TORO v. ASAO

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GABRIEL FRANCIS TORO,

Civil Action

Plaintiff, No. 20-2282 (CPO) (AMD)

v.

OPINION

DR. JEFFREY ASAO, et al.,

Defendants.

O’HEARN, District Judge.

Before the Court is Defendants’ motion to dismiss the Amended Complaint (hereinafter

“Complaint”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 29.)

For the following reasons, the Court will grant in part the motion to dismiss and dismiss all of

Plaintiff’s Federal Tort Claims Act claims, as well as his Bivens claims against Defendant Cabanes,

for lack of jurisdiction. The Court will also dismiss without prejudice Plaintiff’s claims against

Defendant Gomez for failure to state a claim. Finally, the Court will deny Defendants’ motion as

to Defendant Ortiz.

I. BACKGROUND1

This case arises from an assault during Plaintiff’s incarceration at Federal Correctional

Institution Fort Dix. (ECF No. 9, ¶ 14.) On March 8, 2018, several inmates housed in the same

room brutally assaulted Plaintiff. (Id.) “This assault was not a surprising turn of events, but rather

the next logical step in a long-running escalation of Mr. Toro’s roommates’ hostilities towards

[him, as a person] convicted of sex offenses.” (Id.)

1 The Court will accept as true the factual allegations—that are unrelated to jurisdiction—in the

Complaint for the purposes of this Opinion only. The Court has made no findings as to the veracity

of Plaintiff’s allegations that are unrelated to jurisdiction.

Plaintiff names Jeffrey Asao, Robert Cabanes, Nicoletta Turner-Foster, Bill Bucur,

Charles Smith, David Ortiz, Charles Lee, L. Moore, John Rangone, and the “United States Federal

Government and its Entities,” as Defendants in this matter. (Id. at 1, ¶¶ 5–13.) According to

Plaintiff, about a year prior to the assault, staff placed him in a new room, in May of 2017, “with

eleven other inmates who were extremely aggressive towards him because of his conviction for a

sex offense.” (Id. ¶ 16.) Plaintiff reported the “increased aggression to his counselor, Defendant

Lee, and requested a room reassignment.” (Id. ¶ 17.)

Thereafter, one of Plaintiff’s roommates accused him of speaking to prison staff and

labeled him a “rat,” increasing the room’s hostility and threats towards him. (Id. ¶ 18.) Plaintiff

reported the development to Defendants Lee and Rangone, who did nothing in response. (Id.) The

harassment continued to escalate, and Plaintiff brought his concerns to Defendant Smith, whose

only response was to ask Plaintiff, “to identify specific inmates, sometimes asking him to do so in

public, which would act only as a band-aid to the pervasive hostilities . . . and would ensure further

retaliation from other inmates.” (Id. ¶ 24.) Plaintiff’s parents also contacted the Warden,

Defendant Ortiz, raising Plaintiff’s safety concerns. (Id. ¶ 23.)

Defendants Lee, Rangone, and Ortiz ignored these concerns, which resulted in the March

8, 2018, attack on Plaintiff, which “could have been avoided had Mr. Toro been given a new room

assignment.” (Id. ¶ 25.) The “inmates pummeled him, breaking his jaw in multiple places.” (Id. ¶

28.) Plaintiff’s “injuries were plainly visible, as his face was swollen and bleeding long after his

attack. . . [and he] also had difficulty speaking, slurred when he was able to speak, and had limited

function of his jaw.” (Id. ¶ 29.)

“Despite these obvious signs of severe trauma, he was not sent to receive medical care that

day, despite various direct interactions with” Defendants Moore and Lee. (Id. ¶ 30.) The next day,

Plaintiff sought medical assistance and Defendant Asao eventually examined him. (Id. ¶ 32.)

“Defendant Asao was unable to take an x-ray due to a power outage, but nevertheless could easily

determine that [Plaintiff] suffered from a fractured jaw based on a visual and tactile examination,”

and then sent Plaintiff for emergency x-rays at Robert Wood Johnson Hospital. (Id.)

