Lucce v. (Ice Health Corps Services IHSC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KARL HENRY LUCCE,
Plaintiff,
V.
ICE 	HEALTH 	CORPS 	SERVICES
(IHSC),
Defendant.
INTRODUCTION
25-CV-6351-MAV
ORDER
Pro se plaintiff Karl Henry Lucce, who is detained at the Buffalo Federal
Detention Facility, filed this action seeking relief under 42 U.S.C. § 1983. ECF No. 1.
Plaintiff claims that he was denied medical treatment in violation of the Fourteenth
Amendment of the Constitution. Id. at 1. Plaintiff also filed a motion for leave to
proceed in forma pauperis. ECF No. 2.
Because 	Plaintiffs 	motion 	to 	proceed 	in 	forma 	pauperis 	meets 	the
requirements of 28 U.S.C. § 1915(a), the Court grants the motion and screens the
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons set forth below, the
Court lacks subject matter jurisdiction over this action and dismisses the complaint
without prejudice.
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BACKGROUND
I. Allegations in Complaint
Plaintiff alleges that he has been in detention for about twelve months and has
been requesting medical attention "for an extended period." ECF No. 1 at 5. Every
time he makes such a request, including for a physical examination, he is "denied
[the] medical attention [he] need[s.]" Id.
According 	to 	Plaintiff, 	New 	York 	State 	Department 	of Corrections 	and
Community Supervision and officials 	at the 	Buffalo 	Federal Detention Facility
("BFDF'') "conspired at plant[ing] microchips throughout [his] body[,]" which has
caused "poor health[,] lack of sleeping ... and now ... to hear voices." Id. Plaintiff
hears the voices of three people, which makes it appear to medical staff at BFDF that
he has mental health issues. Id. These microchips are used as monitoring devices. Id.
Plaintiff alleges a violation of the Fourteenth Amendment, specifically the
right to adequate medical care. Id. He requests an injunction and monetary damages.
Id. Attached to the complaint are medical records for Plaintiff while in immigration
custody, spanning from August 2024 to April 2025. ECF No. 1-1.
LEGAL STANDARDS
I. Review Under the IFP Statute
A court shall dismiss a complaint in a civil action in which an individual is
proceeding in forma pauperis if the court determines the action (1) is frivolous or
malicious, (2) fails to state a claim upon which relief may be granted; or (3) seeks
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monetary relief from 	a 	defendant who 	IS Immune 	from 	such relief. 	28 U.S.C.
§ 1915(e)(2)(B).
IL Pleading Standards
In evaluating a complaint, a court must "accept all factual allegations as true
and must draw all inferences in the plaintiffs favor." Larkin v. Savage, 318 F.3d 138,
139 (2d Cir. 2003); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Although "a
court is obliged to construe [prose] pleadings liberally, particularly when they allege
civil rights violations," McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004),
even a pro se complaint must comply with Rule 8 of the Federal Rules of Civil
Procedure, which requires a complaint to make "a short and plain statement of the
claim showing that the pleader is entitled to relief." 	Fed. R. 	Civ. P. 8(a)(2). A
complaint states a claim for relief if the claim is "plausible on its face." BellAtl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
A claim will have "facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In other words,
although a pro se complaint need not provide every last detail in support of a claim,
it must allege sufficient factual allegations to nudge the claim "across the line from
conceivable to plausible." Twombly, 550 U.S. at 570. See Komatsu v. 	Cubesmart,
Daniels Norelli Cecere & Tavel PC, No. 20-3676-CV, 2021 WL 6060603, at *1 (2d Cir.
Dec. 20, 2021) (summary order) (to avoid sua sponte dismissal under the IFP statute,
"a complaint must plead 'enough facts to state a claim to relief that is plausible on its
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face"' (quoting Twombly, 550 U.S. at 570)); Scott Phillip Lewis v. R.L. Vallee, Inc.,
d.b.a. Maplefield's, No. 24-1438, 2025 WL 1077412, at *1 (2d Cir. Apr. 10, 2025)
(summary order) (same).
