Concepcion v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MELISSA CONCEPCION,

Plaintiff, MEMORANDUM & ORDER

-against- 23-CV-9219 (NGG) (TAM)

UNITED STATES OF AMERICA,

Defendant.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Melissa Concepcion (‘Plaintiff’) brings this action

against Defendant United States of America (the “Government”)

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§§ 1346(b), 2671 et seq., seeking damages for the conditions of

confinement he endured and the alleged mistreatment he suf-

fered as a transgender inmate in the custodial care of the Federal

Bureau of Prisons (the “BOP”).1 (See generally Am. Compl.

(Dkt. 16).) Plaintiff seeks to hold the Government liable for the

failures of BOP employees to provide basic care and supervision

while acting within their scope of employment at two federal

prison facilities in New York. Specifically, Plaintiff asserts claims

for: (1) negligence, (id. 44 83-97); (2) negligent infliction of

emotional distress, (id. 98-113); and (3) negligent hiring, re-

tention, training, and supervision, (id. { 114-21) (respectively,

“Count 1,” “Count 2,” and “Count 3”).

Pending before the court is the Government’s partial motion to

dismiss Count 2 and Count 3 pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction, or al-

ternatively, Rule 12(b)(6) for failure to state a claim. (See

1 Plaintiff is a transgender man who uses he/him pronouns. (Am. Compl.

(Dkt. 16) § 21.)

generally Def.’s Partial Mot. to Dismiss (“Def.’s Mot.”) (Dkt. 20-

1); Pl.’s Opp. (Dkt. 20-2); Def.’s Reply (Dkt. 20-3).)

For the reasons explained below, the Government’s motion to

dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND?

A. The Parties

Plaintiff is a transgender man who suffers from asthma and gen-

der dysphoria—the latter being a “serious medical condition”

including “discomfort or distress that is caused by a discrepancy

between a person’s gender identity and that person’s assigned sex

at birth.” dd. 9 37, 21-22.) The distress and discomfort arising

from gender dysphoria can be managed and alleviated through

treatment, including by dressing in accordance with one’s gender

identity. dd. § 23.) For Plaintiff, who has worn masculine cloth-

ing from a young age, dressing in accordance with his gender

identity is “a medically necessary treatment.” (Id. {{ 21, 23.)

Plaintiff suffered childhood abuse on the basis of his gender iden-

tity. Ud. § 24.)

The Government, through the BOP, operates two prison facilities

in New York: the Metropolitan Correctional Center (“MCC”) in

Manhattan and the Metropolitan Detention Center (“MDC”) in

Brooklyn. Ud. 44 8-9.) The BOP oversees the management and

regulation of all federal penal and correctional institutions (in-

cluding the MCC and MDC), and is prescribed certain duties

? The facts are taken from Plaintiffs Amended Complaint, filed on June 22,

2024—the complaint at issue here. (Id.) The court summarizes the

Amended Complaint’s factual allegations and for the purposes of the Gov-

ernment’s motion, accepts them as true, drawing all reasonable factual

inferences in favor of Plaintiff as the non-moving party. See Tandon v. Cap-

tain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)

(Rule 12(b)(1)); In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133

(2d Cir. 2021) (Rule 12(b)(6)).

under federal law, including the duty to “provide suitable quar-

ters and provide for the safekeeping, care, and subsistence of all

persons charged with or convicted of offenses against the United

States.” (Id. ¢ 85 (quoting 18 U.S.C. § 4042(a)(2)).) The Govern-

ment, acting through the BOP, is also responsible for the

operation, control, supervision, policy, practice, implementation,

and conduct of all BOP matters including at the MCC and MDC,

as well as for the hiring, retention, training, supervision, disci-

pline, and conduct of all BOP personnel. (Id. 4 9.)

B. Factual Background

At all times relevant to this motion, Plaintiff was a person in the

care and custody of the Government. For approximately 600 days

between August 27, 2020 and April 19, 2022, Plaintiff was incar-

cerated at two BOP facilities—first at the MCC and then at the

MDG.? (Id. 4 17.)

1. Plaintiffs Conditions of Confinement

Plaintiff alleges that the Government breached its duty of care to

him as a person in custody by subjecting him to “filthy, unsafe,

and degrading conditions of... confinement” throughout his in-

carceration. (id. § 91; see also id. 1-2, 85 (defining the

Government’s duty by reference to 18 U.S.C. § 4042).)

During Plaintiffs incarceration, toilets failed, black mold covered

shower walls, and rats crawled on beds. (Id. €{ 33, 35, 36.) Dur-

ing one two-month period, Plaintiff ate “raw or incompletely

cooked food” because of broken kitchen equipment, which he al-

leges, “BOP failed to fix.” Ud. 14 33-34.) At the MCC, for example,

a sewer pipe burst and flooded his unit with “foul water.” (Id.

3 The Amended Complaint states that Plaintiff was incarcerated “first [at]

the MCC and then the MDC.” (Am. Compl. 4 7.) However, it does not iden-

tify when exactly he was transferred from the MCC to the MDC and does

not always specify in which of the two facilities the alleged conduct oc-

curred. (See, e.g., id. 4 28, 32, 33-36, 38, 42-51.)

30.) At the MDC, he repeatedly only had access to “foul and

dark-colored” drinking water, including for three weeks between

December 2021 and January 2022. Ud. {{ 31, 32.) For one eight-

day period, Plaintiff was forced to sleep on a urine-soaked bed

without medical care, hot food and water, or sufficient heat—all

while sick with COVID-19. Ud. §{ 28, 56, 59.)

Plaintiff alleges that BOP staff should have known that he was at

particular risk from these unsanitary conditions due to his pre-

existing asthma, which was documented in his BOP medical rec-

ords. (Ud. § 36-37.) Plaintiff also made multiple complaints

about these conditions. Ud. 4 38.) His complaints went un-

addressed, and the BOP took no steps to ensure his well-being or

his safety. (Id. § 39.)

2. Plaintiffs Treatment as a Transgender Inmate

Plaintiff also alleges that the Government breached its duty of

care to him as a transgender person in custody “by subjecting him

to extremely harmful harassment, abuse, and discrimination on

the basis of his gender identity” in violation of the Prison Rape

Elimination Act (“PREA”), 34 U.S.C. 88 30301 et seq., and its im-

plementing regulations.* (Am. Compl. { 105; see also id. {{ 40-

4 The court is not bound to accept the Amended Complaint’s statements to

the extent that they amount to conclusions of law. See Hayden v. Paterson,

594 F.3d 150, 161 (2d Cir. 2010). Here, for example, the court is not

bound to accept as true Plaintiffs conclusory allegations that BOP employ-

ees engaged in “unlawful” gender-based “discrimination,” “harassment,”

“abuse,” and “retaliation.” (See, e.g., Am. Compl. {{ 19 (alleging Plaintiff

endured “unlawful treatment .. . as a transgender person in custody”),

65 (alleging Plaintiff endured “harassment and discrimination on the basis

of sex and gender identity”).) However, the court finds that the factual

allegations contained in the Amended Complaint raise “more than the

mere possibility,” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), that the chal-

lenged conduct amounts to unlawful “sexual harassment” as defined in the

PREA and as covered by the BOP’s Sexually Abusive Behavior Prevention

41, 53 (defining the Government’s duty in reference to 28 C.F.R.

§ 115.6 and BOP, Program Statement No. 5324.11, Sexually

Abusive Behavior Prevention and Intervention Program (2014)

(the “PREA Regulations”)).) Further, Plaintiff alleges that the

Government breached its duty of care to him as a transgender

inmate by denying him a “medically necessary treatment” in vio-

lation of the BOP’s Transgender Offender Manual. (Id. 14 23, 40-

41; see also id. {43 (defining the Government’s duty in reference

to BOP, Program Statement No. 5200.04, Transgender Offender

Manual 11 (2017) (the “BOP Transgender Offender Policy”)).)

