court cannot but note that his allegations of deliberate indifference to his medical care are dramatically less severe than the conduct at issue in Carlson.” Bravo, 2023 WL 4763207, at *9 (finding that pretrial detainee's allegations of fever and injuries to his spine, pelvis, and wrist were distinguishable from the injuries and medical mistreatment in Carlson). Here, Mr. Kaid was taken to the MCC emergency room immediately after the Incident; received X-rays, an ankle brace, and pain medication; and three weeks after the Incident was taken to a private hospital where he received a hard cast and crutches. (ECF Nos. 9 at 24-25, 30-31; 12 at 3-5). Mr. Kaid's allegations fail to support a plausible inference that his foot and ankle, while painful for several weeks, ever presented a life-threatening condition. (See ECF No. 9 at 33 (by April 2017, Mr. Kaid had “no complaints” of pain)). See, e.g., Hernandez v. Goord, No. 02 Civ. 1704 (DAB), 2006 WL 2109432, at *6 (S.D.N.Y. July 28, 2006) (finding that prisoner's “foot problem[,] [w]hile undoubtedly painful . . . did not make him completely dysfunctional” and did not rise “to the level of being lifethreatening” for purposes of Eighth Amendment claim); Veloz v. N.Y., 35 F.Supp.2d 305, 312 (S.D.N.Y. 1999) (finding that prisoner's painful foot condition following surgery and treatment by prison doctor was not “one of urgency that may produce death, degeneration, or extreme pain” for purposes of Eighth Amendment claim); see also Bettis v. Grijalva, No. 21 Civ. 7505 (GWG), 2023 WL 4141869, at *6 (S.D.N.Y. June 23, 2023) (finding that the “level of severity” of the prisoner's condition “as well as his eventual receipt of medical care present[ed] a context different from Carlson”); Edwards v. Gizzi, No. 20 Civ. 7371 (KMK), 2022 WL 309393, at *7 & n.6 (S.D.N.Y. Feb. 2, 2022) (finding that prisoner's allegations of inadequate treatment of painful broken arm, for which he “received prompt medical treatment” including X-rays “present[ed] a new Bivens context”).
The willingness of the court in Mirvis to recognize the federal prisoner's Fifth Amendment deliberate indifference claim was also based in part on the conclusion that his injuries from repeated sexual assaults-abdominal “numbness,” “vomiting blood,” “fractured ribs, a hole in his stomach, and a pinched nerve” for which he did not receive prompt medical treatment-were comparable to the severity of the prisoner's medical conditions in Carlson. See 2023 WL 5671935, at *4-6.
The Court recognizes the Supreme Court's guidance that “even a modest extension is still an extension.” Ziglar, 582 U.S. at 147. Because Mr. Kaid's Medical Claim arises under a different constitutional provision and the “allegations involve conduct that is substantially less severe than that at issue in Carlson, ” the Court concludes that his Medical Claim “raise[s] a new Bivens context.” Bravo, 2023 WL 4763207, at *9.
b. Special Factors
Turning to the special factors prong, the Court finds that special factors counsel hesitation against recognizing a new Bivens claim to redress Mr. Kaid's Medical Claim. First, as the Supreme Court noted in Ziglar, post-Carlson, “Congress passed the Prison Litigation Reform Act of 1995 [(the “PLRA”)], which made comprehensive changes to the way prisoner abuse claims must be brought in federal court” and evidenced “that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs.” 582 U.S. at 148 (citing 42 U.S.C. § 1997e). That the PLRA “does not provide for a standalone damages remedy against federal jailers” constitutes “legislative action suggesting that Congress does not want a damages remedy,” and is thus a “factor counseling hesitation” against recognizing a new Bivens claim. Ziglar, 582 U.S. at 148-49; see Bravo, 2023 WL 4763207, at *9 (finding that absence of damages remedy against federal prison officials in PLRA was a factor counseling against recognizing a new Bivens claim for inadequate medical treatment).
