Beard v. Bureau of Prisons

Filing 7

Memorandum Opinion and Order...The United States of America be substituted as defendant for BOP, Hunter, Pennagraft, Edwards and Sick-Call Clinic. Further ordered that all claims by pltf against BOP, Hunter, Pennagraft, Edwards, Sick-Call Clinic and USA are dismissed w/ prejudice. (Ordered by Judge John McBryde on 12/20/2012) (wrb)

U.S. DISTInCT COURT
NORTHERN DISTRICT OF TEXAS

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXA

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DEC 2020121

FORT WORTH DIVISION

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BEVERLY J. BEARD,
Plaintiff,
VS.
BUREAU OF PRISONS, ET AL.,
Defendant.

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CLERK, U.S. DiSTRICT cnc:lT

By ----;c;--..c.. ---......-

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NO. 4:12-CV-6S2-A

MEMORANDUM OPINION
and
ORDER
Came on for consideration the complaint filed September 17,
2012, by pro se plaintiff, Beverly J. Beard ("Beard"), against
defendants,' Bureau of Prisons ("BOP"), Ms. Hunter ("Hunter"),
William Pennagraft ("pennagraft"), Lieutenant Edwards
("Edwards"), and Sick-Call Clinic ("Clinic"), pursuant to the
Federal Tort Claims Act, 28 U.S.C.
("FTCA").

§

1346(b), 2671 et seq.

Having considered the complaint and the documents

attached thereto, and applicable legal authorities, the court
concludes that the complaint should be dismissed for the reasons
discussed below.

Plaintiff lists "Bureau of Prison, Etc." as defendant at the top of her complaint, but then lists
"Bureau of Prisons, Ms. Hunter, William Pennagraft, Lt. Edwards, Sick-Call Clinic" as defendants on her
civil cover sheet, which she attached to the complaint. Construing her complaint liberally, the court
determines that plaintiff intends to sue all the defendants named above.
1

I.

Background
Plaintiff, who was formerly incarcerated at Federal Medical
Center-Carswell and released in November 2011, alleges that in
November 2009, she was improperly assigned to a top bunk because
of her medical condition, and that she fell from her top bunk and
injured her knee, or aggravated a pre-existing knee injury, as a
result.

She further alleges that the medical care she received

following her injury was unsatisfactory, that she made "numerous
visits to sick call," and that officials "are carelessly and
openly negligent" regarding her medical care.

Compl. at 4.

Plaintiff makes the following factual allegations:
Pennagraft and Hunter made the decision to transfer
plaintiff to another unit, which involved assigning plaintiff to
a top bunk.

Plaintiff complained to pennagraft, who told

plaintiff to consult Hunter.

Plaintiff next complained to Hunter

and asked Hunter to reassign her to a bottom bunk.

Hunter

informed plaintiff that she would need to get a lower bunk pass.
Plaintiff was unable to visit sick-call on that day, a Friday,
and could not obtain the required pass.

Plaintiff then states

that Edwards was summoned by another prison officer, and Edwards
did not allow her to take a bottom bunk.

Three days later,

plaintiff fell while attempting to get down from her top bunk.
2

She was seen that day in sick-call, was given medication, was
instructed to apply ice and engage in certain exercises, and was
relieved from her work assignment for eleven days.

Plaintiff

filed an administrative tort claim with BOP, and received a
letter, mailed March 14, 2012, denying her claim.

The letter

explained that BOP's investigation revealed plaintiff did not
have a lower bunk pass at the time she was assigned to a top
bunk, that she was examined by staff after her fall,
appropriately treated, was then issued the lower bunk pass, and
was subsequently evaluated and given x-rays at her regularly
scheduled doctor's appointment and other appointments and visits
to sick-call.
II.

Analysis
A.

Legal Standards
Because plaintiff is proceeding in forma pauperis, her

complaint is subject to sua sponte dismissal under 28 U.S.C.
1915(e) (2) (B).
1986).

§

Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir.

Section 1915 (e) (2) (B) provides for sua sponte dismissal

if the court finds that the complaint is either frivolous or
fails to state a claim upon which relief may be granted.
A claim is frivolous if it "lacks an arguable basis in
either fact or law."

Neitzke v. Williams, 490 U.S. 319, 325
3

(1989) .

In evaluating whether the complaint states a valid claim

for relief, the court construes the allegations of the complaint
favorably to the pleader.
(1975).

Warth v. Seldin, 422 U.S. 490, 501

A complaint fails to state a claim upon which relief can

be granted when, assuming that all the allegations in the
complaint are true even if doubtful in fact, such allegations
fail to raise a right to relief above the speculative level.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)
(quotation and citation omitted).

