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).

                                 -3-
           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).

                                -4-
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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