Opinion
15-CV-3843 (GHW) (KNF)
02-13-2019
LEVIT FERNANDINI, Plaintiff, v. UNITED STATES OF AMERICA, CHARLES E. SAMUELS JR., CATHERINE L. LINAWEAVER, CHARLES IWAUGWU, KENNETH HAAS, IVY JENKINS-CARDEW, WANDA WINGATE, ANDREW BUTLER, JAMAL JAMISON, DENNIS PEREZ, JOHN SACCO, OCTAVIO MATOS, HENRY HEANEY, KENNETH ALVARADO, PAT NICHOLSON, BRENDA DEAN AND VID PARSON, Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE
INTRODUCTION
Levit Fernandini, proceeding pro se, seeks damages against the: (1) United States of America ("United States"), for negligence, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680; and (2) individual defendants, for violations of his constitutional rights under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971). The plaintiff alleges that, while he was housed as a pre-trial detainee at the Metropolitan Correction Center ("MCC") in New York, starting on July 13, 2011, he was exposed to inhumane conditions: (a) "the toilet were [sic] not working for several days at a time . . . causing sewage to back-up for days on end, that allowed human waste to spill onto the floor causing the tier to have an unbearable smell" and he was "forced to defecate in plastic bags," which "were left on the floor for hours at a time" causing "the tier to smell"; (b) "[t]he showers became urinals and many inmates defecated in the shower," until showers "were completely disinfected[,] which was not for several days because of lack of cleaning supplies," which made him refrain from showering and caused him to suffer "painful headaches, painful burning of his eyes along with painful stomach pains"; (c) the ventilation system worked intermittently, dust and dust mites "were prevalent in the unit" and "[t]here were mold and rust on the ceilings," causing him to suffer headaches; (d) the tiers of "11-South," where he was housed, were overcrowded, infested with mice, rats and insects, "[r]ats and mice roam the unit freely" and their droppings "were everywhere on the floors, beds, showers, toilet," and a rat was found "in his bed and seen crawling near his bed"; (e) on January 6, 2014, he was bitten on his arm by a rat, causing him pain in his arm and hand, swelling for a period of time, "burning sensation and numbness radiating up his arm and down to his hand," the "area surrounding the bite became infected," his requests for additional treatment were ignored and his request to see a physician outside the facility was denied; and (f) in February 2014, he began to feel severe pain when breathing and "a pinching pain in the area of his heart" but he was only questioned about those issues by the defendants, without undergoing a medical examination.
The court granted the defendants' partial motion to dismiss, in part, dismissing the plaintiff's: (i) FTCA claim against the individual defendants; and (ii) claims for deliberate indifference to medical needs, including claims against Anthony Bussanich, Chito Evangelista and Erwin Ramos, without prejudice and with leave to amend the complaint, leaving the plaintiff's "FTCA claim against the United States of America, and his Bivens claim relating to the allegedly unconstitutional conditions of confinement at MCC [against] the remaining Defendants." The plaintiff did not amend the complaint. Thereafter, the defendants filed their answer. Before the Court is the defendants' unopposed motion "for an order granting summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and dismissing certain claims pursuant to Rules 12(b)(1) and 12(c) of the Federal Rules of Civil Procedure."
DEFENDANTS' CONTENTIONS
The defendants assert that the plaintiff's FTCA claims are barred by the discretionary function exception ("DFE") to United States' waiver of sovereign immunity, pursuant to 28 U.S.C. § 2680(a), which deprives the court of subject matter jurisdiction. According to the defendants, "[d]ecisions about federal prison housing management are left to the discretion of BOP [Bureau of Prisons] officials pursuant to 18 U.S.C. § 4042(a)(2) and internal BOP policies." Since the statute does not set forth any "particular conduct the BOP personnel should engage in or avoid while attempting to fulfill their duty to protect inmates," it follows that it "leaves judgment or choice to BOP officials." "Internal BOP policies further demonstrate that decisions about housing and pest control were left in the discretion of MCC personnel." For example, "deciding to contract with outside pest control companies for weekly services, hiring inmate orderlies to maintain sanitation in the housing unit, and putting 26 inmates in each dorm" was not mandated by any statute, regulation, or policy. Moreover, "the decisions Plaintiff challenges are policy-oriented judgments" because "BOP officials had discretion to make the relevant prison management decisions" and "those decisions are presumptively policy-oriented." Thus, as the "FTCA claims are based upon the exercise or performance of the BOP's discretionary functions, they are excepted from the FTCA's waiver of sovereign immunity and should be dismissed for lack of subject matter jurisdiction."
