Bassil v. Federal Bureau of Prisons et al

Filing 63

ORDER ADOPTING 62 REPORT AND RECOMMENDATIONS and granting 51 , 36 , 47 , 49 , 45 , 57 , 55 , 53 Motions. Signed by District Judge William H. Barbour, Jr on 2/3/17. (RRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES L. BASSIL, #12103-007

PLAINTIFF

VS.

CIVIL ACTION NO. 3:15-cv-640-WHB-JCG

FEDERAL BUREAU OF PRISONS, ET AL.

DEFENDANTS

OPINION AND ORDER
This

cause

is

before

the

Court

on

the

Report

and

Recommendation (“R and R”) of United States Magistrate Judge John
C. Gargiulo.

After considering the R and R1, the other pleadings

in this case, as well as relevant authorities, the Court finds the
R and R should be adopted in its entirety.

I.

Discussion

In April of 2014, James L. Bassil (“Bassil”), sustained a burn
to his arm while working at his assigned institutional job with the
kitchen staff at the Federal Correctional Complex in Yazoo City,
Mississippi (“FCC Yazoo”).

According to Bassil, his request that

an incident report be filed as required by prison policy was
denied.

Bassil also alleges that his requests to be treated by a

physician or outside hospital/burn unit were denied.

Instead,

according to Bassil, he was treated by a physician assistant at FCC
Yazoo, and the treatment he received was inadequate.
1

Finally,

The parties were required to file objections to the R and
R on or before January 26, 2017. No objections were filed.

Bassil alleges that his requests for follow-up care were denied.
In September of 2015, Bassil filed a lawsuit in this Court
against the Federal Bureau of Prisons and several administrators at
FCC Yazoo.

By leave of Court, Bassil filed an Amended Complaint

against: the Federal Bureau of Prisons; FCC Yazoo Warden Scott
Fisher; Food Service Administrators Zyvan Lee and Patrick Ware;
Assistant

Food

Service

Administrator

Debbie

Santiago;

Safety

Administrator Jack Joiner; Safety Clerk Sandra White; and FCC Yazoo
medical doctor Norma Natal.

Through his Amended Complaint, Bassil

seeks relief under the Federal Tort Claims Act (“FTCA”), codified
at 28 U.S.C. §§ 1346(b) 2671-80, and Bivens v. Six Unknown Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
By Order, Bassil’s claims against the Federal Bureau of
Prisons

were

dismissed

on

a

finding

that

the

Court

lacked

jurisdiction to consider those claims. See Order [Docket No. 17]
(holding that the Court lacked jurisdiction to consider FTCA and
Bivens claims against the Bureau of Prisons because such claims
cannot be maintained against a federal agency).

The United States

of America was later added as a defendant to the action.
[Docket No. 20].

See Order

Thereafter, each of the named defendants filed

motions seeking dismissal of, or alternatively summary judgment on,
Bassil’s claims.

The Motions came before United States Magistrate

Judge John C. Gargiulo who entered his R and R recommending that
all of the Motions for Summary Judgment be granted because Bassil
had not stated a viable claim under the FTCA and had not exhausted
2

his administrative remedies with respect to his Bivens claims. See
R and R [Docket No. 62], at 8.
In his R and R, Judge Gargiulo first considered Bassil’s FTCA
claims, and found that only the United States was the proper party
with respect to those claims.

See R & R at 8 (quoting Galvin v.

Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir.
1988)(“[An] FTCA claim against a federal agency or employee as
opposed to the United States itself must be dismissed for want of
jurisdiction.”).

Judge Garguilo then found that because Bassil’s

alleged injuries arose from a work-related injury, any remedy for
those injuries against the United States had to be sought under the
Inmate Accident Compensation Act (“IACA”), codified at 18 U.S.C. §
4126, and not the FTCA.
States,

625

F.2d

1210,

Id. at 8-9 (citing e.g. Aston v. United
1211

(5th

Cir.

1980)(explaining

that

injuries sustained by federal prisoners while working are not
compensable under the FTCA but, instead, “[18 U.S.C.] § 4126 is the
sole remedy against the government where the injury is workrelated, and the cause of the injury is irrelevant so long as the
injury itself occurred while the prisoner was on the job.”).

See

also Walker v. Reese, 364 F. App’x 872, 876 (5th Cir. 2010)(finding
the court lacked jurisdiction to consider a federal inmate’s FTCA
claims arising from burns sustained while working in the kitchen at
FCC–Yazoo, on the grounds that the “Supreme Court and Fifth Circuit
have

repeatedly

provided

that

the

BOP’s

[Inmate

Accident

Compensation] system is the exclusive means of recovery for prison3

employee’s work-related injuries”). Upon finding that Bassil could
not, as a matter of law, maintain a FTCA claim arising from
injuries he allegedly sustained while working in the FCC Yazoo
kitchen, Judge Gargiulo recommended the dismissal of Bassil’s FTCA
claims.
Next, Judge Gargiulo considered Bassil’s Bevins claims against
the prison officials/employees, and found that all of those claims
were subject to dismissal, as a matter of law, because Bassil had
not exhausted his administrative remedies as required to maintain
such claims.

See R & R, at 4, 9-11.

Based on his findings, Judge

Gargiulo recommended that each Defendant’s Motion for Summary
Judgement be granted, that all of Bassil’s claims be dismissed, and
that Bassil be assessed a strike under 28 U.S.C. § 1915(g).

Id. at

11.2
The Court has reviewed the R and R, to which no objections
were filed, as well as the Docket and other pleadings in this case.
After review, the Court agrees that Bassil’s Complaint should be
dismissed for the reasons stated by Judge Gargiulo.

First, Bassil

cannot maintain a FTCA claim against the only proper party to that
claim, the United States of America, because his was a work-related
injury.

Second, Bassil cannot maintain his Bivens claims against

the prison officials/employees because he failed to exhaust his

2

The record shows that Bassil was expressly notified that
he could not maintain a FTCA claim arising from the injury he
received while working in the prison kitchen, and that his claim
had to be brought under the IACA, before his lawsuit was filed.
See Mot. to Dismiss [Docket 36], Ex. B, 5-6.
4

administrative remedies as required to maintain those claims.
Accordingly,

the

Court

will

adopt

Judge

Gargiulo’s

R

and

R

recommending the granting Defendants’ Motions for Summary Judgment,
and the dismissal of this case.
For the foregoing reasons:
IT IS THEREFORE ORDERED that the January 9, 2017, Report and
Recommendation of United States Magistrate Judge John C. Gargiulo
[Docket No. 62], is hereby adopted as the ruling of this Court.
IT IS FURTHER ORDERED that the Motion of Defendants to Dismiss
or, in the alternative, for Summary Judgment [Docket Nos. 36, 45,
47, 49, 51, 53, 55, and 57] are all hereby granted.
A Final Judgment dismissing this case shall be entered this
day.
SO ORDERED this the 3rd day of February, 2017.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

5