Barnhill v. Terrell ( 2015 )


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  • 14-4038-cv
    Barnhill v. Terrell
    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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
    on the 5th day of October, two thousand fifteen.
    PRESENT:              JOSÉ A. CABRANES,
    ROSEMARY S. POOLER,
    Circuit Judges,
    PAUL G. GARDEPHE,
    District Judge. *
    THOMAS BARNHILL, JR.,
    Plaintiff-Appellant,                  14-4038-cv
    v.
    DUKE TERRELL, SOROYA ROSA, MICHAEL BORECKY,
    GLENFORD EDWARDS, GAIL MCMILLAN,
    TONI CUYLER, FREDDY NUNEZ, AND SIXTO RIOS,
    Defendants-Appellees,
    R. NEWLAND, R-MD,
    Defendant.**
    *
    The Honorable Paul G. Gardephe, United States District Court for the Southern District of
    New York, sitting by designation.
    **
    The complaint and official caption misspell the names of several defendants. The Clerk of the
    Court is directed to amend the caption as set forth above.
    1
    FOR PLAINTIFF-APPELLANT:                                    Thomas Barnhill Jr., pro se, Brooklyn, NY.
    FOR DEFENDANTS-APPELLEES:                                   Varuni Nelson and Mary M. Dickman,
    Assistant United States Attorneys, for
    Kelly T. Currie, Acting United States
    Attorney, Eastern District of New York,
    Brooklyn, NY.
    Appeal from an order of the United States District Court for the Eastern District of New
    York (Pamela K. Chen, Judge).
    UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
    ADJUDGED, AND DECREED that the order of the District Court be and hereby is
    AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
    Plaintiff-Appellant Thomas Barnhill Jr., a former inmate at the Metropolitan Detention
    Center (“MDC”) in Brooklyn, NY, proceeding pro se, appeals the District Court’s partial grant of
    summary judgment and partial dismissal with prejudice of his allegations of inadequate medical care
    and exposure to tuberculosis while incarcerated. We assume the parties’ familiarity with the
    underlying facts, the procedural history of the case, and the issues on appeal.
    We review de novo a dismissal under Rule 12(b)(1) or 12(b)(6), as well as a grant of summary
    judgment under Rule 56, “construing all evidence in the light most favorable to the non-moving
    party.” Willey v. Kirkpatrick, — F.3d —, 
    2015 WL 5059377
    , at *8 (2d Cir. Aug. 28, 2015); see Tsirelman
    v. Daines, 
    794 F.3d 310
    , 313 (2d Cir. 2015). Because Barnhill proceeds pro se, “we must interpret his
    papers liberally to raise the strongest arguments that they suggest.” Willey, 
    2015 WL 5059377
    , at *8.
    (internal quotation marks omitted).
    The District Court construed Barnhill’s complaint as asserting (1) common law tort claims
    under the Federal Tort Claims Act (“FTCA”) against the United States and individual defendants in
    their official capacities, and (2) Bivens claims against the individual defendants in their individual
    capacities based on their alleged deliberate indifference to Barnhill’s medical needs, see Bivens v. Six
    Unknown Named Agents of Fed. Bureau of Narcotics, 
    403 U.S. 388
    (1971). Upon an independent review
    of the record and the relevant law, we affirm the judgment of the District Court in most respects.
    A plaintiff—even if pro se—must exhaust his administrative remedies before bringing a claim
    under the FTCA. Adeleke v. United States, 
    355 F.3d 144
    , 153 (2d Cir. 2004). For federal inmates, that
    means filing a claim for money damages with the Bureau of Prisons (“BOP”). 28 C.F.R. § 543.32.
    Although Barnhill filed several grievance forms, none sought damages or even suggested a tort
    claim, instead asking for help “solv[ing] [his] medical issue,” A167, and “requesting a full
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    investigation” into his medical problems, A173. We therefore agree with the District Court that
    Barnhill failed to exhaust his administrative remedies, and that it accordingly lacked jurisdiction to
    hear his FTCA claims.1 See 
    Adeleke, 355 F.3d at 153
    . We also agree that sovereign immunity bars any
    common law claims against the individual defendants in their official capacities. See Castro v. United
    States, 
    34 F.3d 106
    , 110 (2d Cir. 1994). Finally, we affirm the District Court’s dismissal of the Bivens
    claims against defendants Duke Terrell and Freddy Nunez and grant of summary judgment in favor
    of defendants R. Newland,2 Michael Borecky, Sixto Rios, and Soroya Rosa, substantially for the
    reasons stated in the District Court’s memorandum and order.
    We disagree, however, with the District Court’s dismissal with prejudice of Barnhill’s claims
    against defendants Toni Cuyler, Glenford Edwards, and Gail McMillan in their individual capacities.
    Even construed liberally, Barnhill has failed to state a claim against these defendants. See Fowlkes v.
