Opinion
22-CV-7802 (LTS)
09-19-2022
JOSHUA GAMORA, also known as Joshua Gumora, Plaintiff, v. BOROUGH OF PRISONS; MCC STAFF; U.S. DEPT. OF JUSTICE, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
Plaintiff, who is currently incarcerated at the Anna M. Kross Center, brings this pro se action asserting claims for violations of his federal constitutional rights. Plaintiff alleges that, during his detention in federal custody at the Metropolitan Correctional Center (MCC), another prisoner sexually assaulted him. By order dated September 13, 2022, the Court granted Plaintiff's request to proceed in forma pauperis, that is, without prepayment of fees. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's in forma pauperis complaint, or any portion of the complaint, 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 if the court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
BACKGROUND
The following facts are alleged in Plaintiff Joshua Gumora's complaint. His claims arose on December 19 or 20, in an unspecified year, during his detention at MCC. (ECF 2 at 4.) Plaintiff states:
Plaintiff was in federal custody at some point after an arrest warrant was issued for him in December 2019 and during criminal proceedings against him, which ended in 2020. See United States v. Gumora, No. 1:20-CR-0144, 50 (VSB) (S.D.N.Y. Dec. 22, 2020). He may also have been in federal custody during his parole revocation proceeding, which was initiated in November 2021. Plaintiff has filed another civil action, against District Judge Broderick and others, arising out of that criminal proceeding, in which Plaintiff also describes the sexual assault at issue in this case. See Gumora v. Gumora, No. 22-CV-7659 (UA) (S.D.N.Y.).
I was raped and anally assaulted by a inmate after being given drugs secretly. I had made numerous complaints to the MCC about the drug problem prior to the rape. Also I was raped with a screwdriver belonging to the MCC....
I was placed in dangerous situations which caused me harm and injury including: after the rape, I was suicidal and against protocol was placed alone where I attempted suicide by cutting with a razor left in cell.(Id.)
The spelling and punctuation in the quoted material is from the original.
Plaintiff brings this suit against the Bureau of Prisons (BOP) (sued herein as “Borough of Prisons), “MCC Staff,” and the United States Department of Justice (DOJ). He seeks $5 million in damages for the harms that he has suffered.
DISCUSSION
A. Claims against “MCC Staff”
Plaintiff asserts claims for violations of his constitutional rights while in federal custody, and the complaint might therefore be liberally construed as asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[Bivens] is the federal analog to suits brought against state officials under [42 U.S.C. § 1983].”). The purpose of an implied Bivens action “is to deter individual federal officers from committing constitutional violations,” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001), and thus the only proper defendant for a Bivens claim is an individual federal official, Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86 (1994) (holding that a Bivens claim does not lie against a federal agency).
Plaintiff's allegations that MCC “staff” violated his constitutional rights by failing to protect him from sexual assault could be liberally construed as asserting a claim for deliberate indifference to a serious risk of harm to him. Such a claim arises under the Eighth Amendment for a convicted prisoner and under the Fourteenth or Fifth Amendment for a pretrial detainee. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Plaintiff alleges that he was a pretrial detainee when his claims arose. The Supreme Court has implied a damages remedy against federal employees under Bivens in the context of claims for: (1) unreasonable search and seizure under the Fourth Amendment, Bivens, 403 U.S. 388 (1971), (2) employment discrimination under the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and (3) inadequate medical treatment of a convicted prisoner under the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980).
In recent decisions, the Supreme Court has “made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017); see also Egbert v. Boule, 142 S.Ct. 1793, 1805 (2022) (holding in the context of a Fourth Amendment claim under Bivens that “superficial similarities are not enough to support the judicial creation of a cause of action”). These cases raise doubts whether a Bivens claim for damages will lie for a federal employee's deliberate indifference to a detainee's known risk of serious harm, in violation of the Fifth Amendment. The Court need not reach the issue at this stage, however, because Plaintiff has not pleaded facts that would state such a claim.
See, e.g., Turkmen v. Ashcroft, No. 02-CV-2307, 2018 WL 4026734, at *2 (E.D.N.Y. Aug. 13, 2018) (considering “whether a Bivens-type cause of action may properly be implied under the Fifth Amendment as the basis for plaintiffs' prisoner abuse claim” and concluding that it could not), report and recommendation adopted, 2021 WL 4099495 (E.D.N.Y. Sept. 9, 2021).
Though, typically, “the Bivens question . . . is ‘antecedent' to the other questions presented,” Hernandez v. Mesa, 137 S.Ct. 2003, 2006 (2017) (citing Wood v. Moss, 134 S.Ct. 2056, 2066 (2014)), the Supreme Court has endorsed “disposing of a Bivens claim by resolving the constitutional question, while assuming the existence of a Bivens remedy,” Id. at 2007.
The Supreme Court has held, in the context of state prisons, that prison officials are required to take reasonable measures to guarantee the safety of prisoners, including protecting them from harm caused by other prisoners. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). 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. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). The mere negligence of a correctional official is not a basis for a claim of a federal constitutional violation under Section 1983. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986).