At the hospital, an oral surgeon, Dr. Joseph Focarile, treated Plaintiff and diagnosed him

as having “suffered a bilateral mandible fracture.” (Id. ¶ 33.) Dr. Focarile “attempted to

immediately see Mr. Toro for corrective surgery,” but Defendant Asao and the “prison[,] could

not arrange” the surgery. (Id. ¶ 35.) Dr. Focarile spoke to Defendant Asao multiple times and told

Defendant Asao to have a different office treat Plaintiff because Dr. Focarile would be on vacation

the following week. (Id.) Nevertheless, Fort Dix staff was unable to “find anyone else” and

therefore, Dr. Focarile agreed to see Plaintiff when he returned from vacation. (Id.)

“Instead of arranging for this urgent medical care, Defendants Asao, Cabanes, and Bucur

simply moved Mr. Toro’s target date for surgery multiple times until Dr. Focarile returned from

vacation.” (Id. ¶ 36.) In the intervening time, Plaintiff’s jaw “was held together with nothing more

than a barton bandage wrap,” and Plaintiff “was in extreme pain.” (Id. ¶ 37.) Weeks later, on

March 26, 2018, Dr. Focarile examined Plaintiff and said that there was a “possible non-union of

the jaw,” and “possible less than perfect reduction due to [the] delay in treatment.” (Id. ¶ 39.) Dr.

Focarile then reset and wired Plaintiff’s jaw into place. (Id.) “In line with Dr. Focarile’s warnings

regarding the delay in . . . treatment, to this day Mr. Toro still suffers from numbness of the jaw,

and experiences pain and difficulty chewing.” (Id. ¶ 41.)

Plaintiff initiated this action pro se in March of 2020 and filed the instant Complaint with

appointed counsel in April of 2021. Defendants filed a motion to dismiss pursuant to Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6), (ECF No. 29), Plaintiff filed an Opposition, (ECF

No. 32), and Defendants filed a Reply, (ECF No. 33).

II. STANDARD OF REVIEW

A. Rule 12(b)(1) Motions to Dismiss

Under Rule 12(b)(1), an attack on subject matter jurisdiction may be either a facial or

a factual attack. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). A facial attack “concerns

an alleged pleading deficiency whereas a factual attack concerns the actual failure of a plaintiff’s

claims to comport factually with the jurisdictional prerequisites.” Id. (internal quotation marks

omitted) (alteration marks omitted).

In a facial attack, “the court looks only at the allegations in the pleadings and does so in

the light most favorable to the plaintiff.” United States ex rel. Atkinson v. Pa. Shipbuilding Co.,

473 F.3d 506, 514 (3d Cir. 2007) (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884,

891 (3d Cir. 1977)). In a factual attack, “it is permissible for a court to review evidence outside

the pleadings.” Id.

Defendants have presented this Court with a factual attack, as they contend that the facts

of the case preclude this Court from exercising subject matter jurisdiction. In a factual attack,

plaintiff’s allegations related to jurisdiction do not enjoy the presumption of truthfulness. CNA,

535 F.3d at 139; Mortensen, 549 F.2d at 891. Plaintiffs bear the burden of persuasion to establish

jurisdiction, and the Court may make factual findings beyond the pleadings that are decisive to

determining jurisdiction. CNA, 535 F.3d at 145; Atkinson, 473 F.3d at 514.

B. Rule 12(b)(6) Motions to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to

state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts

accept all factual allegations as true, construe the complaint in the light most favorable to the

plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may

be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint

survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

To make this determination, a court conducts a three-part analysis. Santiago v. Warminster

Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the elements a plaintiff

must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, the court should identify

allegations that, “because they are no more than conclusions, are not entitled to the assumption of

truth.” Id. at 131 (quoting Iqbal, 556 U.S. at 680). Finally, “where there are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they plausibly give

rise to an entitlement for relief.” Id.

“When deciding a motion to dismiss, a court typically does not consider matters outside

the pleadings.” Bermudez v. Blue Cross & Blue Shield of New Jersey, No. 19-21637, 2020 WL

4188159, at *2 (D.N.J. July 21, 2020) (internal quotation marks omitted). “However, a court may

consider documents that are ‘integral to or explicitly relied upon in the complaint’ or any

‘undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if

the plaintiff’s claims are based on the document.’” Mills v. Ethicon, Inc., 406 F. Supp. 3d 363, 372

(D.N.J. 2019) (quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir.

1999)).

