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finding a three-centimeter abrasion that required only minor first aid, "one or two Tylenols," no difficulty sleeping, and no problem going about his daily routine de minimis
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00 Civ. 3883 (RWS).
May 2, 2002
PASTOR PERAFAN HOMEN, # 53476-053, Plaintiff Pro Se, Coleman, FL, Federal Correctional Complex Medium Security Institution.
HONORABLE JAMES B. COMEY, By: DAVID J. KENNEDY, Assistant US Attorney, Of Counsel, New York, NY. United States Attorney for the Southern District of New York, Attorney for United States of America.
OPINION
Defendant the United States of America (the "Government") has moved for summary judgment under Federal Rule of Civil Procedure 56 to dismiss the complaint of plaintiff pro se Pastor Perafan Homen ("Homen") who brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671 et seq., seeking damages of ten million dollars for a three-centimeter abrasion he suffered when he fell and grazed his head while playing soccer on the roof while incarcerated at the Metropolitan Correctional Center ("MCC"). For the reasons set forth below, the motion of the Government is granted.
Prior Proceedings
Homen initially filed suit on May 23, 2000, although his complaint was received by the Pro Se Office on April 21, 2000. The memorandum opinion dated September 25, 2000 ("September 25 Opinion") of the Court noted that the complaint sought relief under the FTCA, but did not name the United States as a defendant, as required by 28 U.S.C. § 1346(b), 2679. Homen v. United States, 00 Civ. 3883 (RWS), 2000 WL 1425048, at *1 (S.D.N.Y. Sept. 25, 2000). Instead, the complaint named as defendants Denis W. Hasty, Warden of the MCC, and Arthur Kumm, Recreation Supervisor at the MCC. Through the United States Marshals Service, service was carried out upon defendants Hasty and Kumm, but the United States Attorney's Office was not served.
After Hasty and Kumm failed to answer or move with respect to the complaint, Homen sought a default judgment on September 7, 2000. The Court denied Homen's motion for a default judgment in the September 25 Opinion because the United States had never been served. See id. at *1. The Court also noted that the United States is the only proper defendant in an FTCA action, and deemed the complaint amended to delete Hasty and Kumm as defendants, and name the United States in their stead. See id. The Court also ordered the United States Marshals Service to serve the United States. See id. Homen filed his amended complaint on October 16, 2000. The Government took Homen's deposition, and moved for summary judgment on October 17, 2001.
Homen sought and obtained certain documents and time to respond to the Government's motion which was marked submitted on March 5, 2002.
The Facts
The facts are drawn from the Government's Local Rule 56.1 Statement of Facts and are uncontested except as noted.
Homen was convicted in the Eastern District of New York on seven counts of violating the drug laws, 21 U.S.C. § 848(a); §§ 841(a)(1) and §§ 846 and 841(b)(1)(A). He was sentenced to thirty years' incarceration which he is currently serving at his designated facility in Coleman, Florida. At the time of the event that gave rise to this lawsuit, Homen was incarcerated at the MCC.
On May 15, 1999, Homen participated in a game of soccer on the roof of the MCC. He had played soccer a number of times in the course of his life and previously on the roof of the MCC. Around the time of Homen's accident, the MCC was in the process of replacing the padding on the walls of the recreation areas. From time to time, there were portions of the wall that lacked padding. MCC staff warned inmates at least once a week to be careful not to bump into the walls on the roof facility. Furthermore, prior to May 15, 1999, MCC staff posted a memo advising inmates of the padding replacement on the north side of the roof facility. The memo concerning the north side was posted at the point of entry to both the north and south sides of the roof area, and it was evident that both sides were undergoing renovation. Before his accident, Homen had observed that the recreation area was undergoing renovation, and that the protective mats covering certain portions of the walls had been removed. According to Homen, portions of the walls had protruding nails, a condition denied by the Government.
Homen voluntarily chose to play soccer. A month and a half before the accident, on April 6, 1999, Homen had sought medical attention complaining of leg cramps, which he felt while playing soccer. The doctor advised him to refrain from exercising for three weeks. Eight days before the accident, on May 7, 1999, Homen again sought medical treatment complaining of leg cramps.
On May 15, 1999, in the course of an unsuccessful attempt to kick the ball, Homen slipped, fell, and struck the floor as a result of his fall. The impact of his fall brought him to the wall, where he grazed his head. Homen did not notice any injury to his head until another inmate pointed it out. A group of inmates led Homen to Recreation Specialist David Alexander ("Alexander") who had been observing the inmates playing soccer at the time of the accident.