Here, Plaintiff alleges that he raised concerns about drugs at MCC prior to his assault, but he does not allege facts about what he said or whether he put anyone on notice of the risk to him of an assault. Plaintiff has not named any individual employee who “knew or should have known of the risk of serious harm” to Plaintiff and was deliberately indifferent to that risk of serious harm. Plaintiff also alleges that he was left alone in a cell with a razor when he was suicidal but it is unclear if he alleges that some individual was aware of his suicidal ideation and knowingly placed him in that situation, with deliberate indifference to a risk of serious harm to him. Plaintiff's allegations are therefore insufficient to state a claim for damages based on any individual's deliberate indifference, in violation of the Fifth Amendment.
If Plaintiff chooses to replead this claim, and if he names an individual defendant (with the real name or as “John Doe”) and alleges facts sufficient to state a claim for deliberate indifference against such individual, then the Court must then evaluate whether the Supreme Court's recent decisions foreclose such a Bivens claim.
Plaintiff cannot seek damages under Bivens against a federal agency, such as the BOP or the DOJ. See FDIC v. Meyer, 510 U.S. 471, 485 (1994) (declining to imply a Bivens remedy against federal agencies). The Court therefore considers below whether Plaintiff's allegations could be construed as a claim against the United States DOJ and the BOP under the Federal Tort Claims Act (“FTCA”), codified at 28 U.S.C. §§ 1346(b), 2671-80.
B. Claims against the United States
Plaintiff sues two federal agencies, the DOJ and the BOP, for his injuries. “The United States, as sovereign, is immune from suit unless it waives immunity and consents to be sued.” See Cooke v. United States, 918 F.3d 77, 81 (2d Cir. 2019). The FTCA provides for a waiver of sovereign immunity for certain claims for damages arising from the tortious conduct of federal officers or employees acting within the scope of their office or employment. See 28 U.S.C. § 1346(b)(1). “The FTCA's purpose is both to allow recovery by people injured by federal employees or by agents of the Federal Government, and, at the same time, to immunize such employees and agents from liability for negligent or wrongful acts done in the scope of their employment.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005). Thus, “[t]he proper defendant in an FTCA claim is the United States, not individual federal employees or agencies.” Holliday v. Augustine, No. 3:14-CV-0855, 2015 WL 136545, at *1 (D. Conn. Jan. 9, 2015). Any claim that Plaintiff brings under the FTCA must therefore be asserted against the United States, rather than the BOP or the DOJ.
The Court also notes that an FTCA claim is available for tort claims but not for the violation of a constitutional right. See FDIC, 510 U.S. at 477-78 (“[T]he United States simply has not rendered itself liable under [the FTCA] for constitutional tort claims.”).
Before a federal court can entertain an FTCA claim, a plaintiff must comply with the FTCA's procedural requirements. See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999), abrogated on other grounds, United States v. Kwai Fun Wong, 575 U.S. 402 (2015). A claimant exhausts his administrative remedies by filing a claim for damages with the relevant federal agency. See 28 U.S.C. § 2675(a). Such an administrative claim must be in writing, must specify the amount of damages sought, and must be filed within two years of the claim's accrual. 28 U.S.C. §§ 2401(b), 2675(a). A claimant may challenge the agency's final denial in a federal district court by filing an action within six months of the federal agency's mailing of the notice of denial. See § 2401(b). If no written final determination is made by the federal entity within six months of the claimant's filing of the administrative claim, the claimant may then bring a FTCA action in a federal district court. See § 2675(a).
This exhaustion requirement is jurisdictional and cannot be waived. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005); see Phillips v. Generations Fam. Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013) (holding that a “claimant can only initiate his or her lawsuit once the claim has been denied by the agency or if the agency has failed to make a decision within six months after the claim was filed.”); McNeil v. United States, 508 U.S. 106, 112 (1993) (“Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process. Every premature filing of an action under the FTCA imposes some burden on the judicial system.”). Here, it is unclear from the allegations in Plaintiff's complaint whether he exhausted required administrative remedies before bringing this suit. Any claim under the FTCA therefore cannot proceed.
By contrast, “the FTCA's time bars are nonjurisdictional and subject to equitable tolling.” Kwai Fun Wong, 575 U.S. at 420.
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects unless it would be futile to do so. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because it is unknown whether Plaintiff exhausted his administrative remedies under the FTCA, the Court grants Plaintiff leave to file an amended complaint to assert claims under the FTCA. If Plaintiff chooses to file an amended complaint and includes an FTCA claim, he must substitute the United States of America as a defendant for the BOP and DOJ, and allege facts showing that he has fully exhausted the appropriate administrative remedies.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid claim for deliberate indifference or under the FTCA, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. First, Plaintiff must name as the defendant(s) in the caption and in the statement of claim those individuals who were allegedly involved in the deprivation of his federal rights. If Plaintiff does not know the actual name of a defendant, he may refer to that individual as “John Doe” or “Jane Doe” in both the caption and the body of the amended complaint. The naming of John Doe defendants, however, does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe” defendants and amending his complaint to include the identity of any “John Doe” defendants before the statute of limitations period expires. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
For example, a defendant may be identified as: “Correction Officer John Doe #1 on duty August 31, 2022, at Sullivan Correctional Facility, during the 7-3 p.m. shift.”
Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure.
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-7802 (LTS). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted as to his constitutional claim and for lack of jurisdiction as to the FTCA claim.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).