III. DISCUSSION

Plaintiff brings this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§§ 1346(b), 2671 et seq., and Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

A. Federal Tort Claims Act Claims

First, Defendants move to dismiss Plaintiff’s FTCA claims arising from medical

malpractice,2 for lack of jurisdiction. More specifically, Defendants contend, under Rule 12(b)(1),

that this Court lacks jurisdiction to hear these claims because Plaintiff did not bring suit against a

proper party and failed to exhaust his administrative remedies under the FTCA.

Generally, the “FTCA operates as a limited waiver of the United State[s’] sovereign

immunity.” White–Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). Under the FTCA,

the United States is liable “in the same manner and to the same extent as a private individual under

like circumstances.” 28 U.S.C. § 2674. An incarcerated FTCA plaintiff may sue only the United

States, may seek only monetary damages, and may not recover for mental or emotional damages

in the absence of physical injury. See 28 U.S.C. § 1346(b)(1)–(2); CNA, 535 F.3d at 138 n.2.

A plaintiff suing under the FTCA must present the offending agency with notice of the

claim, including a “sum certain” demand for monetary damages. See White–Squire, 592 F.3d at

457. “Because the requirements of presentation and a demand for a sum certain are among the

terms defining the United State[’s] consent to be sued, they are jurisdictional.” Id. An agency’s

final denial of the tort claim is also a jurisdictional requirement. Lightfoot v. United States, 564

2 The Complaint does not appear to raise any state medical malpractice claims, and Defendants do

not appear to challenge any state medical malpractice claims. (ECF No. 9, ¶¶ 64–81; ECF No. 29,

at 6–9.)

F.3d 625, 627 (3d Cir. 2009). These requirements cannot be waived. See, e.g., White–Squire, 592

F.3d at 457; Lightfoot, 564 F.3d at 627.

“In other words, if a plaintiff has not complied with the FTCA’s pleading requirements, a

district court has no subject matter jurisdiction over the claim.” Palmer v. United States, No. 21-

11721, 2022 WL 310208, at *4 (D.N.J. Feb. 1, 2022) (internal quotation marks omitted); Cabrera

v. United States, No. 21-17483, 2021 WL 5356111, at *4 (D.N.J. Nov. 17, 2021); Hoffenberg v.

United States, No. 10-2788, 2012 WL 379934, at *4 (D.N.J. Feb. 6, 2012). A plaintiff asserting a

FTCA claim bears the burden of establishing that he has met these requirements. Livera v. First

Nat. State Bank of New Jersey, 879 F.2d 1186, 1194–95 (3d Cir. 1989).

As an initial matter, Plaintiff appears to assert his FTCA claims against the Bureau of

Prisons (“BOP”), rather than the United States. (ECF No. 9 ¶¶ 64–81.) Plaintiff cannot, however,

maintain a claim against the Bureau of Prisons, as the United States is the only proper defendant

for a FTCA claim. E.g., CNA, 535 F.3d at 138 n.2. (“The Government is the only proper defendant

in a case brought under the FTCA.”); see also 28 U.S.C. § 1346(b)(1)–(2). Accordingly, the Court

will dismiss Plaintiff’s FTCA claims against the BOP for lack of jurisdiction.

Next, even if this Court were to substitute the United States3 as the proper party, the Court

would nevertheless dismiss these claims for lack of jurisdiction, as Plaintiff failed to exhaust his

administrative remedies. In his Complaint, Plaintiff does not allege that he exhausted his

administrative remedies prior to filing suit. Plaintiff only alleges that he presented his tort claim

to the BOP “on January 6, 2020, through the submission of a Standard Form 95, ‘Claim for

3 Although the Complaint names the United States in its caption, it does not appear to name the

United States as a defendant in the body of the Complaint with respect to its FTCA claims. (ECF

No. 9 ¶¶ 64–81.)

Damage, Injury or Death’” and that “[t]hat claim was denied.” (ECF No. 9, ¶¶ 73, 80.) The

Complaint fails to identify when the BOP allegedly denied the claim. (Id.)

According to Defendants, the BOP’s records show that it received Plaintiff’s administrative

tort claim on February 20, 2020, and the BOP denied the claim about a year later, on February 11,

2021. (ECF No. 29-3, ¶¶ 3–5.) Plaintiff, however, initiated suit in this case on March 2, 2020,

which was prior to the actual denial of the claim, and prior to the six-month constructive4 denial

of the claim. Further, the fact that Plaintiff eventually filed an amended complaint after the denial

of his tort claim does not cure the jurisdictional issue. Hoffenberg v. Provost, 154 F. App’x 307,

310 (3d Cir. 2005) (“The District Court properly rejected this argument, as the date of the amended

complaint cannot serve as the date the federal suit was ‘instituted.’”); see McNeil v. United States,

508 U.S. 106, 111–13 (1993) (rejecting the argument that plaintiffs can prematurely file a

complaint and then wait for a final denial).

