Hancock v. Rickard et al
Filing
102
MEMORANDUM OPINION AND ORDER: The court OVERRULES plaintiff's 100 Objections except for Objection 1 which was sustained. The court SUSTAINS defendants' 99 Objection on the issue of exhaustion of plaintiff's FTCA claim. With these e xceptions, the court ADOPTS the 98 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn; GRANTS defendants' 83 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment; DISMISSES this action; and directs the Clerk to remove this case from the court's active docket. Signed by Senior Judge David A. Faber on 3/30/2020. (cc: plaintiff, pro se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
GARY WARREN HANCOCK, JR.,
Plaintiff,
v.
CIVIL ACTION NO. 1:18-00024
BARBARA RICKARD, 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 proposed
findings and recommendation (“PF&R”).
Magistrate Judge Aboulhosn
submitted his proposed findings and recommendation on October 25,
2019.
In that Proposed Findings and Recommendation, the
magistrate judge recommended that this court grant in part and
deny in part defendants’ “Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment.”
Specifically,
Magistrate Judge Aboulhosn recommended that the motion be denied
as to plaintiff’s claim under the Federal Tort Claims Act
(“FTCA”) and granted in all other respects.
In accordance with the provisions of 28 U.S.C. § 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.
Snyder v. Ridenour, 889 F.2d 1363
(4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985).
Moreover,
this court need not conduct a de novo review when a petitioner
“makes general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings
and recommendations.”
Cir. 1982).
Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Plaintiff filed timely objections to the Proposed
Findings and Recommendation on November 7, 2019 and defendant
United States of America filed limited objections on November 5,
2019.
The court has conducted a de novo review of the record as
to those objections.
See 28 U.S.C. § 636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of the
report or specified proposed findings and recommendations to
which objection is made.”).
I.
Background
On January 8, 2018, plaintiff filed this complaint for
alleged violations of his constitutional and civil rights
pursuant to Bivens v. Six Unknown Federal Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).
Hancock raised the
following claims:
1)
That he was denied due process concerning the
disciplinary actions taken against him;
2)
That he was subjected to cruel and unusual punishment
based upon the conditions he encountered in the Special
Housing Unit (“SHU”);
3)
That he was denied breakfast on January 2, 2018;
2
4)
That he is being denied appropriate medication to
assist with the digestion of food; and
5)
That his First Amendment rights were violated while
placed in SHU.
In a supplemental complaint, Hancock alleges that he was given
the wrong medication for a week and that defendants’ actions in
doing so “amounts at least to medical negligence, and at most
deliberate indifference.”
ECF No. 53 at 4.
Named as defendants
are: (1) Barbara Rickard, the Warden of FCI McDowell; (2) Officer
Sawyers; (3) Librarian Norris; (4) Lieutenant Saunders; (5) Medic
Walters; (6) Officer Nowlin; (7) Officer John Doe #1; (8) Officer
John Doe #2; (9) Officer John Doe #3; and (10) Pharmacist John
Doe.
Defendants’ Motion to Dismiss/Motion for Summary Judgment
argued that plaintiff’s claims should be dismissed for the
following reasons:
(1)
Failure to Exhaust Administrative Remedies;
(2)
That the Supreme Court has not established a Bivens
remedy for violation of the First Amendment;
(3)
Verbal comments and/or threats do not violate
constitutional rights;
(4)
Hancock cannot establish an Eighth Amendment violation;
(5)
The conditions in SHU do not violate the Eighth
Amendment;
(6)
Plaintiff’s disciplinary action cannot be challenged in
this case;
(7)
Plaintiff makes no specific allegations against Warden
Rickard; and
3
(8)
Defendants are entitled to qualified immunity.
ECF No. 83 and 84.
As noted above, Magistrate Judge Aboulhosn recommended that
plaintiff’s FTCA claim be permitted to go forward.
In so doing,
he denied defendants’ motion to dismiss for failure to exhaust.
