Petrovic v. USA

Filing 32

OPINION & ORDER: 1. The defendant's 16 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment is GRANTED in full; 2. The plaintiff's claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, again st the United States defendant is DISMISSED without prejudice; 3. The plaintiff's Eighth Amendment claims under 28 U.S.C. § 1331 against Officers Goodwin and Lawrenz defendants are DISMISSED without prejudice; 4. The plaintiff's objec tions (DE 24 , 26 ) to Magistrate Judge Ingram's report & recommendations are DISMISSED with prejudice; 5. The plaintiff's 27 motion for criminal prosecution for perjury is DISMISSED with prejudice. Signed by Judge Karen K. Caldwell on 9/21/2017.(KM)cc: COR, Pltf via U.S. Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
JOVICA PETROVIC,

CIVIL ACTION NO. 5:16-167-KKC-HAI

Plaintiff,
V.

OPINION & ORDER

UNITED STATES et al.,
Defendants.

*** *** ***
This matter is before the Court on a report and recommendation (DE 23) from Magistrate
Judge Hanly A. Ingram. For the following reasons, plaintiff’s objections are DENIED and
defendants’ motion to dismiss, or in the alternative, motion for summary judgment (DE 16)
is GRANTED.

Plaintiff’s motion for criminal prosecution (DE 27) is DISMISSED, and

plaintiff’s tendered surreply is STRICKEN from the record.

I.

Background

At the time of the events contained within his Complaint, plaintiff Jovica Petrovic was an
inmate at the Federal Medical Center (FMC)-Lexington in Lexington, Kentucky. On May 27,
2016, Petrovic filed this civil rights action asserting constitutional claims, pursuant to the
doctrine announced in Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971),
and negligence and common law tort claims under the Federal Tort Claims Act (FTCA). 28
U.S.C. §§ 1346(b), 2671-2680. Petrovic’s complaint names FMC-Lexington Officers Goodwin
and Lawrenz and the United States of America as defendants. (DE 1).

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In his complaint, Petrovic alleges that he began having heart palpitations on the morning
of July 19, 2015, while incarcerated at FMC-Lexington, and that he fell asleep while lying
down in an effort to get the palpitations to subside. (DE 1 at 2). At approximately 10:15 AM,
Officer Goodwin awoke Petrovic while performing the morning stand-up count. Id. Petrovic
alleges that Officer Goodwin “lifted [his] bed, like a mad men [sic], [and] dropped it to the
floor in an effort to awake [sic] and startle plaintiff.” Id. Officer Goodwin “demanded” that
Petrovic come to his office after the count. Id.
At 10:30 AM, Petrovic went to Officer Goodwin’s office and explained his history of heart
disease and his earlier heart palpitations. Id. Petrovic alleges that Officer Goodwin ignored
his medical condition and offered him a “choice of ‘EXTRA DUTY’ or ‘shot-write up’ [sic] as
punishment” for not standing during “count.” Id. Before he could make a choice, Goodwin
“maliciously and sadistically, for the very purpose of causing harm” told him that he would
have to perform two hours of extra duty “knowing that the temperature outside was
extremely hot.” Id. Petrovic claims he attempted to show Officer Goodwin his medical pass
allowing only sedentary work, but was told that he could sit down while picking up weeds,
and that he was not permitted to take a water bottle outside. Id. at 2-3.
Officer Lawrenz supervised Petrovic while he picked weeds. Id. at 3. Plaintiff alleges
that around 11:00 AM, he lay down because he was “sweating profusely,” but Officer Lawrenz
told him that he could not lie down and did not allow him to have water. Id. He was released
from extra duty at 12:00 PM and went to the central clinic to have his heart palpitations
checked, “but he found no one there who could help him…because it was a Sunday” and was
told to report back on Monday. Id. Petrovic claims that as a result of the events on July 19,
2015, he “suffered pain and suffering and injuries, including pain in the head and chest…for
approximately four [] weeks.” Id. Plaintiff seeks monetary relief for his injuries. Id. at 6.

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In response to the alleged conduct of Officers Goodwin and Lawrenz, Petrovic claims that
he sent a Standard Form 95-Claim for Damage, Injury or Death (SF 95) to the Central Office
of the Federal Bureau of Prisons in Washington, D.C., per certified first class mail on
November 5, 2015. (DE 18 at 1). On November 13, 2015, Petrovic received confirmation from
the United States Postal Service tracking website that his package had been delivered. Id.;
(DE 18-2).

