Edwards v. Gizzi

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CLINT EDWARDS,

Plaintiff,

No. 20-CV-7371 (KMK)

v.

OPINION & ORDER

DREW GIZZI, et al.,

Defendants.

Appearances:

Clint Edwards

Ossining, NY

Pro Se Plaintiff

Danielle Judith Levine, Esq.

United States Attorney’s Office

Southern District of New York

New York, NY

Counsel for Defendants

KENNETH M. KARAS, District Judge:

Clint Edwards (“Edwards” or “Plaintiff”), proceeding pro se, brings this Complaint,

under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), against Deputy U.S. Marshal (“DUSM”) Drew Gizzi (“Gizzi”), District Security Officer

(“DSO”) Robert Johnsen (“Johnsen”), GEO Guard Michael Lewis (“Lewis”), Court Security

Officer (“CSO”) Frank Pena (“Pena”), CSO Walter Cook (“Cook”), CSO Anthony Mercurio

(“Mercurio”), and John Does 1–10 (collectively, “Defendants”), alleging that Defendants used

excessive force during an incident that occurred during Plaintiff’s sentencing hearing, which

resulted in Plaintiff’s left arm being broken.1, 2 (See Compl. (Dkt. No. 1).)3 Before the Court are

Defendants Gizzi and Johnsen’s Motion To Dismiss the Complaint (the “Motion”), (Not. of Mot.

(Dkt. No. 38)), and Defendant Lewis’ self-titled Cross Motion To Dismiss the Complaint (the

“Cross Motion”; together, the “Motions”), (Dkt. No. 41), both filed pursuant to Federal Rule of

Civil Procedure 12(b)(6). For the following reasons, the Motions are granted.

I. Background

A. Factual Background

Unless otherwise stated, the following facts are drawn from Plaintiff’s Complaint and are

assumed true for the purpose of resolving the instant Motion. See Div. 1181 Amalgamated

Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021)

(per curiam).

The events giving rise to this Action took place during a sentencing in front of the

Honorable Cathy Seibel at the federal courthouse for the U.S. District Court Southern District of

New York in White Plains, NY. (See Compl. 3; see also Defs. Gizzi and Johnsen’s Mem. of

Law in Supp. of Mot. To Dismiss (“Defs.’ Mem.”) 2 (Dkt. No. 39).) On July 2, 2018, Plaintiff

pled guilty to coercion and enticement of a minor to engage in illegal sexual activity under 18

1 The Court notes that Defendant Johnsen’s name is spelled in three different ways in the

papers. In the Complaint, Plaintiff spells it as “Johnsten.” (See Compl. 1–3.) In the first

incident report attached to the Complaint, it is also spelled “Johnsten.” (Id. at 5.). However, in

the next incident report attached to the Complaint, titled the Court Facility Incident Report, his

name is spelled “Johnson.” (Id. at 7.) And, in all the papers filed by his attorney, his name is

spelled “Johnsen.” (See, e.g., Dkt. Nos. 14, 32, 38, 39.) The Court will use the spelling used by

Defendant Johnsen’s attorney: “Johnsen.”

2 Plaintiff also named the United States as a Defendant, but the United States was

dismissed as a Defendant by the Court’s Order on October 23, 2020. (See Order (Dkt. No. 8).)

3 When citing to the Complaint and the attached exhibits, the Court refers to the ECF-

stamped page numbers at the top right-hand corner of each page.

U.S.C. § 2422(b). (See Dkt. No. 42, Case No. 18-CR-163.)4 On November 30, 2018, Judge

Seibel sentenced Plaintiff to 240 months’ imprisonment. (See Compl. 7.)

According to Plaintiff, “[w]hen I got to the courtroom I had my cuffs and leg cuffs

remove[d] even though the Marshalls knew I was facing a lot of time and have a serious mental

health condition.” (Id. at 3.) Plaintiff alleges that, “[a]fter the [J]udge state[d] how many months

I was getting sentence[d] to I start[ed] adding up the moths [sic] to years and when I finally

added it all up and knew I got 20 years I black[ed] out. I remember yelling at the [J]udge and the

D.A.” (Id.) Plaintiff also alleges:

Then I came back to it while they were taking me down to the ground. Once I was

down I stop[ped] any resistance that I was doing before. One of the many

employees that where [sic] there told me to put my arms behind my back. I put my

right arm back first and then my left arm. While putting my left arm behind my

back I felt someone grab[] it, and str[a]ighten it out. Then I felt someone hit it and

a pop. At this time I knew my arm was broken.

(Id.) Next, Plaintiff alleges that when he “told the employees that [his][ arm was broken,

“[s]omeone called for an ambulance and I was brought to Westchester Medical Center in

Valhalla, N.Y.” (Id.) Plaintiff states that he “got a[n] X-Ray done and was told by the doctor

that [he] had subtain [sic] a broken left arm.” (Id.)

