Christensen v. United States of America et al
Filing
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MEMORANDUM OPINION & ORDER: 1. All claims in Christensens Complaint 1 , with the exception of those against the United States of America under the Federal Tort Claims Act are DISMISSED, with prejudice; 2. All claims against dfts Francisco J. Quint ana, Warden, David Carpenter, Captain, Mr. Henderson, Safety Manager, and the unknown Correctional Officers are DISMISSED, with prejudice, and these defendants are DISMISSED from this action; 3. Deputy Clerk shall prepare a "Service Packet" consisting of the following documents: a. a completed Summons form; b. the Complaint 1 and attachments [1-1]; c. this Memorandum Opinion and Order; and d. a completed USM Form 285; 4. Deputy Clerk shall deliver the Service Packet to the USMS and n ote in the docket the date that the Service Packet was delivered; 5. The USMS shall serve the USA by sending a Service Packet by certified or registered mail to: a. the Civil Process Clerk at the Office of the United States Attorney for the Eastern District of Kentucky; b. the Office of the Attorney General of the United States in Washington, D.C.; and, c. the Central Office of the Federal Bureau of Prisons in Washington, D.C.; 6. The pl must advise the Court of any change in his address. Failu re to do so may result in the dismissal of this case; 7. With every notice or motion filed with the Court, the pl must (a) mail a copy to the dft (or his atty) and (b) at the end of the notice or motion certify that he has mailed a copy to the dft (or this attorney) and the date on which this was done. Signed by Judge Danny C. Reeves on 12/2/2014.(lc)cc: COR, Plaintiff via us mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
HERBERT SAMUEL CHRISTENSEN,
JR.,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
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Civil Action No. 5: 14-134-DCR
MEMORANDUM OPINION
AND ORDER
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Herbert Samuel Christensen, Jr., was formerly confined as an inmate at the Federal
Medical Center in Lexington, Kentucky (“FMC-Lexington”).1
While incarcerated,
Christensen filed a pro se Complaint under the Federal Tort Claims Act, 28 U.S.C. §§ 2671
et seq. (“FTCA”). [Record No. 1] The Complaint alleges civil rights violations under 42
U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), as
well as pendent state claims of negligence under Ky. Rev. Stat. § 189.125(6). [Record No. 1]
Christensen seeks recovery for the “personal physical and psychological injuries” he
allegedly sustained as the result of the defendants’ negligence or wrongful acts and
omissions. [Id., p. 1] The Complaint names as defendants the United States of America and
the following FMC-Lexington personnel: Francisco J. Quintana, Warden; David Carpenter,
1
Per the Federal Bureau of Prisons’ website, Christensen was released from custody on August 18,
2014. See www.bop.gov/inmateloc/ (last checked December 1, 2014). Additionally, the plaintiff advised
the Court by letter dated July 21, 2014, of his post-release mailing address in Vanceburg, Kentucky.
[Record No. 4]
Captain; Mr. Henderson, Safety Manager; and two unknown Correctional Officers. By prior
Order, the Court granted Christensen’s motion to proceed in forma pauperis. [Record No. 3]
As a threshold matter, the Court conducts a preliminary review of Christensen’s
Complaint because he has been granted permission to proceed in forma pauperis and because
he asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A district
court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief.
McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997).
The Court
evaluates Christensen’s Complaint under a more lenient standard because he is not
represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321
F.3d 569, 573 (6th Cir. 2003). At this stage of the proceedings, the Court accepts the
plaintiff’s factual allegations as true, and his legal claims are liberally construed in his favor.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court has construed the
Complaint liberally and will evaluate any cause of action which can reasonably be inferred
from the allegations made.
For the reasons stated below, with the exception of his FTCA claim against the
United States, Christensen’s claims will be dismissed.