The defendants assert that the United States is "entitled to summary judgment on plaintiff's negligence claim" under New York law because, "[e]ven assuming that all of Plaintiff's allegations regarding the ventilation, rodents, and plumbing—many of which are disputed by Defendants—are true, he has not presented any admissible evidence that the BOP failed to make reasonable efforts to maintain proper sanitation and safety in 11-South. Instead, undisputed evidence shows the opposite: that the MCC took concerted steps to provide Plaintiff and other inmates with suitable quarters." According to the defendants, "[e]valuations of the MCC's performance during the Relevant Period demonstrate the adequacy of its efforts" and the plaintiff "cannot demonstrate the breach element of a negligence claim."
The defendants contend that the plaintiff's claims pursuant to Bivens are precluded by Ziglar v. Abassi, ___U.S.___, 137 S. Ct. 1843 (2017), because: (1) this case presents a new context, since it differs meaningfully from Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468 (1980), on the grounds that (i) a pre-trial detainee's claims, such as the plaintiff's, arise under the Due Process Clause of the Fifth Amendment, not the Eighth Amendment at issue in Carlson and (ii) the plaintiff's claims "concern housing sanitation" not the refusal to treat an inmate's serious medical condition leading to death which was at issue in Carlson. In addition, the defendants assert that "the Supreme Court's longstanding deference to prison officials regarding issues of prison management," "the significance of the FTCA as an alternative remedial scheme," notwithstanding "[t]he fact that Plaintiff's FTCA claims in this case are barred by the DFE," and the Prison Litigation Reform Act, "which encompasses Plaintiff's allegations in this case" and does not provide for damages suggesting that Congress did not intend to extend the Carlson remedy "to cases involving other types of prisoner mistreatment," are also factors counseling "against recognizing a Bivens remedy here." The defendants contend that "[d]ismissal of these claims is pursuant to Rule 12(c) as Defendants are entitled to judgment on the pleadings alone."
Moreover, the plaintiff's claims related to ventilation, dust, mold and rust should be dismissed because they were not grieved at the administrative level, as required by PLRA; thus, his "non-rodent-related Bivens claims" are not exhausted, and no basis exists to excuse the plaintiff's failure to exhaust administrative remedies. Even if Bivens claims are not barred, the defendants are entitled to summary judgment because no defendant violated the plaintiff's constitutional rights as no reasonable factfinder could find that: (i) "Plaintiff has suffered conditions that posed an unreasonable risk of serious damage to his health"; and (ii) any individual defendant "deliberately or intentionally caused or ignored" the housing conditions in 11-South and the threat they posed to the plaintiff's health.
The defendants assert that the plaintiff's Bivens claims should be dismissed for lack of personal involvement against: (a) BOP Director Charles E. Samuels, as no evidence exists linking him to the alleged unlawful conditions; (b) John Sacco and Octavio Matos "related to anything other than ventilation"; and (c) Henry Heany and Kenneth Alvarado "related to anything other than toilets." According to the defendants, they are entitled to qualified immunity because, "given the extensive undisputed evidence regarding MCC employees' efforts to provide sanitary living quarters for the inmates of 11-South," "reasonable persons in the individual defendants' positions at the MCC could have believed that their conduct did not violate Plaintiff's constitutional rights to be free from dangerous pretrial living conditions" and "no reasonable factfinder [sic] could conclude otherwise."