The 	Court's liberal pleading standard "does 	not reqmre 	'detailed factual
allegations,' but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
A complaint fails to state a claim ifit supplies only "labels and conclusions," Twombly,
550 U.S. at 555, "a formulaic recitation of the elements of a cause of action," id., or
'"naked assertions' devoid of 'further factual enhancement,"' Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557). Although a court is "obligated to draw the most
favorable inferences that [a plaintiff]'s complaint supports, [it] cannot invent factual
allegations that he [or she] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d
Cir. 2010).
III. Section 1983 Claims
"To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that
the challenged conduct (1) was attributable to a person acting under color of state
law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States." vVhalen v. County of Fulton, 126 F.3d 400,
405 (2d Cir. 1997). "Section 1983 itself creates·no substantive rights; it provides only
a procedure for redress for the deprivation of rights established elsewhere." 	Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471
U.S. 808, 816 (1985)).
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To establish liability against an official under § 1983, a plaintiff must allege
that individual's personal involvement in the alleged constitutional violation; it is not
enough to assert that the defendant is a link in the chain of command. See McKenna
v. 	Wright, 	386 F.3d 432, 437 (2d Cir. 2004). Moreover, the theory of respondeat
superior is not available in a§ 1983 action. See Hernandez v. Keane, 341 F.3d at 137,
144 (2d Cir. 2003). There is "no special rule for supervisory liability." Tangreti v.
Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Rather, "a plaintiff must plead and
prove 'that each Government-official defendant, through the official's own individual
actions, has violated the Constitution."' Id. (quoting Iqbal, 556 U.S. at 676).
IV. Leave to Amend
Generally, a court will afford a pro se plaintiff an opportunity to amend or to
be heard prior to dismissal, "unless it 'can rule out any possibility, however unlikely it
might be, that an amended complaint would succeed in stating a claim."' Abbas v.
Dixon, 480 F.3d 646, 639 (2d Cir. 2007) (quoting Gomez v. USAA Federal Savings
Bank, 171 F.3d 794, 796 (2d Cir. 1999)). But a court may deny leave to amend
pleadings when any amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)
(per curiam) ("Where it appears that granting leave to amend is unlikely to be
productive □ ... it is not an abuse of discretion to deny leave to amend.").
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DISCUSSION
Plaintiff cannot maintain his claim under 42 U.S.C. § 1983, as the complaint
alleges wrongful action by federal rather than state actors. As Plaintiff is proceeding
pro se, the Court liberally interprets his complaint to assert a Fourteenth Amendment
claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 	388 (1971), the vehicle for analogous relief against federal officers for
constitutional violations. See Eng v. Carter, No. 13-CV-4855 ENV, 2013 WL 6178157,
*2 (E.D.N.Y. Nov. 25, 2013); see also Morales v. City of New York, 752 F.3d 234, 237
(2d Cir. 2014) (holding that district court properly construed§ 1983 claims brought
against federal employee as arising under Bivens).
For the reasons below, Plaintiffs claims for damages are dismissed, and his
request for injunctive relief is denied.
I. Claims for Damages
A. Sovereign Immunity & Bivens
"Absent an 'unequivocally expressed' statutory waiver, the United States, its
agencies, and its employees (when functioning in their official capacities) are immune
from suit based on the principle of sovereign immunity." Cnty. of Suffolk, N. Y. v.
Sebelius, 605 F.3d 135, 140 (2d Cir. 2010) (citing Dep't of the Army v. Blue Fox, Inc.,
525 U.S. 255, 260-61 (1999))-. "While the FTCA [Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2671-80] provides a limited waiver of sovereign immunity for certain tort
claims, Congress has not waived the United States' sovereign immunity with respect
to constitutional tort claims." Davila v. Gutierrez, 330 F. Supp. 3d 925, 937 (S.D.N.Y.
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2018) (first citing FDIC v. Meyer, 510 U.S. 471, 478 (1994)); and then citing Chen v.
United States, 854 F.2d 622, 625-26 (2d Cir. 1988)), aff'd, 791 F. App'x 211 (2d Cir.
2019).