Second, “the existence of a tort remedy for deliberate indifference to medical needs under the FTCA by itself strongly counsels against the creat[ion] of a Bivens remedy.” Bettis, 2023 WL 4141869, at *7 (collecting cases holding that existence of FTCA remedy weighed against recognizing new Bivens claim); see Bravo, 2023 WL 4763207, at *9 (finding that existence of FTCA remedy was special factor counseling against recognizing Fifth Amendment Bivens claim for inadequate medical treatment). Other alternative relief available to Mr. Kaid included “the BOP administrative grievance process and habeas corpus.” Cannenier v. Skipper-Scott, No. 18 Civ. 2383 (LGS), 2019 WL 764795, at *5 (S.D.N.Y. Feb. 20, 2019). As Mr. Kaid's filings confirm, he was aware of and made partial-if deficient and incomplete-use of the BOP's administrative grievance process. (ECF Nos. 9; 14; see ECF No. 12 at 5-10). A writ of habeas corpus under 28 U.S.C. § 2241 might have been another means to challenge Defendants' decisions about his placement within MCC. See Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (noting availability of § 2241 to challenge “execution of a sentence”); accord Negron v. United States, No. 19 Civ. 5442 (PMH), 2020 WL 5634304, at *8 (S.D.N.Y. Sept. 21, 2020) (noting availability of § 2241 to challenge retaliatory prison transfers).
Finally, “special factors counsel against recognizing a Bivens remedy ‘in cases involving prison administration,'” as is the case here. Johnson v. Santiago, 624 F.Supp.3d 295, 303 (E.D.N.Y. 2022) (quoting Schulte v. Bureau of Prisons, No. 20 Civ. 2795 (PGG) (GWG), 2022 WL 1468017, at *4 (S.D.N.Y. May 10, 2022)); see Bettis, 2023 WL 4141869, at *7 (finding that special factors, including “deference to prison administration and separation of powers” weighed against recognizing Fifth Amendment Bivens claim for inadequate medical treatment). The Court agrees that “it would be inappropriate for the court to imply a remedy for damages in an area that is uniquely within the province and professional expertise of corrections officials,” Negron, 2020 WL 5634304, at *8, and finds that “the deference owed to prison administrators constitutes a third special factor weighing against recognition of a Bivens remedy.” Johnson, 624 F.Supp.3d at 303.
Accordingly, because Mr. Kaid's Medical Claim presents a new Bivens context and special factors counsel hesitation in creating a remedy in his circumstances, the Court respectfully recommends that this claim be dismissed under Rule 12(b)(1).
3. Failure to Protect Claim
Mr. Kaid's Failure to Protect Claim is based on allegations that he was given only a “symbolic screening” when he entered MCC and that Anderson failed to protect him from R.J.'s subsequent attack. (ECF No. 12 at 3). Applying the two-step Ziglar analysis, the Court first finds that this claim “arises in a new context because it is ‘meaningfully different' from the claim at issue in Carlson.” Johnson, 624 F.Supp.3d at 300 (quoting Ziglar, 582 U.S. at 139). While Carlson involved a prison official's failure to provide adequate medical care to an inmate, 446 U.S. at 16 n.1, Mr. Kaid alleges here, as in Johnson, that Anderson “failed to intervene and protect him from a spontaneous attack by a fellow inmate with a sharp object.” 624 F.Supp.3d at 300. As district courts in the Second Circuit have recognized, “‘a claim for failure to protect based on the allegation that [a prison official] was present during the attack on Plaintiff but did not help Plaintiff or intervene' presents a new Bivens context.” Id. (quoting Cannenier, 2019 WL 764795, at *5); see also Herrera v. United States, No. 20 Civ. 10206 (PKC), 2022 WL 902090, at *8 (S.D.N.Y. Mar. 27, 2022) (finding that “failure to provide adequate medical care to inmates is a substantively different context from BOP employees' failure to protect inmates from repeated sexual abuse by another BOP colleague or subordinate” such that failure to protect claim was “a ‘new context' for Bivens purposes”). As with the Medical Claim, the Court agrees with other courts in this District, that similar to the Medical Claim, “special factors [] counsel against expanding a new Bivens remedy” to encompass the alleged failure to protect an inmate from a spontaneous attack by another inmate. Cannenier, 2019 WL 764795, at *5. Accordingly, consistent with the decisions of other courts in the Second Circuit, the Court concludes that Mr. Kaid's Failure to Protect Claim does not present a cognizable Bivens claim and respectfully recommends that it be dismissed under Rule 12(b)(1). See Herrera, 2022 WL 902090, at *8 (declining to extend Bivens to failure to protect claim); Cannenier, 2019 WL 764795, at *5 (same); see also Rivera, 2018 WL 11312146, at *6 (recommending dismissal of non-cognizable Bivens claims under Rule 12(b)(1)).