LEGAL STANDARD
Rule 12(b)(1) and Rule 12(c) of the Federal Rules of Civil Procedure
"[L]ack of subject matter jurisdiction cannot be waived." In re Stock Exch. Options Trading Antitrust Litig., 317 F.3d 134, 151 (2d Cir. 2003). Lack of subject-matter jurisdiction may be asserted by a motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, which "must be made before pleading if responsive pleading is allowed." Fed. R. Civ. P. 12(b). "In deciding a Rule 12(b)(1) motion, the court may also rely on evidence outside the complaint." Cortland St. Recovery v. Hellas Telecomms., 790 F.3d 411, 417 (2d Cir. 2015).
"Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised . . . by a motion under Rule 12(c)." Fed. R. Civ. P. 12(h)(2). "[A] motion to dismiss for failure to state a claim (or one of the other non-waivable defenses under Rule 12(h)) that is styled as arising under Rule 12(b) but is filed after the close of pleadings, should be construed by the district court as a motion for judgment on the pleadings under Rule 12(c)." Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). "After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim," and the court "must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." Patel, 259 F.3d at 126.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."It is well established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). Rule 56 of the Federal Rules of Civil Procedure
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)).
A motion for summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (a). "[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A "dispute about a material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255, 106 S. Ct. at 2513.
There is no requirement that the trial judge make findings of fact. The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.Thus, summary judgment is improper "[i]f reasonable minds could differ as to the import of the evidence." Id.
Id. at 250, 106 S. Ct. at 2511.
FTCA
"The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. "[F]or liability to arise under the FTCA, a plaintiff's cause of action must be 'comparable' to a 'cause of action against a private citizen' recognized in the jurisdiction where the tort occurred, and his allegations, taken as true, must satisfy the necessary elements of that comparable state cause of action." Chen v. U.S., 854 F.2d 622, 626 (2d Cir. 1988) (citations omitted). "To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owned by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 392 (1985).
"The provisions of this chapter and section 1346(b) of this title shall not apply to—(a) Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). The discretionary function exception to the liability of the United States covers only acts that: (1) "involve an element of judgment or choice"; and (2) are "based on considerations of public policy." U.S. v. Gaubert, 499 U.S. 315, 322-33, 111 S. Ct. 1267, 1273-74 (1991). "[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive." Berkovitz v. U.S., 486 U.S. 531, 536, 108 S. Ct. 1954, 1958 (1988). "When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324, 111 S. Ct. at 1274.
[T]he general rule that "a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign . . . is "unhelpful" in the FTCA context where "unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute," which "waives the Government's immunity from suit in sweeping language." Hence, "the proper objective of a court attempting to construe one of the subsections of 28 U.S.C. § 2680 is to identify 'those circumstances which are within the words and reason of the exception'—no less and no more."Thus, to avoid dismissal on a motion under Fed. R. Civ. P. 12(b)(1), a plaintiff bears "the initial burden to state a claim that is not barred by the DFE." Molchatsky v. U.S., 713 F.3d 159, 162 (2d Cir. 2013) (citing Gaubert, 499 U.S. at 324-25, 111 S. Ct. at 1275). Although "[t]he plaintiff bears the initial burden of alleging subject matter jurisdiction under the FTCA," courts have concluded "that the Government bears the burden of proving the applicability of the discretionary function exemption, although there is disagreement." 