Plaintiff alleges that BOP employees: engaged in deliberate and

sustained gender-based discrimination and harassment; verbally

abused him on the basis of his gender identity; and retaliated

against him when he filed complaints and grievances reporting

this conduct. BOP staff “regularly harassed” Plaintiff with “tran-

sphobic, hateful remarks.” Ud. 450.) For example, BOP staff told

Plaintiff he had “a devil inside of him” and that he would “redis-

cover his womanhood” upon his release. (Id. 4 51.) Starting in

August 2021, BOP staff refused to give Plaintiff gender-affirming

undergarments—despite his numerous requests, (id. {4 42, 45-

46), and despite the BOP’s alleged policy that “gender-appropri-

ate undergarments must be made available to transgender

people in custody,” Gd. 4 43 (citing the BOP Transgender Of-

fender Policy)). Plaintiffs requests were either ignored or

rejected, and he “was forced to wear women’s underwear that

did not match his gender identity and exacerbated his gender

dysphoria.” Ud. 1% 44-46, 48.)

and Intervention Program Statement. See 28 C.F.R. § 115.6 (defining “sex-

ual harassment” to include “[r]epeated verbal comments or gestures of a

sexual nature to an inmate... by a staff member, contractor, or volunteer,

including demeaning references to gender. . .”); BOP, Program Statement

No. 5324.11, Sexually Abusive Behavior Prevention and Intervention Pro-

gram (2014) (the “PREA Regulations”) (incorporating the PREA’s

definition of “sexual harassment”).

When Plaintiff made complaints about BOP employees’ mistreat-

ment of him as a transgender inmate, he alleges that BOP staff

retaliated against him. (Id. { 60.) For example, Plaintiff alleges

that one male officer attempted to mace him, and that after Plain-

tiff filed an administrative grievance, that same officer physically

discarded the grievance in front of Plaintiff and said he could

treat Plaintiff however he wanted. (Id. 4 61-62.) In another in-

stance, Plaintiff alleges that a “unit manager” told him that BOP

staff had refused to return his towel because they believed Plain-

tiff “had complained to his attorneys” about their mistreatment

of him. Ud. { 63.) Plaintiff alleges that through these actions,

BOP staff violated BOP policy, exacerbated his gender dysphoria,

and caused him to suffer emotional distress and other emotional

injuries. Ud. 4 65.)

Further, Plaintiff alleges that these violations of BOP policy and

his resulting harms persisted throughout his incarceration be-

cause of the failures of “high ranking and supervisorial officials

at [the] MCC and MDG, including the Warden” to “respond to

previous allegations of mistreatment due to [Plaintiffs] gender,”

and to otherwise follow “mandatory BOP policies for preventing

and responding to discrimination, harassment, and abuse on the

basis of sex and gender identity.” Ud. 1 40-41, 81-82.)

Plaintiff alleges that the Government and BOP staff were aware

of the risk of harm to transgender people in federal custody due

to the existence of the PREA Regulations and the BOP

Transgender Offender Policy’s mandatory requirements and

guidelines for the care of transgender inmates. (Id. { 79.) Plaintiff

also alleges that BOP staff knew or should have known that he

was at particular risk of harm due to his history of gender-based

abuse, his gender dysphoria, and his unique medical needs as a

transgender person, (id. {| 3, 25-26, 54-55), including that he

was at particular risk from being denied gender-affirming under-

garments because for Plaintiff, “dressing in accordance with [his]

gender identity is a medically necessary treatment,” (id. { 23).

C. Procedural History

Plaintiff initially filed this action on December 15, 2023. (See

Compl. (Dkt. 1).) On June 22, 2024, following a pre-motion con-

ference regarding the Government’s anticipated motion to

dismiss, Plaintiff filed his Amended Complaint—the pleading at

issue here. On August 9, 2024, the Government filed its partial

motion to dismiss Count 2 and Count 3, which was fully briefed

on September 13, 2024. (See Def.’s Mot.; Pl.’s Opp.; Def.’s Reply.)

The Government did not move to dismiss Count 1, and the par-

ties continue to engage in discovery before Magistrate Judge

Taryn A. Merkl. (See Text Order Dated 6/30/2025.) On June 30,

2025, Magistrate Judge Merkl referred the case to mediation.

(Min. Entry Dated 6/30/2025.)

Il. LEGAL STANDARD

Rule 12(b)(1) permits a defendant to move to dismiss an action

for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A

Rule 12(b)(1) motion may be either fact-based or facial. Carter

v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016). As rel-

evant here, when the motion is directed to the face of the

complaint, the court must accept all uncontroverted allegations

as true and draw every reasonable inference in favor of the plain-

tiff. Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d

239, 243 (2d Cir. 2014). Also as relevant here, “[i]n any suit in

which the United States is a defendant, there must be . . . subject

matter jurisdiction, and a waiver of sovereign immunity.” Presi-

dential Gardens Assocs. v. United States ex rel. Sec’y of Hous. and

Urb. Dev., 175 F.3d 132, 139 (2d Cir. 1999); see also United States

y. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the

United States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction.”).°

“A plaintiff asserting subject matter jurisdiction has the burden

of proving by a preponderance of the evidence that it exists.”

Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016); see also Al-

Khazraji v. United States, 519 F. App’x 711, 713 (2d Cir. 2013)

(summary order) (“The plaintiff bears the burden of proving sub-

ject matter jurisdiction by a preponderance of the evidence, and

the United States’ waiver of immunity under the FTCA is to be

strictly construed in favor of the government.”). In cases such as

this one, a “plaintiff bears the burden of establishing that her

claims fall within an applicable waiver” of sovereign immunity.

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In

addition, a plaintiff “also bear[s] the initial burden of showing

that [her] claims are not barred by [an] . . . exception” to the

applicable waiver. Cangemi v. United States, 13 F.4th 115, 129

(2d Cir. 2021). In other words, although the court “must take all

facts alleged in the complaint as true and draw all reasonable

inferences in favor of [the] plaintiff, . . . jurisdiction must be

shown affirmatively, and that showing is not made by drawing

from the pleadings inferences favorable to the party asserting it.”

Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir.

2008), affd, 561 U.S. 247 (2010).

To survive a motion to dismiss under Rule 12(b)(6) of the Fed-

eral Rules of Civil Procedure, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to re-

lief 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)); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that

states a claim for relief must contain ... a short and plain state-

ment of the claim showing that the pleader is entitled to

5 When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted and all alterations are adopted.

relief[.]”). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasona-

ble inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. A complaint must contain facts

that do more than present a “sheer possibility that a defendant

has acted unlawfully.” Id.

In reviewing a Rule 12(b)(6) motion to dismiss, a court must ac-

cept all factual allegations in the complaint as true and draw all

reasonable inferences in favor of the plaintiff. See Fink v. Time

Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). However,

that tenet “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at

678. Allegations that “are no more than conclusions . . . are not

entitled to the assumption of truth.” Hayden v. Paterson, 594 F.3d

150, 161 (2d Cir. 2010). Thus, a complaint that offers only “la-

bels and conclusions” or “a formulaic recitation of the elements

of a cause of action will not do.” Twombly, 550 U.S. at 555. If the

plaintiff “ha[s] not nudged [its] claims across the line from con-

ceivable to plausible, [the] complaint must be dismissed.” Id.

at 570.

“In most cases, a plaintiffs failure to state a claim under Rule

12(b) (6) does not deprive a federal court of subject-matter juris-

diction.” Brownback v. King, 592 U.S. 209, 217 (2021). However,

“in the unique context of the FTCA, all elements of a meritorious

claim are also jurisdictional.” Id. In other words, because the

FTCA functions as a waiver of sovereign immunity, a finding that

a particular FTCA claim fails on the merits also deprives the court

of subject-matter jurisdiction.® Id. As a result, in an FTCA action,

if a “plaintiff fails to plausibly allege an element that is both a

6 For example, “a plaintiff must plausibly allege that ‘the United States, if

a private person, would be liable to the claimant’ under state law both to

survive a merits determination under Rule 12(b)(6) and to establish sub-

ject-matter jurisdiction.” Brownback, 592 U.S. at 218 (quoting 28 U.S.C.

§ 1346(b)(1)) (emphases added).

merit element of a claim and a jurisdictional element, the district

court may dismiss the claim under Rule 12(b)(1) or

Rule 12(b)(6). Or both. The label does not change the lack of

subject-matter jurisdiction, and the claim fails on the merits be-

cause it does not state a claim upon which relief can be granted.”

Id. at 218 n.8.

IiI. DISCUSSION

The Government moves to dismiss Count 2 and Count 3 under

Rule 12(b)(1) for lack of subject matter jurisdiction and under

Rule 12(b)(6) for failure to state a claim under the relevant tort

laws of New York State (“New York”). First, the Government ar-

gues that these claims “are duplicative of Plaintiffs general

negligence claim” in Count 1, (Def.’s Mot. at 1), and “should be

dismissed because the alleged conduct is already encompassed

in Plaintiffs general negligence claim and state law does not rec-

ognize separate and distinct torts for negligent infliction of

emotional distress and negligent supervision,” (id. at 3).