I
Christensen’s Complaint concerns an incident occurring on July 1, 2013, when he was
transported from FMC-Lexington to the University of Kentucky Medical Center for a
medical appointment. Christensen, an ambulatory inmate, generally complains about being
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placed in a wheel-chair van for transport, being forced to sit sideways in a seat, and the
improper use of a seatbelt to secure him in that seat . Specifically, Christensen states:
13.) Thus on 7-1-2013 right before the med trip plaintiff had a seatbelt
harness placed improperly across his carotid artery high up on his neck while
he was forced to sit sideways in a seat of a wheel chair van, that was too small
and narrow for him to sit in, thus that it injured plaintiff’s left neck and the
nerves in his left ulnar nerve distribution.
[Record No. 1, p. 4] Christensen also alleges that, on the return trip from this medical
appointment and all other instances of transportation from the prison, he was transported
without the protection of a seatbelt. On such trips, prisoners are secured by hand cuffs, ankle
cuffs, and a waist chain; therefore, they cannot buckle the seatbelt themselves. [Id., p. 3]
A.
Federal Tort Claims Act
The United States of America is immune from suit except where its sovereign
immunity is explicitly waived. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994).
The FTCA waives this immunity and allows federal district courts to hear tort actions against
the federal government for “injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Substantively, the
FTCA makes the United States liable “to the same extent as a private individual under like
circumstances,” subject to enumerated exceptions. 28 U.S.C. § 2674. See Levin v. United
States, 133 S. Ct. 1224, 1228 (2013).
The FTCA is the exclusive remedy for tort actions against the federal government, its
agencies, and its employees. Ascot Dinner Theatre v. Small Business Admin., 887 F.2d 1024,
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1028 (10th Cir. 1989). Federal prisoners are among the possible plaintiffs in FTCA cases.
United States v. Muniz, 374 U.S. 150 (1963). See also, 28 U.S.C. § 1346(b)(1); Sosa v.
Alvarez-Machain, 542 U.S. 692, 700 (2004). Importantly, an FTCA claim may only be
asserted against the United States of America. See 28 U.S.C. § 2674; Smith v. United States,
561 F.3d 1090, 1099 (10th Cir. 2009) (“The United States is the only proper defendant in an
FTCA action.”); Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008) (same).
A plaintiff must exhaust his FTCA claim before a district court has jurisdiction over
his lawsuit. 28 U.S.C. § 2675(a); Holt v. Morgan, 79 F. App’x 139, 141 (6th Cir. 2003)
(“Failure to exhaust administrative remedies deprives a federal court of jurisdiction over the
[FTCA] claim.” (citation omitted)). Thus, an inmate must first present his claim (typically,
by filing a Standard Form 95) to the regional office of the Bureau of Prisons (BOP) and the
agency must deny his request before the inmate is authorized to file an FTCA claim in the
district court. 28 U.S.C. § 2675(a). If the plaintiff does not file an administrative claim and
receive a denial from the agency before filing suit, the Court must dismiss the claim for lack
of jurisdiction. McNeil v. United States, 508 U.S. 106, 113 (1993).
The exhibits attached to Christensen’s Complaint reflect that on October 1, 2013, he
submitted a tort claim on a Standard Form 95 against the United States and mailed it to the
BOP’s Mid-Atlantic Regional Office in Annapolis, Maryland. [Record No. 1-1, pp. 47-48]
This tort claim concerned the July 1, 2013 medical transport. Although the claim was
received October 17, 2013, the BOP catalogued this tort claim as filed in 2014, assigning it
the following number: TRT-MXR-2014-00572. [Id., p. 42]
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On December 23, 2013, the BOP rejected this claim, considering it to be a duplicate
of Christensen’s prior tort claim identified as Administrative Tort 2013-03235.2 [Record No.
1-1, p. 49] On March 17, 2014, the BOP notified Christensen that it had closed tort claim
2014-00572 as a duplicate claim “concerning the medical transports,” which the BOP had
denied nearly one year earlier, on March 26, 2013. [Record No. 1-1, pp. 51-52] The Court
considers this notice to have effectively denied the 2014 tort claim without a separate,
official response.