14 Charles A. Wright et al., Federal Practice & Procedure § 3658.1 (4th ed. 2015). Compare Carlyle v. U.S., 674 F.2d 554, 556 (6th Cir. 1982) (stating, on appeal from the judgment for the government, that "[o]nly after a plaintiff has successfully invoked jurisdiction by a pleading that facially alleges matters not excepted by § 2680 does the burden fall on the government to prove the applicability of a specific provision of § 2680."); Prescott v. U.S., 973 F.2d 696, 701 (9th Cir. 1992) (holding, on appeal from denial of a summary judgment motion, that "only after a plaintiff has successfully invoked jurisdiction by a pleading that facially alleges matters not excepted by § 2680 does the burden fall on the government to prove the applicability of a specific provision of § 2680."); S.R.P. ex rel. Abunabba v. U.S., 676 F.3d 329, 333 (3rd Cir. 2012) (stating, on appeal from dismissal under Fed. R. Civ. P. 12(b)(1), that "[a]lthough a plaintiff bears the burden of establishing that his claims fall within the scope of the FTCA's waiver of the federal government's sovereign immunity," the government "has the burden of proving the applicability of the discretionary function exception" because DFE "is analogous to an affirmative defense" and a plaintiff should "not be expected to disprove every exception to the FTCA."), with Welch v. U.S., 409 F.3d 646, 651 (4th Cir. 2005) (stating, on appeal from dismissal for lack of subject matter jurisdiction, that "it is the plaintiff's burden to show that an unequivocal waiver of sovereign immunity exists and that none of the statute's waiver exceptions apply to" the plaintiff's claims). Hardscrabble Ranch, L.L.C. v. U.S., 840 F.3d 1216, 1220 (10th Cir. 2016) (stating, on appeal from summary judgment, that "the discretionary function exception is jurisdictional, the burden is on [the plaintiff] to prove that it does not apply."). No binding authority exists at this time concerning who has the burden of proof that DFE applies, after the plaintiff's initial burden of alleging subject matter jurisdiction in the complaint is satisfied. The Court is persuaded by the view and reasoning of the majority of courts that, after the plaintiff's initial burden of alleging jurisdiction under FTCA is satisfied, the burden is on the government to establish, by a preponderance of the evidence, that DFE applies.
Dolan v. U.S. Postal Serv., 546 U.S. 481, 491-92, 126 S. Ct. 1252, 1260 (2006) (internal citations omitted).
For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.
Gaubert, 499 U.S. at 324-25, 111 S. Ct. at 1274-75.
Claim for Damages for Constitutional Violations Pursuant to Bivens
The Supreme Court held in Bivens that a violation of the Fourth Amendment right against unreasonable searches and seizures "by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct." Bivens, 403 U.S. at 389, 91 S. Ct. at 2001. Thereafter, in addition to Bivens, the Supreme Court "recognized what has come to be called an implied cause of action in two cases involving other constitutional violations": (1) Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264 (1979), where "an administrative assistant sued a Congressman for firing her because she was a woman," "the Fifth Amendment Due Process Clause gave her a damages remedy for gender discrimination"; and (2) Carlson, where "a prisoner's estate sued federal jailers for failing to treat the prisoner's asthma" leading to his death, "the Eighth Amendment Cruel and Unusual Punishment Clause gave him a damages remedy for failure to provide adequate medical treatment." Ziglar, ___ U.S. ___, 137 S. Ct. at 1854-55. "These three cases—Bivens, Davis and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself." Id. ___ U.S. ___, 137 S. Ct. at 1855.
The Supreme Court "has urged 'caution' before 'extending Bivens remedies into any new context"; thus, "a Bivens remedy will not be available if there are 'special factors counseling hesitation in the absence of affirmative action by Congress.'" Id. ___ U.S. ___, 137 S. Ct. at 1857 (citations omitted). "The proper test for determining whether a case presents a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court, then the context is new." Id. ___ U.S. ___, 137 S. Ct. at 1859.
A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Id. ___ U.S. ___, 137 S. Ct. at 1860.
APPLICATION OF LEGAL STANDARD
Rule 12(b)(1) and Rule 12(c) Motion: Lack of Subject Matter Jurisdiction
The defendants Rule 12(b)(1) motion to dismiss the plaintiff's FTCA claim for lack of subject matter jurisdiction was made after the defendants filed their answer. Since the defendants' motion to dismiss for lack of subject matter jurisdiction, styled in the notice of motion as a motion "pursuant to Rules 12(b)(1) and 12(c) of the Federal Rules of Civil Procedure": (1) was not made "before pleading," as required by Rule 12(b); and (2) asserts a non-waivable defense contemplated by Rule 12(h), it is treated as a Rule 12(c) motion and will be determined solely on the pleadings, accepting all allegations in the complaint as true and drawing all inferences in the non-moving party's favor. See Patel, 259 F.3d at 126.