Alexander asked Recreation Specialist Glenn Summors ("Summors") over to obtain medical attention for Homen. Alexander observed that the scrape on Homen's head appeared to be a fingernail scratch, with a small amount of blood. Summors also observed that the scrape was not serious. Homen appeared to Alexander to be unconcerned about the injury and did not say he was in any pain. Summors immediately took Homen down to the MCC Health Services Unit. Homen was able to walk without difficulty.
At the MCC Health Services Unit, Homen was treated by Dr. Atef Aboulfateh ("Dr. Aboulfateh") who observed that Homen had suffered a three-centimeter abrasion on the scalp. Homen was no longer bleeding at the time Dr. Aboulfateh treated him and did not state to Dr. Aboulfateh that he was in pain.
Because Homen told Dr. Aboulfateh that he had hit his head on a nail, Dr. Aboulfateh cleaned the abrasion with an antiseptic solution, administered a tetanus shot, and dressed the abrasion with gauze and a bandage. Until Dr. Aboulfateh administered the antiseptic to the abrasion, Homen had not felt anything more than "a little bit of burning" from the injury. After Dr. Aboulfateh administered the shot, he told Homen he was "good to go."
Dr. Aboulfateh did not tell Homen to treat the abrasion further or take any medication. Although Homen did not complain of any pain on his head, he did complain of leg cramps. Dr. Aboulfateh prescribed a hot fomentation, which is a kind of warm compress, on the sore area for a half hour twice a day for five days. Homen did not seek any additional medical care for the injury.
In the day or two after the accident, Homen took one or two Tylenols to relieve topical discomfort, but felt no further pain of any kind two days after the accident. He did not experience any pain that kept him from sleeping, and pursued his normal routine of activities during the day. He took no other medication related to his injury.
Apart from the cost of one to two Tylenols, Homen incurred no medical expenses as a result of the injury. He lost no wages, nor suffered any monetary damages as a result of the injury.
On June 1, 1999, Homen filed an administrative tort claim with the Federal Bureau of Prisons ("BOP") seeking compensatory damages in the amount of $10,000,000. In a letter dated November 5, 1999, BOP denied the claim and notified him that he had six months from the date of the letter to bring an action against the United States.
Homen Assumed The Risk
The United States is immune from suit unless it consents to be sued. See United States v. Mitchell, 463 U.S. 206, 210-11 (1983). The United States has partially waived its sovereign immunity from suit, however, under the FTCA. See United States v. Orleans, 425 U.S. 807, 813 (1976). The FTCA provides that the United States shall be liable, to the same extent as a private party,
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.28 U.S.C. § 1346(b). Under the FTCA, the defendant's liability for negligence is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). See Molzof v. United States, 502 U.S. 301, 305 (1992); Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996) ("The liability of the federal government under the FTCA is generally determined by state law.").
Because the alleged acts or omissions giving rise to Homen's claims occurred in New York, Homen's claims are governed by New York law. To sustain a negligence claim in New York under the FTCA, plaintiff must produce facts that prove that the Government owed him a duty, the Government breached that duty, and, as a result of that breach, plaintiff suffered actual harm or injury. See Taylor v. United States, 946 F. Supp. 314, 317 (S.D.N.Y. 1996), aff'd, 121 F.3d 86 (2d Cir. 1997); see also Martin v. United States, 971 F. Supp. 827, 830 (S.D.N.Y. 1994); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 30, at 164-65 (5th ed. 1984).
To the extent that Homen's injury was the result of the jostling and falling inherent in the game of soccer, he assumed the risk of such injury by voluntarily participating, and thus waived the right to bring suit for any injuries that would be a reasonably foreseeable result of such participation.
The Second Circuit recently discussed the doctrine of primary assumption of the risk under New York law in Goodlett v. Kalishek, 223 F.3d 32 (2d Cir. 2000). Goodlett, which involved a death that occurred in the course of an airplane race, held that the district court had erred in allowing the jury to determine negligence because plaintiff's voluntary and knowing participation in a sporting event that involved certain known risks barred any recovery under the doctrine of primary assumption of the risk. Goodlett began by analyzing the New York Court of Appeals' decision in Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49 (1986). See Goodlett, 223 F.3d at 36. Turcotte held that by electing to participate in a sporting or recreational activity, an individual "consent[s] . . . to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of the participation." Turcotte, 68 N.Y.2d at 439, 510 N.Y.S.2d at 53. This consent relieves potential defendants of their duty to use reasonable care, see id. at 437-38, 510 N.Y.S.2d at 53, and, absent evidence of "reckless or intentionally harmful conduct," bars an action for personal injury, id. at 437, 510 N.Y.S.2d at 53; see also Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490, 494 (4th Dep't 1993) ("Primary assumption of risk eliminates . . . the tort-feasor's duty of care to the plaintiff and . . . constitutes a complete bar to recovery. . . .").