Finally, Plaintiff did not oppose the dismissal of his FTCA claims. (ECF No. 32.)

Accordingly, because Plaintiff’s FTCA claims fail to sue the proper party and because even if the

Court substitutes the United States as the proper party, the Plaintiff failed to exhaust his

administrative remedies prior to initiating suit, this Court will grant Defendants’ motion and

dismiss the FTCA claims for lack of subject matter jurisdiction. Lightfoot, 564 F.3d at 627;

Lampon-Paz v. Dep’t of Just., No. 16-9071, 2019 WL 2098831, at *6 (D.N.J. May 14, 2019), aff’d,

793 F. App’x 137 (3d Cir. 2019).

4 “The failure of an agency to make a final disposition of a claim within six months after it is filed,

shall at the option of the claimant any time thereafter, be deemed a final denial of the claim for

purposes of this section.” 28 U.S.C. § 2675(a).

B. Claims Against Defendant Cabanes

Next, Defendants argue that that under the Public Health Service Act, 42 U.S.C. § 233,

Public Health Service (“PHS”) employees such as Defendant Cabanes are immune from suit. As

a result, Defendants move to dismiss the Bivens claims against Defendant Cabanes under Rule

12(b)(1), for lack of jurisdiction.5

Under 42 U.S.C. § 233(a), the “exclusive” remedy arising from claims “for personal injury,

including death, 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,”

shall be a FTCA claim against the United States. In other words, “Section 233(a) grants absolute

immunity to PHS officers and employees for actions arising out of the performance of medical or

related functions within the scope of their employment by barring all actions against them for such

conduct,” and limiting “recovery for such conduct to suits against the United States.” Hui v.

Castaneda, 559 U.S. 799, 806 (2010). Further, in Hui, the Supreme Court specifically held “that

the immunity provided by § 233(a) precludes Bivens actions against individual PHS officers or

employees for harms arising out of conduct described in that section.” Id. at 812.

With those principles in mind, Plaintiff does not dispute Defendant Cabanes’ declaration

which states that he was a PHS employee during the events of the Complaint, as chief dental officer

5 The Court notes that other courts in this District have specifically construed motions which seek

dismissal of Public Health Service employees in Bivens actions as “factual” attacks on subject

matter jurisdiction under Rule 12(b)(1). See, e.g., Fuller v. FCI Manchester Health Serv., No. 12-

7025, 2016 WL 1182255, at *5 (D.N.J. Mar. 28, 2016); Stevens v. Zickefoose, No. 12-3011, 2015

WL 5227446, at *5 (D.N.J. Sept. 8, 2015); Kimbugwe v. United States, No. 12-7940, 2014 WL

6667959, at *2 (D.N.J. Nov. 24, 2014).

of Fort Dix. (Compare ECF No. 29-5, with ECF No. 32.) Nor does Plaintiff dispute that his Bivens

claims against Defendant Cabanes arose “from the performance of medical, surgical, dental, . . .

or related functions,” under § 233(a). 42 U.S.C. § 233(a). Indeed, Plaintiff does not oppose

Defendants’ motion to dismiss the claims against Defendant Cabanes. (ECF No. 32.)

As a result, § 233(a) precludes Plaintiff’s claims against Defendant Cabanes, and deprives

this Court of jurisdiction as to such claims. See Fuller v. FCI Manchester Health Serv., No. 12-

7025, 2016 WL 1182255, at *6 (D.N.J. Mar. 28, 2016) (granting a Rule 12(b)(1) motion as to the

Bivens claims against a PHS employee at a different federal prison). Accordingly, the Court will

grant Defendants’ motion and dismiss the claims against Defendant Cabanes for lack of subject

matter jurisdiction. Gomez v. Cullen, No. 21-2776, 2022 WL 1183713, at *2 (3d Cir. Apr. 21,

2022) (affirming the dismissal of Bivens claims against a PHS employee for lack of subject matter

jurisdiction).

