Buford v. USA

Filing 5

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1. Clerk shall prepare a "Service Packet" as indicated for service upon the United States; 2. Clerk shall deliver the Service Packet to the USMS, & note delivery; 3. USMS shall serve t he United States by sending a Service Packet by certified registered mail to: a. U.S. Attorney, Eastern District of Kentucky; b. Office of the Attorney General of the United States; and c. the Federal Bureau of Prisons; 4. Buford must immediately adv ice the Court of change in mailing address; failure may result in dismissal of case; 5. Buford must communicate with Court solely through notices or motions filed w/ Clerk; Court will disregard correspondence sent directly to judge's chambers; 6. Burford must mail copies w/ certificate of service as indicated. Signed by Judge Danny C. Reeves on March 18, 2015. (MWZ)cc: COR (Pla via U.S. Mail), Service Packets delivered as directed

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
JEANNINE BUFORD,
Plaintiff,
V.
UNITED STATES OF AMERICA,
Defendant.

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Civil Action No. 5: 14-419-DCR

MEMORANDUM OPINION
AND ORDER

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Plaintiff Jeannine Buford is an inmate confined by the Bureau of Prisons (“BOP”) at
the Federal Correctional Institution-Greenville, in Greenville, Illinois. Proceeding without
an attorney, Buford has filed a Complaint asserting claims under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671–80. [Record No. 1]

Buford’s claims arise from

events which allegedly transpired between March 10 and 11, 2013, while she was confined at
the Federal Prison Camp (“FPC”) in Lexington, Kentucky.
The Court has conducted a preliminary review of Buford’s Complaint because she
asserts claims against the United States and because she has been granted pauper status. 28
U.S.C. §§ 1915(e)(2)(B), 1915A.1 As explained below, the United States will be required to
respond to Buford’s claims.
1
The Court must dismiss any claims that are frivolous or malicious, fail to state a claim upon
which relief may be granted, or seek monetary relief from defendants who are immune from such relief.
28 U.S.C. §§ 1915(e)(2)(B), 1915A; see also McGore v. Wrigglesworth, 114 F.3d 601, 607–08 (6th
Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). Because Buford is not
represented by an attorney, the Court liberally construes her claims and accepts her factual allegations as
true. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555–56 (2007).
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I.
Buford alleges that, on March 10, 2013, while using the toilet facility in the “single
man[’s] bathroom” located on the second floor of the FPC, she came into contact with an
exposed hot water pipe located too close to the toilet. [Record No. 1, p. 1, ¶ 4] As a result,
she claims that she sustained a painful and serious burn to her lower back and top left
buttock. [Id.] Buford asserts that the hot water pipe had not been properly insulated, and
that “it appeared the insulation had been cut.” [Id.]
Buford states that the burn was so extensive that she lost the skin in the affected area.
FPC medical staff examined her, prescribed Silvadine cream, instructed her to apply it to the
burn area, and told her that, although she had sustained a first degree burn, she would not
have a permanent scar. [Id., ¶¶ 5–6] However, Buford alleges that she now has a permanent
scar measuring 2.5 cm by 15 cm. [Id., ¶ 6] Buford alleges that she told the guard on duty
and the two physician assistants who examined her that the exposed hot water pipe on the
toilet needed to be covered with insulation2 before someone else was burned. [Record No. 1,
p. 1, ¶¶ 6–7]

Several days later, someone covered the exposed hot water pipe with

insulation. [Id., ¶ 8] However, a few weeks after the pipe was covered, Buford alleges that
“someone had cut the [insulation] again on the exact same water pipe, and it was exposed
again to burn someone else, and the Safety Department failed to repair it right away again.”
[Id., ¶ 9]
Buford alleges that, on March 15, 2013, she missed her follow-up medical
appointment because she overslept, but that she went to the medical department on the same
2
Buford repeatedly used the word “installation” in paragraphs 7–9 of her Complaint but, given the
allegations in the prior paragraphs and the overall context of her statements, it appears likely that she
meant to use the word “insulation.” [Record No. 1]
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day to reschedule her appointment. [Id., ¶ 10] At that time, Buford alleges that she was told
that the wound was healing properly and that she did not need to continue returning for
medical appointments in connection with the wound. [Id.] Buford alleges that the medical
staff instructed her to continue cleaning the wound, to continue applying the Silvadine
cream, and provided her with supplies to clean the wound. [Id.]
Buford submitted an administrative FTCA claim alleging that she had been burned by
a steam pipe which had not been properly insulated and demanding $75,000 in damages from
the government. [Record No. 1, p. 2] On May 27, 2014, the BOP acknowledged but denied
Buford’s claim (Administrative Tort Claim No. 2014-03989), finding no evidence that any
negligent act or omission on the part of a BOP employee caused Buford’s injury. [Record
No. 1-1, pp. 1–2] The BOP explained:
Investigation of your alleged claim revealed you were seen by medical on
March 10, 2013, for a superficial burn on your lower back and top of left top
buttocks. Your wound was cleaned and you were given supplies for after you
showered that evening. You were advised to discuss the issue with your
provider. You were seen in medical on March 11, 2013. There was no
blistering present and the top layer of your skin was removed.
. . . .
The facilities department checked the pipe in the bathroom that you state was
un-insulated. Their investigation revealed that the pipe in question was
properly insulated.
[Id.]
Buford filed this FTCA action on November 12, 2014.
II.
The United States 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
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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 provides 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, 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. 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.”).
Buford’s claim appears to have been timely presented to the BOP and fully exhausted.
Further, Buford timely filed the present action challenging the BOP’s denial of her claim
within the six-month period allowed by statute, 28 U.S.C. § 2401(b), and properly named the
United States as the sole defendant to this action. Therefore, the Court will direct the United
States to file a response to Buford’s FTCA claim. Because the Court has granted Buford’s
motion to proceed in forma pauperis, the Lexington Clerk’s Office will be directed to issue
Summons and the United States Marshals Service (“USMS”) will be directed serve the

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Summons and Complaint on Buford’s behalf. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. §
1915(d). Accordingly, it is hereby
ORDERED as follows:
1.

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:
a.
b.

the Complaint and attachments [Record Nos. 1, 1- 1];

c.

this Memorandum Opinion and Order; and

d.
2.

a completed Summons form;

a completed USM Form 285.

The Lexington Deputy Clerk shall deliver the Service Packet and copies to the

USMS in Lexington, Kentucky, and note in the docket the date that the Service Packet was
delivered.
3.

The USMS shall serve the United States 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.
4.

the Central Office of the Federal Bureau of Prisons in Washington, D.C.

Buford must immediately advise the Court of any change in her current

mailing address. Failure to do so may result in the dismissal of this case.

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5.

Buford must communicate with the Court solely through notices or motions

filed with the Clerk of the Court. The Court will disregard any and all correspondence
sent directly to the judge’s chambers.
6.

With every notice or motion filed with the Court, Buford must: (a) mail a copy

to the defendant (or the defendant’s attorney); and (b) at the end of the notice or motion,
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 and all notices and motions which
does not include this certification.
This 18th day of March, 2015.

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