As set forth more particularly in the PF&R, the magistrate judge
further recommended that plaintiff’s other claims be dismissed
and/or judgment granted in defendants’ favor.
II.
A.
Analysis
Plaintiff’s Objection 1
Hancock objects that the PF&R mixes up the names of two
medications.
PF&R.
B.
This error does not affect the analysis in the
However, plaintiff’s objection is SUSTAINED.
Plaintiff’s Objection 2
Hancock objects to the recommendation in the PF&R that his
First Amendment claim be dismissed.
Hancock does not point to
any error in the PF&R’s analysis nor does he grapple at all with
its ultimate conclusion that the Bivens remedy has not been
expanded to include First Amendment claims.
As the PF&R noted, the Supreme Court’s decision in Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017), governs the court’s consideration
of plaintiff’s First Amendment claim.
Of Bivens’ origins and its
development, the Court summarized:
In 1871, Congress passed a statute that was later
codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It
4
entitles an injured person to money damages if a state
official violates his or her constitutional rights.
Congress did not create an analogous statute for
federal officials. Indeed, in the 100 years leading up
to Bivens, Congress did not provide a specific damages
remedy for plaintiffs whose constitutional rights were
violated by agents of the Federal Government.
In 1971, and against this background, this Court
decided Bivens. The Court held that, even absent
statutory authorization, it would enforce a damages
remedy to compensate persons injured by federal
officers who violated the prohibition against
unreasonable searches and seizures. See 403 U.S. at
397, 91 S. Ct. 1999. The Court acknowledged that the
Fourth Amendment does not provide for money damages “in
so many words.” Id. at 396, 91 S. Ct. 1999. The Court
noted, however, that Congress had not foreclosed a
damages remedy in “explicit” terms and that no “special
factors” suggested that the Judiciary should
“hesitat[e]” in the face of congressional silence. Id.
at 396-397, 91 S. Ct. 1999. The Court, accordingly,
held that it could authorize a remedy under general
principles of federal jurisdiction. See id. at 392, 91
S. Ct. 1999 (citing Bell v. Hood, 327 U.S. 678, 684, 66
S. Ct. 773, 90 L. Ed. 939 (1946)).
In the decade that followed, the Court recognized
what has come to be called an implied cause of action
in two cases involving other constitutional violations.
In Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60
L. Ed.2d 846 (1979), an administrative assistant sued a
Congressman for firing her because she was a woman.
The Court held that the Fifth Amendment Due Process
Clause gave her a damages remedy for gender
discrimination. Id. at 248-249, 99 S. Ct. 2264. And
in Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64
L. Ed.2d 15 (1980), a prisoner’s estate sued federal
jailers for failing to treat the prisoner’s asthma.
The Court held that the Eighth Amendment Cruel and
Unusual Punishments Clause gave him a damages remedy
for failure to provide adequate medical treatment. See
id. at 19, 100 S. Ct. 1468. These three cases—Bivens,
Davis, and Carlson—represent the only instances in
which the Court has approved of an implied damages
remedy under the Constitution itself.
5
Id. at 1854-55.
The Court went on to state that “expanding the
Bivens remedy is now a disfavored judicial activity” and noted
that it has “consistently refused to extend Bivens to any new
context or new category of defendants . . . for the past 30
years.”
Id. at 1857 (internal quotations and citations omitted).
Of this reluctance to expand Bivens, the court went on to
say that:
When a party seeks to assert an implied cause of
action under the Constitution itself, just as when a
party seeks to assert an implied cause of action under
a federal statute, separation-of-powers principles are
or should be central to the analysis. The question is
who should decide whether to provide for a damages
remedy, Congress or the courts?
The answer most often will be Congress. When an
issue involves a host of considerations that must be
weighed and appraised, it should be committed to those
who write the laws rather than those who interpret
them. In most instances, the Court’s precedents now
instruct, the Legislature is in the better position to
consider if the public interest would be served by
imposing a new substantive legal liability. As a
result, the Court has urged caution before extending
Bivens remedies into any new context. The Court’s
precedents now make clear that a Bivens remedy will not
be available if there are special factors counselling
hesitation in the absence of affirmative action by
Congress.
