Opinion
20-CV-4392 (VEC) (BCM)
01-31-2022
ABRAHAM CRUZ, Plaintiff, v. SUZANNE HASTINGS, et al., Defendants.
HON. VALERIE E. CAPRONI, JUDGE
REPORT AND RECOMMENDATION
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Plaintiff Abraham Cruz alleges that on October 14, 2012, while he was housed at the Metropolitan Correctional Center (MCC) in New York City for a competency evaluation, his cellmate assaulted him, leaving a bump on the back of his head. In this action, plaintiff sues the MCC warden and the psychologist who evaluated him, alleging that they violated the United States Constitution by leaving him in the same cell, with the same cellmate, after an earlier incident in which the cellmate attempted violence. Plaintiff further alleges that the psychologist performed an "incomplete" evaluation and that the warden "had an illegal seminar" about him.
Now before me for report and recommendation is defendants' motion (Dkt. No. 51) to dismiss Third Amended Complaint (TAC) (Dkt. No. 39) pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, Fed.R.Civ.P. 56. As discussed in more detail below, the Court need not rely on extrinsic material to determine that this action is time-barred and that, in any event, plaintiff has failed to state any claim upon which relief may be granted. I therefore recommend, respectfully, that defendants' motion be granted pursuant to Rule 12(b)(6).
I. BACKGROUND
A. Facts
The following facts are taken from the records of the United States District Court for the Middle District of Pennsylvania in United States v. Abraham Cruz, No. 11-CR-242 (CCC) (hereafter US v. Cruz), and from the comprehensible portions of the plaintiff's operative pleading in this action.
Portions of the TAC are nonsensical. For example, Part VI, titled "Relief," begins as follows: "Superlative, Pain and Suffering, the Sufferings of their putting Mr. Cruz in the Zone of Danger, put in imminent danger, knowingly beknowneth, understandingly, wrecklessly endangerment of seriously bodily, mentally, spiritually, physical injury and/or death. To face Death Penalty Jury Trial, on Bazooka Joe. While on, at disposition, besieged, undersieged and sieged on Attacks. Relievers; On Tylenol, Lithium, Creams and Scuds . . . I ate." TAC at 11.
On August 10, 2011, plaintiff was indicted in the Middle District of Pennsylvania. US v. Cruz, ECF No. 11. On April 3, 2012, after a jury trial before the Hon. Christopher C. Conner, United States District Judge, plaintiff was found guilty on two counts of threatening a federal law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B). Id., ECF No. 59. On September 10, 2012, acting pursuant to 18 U.S.C. § 4241(b), Judge Conner ordered that plaintiff be evaluated to determine whether he was competent to proceed with sentencing. Id., ECF Nos. 81 (sealed order), 91 (¶ 3), 111 (¶ 3). On October 12 and November 6, 2012, Suzanne R. Hastings, the warden of the MCC, wrote to Judge Conner to report that plaintiff was "designated at" the MCC for that purpose and had arrived on October 3, 2012. Id., ECF No. 89, 92. William Ryan, Ph.D., a forensic psychologist at the MCC, performed the evaluation. Id., ECF Nos. 91 (¶ 4), 102.
On Sunday, October 7, 2012, while plaintiff was held at the MCC, his cellmate (identified by plaintiff as "Mr. Mannanlein" or "Mannanleinn") "swung a razor at an Inmate and me." TAC at 5, 6. A correction officer searched the cell, "found nothing," and left plaintiff in the cell "with him." Id. at 6. The following Thursday, plaintiff told Dr. Ryan about the razor incident. Id. at 7. On Sunday, October 14, 2012, the cellmate "choked [plaintiff] and broke [his] neck . . . as [he] brushed [his] teeth in the mirror," leaving "a contusion, a bump on back of head." Id. Thereafter, while plaintiff was at the medical unit asking for Tylenol (for a "terrible headache"), Dr. Ryan arrived and asked plaintiff, "Do you feel like killing yourself right now?" Id. at 8. Finding this question offensive, plaintiff "snapped out on him for it," and Dr. Ryan had him "locked up." Id. Additionally, plaintiff alleges, Dr. Ryan performed an "incomplete" evaluation. Id. at 5, 8. At some point, plaintiff was transferred to the "Mental Health Hospital" in Butner, N.C. (presumably FMC Butner), id. at 8, where another (unnamed) mental health professional relied on Dr. Ryan's incomplete evaluation to "testify against Mr. Cruz" in Pennsylvania. Id. at 5, 8, 10.
