Thrower v. USA et al
Filing
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MEMORANDUM OPINION & ORDER: 1. Throwers Complaint filed pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80, is DISMISSED WITH PREJUDICE. 2. This proceeding is STRICKEN from the Courts active docket. 3. The Court will enter an appropriate judgment. Signed by Judge Gregory F. VanTatenhove on 10/28/2014.(JMB)cc: COR, William Thrower via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
WILLIAM THROWER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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Civil No. 11-285-GFVT
MEMORANDUM OPINION
AND ORDER
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William Thrower is a federal inmate presently confined at the Federal Correctional
Institution in Talladega, Alabama (“FCI-Talladega”). Prior to his transfer to FCI-Talladega,
Thrower has been confined in various other federal correctional institutions, including the
Medical Center for Federal Prisoners located in Springfield, Missouri (“FMC-Springfield”).
While housed at FMC-Springfield, Thrower, proceeding pro se, filed this action pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, in the Western District of Missouri
on July 21, 2011. See William Thrower v. United States of America, et al., No. 11-3268-CV-S
(W.D. Mo. 2011) [R. 1]. On August 25, 2011, the Western District of Missouri transferred the
action to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404. [R. 3]. On October
19, 2011, that Court severed Thrower’s claims relating to events which transpired at USPLewisburg and transferred the remaining claims, which arose from an incident(s) and/or conduct
occurring at USP-McCreary, while Thrower was confined there, to this Court pursuant to 28
U.S.C. § 1406(a).1 [R. 13; R. 14].
1
In April of 2009, Thrower was transferred from USP-McCreary to the United States
Penitentiary-Lewisburg (“USP-Lewisburg”), located in Lewisburg, Pennsylvania. Thrower
As to the claims relating to USP-McCreary, Thrower alleges that on or about August 22,
2008, he was injured in a slip-and-fall incident while working in the kitchen at USP-McCreary.
Thrower also claims that prison personnel used excessive force and “tossed me into the back
seat” of a van in order to transport him to a medical facility for treatment after the slip-and-fall
incident at the prison, causing him further pain. [R. 1 at 4]. Second, Thrower alleges that on a
separate occasion, during the time he had been placed in the Special Housing Unit at USPMcCreary, prison personnel placed an intoxicated inmate in his cell who, once his handcuffs had
been removed, attacked him. Third, Thrower alleges that on yet another occasion he was placed
in four-point restraints after he informed an officer that he had a bottom bunk pass. [R. 1 at 5].
Fourth, Thrower contends he was transferred to the Special Management Unit at USP-Lewisburg
without a proper pre-transfer hearing.
The Court screens complaints filed by prisoners which assert claims against
governmental entities or employees, pursuant to 28 U.S.C. § 1915A(a), which requires a district
court to dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1), (2). Id.; McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997).
For the reasons stated below, all claims raised herein will be dismissed.
I
On page 1 of his Complaint, Thrower clearly indicates that he filed this action pursuant to
the FTCA, 28 U.S.C. §§ 2671-80. [R. 1, page 1]. Title 28 U.S.C. § 1346(b) grants the federal
arrived at USP-Lewisburg on April 15, 2009. See William Thrower v. United States of America,
et al., Civil Action No. 1:11-CV-1663 (M.D. Pa.) [R. 43, ¶ 24; R. 50, ¶ 24 therein].
2
district courts jurisdiction over a certain category of claims for which the United States has
waived its sovereign immunity and “render[ed]” itself liable. Richards v. United States, 369
U.S. 1, 6 (1962). The FTCA is within that category of claims.
However, a fair reading of the Complaint suggests that in addition to his FTCA claim, he
is also attempting to assert, within this FTCA action, constitutional claims pursuant to the
doctrine announced in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). A
Bivens claim is an implied right of action allowing plaintiffs to sue federal agents acting under
color of federal authority for civil rights violations. It is analogous to its statutory cousin, 42
U.S.C. § 19832, which allows federal suits against state agents who commit civil rights violations
while acting under color of state law. The required elements of a Bivens claim are (1) the
conduct complained of was by a person acting under color of law, and (2) the conduct deprived
that person of a right, privilege, or immunity secured by the Constitution. See, e.g., Grohman v.
Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (describing elements of a § 1983 claim).
“[A] Bivens action does not lie against either agencies or officials in their official
capacity.” Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002). This well-settled rule of law is
2
Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.
The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder,
95 F.3d 1199, 1204 (3d Cir. 1996).
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because a suit against a federal agency or a federal official in his or her official capacity is
essentially a suit against the United States. See Will v. Michigan Dep’t of State Police, 491 U.S.
58, 61 (1989). As a sovereign, the United States is immune from suit except when it consents to
abrogate that immunity. The immunity is jurisdictional in nature. FDIC v. Meyer, 510 U.S. 471,
475 (1994).