Id.
After considering the “special factors necessarily
implicated by the detention policy claims” in that case, the
Ziglar court concluded that the detainees’ claims should not be
the basis for a Bivens action.
Id. at 1860 (“After considering
the special factors necessarily implicated by the detention
policy claims, the Court now holds that those factors show that
6
whether a damages action should be allowed is a decision for the
Congress to make, not the courts.”).
Magistrate Judge Aboulhosn analyzed Hancock’s First
Amendment claim under the Ziglar framework and recommended that
the court decline to find an implied Bivens cause of action for
that claim.
The court finds no error in the PF&R’s disposition
of this issue.
See Reichle v. Howard, 566 U.S. 658, 663 n.4
(2012) (“We have never held that Bivens extends to First
Amendment claims.”); Bush v. Lucas, 426 U.S. 367, 390 (1983)
(declining to create an implied damages remedy in a First
Amendment suit against a federal employer); see also Kirtman v.
Helbig, Civil Action No. 4:16-cv-2839-AMQ, 2018 WL 3611344, *5
(D.S.C. July 27, 2018) (declining to find an implied Bivens cause
of action for federal prisoner’s First Amendment retaliation
claim after conducting special factors analysis).
Hancock’s
objection is OVERRULED.
C.
Plaintiff’s Objection 3
Hancock objects to the PF&R’s conclusion that Hancock’s
claims against defendant Norris for verbal harassment did not
amount to a constitutional violation.
According to him, Norris’s
“actions contributed to the totality of the unconstitutional
conditions.”
ECF No. 100 at 1.
“Generally, mere verbal
harassment does not give rise to a constitutional violation.”
Belt v. Federal Bureau of Prisons, 336 F. Supp.3d 428, 437
7
(D.N.J. 2018); see also Clark v. United States, Civil No. 6:16252-GFVT, 2018 WL 1950427, *2 (E.D. Ky. Apr. 25, 2018) (“[V]erbal
harassment and insults, particularly on only one isolated
occasion, are insufficient to state a claim of constitutional
magnitude.”); Snoussi v. Bivona, No. 05CV3133(RJD)(LB), 2008 WL
3992157, *7 (E.D.N.Y. Aug. 22, 2008) (“It is also clear that
verbal harassment alone does not constitute a cognizable
violation of an individual’s constitutional rights.”).
As these
cases and the numerous authorities cited therein confirm,
Hancock’s verbal abuse/harassment claim against defendant Norris
does not amount to a violation of the Eighth Amendment.
Hancock, in apparent recognition of this truth, states that
Norris’s verbal abuse/harassment was just part of a claim based
on the totality of his conditions of confinement.
However, the
Supreme Court has held that “[n]othing so amorphous as ‘overall
conditions’ can rise to the level of cruel and unusual punishment
when no specific deprivation of a single human need exists.”
Wilson v. Seiter, 501 U.S. 294, 305 (1991).
The Court confirmed
that “[s]ome conditions of confinement may establish an Eighth
Amendment violation ‘in combination’ when each would not do so
alone, but only when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable human need
such as food, warmth, or exercise—for example, a low cell
8
temperature at night combined with a failure to issue blankets.”
Id. at 304.
Hancock does not identify, nor can the court discern, a
“single, identifiable human need” of which he was deprived due to
Norris’s alleged verbal harassment, either alone or in
combination with his other complaints.
This objection is
OVERRULED.
D.
Plaintiff’s Objection 4, 5, 6, and 7
Hancock complained about a number of his conditions of
confinement.
The PF&R concluded that these conditions, neither
alone or in combination with each other, rose to the level of an
Eighth Amendment violation.
1.
Hancock objects to this finding.