Plaintiff blames his cellmate, not Dr. Ryan, for the transfer to Butner. See TAC at 8 ("Dr. Ryan's 'incomplete' Evaluation did not cause my transfer, Mr. Mannanleinn's act upon me did.").
On February 12, 2013, after an evidentiary hearing in the Middle District of Pennsylvania, Judge Conner found Cruz incompetent to proceed with sentencing. See U.S. v. Cruz, ECF Nos. 102 (sealed order), 111 (¶ 4), 119 (¶ 7). Thereafter, based on a "competency restoration study" performed at Butner, the government sought and obtained authorization to involuntarily medicate plaintiff in an effort to restore him to competency. Id. at ECF Nos. 111, 119. Two and a half years later, on August 18, 2015, Judge Conner sentenced plaintiff to 80 months in prison, much of which he had already served. Id. at ECF Nos. 175, 182, at 31-32.
Before pronouncing sentence, Judge Conner noted that Cruz had a long history of mental illness and "was involuntarily medicated for the purpose of rendering him competent to stand for sentencing today." US v. Cruz, ECF No. 182, at 16-17. However, the court concluded, his mental illness was not sufficiently "extraordinary" to warrant a downward departure. Id. at 17.
In June 2019, plaintiff was tried and convicted of murder in a Pennsylvania state court. See Commonwealth v. Cruz, 240 A.3d 936 (Pa. Super. Ct. 2020) (affirming judgment of sentence). He is now incarcerated in a Pennsylvania state prison.
B. Procedural Background
Plaintiff filed his initial Complaint, pro se, on April 6, 2020, in the Middle District of Pennsylvania, naming as defendants the "Federal Government," "I.C.M. Manhattan, N.Y.," and three individuals: the "Director," a "Psychiatrist," and an "Inmate/cellmate," further identified as Mr. "Mannlen." Compl. (Dkt. No. 1) at 3-4. Plaintiff alleged that his cellmate tried to break his neck; that the psychiatrist asked him if he felt like killing himself; and that after plaintiff "snapped out at him," the psychiatrist had plaintiff locked up and transferred to Butner, and "made me an Incompetent." Id. at 4. He also complained about his criminal convictions and sentences, seeking "dismissal," "annulment," or resentencing. Id. at 4-5. On June 8, 2020, the Middle District of Pennsylvania transferred the action to the Southern District of New York. (Dkt. No. 11.)
On June 30, 2020, the Hon. Colleen McMahon, United States District Judge, granted plaintiff's application to proceed in forma pauperis. (Dkt. No. 13.) Thereafter, on July 1, 2020, this case was reassigned to the Hon. Louis L. Stanton, United States District Judge. By Order to Amend dated July 13, 2020 (Dkt. No. 14), Judge Stanton severed the claims that appeared to challenge plaintiff's 2015 conviction, and transferred them back to the Middle District of Pennsylvania. Order to Amend at 5. Additionally, Judge Stanton dismissed plaintiff's claims against the United States; construed his allegations against individual prison officials in New York as a claim under Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), seeking damages for failing to protect him from assault by another prisoner and/or for retaliating against him after he reported the assault; dismissed those claims for failure to allege sufficient facts to warrant relief; and gave plaintiff leave to amend, along with guidance concerning applicable pleading standards. Order to Amend at 5-13.
On July 15, 2021, Judge Conner construed those claims as a petition for habeas corpus relief pursuant to 28 U.S.C. § 2255(a) and denied the petition as untimely. US v. Cruz, ECF No. 198.
On September 1, 2020, plaintiff filed an Amended Complaint (Dkt. No. 17), still identifying the individual defendants, for the most part, by title or job description rather than by name. On October 7, 2020, this action was reassigned to the Hon. Valerie E. Caproni, United States District Judge, who referred it to me or general pretrial management and report and recommendation on dispositive motions. (Dkt. No. 22.) Thereafter, prompted by a series of court orders, the Bureau of Prisons (BOP) ultimately confirmed that Cruz was housed at the MCC from October 3 to November 20, 2012, and identified most of the MCC personnel described in his pleadings. (Dkt. Nos. 27, 35.) Plaintiff, in turn, filed a Second Amended Complaint on December 29, 2020 (Dkt. No. 31), and then, on March 2, 2021, filed the TAC now before the Court. On April 2, 2021, I issued an order of service as to Warden Hastings and Dr. Ryan (Dkt. No. 44), and on June 4, 2021, they filed their motion to dismiss, supported by a memorandum of law (Def. Mem.) (Dkt. No. 52) and the Declaration of Marc Peakes (Dkt. No. 53), attesting that the BOP has no record of Cruz filing any grievances while incarcerated at the MCC. On June 8, 2021 (after additional judicial prompting, see Dkt. No. 55), defendants served plaintiff with the notice required by Local Civil Rule 12.1. (Dkt. No. 56.)
