Mirvis v. Quay

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

RUSLAN MIRVIS,

Plaintiff,

v.

HERMAN QUAY, Warden; ELEAZAR GARCIA,

Associate Warden; JONATHAN WHITE, Captain; MEMORANDUM AND ORDER

“JOHN” POE, Lieutenant; “JOHN” METZGER,

Lieutenant; “JOHN” CALIXTE, Correction Officer; 19-CV-2573 (LDH) (VMS)

“JOHN DOE” #1-3, Correction Officers; “G.”

GONZALEZ, Correction Officer; “JANE DOE,”

Correction Officer; AND MAURY “DOE,”

Counselor,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Ruslan Mirvis (“Plaintiff”) brings the instant action asserting Bivens claims against

former Warden Herman Quay, Associate Warden Eleazar Garcia, Captain Jonathan White,

former Lieutenant Thomas Pope, Lieutenant Veronica Metzger, Senior Officer Specialist Pierre

Calixte, Correctional Counselor Lawrence Murray, and former Correctional Officer George

Gonzalez1 (collectively, “Defendants”) for violations of his rights, privileges, and immunities

under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution.

Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.2

1 Plaintiff also brings the instant action against Correctional Officer John Doe #1, Correctional Officer John Doe #2,

Correctional Officer John Doe #3, and Correctional Officer Jane Doe. See (Am. Compl. ¶¶ 19, 21, ECF No. 26.)

However, Plaintiff has not served these outstanding Defendants. Accordingly, the amended complaint is dismissed

as to these defendants.

2 In the alternative, Defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary

judgment on all claims. (Defs.’ Mem. L. Supp. Mot. Dismiss (“Defs.’ Mem.”) at 2–3, ECF No. 65.) The Court

declines to entertain a motion for summary judgment.

BACKGROUND3

I. June 6 – July 7, 2017 Sexual Assaults

Plaintiff was a pretrial detainee at MDC Brooklyn. (Am. Compl. ¶ 9, ECF No. 26.) On a

daily basis, between June 6, 2017, and July 7, 2017, Plaintiff was sexually threatened, abused,

and assaulted by two inmates in the J-72 housing area. (Id. ¶ 28.) During this period, the two

inmates frequently used objects to sexually assault Plaintiff. (Id. ¶ 33.) Typically, one inmate

would restrain Plaintiff while the other would beat him and insert an object into Plaintiff’s anus.

(Id. ¶ 33.) During this time, the same inmates demanded that Plaintiff direct his family to

deposit money into their respective MDC Brooklyn commissary accounts. (Id. ¶ 34.) Plaintiff

acquiesced to their demands out of fear, and, over time, Plaintiff directed his family to deposit

thousands of dollars into the inmates’ accounts. (Id.) Eventually, Plaintiff refused because his

family could no longer afford any payments. (Id. ¶ 35.)

On July 7, 2017, the two inmates attacked Plaintiff and sodomized him with a broomstick

(the “July 7 attack”). (Id. ¶ 36.) During the attack, Plaintiff screamed out to officers for help but

did not receive a response. (Id.) Following the attack, Plaintiff returned to his cell and pushed

the panic button. (Id. ¶ 37.) Correctional Officer (“C.O.”) John Doe 1 arrived, and Plaintiff

reported the attack to him. (Id.) Following, C.O. John Doe 1 informed Plaintiff he would “be

right back” but did not return. (Id.) Throughout that evening, Plaintiff continued to cry out for

help and eventually a correctional officer escorted Plaintiff to an “SIS location.” (Id. ¶ 38.)

There, Plaintiff informed Defendant Lt. Pope, the supervisor in charge of the SIS location, what

had occurred and informed him of his need for urgent medical attention. (Id.) Defendant Lt.

3 The following facts are taken from the amended complaint and are assumed to be true for the purposes of this

memorandum and order.

Metzger was also present and mockingly told Plaintiff that he should “learn to defend himself.”

(Id. ¶¶ 39–40.) Neither Defendants Lt. Pope or Lt. Metzger offered immediate medical or mental

health care to Plaintiff, nor did they arrange for Plaintiff to receive such care. (Id. ¶¶ 38, 40.)

Eventually, Plaintiff was escorted to a medical unit where pictures and X-Rays were

taken of his injuries, and he was provided aspirin. (Id. ¶ 41.) Following, he was placed in a

special housing unit (“SHU”). (Id.) Plaintiff spent at least one month in the SHU, and during

that time, Plaintiff repeatedly complained to C.O. John Doe 2 of continuing pain and swelling to

his ribs and swelling of his mouth. (Id. ¶ 42.) C.O. John Doe 2 ignored Plaintiff’s complaints.

(Id.) A month later, Plaintiff was informed that he sustained three fractured ribs and needed an

extraction of his tooth. (Id. ¶ 43.)

Additionally, during the June 6, 2017, to July 7, 2017 period, Plaintiff informed C.O.

Gonzalez approximately five to six times, Counselor Maury two to three times, and C.O. Jane

Doe twice that he was being sexually abused and threatened by the two inmates.4 (Id. ¶ 48.) In

response, Defendant C.O. Gonzalez told Plaintiff that this is what happens in prison and

suggested he beat his attackers with a “lock in a sock” next time they come after him. (Id.)

Plaintiff also sent at least 85 emails to Defendants Warden Quay, Associate Warden Garcia, Cpt.

