Ojo v. United States

• Decision Date: 04 March 2019
• Docket Number: 15-cv-6089 (ARR) (LB)
• Citation: 364 F.Supp.3d 163
• Parties: Olukayode David OJO, Plaintiff v. UNITED STATES of America, Warden Frank Strada, Assistant Warden White, and John Doe 1 (Medical Director), Defendants.
• Court: U.S. District Court — Eastern District of New York

364 F.Supp.3d 163

Olukayode David OJO, Plaintiff

v.UNITED STATES of America, Warden Frank Strada, Assistant Warden White, and John Doe 1 (Medical Director), Defendants.

15-cv-6089 (ARR) (LB)

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

Signed March 4, 2019

Olukayode David Ojo, Newark, NJ, pro se.

Joseph Anthony Marutollo, Michael Joseph Castiglione, United States Attorney's Office, Brooklyn, NY, for Defendant.

Opinion & Order

ROSS, United States District Judge

While he was in the custody of the Federal Bureau of Prisons ("BOP") as a pretrial detainee, pro se plaintiff, Olukayode David Ojo, was diagnosed with a dental condition caused by a decayed and broken tooth

. It was not until December 2012, nearly fourteen months after his initial diagnosis, that he received a follow-up appointment with a dentist at the Metropolitan Detention Center ("MDC"). He alleges that the gap in his treatment was caused by an unconstitutional BOP policy of denying necessary dental care to pretrial detainees. He initiated this lawsuit in October 2015 against the United States and various officials at MDC (collectively, "defendants"), alleging inadequate and negligent dental care resulting in severe bone loss and extensive damage to his two front teeth.

In August 2018, the court granted partial summary judgment to defendants on all but two of the claims in plaintiff's amended complaint. Defendants now bring a renewed motion for summary judgment with respect to plaintiff's sole remaining Bivens claim, arguing that the Supreme Court's recent decision in Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017), demonstrates that the law does not provide a cause of action for plaintiff to obtain the remedy he seeks. Because I conclude that there are special factors in this case that caution against implying a damages remedy outside of the three established Bivens contexts, defendants' motion is granted.

BACKGROUND

Plaintiff entered into the custody of BOP on July 11, 2011.¹ See Defs.' Suppl. 56.1 Statement ¶ 1, ECF No. 84. On August 8, 2013, following a jury trial, he was convicted of one count of conspiracy to commit wire fraud and one count of conspiracy to possess with intent to unlawfully use five or more identification documents. See Pl.'s Opp'n, Ex. A, ECF No. 90; Defs.' 56.1 Statement ¶ 4, ECF No. 60. He was sentenced to 37 months of incarceration on February 17, 2014, and was released from BOP custody on March 14, 2014. Defs.' 56.1 Statement ¶¶ 5–6.

A. Plaintiff's Dental Treatment

On October 13, 2011, soon after his arrival at MDC, plaintiff made a sick call visit to Pamela Hamilton, D.D.S., a Public Health Service dentist at BOP. Id. ¶ 42. He complained of severe tooth pain and was diagnosed with a "periapical abscess

without sinus," a condition for which he was prescribed amoxicillin and ibuprofen. Id. From October 13, 2011 through December 4, 2012, plaintiff continued to experience dental pain, which led to stress and weight loss. See Ojo Decl. in Opp'n to Defs.' Mot. for Summary J. ¶¶ 26–27, ECF No. 75-1. He alleges that he repeatedly raised the issue of his pain and discomfort in person and in written grievance and complaint forms directed to Dr. Hamilton, John Doe Medical Director, and Warden Strada. Id. ¶¶ 28, 32–33. Despite his persistent complaints, he was denied follow-up treatment and was informed by Dr. Hamilton that, "as a policy, [he would] have to wait for 12 months for [his] name to be included on the list of those that will receive routine care." Id. ¶ 25; see also

id. ¶ 29.

On December 4, 2012, plaintiff met with Dr. Hamilton for a second dental appointment, fourteen months after his first visit and diagnosis. Defs.' 56.1 Statement ¶ 43. She conducted an examination and completed a "medicated interim restoration." Id. During the remainder of his incarceration at MDC, plaintiff visited Dr. Hamilton several more times for continued dental treatment, including two visits in which Dr. Hamilton performed a root canal of plaintiff's two front teeth. Id. ¶¶ 44–51. Plaintiff alleges that the treatment he received was inadequate, as he continued to suffer severe pain and experienced significant bone loss. See Pl.'s 56.1 Resp. ¶¶ 45, 48–51, ECF No. 75-2. According to plaintiff's expert witness, Jay Grossman, D.D.S., the fourteen-month delay in the dental treatment plaintiff received at MDC contributed to "the eventual loss of [his] teeth." See Pl.'s Opp'n Ex. A, 58:6–10, ECF No. 75-5 ("Grossman Dep.").²