The BOP is correct that both the 2013 and the 2014 tort claims concern the medical
transports. However, the two tort claims are not identical. The 2013 tort claim concerns the
failure to secure Christensen in a seatbelt during transports, whereas the 2014 tort claim
concerns (1) the improper use of a seatbelt to effectively secure him in a seat and (2) the
failure to secure him with a seatbelt on the return trip to the prison. Thus, one claim
concerns the failure to use a seatbelt and the other claim concerns the improper use of a
seatbelt on one leg of the trip and the failure to use a seatbelt at all on the return trip. The
two claims are not synonymous.3
2
Although not of record in this case, it appears from the BOP’s response to the 2013 tort claim that
Christensen alleged that he was transported in a BOP van without being secured with a seatbelt during
transport. [Record No. 1-1, pp. 38-39]
3
The BOP’s closing of tort claim 2014-00572 as a duplicate of tort claim 2013-03235 is puzzling,
given that the BOP’s response to the 2013 tort claim on March 26, 2013, pre-dates the subject medical
transport that occurred on July 1, 2013. [Record No. 1-1, p. 38]
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Christensen’s 2014 tort claim appears to have been timely presented to the BOP and
fully exhausted. Further, Christensen timely filed the present action challenging its denial.
Given the apparent administrative confusion in the BOP’s records concerning these two tort
claims and the fact that the BOP did not officially respond to Christensen’s 2014 tort claim,
the Court will direct the United States to file a response to Christensen’s 2014 FTCA claim.
B.
BOP Policy Program Statements
Christensen asserts that the defendants, their agents and subordinates have violated
BOP Policy 1600.09, which concerns occupational safety, environmental compliance, and
fire protection.
It is unclear how this particular BOP Program Statement addresses
Christensen’s seatbelt issue. Regardless, his claims under this or any other BOP Program
Statement fail as a matter of law. The BOP’s Program Statements are not “laws” which may
be broken. Rather, they are merely internal agency guidelines and manuals and are not
promulgated in compliance with the Administrative Procedures Act. Reno v. Koray, 515
U.S. 50, 61 (1995). Accordingly, they neither carry the force of law nor create enforceable
substantive rights. United States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990); Schweiker
v. Hansen, 450 U.S. 785, 789 (1981). Because a federal employee’s failure to adhere to a
Program Statement does not constitute a violation of federal law, any claim of violation fails
as a matter of law. United States v. Loughner, 782 F. Supp. 2d 829, 831 (D. Ariz. 2011);
Callahan v. Patton, No. 07-CV-54-JMH, 2007 WL 1662695, at *5 (E.D. Ky. June 4, 2007).
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C.
18 U.S.C. § 4042
Although Christensen does not specify which subsection of 18 U.S.C. § 4042 the
defendants have violated, it appears that he may be referring to 18 U.S.C. § 4042(a)(2),
which directs the BOP to “provide suitable quarters and provide for the safekeeping, care and
subsistence of all persons charged with or convicted of offenses against the United States” or
to 18 U.S.C. § 4042(a)(3), which directs the BOP to “provide for the protection . . . of all
persons charged with or convicted of offenses against the United States.” Broadly construing
this claim, Christensen may be attempting to assert claims of deliberate indifference to his
safety and security needs in violation of the Eighth Amendment. Christensen’s claims for
alleged violations of 18 U.S.C. § 4042 will be dismissed for the same reasons that his Eighth
Amendment claim, addressed below, will be dismissed.
D.
Eighth Amendment Claim
Christensen claims that, as the consequence of being placed sideways in a seat, the
seatbelt did not properly secure him, he was physically injured by the seatbelt. He seeks
compensatory damages for his pain and suffering and mental anguish.
Plaintiff’s allegations are best characterized as an Eighth Amendment conditions-ofconfinement claim. The Eighth Amendment’s prohibition on cruel and unusual punishment
requires that prison officials “provide humane conditions of confinement by ensuring that
inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and
by taking reasonable measures to guarantee inmates’ safety.” Craig v. Eberly, 164 F.3d 490,
495 (10th Cir. 1998)(emphasis added).
