ORDER TO AMEND Plaintiff Shloime Torim brings this pro se action, for which the filing fee has been paid, alleging that Defendants violated his federally protected rights. For the reasons set forth below, the Court directs Plaintiff to amend his complaint. STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits — to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible — not merely possible — that the pleader is entitled to relief. Id. BACKGROUND Plaintiff Shloime Torim filed this complaint about an incident occurring during his incarceration at F.C.I. Otisville Satellite Camp, although he is no longer in custody. Plaintiff asserts claims under the Religious Freedom and Restoration Act and the Federal Tort Claims Act against the United States, the Federal Bureau of Prisons (BOP), Otisville Warden B. Von Blackensee, Captain Matt Whinery, Executive Assistant/Camp Administrator Chris Entzel, Chaplain Avrohom Richter, Associate Warden J.L. Maldonado, and Correction Officer Ahamad Rezak aka Ahmed Rezak. Plaintiff, is an orthodox Jew, and Chaplain Richter “confirmed” that Plaintiff “is sincere in his religious beliefs.” Plaintiff asserts that he is prohibited from “writing and actively using electricity” on the Sabbath and holidays. Additionally, it was Otisville policy to postpone the administration of “non security random” urinalysis and breathalyzer tests “to Observant Jews on Holidays and the Sabbath.” On October 6, 2017, a Friday night during Sukkot, Officer Rezak, “under the direction of” Blackensee, Whinery, Entzel, and Maldonado, ordered Plaintiff to undergo a random urinalysis and breathalyzer. Plaintiff objected to being tested during a Sabbath holiday, but Rezak said he “didn’t care” and threatened to put Plaintiff in the segregated housing unit (SHU) if he did not comply. Plaintiff alleges that Rezak’s conduct violated his free exercise rights, and he seeks money damages.1 DISCUSSION A. Claims Against the BOP Sovereign immunity generally bars federal courts from hearing suits against federal agencies, except where that immunity has been waived. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The plaintiff bears the burden to show that Congress waived sovereign immunity with respect to the claims. See United States v. Mitchell, 463 U.S. 206, 212 (1983). Here, Plaintiff has not invoked any basis for abrogating the immunity of the named federal agency. The Court dismisses Plaintiff’s claims against the BOP because those claims are barred under the doctrine of sovereign immunity. See 28 U.S.C. §1915(e)(2)(B)(iii). B. Tort Claims Plaintiff asserts claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§1346(b), 2671-80, which provides for a waiver of sovereign immunity for injuries arising from the tortious conduct of federal officers or agents acting within the scope of their office or employment. 28 U.S.C. §1346(b)(1). The proper defendant in an FTCA case is “the United States, not individual federal…agencies.” Holliday v. Augustine, No. 14-CV-0855, 2015 WL 136545, at *1 (D. Conn. Jan. 9, 2015). Before bringing a claim under the FTCA, a plaintiff must first exhaust his administrative remedies by filing a claim for monetary damages with the appropriate federal government entity and must receive a final written determination. See 28 U.S.C. §2675(a). Such an administrative claim must be in writing, specify the amount of damages sought, and be filed within two years of the claim’s accrual. 28 U.S.C. §§2401(b), 2675(a); A.Q.C. ex rel Castillo v. United States, 715 F. Supp. 2d 452, 457 (2d Cir. 2010) (citing Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 720 (2d Cir. 1998)). A plaintiff may thereafter challenge the agency’s final denial in federal district court by filing an action within six months of the date of the mailing of the notice of final denial by the agency. See §2401(b). If the appropriate federal entity does not make a written final determination within six months of the date of the plaintiff’s filing of the administrative claim, the claimant may then bring a FTCA action in a federal district court. See §2675(a). Administrative exhaustion, is “jurisdictional, [and] cannot be waived.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). If the plaintiff fails to first present his claim to the appropriate agency and exhaust administrative remedies, then the plaintiff’s tort claims must be dismissed. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)); Foster v. Fed. Emergency Mgmt. Agency, 128 F. Supp. 3d 717, 728 (E.D.N.Y. 2015) (“Failure to comply with [exhaustion] results in dismissal of the suit.”). There is no indication that Plaintiff ever presented the tort claims at issue in this action to any federal agency. Moreover, the FTCA confers jurisdiction upon the district courts to hear claims for damages against a federal agency “for injury or loss of property…resulting from the negligent or wrongful act[s] or omission[s]” of agency employees in their official capacities. 28 U.S.C. §2679(b)(1); see Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994). The statute provides the exclusive remedy to hold the United States liable for the wrongful or negligent acts of its employees “ 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.” See 28 U.S.C. §1346(b)(1). Thus, “for liability to arise under the FTCA, a plaintiff’s cause of action must be comparable to a cause of action against a private citizen recognized in the jurisdiction where the tort occurred, and [her] allegations, taken as true, must satisfy the necessary elements of that comparable state cause of action.” Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir. 1999) (internal quotation marks and citations omitted). Finally, the FTCA does not waive the sovereign immunity of the United States for constitutional torts. FDIC v. Meyer, 510 U.S. 471, 477-78 (1994) (“By definition, federal law, not state law, provides the source of liability for a claim alleging the deprivation of a federal constitutional right…[And] the United States simply has not rendered itself liable under [the FTCA] for constitutional tort claims.”); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999) (“Congress has not waived the government’s sovereign immunity, for example, under the Federal Tort Claims Act…from lawsuits based on constitutional claims.”). Plaintiff does not allege any facts suggesting that any defendant has committed an ordinary tort against him. And his claim that Defendants violated his rights under RFRA and the United States Constitution are not cognizable under the FTCA. For these reasons, Plaintiff has not set forth facts giving rise to an FTCA claim. C. Constitutional Claim The Court liberally construes Plaintiff’s amended complaint as asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A plaintiff may bring Bivens claims against a federal official to seek redress for a violation of his constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“[Bivens] is the federal analog to suits brought against state officials under [42 U.S.C. §1983].”). Bivens relief is available only against federal officials who are personally liable for the alleged constitutional violations, not against the United States. Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017); Turkmen v. Hasty, 789 F3d 218, 233 (2d Cir. 2015). Further, “Bivens claims do not lie against federal employees in their official capacities, because such suits are considered actions against the United States, and are barred by the doctrine of sovereign immunity.” Wright v. Condit, No. 13-CV-2849, 2015 WL 708607, at *1 (S.D.N.Y. Feb. 18, 2015) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)). For these reasons, Plaintiff cannot state a constitutional claim against the United States or against the individual defendants in their official capacities. Moreover, the Supreme Court has implied a damages remedy against federal employees under Bivens in only three contexts: (1) unreasonable search and seizure under the Fourth Amendment, Bivens, 403 U.S. 388 (1971), (2) employment discrimination under the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979), and (3) inadequate medical treatment of an inmate under the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980). Recently, “the Court has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” Ziglar, 137 S. Ct. at 1857, and a Bivens remedy is not available, “where there are ‘special factors counselling hesitation in the absence of affirmative action by Congress,’” Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (quoting Carlson, 446 U.S. at 18). It is not clear whether, under Ziglar, the facts alleged in the complaint give rise to a viable Bivens claim against Rezak. Additionally, the only allegation against Blackensee, Whinery, Entzel, and Maldonado is that they supervised Rezak, and the only allegation against Chaplain Richter is that he “confirmed” the sincerity of Plaintiff’s religious beliefs. Even if the Court assumes that Plaintiff provides sufficient facts to state a Bivens claim against Rezak, the complaint is bereft of any such facts as to the other defendants. D. Religious Freedom and Restoration Act The Religious Freedom and Restoration Act, 42 U.S.C. §§2000bb, et seq. (RFRA) prohibits the federal government from “substantially burdening” a person’s exercise of religion unless the government can demonstrate that application of the burden (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that interest. Gonzales v. O’Centro Espirata Benificiente Uniao do Vegetal, 546 U.S. 418 (2006). Plaintiff asserts that Defendants violated his rights under RFRA, for which he seeks money damages.2 As with any potential Bivens claim, even if the Court assumes that the facts alleged could state a RFRA claim against Rezak, Plaintiff has failed to set forth sufficient facts to state such a claim against any of the other individual defendants. CONCLUSION With the exception of Plaintiff’s claims against Defendant Rezak-arising under Bivens and RFRA-the complaint is dismissed for failure to state a claim on which relief may be granted, and on immunity grounds. 28 U.S.C. §1915(e)(2)(B)(i), (ii). The Court grants Plaintiff leave to file an amended complaint that complies with the standards set forth above. If Plaintiff fails to file an amended complaint, or if the amended complaint does not address the issues raised in this order, the Court will direct the Clerk of Court to issue a summons and order service solely as to Defendant Rezak with respect to Plaintiff’s Bivens and RFRA claims. All other claims will be dismissed for the reasons set forth in this order. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, and caption the document as an “Amended Complaint.” An Amended Complaint form is attached to this order. No summons will issue at this time. The Clerk of Court is directed to mail a copy of this order to Plaintiff, and note service on the docket. The Court certifies under 28 U.S.C. §1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: November 22, 2019 White Plains, New York