II
A
The Court first considers Thrower’s Bivens claims. Regardless of the merit any of
Thrower’s Bivens claims may have, these claims cannot be considered within the confines of
Thrower’s FTCA action. Thrower is free to file such claims in a separate action, and it appears
that he has already done so. On July 13, 2011, one week before he filed the present FTCA
action, Thrower filed a separate action seeking injunctive relief in the Western District of
Missouri. Thrower v. US Bureau of Prisons, et al., No. 11-3267-CV-S-DW-P (W.D. Mo.
2011).3 In an Amended Complaint filed on August 22, 2011, Thrower named the Warden at
USP-McCreary, the Warden at USP-Lewisburg, EMS, et al., as additional defendants therein.
[Id. at R. 7 therein] As it did with the present action, on September 21, 2011, the court in the
Western District of Missouri transferred this action to the Middle District of Pennsylvania.
Thrower v. Bureau of Prisons, No. 1:11-CV-1759 (M.D. Pa. 2011). That court, in turn,
transferred that action to this Court on October 24, 2011. Thrower v. US Bureau of Prisons, No.
6:11-CV-291-GFVT (E.D. Ky. 2011).
3
The Court may take judicial notice of adjudicative facts pursuant to Federal Rule of Evidence
201, and has the inherent authority to take judicial notice of official court records. United States
v. Warwick, 149 F. App’x 464, 467 (6th Cir. 2005).
4
Subsequently, in a Memorandum Opinion and Order entered on May 31, 2012, this Court
screened and considered the merits of Thrower’s Bivens claims raised in Thrower v. US Bureau
of Prisons, No. 6:11-CV-291-GFVT (E.D. Ky. 2011). [R. 25 therein]. For the reasons stated, the
Court dismissed with prejudice any and all Bivens claims asserted therein related to events
occurring at USP-McCreary involving Thrower in 2008 and 2009, prior to his transfer to USPLewisburg, and entered judgment in favor of the defendant Warden at USP-McCreary. [R. 25
therein; R. 26 therein]. Thrower appealed that dismissal to the United States Court of Appeals,
but on September 11, 2012, his appeal was dismissed for want of prosecution. [R. 29 therein].
For these reasons, the Court need not consider Thrower’s Bivens claims raised in this
FTCA action because these same claims were previously considered and dismissed in the
foregoing action, Thrower v. US Bureau of Prisons, No. 6:11-CV-291-GFVT (E.D. Ky. 2011).
[R. 25 therein]. These same Bivens claims must be dismissed from the present action under the
doctrine of res judicata. Where there has been a prior decision on the merits of a claim raised in
another proceeding, the parties are bound by that decision. Schreiber v. Philips Display
Components Co., 580 F.3d 355, 367 (6th Cir. 2009). Thus, under the doctrine of res judicata,
Thrower is bound by the Court’s prior ruling on these same claims raised in Thrower v. US
Bureau of Prisons, Civil No. 11-CV-291-GFVT, and he may not relitigate those same claims in
this action. Mitchell v. Chapman, 343 F.3d 811, 819 (6th Cir. 2003).
B
The Court now turns to Thrower’s FTCA claim. The initial inquiry is whether Thrower
has exhausted his administrative remedies vis-a-vis the FTCA claim. “The FTCA contains a
jurisdictional exhaustion component.” Rosario v. American Export-Isbrandtsen Lines, Inc., 531
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F.2d 1227, 1231 (3d Cir. 1976). First, a claim under the FTCA may only be asserted against the
United States. 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) (“The only proper defendant in an FTCA action is the United States.”).4
Second, a person may not file suit under the FTCA until he has presented a claim to the
agency for possible settlement and the agency has denied the request. 28 U.S.C. § 2675(a).
Blakely v. United States, 276 F.3d 853, 864 (6th Cir. 2002); Accolla v. U.S. Gov’t., 369 F. App’x
408 (3d Cir. 2010). See also McNeil v. United States, 508 U.S. 106, 112 (1993) (“The FTCA
bars claimants from bringing suit in federal court until they have exhausted their administrative
remedies.”). If the agency does not act within six months, the failure to issue a decision may be
treated as a final decision by the claimant. See id.
The exhibits attached to Thrower’s Amended Complaint reflect that he filed Form 95
with the BOP on July 20, 2010, wherein he complained of his placement in four-point restraints,
transfer to the SMU without a proper hearing, and a head injury from an assault after he was
transferred to USP-Lewisburg. [R. 24-1, p. 54]. The BOP identified that claim as Administrative
Claim No. TRT-NER-2010-06076. Subsequently, Thrower filed another Form 95, expressly
stating: “This is an amendment to Claim #TRT-NER-2010-06076.” [R. 24-1, p. 52]. On January
21, 2011, the BOP denied Thrower’s tort claim, acknowledging that Thrower was seeking
compensatory damages for his being assaulted by another inmate, but that he was not making
4
For this reason, by Order of December 7, 2011, the Court dismissed the Bureau of Prisons and
the Warden of USP-McCreary as defendants because they were not proper parties to this FTCA
action. [R. 19]
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any claims regarding the medical care received following the incident. The BOP’s denial letter
further stated:
. . . Investigation reveals staff responded promptly and provided emergency care.
