Hardman v. United States of America et al

Filing 7

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
FRANK HARDMAN,
Plaintiff,
v.

CASE NO.

12-3060-SAC

UNITED STATES OF
AMERICA, et al.,
Defendants.
MEMORANDUM AND ORDER
In

this

pro

se

civil

action

a

federal

prisoner

seeks

damages from several defendants based upon claims of improper
treatment immediately following gall bladder surgery.

On June

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
the

remainder

of

the

fee

over

time

through

payments

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.

The matter

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. §
1915(e)(2)(B).

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

1

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.

DISCUSSION
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
2009.

His claims thus accrued on or before September 8, 2009.

Plaintiff=s

original

complaint

filed

herein

was

executed

on

February 28, 2012, more than two years after his cause of action
accrued.

Plaintiff has alleged no additional facts to suggest

otherwise.

He

was

ordered

to

show

cause

in

his

Amended

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
to

the

same

time-bar

obstacle

as

claims

federal officials brought under Bivens.
limitations applies to FTCA claims.”
324

F.3d

2401(b)).

1220,

1221

(10th

Cir.

individual

“A two-year statute of
Hoery v. United States,

2003)(citing

The Tenth Circuit has held:

2

against

28

U.S.C.

§

“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
accrues.
Then, (it) must determine whether the
statute of limitations should be tolled.
See Zeidler
v. United States, 601 F.2d 527, 528-31 (10th Cir.
1979).
Trobaugh v. U.S., 35 Fed.Appx. 812, 815 (10th Cir.)(unpublished),1
cert.

dismissed,

Complaint,

Mr.

exhausted

537

prison

U.S.

Hardman

1042

merely

(2002).

repeats

administrative

remedies

In

his

allegations
and

Amended
that
filed

then

he
an

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.

Thus, Mr.

Hardman has not alleged or shown that his administrative claim
was

filed

before

the

statute

of

limitations

expired.

In

addition, he provides no additional facts showing that he is
entitled

to

equitable

tolling

of

the

limitations

period.

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.

1

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.

3

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

sufficient facts

regarding each unknown defendant to allow identification.
was

warned

that

unless

and

fact

information
defendants

in

his

he

provided

allegations

Amended

Complaint,

“adequate

He

identifying

regarding

his

unknown

the

will

not

clerk

directed to prepare papers for service upon them.”

be

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)
with

regard

Hardman

to

does

not

all

the

name

unnamed

all

defendants.

defendants

in

the

Moreover,
caption

of

Mr.
his

Amended Complaint, as required by Rule 10 of the Federal Rules
of Civil Procedure.
caption.

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
“various”

USPL;

Dr.

Aulepp, USPL; Dr. McCullum, USPL; Commander Blevins, USPL.

In

addition,

Physicians

Mr.

Assistants

Hardman

has

employed

not

at

the

described

particular

unconstitutional acts that were taken by each unnamed defendant
showing

their

personal

participation

4

that

might

also

aid

in

their identification.

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
Hospital.2
The court previously found that plaintiff’s allegations in
his original complaint failed to state a claim under Bivens for
several

reasons.

Plaintiff

was

specifically

advised

that

allegations of negligence or malpractice are not sufficient to
state

a

Amended

constitutional
Complaint,

Mr.

Bivens

claim.

Nevertheless,

Hardman

reasserts

a

violation

in

his

of

the

Eighth Amendment based on a claim of deliberate indifference to
his serious medical needs and simply alleges the same facts in
support.

Plaintiff’s

repetitions

of

the

phrase

“deliberate

indifference” in his Amended Complaint are nothing more than
labels.

Moreover, his factual allegations, taken as true, show

that he was provided rather than denied medical treatment.

A

mere

a

delay

in

treatment

constitutional claim.

is

not

sufficient

to

state

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
2

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.

5

prison

right

after

surgery.

He

does

not

allege

any

facts

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.
fails

to

allege

facts

that

amount

to

Thus, plaintiff still
more

than

a

claim

of

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,
causing

his

provide

a

incision

to

physician’s

“burst
order

open.”

that

Plaintiff

restricted

shackling, or assignment to a top bunk.

does

his

not

walking,

Nor does he allege

additional facts to show that the person or persons who actually
caused these circumstances acted with a sufficiently culpable
state

of

mind.

His

own

allegations

indicate

that

he

was

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
was

also

provided

negligently

treatment.

transported

and

His

allegations

inadequately

that

treated

he
are

was
not

sufficient to show a plausible claim of deliberate indifference.

6

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.

Mr.

Hardman’s

not

allegations

of

constitutional

actionable under the FTCA.
105

Fed.Appx.

Federal

Deposit

(1994)).

980,
Ins.

are

Rogers v. Fed. Bureau of Prisons,
(10th

984

violations

Corp.

Cir.

v.

2004)(unpublished)(citing

Meyer,

510

U.S.

471,

477-78

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
medical

care.

However,

factual

allegations.

similarly-situated

this
He

claim

is

provides

no

individuals

have

not

been

supported

evidence
treated

that

by

any

other

differently

than he.

In sum, plaintiff’s new claim of denial of equal

protection

is

analysis.”

See Straley v. Utah Board of Pardons, 582 F.3d 1208,

“too

conclusory

7

to

permit

a

proper

legal

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
theory.

Accordingly,

plaintiff’s

claim

for

reprimand

is

dismissed.
Plaintiff was generally warned that if he failed to comply
with the court’s order to cure the deficiencies in his original
complaint,
notice.

this

action

could

be

dismissed

without

further

He was also specifically warned that he must show why

this action should not be dismissed as time-barred.

The court

concludes that Mr. Hardman has failed to cure deficiencies in
his

complaint

and

that

this

action

must

be

dismissed

as

a

result.
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

plaintiff’s

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
account.

The Finance Office of the Facility where plaintiff is

8

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
account

exceeds

outstanding

ten

filing

fee

dollars

($10.00)

obligation

has

until
been

paid

plaintiff’s
in

full.

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
his account.
IT IS FURTHER ORDERED

that this action is dismissed as

time-barred and for failure to state facts to support a federal
constitutional claim.
The clerk is directed to send a copy of this order to the
finance officer at the facility where plaintiff is currently
confined.
IT IS SO ORDERED.
Dated this 5th day of December, 2012, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

9