White, and other MDC Brooklyn staff. (Id. ¶ 49.) Defendants failed to provide adequate

responses to his emails, investigate the allegations, separate Plaintiff from his two attackers, or

take any action to remedy the situation. (Id. ¶ 50.)

According to the amended complaint, the two inmates who assaulted Plaintiff were

known by Defendants to be violent gang members who were involved in other incidents while at

MDC Brooklyn and no remedial action was taken. (Id. ¶¶ 28-30.) Specifically, Defendants were

4 Plaintiff alleges that he also told several housing unit officers. (Am. Compl. ¶ 48.)

aware the two inmates extorted and sexually abused another inmate assigned to the J-72 unit.

(Id. ¶ 31.) Nonetheless, no action was taken against the inmates. (Id.)

II. January 27 – February 3, 2019 Power Outage

From about January 27, 2019, through February 3, 2019, MDC Brooklyn underwent a

power outage. (Id. ¶ 44.) During that time, MDC Brooklyn did not have heat, hot water, or

electricity and Plaintiff was repeatedly denied medical care by the MDC staff. (Id.) On or about

February 5, 2019, Plaintiff reported to Defendants C.O. Calixte and Lt. Metzger that he was

experiencing numbness to his left side and that he had vomited blood. (Id. ¶ 45.) In response,

Defendant Lt. Metzger told Plaintiff, he was “sick in the head.” (Id.) Plaintiff was eventually

taken to the hospital and diagnosed with a hole in his stomach and pinched nerve. (Id. ¶ 46.)

Plaintiff was confined to the hospital for at least three days. (Id.)

STANDARD OF REVIEW

To withstand a Rule 12(b)(6) 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible when the alleged facts allow the court to draw a

“reasonable inference” of a defendant’s liability for the alleged misconduct. Id. While this

standard requires more than a “sheer possibility” of a defendant’s liability, id., “[i]t is not the

Court’s function to weigh the evidence that might be presented at trial” on a motion to dismiss.

Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, “the

Court must merely determine whether the complaint itself is legally sufficient, and, in doing so,

it is well settled that the Court must accept the factual allegations of the complaint as true.” Id.

(citations omitted).

DISCUSSION

I. Failure to Exhaust

Defendants urge the Court to dismiss the amended complaint on the grounds that Plaintiff

failed to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act

of 1995 (the “PLRA”).5 (Defs.’ Mem. L. Supp. Mot. Dismiss (“Defs.’ Mem.”) at 23-25, ECF

No. 65.) The PLRA provides that a prisoner may not bring an action under federal law “with

respect to prison conditions . . . until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a).

In Ross v. Blake, the Supreme Court made clear that the exhaustion requirements of the

PLRA were mandatory and only subject to limited exceptions. See 136 S. Ct. 1850, 1856

(2016). However, and of particular relevance here, the Supreme Court recognized that

exhaustion can be mandated only where “[administrative] remedies [are] indeed [] ‘available’ to

the prisoner.” Id. Following Ross, the Second Circuit found that administrative remedies could

be unavailable to inmates under three circumstances. See Williams v. Correction Officer

Priatno, 829 F.3d 118, 123 (2d Cir. 2016). First, an administrative remedy is unavailable when

“it operates as a simple dead end—with officers unable or consistently unwilling to provide any

relief to aggrieved inmates.” Id. (quoting Ross, 136 S. Ct. at 1859). Second, “an administrative

scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Put

differently, “some mechanism exists to provide relief, but no ordinary prisoner can discern or

navigate it.” Id. at 123–24 (quoting Ross, 136 S. Ct. at 1856). Third, an administrative remedy

may be unavailable “when prison administrators thwart inmates from taking advantage of a

5 Inconsistently, the Defendants state in their Reply Memorandum that they “do not argue that [P]laintiff had any

pleading burden regarding exhaustion, nor do they seek dismissal under Rule 12(b)(6) in connection with

[P]laintiff’s failure to exhaust.” (Reply Mem. at 15.)

grievance process through machination, misrepresentation, or intimidation.” Id. at 124 (quoting

Ross, 136 S. Ct. at 1860). Importantly, “failure to exhaust administrative remedies is an

affirmative defense under the PLRA, not a pleading requirement” and, thus, “inmates are not

required to specially plead or demonstrate exhaustion in their complaints.” Williams, 829 F.3d at

122 (quoting Jones v. Bock, 549 U.S. 199, 216 (2007)). That said, “a district court still may

dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the

complaint that the plaintiff did not satisfy the PLRA exhaustion requirement.” Id. (citing Jones,

549 U.S. at 215).

Here, the Court declines to dismiss Plaintiff’s claims for failure to exhaust. Plaintiff’s

amended complaint does not itself contain any allegations that would make it clear that the

PLRA exhaustion requirement was not satisfied. Rather, the amended complaint alleges Plaintiff

sent at least 85 emails to Defendants Warden Quay, Captain Garcia, Captain White, and

numerous other MDC Brooklyn staff. (Am. Compl. ¶ 49.) Plaintiff further alleges the staff

provided inadequate responses, failed to investigate, and failed to separate Plaintiff from his two

attackers. (Id. ¶ 50.)