The court does not accept

conclusory allegations or unwarranted deductions of fact as true,
and a plaintiff must provide more than labels and conclusions or
a formulaic recitation of the elements of a cause of action.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Tuchman v.
DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
B.

Plaintiff's FTCA Claims
The court interprets plaintiff's claims as FTCA claims. 2

The FTCA authorizes civil actions for damages against the united

Plaintiff has referred to her claims as negligence claims and has not asserted a civil rights claim;
however, the court luis considered the possibility that plaintiff intended to assert causes of action against
Hunter, Pennagraft, and Edwards under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), and determines that such actions would fail. Bivens authorizes a cause of action only
against a federal agent in his or her individual capacity. Plaintifffaiis to allege facts that could support
deliberate indifference in violation of the Eighth Amendment. She does not allege that she was subject to
a substantial risk of serious harm, or that the defendants (I) actually were aware of specific facts from which
the inference could be drawn that a substantial risk of serious harm exists, and (2) deliberately failed to act.
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Lawson v. Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002).
"Deliberate indifference is an extremely high standard to meet." Domino v. Tex. Dep't ofCrim. Justice, 239
F.3d 752, 756 (5th Cir. 2001).
2

4

States for personal injury or death caused by a government
employee's negligence when a private individual under the same
circumstances would be liable under the sUbstantive law of the
state in which the negligence occurred. 28 U.S.C.
Hannah v. United states, 523 F.3d 597, 601

§

1346 (b) ;

(5th Cir. 2008).

However, before being able to reach the merits of plaintiff's
FTCA claims, the court determines that plaintiff has not sued the
proper defendant.

Under the FTCA, only the United states of

America, and not any governmental agency or employee, can be
sued.

See Galvin v. Occupational Safety & Health Admin., 860

F.2d 181, 183

(5th Cir. 1988).

Therefore, the court is

dismissing all claims under the FTCA against the named
defendants, and substitutirig the United States of America for
such defendants.
Even with the substitution of the united states as a
defendant, plaintiff's FTCA claims would be barred by the
applicable statute of limitations, 28 U.S.C.

§

2401(b), which

provides:
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.

5

Plaintiff timely pursued administrative remedies, but failed to
file her complaint within the six-month limit.

Because the FTCA

embodies a waiver of sovereign immunity, and under the doctrine
of sovereign immunity the government's exposure to liability can
be no greater than the government permits, the language of the
statute must be strictly construed and adhered to.
v. U.S. Postal Serv., 823 F.2d 896, 902

(5th Cir. 1987); Carr v.

veterans Admin., 522 F.2d 1355, 1357 (5th Cir. 1975)
the plain words of

§

2401(b)

See Houston

(noting that

"specify that an action must be

begun within six months after the 'date of mailing,' and
adherence to the statutory language is particularly necessary in
a case such as this because the waiver of sovereign immunity
must be strictly construed").

Furthermore,

"[l]imitations

periods in statutes waiving sovereign immunity are
jurisdictional, and a court

. may not expand its jurisdiction

beyond the limits established by Congress."

Ramming v. united

States, 281 F.3d 158, 165 (5th Cir. 2001).
The notice of denial of plaintiff's administrative claim was
mailed March 14, 2012, which means plaintiff had until September
14, 2012 to file suit in the appropriate united States District
Court.

Plaintiff did not file her complaint until September 17,

6

2012. 3

Although the dates are close in time, the fact remains

that plaintiff waited too long to file her complaint, and the
plain language of the statute and doctrine of sovereign immunity
require that her FTCA claims be dismissed.
III.

Order
Therefore,
The court ORDERS that the United States of America be, and
is hereby, substituted as defendant for BOP, Hunter, Pennagraft,
Edwards, and Sick-Call Clinic.
The court further ORDERS that all claims and causes of
action asserted by plaintiff, Beverly J. Beard, against Bureau of
Prisons, Ms. Hunter, William Pennagraft, Lieutenant Edwards,
Sick-Call Clinic, and United States of America, be, and are
hereby, dismissed with prejudice.
SIGNED December 20, 2012.

Judge

3 Plaintiff is no longer incarcerated, nor was she incarcerated when she filed her complaint; therefore,
the prison mailbox rule does not apply to her. See. e.g., Gross v. U.S. Dep't ofJustice, No.3: ll-CV-2023-MBH, 2012 WL 3020089, at *2 (N.D. Tex. May 31, 2012), adopted 2012 WL 3024748 (N.D. Tex. July 24,
2012). See also Houston v. Lack, 487 U.S. 266, 270-71 (1988)(discussing rationale for prison mailbox rule).

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