Opinion
99 Civ. 0923 (SAS)
May 6, 2000
Pro Se, James Mallard a/k/a Fred Brown, #15995-056, MCC, New York, NY, for Plaintiff.
Nicole L. Gueron, Esq., Assistant U.S. Attorney, Southern District of New York, New York, NY, for Defendants.
OPINION AND ORDER
Plaintiff James Mallard, proceeding pro se, brings this action against the United States of America, the Federal Bureau of Prisons ("BOP"), and Fred Menifee, Warden of the Federal Correctional Institution in Otisville, New York ("FCI Otisville"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (b) and 2671 et seq., alleging that defendants negligently failed to secure plaintiff's personal property. See Complaint ("Compl") at 1. Plaintiff seeks damages in the amount of $801.60. See id.
Plaintiff now seeks to amend his Complaint in at least three ways. He first seeks to amend his Complaint by asserting a claim against Warden Menifee under the authority of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Menifee personally deprived him of due process of law in violation of the Fourteenth Amendment. See Memorandum of Law in Support of Amended Tort Claim ("Mallard Mem.") at 10-11. He also seeks to add a claim against the United States and the BOP, alleging that they deprived him of rights and immunities secured by the Constitution. See id. at 10. Third, plaintiff seeks to add a claim against Warden Menifee, the BOP and the United States for emotional distress due to the loss or theft of his eyeglasses. See id. Finally, plaintiff seeks increased damages as a result of the addition of the emotional distress claim. See id. at 9-10. For the reasons set forth below, leave to amend is denied.
I. Factual Background
The following facts are taken from the Complaint which is in narrative form and lacks numbered paragraphs. On December 8, 1997, plaintiff was transferred from FCI Otisville to Queens County, New York, for trial.See Compl. at 1. Mallard returned to FCI Otisville on February 28, 1998, and discovered that some personal belongings which he had left at FCI Otisville were missing. He alleges that the property was either lost or stolen while in the care of the staff at FCI Otisville. See id.
II. Procedural History
On or about March 13, 1998, plaintiff filed an administrative tort claim with the BOP, alleging that the negligence of the BOP and Warden Menifee caused the loss or theft of his personal property and claiming a total property loss of $801.60. See Affidavit of James Mallard in Support of Motion Requesting Permission to Amend ("Mallard Aff.") at 4. On August 21, 1998, the BOP offered Mallard $100 as a settlement, which he refused. See id. Plaintiff also refused subsequent offers of $350 and $600. See id. Plaintiff then filed suit in this Court on February 8, 1999, seeking $801.60 in damages. See Compl. at 1. That same day plaintiff filed a Notice of Motion to proceed in forma pauperis ("IFP"). As part of his IFP motion, Mallard alleged that "whoever was in charge at [FCI Otisville] should have made certain that all [his] personal belongings were safe and secure," and that as a result of the loss of his property, his Fifth and Fourteenth Amendment rights were violated. See IFP Motion at 4.
III. Discussion
Where plaintiff is proceeding pro se, a court must liberally construe the allegations of the complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se complaint held "to less stringent standards than formal pleadings drafted by lawyers"); Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). Furthermore, a pro se complaint is interpreted so as "to raise the strongest arguments that [it] suggests." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (citation omitted). In fact, "courts may look to submissions beyond the complaint to determine what claims are presented by an uncounseled party." Boguslavsky v. Kaplan, 159 F.3d 715, 719 (2d Cir. 1998) (holding that pro se litigant should be afforded flexibility in pleading his action); see also Sowell v. Sheinberg, 89 Civ. 1162, 1990 WL 127599, at *1 (E.D.N.Y. Aug. 10, 1990) (submission bypro se plaintiff of additional memorandum of law and statement of claim document constituted a request by plaintiff to supplement his complaint). Mindful of these principles, I construe Mallard's IFP motion as part of his original complaint.