In his amended objections to the Magistrate’s recommendations, Petrovic

attached a document containing an alleged signature of a BOP employee who signed for the
package received in Washington, D.C., on November 11, 2015. (DE 26 at 3). According to
official records maintained by the BOP, and produced by the defendants, however, Petrovic
has not filed any administrative remedies with the BOP in association with either of the
claims listed in his complaint. (DE 16-1 at 5,7).
On May 27, 2016, Petrovic filed the instant action in the United States District Court for
the Eastern District of Kentucky at Lexington. (DE 1). Defendants filed a motion to dismiss,
or in the alternative, motion for summary judgment on February 21, 2017. (DE 16). Petrovic
filed a response to defendants’ motion on February 28, 2017 (DE 18), and defendants filed a
reply on March 15, 2017. (DE 21). On March 28, 2017, Petrovic tendered a surreply to
defendants’ reply, without leave of the Court. (DE 22). In response to the Magistrate Judge’s
recommendations, Petrovic has filed objections and defendants have responded. (DE 24, 25).

II.

Analysis

A. Federal Tort Claims Act
a. Standard of Review
Petrovic asserts that the United States is liable to him in tort. Pursuant to the doctrine
of sovereign immunity, the United States must consent to be sued before a tort action may
be maintained. Lundstrum v. Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991). If the United States
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consents to be sued, the terms of that consent govern the jurisdiction of the district court.
See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); see also United States v. Sherwood, 312 U.S.
584, 586 (1941). The Federal Tort Claims Act (FTCA) is a limited waiver of the government’s
sovereign immunity for certain tort claims. 28 U.S.C. §§ 1346(b), 2671-2680; see also Molzof
v. United States, 502 U.S. 301, 305 (1992). Therefore, the terms of the Act govern the
jurisdiction of this Court. F.D.I.C., 502 U.S. at 305.
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to attack subject matter
jurisdiction. When subject matter jurisdiction is attacked, the burden of proof rests with the
party asserting jurisdiction. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d
266, 269 (6th Cir. 1990). Rule 12(b)(1) attacks come in two forms: facial attacks and factual
attacks. United States v. Ritchie, 15 F.3d 592, 598 (6Th Cir. 1994). In this case, the United
States has factually attacked this Court’s subject matter jurisdiction by claiming that the
plaintiff has not complied with the exhaustion requirements of the FTCA, relying on an
affidavit by a Paralegal of the Lexington Consolidated Legal Center who searched the BOP’s
administrative records. (DE 16).
When a court rules on a factual attack of subject matter jurisdiction, “no presumptive
truthfulness applies to the factual allegations, and the court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.” Id. (citations omitted). A court
reviewing a factual attack on subject matter jurisdiction is free to consider evidence outside
of the pleadings. Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014); see also RMI
Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.).
b. Discussion
Under the FTCA, the government has consented to being sued in tort, “but only insofar
as the plaintiff has exhausted his administrative remedies.” Blakely v. United States, 276

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F.3d 853, 864 (6th Cir. 2002). Before bringing suit in federal court, a claimant must have
“first presented the claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or registered mail.” 28 U.S.C. §
2675(a). The appropriate Federal agency for Petrovic’s claim is the regional office of the BOP
where the tort occurred. 28 C.F.R. § 14.2(b)(1) (“A claim shall be presented to the Federal
agency whose activities gave rise to the claim.”); 28 C.F.R. § 543.31 (“[Claimant] may either
mail or deliver the claim to the regional office in the region where the claim occurred.”).
Written notice needs to be sufficient to enable the appropriate agency to investigate the
claim. Douglas v. U.S., 658 F.2d 445, 447 (6th Cir. 1981). As such, delivery or mailing of an
FTCA claim to an office other than the regional office where the injury occurred is insufficient
to qualify as presentment of the claim to the United States. See Holt v. Morgan, 79 Fed.Appx.
139, 2003 WL 22435666 (6th Cir. 2003) (finding that FTCA presentment requirement is not
met where claimant files a letter without sum certain and with an EEOC Administrative
Judge rather than the agency where the injury occurred); see also Sandler v. U.S., No. 6:11206-GFVT, 2011 WL 3797737 (E.D. Ky. Aug. 25, 2011) (finding that delivering a claim to the
local Federal Medical Center, rather than the regional BOP office, did not satisfy the FTCA
presentment requirement).
In this case, Petrovic states that he never received a response to his FTCA claim, despite
having completed and mailed a Standard Form 95. (DE 18). Even assuming the truthfulness
of that statement, the Court concludes that he received no response because he sent the claim
to the BOP Central Office in Washington, D.C., instead of to the BOP’s Regional Office in the
region where the claim occurred.1 (DE 18, at 1). Notably, an affidavit and electronic records
search by Robin Eads, a Paralegal of Lexington Consolidated Legal Center with access to