Whether the Plaintiff Satisfied His Initial Burden of Showing FTCA Jurisdiction
The plaintiff's factual allegations concerning conditions of his confinement are taken as true, namely, "the toilet were [sic] not working for several days at a time . . . causing sewage to back-up [sic] for days on end, that allowed human waste to spill onto the floor causing the tier to have an unbearable smell" and he was "forced to defecate in plastic bags," which "were left on the floor for hours at a time," causing "the tier to smell." "The showers became urinals and many inmates defecated in the shower," until showers "were completely disinfected[,] which was not for several days because of lack of cleaning supplies," which made the plaintiff refrain from showering and caused him to suffer "painful headaches, painful burning of his eyes along with painful stomach pains." The ventilation system worked intermittently, dust and dust mites "were prevalent in the unit" and "[t]here were mold and rust on the ceilings," causing him to suffer from headaches. The tiers of "11-South," where the plaintiff was housed, were overcrowded, infested with mice, rats and insects, "[r]ats and mice roam the unit freely" and their droppings "were everywhere on the floors, beds, showers, toilet" and a rat was found "in his bed and seen crawling near his bed"; on January 6, 2014, the plaintiff was bitten on his arm by a rat. The plaintiff asserts sufficient factual content that allows the Court to draw the reasonable inference that the defendants are liable for the alleged negligence, in the same manner and to the same extent as a private individual under like circumstances would be, as required by § 28 U.S.C. 2674. The plaintiff does not allege that his injuries were caused by the defendants' failure to comply with any laws and regulations, including a regulation that "is not sufficiently specific to control the conduct in question, or is not mandatory." Fazi v. U.S., 935 F.2d 535, 538 (2d Cir. 1991). The complaint does not contain any allegations concerning: (a) BOP policies, procedures or guidelines, as they might relate to prison housing management or maintenance; or (b) the defendants' failure to comply with BOP policies, procedures or guidelines. Thus, the Court finds that the plaintiff carried his "initial burden to state a claim that is not barred by the DFE." Molchatsky, 713 F.3d at 162.
Whether the United States Satisfied its Burden of Showing that DFE Applies
The defendants assert that "[d]ecisions about federal prison housing management are left to the discretion of BOP officials pursuant to 18 U.S.C. § 4042(a)(2) and internal BOP policies." However, the statute defining the duties of BOP is mandatory, not discretionary, directing that BOP "shall . . . provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States, or held as witnesses or otherwise." 18 U.S.C. § 4042(a)(2). Neither the complaint nor the answer contains any allegations referencing or related to "internal BOP policies," and the motion pursuant to Rule 12(c) must be determined on the pleadings only. Since the statute governing BOP duties is mandatory and no "internal BOP policies" are alleged or referenced in the pleadings, the Court concludes that the defendants failed to show that DFE applies to their alleged negligent conduct.
Even assuming that the Court may consider extrinsic evidence in determining the instant Rule 12(c) motion for judgment on the pleadings, the defendants' assertion, that "BOP Program Statement 1060.11 on Rated Capacities for Bureau Facilities establishes procedures for determining 'rated capacity' (the 'baseline for the statistical measurement of prison crowding') but leaves decisions about how to manage prison crowding issues and housing arrangements to BOP officials [,s]ee Perez Decl. Ex. A at US000001," is not supported by the evidence cited. Daniel Perez ("Perez"), employed by BOP during the relevant time as a Safety Compliance Specialist and Acting Safety Manager at the MCC, states in his declaration:
BOP Program Statement 1060.11 on Rated Capacities for Bureau Facilities, which was in effect during the Relevant Period, is attached hereto as Exhibit A. As that document explains, "[r]ated capacity is the baseline for the statistical measurement of prison crowding and is essential to managing the Bureau's inmate population to distribute the inmate population throughout the system reasonably and equitably." Ex. A at US 000001.Perez does not state in his declaration, as the defendants contend in their memorandum of law, that "BOP Program Statement 1060.11 on Rated Capacities for Bureau Facilities establishes procedures for determining 'rated capacity'" but "leaves decisions about how to manage prison crowding issues and housing arrangement to BOP officials." Perez only states that "BOP Program Statement 1060.11 on Rated Capacities for Bureau Facilities," that was in effect at the relevant time, explains what "rated capacity" is and to what functions it is "essential." Perez does not reference or explain any part of the 14-page long Exhibit A in his declaration, except the above quoted paragraph. From the Court's cursory glance at Exhibit A, it appears to contain references to certain "directives affected" and "standards referenced," none of which appear to involve, on their face, the exercise of judgment respecting policy. Moreover, two sections of Exhibit A styled "7. Capacity Computation" and "8. Reporting" contain specific directives about capacity computation and reporting duties, and do not appear to involve the exercise of any discretion in connection with those mandates.