According to the BOP, plaintiff's MCC cellmate was Michael McManus, who was no longer in federal custody. (Dkt. No. 35.)
In their brief, defendants assert that plaintiff was evaluated by Dr. Ryan on November 15, 2012; that he reported the alleged assault by his cellmate three days later, on November 18, 2012; and that he was transferred out of the MCC "two days later." Def. Mem. at 2. However, defendants have not submitted any admissible evidence supporting these assertions. For purposes of the present motion, therefore, I rely on the dates and other facts alleged in plaintiff's pleading (insofar as they can be discerned) and those appearing in the records of US v. Cruz.
On November 9, 2021, plaintiff filed a document entitled "Motion to Contour Compliance" (Pl. Opp.) (Dkt. No. 66), which appears to constitute his opposition to defendants' motion. In that document, plaintiff asserts that defendants' "Deliberate Indifferences [sic] was proved" when he was left in his cell with "Assailant Mr. Mannanlein" after the razor incident. Pl. Opp. at 3. Plaintiff adds that he saw Dr. Ryan the following Thursday and that Ryan "knew of the Incident, and still left me there with him after told of it again, before Assault on Sunday. Two Incident, no reaction." Id. On November 17, 2021, defendants declined to file reply papers, advising that they would rely on their initial motion papers. (Dkt. No. 69.)
C. Plaintiff's Claims
Plaintiff identifies the legal basis for his suit as a violation of his "federal constitutional rights," specifically: "No Avails," "Incommunicado (2008)," "Zone of Danger (3)," "Cloaks and Daggers," and "Incompetence." TAC at 2. Later in his pleading he alleges, more conventionally, that "Prison Officials acted with 'Deliberate Indifference' to Mr. Cruz's safety, by leaving Mr. Cruz at same cell with Mr. Mannanlein for a week after the first incident." Id. at 7. As to Warden Hastings, however, plaintiff alleges no facts other than that she "had an illegal Seminar about Mr. Abraham (Junior) Cruz before arrival . . . no first impressions." Id. at 6.
II. LEGAL STANDARDS
Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." If a complaint fails to present "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," the deficient claims must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Presented with a Rule 12(b)(6) motion, the trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dunn & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). However, those factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Thus, "a pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (internal citations omitted) (quoting Twombly, 550 U.S. at 555, 557). The courts will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79.
In addition to the facts alleged in the complaint itself, a court faced with a Rule 12(b)(6) motion may consider "'any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint.'" L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). The court may also consider any matters of which it may take judicial notice, including the proceedings of other courts of record - "not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991); see also Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008) ("Matters judicially noticed by the District Court are not considered matters outside the pleadings.").
B. Pro Se Parties
A pro se plaintiff is "'entitled to special solicitude, '" and the court must "read his pleadings 'to raise the strongest arguments that they suggest.'" Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam)). Pro se status, however, "does not exempt a party from compliance with relevant rules of procedural and substantive law." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348 (S.D.N.Y. 2009). A pro se plaintiff, like any other, "must state a plausible claim for relief," Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013), and the court cannot "invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
C. Bivens Claims
To state a valid Bivens claim against a federal official, the plaintiff must allege that "he has been deprived of a constitutional right by a federal agent acting under color of federal authority." Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006). A Bivens plaintiff, like a plaintiff suing state officials under 42 U.S.C. § 1983, "must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 663; see also Thomas, 470 F.3d at 496 ("[I]nBivens actions, a plaintiff must allege that the individual defendant was personally involved in the constitutional violation."); Marsden v. Fed. Bureau of Prisons, 856 F.Supp. 832, 835 (S.D.N.Y. 1994) ("Under Bivens, as under § 1983, a defendant's 'personal involvement' in an alleged deprivation of constitutional rights is a prerequisite to an award of damages."). The "personal involvement" requirement is satisfied where "a plaintiff demonstrates that a defendant directly participated in the acts alleged to constitute a violation of plaintiffs rights." Wallace v. Conroy, 945 F.Supp. 628, 637 (S.D.N.Y. 1996).