B. BOP's Dental Care Policies

During the time that plaintiff was incarcerated at MDC, BOP's dental care policy was set forth in Program Statement 6400.02, dated January 15, 2005. See Defs.' Suppl. 56.1 Statement ¶ 3; Castiglione Aff., Ex. A ("BOP Policy"), ECF No. 85-1. The BOP Policy began by declaring that its "purpose and scope" was "[t]o stabilize and maintain the inmate population's oral health" by providing "conservative" dental care, balancing the provision of "necessary treatment" with "available resources." BOP Policy at US00532. Its objective was to provide "quality care consistent with professional standards." Id. In service of these goals, the policy directed that "[e]mergency dental care will be available to all inmates on a 24-hour basis," including to inmates serving sentences of one year or less. Id. at US00542. The policy provides a non-exhaustive list of treatment needs that constitute "emergency care," including "relief of severe dental pain, ... acute infections, ... [and] extraction of non-restorable teeth." Id. Non-emergency or routine care, by contrast, would be prioritized and provided on a tiered basis. Id. at US00543. Inmates with "special designations," including those who were housed in "jail units for less than a 12 month period," would "have access to dental triage and emergency care only." Id. Barring an exception to the BOP Policy approved by the Chief Dentist, inmates would not be eligible to receive routine care until the conclusion of this twelve-month period. Id. For sentenced inmates serving over twelve months in BOP custody, the BOP Policy provided for elective non-emergency dental care as long as "resources of staff, time, and materials are available, and commensurate with the inmate's ability to maintain good oral health."Id. Non-emergency or routine care includes hygiene appointments and radiographs

. Id.

In addition to the BOP Policy represented in Program Statement 6400.02, plaintiff alleges that MDC maintained a second, unwritten policy that required pretrial detainees to wait for twelve months to receive even emergency dental treatment. See Pl.'s Suppl. 56.1 Resp. ¶ 3, ECF No. 90. He asserts that Dr. Hamilton refused to provide him with emergency care to treat his dental condition, instead informing him that he needed to wait for twelve months before he could obtain the necessary treatment. Id. ¶¶ 3, 5; see also Pl.'s Additional Material Facts ¶ 5, ECF No. 90. Defendants argue in response that "there is simply no evidence to support [plaintiff's] assertion that there was some other policy in existence." Defs.' Reply 8, ECF No. 92. Furthermore, they note that plaintiff's summary of Dr. Hamilton's statement—in which he alleges that she told him that he would have to wait for twelve months to receive routine care—"is nothing more than an accurate statement of Program Statement 6400.02." Id.

C. Procedural Background

On August 14, 2018, I granted in part and denied in part defendants' motion for partial summary judgment. See Ojo v. United States , No. 15-cv-6089, 2018 WL 3863441 (E.D.N.Y. Aug. 14, 2018). As a result of my order, ten out of twelve of plaintiff's causes of actions were dismissed. Id. at *11. Because defendants did not move for summary judgment on plaintiff's negligence claim under the Federal Tort Claims Act ("FTCA"), that claim survived the motion. Id. Additionally, I denied defendants' motion for summary judgment on plaintiff's Bivens equal protection claim, concluding that defendants had not demonstrated that they were entitled to judgment as a matter of law. Id. I expressly held, however, that defendants may renew this motion on alternate grounds, including by arguing that plaintiff is not entitled to a Bivens remedy under the standard established in Ziglar v. Abbasi .³

In their renewed motion, defendants do just that, arguing that Supreme Court precedent forbids plaintiff from pursuing a Bivens equal protection claim in this context.

First, they allege that plaintiff's equal protection claim, brought under the Fifth Amendment, arises in a distinct context from previously recognized Bivens claims and that special factors counsel against the court implying a new Bivens remedy here. Defs.' Br. 5–8, ECF No. 83. In the alternative, they argue that plaintiff's claim must be dismissed because the asserted BOP policy survives rational basis review, and, moreover, the individual defendants named in plaintiff's complaint are not alleged to have created the unconstitutional policy. Id. 8–9. Defendants moved for summary judgment on this claim in September 2018, and the motion was fully briefed in February 2019. In his opposition to defendants' motion, plaintiff also moves for reconsideration of the court's order dismissing his eighth, ninth, and tenth causes of action on the basis of qualified immunity. See Pl.'s Opp'n 8–11; Ojo , 2018 WL 3863441, at *8–10.

LEGAL STANDARD

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact" and that she "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute is genuine if the evidence could permit a reasonable jury to reach a verdict for either side." Aetna Cas. & Ins. Co. v. United States , 685 F.Supp. 334, 336 (E.D.N.Y. 1988). Materiality, on the other hand, "runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Graham v. Henderson , 89 F.3d 75, 79 (2d Cir. 1996) (citing ...