The defendants also contend that "BOP Program Statement P1600.09 on Occupational Safety, Environmental Compliance, and Fire Protection delegates responsibility for developing a pest control program to '[e]ach institution,'" making citation to "Ex. B at US000048" attached to Perez's declaration, and contending that the MCC's "Institution Supplement to this Program leaves pest control to the discretion of the MCC's employees," quoting from "Ex. C at US0000015-16" attached to Perez's declaration: "'[p]est control services will be performed on a monthly basis or as needed' and would include 'spraying, bait application and any other vermin control practices deemed necessary by the contractor or Safety Specialist.'" The defendants appear to suggest that the use of the words "as needed" and "deemed necessary by the contractor or Safety Specialist" is sufficient to establish that MCC's acts involve an element of judgment or choice based on considerations of public policy, including, for example, "deciding to contract with outside pest control companies for weekly services." However, the defendants failed to show that any "discretion" exercised by MCC with respect to pest control, such as "spraying, bait application and any other vermin control practices deemed necessary by the control or Safety Specialist," is "of the kind that the discretionary function exception was designed to shield" by preventing "judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy." Gaubert, 499 U.S. at 322-33, 111 S. Ct. at 1273. Assuming that extrinsic evidence may be considered on the instant Rule 12(c) motion, apart from their conclusory assertions, the defendants failed to establish that a social, economic or political policy is implicated in the BOP's decisions they reference, including MCC's decisions about the type, frequency and application of pest control.
The Court finds that the defendants failed to establish that DFE applies in this action and granting their motion to dismiss the plaintiff's FTCA claim for lack of subject matter jurisdiction is not warranted.
Rule 56 Motion: FTCA Negligence Claim
The defendants concede that "many" of the plaintiff's "allegations regarding the ventilation, rodents, and plumbing" are disputed, without identifying them, but argue that the plaintiff cannot demonstrate breach of the defendants' duty to him because he did not present any admissible evidence "that the BOP failed to make reasonable efforts to maintain proper sanitation and safety in 11-South" and the "[e]valuation of the MCC's performance during the Relevant Period demonstrates adequacy of its efforts." The defendants' statement of material undisputed facts, made pursuant to Local Civil Rule 56.1 of this court, does not address the plaintiff's allegations and includes, almost exclusively, statements about BOP's and MCC's general practices concerning plumbing, climate control, cleaning and pest control.
The plaintiff's testimony at his deposition about the conditions of his confinement is consistent with his sworn allegations in the complaint. Contrary to the defendants' assertion that the plaintiff "has not presented any admissible evidence that the BOP failed to make reasonable efforts to maintain proper sanitation and safety in 11-South," the plaintiff's deposition testimony about the conditions of his confinement, including the defendants' failure to control rodents, dust, dust mites, rust, mold, clogged showers, human waste spill and overcrowding, is admissible evidence that is material to establishing the defendants' breach; thus, if believed by the trier of fact, it would have the potential to establish the defendants' breach of duty to the plaintiff. As the defendants concede that "many" of the plaintiff's allegations concerning the conditions of the plaintiff's confinement and the defendants' failure to control those conditions are disputed and those allegations are material to the defendants' breach of duty to the plaintiff, granting summary judgment on the plaintiff's negligence claim under FTCA is not warranted. Rule 12(c) Motion: Whether Bivens Claims Against Individual Defendants Are Precluded by Ziglar
The plaintiff alleges that the defendants violated his Eighth Amendment rights by subjecting him to inhumane living conditions during his pretrial confinement at MCC. The defendants contend that the plaintiff's claims "differ meaningfully from Carlson, which involved allegations that federal prison officials exacted cruel and unusual punishment in violation of the Eighth Amendment in refusing to treat an inmate's serious medical condition that led to his death," while the plaintiff's "claims here concern housing sanitation, not medical treatment" and "arise under the Fifth Amendment, not the Eighth."