The statute of limitations for a Bivens action arising in New York is three years. Gonzalez v. Hasty, 802 F.3d 212, 219-20 (2d Cir. 2015); Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999). "A Bivens claim accrues under federal law for statute of limitations purposes when a plaintiff either has knowledge of his or her claim or has enough information that a reasonable person would investigate and discover the existence of a claim." Gonzalez, 802 F.23 at 220.
D. Deliberate Indifference
Since plaintiff had not been sentenced when he was designated at the MCC, and no judgment of conviction had been entered in US v. Cruz, his deliberate indifference claim is "governed by the Due Process Clause of the [Fifth] Amendment rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment." Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). The Eighth Amendment does not apply to detainees because they "have not been convicted of a crime and thus 'may not be punished in any manner - either cruelly and unusually nor otherwise.'" Id. (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)).
Darnell "implicate[d] the Due Process Clause of the Fourteenth Amendment" because the plaintiffs in that case were in state custody. 849 F.3d at 21 n.3. Where, as here, the plaintiff was in federal custody, the same analysis is performed under the Due Process Clause of the Fifth Amendment. Id. (citing Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J., concurring) ("To suppose that 'due process of law' meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.")); see also Martinez v. United States, 2021 WL 4224955, at *5 (S.D.N.Y. Sept. 16, 2021) (Caproni, J.) (applying Darnell to deliberate indifference claim brought by federal detainee under the Fifth Amendment).
"The Constitution imposes a duty on prison officials to 'take reasonable measures to guarantee the safety of the inmates, '" Luckey v. Jonas, 2019 WL 4194297, at *3 (S.D.N.Y. Sept. 4, 2019) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)), including by protecting them from "violence at the hands of other prisoners." Farmer, 511 U.S. at 833. However, not every injury sustained in an inmate-on-inmate assault "translates into constitutional liability for prison officials responsible for the victim's safety." Id. at 834. A prison official's failure to protect a pretrial detainee rises to the level of a Due Process violation only "where the officer acted with 'deliberate indifference to a substantial risk of serious harm to an inmate.'" Rosen v. City of New York, 667 F.Supp.2d 355, 359-60 (S.D.N.Y. 2009) (quoting Farmer, 511 U.S. at 828).
"A pretrial detainee asserting a failure-to-protect claim under the Due Process Clause must plead two elements: (1) an 'objective' element, which requires a showing that the risk of harm is sufficiently serious, and (2) a 'mental' element, which requires a showing that the officer knew or should have known of the risk of serious harm but acted with deliberate indifference to that risk." Brown v. Warden NYCDOC MDC, 2020 WL 1911186, at *3 (S.D.N.Y. Apr. 17, 2020) (quoting Darnell, 849 F.3d at 29); accord Herbert v. Smith, 2021 WL 3292263, at *5 (S.D.N.Y. Aug. 2, 2021); House v. City of New York, 2020 WL 6891830, at *11 (S.D.N.Y. Nov. 24, 2020); Quinones v. Rollison, 2020 WL 6420181, at *7 (S.D.N.Y. Nov. 1, 2020); Taylor v. City of New York, 2018 WL 1737626, at *11 (S.D.N.Y. Mar. 27, 2018).
Under the first prong, the plaintiff (whether a convict or a detainee) "'must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage'" to his health or safety. Darnell, 849 F.3d at 30 (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)). Under the second prong, a detainee must show "that the defendant-official acted intentionally . . . or recklessly failed to act with reasonable care to mitigate the risk . . . to the pretrial detainee even though the defendant-official knew, or should have known," that there was an "excessive risk to health or safety." Id. Mere negligence will not suffice. Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019). However, the Due Process Clause (unlike the Eighth Amendment) "can be violated when an official does not have subjective awareness that the official's acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm." Darnell, 849 F.3d at 35 . Thus, a deliberate indifference claim brought under the Due Process Clause "does not require proof of a malicious or callous state of mind." Charles, 925 F.3d at 86.
E. Administrative Exhaustion
The Prison Litigation Reform Act (PLRA) provides that "[n]o action shall be brought with respect to prison conditions under . . . any . . . Federal law, by a prisoner in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This exhaustion requirement, which applies to "federal prisoners suing under Bivens," encompasses "all inmate suits about prison life, whether they involve general circumstances or particular episodes." Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). "Exhaustion is mandatory - unexhausted claims may not be pursued in federal court." Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011).
