Robinson v. Knibbs
| Decision Date | 17 August 2017 |
| Docket Number | No. 16-cv-3826 (NSR),16-cv-3826 (NSR) |
| Parties | LOUSHAWN ROBINSON, Plaintiff, v. JAKE KNIBBS, J. VAN HAYWRIGHT, DANIEL TARALLO, DR. DIANE SOMMER, FCI OTISVILLE - BUREAU OF PRISON, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Loushawn Robinson brings this action pro se against Defendants Jake Knibbs ("Knibbs"), J. Vander Hey-Wright ("Vander Hey-Wright"),1 Daniel Tarallo ("Tarallo"), Diane Sommer, M.D. ("Sommer"), the Federal Correctional Institution - Otisville, Bureau of Prisons ("FCI Otisville"), and the United States2 (collectively, "Defendants"). Plaintiff asserts a Bivens3 claim against the individually named Defendants for deliberate indifference toward serious medical needs caused by pain from an ankle fracture sustained while incarcerated at Otisville, and a negligence claim against the United States under the Federal Tort Claims Act ("FTCA"), 28U.S.C. §§ 1346(b). Before this court is Defendant's motion to dismiss. For the foregoing reasons, Defendant's motion to dismiss is GRANTED in part and DENIED in part.
The following facts are drawn from Plaintiff's Complaint, ECF No. 1, unless otherwise indicated.
On May 21, 2014, Plaintiff Loushawn Robinson who at the time was an inmate at the Federal Correctional Institution at FCI Otisville, sought medical care from Defendant Jake Knibbs ("Knibbs"), an Emergency Medical Technician/Physician at the facility, for pain he was experiencing in his left foot. (Compl. at 2.) Plaintiff alleges that although he was "distressed, with a lot of pain" in his left foot, given the time of day, Knibbs did not want to send him to the hospital or "deal with paper work." (Id.) Instead, Knibbs instructed him to seek treatment at FCI Otisville's "sick call" the next day. Id. at 4. Pursuant to these instructions, on May 22, 2014, Plaintiff went to "sick call" to seek treatment for his foot, which was swelling and causing Plaintiff "shooting, throbbing pain." Id. While at sick-call, Plaintiff saw Defendant Vander Hey-Wright, a Physician's Assistant. Id. Plaintiff alleges that Vander Hey-Wright told Plaintiff he needed to wait to see his assigned medical care provider, Defendant Physician's Assistant Tarallo, to address the pain in his foot. Id.
On May 28, 2014, Plaintiff was seen by Defendant Tarallo, who took an x-ray of Plaintiff's left foot, revealing a "fifth metatarsal base fracture." Id. at 5. Defendant Tarallo provided Plaintiff with a prescription to purchase painkillers, and instructed him to purchase the medication through commissary. Id. Plaintiff alleges that he did not have sufficient funds in his commissary account and could not purchase the pain medication at that time. Id.
On June 5, 2014, Plaintiff was taken to Crystal Run Healthcare in Middletown, New York, a medical facility outside of FCI Otisville, where he received a prescription for Percocet. Id. at 3. Plaintiff alleges that he never received medication upon his return to FCI Otisville, and that Defendant Knibbs told him if he requested the pain killers, "they [would] put [him] in the []hole, that will be the only way [he] will get them." (Id.)
Plaintiff also names Dr. Sommer, the Clinical Director at FCI Otisville, as a Defendant, claiming that she was aware of, and took no actions to address her staff's alleged misconduct. (Id. at 4.) Finally, Plaintiff also names FCI Otisville, the facility, as a Defendant.
Under Rule 12(b)(6), the inquiry is whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. To survive a motion to dismiss, a complaint must supply "factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is "'not bound to accept as true a legal conclusion couched as a factual allegation,'" or to credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In determining whether a complaint states a plausible claim for relief, a district court must consider the context and "draw on its judicial experience and common sense." Id. at 662. A claimis facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.
Under Rule 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction ... when the district court lacks the statutory or constitutional power to adjudicate it." Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation omitted). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In assessing whether there is subject matter jurisdiction, the Court must accept as true all material facts alleged in the complaint, Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009), but "the court may resolve [any] disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits ...." Zappia Middle E. Const. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
Furthermore, with regard to pro se Plaintiffs, the Court must "'construe [ ] [the] [Complaint] liberally and interpret[ ] [it] to raise the strongest arguments that [it] suggest[s].'" Martinez v. Aycock-W., 164 F. Supp. 3d 502, 508 (S.D.N.Y. 2016) (quoting Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.2013). Yet, "the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law." Id. ().
Under Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (1972), a plaintiff may bring a claim against a federal officer in her personal capacity for a violation of certain constitutionalrights. "To state a claim under Bivens, a plaintiff must allege that an individual defendant personally committed a specific wrongful act that violated a well-established constitutional right of which a reasonable person would have known." Adekoya v. Holder, 751 F. Supp. 2d 688, 694 (S.D.N.Y. 2010) (citing Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987)); see Barbaro v. U.S. ex rel. Fed. Bureau of Prisons FCI Otisville, 521 F. Supp. 2d 276, 281 (S.D.N.Y. 2007) () (quoting Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995)).
A Bivens action can lie only against individual federal employees, officials or agents in their personal capacities - not against the United States, federal agencies or officers in their official capacities. See Lipscomb v. Hufford, 14-CV-6562 (NSR), 2017 WL 3267732, at *5 (S.D.N.Y. July 28, 2017) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)); see also Keene Corp. v. United States, 700 F.2d 836, 845 n.13 (2d Cir. 1983) (); Banks v. United States, 10-CV-6613 (GBD) (GWG), 2011 WL 4100454, at *8 (S.D.N.Y. Sept. 15, 2011), report and recommendation adopted, 2011 WL 5454550 (S.D.N.Y. Nov. 9, 2011) () (internal citations omitted). Thus, any claim that Plaintiff may be asserting under Bivens against the United States; FCI Otisville, a federal agency; or against the individually named Defendants in their official capacity must be dismissed pursuant to Rule 12(b)(1).
Plaintiff alleges that Vander Hey-Wright failed to provide him with adequate medical care by "turn[ing] [him] away" from sick call rather than treating him, taking him to an outside hospital, or ensuring he was seen by a professional practitioner on the same day. (See Compl. at 5.) Defendants argue that any Bivens claims asserted against Vander Hey-Wright must be dismissed for lack of subject matter jurisdiction because she is absolutely immune from such claims as an employee of the Public Health Service ("PHS"), pursuant to the Public Health Service Act, 42 U.S.C. § 233(a) ("PHSA"). (See Def. Mem. at 5.)
The Supreme Court has interpreted the PHSA as "grant[ing] absolute immunity to PHS officers and employees for actions arising out of the performance of medical or related functions within the scope of their employment by barring all actions against them for such conduct." Hui v. Castaneda, 559 U.S. 799 (2010). Accordingly, "§ 233(a) precludes Bivens actions against individual PHS officers or employees for harms arising out of conduct described in...
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