VICTOR MARRERO, District Judge.
Plaintiff Prince A.Z.K. Adekoya II ("Adekoya"), proceeding pro se, brought this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
The PHS Defendants and Federal Defendants, represented by the United States (the "Government"), now move to dismiss the Amended Complaint pursuant to Rules 12(b)(1) ("Rule 12(b)(1)") and 12(b)(6) ("Rule 12(b)(6)") of the Federal Rules of Civil Procedure.
For the reasons discussed below, the motion to dismiss is GRANTED. The Court also dismisses the Amended Complaint as to the Outside Contractor Defendants sua sponte.
Adekoya alleges that since April 23, 2008, he has been in ICE custody at Varick, the Bergen County Jail in New Jersey, and the Perry County Correctional Center in Alabama. Prior to his admission to Varick in April 2008, Adekoya was treated at Beekman Hospital in Manhattan, where a physician removed a cast that had been on Adekoya's right hand as a result of an injury that he suffered prior to entering ICE custody. The physician recommended that Adekoya return to the hospital in May 2008 for surgery. Adekoya claims that he never received this follow-up care and his repeated requests for medical attention in New York, New Jersey, and Alabama were ignored.
Adekoya alleges that this inadequate medical care caused him "to lose the effective use . . . of his right hand" and left him "handicapped." (See Am. Compl. at 32.) Adekoya also repeatedly claims that he is "suffering from severe loss of vision, constant eye pain and dizziness." (Id. at 34.) Finally, Adekoya alleges that for several
As best the Court can determine, the Amended Complaint purports to state four causes of action: that inadequate medical care provided by Defendants constituted violations of Adekoya's rights under (1) the Due Process Clause of the Fifth Amendment, (2) the Eighth Amendment's prohibition of "cruel and unusual punishment," (3) the Equal Protection Clause of the Fourteenth Amendment;
On November 5, 2010, the Federal Defendants filed a motion to dismiss the Amended Complaint (the "Motion") under Rule 12(b)(1) and 12(b)(6) on the grounds that: (1) the Court lacks subject-matter jurisdiction over Adekoya's Bivens claims against all Federal Defendants and PHS Defendants in their official capacities and against the PHS Defendants in their personal capacities, (2) Adekoya failed to allege personal involvement of Federal Defendants and PHS Defendants in any constitutional violations, and (3) Adekoya failed to state a claim for deliberate indifference to serious medical needs.
"A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000); see also Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). "When considering a motion to dismiss for lack of subject matter jurisdiction . . . a court must accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corporation v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) (citations omitted). However, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Id.
Adekoya sues the Federal Defendants in both their personal and official capacities. Under Bivens a plaintiff may bring claims against federal officers only in their personal capacities for a violation of certain constitutional rights. See Bivens, 403 U.S. at 397, 91 S.Ct. 1999. Bivens suits brought against federal officers in their official capacities are considered to be suits against the United States. See Robinson, 21 F.3d at 510. Such suits against the United States are barred by the doctrine of sovereign immunity. See Fed. Deposit Ins. Corporation v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (holding that "the United States simply has not rendered itself liable . . . for constitutional tort claims"). Therefore, the Court finds that it lacks subject matter jurisdiction over Adekoya's constitutional claims against the Federal Defendants in their official capacities.
Adekoya's claims against the PHS Defendants must also be dismissed for
Here, as the Amended Complaint acknowledges, there is no dispute regarding the employment status of the PHS Defendants. To the extent the Amended Complaint contains any specific allegations against the PHS Defendants, such allegations are directed at the performance of medical functions and within the scope of their employment. Therefore, § 233(a) of the PHSA bars Adekoya from bringing such claims under Bivens against the PHS Defendants. See Hui, 130 S.Ct. at 1855.
"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.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corporation v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard is met "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiffs favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002).
In the case of a pro se litigant, the Court reads the pleadings leniently and construes them to raise "the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citations and internal quotation marks omitted). This guidance applies with particular force when the plaintiff's civil rights are at issue. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004); see also Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir.1999). To survive a Rule 12(b)(6) motion to dismiss, however, a pro se plaintiffs factual allegations must be at least "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
To state a claim under Bivens, a plaintiff must allege that an individual defendant personally committed a specific wrongful act that violated a well-established constitutional right of which a reasonable person would have known. See Barbera v. Smith, 836 F.2d 96, 99 (2d Cir.1987); see also Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (holding that "bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery"). Deliberate indifference to the medical needs of an immigrant detainee in certain circumstances gives rise to a cognizable claim under the Due Process Clause of the Fifth Amendment.
To hold a high-ranking official liable under Bivens, Adekoya must demonstrate that the official was personally involved in a violation of his constitutional rights and not merely that he held a supervisory position. Adekoya can satisfy the personal involvement requirement by showing that each high-ranking defendant either (1) participated directly in the alleged constitutional violation; (2) was informed of the violation and failed to remedy it; (3) created, or permitted continuation of, a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) failed to act on information indicating the unconstitutional acts were occurring. See Thomas v. Ashcroft, 470 F.3d 491, 496-97 (2d Cir.2006).