II. Plaintiff’s Deliberate Indifference Claims Under Bivens

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the

Supreme Court, for the first time, recognized a constitutional cause of action for damages against

federal officers. 403 U.S. 388 (1971). Specifically, the Supreme Court held that a plaintiff may

sue federal officers in their individual capacities for violating her Fourth Amendment protection

against unreasonable searches and seizures. Id. at 389, 395–97. In doing so, the Supreme Court

“held that courts must ‘adjust their remedies so as to grant the necessary relief’ when ‘federally

protected rights have been invaded.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017) (quoting

Bivens, 403 U.S. at 392). Consistent with its holding in Bivens, the Supreme Court later found

implied rights of action and granted Bivens remedies in two additional contexts: one where a

plaintiff alleged gender discrimination in violation of the Fifth Amendment’s Due Process

Clause, Davis v. Passman, 442 U.S. 228 (1979), and the other where a plaintiff complained of

deliberate indifference to medical needs in violation of the Eighth Amendment, Carlson v.

Green, 446 U.S. 14 (1980). The Supreme Court has not explicitly extended Bivens to other

contexts in the ensuing forty years. Indeed, in Ziglar v. Abbasi, the Supreme Court made plain

that Bivens would not operate as the “substantial equivalent of 42 U.S.C. § 1983” to permit

recovery in any new context and new category of defendant. 137 S. Ct. at 1855 (internal

quotation marks omitted). Instead, the Supreme Court noted a change in its approach to

recognizing implied causes of action, now clearly disfavoring extending Bivens to “new

context[s].” Id. at 1864.

When determining whether Bivens is being extended into such a new context, the

Supreme Court has indicated that, while not exhaustive, factors that might be instructive include:

[T]he 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. at 1860.

A. Plaintiff’s Deliberate Indifference to His Serious Medical Needs Claims

1. Availability of a Remedy Under Bivens

Plaintiff alleges Defendants were deliberately indifferent to his serious medical needs

arising out of the July 7 attack and the February 2019 blackout at MDC Brooklyn (collectively,

the “deliberate medical indifference claims”). (Pl.’s Mem. at 12–21.) In response, Defendants

argue that, by nature of Plaintiff’s pre-trial status and other factual distinctions, recognizing such

a claim would extend Bivens to a new context. (Defs.’ Mem. at 7.) The Court disagrees with

Defendants.

In Carlson v. Greene, the Supreme Court held that the Eighth Amendment’s prohibition

against cruel and unusual punishment gave an inmate a damages remedy for failure to provide

adequate medical treatment. See 446 U.S. at 17–18. There, the inmate had a known chronic

asthmatic condition, but, against the advice of doctors, the plaintiff was nonetheless held in a

corrections center with known inadequate medical facilities. Id. at 16 n.1. And, officials

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.

Id. Ultimately, the alleged failure to provide medical treatment resulted in the inmate’s death.

Id.

Similarly, here, as to Plaintiff’s deliberate indifference to medical issues claims, Plaintiff

alleges repeated concerns and complaints related to injuries resulting from ongoing sexual

assaults and at least three specific instances of reporting to officers who did not immediately

provide medical care. (Am. Compl. ¶¶ 27–33, 37–40.) Plaintiff further alleges reports to

specific officers that he was experiencing numbness to his left side and vomiting blood. (Id. ¶

45.) Again, the amended complaint contains allegations that Plaintiff reported these medical

issues, but the officers failed to act. (Id.) Thereafter, Plaintiff alleges he experienced severe

pain, fractured ribs, a hole in his stomach, and a pinched nerve. (Id. ¶ 46). In other words, at

base, Plaintiff in the instant action, like the respondent in Carlson, alleges “federal jailers[]

fail[ed] to provide adequate medical treatment[.]” Gonzalez v. Hasty, 755 F. App’x 67, 69 (2d

Cir. 2018).

Nonetheless, Defendants maintain that, although the Supreme Court has previously

extended Bivens to an Eighth Amendment deliberate medical indifference claim in Carlson,

Plaintiff’s status as a pretrial detainee requires his claims be considered under the Fifth

Amendment. (Defs.’ Mem. at 7–8.) Therefore, as Defendants’ argument goes, Plaintiff’s claims

arise under a new Bivens context. (Id.) To be sure, the Supreme Court has not explicitly

recognized a Bivens remedy for deliberate indifference to serious medical needs under the Fifth

Amendment. However, contrary to Defendants’ contention, that Plaintiff’s claims arise under a

different constitutional provision is not necessarily dispositive as to whether Plaintiff’s claims

implicate a new Bivens context.

In Abbasi, the Supreme Court considered a Fifth Amendment due process claim, brought

against a warden by several pretrial detainees under Bivens for “deliberate indifference to

prisoner abuse.” 137 S. Ct. at 1864. In determining whether the claim arose under a new Bivens

context, the Court recognized the parallels to Carlson, where “the Court did allow a Bivens claim

for prisoner mistreatment—specifically, for failure to provide medical care.” Id. Despite these

parallels, the Supreme Court concluded that plaintiffs sought to extend Bivens in a new context.

Id. In reaching this conclusion, the Supreme Court noted first that there was a difference in the

constitutional right at issue. Id. Like here, the claim was predicated on the Fifth Amendment,

while Carlson was predicated on the Eighth Amendment. Id. At least equally important to the

Court’s calculus was that the judicial guidance with regard to the plaintiffs’ pretrial abuse claims

at issue was less developed than the legal claim at issue in Carlson. In particular, the Supreme

Court raised the concern that although “the Court has long made clear the standard for claims

alleging failure to provide medical treatment to a prisoner . . .[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.” Id. at 1864–65. That concern is not present here.

