The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DEMETRIUS HILL,
Plaintiff,
-against- 1:17-cv-04070 (ALC)
OPINION & ORDER
ESKER L. TATUM, et al.,
Defendants.
ANDREW L. CARTER, JR., United States District Judge:
Demetrius Hill (“Hill” or “Plaintiff”), proceeding pro se, brings this federal civil rights
action against the United States of America and eight prison officials previously employed at the
Metropolitan Correctional Center, alleging tortious conduct and constitutional violations he
experienced while detained there. He names as individual defendants Metropolitan Correctional
Center Warden Esker L. Tatum, Staff Attorneys Les Owens and Kenneth Bork, Unit Manager
Norman Reid, Senior Correctional Officer Kyle St. John, Correctional Systems Officer Johnny
Mobley, Lieutenant Jordan Hollett (“Defendant Officers”), and Nadina Jean, a Commissioned
Officer in the Public Health Service (with Defendant Officers, “Individual Defendants,” and
together with the United States, “Defendants”). The Government filed a motion to dismiss several
of Plaintiff’s claims. For the reasons discussed below, the motion to dismiss is GRANTED.
BACKGROUND
I. Factual History
Hill was incarcerated at the Metropolitan Correctional Center (“MCC”) in New York, New
York from June 2016 to October 2016. See ECF No. 15 at 1 (“Second Amended Complaint” or
“SAC”). Hill was originally serving his sentence at the Federal Correctional Institute, Lewisburg
(“Lewisburg”). See id. at 4. He was transferred to the MCC on a federal writ so that he could
participate in a civil lawsuit in the Eastern District of New York. See id. at 1.
While at the MCC, Plaintiff was placed in the special housing unit, or “SHU.” Id. Plaintiff
alleges he was subjected to inhumane conditions of confinement, including an unsanitary cell,
denied recreational time, and sexual harassment.
Plaintiff was forced to sleep on a concrete slab with an exceptionally thin mattress that
was torn and soaked with a stinking mildew on the inside. . . . There were 3 huge lights
inside each cell that were kept on day and all night.
Id. at 2. Additionally, Hill alleges that two vents in his cell would blow freezing cold air nonstop
and that he was denied the opportunity to buy warmer clothing from the commissary. Id. These
conditions had a magnified impact on Hill because the Defendant Officers denied him any
recreational time for his first thirty to forty-five days at the MCC. Id. at 3. This caused Hill to
suffer migraines and insomnia, lose his appetite, and rapidly lose weight. Id.
Hill alleges that Defendant Mobley refused to provide him with a shower curtain and would
leer and comment on the Plaintiff’s body while he showered. Id. at 2. Defendant Mobley allegedly
stated that “he had the right to see every part of the Plaintiff’s body [and] [t]hat he was getting off
on Plaintiff.” Id. at 2 (internal quotation marks omitted). Defendant St. John also sexually harassed
Hill, watching him undress and commenting on Hill’s genitalia. Id. at 7–8. When Plaintiff filed
several complaints about Defendant St. John’s harassment, St. John retaliated against him by filing
an incident report which deprived Plaintiff of his commissary privileges for ninety days. Id. at 8.
Hill believes that all of these conditions were deliberate and perpetrated with the intent to
make him drop his civil litigation. See id. Defendant Tatum allegedly told Plaintiff: “You can
always go back to Lewisburg, just drop your lawsuit.” Id. And Defendant Reid said, “You brought
this on yourself always filing so get use to it playa.” Id.
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Hill alleges that the Defendant Officers purposefully and intentionally blocked his access
to counsel, tampered with his legal mail, and obstructed his ability to engage with the courts. Id.
5–7. Defendants Owens and Bork denied Hill legal visits which impeded his ability to file motions
in his civil litigation and petition state and federal courts for post-conviction relief. Id. at 7.
Additionally, Defendants Owens and Bork obstructed Plaintiff’s ability to retain counsel by
“assembl[ing] a list of attorneys Plaintiff was only allowed to call and prevent[ing] Plaintiff from
hiring several attorneys by calling those attorneys and scaring them into not working with
Plaintiff.” Id. at 5. Defendants Owens and Bork also “had [P]laintiff[’]s legal mailings
photocopied” and shared them with Plaintiff’s opposing party. Id.
