Hall v. Brown et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 10/15/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02380-BNB
JESUS HALL,
Plaintiff,
v.
BROWN, Nurse, in Her Individual and Official Capacities,
ALRED, Doctor, in His Individual and Official Capacities,
CINK, P.A., in His Individual and Official Capacities,
MCDERMOT, Administrator, in His Individual and Official Capacities,
UNITED STATES OF AMERICA, and
HAVER, Officer,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Jesus Hall, is a prisoner in the custody of the federal Bureau of Prisons
at the United States Penitentiary in Florence, Colorado. He initiated this action by
submitting pro se a Complaint asserting a deprivation of his constitutional rights
pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), as well as a
claim against the United States of America pursuant to the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§2671-2680. Mr. Hall has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915.
Mr. Hall filed a previous action against the same Defendants, Jesus Hall v. J.
Brown, et al., Civil Action No. 12-cv-03204-CMA-KLM, in which he asserted Bivens
claims arising from the same set of operative facts. In the earlier case, the claim(s)
against Defendant P.A. Cink were dismissed by Senior Judge Lewis T. Babcock, sua

sponte, under 28 U.S.C. § 1915(e)(2)(B), because Plaintiff failed to allege facts in the
operative pleading to demonstrate an arguable Eighth Amendment violation by
Defendant Cink. (See No. 12-cv-03204-CMA-KLM, at ECF No. 28, at 4, 6). The
dismissal of the claim(s) against Defendant Cink was with prejudice. The remaining
claims were drawn to District Judge Arguello and Magistrate Judge Mix. (See id. at 6).
On April 29, 2014, Magistrate Judge Mix issued a Recommendation that the
Defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) be
granted. (Id. at 62). Specifically, Magistrate Judge Mix found that the Court lacked
subject matter jurisdiction over the Bivens claims asserted against the United States
and the individual Defendants in their official capacities because the claims were barred
by the doctrine of sovereign immunity. (Id. at 10-11). Magistrate Judge Mix
recommended dismissal of the constitutional claims against the individual defendants,
sued in their personal capacities, because Plaintiff had failed to exhaust available
administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). (Id. at 14-18). On June 4, 2014, District Judge Arguello affirmed the April
29, 2014 Recommendation and dismissed the action without prejudice. (No. 12-cv03204-CMA-KLM, at ECF No. 65). Final Judgment was entered on June 6, 2014. (Id.,
ECF No. 66). On July 25, 2014, Mr. Hall filed a “Motion to Reinstate the Case to Be
Heard on Its Merits Now That Exhaustion Requirements Ha[ve] Been Met” (Id., ECF No.
67). District Judge Arguello denied the Motion to Reinstate Case on July 29, 2014, and
advised Mr. Hall that he could initiate a new civil action if he so desired. (Id., ECF No.
68). Mr. Hall initiated the present action on August 27, 2014.
The Court must construe the Prisoner Complaint liberally because Mr. Hall is not
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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. Hall will be ordered to file an Amended Complaint.
A.

Bivens claims against United States and the Defendants in their Official
Capacities
Mr. Hall cannot maintain Bivens claims against the United States and the

individual Defendants sued in their official capacities. A suit for damages against the
United States is barred by sovereign immunity unless immunity has been waived. See
Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir. 1989) (citing Kentucky v. Graham, 473
U.S. 159, 165-67 (1985)). 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). Further, the official-capacity claims against the individual Defendants are
construed as claims against the United States and are also barred by sovereign
immunity. See Kentucky, 473 U.S. at 165-66; see also Farmer v. Perrill, 275 F.3d 958,
963 (10th Cir. 2001) (“There is no such animal as a Bivens suit against a public official
tortfeasor in his or her official capacity. Instead, any action that charges such an official
with wrongdoing while operating in his or her official capacity as a United States agent
operates as a claim against the United States.”).
The Court lacks subject matter jurisdiction to hear claims that are barred by the
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doctrine of sovereign immunity. See Tippett v. United States, 108 F.3d 1194, 1196
(10th Cir. 1997). Accordingly, Mr. Hall cannot maintain Bivens claims against the
United States or the Defendants sued in their official capacities.
B.

