De La Cruz-Garcia v. Lucas et al

Filing 28

MEMORANDUM OPINION AND ORDER: The court grants plaintiff's 25 Motion to Extend Time to File Objections. His Objections are deemed to be timely filed. The court OVERRULES plaintiff's Objections, ADOPTS the 22 Proposed Findings and Recomm endation by Magistrate Judge Aboulhosn, GRANTS defendants' 11 Motion to Dismiss, or in the Alternative, for Summary Judgment, DISMISSES plaintiff's 2 Complaint and DIRECTS the Clerk to remove the case from the court's docket. Signed by Senior Judge David A. Faber on 3/10/2017. cc: plaintiff, pro se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JOSE SANTOS DE LA CRUZ-GARCIA,
Plaintiff,
v.

CIVIL ACTION NO. 1:16-05733

CDR KELLY LUCAS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C.A. § 636(b)(1)(B).

Magistrate Judge Aboulhosn submitted to

the court his Findings and Recommendation (“PF&R”) on November
15, 2016, in which he recommended that the district court grant
defendants’ motion to dismiss, or in the alternative, for summary
judgment; dismiss plaintiff’s complaint; and remove this matter
from the court’s active docket.
In accordance with the provisions of 28 U.S.C.A. § 636(b),
the parties were allotted fourteen days, plus three mailing days,
in which to file any objections to Magistrate Judge Aboulhosn’s
Findings and Recommendation.

The failure of any party to file

such objections constitutes a waiver of such party's right to a
de novo review by this court.
(4th Cir. 1989).

Snyder v. Ridenour, 889 F.2d 1363

Plaintiff timely filed objections to the PF&R.1

The court

has conducted a de novo review of plaintiff’s complaint and his
objections to the magistrate judge’s PF&R.
On June 27, 2016, plaintiff, while an inmate at FCI
McDowell filed the instant complaint seeking relief under the
Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395-97
(1971).

Plaintiff’s complaint arises out of an injury to his

right thumb and the medical care he received for that injury whle
at FCI McDowell.

In his PF&R, Magistrate Judge Aboulhosn

recommended that plaintiff’s Bivens and FTCA claims be dismissed
for failure to exhaust administrative remedies.
With respect to his failure to exhaust, in his objections
(ECF No. 26), plaintiff stated:
The Petitioner has filed with Health Services, Case
Manager, Unit Team and Dorm Counselor numerous
Inmate Requests to Staff (“copouts”) stating his
concerns with his medical treatment. Also, his
Administrative Remedy (“BP-8") was handled
verbally, at F.C.I. McDowell and emails with
McDowell’s Warden- “BP-9" went to the Warden. Mr.
Jose Santos De Le Cruz-Garcia will be making a
showing that he made sure that all employees were
aware that he was not pleased with the level of
care that he was receiving from the medical staff
at F.C.I. McDowell, and that Dr. Chris Vasilakis
was made aware that the Petitioner felt that he
needed a second opinion. With the above stated,
the Plaintiff has exhausted all other remedies.

1

On December 5, 2016, plaintiff moved to extend the time
for filing objections. (ECF No. 25). That motion is GRANTED and
his objections are deemed to be timely filed.
2

Plaintiff’s Objections at p. 1 (ECF No. 26).

Notwithstanding

plaintiff’s allegations to the contrary, the foregoing does not
establish that plaintiff has exhausted his administrative
remedies.
Claims under Bivens and claims under the FTCA are separate
and distinct causes of action.

Inmates may file claims of

liability against the United States under the FTCA but may not
assert claims of personal liability against prison officials for
violations of their constitutional rights.
U.S. 14, 21–23 (1980).

Carlson v. Green, 446

By contrast, under Bivens inmates may

assert claims of personal liability against individual prison
officials for violations of their constitutional rights but may
not assert claims against the government or prison officials in
their official capacities.