Hill additionally alleges that, on September 2 or 3, 2016, the Defendant Officers sprayed
two cans of “O.C. gas” or pepper spray in the cell across from his. Id. at 3–4. Although Hill had
previously informed Defendants Jean and Hollet that he was asthmatic, Defendants Hollet and
Anderson still sprayed the chemicals in his proximity. Id. As the gas filled his cell, Plaintiff banged
on his door and asked for help. Id. Defendant Mobley instructed the other officers to hold closed
the steel window flap on Hill’s cell door and continue spraying the chemicals. Id. The gas was still
able to enter through the ventilation, causing Hill to choke. Id. “[H]is nose kept running, his eyes
were burning, he threw up and passed [out] only to awake coughing again and again.” Id. The
following morning, Hill still had trouble breathing and received medical treatment. Id. at 4. His
cell was never decontaminated. Id.
II. Procedural History
Plaintiff filed numerous grievances and administrative complaints regarding his treatment
at the MCC both while he was incarcerated there and afterwards. See generally SAC. On May 31,
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2017, Hill filed his complaint initiating this action. ECF No. 1. On October 17, 2017, Hill amended
the complaint. ECF No. 6. On May 30, 2018, Hill filed the operative, second amended complaint.
ECF No. 15. In this pleading, Hill brings claims for tortious conduct under the Federal Tort Claims
Act (“FTCA”) and violations of his constitutional rights pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics. 403 U.S. 388 (1971).
On August 10, 2018, the Government filed a motion to dismiss the second amended
complaint on behalf of itself and the Individual Defendants. ECF No. 23. The Government argues
that: (1) the Court lacks subject matter jurisdiction because Hill has failed to exhaust his claims,
(2) the Court lacks personal jurisdiction over Defendant Owens, (3) Hill has failed to state a claim
for which a Bivens remedy would be available, and (4) all the Individual Defendants are immune
from liability, either through absolute or qualified immunity. See generally id.
Initially Hill failed to respond, and the Government’s motion was granted as unopposed,
closing this case. See ECF No. 33. In light of Plaintiff’s pro se status and other extenuating
circumstances brought to the Court’s attention, Hill was granted an extension to respond. See ECF
No. 40. On May 29 and August 20 of 2020, Hill filed his opposition and a supplemental brief,
respectively. ECF Nos. 57, 65. On August 25, 2020, the Government submitted its reply brief. See
ECF No. 68. In November of 2022 this matter was officially reopened. See ECF No. 79.
STANDARD OF REVIEW
I. Federal Rule of Civil Procedure 12(b)(1)
In reviewing a motion to dismiss under Rule 12(b)(1), a court “must take all facts alleged
in the complaint as true and draw all reasonable inferences in favor of plaintiff.” Morrison v. Nat’l
Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation and internal quotation marks
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omitted). “[B]ut jurisdiction must be shown affirmatively, and that showing is not made by drawing
from the pleadings inferences favorable to the party asserting it.” Id. Rather, “[t]he plaintiff bears
the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione
v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Courts “may consider affidavits
and other materials beyond the pleadings to resolve the jurisdictional issue, but [the Court] may
not rely on conclusory or hearsay statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica
Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004).
II. Federal Rule of Civil Procedure 12(b)(2)
“On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff must
meet the burden of showing that the court has jurisdiction over the defendant.” Metropolitan Life
Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) (citing Robinson v. Overseas
Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)). At the motion to dismiss stage, the court
must construe the pleadings and any supporting materials in the light most favorable to the
plaintiff, resolving any doubts in favor of jurisdiction. See Dorchester Fin. Sec., Inc. v. Banco BRJ,
S.A., 722 F.3d 81, 85 (2d Cir. 2013). The court does not, however, draw “argumentative inferences”
in a plaintiff’s favor nor does it accept as true a legal conclusion couched as a factual allegation. See
Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992) (citing Norton
v. Larney, 266 U.S. 511 (1925)). “Because a motion to dismiss for lack of personal jurisdiction is
inherently a matter requiring the resolution of factual issues outside of the pleadings, all pertinent
documentation submitted by the parties may be considered in deciding the motion.” Woods v.