Moreover, "Congress has never 'provide[d] 	a 	specific damages remedy for
plaintiffs 	whose 	constitutional 	rights 	were 	violated 	by 	agents 	of the 	Federal
Government."' Cohen v. Trump, No. 23-35, 2024 WL 20558, at *2 (2d Cir. Jan. 2, 2024)
(alteration in original) (quoting Ziglar v. Abbasi, 582 U.S. 120, 130 (2017)), cert.
denied, 145 S. Ct. 415 (2024). "A Bivens action is a judicially-created remedy designed
to provide individuals with a cause of action against federal officials who have
violated their constitutional rights." Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir.
2007) 	(citation omitted). 	Because 	of sovereign immunity and the 	absence 	of a
statutory damages remedy, "[c]onstitutional tort claims ... must be brought against
individual federal agents or employees in their individual capacities through a Bivens
action." Davila, 330 F. Supp. 3d at 937 (citing Robinson v. Overseas Mil. Sales Corp.,
21 F.3d 502, 510 (2d Cir. 1994)).
Since Plaintiffs claim is brought against a federal agency-or a component of
a federal agency-and not against any federal officer in his or her individual capacity,
the complaint must be dismissed for lack of subject matter jurisdiction. Victoria v.
DHSIICE, No. 6:24-CV-06540 EAW, 2025 WL 1235373, at *3 (W.D.N.Y. Apr. 29,
2025) 	(citing Robinson, 	21 F.3d at 510 ("[T]o the extent that Robinson's claims
constituted a Bivens action against AAFES, 	[a federal agency,] 	or the individual
federal defendants in their official capacities, they were properly dismissed for want
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of subject matter jurisdiction."); see also Meyer, 510 U.S. at 486 (Bivens claims may
be brought against federal officers, not federal agencies).
The complaint also fails to state an action under Bivens because Plaintiff does
not name or identify any federal official who was personally involved in violating his
constitutional rights. Haley v. Tryon, 12 F. Supp. 3d 573, 575 (W.D.N.Y. 2014) ('"To
establish a claim under Bivens, a plaintiff must plausibly allege that the individual
defendants participated actively in the alleged constitutional violation."') (quoting
Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997)).1
To the extent the Court can construe the complaint as asserting a claim under
Bivens, that claim is dismissed without prejudice with leave to amend.
B.FTCA
As for whether Plaintiffs complaint could be construed as asserting a tort
claim under the FTCA, the complaint does not plead or indicate Plaintiffs complianceI
with the FTCA's administrative exhaustion requirement. Holmes 	v. 	Cent. 	Intel.
Agency, 758 F. Supp. 3d 153, 156 (W.D.N.Y. 2024) (citing Davila, 330 F. Supp. 3d at
936 	("The 	plaintiff has 	the 	burden 	to 	plead 	compliance 	with 	the 	exhaustion
requirement.")). "The FTCA requires that a claimant exhaust all administrative
1 The Court notes that the Supreme Court has cautioned that the Bivens remedy should rarely be
extended to new contexts. See Ziglar v. Abbasi, 582 U.S. 120, 135-40 (2017). In light of the failure to
identify any federal officer who was personally involved in the alleged constitutional violation, the
Court finds that a Bivens analysis is unnecessary but notes that it would be highly unlikely that it
would extend to the context at issue here. At the outset, Lucce's claim would involve "new categor[ies]
of defendants" that were not contemplated in Bivens. See Egbert v. Boule, 596 U.S. 482, 492 (2022)
(citation modified) (explaining that claims arising in a new context, including when a new category of
defendants is involved, "represent situations in which a court is not undoubtedly better positioned
than Congress to create a damages action'').
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remedies before filing a complaint in federal district court. This requirement is
jurisdictional 	and 	cannot 	be 	waived." 	Id. 	(quoting 	Celestine 	v. 	Mount 	Vernon
Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005)).
The complaint further fails to state a claim under the FTCA because Plaintiff
has not named the United States as a defendant as required by 28 U.S.C. § 1346. See
Victoria, 2025 WL 1235373, at *2 n.3.
If Plaintiff chooses to file an amended complaint, he may attempt to assert a
FTCAclaim.
II. Injunctive Relief
Plaintiff requests as relief, in addition to monetary damages, an "[i]njunction[.]
