Mescall v. Bronx Residential Ctr.
| Decision Date | 15 August 2022 |
| Docket Number | 22-CV-4557 (LTS) |
| Parties | SEAN FITZGERALD MESCALL, Plaintiff, v. BRONX RESIDENTIAL CENTER; GEO; FEDERAL BUREAU OF PRISONS; TRICENTER, Defendants. |
| Court | U.S. District Court — Southern District of New York |
ORDER TO AMEND
Plaintiff who is appearing pro se, brings this action invoking the Court's federal question jurisdiction.[1] Plaintiff contends that the Bureau of Prisons (BOP) has a policy that prevents him, during his home confinement, from using a particular medication (“Dextroamp”) to treat his attention deficiency hyperactive disorder (ADHD). Plaintiff invokes the Americans with Disabilities Act (ADA), and the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., and asserts a violation of his constitutional right to substantive due process.
Plaintiff sues the BOP and three private entities providing services to federal prisoners (Tri Center, Inc., Geo Halfway House, and the Bronx Residential Center). He seeks preliminary injunctive relief and asks the Court to seal this action. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 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 in forma pauperis 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 Sean Mescall is in the custody of the BOP but is currently on home confinement in Newburgh, New York. Plaintiff is monitored “via a cell phone,” by GEO Halfway House in Bronx County, New York, and receives medical services from TRI Center, Inc. (ECF 1 at 2-3.) Plaintiff receives “aftercare for substance abuse of alcohol and opioids,” including taking “suboxone to treat his alcohol and opioid cravings” (id. at 1, 4) and he takes medication prescribed for depression.
Plaintiff was diagnosed with ADHD when he was five years old. After his release to home confinement, Plaintiff's private primary care doctor prescribed Dextroamp for his ADHD. (Id. at 2.) The BOP, however, “wants him to take a non-controlled substance analogous to Wellbutrin.” (Id..) A doctor from TRI Center, Inc., which provides medical services to federal prisoners, prescribed Atomoxetine for Plaintiff's ADHD; that medication caused Plaintiff severe nausea and vomiting, extreme fatigue, loss of appetite and other symptoms. (Id.)
Case Manager Ortiz from GEO Halfway House told Plaintiff that he could not take Dextroamp unless the BOP approved it. Dr “Tina” at Tri Center, Inc. told Plaintiff that BOP policy “forbids [prescribing] controlled substance Dextroamp.” (Id. at 2, n.1.) Dr. Tina “advocated and argued for Mescall” and recommends that Adderall be prescribed for him, id. at 4, but it is unclear if he received Adderall, Wellbutrin, or any medication other than Atomoxetine.
Plaintiff contends that the BOP is “forbidding treatment of a disorder” and requiring him to “take medicines only approved by the BOP,” which he argues violates the ADA and his right to substantive due process. Plaintiff contends that he “has never abused Dextroamp, and has no history of abuse with respect to any mental stimulant for treatment of ADHD.” (Id.) He never “sold or took any drug analogous to the drug” at issue. (Id.)
Plaintiff brings suit against the “Bronx Residential Center,” “Geo,” “Tri-Center,” and the BOP. He invokes disability discrimination statutes (the ADA and the Rehabilitation Act), and asserts a violation of his right to substantive due process. Plaintiff seeks to enjoin Defendants from preventing him from taking Dextroamp.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “public entity” is defined in Title II of the ADA to include “any State or local government” and “any department, agency, . . . or other instrumentality of a State,” 42 U.S.C. § 12131(1); United States v. Georgia, 546 U.S. 151, 154 (2006) ().
The federal government and its agencies are not covered under Title II of the ADA. Plaintiff's allegations that the BOP violated his rights under Title II of the ADA by limiting the ADHD medications available to him while he is on home confinement thus fail to state a claim under the ADA because it does not govern the conduct of federal agencies.
To state a claim under Section 504 of the Rehabilitation Act, a plaintiff must allege that he “(1) is a ‘handicapped person' as defined by the Rehabilitation Act, (2) is ‘otherwise qualified' to participate in the offered activity or benefit; (3) was excluded from such participation solely by reason of h[is] handicap; and (4) was denied participation in a program that receives federal funds.” Biondo v. Kaledia Health, 935 F.3d 68, 73 (2d Cir. 2019) (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009)).
Here, Plaintiff invokes a section of the Rehabilitation Act that relates to the “Duties of National Council,” 29 U.S.C. § 781. (ECF 1 at 3.) He challenges the health care that he is receiving but does not allege that Defendants discriminated against him, excluded, him, or treated him differently from others because of his disability. “Courts routinely dismiss [discrimination] suits by disabled inmates that allege inadequate medical treatment, but do not allege that the inmate was treated differently because of his or her disability.” Crosby v. Petermann, No. 18-CV-9470 (JGK), 2020 WL 1434932, at *12 (S.D.N.Y. Mar. 24, 2020) (); Maccharulo v. New York State Dep't of Corr. Servs., No. 08-CV-0301, 2010 WL 2899751, at *5 (S.D.N.Y. July 21, 2010) (“[N]either the ADA nor Rehabilitation Act provides a cause of action for challenges to the quality of health services provided or for allegations of negligent medical malpractice.”). Because Plaintiff makes no allegation that the denial of medical care was because of his disability, he fails to state a claim under the Rehabilitation Act.
Plaintiff brings suit against the BOP, alleging that its policy regarding Dextroamp violates his right to substantive due process.[2] Federal agencies, such as the BOP, are immune from suit unless their sovereign immunity has been waived. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). Here, Plaintiff seeks only injunctive relief from the BOP.[3] The Administrative Procedure Act (APA) waives sovereign immunity for claims against federal agencies seeking non-monetary relief. See 5 U.S.C. § 702.10. “The Second Circuit has read § 702 ‘as a waiver of immunity where a proper action is brought under 28 U.S.C. § 1331,' the general federal question jurisdiction statute.” Rivera v. Fed. Bureau of Investigation, No. 5:16-CV-0997, 2016 WL 6081435, at *6 (N.D.N.Y. Sept. 13, 2016) (quoting Sprecher v. Graber, 716 F.2d 968, 973-74 (2d Cir. 1983)), R & R adopted, 2016 WL 6072392 (N.D.N.Y. Oct. 17, 2016).
“‘[T]he APA's waiver of sovereign immunity applies to any suit whether under the APA or not' because Section 702 ‘waives sovereign immunity for [any] action in a court of the United States seeking relief other than money damages,' not solely for an action brought under the APA.” Gupta v. S.E.C., 796 F.Supp.2d 503, 509 (S.D.N.Y. 2011) (quoting Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 186 (D.C. Cir. 2006)). “[S]ection 702 waives sovereign immunity not only for suits brought under the APA, but also for constitutional claims brought under the general federal question jurisdiction statute.” Rivera, 2016 WL 6081435, at *6 ().[4] Because Plaintiff's constitutional claim against the BOP is for injunctive relief only, the Court assumes for purposes of this order that Section 702's waiver of immunity applies.
A federal prisoner's claim for a violation of his right to due process arises under the Fifth Amendment's Due Process Clause. See Hill v. Curcione, 657 F.3d 116 122 (2d Cir. 2011) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This clause has been interpreted as a “protection of the individual against arbitrary action of government.” County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). It has both a procedural component, which protects against the “denial of fundamental procedural fairness,” id. at 845-46, and a substantive component, guarding the individual against “the exercise of power without any reasonable justification...
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