Pettine, No. 13-cv-290 (PGG), 2014 WL 292363, at *1 (S.D.N.Y. Jan. 27, 2014) (internal
quotations omitted).
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III. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6), “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 plaintiff pleads factual content that allows the
Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). The plaintiff must allege sufficient facts to show “more than a
sheer possibility that a defendant has acted unlawfully,” and accordingly, where the plaintiff alleges
facts that are “‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
In considering a motion to dismiss, courts accept as true all factual allegations in the
complaint and draw all reasonable inferences in the plaintiff’s favor. See Goldstein v. Pataki, 516
F.3d 50, 56 (2d Cir. 2008). However, the court need not credit “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555); see also id. at 681. Instead, the complaint must provide factual
allegations sufficient “to give the defendant fair notice of what the claim is and the grounds upon
which it rests.” Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir.
2007) (citing Twombly, 550 U.S. at 555). In addition to the factual allegations in the complaint, the
court may consider “the documents attached to the complaint as exhibits, and any documents
incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v. Simone Dev.
Corp., 602 F.3d 57, 64 (2d Cir. 2010) (citation and internal quotation marks omitted).
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IV. Pro Se Pleadings
“Courts must afford pro se plaintiffs ‘special solicitude’ before granting motions to dismiss
or motions for summary judgment.” Quadir v. New York State Dep’t of Lab., 39 F. Supp. 3d 528,
536 (S.D.N.Y. 2014) (quoting Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)). “This policy of
liberally construing pro se submissions is driven by the understanding that implicit in the right of
self-representation is an obligation on the part of the court to make reasonable allowances to
protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal
training.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (internal
quotations and modifications omitted). Therefore, courts read pro se filings “to raise the strongest
arguments that they suggest.” Id. at 474.
DISCUSSION
I. Plaintiff’s Claims Against Defendants Jean and Owens Are Dismissed
Hill expressly abandoned his claims against Defendant Jean in his response to the motion
to dismiss based on her absolute immunity. See ECF No. 57 at 6 (“Jean is Entitled to Absolute
Immunity on Bivens”). Hill’s “express abandonment of his [these] claims should be given effect.”
See Bravo v. U.S. Marshals Serv., 684 F. Supp. 3d 112, 122 (S.D.N.Y. 2023). Hill additionally
failed to respond to the Government’s argument that the Court lacks personal jurisdiction over
Defendant Owens. See generally ECF Nos. 57, 65. The Court will also treat any claim against
Defendant Owens as abandoned. See Romain v. State Farm Fire & Cas. Co., 639 F. Supp. 3d 416,
421 n. 3 (E.D.N.Y. 2022) (deeming pro se plaintiffs’ claims abandoned when they were not
addressed in their opposition to a defendant’s motion to dismiss).
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Therefore, Hill’s abandoned claims are dismissed without prejudice on the basis of
Defendant Jean’s absolute immunity and the Court’s lack of personal jurisdiction over Defendant
Owens.
II. Plaintiff’s Bivens Claims Are Dismissed
In Bivens, the United States Supreme Court “held that, even absent statutory authorization,
it would enforce a damages remedy to compensate persons injured by federal officers who violated
the prohibition against unreasonable search[es] and seizures.” Ziglar v. Abbasi, 582 U.S. 120, 130–
31 (2017) (citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388, 397 (1971)). The Supreme Court has recognized a Bivens constitutional claim in two
other contexts: a gender discrimination claim against a member of Congress under the Fifth
Amendment, see Davis v. Passman, 442 U.S. 228, 248–49 (1979), and a claim against federal
prison officials for failure to provide adequate medical treatment under the Eighth Amendment.