ECF No. 1 at 5. 	His request for injunctive relief is denied for several reasons. 2
2 It is not entirely clear under what authority Plaintiff seeks or could seek injunctive relief. Courts in
this Circuit have held that the only remedy available in a Bivens action is monetary damages against
federal officials, not injunctive relief. Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007); Yorzinski
v. Imbert, 39 F. Supp. 3d 218, 229 (D. Conn. 2014). But see Benetti v. U.S. Marshal Serv., 5:22-CV-
05038-KES, 2023 WL 5485995, at *3 (D.S.D. Aug. 24, 2023) (acknowledging a "split of authority on
whether the Bivens doctrine permits injunctive relief against a federal agency under Bivens.")
(collecting cases). Plaintiffs claim for injunctive relief may be cognizable under the Administrative
Procedure Act (APA), which waives sovereign immunity for claims against federal agencies seeking
non-monetary relief. Mescall v. Bronx Residential Ctr., No. 22-CV-4557 (LTS), 2022 WL 3362330, at
*3 (S.D.N.Y.Aug.15, 2022) (citing 5 U.S.C. § 702.10). However, theAPAlimitsjudicialreviewto "final
agency action''. Du v. United States Dep't of Homeland Sec., No. 3:25-CV-644 (OAW), 2025 WL
1549098, at *8 (D. Conn. May 31, 2025) (citing 5 U.S.C. § 704). The Court is not persuaded that the
actions alleged in the complaint qualify as "final agency action[s]" that may be subject to judicial
review, particularly given the lack of specificity over what medical treatment Plaintiff seeks that he
has not received. See, e.g., Eads v. Fed. Bureau of Prisons, No. CV1918394NLHMJS, 2021 WL
1085459, at *3-4 (D.N.J. Mar. 22, 2021) (APA only permits review of "final agency action[s] for which
there is no other adequate remedy in a court," BOP's decisions as to ongoing medical care are not final
action and are not reviewable under the APA, and APA review also inappropriate as other relief,
including an FTCA or civil rights claim as to denial of medical care is available). But see Tenda v.
United States, No. 2:23-CV-438, 2024 WL 3650462, at *14 (D. Vt. Aug. 5, 2024) (detainee's claims
regarding ICE's medical practices and detainee's inadequate medical treatment were sufficient to state
a claim of final agency action). Further, some courts have found the waiver does not apply in actions
like this one where monetary relief is sought in addition to equitable relief. See Sabir v. Licon-Vitale,
No. 3:20-CV-01552 (VAB), 2022 WL 1291731, at *5 (D. Conn. Apr. 29, 2022) (APA waiver not
applicable because plaintiff sought monetary relief in addition to injunctive and declaratory relief).
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First, as an initial matter, Plaintiff does not specify what injunctive relief he
seeks. 	Plaintiff 	wants 	"medical 	attention" 	regarding 	the 	"planted 	microchips
throughout [his] body[.]" ECF No. 1 at 5. But besides a vague request for a "physical
examination[,]" Plaintiff does not explain what specific medical treatment he wants.
See, e.g., Taylor v. NYC, No. 20-CV-5036 (MKV), 2020 WL 4369602, at *3 (S.D.N.Y.
July 30, 2020) (dismissing claims against certain defendants because it was "unclear
... what injunctive relief, if any" the plaintiff sought from those defendants).
Moreover, the core of Plaintiffs claims-that he has been implanted with
microchips that are causing him to hear voices and suffer other health effects-
appear to be frivolous. See, e.g., Velasquez v. Curry, No. 25-CV-3326 (LLS), 2025 WL
1796564, at *2 (S.D.N.Y. June 26, 2025) ("Plaintiffs allegations [regarding being
surveilled by an implanted microchip] amount to conclusory claims and suspicions
that are not plausible and must be dismissed as frivolous." (citing, inter alia, Kraft v.