Primary assumption of the risk bars not only claims against co-participants in the sporting event, but also owners and operators of the venue where the recreational event was held.
In applying the doctrine of primary assumption of the risk, the Court must determine "whether an individual has assumed the risks inherent in a sport or recreational activity [, which] 'includes consideration of the participant's knowledge and experience in the activity generally.'" Goodlett, 223 F.3d at 36. Goodlett notes that there is abundant authority from New York courts indicating that a participant in a sporting or recreational event cannot sue for injuries sustained in the course of the event. See id. at 36-37 (citing inter alia, Morgan v. State, 90 N.Y.2d 471, 479-81 (1997), 662 N.Y.S.2d 421 (risks of crashing at the end of bobsled run)); Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 655, 543 N.Y.S.2d 29, 33-34 (1989) (risks of paralysis caused by block in high school football game); Flores v. City of New York, 266 A.D.2d 148, 148, 699 N.Y.S.2d 345, 346 (1st Dep't 1999) (risks of slipping or falling during outdoor basketball game); Sheridan v. City of New York, 261 A.D.2d 528, 528, 690 N.Y.S.2d 620, 620 (2d Dep't 1999) (same).
In this action, Homen was well aware that the game of soccer often involves jostling, pushing, and falling to the ground. As he admitted, "[i]n soccer as well as in most sports, a field sport, it is normally possible for people to bump into each other." (Homen Depo. at 119). There is no question but that Homen voluntarily participated in the soccer game. His voluntary decision to play soccer in the months he was experiencing leg cramps demonstrates that he had assumed greater risk than usual playing soccer.
To the extent that Homen's injury stemmed from the "rough and tumble" activity one might expect in a soccer game, he assumed the risk of injury and his negligence claim is barred.
Even if the alleged protruding nail, rather than Homen's fall while trying to kick the soccer ball, could be considered the proximate cause of his injury, the doctrine of primary assumption of the risk would still bar Homen's claim. The doctrine "applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on." Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 729 (1985) (citation omitted). In Maddox, the New York Court of Appeals ruled that primary assumption of the risk barred a claim against Shea Stadium by professional baseball player Elliot Maddox of the New York Yankees for slipping and falling on the field because Maddox knew of the muddy conditions that caused his injury. The court explained that, "[t]he risks of a game which must be played upon a field include the risks involved in the construction of the field, as has been held many times before." 66 N.Y.2d at 277, 496 N YS.2d at 729 (citations omitted). Similarly, in Welch v. Board of Educ. of the City of New York, 272 A.D.2d 469, 469, 707 N.Y.S.2d 506, 506 (2d Dep't 2000), the Appellate Division, Second Department ruled, as a matter of New York law, that:
The Government has contested that there was a nail. Homen did not say that he had hit his head against a nail in his first conversation with MCC staff and MCC staff never saw any nails protruding from the walls of the recreation area. This is not an issue of fact sufficient to preclude summary judgment, however, because as all the cases cited above illustrate, even if there was a nail Homen assumed the risk when he played a contact sport in an area undergoing renovation.
[i]t is well settled that when an individual voluntarily participates in a sport or recreational activity, he or she consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from participation therein. This includes those risks associated with the construction of the playing surface and any open and obvious condition on it.
Id. (emphasis added) (citation omitted); see also Garafola v. City of New York, 247 A.D.2d 581, 582, 668 N.Y.S.2d 503, 503 (2d Dep't 1998) (finding as a matter of law that football player assumed risks of playing on field "including those risks associated with the construction of the field"); Walner v. City of New York, 243 A.D.2d 629, 668 N.Y.S.2d 903 (2d Dep't 1997) (same); Touti v. City of New York, 233 A.D.2d 496, 650 N.Y.S.2d 977 (2d Dep't 1996) (same). Most recently, in Traficenti v. Moore Catholic High School, 282 A.D.2d 216, 724 N.Y.S.2d 24 (1st Dep't 2001), the Appellate Division, First Department notes that, "The risk posed [to] plaintiff by performing her cheerleading routine on a bare wood gym floor, as opposed to a matted surface, was obvious and, under the circumstances presented, must be deemed to have been freely assumed." 282 A.D.2d at 216, 724 N.Y.S.2d at 25.
