Green v. United States of America et al

Filing 12

MEMORANDUM OPINION & ORDER: 1. Plaintiff John Green's Bivens claims are DISMISSED, with prejudice. 2. Plaintiff John Green's claims against Defendant PA Karen Baker are DISMISSED, with prejudice. Defendant PA Karen Baker is DISMISSED from thisaction. 3. Deputy Clerk shall prepare two "service packets" consisting of items a-d. 4. Clerk shall send the service packets to USM Office and shall note in the docket the date delivered to USM; 5. USMS shall serve USA by sending ser vice packet to: a) Office of the US Atty for EDKY; and b) Office of the Atty. General of the US. 6. Plff SHALL Immediately advise the Clerks Office of any change in his current mailing address. Failure to do so may result in dismissal of this case . 7. Communicate with the Court solely through notices or motions filed with the London Clerks Office. The Court will disregard correspondence sent directly to the judges chambers. 7. In every notice, motion, or paper filed with the Court, certify i n writing that he has mailed a copy to every defendant (or his or her attorney) and state the date of mailing. The Court will disregard any notice or motion which does not include this certification. Karen Baker terminated. Signed by Judge Danny C. Reeves on 1/17/14.(SYD)cc: mailed to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
JOHN GREEN,
Plaintiff,
V.
UNITED STATES OF AMERICA,
and KAREN BAKER,
Defendants.

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Civil Action No. 6: 13-142-DCR

MEMORANDUM OPINION
AND ORDER

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John Green is an inmate confined at the United States Penitentiary — McCreary in
Pine Knot, Kentucky. Proceeding without an attorney, Green filed a Complaint under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, and under 28
U.S.C. § 1331 pursuant to the doctrine announced in Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). [Record No. 1] Because Green has been granted
permission to pay the filing fee in installments, and because he asserts claims against
government officials, the Court must conduct a preliminary review of his Complaint. 28
U.S.C. §§ 1915(e)(2), 1915A.
A district court is required to 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). Additionally, the Court evaluates Green’s Complaint under a
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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). Thus, at this
stage, Green’s factual allegations are accepted as true and his legal claims are liberally
construed in his favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
In his Complaint, Green alleges that he has been complaining to prison medical
staff about a skin rash for more than four years. [Record No. 1, pp. 2-3] He contends
that his assigned health care provider Physician’s Assistant (“PA”) Karen Baker has
refused to provide additional or different care, or to refer him to an outside specialist.
[Record No. 1, pp. 2-3] Notwithstanding Green’s assertions, on July 14, 2011 at his
request, Green was examined by the Bureau of Prisons’ (“BOP”) Regional Mast
Physician. [See id., p. 13.] Green was diagnosed with eczema, a chronic condition which
causes skin inflammation that is treated palliatively, and for which there is no known
cure. [See id., pp. 13, 16.] While the physician prescribed a fluocinonide cream to treat
any flare-ups, Green contends that the medication failed to treat his ailments. [Id., pp. 3,
9-10]
On July 15, 2011, Green filed an informal grievance alleging that his condition
had persisted for more than two years and that repeated visits to the health services
department at the prison had failed to properly treat his condition.

[Id., pp. 8-9]

However, after receiving his informal grievance, prison officials denied the relief
requested by Green. [Id., p. 10] This decision was affirmed in subsequent appeals to the
warden and to the BOP’s Regional Office. On May 2, 2012, the BOP’s Central Office
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denied Green’s appeal, concluding that the treatment provided to him was appropriate.
Green was advised to work with his health care providers to treat the symptoms of this
chronic condition. [See id., pp. 10-16.]
Unsatisfied with this determination, on July 7, 2012, Green filed a Standard Form
95, Claim for Damage, Injury, or Death, with the BOP, thereby satisfying the first step in
exhausting a claim under the FTCA. [Id., pp. 18-19] The BOP denied his claim on
December 11, 2012, again finding that the medical care he was receiving was
appropriate. Green was advised that if he disagreed with this determination he had six
months to file suit with the appropriate district court. [Id., p. 23] On May 28, 2013,
Green filed his Complaint with United States District Court for the District of Columbia.1
[See id., p. 1.] The matter was subsequently transferred to this Court.2 [See Civil Docket
Sheet, Clerk’s Note, Record No. 1; see also Record No. 6.]
Green claims that the defendants have been deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment — a claim actionable under Bivens.
He also alleges that the defendants’ insufficient medical treatment constitutes negligence
and infliction of emotional distress under state law — claims actionable under the FTCA.
[Record No. 1, pp. 4-5] However, after reviewing the Complaint, the Court concludes