City of New York, 823 F. App'x 62, 64 (2d Cir. 2020))). And to the extent his claims
regarding denial of medical treatment and attention are not frivolous, they do not
appear to be supported by the complaint or medical records attached to it. 3 Indeed,
the attached medical records create further confusion as to the request for injunctive
3 To establish "a claim arising out of inadequate medical care [under Due Process], a [detainee] must
prove 'deliberate indifference' to [his] serious medical needs." Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998) (quoting Estelle, 429 U.S. at 104). This standard includes both (1) an objective "medical
need" element measuring the severity of the alleged deprivation, and (2) a subjective "deliberate
indifference" element measuring whether the prison official acted with a sufficiently culpable state of
mind. See Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). "It is well-established that mere
disagreement over the proper treatment does not create a constitutional claim," and that "negligence,
even if it constitutes medical malpractice, does not, without more, engender a constitutional claim."
Chance, 143 F.3d at 703.
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relief, as the records indicate Plaintiff has been seen for numerous sick call, mental
health, 	and 	other 	medical 	appointments, 	wherein 	Plaintiff has 	been 	able 	to
communicate his concerns. ECF No. 1-1. Thus, to the extent that the complaint may
be read as requesting a preliminary injunction 4 or other injunctive relief, that request
is denied without prejudice.
CONCLUSION
For the reasons above, Plaintiffs motion to proceed in forma pauperis, ECF
No. 2, is granted. After screening the complaint under 28 U.S.C. § 1915(e)(2)(B), the
Court dismisses Plaintiffs claims for lack of subject matter jurisdiction and for failure
to state a 	claim, 	but with leave to 	amend. 	See Arutyunyan v. 	Fed. 	Bureau of
Investigation, New York State, No. 17-3831, 2018 WL 11403559, at *1 (2d Cir. Mar.
26, 2018) (vacating and remanding with instructions to permit an amended complaint
where the district court dismissed the complaint pursuant to Rule 12(h)(3) and 28
U.S.C. § 1915(e)(2)(B)(i) without leave to amend). Plaintiff may file an amended
complaint by no later than 45 days from the date of this order.
Plaintiff is advised that an amended complaint completely replaces the prior
complaint in the action, and thus it "renders [any prior complaint] of no legal effect."
4 "To obtain a preliminary injunction, a party must show (1) irreparable harm; (2) either a likelihood
of success on the merits or both serious questions on the merits and a balance of hardships decidedly
favoring the moving party; and (3) that a preliminary injunction is in the public interest." State Farm
Mutual Automobile Insurance Co. v. Tri-Borough NY Medical Practice P.C., 120 F.4th 59, 79 (2d Cir.
2024). The movant must make a "clear showing" that each of these elements is met. Speckman v.
Fabrizio, 547 F. Supp. 3d 239,244 (N.D.N.Y. 2021) (quoting Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 22 (2008)).
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Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Therefore, any amended
complaint must include all allegations against each Defendant so that the amended
complaint stands alone as the only complaint in this action.
Plaintiff is further advised that he has been granted leave to amend only those
claims addressed above. A district court has the inherent authority to dismiss claims
that exceed the scope of the court's order granting leave to amend. 	See Palm Beach
Strategic Income, LP v. Salzman, 457 F. App'x 40, 43 (2d Cir. 2012) (summary order)
(collecting cases).
ORDER
IT HEREBY IS ORDERED that Plaintiffs motion to proceed IFP, ECF No. 2,
is granted; and it is further
ORDERED that the complaint, ECF No. 1, is dismissed with leave to file an
amended complaint as directed above by no later than 45 days from the date of
this order; and it is further
ORDERED that the Clerk of the Court shall send to Plaintiff with this order a
copy of the original complaint, a blank complaint form, 	and the instructions for
preparing an amended complaint; and it is further
ORDERED that if Plaintiff does not file an amended complaint by the deadline
set forth above, the claims dismissed under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b),
will remain dismissed and the Clerk of the Court shall close this case without further
order; and it is further
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ORDERED that pursuant to Western District of New York Local Rule of Civil
Procedure 5.2(d), Plaintiff must immediately notify the Court in writing each time
his address changes. Failure to do so may result in dismissal of the action with
prejudice.
Dated: 	January 	\ ~ 	, 2026
Rochester, New York
13
G~~H0N.MED1THA.VACCA
UNITED STATES DISTRICT JUDGE
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