See Carlson v. Green, 446 U.S. 14, 19 (1980). “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.” Ziglar, 582 U.S. at 131.
a. A Bivens Remedy Is Not Available for Any of Plaintiff’s Claims
Recently, the Supreme Court articulated a two-step inquiry for courts to determine whether
to imply a Bivens cause of action, before reaching the adequacy of a complaint’s allegations. First,
courts must determine “whether the case presents ‘a new Bivens context,’—i.e., is it
‘meaningfully’ different from the three cases in which the [Supreme] Court has implied a damages
action.” Egbert v. Boule, 596 U.S. 482, 492 (2022) (quoting Ziglar, 582 U.S. at 139–40). “A claim
may arise in a new context even if it is based on the same constitutional provision as a claim in a
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case in which a damages remedy was previously recognized.” Hernandez v. Mesa, 140 S. Ct. 735,
741, 743 (2020).
“Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are
‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to
‘weigh the costs and benefits of allowing a damages action to proceed.’” Egbert, 596 U.S. at 492
(quoting Ziglar, 582 U.S. at 136). Because “recognizing a cause of action under Bivens is a
disfavored judicial activity,” a court may not imply a Bivens remedy if there is “[e]ven a single
sound reason to defer to Congress.” Id.; see also id. see at 493 (“Even in a particular case, a court
likely cannot predict the ‘systemwide’ consequences of recognizing a cause of action under Bivens.
That uncertainty alone is a special factor that forecloses relief.” (internal citation omitted)).
“Explaining that test, the Egbert Court made clear that, effectively, it operates as a bar to a Bivens
claim in all cases except, perhaps, those involving Fourth, Fifth and Eighth Amendment claims
factually indistinguishable from Bivens, Passman, or Carlson.” Cohen v. United States, 640 F.
Supp. 3d 324, 337 (S.D.N.Y. 2022), aff’d sub nom. Cohen v. Trump, No. 23-35, 2024 WL 20558
(2d Cir. Jan. 2, 2024).
The Court construes Plaintiff’s allegations to raise five distinct categories of constitutional
violations: (1) obstructed access to the courts, (2) retaliation for grievance complaints, (3) cruel
and unusual conditions of confinement, (4) use of excessive force, and (5) deliberate indifference
to medical needs. See generally SAC. The fifth violation is the only claim somewhat similar to the
contexts previously recognized by the Supreme Court in Bivens, Davis, and Carlson. See Ziglar,
582 U.S. at 140 (finding claims must be similar to “a claim against FBI agents for handcuffing a
man in his own home without a warrant; a claim against a Congressman for firing his female
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secretary; and a claim against prison officials for failure to treat an inmate’s asthma”); White v.
Hess, No. 14CV03339CBALB, 2020 WL 1536379, at *5 (E.D.N.Y. Mar. 31, 2020) (finding access
to the courts claims are “different in a meaningful way from previous Bivens cases”); Egbert v.
Boule, 596 U.S. 482, 499 (2022) (“[T]here is no Bivens action for First Amendment retaliation.”);
Cicchiiello v. Warden Danbury FCI, No. 3:24CV1240 (VAB), 2025 WL 437305, at *5 (D. Conn.
Feb. 7, 2025) (finding that Eighth Amendment claims for non-medical conditions of confinement
differ meaningfully from previous Bivens cases); Mendoza v. Edge, 615 F. Supp. 3d 163, 170
(E.D.N.Y. 2022) (“[P]laintiff’s allegations that the defendants used excessive force against him
when they responded to the fire he started in his cell . . . fall outside of Bivens’ purview.”).
A damages remedy pursuant to Carlson is appropriate in the context a violation of “the
Eighth Amendment’s cruel and unusual punishment clause arising out of prison officials’ failure
to treat a[] prisoner’s asthma, which resulted in the prisoner’s death.” Bravo v. U.S. Marshals Serv.,
684 F. Supp. 3d 112, 122 (S.D.N.Y. 2023) (citing Carlson, 446 U.S. 14) (internal citations
omitted). When a prisoner’s injuries were not life threatening or did not constitute a medical
emergency, “[c]ourts have routinely found variances in [the] circumstances and severity render
deliberate indifference claims different from Carlson and thus arise in a ‘new context.’” Bettis v.