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A conditions-of-confinement claim consists of both an objective and subjective
component.
The objective component is met only if the condition complained of is
“sufficiently serious,” to pose “a substantial risk of serious harm” to the inmate. Farmer v.
Brennan, 511 U.S. 825, 832 (1994). Because the sufficiency of a conditions-of-confinement
claim depends upon “the particular facts of each situation; the ‘circumstances, nature, and
duration’ of the challenged conditions must be carefully considered.” Despain v. Uphoff,
264 F.3d 965, 974 (10th Cir. 2001) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
2000)). The Eighth Amendment does not give rise to a federal cause of action every time
prisoners are inconvenienced or suffer de minimis injuries. Hernandez v. Denton, 861 F.2d
1421, 1424 (9th Cir. 1988) vacated on other grounds sub nom. Denton v. Hernandez, 112
S.Ct. 1728 (1992). The subjective component of a conditions-of-confinement claim requires
the plaintiff to show that the defendant exhibited “deliberate indifference” to the inmate’s
health or safety. Farmer, 511 U.S. at 832. Deliberate indifference “requires both knowledge
and disregard of possible risks, a mens rea on a par with criminal recklessness.” Despain v.
Uphoff, 264 F.3d 965, 975 (10th Cir. 2001). The defendant must “both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Farmer, 511 U.S. at 837.
Applying the standards set forth in Farmer, the deprivation Christensen alleges is not
objectively sufficiently serious to state an Eighth Amendment claim. The conclusion that
Christensen was not placed at substantial risk of serious harm is evidenced by the minor
injuries he allegedly suffered. See Lockett v. Suardini, 526 F.3d 866, 876 (6th Cir. 2008)
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(officer’s minimal application of force, together with plaintiff’s admittedly minor injuries,
did not rise to a level sufficient to sustain Eighth Amendment claim). Christensen claims
that the seatbelt was improperly placed across his carotid artery high upon his neck and that
it injured his left neck and the nerves in his left ulnar nerve distribution. [Record No. 1, p. 4]
Plaintiff’s Eighth Amendment claim is belied by the fact that he did not seek treatment from
Health Services until August 2, 2013, one month after the medical transport.
When
Christensen reported to Health Services for treatment of the injury he sustained on July 1,
2013, he described the incident to staff, as follows: “Numbness and tingling in left arm, Pt
identified his symptoms as numbness and tingling in his left arm. Pt reports he had this
before this date, however this instance has ‘made it worse.’” [Record No. 1-1, p. 31]
Otherwise, his examination was normal. He had a full range of motion in his shoulder, wrist,
hand, fingers, and cervical spine.
The assessment was: “No Significant Findings/No
Apparent Distress.” [Record No. 1-1, pp. 31-32] Additionally, a physical-therapy evaluation
found that any numbness and tingling was likely “due to continued poor posture while
completing computer work” and Christensen’s shoulder pain was “most likely a result of
improper weight lifting.” [Record No. 1-1, p. 23] Thus, Christensen’s physical injuries, if
any, were de minimis, a far cry from a constitutional violation, and are refuted by his BOP
medical records. [Record No. 1-1, pp. 31-32]
Federal courts have held that failure to properly seatbelt an adult prisoner, by itself,
does not create a substantial risk of serious harm, even where the inmate is disabled or is
otherwise incapable of seatbelting himself. See Dexter v. Ford Motor Co., 92 F. App’x 637,
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641 (10th Cir. 2004). As the court explained in Dexter, “[t]he connection between a failure to
seatbelt and the risk of serious injury, even if arguably evident under state tort law, is
insufficient for purposes of constitutional analysis.” Id. at 640. Thus, “a failure to seatbelt
does not, of itself, expose an inmate to risks of constitutional dimension.” Id. Because the
failure to seatbelt an inmate does not give rise to a claim of constitutional dimension,
likewise, the failure to properly seatbelt an inmate also presents no cognizable Eighth
Amendment claim. Therefore, Christensen’s claims that the defendants’ actions on July 1,
2013 violated his Eighth Amendment rights will be dismissed.