There was [sic] no documented issues suggesting a separation concern between
you and your cellmate. There is no evidence to suggest you experienced a
compensable loss as the result of negligence on the part of any Bureau of Prisons
employee. Accordingly, your claim is denied.
[R. 24-1, p. 53].
Thus, Thrower’s negligent failure to protect claim is fully exhausted, entitling him to
bring a complaint for judicial review of the BOP’s denial of his FTCA claim. The analysis of
this claim starts with the fundamental principle that the United States government may not be
sued without its consent. United States v. Orleans, 425 U.S. 807, 814 (1976) (observing that “the
United States can be sued only to the extent that it has waived its immunity”). Pursuant to the
FTCA, the United States has consented, subject to certain exceptions, to suit for damages for
personal injuries caused by the negligence of government employees acting within the course
and scope of their employment. See 28 U.S.C. §§ 1346(b), 2671–2680.
A significant limitation on the scope of the FTCA’s waiver of sovereign immunity is the
discretionary function exception, 28 U.S.C. § 2680(a), which provides that the United States has
not consented to suit where the claim is “based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.” Because the
United States has not waived its sovereign immunity with respect to discretionary functions,
courts lack subject matter jurisdiction over acts falling within the discretionary function
exception. Rosebush v. United States, 119 F.3d 438, 440 (6th Cir.1997).
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To determine whether the discretionary function exception to the waiver of immunity
applies, a court must determine (1) whether the act involves an element of judgment or choice,
rather than a course of action prescribed by a federal statute, regulation, or policy; and (2) even if
the challenged conduct involves an element of judgment, whether that judgment is of the kind
that the discretionary function exception was designed to shield. Mitchell v. United States, 225
F.3d 361, 363 (3d Cir. 2000).
The BOP conduct at issue in this case—the alleged failure to protect Thrower from his
assailant - is governed by a federal statute which requires the BOP to provide for the “protection”
and “safekeeping” of inmates in its care. See 18 U.S.C. § 4042(a)(2), (3). This statute leaves the
implementation of these duties to the discretion of prison officials and “how best to protect one
inmate from the threat of attack by another is of the kind that the discretionary function
exception was designed to shield.” Donaldson v. United States, 281 F. App’x 75, 76-78 (3d Cir.
2008); see also Rinaldi v. United States, 460 F. App’x 80 (3d Cir. 2012). There is no federal
statute, regulation or policy that requires the BOP to take a particular course of action to ensure
an inmate’s safety from attacks by other inmates. Rinaldi, 460 F. App’x at 81.
Courts within this circuit and others have uniformly held that federal prisoners’ FTCA
claims for injuries by fellow inmates are barred by the discretionary function exception. See
Whitley v. Albers, 475 U.S. 312 (1986); Rinaldi, 460 F. App’x 80; Montez v. United States, 359
F.3d 392 (6th Cir. 2004); Mitchell, 225 F.3d 361; Cohen v. United States, 151 F.3d 1338 (11th
Cir. 1998); Calderon v. United States, 123 F.3d 947 (7th Cir. 1997). These cases demonstrate
that measures taken by BOP officials with respect to inmate safety from attacks by other inmates
involve an element of judgment or choice. “[E]ven if § 4042(a) imposes on the BOP a general
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duty of care to safeguard prisoners, the BOP retains sufficient discretion in the means it may use
to fulfill that duty to trigger the discretionary function exception.” Cohen v. United States, 151
F.3d at 1342.
As to the second prong, as noted supra, a judgment as to how best to protect one prisoner
from attack by another is of the kind that the discretionary function exception was designed to
shield. Mitchell, 225 F.3d at 363; see, e.g., Bell v. Wolfish, 441 U.S. 520, 547–48 (1979)
(holding that prison administrators should be afforded wide-ranging deference in implementing
and executing policies because discretion is needed to preserve internal discipline and maintain
institutional security); Whitley v. Albers, 475 U.S. 312, 321–22 (1986) (prison officials have
discretionary power over the safety of the institutions they operate).
Because both prongs of the two-part test are satisfied, Thrower’s negligent failure to
protect claim is barred by the discretionary function exception to the FTCA. As seen in
Rosebush v. United States, 119 F.3d 438, 440 (6th Cir. 1997), a federal district court lacks
subject matter jurisdiction over acts falling within the discretionary function exception.
III
Because the Court lacks subject matter jurisdiction to entertain Thrower’s FTCA claim,
the Complaint will be dismissed, and judgment entered in favor of the United States.
Accordingly, IT IS HEREBY ORDERED as follows:
1.
Thrower’s Complaint filed pursuant to the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 2671-80, is DISMISSED WITH PREJUDICE.
2.
This proceeding is STRICKEN from the Court’s active docket.
3.
The Court will enter an appropriate judgment.
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This the 28th day of October, 2014.
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