Plaintiff attached two incident reports to his Complaint. (See id. at 5–7.) The first

incident report provides the following additional details:

Toward the end of the proceeding . . . [Plaintiff] stood up on his own accord

and . . . moved to the defense table . . . [He] was ordered repeatedly by DUSM

Gizzi and DSO Johnsten to follow them back into the cell block. [Plaintiff], now

taking a boxing style stance refused to follow the lawful orders and emplaced

himself in front of the jury box . . . . [Plaintiff] then took an even more aggressive

4 See Koch v. Christie’s Int’l PLC, 785 F. Supp. 2d 105, 112 (S.D.N.Y. 2011) (“[C]ourts

can consider court documents or matters of public record at the motion to dismiss stage where

both parties had notice of their contents and the documents are integral to the complaint.”), aff’d,

699 F.3d 141 (2d Cir. 2012).

stance, raising his hands further up his body and slightly cocking his arms back. At

this point he yelled at AUSA Grossman, whom was standing in the gallery near

defense counsel, exclaiming that she was a [b—] and subsequently lounged [sic]

toward her desk. As [Plaintiff] made this quick and aggressive movement, he was

grabbed simultaneously by DUSM Gizzi and DSO Johnsten. [Plaintiff] was taken

backwards, flinging papers into the air from the prosecution’s desk, and landing on

the ground with DUSM Gizzi and DSO Johnsten still holding onto him. Multiple

CSOs responded, applying restraints to his legs and arms. The incident at this point

became calm, and [Plaintiff] was brought up to a sitting position.

(Id. at 5–6.) The second incident report, titled the “Court Facility Incident Report” provides

further information about the incident:

Upon being sentenced to 240 months in jail, [Plaintiff] became agitated and left the

chair he was seated in. [Plaintiff] was yelling loudly at Judge Seibel and others in

the courtroom and he repeatedly ignored the instructions of USMS personnel Drew

Gizzi and Robert Johnson to return to his seat. At some point, USMS personnel

found it necessary to physically restrain [Plaintiff]. [Plaintiff] and the USMS

personnel fell to the floor where [Plaintiff] continued to resist efforts to control him.

[CSOs] Frank Pena, Anthony Mercurio[,] and Walker Cook assisted USMS

personnel in applying handcuffs to [Plaintiff]. CSO Pena sustained a cut on his

hand and other injuries when he assisted USMS personnel in applying handcuffs to

[Plaintiff].

(Id. at 7.)

The Court construes Plaintiff’s Complaint as alleging two Bivens claims: (1) an Eighth or

Fifth Amendment claim for excessive force, and (2) an Eighth Amendment claim for deliberate

indifference. Plaintiff claims that as a result of Defendants’ alleged violations, he experienced

“[p]ain and suffering, emotional distress, and a broken left arm.” (Id. at 4.) Plaintiff seeks $20

million in damages—$10 million in compensatory damages and $10 million in punitive

damages. (Id.)

B. Procedural History

Plaintiff filed his Complaint on September 9, 2020. (Dkt. No. 1.) On October 1, 2020,

then-Chief Judge McMahon granted Plaintiff leave to proceed in forma pauperis. (Dkt. No. 4.)

On October 23, 2020, the Court dismissed Plaintiff’s Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 1346(b), 2671–80, claim against the United States without prejudice, because Plaintiff

did not allege any facts suggesting that he had exhausted his administrative remedies. (Dkt.

No. 8.) The Court also added Defendants Mercurio and Cook because the “incident reports that

Plaintiff attaches to the Complaint show that Court Security Officers Anthony Mercurio and

Walter Cook were among those who ‘assisted the USMS personnel in gaining control of

Edwards.’” (Id.). The Court therefore construed the Complaint as asserting claims against

Mercurio and Cook. (Id.)

On December 21, 2020, Defendants Gizzi and Johnsen requested an extension of time to

respond to the Complaint, (Dkt. No. 14), which the Court granted on December 29, 2020, (Dkt.

No. 16). On January 6, Defendant Lewis filed his Answer, (Dkt. No. 19), as well as a Rule 7.1

Corporate Disclosure Statement, (Dkt. No. 18). On January 15, Defendant Lewis filed an

Amended Answer. (Dkt. No. 24.) On February 1, 2021, Defendants Gizzi and Johnsen filed a

pre-motion letter outlining the grounds for their proposed motion to dismiss. (Dkt. No. 32.) The

same day, the Court granted Defendants Gizzi and Johnsen leave to file their anticipated motion

and set a briefing schedule. (Dkt. No. 33.) On February 18, 2021, Plaintiff requested an

extension to respond to Defendants Gizzi and Johnsen’s motion after testing positive for

COVID-19. (Dkt. No. 35.) The Court granted Plaintiff’s request on February 19, 2021. (Dkt.