E.
State Law Claims
Christensen asserts state law claims of negligence and a violation of Kentucky’s
seatbelt law. Ky. Rev. Stat. § 189.125(6) provides that “[a] person shall not operate a motor
vehicle manufactured after 1981 on the public roadways of this state unless the driver and all
passengers are wearing a properly adjusted and fastened seat belt.” In addition, Kentucky
law provides that “[a] person injured by the violation of any statute may recover from the
offender such damages as he sustained by reason of the violation, although a penalty or
forfeiture is imposed for such violation.” Ky. Rev. Stat. § 446.070. However, the latter
provision simply “codifies the common law doctrine of ‘negligence per se’ in Kentucky.
Young v. Carran, 289 S.W.3d 586, 589 (Ky. App. 2008). Negligence per se ‘is merely a
negligence claim with a statutory standard of care substituted for the common law standard
of care.” GATX Corp. v. Addington, 879 F. Supp. 2d 633, 651 (E.D. Ky. 2012) (internal
quotation marks and citation omitted). Thus, Christensen’s claim that the two unknown
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Correctional Officers employed by the BOP were negligent per se for violating Kentucky’s
seatbelt law is simply a negligence claim which must be directed against the United States
under the FTCA, 28 U.S.C. § 2679(b)(1).
II
Based on the foregoing, the Court will dismiss Christensen’s claims with prejudice,
with the sole exception of his claim against the United States under the FTCA. Because the
Court has granted Christensen’s motion to proceed in forma pauperis, the Lexington Clerk’s
Office and the United States Marshals Service (“USMS”) will serve the summons and
Complaint on his behalf. Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d).Accordingly, it is
hereby
ORDERED as follows:
1.
All claims in Christensen’s Complaint [Record No. 1], with the exception of
those against the United States of America under the Federal Tort Claims Act are
DISMISSED, with prejudice.
2.
All claims against defendants Francisco J. Quintana, Warden, FMC-
Lexington; David Carpenter, Captain, FMC-Lexington; Mr. Henderson, Safety Manager,
FMC-Lexington; and the unknown Correctional Officers at FMC-Lexington are
DISMISSED, with prejudice, and these defendants are DISMISSED from this action.
3.
A Deputy Clerk in the Lexington Clerk’s Office shall prepare a “Service
Packet” consisting of the following documents for service of process upon the United States
of America:
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a.
a completed Summons form;
b.
the Complaint [Record No. 1] and attachments thereto [Record No. 11];
c.
d.
4.
this Memorandum Opinion and Order; and
a completed USM Form 285.
The Lexington Deputy Clerk shall deliver the Service Packet to the USMS in
Lexington, Kentucky, and note in the docket the date that the Service Packet was delivered.
5.
The USMS shall serve the United States of America by sending a Service
Packet by certified or registered mail to:
a.
the Civil Process Clerk at the Office of the United States Attorney for
the Eastern District of Kentucky;
b.
the Office of the Attorney General of the United States in Washington,
c.
the Central Office of the Federal Bureau of Prisons in Washington,
D.C.; and,
D.C.
6.
The plaintiff must immediately advise the Court of any change in his current
mailing address. Failure to do so may result in the dismissal of this case. The plaintiff must
communicate with the Court solely through notices or motions filed with the Clerk of the
Court. The Court will disregard correspondence sent directly to the Judge’s chambers.
7.
With every notice or motion filed with the Court, the plaintiff must (a) mail a
copy to the defendant (or the defendant’s attorney) and (b) at the end of the notice or motion,
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certify that he has mailed a copy to the defendant (or the defendant’s attorney) and the date
on which this was done. The Court will disregard any notice or motion which does not
include this certification.
This 2nd day of December, 2014.
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