Adekoya's claims against Federal Defendants Holder, Napolitano, Morton, and Shanahan fail to allege any personal involvement by them in the alleged constitutional violations. Holder and Napolitano are sued only by virtue of their supervisory positions. The allegations against them fail to state facts sufficient to support a finding that they were personally involved in a violation of Adekoya's constitutional rights. Consequently, the claims against them are dismissed.
The Amended Complaint alleges that Morton, as the Secretary of ICE, is "responsible for conducting at least the custody review of every detainee and making the decision to release a detainee or continue his or her detention and the proper care of the detainee." (Am. Compl. at 9.) Shanahan, as New York Field Director, allegedly had discretion over Adekoya's placement and chose to send him "to a facility where plaintiff wasn't cared for medically, feeding and also deprived access to adequate law library" [sic] while Adekoya was housed at the Bergen County Jail. (Id. at 9-10.)
While these claims against Morton and Shanahan could be read to allege the requisite personal involvement, for the reasons set forth below, they are nonetheless insufficient to state a claim. These allegations are similar to those that the Supreme Court found inadequate in Iqbal. Iqbal alleged that the FBI director and former United States Attorney General "knew of, condoned, and willfully and maliciously agreed to subject [him to harsh conditions of confinement] as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Iqbal, 129 S.Ct. at 1951. The Court rejected these claims as "bare assertions" that "amount to nothing more than a formulaic recitation of the elements of a constitutional . . . claim." Id. (internal quotations omitted). Such "conclusory" allegations are "not assumed to be true." Id.
As for Uribe, Lopez, Ramos, Chin, Atienza, Farman, and Railey,
Even assuming the Amended Complaint properly alleges personal involvement by any of the defendants, the Court cannot find that Adekoya has stated a sufficient Bivens claim. In order to establish "a claim arising out of inadequate medical care [under Due Process], a prisoner must prove `deliberate indifference' to [his] serious medical needs." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Estelle, 429 U.S. at 104, 97 S.Ct. 285). This standard includes both (1) an objective "medical need" element measuring the severity of the alleged deprivation, and (2) a subjective "deliberate indifference" element measuring whether the prison official acted with a sufficiently culpable state of mind. See Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003).
The objective prong requires that the complainant's medical condition be "sufficiently serious." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). The subjective prong requires that the
Even assuming that Adekoya's hand and eye injuries satisfy the objective prong and could be characterized as a "serious medical condition," the Amended Complaint fails to provide sufficient details to satisfy the subjective prong. The Amended Complaint states in conclusory terms that the PHS Defendants, Outside Contractor Defendants, Lopez, and Ramos were aware of Adekoya's medical needs and failed to provide adequate care. In addition, the pleading does not specify that any particular defendant knew of and disregarded an excessive risk to his health or safety, and were otherwise involved in the constitutional and statutory violations he asserts and what knowing and reckless actions they took to produce the injuries he claims. See Smith, 316 F.3d at 184 (stating that because "the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law not every lapse in prison medical care will rise to the level of a constitutional violation") (citing Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). On this basis, the Amended Complaint does not contain sufficient factual allegations to defeat a motion to dismiss. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955; Brock v. Wright, 315 F.3d 158, 164 (2d Cir.2003).
Adekoya contends that he was denied access to a law library and his religious meals for "several days" while incarcerated at the Bergen County Jail. (Am. Compl. at 36.) These same allegations covering the same period of detention at the Bergen County Jail are the subject of another lawsuit that Adekoya filed in United States District Court for the District of New Jersey (the "New Jersey Lawsuit"). Under the doctrine of res judicata, subsequent litigation is precluded "if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action." In re Teltronics Services, Inc., 762 F.2d 185, 190 (2d Cir.1985).
The court in the New Jersey Lawsuit dismissed Adekoya's complaint for failure to state a First Amendment claim. See Adekoya II v. Chertoff, 08 Civ. 3994, 2009 WL 539884, at *4 (D.N.J. Mar. 4, 2009). On the denial of access to a law library claim, Adekoya failed to show that the denial caused him past or imminent "actual injury," such as hindering "his efforts to pursue a legal claim." See Lewis v. Casey, 518 U.S. 343, 352, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). As for the religious meals claim, under Third Circuit precedent, a prisoner does not state a First Amendment violation if he is denied Halal meat but provided with vegetarian meals and his religious activities are not otherwise infringed. See Williams v. Morton, 343 F.3d 212, 219 (3d Cir.2003). Adekoya filed an amended complaint and the New Jersey district court again dismissed the First Amendment claims on the same grounds. See Adekoya v. Chertoff, 08 Civ. 3994, 2009 WL 2990130, at *5 (D.N.J. Sept. 16, 2009). Consequently, Adekoya's First Amendment claims must
For the reasons stated above, it is hereby
The Clerk of Court is directed to withdraw any pending motions and to close this case.