In this case, Plaintiff does not bring a pre-trial abuse claim. Rather, Plaintiff seeks to

hold federal officials liable for damages he sustained as a result of their indifference to his

medical claims as a pretrial detainee. If the claims proceed, in assessing its sufficiency, the

Court would employ the same analysis that it would have had Plaintiff’s claims arose under the

Eighth Amendment. Indeed, the Second Circuit has noted that “[w]e have often applied the

Eighth Amendment deliberate indifference test to pre-trial detainees bringing actions under the

Due Process Clause of the Fourteenth Amendment . . . [w]e see no reason why the analysis

should be different under the Due Process Clause of the Fifth Amendment.” Cuoco v.

Moritsugu, 222 F.3d 99, 106 (2d. Cir. 2000).

In deciding a Fifth Amendment medical indifference claim, the Court would ask whether

Plaintiff pleaded a sufficiently serious medical need and that the official acted with a culpable

state of mind. Compare Cannenier v. Skipper-Scott, 18-cv-2383, 2019 WL 764795, at *4

(S.D.N.Y. Feb. 20, 2019) (considering a deliberate indifference to serious medical need claim

under the Eighth Amendment), with Laurent v. Borecky, No. 17-cv-3300, 2018 WL 2973386, at

*5 (E.D.N.Y. June 12, 2018) (considering a deliberate indifference claim brought under the Fifth

Amendment and finding that while “this case . . . presents a different constitutional right at issue

. . . it bears an extremely strong resemblance to [one of] the three Bivens claims the [Supreme]

Court has approved in the past[]”) (alternations in original) (internal quotation marks omitted).

In other words, there is clear judicial guidance on the “standard[s] for alleging failure to provide

medical treatment to a prisoner.” Laurent, 2018 WL 2973386 at *5. As such, Plaintiff’s Bivens

claims for deliberate indifference to serious medical needs under the Fifth Amendment arise in

the same context as the Eighth Amendment claim recognized in Carlson. In so finding, the

Court joins several other district courts within this circuit to find the same. See, e.g., id.;

Geritano v. AUSA Office for E.D.N.Y., No. 20-cv-0781, 2020 WL 2192559, at *4 (S.D.N.Y. May

5, 2020) (“Courts in this district have held that a federal pretrial detainee may bring a medical

claim under the Fifth Amendment because such a claim is the same context as an Eighth

Amendment claim already recognized in Carlson.”); Sisk v. MCC, et al., No. 20-CV-10293,

2021 WL 412487, at *3 (S.D.N.Y. Feb. 3, 2021) (“Federal pretrial detainees may bring a Fifth

Amendment claim for failure to provide medical treatment as a Bivens action because such a

claim bears a strong resemblance to the claim in Carlson”); Martinez v. D’Agata, No. 16-cv-44,

2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18, 2019) (“Plaintiff was a pretrial detainee at the time

of his arrest . . . . deliberate indifference to medical needs claims brought against federal actors

under Bivens are analyzed under the Fifth Amendment’s Due Process Clause.”); Morgan v.

Shivers, No. 14-cv-7921, 2018 WL 618451, at *7 n.4 (S.D.N.Y. Jan. 29, 2018) (“The Court notes

that, even in light of the proscription against creating new Bivens remedies, it would be

counterintuitive if a convicted prisoner could remedy a federal officer’s failure to provide

medical care amounting to punishment, but a pre-trial detainee—who, unlike convicted

prisoners, cannot be punished at all, could not.”) (internal quotation marks omitted).

Certainly, the Court is mindful of the Supreme Court’s recent decision in Egbert v. Boule,

which has been interpreted to significantly constrict the pathway for redress under Bivens. 142

S. Ct. 1793, 1818 (2022). Indeed, post-Egbert, at least two district courts have interpreted the

current scope of Bivens to preclude relief for pre-trial detainees alleging deliberate indifference

to their medical needs. See Choice v. Michalak, No. 21-CV-0060, 2022 WL 4079577, at *4

(N.D. Ill. Sept. 6, 2022) (holding that because the plaintiff’s claim arose under the Fifth

Amendment instead of the Eighth Amendment, “it implicate[d] a different constitutional right,”

and therefore was meaningfully different from Carlson); see also Stennis v. Armstrong, No. 18

CV 7846, 2023 WL 1319561, at *6-7 (N.D. Ill. Jan. 31, 2023) (reasoning that plaintiff’s status as

a pretrial detainee claiming a right to adequate medical care under the Fifth Amendment arises

under a new context). Nonetheless, this Court cannot draw the same conclusion.

Imagine twin brothers, Alex and Terence, are each charged with bank robbery and held in

the same cell at a federal facility. Alex has already pleaded guilty, was sentenced, and is

awaiting placement at a permanent facility. Terence denied any wrongdoing and remained held

as a pre-trial detainee. Both Alex and Terence were diagnosed as chronic asthmatics. In facts

strikingly similar to Carlson, prison officials were aware that the two brothers suffered from a

chronic asthmatic condition, as the two recently returned from a week-long hospital stay. On the

same day, both Alex and Terence each suffered from a severe asthmatic attack. Prison officials

declined to provide medical attention for nearly six hours. Once medical attention was provided,

prison officials administered contra-indicated drugs that exacerbated each brother’s medical

condition. Despite the advice of prison doctors, the two brothers were not transferred to a

hospital for over twelve hours, where they were subsequently pronounced dead.