Generally, leave to amend "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), and a pro se litigant in particular "should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984). The decision to grant or deny leave to amend lies within the discretion of the district court. See Foman v. Davis, 371 U.S. 178, 182 (1962). A motion to amend should be granted in "the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, [or] futility of amendment . . ." Id.; Marchi v. Board of Coop. Educ. Servs. of Albany, 173 F.3d 469, 477-78 (2d Cir. 1999) ("Although leave to amend is usually freely granted, it may be denied within the trial court's discretion where the proposed amendment would be futile.") (citation omitted). A proposed amendment is considered futile if it fails to state a valid, cognizable claim. See Campbell v. Coughlin, 88 Civ. 697, 1994 WL 114831, at *3 (S.D.N.Y. Mar. 31, 1994) ("A proposed amendment will be considered futile if it fails to state a claim or would be subject to a motion to dismiss on some other basis.") (citation omitted). For the reasons set forth below, plaintiff's motion to amend his complaint is futile because the proposed amendments fail to state any valid, cognizable claims. Accordingly, leave to amend is denied.
A. Plaintiff Fails to Assert A Bivens Claim Against Warden Menifee
In support of his motion to amend his complaint, plaintiff asserts that "defendant's intentional negligent conduct deprived [him] of [his] rights and privileges secured by the United States Constitution," under the Fourteenth Amendment. See Mallard Mem. at 10-11. Plaintiff asserts that "defendant had 24 to 72 hour[s] advance notice of [plaintiff's transfer from FCI Otisville] and he intentionally stood by and did absolutely nothing . . . [He] did nothing to secure petitioner's personal property."Id.
Applying a liberal and broad construction, as required, plaintiff appears to assert a Bivens claim against Warden Menifee for damages arising from the intentional deprivation of property without due process of law. Bivens provides a remedy for intentional deprivations of property without due process of law by authorizing lawsuits for damages against responsible federal officials in their individual capacities. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484 (1994); Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 650 (2d Cir. 1998). However, to establish a Bivens claim, plaintiff must allege facts showing that the individual defendant personally participated in the alleged Constitutional violation. Conclusory allegations, standing alone, are not sufficient. See Barbara v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (holding that plaintiff failed to plead a cognizable claim for relief when she did not allege any personal involvement by defendant supervisor). Thus, to be liable under Bivens, a defendant must either be personally involved in the violation of plaintiff's rights, or must have created or acquiesced in a policy or practice of poor training or supervision, or otherwise must have acted recklessly in managing his or her subordinates. See id.
The fact that Warden Menifee ultimately supervised those who allegedly violated plaintiff's Constitutional rights is not enough to substantiate a Bivens claim against him. See Shannon v. United States Parole Comm'n, 97 Civ. 6420, 1998 WL 557584, at *2 (S.D.N.Y. Sept. 2, 1998) (citingEllis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981)) ("[R]espondeat superior generally does not apply in § 1983 and consequently in Bivens-type actions")). Supervisors are not liable under Bivens based solely on the alleged misconduct of their subordinates. See Leonhard v. United States, 633 F.2d 599, 621 n. 30 (2d Cir. 1980) (affirming dismissal of action against federal defendants because there was no allegation they participated personally in the alleged Constitutional deprivation); Black v. United States, 534 F.2d 524, 527 (2d Cir. 1976) (plaintiff inBivens-type actions must allege defendant's direct and personal responsibility for the unlawful conduct of his subordinates). Mallard cannot bring a Bivens claim against Warden Menifee based solely on his position as Warden — he must allege Menifee's "direct and personal responsibility for the purportedly unlawful conduct of his subordinates."Id. at 527-28.
Mallard, however, fails to assert any direct participation by Warden Menifee in the alleged deprivation of his Constitutional rights or that Warden Menifee created or acquiesced in a practice or policy that deprived plaintiff of his rights. Plaintiff merely alleges in conclusory language that Warden Menifee failed to prevent the theft or loss of his belongings. See Mallard Mem. at 10-11. This bare assertion is insufficient to establish a Bivens claim against Warden Menifee. Accordingly, plaintiff's motion for leave to add a Bivens claim against Warden Menifee is denied.