C. Claims Against Defendants Gomez and Ortiz

Finally, Defendants move to dismiss the Bivens claims against Defendants Gomez and

Ortiz, for failure to state a claim under Rule 12(b)(6). More specifically, Defendants contend that

the Court should dismiss these claims because there are “no specific factual allegations tying

[Defendants Gomez and Ortiz] to any specific alleged constitutional violation.” (ECF No. 29-2, at

16.)

Generally, qualified immunity protects individuals so that they can “perform their public

duties with[out] unwarranted timidity or be deterred from entering [a] line of work.” Filarsky v.

Delia, 566 U.S. 377, 393 (2012). As a result, government officials are generally immune from

suit for civil damages so long as their conduct “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).

To determine whether defendants are entitled to qualified immunity, a two-step analysis is

necessary. First, the Court must consider whether, “taken in the light most favorable to the party

asserting the injury, . . . the facts . . . show [that] the officer’s conduct violated a constitutional

right.” Hamilton v. Leavy, 322 F.3d 776, 786 (3d Cir. 2003) (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)). Second, a court must “ask whether the right was clearly established.” Id. This

means that “there must be sufficient precedent at the time of [the defendant’s] action, factually

similar to the plaintiff’s allegations, to put [the] defendant on notice that his or her conduct is

constitutionally prohibited.” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012) (citing McLaughlin

v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)) (alterations in original). Although courts will often

consider the first prong prior to the second, a court has “discretion in deciding which of the two

prongs of the qualified immunity analysis” it will decide first. Pearson v. Callahan, 555 U.S. 223,

236 (2009).

With those principles in mind, Plaintiff does not oppose Defendants’ motion to dismiss as

to Defendant Gomez. As Defendants emphasize, the Complaint “contains no mention of

Defendant Gomez other than listing him in the case caption.” (ECF No. 29-2). Consequently, as

there are no specific allegations as to Defendant Gomez, the Complaint fails to state a claim against

him. As it is feasible that Plaintiff could amend the Complaint to state a claim against Defendant

Gomez, the Court will simply dismiss the claims against him without prejudice for failure to state

a claim, rather than dismiss those claims under qualified immunity.

As to Defendant Ortiz, the Court arrives at a different conclusion. Plaintiff raises two

Bivens claims against Defendant Ortiz.

1. Claim Against Defendant Ortiz for the Delay or Denial of Medical Care

First, Plaintiff contends under Count I that Defendant Ortiz, among others,6 delayed or

denied Plaintiff medical treatment in violation of the Eighth Amendment. (ECF No. 9, ¶ 50–51.)

Under the Eighth Amendment, for the delay or denial of medical care to rise to a constitutional

violation, a person must demonstrate: “(1) that defendants were deliberately indifferent to [his]

medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d

Cir. 1999). Deliberate indifference requires proof that the official “knows of and disregards an

excessive risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575,

582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

Courts have found deliberate indifference where an official: “(1) knows of a prisoner’s

need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical

treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving needed or

recommended treatment.” Rouse, 182 F.3d at 197.

In his Complaint, Plaintiff alleges that Defendant “Ortiz . . . toured the [Special Housing

Unit] multiple times . . . and saw Mr. Toro’s physical state between March 9 and March 26,” 2018.

(ECF No. 9, ¶ 50.) During that time period, “it was visibly obvious Mr. Toro was not receiving

the necessary treatment for his broken jaw—he continued to experience swelling, bleeding and

[was] wrapped only in a barton bandage.” (Id.) Despite seeing Plaintiff multiple times in that state,

Defendant Ortiz “did not take any actions to obtain necessary medical care for Mr. Toro.” (Id.)

Ultimately, discovery may shed light on the precise nature and detail of these interactions,

but at the motion to dismiss stage, this Court must take these allegations as true, draw “all

6 Defendants do not move to dismiss the claims in Count I that are related to the other remaining

Defendants.

reasonable inferences,” and “view them in the light most favorable to the plaintiff.” E.g., Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). From these allegations, one could

reasonably infer that Plaintiff had a ghastly visage between March 9 and March 26, 2018, and that

Defendant Ortiz observed Plaintiff’s condition on multiple occasions during that time period, in

relatively close proximity. A jury could reasonably find that, upon seeing Plaintiff’s injuries,

Defendant Ortiz subjectively perceived Plaintiff’s serious need for medical treatment, and then

intentionally refused to provide it, or delayed medical treatment for a nonmedical reason. Rouse,

182 F.3d at 197.

Consequently, the Complaint states a claim for the denial or delay of medical treatment

under the Eighth Amendment. For substantially the same reasons, under the first prong of the

qualified immunity analysis, “taken in the light most favorable to” Plaintiff, the alleged facts show

that Defendant Ortiz’s “conduct violated a constitutional right.” Hamilton, 322 F.3d at 786

(internal quotation marks omitted).