As Defendants would have it, only Alex, the brother who pleaded guilty, would have the

ability to seek relief based on a claim for indifference to his medical needs. Terence, on the

other hand, would be denied any such recourse. Yet, the only difference between the two

brothers lies in their status — one is a convicted felon who may bring an Eighth Amendment

claim and the other is a pre-trial detainee who seeks to prove his innocence, and therefore, must

pursue any claim under the Fifth Amendment. Under these circumstances, the Court finds that

this distinction is neither meaningful nor relevant. In drawing this conclusion, this Court is

mindful of Justice Sotomayor’s sage counsel in her dissent to Egbert. There she writes,

“although [the Egbert] opinion will make it harder for plaintiffs to bring a successful Bivens

claim . . . the lower courts should not read it to render Bivens a dead letter.” Egbert, 142 S. Ct. at

1823 (Sotomayor, J., concurring in part and dissenting in part). I have not.

2. Existence of Actionable Claims

Having determined that Plaintiff can bring a Fifth Amendment claim for deliberate

indifference to his serious medical needs under Bivens, the Court must consider whether Plaintiff

has sufficiently alleged a constitutional violation.

As a threshold matter, personal involvement of a defendant is a prerequisite to any Bivens

claim. See Ashcroft, 556 U.S. at 676; Ganek v. Leibowitz, 874 F.3d 73, 92 (2d Cir. 2017).

Specifically, “[b]ecause the doctrine of respondeat superior does not apply in Bivens actions, a

plaintiff must allege that the individual defendant was personally involved in the constitutional

violation.” Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006). Indeed,

[t]he personal involvement of a supervisory defendant may be shown by evidence

that the defendant: (1) directly participated in the constitutional violation; (2) failed

to remedy the violation after learning of it through a report or appeal; (3) created a

custom or policy fostering the violation or allowed the custom or policy to continue

after learning of it; (4) was grossly negligent in supervising subordinates who

caused the violation; or (5) failed to act on information indicating that

unconstitutional acts were occurring.

Id. at 496–97.

Defendants argue that Plaintiff does not allege Defendants were aware of his medical

complaints or that any Defendants were personally involved in any constitutional violation

arising from his deliberate medical indifference claims. (Defs.’ Mem. at 19.) The Court agrees

as to Defendants Quay, Garcia, White, Gonzalez, and Maury because the amended complaint

contains only conclusory allegations as to their personal involvement.

As to former Warden Quay, Associate Warden Garcia,6 and Cpt. White, the amended

complaint only generally alleges that Plaintiff informed them of “what was happening to him”—

referring to the alleged sexual assault and extortion—but “no remedial action was taken.” (Am.

Compl. ¶ 32.) The amended complaint also alleges that Quay, White, and Garcia were amongst

a group of Defendants to whom Plaintiff sent “at least eighty-five [] emails . . . wherein he

described” the details alleged in the amended complaint. (Id. ¶ 49.) Similarly, the amended

complaint alleges Plaintiff informed Defendants Gonzalez, White, and Maury that he was being

extorted and had been sexually abused several times. (Id. ¶¶ 48, 49.) However, Plaintiff does

not allege that any of these communications related to Plaintiff’s deliberate medical indifference

claims.

The same conclusion cannot be reached as to Defendants Lt. Pope, Lt. Metzger, and C.O.

Calixte. As to the July 7 attack, Plaintiff alleges sufficient personal involvement of Defendants

Lt. Pope and Lt. Metzger. After being taken to the SIS location, Plaintiff alleges he informed Lt.

Pope of the attack and made him aware of his need for medical attention. (Am. Compl. ¶ 38.)

Lt. Pope laughed in response without taking further action. (Id.) Similarly, with respect to Lt.

Metzger, Plaintiff alleges Lt. Metzger was in the vicinity at the time Plaintiff told Lt. Pope, heard

about the attack, and told Plaintiff he should learn to defend himself. (Id. ¶¶ 39–40.) Likewise,

as to the allegations of deliberate indifference to Plaintiff’s medical needs following the 2019

blackout at MDC Brooklyn, Plaintiff alleges he reported to C.O. Calixte and Lt. Metzger that he

was experiencing numbness to his left side and that he had vomited blood. (Id. ¶ 45.) These

Defendants remained indifferent to his pleas. (Id.) According to the amended complaint,

Defendant Metzger simply told Plaintiff that he was “sick in the head.” (Id. ¶ 45.) Accordingly,

6 The amended complaint alleges Garcia was responsible for correctional service, food service, and health services.

(Am. Compl. ¶ 13.)

Plaintiff has sufficiently alleged personal involvement as to Lt. Pope, Lt. Metzger, and C.O.

Calixte.

