Veren v. USA et al

Filing 19

ORDER of Dismissal. ORDERED that the Bivens and FTCA false imprisonment claims are dismissed with prejudice. Defendants Harley G. Lappin, Mary Herndon, Mona Smith, Dr. Tsuda, Dr. Kraus, Mark Ippolito, and John and Jane Does are terminated as impro perly named parties to this action. The remaining FTCA medical malpractice claim as asserted against the United States shall be assigned to District Judge Wiley Y. Daniel, pursuant to D.C.COLO.LCivR 40.1C.1., and to Magistrate Judge Michael J. Watanabe, by Judge Lewis T. Babcock on 8/15/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00235-BNB
DAVID W. VEREN,
Plaintiff,
v.
THE UNITED STATES OF AMERICA, DEPARTMENT OF JUSTICE,
HARLEY G. LAPPIN, Director, Federal Bureau of Prisons,
MARY HERNDON, Administrative Service, U.S. Marshal Service,
JOHN OR JANE DOES 1-5, Administrative Service, U.S. Marshal Service,
MONA SMITH, ISM OFFICER, Federal Correctional Institution, Florence,
FNU TSUDA, Staff Doctor, Federal Correctional Institution, Englewood,
FNU KRAUS, Staff Doctor, Federal Correctional Institution, Florence, and
MARK IPPOLITO, Health Services Administrator, F.D.C., Englewood,
Defendants.

ORDER OF DISMISSAL

Plaintiff, David W. Veren, currently resides in Woodland Park, Colorado. Mr.
Veren, acting pro se, initiated this action by filing a Complaint that he amended on April
3, 2013. After review of the Amended Complaint, Magistrate Judge Boyd N. Boland
determined that Mr. Veren failed to comply with the requirements of Fed. R. Civ. P. 8.
Specifically, Magistrate Judge Boland found that Mr. Veren failed to provide a short and
plain statement of the claims showing that he is entitled to relief. Magistrate Judge
Boland also found that the Complaint was repetitive and on its face barred in part under
28 U.S.C. § 2401(b). Magistrate Judge Boland directed Mr. Veren to file a Second
Amended Complaint that complies with Rule 8. Mr. Veren was instructed to present his
claims in a manageable format.

On May 6, 2013, Mr. Veren filed a Second Amended Complaint. In addition to
presenting his claims on a Court-approved form, Mr. Veren attached three separate
documents, including: (1) a Certificate of Review by Mr. Veren that claims a medical
doctor evaluated his injuries and determined the injuries are due to the lack of proper
medical treatment at the time of the injuries; (2) a Notice of an Administrative Tort Claim
that is dated August 2012 and addresses both Mr. Veren’s personal injury and
“overdetention” claims; and (3) a Request for Reconsideration of the BOP’s denial of his
FTCA claims by the Department of Justice based on additional evidence of equitable
tolling of the statute of limitations for the claims accrued.
In the Court-approved form, Mr. Veren sets forth eight claims as follows:
1. Overdetention in Violation of Eighth and Fifth
Amendment;
2. Inaccurate Notice of Detainer in Violation of Fifth
Amendment;
3. Unlawful Search and Seizure in Violation of Fourth
Amendment due to Invalid Detainer;
4. Deliberate Indifference in Violation of Eighth Amendment
due to Failure to Acknowledge Invalid Detainer;
5. Failure to Properly Supervise and Train Resulting in
Deliberate Indifference and Deprivation of Due Process;
6. False Imprisonment Claim Against the United States;
7. Negligent Handling of Detainer Claim Against the United
States; and
8. Negligent, Medical Malpractice Claim Against the U.S.
Marshal Service.
Mr. Veren is asserting that Defendants Herndon and Smith violated his Fourth,
Fifth, and Eighth Amendment rights by issuing and maintaining an inaccurate notice of

