Degante et al v. Markey

Filing 16

MEMORANDUM ORDER: Directing plaintiff to amend complaint. Pro Se Response due by 6/9/2022. Signed by Magistrate Judge Joseph H L Perez-Montes on 5/10/2022. (crt,Haik, K)

Case 1:22-cv-00662-DDD-JPM Document 16 Filed 05/10/22 Page 1 of 4 PageID #: 67

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
LUIS DEGANTE ET AL #27241-078,
Plaintiff

CIVIL DOCKET NO. 1:22-CV-00662
SEC P

VERSUS

JUDGE DRELL

DR MARKEY,
Defendants

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a Complaint filed by pro se Plaintiff Luis Degante
(“Degante”) and his wife, mother, and sister. ECF No. 9. Degante is a prisoner in
the custody of the Bureau of Prisons (BOP), incarcerated at the United States
Penitentiary in Pollock, Louisiana (“USP-P”). Degante and three family members are
suing under Bivens 1 and the Federal Tort Claims Act (“FTCA”) for inadequate
medical care provided by Dr. Markey.
Because it is unclear whether Degante’s Bivens claim is prescribed, he must
AMEND the Complaint (ECF No. 9).
I.

Background
Degante alleges that Dr. Markey operated on his penis to remove a calcinosis

cutis. Degante alleges that he only received local anesthesia and could feel pain

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the
United Sates 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.

1 1In

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during the operation. Degante asserts that Dr. Markey sutured the incision “without
stopping the bleeding from surgery.” ECF No. 9 at 3. Degante alleges that his penis
filled with blood and became swollen and purple. Id. He was examined by the nurse
practitioner and transported to a hospital where he was diagnosed with a hematoma.

Id. Degante alleges that he was informed that surgery should have been performed
by a certified specialist. Degante alleges that he had an open wound for at least six
weeks after surgery. He also asserts that Dr. Markey failed to remove the entire
calcinosis cutis. Id.
II.

Law and Analysis
Degante filed suit under the FTCA and Bivens. ECF Nos. 1, 9. There is no

federal statute of limitations for Bivens actions. Federal courts borrow the forum
state’s general personal injury limitations period, which is one year in Louisiana. See
La. Civ. Code art. 3492; Gaspard v. United States, 713 F.2d 1097, 1102 n. 11 (5th Cir.
1983). However, federal law determines the date the cause of action accrues. Burrell

v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). Under federal law, accrual begins
“when the plaintiff knows or has reason to know of the injury which is the basis of
the action.” Id. The plaintiff does not need to know that he has a legal cause of action;
he only needs to know the facts that would support a legal claim. Piotrowski v. City

of Houston, 237 F.3d 567, 576 (5th Cir. 2001).
Prison inmates are required to exhaust available administrative remedies
before filing a lawsuit in federal court. 42 U.S.C. § 1997e(a). Due to the exhaustion

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requirement, the limitations period is tolled while an inmate exhausts administrative
remedies. Harris v. Hegmann, 198 F. 3d 153, 158 (5th Cir. 1999).
Delgante knew of the facts underlying his claim on the date of surgery, which
was September 4, 2020. ECF No. 9 at 3. His Complaint was not filed until March
2022. ECF No. 1.
Delgante exhausted his FTCA claim through an Administrative Tort Claim for
negligence by Dr. Markey. ECF No. 11. However, there is no allegation or indication
that Delgante exhausted administrative remedies as to any deliberate indifference
claim that he seeks to raise under Bivens.
An FTCA claim is separate and distinct from a Bivens claim and has a different
exhaustion process. 2

Exhaustion under the FTCA does not toll the statute of

limitations of a Bivens claim. See Burnette v. U.S. Bureau of Prisons, 06-1396, 2006
WL 3524040, at *2 (W.D. La. 2006); Bourassa v. United States, 4:20-CV-4210, 2022
WL 204644, at *8 (D. S.D. 2022) (collecting cases).
Delgante must amend his Complaint to state whether he exhausted his
deliberate indifference claim through the BOP’s administrative remedy process. If

The administrative remedy that must be exhausted prior to the bringing of a Bivens claim is the
three-part procedure found in the Code of Federal Regulations. The inmate must file his initial
grievance to the Warden on a BP-9 form. If dissatisfied with the response, he may appeal to the
Regional Director on a BP-10 form. If still dissatisfied, he may appeal to the General Counsel on a
BP-11 form. See C.F.R. 542.13-15. Dartson v. Kastner, 5:06-CV-180, 2006 WL 3702634, at *2 (E.D.
Tex. 2006). Under the FTCA, an action is barred unless the appropriate agency receives notice within
two years after the action accrues. 28 U.S.C. § 2401(b). When the agency denies the claim or fails to
act on the claim for six months, suit may be filed in federal court. Id.
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so, he should provide a copy of his P-9, BP-10, and BP-11 forms, as well as the
responses received at each level.
III.

Conclusion
Because it is unclear whether Degante’s Bivens claim is prescribed, IT IS

ORDERED that he AMEND the Complaint as outlined herein within 30 days of the
filing of this Order.
Failure to comply with this Order may result in dismissal of this action under
Rule 41(b) or 16(f) of the Federal Rules of Civil Procedure.
SIGNED on Tuesday, May 10, 2022.
_______________________________________
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE

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