Gottesfeld v. Anderson
| Decision Date | 06 March 2020 |
| Docket Number | 18 Civ. 10836 (PGG) |
| Parties | MARTIN S. GOTTESFELD, Plaintiff, v. ACTING DEPUTY DIRECTOR DAVID ANDERSON, WARDEN ESKER L. TATUM, MEDICAL DIRECTOR ANTHONY BUSSONICH, and ACTING DIRECTOR HUGH J. HURWITZ, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Pro se Plaintiff Martin Gottesfeld filed this action on November 19, 2018, alleging that he was improperly held in the Special Housing Unit of the Metropolitan Correctional Center ("MCC") between November 2016 and February 2017. (Cmplt. (Dkt. No. 2) at 4 & ¶¶ 4, 6, 8)1 The Complaint names as defendants Hugh Hurwitz, the Acting Director of the Federal Bureau of Prisons; David Anderson, the former Acting Deputy Director of the U.S. Marshals Service; Esker Tatum, the former warden of the MCC; and Anthony Bussonich, the MCC's former medical director. (Id. at 1, 3)
Gottesfeld asserts constitutional claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) and, when read liberally, tort claims under the Federal Tort Claims Act ("FTCA"). The Complaint also asserts claims under the New York State Constitution.
Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and under Rule 12(b)(6) for failure to state a claim, arguing that Gottesfeld's Bivens and FTCA claims should be dismissed for failure to exhaust administrative remedies.2 (Def. Br. (Dkt. No. 52)) Defendants further argue that all of Gottesfeld's claims fail on their merits, and should be dismissed for failure to state a claim under Rule 12(b)(6).
For reasons discussed below, the Court converts Defendants' motion to dismiss for failure to exhaust administrative remedies into a motion for summary judgment, and grants that motion as to Plaintiff's Bivens and FTCA claims. The Court construes Gottesfeld's New York State constitutional claims as arising under Bivens or the FTCA and grants Defendants summary judgment on those claims for the same reason. This Court further concludes that Plaintiff's Bivens claims - and any claim under the False Claims Act - must, in any event, be dismissed for failure to state a claim under Rule 12(b)(6).
On August 1, 2018, in the District of Massachusetts, Gottesfeld was convicted of conspiracy to damage a protected computer, in violation of 18 U.S.C. § 371, and damaging a protected computer, in violation of 18 U.S.C. § 1030(a)(5)(A). He was sentenced to 121 months'imprisonment. See United States v. Gottesfeld, No. 16 Cr. 10305 (NMG) (D. Mass.), Dkt. Nos. 301, 389 (Verdict and Judgment).
Between November 14, 2016 and February 4, 2017, Gottesfeld was held in pretrial detention at the Metropolitan Correctional Center ("MCC"), a Federal Bureau of Prisons ("BOP") facility in Manhattan. (Cmplt. (Dkt. No. 2) at 4 & ¶ 1) At the MCC, Gottesfeld engaged in a hunger strike. (Id. ¶ 1) As a result of his hunger strike, MCC personnel placed him in solitary confinement in the Special Housing Unit ("SHU"), where he remained throughout his time at the MCC. (Id. at 4 & ¶¶ 2, 8)
Gottesfeld complains that his placement in the SHU was improper, that he "never received written notice of the reason(s) for his placement" there, and that he was given no hearing prior to being placed in the SHU. (Id. ¶¶ 6-7) While in the SHU, Gottesfeld was subjected to "conditions that would shock the conscience of the average objectively reasonable member of the public." (Id. ¶ 9) SHU inmates experienced a "rodent and [cockroach] infestation problem" (id. ¶ 10-12), a temporary lapse in running water (id. ¶ 13), and cold temperatures resulting from "insufficient insulation." (Id. ¶ 14) SHU inmates also had "fewer opportunities for in-person visits with family members and . . . fewer opportunities for attorney visits" due to a lack of visiting rooms. (Id. ¶ 4)
On November 21, 2016, the Huffington Post published an open letter from Gottesfeld to then-U.S. Attorney General Loretta Lynch and U.S. Department of Justice Inspector General Michael Horowitz, in which Gottesfeld complained about the conditions of his confinement. (Id. ¶ 15) Agents from the Inspector General's Office later interviewed Gottesfeld, and he told the agents about the cold temperatures inside the MCC. (Id.) In late 2016, Gottesfeld received "thermal underwear," but the underwear did not cover his "face, feet,or hands." (Id. ¶ 14) "[L]eaking water [was] pooled on the floor [of Gottesfeld's cell] and algae [grew] in the toilet." (Id. ¶ 16) In an email to the Huffington Post, the "MCC acknowledged the water leak." (Id.) According to Gottesfeld, he faced a "heightened risk of infection" and "emotional distress" from these conditions. (Id.)