Grijalva, No. 21 CIV. 7505 (GWG), 2023 WL 4141869, at *6 (S.D.N.Y. June 23, 2023) (collecting
cases); cf. Mendoza, 615 F. Supp. 3d at 171–72 (finding that a claim based on a failure to treat a
COVID-19 infection did not arise under a new Bivens context).
On first glance, Hill’s claim seems to arise under the same context established by Carlson.
In Carlson, the defendants had been “fully apprised” of the “gross inadequacy” of the
medical conditions at the plaintiff’s prison. They had also been fully apprised of the nature
and severity of the plaintiff’s medical condition. The defendants failed to provide the
plaintiff with medical care for 8 hours after an asthmatic attack. And they gave him
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medication that actually made his attack more severe; and treated him with medical
equipment that was known to be ineffective. All of that misconduct resulted in the
plaintiff’s death.
Bravo, 684 F. Supp. 3d at 125 (citing Carlson, 446 U.S. at 17 n. 1). Like in Carlson, Hill brings a
claim under the Eighth Amendment for deliberate indifference to an asthma attack he experienced,
and the medical care denied for several hours thereafter. See SAC at 3–4. Hill also alleges that
Defendants were aware of his asthmatic condition and still subjected him to the gas. See id. at 4.
Although deeply troubling, these allegations do not maintain that Hill’s life was in danger.
And even if they did, Plaintiff’s allegations regarding the medical care eventually provided to him
diverge significantly from the context established in Carlson. When Hill received medical care the
morning after his cell filled with the O.C. gas, Plaintiff fails to allege that it was inadequate, let
alone “affirmatively deleterious treatment,” as in Carlson. Bravo, 684 F. Supp. 3d at 125; see SAC
at 4 (detailing medications administered to Plaintiff). Accordingly, this claim also presents a new
Bivens context. See Bettis, 2023 WL 4141869, at *6 (“[V]ariances in circumstances and severity
render deliberate indifference claims different from Carlson.”).
As all of Hill’s claims arise under a new Bivens context, the Court will now consider each
in turn and determine “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.”
Bravo, 684 F. Supp. 3d at 123. In doing so, the Court will weigh “whether alternative remedies
exist for addressing the constitutional violations raised.” Id.
i. Access to the Courts
Plaintiff argues that the Defendant Officers restricted his access to counsel and to the
Courts, violating his First, Fifth, and Sixth Amendment rights. See SAC at 7. As far as Plaintiff’s
claims pertain to his civil matter, “the Sixth Amendment does not govern civil cases.” Turner v.
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Rogers, 564 U.S. 431, 441 (2011). Hill additionally alleges that the officers’ actions prevented him
from initiating proceedings for post-conviction and habeas relief. See SAC at 7. The Supreme
Court “ha[s] never held that prisoners have a constitutional right to counsel when mounting
collateral attacks upon their convictions.” Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); see
also United States v. Fleming, 5 F.4th 189, 193 (2d Cir. 2021). Therefore, Plaintiff’s claims are
best interpreted as deprivations of access to the courts, rather than access to counsel. See Groenow
v. Williams, No. 13 CIV. 3961 PAC JLC, 2014 WL 941276, at *5 (S.D.N.Y. Mar. 11, 2014) (The
plaintiff’s communications with his attorney about matters other than “a defense to his criminal
prosecution or appeal a conviction . . . such as a challenge to the conditions of his confinement,
[implicated] his right of access to the courts.”).
The Supreme Court has recognized that “prisoners have a constitutional right of access to
the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977), abrogated on other grounds by Lewis v.
Casey, 518 U.S. 343 (1996). This right is grounded in the Article IV Privileges and Immunities
Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the
Fourteenth Amendment Equal Protection and Due Process Clauses. Christopher v. Harbury, 536
U.S. 403, 415 n.12 (2002) (collecting cases).
In considering whether any special factors counsel hesitation in extending a damages
remedy, the Court considers the fact that Plaintiff could have still pursued a habeas corpus claim
after his incarceration at the MCC ended. See Holmes v. Grant, No. 03-cv-3426 (RJH) (RLE),
2006 WL 851753, at *13 (S.D.N.Y. Mar. 31, 2006) (“[A]lthough plaintiff claims he is forever
barred from pursuing his habeas petition, an alternative course of action with respect to this claim
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is to file his habeas petition and request equitable tolling in light of defendants’ alleged destruction
of his legal materials.”).
