Jordan v. Fed. Bureau of Prisons

• Decision Date: 19 March 2013
• Docket Number: 09 Civ. 8561 (ALC)
• Parties: JOSEPH R. JORDAN, Plaintiff, v. FEDERAL BUREAU OF PRISONS, METROPOLITAN DETENTION CENTER, METROPOLITAN CORRECTIONAL CENTER, USP-MARION, U.S. DEPARTMENT OF JUSTICE, U.S. ATTORNEY GENERAL, BRANDON M. WALLER, PAUL COURTNEY, ANDREW G. PATEL, FEDERAL DEFENDERS OF NEW YORK, LEONARD F. JOY, SABRINA SHIROFF, NEW YORK STATE BAR ASSOCIATION, BAR ASSOCIATION OF NEW YORK CITY, XIAO-KE GAO, ADAM N. BENDER, and DENISE L. COTE, Defendants.
• Court: U.S. District Court — Southern District of New York

JOSEPH R. JORDAN, Plaintiff,

v.FEDERAL BUREAU OF PRISONS, METROPOLITAN DETENTION CENTER,METROPOLITAN CORRECTIONAL CENTER, USP-MARION,U.S. DEPARTMENT OF JUSTICE, U.S. ATTORNEY GENERAL,BRANDON M. WALLER, PAUL COURTNEY, ANDREW G. PATEL,FEDERAL DEFENDERS OF NEW YORK, LEONARD F. JOY,SABRINA SHIROFF, NEW YORK STATE BAR ASSOCIATION,BAR ASSOCIATION OF NEW YORK CITY, XIAO-KE GAO,ADAM N. BENDER, and DENISE L. COTE, Defendants.

09 Civ. 8561 (ALC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: March 18, 2013

Dated: March 19, 2013

OPINION AND ORDER

ANDREW L. CARTER, United States District Judge:

PlaintiffJoseph Jordan("Jordan" or "Plaintiff"), an inmate at USP-Marion, a federal prison in Illinois, brings a laundry list of claims in his complaint that, at one point or another, has lodged allegations against an ever-changing cast of defendants including various federal agencies, state bar associations, doctors and a federal judge.

BACKGROUND

A.Procedural History

Plaintiff filed his original complaint in 2009 in the Eastern District of New York.SeeNo. 02 Civ. 2232.The case was transferred to this jurisdiction on October 8, 2009, at which time Jordan was ordered to address deficiencies in his Complaint.(Dkt. No. 2).Jordan filed hisFirst Amended Complaint on April 2, 2010, after two extensions.(Dkt. No. 7).By June 2, 2010, Plaintiff sought leave to "supplement (not amend) the Amended Complaint."(Dkt. No. 9).The Court denied this request in a November 15, 2010 order and directed Plaintiff to file a second amended complaint by January 10, 2011.(Dkt. No. 16).After two further extensions, Plaintiff filed his Second Amended Complaint on August 4, 2011, more than a month after the time granted for his final extension.(Dkt. No. 31).

In its final state, Jordan's Complaint is a 122-page behemoth alleging claims against the remaining Defendants: Federal Bureau of Prisons ("BOP"), USP-Marion, Federal Bureau of Investigation Agent Waller, Dr. Xiao-Ke Gao, and Dr. Adam Bender.¹In addition, New York Police Department OfficerPaul Courtney remains as a defendant but it is not clear whether he was actually served with process.On June 27, 2012, BOP, USP-Marion, and Waller filed a motion to dismiss the complaint.On July 12, 2012, by and through his attorney, Bender filed a motion to dismiss the complaint.As Gao has not submitted moving papers, this Opinion reaches only the motions to dismiss filed on behalf of BOP, USP-Marion, and Waller (collectively, the "Federal Defendants") and Bender.

B.Facts

The underlying facts are set forth in Judge Jones's order, (Dkt. 37, at 2-7) and will not be reiterated here.It is sufficient to say that Jordan's allegations are legion but reduce to claims about deprivation of adequate medical care; unhealthful dietary options (including religiousdiscrimination and undue restrictions on the vegetarian diet); inhumane conditions of confinement; and claims stemming from his criminal prosecution and attempted criminal prosecution against Waller, and arguably Officer Courtney.Jordan's alleges that Bender, evaluating Jordan after his conviction at the behest of the Court, omitted significant information from his report on Jordan's neurological condition, knowing that such omissions would harm Jordan.

