Irizarry v. Manhattan Corr. Ctr., 21-CV-5170 (LTS)
| Decision Date | 17 August 2021 |
| Docket Number | 21-CV-5170 (LTS) |
| Parties | JORGE IRIZARRY, Plaintiff, v. MANHATTAN CORRECTIONAL CENTER; MARTI-JINCON VITALE, Former Warden, CHARISMA EDGE, current AW; ROBERT HAZLEWOOD, former Warden; N. DIAYE; JOHN DOE, former warden 2019-2020, Defendants. |
| Court | U.S. District Court — Southern District of New York |
ORDER TO AMEND
Plaintiff who is currently detained at the Metropolitan Correctional Center (MCC), brings this action pro se, alleging that Defendants violated his constitutional rights. He sues MCC its current acting warden, and three former wardens. By order dated July 12, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP).[1] For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the court lacks subject matter jurisdiction. See Fed.R.Civ.P 12(h)(3).
Plaintiff's complaint contains the following allegations. Plaintiff has been at MCC since March 2019 and has been “neglected medical attention many times.” (ECF 1 at 4.) Before Plaintiff was incarcerated, he suffered “an eye injury that requires surgery” (id.), which has not yet taken place. Plaintiff also suffers from post-traumatic stress disorder and anxiety for which he takes medication but he has been taken “on & off of [his] medications whenever they want to” do so.[2] Plaintiff “put in numerous ‘cop outs' to medical + even to higher executives, which have either been ignored, unresponsive and even deleted.”[3] (Id.)
Then, in February 2020, “[t]he building went on lockdown and none of the inmates knew why.” (Id.) During this period, inmates were denied communication with their families, locked in their cells without showers or recreation for 80 hours at a time, and “for more than a month” received cold food trays. (Id.) Plaintiff eventually learned that an inmate had found a gun in the facility. After the gun was found, the administration “brought a special team of officers that came in and used excessive force on inmates that didn't have any wrongful acts.” (Id. at 5.) This left Plaintiff “mentally disturbed” and he wakes up in the night “anytime [he] hear[s] footsteps or keys.”[4] (Id.)
Plaintiff brought these concerns to the attention of his attorney, [5] and eventually the Federal Defenders initiated litigation about conditions at MCC.[6] Since making this report to the Federal Defenders, Plaintiff has “been treated unfairly.” (Id. at 7.) Plaintiff was “removed from multiple cells, ” his mail is “always being tampered with, ” his family has received envelopes from him with “no mail inside, ” his food “smells funny at times, ” and he has to “beg for medical attention.” (Id.)
From April 26, 2021, to June 8, 2021, Plaintiff was confined in the segregated housing unit (SHU) because Officer Nadel, who “has a personal issue with [Plaintiff] decided to fabricate a lie.” (Id. at 8.) Officer Nadel falsely charged Plaintiff with being in possession of drugs and alcohol, and the matter was referred to the Federal Bureau of Investigation, which declined to pursue it. At Plaintiff's disciplinary hearing, “[t]he ticket was expunged due to multiple errors and technicalities” (id.), but he had already spent 43 days in the SHU.
Officer Nadel, who is not named as a defendant in this action, also “verbally assaulted” Plaintiff by calling him “a bitch, ” suggesting that he was “never [going] home, ” and cautioning him not to “drop the soap.” (Id.) Plaintiff grieved these incidents but never received a copy showing that his grievances were filed, which he alleges is “a violation of [his] constitutional rights.” (Id.)
Plaintiff also asserts claims about conditions at MCC generally, including that detainees “have been denied law library”; vents and windows are “full of rust and dust”; inmates are denied cleaning supplies, and the facilities are sanitized only “when higher ups are walking around”; and rodents and insects are “constantly in the cells, ” and staff remove items used to block rat holes. In addition, in connection with the Covid-19 pandemic, Plaintiff alleges, without additional details, that “they weren't following the proper procedures for Covid, ” and that detainees have had “limited access to family members” and “couldn't mourn properly” family members who “died since the Corona pandemic.” (Id. at 9.)[7]
Plaintiff sues MCC, the current acting warden, and three former wardens of MCC, seeking damages.
Under the doctrine of sovereign immunity, the United States is immune from suit except where it consents to being sued. United States v. Mitchell, 445 U.S. 535, 538 (1980); see Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (). Sovereign immunity therefore bars Plaintiff's claims against MCC and his official-capacity claims against MCC wardens unless the claims arise under a statute waiving their sovereign immunitiy.
The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, provides a limited waiver of sovereign immunity for injuries arising from the tortious conduct of federal officers or agents acting within the scope of their office or employment. See § 1346(b)(1).[8] Plaintiff's claims for money damages based on allegations regarding inadequate medical care and inadequate conditions of his confinement at MCC and can be liberally construed as tort claims under the FTCA. The only proper defendant for an FTCA claim is the United States of America. See 28 U.S.C. § 2679(d)(1) (“[T]he United States shall be substituted as the party defendant”). Any claims that Plaintiff is asserting under the FTCA against MCC and the MCC Wardens in their official capacities for tortious conduct therefore must be brought against the United States.
Moreover, an FTCA claimant must exhaust his administrative remedies before filing suit in federal court by: (1) filing a claim for money damages with the appropriate federal government entity and (2) receiving a final written determination from that agency. See 28 U.S.C. § 2675(a); Phillips v. Generations Family Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013). FTCA claims must be “presented in writing to the appropriate Federal agency within two years after such claim accrues” and an FTCA action must be commenced within six months of when the agency issues its final denial of administrative remedy. Roberson v. Greater Hudson Valley Family Health Ctr., Inc., ECF 1:17-CV-7325, 17, 2018 WL 2976024, at *2 (S.D.N.Y. June 12, 2018); see also 28 U.S.C. § 2401(b).
The statute of limitations is non-jurisdictional and subject to equitable tolling. United States v. Kwai Fun Wong, 575 U.S. 402, 412 (2015) ( ). But the requirement that claims be presented to the agency for administrative exhaustion is “jurisdictional, [and] cannot be waived.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005); Foster v. Fed. Emergency Mgmt. Agency, 128 F.Supp.3d 717, 728 (E.D.N.Y. 2015) (). Moreover, “[t]he burden is on the plaintiff to both plead and prove compliance with the [FTCA's] statutory requirements.” In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987).
Plaintiff does not allege that he exhausted his administrative remedies by filing a claim for damages regarding the conditions at MCC, noncompliance with Covid-19 protocols, or inadequate medical care, with the United States Bureau of Prisons (BOP). Nor does Plaintiff allege that he received a final written determination from the BOP. Because Plaintiff has not alleged facts showing that he complied with the FTCA's requirement that an administrative claim be presented to the agency, the Court lacks jurisdiction of his FTCA claims. See, e.g., Adeleke v. United States, 355 F.3d 144, 154 (2d Cir. 2004) ().
Plaintiff's claims against MCC and official-capacity claims against MCC wardens are therefore dismissed for lack of subject matter jurisdiction, based on sovereign immunity, without prejudice to Plaintiff's filing an action asserting FTCA claims against the United States, after he has exhausted his administrative remedies.
The Court construes Plaintiff's allegations that federal employees violated his constitutional rights as claims arising under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[Bivens] is the federal analog to suits brought against state...
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