In a case where a corrections officer confiscated a prisoner’s legal papers shortly before
the filing deadline, the Second Circuit found the facts “may justify equitable tolling and permit the
filing of a petition after the statute of limitations ordinarily would have run.” Valverde v. Stinson,
224 F.3d 129, 133 (2d Cir. 2000). Where an officer’s misconduct, rather than the plaintiff’s lack
of diligence, prevents the filing of a writ of habeas corpus within the statute of limitations, “[a]
petitioner should not be faulted.” Id. at 136. Therefore, Plaintiff could have pursued habeas relief
after October 2016, when he was no longer incarcerated at the MCC, if the Defendant Officers’
actions were the cause of his failure to do so timely.
In addition to this alternative remedy, as the Ziglar court observed, “in passing the [Prison
Litigation Reform Act (“PLRA”)], Congress did ‘not provide for a standalone damages remedy
against federal jailers,’ which could ‘suggest[] Congress chose not to extend the Carlson damages
remedy to cases involving other types of prisoner mistreatment.’” White v. Hess, No.
14CV03339CBALB, 2020 WL 1536379, at *5 (E.D.N.Y. Mar. 31, 2020) (quoting Ziglar v.
Abbasi, 582 U.S. 120, 148–49 (2017)). This provides an independent special factor, sufficient on
its own, to counsel hesitation in implying a Bivens remedy.
Accordingly, Plaintiff’s access to the courts claims present a new Bivens context, and
special factors counsel against extending a Bivens remedy there. These claims are dismissed.
ii. Retaliation for Grievances
Hill alleges that the Defendant Officers retaliated against him for filing grievances and
raising issues with his treatment at the MCC to the courts. See SAC at 4, 8–9. However, in Egbert,
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the Supreme Court explicitly held that “there is no Bivens action for First Amendment retaliation.”
596 U.S. at 49. “That holding squarely forecloses [Plaintiff’s] First Amendment retaliation claim
here.” Cohen, 640 F. Supp. 3d at 337. Accordingly, Hill’s retaliation claims are dismissed.
iii. Conditions of Confinement
Hill alleges that the conditions of his confinement at the MCC violated the Eighth
Amendment’s prohibition against cruel and unusual punishment. Specifically, Plaintiff alleges that
the state of his cell was unsanitary and inhumane, that several defendant officers sexually harassed
him, and that he was denied recreational time for the first month he was incarcerated there. See
SAC at 2–3 (cell); id. at 2, 7–8 (sexual harassment); 3 (recreation).
The Second Circuit has found that “the Executive branch, through the Bureau of Prisons,
provides an administrative grievance process for inmates to lodge complaints about their
confinement.” Ballard v. Dutton, No. 23-6416-PR, 2024 WL 4039606, at *2 (2d Cir. Sept. 4,
2024). This remedial structure, along with the availability of relief under the FTCA, indicate that
the Court should refrain from extending a Bivens remedy to Hill’s conditions of confinement
claims. See Nasiruddin v. Pliler, No. 21-CV-7044 (CS), 2024 WL 2262664, at *10 (S.D.N.Y. May
17, 2024) (no Bivens remedy for hot cell conditions and denied recreation time); Cicchiiello v.
Warden Danbury FCI, No. 3:24CV1240 (VAB), 2025 WL 437305, at *5 (D. Conn. Feb. 7, 2025)
(no Bivens remedy for sexual harassment by corrections officer). Accordingly, Hill’s conditions
of confinement claims are dismissed.
iv. Use of Excessive Force
Hill’s allegations regarding the use of O.C. gas raise a claim for excessive use of force in
violation of the Eighth Amendment’s prohibition on cruel and unusual punishment, along with the
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related medical treatment claim. See Graham v. Connor, 490 U.S. 386, 394 (1989); see also SAC
at 3–4. The fact that the PLRA “does not provide for a standalone damages remedy against federal
jailers . . . suggests Congress chose not to extend the Carlson damages remedy to cases involving
other types of prisoner mistreatment.” Ziglar, 582 U.S. at 149; see id. at 148 (“[L]egislative action
suggesting that Congress does not want a damages remedy is itself a factor counseling
hesitation.”).
