Wiand v. United States Department of Justice Federal Bureau of Prisons et al

Filing 15

Order Accepting 12 Findings, Conclusions and Recommendation of the United States Magistrate Judge. The plaintiff's motion for leave to amend his complaint (docket entry 13 ) is DENIED, and his objections are OVERRULED. (Ordered by Senior Judge A. Joe Fish on 5/29/2018) (zkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

MELVIN WIAND,
Plaintiff,
v.
UNITED STATES DEPT. OF JUSTICE
BUREAU OF PRISONS,
Defendant.

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CIVIL ACTION NO.
3:16-CV-3354-G (BT)

ORDER
The United States Magistrate Judge made findings, conclusions and a
recommendation in this case. The plaintiff filed objections, and the court has made a
de novo review of those portions of the proposed findings and recommendation to
which objection was made. For the following reasons, the objections are
OVERRULED, the court ACCEPTS the findings, conclusions and recommendation
of the United States Magistrate Judge, and the plaintiff’s motion for leave to amend
his complaint (docket entry 13), is DENIED as futile.
The plaintiff states that his complaint should not be dismissed because he filed
a motion to amend his complaint to raise claims under Bivens v. Six Unknown Federal
Agents, 403 U.S. 388 (1971). The plaintiff alleges that Officer McNair shouted
“Dead Man Walking” as the plaintiff walked past other inmates, and that McNair
told the plaintiff that he used to work at Angola prison. The plaintiff also alleges

other guards called him “bag boy” due to his catheter, and that inmates called him
“stinky.”
The plaintiff’s Bivens claims against Officer McNair are time-barred. The
statute of limitations for a Bivens claim in Texas is two years. Cooper v. Brookshire, 70
F.3d 377, 380 n.20 (5th Cir. 1995); TEX. CIV. PRAC. & REM. CODE Ann. § 16.003(a)
(West 2017). Under federal law, a “cause of action accrues, so that the statutory
period begins to run, when the plaintiff knows or has reason to know of the injury
which is the basis of the action.” Gonzales v. Wyatt, 157 F.3d 1016, 1020 (5th Cir.
1998) (citing Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989)). Although the
plaintiff does not state the date that officers called him “Bag Boy,” or that inmates
called him “Stinky,” he alleges the incident with Officer McNair occurred on
February 26, 2016. The plaintiff, however, did not raise this claim until he filed his
motion for leave to amend on May 18, 2018. The plaintiff has also stated no basis
for equitable tolling of the limitations period. This claim is therefore barred by the
statute of limitations.
The plaintiff’s Bivens claims are also without merit. Verbal abuse and
threatening language do not give rise to a cause of action under Bivens. Ponce v. Lucas,
590 Fed. App’x. 444, 445 (5th Cir. 2015) (per curiam) (citing Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997)). The plaintiff’s motion for leave to amend his
complaint (docket entry 13) is therefore DENIED, and his objections are
OVERRULED.

SO ORDERED.
May 29, 2018.

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A. JOE FISH
Senior United States District Judge