Sanitation
Hancock objected to the PF&R’s conclusion that being
confined in a hard, dirty cell without hand soap for a four-day
period showed deliberate indifference on the part of defendants.
The Fourth Circuit has previously held that denial of a shower on
two separate occasions does not violate the Eighth Amendment.
See Langston v. Fleming, 38 F.3d 1213, 1994 WL 560765, *1 (4th
Cir. 1994); see also Davenport v. DeRobertis, 844 F.2d 1310,
1316-17 (7th Cir.) (one shower per week for inmates in
administrative segregation does not violate Eighth Amendment),
cert. denied, 488 U.S. 908 (1988); Davis v. Villers, Civil Action
No. 5:12cv48, 2012 WL 7017863, *5 (N.D.W. Va. Oct. 9, 2012)
9
(temporary lack of toilet paper does not state a claim of
constitutional magnitude); McCoy v. Meredith, C/A No. 4:10-1687JFA-TER, 2011 WL 2223160, *2 (D.S.C. June 6, 2011) (denial of
right to take shower on two occasions is not violation of Eighth
Amendment); Shannon v. Graves, No. CIV.A.98-3395-KHV, 2000 WL
206315, *11 (D. Kan. Jan. 5, 2000) (“[C]ourts have noted that the
failure to provide deodorant and shampoo is not cruel and
unusual, because these items are not ‘essential human needs.’”).
2.
Food
Although “[i]t is well established that inmates must be
provided nutritionally adequate food, prepared and served under
conditions which do not present an immediate danger to the health
and well-being of the inmates who consume it[,] . . . one-time or
intermittent mishaps with respect to food are not a
constitutional violation.”
Miller v. Fogle, Civil Action No.
613-1670-TMC, 2013 WL 4499479, *2 (D.S.C. Aug. 19, 2013).
Therefore, Hancock’s claim that he received spoiled milk on one
occasion likewise does not state an Eighth Amendment violation.
See Perez v. Sullivan, 100 F. App’x 564, 567 (7th Cir. June 4,
2004)(no deliberate indifference to inmate’s health based upon
ingesting spoiled milk on one occasion); Miller, 2013 WL 4499479,
at *2 (fact that prisoner was served spoiled milk on one occasion
does not establish a constitutional violation); Shannon, 2000 WL
206315, at * 14 (fact that inmate is served spoiled food on
10
occasion and food with insect on one occasion insufficient for a
jury to find cruel and unusual punishment).
3.
Warmth
As for Hancock’s complaints regarding cold temperatures, his
allegations do not establish that he was deprived of a basic
human need.
He alleges that the temperatures in SHU were
extremely cold at night but concedes that he was provided two
blankets.
Likewise, with respect to his ability to exercise
outdoors, he concedes that he was provided a coat even though he
was not provided with sweats.
These conditions, standing alone
or in concert with each other, do not establish that Hancock was
deprived of the basic human need of warmth.
See, e.g., Strickler
v. Waters, 989 F.2d 1375, 1382 (4th Cir. 1993) (no Eighth
Amendment violation based upon cold temperatures where prisoner
was provided with blankets); Carabello v. Ingram, No. 5:10-CT3056-FL, 2012 WL 699518, *5 (E.D.N.C. Mar. 1, 2012) (no Eighth
Amendment violation due to cold temperatures in cell where
“inmates were permitted to wear socks on their arms to provide
warmth . . . and were provided blankets and sheets”).
Based upon the foregoing, the court agrees with the PF&R
that these conditions do not violate the Eighth Amendment.
As for Hancock’s claim that these conditions, taken
together, violate the Eighth Amendment, he does not identify the
single, identifiable human need that these conditions denied him.
11
Rather, his allegations touch on a number of different human
needs, such as sanitation, food, and warmth.
Therefore, these
conditions do not have a “mutually enforcing effect”.