No. 36.) On March 1 2021, Defendants Gizzi and Johnsen filed their Motion and accompanying

papers. (Dkt. Nos. 38–40.) On March 2, 2021, Defendant Lewis filed his Cross Motion on the

same grounds as Defendants Gizzi and Johnsen. (Dkt. No. 41.) Plaintiff filed his Opposition to

Defendants Gizzi, Johnsen, and Lewis’s Motions on March 31, 2021. (Dkt. No. 48.) On

April 13, 2021, Defendants Gizzi and Johnsen filed a letter stating that they intended to rest on

their opening papers. (Dkt. No. 50.) On April 14, 2021, Defendant Lewis also wrote to the

Court stating that he did not intend to file a Reply Brief. (Dkt. No. 52.) The Court deemed the

Motions to be fully submitted. (Dkt. Nos. 51, 53.)

II. Discussion

A. Standard of Review

The Supreme Court has held that although a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of

[its] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil

Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint

suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and

quotation marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim

has been stated adequately, it may be supported by showing any set of facts consistent with the

allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a

claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her]

claims across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see

also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief

will . . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. But where the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” (citation omitted) (second alteration in

original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous

departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the

doors of discovery for a plaintiff armed with nothing more than conclusions.”).

“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the

factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and

“draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992

F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145

(2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must

confine its consideration to facts stated on the face of the complaint, in documents appended to

the complaint or incorporated in the complaint by reference, and to matters of which judicial

notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)

(quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y.

2016) (same). However, when the complaint is from a pro se plaintiff, the Court may consider

“materials outside the complaint to the extent that they are consistent with the allegations in the

complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug.

2, 2013) (quotation marks omitted), including “documents that a pro se litigant attaches to his

opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec.

15, 2010) (italics omitted), statements by the plaintiff “submitted in response to [a defendant’s]

request for a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013

WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), “documents either in [the plaintiff’s] possession

or of which [the] plaintiff[] had knowledge and relied on in bringing suit,” Chambers v. Time

Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation marks omitted), and “[the plaintiff’s]

opposition memorandum,” Gadson v. Goord, No. 96-CV-7544, 1997 WL 714878, at *1 n.2

(S.D.N.Y. Nov. 17, 1997).

Where, as here, a plaintiff proceeds pro se, the court must “construe[] [the plaintiff’s]

[complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].”

Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (citation omitted). However, “the liberal

treatment afforded to pro se litigants does not exempt a pro se party from compliance with

relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559

(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,

605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding

procedural rules and to comply with them.” (italics and citation omitted)).

B. Analysis

1. Bivens Claims

In Bivens, “the Supreme Court ‘recognized for the first time an implied private action for

damages against federal officers alleged to have violated a citizen's constitutional rights.’” Arar

v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 66 (2001)), cert. denied, 560 U.S. 978 (2010); see also M.E.S., Inc. v. Snell, 712 F.3d 666,

671 (2d Cir. 2013) (same); Morales v. Related Mgmt. Co., No. 13-CV-8191, 2015 WL 7779297,

at *10 (S.D.N.Y. Dec. 2, 2015) (same). “The purpose of the Bivens remedy is to deter individual

federal officers from committing constitutional violations.” Arar, 585 F.3d at 571 (quotation

marks omitted).

“In the Bivens case, the [Supreme] Court broke new ground by holding that a person

claiming to be the victim of an unlawful arrest and search could bring a Fourth Amendment

claim for damages against the responsible agents even though no federal statute authorized such

a claim.” Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020). The Court has extended Bivens only

two times: first in Davis v. Passman, 442 U.S. 228 (1979), where the Court held that a former

congressional staffer could bring a sex discrimination claim employer under the Due Process

Clause of the Fifth Amendment against her former employer for her termination, see id. at 248–

49; and second in Carlson v. Green, 446 U.S. 14 (1980), where the Court held that the

administratrix of the estate of a deceased a federal prisoner could bring an Eighth Amendment

claim for failure to provide adequate medical treatment for the prisoner’s asthma, which resulted

in his death, see id. at 23–25.

The Supreme Court has stated that expansion of Bivens is “a disfavored judicial activity.”

Hernandez, 140 S. Ct. at 742 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)); see also

M.E.S., 712 F.3d at 671 (a remedy under Bivens “is a judicially created remedy,” and, therefore,

“federal courts have been reluctant to recognize such implied relief”). Further, the Supreme

Court has stated that if “the [Supreme] Court’s three Bivens cases [had] been decided today, it is

doubtful that [it] would have reached the same result” and that, “for almost 40 years, [the

Supreme Court] has consistently rebuffed requests to add to the claims allowed under Bivens.”

Hernandez, 140 S. Ct. at 742–43 (quotation marks and alterations omitted) (collecting cases); see

also Doe v. Hagenbeck, 870 F.3d 36, 43 (2d Cir. 2017) (“In the forty-six years since Bivens was

decided, the Supreme Court has extended the precedent’s reach only twice, and it has otherwise

consistently declined to broaden Bivens to permit new claims.” (footnote omitted) (collecting

cases)).

“When asked to extend Bivens, [courts] engage in a two-step inquiry. [Courts] first

inquire whether the request involves a claim that arises in a ‘new context’ or involves a ‘new

category of defendants.’” Hernandez, 140 S. Ct. at 743 (quoting Malesko, 534 U.S. at 68). If a

court finds that a claim arises in a new context, the court proceeds to the second step and asks

whether there are “any ‘special factors [that] counse[l] hesitation’ about granting the extension.”

Id. (alterations in original) (quoting Abbasi, 137 S. Ct. at 1857).

a New Context

“The [Supreme] Court has stressed that its “understanding of a ‘new context’ is broad.”

Powell v. United States, No. 19-CV-11351, 2020 WL 5126392, at *5 (S.D.N.Y. Aug. 31, 2020)

(quoting Hernandez, 140 S. Ct. at 743). “Although the [Supreme] Court has not yet

‘endeavor[ed] to create an exhaustive list of differences that are meaningful enough to make a

given context a new one,’ it has provided some instructive examples.” Id. (alteration in original)

(quoting Abbasi, 137 S. Ct. at 1859–60). For example:

A case might differ in a meaningful way because of the rank of the officers

involved; the constitutional right at issue; the generality or specificity of the official

action; the extent of judicial guidance as to how an officer should respond to the

problem or emergency to be confronted; the statutory or other legal mandate under

which the officer was operating; the risk of disruptive intrusion by the Judiciary

into the functioning of other branches; or the presence of potential special factors

that previous Bivens cases did not consider.

Abbasi, 137 S. Ct. at 1860. “‘[E]ven a modest extension’ of one of the three recognized

scenarios ‘is still an extension’ that presents a new context.” Cruz v. Hastings, No. 20-CV-4392,

2021 WL 4691375, at *6 (S.D.N.Y. Oct. 6, 2021) (alteration in original) (quoting Abbasi, 137

S.Ct. at 1864); see also Gonzalez v. Hasty, 269 F. Supp. 3d 45, 58 (E.D.N.Y. 2017) (“As an

initial matter, even though the Supreme Court has recognized causes of action in Bivens under

the Fourth Amendment, in Davis under the Fifth Amendment, and in Carlson under the Eighth

Amendment, that does not mean that any cause of action may lie under those Amendments

simply by virtue of these Supreme Court cases.”), aff’d, 755 F. App’x 67 (2d Cir. 2018).

Defendants argue that Plaintiff’s excessive force claim presents a new context. (Defs.’

Mem. 6–7.) Specifically, Defendants argue:

Plaintiff’s claims fall well outside the confines of the Fifth Amendment equal

protection claim recognized in Davis and the Eighth Amendment claim for cruel

and unusual punishment recognized in Carlson. Of the three recognized Bivens

contexts, Plaintiff’s claims here are perhaps most similar to the claims at issue in

Bivens itself. However, Plaintiff was not arrested without a warrant in his home,

and his claims arise under the Fifth or Eighth Amendment, not the Fourth

Amendment.

(Id. at 7.)

Courts in this district have found that “[t]he Supreme Court has recognized only three

Bivens contexts, none of which include . . . excessive force.” Ramirez v. Tatum, No. 17-CV-

7801, 2018 WL 6655600, at *5 (S.D.N.Y. Dec. 19, 2018) (declining to find Bivens remedy

where the plaintiff, a pretrial detainee, alleged that correctional officers used excessive force

when transporting him from the hospital to the jail); see also Rivera v. Samilo, 370 F. Supp. 3d

362, 369 (E.D.N.Y. 2019) (holding that an excessive force claim stemming from lawful arrest is

sufficiently different from Fourth Amendment claim arising from a home search); but see Bueno

Diaz v. Mercurio, 442 F. Supp. 3d 701, 707–08 (S.D.N.Y. 2020) (finding that a Fourth

Amendment excessive force claim pursuant to a lawful arrest does not “expand [the] outer

reaches” of Bivens, is a “run-of-the-mill challenge to a standard law enforcement operation,” and

operates within the scope of “substantial ‘judicial guidance” as to the bounds of excessive force).

The present case differs from Bueno Diaz, because, as Defendants correctly point out, Plaintiff’s

claim does not arise under the Fourth Amendment, but instead under either the Eighth or Fifth

Amendment. (See Defs.’ Mem. 7.)5 Courts have consistently found that excessive force cases

5 Though the Court need not determine which Amendment applies at this stage, see

Akande v. Philips, No. 17-CV-1243, 2018 WL 3425009, at *9 (W.D.N.Y. July 11, 2018) (“In the

absence of any briefing, the most prudent course is to permit [the] [p]laintiff’s claim of excessive

arising under either the Fifth or Eighth Amendment to present new Bivens contexts. See Ojo v.

United States, No. 16-CV-4112, 2019 WL 3852391, at *13 (E.D.N.Y. Aug. 15, 2019) (holding

that an Eighth Amendment excessive force claim presented new Bivens context), report and

recommendation adopted, 2019 WL 4602823 (E.D.N.Y. Sept. 23, 2019); Akande, 2018 WL

3425009, at *9 (finding new Bivens context where the plaintiff’s excessive force claim arose

under either the Fifth or Eighth Amendments); Abdoulaye v. Cimaglia, No. 15-CV-4921, 2018

WL 1890488, at *6–7 (S.D.N.Y. Mar. 30, 2018) (noting that a Fifth Amendment excessive force

claim presented new Bivens context); Morgan v. Shivers, No. 14-CV-7921, 2018 WL 618451, at

*5–6 (S.D.N.Y. Jan. 29, 2018) (holding that Fifth Amendment excessive force claim presented

new Bivens context).

Additionally, “the officers involved in Bivens were federal narcotics agents, an

investigatory and enforcement force, whereas here, the officers [include] U.S. Marshals [and

other court security officers], [] force[s] principally engaged in the protection of federal judicial

process and the execution of warrants authorized by a judicial officer.” Style v. Mackey, No. 17-

CV-1691, 2020 WL 3055319, at *4 (E.D.N.Y. June 8, 2020); see also Martinez v. D’Agata,

No. 16-CV-44, 2019 WL 6895436, at *7 (S.D.N.Y. Dec. 16, 2019) (noting that the type of

officers involved, members of a federal task force, differed meaningfully from the drug

use of force to proceed under both the Fifth and Eighth Amendments for screening purposes . . . .

”), the Court notes that it is likely the Eighth Amendment, and not the Fifth Amendment, that

governs Plaintiff’s excessive force claim, given Plaintiff’s status as a convicted prisoner and not

a pretrial detainee, compare Ortiz v. Pearson, 88 F. Supp. 2d 151, 160 (S.D.N.Y. 2000) (noting

that the Fifth Amendment, rather than the Eighth Amendment, governed a pretrial detainee’s

claim of excessive force) with Jeanty v. County of Orange, 379 F. Supp. 2d 533, 539 (S.D.N.Y.

2005) (“[The] [p]laintiff’s excessive force claim, which arose after he was convicted but before

he was sentenced, is to be analyzed under the Eighth Amendment.”).

enforcement officers in Bivens). Thus, the Court finds that Plaintiff’s excessive force claim,

whether it arises under the Fifth or Eighth Amendment, presents a new Bivens context.

Defendants also argue that Plaintiff’s deliberate indifference claim presents a new

context. (Defs.’ Mem. 6 n.4.) “Of the three recognized Bivens contexts, Plaintiff's claim here is

perhaps most similar to the claim at issue in Carlson, as it similarly arises under the Eighth

Amendment.” Cruz, 2021 WL 4691375, at *6. “But the core of Plaintiff's deliberate

indifference allegation”—in which Plaintiff alleges that the court officers were “deliberate[ly]

indifferen[t] to my health when they broke my arm and left me in extreme pain,” (Compl. 3)—

“is clearly and meaningfully different from a failure to provide life-saving medical care to an

inmate with asthma,” Cruz, 2021 WL 4691375, at *6.; see also Scott v. Quay, No. 19-CV-1075,

2020 WL 8611292, at *6 (E.D.N.Y. Nov. 16, 2020) (report and recommendation) (declining to

find new Bivens context for deliberate indifference claims, noting that “[w]hile the standard of

deliberate indifference may govern liability in both circumstances, the different contexts

involved will require the [c]ourts to make distinct inquires”); cf. Malesko, 534 U.S. at 71–74

(holding that Bivens is not available under the Eighth Amendment to recover for a private

prison’s alleged deliberate indifference to a prisoner’s illness).6 Thus, in light of the Supreme

6 The Court also notes that, unlike in Carlson, Plaintiff here received prompt medical

treatment. In his Complaint, Plaintiff alleges Plaintiff alleges that when he “told the employees

that [his][ arm was broken, “[s]omeone called for an ambulance and [he] was brought to

Westchester Medical Center in Valhalla, N.Y.” (Compl. 3.) Plaintiff states that he “got a[n] X-

Ray done and was told by the doctor that [he] had subtain [sic] a broken left arm.” (Id.) The

Court therefore agrees with Defendants that “[t]here are no allegations that Plaintiff did not

receive appropriate treatment for his injuries.” (Defs.’ Mem. 6 n4.) The present case differs

significantly, for example, from Pritchett v. Artuz, where the court found that that the doctor’s

failure to order an X-Ray for the plaintiff’s broken arm for six weeks could support a cognizable

deliberate indifference claim. No. 99-CV-3957, 2000 WL 4157, at *3 (S.D.N.Y. Jan. 3, 2000).

Here, in contrast, Plaintiff was immediately taken to the hospital, where a doctor ordered an X-

Ray the same day as his injury. (See Compl. 3.)

Court’s guidance that “‘even a modest extension’ of one of the three recognized scenarios ‘is still

an extension’ that presents a new context,” Cruz, 2021 WL 4691375, at *6 (quoting Abbasi, 137

S.Ct. at 1864), the Court also finds that Plaintiff’s deliberate indifference claim presents a new

Bivens context.

b. Special Factors

“Because [Plaintiff] assert[s] claims that arise in a new context, [the Court] must proceed

to the next step and ask whether there are factors that counsel hesitation.” Hernandez, 140 S. Ct.

at 744. The Supreme Court has noted:

We have not attempted to “create an exhaustive list” of factors that may provide a

reason not to extend Bivens, but we have explained that “central to [this] analysis”

are “separation-of-powers principles.” We thus consider the risk of interfering with

the authority of the other branches, and we ask whether “there are sound reasons to

think Congress might doubt the efficacy or necessity of a damages remedy,” and

“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.”

Hernandez, 140 S. Ct. at 743 (citations omitted) (quoting Abbasi, 137 S. Ct. 1857–58).

Additionally, “[w]here a plaintiff has at his disposal ‘an alternative remedial structure’ that

would provide the same or similar relief in the absence of an implied remedy, courts decline to

extend the Bivens remedy.” Cruz, 2021 WL 4691375, at *6 (quoting Abbasi, 137 S. Ct. at 1858).

“An alternative remedy need not be ‘perfectly congruent’ with Bivens.” Rivera, 370 F. Supp. 3d

at 371 (quoting Minneci v. Pollard, 565 U.S. 118, 129 (2012)). “[W]hen alternative methods of

relief are available, a Bivens remedy usually is not.” Abbasi, 137 S. Ct. at 1863.

Courts in other districts have declined to find Bivens remedies where the plaintiff failed

to state a deliberate indifference claim. See, e.g., Martin v. Gray, No. 20-CV-741, 2021 WL

3855566, at *5 (E.D. Wis. Aug. 27, 2021) (“[A]n Eighth Amendment Bivens claim is

inapplicable to this case because [the] [p]laintiff has failed to state a claim for an Eighth

Amendment violation.”).

Defendants argue that “Congress has created an intricate alternative remedial structure in

the [Federal Torts Claim Act] [(‘FTCA’)], which provides for monetary damages for torts

committed by federal employees in the course of their official duties.” (Defs.’ Mem. 8 (citing 28

U.S.C. § 2679(b)).)7

“The Second Circuit has not yet decided whether, in the wake of Abbasi, the availability

of an FTCA action precludes a Bivens remedy.” Scott, 2020 WL 8611292, at *8. However,

“several courts in this District have found the FTCA to qualify as an alternative remedy to

Bivens.” Powell, 2020 WL 5126392, at *10 (S.D.N.Y. Aug. 31, 2020) (collecting cases); see

also Cruz, 2021 WL 4691375, at *6 (“Other alternative avenues for relief may include the

[FTCA] . . . .”); Scott, 2020 WL 8611292, at *9 (“I agree with those district courts that have held

that, post-Abbasi, the FTCA as a potential remedy counsels hesitation in extending a Bivens

remedy . . . and supports dismissal of plaintiffs’ Bivens claims.” (quotation marks omitted));

Style, 2020 WL 3055319, at *4 (“[The plaintiff] has an available remedy under the [FTCA] . . .

.”); Sosa, 2020 WL 1940550, at *4 (“Courts in this District have . . . found that, post-Abbasi, the

FTCA as a potential remedy counsels hesitation in extending a Bivens remedy.” (quotation marks

7 The fact that Plaintiff may be procedurally barred from bringing an FTCA claim is

irrelevant. (See Defs.’ Mem. 9 n.6 (“Plaintiff may not have an available FTCA remedy in this

case due to his failure timely to bring administrative claims or other procedural bars . . . .”).)

However, “it is the overall comprehensiveness of the statutory scheme at issue, not the adequacy

of the particular remedies afforded, that counsels judicial caution in implying Bivens actions.”

Dotson v. Griesa, 398 F.3d 156, 166–167 (2d Cir. 2005) (citing Schweiker v. Chilicky, 487 U.S.

412, 421–22 (1988)); see also Sosa v. Bustos, No. 17-CV-417, 2020 WL 1940550, at *4 n.2

(S.D.N.Y. Apr. 22, 2020) (“The fact that [the plaintiff’s] remedy under the FTCA is currently

time-barred is inapposite.”); Rivera, 370 F. Supp. 3d at 370 (“The present unavailability of an

FTCA claim is immaterial to the analysis of whether the existence of an adequate alternative

process counsels in favor of judicial restraint.”); Sanford v. Bruno, No. 17-CV-5132, 2018 WL

2198759, at *7 (E.D.N.Y. May 14, 2018) (finding that alternative avenues of relief provided an

adequate justification for the court to exclude a Bivens remedy “even though those remedies did

not work in this instance”).

omitted)); Oliveras v. Basile, 440 F. Supp. 3d 365, 373 (S.D.N.Y. 2020) (“[T]he [c]ourt finds

that the existence of the FTCA as an alternative remedy qualifies as a special factor that counsels

hesitation in extending Bivens to cover [the] [p]laintiff’s claims.”); Martinez, 2019 WL 6895436,

at *7 (“[The] [p]laintiff could have pursued his claim under the [FTCA].”); Ojo, 2019 WL

3852391, at *14 (finding special factors counseled against Bivens extension where “[the]

plaintiff’s Bivens claims rely on the same facts as alleged in his FTCA claims”); Rivera, 370

F.Supp. 3d at 369–70 (“[The] [p]laintiff had an available tort remedy under the [FTCA].”);

Ramirez, 2018 WL 6655600, at *5 (“[T]here are special factors that counsel against expanding a

new Bivens remedy, including the availability of alternative relief (the FTCA . . .).”);Abdoulaye,

2018 WL 1890488, at *7 (“The [c]ourt thus concludes that the existence of the FTCA as a

potential remedy counsels hesitation in extending a Bivens remedy to [the plaintiff’s] claims.”);

Morgan, 2018 WL 618451, at *5–6 (“[I]n light of the Supreme Court’s recent decision in

[Abbasi], the existence of the alternative remedial structure is . . . a factor counselling hesitation

in extending an implied damages remedy to [the plaintiff’s] claims.”).

Courts in other circuits and districts have similarly found that the FTCA provides an

adequate alternative remedy. For example, the Fifth Circuit invoked the availability of an FTCA

claim as a basis for dismissing a Bivens action. See Oliva v. Nivar, 973 F.3d 438, 443–44 (5th

Cir. 2020) (finding that “special factors counsel against extending Bivens” in part due to the

availability of the FTCA), cert. denied, 141 S. Ct. 2669 (2021); see also Huckaby v. Bradley,

No. 16-CV-4327, 2018 WL 2002790, at *6 (D.N.J. Apr. 30, 2018) (finding that “the availability

of a remedy against the United States on a claim of negligence under the FTCA, in light of

[Abbasi], is a factor weighing against . . . recognizing a Bivens remedy”); Free v. Peikar, No. 17-

CV-159, 2018 WL 905388, at *5–6 (E.D. Cal. Feb. 15, 2018) (declining to extend Bivens to a

First Amendment claim because the FTCA, inter alia, provides an adequate alternative remedy),

report and recommendation adopted, 2018 WL 1569030 (E.D. Cal. Mar. 30, 2018).

The Court acknowledges that “district courts [in the Second Circuit] have disagreed on

whether the availability of an FTCA action precludes a Bivens remedy in the wake of Abbasi.”

Bueno Diaz, 442 F. Supp. 3d at 710–11 (declining to find that the availability of the FTCA

precluded a Bivens remedy); see also Powell, 2020 WL 5126392, at *10 (“The FTCA standing

on its own does not give the [c]ourt reason to hesitate in extending Bivens.”).

The Court agrees with the many cases which have found the existence FTCA to be a

special factor counseling hesitation in extending Bivens. The Court finds the analysis in Oliveras

to be persuasive. The Oliveras court first explained that it was “strongly guided by the contrasts

between the Supreme Court’s language in Carlson and its more recent language in [Abbasi].”

Oliveras, 440 F. Supp. 3d at 373. Specifically, the court noted that “the [Abbasi] court has made

clear that the law no longer requires an ‘explicit congressional declaration that persons

injured . . . may not recover money damages from agents but must be remitted to another

remedy, equally effective in the view of Congress.’” Id. (alteration in original) (quoting Carlson,

446 U.S. at 19); compare Carlson, 446 U.S. at 18–19 (explaining that a Bivens action may be

precluded “when defendants show that Congress has provided an alternative remedy which it

explicitly declared to be a substitute for recovery directly under the Constitution and viewed as

equally effective” (emphasis in original)) with Abbasi, 137 S. Ct. at 1858 (noting that Congress’s

creation of “any alternative, existing process for protecting the injured party’s interest” “alone

may limit the power of the Judiciary to infer a new Bivens cause of action” (alterations and

quotation marks omitted)).