New York appellate courts have applied these principles in cases to bar claims based on alleged hazardous conditions in the venues in which the sporting events occurred. In Schiffman v. Spring, 202 A.D.2d 1007, 609 N.Y.S.2d 482 (4th Dep't 1994), the Appellate Division ruled that the lower court erred in refusing to dismiss as a matter of law a complaint brought by a soccer player for an injury sustained on a muddy field, noting that plaintiff voluntarily participated in the game "with knowledge and appreciation of the risks inherent in playing on a field that was wet, slippery, and muddy." 202 A.D.2d at 1009, 609 N.Y.S.2d at 484; see also Ferraro v. Town of Huntington, 202 A.D.2d 468, 609 N.Y.S.2d 36 (4th Dep't 1994) (ruling that lower court erred as a matter of law in denying motion to dismiss claim brought by baseball player who collided into light pole on baseball field).
These principles bar Homen's claim in this case. The soccer game in this case was not a casual diversion on an unfamiliar grassy field. Homen knew that he was playing soccer on the roof of a metropolitan correctional facility that was undergoing renovation. Homen had previously participated in numerous soccer games on the roof of the MCC. MCC staff warned the inmates about the conditions on the roof. Homen had observed before the accident that the recreation area of the MCC was undergoing renovation, and that the protective mats covering certain portions of the walls had been removed.
Homen's claim is thus barred because "he had played on the very same court on prior occasions when similar conditions existed." Weithofer v. Unique Racquetball Health Clubs, Inc., 211 A.D.2d 783, 784, 621 N.Y.S.2d 384, 385 (2d Dep't 1995) (ruling that, as a matter of law, assumption of the risk barred plaintiff's claim for damages based on slipping and falling while playing on puddle-covered court); see also Reilly v. Long Island Junior Soccer League, 216 A.D.2d 281, 627 N.Y.S.2d 784 (2d Dep't 1995) (barring claim by soccer player who injured herself on wet soccer field because she had "played on the very same field on many prior occasions"). His admission that "it was very normal" to see pads that were damaged or removed in the course of renovation demonstrates that the allegedly hazardous condition was open and obvious.
Where a plaintiff was made aware of any risks related to the area where the sporting or recreational activity occurred, the complaint is subject to dismissal due to primary assumption of the risk. See Maddox, 66 N.Y.2d at 279, 496 N.Y.S.2d at 730; see also Welch, 272 A.D.2d at 469, 707 N.Y.S.2d at 506; Garafola, 247 A.D.2d at 581, 668 N.Y.S.2d at 503. Homen voluntarily assumed the risk of injury by his participation in a recreational activity, where he was aware of the condition of the area in which he was playing.
Homen Has Suffered No Damage
The complaint and his deposition establish that Homen's claim of damages in the amount of $10 million is not an injury that he actually suffered, but an injury that might have occurred, but did not. In his amended complaint, Homen explains, "I am imploring for compensation for my Physical [i]njury and for the imminent risk of a incurable damage in my brain, which I was exposed when I hit my head on '3 inch' nail." (Am. Comp. at 5). Homen avers, "I could have impaled that nail into my head and died," and "I also easily could have punctured my eye on this nail and would have been blinded in my eye." (Am. Comp. at 4). Homen amended the complaint "in order to emphasize this portion, which is the [m]ost important part of this lawsuit, due to imminent risk of cerebral damage or loss of life I was exposed to." (Homen Depo. at 101). At his deposition, Homen opined that the $10 million he is seeking is "a laughable sum, really," because it is too low: "I don't think it would be a lesser amount; because, the truth is, the risk I was exposed to was very serious, cerebral damage or death." (Homen Depo. at 132). As an initial matter, Homen is not permitted to any recovery to punish the United States. The FTCA plainly forbids punitive damages. See 28 U.S.C. § 2674 ("The United States . . . shall not be liable for interest prior to judgment or for punitive damages. . . ."); see also Hernandez v. United States, 86 F. Supp.2d 331, 335 n. 5 (S.D.N.Y. 2000) ("[E]ven if the Federal Tort Claims Act applied, punitive damages would not be available.").