The Federal Medical Center in Lexington, KY is located in the BOP’s Mid-Atlantic Region. The BOP’s Regional
Office for the Mid-Atlantic Region is located at 302 Sentinel Drive, Suite 200, Annapolis, MD 20701.
1

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administrative records maintained by the BOP, found no record that Petrovic ever filed or
presented a claim to the BOP regarding his FTCA claims against the United States. (DE 162, at 2). The BOP’s Regional Office cannot be said to have been put on notice of Petrovic’s
claim. As such, Petrovic has not properly presented his claim to the appropriate agency, or
received final denial, under the terms of the FTCA. 28 U.S.C. §§ 2675(a), 543.31; 28 C.F.R.
§ 14.2(b)(1). Since Petrovic has not exhausted his administrative remedies, this Court lacks
subject matter jurisdiction and must dismiss the claim. Blakely, 276 F.3d at 864.
In his recommendations, the Magistrate Judge reviewed Petrovic’s FTCA claim under a
summary judgment standard. (DE 23, at 3-9). That standard does not change the outcome.
Even viewing the evidence in the light most favorable to the plaintiff, Petrovic has admitted
that he sent his SF-95 form to the BOP Central Office in Washington, D.C., rather than the
appropriate BOP Regional Office where the injury occurred. (DE 18, at 1). As analyzed
above, this does not amount to compliance with the FTCA’s jurisdictional requirements.
Accordingly, no genuine dispute of material fact exists, and the United States is entitled to
judgment as a matter of law.
B. Eighth Amendment Bivens Claim
a. Standard of Review
Petrovic asserts that the actions of Officers Goodwin and Lawrenz showed a deliberate
indifference to his serious medical needs on July 19, 2015, violating the Eighth Amendment’s
prohibition against cruel and unusual punishment. (DE 1, at 5). Officers Goodwin and
Lawrenz claim that Petrovic has not exhausted all available administrative remedies, as
required by the Prison Litigation Reform Act of 1995 (PLRA). See 42 U.S.C. § 1997e; see also
Porter v. Nussle, 534 U.S. 516, 532 (2002) (“…[W]e hold that the PLRA’s exhaustion
requirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
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wrong.”). In support, Officers Goodwin and Lawrenz rely on an affidavit outside of the
pleadings showing no record of Petrovic ever attempting to use the BOP’s Administrative
Remedy Program. (DE 16-1, at 7).
Unlike under the FTCA, exhaustion under the PLRA is treated as an affirmative defense
in this Circuit, and “is a prerequisite or precondition for bringing suit in any court.” Lee v.
Willey, 789 F.3d 673, 678 (6th Cir. 2015). The exhaustion requirement is “mandatory, but not
jurisdictional.” Id. at 677.
If the district court relies on evidence outside the pleadings in determining exhaustion, a
Rule 12(b)(6) motion to dismiss should be converted to a Rule 56 summary judgment motion.
Fed. R. Civ. P. 12(d); see also Ohio Nat. Life Ins. Co. v. United States, 922 F. 2d 320, 325 (6th
Cir. 1990). Since the Court has looked to evidence outside of the pleadings to properly
adjudicate Petrovic’s PLRA claim, Rule 56 applies.
Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In reviewing the motion, “…the evidence should be viewed in the light most
favorable to the non-moving party.” Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999) (citing
Anderson, 477 U.S. at 255). Moreover, entry of summary judgment is mandated, “after
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). When a defendant moves for summary judgment, “[t]he mere existence of a scintilla
of evidence in support of the plaintiff’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).

