Moctezuma v. Federal Bureau of Prisons et al

Filing 7

MEMORANDUM AND ORDER ENTERED: This action is dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 08/15/17. Mailed to pro se party Abel Moctezuma by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ABEL MOCTEZUMA,
Plaintiff,
v.

CASE NO. 17-3043-SAC-DJW

FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a Bivens-type1 civil rights action filed pro se by a prisoner currently
incarcerated at USP-Leavenworth in Leavenworth, Kansas (“USPL”). Plaintiff’s Complaint is
based on actions occurring while he was housed at FCI–Tallahassee. Plaintiff alleges that on
March 5, 2012, while housed at FCI–Tallahassee, the SWAT team informed Plaintiff that he had
to move to a cell with a member of a rival gang. Plaintiff was attacked after moving into the cell
and a fight ensued. The SWAT team ran back into the cell and broke up the fight using
excessive force. Plaintiff was placed in a monitoring cell and then in Administrative Segregation
until his release on February 27, 2013. During this time, Plaintiff was denied medical treatment
for his mental health and the back injury he sustained as a result of the use of excessive force.
Plaintiff claims defendants failed to protect him, used excessive force, and were indifferent to his
serious medical needs. Plaintiff names as defendants the Federal Bureau of Prisons, FNU LNU
Warden at FCI–Tallahasee, and (fnu) White, Lieutenant at FCI–Tallahassee.
On July 11, 2017, Magistrate Judge Waxse entered a Notice and Order to Show Cause
(Doc. 6) (“NOSC”), ordering Plaintiff to show cause why this matter should not be dismissed
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Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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due to the deficiencies set forth in the NOSC. The NOSC found that this action is subject to
dismissal based on a lack of personal jurisdiction and as barred by the statute of limitation.
The NOSC found that Plaintiff failed to provide a basis in his Complaint for the Court to
conclude that the Court has personal jurisdiction over the individual defendants who worked at
FCI–Tallahassee; there are no grounds to support a finding that these defendants have the
minimum contacts with Kansas to subject them to a lawsuit in this jurisdiction; and that
Plaintiff’s Bivens claims are subject to dismissal against defendants White and the warden at
FCI–Tallahassee for lack of personal jurisdiction. In addition, Bivens claims cannot be asserted
directly against the United States, federal agencies, or federal officials acting in their official
capacities. Smith v. U.S., 561 F.3d 1090, 1099 (10th Cir. 2009) (citing Farmer v. Perrill, 275
F.3d 958, 963 (10th Cir. 2001) (federal agencies, officials in their official capacities), F.D.I.C. v.
Meyer, 510 U.S. 471, 485–86” (1994) (federal agencies)).
The NOSC found that Plaintiff’s claims based on the March 5, 2012 incident are also
subject to dismissal as barred by the applicable statute of limitations.

See Industrial

Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994) (finding
that the statute of limitations for a personal injury claim in Kansas is two years and applies to a
Bivens claim); see Moctezuma v. Tallahassee FCI, Case No. 14:17cv14–MW/GRJ, 2017 WL
379456 (N.D. Fla. Jan. 24, 2017). Plaintiff did not file the instant case until March 15, 2017; and
it is clear from the face of the Complaint that the limitations period expired on Plaintiff’s claims.
See Glaser v. City and Cnty of Denver, Colo., 557 F. App’x 689, 698–99 (10th Cir. 2014).
The NOSC ordered Plaintiff to respond by August 11, 2017. Plaintiff has failed to file a
response. The Court finds that this matter must be dismissed due to all the deficiencies set forth
in the NOSC. Accordingly,

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IT IS THEREFORE ORDERED BY THE COURT that this action is dismissed.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 15th day of August, 2017.

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

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