4. Interference Claim
Mr. Kaid seeks to assert a First Amendment Bivens claim on the theory that Defendants retaliated against him by interfering with his legal and administrative remedies concerning his treatment at the MCC. (ECF Nos. 12 at 5-10; 131 at 15-49; see § II.A.2, supra). See Rogers, 2022 WL 3716446, at *4 (interpreting pro se prisoner's allegations that prison officials threatened him after he filed administrative grievances as First Amendment retaliation claim). In Egbert, however, the Supreme Court categorically held that “there is no Bivens action for First Amendment retaliation.” 596 U.S. at 499; see also Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“[w]e have never held that Bivens extends to First Amendment claims”). As in Cohen, “[t]hat holding squarely forecloses [Mr. Kaid's] First Amendment retaliation claim here.” 640 F.Supp.3d at 337; see Negron, 2020 WL 5634304, at *7 (holding that First Amendment retaliation claim was not cognizable under Bivens “[i]n light of this clear Supreme Court precedent”). As with the Medical and Failure to Protect Claims, the Court also finds that special factors discussed above “counsel hesitation” to extending a Bivens remedy to Mr. Kaid's Interference Claim. See Bettis, 2023 WL 4141869, at *7 (collecting cases where “deference to prison administration and separation of powers, the possible alternative pathways of the BOP's Administrative Remedy Program, and the passage of the PLRA [were] special factors [that] counselled] hesitation in extending a Bivens remedy”). Accordingly, the Court respectfully recommends that Mr. Kaid's Interference Claim be dismissed under Rule 12(b)(1).
5. Additional Arguments for Dismissal
Defendants raise additional arguments for dismissal of Mr. Kaid's Bivens claims, including: (1) even if his Medical Claim were cognizable under Bivens, he has failed to plausibly allege that he had a sufficiently serious medical condition as to which Defendants recklessly failed to act (ECF No. 106 at 18-21); (2) Thomas' status as a Public Health Service (“PHS”) officer (ECF No. 108 ¶¶ 3-4) provides absolute immunity (ECF No. 106 at 22); (3) the Government Defendants have qualified immunity (ECF No. 106 at 22-23);(4) failure to exhaust administrative remedies (ECF Nos. 106 at 24-30; 113 at 18-22); (5) untimeliness of the post February 3, 2017 allegations (ECF Nos. 106 at 30-31; 113 at 22-23); and (6) Esguerra's status as an independent contractor precludes any Bivens claim against her (ECF Nos. 113 at 12; 114 ¶ 2; see ECF No. 12 at 1 (describing Esguerra as a “contract radiology technician”)). Because, however, Mr. Kaid's Bivens claims must all be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1), “the Court need not reach Defendants' additional arguments as to why those claims are defective.” Rivera, 2018 WL 11312146, at *6.
See, e.g., Vasquez v. City of New York, No. 21 Civ. 1573 (PAE) (VF), 2022 WL 2704763, at *7 (S.D.N.Y. June 17, 2022) (collecting cases holding that foot pain, even where “serious,” was insufficient to establish a sufficiently serious injury for purposes of a deliberate indifference claim under Eighth Amendment), adopted by, 2022 WL 2704469 (S.D.N.Y. July 11, 2022) and 2022 WL 17371056 (S.D.N.Y. Dec. 2, 2022); Hamilton v. Westchester Dep't of Corr., No. 19 Civ. 3838 (KMK), 2020 WL 4271709, at *7 (S.D.N.Y. July 23, 2020) (“[i]t is well-established that mere disagreement over the proper treatment does not create a constitutional claim”).
See Hui v. Castaneda, 559 U.S. 799, 806 (2010) (explaining that PHS officers have “absolute immunity” from “all actions” that “aris[e] out of the performance of medical or related functions within the scope of their employment”); 42 U.S.C. § 233(a).
See Dixon v. Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (explaining that where “the complaint does not allege a cognizable federal claim, the defendant is entitled to have his qualified-immunity motion granted promptly as a matter of law”) (quoting Munafo v. MTA, 285 F.3d 201, 211 (2d Cir. 2002)).
C. FTCA Claims
As noted above, for the first time in the Opposition, Mr. Kaid indicated that he is also seeking to hold Defendants liable under the FTCA. (ECF No. 132 at 5). In recognition of Mr. Kaid's pro se status, the Court analyzes whether any FTCA claim is cognizable. See Davila v. Lang, 343 F.Supp.3d 254, 267 (S.D.N.Y. 2018) (“[a] pro se plaintiff may not raise ‘entirely new' causes of action for the first time in his opposition papers, but the Court may consider new claims appearing for the first time in briefing if ‘the claims could have been asserted based on the facts alleged in the complaint.'”) (quoting Vlad-Berindan v. MTA N.Y.C. Transit, No. 14 Civ. 675 (RJS), 2014 WL 6982929, at *6 (S.D.N.Y. Oct. 7, 2014), adopted by, 2014 WL 6982929 (S.D.N.Y. Dec. 10, 2014)); Lang v. N.Y.C. Health & Hosp. Corp., No. 12 Civ. 5523 (WHP), 2013 WL 4774751, at *4 (S.D.N.Y. Sept. 5, 2013) (considering new claims raised in pro se plaintiff's opposition papers that “simply articulat[ed] additional claims that his original complaint could have been construed to allege”).
