Torim v. United States, 19-CV-9192 (NSR)
| Decision Date | 22 November 2019 |
| Docket Number | 19-CV-9192 (NSR) |
| Parties | SHLOIME TORIM, Plaintiff, v. UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; WARDEN B. VON BLACKENSEE; CAPTAIN MATT WHINERY; CHRIS ENTZEL; CHAPLAIN AVROHOM RICHTER; J.L. MALDONADO; OFFICER AHAMAD REZAK aka AHMED REZAK, Defendants. |
| Court | U.S. District Court — Southern District of New York |
ORDER TO AMEND
Plaintiff Shloime Torim brings this pro se action, for which the filing fee has been paid, alleging that Defendants violated his federally protected rights. For the reasons set forth below, the Court directs Plaintiff to amend his complaint.
The Court must dismiss a complaint, or portion thereof, 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 when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
Plaintiff Shloime Torim filed this complaint about an incident occurring during his incarceration at F.C.I. Otisville Satellite Camp, although he is no longer in custody. Plaintiff asserts claims under the Religious Freedom and Restoration Act and the Federal Tort Claims Act against the United States, the Federal Bureau of Prisons (BOP), Otisville Warden B. Von Blackensee, Captain Matt Whinery, Executive Assistant/Camp Administrator Chris Entzel, Chaplain Avrohom Richter, Associate Warden J.L. Maldonado, and Correction Officer Ahamad Rezak aka Ahmed Rezak.
Plaintiff, is an orthodox Jew, and Chaplain Richter "confirmed" that Plaintiff "is sincere in his religious beliefs." Plaintiff asserts that he is prohibited from "writing and actively using electricity" on the Sabbath and holidays. Additionally, it was Otisville policy to postpone theadministration of "non security random" urinalysis and breathalyzer tests "to Observant Jews on Holidays and the Sabbath." On October 6, 2017, a Friday night during Sukkot, Officer Rezak, "under the direction of Blackensee, Whinery, Entzel, and Maldonado, ordered Plaintiff to undergo a random urinalysis and breathalyzer. Plaintiff objected to being tested during a Sabbath holiday, but Rezak said he "didn't care" and threatened to put Plaintiff in the segregated housing unit (SHU) if he did not comply. Plaintiff alleges that Rezak's conduct violated his free exercise rights, and he seeks money damages.1
Sovereign immunity generally bars federal courts from hearing suits against federal agencies, except where that immunity has been waived. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The plaintiff bears the burden to show that Congress waived sovereign immunity with respect to the claims. See United States v. Mitchell, 463 U.S. 206, 212 (1983). Here, Plaintiff has not invoked any basis for abrogating the immunity of the named federal agency. The Court dismisses Plaintiff's claims against the BOP because those claims are barred under the doctrine of sovereign immunity. See 28 U.S.C. § 1915(e)(2)(B)(iii).
Plaintiff asserts claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, which provides for a waiver of sovereign immunity for injuries arising from the tortious conduct of federal officers or agents acting within the scope of their office or employment. 28 U.S.C. § 1346(b)(1). The proper defendant in an FTCA case is "the UnitedStates, not individual federal . . . agencies." Holliday v. Augustine, No. 14-CV-0855, 2015 WL 136545, at *1 (D. Conn. Jan. 9, 2015).
Before bringing a claim under the FTCA, a plaintiff must first exhaust his administrative remedies by filing a claim for monetary damages with the appropriate federal government entity and must receive a final written determination. See 28 U.S.C. § 2675(a). Such an administrative claim must be in writing, specify the amount of damages sought, and be filed within two years of the claim's accrual. 28 U.S.C. §§ 2401(b), 2675(a); A.Q.C. ex rel Castillo v. United States, 715 F. Supp. 2d 452, 457 (2d Cir. 2010) (citing Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 720 (2d Cir. 1998)). A plaintiff may thereafter challenge the agency's final denial in federal district court by filing an action within six months of the date of the mailing of the notice of final denial by the agency. See § 2401(b). If the appropriate federal entity does not make a written final determination within six months of the date of the plaintiff's filing of the administrative claim, the claimant may then bring a FTCA action in a federal district court. See § 2675(a). Administrative exhaustion, is "jurisdictional, [and] cannot be waived." Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005).
If the plaintiff fails to first present his claim to the appropriate agency and exhaust administrative remedies, then the plaintiff's tort claims must be dismissed. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)); Foster v. Fed. Emergency Mgmt. Agency, 128 F. Supp. 3d 717, 728 (E.D.N.Y. 2015) ().
There is no indication that Plaintiff ever presented the tort claims at issue in this action to any federal agency.
Moreover, the FTCA confers jurisdiction upon the district courts to hear claims for damages against a federal agency "for injury or loss of property . . . resulting from the negligent or wrongful act[s] or omission[s]" of agency employees in their official capacities. 28 U.S.C. § 2679(b)(1); see Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994). The statute provides the exclusive remedy to hold the United States liable for the wrongful or negligent acts of its employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." See 28 U.S.C. § 1346(b)(1). Thus, "for liability to arise under the FTCA, a plaintiff's cause of action must be comparable to a cause of action against a private citizen recognized in the jurisdiction where the tort occurred, and [her] allegations, taken as true, must satisfy the necessary elements of that comparable state cause of action." Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir. 1999) (internal quotation marks and citations omitted).
Finally, the FTCA does not waive the sovereign immunity of the United States for constitutional torts. FDIC v. Meyer, 510 U.S. 471, 477-78 (1994) ( ); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999) ().
Plaintiff does not allege any facts suggesting that any defendant has committed an ordinary tort against him. And his claim that Defendants violated his rights under RFRA and the United States Constitution are not cognizable under the FTCA. For these reasons, Plaintiff has not set forth facts giving rise to an FTCA claim.
The Court liberally construes Plaintiff's amended complaint as asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A plaintiff may bring Bivens claims against a federal official to seek redress for a violation of his constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (). Bivens relief is available only against federal officials who are personally liable for the alleged constitutional violations, not against the United States. Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017); Turkmen v. Hasty, 789 F3d 218, 233 (2d Cir. 2015). Further, "Bivens claims do not lie against federal employees in their official capacities, because such...
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