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detainer and disregarding multiple notifications that his incarceration at the Colorado
Department of Corrections had been terminated. Mr. Veren further asserts that
Defendant Lappin violated his Fifth and Eighth Amendment rights by failing to properly
supervise and train Bureau of Prisons’ (BOPs’) employees regarding overdetention of
inmates. Mr. Veren further asserts a claim against the United States for his false
imprisonment from August 29, 2005, until February 1, 2007, based on Defendants
Herndon, Smith, and Lappin’s failure to follow agency directives and constitutional
mandates. Finally, Mr. Veren asserts that the U.S. Marshal Service, including Dr.
Tsuda, Dr. Kraus, and Mark Ippolito, were negligent and engaged in medical
malpractice when they failed to inform him of the severity of his lumbar spine injury and
diagnosed his pain and complications as back spasms. Mr. Veren seeks compensatory
damages.
First, the Court will address Mr. Veren’s overdetention claim asserted in Claims
One through Five. Mr. Veren’s assertion that his Fourth, Fifth, and Eighth Amendment
rights were violated is properly asserted under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. § 1331. A Bivens action
is subject to the limitation period, the same as an action brought under 42 U.S.C. §
1983, and the limitation period is set by the state personal injury statute where the
cause of action accrues. Roberts v. Barreras, 484 F.3d 1236, 1238 (10th Cir. 2007). In
Colorado, the limitation period to initiate a cause of action for a personal injury is two
years. See Colo. Rev. Stat. § 13-80-102
“Although state law establishes the statute of limitations, federal law determines
when plaintiffs’ federal Bivens claims accrue[ ].” Van Tu v. Koster, 364 F.3d 1196, 1199
(10th Cir. 2004) (citation omitted). “Under federal law, the statute of limitations on a
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Bivens claim begins to run when the plaintiff knows or has reason to know of the
existence and cause of the injury which is the basis of his action.” Id. (internal quotation
marks and citation omitted). “[I]t is not necessary that a claimant know all of the
evidence ultimately relied on for the cause of action to accrue.” Baker v. Board of
Regents of State of Kansas, 991 F.2d 628, 632 (10th Cir. 1993) (citation omitted). “A
civil rights action accrues when facts that would support a cause of action are or should
be apparent.” Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995) (citations omitted).
“While the statute of limitations is an affirmative defense, when the dates given in
the complaint make clear that the right sued upon has been extinguished, the plainitff
has the burden of establishing a factual basis for tolling the statute.” Aldrich v.
McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980). “[T]here are
situations where, as here, the evidence before the court ‘clearly and convincingly
persuade[s] the trial judge that plaintiff in the exercise of reasonable diligence would
have discovered the fraud at such a time as to bar the action.’ ” See Shields v.
Boettcher Inv. Corp., 13 F.3d 406, 1993 WL 482902 at *1 (10th Cir. Nov. 22, 1993)
(quoting Ohio v. Peterson, Lowry, Rall, Barber & Ross, 651 F.2d 687, 694 (10th Cir.),
cert. denied, 454 U.S. 895 (1981). In these cases it is “proper to dispose of the issue as
a matter of law.” Shields, at *1. “[S]ua sponte dismissal of a meritless complaint that
cannot be salvaged by amendment comports with due process and does not infringe
the right of access to the courts.” Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001).

“Although dismissals under [Fed. R. Civ. P.] 12(b)(6) typically follow a motion to
dismiss . . . , a court may dismiss sua sponte when it is patently obvious that the plaintiff
could not prevail on the facts alleged, and allowing him an opportunity to amend his
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complaint would be futile.” Hall, 935 F.2d 1106, 1109-10 (10th Cir. 1991) (internal
quotations and citations omitted). A district court may consider affirmative defenses sua
sponte when the defense is obvious from the face of the complaint. Fratus, 49 F.3d at
674-75, (citing Yellen v. Cooper, 828 F.2d 1471, 1476 (10th Cir. 1987) (district court
may consider affirmative defense sua sponte only when the defense is “obvious from
the face of the complaint” and “[n]o further factual record [is] required to be developed.”)

Mr. Veren does not address the statute of limitations issue in the Complaint form.
He does concede, however, in the Request for Reconsideration document attached to
the Complaint, that his false imprisonment claim accrues at the earliest when a
favorable termination of the imprisonment occurs. May 6 Compl. at 40. Even finding
that the favorable termination did not occur until February 1, 2007, when Mr. Veren
asserts he was released from the BOP, almost six years passed between the time the
overdetention claim accrued and the date Mr. Veren filed this action.
It is clear from the face of the May 6 Complaint that Mr. Veren knew or had
reason to know of the existence and cause of any injury he alleges he incurred due to
the alleged overdetention. Mr. Veren claims that on multiple occasions prior to the
February 1 release he sent notifications to Defendant Smith that his state conviction had
exhausted and any continuing detainment in the BOP for the supervised release
violation was void.
State law usually governs the application of equitable tolling in a federal civil
rights action. Roberts, 484 F.3d at 1240. The State of Colorado recognizes that “equity
may require a tolling of the statutory period where flexibility is required to accomplish
the goals of justice.” Braxton v. Zavaras, 614 F.3d 1156, 1161 (10th Cir. 2010) (quoting
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Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996). Under Dean
Witter, equitable tolling is limited “to situations in which either the defendant has
wrongfully impeded the plaintiff’s ability to bring the claim or truly extraordinary
circumstances prevented the plaintiff from filing his or her claims despite diligent
efforts.” Dean Witter, 911 P.2d at 1099.
Mr. Veren does not specifically address equitable tolling as it may relate to his
Bivens claims. He does, however, with respect to his medical malpractice claim, assert
that under the Social Security Act he was declared permanently disabled on April 27,
1996, and he does not have a legal guardian, which he claims provides a basis for
tolling the time under Colo. Rev. Stat. §§ 13-80-103 and 105(3).
Mr. Veren does not assert that Defendants wrongfully impeded his ability to bring
a claim. Even without knowing the basis for his permanent disability, it is clear that
whatever the permanent disability may be there were no extraordinary circumstances
that prevented him from filing a claim despite diligent efforts. Mr. Veren was capable
despite any disability to submit multiple notifications (copies are attached to the
Complaint) to Defendant Smith regarding the false imprisonment. Mr. Veren also was
able to appeal his request for an administrative remedy to the warden, which resulted in
his release on February 1, 2007. The Court, therefore, from the face of the May 6
Complaint, finds nothing that Defendants did impeded Mr. Veren from filing a Bivens
claim regarding his imprisonment or that extraordinary circumstances existed over the
past six years which precluded him from filing an action.
As for Mr. Veren’s false imprisonment and medical malpractice claims asserted