III. ANALYSIS
A. This Action Is Time-Barred
In a Bivens action, the statute of limitations "provides an affirmative defense," Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011), meaning that dismissal on limitations grounds under Rule 12(b)(6) "is appropriate only if the 'complaint clearly shows the claim is out of time.'" Fernandini v. United States, 2017 WL 3208587, at *9 n.7 (S.D.N.Y. July 26, 2017) (quoting Biro v. Conde Nast, 963 F.Supp.2d 255, 266 (S.D.N.Y. 2013)). See also Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998) (if a limitation defense "appears on the face of the complaint," it may be adjudicated pursuant to Rule 12(b)(6)); Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014) ("Although the statute of limitations is ordinarily an affirmative defense . . . [it] may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint.").
In this case, the time bar is clear from the face of the complaint, which alleges that the assault by plaintiff's cellmate took place on October 14, 2012. TAC at 5. Moreover, although plaintiff does not specify the date on which Dr. Ryan performed the "incomplete evaluation," he explains that it was used against him in "Federal Court in Harrisburg, PA," to "hold Mr. Cruz incompetent." Id. at 8, 10. The Court can take judicial notice of the fact that US v. Cruz was litigated in the Harrisburg Division of the Middle District of Pennsylvania, and that plaintiff was found incompetent in that case on February 12, 2013. See U.S. v. Cruz, ECF Nos. 98 (sealed report), 102 (sealed order), 106 (¶ 4), 180-82. Since plaintiff did not file this action until April 6, 2020 -more than seven years after the relevant events at the MCC - all of his Bivens claims, however denominated, should be dismissed as time-barred. See Tigano v. United States, 527 F.Supp.3d 232, 256 (E.D.N.Y. 2021) (dismissing Bivens claims against unserved "John Doe" defendants as time-barred); Barone v. United States, 2014 WL 4467780, at *16 (S.D.N.Y. Sept. 10, 2014) (dismissing Bivens claims against FBI agents as time-barred where complaint was filed 3 months after the 3-year statute of limitations expired).
B. Plaintiff Has Failed to State a Claim for Deliberate Indifference
The TAC, augmented by plaintiff's submission in opposition to the motion to dismiss, alleges that his cellmate "swung a razor" at him and another inmate, but that a correction officer "found nothing" after a search, and left both men in the same cell. TAC at 6. Four days later, plaintiff told Dr. Ryan about the razor incident, but Dr. Ryan "still left me there with him." Pl. Opp. at 3. Three days after that, the cellmate assaulted plaintiff - apparently with his bare hands -leaving him with a bump on the back of his head and a headache. TAC at 7. Plaintiff does not allege that the cellmate had a razor (or any other weapon) during this assault. Nor does he claim any serious or lasting injury.
These facts, accepted as true for purposes of the pending motion, fail to satisfy the standard laid out in Darnell. Although plaintiff alleges that his cellmate possessed and threatened him with a razor - which if true would constitute a serious threat of harm - he also alleges that a correction officer was promptly "called over," "searched the cell," but "found nothing." TAC at 6. That officer (perhaps concluding that plaintiff was mistaken, or even that he fabricated the razor incident) determined that there was no need to remove either man from the cell. Id. Plaintiff offers the Court no basis on which it could conclude that this determination was negligent, much less reckless. Moreover, by the time plaintiff told Dr. Ryan about the razor, four additional days had passed without incident, TAC at 7, giving the psychologist even less reason to believe that plaintiff faced a serious risk of violence at the hands of his cellmate. Thus, even assuming that "the Bivens remedy extends to this context" (which defendants dispute, see Def. Mem. at 6-9), and that Dr. Ryan had some responsibility for plaintiff's housing arrangements (which the parties do not address), plaintiff has not plausibly alleged that Dr. Ryan "acted with deliberate indifference to [the] risk" of assault by the cellmate. Brown v. Warden NYCDOCMDC, 2020 WL 1911186, at *3.
Plaintiff's remaining allegation against Dr. Ryan - that he performed an "incomplete" evaluation that was later used to find plaintiff incompetent to stand for sentencing in US v. Cruz, see TAC at 5, 8, 10 - appears to accuse him of professional negligence, which is not cognizable under the Due Process Clause. Charles, 925 F.3d at 87.
