The opinion of the court was delivered by: Slomsky, J.
Before the Court are Defendants Warden Troy Levi and Captain Knox's Motion to Dismiss, or in the Alternative, for Summary Judgment (Doc. No. 17) and Plaintiff Nashawn O. Law's Response in Opposition (Doc. No. 18). While Defendants set forth multiple reasons for dismissal in their Motion, the Court will address only the issue of exhaustion of administrative remedies because it is dispositive. For reasons that follow, Defendants' Motion to Dismiss will be granted.
On January 28, 2008, Plaintiff filed the Complaint (Doc. No. 8) against Defendants Warden Troy Levi, Captain Knox, and Doctor Reynolds*fn1 in the United States District Court for the Southern District of New York. On March 5, 2010, Chief Judge Loretta A. Preska of the Southern District of New York transferred the case to this Court. ("March 5, 2010 Transfer Order," Doc. No. 1.) On August 5, 2010, this Court issued an Order placing the case is suspense pending the appointment of an attorney from the Civil Rights Panel to represent Plaintiff. (Doc. No. 14.) By this Order, the Court directed that "if Plaintiff wishes this case to return to active status before a Panel attorney is appointed, and to either obtain counsel or represent himself while awaiting the appointment of a Panel attorney, he may at any time submit a letter to the Court requesting the case be returned to active status." (Id.)
On September 15, 2010, Defendants Levi and Knox filed the Motion now before the Court. (Doc. No. 17.) On October 12, 2010, Plaintiff filed his Response in Opposition. (Doc. No. 18.) On November 19, 2010, the Court removed the case from suspense. (Doc. No. 19.) In the November 19, 2010 Order, this Court reasoned that because Plaintiff filed a Response (Doc. No. 18) after the entry of the August 5, 2010 Order, the Response would be considered as the equivalent of a letter requesting the case be returned to active status. Having returned the case to active status, Defendants Levi and Knox's Motion is now ripe for review.
In the Complaint, Plaintiff alleges that in November and December 2006, while incarcerated at the Federal Detention Center (FDC) in Philadelphia, Pennsylvania, he was observing a religious fast. He asserts that during his fast he was "[t]aken out of [his] cell and force fed." (Doc. No. 8 at 4.) Plaintiff claims that his mattress on his bed was removed from his cell daily from 8:00 a.m. to 9:00 p.m. and that as a result he was forced to lay on the metal bedframe which caused body sores. (Id.) He also alleges that while fasting, he "was only given one pair of boxer briefs with no cover, sheet, or mattress in [his] cell with cold temperatures."
(Id.) Apparently, Plaintiff is claiming that when his mattress was removed, the cover and sheet were also taken from him.
Plaintiff asserts that Defendant Knox ordered that FDC employees turn off the water in Plaintiff's cell and not provide him with water until he broke his fast. Plaintiff alleges he was taken to the medical unit at the FDC on December 4, 2006 where he was force-fed. He asserts that "a white male officer from Eastern District Region" said that Plaintiff was in danger of suffering cardiac arrest due to severe dehydration. (Id.) He alleges that Defendant Reynolds delayed providing him intravenous (I.V.) fluids. Plaintiff alleges "the last thing [he] remember[s] is hearing sirens and waking up thirty days later to be told [he] was in a coma at Jefferson Hospital due to dehydration causing [him] to seizure resulting into a coma." (Id.)
Darrin Howard is an Attorney Advisor employed by the U.S. Department of Justice, Federal Bureau of Prisons (BOP), assigned to the FDC in Philadelphia, Pennsylvania. (Doc. No. 17, Exhibit A ¶ 1.) In Mr. Howard's Declaration attached to Defendant's Motion to Dismiss, he explains the BOP's grievance procedures codified in 28 C.F.R. § 542.10 et seq. (Id. ¶¶ 2-4.) He notes that he has access to BOP records, which document every administrative remedy request filed with the BOP. (Id. ¶ 5.) Although BOP records show that Plaintiff has filed three administrative remedy requests with the BOP, each request relates to a circumstance or event related to his confinement at the Federal Correctional Institution (FCI) in Otisville, New York. (Id. ¶¶ 6-11.) There is no record of Plaintiff filing a request or appeal concerning the circumstances raised in this action or concerning any matter related to his confinement at the FDC in Philadelphia. (Id. ¶ 12.)
Plaintiff does not allege that he filed a request or appeal with the BOP concerning the incident which forms the basis of the Complaint. (Doc. No. 8.) In his Response in Opposition to Defendant's Motion to Dismiss (Doc. No. 18), Plaintiff does not dispute that he has failed to file a request or appeal with the BOP and his Complaint makes no such assertion. He argues that the Court should not require him to exhaust his administrative remedies before filing suit in federal court given "the limited authority of the Bureau of Prison in providing relief and the unique nature of Bivens-type claims." (Id. at 3.)
Plaintiff submits that "diversity of citizenship" is the basis for jurisdiction. However, as Chief Judge Loretta A. Preska found in the March 5, 2010 Transfer Order, the Complaint is more properly construed as invoking the Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331. The Complaint challenges Plaintiff's conditions of confinement at the Federal Detention Center in Philadelphia, Pennsylvania. The Court will therefore read the Complaint to allege constitutional claims against federal actors pursuant to Bivens v. ...