Lancaster v. USP McCreary et al

Filing 33

MEMORANDUM OPINION AND ORDER: 1) Lancaster's Motion for Emergency Stay Pending Motion for Reconsideration [Record No. 32] is DENIED; 2) The claims asserted in Plaintiff's Complaint [Record No. 1] are DISMISSED WITH PREJUDICE; 3)Judgment will be entered contemporaneously with this Memorandum Opinion and Order. Signed by Judge Danny C. Reeves on 6/26/2017.(RC)cc: COR, paper copy to pro se filer via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
CHRISTOPHER LANCASTER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

Civil Action No. 6: 16-175-DCR

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
Plaintiff Christopher Lancaster has filed a pro se complaint alleging that, in 2012,
unidentified officers at the United States Penitentiary – McCreary in Pine Knot, Kentucky
stomped his legs while trying to force him into a cell. He further alleges that he was placed
in a holding cell for 24 hours with no blanket, mattress, or toilet. [Record No. 1] The
Court initially characterized Lancaster’s letter as a Complaint asserting constitutional tort
claims pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). [Record No. 3] Lancaster objected to this characterization,
stating that he wished to assert a claim under the Federal Tort Claims Act, 28 U.S.C. §§
1346(b), 2671-80 (“FTCA”). [Record No. 4] He then filed a motion to amend his
Complaint to include a number of new factual allegations, add seven prison officials as
defendants, and assert Bivens claims against them. [Record No. 18]
To effectuate Lancaster’s expressed intention to assert a claim under the FTCA, the
Court directed the Clerk of the Court to modify the docket to reflect that this is an action
-1-

under the FTCA, and to identify the United States of America as the sole defendant.
[Record No. 25 at 5] the Court further advised that, before Lancaster’s FTCA claim could
proceed, he would be required to demonstrate that there was subject matter jurisdiction by
filing a copy of his SF-90 form presenting his claim to the Bureau of Prisons (“BOP”) for
administration settlement, as well as the BOP’s letter denying the claim. [Record No. 25
at 5]
The Court denied Lancaster’s motion to amend his complaint to add Bivens claims
because: (1) he failed to tender a proposed amended complaint with his motion; and (2) his
proposed amendment would be futile as it is would be subject to dismissal as time-barred.
Specifically, because the actions and events giving rise to Lancaster’s purported Bivens
claims occurred in July 2012, the statute of limitations expired in July 2013. [Record No.
25 at 6-7]
Lancaster then filed a document captioned “Interlocutory Appeal Protesting Denial
of Amended Complaint.” [Record No. 29] This document was docketed by the Clerk as
a motion for reconsideration because Lancaster asked the Court to vacate its prior Order
denying his motion to amend his Complaint to add a Bivens claim. [Record No. 29] The
Court denied Lancaster’s request for relief, again noting that Lancaster’s proposed Bivens
claims are untimely. [Record No. 30] The Court further advised that, if Lancaster wishes
to file an interlocutory appeal with the United States Court of Appeals for the Sixth Circuit,
he should file appropriate documents clearly expressing that intent. [Record No. 30] But
the Court also noted that, as the Court’s March 9, 2017 Order is not a final order from
which an interlocutory appeal will ordinarily lie, Lancaster would incur a $505.00 appellate
-2-

filing fee and probable dismissal of his appeal. [Record No. 30 at 1-2] Next, the Court
warned that Lancaster remained obligated to comply with the Court’s April 5, 2017 Order
by filing a copy of his SF-90 form presenting his claim to the BOP for administration
settlement, as well as the BOP’s letter denying the claim into the record on or before May
26, 2017. [Record No. 30 at 2]
I.

Lancaster’s “Motion
Consideration”

for

Emergency

Stay

Pending

Motion

for

Lancaster has now filed a document entitled “Motion for Emergency Stay Pending
Motion for Consideration.” [Record No. 32] In this motion, he asks the Court for an
emergency stay “pending reconsideration of time bar of the above case under Rule
60(b)(1).” [Record No. 32 at 1] Lancaster claims he has just obtained “newly discovered
evidence” in support of his case. [Record No. 32 at 1] He states that he has been forced
to remain inside the Special Housing Unit (“SHU”) and that, for safety reasons beyond his
control, he “has had property lost or delayed transferring from numerous prison [sic] with
no access to legal council [sic] or documents.” [Record No. 32-1]
In support, Lancaster submits a letter dated April 27, 2017 and signed by “M.
Ureña,” identified as a Correctional Counselor at the Federal Correctional Complex in
Coleman, Florida. This letter references correspondence Lancaster received from this
Court regarding “the court’s denial for the interlocutory Appeal submitted by inmate
Lancaster.” [Record No. 32-2] The letter states that, “[a]lthough the inmate’s appeal
submission was time bar [sic],” computer records show that Lancaster may have had
difficulties filing in a timely manner due to his stay in special housing at several institutions