B. Plaintiff Fails To Assert A Constitutional Tort Claim
Plaintiff also seeks to add a claim for monetary damages against the United States and the BOP for allegedly violating his constitutional rights. See Mallard Mem. at 10-11. However, no such claim may lie against the United States based on its sovereign immunity. While the FTCA waives the federal government's sovereign immunity with respect to torts committed by government 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 [tortious] act or omission occurred," 28 U.S.C. § 1346 (b)(1), the FTCA does not waive the federal government's sovereign immunity with respect to alleged constitutional torts. See Meyer, 510 U.S. at 478 ("[T]he United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims."); Chen v. United States, 854 F.2d 622, 625-26 (2d Cir. 1988) (waiver of sovereign immunity extends only to those torts committed by government employees under circumstances where the United States, if a private person, would be liable in accordance with state or local law) Contemporary Mission, Inc., v. United States Postal Serv., 648 F.2d 97, 105 n. 9 (2d Cir. 1981) (§ 1346(b) waiver of sovereign immunity is limited to suits predicated upon a tort cause of action cognizable under state law).
Furthermore, plaintiff's claim against the BOP is essentially a suit against the United States because it is an action against a federal agency. Such suits are barred under the doctrine of sovereign immunity, unless such immunity has been explicitly waived. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (an individual cannot bring a constitutional claim for money damages against a federal agency) (citing Meyer, 510 U.S. at 484-86). The BOP has not waived its sovereign immunity with regard to constitutional claims. See Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 259 (1999) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.") (citing Meyer, 510 U.S. at 475); see also C.P. Chemical Co., Inc. v. United States, 810 F.2d 34, 36-37 (2d Cir. 1987) (plaintiff's claim against the Consumer Products Safety Commission, a federal agency, was not cognizable under the FTCA because a private person would not be liable for the same conduct)
Accordingly, plaintiff's motion to amend his complaint to add a Constitutional claim against the United States and the BOP fails to allege a valid, cognizable claim and is therefore denied.
C. Plaintiff May Not Add An Emotional Distress Claim Or Amend the Ad Damnum Clause
Plaintiff seeks to add a claim for the negligent infliction of emotional distress due to defendants' negligent conduct in allowing his eyeglasses to be lost or stolen. See Mallard Aff. at 5. Plaintiff also seeks to assert a claim for increased damages resulting from the unforeseeable emotional trauma, physical pain and eyestrain that he suffered as a result of the loss of his eyeglasses. See Mallard Mem. at 9-10.
Plaintiff may not amend his Complaint for two reasons. First, he has failed to plead the elements of an emotional distress claim. The liability of the federal government under the FTCA is generally determined by state law. See 28 U.S.C. § 2674; Metzen v. United States, 19 F.3d 795, 807 (2d Cir. 1994). Under New York law, a plaintiff may establish a claim for the negligent infliction of emotional distress in one of two ways: (1) the bystander theory; or (2) the direct duty theory. See Hazan v. City of New York, 98 Civ. 1716, 1999 WL 493352, at *4 (S.D.N Y July 12, 1999) (citing Mortise v. United States, 102 F.3d 693 (2d Cir. 1996)). Plaintiff has no cause of action under the bystander theory, which requires that he witness the death or serious bodily injury of a member of his immediate family. See Mortise, 102 F.3d at 696. Under the direct duty theory a plaintiff has a cause of action for negligent infliction of emotional distress if he suffers an emotional injury from defendants' alleged breach of a duty which unreasonably endangered his own physical safety. See id. While plaintiff does assert that he was unable to read or watch television without his eyeglasses, and that he suffered pain in his eyes, he does not allege that the deprivation endangered his physical safety. See Mallard Mem. at 10-11. Accordingly, plaintiff's motion to assert a claim for emotional distress is denied.
