John Mackovich v. United State
Filing
PER CURIAM OPINION FILED - THE COURT: JAMES B. LOKEN, DIANA E. MURPHY and DUANE BENTON (PUBLISHED) [3750229] [10-1903]
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1903
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John Vincent Mackovich,
Appellant,
v.
United States of America,
Appellee.
*
*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
*
[PUBLISHED]
*
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Submitted: January 6, 2011
Filed: January 31, 2011
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
John Mackovich, an inmate at the Medical Center for Federal Prisoners in
Springfield, Missouri (MCFP), commenced this Federal Tort Claims Act (FTCA)
action in August 2008, alleging improper treatment of injuries that occurred in 2004
at a federal penitentiary in California. In June 2009, he filed an amended complaint
abandoning his original claim and alleging that MCFP employees and health care
providers negligently allowed an inmate worker to create a hazardous area in the
dining room, causing a slip and fall, and then failed to adequately treat the serious
injuries resulting from this fall. Mackovich now appeals the district court’s dismissal
of these claims without prejudice. We affirm in part, reverse in part, and remand.
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Date Filed: 01/31/2011 Entry ID: 3750229
The district court dismissed Mackovich’s medical malpractice claim without
prejudice because he failed to file an affidavit stating that he had obtained the written
opinion of a legally qualified health care provider which states that the defendant
provider failed to use reasonable care. Reviewing the dismissal de novo, we agree.
See Mo. Rev. Stat. § 538.225.6; Goodman v. United States, 2 F.3d 291, 292 (8th Cir.
1993) (law of State where acts complained of occurred applies in FTCA cases).
The district court dismissed Mackovich’s negligent premises claim for failure
to exhaust the agency’s applicable administrative remedies, as 28 U.S.C. § 2675(a)
requires. The record reflects that Mackovich filed a lengthy Claim for Damage,
Injury, or Death on the proper Bureau of Prisons form on July 29, 2008. On appeal,
the government argues that this administrative claim “does not allege the premises
liability negligence he raised in his amended complaint.” We disagree. On page 3
of the narrative attached to his administrative claim, Mackovich alleged that, on
January 2, 2007, he “Slipped and Fell on a Freshly mopped Greasy Floor that did not
have a warning sign posted due to the Negligence of Officer Flanners, as a Direct
result he Sustained Serious and Permanent [injuries].”
Unlike the government, the district court did not ignore this allegation. Rather,
the court concluded that the “mere mention of the condition of the floor amid pages
of claims alleging [medical malpractice] does not satisfy plaintiff’s burden of
demonstrating that he has exhausted his administrative remedies with regards to the
premises liability claim.” We have considerable sympathy for this ruling, which is
an accurate portrayal of the voluminous administrative claim. But the analysis
overlooks subsequent events. After reviewing the administrative claim, MCFP’s
attorney assigned to investigate the claim requested additional information.
Mackovich’s lengthy November 10, 2008, response included the following:
8. Claim III C.O. Frealy, Is Jointly Liable For Mackovich’s Slipping
And Falling, on a wet Greasy floor in the Hospital dining Room,
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resulting in him Sustaining Serious Lumbar Spine Injuries, as a
proximate result of Frealy’s Negligence to Train and supervise This new
inmate Who Left grease on the floor and failed to post a Warning Sign
After Mopping the Hot Bar Area. Had Flanners Taken due care to train
or Supervise this inmate while he was standing 15 feet away and looking
at the hot bar, and directed him to post a warning sign then Mackovich
would have seen the sign and walked another direction, and would not
have fallen as hard during his Seizure and would not have sustained
such severe injuries.
On February 10, 2009, the Bureau of Prisons denied the claim in a letter stating,
“Investigation of your claim did not reveal you suffered any personal injury as a result
of the negligent acts or omissions of Bureau of Prisons employees acting within the
scope of their employment.” On this record, we must assume the investigation
included Mackovich’s detailed allegations of premises liability. See Farmers State
Sav. Bank v. Farmers Home Admin., 866 F.2d 276, 277 (8th Cir. 1989) (concluding
that claimant’s response to agency inquiry satisfied the notice-of-claim requirement).
Accordingly, we conclude that Mackovich’s properly exhausted the premises
liability claim. We reject the government’s contention that the claim was premature
because this action was initially filed in August 2008, before the administrative claim
was denied. As the district court recognized, Mackovich abandoned his initial claim
and commenced an entirely new action when he was granted leave to file his July
2009 amended complaint. See Duplan v. Harper, 188 F.3d 1195, 1199-1200 (10th
Cir. 1999); cf. Barnes v. Briley, 420 F.3d 673, 677-78 (7th Cir. 2005) (exhaustion of
remedies under the Prison Litigation Reform Act).
Accordingly, we reverse the district court’s dismissal of the premises liability
claim and remand for further proceedings.
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Date Filed: 01/31/2011 Entry ID: 3750229
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