Howard v. Federal Bureau of Prisons,

198 F.3d 236, 1999 WL 798883, *1 (4th Cir. Oct. 7, 1999).

The

Supreme Court held in Carlson that an inmate could pursue a
Bivens action independent of a FTCA action.

See id. at 18-21.

The Court found that Congress did not intend to pre-empt a Bivens
remedy when it enacted the FTCA.

See id. at 19.

The Court noted

that the legislative history of the FTCA “made it crystal clear
that Congress views FTCA and Bivens as parallel, complementary
causes of action.”

Id. at 19–20.

Both Bivens and the FTCA require that a claim thereunder
be exhausted prior to bringing suit.

3

However, the exhaustion

requirements under Bivens are different than the exhaustion
requirements under the FTCA.

Jiminez v. United States, No. 11

Civ. 4593(RJS), 2013 WL 1455267, *5 (S.D.N.Y. Mar. 25, 2013)
(“[T]he exhaustion requirements under the FTCA are different from
those required for a Bivens action.”); Smith v. United States,
No. 09-CV-314-GFVT, 2011 WL 4591971, *4 (E.D. Ky. Sept. 30, 2011)
(“In other words, the FTCA and Bivens each have their own
exhaustion procedures, and Smith has a duty to fully exhaust the
administrative remedies required by the two different claims.”);
Fulwylie v. Waters, Civil Action No. 2:08cv76, 2009 WL 3063016,
*5 (N.D.W. Va. Sept. 22, 2009) (“The exhaustion requirement for a
Bivens claim is separate and distinct from the exhaustion
requirements under the Federal Tort Claims Act. . . .”);
Tolliver v. Edgefield Correctional Institution, No. 0:060903-PMD,
2006 WL 1391447, *4 (D.S.C. May 16, 2006) (“While Plaintiff’s
filings indicate he may have exhausted the BOP grievance
procedure, which is a prerequisite to filing a Bivens action,
exhaustion of administrative remedies for an action under the
FTCA is vastly different.”).

“[E]xhaustion of a Bivens claim

requires a prisoner to fully comply with all four stages of the
internal prison grievance procedure.

In contrast, to exhaust an

FTCA claim, a prisoner must file an administrative claim directly
with the BOP, and obtain a final ruling.

4

No further appeals are

required.”

Bradley v. Meadows, No. 2:11CV00153 JMM/JTR, 2012 WL

1831459, *2 n.7 (E.D. Ark. May 18, 2012).
With respect to the exhaustion of plaintiff’s Bivens claim
against FCI McDowell, the record supports Magistrate Judge
Aboulhosn’s conclusion that such a claim was not properly
exhausted.

The United States submitted a declaration from Sharon

Wahl, a Paralegal for the Consolidated Legal Center at FCI
Beckley, who has access to the various BOP databases as well as
the files of BOP inmates.

See ECF No. 11-1.

According to Ms.

Wahl, as of August 15, 2016, plaintiff had not filed an
administrative remedy regarding the medical care he received at
FCI McDowell.

See id. at ¶ 4.2

Furthermore, the administrative

remedies attached to plaintiff’s opposition to defendants’ motion
concern the handling of his medical records at FCI Cumberland,
not FCI McDowell.

See ECF No. 15.

Administrative remedies must

be filed with the facility where the alleged injuries occurred
and a transfer to another facility does not nullify this
requirement.

Jackson v. Studel, No. 3:10CV177-MU-02, 2010 WL

1689095, *2 (W.D.N.C. Apr. 26, 2010) (finding that plaintiff’s
failure to exhaust his administrative remedies is not “excused by
his transfer to a different facility.”); Moore v. Scotland County
Jail, No. 1:05CV527, 2006 WL 2168940, * (M.D.N.C. June 28, 2006)

2

According to Ms. Wahl, the only administrative remedy
filed at FCI McDowell was regarding a disciplinary action on
March 9, 2016. See id. at ¶ 5.
5

(transfer to a different facility did not excuse failure to
exhaust administrative remedies at former facility against which
complaint had been filed).
As to the exhaustion of plaintiff’s FTCA claim, Ms. Wahl
attests that plaintiff never filed an administrative tort claim
with the BOP regarding his medical treatment at FCI McDowell.
See id. at ¶ 7.