Beyond the personal involvement of each defendant, “[t]o establish an unconstitutional

denial of medical care, a prisoner must prove deliberate indifference to his serious medical

needs.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (internal quotation marks and

modification omitted). Successful assertion of a claim for deliberate indifference requires a

plaintiff to allege facts sufficient to satisfy both the objective and subjective prongs of the

standard. Id. The objective prong requires “the alleged deprivation must be, in objective terms,

sufficiently serious.” Id. (internal quotation marks omitted). “The serious medical needs

standard contemplates a condition of urgency such as one that may produce death, degeneration,

or extreme pain.” Charles v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019). Indeed, within the

Second Circuit, factors considered include: “(1) whether a reasonable doctor or patient would

perceive the medical need in question as ‘important and worthy of comment or treatment,’ (2)

whether the medical condition significantly affects daily activities, and (3) ‘the existence of

chronic and substantial pain.’” Laurent, 2018 WL 2973386, at *3 (quoting Brock v. Wright, 315

F.3d 158, 162 (2d Cir. 2003)). A plaintiff must allege deliberate indifference, or that the

“charged official . . . act[ed] with a sufficiently culpable state of mind.” Hathaway, 99 F.3d at

553. The required state of mind is:

[T]he equivalent of criminal recklessness; namely, when the prison official knows

of and disregards an excessive risk to inmate health or safety; the official must both

be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.

Id. Notably here, the “subjective prong” is defined objectively, and courts must determine

whether the official “knew, or should have known, that the condition posed an excessive risk to

health or safety.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); see also Morgan, 2018 WL

618451, at *7 (“[T]he second requirement—the mens rea prong of deliberate indifference to

serious medical needs claims—must be analyzed objectively: courts must determine whether the

official knew, or should have known that his or her conduct posed an excessive risk to health or

safety.”) (internal quotation marks omitted).

Defendants urge dismissal on the grounds that the deprivation Plaintiff alleges is not

sufficiently serious as a matter of law. (Defs.’ Mem. at 20–21.) Specifically, Defendants

maintain Plaintiff failed to plead sufficient factual allegations to support a claim that these

Defendants disregarded a serious medical need. (Id.) The Court disagrees. Plaintiff alleges an

attack whereby he was anally sodomized with a broomstick. (Am. Compl. ¶ 36.) He further

alleges he cried out for help, complaining of “severe pain” in his anus, mouth, and ribs following

the attack. (Id. ¶¶ 36, 38.) Likewise, following the 2019 MDC Blackout, Plaintiff alleges he

experienced numbness in his left side and was vomiting blood. (Id. ¶ 45.) Upon being taken to

the hospital, doctors diagnosed him with a hole in his stomach and a pinched nerve. (Id. ¶ 46.)

These allegations sufficiently establish a serious medical need, for which the denial of treatment

“could result in further significant injury or the unnecessary and wanton infliction of pain.”

Abreu v. Lipka, 778 F. App’x 28, 31–32 (2d Cir. 2019) (“The medical need is considered

‘serious’ where the denial of treatment ‘could result in further significant injury or the

unnecessary and wanton infliction of pain.’”) (quoting Harrison v. Barkley, 219 F.3d 132, 136

(2d Cir. 2000)).

Next, Defendants argue that Plaintiff has not sufficiently pleaded a deliberate indifference

claim because “medical care was afforded [to him] in a matter of hours on each occasion.”

(Defs.’ Mem. at 22.) Not so. With respect to the July 7 attack, Plaintiff alleges Defendants did

not offer him “immediate” medical care and thus delayed his treatment. (Am. Compl. ¶ 40.)

And, with respect to Plaintiff’s medical condition during the 2019 MDC Blackout, Plaintiff

alleges he was denied medical treatment for several days. (Am. Compl. ¶¶ 44–45.) These

allegations are sufficient. See, e.g., Lombardo v. Graham, 807 F. App’x 120, 123 (2d Cir. 2020)

(delay of only 28 hours does not necessitate dismissal); Moco v. Janik, No. 17-cv-398, 2019 WL

3751628, at *3 (W.D.N.Y. Aug. 8, 2019) (“Although he may have received care eventually,

Plaintiff has sufficiently alleged that Defendants denied or delayed treatment for a serious

medical need.”).

Accordingly, Plaintiff has sufficiently alleged a claim for deliberate indifference to his

serious medical needs as to Defendants Lt. Metzger, Lt. Pope, and C.O. Calixte.

B. Plaintiff’s Deliberate Indifference to His Safety Claim

1. Availability of a Remedy Under Bivens

In addition to Plaintiff’s claims for deliberate indifference to his serious medical needs,

Plaintiff also brings a claim for failure to protect or deliberate indifference to his safety. (Pl.’s

Mem. at 21–22.) Defendants challenge this claim on the basis that it arises in a new Bivens

context not recognized by the Supreme Court. (Defs.’ Reply at 11–12, ECF No. 69.) The Court

agrees. Indeed, Plaintiff does not dispute that the claim arises in a new context, legally and

factually distinct from claims previously recognized under Bivens. (Pl.’s Mem. 22–23).

Accordingly, the Court must consider whether special factors counsel hesitation against allowing

Plaintiff’s Bivens claim to proceed.7 Defendants maintain that they do. (Defs.’ Mem. at 12–13.)

The Court agrees.

