Williams v. Federal Bureau of Prisons

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 4/02/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00860-BNB
WESLEY BERNARD WILLIAMS,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Wesley Bernard Williams, is in the custody of the Federal Bureau of
Prisons at USP-Florence, Colorado. Mr. Williams has filed a Prisoner Complaint
asserting a deprivation of his Eighth Amendment rights pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and a
claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680. He has
been granted leave to proceed pursuant to the in forma pauperis statute, 28 U.S.C. §
1915, with payment of an initial partial filing fee.
The Court must construe the Complaint liberally because Mr. Williams is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has reviewed
the complaint and has determined that it is deficient. For the reasons discussed below,
Mr. Williams will be directed to file an amended complaint.
Plaintiff alleges in the Complaint that prior to his transfer to USP-Florence in

August 2012, he was prescribed a medicated shampoo to treat bleeding and itchy
bumps on his scalp. In December 2012, Dr. Allred denied Plaintiff’s request for a refill
of the medication on the ground that there was limited information about Plaintiff’s
condition in his prisoner file. Mr. Williams alleges that he obtained a copy of his medical
file and learned that, contrary to Dr. Allred’s representation, there was significant
documentation to substantiate his medical condition. Mr. Williams asserts that Dr.
Allred has fabricated statements in Plaintiff’s prison file about examinations of Plaintiff
that never occurred. Mr. Williams saw a different doctor on January 25, 2013, who
prescribed treatment for Plaintiff’s chronic scalp condition. However, Dr. Allred then
denied Plaintiff the prescribed treatment. Mr. William alleges that without the
medication, his symptoms have worsened and are causing him pain. Plaintiff claims
that Defendant Federal Bureau of Prisons, acting through Dr. Allred, has been
deliberately indifferent to his chronic scalp condition, in violation of the Eighth
Amendment. In the jurisdiction section of the Complaint, he states that his cause of
action arises under the FTCA. Mr. Williams seeks monetary relief.
Mr. Williams’ Bivens claim(s) against the Federal Bureau of Prisons are barred
by the doctrine of sovereign immunity. The United States, as a sovereign, cannot be
sued without its prior consent, and the terms of its consent define this court's subject
matter jurisdiction. See McGinness v. United States, 90 F.3d 143, 145 (6th Cir.1996).
The United States has not waived sovereign immunity for itself or its agencies under
Bivens for constitutional tort claims and therefore cannot be sued in a Bivens action.
See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 483-86 (1994) (holding
that a Bivens action may not be brought against the United States).
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Mr. Williams indicates in his Complaint that his claims against the Bureau of
Prisons also arises under the FTCA. “The FTCA constitutes a limited waiver of the
federal government's sovereign immunity from private suit.” Estate of Trentadue ex rel.
Aguilar v. United States, 397 F.3d 840, 852 (10th Cir. 2005). The FTCA allows the
United States to be sued for claims arising out of negligent or wrongful acts or
omissions of its employees, when such employees are acting within the scope of their
duties. 28 U.S.C. § 1346(b)(1). The United States is the sole defendant to an FTCA
action. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th Cir. 2001) (noting that
the United States is the only proper defendant to an FTCA suit). See also 28 U.S.C.
§§ 2674, 2679.
Mr. Williams has already initiated a Bivens action in this Court against Dr. Allred,
asserting Eighth Amendment claims based on the same facts as those alleged in the
instant action. See Case No. 13-cv-03420-RBJ-BNB. “[T]he FTCA and a Bivens claim
are alternative remedies.” Robbins v. Wilke, 300 F.3d 1208, 1213 (10th Cir. 2002).
“When a federal law enforcement officer commits an intentional tort, the victim has two
avenues of redress: 1) he may bring a Bivens claim against the individual officer based
on the constitutional violation, or 2) he may bring a common law tort action against the
United States pursuant to the FTCA.” Engle v. Mecke, 24 F.3d 133, 135 (10th Cir.1994)
(citations omitted). Accordingly, a plaintiff can pursue a Bivens action against a federal
official in his individual capacity and an FTCA claim against the United States arising out
of the same subject matter, but a judgment against the United States under the FTCA
precludes recovery against the federal employee under Bivens. Engle, 24 F.3d at 135
(“Although the plaintiff may elect initially to bring his action against either defendant, a
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judgment against the United States under the FTCA constitutes a complete bar to any
action by the claimant, by reason of the same subject matter, against the employee . . .
whose act or omission gave rise to the claim.’”) (quoting
§ 2676); see also Trentadue, 397 F.3d at 858-59 (concluding that district court was
required to vacate Bivens judgment where court later entered judgment on FTCA claims
arising out of the same subject matter, pursuant to § 2676).
Accordingly, if Mr. Williams intends to pursue an FTCA claim against the United
States, he is directed to file, within thirty (30) days, an amended complaint, on the
court-approved Prisoner Complaint form, asserting an FTCA claim only and naming the
United States of America as the sole defendant. It is
FURTHER ORDERED that Mr. Williams shall obtain a copy of the courtapproved Complaint form, along with the applicable instructions, at
www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Williams fails to file an amended complaint that
complies with this order within the time allowed, the complaint and the action may be
dismissed without further notice.
DATED April 2, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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