Browning v. Davis et al

Filing 54

ORDER overruling Mr. Browning's objections 51 , adopting 50 Report and Recommendations, and granting 40 Motion to Dismiss, by Chief Judge Marcia S. Krieger on 9/25/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-01203-MSK-KMT
ELRADER BROWNING, JR.,
Plaintiff,
v.
BLAKE DAVIS, Warden;
LOUIS MILUSNIC, Associate Warden;
MARK MUNSON, Associate Warden;
MARK COLLINS, Warden Assistant;
RUSS KRIST, Captain;
DAN SPROUL, Unit Manager; and
JEFF GEORGE, Discipline Hearing Officer,
Defendants.

ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE

THIS MATTER comes before the Court on the Recommendation (# 50) by the
Magistrate Judge that the Motion to Dismiss (# 40) filed by Defendants Blake Davis, Louis
Milusnic, Mark Munson, Mark Collins, Russ Krist, Dan Sproul, and Jeff George, be granted.
The Plaintiff, Elrader Browning, Jr., filed objections (# 51) to the Recommendation, to which the
Defendants responded (# 52).
I.

Background
The Court summarizes factual allegations contained in the Amended Complaint (# 16).

Elrader Browning Jr. is a federal inmate at the United States Penitentiary, Administrative
Maximum (“ADX”) in Florence, Colorado. On September 14, 2010, Mr. Browning was in the

“step-down program” at ADX.1 He refused to accept a cellmate, received an incident report, and
was moved to the special housing unit (“SHU”) at ADX.
Two other inmates, one white and one “Spanish,” also refused to accept cellmates and
were moved to the SHU. Both left the SHU in November 2010. Mr. Browning, however,
remained in the SHU. He submitted a Request for Administrative Remedy regarding his
confinement in the SHU, which ADX received on April 13, 2011. In a response dated May 12,
2011, the warden denied the Request. Mr. Browning was held in the SHU until September 29,
2011.
In May 2013, Mr. Browning filed suit against Defendants, various individuals he alleges
were involved in, or otherwise responsible for, his detention in the SHU. His amended
complaint contains three claims seeking money damages. Defendants subsequently filed a
motion to dismiss, which was referred to the Magistrate Judge.
The Magistrate Judge recommended that the motion to dismiss be granted. The
Recommendation concludes that the statute of limitation bars Mr. Browning’s first two claims,
made pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). The Recommendation analyzed the third claim pursuant to the Federal Tort Claims
Act (“FTCA”), and determined that the Court lacks jurisdiction over the claim. Mr. Browning
filed a Motion for Reconsideration (# 51), which the Court construes as objections to the
Magistrate Judge’s recommendation. The Defendants filed a response (# 52).
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“ADX has a stratified system of housing inmates known as the ‘step-down
program.’ If an inmate meets certain criteria, he is eligible to be removed from
the general prison population (‘General Population’) and to progress through
various ‘units’ that feature decreasing levels of restriction: Intermediate (J–Unit),
Transitional (K–Unit), and Pre–Transfer (D/B Unit). An inmate who successfully
progresses through the Pre–Transfer Unit may be transferred out of ADX to
another, less restrictive BOP facility.”

Deberry v. Davis, 460 F. App’x 796, 797 (10th Cir. 2012) (unpublished).
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II.

Standard of Review
When a magistrate judge issues a recommendation on a dispositive motion, the parties

may file specific, written objections within fourteen days after being served with a copy of the
recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The district court must make a
de novo determination of those portions of the recommendation to which timely and specific
objection is made. United States v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir.1996).
The Court is mindful of Mr. Browning’s pro se status and, accordingly, construes his
filings liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Such liberal construction,
however, is intended merely to overlook technical formatting errors and other defects in the use
of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Pro se status does not relieve Mr. Browning of the duty to comply with the various rules and
procedures governing litigants and counsel or the requirements of the substantive law, and in
these regards, the Court will treat him according to the same standard as counsel licensed to
practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993);
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994).
III.

Analysis
The Court has carefully reviewed the Recommendation and Mr. Browning’s objections to

the recommended resolution of his claims. Upon de novo review, the Court reaches the same
conclusion as the Magistrate Judge, and finds the objections to be without merit.
a. Statute of Limitation
Mr. Browning contends that the Magistrate Judge erred in determining the dates upon
which his Bivens claims accrued. The statute of limitations on a Bivens claim begins to run when