1. Legal Standard
The “United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” Mitchell, 445 U.S. at 538. The United States government “cannot be sued without its consent, and ‘the existence of consent is a prerequisite for jurisdiction.'” Fisko v. U.S. GSA, 395 F.Supp.2d 57, 61 (S.D.N.Y. 2005) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). Congress may waive “sovereign immunity through clear and unequivocal statutory language,” but “waivers of sovereign immunity and their conditions must be strictly applied against the claimant.” Id. at 61-62. Where “conditions under which the Government has agreed to waive [its] immunity have not been met, federal subject matter jurisdiction does not exist over the plaintiff's claims.” Id. at 62; see United States v. Sherwood, 312 U.S. 584, 586 (1941) (explaining that the statutory terms under which the United States has consented to be sued “define that court's jurisdiction to entertain the suit”); Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991) (explaining that “compliance with the conditions under which the government has agreed to waive sovereign immunity is necessary for subject matter jurisdiction to exist”).
The FTCA “constitutes a limited waiver by the United States of its sovereign immunity and allows for a tort suit against the United States under specified circumstances.” Liranzo v. United States, 690 F.3d 78, 85 (2d Cir. 2012); accord Fisko, 395 F.Supp.2d at 62. The FTCA waives the United States' sovereign immunity with respect to:
claims 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). “The FTCA provides the exclusive remedy for damages resulting from such claims.” Davila, 343 F.Supp.3d at 270; see 28 U.S.C. § 2679(b)(1).
The FTCA also “immunizes federal employees from all liability for any negligent or wrongful acts or other common law tort claims committed while acting within the scope of their employment.” Davila, 343 F.Supp.3d at 270 (citing 28 U.S.C. § 2679(b)(1)). “Employees” under the FTCA are “officers or employees of any federal agency . . . and persons acting on behalf of a federal agency in an official capacity,” Fisko, 395 F.Supp.3d 62, but do not include “any contractor with the United States.” 28 U.S.C. § 2671. The FTCA therefore does not waive sovereign immunity for claims against an independent contractor, and such a claim “must be dismissed for lack of subject matter jurisdiction.” Fisko, 395 F.Supp.2d at 62; see United States v. Orleans, 425 U.S. 807, 814 (1976) (explaining that, because “the United States can be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions, including the independent contractor exception, to such waiver”); Logue v. United States, 412 U.S. 521, 528 (1973) (holding that employees of county jail that housed federal prisoners pursuant to contract with BOP were not federal employees against whom FTCA claim could arise).
“The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court. This requirement is jurisdictional and cannot be waived.” Celestine v. Mt. Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)); see United States v. Kubrick, 444 U.S. 111, 117-18 (1979) (explaining that statute of limitations in § 2401(b) is strictly construed because the FTCA “waives the immunity of the United States”); Robinson, 21 F.3d at 510 (affirming dismissal of FTCA claims for lack of subject matter jurisdiction where plaintiff “failed to first present his claim to the appropriate agency”); Gamora v. Borough of Prisons, No. 22 Civ. 7802 (LTS), 2022 WL 4357921, at *4 (S.D.N.Y. Sept. 19, 2022) (explaining that FTCA's “exhaustion requirement is jurisdictional and cannot be waived”). “Before bringing a claim against the United States for money damages for injury or loss of property caused by an employee or agent of the United States acting within the scope of his or her employment, the plaintiff must first present the claim to the appropriate federal agency, and the agency must either deny the claim or six months need to have elapsed since the plaintiff submitted the claim.” Davila, 343 F.Supp.3d at 272 (citing 28 U.S.C. § 2675(a)). “[B]ecause the FTCA constitutes a waiver of sovereign immunity, the procedures set forth in Section 2675 must be adhered to strictly.” Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983). A “plaintiff has the burden to plead and prove compliance with the exhaustion requirement.” Accolla v. U.S. Gov't, 636 F.Supp.2d 304, 307 (S.D.N.Y. 2009). The exhaustion requirement “applies equally to litigants with counsel and to those proceeding pro se.” Adeleke v. United States, 355 F.3d 144, 153 (2d Cir. 2004).