Speculation as to what might have happened, but did not, provides no basis for any compensatory damages award, the only type of damages he is permitted to seek under the FTCA. See 28 U.S.C. § 2674. It is settled law in New York that "[m]ere conjecture, surmise or speculation is not enough to sustain a claim for damages." Fiederlein v. New York City Health Hospitals Corp., 56 N.Y.2d 573, 574, 450 N.Y.S.2d 181, 182 (1982); see also Felice Fedder Oriental Art, Inc. v. Scanlon, 708 F. Supp. 551, 558 (S.D.N.Y. 1989) (quoting Fiederlein). In New York, damages in personal injury actions are compensatory in nature, the measure of which consists of pain and suffering, mental suffering and anguish, loss of earnings, reasonable cost of medical treatment, physical disability and the permanence thereof, and other expenses incurred because of the injury. See 36 N.Y. Jur. 2d § 57, pp. 101-03; Warren's N.Y. Negligence, Vol. 7A, Chapter 4; see also McDougald v. Garber, 73 N.Y.2d 246, 253-57, 538 N.Y.S.2d 937, 939-41 (1989).
Homen's actual injuries for which he could be entitled to compensatory damages are de minimis, a three-centimeter abrasion, requiring only minor first aid. Homen took one or two Tylenols to relieve topical discomfort but felt no pain, had no difficulty sleeping in the days after the accident, nor had any problem going about his daily routine.
Where, as here, the injury is de minimis, Homen is not entitled to compensation for any pain and suffering. See Galaz v. Sobel Kraus, Inc., 280 A.D.2d 427, 427, 721 N.Y.S.2d 623, 624 (2001) (affirming jury award of damages for medical expenses, but no damages for pain and suffering). Moreover, his decision to play a team sport involving running and kicking on the roof of the MCC, notwithstanding his recurring leg cramps, while the area was undergoing open and obvious renovation, constitutes contributory negligence that should reduce his already de minimis damages even further. See N.Y. C.P.L.R. § 1411 (McKinney's 2001); Abbate v. Big V Supermarkets Inc., 95 Misc.2d 483, 407 N.Y.S.2d 821, 823 (3d Dep't 1978).
Even though the FTCA does not establish a threshold jurisdictional amount, a complaint may still be dismissed as frivolous under the in forma pauperis statute, which applies here to plaintiff. See September 25 Opinion, 2000 WL 1425048, at *1. Under 28 U.S.C. § 1915(e)(2)(B), in a case filed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . is frivolous or malicious [or] fails to state a claim on which relief may be granted." A claim for de minimis damages constitutes a frivolous claim within the meaning of this subsection. See, e.g., Deutsch v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995) (affirming district court's dismissal of FTCA complaint for several lost pens).
The in forma pauperis statute, 28 U.S.C. § 1915, "is designed to ensure that indigent litigants have meaningful access to the federal courts." Neitzke v. Williams, 490 U.S. 319, 324 (1989) (emphasis added) (citation omitted). Yet by the same token, § 1915(e)(2)(B) "is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit[.]" Neitzke, 490 U.S. at 327; see also Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989) ("Litigation in federal court is not a free good, and litigation by prisoners places heavy burdens not only on the courts themselves but on other litigants, whose cases are shoved further back in the queue."). Where, as here, "the record supports a finding that a reasonable paying litigant would not have filed the same claim after considering the costs of suit," the complaint should be dismissed. See Deutsch, 67 F.3d at 1089.
In this case, the Government's Statement of Undisputed Facts, affidavits submitted in support of the motion, medical records, and Homen's own admissions demonstrates that the actual compensable injury suffered by plaintiff — consisting of a few hours of discomfort and a few Tylenol — would likely not exceed the $150 filing fee. See 28 U.S.C. § 1914(a). The closest comparable case cited by the Government is McNeill v. State of New York, Doc. No. 78466-A, Claims Ct., Albany Cty., 2001 WL 722199, at *1 (LRP Jury), in which the court awarded $250 to a prisoner for facial lacerations, bloody nose, and abrasions.
In his opposition to the Government's motion, Homen has proffered belated Eighth Amendment "deliberate indifference" claims which were never plead in either Complaint. However, "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
There is no indication that the MCC officers Homen accuses of deliberate indifference knew of the alleged nails; to the contrary, they stated that they never saw any nails in the wall. (See Declaration of David Alexander, June 27, 2001, ¶ 17; Declaration of Glenn Summors, June 25, 2001, ¶ 13.) Nor is there any basis to conclude, in light of plaintiff's de minimis injuries, that the state of the recreation area posed "an excessive risk" to Homen or other inmates.
Homen's complaint is dismissed because it seeks speculative damages unavailable under New York law or punitive damages barred by the FTCA. To the extent that the complaint can be construed to assert any compensable injury, it is dismissed as asserting de minimis injuries under New York law and a frivolous claim under § 1915(e)(2)(B).
For the foregoing reasons, the Government's motion for summary judgment is granted and the complaint dismissed.
Submit judgment on notice.
It is so ordered.