Gray v. Carvajal et al
Filing
9
MEMORANDUM ORDER: Directing plaintiff to amend complaint/petition. Pro Se Response due by 12/12/2016. Signed by Magistrate Judge Joseph H L Perez-Montes on 11/10/2016. (crt,Haik, K)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
WILLIE C. GRAY (#19473-078),
Plaintiff
CIVIL ACTION NO. 1:16-CV-1275-P
VERSUS
CHIEF JUDGE DRELL
M. D. CARVAJAL, ET AL.,
Defendants
MAGISTRATE JUDGE PEREZ-MONTES
MEMORANDUM ORDER
Pro se Plaintiff Willie C. Gray (“Gray”) filed suit under the Federal Tort Claims
Act (“FTCA”) and Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics.1
Gray was granted leave to proceed in forma pauperis. (Doc. 8). Gray is an inmate in
the custody of the Federal Bureau of Prisons (“BOP”), incarcerated at the Federal
Correctional Institution in Pollock, Louisiana. Gray complains that he received
inadequate dental care in violation of the Constitution and the FTCA. Gray names
as defendants the United States of America, Dental Hygienist Jessica Johnson,
Warden M. D. Carvajal, Medical Administrator John Doe, and Assistant
Administrator John Doe.
I.
Background
Gray alleges that, on March 13, 2015, he went to a dental appointment to have
his teeth cleaned by Defendant Johnson. (Doc. 5, p. 3). While Defendant Johnson was
1In
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), the Supreme Court recognized that certain circumstances may give rise
to a private cause of action against federal officials that is comparable to the statutory
cause of action permitted against state officials by 42 U.S.C. § 1983.
using the “saliva ejector,” the ejector was caught on Gray’s uvula. Gray alleges that
Defendant Johnson attempted to remove the ejector by pulling it, which caused
excruciating pain. (Doc. 5, p. 3).
After the dental cleaning, Gray reported to the medical department, where he
was told that the irritation was minor and would heal on its own. (Doc. 5, p. 3). Gray
returned to the medical department on March 16, 2016. Upon examination, it was
determined that Gray’s uvula was so damaged, a uvulectomy was required. (Doc. 5,
p. 3). Gray underwent the surgical procedure on July 29, 2015. (Doc. 5, p. 4).
II.
Law and Analysis
A.
Jurisdiction under the FTCA.
The FTCA contains an exhaustion provision, which is jurisdictional.2 Before
filing suit under the FTCA, a plaintiff must fully exhaust all administrative remedies.
See McNeil v. United States, 508 U.S. 106, 113 (1993); Price v. United States, 81 F.3d
520, 521 (5th Cir. 1996). Because this requirement is jurisdictional in nature, the
requirement to file a claim with the appropriate agency cannot be waived. See
Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir. 1981).
In order to determine whether this Court has jurisdiction over Plaintiff’s FTCA
claim, Plaintiff should provide evidence of exhaustion under the FTCA. That is,
28 U.S.C. § 2676(a) provides in part: “An action shall not be instituted upon a claim
against the United States for money damages 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, unless
the claimant shall 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.”
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Plaintiff should provide documents establishing that he provided a tort claim to the
BOP with written notification of the injury and a monetary demand. He should also
provide copies of all responses received.
B.
Statute of limitations under Bivens.
Gray seeks recovery under Bivens. The statute of limitations for a Bivens
action is borrowed from state law. See Alford v. United States, 693 F.2d 498, 499 (5th
Cir. 1982). Louisiana tort law provides a one-year prescriptive period. See La. Civ.
Code Ann. art. 3492; Gaspard v. United States, 713 F.2d 1097, 1102 n. 11 (5th Cir.
1983).
Federal law determines when a Bivens cause of action accrues. See United
Klans of America v. McGovern, 621 F.2d 152, 153 n. 1 (5th Cir. 1980). Under federal
law, a cause of action accrues when the plaintiff knows or has reason to know of the
injury which is the basis of the action. Such knowledge encompasses both: (1) the
existence of the injury; and (2) the connection between the injury and the defendant’s
actions. See Brown v. Nationsbank Corp., 188 F.3d 579, 589-90 (5th Cir. 1999). Actual
knowledge is not necessary for the limitations period to commence “if the
circumstances would lead a reasonable person to investigate further.” Piotrowski v.
City of Houston, 51 F.3d 512, 516 (5th Cir. 1995).
According to the complaint, Gray knew of the injury on March 16, 2015, when
it was determine that surgical intervention was required. Gray had one year from
that date, or until March 16, 2016, within which to file suit under Bivens. However,
equitable tolling may apply to cases filed under Bivens, for the time spent properly
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exhausting BOP administrative remedies. See Clifford v. Gibbs, 298 F.3d 328, 333
(5th Cir. 2002). Gray has not provided whether he filed and exhausted his
administrative remedies with the BOP separate and apart from his federal tort claim.
Therefore, Gray is instructed to amend his complaint to state whether he filed
administrative remedies with the BOP for the alleged constitutional violation. If he
did pursue administrative remedies with the BOP, Gray should provide copies of the
grievances and responses at each level to show that he is entitled to tolling of the
prescriptive period.
III.
Conclusion
IT IS ORDERED that Gray amend his complaint within thirty (30) days of the
filing of this Order to provide the information outlined above, or dismissal of this
action will be recommended under Rule 41(b) of the Federal Rules of Civil Procedure.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this
10th
_______ day of November, 2016.
____________________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge
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