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the plaintiff knows or has reason to know of the existence and cause of the injury that forms the
basis for the lawsuit. Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir. 2004). “A plaintiff has
reason to know of his injury when he should have discovered it through the exercise of
reasonable diligence.” Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963,
969 (10th Cir. 1994). Plaintiffs do not need to know the full extent of their injuries before the
statute of limitation begins to run. Id.
Mr. Browning’s first claim alleges that he was held in the SHU without due process. The
Magistrate Judge concluded that the claim accrued on September 14, 2010, when Mr. Browning
was given an incident report and transferred to the SHU. Mr. Browning objects that he did not
know why he was being held in the SHU, and thus whether he could challenge his stay in the
SHU through suit, until he received a response to his Request for Administrative Remedy in May
2011. Mr. Browning contends that he could not proceed with the suit until he received the
response and that his claim could not accrue until that point.
Kripp v. Luton, 466 F.3d 1171, 1175-76 (10th Cir. 2006), is helpful to the Court’s
analysis. In Kripp, the plaintiff alleged that the defendants illegally searched and seized his
property. Id. at 1174. The Tenth Circuit concluded that the district court “properly” determined
that the plaintiff’s claim accrued “when the police seized his tools.” Id. at 1175. “At the very
latest,” the court said, the “claim would have accrued several months later,” when the plaintiff
“filed for return of his property.” Id. at 1175-76. By extension, the Magistrate Judge was correct
that Mr. Browning’s due process claim accrued when he was given an incident report and
transferred to the SHU. Similarly, at the very latest, the claim accrued on April 13, 2011, when
ADX received Mr. Browning’s Request. Even assuming that later date applies, the two-year
statute of limitation bars Mr. Browning’s claim in this suit filed in May 2013.

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With regard to Mr. Browning’s second claim, an equal protection claim premised on the
allegation that Mr. Browning remained in the SHU significantly longer than two similarlysituated inmates, the Magistrate Judge found that the claim accrued on November 4, 2010.
According to the complaint, a white inmate was removed from the SHU on November 4, 2010,
and a “Spanish inmate” was removed the same month. In his response to the motion to dismiss
and in his objections, Mr. Browning seems to suggest that there were additional inmates in SHU,
and thus he could not have been aware of his racial discrimination claim in November 2010.
However, Mr. Browning’s complaint states that there were two similarly-situated inmates in the
SHU, and they were removed from the SHU in November 2010. Thus Mr. Browning had reason
to know of the existence and cause of the injury which form the basis of his claim in November
2010, more than two years before he filed his initial complaint. See Van Tu, 364 F.3d at 1199.
The statute of limitation also bars Mr. Browning’s second claim.
b. Subject Matter Jurisdiction
The Magistrate Judge recommended dismissal of Mr. Browning’s third claim for failure
to establish that the Court has jurisdiction to hear the claim. The Magistrate Judge properly
construed Mr. Browning false imprisonment claim as asserted under the FTCA, because an
action against the United States under the FTCA provides the exclusive remedy for any injury
caused by the negligent or wrongful acts of federal employees acting within the scope of their
employment. Woodruff v. Covington, 389 F.3d 1117, 1123 n.6 (10th Cir. 2004); see also 28
U.S.C. § 2679(b)(1). Regardless of the parties’ arguments and pleadings, the Court must satisfy
itself as to its own jurisdiction. See Citizens Concerned for Separation of Church & State v. City
& Cnty. of Denver, 628 F.2d 1289, 1301 (10th Cir. 1980). Mr. Browning bears the burden to

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show jurisdiction by a preponderance of the evidence. U.S. ex rel. Hafter D.O. v. Spectrum
Emergency Care, Inc ., 190 F.3d 1156, 1160 (10th Cir. 1999).
The FTCA provides a broad waiver of the United States’ sovereign immunity. See
Millbrook v. United States, 133 S. Ct. 1441, 1443 (2013). However, “failure to name the United
States as defendant in an FTCA suit results in a fatal lack of jurisdiction.” Wexler v. Merit Sys.
Prot. Bd., 986 F.2d 1432, 1993 WL 53548, at *2 (10th Cir. 1993) (unpublished table opinion);
see also Gaines v. Pearson, 516 F. App’x 724, 726 (10th Cir. 2013) (unpublished). Mr.
Browning did not name the United States as a defendant in this suit. Instead, he names only the
individual defendants against whom he brought the Bivens claims. The Court therefore lacks
jurisdiction over Mr. Browning’s false imprisonment claim.
Moreover, a district court lacks subject matter jurisdiction to proceed under the FTCA if
a plaintiff fails to present the relevant claim to the appropriate federal agency within two years of
the claim’s accrual and to file suit within six months after receiving notice of denial of the claim
by the agency. Franklin Savings Corp. v. United States (In re Franklin Savings Corp.), 385 F.3d
1279, 1287 (10th Cir. 2004); see also 28 U.S.C. § 2401(b).
In the response to the motion to dismiss, Mr. Browning stated that he sent his claim on
the relevant form to the Federal Bureau of Prisons (“BOP”) with a ten-page outline of the claim
on July 22, 2011. After filing his objections to the Recommendation, Mr. Browning also filed a
letter (# 53) with the Court, with a copy of a Department of Justice form entitled “Claim for
Damage, Injury, Or Death.” Mr. Browning’s signature on the form is dated July 11, 2011. Even
assuming, however, that the presentation of the Form as attached to the letter – which does not
contain the ten-page outline – is sufficient to establish that Mr. Browning presented the claim to
the BOP, there has been no allegation that the BOP denied the claim or that Mr. Browning filed

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this lawsuit within six months after the date of mailing of the notice of denial. See In re Franklin
Savings Corp., 385 F.3d at 1287. The Court lacks subject matter jurisdiction over the FTCA
claim.
IV.

Conclusion

For the foregoing reasons, the Court OVERRULES Mr. Browning’s objections (# 51) and
ADOPTS the Recommendation (# 50). The Court GRANTS the motion to dismiss filed by the
defendants (# 40). The Clerk of the Court shall close this case.
Dated this 25th day of September, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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