Second, as to Count 3, the Government makes two additional

arguments, First, the Government argues that it is not cognizable

under the FTCA because, as alleged, “no such claim is recognized

against a private employer under New York law.” (dd. 5.) In other

words, the Government argues that in Count 3, Plaintiff has

failed to allege an actionable claim for negligent hiring, negligent

retention, negligent training, or negligent supervision under the

laws of New York State.” (See id.) Second, the Government ar-

gues that Count 3 “falls squarely within the FTCA’s discretionary

7 The court understands Plaintiff to be alleging in Count 3 four separate

but largely overlapping torts: negligent supervision, negligent training,

negligent hiring, and negligent retention. Cf. PC-41 Doe v. Poly Prep Coun-

try Day Sch., 590 F. Supp. 3d 551, 568 (E.D.N.Y. 2021). Under New York

law, each claim has distinct elements, and each claim requires both “dif-

ferent theories of negligence” and “different facts to be to be pleaded to

10

function exception,” (id.), and “should be dismissed for lack of

subject matter jurisdiction under 28 U.S.C. [8] 2680(a),” (Cd.

at 6).

The court reviews each of the Government’s arguments in turn.

A. Negligent Infliction of Emotional Distress (Count 2)

The Government argues that Count 2 is impermissibly duplica-

tive of Count 1 and must be dismissed because “state law does

not recognize NIED claims when another tort remedy is availa-

ble.” (Id. at 4.) In support, the Government argues that Plaintiffs

claim for negligent infliction of emotional distress (“NIED”) in

Count 2 is based on the same factual allegations and seeks the

same relief as Plaintiffs claim for general negligence in Count 1.

Ud.) Plaintiff argues that he is entitled to plead alternative theo-

ries of negligence, and that at this early stage, Count 2 should

proceed “so he may preserve this alternative theory of liability.”

(Pl.’s Opp. at 8.)

“In an FTCA action, courts are bound to apply the law of the state

where the tort occurred—in this case, New York.” Borley v. United

States, 22 F.4th 75, 78 (2d Cir. 2021). Under New York law, du-

plicative claims warrant dismissal. See IKB Int’, S.A. v. Wells

Fargo Bank, N.A., 40 N.Y.3d 277, 290-91 (N.Y. 2023); Brophy v.

Big Bros. Big Sisters of Am., Inc., 224 A.D.3d 866, 869 (2d Dep’t

2024).

In determining whether claims are “duplicative,” New York

courts “evaluate the nature of the injury, how the injury oc-

curred[,] and the harm it caused.” IKB Intl, 40 N.Y.3d at 291.

make out each claim.” Montague v. Williams, No. 21-CV-4054 (MKB), 2023

WL 2710320, at *12-13 (E.D.N.Y. Mar. 30, 2023) (enumerating each ele-

ment of a negligence, negligent training, negligent supervision, negligent

retention, and negligent hiring claim under New York state law, respec-

tively) (collecting New York state case law), appeal withdrawn, No. 23-

750, 2023 WL 7298782 (2d Cir. Aug. 18, 2023).

11

The Second Circuit has stated that under New York law, “[t] wo

claims are duplicative of one another if they ‘arise from the same

facts and do not allege distinct damages.” In re 305 E. 61st St.

Grp. LLC, 130 F.4th 272, 282 (2d Cir. 2025) (quoting NetJets Avi-

ation, Inc. v. LHC Commece’ns, LLC, 537 F.3d 168, 175 (2d Cir.

2008) (quoting Sitar v. Sitar, 50 A.D.3d 667, 670 (2d Dep’t

2008))); accord Redd v. Brooklyn Friends Sch., 238 A.D.3d 1181,

1184 (2d Dep’t 2025) (“A cause of action is properly dismissed

as duplicative when it is based on the same facts and seeks es-

sentially identical damages.”). Two claims are not duplicative if

“they rely on different facts.” Sitar, 50 A.D.3d at 670.

As the Government points out, the allegations set forth under

Plaintiffs cause of action for general negligence in Count 1 are

nearly identical to the allegations set forth under his cause of ac-

tion for NIED in Count 2. (See Def.’s Mot. at 4 (comparing

Am. Compl. "9 83-97 with id. {{ 98-113).) However, under New

York law, it is not sufficient to merely look at the causes of action;

instead, the court must look to the “pleadings’ four corners” to

evaluate the nature of the alleged injury and how it occurred, as

well as the alleged harm that caused it. See IKB Int'l, 40 N.Y.3d

at 291. For example, if a plaintiff has identified “an independent

legal duty,” and is not simply seeking to recover for emotional

injury caused by a breach of the same legal duty, the “claim is

not duplicative.” Id. at 304.

Looking to the whole of the Amended Complaint, the court con-

cludes that Count 2 must be dismissed as duplicative of Count 1.

First, Count 1 and Count 2 rely on the same facts. To the extent

that the Amended Complaint alleges facts in support of an NIED

claim under New York law, those facts are pleaded and provided

as support for Plaintiffs general negligence claim on the one

12

hand, or for Plaintiffs negligent supervision claim on the other.’

For example, to support Plaintiffs claim for injuries suffered as a

result of “dangerous and inhumane conditions of confinement”

caused by the BOP’s negligence, the Amended Complaint de-

scribes an eight-day period in which he was “forced to sleep on a

urine-soaked bed while sick with COVID-19, .. . without medical

care hot food, hot water, or sufficient heat.” (Am. Compl. 94 27-

28.) The Amended Complaint then realleges these identical facts,

(see id. 56, 59), but here—presumably in support of Plaintiffs

NIED claim—alleges that these same facts amount to an instance

of gender-based discrimination, which “caused” Plaintiff “to suf-

fer extreme emotional distress, humiliation, shame, trauma, and

other emotional injury,” (id. § 65). Even if the court were to find

that these facts amount to a prima facie case of NIED under New

York law (it does not),? these facts show that the nature and cir-

cumstances around Plaintiffs claimed injuries and what caused

them are identical. (Compare id. 14 27-28 with id. $9 56, 59.)

8 So as not to confuse the issues, and because the Government does not

argue that Count 2 is duplicative of Count 3, the court limits its analysis to

Count 1 and Count 2. However, and for the sake of clarity, the court notes

that Plaintiff may also properly seek to recover for the alleged exacerbation

of his gender dysphoria and related emotional injuries under his cause of

action for negligent supervision in the viable portions of his third cause of

action (Count 3).

° To establish a prima facie case of NIED under New York law, a plaintiff

must prove, in addition to the basic elements of negligence (Duty, Breach,

Injury, Causation) that: (1) “the mental injury is a direct, rather than a

consequential, result of the breach”; and (2) that “the claim possesses some

guarantee of genuineness.” Cabrera v. Rallye Motors, LLC, 215 A.D.3d 729,

730 (2d Dep’t 2023) (quoting Ornstein v. New York City Health & Hosps.

Corp., 10 N.Y.3d 1, 6 (N.Y. 2008)). Absent specific types of negligence not

at issue here, the guarantee of genuineness prong “requires that the breach

of the duty owed directly to the injured party must have at least endan-

gered the plaintiffs physical safety or caused the plaintiff to fear for his or

her own physical safety.” Id. (quoting Taggart v. Costabile, 131 A.D.3d 243,

253 (2d Dep’t 2015)). “Where the acts of a third person intervene between

13

In sum, even though Count 1 and Count 2 require different the-

ories of negligence and different facts to be pleaded in order to

state a claim under each theory, Plaintiff fails to identify facts he

relies on for his negligence claim that are different from the facts

he relies on for his NIED claim. As such, the court concludes that

Count 1 and Count 2 arise from the same facts.

Second, Count 1 and Count 2 seek identical relief for the same

alleged injuries caused by the same alleged negligence. (Compare

id. {97 (alleging that Plaintiff suffered “PTSD, severe psycholog-

ical and emotional injury, physical pain, fear, embarrassment,

humiliation, shame, extreme emotional distress, loss of quality of

life, violation of physical integrity, lost earning capacity, eco-

nomic damages for medical and counseling expenses, and other

harm”) with id. § 113 (alleging that Plaintiff suffered “PTSD, se-

vere psychological and emotional injury, physical pain, fear,

embarrassment, humiliation, shame, loss of quality of life, viola-

tion of physical integrity, lost earning capacity, economic

damages for medical and counseling expenses, and other

harm”).) In other words, in Count 2, Plaintiff simply seeks to re-

cover for emotional injuries caused by the alleged breach of the

same legal duty alleged in Count 1. Accordingly, Count 2 is not

an independent and non-duplicative cause of action. See IKB Int'l,

40 N.Y.3d at 290-91, 304. Any emotional injuries Plaintiff has

suffered as a result of the alleged negligence of BOP employees

may be properly recovered under Count 1. See Fay v. Troy City

Sch, Dist., 197 A.D.3d 1423, 1424 (3d Dep’t 2021) (dismissing

NIED claim as duplicative of negligence claim and noting plaintiff

the defendant’s conduct and the plaintiffs injury, the causal connection is

not automatically severed. In such a case, liability turns upon whether the

intervening act is a normal or foreseeable consequence of the situation cre-

ated by the defendant’s negligence.” Id. New York law does not require a

plaintiff to “adequately allege extreme and outrageous conduct.” Taggart,

131 A.D.3d at 256 (citing Ornstein, 10 N.Y.3d at 6).

14

“may recover for emotional distress caused by defendants’ al-

leged conduct under the causes of action for negligence,

negligent supervision and/or negligent retention”); see also Bran-

caleone v. Mesagna, 290 A.D.2d 467, 468-69 (2d Dep’t 2002)

(dismissing NIED claim as duplicative of defamation claim and

noting plaintiff “may properly recover for the alleged emotional

distress caused by the defamatory statements under the cause of

action for defamation”).

The court finds that Count 2 is duplicative of the viable portions

of Count 1. Accordingly, the court dismisses Plaintiffs NIED

claim. !° See Afifi v. City of New York, 104 A.D.3d 712, 713

(2d Dep’t 2013) (holding dismissal was warranted on a motion

for summary judgment as to “the allegations of [NIED]” because

they “were duplicative of the viable portions of the subject causes

of action”); see also PC-41 Doe v. Poly Prep Country Day Sch., 590

F, Supp. 3d 551, 571 (E.D.N.Y. 2021) (applying New York law

to dismiss NIED claim as duplicative of negligence claim because

“Ti]n addition to the overlapping conduct, the undifferentiated

resulting injuries are essentially identical” and plaintiff “neither

allege[d] distinct damages nor argue[d] that they differ’).

B. Negligent Hiring, Retention, Training, and

Supervision (Count 3)

The court grants the Government’s motion to dismiss Count 3 as

to Plaintiffs negligent hiring, negligent retention, and negligent

10 Plaintiff is correct that he is entitled to plead alternative theories of lia-

bility; however, a plaintiffs right to plead in the alternative is the

“entitle[ment] to advance inconsistent theories in alleging a right to recov-

ery.” Cohn v. Lionel Corp., 21 N.Y.2d 559, 563 (N.Y. 1968) (emphasis

added). The court finds nothing “inconsistent” in the alleged facts or

sought damages relating to Count 1 and Count 2; indeed, they are nearly

identical. The court is bound to follow New York state law and where, as

here, two causes of action allege identical facts and seek identical damages,

it must dismiss the duplicative claim.

15

training claims. However, the court denies the Government’s mo-

tion to dismiss Count 3 as to Plaintiffs negligent supervision

claim.

The Government argues that Count 3 must be dismissed because:

(1) it “falls squarely within the FTCA’s discretionary function ex-

ception,” (Def.’s Mot. at 5); (2) the Amended Complaint fails to

state a claim for negligent supervision claim under New York

law, (id.); and (3) Plaintiffs negligent supervision claim is dupli-

cative of Count 1, (id. at 1). Plaintiff rejects each argument.

The court addresses each of these arguments in turn.

1. The FTCA’s Discretionary Function Exception

While Plaintiffs negligent hiring, negligent retention, and negli-

gent training claims are barred by the FTCA’s discretionary

function exception, Plaintiffs negligent supervision claim is not.

“The FTCA is the ‘supreme’ federal law addressing the United

States’ liability for torts committed by its agents. It supplies the

‘exclusive remedy’ for damages claims arising out of federal em-

ployees’ official conduct.” Martin v. United States, 145 S. Ct.

1689, 1700 (2025) (quoting Hui v. Castaneda, 559 U.S. 799, 806

(2010)). “The FTCA allows those injured by federal employees

to sue the United States for damages. The statute achieves that

end by waiving, in 28 U.S.C. § 1346(b), the federal government’s

sovereign immunity for ‘certain torts committed by federal em-

ployees acting within the scope of their employment.” Id. at 1695

(quoting Brownback, 592 U.S. at 212). “But the statute’s waiver

is subject to 13 exceptions that claw back the [G]overnment’s im-

munity in certain circumstances.” Id.; see also 28 U.S.C. § 2680

(enumerating exceptions). The FTCA’s so-called “discretionary

function” exception is one such claw back. See 28 U.S.C.

§ 2680(a). “Housed in subsection (a) of § 2680, this exception

bars ‘any claim’ based on the exercise of an official’s ‘discretionary

16

function.” Martin, 145 S. Ct. at 1698 (quoting 28 U.S.C.

§ 2680(a)).

“The Supreme Court has established a two-pronged framework

known as the Berkovitz/Gaubert test for determining whether the

discretionary function exception applies in the FTCA context.”

Blecher v. Holy See, 146 F.4th 206, 213 (2d Cir. 2025) (citing

Berkovitz, 486 U.S. at 536-37; Gaubert, 499 U.S. at 322-23).11

The first prong requires that the allegedly tortious conduct be

“discretionary”; that is, “courts must consider the nature of the

official’s conduct and decide whether it ‘involves an element of

judgment or choice.” Martin, 145 S. Ct. at 1704 (Sotomayor, J.,

concurring) (quoting Gaubert, 499 U.S. at 322); accord Blecher,

146 F.4th at 213. Importantly, this first prong “is not satisfied if

a federal statute, regulation, or policy specifically prescribes a

course of action for an employee to follow,” because “[i]n such

circumstances, ‘the employee has no rightful option but to adhere

1 Blecher is the most recent binding authority on the FTCA’s discretionary

function exception. In Blecher, the Second Circuit held that the

Berkovitz/Gaubert test barred plaintiffs failure to warn and to report claims

under the Foreign Sovereign Immunities Act (“FSIA”) where employees

were alleged to have complied with a mandatory government policy. 146

F.4th at 222 (““[W]e conclude that this rule—that the FTCA’s discretionary

function exception bars the exercise of jurisdiction over claims stemming

from employee conduct in compliance with a mandatory policy—also ap-

plies in the FSIA context to claims against a foreign sovereign.”). In so

holding, the Circuit relied heavily on case law interpreting the

Berkovitz/Gaubert test in the FTCA context. See id. at 218-22. Because the

Supreme Court has not yet interpreted the FSIA’s analogous “exclusion” to

the sovereign immunity of foreign governments, and because 28 U.S.C.

§ 2680(a) “contains virtually identical language to that contained” in the

FSIA’s discretionary function exclusion, the Circuit faithfully applied the

FTCA’s two-prong framework in this “analogous” context. Id. at 212 & n.3;

see also id. at 213 n.5 (explaining the non-material distinction between “the

FTCA’s discretionary function exception and the FSIA’s discretionary func-

tion exclusion”) (emphases in original). There is no reason why Blecher’s

reasoning should not apply in this case and the court is bound to follow

the Circuit’s binding precedent.

17

to the directive.” Martin, 145 S. Ct. at 1704 (Sotomayor, J., con-

curring) (quoting Gaubert, 499 U.S. at 322). However, even

where the challenged acts involve “an element of choice,” the

discretionary function exception “does not apply reflexively.” Id.

That is, upon finding that the allegedly tortious acts are “discre-

tionary,” courts must then move to the second prong and

consider “whether ‘the judgment is of the kind that the discre-

tionary function exception was designed to shield.” Id. (quoting

Berkovitz, 486 U.S. at 536). At this step, the Court has clarified

that the discretionary function exception protects only those dis-

cretionary “governmental actions and decisions that are

themselves ‘based on considerations of public policy.” Id. (quot-

ing Berkovitz, 486 U.S. at 536-37). While different circuits have

different standards for what constitutes discretionary acts “based

on considerations of public policy,” in this circuit, “decisions that

require the [G]overnment to establish priorities for the accom-

plishment of its policy objectives by balancing the objectives

sought to be obtained against such practical considerations as

staffing and funding” are “based on considerations of public pol-

icy’ and barred by the exception. Blecher, 146 F.4th at 225.

However, the Second Circuit has held that “a government em-

ployee’s ‘absent-minded or lazy conduct [does] not ‘involve

considerations of public policy”; thus, such conduct is not pro-

tected by the exception. Id. at 225 (quoting Coulthurst v. United

States, 214 F.3d 106, 111 (2d Cir. 2000)); see also Triestman v.

Fed. Bureau of Prisons, 470 F.3d 471, 476 (2d Cir. 2006) (“The

negligent guard theory is a theory of liability under the FTCA

over which the district court clearly has subject matter jurisdic-

tion.”).

In sum, the discretionary-function exception applies “only where

an official’s actions both involve an element of judgment and rely

on public policy considerations.” Martin, 145 S. Ct. at 1705 (So-

tomayor, J., concurring) (citing Gaubert, 499 U.S. at 322-23; and

Berkovitz, 486 U.S. at 536-37) (emphases added).

18

Plaintiff alleges that “BOP and supervisory BOP staff at the MCC

and MDC were negligent in hiring, supervising, training, retain-

ing, and disciplining staff, allowing them to torment [Plaintiff]

for his gender identity and retaliate against him for his com-

plaints, as well as ignore his requests for accommodations for his

gender identity.” (Am. Compl. 4 82.) In arguing for a broad ap-

plication of the FTCA’s discretionary function exception, the

Government responds that the negligent hiring, retention, train-

ing, and supervision claims in this case should be dismissed

because “[c]laims like the one here are ‘consistently found to fall

squarely within the discretionary function exception’s ambit.”

(Def.’s Mot. at 6 (quoting Ojo v. United States, No. 16-CV-4112

(MKB) (LB), 2019 WL 3852391, at *7 (E.D.N.Y. Aug. 15, 2019),

report and recommendation adopted, No. 16-CV-4112 (MKB)

(LB), 2019 WL 4602823 (E.D.N.Y. Sept. 23, 2019)).) But “con-

sistent” findings that the discretionary function exception bars

other negligent hiring, retention, training, and supervision

claims, does not translate to a blanket ban of all negligent super-

vision claims. See Riascos-Hurtado v. United States, No. 09-CV-

0003 (RJD) (VMS), 2015 WL 3603965, at *6 (E.D.N.Y. June 5,

2015) (“[I]t is not the case that all claims for negligent hiring or

supervision are barred by the discretionary function exception.”)

(quoting Gibbons v. Fronton, 533 F. Supp. 2d 449, 455 (S.D.N.Y.

2008)). Nor do those findings necessarily mean that the negli-

gent supervision claim in this case must be dismissed.

The court rejects the Government’s invitation to apply a blanket

ban on all negligent supervision claims and evaluates Plaintiffs

negligent supervision claim under the two-pronged

Berkovitz/Gaubert test.

19

a. Plaintiff's Negligent Supervision Claim is Not

Barred by the Discretionary Function Exception

Plaintiffs negligent supervision claim is not barred by the FTCA’s

discretionary function exception because the Amended Com-

plaint plausibly alleges that in carrying out their allegedly

tortious conduct, BOP employees and their supervisors violated

specific mandatory directives.

The Government argues that Count 3 must be dismissed “be-

cause it is barred by the FTCA’s discretionary function exception.”

(Def.’s Mot. at 1.) Plaintiff responds that Count 3 is not barred by

the exception because the alleged negligent conduct “is non-dis-

cretionary [because] it is ‘inconsistent with a specific mandatory

directive.” (Pl.’s Opp. at 5 (quoting Cangemi, 13 F.4th at 130).)

While a plaintiff “bear[s] the initial burden to state a claim that

is not barred by the FTCA discretionary function exception,”

Blecher, 146 F.4th at 213, a plaintiff “can overcome a motion to

dismiss premised on the discretionary function exception by

showing that either (1) the United States’ allegedly tortious act

(or failure to act) was inconsistent with a ‘specific mandatory di-

rective’-—i.e., a ‘federal statute, regulation, or policy that

specifically prescribes a course of action for the federal govern-

ment to follow,’ or (2) the allegedly tortious judgment or choice

in question’ is not ‘grounded in considerations of public policy or

susceptible to policy analysis,” Cangemi, 13 F.4th at 130 (first

quoting Berkovitz, 486 U.S. at 536, 544; and then quoting Coul-

thurst, 214 F.3d at 109 (2d Cir. 2000)). Where, as here, a plaintiff

“seeking to overcome the discretionary function exclusion al-

lege[s] the existence of a mandatory policy that specifically

governs the challenged conduct, to satisfy Berkovitz/Gaubert

prong one, [the plaintiff] must show that the allegedly tortious

act ‘violated the mandatory regulation.” Blecher, 146 F.4th

at 224 (quoting Gaubert, 499 U.S. at 324).

20

Plaintiff alleges that BOP employees violated two specific policy

mandates: (1) the BOP Transgender Offender Policy’s directive

that BOP employees “must” provide “gender-appropriate under-

garments .. . to transgender people in custody,” (Am. Compl.

§ 43; see also id. § 40, 44-48 (describing alleged violations));

and (2) the BOP’s “mandatory PREA policies,” (id. 477), includ-

ing the PREA Regulations, which “establish mandatory BOP

policies for preventing and responding to discrimination, harass-

ment, and abuse on the basis of sex and gender identity,” (id.

"40; see also id. 50-64, 82 (describing alleged violations)).

Pursuant to those policies, Plaintiff alleges that BOP employees

had “no rightful option” other than: (1) to provide him with gen-

der-affirming undergarments and respond to his requests for the

same, (see id. □□ 40, 43, 47); and (2) to refrain from and to “re-

port immediately .. . any knowledge, suspicion, or information

regarding an incident of sexual abuse or sexual harassment that

occurred in a facility, whether or not it is part of the agency; re-

taliation against inmates or staff who reported such an incident;

and any staff neglect or violation of responsibilities that may have

contributed to an incident or retaliation,” 28 C.F.R. § 115.61(a),

(see Am. Compl. 9{ 40, 53, 77). Plaintiff alleges that BOP em-

ployees failed to adhere to these two directives. (See, e.g., id.

"9 47, 67.) And Plaintiff alleges that they failed to do so because

“supervisory BOP staff at the MCC and MDC were negligent in .

.. supervising .. . staff.” dd. { 82.) Plaintiff also alleges that BOP

supervisory employees knew (or should have known) of these

violations because he registered numerous complaints—both

verbal and in writing. (See, e.g., id. 4, 5, 45, 46, 62, 80-82.)

Finally, Plaintiff also alleges that the BOP’s supervisorial officials

failed to act despite specific, mandatory policies in the PREA Reg-

ulations regarding reporting and the handling of inmate reports.

(See, e.g., id. "1 40, 77, 82.) For example, Plaintiff alleges that at

least one supervisory employee—a “unit manager’—knew of his

complaints because the manager cited those complaints as the

21

very reason for at least one instance of BOP’s mistreatment of

him. Ud. § 63). Accordingly, PlaintifPs negligent supervision

claims arising from violations of specific, mandatory BOP policies

are not barred by the FTCA’s discretionary function exception.

Moreover, the BOP’s decision not to provide Plaintiff gender-af- .

firming undergarments between August 2021 and April 2022,

despite his repeated requests and numerous complaints, does not

involve policy considerations. See Tonelli v. United States, 60 F.3d

492, 496 (8th Cir. 1995) (in FTCA case, reversing dismissal of

negligent supervision and negligent retention claims because the

“Tflailure to act after notice of illegal action does not represent a

choice based on plausible policy considerations”). Likewise, the

BOP’s decisions concerning employees’ failures to report the al-

leged, repeated instances of sexual harassment, discrimination,

and retaliation against Plaintiff—including the decisions of the

“unit manager’—cannot “be said to be based on the purposes

that the [BOP’s] regulatory regime seeks to accomplish.” Gaubert,

499 U.S. at 325 n.7. The BOP has a “zero-tolerance” policy for

sexual harassment and for retaliation against inmates who report

instances of sexual harassment. See 28 C.F.R. § 115.11 (“Zero

tolerance of sexual abuse and sexual harassment”); PREA Regu-

lations (providing a “written policy that implements zero

tolerance toward all forms of . . . sexual abuse and sexual harass-

ment”). See also Herrera v. United States, No. 20-CV-10206

(PKC), 2022 WL 902090, at *4 (S.D.N.Y. Mar. 27, 2022) (“[The

PREA Regulations] provide a written policy that implements zero

tolerance towards all forms of sexual activity, including sexual

abuse and sexual harassment.”). That policy specifically “re-

quire[s] all staff to report immediately . . . any knowledge,

suspicion, or information regarding an incident of sexual abuse

or sexual harassment [or retaliation] that occurred in a [BOP]

facility.” 28 C.F.R. § 115.61(a). The failure of BOP employees

and supervisors, including the one “unit manager,” to report or

22

otherwise act on Plaintiffs repeated complaints of sexual harass-

ment, discrimination, and retaliation cannot be said to be in

furtherance of these BOP policies.

The BOP’s alleged inactions were either the result of the deliber-

ate choices of BOP employees and supervisors not to adhere to

the BOP’s own mandatory directives, or they were motivated by

laziness, inattentiveness, and/or absent-mindedness. Regardless

of which theory turns out to be correct, in this circuit, the FTCA’s

discretionary function exception presents no bar to recovery. See

Blecher, 146 F.4th at 225; Coulthurst, 214 F.3d at 111. See also

Triestman, 470 F.3d at 475 (in pro se FTCA case, concluding the

complaint should not have been dismissed pursuant to Rule

12(b)(1) where plaintiffs appellate brief asserted “that his ‘inju-

ries would have been prevented had the BOP adhered to its own

regulations,’ and, broadly, that the BOP ‘is liable for neglecting

its duty of care”).

In sum, Plaintiff alleges that the actions and inactions of BOP em-

ployees and their supervisors violated specific and identified

mandatory directives: (1) the BOP Transgender Offender Policy,

which requires that “gender-appropriate undergarments must be

made available to transgender people in custody,” (Am. Compl.

{ 43 (citing the BOP Transgender Offender Policy) (emphasis

added)); and (2) the PREA Regulations, which require all BOP

staff to immediately report any suspicions of sexual abusive be-

havior against an inmate for investigation, (id. { 53 (citing 28

C.F.R. § 115.61)). Because Plaintiffs negligent supervision claim

is based on violations of specific, mandatory BOP policies, the

court denies the Government’s motion to dismiss Plaintiffs neg-

ligent supervision claim as barred by the FTCA’s discretionary

function exception.

23

b. Plaintiff's Negligent Training, Hiring, and

Retention Claims are Barred by the Discretionary

Function Exception

Plaintiffs allegations of negligent training, negligent hiring, and

negligent retention cannot survive the discretionary function in-

quiry. Plaintiff alleges that “the United States and the BOP failed

to enact policies and training to provide for safety, deliberately

disregarding PREA obligations and failing to prevent serious

harm.” (Id. § 79; see also Pl.’s Opp. at 6 (“The failure to train staff

on [the PREA Regulations] resulted in BOP staff violating their

duties.”).) However, the Amended Complaint fails to plead “fac-

tual content that allows the court to draw the reasonable

inference that the [Government] is liable for the misconduct al-

leged”—here, that the BOP “failed” to enact policies and train

staff. Iqbal, 556 U.S. at 678. (Am. Compl. { 79.)

Furthermore, while the PREA mandates that the BOP “shall train

all employees who may have contact with inmates on its zero-

tolerance policy for sexual abuse and sexual harassment,” 28

C.F.R. § 115.31(a)(1) (emphasis added), how to conduct this

training, and to what extent, is entirely within the BOP’s discre-

tion. Without factual allegations sufficient to support Plaintiffs

strong assertions that the BOP “failed” to enact policies and

“failed” to train staff, the most generous reading of the Amended

Complaint is an allegation that the BOP’s policies and training

were insufficient. How and to what extent to train BOP officials

on the needs of transgender inmates, gender identity, and sexual

harassment is left to the BOP’s discretion, and decisions made in

the exercise of that discretion are clearly grounded in the policy

of the BOP’s regulatory regime. Cf Riascos-Hurtado, 2015 WL

3603965, at *7 (concluding that the BOP’s screening, hiring, and

training of staff “require a balancing of competing objectives, and

are of the nature and quality that Congress intended to shield

from tort liability”).

24

For similar reasons, the court finds that Plaintiffs negligent hiring

and negligent retention claims are also based on discretionary

conduct. An act is discretionary if it is not “compelled” by a fed-

eral statute or policy; in other words, an act is discretionary if an

employee has some “rightful option” other than to “adhere to the

directive” of a statute or regulation. Gaubert, 499 U.S. at 322

(quoting Berkovitz, 486 U.S. at 536). Although 18 U.S.C. § 4042

tasks the BOP with the “management and regulation of all Fed-

eral penal and correctional institutions,” 18 U.S.C. § 4042(a), the

statute does not dictate how the BOP should fulfill its hiring and

retention duties. “The absence of specific guidelines of appropri-

ate conduct by BOP officials in administering these duties,

therefore, leaves judgment or choice to the BOP officials.” Scrima

v. Hasty, No. 97-CV-8433 (JGK), 1998 WL 661478, at *3

(S.D.N.Y. Sept. 24, 1998); see also Needham v. United States,

No. 17-CV-5944 (ER), 2018 WL 3611944, at *4 (S.D.N.Y.

July 27, 2018) (concluding that Section 4042(a) is discretionary

because it “does not dictate how the BOP should achieve [the]

goals” it lists).

In addition, the Amended Complaint has not set forth facts tend-

ing to show that the Government’s alleged negligent training,

negligent hiring, and negligent retention of staff were not

grounded in public policy. Courts in this circuit have consistently

found that “personnel decisions such as the hiring, retention, and

training of correctional staff’ implicate “policy considerations

such as economy, efficiency, and safety.” Searles v. United States,

No. 21-CV-6570 (RA), 2022 WL 2829912, at *4 (S.D.N.Y.

July 20, 2022) (dismissing plaintiffs negligent hiring, training,

retention, and entrustment claims because the Government’s

“employment of unfit and incompetent prison staff and their fail-

ure to provide adequate security in the housing area... was

clearly discretionary’ and because “prison decisions regarding se-

curity matters implicate policy considerations such as economy,

efficiency, and safety’); accord Riascos-Hurtado, 2015 WL

25

3603965, at *7 (finding that BOP’s screening, hiring, and train-

ing of staff “require a balancing of competing objectives, and are

of the nature and quality that Congress intended to shield from

tort liability”); Saint-Guillen v. United States, 657 F. Supp. 2d 376,

387 (E.D.N.Y. 2009) (“The hiring decisions of a public entity re-

quire consideration of numerous factors, including budgetary

constraints, public perception, economic conditions, individual

backgrounds, office diversity, experience and employer intui-

tion.”) (quoting Burkhart v. Wash. Metro. Area Transit Auth., 112

F.3d 1207, 1217 (D.C. Cir. 1997)).

In light of the Amended Complaint’s pleading insufficiencies and

the presumption that such personnel decisions fall within the dis-

cretionary function exception, the court dismisses Plaintiffs

negligent hiring, negligent retention, and negligent training

claims because they are barred by the FTCA’s discretionary func-

tion exception. See Saint-Guillen, 657 F. Supp. 2d at 387.'2

2 Even if the discretionary function exception did not apply to these

claims, the court would still dismiss them for failure to state a claim. Plain-

tiff has not stated a negligent hiring, a negligent training, or a negligent

retention claim because he has not alleged any facts “relevant to the pro-

cess that the United States undertook in hiring, screening, and training the

correctional personnel in question.” Needham, 2018 WL 3611944, at *4;

see also Riascos-Hurtado, 2015 WL 3603965, at *6 (dismissing a negligent

hiring claim where the plaintiffs failed to allege facts “suggesting that the

BOP’s hiring . . . strayed from . . . normal considerations”). While the

Amended Complaint provides a historical overview of alleged PREA viola-

tions at the MCC and MDG, (see Am. Compl. 4 66-75), and then alleges

that “BOP staffs gender identity harassment [of Plaintiff] . . . [in] violation

of [the] PREA, is a result of a longstanding pattern of the BOP, MCC, and

MDC refusing to... comply with mandatory PREA policies,” (id. § 77),

these allegations are insufficient to create an actionable negligent hiring,

negligent training, or a negligent retention claim under New York law. See

Nellenback v. Madison Cnty., No. 37, 2025 1127776, __—-N.E.3d ;

at *4 (N.Y. Apr. 17, 2025) (holding that “[r]eferences to generalized norms

or practices” or “culture” are not sufficient to satisfy a negligent supervision

claim’s constructive notice requirement).

26

2. New York Negligent Supervision

As Plaintiffs negligent supervision claim based on violations of

specific, mandatory BOP policies does not fall within the FTCA’s

discretionary function exception, the court “must [now] ask

whether, under [New York] state law, a private individual under

like circumstances would be liable for the acts and omissions

[Plaintiff] allege[s].” Martin, 145 S. Ct. at 1703. In other words,

Plaintiff may prevail on the Government’s motion to dismiss his

negligent supervision claim “by demonstrating that... [New

York law] would permit a cause of action for that misconduct to

go forward.” Id. at 1700.

The Government argues that “New York law precludes a claim

for negligent training or negligent supervision against an em-

ployer for acts taken within the scope of the employee’s

employment.” (Def.’s Mot. at 5 (quoting Salamone v. United

States, 618 F. Supp. 3d 146, 153 (S.D.N.Y. 2022)).) Because

“Plaintiff pleads that the BOP employees’ alleged acts and omis-

sions were taken within the scope of their employment,” the

Government argues that “this claim should be dismissed for lack

of subject matter jurisdiction since no such claim is recognized

against a private employer under New York law.” Ud. (emphasis

added).) Plaintiff responds that New York law has no such re-

quirement and even if it does, that he is nevertheless entitled to

“plead alternative theories of liability.” (Pl’s Opp. at 4-5.) In

making these arguments, neither party points to New York’s con-

trolling case law.

Where a federal court is “charged with state law adjudication,

[the] ultimate source must be the law as established by the con-

stitution, statutes, or authoritative court decisions of the state—

and not federal courts’ guesses as to what that law might be.”

Borley, 22 F.4th at 82. “If the relevant state law is established by

a decision of the State’s highest court, that decision is binding on

the federal courts.” Animal Sci. Prods., Inc. v. Hebei Welcome

27

Pharm. Co., 585 U.S. 33, 44 (2018). In applying state law, federal

courts are bound to apply the law as established by the state’s

highest court, even where “there is any perceived tension” with

federal law. Borley, 22 F.4th at 82.

In this case, when applying New York state law, the court is

bound to apply the law as established by the New York Court of

Appeals. Id. In doing so, the court recognizes that, “a more recent

decision regarding New York law from the New York Court of

Appeals would trump an earlier decision from the Second Cir-

cuit.” Adebiyi v. Yankee Fiber Control, Inc., 705 F. Supp. 2d 287,

291 n.4 (S.D.N.Y. 2010). Accordingly, the court looks to the prec-

edent of the New York Court of Appeals.

To state a claim for negligent supervision under New York law, a

plaintiff must ultimately prove that:

(1) the employer had actual or constructive knowledge of

the employee’s propensity for the sort of behavior which

caused the injured party’s harm; (2) the employer knew or

should have known that it had the ability to control the em-

ployee and of the necessity and opportunity for exercising

such control; and (3) the employee engaged in tortious con-

duct on the employer’s premises or using property or

resources available to the employee only through their status

as an employee.

Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150, 157

(N.Y. 2023). These elements are in addition to the “well-settled”

requirements in a negligence case that a plaintiff show “a duty

owed to the plaintiff by the defendant, a breach of that duty, and

injury proximately resulting therefrom.” Id.; accord Nellenback v.

Madison Cnty., No. 37, 2025 WL1127776, N.E.3d__,at*3

(N.Y. Apr. 17, 2025) (distinguishing a negligence action from a

negligent supervision action and explaining in regard to the latter

that “[w]hen an employer has notice of its employee’s propensity

to engage in tortious conduct, yet retains and fails to reasonably

28

supervise such employee, the employer may become liable for

injuries thereafter proximately caused by its negligent supervi-

sion and retention”).

In arguing that a negligent supervision claim under New York

law requires an employee to be acting within the scope of em-

ployment, the Government relies only on federal district court

cases preceding the New York Court of Appeal’s decision in

Moore. (See Def.’s Mot. at 5 (collecting cases).) To be clear, the

Government cites no New York state cases on this issue and the

federal cases interpreting New York tort law that the Government

does cite predate Moore. (UId.) However, neither the New York

Court of Appeals nor the Appellate Division, Second Department

has required employees to have acted outside the scope of em-

ployment since Moore. See, e.g., Nellenback, 2025 WL 1127776,

at *7; Redd, 238 A.D.3d at 1184; Bailey v. City of New York, 228

A.D.3d 713, 715-16 (2d Dep’t 2024); Nickey v. City of Mt. Vernon,

230 A.D.3d 590, 591 (2d Dep’t 2024); Tabchouri v. Hard Eight

Rest. Co., LLC, 219 A.D.3d 528, 533 (2d Dep’t 2023). And as the

Appellate Division, First Department recently observed, under

New York law, “[liability for negligent hiring and retention is

not limited to employees’ actions within their scope of employ-

ment.” Waterbury v. New York City Ballet, Inc., 205 A.D.3d 154,

162 (1st Dep’t 2022) (emphasis added). Negligent supervision—

that is, a defendant’s own failure to prevent the independent

wrongdoings of employees that it is (or should be) aware of—

should not be conflated with vicarious liability for employees’ tor-

tious acts on an employer’s behalf. Id.

With these considerations in mind, the court considers each

Moore element.

First, Plaintiff plausibly pleads each traditional negligence ele-

ment. He alleges that under the PREA Regulations and the BOP

Transgender Offender Policy, the BOP owed him certain duties

of care as a person in custody and as a transgender inmate

29

(Duty). (See Am. Compl. { 40.) He alleges that the BOP breached

these duties “by subjecting him to extremely harmful harass-

ment, abuse, and discrimination on the basis of his gender

identity,” in violation of the PREA Regulations, (id. { 105), and

by denying him medical care in violation of the BOP Transgender

Offender Policy, (id. {{ 40-43) (Breach). Plaintiff alleges that

through these actions, BOP staff violated BOP policy, exacer-

bated his gender dysphoria, and caused him to suffer emotional

distress and other emotional injuries (Injury). Ud. § 65.) And

Plaintiff asserts that his injuries “occurred .. . due to the failure”

of BOP staff to follow the BOP’s mandatory regulations and poli-

cies (Causation). Ud. 4 81-82.)

Plaintiff also satisfies each Moore element for negligent supervi-

sion. Plaintiff alleges that the aforementioned violations of

specific, mandatory BOP policies and his resulting harms oc-

curred (and continued to occur for the duration of his

incarceration) because BOP employees and supervisors were

careless or inattentive in failing to report known instances of sex-

ual harassment, discrimination, and retaliation and that they

were careless or inattentive in failing to properly respond to

Plaintiff's repeated reports of policy violations and mistreatment.

(See id. 40-41, 81-82.)

Plaintiff has satisfied the first Moore element because he has met

his burden to plausibly allege the BOP’s actual or constructive

notice. Plaintiffs allegations that he: “complained about the dis-

crimination he faced at the hands of BOP staff,” (id. { 60); “filed

an administrative grievance” regarding the same, (id. 4 62); and

that he was told by a “unit manager” that BOP staff had refused

to return his towel because they believed Plaintiff “had com-

plained to his attorneys” about their mistreatment of him, (id.

63), demonstrate the BOP’s awareness of its employees’ sexual

harassment, retaliation, and denial of basic medical care as a

transgender inmate, which allegedly caused Plaintiffs injuries.

30

Indeed, the Amended Complaint alleges that at least one specific

BOP supervisory employee—the unit manager—had actual

knowledge both of BOP employees’ alleged, prohibited sexual

discrimination, harassment, and retaliation, and of Plaintiffs

complaints reporting this mistreatment. In any event, “New York

law establishes that a negligent supervision claim cannot be de-

feated by an employer’s unreasonable ignorance.” Martin v.

Nieuw Amsterdam Prop. Mgmt., LLC, No. 22-CV-3506 (ARR)

(TAM), 2025 WL 1504124, at *10 (E.D.N.Y. May 27, 2025) (re-

lying on Moore). Plaintiff filed numerous complaints both verbal

and in writing. This is enough to satisfy the first Moore element

of constructive notice.

