Opinion
3:01-CV-1947-D
March 5, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is an action brought under the Federal Tort Claims Act for wrongful acts and omissions committed by federal agents in their official capacities. 28 U.S.C. § 1331 and 2671 et seq Insofar as Plaintiff sues the federal agents in their individual capacities, the action is construed as one brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Parties. Plaintiff is a federal inmate presently incarcerated at the Federal Correction Institution (FCI) in Seagoville, Texas. He was incarcerated at FCI El Reno in Oklahoma when he filed the complaint in this action. The events at issue in this action occurred at FCI Seagoville.
Defendants are an unidentified physician assistant at FCI Seagoville, Warden John M. Tombone, and the United States of America. The court has not issued process in this case. However, on November 14, 2001, the magistrate judge issued a questionnaire to Plaintiff who filed his answers on December 14, 2001. On February 6, 2002, Plaintiff submitted supplemental answers to the questionnaire.
Statement of Case: The complaint alleges that the unidentified physician assistant was negligent in failing to provide Plaintiff with adequate medical care for a February 20, 1997 self inflicted injury to his left shoulder. Plaintiff asserts that he did not discover he had a broken bone until May 2000, when the medical staff finally took an x-ray of his left shoulder. The complaint further alleges that Warden Tombone failed to protect Plaintiff from the self-inflicted injury by housing him in a more secure cell, although he knew that Plaintiff was psychotic. Plaintiff requests compensatory damages for his pain and suffering.
The material facts on which Plaintiff's complaint is predicated are as follows: Shortly after his arrival at FCI Seagoville on February 10, 1997, Plaintiff was diagnosed with a bipolar disorder, prescribed medication for his mental condition, and placed in "lock up." According to Plaintiff Warden Tombone and his staff did not take any precautions to prevent Plaintiff from injuring himself such as by placing him in a facility for psychiatric patients. Plaintiff alleges he was agitated on a daily basis and that Tombone and his staff repeatedly ignored his requests for medical assistance On February 20, 1997, after Tombone's staff again agitated him, Plaintiff attempted to break down a steel-cell door injuring his left shoulder. The unidentified physician assistant, who examined Plaintiff's shoulder shortly after his injury, advised him that the injury was not serious. The physician assistant, however, did not take an x-ray of the left shoulder and Plaintiff's requests to see a doctor were allegedly ignored. (Complaint at 2).
The claim presented to the Federal Bureau of Prisons reflects that Plaintiff's injury occurred on February 18, 1997. (Suppl. Answer to Questionnaire, filed on Feb. 6. 2002).
In May 2000, more than three years after the injury, the medical staff at his prison x-rayed Plaintiff's left shoulder for the first time. (Id.). Plaintiff alleges he saw a broken bone in the x-ray, which will require surgery. (Suppl. Answer to Questionnaire, Nov. 1, 2000 form for Claim for Damage, Injury or Death).
On October 28, 2000, Plaintiff mailed a Claim for Damage, Injury or Death to the Federal Bureau of Prisons (BOP), which was received on November 1, 2000. (Id.). On April 30, 2001, the BOP denied Plaintiff's claim concluding it was barred by the statute of limitations. (Suppl. Answer to Questionnaire, BOP decision issued on Apr. 30, 2001 at 1).
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief").
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact."Neitzke v. Williams, 490 U.S. 319, 325 (1989) A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Insofar as Plaintiff seeks to bring an action under the Federal Tort Claims Act (FTCA) for the negligence of the physician assistant, his claim is barred by the statute of limitations. "The FTCA applies a two-year statute of limitations from the accrual date of the cause of action." Brown v. Nations Bank Corp., 188 F.3d 579, 589 (5th Cir. 1999),cert. denied, 530 U.S. 1274 (2000). "A cause of action accrues, under federal law, `when the plaintiff knows of or has reason to know of the injury which is the basis of the action.'" Id. at 589-90 (quoting Moore v. McDonald, 30 F.3d 616, 620-21 (5th Cir. 1994)).
Plaintiff knew he sustained an injury to his left shoulder in February 1997 when he attempted to break a steel door, notwithstanding the fact that he did not appreciate the severity of the injury. Plaintiff filed an administrative claim with the BOP on October 28, 2000. The BOP denied Plaintiff's claim on April 30, 2001. (Suppl. Answer to Questionnaire). Because Plaintiff presented his claim more than two-years after the event giving rise to the complaint, it is barred by the two-year statute of limitations. See Brown, 188 F.3d at 590 (affirming dismissal of assault, false imprisonment, and invasion of privacy claims because they were presented to the federal agency more than two years after the events giving rise to the complaint).
Liberally construing the complaint to raise Bivens claims against the physician assistant for negligent medical care and against Warden Tombone for failing to protect Plaintiff from self inflicted injuries, these claims are also barred by the statute of limitations. See Pena v. United States, 157 F.3d 984, 987 (5th Cir. 1998) (pro se action presenting the facts necessary for a Bivens action should not be dismissed unless the party has been granted leave to amend the complaint to raise a Bivens claim). A Bivens action is controlled by the applicable state statute of limitations. See Brown, 188 F.3d at 590. The Fifth Circuit has held that the statute of limitations on a Bivens claim is two years. Id. The limitation period began to run on February 20, 1997, the date on which Plaintiff allegedly injured his left shoulder by breaking a steel door, and expired two years later on or about February 20, 1999.
Plaintiff has named the United States in addition to the physician assistant and Warden Tombone. "The principle of sovereign immunity protects the federal government from suit except insofar as that immunity is waived" Pena 157 F.3d at 986. The government has waived immunity only with respect to claims made in accordance with the terms of the Federal Tort Claims Act. As noted above at pages 4-5, supra, an FTCA claim is barred by limitations.
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court dismiss Plaintiff's complaint with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.