Based on the foregoing, it is clear that

plaintiff has not exhausted his claim under the FTCA and it is
subject to dismissal.

Furthermore, any attempt to rely on

grievances filed through the BOP’s administrative remedy program
does not save his FTCA claim because, as noted above, they are
not one and the same.

See Brown v. United States, Civil Action

No. 5:11CV63-DCB-RHW, 2012 WL 7655323, *2 (S.D. Miss. Dec. 19,
2012) (“Brown’s grievances through the prison’s administrative
remedy program are not the functional equivalent of an
administrative tort claim submitted on Standard Form 95.”);
Jiminez v. United States, No. 11 Civ. 4593(RJS), 2013 WL 1455267,
*5 (S.D.N.Y. Mar. 25, 2013) (“Although Plaintiff had to file
multiple forms – BP-8, BP-229, BP-230(13), BP-DIR-11 – in order
to exhaust administrative remedies prior to filing a Bivens
action, these exhaustion requirements did not apply to his FTCA
claim.”); Fiore v. Medina, 11-cv-2264 (RJS), 2012 WL 4767143, *7
n.5 (S.D.N.Y. Sept. 27, 2012) (“[S]uch forms do not establish
exhaustion under the FTCA; rather they constitute BOP

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Administrative Remedy Program forms used to exhaust remedies for
Bivens claims, pursuant to the PLRA.”); Marks v. United States,
No. C06-5696RBL, 2007 WL 3087157, *3 (W.D. Wash. Oct. 19, 2007)
(dismissing FTCA claim for failure to exhaust as “[t]he filing of
a grievance at an institution is not the same as making an
official tort claim demand, addressed to the proper agency”).
Finally, plaintiff’s contention that his complaints to
various BOP personnel regarding his medical care were sufficient
to satisfy the administrative exhaustion requirement is without
merit.

“Litigants must strictly comply with the requirements of

the FTCA before this Court obtains jurisdiction to consider such
claim.”

Brown v. United States, Civil Action No. 5:11CV63-DCB-

RHW, 2012 WL 7655323, *1 (S.D. Miss. Dec. 19, 2012); see also
Robinson v. United States, Civil Action No. 3:13-CV-1106, 2014 WL
2940454, *5 (M.D. Penn. June 30, 2014) (“Therefore, prior to
commencing an FTCA action a plaintiff must comply with the
procedural prerequisites set forth by the FTCA.

Such procedural

compliance is the price plaintiff must pay to take advantage of
the limited waiver of sovereign immunity granted by the FTCA.”).
Likewise, the PLRA also “requires proper exhaustion.”

Woodford

v. Ngo, 548 U.S. 81, 93 (2006); see also Ruggiero v. County of
Orange, 467 F.3d 170, 177–78 (2d Cir. 2006) (rejecting prisoner’s
argument that statement to investigators satisfied administrative
exhaustion requirement).

In order to properly exhaust his

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claims, a prisoner must “us[e] all steps” in the administrative
process; he must also comply with any administrative “deadlines
and other critical procedural rules” along the way.”

Woodford

548 U.S. at 90-91.
For all these reasons, plaintiff’s objections regarding
exhaustion are OVERRULED.

As this issue is dispositive, the

court does not reach plaintiff’s other objections.
Having reviewed the Findings and Recommendation filed by
Magistrate Judge Aboulhosn, the court adopts the findings and
recommendations contained therein.

Accordingly, the court hereby

GRANTS defendants’ motion to dismiss or, in the alternative, for
summary judgment; DISMISSES plaintiff’s complaint; and DIRECTS
the Clerk to remove the case from the court’s docket.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to plaintiff, pro se, and counsel of record.
IT IS SO ORDERED this 10th day of March, 2017.
ENTER:
David A. Faber
Senior United States District Judge

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