    Ironworkers Local 40, 
    790 F.3d 378
    , 387 (2d Cir. 2015) (“[A] pro se complaint must allege enough facts
    to state a claim to relief that is plausible on its face.”) (internal quotation marks omitted). Barnhill
    has not alleged that they knew or had reason to know that his cellmate had tuberculosis (“TB”), or
    that they failed to screen for the disease, cf. Lareau v. Manson, 
    651 F.2d 96
    , 109 (2d Cir. 1981). He has
    thus failed to allege anything resembling “the requisite mental state” of deliberate indifference. See
    Hilton v. Wright, 
    673 F.3d 120
    , 127 (2d Cir. 2012).
    But while dismissal was proper, we cannot say the same for dismissal with prejudice, which is
    appropriate only if the District Court can “rule out any possibility, however unlikely it might be, that
    an amended complaint would succeed in stating a claim.” Gomez v. USAA Fed. Sav. Bank, 
    171 F.3d 794
    , 795-96 (2d Cir. 1999).
    “We review for abuse of discretion a district court’s decision” to dismiss a complaint “with
    prejudice.” Cruz v. FXDirectDealer, LLC, 
    720 F.3d 115
    , 125 (2d Cir. 2013). “A district court has
    abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous
    assessment of the evidence, or rendered a decision that cannot be located within the range of
    1
    While this case was pending appeal, the U.S. Supreme Court ruled that time limitations under
    the FTCA are nonjurisdictional and subject to equitable tolling. See United States v. Kwai Fun Wong,
    
    135 S. Ct. 1625
    (2015). In finding that Barnhill had failed to exhaust his administrative remedies, the
    District Court noted that Barnhill “did not submit a written demand for damages to the BOP within
    two years of the claim accruing.” Barnhill v. Terrell, No. 12-CV-2420 (PKC), 
    2014 WL 4828801
    , at *9
    (E.D.N.Y. Sept. 29, 2014). This was only one of the grounds on which the District Court relied,
    however, and it does not alter our judgment here.
    2
    In addition, Barnhill has not challenged the District Court’s dismissal of his claims against
    Newland (whose first name does not appear in the record) for lack of service. See A213 n.1, A234.
    Newland appears in the caption as a defendant, not defendant-appellee.
    3
    permissible decisions.” In re Sims, 
    534 F.3d 117
    , 132 (2d Cir. 2008) (internal quotation marks,
    alteration, and citation omitted).
    The District Court dismissed Barnhill’s claims “with prejudice because amendment would be
    3
    futile.” Barnhill v. Terrell, No. 12-CV-2420 (PKC), 
    2014 WL 4828801
    , at *13 (E.D.N.Y. Sept. 29,
    2014). Although the District Court did not elaborate, it seems to have relied on its finding that
    Barnhill “was not exposed to, and did not contract, tuberculosis.” 
    Id. at *10.
    We read the record
    differently. There is conflicting evidence as to when Barnhill acquired his TB infection,4 but by
    spring 2010—after defendants allegedly placed Barnhill with an inmate suffering from TB, see
    Appellant’s Br. 3— he showed signs of infection, A94, A96, and he subsequently began receiving,
    apparently for the first time, prophylactic TB treatment, A104. When Barnhill later asked BOP
    clinicians “how he got tuberculosis in the BOP,” they explained “the mechanism by which someone
    becomes a new converter with mycobacterium tuberculae.” A127-28 (emphasis supplied).
    It seems possible, then, that Barnhill developed a latent TB infection at the MDC. Although
    the present record does not suggest that defendants deliberately or negligently caused the alleged
    exposure, Barnhill’s brief states that he warned them about his cellmate’s TB “but was denied
    action.” Appellant’s Br. 3. That allegation suggests that Barnhill may be able to amend his complaint
    to state a claim against Cuyler, Edwards, and McMillan in their individual capacities. Cf. Shomo v. City
    of New York, 
    579 F.3d 176
    , 184 (2d Cir. 2009) (remanding to permit amendment where the plaintiff
    failed to allege the defendants’ responsibility).
    We intimate no view as to Barnhill’s ultimate likelihood of success or even his success in
    amending his complaint. We find that dismissal with prejudice is inappropriate only because we
    cannot “rule out any possibility” that an amended complaint might succeed. 
    Gomez, 171 F.3d at 795
    -
    96.
    CONCLUSION
    We have reviewed Barnhill’s remaining arguments and find them to be without merit. For
    the foregoing reasons, we AFFIRM the judgment of the District Court, except to the extent that we
    REMAND the cause to the District Court with instructions to modify the judgment to reflect that
    3
    Although Barnhill filed a “revised complaint” soon after filing his initial complaint, he did so
    before defendants filed their motion to dismiss. The District Court properly did not treat that
    second filing as an amended complaint.
    4
    TB infections are often diagnosed using a purified protein derivative (“PPD”) test. A positive
    PPD test generally indicates a TB infection, though not necessarily active disease. The Merck Manual
    of Diagnosis and Therapy 1305 (19th ed. 2011). Barnhill apparently received a positive PPD test before
    entering the MDC, A23, but he received a negative PPD test shortly thereafter, A45.
    4
    the dismissal as to the claim against defendants Cuyler, Edwards, and McMillan in their individual
    capacities is without prejudice.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    5