Prisoners are protected by the Due Process Clause of the Fourteenth Amendment and "may not be deprived of life, liberty, or property without due process of law." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2974 (1974). "The Fifth Amendment contains a due process clause as broad in its terms restricting national power as the Fourteenth is of state power." Screws v. U.S., 325 U.S. 91, 123, 65 S. Ct. 1031, 1046 (1945); see Ingraham v. Wright, 430 U.S. 651, 672-73, 97 S. Ct. 1401, 1413 (1977) ("The Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth, was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown."); Dusenbery v. U.S., 534 U.S. 161, 167, 122 S. Ct. 694, 702 (2002) ("The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without 'due process of law.'"). "In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, . . . the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872 (1979). The Second Circuit Court of Appeals has "often applied the Eighth Amendment deliberate indifference test to pre-trial detainees bringing actions under the Due Process Clause of the Fourteenth Amendment" and the same analysis applies under the "Due Process Clause of the Fifth Amendment." Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000).
From the three cases in which the Supreme Court approved an implied damages remedy under the United States Constitution, Bivens, Davis and Carlson, only Carlson involves a prison context, namely a claim brought "on behalf of the estate of her deceased son, Joseph Jones, Jr., alleging . . . personal injuries from which he died because the petitioners, federal prison officials, violated his due process, equal protection, and Eighth Amendment rights." Carlson, 446 U.S. at 16, 100 S. Ct. at 1470. The Supreme Court considered two issues in Carlson; (1) "[i]s a remedy available directly under the Constitution, given that respondent's allegations could also support a suit against the United States under the Federal Tort Claims Act?"; and (2) "if so, is survival of the cause of action governed by federal common law or by state statutes?" Id. at 16-17, 100 S. Ct. at 1470-71. The Supreme Court found that: (a) the case "involves no special factors counseling hesitation in the absence of affirmative action by Congress"; and (b) "no explicit congressional declaration [exists] that persons injured by federal officers' violations of the Eighth Amendment may not recover money damages from the agents but must be remitted to another remedy, equally effective in the view of Congress." Id. at 19, 100 S. Ct. at 1472. The Supreme Court concluded that: (i) Bivens claims can be maintained parallel to FTCA claims because "FTCA is not a sufficient protector of the citizens' constitutional rights, and without a clear congressional mandate we cannot hold that Congress relegated respondent exclusively to the FTCA remedy"; and (ii) "the question whether respondent's action survived Jones' death is a question of federal law." Id. at 23, 100 S. Ct. at 1474.
The Supreme Court described the allegations in Carlson as follows:
More specifically, respondent alleged that petitioners, being fully appraised of the gross inadequacy of medical facilities and staff at the Federal Correction Center in Terre Haute, Ind., and of the seriousness of Jones' chronic asthmatic condition, nonetheless kept him in that facility against the advice of doctors, failed to give him competent medical attention for some eight hours after he had an asthmatic attack, administered contra-indicated drugs which made his attack more severe, attempted to use a respirator known to be inoperative which further impeded his breathing, and delayed for too long a time his transfer to an outside hospital. The complaint further alleges that Jones' death resulted from these acts and omissions, that petitioners were deliberately indifferent to Jones' serious medical needs, and that their indifference was in part attributable to racial prejudice. Carlson, 446 U.S. at 16 n.1, 100 S. Ct. at 1470 n.1.