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in Claims Six, Seven, and Eight,1 the Court construes the claims as asserted pursuant
to the Federal Tort Claims Act (FTCA). Mr. Veren states that his FTCA claims were
denied on September 6, 2012, entitling him to file an action in this court within six
months. See Jan. 1, 2013 Compl., ECF No. 1, at 2.
“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” Federal Deposit Ins. Corp. V. Meyer, 510 U.S. 471, 475 (1994).
“Through the FTCA, the United States waived its immunity to suits ‘for money damages
. . . for injury or loss of property . . . caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or
employment . . . .” Dahl v. United States, 319 F.3d 1226, 1228 (10th Cir. 2003) (quoting
28 U.S.C. § 1346(b)(1)) (citing 28 U.S.C. § 1346(b)(1)). Under 28 U.S.C. § 2401(b),
“[a] tort claim against the United States shall be forever barred unless it is
presented in writing to the appropriate Federal agency within two years
after such claim accrues . . . .
This Court must dismiss an FTCA claim for lack of subject matter jurisdiction if a litigant
does not satisfy the time requirement under § 2401(b). Casias v. United States, 532
F.2d 1339, 1340 n. 1 (10th Cir. 1976).
Prior to considering the merits of the FTCA claims, the Court must determine
when the time for filing a claim with the appropriate federal agency started to run. To do
this the Court first must ascertain when the claim accrued. “Federal law governs the
point at which a cause of action accrues under the FTCA.” Hoery v. United States, 324
F.3d 1220, 1222 (10th Cir. 2003) (citing Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir.
1987) (“federal law controls questions relating to accrual of federal causes of action”).

1

Mr. Veren states that Claim Eight is asserted against the U. S. Marshal Service,
but the Marshal service is not a named defendant.
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“For permanent torts, the claim accrues the later of when the injury first occurs or when
the plaintiff learned or should have learned of his injury and its cause.” Hoery, 324 F.3d
at 1222 (citing Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998); Arvayo v.
United States, 766 F.2d 1416, 1419 (10th Cir. 1985).
With respect to Mr. Veren’s false imprisonment claim, as determined above, the
time for filing an FTCA claim began to run when Mr. Veren was released from the BOP
on February 1, 2007. Mr. Veren did not file his FTCA claim until June 6, 2012, over five
years after the injury occurred. Because “[t]he limitation period in 28 U.S.C. § 2401(b)
is not to be extended for equitable considerations,” see Anderberg v. United States, 718
F.2d 976, 977 (10th Cir. 1983), the Court lacks subject mater jurisdiction to review Mr.
Veren’s false imprisonment FTCA claim and the claim will be dismissed.
A medical malpractice claim “accrues when the claimant discovers, or in the
exercise of reasonable diligence should have discovered, the alleged malpractice.”
Casias, 532 F.2d at 1340 (internal quotations and citation omitted). Mr. Veren states he
“suffered a serious injury to his lumbar spine . . . resulting in paralysis, when he slipped
on ice and landed on this back on the edge of a concrete slab . . . during a facility
shakedown.” May 6 Compl. at 10. Mr. Veren asserts that he incurred the injury on
November 12, 2003, and that the U.S. Marshal Service medical personnel concealed
the severity of the injury and told him the pain and complications were due to his age.
Mr. Veren further asserts that he was not aware of the severity of the injury and the true
cause of his pain and complications until August 22, 2011, when his family doctor
determined that the severity of the injury could have been minimized had he received
proper medical treatment at the time of the injury. Based on these initial findings, this
FTCA claim as asserted against the United States will be assigned to Judge Wiley Y.
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Daniel pursuant to D.C.COLO.LCivR 40.1C.1,and to Magistrate Judge Michael J.
Watanabe, for further review of the accrual time period and if necessary the merits of
the claim.
Finally, although Mr. Veren has asserted jurisdiction pursuant to the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq., nothing he raises in the
May 6 Complaint addresses a claim pursuant to the Act. Therefore, the Court finds no
basis for an ADA claim. Also, because the Bivens claims and the false imprisonment
FTCA claim will be dismissed and the only properly named defendant in the medical
malpractice claim is the United States, all remaining defendants will be dismissed.
Accordingly, it is
ORDERED that the Bivens and FTCA false imprisonment claims are dismissed
with prejudice. It is
FURTHER ORDERED that Defendants Harley G. Lappin, Mary Herndon, Mona
Smith, Dr. Tsuda, Dr. Kraus, Mark Ippolito, and John and Jane Does are terminated as
improperly named parties to this action. It is
FURTHER ORDERED that the remaining FTCA medical malpractice claim as
asserted against the United States shall be assigned to District Judge Wiley Y. Daniel,
pursuant to D.C.COLO.LCivR 40.1C.1., and to Magistrate Judge Michael J. Watanabe.
DATED at Denver, Colorado, this 15th day of

August , 2013.

BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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