Likewise, courts have found that “[a]llowing individual claims for money damages against
prison staff would stray from the Supreme Court’s guidance that ‘[p]rison administrators . . . should
be accorded wide-ranging deference in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and discipline and to maintain institutional
security.’” Schulte v. Bureau of Prisons, No. 20-cv-2795 PGG GWG, 2022 WL 1468017, at *4
(S.D.N.Y. May 10, 2022) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)).
Additionally, “the FTCA provides an inmate or detainee with a remedy for claims arising
out of assault, battery, and other torts relating to the acts or omissions of officers of the U.S.
Government.” Id. at *6. All these factors counsel hesitation in implying a Bivens remedy to claims
for excessive use of force. Accordingly, Hill’s excessive force claims are dismissed.
v. Deliberate Indifference to Medical Needs
Last, Hill’s claim regarding the Defendant Officers’ deliberate indifference to his medical
needs arises under the Eighth Amendment. The same factors articulated as to Hill’s excessive use
of force claim counsel hesitation in extending a Bivens remedy to his medical treatment claim. See
Ziglar, 582 U.S. at 149 (lack of PLRA damages remedy against jailers); Schulte, 2022 WL
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1468017, at *4 (deference to prison administrators); id. at *6 (alternative remedy under the FTCA);
see also Bravo, 684 F. Supp. 3d at 125 (articulating the same).
It is therefore inappropriate for the Court to extend a Bivens remedy to any of the new
contexts raised in Hill’s complaint. Accordingly, all his Bivens claims are dismissed. The Court
need not decide whether Hill states a claim for any constitutional violation or the issues of qualified
immunity and exhaustion under the PLRA.
III. Plaintiff’s Exhausted FTCA Claims Remain
The Government moves to dismiss for lack of subject matter jurisdiction Plaintiff’s FTCA
claims that were not exhausted at the time this lawsuit commenced.1 See ECF Nos. 24 6–8, 68 at
3. Specifically, the Government moves to dismiss any claims arising from Hill’s administrative
tort complaint that was received by the Bureau of Prisons on May 29, 2018. ECF No. 68 at 3. As
stated previously, the complaint was filed on May 31, 2017 and the second amended complaint
was filed on May 30, 2018. See ECF Nos. 1, 15.
The FTCA states that “[a]n action shall not be instituted upon a claim against the United
States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the agency in writing.” 28 U.S.C. § 2675(a). “This
requirement is jurisdictional and cannot be waived.” Celestine v. Mt. Vernon Neighborhood Health
Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)).
Where a plaintiff files a lawsuit on a claim that has not yet been adjudicated by the relevant agency,
1 While the Government initially moved to dismiss all of Hill’s FTCA claims, following
his response to the motion, the Government “withdr[ew] its motion … except as it concerns the
tort claim received by BOP on May 29, 2018 … [and] reserve[d] the right to renew” the motion.
See ECF No. 68 at 2–3.
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“there [is] a lack of complete exhaustion.” Bettis v. United States, 346 F.R.D. 34, 40 (S.D.N.Y.
2024). Accordingly, any claim arising from the May 29, 2018 administrative complaint must be
dismissed without prejudice for lack of subject matter jurisdiction.
CONCLUSION
For the reasons stated above, the Court GRANTS the Government’s motion to partially
dismiss the second amended complaint. The Plaintiff's FTCA claims, except those which arise
from his May 29, 2018 administrative tort claim, survive. This case will be referred to Magistrate
Judge Ona T. Wang for general pre-trial matters in a separate order. The Clerk of Court is
respectfully directed to mail a copy of this Opinion and Order to Plaintiff.
SO ORDERED.
Dated: March 26, 2025 [Arde / (de
New York, New York r
ANDREWL. CARTER, JR.
United States District Judge
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