Contrary to the defendants' contention that the Supreme Court held in Ziglar "that plaintiffs' claims were meaningfully different from Carlson in part because 'Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth,'" the Supreme Court did not so hold because, "[g]iven the absence of a comprehensive presentation by the parties, and the fact that the Court of Appeals did not conduct the analysis, the [Supreme] Court decline[d] to perform the special factors analysis itself." Ziglar, ___ U.S. ___, 137 S. Ct. at 1865. The Supreme Court noted in Ziglar that: (i) "a case can present a new context for Bivens purposes if it implicates a different constitutional right"; (ii) "Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth"; (iii) "[t]he standard for a claim alleging that a warden allowed guards to abuse pre-trial detainees is less clear under the Court's precedents"; (iv) "[t]his case also has certain features that were not considered in the Court's previous Bivens cases and that might discourage a court from authorizing a Bivens remedy"; (v) "the existence of alternative remedies," such as habeas corpus, an injunction "or some other form of equitable relief," "usually precludes a court from authorizing a Bivens action"; (vi) "that Congress does not want a damages remedy is itself a factor counseling hesitation"; and (vii) "[s]ome differences, of course, will be so trivial that they will not suffice to create a new Bivens context," but the differences identified by the Supreme Court between Carlson and Ziglar "are at the very least meaningful ones." Id. ___U.S.___, 137 S. Ct. at 1864-65.
Given that: (1) the standard for analyzing pretrial detainees' claims of unconstitutional conditions of detention, erroneously brought under the Eighth Amendment, is the same as the standard for analyzing pretrial detainees' claims of unconstitutional conditions of detention under the Due Process Clause of the Fifth Amendment; and (2) the claims in Carlson were predicated not only on the Eighth Amendment, as the Supreme Court noted in dicta, but also on the Due Process and Equal Protection Clauses of the Fourteenth Amendment, see Carlson, 446 U.S. at 16, 100 S. Ct. at 1470, the Court finds that any difference in the constitutional rights implicated between Carlson and this case is trivial and does not suffice by itself to create a new Bivens context.
However, unlike Carlson, which involved allegations of "personal injuries from which [the plaintiff] died" because of prison officials' acts and omissions in violation of the plaintiff's "due process, equal protection, and Eighth Amendment rights," this case does not involve personal injuries from which the plaintiff died. The plaintiff's deliberate indifference to his medical needs claims were dismissed previously and, apart from the alleged rat bite and foul odor due to plumbing-related deficiencies, the plaintiff suffered no identifiable injuries from the alleged inhumane conditions to which the defendants exposed him, let alone serious injuries leading to death. Thus, the stark difference in factual circumstances between Carlson and this case are meaningful and, together with the facts that: (i) no Supreme Court precedent exists approving a Bivens action based on the factual circumstances present in this case; and (ii) the standards are not clearly established guiding analyses of pretrial detainees' claims alleging Due Process Clause violations by exposure to inhumane conditions such as those alleged by the plaintiff in this case, are sufficiently meaningful to create a new Bivens context. Moreover, alternative methods of relief are available to the plaintiff in the form of a writ of habeas corpus and an FTCA claim. The Court finds that the above-mentioned factors warrant the conclusion that this case represents a new Bivens context and warrant the Court in declining to extend Bivens to the plaintiff's constitutional violation claims in this action. Accordingly, summary judgment in favor of the individual defendants on the plaintiff's constitutional violation claims under Bivens, because they are precluded by Ziglar, is warranted.
RECOMMENDATION
For the foregoing reasons, I recommend that the defendants' motion, Docket Entry No. 134, be: (a) granted in part, and the plaintiff's Bivens claims against the individual defendants be dismissed, as barred by Ziglar; and (b) denied, in part, and the plaintiff's FTCA claims against United States proceed to trial.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Gregory H. Woods, 500 Pearl Street, Room 2260, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Woods. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Dated: New York, New York
February 13, 2019
Respectfully submitted,
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE Copy mailed to: Levit Fernandini