Second, plaintiff failed to raise emotional distress in his administrative claim and is therefore precluded from doing so now or from increasing the damages he seeks based on such a claim. As a prerequisite to filing a lawsuit under the FTCA, a prospective litigant must first submit a claim to the federal agency against whom the allegation is made. See 28 U.S.C. § 2675 (a). The agency then has six months to decide whether to settle the claim. Id. This exhaustion requirement is jurisdictional in nature and cannot be waived. See Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983). In his Complaint plaintiff asserts that he filed a claim with the BOP in the amount of $801.60, which was denied. See Compl. at 1. The BOP denied plaintiff's demand for $801.60, but offered him $600, which he refused. See Mallard Aff. at 4.
Once an action is commenced in court, the amount of damages awarded generally must be limited to the amount sought in the administrative claim. However, section 2675(b) of the FTCA provides:
Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.28 U.S.C. § 2675 (b). Plaintiff alleges that because the pain and eyestrain he suffered as a result of the loss of his eyeglasses constitutes "newly discovered evidence," he should be permitted to amend his claim for damages. See Mallard Mem. at 9-10.
Plaintiff's claim is unavailing. Mallard did not assert a claim for emotional distress in his administrative claim. In O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 856 (2d Cir. 1984), the Second Circuit reversed the district court's grant of a motion to amend an ad damnum clause, noting that such amendment was appropriate only when "an unexpected change occurred either in the law or in a medical diagnosis."Id. The court held that the liberal pleading requirements of Rule 15 should not be substituted for the narrower requirements of section 2675(b), and that the newly discovered evidence must be truly unexpected and unforeseen and thus not reasonably capable of detection at the time the administrative claim was filed. See id. at 855-56; see also Lowry v. United States, 958 F. Supp. 704, 714 (D. Mass. 1997) (denying increase inad damnum clause when extent of plaintiff's disability was not entirely unforeseen or unexpected). "Generally the newly discovered evidence exception applies when a plaintiff is unaware of the medical extent of his injuries and expenses at the time his administrative complaint is filed." Barrett v. United States, 622 F. Supp. 574, 594 (S.D.N Y 1985) (rejecting claim of newly discovered evidence). Here, plaintiff fails to assert any new and previously unforeseen information that came to light after the filing of his administrative tort claim.
Mallard argues that he could not have foreseen that the loss or theft of his eyeglasses would cause him pain and eyestrain. See Mallard Mem. at 9-10. However, eyestrain and pain are the reasonably foreseeable results of such a loss or theft. Further, plaintiff asserts that the eyeglasses were lost on or about December 8, 1997, when he was removed from FCI Otisyille. See id. He filed his administrative tort claim with the BOP on March 13, 1998. See id. at 8. In his motion to amend, Mallard asserts that he suffered emotional stress from the loss of the eyeglasses "over a period of 750 some odd days." Id. at 10. The motion to amend is dated December 28, 1999, and was filed in this Court on January 6, 2000. If plaintiff suffered emotional trauma for a period of 750 days, the trauma commenced on or about December 15, 1997, well prior to March 13, 1998, the date he filed his administrative claim. Given this time frame, the eyestrain suffered by plaintiff was reasonably foreseeable at the time plaintiff filed his administrative claim. Hence, the exception for newly discovered evidence found in section 2675(b) is inapplicable and plaintiff is barred from increasing the amount of damages he seeks. Accordingly, plaintiff's motion to assert a claim for unspecified damages due to the loss of his eyeglasses is denied.
IV. Conclusion
For the reasons set forth above, plaintiff's proposed amendments to his original complaint would fail to state valid cognizable claims. Accordingly, leave to amend is denied. A conference is scheduled for May 19, 2000 at 12:00 p.m.
SO ORDERED.