As for Warden Hastings, plaintiff does not allege that she ever knew about the razor incident, much less that she was "personally involved," Thomas, 470 F.3d at 496, in the decision to leave him in the same cell with the same cellmate. Consequently, even if lower-level MCC officials could be held liable under Bivens for that decision, Hastings could not. "Federal officials who are not personally involved in an alleged constitutional deprivation may not be held vicariously liable under Bivens for the acts of subordinates." Khan v. United States, 271 F.Supp.2d 409, 413 (E.D.N.Y. 2003) (citing Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981)); see also Barone, 2014 WL 4467780, at *15 (dismissing Bivens claim against defendant Rocah where "there are no specific allegations of actions taken by [her] that could support a claim that she was directly involved in violating plaintiff's constitutional rights"). Nor has plaintiff stated any cognizable claim against Warden Hastings - constitutional or otherwise - for conducting a "seminar" about him before his arrival at the MCC. TAC at 6.
Defendants contend that plaintiff's claims should also be dismissed because he failed to exhaust his administrative remedies. They argue that "the Complaint contains not a single allegation suggesting that Plaintiff has exhausted his administrative remedies - let alone that he even attempted to exhaust those remedies," Def. Mem. at 5, and add that "MCC records confirm that Plaintiff did not pursue administrative remedies" Id. (citing Peakes Decl.¶ 9). However, "[f]ailure to exhaust 'is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints.'" Parris v. New York State Dep't Corr. Servs., 947 F.Supp.2d 354, 361 (S.D.N.Y. 2013) (quoting Jones v. Bock, 549 U.S. 199, 216 (2007)). Since the TAC does not show on its face that plaintiff failed to exhaust his administrative remedies, and since this is not a matter of which the Court may take judicial notice, it is not a ground for dismissal pursuant to Rule 12(b)(6). Moreover, defendants failed to comply with Local Civil Rule 56.1(a), which requires a party seeking summary judgment to submit a separate statement setting out "the material facts as to which the moving party contends there is no genuine issue to be tried"). I therefore recommend that the Court dismiss this action pursuant to Rule 12(b)(6) - which it has ample grounds to do without reaching the exhaustion issue - and decline defendants' invitation to grant the branch of their motion made pursuant to Rule 56.
C. No Leave to Amend Should be Granted
While leave to amend a complaint should be freely given "when justice so requires," Fed.R.Civ.P. 15(a)(2), it is "within the sound discretion of the district court to grant or deny leave to amend." McCarthy, 482 F.3d at 200. Here, plaintiff has already amended his complaint three times, does not seek leave to amend again, and has never described any facts that, if pled, would render viable any of his claims. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (affirming denial of leave to amend where the pro se plaintiff "suggested no new material she wishes to plead").
Moreover, given the insurmountable obstacle posed by the statute of limitations, amendment would be futile. See Barone, 2014 WL 4467780, at *16 ("In light of the time-bar on plaintiff's false-imprisonment Bivens claim, it would be futile for him to amend the claim[.]"). Consequently, no leave to amend should be granted.
IV. CONCLUSION
For the reasons set forth above, I recommend, respectfully, defendants' motion (Dkt. No. 51) be GRANTED and that plaintiff's Third Amended Complaint be DISMISSED without leave to amend. The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se plaintiff.
Because plaintiff is proceeding in forma pauperis, this Court is authorized to "dismiss the case at any time," including as against unserved defendants, if it determines that the action "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). Where, as here, a motion to dismiss has been made by some but not all defendants, the Court can (and arguably should, so as to prevent piecemeal adjudication) consider the viability of the plaintiff's remaining claims as well, including those asserted against unserved named defendants, see, e.g., Williams v. Novoa, 2022 WL 161479, at *10-13 (S.D.N.Y. Jan. 18, 2022) (granting motion to dismiss made by three "Served Defendants" and going on to dismiss plaintiff's claims against seven "Unserved Defendants" for failure to state a claim under § 1983), and those asserted against John Doe defendants. See, e.g., Tigano, 527 F.Supp.3d at 256 (dismissing claims against unserved John Doe defendants on limitations grounds). Here, all of plaintiff's Bivens claims against the unserved defendants (including "three other" MCC correctional officers, who were never identified, see TAC at 4) are necessarily barred by the three-year statute of limitations; consequently, the Court may dismiss all of plaintiff's federal claims, against all defendants, pursuant to Rule 12(b)(6). To the extent plaintiff may have intended to plead state law claims against any of the unserved defendants, they should be dismissed without prejudice. Williams, 2022 WL 161479, at *12.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Valerie E. Caproni at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned Magistrate Judge. Any request for an extension of time to file objections must be directed to Judge Caproni. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).