Gottesfeld also complains that he "was repeatedly threatened by MCC's medical staff, in particular by Medical Director Anthony Bussonich, with the . . . practice of force-feeding if he did not stop his . . . hunger strike." (Id. ¶ 17) Gottesfeld was also "denied the ability to send sealed media mail . . . to Rolling Stone" for an article about Gottesfeld's case. (Id. ¶ 18) Gottesfeld contends that his "sealed media mail to a reporter for Wired Magazine arrived with signs of tampering," and that "[Warden] Tatum . . . personally denied [Gottesfeld]" the right to be "interviewed by multiple media outlets [that] requested access to him." (Id. ¶ 20) According to Gottesfeld, correspondence "responding to other media inquiries either wasn't sent out from the facility or arrived without having been sealed by prison staff." (Id. ¶ 21)
The Complaint was filed on November 19, 2018, and asserts claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Cmplt. (Dkt. No. 2) ¶ 23)3 Gottesfeld alleges violations of his (1) Fifth Amendment due process rights; (2) right to counsel under the Sixth Amendment; (3) First Amendment free speech rights; (4) right to protection from cruel and unusual punishment under the Eighth Amendment;4and (5) rights under the New York State Constitution (Cmplt. (Dkt. No. 2) at 14 & ¶¶ 8, 9, 23-24) Read liberally, the Complaint could be construed as also asserting claims under the Federal Tort Claims Act (Def. Br. (Dkt. No. 52) at 9-10) In his opposition brief, Gottesfeld contends that his allegations may also warrant relief under the False Claims Act. (Pltf. Opp. (Dkt. No. 101-3) at 4) The Complaint seeks injunctive relief and damages.5 (Cmplt. (Dkt. No. 2) at 14 & ¶ 25)
On May 16, 2019, Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Def. Br. (Dkt. No. 52)) In the alternative, Defendants seek summary judgment under Fed. R. Civ. P. 56. (Id.)6On November 27, 2019, after the Court had granted Gottesfeld's numerous requests for extensions of time (Dkt. Nos. 58, 62, 73, 91), he filed an opposition brief. (Pltf. Opp. (Dkt. No. 101)) Defendants filed their reply on December 11, 2019.7 (Def. Reply (Dkt. No. 111))
"[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit ([i.e.,] subject-matterjurisdiction). . . ." Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Where subject matter jurisdiction is challenged, a plaintiff "bear[s] the burden of 'showing by a preponderance of the evidence that subject matter jurisdiction exists.'" APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (quoting Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)).
In resolving a Rule 12(b)(1) motion to dismiss, a court "must accept as true all material factual allegations in the complaint, but [is] not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but . . . may not rely on conclusory or hearsay statements contained in the affidavits." Id. Courts may also "consider 'matters of which judicial notice may be taken.'" Greenblatt v. Gluck, 03 Civ. 597 (RWS), 2003 WL 1344953, at *1 n.1 (S.D.N.Y. Mar. 19, 2003) (quoting Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993)).
For claims to survive a Rule 12(b)(6) motion to dismiss, 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)). In other words, the complaint must allege "'enough facts to state a claim to relief that is plausible on its face.'" Starr v. Sony BMG Music Entm't, 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 reasonableinference 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." Id. Moreover, a court will give "no effect to legal conclusions couched as factual allegations." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 555). 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 [...
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