7 In support of his argument, Plaintiff cites the Supreme Court’s decision in Farmer v. Brennan, 511 U.S. 825

(1994). In Farmer, the complaint alleged prison officials placed petitioner in the prison’s “general population

despite knowledge that the penitentiary had a violent environment and a history of inmate assaults, and despite

knowledge that petitioner, as a transsexual who ‘projects feminine characteristics,’ would be particularly vulnerable

to sexual attack by some USP–Terre Haute inmates.” 511 U.S. at 831. There, the Supreme Court acknowledged

“prison conditions may be restrictive and even harsh, but gratuitously allowing the beating or rape of one prisoner

by another serves no legitimate penological objective, any more than it squares with evolving standards of decency.”

2. Special Factors Counseling Hesitation8

Where, as here, a court determines a claim arises under a new Bivens context, the court

must then consider “whether there are any special factors that counsel hesitation about granting

the extension.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) (internal quotation marks

omitted). The crux of this inquiry being “whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh the costs and benefits of allowing a

damages action to proceed.” Abbasi, 137 S. Ct. at 1858. Notably, in Abbasi, the Supreme Court

acknowledged the phrase “special factors counselling hesitation” had not previously been

defined and identified several factors for the court to consider. Id. at 1857; see also Crespo v.

Hurwitz, No. 17-cv-6329, 2020 WL 7021658, at *5 (E.D.N.Y. Nov. 30, 2020) (noting special

factors might include “an alternative remedial scheme, the manner in which [] Congress has

structured its regulatory authority, the burden of a damages remedy on the Government and

individual employees, or any other unforeseeable factor that would counsel restraint”). Of

particular relevance here, courts must consider whether “there is an alternative remedial structure

present . . . [as] that alone may limit the power of the Judiciary to infer a new Bivens cause of

Id. at 833 (internal quotation and alteration omitted). And while the Supreme Court did not explicitly recognize this

as an extension of the Bivens remedy, it did not reject the petitioner’s argument on Bivens grounds, and at least one

court in this district have understood this to mean “conditions of confinement actions under the Eighth Amendment

includes both medical care and safety, [in other words,] they are not distinct claims.” Walker v. Schult, 463 F. Supp.

3d 323, 331 (N.D.N.Y. 2020). While the Court does, to some extent, find this argument persuasive, it is contrary to

the Supreme Court’s explicit guidance in Abbasi, which came after the Farmer decision. See Ziglar v. Abbasi, 137

S. Ct. 1843, 1855 (2017) (“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.”).

8 The Court takes into consideration the Supreme Court’s recent decision in Egbert v. Boule, 142 S. Ct. 1793 (2022),

which supports this Court’s finding that special factors counsel hesitation. In its supplemental briefing in opposition

to the motion to dismiss, Plaintiff argues that the holding in Egbert reaffirms the two-step inquiry, requiring a court

to determine, first, whether a claim arises in a new context, and second, whether there are any special factors

counseling hesitation. (Pl. Supp. Opp. Mem. at 1, ECF No. 85.) Defendants argue that while the Egbert Court did

not explicitly replace the two-step inquiry, the Supreme Court made clear that the inquiry “often boils down to a

single question: whether there is any reason to think that Congress might be better equipped to create a damages

remedy.” (Defs.’ Supp. Mem. at 4, ECF No. 86.) Nonetheless, Defendants apply the two-step analysis, arguing that

the case should be dismissed because there are special factors counseling hesitation. The Court agrees. Applying

the two-step analysis in this case does not alter the Court’s finding.

action.” Abbasi, 137 S. Ct. at 1858. Importantly, “when alternative methods of relief are

available, a Bivens remedy usually is not.” Id. Here, Defendants argue that alternative processes

exist to provide redress for Plaintiff’s claims. (Defs.’ Mem. at 12.) Namely, Defendants point to

the Federal Torts Claim Act (the “FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., equitable

remedies, such as a petition for habeas relief or an injunction, New York state law claims, and

the BOP’s Administrative Remedy Program. (Defs.’ Mem. at 12–15.)

Defendants principally rely on the FTCA in arguing that Plaintiff has other avenues of

redress for his claims. (Defs.’ Mem. at 13–14.) It is true that Plaintiff has an available remedy

under the FTCA, which provides a cause of action against the United States for any “negligent or

wrongful act or omission of any employee of the Government while acting within the scope of

his office or employment, under circumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law of the place where the act or omission

occurred.” 28 U.S.C. § 1346(b)(1). And, Plaintiff has at least suggested to this Court that he has

a separate pending action under the FTCA. (Pl.’s Mem. at 3 (“These lawsuits are pending, as is

the evaluation of Plaintiff’s potential [FTCA] claim against the United States.”).) The Court,

however, is not altogether persuaded that the FTCA, standing alone, provides sufficient

alternative relief in light of the Supreme Court’s prior guidance in Carlson. In Carlson, the

Supreme Court considered whether Congress’s enactment of the FTCA preempted a Bivens

remedy under the Eighth Amendment by “creat[ing] an equally effective remedy for

constitutional violations.” 446 U.S. at 19. Ultimately, the Supreme Court determined it was

“crystal clear” Congress viewed the FTCA as “parallel, complementary causes of action,” and

identified several significant differences between claims brought under the FTCA and Bivens,

including that any remedy under Bivens is recoverable against individuals. Id. at 20. The

Supreme Court determined the “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.” Id. at 23.

This Court is mindful that at least one circuit court and sister courts in this district have

concluded “that Carlson’s analysis of adequate alternative remedies cannot survive Abbasi and

dismissed Bivens claims because the FTCA provides an adequate alternative remedy.” Scott v.

