Hardman v. United States of America et al
MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 5 for extension of time to pay initial partial filing fee is dismissed as moot because he paid the partial fee. Plaintiff's motion 2 to proceed without prepayment of fees is granted. P laintiff is hereby assessed the remainder of the full filing fee herein to be paid from payments automatically deduced from his inmate account. This action is dismissed as time-barred and for failure to state facts to support a federal constitutional claim. Signed by District Judge Sam A. Crow on 12/5/2012. (Mailed to pro se party Frank Hardman by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF
AMERICA, et al.,
MEMORANDUM AND ORDER
damages from several defendants based upon claims of improper
treatment immediately following gall bladder surgery.
1, 2012, the court assessed an initial partial filing fee, which
plaintiff has paid.
Plaintiff is therefore granted leave to
proceed without prepayment of the full fee and is allowed to pay
automatically deducted from his inmate account.
In its prior Order, the court also screened the complaint,
set forth several deficiencies, and required plaintiff to file
an Amended Complaint that cured those deficiencies.
is now before the court for screening of plaintiff’s Amended
Complaint pursuant to 28 U.S.C. § 1915A(a),(b) and 28 U.S.C. §
The Amended Complaint is construed as asserting
a claim under the FTCA against the United States only, and a
Bivens claim against all federal agents named as defendants in
their individual capacities.
The court finds that plaintiff has
failed to cure significant deficiencies with the filing of his
Amended Complaint and this action must be dismissed as a result.
First and foremost, Mr. Hardman makes no attempt to address
the court’s finding from the face of the original complaint that
his allegations of constitutional violations appear to be barred
by the applicable two-year statute of limitations.
As the court
found in its screening order, plaintiff’s physical injuries are
alleged to have occurred on September 4 through September 8 of
His claims thus accrued on or before September 8, 2009.
February 28, 2012, more than two years after his cause of action
Plaintiff has alleged no additional facts to suggest
Complaint why his claims should not be dismissed as time barred,
and he has failed to do so.
Claims against the United States under the FTCA are subject
federal officials brought under Bivens.
limitations applies to FTCA claims.”
“A two-year statute of
Hoery v. United States,
The Tenth Circuit has held:
“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. . . .” 28 U.S.C. § 2401(b). The
application of § 2401(b) requires a two-step analysis.
First, (the court) must determine when the claim
Then, (it) must determine whether the
statute of limitations should be tolled.
v. United States, 601 F.2d 527, 528-31 (10th Cir.
Trobaugh v. U.S., 35 Fed.Appx. 812, 815 (10th Cir.)(unpublished),1
administrative tort claim that was denied on August 29, 2011.
He still has not produced a copy of his administrative claim and
does not reveal the date on which it was filed.
Hardman has not alleged or shown that his administrative claim
addition, he provides no additional facts showing that he is
Consequently, the court finds that Mr. Hardman has failed to
show that his claims under Bivens and the FTCA should not be
dismissed as time-barred.
The court notes other deficiencies that Mr. Hardman has
failed to cure in his Amended Complaint.
Even though he was
Unpublished opinions are not cited herein as binding precedent, but for
persuasive reasoning. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.
directed to provide sufficient information for service upon each
defendant, he again lists defendants whose names and addresses
are not provided
and again fails to allege
regarding each unknown defendant to allow identification.
directed to prepare papers for service upon them.”
He was also
warned that he was “required to provide adequate information
regarding all defendants named in his Amended Complaint so that
they may be served within the 120-day time limit set forth in
Fed.R.Civ.P. Rule 4(m),” but he has not complied with Rule 4(m)
Amended Complaint, as required by Rule 10 of the Federal Rules
of Civil Procedure.
He names only the United States in the
Elsewhere in his complaint, he lists the following
defendants: the United States “doa (sic) BOP”; Officer Mudlins,
former USPL employee; unnamed USPL Correctional Officer; unnamed
Aulepp, USPL; Dr. McCullum, USPL; Commander Blevins, USPL.
unconstitutional acts that were taken by each unnamed defendant
Furthermore, he has alleged no facts to
cure the deficiencies in his original complaint regarding the
Cushing hospital and its physicians.