-3-

from 2012 to present. [Record No. 32-2] The letter explains that Lancaster’s stay in the
SHU and numerous transfers would have given him limited access to filing material or
resources. [Record No. 32-2] The letter then requests, on behalf of “unit management,”
that Lancaster be provided an opportunity to continue with his legal remedy process.
[Record No. 32-2]
This letter raises several serious concerns. As an initial matter, it is extremely
unusual (if not unheard of) for a prison employee to write such a letter to the Court
requesting that additional time be granted to permit a prisoner to pursue such untimely
claims, raising questions regarding the letter’s authenticity. The letter is also rife with
grammatical errors and erroneously refers to this Court’s denial of Lancaster’s
interlocutory appeal. [Record No. 32-2] Although Lancaster filed a document entitled
“Interlocutory Appeal” in this Court, as the Court previously explained, this document was
construed as a motion for reconsideration because Lancaster asked this Court (not the
United States Court of Appeals for the Sixth Circuit) to vacate its prior order denying his
motion to amend his complaint to add Bivens claims. [Record No. 30] To be clear,
Lancaster has never had an interlocutory appeal pending in this Court, as such an appeal
would be filed with the Sixth Circuit.
Even putting aside these concerns, Lancaster’s latest motion and the letter he
submits in support do not provide grounds for the relief sought. Lancaster’s motion to
amend his Complaint to assert claims under Bivens was denied as futile because the actions
and events giving rise to those claims occurred in July 2012, while the statute of limitations
expired in July 2013, or three years before he filed his lawsuit.
-4-

[Record No. 25]

Lancaster’s construed motion to reconsider the Court’s denial of his motion for leave to
amend his Complaint was denied for the same reason. [Record No. 30]
Lancaster’s motion for an emergency stay essentially requests that the Court apply
the doctrine of equitable tolling to the statute of limitations governing his Bivens claims on
the grounds that his stay in the SHU and transfers between institutions limited his access
to filing materials and resources. However, the doctrine of equitable tolling applies
sparingly and “only when a litigant’s failure to meet a legally-mandated deadline
unavoidably arose from circumstances beyond that litigant’s control.” Jurado v. Burt, 337
F.3d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks Museum
of Art, Inc., 209 F.3d 552, 560-61 (6th Cir.2000)). As the Supreme Court has explained,
[w]e have allowed equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a defective pleading during
the statutory period, or where the complainant has been induced or tricked
by his adversary's misconduct into allowing the filing deadline to pass. We
have generally been much less forgiving in receiving late filings where the
claimant failed to exercise due diligence in preserving his legal rights.
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)(citations omitted). “Absent
compelling equitable considerations, a court should not extend limitations by even a single
day.” Graham-Humphreys, 209 F.3d at 561.
Equitable tolling applies only if two requirements are met. “First, the petitioner
must establish ‘that he has been pursuing his rights diligently.’ And second, the petitioner
must show ‘that some extraordinary circumstance stood in his way and prevented timely
filing.’” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011)(quoting
Holland v. Florida, 560 U.S. 631, 649 (2010)). Neither of these requirements are met here.