Quay, No. 19-cv-1075, 2020 WL 8611292, at *8 (E.D.N.Y. Nov. 16, 2020) (collecting cases).

However, neither the Supreme Court nor the Second Circuit has explicitly “decided whether, in

the wake of Abbasi, the availability of an FTCA action precludes the Bivens remedy.” Id. And,

absent clear guidance, this Court joins others unwilling to determine that the FTCA alone is a

sufficient alternate remedy. See Powell v. United States, No. 19-cv-11351, 2020 WL 5126392,

at *10 (S.D.N.Y. Aug. 31, 2020) (“The Supreme Court has not been bashful in signaling its

skepticism of the Bivens remedy—if the Court intended to overrule Carlson, I am quite sure it

would simply do so.”); Bueno Diaz v. Mercurio, 442 F. Supp. 3d 701, 711 (S.D.N.Y. 2020)

(“The Supreme Court’s prior rulings in [Carlson] and [Robbins], remain good law . . . [t]he

Court will follow that precedent.”).

That said, Defendants argue, and Plaintiff does not contest, several other alternative

remedies exist, including under New York state laws, BOP regulations, and the federal habeas

statute. The Court agrees. Indeed, the Supreme Court has recognized these and similar remedies

to be adequate alternatives to a claim under Bivens. See Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 74 (2001) (“Inmates in respondent’s position also have full access to remedial mechanisms

established by the BOP, including suits in federal court for injunctive relief and grievances filed

through the BOP's Administrative Remedy Program[.]”); Abbasi, 137 S. Ct. at 1863 (“Indeed,

the habeas remedy, if necessity required its use, would have provided a faster and more direct

route to relief than a suit for money damages. A successful habeas petition would have required

officials to place respondents in less-restrictive conditions immediately; yet this damages suit

remains unresolved some 15 years later.”). Taken together, the Court believes there exists

special factors counseling hesitation and, accordingly, Plaintiff’s deliberate indifference to safety

claim is dismissed.

III. Plaintiff’s Conditions of Confinement Allegations

Defendants maintain that to the extent Plaintiff’s amended complaint challenges the

conditions of confinement during the blackout at MDC, such a claim would arise under a new

Bivens context. (Defs.’ Mem at 11–12.) In response, Plaintiff represents that he has actions

related to the blackout that remain pending, including an FTCA claim against the United States

and his participation in class action lawsuits against the MDC and Defendant Quay. (Pl.’s Mem.

at 3.) Plaintiff, however, does not substantively respond to Defendants’ legal argument.

Because Plaintiff’s opposition is devoid of any response to Defendants’ arguments, the Court

need not address Defendants’ arguments on the merits as Plaintiff’s claims are deemed

abandoned. See, e.g., Malik v. City of New York, 841 F. App’x 281, 284 (2d Cir. 2021) (internal

citations and quotation marks omitted) (“When a party fails adequately to present arguments in a

brief, a court may properly consider those arguments abandoned . . . [e]specially in the case of a

counseled party where a court may . . . infer from a party’s partial opposition that relevant claims

or defenses that are not defended have been abandoned.”).

IV. Qualified Immunity

In a footnote, Defendants argue they are entitled to dismissal because their actions were

protected under the doctrine of qualified immunity. Specifically, as to Plaintiff’s “medical

claims,” Defendants maintain that it was objectively reasonable for Defendants to believe that

their actions, taken in response to a developing emergent situation, did not violate any clearly

established constitutional rights.9 (Defs.’ Mem. at 25 n.8.) The Court disagrees.

The doctrine of qualified immunity shields government officials from civil liability if

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). “The

issues on qualified immunity are: (1) whether plaintiff has shown facts making out [a] violation

of a constitutional right; (2) if so, whether that right was ‘clearly established’; and (3) even if the

right was ‘clearly established,’ whether it was ‘objectively reasonable’ for the officer to believe

the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.

2013) (quoting Taravella v. Town of Wolcott, 599 F.3d 129, 133–34 (2d Cir. 2010)). As to

medical indifference claims specifically, “to establish their qualified immunity defense, the

defendants must show that it was objectively reasonable, for them to believe that they had not

acted with the requisite deliberate indifference.” McKenna v. Wright, 386 F.3d 432, 437 (2d Cir.

2004) (internal citations and quotation omitted). On the face of these pleadings, the facts of

which are accepted as true, the Court is unwilling to draw such a conclusion.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss for failure to state a claim is

GRANTED in part and DENIED in part. Specifically, Defendants’ motion to dismiss Plaintiff’s

deliberate indifference as to his safety claim is GRANTED. Defendants’ motion to dismiss

Plaintiff’s deliberate indifference as to his medical needs claims against Defendants Quay,

9 Defendants make a similar argument as to the Plaintiff’s “power-outage-related” complaints, separate from

Plaintiff’s medical complaints. Having deemed any such claims as abandoned, the Court need not rule on

Defendants’ entitlement to qualified immunity.

Garcia, White, Gonzalez, and Maury is GRANTED. Defendants’ motion to dismiss Plaintiff’s

deliberate indifference as to his medical needs claims against Defendants Pope, Metzger, and

Calixte is DENIED.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

September 1, 2023 LASHANN DEARCY HALL

United States District Judge