For a federal prisoner or pretrial detainee to exhaust a claim involving prison conditions, he must file the requisite claim on Form SF-95 with the BOP's regional office within two years of the accrual of the claim, see 28 U.S.C. §§ 2401(b), 2675(a), and, if his claim is denied, appeal to the BOP General Counsel's Office. See Heffley v. FCI Otisville, No. 18 Civ. 1630 (LLS), 2018 WL 10228398, at *5 & n.5 (S.D.N.Y. Oct. 1, 2018) (citing 28 C.F.R. §§ 543.31, 543.32); Gay v. Terrell, No. 12 Civ. 2925 (CBA) (VMS), 2013 WL 5437045, at *26 (E.D.N.Y. Sept. 27, 2013) (“[f]or federal inmates, the presentment requirement is accomplished by filing a Form SF-95 with the BOP Regional office for the facility where the claim arose”); Accolla, 636 F.Supp.2d at 307 (explaining that “[c]laims against the United States are forever barred unless they are presented in writing to an appropriate federal agency within two years after the claim accrued”) (citing 28 U.S.C. § 2401(b)).The Form SF-95 “must provide enough information to permit the agency to conduct an investigation and to estimate the claim's worth.” Romulus v. United States., 160 F.3d 131, 132 (2d Cir. 1998) (per curiam). “If the agency denies the claim within six months after it is filed, the claimant must then initiate an FTCA action in a district court (or seek reconsideration from the agency) within six months of the notice of denial of the claim.” Cuello v. United States, No. 11 Civ. 2216 (KAM), 2013 WL 1338839, at *7 (E.D.N.Y. Mar. 29, 2013). “If the claimant fails to timely comply with the FTCA's exhaustion requirement and timely commence an action in federal court, the claim is forever barred.” Id.
Section 2401(b) provides that “[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.”
The two-year FTCA statute of limitations is subject to equitable tolling “under certain limited circumstances.” Cuello, 2013 WL 1338839, at *8 (citing Valdez v. United States., 518 F.3d 173, 182-83 (2d Cir. 2008)). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In FTCA actions, courts apply “the doctrine of equitable tolling in rare and exceptional circumstances, where [there exist] extraordinary circumstances [that] prevented a party from timely performing a required act and that party acted with reasonable diligence throughout the period he [sought] to toll.” Czernicki v. U.S. DOJ, 137 Fed.Appx. 409, 410 (2d Cir. 2005) (summary order). The Second Circuit has instructed that district courts may apply equitable tolling when the statute of limitations has expired but “the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or [ ] the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.” Id. at 410-11 (quoting Irwin v. Dep't of Veterans Affs., 489 U.S. 89, 96 (1990)). A claimant's “ignorance of the initiation procedure or statute of limitations, however, has been found insufficient to warrant equitable tolling of the FTCA, even where . . . the claimant is incarcerated, lacks legal training, and asserts that the denial letter was confusing.” Cuello, 2013 WL 1338839, at *8 (collecting cases denying equitable tolling).
2. Application
Here, Mr. Kaid had until February 3, 2019-two years after the last date on which Defendants allegedly failed to provide him with adequate medical treatment for the injuries he sustained in the January 7, 2017 Incident-to submit his SF-95s to the BOP Regional Office. See Pryce v. United States, No. 21 Civ. 1698 (KPF), 2022 WL 3155842, at *10 n.9 (S.D.N.Y. Aug. 8, 2022) (“[t]ypically, FTCA medical malpractice claims accrue ‘at the time of injury'”) (quoting A.Q.C. v. United States., 656 F.3d 135, 139 (2d Cir. 2011)).