See
Saunders v. Sheriff of Brevard County, 736 F. App’x 559, 571
(11th Cir. 2018) (holding that inmate’s “broad swath of
allegations”, including overcrowding, deprivation of toiletries,
inadequate cell cleaning, and failure to provide air conditioning
“fail[ed] to illustrate the deprivation of . . . single
identifiable human need. . . or . . . minimal civilized measures
of life’s necessities”) (internal citations and quotations
omitted); Hood v. Evans, No. 92-15549, 37 F. 3d 1505, *2-3 (7th
Cir. Sept. 28, 1994) (holding inmate’s allegations of overcrowded
cells, inadequate and unsanitary shower facilities, lack of
access to cleaning materials, inadequate heating, cooling, and
ventilation, failure to provide clean clothing and bedding,
inadequate opportunities for exercise, inadequate and poorly
prepared food, confinement in a cell with drug addicts and
mentally ill prisoners, and lack of access to current legal
materials did not have a “mutually enforcing effect”); Strickler
v. Waters, 989 F.2d 1375, 1382 (4th Cir. 1993) (inmate’s
complaints about overcrowding and excessive temperatures did not
have “mutually enforcing effect”).
Hancock’s objections are OVERRULED.
12
E.
Plaintiff’s Objection 8, 9, and 10
Under the Eighth Amendment, a prison official may violate a
prisoner's right to medical care if the official is “deliberately
indifferent” to a “serious medical need.”
U.S. 97, 104–05 (1976).
Estelle v. Gamble, 429
In evaluating Hancock’s claims regarding
inadequate medical care, the PF&R assumed that his ailments were
serious enough to give rise to an Eighth Amendment claim.
As for
the subjective component, the PF&R found that the record did not
show that defendants were aware of, but deliberately disregarded,
that serious medical need.
In so finding, the PF&R provided a
thorough summary of the medical evidence which the court finds
unnecessary to repeat herein.
Suffice it to say, the evidence of
record, which plaintiff has not rebutted in any meaningful way,
demonstrates that defendants consulted with plaintiff on numerous
occasions regarding his complaints and prescribed treatment
options.
Just because Hancock did not agree with the suggested
course of treatment does not mean that a violation of the Eighth
Amendment has occurred.
Plaintiff’s objections largely are directed at the various
findings in the PF&R which are based upon the medical evidence of
record.
Significantly, as the PF&R explained, “[p]laintiff’s
attempt to dispute the medical records with a conclusory, selfserving statement that he reported complaints of his need for
Metamucil to medical staff ‘on several different occasions’ is
13
insufficient because Plaintiff fails to provide factual details,
such as date, time, and to whom the medical issue was reported.”
ECF No. 98 at 40 n.4 (and authorities cited therein).
Hancock’s
objections are OVERRULED.
F.
Plaintiff’s Objection 11
The PF&R concluded that plaintiff had not shown deliberate
indifference on the part of the John Doe pharmacist for allegedly
prescribing the wrong medication.
In one sentence, Hancock
states that he objects to this finding but he does not explain
how the PF&R errs.
As the PF&R explained, there is simply no evidence to
establish the John Doe pharmacist knew he had prescribed the
wrong medication and continued to do so despite this knowledge.
Therefore, plaintiff has failed to show that John Doe pharmacist
knew of and disregarded an excessive risk to his health or
safety.
Plaintiff’s allegations, even if true, are at best
allegations of negligence.
See Daniels v. Beasley, No. 241 F.
App’x 219, 220 (5th Cir. 2007) (allegation that prison official
gave prisoner wrong medication resulting in excessive sleep, loss
of appetite, and temporary loss of vision did not establish “more
than negligence”); Greene v. Watson, Case No. 3:15-cv-00621-MJR,
2015 WL 4609977, *2 (S.D. Ill. July 31, 2015) (“[A] bare
allegation that an official gave a detainee the wrong medication
suggests only negligent conduct by that official, and not the
14
kind of recklessness needed to put forth a constitutional
claim.”); