Figueroa v. Scotts, CIVIL ACTION NO. 21-CV-0743

JOSE FIGUEROA, Plaintiff, v. ALEXIS SCOTTS, Defendant.

CIVIL ACTION NO. 21-CV-0743

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

APRIL 15, 2021

MEMORANDUM

KENNEY, J.

This matter comes before the Court by way of a Complaint (ECF No. 1), brought by pro se Plaintiff Jose Figueroa, a pretrial detainee incarcerated at the Federal Detention Center in Philadelphia ("the Philadelphia FDC"), based primarily on allegations that he was infected with COVID-19 and delayed treatment as a result of the negligence of staff during his incarceration at FDC. Also before the Court is Figueroa's Motion to Proceed In Forma Pauperis (ECF No. 7) and his Prison Trust Fund Account Statement (ECF No. 6). In addition, Figueroa has filed a "Motion to File a[n] Amended." (ECF No. 5.) For the following reasons, the Complaint will be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and Figueroa will be granted leave to file an amended complaint. The Court will grant Figueroa's motion to file an amended consistent with this Memorandum and accompanying Order.

I. FACTUAL ALLEGATIONS

Figueroa, who has been held in the Philadelphia FDC since September 18, 2019 awaiting trial, avers that he was infected with COVID-19 from October 30, 2020 through November 24, 2020 because of the "negligence[] of the staff Ms. Alexis Scotts" at FDC. (ECF No. 1 at 2.)¹Specifically, Figueroa asserts that when Scotts returned to work following her two weeks off,² "she stated that she was sick before the whole Unit was sick" and that she must have been the one that brought COVID-19 to the unit. (Id.)

On November 8, 2020, while he was infected with COVID-19, Figueroa alleges that his blood sugar dropped, but he was not seen by a nurse until sometime on November 12, 2020, after his blood sugar had already gone back up. (Id. at 2-3.) Figueroa further avers that although he was "clear" of COVID-19 by November 24, 2020, he was still "in danger" because he was kept in the same unit as ten other people who were infected with COVID-19. (Id. at 3.) Figueroa asserts that he was not given a second COVID-19 test after he "was clear" of the virus. (Id.)

Figueroa avers that while he was infected with COVID-19, he was in lockdown with limited access to showers and phone calls, and he was served peanut butter, jelly, and bread for each of his three meals every Friday through Sunday. (Id.) Figueroa avers that this subjected him to cruel and unusual punishment in violation of the Eighth Amendment. (Id.)

Figueroa's Complaint names only Alexis Scotts as a Defendant, but she is only identified in the Complaint as "staff," so it is unclear to the Court as to what her exact role was at FDC. (Id. at 2.) Figueroa seeks $10,000,000 in damages for pain and suffering, asserting that an FDC staff member gave him COVID-19 and he is still "in danger." (Id. at 3.)

II. STANDARD OF REVIEW

The Court grants Figueroa leave to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this civil action.³ Accordingly, 28 U.S.C.§ 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). The Court must "accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the plaintiff," but disregard "threadbare recitals of the elements of a cause of action, legal conclusions, and conclusory statements" in determining whether a plaintiff has stated a claim. City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp, 908 F.3d 872, 878 (3d Cir. 2018) (quotations omitted). As Figueroa is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen, 655 F.3d 333, 339 (3d Cir. 2011).

III. DISCUSSION

Figueroa's claims are based on his allegations that he was infected with COVID-19 and was delayed treatment as a result of the negligence of staff during his incarceration at FDC. It appears that by citing to both theories in the heading of his Complaint (ECF No. 1 at 2), Figueroa intends to pursue these claims as medical negligence claims under the Federal Tort Claims Act ("FTCA") and deliberate indifference claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). Accordingly, the Court will liberally construe the Complaint as raising both FTCA and Bivens claims. Figueroa's claims are flawed, however, under either approach.