1

Although Green’s Complaint was not docketed by the United States District Court for the District of
Columbia until June 26, 2013, the Complaint is file-stamped as having been received on May 31, 2013. [Record
No. 1, p. 1] Nonetheless, because Green is entitled to the benefit of the “prison mailbox” rule, his Complaint is
deemed to have been filed on May 28, 2013, the date he provided his Complaint to prison officials for filing. See
Richard v. Ray, 290 F.3d 810, 812-13 (6th Cir. 2011).
2

The Clerk’s notation on the Civil Docket Sheet of this matter indicates that this action was transferred from
the United States District Court for the District of Columbia on July 23, 2013; however, Green’s Complaint was
docketed as being filed with this Court on June 26, 2013. [See Civil Docket Sheet, Record No. 1.]

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that Green’s constitutional claims against PA Karen Baker are time-barred and must be
dismissed. Additionally, his Bivens claims asserted against the United States and PA
Baker, in her official capacity, are barred by sovereign immunity and will be dismissed.
Finally, because Green’s claims under the FTCA are timely, they will not be dismissed
and the United States will be required to file a response.
A.

Bivens Claims

Neither 42 U.S.C. § 1983 nor the judicially-crafted remedy under Bivens includes
a statutory limitations period. Accordingly, federal courts apply the most analogous
statute of limitations of the state where the events occurred. Wilson v. Garcia, 471 U.S.
261, 268-71 (1985). The events about which Green complains occurred in Kentucky.
Therefore, Kentucky’s one-year statute of limitations for asserting personal injuries
applies. Ky. Rev. Stat. § 413.140(1)(a); Mitchell v. Chapman, 343 F.3d 811, 825 (6th
Cir. 2003); Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990).
In a Bivens action, federal law supplies its own rule of claim accrual. Collyer v.
Darling, 98 F.3d 211, 220 (6th Cir. 1996). The statute of limitations begins to run when
a plaintiff knows, or has reason to know through the exercise of reasonable diligence, of
the injury that provides the basis for the claim. Kelly v. Burks, 415 F.3d 558, 561 (6th
Cir. 2005). In his July 15, 2011 informal grievance, Green complained that his condition
had persisted, even after repeated visits to the prison’s health services department and he
requested a more effective treatment. [Record No. 1, pp. 8-9] Given Green’s knowledge
of his condition and his dissatisfaction with the treatment provided, the July 15, 2011
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informal grievance indicates that his Bivens claim accrued no later than that date.
Therefore, Green’s Complaint had to be filed by July 15, 2012, to be timely.
Federal law requires prisoners to exhaust their administrative remedies prior to
filing suit. 28 U.S.C. § 1997e(a). To avoid being placed in a “catch-22” the statute of
limitations is tolled while a prisoner pursue administrative remedies, provided the
prisoner is dilligent and his efforts are timely. Brown v. Morgan, 209 F.3d 595, 596 (6th
Cir. 2000); Cuco v. Fed. Med. Center–Lexington, No. 05-CV-232-KSF, 2006 WL
1635668, at *25-26 (E.D. Ky. 2006) (citing Miller v. Collins, 305 F.3d 491, 495-96 (6th
Cir. 2002)), aff’d, 257 F. App’x 897 (6th Cir. 2007). Here, the statute of limitations was
tolled while Green pursued his administrative remedies from July 15, 2011, until the
Central Office’s final denial on May 2, 2012. [Record No. 1, p. 16] Therefore, Green
was required to file his Complaint no later than one year from May 2, 2012. However,
because he did not file suit until May 28, 2013, his Bivens claims are untimely and must
be dismissed. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001).
To the extent Green intends to assert his Bivens claims against the United States,
such claims are barred by sovereign immunity. Parks v. Reans, 510 F. App’x 414, 415
(6th Cir. 2013) (“The United States has not waived immunity to Bivens-type actions.”)
(internal citations omitted). Likewise, Green’s attempt to assert his Bivens claims against
PA Baker in her official capacity fairs no better. Such claims against government agents
in their official capacities are effectively claims made against the federal agency that
employs that individual.