Plaintiff has also satisfied the second Moore element: the BOP

knew or should have known that it had the ability to control its

employees, and the BOP knew or should have known of the ne-

cessity for exercising such control. Plaintiff asserts that the

Government, the BOP, and BOP staff were aware of the risk of

harm to transgender people in federal custody, as evidenced by

the BOP’s promulgation of special guidelines and mandatory

standards of care for transgender inmates, (Am. Compl. § 79),

and of the risks associated with sexually abusive behavior tar-

geted at transgender inmates, as evidenced by its zero-tolerance

policy, (id. 40). In addition, Plaintiff alleges that BOP staff knew

(or should have known) that he was at particular risk due to his

history of gender-based abuse, his gender dysphoria, and his

unique medical needs as a transgender person, as they were doc-

umented in his medical records. Ud. 4 3, 25-26, 54-55.) The

court finds that the BOP’s implementation of mandatory guide-

lines for the treatment of transgender inmates in federal custody,

and of “mandatory... polices for preventing and responding to

discrimination, harassment, and abuse on the basis of sex and

gender identity,” indicate the BOP’s recognition of the necessity

of this control. Ud. 4 40-41, 81-82.) Plaintiffs medical records

and the BOP’s mandatory policies and treatment guidelines for

31

transgender inmates are enough to show that the BOP knew of

the necessity and opportunity for exercising control of its employ-

ees,

Finally, Plaintiff satisfies the third Moore element because the al-

legedly tortious conduct occurred on BOP premises; specifically,

the challenged acts and omissions occurred during Plaintiffs in-

carceration at the MCC, the MDC, or both.

In sum, Plaintiff plausibly alleges a negligent supervision claim

under New York law because he has plausibly alleged that the

“TBOP]’s own failure to prevent [its] employees’ independent

wrongdoing that it [was] aware of’ caused his injuries. Water-

bury, 205 A.D.3d at 162. (See Am. Compl. { 80-82 (alleging that

violations of BOP policies and Plaintiffs resulting harms occurred

“due to the failure of high ranking and supervisorial officials at

[the] MCC and MDC” to “respond to previous allegations of mis-

treatment due to [Plaintiffs] gender’ and “his requests for

accommodations for his gender identity’”).)

Accordingly, and for the above reasons, the court finds that the

Amended Complaint plausibly pleads a cause of action for negli-

gent supervision under the laws of New York state. Cf. Caldwell

y. City of New York, No. 24-CV-677, 2025 WL 1466271, at *2

(2d Cir. May 22, 2025) (citing Moore, 40 N.Y.3d at 157) (sum-

mary order).

3. Plaintiffs Negligent Supervision Claim is Not

Duplicative of Count 1

Looking at the Amended Complaint as a whole, Plaintiffs negli-

gent supervision claim is not duplicative of his general negligence

claim (Count 1) because each claim relies on different facts and

seeks damages based on the alleged breach of different duties.

See Sitar, 50 A.D.3d at 670 (explaining that two claims are not

duplicative if “they rely on different facts”); IKB Intl, 40 N.Y.3d

32

at 304 (explaining that a “claim is not duplicative” if it identifies

“an independent legal duty”).

Count 1 relies on factual allegations relating to Plaintiffs condi-

tions of confinement. (See, e.g., Am. Compl. 44 36 (black mold),

31-32 (foul drinking water), 33 (electrical outages, rats, broken

kitchen equipment).) Plaintiffs negligent supervision claim, on

the other hand, relies on factual allegations relating to: (1) the

actions of BOP staff in violation of specific, mandatory BOP poli-

cies, (see, e.g., id. {1 42-45 (denied gender-affirming underwear),

50-53 (harassed with transphobic, hateful remarks), 60-61 (re-

taliated against for reporting mistreatment), 62 (discarded

complaint)); and (2) the claimed inactions of BOP supervisory

employees who knew (or should have known) of unlawful con-

duct and failed to respond as required by specific, mandatory

BOP policies, (see, e.g., id. 4 46-47 (failure to act on or respond

to Plaintiffs requests for gender-affirming underwear), 63 (fail-

ure to act on retaliation against Plaintiff for reporting

mistreatment), 81 (failure to act on or respond to allegations of

gender-based mistreatment against Plaintiff)).

In addition, whereas Count 1 relies on the alleged breach of the

BOP’s duty to “provide suitable quarters and provide for the safe-

keeping, care, and subsistence of all persons charged with or

convicted of offenses against the United States” under 28 U.S.C.

§ 4042, Plaintiffs negligent supervision claim relies on the al-

leged breach of the BOP’s duties to all inmates to adhere to,

implement, and supervise its zero-tolerance policy for sexually

abusive behavior under the PREA Regulations, and the BOP’s du-

ties to transgender persons in custody under the BOP

Transgender Offender Policy. (Compare id. § 85 (quoting 18

U.S.C. § 4042(a)(2)) and id. { 91 with id. 4 23, 40-41, 43, 53,

105.)

Finally, in Count 1, Plaintiff seeks damages for injuries suffered

as a result of BOP’s “failure to mitigate... inhumane and harmful

33

conditions [of confinement].” (Id. § 92.) In his negligent supervi-

sion claim, however, Plaintiff seeks to recover from injuries he

suffered as a result of BOP employees’ careless or inattentive fail-

ures to report or otherwise respond to known violations of the

BOP’s mandatory policies, and BOP employees’ careless or inat-

tentive failures to adhere to mandatory BOP regulations

regarding the supervision and reporting of sexually abusive be-

havior. (See, e.g., id. 1] 81-82.)

The court finds that the negligent supervision portion of Count 3

based on violations of specific, mandatory BOP policies is not du-

plicative of Count 1. Under New York law, claims for general

negligence and negligent supervision require different theories of

negligence and different facts, and the Amended Complaint re-

lies on different facts to support each claim. Accordingly, and for

the reasons explained above, the court concludes that the viable

portions of Count 3—Plaintiffs negligent supervision claim based

on violations of specific, mandatory BOP policies—are not dupli-

cative of Plaintiffs general negligence claims in Count 1 and that

a New York state court would allow Plaintiffs negligent supervi-

sion claim to proceed as an independent cause of action. See, e.g.,

Fay, 197 A.D.3d at 1424 (dismissing premises liability and

[NIED] claims as duplicative of negligence claim, but sustaining

separate causes of action for negligence, negligent supervision,

and negligent retention); Torrey v. Portville Cent. Sch., 2020 WL

856432, at *2-3 (N.Y. Sup. Ct. Feb. 21, 2020) (recognizing one

cause of action against defendant school district for negligent hir-

ing, retention, supervision, and direction, and another cause of

action for negligence and/or gross negligence); accord Montague

y, Williams, No. 21-CV-4054 (MKB), 2023 WL 2710320, at *12-

13 (E.D.N.Y. Mar. 30, 2023) (finding plaintiffs’ causes of action

for negligence, gross negligence, willful misconduct, negligent

supervision and training, negligent retention, and negligent hir-

ing “are not duplicative’ under New York law), appeal

34

withdrawn, No. 23-750, 2023 WL 7298782 (2d Cir. Aug. 18,

2023).

For the reasons explained above, while Plaintiff may proceed on

a theory of negligent supervision against the Government, his

claims for negligent hiring, negligent retention, and negligent

training are dismissed as barred by the discretionary function ex-

ception to the FTCA. As to Count 3, Plaintiff may proceed on his

claim for negligence supervision to the extent—and only to the

extent—that this cause of action arises from BOP employees and

their supervisors’ alleged violations of: (1) mandatory BOP poli-

cies relating to the treatment and care of transgender inmates,

including the BOP Transgender Offender Policy's directive that

gender-appropriate undergarments must be made available to

transgender people in custody, (Am. Compl. § 43); and (2) the

BOP’s mandatory PREA Regulations implementing the BOP’s

zero-tolerance policy for sexual abuse and sexual harassment,

and upholding the right of people in custody to be free from re-

taliation for reporting mistreatment on the basis of sex or gender,

(id. §{ 40, 81-82).

IV. CONCLUSION

For the reasons set forth above, the Government’s motion to dis-

miss is GRANTED in part and DENIED in part. The Government's

motion to dismiss Count 2 is GRANTED. The Government’s mo-

tion to dismiss the negligent hiring, negligent retention, and

negligent training portions of Count 3 is GRANTED. The Govern-

ment’s motion to dismiss the negligent supervision portion of

35

Count 3 is DENIED. In light of this Memorandum and Order, the

case proceeds as to Count 1 and to Count 3, as modified. The

parties are DIRECTED to continue with discovery under the su-

pervision of Magistrate Judge Taryn A. Merkl.

SO ORDERED.

Dated: — Brooklyn, New York

September !2Z, 2025

s/Nicholas G. Garaufis

NICHOLAS G, GARAUFIS\|

United States District Judg

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