As an initial matter, neither Mr. Kaid's Amended Complaint nor his Declarations include any allegations about whether and when he submitted a claim on Form SF-95, which is what he “need[ed] to file . . . rather than form BP-8 to exhaust for purposes of the FTCA.” Treasure v. United States, No. 17 Civ. 971 (RRM) (PK), 2019 WL 1243877, at *3 (E.D.N.Y. Mar. 18, 2019); see Heffley, 2018 WL 10228398, at *5 n.6 (noting that where federal prisoner submitted BOP administrative complaints but did not file claim with BOP regional office or appeal to the General Counsel's office, he failed to satisfy FTCA exhaustion requirement); Jiminez v. United States, No. 11 Civ. 4593 (RJS), 2013 WL 1455267, at *5 (S.D.N.Y. Mar. 25, 2013) (finding that prisoner's submission of BOP administrative complaint forms did not satisfy FTCA exhaustion requirements); Fiore v. Medina, No. 11 Civ. 2264 (RJS), 2012 WL 4767143, at *7 n.5 (S.D.N.Y. Sept. 27, 2012) (explaining that prisoner's submission of BOP administrative complaint forms “do[es] not establish exhaustion under the FTCA; rather they constitute BOP Administrative Remedy Program forms used to exhaust remedies for Bivens claims, pursuant to the PLRA”); see also Marie v. United States, No. 19 Civ. 6854 (VEC) (DF), 2020 WL 8669752, at *11 (S.D.N.Y. Aug. 12, 2020) (distinguishing BOP Administrative Remedy Program requirements from FTCA exhaustion requirements), adopted by, 2020 WL 5441073 (S.D.N.Y. Sept. 9, 2020); Owusu v. Fed. Bureau of Prisons, No. 02 Civ. 915 (NRB), 2003 WL 68031, at *2 (S.D.N.Y. Jan. 7, 2003) ("[t]he available administrative remedies for a Bivens claim[] consist of a four-step set of procedures set forth in the BOP's Administrative Remedy Program, 28 C.F.R. § 542 .... The FTCA's administrative review requirements, on the other hand, merely require an inmate to file his or her claim with the Regional Office and appeal to the General Counsel's office”). Mr. Kaid's failure to allege affirmatively in the Complaint and Amended Complaint that he exhausted his FTCA claims before the BOP requires dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. See Bastien v. Samuels, No. 14 Civ. 1561 (JFB) (AKT), 2015 WL 5008837, at *5 (E.D.N.Y. Aug. 21, 2015) (dismissing FTCA claims where complaint was "entirely devoid of any allegations that he presented his claims to the appropriate federal agency within two years”); Fiore, 2012 WL 4767143, at *7-8 (dismissing FTCA claims where plaintiff's conclusory allegation that he "completed the only available remedies” under the FTCA "failed to meet his burden of demonstrating administrative exhaustion”); see also Marie, 2020 WL 8669752, at *9 (noting that "a plaintiff asserting an FTCA claim not only has the burden to prove exhaustion, but also to plead it affirmatively in his complaint”).
Nonetheless, the Government Defendants have submitted-and the Court properly considers in evaluating subject matter jurisdiction under Rule 12(b)(1), see APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) and Guthrie v. U.S. Fed. Bureau of Prisons, No. 09 Civ. 990 (LAP), 2010 WL 2836155, at *4 n.4 (S.D.N.Y. July 7, 2010) (considering SF-95 form omitted from the complaint but submitted by defendant in connection with Rule 12(b)(1) motion), aff'd, 421 Fed.Appx. 120 (2d Cir. 2011) (summary order)-Mr. Kaid's SF-95s, which he did not submit to the BOP's Regional Office until December 2019, more than two and one-half years after he was injured in the Incident and allegedly received inadequate medical treatment at the MCC in January and February 2017. (ECF No. 109-3). Furthermore, he never presented to the BOP Regional Office the Interference Claim, the two-year statute of limitations for which has long expired. See Marie, 2020 WL 8669752, at *13-15 (finding that FTCA claims that plaintiff failed to include in administrative tort claims he submitted to BOP were unexhausted, untimely, and subject to dismissal with prejudice). Mr. Kaid's FTCA claims are therefore untimely-and thus unexhausted-absent equitable tolling.
Indeed, it is doubtful that Mr. Kaid's Interference Claim, which is based on allegations that Defendants retaliated against him for using the grievance process (see ECF No. 12), is even cognizable under the FTCA. See Cohen, 640 F.Supp.3d at 344 (finding that First Amendment retaliation claim was “not cognizable under the FTCA and must be dismissed”); see generally Liranzo, 690 F.3d at 85 (explaining that FTCA's waiver of sovereign immunity “extends only to claims for which a private analogue exists-that is, the waiver extends only to claims that could be brought against a ‘private individual under like circumstances'”) (quoting 28 U.S.C. § 2674).