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Petrovic has received the defendants’ motion for summary judgment (DE 16), has
responded to that motion (DE 18), has received the Magistrate Judge’s recommendation that
this claim be dismissed through summary judgment (DE 23), and has raised and amended
objections to that recommendation (DE 24 and 26). Petrovic has had a full opportunity to
conduct discovery and respond, and this claim is ripe for review.
b. Discussion
Proper exhaustion under the PLRA requires a plaintiff’s “compliance with an agency’s
deadlines and other critical procedural rules….” Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Determining whether proper exhaustion has occurred requires analysis of the BOP’s
administrative process, because “it is the prison’s requirements, and not the PLRA, that
define the boundaries of proper exhaustion.”

Jones v. Bock, 549 U.S. 199, 218 (2007).

Further, administrative attempts to pursue an “FTCA claim have no bearing on whether or
not [a claimant has] exhausted his Bivens claim.” Brocket v. Parks, 48 Fed.Appx. 539, 2002
WL 31260347 (6th Cir. 2002).
The BOP employs a four-tiered administrative remedy scheme, available to any inmate
who has a complaint about his confinement. The procedure for filing an administrative
remedy is set out in the Administrative Remedy Program Statement 1330.17 and 28 C.F.R.
§§ 542.10-542.19. First, an inmate should present an issue of concern informally to staff, and
the staff member shall attempt to resolve the issue before a formal request or a Request for
Administrative Remedy is submitted. 28 C.F.R. § 541.13(a). If the issue cannot be resolved
informally, an inmate may begin the formal remedy process by filing an appropriate Request
for Administrative Remedy Form (“BP-9”) to the warden of the institution. 28 C.F.R. §
542.14. If the inmate does not find the warden’s response satisfactory, he has the option to
appeal his grievance to the Regional Director in the geographical region in which his place of
confinement is located. 28 C.F.R. § 542.15. The inmate must use the appropriate Regional
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Director Administrative Remedy Appeal form (“BP-10”).

Id.

If the inmate remains

unsatisfied with the Regional Director’s response, he next has the option of appealing to the
office of the General Counsel of the BOP (“OGC”) provided that he utilizes the proper Central
Office Administrative Remedy form (“BP-11”). Id. Appeal to the OGC is the final step in the
administrative appeal process in the BOP’s Administrative Remedy Scheme. Id.
The affidavit and electronic search of the BOP’s records for the Administrative Remedy
Program completed by Robin Eads showed no administrative filings by Petrovic in connection
with his claims against Officers Goodwin or Lawrenz. (DE 16-2, at 2). In response to the
Officers’ affirmative defense, Petrovic has put on no evidence that he exhausted the
administrative process outlined above. Instead, Petrovic argues that his Eighth Amendment
claims are not subject to the administrative process because administrative officials within
the program do not have authority to award money damages for tort claims. (DE 18, at 2).
This argument fails. Under the PLRA, prisoners are required to exhaust all administrative
remedies regardless of the relief offered. Booth v. Churner, 532 U.S. 731, 741 (2001).
Since Petrovic has provided no evidence that he exhausted the available administrative
remedies outlined above, no genuine dispute of material fact exists as to Petrovic’s exhaustion
under the PLRA.

Since exhaustion is a prerequisite to suit, Petrovic’s Eighth Amendment

claims must be dismissed. 42 U.S.C. § 1997e(a); see also Jones, 549 U.S. at 219-220 (“All
[courts] agree that no unexhausted claim may be considered.”); see also Lee v. Wiley, 789 F.3d
673, 678 (6th Cir.) (“[E]xhaustion under the PLRA…is a prerequisite or precondition for
bringing suit in any court.”).
C. Petrovic’s Surreply
In this case, the Court ordered that all dispositive motions be briefed in accordance with
Local Civil Rule 7.1(c), which provides: “Unless otherwise ordered by the Court, a party
opposing a motion must file a response within 21 days of service of the motion…A party may
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file a reply within 14 days of service of the response.” Local Civ. R. 7.1. The Court did not
grant either party leave to file a response or reply beyond what Rule 7.1 permits.
Since defendants filed the initial dispositive motion in this case (DE 16), they were
permitted to file a reply to Petrovic’s response (DE 18) opposing their initial motion, which
they did on March 15, 2017 (DE 21). On March 28, 2017, Petrovic attempted to have the last
word on defendants’ motion for summary judgment by tendering a surreply to the Court. (DE
22). Because Petrovic did not have leave to file a surreply, it is stricken from the record.
Consideration of Petrovic’s surreply would not alter any analysis in this case.