DISCUSSION

I.Federal Defendants' Motion to Dismiss

A.Standard of Review

The Federal Defendants argue that this court lacks subject matter jurisdiction and pursuant to Rule 12(b)(1) seeks dismissal of the Complaint.A case is properly dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)"when the district court lacks the statutory or constitutional authority to adjudicate it."Makarova v.United States, 201 F.3d 110, 113(2d Cir.2000).A court must accept as true all material factual allegations in the complaint, and will draw inferences favorable to the party asserting jurisdiction.²Sharkey v. Quarantillo, 541 F.3d 75, 83(2d Cir.2008)(citingMerritt v.Shuttle, Inc., 245 F.3d 182, 186(2d Cir, 2001)andLujan v.Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130,119 L.Ed.2d 351(1992)).However, courts"are not bound to accept as true a legal conclusion couched as a factual allegation."Papasan v.Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209(1986).Oncechallenged, the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists, Makarova, 201 F.3d at 113, When evaluating subject matter jurisdiction, a court may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional question, Makarova, 201 F,3d at 113;Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6(2d Cir.2001).

On a motion to dismiss pursuant to 12(b)(6), the movant alleges that the complaint fails to state a claim upon which relief can be granted.SeeFed. R. Civ. P. 12(b)(6).To survive a 12(b)(6) motion, a claim must "state a claim to relief that is plausible on its face."Ashcroft v.Iqbal, 556 U.S. 662, 678, 129 S.Ct 1937, 173 L.Ed.2d 868(2009)(quotingBell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)).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."Iqbal, 556 U.S. at 678.

On a motion to dismiss under 12(b)(6), the court will accept the plaintiff's allegations as true, seeKassner v.2nd Ave. Delicatessen Inc., 496 F.3d 229, 237(2d Cir.2007), and must "draw all reasonable inferences in favor of the plaintiff."Id.(citingFernandez v. Chertoff, 471 F.3d 45, 51(2d Cir.2006)), However, the court need not accept allegations that are merely conclusions of law.Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d at 237(complaint inadequate if it "merely offers labels and conclusions or a formulaic recitation of the elements of a cause of action").Therefore, on a motion to dismiss, "[t]he appropriate inquiry is not whether a plaintiff is likely to prevail, but whether he is entitled to offer evidence to support his claims,"Fernandez v.Chertoff, 477 F.3d at 51(internal quotation marks and citation omitted).

Dismissal for the failure to state claim on which relief could be granted is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claimthat would entitle the plaintiff to relief.Branham v. Meachum, 77 F.3d 626, 628(2d Cir.1996) A pleading alleging civil rights violations that is challenged by a motion to dismiss should be liberally construed with a view to achieving substantial justice.See, e.g., Gregory v. Daly, 243 F.3d 687, 691(2d Cir.2001)(citations omitted).This is especially so when filed by a pro se litigant.SeeHaines v.Kerner, 404 U.S. 519, 520, 92 S.Ct 594, 595, 30 L.Ed.2d 652(1972).Lisbon v.Goord, No. 02 Civ. 3567(HB), 2003 WL 1990291, at *2(S.D.N. Y, Apr. 29, 2002) (citing Elliott v. Bronson, 872 F.2d 20, 21(2d Cir.1989)("[C]ourts must construe pro se complaints liberally, applying less stringent standards than when a plaintiff is represented by counsel.").

B.The Federal Defendants Are Not Properly Named As Defendants in an FTCA Claim

To the extent Plaintiff alleges tort claims, the Federal Defendants' argument is two-fold, First, the Federal Defendants claim that they are not properly named as defendants under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. 2871 et seq.Instead, the FTCA provides suit against the United States as the "exclusive remedy" for such tort claims.Next, the Federal Defendants allege that because Plaintiff did not exhaust his claims through the proper administrative channels before bringing his lawsuit as the FTCA requires, he cannot sue the United States because he has not met the stated requirements for its waiver of sovereign immunity.

Under the FTCA, suits may not proceed against federal agencies; rather the plaintiff must sue the United States for relief under the FTCA.FTCA requires a would-be plaintiff to seek remedy directly from the agency before filing suit against the United States.See28 U.S.C. 2675(a)("An action shall not be instituted upon a claim against the United States for moneydamages 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, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing.").

BOP and USP-Marion are federal agencies within the meaning of the FTCA.See28 U.S.C. § 2671(" 'Federal agency' includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States. . .")Similarly, Agent Waller, as an agent of the FBI, is an employee of the government for FTCA purposes.Id.("'Employee of the government' includes officers or employees of any federal agency").Thus, the Federal Defendants are not properly named as defendants and must be dismissed for any FTCA claims.

C.The Proper Defendant—the United States—Must Be Dismissed For Lack of Subject Matter Jurisdiction

The FTCA requires a claimant to have "first presented the claim to the appropriate Federal agency and . . . been finally denied by the agency in writing."See28 U.S.C. 2675(a).Plaintiff filed his Second Amended Complaint on August 4, 2011, while housed in the Communication Management Unit (CMU) at USP-Marion in Marion, Illinois, a BOP prison.

1.USP-Marion/BOP Grievance Policy

As the rest of the prisons within the BOP, USP-Marion requires a four-step administrative remedy process to all inmates.The first step requires the inmate to report the issue informally to the staff according to the procedures for informal...