Opinion
02-CV-6640L.
September 29, 2004
DECISION AND ORDER
Plaintiff, Kennard Lovell, appearing pro se, commenced this action on December 4, 2002. (The Court has since appointed counsel to represent plaintiff.) Plaintiff asserts a number of claims against several defendants pursuant to 42 U.S.C. § 1983, as well as Bivens claims against several federal employees. In general, plaintiff's claims relate to events that occurred while plaintiff was in the custody of New York State on certain drug charges in 2001, and while plaintiff was detained at the Buffalo Federal Detention Facility ("BFDF") beginning in August 2001. Five of the defendants, all of whom are federal employees ("the federal defendants"), have moved for summary judgment, as has defendant Cayuga Correctional Facility ("Cayuga"). For the reasons that follow, those motions are granted.
In a so-called Bivens action, the victim of a constitutional violation may recover damages against federal officials acting under color of federal law. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). Although no statute specifically creates such a cause of action, "federal courts typically analogize claims under § 1983 with Bivens actions." Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
Several other defendants who are employed by the City of New York have also moved for a change of venue. That motion will be addressed in a separate decision and order.
In addition, there is a pending motion by plaintiff to extend his time to file a notice of appeal from this Court's August 5, 2003 Memorandum and Order which, inter alia, dismissed plaintiff's claims against Rikers Island Jail and the BFDF. Since that was not a final order, however, plaintiff could not have appealed anyway. 28 U.S.C. § 1291. Accordingly, that motion is denied as moot.
FACTUAL BACKGROUND
Lovell, a citizen of Guyana, pleaded guilty in state court in March 2001 to one count of Criminal Possession of a Controlled Substance in the Third Degree. He was sentenced to one to three years incarceration. Plaintiff, who had been detained at Rikers Island in New York City, was transferred to Cayuga in June 2001. In August 2001, he was transferred to the custody of the Immigration and Naturalization Service ("INS"), and was detained at BFDF.
INS began removal proceedings against Lovell, and on December 12, 2001, he was ordered removed to Guyana. Plaintiff brought two habeas corpus proceedings in this Court challenging his continued detention, and both were dismissed. Lovell v. Ashcroft, 02-CV-6482; Lovell v. INS, 02-CV-6593. On March 29, 2004, the Court issued an Order in this action denying Lovell's motion for a stay of removal (which had been effect pursuant to a stipulation of counsel), and Lovell has since been removed to Guyana.
Lovell's claims against Cayuga arise out of his incarceration there in the Summer 2001. In short, he alleges that he was not adequately treated for injuries that he had received in a motor vehicle accident in January 2001 as he was being transported from a court appearance back to Rikers Island. Lovell also alleges that Cayuga officials refused to transport him to New York City for a 50-h hearing that had been scheduled for July 26, 2001 in connection with plaintiff's claim against the City of New York for damages arising out of his injuries in the January accident.
New York General Municipal Law § 50-h generally gives a municipality the right to question a person who has asserted a claim against it, and gives either party the right to introduce that testimony in litigation on the claim.
Lovell's claims against the federal defendants relate to events that occurred at BFDF. Three of the federal defendants, Charles Mule, Martin Herron (named in the complaint as "Herion"), and Todd Tryon (named in the complaint as "Tyrone"), are all employed at BFDF by the Department of Homeland Security ("DHS"), and will collectively be referred to as the DHS defendants. Mule is the Facility Director of BFDF, Herron is the Supervisory Immigration Enforcement Agent, and Tryon is Deputy Chief of Detention.
As of March 1, 2003, pursuant to the Homeland Security Act of 2002, Pub.L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (2002), INS was abolished and its functions and units incorporated into to the newly created DHS.
The other two federal defendants, Brenda Bailey, M.D., and Christopher Henneford, are employed by the Public Health Service ("PHS"). Bailey is a physician at BFDF whose duties include treating, and supervising staff members' treatment of, detainees at BFDF. Henneford is a nurse on the medical staff at BFDF with mostly administrative duties.
Plaintiff alleges that all the federal defendants denied him adequate medical care for his injuries, primarily by refusing to allow him to have surgery on his knee. He also alleges that the DHS defendants improperly placed him in the Special Housing Unit ("SHU") at BFDF for about five hours on February 6, 2003, after he refused to take medication that had been prescribed by a facility physician. Lovell also alleges that the DHS defendants refused to allow him to travel to New York City to participate in a 50-h hearing, which had been rescheduled for October 30, 2001, and again for January 15, 2002.
DISCUSSION
I. Claims Against Bailey and Henneford
Bailey and Henneford contend that plaintiff's claims against them are barred by the Public Health Service Act, 42 U.S.C. § 233(a), which makes the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80, the exclusive remedy for actions seeking damages for personal injury "resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment. . . ."