The

substantive arguments raised in the surreply were all included in Petrovic’s objections to the
Magistrate Judge’s recommendations. (DE 22, 25). Petrovic’s objections are considered
below.
D. Objections to Magistrate Judge’s Recommendations
Petrovic claims to have sent an SF-95 form to the Bureau of Prisons on November 5, 2015,
but admits that his mailing was addressed to the BOP Central Office in Washington, D.C.,
rather than the appropriate Regional Office in Maryland. (DE 18, at 1). Petrovic now objects
to the Magistrate Judge’s dismissal, contending that the BOP Central Office should have
transferred his claim to the appropriate Regional Office. (DE 24, at 1-2). Petrovic claims
that “nowhere state[s] that a FTCA claim MUST be presented in the region where the tort
occurred.” Id. This argument is directly contradicted by the plain language of the relevant
statutes. 28 C.F.R. § 14.2(a) (“A claim shall be presented to the Federal agency whose
activities gave rise to the claim.”); 28 C.F.R. § 543.31 (“If the loss or injury occurred in a
specific regional office or within the geographical boundaries of the region, [claimant] may
either mail or deliver the claim to that regional office.”); see also Sandler v. United States,
No. 6:11-206-GFVT, 2011 WL 3797737, at 2 (E.D. Ky. Aug. 25, 2011) (“[The plaintiff’s]
delivery of his FTCA claim to FMC-Lexington [, instead of the appropriate regional office of
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the BOP,] is, therefore, insufficient to qualify as presentment of his claim to the United
States.”). Waiver of sovereign immunity is to be strictly construed. See U.S. v. Nordic Village
Inc., 503 U.S. 30, 34 (1992). Petrovic’s mailing does not meet the language of the Act,
regardless of alleged action or inaction by the Bureau of Prisons. As such, this objection is
without merit.
Next, Petrovic objects to his ability, as a prisoner, to prove the contents of the package
that he allegedly mailed to the BOP Central Office. (DE 24, at 2). Even if Petrovic could
establish that his SF 95 form had been mailed to the BOP Central Office, however, his
mailing was not in compliance with the plain language of the FTCA, as discussed above. As
such, this objection is without merit.
Finally, Petrovic objects to the Court’ reliance on the declaration of Ms. Eads in which she
found no proof of Petrovic’s alleged SF-95 filing within the BOP’s administrative records.
(DE 24, at 3). The Court notes that the declaration of Ms. Eads was attested to and signed
under penalty of perjury. (DE 22, at 3). Ms. Eads stated that “[a]ll administrative claims”
received under the FTCA are maintained in Content Manager, and that she has access to
Content Manager records maintained by the Bureau of Prisons as a Paralegal at the
Lexington Consolidated Legal Center. (DE 22, at 1-2). The Court is satisfied that Ms. Eads
has the ability to access these records and is qualified to speak as to the results of the searches
she performed while looking for Petrovic’s FTCA claim. This objection is without merit.
E. Motion For Criminal Prosecution For Perjury
The Court has found no evidence that Ms. Eads, a Paralegal who searched the BOP’s
administrative records in connection with this case, presented any sort of false statement.
As such, the Court can find no merit or legal basis for Petrovic’s attack on her testimony.

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III.

Conclusion

Accordingly, it is hereby ORDERED that:
(1) The defendants’ motion to dismiss, or in the alternative for summary judgment (DE
16) is GRANTED in full;
(2) The plaintiff’s claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 26712680, against the United States defendant is DISMISSED without prejudice;
(3) The plaintiff’s Eighth Amendment claims under 28 U.S.C. § 1331, pursuant to Bivens
v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971), against Officers
Goodwin and Lawrenz defendants are DISMISSED without prejudice;
(4) The plaintiff’s objections (DE 24, 26) to Magistrate Judge Ingram’s report and
recommendation are DISMISSED with prejudice;
(5) The plaintiff’s motion for criminal prosecution for perjury (DE 27) is DISMISSED
with prejudice.
Dated September 21, 2017.

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