In moving to dismiss based on qualified immunity, it appears that Defendants assumed that

they would succeed on the first prong and did not argue, in the alternative, as to whether Defendant

Ortiz violated a clearly established right. (ECF No. 29-2, at 16–18.) Accordingly, Defendants have

not met their burden to show that Defendant Ortiz is entitled to qualified immunity at this time,

and the Court will deny the motion to dismiss as to the claims against Defendant Ortiz in Count I.

2. Claim Against Defendant Ortiz for Failure to Protect

Next, as to Count II, Plaintiff alleges that Defendant Ortiz, among others,7 violated his

rights under the Eighth Amendment by failing to protect him from other inmates. (Id. ¶ 59–62.)

7 Defendants do not move to dismiss the claims in Count II that are related to the other remaining

Defendants.

To state a failure to protect claim under the Eighth Amendment, a plaintiff must “plead facts that

show: (1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the

official was deliberately indifferent to that substantial risk to his health and safety, and (3) the

official’s deliberate indifference caused him harm.” Bistrian, 696 F.3d at 367 (citing Farmer, 511

U.S. at 834). In this context, “deliberate indifference” is a subjective standard. Bistrian, 696 F.3d

at 367. The official “must actually have known or been aware of the excessive risk to inmate

safety” and it is “not sufficient that the official should have known of the risk.” Id.

In his Complaint, Plaintiff alleges that his parents “contacted Defendant Ortiz about Mr.

Toro’s safety concerns, and the effect this pervasive danger was having on his mental and physical

health.” (ECF No. 9, ¶ 23.) One could reasonably infer that Plaintiff’s parents relayed the threats

described in the Complaint, that Plaintiff’s roommates were the source of those threats, and that

Plaintiff sought a different room assignment. Despite receiving that information, Defendant Ortiz

did not transfer Plaintiff to a different room, which ultimately allowed Plaintiff’s roommates to

assault him. (Id. ¶¶ 59–61.) From these allegations, a jury could find that: (1) Plaintiff’s room

assignment posed a “substantial risk of serious harm,”: (2) that Defendant Ortiz subjectively

perceived that risk, (3) that Defendant Ortiz was deliberately indifferent to that risk, by failing to

address the issue; and (4) that that deliberate indifference resulted in Plaintiff’s harm, i.e., the

assault. Bistrian, 696 F.3d at 367.

Consequently, the Complaint states a claim for failure to protect under the Eighth

Amendment. Likewise, under the first prong of the qualified immunity analysis, “taken in the light

most favorable to” Plaintiff, the alleged facts show that Defendant Ortiz’s “conduct violated a

constitutional right.” Hamilton, 322 F.3d at 786 (internal quotation marks omitted).

Once again, in moving to dismiss based on qualified immunity, it appears that Defendants

assumed that they would succeed on the first prong and did not argue, in the alternative, as to

whether Defendant Ortiz violated a clearly established right. (ECF No. 29-2, at 16–18.)

Accordingly, Defendants have not met their burden to show that Defendant Ortiz is entitled to

qualified immunity at this time, and the Court will deny the motion to dismiss as to the claims

against Defendant Ortiz in Count II.

IV. CONCLUSION

For the foregoing reasons, the Court will grant in part the motion to dismiss and dismiss

all of Plaintiff’s FTCA claims, as well as his Bivens claims against Defendant Cabanes, for lack

of jurisdiction. The Court will also dismiss without prejudice Plaintiff’s claims against Defendant

Gomez for failure to state a claim. Finally, the Court will deny Defendants’ motion as to Defendant

Ortiz. An appropriate Order follows.

Dated: October 25, 2022

/s/ Christine P. O’Hearn

Christine P. O’Hearn

United States District Judge