Qin Chen v. United States ( 2012 )

11-2440-cv
Chen v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of July, two thousand twelve.
PRESENT:
RALPH K. WINTER,
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges.
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QIN CHEN,
Plaintiff-Appellant,
-v.- 11-2440-cv
UNITED STATES OF AMERICA, UNITED STATES
DEPARTMENT OF JUSTICE BUREAU OF PRISONS,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: Robert M. Ginsberg, Ginsberg &
Wolf, P.C., New York, New York.
FOR DEFENDANTS-APPELLEES: Catherine M. Mirabile, Varuni
Nelson, Assistant United States
Attorneys, for Loretta E. Lynch,
U.S. Attorney for the Eastern
District of New York, Brooklyn, New
York.
Appeal from the United States District Court for the
Eastern District of New York (Ross, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Qin Chen appeals from the district
court's May 26, 2011 judgment, granting the motion of defendants-
appellees United States and the United States Department of
Justice Bureau of Prisons ("BOP" and, collectively, "defendants")
to dismiss his complaint for lack of subject matter jurisdiction
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(h)(3)1 and denying Chen leave to amend his complaint under
Rule 15(a). The district court entered judgment pursuant to its
opinion and order, dated May 19, 2011 and docketed May 24, 2011.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
Chen filed this action under the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, in June 2009,
alleging negligence and deliberate indifference in the failure of
BOP personnel to prevent an assault on Chen by Filemon Timana,
another inmate, that left Chen virtually blind in one eye. The
assault occurred as Chen was reporting a prior attack by Timana
that occurred just minutes earlier to BOP Counselor Glenford
Edwards.
The district court concluded that Chen's first cause of
action was barred by the discretionary function exception to the
1
The defendants also moved, in the alternative, for
summary judgment pursuant to Rule 56.
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FTCA, 28 U.S.C. § 2680(a), and that Chen's second cause of
action, construed as a Bivens claim by the court, could not be
sustained against the United States and the BOP as sole
defendants. It denied Chen leave to amend his complaint,
finding, inter alia, that the proposed amendment to the second
cause of action -- a Bivens claim asserted against Edwards --
failed because Chen did not exhaust available administrative
remedies under the Prison Litigation Reform Act ("PLRA"), 42
U.S.C. § 1997e.2
We have conducted an independent review of the record
and affirm the judgment of the district court, albeit on
different grounds. See ACEquip Ltd. v. Am. Eng'g Corp., 315 F.3d
151, 155 (2d Cir. 2003) ("Our court may . . . affirm the district
court's judgment on any ground appearing in the record, even if
the ground is different from the one relied on by the district
court."). Upon de novo review, resolving all ambiguities and
drawing all inferences in Chen's favor, see Nagle v. Marron, 663
F.3d 100, 104-05 (2d Cir. 2011), we conclude that even assuming
the BOP's actions do not fall within the discretionary function
exception to the FTCA, as Chen contends, no genuine issues of
material fact existed for trial, and defendants were entitled to
judgment as a matter of law.
2
Chen does not address the district court's rulings
regarding dismissal of, and denial of leave to amend, his second
cause of action. Accordingly, this claim is deemed abandoned.
See Cruz v. Gomez, 202 F.3d 593, 596 n.3 (2d Cir. 2000).
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To prevail on a claim of negligence under New York
law,3 a plaintiff must show that there was (1) a duty owed to the
plaintiff by the defendant, (2) breach of that duty by the
defendant, and (3) injury sustained by the plaintiff
substantially as a result of the breach. Lombard v. Booz-Allen &
Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002). In New York, a
correctional facility "owes a duty of care to safeguard inmates,
even from attacks by fellow inmates." Sanchez v. State of N.Y.,
99 N.Y.2d 247, 252-53, 255 (2002). This does not, however,
render a correctional facility "an insurer of inmate safety."
Id. at 253. The scope of the duty is "limited to risks of harm
that are reasonably foreseeable." Id. Foreseeability is defined
by actual or constructive notice. Id. at 255. In other words,
for the BOP to be liable, Chen must show that it knew or should
have known of the risk of harm to Chen. See id.Here, no rational factfinder could conclude that the
risk of harm to Chen was reasonably foreseeable to Edwards, much
less that defendants were negligent. The incident unfolded
rapidly and only as Chen was reporting the first assault by
Timana to Edwards. Further, upon Timana's arrival on the scene,
Timana denied the prior assault. Nevertheless, Edwards sought to
move Chen from the unit while ordering Timana to "step back"
twice. (Edwards Dep. 19:15-17). Immediately after the second
order, Timana punched Chen. Edwards testified that between the
3
New York law applies because the incident occurred in
this state. See Makarova v. United States, 201 F.3d 110, 114 (2d
Cir. 2000).
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second order and the punch, he "didn't have a chance to do
anything." (Edwards Dep. 19:23-24). Indeed, the entire incident
-- from Timana's arrival to the assault -- lasted approximately
thirteen seconds.
Moreover, Chen's principal contention on appeal -- that
the district court "misstat[ed]" the facts by suggesting that
Edwards walked out with Chen when the record contained evidence
that Edwards walked out ahead of Chen instead of between Chen and
Timana (see Appellant's Br. 9) -- is unavailing. Even assuming
Edwards led Chen out, in the circumstances here, he was not
negligent as a matter of law. While one could argue, with the
benefit of hindsight, that Edwards should have done things
differently, we cannot conclude that a reasonable corrections
officer should have foreseen that Timana would assault Chen as
Chen was reporting the incident and Timana was being ordered to
"step back."
We have considered Chen's remaining arguments on appeal
and find them to be without merit. Accordingly, the judgment of
the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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