-5-

Although Lancaster makes the general argument that he had difficulty filing his Complaint
because of a “prolong stay in special housing and numerous transfers,” as well as the loss
of property and/or delayed transfer of his property between institutions [Record No. 32-1,
32-2], limitations on access to legal resources do not justify equitable tolling. “It is well
settled that the lack of legal assistance, ignorance of the law or the frustrations of typical
prison conditions that make prison-based litigation difficult, such as transfers, lack of
access to copies and legal materials, do not constitute exceptional circumstances justifying
equitable tolling.” Portman v. Wilson, No. 10-cv-169-KSF, 2010 WL 4962922 at *2 (E.D.
Ky., December 1, 2010)(citations omitted).
More importantly, Lancaster’s alleged difficulties arising from stays in the SHU and
multiple transfers between facilities do not excuse the lengthy delay present between the
date the statute of limitations for his purported Bivens claims expired in July 2013 and the
date he first attempted to bring these claims by seeking to amend his complaint in January
2017. As more fully explained in this Court’s prior orders, Lancaster was required to file
suit within one year from the date of the events giving rise to his complaint, or by July
2013. K.R.S. § 413.140(1)(a); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003).
However, as Lancaster waited approximately three and a half years after the expiration of
the statute of limitations governing his purported Bivens claims to file these claims, he
cannot be said to have been “pursuing his rights diligently.” For all of these reasons,
Lancaster’s proposed Bevins claims are untimely and cannot be saved by equitable tolling
of the statute of limitations. Accordingly, his “Motion for Emergency Stay Pending Motion
for Consideration” [Record No. 32] will be denied.
-6-

II.

Lancaster’s FTCA Claims
The Court must conduct a preliminary review of Lancaster’s complaint regarding

Lancaster’s remaining tort claims under the FTCA because he has been granted permission
to pay the filing fee in installments and because he asserts claims against government
officials. 28 U.S.C. §§ 1915(e)(2), 1915A. When testing the sufficiency of the plaintiff’s
Complaint, the Court affords it a forgiving construction, accepting as true all nonconclusory factual allegations and liberally construing its legal claims in the plaintiff’s
favor. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012). 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. Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010).
The FTCA is a limited waiver of sovereign immunity which permits an action
against the United States for negligent or wrongful acts or omissions of its employees while
acting within the scope of their employment. See 28 U.S.C. § 1346(b)(1). See also Fitch
v. United States, 513 F.2d 1013, 1015 (6th Cir.1975); United States v. Orleans, 425 U.S.
807, 813 (1975). The FTCA is the exclusive remedy for tort actions against the federal
government, its agencies, and its employees. 28 U.S.C. § 2679.
However, a plaintiff must exhaust administrative remedies prior to adjudicating an
FTCA claim in federal court. Garzon v. Luttrell, 24 Fed.Appx. 400, 402 (6th Cir. 2001).
Thus, under the FTCA, “a claim against the United States for money damages for personal
injury cannot be instituted unless the claimant has first presented the claim to the
appropriate federal agency and his or her claim has been finally denied by the agency in
-7-

writing and sent by certified or registered mail.” Myers v. United States, 526 F.3d 303 (6th
Cir. 2008)(citing 28 U.S.C. § 2675(a)). Pursuant to 28 C.F.R. § 14.9(a), the final denial of
an administrative claim must be in writing and sent to the claimant or his or her legal
representative, and must include a statement of the reasons for the denial and inform the
claimant that he or she may file suit in an appropriate United States District Court no later
than six months after the date of mailing of the notification. 28 C.F.R. § 14.9(a).
The FTCA also contains its own statute of limitations, which provides that “[a] tort
claim against the United States shall be forever barred unless it is presented in writing to
the appropriate Federal agency within two years after such claim accrues or unless action
is begun within six months after the date of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C.A.
§ 2401.
For these reasons, Lancaster was previously instructed that, before his FTCA claim
may proceed, he must demonstrate that this Court possesses subject matter jurisdiction over
the claim by filing into the record a copy of his SF-90 form presenting his claim to the BOP
for administration settlement, as well as the BOP’s letter denying the claim. [Record No.
25 at 5] In response, on May 15, 2017, Lancaster filed a copy of the BOP’s letter denying
his claim, but failed to file a copy of his SF-90 form. [Record No. 31, 31-1] Thus,
Lancaster failed to comply with this Court’s Order directing him to file a copy of his SF90 Form.
However, even putting aside this deficiency, the August 19, 2014 letter from the
BOP indicates that Lancaster filed a claim for administrative settlement under the FTCA
-8-