I agree. In Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000), for example, the Court of Appeals for the Second Circuit held that the medical director for the Federal Bureau of Prisons, and the chief medical officer of a federal prison, as employees of PHS, were absolutely immune from suit on the due process claim of a pretrial detainee, who alleged that she had been wrongfully denied estrogen treatments necessitated by her status as a preoperative male-to-female transsexual. In so holding, the court stated that the defendants' alleged misdiagnosis and prescription of an improper course of treatment "occurred within the scope of their offices or employment and during the course of their `performance of medical . . . or related functions.'" Id. at 107 (quoting 42 U.S.C. § 233(a)). Accordingly, the court concluded, the plaintiff's "exclusive remedy for injuries caused by that behavior [wa]s therefore against the United States under the Federal Tort Claims Act." Id.
Here, Dr. Bailey and Henneford have stated in affidavits that they are PHS employees. See Docket #25, Ex. B ¶ 2, Ex. C ¶ 2. See Allen v. Christenberry, 327 F.3d 1290, 1294 (11th Cir.), cert. denied, 124 S.Ct. 277 (2003) ("In order to be covered under the FTCA, an entity, an employee of the entity, or a contractor of the entity seeking coverage must be deemed an employee of PHS"). Plaintiff has not controverted those assertions. It is also clear that plaintiff's claims against them arises out of their performance of medical or related functions within the scope of their employment. Therefore, Bailey and Henneford are immune from suit on plaintiff's Bivens claims. See Valdivia v. Hannefed, No. 02-CV-0424, 2004 WL 1811398, at *4 (W.D.N.Y. Aug. 10, 2004) (finding Henneford to be immune from Bivens action alleging denial of adequate medical treatment). Plaintiff's only remedy for injuries attributable to Bailey's and Henneford's performance of their duties lies under the FTCA.
I note, however, that before bringing a claim against the United States under the FTCA, plaintiff would be required to exhaust his administrative remedies. See 28 U.S.C. § 2675(a); Adeleke v. United States, 355 F.3d 144, 153 (2d Cir. 2004).
II. Plaintiff's Claims Against the DHS Defendants
The DHS defendants are likewise entitled to summary judgment. In order to state a viable claim pursuant to the Bivens doctrine, a plaintiff must allege that he was deprived of a right secured by the Constitution or laws of the United States by a person acting under color of federal law. Bivens, 403 U.S. at 397 (1971); Yeager v. Gen. Motors Corp., 265 F.3d 389, 398 (6th Cir. 2001), cert. denied, 535 U.S. 928 (2002); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Plaintiff has failed to do so.
While the Eighth Amendment's proscription of cruel or unusual punishment does not apply to pretrial detainees, the Fifth and Fourteenth Amendments afford pretrial detainees a due process right to adequate medical treatment that is analogous to the Eighth Amendment rights of sentenced prisoners. Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 382 n. 4 (6th 2004); Benjamin v. Fraser, 343 F.3d 35, 49-50 (2d Cir. 2003). To make out his claim of denial of medical care, then, plaintiff must show that the DHS defendants were deliberately indifferent to plaintiff's serious medical needs, and that by doing so, defendants caused plaintiff "actual or imminent substantial harm." Benjamin, 343 F.3d at 51. In addition, plaintiff must show that each defendant was personally involved in the alleged violations of his rights. See Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997); Black v. United States, 534 F.2d 524, 527-28 (2d Cir. 1976).
Plaintiff has not made out such a claim against the DHS defendants. As to Mule, the evidence shows only that he responded to a written request that plaintiff had sent him complaining of pain. Docket #16 Ex. P. Mule responded, "Your issue is pending." Id. Mule states in his affidavit that he knew that Dr. Bailey was handling plaintiff's treatment, and that Mule had no authority to make decisions concerning that treatment. Docket #16 Ex. B ¶¶ 12-19.
The record also shows that BFDF policies provide that "[a]ll matters of medical judgment are the sole province of the physicians or dentists working for, or under contract with, the facility," and that "the Facility Doctor has the final authority in all cases." Docket #16 Ex. M at 2. In addition, INS policies provide that "[e]lective medical procedures are not performed at facility expense," Docket #16 Ex. N at 10, and Dr. Bailey had determined that "any surgery done on [Lovell's] knee . . . would be elective." Docket #16 Ex. O. Not only is there no showing that Mule was personally involved in any the decision whether to perform knee surgery on plaintiff, but there is no indication that he even could have made such a decision. See Rodriguez v. McGinnis, No. 98-CV-6031, 2004 WL 1145911, at *18 (W.D.N.Y. May 18, 2004) ("it appears to be well accepted in this Circuit that in general supervisory prison officials may not be found liable for constitutional violations involving medical care where they reasonably relied on the opinions of prison medical staff") (citing cases).