Here, an official capacity claim against PA Baker would
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effectively be a suit against the BOP. See Hafer v. Melo, 502 U.S. 21, 25 (1991).
However, federal agencies may not be sued under Bivens. Salt Lick Bancorp v. F.D.I.C.,
187 F. App’x 428, 435 (6th Cir. 2006). Thus, to the extent Green asserts his Bivens
claims against the United States and PA Baker in her official capacity, these claims will
be dismissed.
B.

FTCA Claims

A district court has subject matter jurisdiction over an FTCA claim only if the
plaintiff previously presented his claim for administrative settlement to the appropriate
federal agency within two years of its accrual and within six months after the agency has
issued a final denial of the claim. 28 U.S.C. §§ 2401(b), 2675(a); Humphrey v. U.S. Att’y
Gen.’s Office, 279 F. App’x 328, 331-33 (6th Cir. 2008); Blakely v. United States, 276
F.3d 853, 865 (6th Cir. 2002). The FTCA’s statute of limitations is to be strictly
construed and bars suits that do meet these two requirements. Blakely, 276 F.3d at 865.
Green timely presented his claims for administrative settlement on July 7, 2012. He also
filed suit within six months of the BOP’s December 11, 2012 denial of these claims. [See
Record No. 1, p. 23.] Thus, because Green’s FTCA claims appear timely and his
allegations adequately state a claim for relief, a response from the United States is
warranted.
Finally, to the extent Green is attempting to assert his FTCA claims against
individual federal employees, such claims will be dismissed. The FTCA permits an
action only against the United States, not against individual federal employees or federal
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agencies. 28 U.S.C. § 2677; Mars v. Hanberry, 752 F.2d 254, 255-56 (6th Cir. 1985)
(holding that naming federal employees as defendants in an FTCA action rendered the
complaint jurisdictionally defective); Smith v. United States, No. 4: 10-CV-P47, 2010
WL 3927506, at *3 (W.D. Ky. Oct. 4, 2010) (citations omitted). Accordingly, Green’s
FTCA claims against PA Baker will be dismissed.
Because Green has been granted pauper status, the London 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.

Plaintiff John Green’s Bivens claims are DISMISSED, with prejudice.

2.

Plaintiff John Green’s claims against Defendant PA Karen Baker are

DISMISSED, with prejudice. Defendant PA Karen Baker is DISMISSED from this
action.
3.

A Deputy Clerk in the London Clerk’s Office shall prepare two “Service

Packets” consisting of the following documents for service of process upon the United
States of America:
a.

a completed summons form;

b.

the Complaint [Record No. 1];

c.

this Order; and

d.

a completed USM Form 285.

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4.

The London Deputy Clerk shall send the Service Packets to the USMS in

Lexington, Kentucky, and note in the docket the date that they were delivered to the
USMS.
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; and (b) the Office of the
Attorney General of the United States in Washington, D.C.
6.

The plaintiff must immediately advise the London Clerk’s Office of any

change in his current mailing address. Failure to do so may result in dismissal of this
case.
7.

The plaintiff must communicate with the Court solely through notices or

motions filed with the London Clerk’s Office. The Court will disregard correspondence
sent directly to any judge’s chambers.
8.

With every notice or motion filed with the Court, the plaintiff must: (a)

mail a copy to each defendant (or to his or her attorney); and (b) at the end of the notice
or motion, certify that he has mailed a copy to each defendant (or to his or her attorney)
and the date on which this was done. The Court will disregard any notice or motion
which does not include this certification.

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This 17th day of January, 2014.

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