This action is dismissed,
without prejudice, as against all unnamed defendants and Cushing
The court previously found that plaintiff’s allegations in
his original complaint failed to state a claim under Bivens for
allegations of negligence or malpractice are not sufficient to
Eighth Amendment based on a claim of deliberate indifference to
his serious medical needs and simply alleges the same facts in
indifference” in his Amended Complaint are nothing more than
Moreover, his factual allegations, taken as true, show
that he was provided rather than denied medical treatment.
Thus, even if plaintiff could prove at
trial that he should have remained at the hospital for a longer
time after surgery, his claim would be one of negligence on the
part of the individual(s) who made the decision to return him to
Plaintiff lists “28 U.S.C. § 1367(a) Supplemental Jurisdiction” in the
jurisdiction portion of his complaint. However, since he fails to show that
this court has jurisdiction under either the FTCA or Bivens, his state court
claims are not reviewable in federal court.
indicating that the person who caused him to be returned to the
prison was acting either contrary to a physician’s orders or
with a sufficiently culpable state of mind.
He provides no
evidence that outpatient gallbladder surgery is uncommon or was
inappropriate in his particular case.
Thus, plaintiff still
negligence or malpractice.
The same is true with regard to plaintiff’s allegations
that immediately after surgery individuals required him to walk
over 200 feet in the parking lot and uphill into the prison in
shackles and chains and would not reassign him to a bottom bunk,
shackling, or assignment to a top bunk.
Nor does he allege
additional facts to show that the person or persons who actually
caused these circumstances acted with a sufficiently culpable
provided emergency medical treatment when his incision reopened
as well as post-operative care at the prison and that after 3 or
4 days he was taken back to the hospital emergency room where he
sufficient to show a plausible claim of deliberate indifference.
In his Amended Complaint, Mr. Hardman now expressly asserts
a claim to relief under the Federal Tort Claims Act (FTCA), 28
U.S.C. § 1346(b), § 2671 et seq.
However, since he cannot sue a
federal agency, federal agents, or private entities or persons
under the FTCA, it follows that he states no claim under the
FTCA against any defendant other than the United States.
actionable under the FTCA.
Rogers v. Fed. Bureau of Prisons,
Plaintiff’s claim against the United States under
the FTCA based upon allegations of negligence by USPL employees
might have been sufficient to survive screening but for the fact
that he has not shown that both his administrative claim and
this action were timely filed.
Mr. Hardman adds the assertion in his Amended Complaint
that his right under the Fifteenth Amendment to equal protection
was violated by defendants’ failure to provide him with proper
In sum, plaintiff’s new claim of denial of equal
See Straley v. Utah Board of Pardons, 582 F.3d 1208,
1215 (10th Cir. 2009), cert. denied, 130 S.Ct. 1737 (2010).
In his Amended Complaint, plaintiff now seeks in addition
to damages “to have the institution reprimanded for failure to
provide” adequate care.
The “institution” is a prison facility,
not a person and as such is not a proper defendant.
Nor may the
“institution” be held liable based upon a respondeat superior
Plaintiff was generally warned that if he failed to comply
with the court’s order to cure the deficiencies in his original
He was also specifically warned that he must show why
this action should not be dismissed as time-barred.
concludes that Mr. Hardman has failed to cure deficiencies in
Motion for Extension of Time to pay initial partial filing fee
(Doc. 5) is dismissed as moot because he paid the partial fee.
IT IS FURTHER ORDERED that plaintiff=s Motion to Proceed
without Prepayment of Fees (Doc. 2) is granted, and plaintiff is
hereby assessed the remainder of the full filing fee herein to
be paid from payments automatically deducted from his inmate
The Finance Office of the Facility where plaintiff is
currently incarcerated is directed to collect from plaintiff’s
account and pay to the clerk of the court twenty percent (20%)
of the prior month’s income each time the amount in plaintiff’s
Plaintiff is directed to cooperate fully with his custodian in
authorizing disbursements to satisfy the filing fee, including
but not limited to providing any written authorization required
by the custodian or any future custodian to disburse funds from
IT IS FURTHER ORDERED
that this action is dismissed as
time-barred and for failure to state facts to support a federal
The clerk is directed to send a copy of this order to the
finance officer at the facility where plaintiff is currently
IT IS SO ORDERED.
Dated this 5th day of December, 2012, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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