Marsden v. FEDERAL BOP

• Decision Date: 24 June 1994
• Docket Number: No. 92 Civ. 2157 (LLS).,92 Civ. 2157 (LLS).
• Parties: Melvin MARSDEN, Plaintiff, v. FEDERAL B.O.P., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

856 F. Supp. 832

Melvin MARSDEN, Plaintiff, v. FEDERAL B.O.P., et al., Defendants.

No. 92 Civ. 2157 (LLS).

United States District Court, S.D. New York.

June 24, 1994.

Melvin Marsden, plaintiff pro se.

Assistant U.S. Atty. Serene K. Nakano, New York City, for federal defendants.

Assistant County Atty. M. Kevin Coffey, Goshen, NY, for Orange County defendants.

OPINION AND ORDER

STANTON, District Judge.

This civil rights action, brought by plaintiff pro se Melvin Marsden, was referred to the Honorable Sharon E. Grubin, United States Magistrate Judge, for general pre-trial purposes and for a report and recommendation on substantive pre-trial motions. On January 27, 1994, Magistrate Judge Grubin issued and mailed to the parties her report and recommendation advising dismissal of the complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). No party filed objections.

A complete review of the complaint, the parties' submissions, and Magistrate Judge Grubin's thoughtful, careful and thorough report and recommendation shows that she correctly concluded that the complaint should be dismissed.

Magistrate Judge Grubin's report and recommendation is adopted in all respects. The clerk is directed to dismiss the complaint.

REPORT AND RECOMMENDATION

GRUBIN, United States Magistrate Judge:

Plaintiff, an inmate at the Orange County Jail at the time of filing, proceeding pro se and in forma pauperis, brings this civil rights action against the following defendants:

U.S. Bureau of Prisons (National) J. Michael Quinlan, Director 320 First Street, N.W Washington, D.C. 20534 Metropolitan Correctional Center Mr. Reed, Medical Director 150 Park Row N.Y.C., N.Y. 10007 F.C.I., Danbury Mr. Q. Hect, Medical Director Pembroke Station Danbury, Ct. 06811 Orange County Jail Ms. S. Menon, Medical Director 40 Erie Street Goshen, N.Y. 10924

Complaint ¶ III. Those defendants named in the first three paragraphs quoted above (the "federal defendants") have moved to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient service of process and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(2), 12(b)(5) and 12(b)(6). The Orange County Jail and Ms. S. Menon, its medical director, have answered the complaint, but have brought no motion. Plaintiff's claims against the federal defendants are set forth in full in the complaint as follows:

All defendants are responsible for the action or inaction of thier staff.

M.C.C.,N.Y. — On or about May 1990 I was examined by a P.A. because of pain and numbness, I was told that x-rays and a cat scan would have to be taken (possible Arthritus, and possible I had suffered a mild stroke) I was informed that I would be taken to Beekman Downtown Hospital for same. After repeated sick calls and the same prognosis (pain. numbness and no reflex action on the right side of my body) X-rays were finally taken on or about March 1991 in M.C.C. (THIER X-RAY MACHINE WAS BROKEN AND THE NEW ONE THOUGH DELIVERED, WAS NOT INSTALLED FOR A YEAR) NO CAT SCAN WAS EVER TAKEN, It was assumed that the numbness and lack of reflexes was due to Osteo Arthritus pinching nerves in my neck.

F.C.I. DANBURY, DANBURY CT. — July 1991, would not supply Arthritus medication I'd been taken at M.C.C., N.Y. (which releaved 90% of pain/discomfort) because "it's too expensive" (Tolectin D.S. 400 mgs.) later revised to "medication not presently on institutions approved list". Employment resulted in prolonged exposure to extreme cold (on or about 10/91-1/92) causing extreme pain, I was not issued proper clothing, namely thermal undergarments, asked medical to request that I be issued same and/or be given indoor employment, I was told by Dr. Ahamad "No, we don't want to get involved". On 1/31/92 I was transferred to Orange County Jail without medical records or a synopsis of medical problems and list of medications prescribed (against B.O.P. policy and procedure)

Complaint ¶ IV. His claim against the Orange County Jail is, in full, stated as follows:

ORANGE COUNTY JAIL — Complete disregard, feel by putting the blame on the U.S. Marshal Service for not bringing my records with me, or sending them afterwards, it releaves them of all responsibility for treatment of any kind. Disregard thier own administrative procedures and try to placate you with promises of calling for the records again. Received Ibuprophen 600 mgs. 3 times daily for an unrelated injury, which is supposed to be taken with food, but dispensed here at least two hours before or after meals. Requested this OVER THE COUNTER medication for my arthritus numerous times (was prescribed and taking 800 mgs. 3 times daily at F.C.I. DANBURY) they would not give it because they "don't have my medical records". When asked that if I came in from the street would I remain untreated? "No, but being a holdover is different".