The evidence is similar as to Herron and Tryon. Like Mule, Herron responded to one letter from plaintiff regarding medical care, see Docket #16 Ex. L, but there is no showing that he was deliberately indifferent to plaintiff's serious medical needs, or that he was personally involved in any decisions about whether to perform surgery on Lovell's knee. The evidence concerning Tryon is even weaker, showing simply that he forwarded a grievance from plaintiff to Dr. Bailey. Docket #16 Ex. H. Even plaintiff's response to defendants' motion states that plaintiff's "grievance was ignored by Mr. Tyrone [sic] and was answered by Dr. Bailey." Docket #31 at 3-4 (emphasis added). As explained above, under the relevant regulations and policies, it was entirely proper for Tyrone to let Dr. Bailey handle a request for certain medical treatment, and his doing so does not amount to personal involvement in the alleged deprivation.
The DHS defendants are also entitled to summary judgment on plaintiff's claims regarding his brief placement in SHU, and his inability to attend a 50-h hearing in New York City. Although it appears that it was Dr. Bailey who directed that plaintiff be placed in administrative segregation because he was refusing needed medication, see Docket #31 at 3, even assuming arguendo that any of the DHS defendants were personally involved in that decision, a five-hour stay in SHU simply does not give rise to a constitutional claim, absent the imposition of some "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995); Ortiz v. McBride, 380 F.3d 649, 652 (2d Cir. 2004).
Plaintiff has not identified any such hardship. First, with respect to the duration of "normal" SHU confinement, the Second Circuit has held that even a 101-day confinement does not meet the Sandin standard of atypicality. Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999). Plaintiff was confined only for a fraction of one day.
Although, under abnormal or unusual SHU conditions, periods of confinement of less than 101 days may implicate a liberty interest, Ortiz, 380 F.3d at 652; Palmer v. Richards, 364 F.3d 60, 65 (2d Cir. 2004), plaintiff has not presented any evidence of such abnormal or unusual conditions during his five-hour confinement. A stay in SHU for such a brief period would seemingly require truly extraordinarily harsh conditions in order to give rise to a due process claim, but plaintiff has not shown any abnormalities at all.
I also find that the DHS defendants are entitled to summary judgment on the claim concerning the 50-h hearing. First, there is no showing that the DHS defendants were personally involved in the relevant decisions. The complaint simply alleges that plaintiff could not attend the hearing because he was "detained by INS." Complaint § 5(A). His response to defendants' motion contains allegations that the DHS defendants ignored his requests for medical treatment, but nothing concerning the 50-h hearing.
Secondly, although inmates do have a constitutionally protected right of access to the courts, see Lewis v. Casey, 518 U.S. 343, 346, 351 (1996); Bounds v. Smith, 430 U.S. 817, 828 (1977), that right is not unlimited. As the Supreme Court explained in Lewis,
Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.518 U.S. at 355; accord Friedl v. City of New York, 210 F.3d 79, 86 (2d Cir. 2000). Thus, even if the DHS defendants did somehow impede plaintiff's ability to prosecute his damages claim against the City of New York, that does not implicate his constitutional right of access to the courts for purposes of plaintiff's Bivens claim in this action.
In addition, I find that, even if plaintiff's claims against them were not deficient to begin with, the DHS defendants would also be entitled to qualified immunity. To establish qualified immunity, a defendant must show "either `(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.'" Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001) (quoting Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996)). For the reasons already stated, defendants' actions did not violate clearly established law, and it was therefore objectively reasonable for them to believe that their actions did not violate such law.
III. Plaintiff's Claims Against Cayuga Correctional Facility
Plaintiff asserts several claims against Cayuga concerning matters that occurred while he was incarcerated there. Those claims must be dismissed.
A claim against a state correctional facility itself (as opposed to facility administrators or officers individually) is barred by the Eleventh Amendment's grant of immunity to the states and their agencies, unless they consent to suit or waive their immunity. See Farid v. Smith, 850 F.2d 917, 920-23 (2d Cir. 1988) (superintendent of correctional facility immune under Eleventh Amendment to the extent sued in his official capacity); Rodriguez v. New York State Dep't of Corrections, No. 04-CV-0177, 2004 WL 1574564, at *2 (W.D.N.Y. June 28, 2004) (dismissing claims against Albion Correctional Facility under the Eleventh Amendment). New York State has not consented to suit under § 1983. See Richardson v. New York State Dep't of Correctional Service, 180 F.3d 426, 449 (2d Cir. 1999). In addition, a correctional facility is not a "person" for purposes of § 1983. Connor v. Hurley, No. 00Civ. 8354, 2004 WL 885828, at *3 (S.D.N.Y. Apr. 26, 2004). Cayuga is therefore not a proper defendant in this action.
CONCLUSION
The motions for summary judgment by defendants Charles Mule, Martin Herron, and Toddy Tryon (Docket #13), Brenda Bailey and Christopher Henneford (Docket #23), and Cayuga Correctional Facility (Docket #62) are granted, and plaintiff's claims against those defendants are dismissed.Plaintiff's motion for leave to extend the time to appeal (Docket #11) is denied as moot.
IT IS SO ORDERED.