In support of his request for equitable tolling, Mr. Kaid asserts in his Opposition that “instead of providing an SF-95 Form,” Defendants “misguided” him, pointing to Defendant Georgy's note that he could file a tort claim “via TRULINCS.” (ECF No. 132 at 13-14). He also claims that Defendants “continued the pattern of concealing the cause of [the] injury from [him]” by failing to investigate, which prevented him from “understanding the facts, nature, and cause of his injuries.” (Id. at 14). Mr. Kaid also argues that his transfer out of BOP custody and into state custody from July 26, 2018 until April 8, 2019 constitutes an extraordinary circumstance that prevented him from timely submitting the SF-95s and warrants equitable tolling. (Id. at 2224).
Although Mr. Kaid filed this action within six months of the Denial Letter (ECF No. 9 at 77), he did not submit the SF-95s to the BOP Regional Office until December 2019, more than two years after February 3, 2017, the latest date on which his Medical and Failure to Protect Claims accrued. (ECF No. 109-3). And he never submitted the Interference Claim to the BOP. (See id.) While the Court is sympathetic to Mr. Kaid's pro se status in his efforts to navigate the FTCA's procedural requirements, “the court is constrained by the applicable law to find that [his] allegations have not established grounds for equitable tolling.” Cuello, 2013 WL 1338839, at *9. For four reasons, his submissions “fall short of establishing the kind of ‘extraordinary circumstances' required in the Second Circuit to toll the statutory period to file an FTCA claim.” Cuello, 2013 WL 1338839, at *9 (quoting Czernicki, 137 Fed.Appx. at 410).
First, as noted above, MCC officials notified Mr. Kaid twice, on September 29, 2017 and October 10, 2017, of his ability to file a tort claim with the BOP's Regional Office. (ECF Nos. 9 at 50, 57; 109-1 at 5). That Defendant Georgy had previously, and incorrectly, told him to file the tort claim through TRULINCS, rather than with the BOP's Regional Office, is insufficient to warrant equitable tolling because Mr. Kaid was later twice given the correct location to which to send the SF-95s, but waited more than two years to do so. See Palmer-Williams v. United States, No. 14 Civ. 9260 (CS), 2016 WL 676465, at *9 (S.D.N.Y. Feb. 18, 2016) (finding that equitable tolling was not warranted where “it was not Defendant's misleading letter, but rather Plaintiff's inaction, that hindered her ability to exercise her rights”), aff'd, 675 Fed.Appx. 70 (2d Cir. 2017) (summary order); Dockery v. Tucker, No. 97 Civ. 3584 (ARR), 2006 WL 5893295, at *7 n. 16 (E.D.N.Y. Sept. 6, 2006) (finding insufficient to warrant equitable tolling plaintiff's allegation that federal officer provided “inadequate instructions” regarding administrative remedies), adopted in relevant part by, 2008 WL 2673307 (E.D.N.Y. June 26, 2008); Bakowski v. Kurimai, No. 98 Civ. 2287 (DJS), 2000 WL 565230, at *6 (D. Conn. Mar. 20, 2000) (finding that “plaintiff's pro se status and possible confusion over the different avenues of relief that may have been available to him do not provide a basis for equitable tolling”), aff'd, 387 Fed.Appx. 10 (2d Cir. 2003) (summary order); see also Hollman v. Bartlett, No. 08 Civ. 1417 (NGG) (ALC), 2011 WL 4382191, at *6-7 (E.D.N.Y. Aug. 26, 2011) (finding that pro se plaintiff's argument that “while he was incarcerated, he was unaware of the 28 U.S.C. § 2401(b) requirements and that no one informed him about the proper procedures” was “insufficient to toll the statute of limitations”), adopted sub nom by, Hollman v. Lindsay, No. 08 Civ. 1417 (NGG) (ALC), 2011 WL 4382359 (E.D.N.Y. Sept. 20, 2011).
Second, as a federal prisoner serving his sentence on a federal conviction at a facility run by the BOP (see ECF No. 2 ¶ 3 (Mr. Kaid alleging that he was “a prisoner of the Federal Bureau of Prisons”)), Mr. Kaid cannot plausibly allege that he “was unaware his intended defendants were employees covered by the FTCA.” Cuello, 2013 WL 1338839, at *9; see J.D. v. United States, No. 10 Civ. 4296 (DLC), 2011 WL 292010, at *11 (S.D.N.Y. Jan. 28, 2011) (holding that plaintiffs' claim of “lack of awareness about the relationship between the [hospital] and the federal government as a special circumstance [was] further undermined by the readily available information on this subject”).