arising from events occurring on August 9 and August 12, 2012. [Record No. 31-1]
According to the letter, the BOP’s investigation into Lancaster’s claims showed that, on
August 9, 2012, while Lancaster was being placed in a cell in the SHU, he refused to go
into the cell, fell, then stuck his leg out of the door to prevent the door from closing. [Id.]
Lancaster was assessed by the medical staff and was found to have an abrasion on his left
lower outside legs but no bleeding and no further medical care was necessary. [Id.] On
August 12, 2012, while in the SHU, Lancaster was observed in a suicide attempt, removed
from his cell, and taken to Health Services for a medical assessment. [Id.] The letter states
that there were no significant injuries with no apparent distress. [Id.]
Lancaster’s claim was denied based on the results of the BOP’s investigation. The
letter informs Lancaster that, if he has further evidence pertaining to his request, he could
resubmit his claim within 30 days of the denial. [Id.] The letter further states that, if
Lancaster disagrees with the BOP’s determination denying his claim, he has six months
from the date of the letter in which to bring suit in the appropriate United States District
Court. [Id.]
There is no evidence that Lancaster either re-submitted his claim to the BOP or filed
a complaint in an appropriate United States District Court within six months from the date
of the letter. In fact, Lancaster did not file his FTCA claim in this Court until August 22,
2016, approximately two years after the BOP denied his claim and eighteen months after
the expiration of the six-month deadline for filing his claim as stated in the BOP’s August
19, 2014 letter. [Record No. 1, 31-1] Thus, Lancaster’s FTCA claim is untimely.

-9-

Lancaster admits that he received this letter denying his claim and was aware of the
six-month deadline, but he states that “an amended tort claim was filed several weeks later
stating the facts which occurred. It seems that this amended tort claim never reached the
courts.” [Record No. 4] He states that he filed this claim from Hazelton U.S.P. in Bruceton
Mills, West Virginia. [Id.] However, he further states that he has written the Clerk of
Court and “Region” and both have responded that they have no knowledge of a claim being
filed. [Id.] He does not state to whom this claim was sent, nor does he provide any
documentation supporting his statement that he attempted to file an amended tort claim
several weeks after he received the denial letter. Moreover, it is unclear from Lancaster’s
reference to an “amended tort claim” whether he purports to have re-submitted his claim
to the BOP or to have filed a lawsuit in a United States District Court. Regardless, there is
no evidence in the record that Lancaster successfully did either.
Although Lancaster does not argue that equitable tolling should be applied to the
statute of limitations governing his FTCA claim, the Court does not find that the
circumstances present here warrant equitable tolling. As noted above, for equitable tolling
to apply, Lancaster must establish that: (1) he has been pursuing his rights diligently; and
(2) some extraordinary circumstance stood in his way and prevented timely filing. Hall,
662 F.3d at 749. Here, even accepting Lancaster’s statement that he filed an “amended tort
claim” within a few weeks of receiving his denial letter in August 2014 as true, this
statement alone does not establish the “compelling circumstances” that would justify
equitable tolling. As noted above, it is not even clear whether Lancaster’s reference to an
“amended tort claim” means that he purports to have re-submitted his claim to the BOP or
-10-

whether he believed he filed a lawsuit in a United States District Court. What is clear is
that Lancaster did not successfully do either one.
Finally, there is no evidence suggesting that Lancaster made any effort to follow-up
with this claim, or whatever he believes he filed after receiving the BOP’s denial letter in
August 2014, until he filed this lawsuit in August 2016. Even assuming that he believed
he filed something within a few weeks of the date of his denial letter in August 2014, this
does not explain why Lancaster took no further action with respect to this purported claim
until filing this lawsuit in August 2016. Lancaster’s conduct with respect to his FTCA
claim is simply inconsistent with a petitioner who is diligently pursuing his rights and
cannot excuse filing a claim over eighteen months after the expiration of the statute of
limitations and over four years after the incident occurred.
For all of the reasons outlined abouve, the Court finds that Lancaster’s FTCA claim
is barred by the applicable statute of limitations and cannot be saved by equitable tolling.
Accordingly, his FTCA claim will be dismissed.
III.

Conclusion

For all of the foregoing reasons, it is hereby
ORDERED as follows:
1.

Lancaster’s Motion for Emergency Stay Pending Motion for Reconsideration

[Record No. 32] is DENIED;
2.

The claims asserted in Plaintiff’s Complaint [Record No. 1] are

DISMISSED WITH PREJUDICE;

-11-

3.

Judgment will be entered contemporaneously with this Memorandum

Opinion and Order.
This 26th day of June, 2017.

-12-