A. FTCA Claims

The FTCA waives the sovereign immunity of the United States for torts of federal employees acting within the scope of their employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674 (providing that, for tort claims, the United States shall be liable "in the same manner and to the same extent as a private individual under like circumstances"); Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004) (stating that "[t]he FTCA 'was designed primarily to remove the sovereign immunity of the United States from suits in tort, with certain specific exceptions, to render the Defendants liable in tort as a private individual would be under like circumstances.'" (quoting Richards v. United States, 369 U.S. 1, 6 (1962))). The United States is the only proper defendant in an FTCA action. See CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008).

Under the FTCA "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b). In other words, "[n]o claim can be brought under the FTCA unless the plaintiff first presents the claim to the appropriate federal agency and the agency renders a final decision on the claim." Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015); see also Burrell v. Loungo, 750 F. App'x 149, 154 (3d Cir. 2018) (stating that "[u]nder 28 U.S.C. § 2675(a), a plaintiff may not bring a claim under the FTCA unless he 'first presents the claim to the appropriate federal agency and the agency renders a final decision on the claim.'") (quoting Shelton, 775 F.3d at 569). This requirement is "jurisdictional and cannot be waived." Shelton,775 F.3d at 569. Therefore, a plaintiff "must . . . plead administrative exhaustion in an FTCA case." Colbert v. U.S. Postal Serv., 831 F. Supp. 2d 240, 243 (D.D.C. 2011).

To the extent Figueroa intended to raise medical or other negligence claims under the FTCA, his claims fail for various reasons. First, the United States is the only proper defendant in an FTCA case, but Figueroa has not named the United States as a Defendant. Moreover, it is not clear whether Figueroa exhausted administrative remedies prior to filing his Complaint as the Complaint does not include allegations pertaining to administrative exhaustion. See McFadden v. United States, Civ. A. No. 19-2900, 2021 WL 1088307, at *3 (E.D. Pa. Mar. 22, 2021) (discussing how to exhaust administrative remedies with the BOP prior to pursuing a FTCA claim); see also 28 C.F.R. § 543.31. In sum, Figueroa has not named the proper defendant, and it is not apparent from the Complaint, as pled, that the Court has jurisdiction over his FTCA claims. For those reasons, the Court will dismiss Figueroa's FTCA claims.

B. Bivens Claims

The federal actor analogue to 42 U.S.C. § 1983 liability is Bivens, which provides a remedy for certain constitutional violations committed by federal actors.⁴ See, e.g., Ynfante v. United States, Civ. A. No. 13-767, 2015 WL 631055, at *5 (M.D. Pa. Feb. 12, 2015 ("In contrast to FTCA actions, a Bivens claim can only be asserted against individual officials."). Here, Figueroa seeks to invoke Bivens based on allegations that he was infected with COVID-19 by Scotts and was subsequently delayed treatment when his blood sugar level dropped during his incarceration at the Philadelphia FDC.

1. Figueroa's Claim Based on COVID-19 Infection

"[A]n inmate's claim that prison officials violated his ... rights by failing to protect him against a known risk of substantial harm does not present a new Bivens context." Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018). A federal pretrial detainee challenging the conditions of his confinement in a Bivens claim must turn to the Fifth Amendment Due Process Clause for protection.⁵ Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Bistrian, 912 F.3d 79, at 91; Fuentes v. Wagner, 206 F.3d 335, 431-43 (3d Cir. 2000). To state a conditions of confinement claim, Figueroa must provide facts suggesting "that (1) the deprivation alleged was objectively, 'sufficiently serious' such that the prison officials' acts or omissions resulted in the denial of 'the minimal civilized measure of life's necessities'; and (2) that the prison officials exhibited a 'deliberate indifference' to his health and safety." Barndt v. Wenerowicz, 698 F. App'x 673, 677 (3d Cir. 2017) (quoting Farmer, 511 U.S. at 834).

Figueroa has not provided any facts that would support an inference of deliberate indifference. "[T]he standard for determining deliberate indifference in a conditions of confinement case is whether a prison official knew of and disregarded an excessive risk to an inmate's health...