Third, even if being in state custody rendered the Form SF-95 unavailable to him between July 2018 and April 2019, Mr. Kaid provides no justification for his failure to request, complete, and file the SF-95s during the approximately nine months between late September and early October 2017-when he was first notified of his right to file a tort claim with the BOP Regional Office-and July 2018, when he was transferred to state custody. Mr. Kaid admits that he was not in the SHU for significant portions of that nine-month period. (ECF No. 131 at 40). In any event, even when he was in the SHU, he filed at least three administrative grievances, undermining any claim that he was unable to request and file the necessary Forms SF-95. (Compare ECF No. 109-1 at 1 (listing grievances filed on August 11, 2017, August 25, 2017, and April 13, 2018) with ECF No. 131 at 40 (showing that Mr. Kaid was in SHU on those dates)). By his own admissions, Mr. Kaid had months to request and file an SF-95 with the BOP Regional Office but did not do so, and thus is not entitled to equitable tolling. See Lipscomb v. United States, No. 16 Civ. 7963 (NSR), 2017 WL 3835693, at *2 (S.D.N.Y. Aug. 31, 2017) (denying equitable tolling where prisoner failed to “timely present his [FTCA] claim against the BOP” at the same time he was timely filing other actions asserting Bivens claims); see also Indelicato v. Suarez, 207 F.Supp.2d 216, 219 (S.D.N.Y. 2002) (finding that prisoner failed to exhaust Bivens administrative remedies when he failed to “pursue his administrative remedies in the seventeen days he had remaining after [a prison official] denied him the form”). In any event, “[d]enial of forms [] does not itself constitute denial of remedies.” Id.
Finally, Mr. Kaid has not shown that any bona fide legal disability prevented him from submitting the SF-95s to the BOP Regional Office before February 3, 2017. See Hollman, 2011 WL 4382191, at *6 (rejecting argument that plaintiff's incarceration was a legal disability that excused compliance with the statute of limitations, noting that “[m]any pro se inmates have trouble complying with the law, but they are still[] required to follow the administrative procedures”); cf. Genao v. United States, No. 08 Civ. 878 (NG) (SMG), 2010 WL 3328017, at *3 (E.D.N.Y. Aug. 19, 2010) (finding equitable tolling was warranted where prisoner's executrix was not appointed until after two-year limitations period had expired and executrix had “diligently prosecuted th[e] case from its inception”).
The Court is mindful of the Second Circuit's instruction that the equitable tolling standard is “a tough one” and applies only in “extreme” situations. Torres v. Barnhart, 417 F.3d 276, 283 (2d Cir. 2005). The Court also recognizes that it “lacks authority to ignore the FTCA's strict jurisdictional requirement.” Fiore, 2012 WL 4767143, at *7. Here, Mr. Kaid, despite his status as a pro se incarcerated inmate, filed over a period of several years dozens of administrative complaints concerning the injuries he sustained in the Incident, showing an understanding of his injuries, his rights, and the remedies available to redress them. This record thus does not demonstrate the rare, extraordinary circumstances in which equitable tolling is warranted. Accordingly, because Mr. Kaid has not exhausted his FTCA claims, the Court respectfully recommends that those claims be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1).
Although Mr. Kaid did not name the United States-which is the only proper defendant for an FTCA claim, see 28 U.S.C. § 2679(a)-as a Defendant, had he otherwise exhausted his FTCA claims, the Court could have properly substituted the United States as a party defendant in place of the Government Defendants. See Robinson, 21 F.3d at 509. No FTCA claim is cognizable, however, against Esguerra, who was an independent contractor. See Fisko, 395 F.Supp.2d at 63-64 (dismissing FTCA against independent contractor for lack of federal subject matter jurisdiction).
D. Leave to Amend
“District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile.” Heffley, 2018 WL 10228398, at *5; see Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011) (“[w]here a proposed amendment would be futile, leave to amend need not be given”). Here, any amendment of Mr. Kaid's claims would not be productive. As discussed at length above, none of his Bivens claims are cognizable, and his failure to exhaust his FTCA claims, which are now time-barred, deprives the Court of subject matter jurisdiction. Because any amendment of Mr. Kaid's claims would be futile, the Court respectfully recommends that leave to amend be denied and the Amended Complaint be dismissed with prejudice.
V. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that the Motions (ECF Nos. 105; 111), be GRANTED, leave to amend be DENIED, and the Amended Complaint be DISMISSED WITH PREJUDICE.
By January 26, 2024, Defendants shall serve a copy of this Report and Recommendation on Mr. Kaid and file proof of service on the docket.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any request for an extension of time for filing objections must be addressed to Judge Rochon.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Kaid does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Defendants' counsel. See Local Civ. R. 7.2.