Levinson v. Federal Bureau of Prisons Metropolitan Corrections Center-NY Warden

Background

Nikolay Levinson, proceeding without a lawyer, sued the warden of the federal Metropolitan Correctional Center in New York, New York, seeking damages. He alleged that on May 17, 2019, while held at the facility, he slipped on wet stairs, fell, and injured his right foot. He said no caution sign was posted.

Levinson alleged that a counselor reported the injury and sent him to the medical department. A health-care provider, Mandeep Singh, scheduled an X-ray, but the technician said the machine was broken. Levinson alleged that Singh sent him back to his housing unit instead of taking him to a hospital. More than a month later, on June 20, 2019, an X-ray showed a fracture at the base of the fifth metatarsal bone, along with swelling and another foot condition. He received a boot cast for three months and later attended physical therapy. He alleged that the delay caused his foot to heal with a lump, continued pain while walking, and a longer recovery. He also alleged that a physician’s assistant, Kang, recognized the delay and was supposed to send him to an orthopedic surgeon, but that did not happen.

Levinson said he filed a claim with the Bureau of Prisons and that it was denied. He also said he filed a reconsideration request on February 10, 2020, but had not received a response.

Claims and screening standards

The court understood Levinson to be asserting a damages claim for violations of his federal constitutional rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, and possibly claims under the Federal Tort Claims Act. Because Levinson was a prisoner seeking damages against government personnel, the court screened the complaint under the Prison Litigation Reform Act. The court explained that it had to dismiss claims that were frivolous, malicious, inadequately pleaded, or sought money from an immune defendant. It also explained that complaints filed without a lawyer are read liberally but still must provide enough facts to make liability plausible.

Constitutional damages claim

For a constitutional damages claim against an individual federal employee, the complaint must allege that the person was personally involved in the alleged violation. Levinson named the warden but did not allege facts showing how the warden personally participated in, learned about, created, or failed to address the alleged violations. Although Levinson mentioned other people who were allegedly involved, he did not name them as defendants.

The court therefore granted Levinson leave to amend so that he could name the individual federal employees who were personally involved and explain each person’s involvement in the alleged constitutional violations.

Federal Tort Claims Act claim

The Federal Tort Claims Act permits certain damages claims under tort law based on federal employees’ conduct. The proper defendant for such a claim is the United States of America, not the warden or individual employees. Before bringing this type of claim in federal court, a claimant generally must first file an administrative claim with the appropriate federal agency and receive a final written decision, or wait six months without one. The court treated this requirement as jurisdictional, meaning the court cannot hear the claim if the requirement is not satisfied.

The court understood Levinson to be alleging medical negligence or malpractice, but he had not named the United States as a defendant. The court also could not tell from the complaint whether he had completed the required administrative process. It therefore granted him leave to amend to name the United States and allege facts showing that he had exhausted the required administrative remedies.

Disposition

Judge Valerie Caproni granted Levinson leave to file an amended complaint complying with the order. He was required to submit it to the court’s Pro Se Intake Unit within 60 days, label it an “Amended Complaint,” and include docket number 20-CV-7375 (VEC). No summons would issue at that time. The order did not dismiss the claims immediately, but it stated that failure to amend within the deadline, absent good cause, would lead to dismissal of the constitutional damages claims for failure to state a claim and dismissal of the Federal Tort Claims Act claims for lack of subject-matter jurisdiction. The court also denied fee-free status for an appeal after certifying that an appeal would not be taken in good faith.