Bivens Claim Against Defendant Cink
Mr. Hall cannot seek Bivens relief against Defendant P.A. Cink in this action

because he sues Cink based on the same conduct which the Court concluded failed to
state an arguable constitutional claim in the earlier action. As discussed above, the
claim(s) asserted against Defendant Cink in the previous action were dismissed with
prejudice under 28 U.S.C. § 1915(e)(2)(B).
Claims may be dismissed as frivolous or malicious under 28 U.S.C. § 1915(e)(2)
if they duplicate previous litigation. See McWIlliams v. State of Colorado, 121 F.3d 573,
574-75 (10th Cir. 1997) (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988));
see also Griffin v. Zavaras, No. 09-1165, 336 F. App’x 846, 849 (10th Cir. July 14, 2009)
(unpublished).
Furthermore, res judicata, or claim preclusion, applies to limit a party from
bringing before the court a matter that has been or could have been raised in an earlier
proceeding. See Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under res judicata, a final
judgment on the merits of an action precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.”). Claim preclusion applies if
(1) there was a final judgment on the merits in the earlier action; (2) the parties are
identical or in privity in both cases; (3) the cause of action is the same; and (4) the
plaintiff had a full and fair opportunity to litigate the claim in the prior suit. Nwosun v.
General Mills Rests., 124 F.3d 1255, 1257 (10th Cir. 1997).
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The Court may raise the affirmative defense of claim preclusion sua sponte if the
face of the pleading demonstrates that the defense bars the Plaintiff’s suit. See Fogle v.
Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (“A complaint may be dismissed sua
sponte under § 1915 based on an affirmative defense . . . only when the defense is
obvious from the face of the complaint and no further factual record is required . . . ”
(internal quotations and citation omitted)); see also Arizona v. California, 530 U.S. 392,
412 (2000) (quoting United States v. Sioux Nation, 448 U.S. 371, 432 (1980)
(Rehnquist, J., dissenting) (“‘if a court is on notice that it has previously decided the
issue presented, the court may dismiss the action sua sponte, even though the defense
has not been raised. This result is fully consistent with the policies underlying res
judicata: . . . the avoidance of unnecessary judicial waste.’”) (internal citations omitted).
The Court finds that principles of claim preclusion and case law prohibiting
duplicative litigation bar Mr. Hall’s Bivens claim(s) against Defendant Cink in this action
because the same claim(s) were adjudicated on the merits in No. 12-cv-03204-CMAKLM.
C.

FTCA Claim Against United States
Finally, the Court finds that the Complaint is deficient because Mr. Hall’s

allegations do not demonstrate that the Court has subject matter jurisdiction over the
FTCA claim against the United States. The federal courts have an independent
obligation to determine whether subject matter jurisdiction exists. Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999).
“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” Dahl v. United States, 319 F.3d 1226, 1228 (10th Cir. 2003)
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(quoting Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994)). The FTCA
waives the United States' sovereign immunity from tort claims and makes it liable “in the
same manner and to the same extent as a private individual under like circumstances.”
28 U.S.C. § 2674. A tort claim against the government, however, is “forever barred
unless it is presented to the appropriate Federal agency within two years after such
claim accrues.” 28 U.S.C. § 2401(b).
An action against the United States under the FTCA shall not be instituted unless
the claimant shall have first presented his claim to the appropriate federal agency and
his claim shall have been finally denied by the agency in writing and sent by certified or
agency mail. 28 U.S.C. § 2675(a). See also Estate of Trentadue ex rel. Aguilar v.
United States, 397 F.3d 840, 852 (10th Cir. 2005) (“Because the FTCA constitutes a
waiver of the government's sovereign immunity, the notice requirements established by
the FTCA must be strictly construed.). The agency’s failure to make a final disposition
of a claim within six months after it is filed shall be deemed a final denial of the claim.
28 U.S.C. § 2675(a). “The [FTCA’s notice] requirements are jurisdictional and cannot
be waived.” Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th
Cir.1991).
Mr. Hall does not allege facts in the Complaint, or submit documentation to show,
that he complied with the FTCA’s pre-suit administrative requirements.
Further, Mr. Hall is reminded that “the 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
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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
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).
If Mr. Hall intends to pursue an FTCA claim against the United States, he must
demonstrate his compliance with the FTCA’s pre-suit administrative requirements. If he
has not complied with those requirements, and does not omit the FTCA claim from the
Amended Complaint, the FTCA claim will be dismissed for lack of subject matter
jurisdiction. Plaintiff is warned that any future FTCA action against the United States
must satisfy the requirements of 28 U.S.C. § 2401(b). See Franklin Sav. Corp. v.
United States, 385 F.3d 1279, 1287 (10th Cir. 2004) (Timeliness “is one of the
conditions of the government's waiver of sovereign immunity under the FTCA, and [a
federal] court lacks subject matter jurisdiction to proceed under the FTCA if a plaintiff
fails to satisfy the FTCA's timing requirements set forth in § 2401(b).”). Accordingly, it
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is
ORDERED that Plaintiff, Jesus Hall, file within thirty (30) days from the date of
this order, an Amended Complaint that complies with the directives in this order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to file an Amended Complaint within
the time allowed, the Court may dismiss some or all of this action without further notice.
DATED October 15, 2014, at Denver, Colorado.

BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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