Id. Plaintiff alleges the foregoing acts were illegal and in violation of his constitutional rights and seeks injunctive and monetary relief.

Because this court lacks subject matter jurisdiction over some of the claims set forth in the complaint and because, further, the complaint fails to state a claim against any defendant, I recommend that it be dismissed in its entirety.¹

Standards on a Motion to Dismiss

On a motion to dismiss for failure to state a claim upon which relief can be granted, the court accepts the factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff, see Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, ___ U.S. ___, ___, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993) and ___ U.S. ___, 113 S.Ct. 1412, 122 L.Ed.2d 784 (1993); Frazier v. Coughlin, 850 F.2d 129, 129 (2d Cir.1988), and pro se complaints are entitled to heightened deference. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam); Platsky v. CIA, 953 F.2d 26, 28 (2d Cir.1991) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28 (2d Cir.1986). On a motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, or insufficiency of service of process, consideration of matters outside the pleadings is permissible, Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986); Cornett v. Congregane, 785 F.Supp. 434, 435 n. 1 (S.D.N.Y.1992), although it is not necessary for resolution of the instant action. A complaint should not be dismissed for failure to state a claim unless, "after viewing plaintiff's allegations in this favorable light, `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Walker v. City of New York, 974 F.2d at 298 (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)).

Federal Defendants

Plaintiff's complaint names the Bureau of Prisons and its director, the Metropolitan Correctional Center and its medical director and F.C.I. Danbury and its medical director. It is difficult to understand whether plaintiff intends to sue the three individuals in their official capacities, in their individual capacities, or in both. However, insofar as plaintiff proceeds pro se, we will assume that he intends both.

Official-capacity claims for money damages, however, based on allegations of constitutional violations are barred because they are suits against the United States which has not waived its sovereign immunity. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985); Keene Corp. v. United States, 700 F.2d 836, 845 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Ramirez v. Obermaier, No. 91 Civ. 7120 (RPP), 1992 U.S.Dist.Lexis 16563 at *12-13, 17-18, 1992 WL 320985 at *4, 6 (S.D.N.Y. Oct. 27, 1992); Washington Square Post No. 1212 Am. Legion v. City of New York, 720 F.Supp. 337, 347, 353-54 (S.D.N.Y.1989), rev'd in part on other grounds sub nom. Washington Square Post No. 1212 Am. Legion v. Maduro, 907 F.2d 1288 (2d Cir.1990). Thus, to the extent plaintiff asserts claims for money damages against Quinlan, Reed and Hecht in their official capacities, such claims must be dismissed for lack of subject matter jurisdiction. Similarly, constitutional claims against the Bureau of Prisons, the Metropolitan Correctional Center and F.C.I. Danbury are also merely claims against the United States and must be dismissed.

While official-capacity claims for injunctive or declaratory relief against individuals may be cognizable and money damage claims against them in their individual capacities are permissible, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),² plaintiff's claims here must nevertheless be dismissed because he fails to state a claim against them. Under Bivens, as under § 1983, a defendant's "personal involvement" in an alleged deprivation of constitutional rights is a prerequisite to an award of damages. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.1987); Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986); Black v. United States, 534 F.2d 524, 527-28 (2d Cir.1976); Ramirez v. Obermaier, 1992 U.S.Dist.Lexis 16563 at *14-15, 1992 WL 320985 at *5 (a defendant "must personally have knowledge of or acquiesce or participate in the deprivation of the plaintiff's constitutional rights"). The doctrine of respondeat superior is not available in § 1983 or Bivens actions. Monell v. Department of Social Serv., 436 U.S. 658, 692-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978); Cuoco v. Quinlan, No. 91 Civ. 7279 (LMM), 1992 U.S.Dist.Lexis 17476 at *15, 1992 WL 350755 at *5 (S.D.N.Y. ...