This argument is further bolstered by the Supreme Court’s more recent language in

Hernandez, which addressed this point even more directly. Although the Supreme Court in

Hernandez “did not explicitly state [whether] the FTCA . . . as a general matter . . . provide[s] an

alternative remedy to a Bivens claim,” Scott, 2020 WL 8611292, at *9, the Supreme Court did

note that “Congress passed the so-called Westfall Act, formally the Federal Employees Liability

Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679[,] [which] makes the [FTCA]

‘the exclusive remedy for most claims against Government employees arising out of their official

conduct,’” Hernandez, 140 S. Ct. at 748 (quoting Hui v. Castaneda, 559 U.S. 799, 806 (2010)).

The Supreme Court further noted:

The [Westfall] Act also permits claims “brought for a violation of the Constitution.”

28 U.S.C. § 2679(b)(2)(A). By enacting this provision, Congress made clear that

it was not attempting to abrogate Bivens, but the provision certainly does not

suggest, as one of petitioners’ amici contends, that Congress “intended for a robust

enforcement of Bivens remedies.” Instead, the provision simply left Bivens where

it found it. It is not a license to create a new Bivens remedy in a context we have

never before addressed, see Malesko, 534 U.S. at 68.

Id. at 748 n.9 (italics and citation omitted).

The Court also notes that the Fifth Circuit in Oliva considered “the separation of powers”

“itself” to be “a special factor.” Oliva, 973 F.3d at 444. The Fifth Circuit explained:

[W]e must consider what Congress has done and what Congress has left undone.

With the FTCA, Congress waived the United States’ sovereign immunity as to

some claims and not others. . . Congress did not make individual officers statutorily

liable for excessive-force claims. This “silence of Congress is relevant” to the

special-factors inquiry.

Id. (quoting Abbasi, 137 S. Ct. at 1862). Oliva is particularly relevant here, where Plaintiff also

raises excessive force claims. (See generally Compl.).

In light of the Supreme Court’s language in Hernandez and Abbasi, and as many courts in

this district have found, the Court finds that the FTCA is an alternative remedy. Thus, the Court

declines to extend a Bivens remedy to Plaintiff’s claims, and Plaintiff’s claims are therefore

dismissed.8, 9

III. Conclusion

For the reasons stated above, the Court grants Defendants’ Motion To Dismiss. In light

of Plaintiff’s pro se status, and because this is the first adjudication of Plaintiff’s claims on the

merits, Plaintiff’s claims against Defendants Gizzi, Johnsen, and Lewis are dismissed without

prejudice. Plaintiff has 30 days to explain to the Court in a filing why his claims against the

remaining Defendants should not also be dismissed by the Court sua sponte. See 28 U.S.C.

§1915(e)(2)(B)(ii) (“[T]he court shall dismiss [a] case [proceeding IFP] at any time if the court

determines that . . . the action . . . fails to state a claim on which relief may be granted.”).

If Plaintiff wishes to file an amended complaint alleging additional facts and otherwise

addressing the deficiencies identified above, Plaintiff must do so within 30 days of the date of

this Opinion & Order. The amended complaint will replace, not supplement, the complaint

currently before the Court. It therefore must contain all of the claims and factual allegations

8 Defendants also argue that they are entitled to qualified immunity. (Defs.’ Mem. 1; see

id. at 12–13.) The Court will not opine on whether Defendants are entitled to qualified

immunity, however, because Plaintiff has not plausibly pled that he is entitled to relief. See Posr

v.City of N.Y., No. 10-CV-2551, 2013 WL 2419142, at *10 n.8 (S.D.N.Y. June 4, 2013)

(“Because [the defendant] did not violate [the] [p]laintiff’s [constitutional] rights, there is no

need to consider if [the defendant] is entitled to qualified immunity.”), aff’d sub nom. Posr v.

Ueberbacher, 569 F. App’x 32 (2d Cir. 2014).

9 The Court notes that on November 15, 2021, Plaintiff requested that the Court issue an

Order under Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), to ascertain the identities of

Defendants John Doe 1–10. (See Dkt. No. 56.) The Court denies Plaintiff’s request in light of

its finding that the Complaint did not cognizably allege a claim against any defendant, including

the John Does. If Plaintiff chooses to file an Amended Complaint, he may renew his request at

that time.

However, the Court further notes that Plaintiff is in possession of two different incident

reports, (see Compl. 5–7), which list the different officers involved in Plaintiff’s sentencing.

Thus, a Valentin Order may not reveal the identities of any additional officers that were not

already named in the incident reports.

Plaintiff wishes the Court to consider. Failure to properly and timely amend will likely result in

dismissal of the claims against Defendant with prejudice.

The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. Nos.

38, 41) and to mail a copy of this Opinion & Order to Plaintiff.

SO ORDERED.

DATED: February 2, 2022

White Plains, New York

____________________________________

KENNETH M. KARAS

UNITED STATES DISTRICT JUDGE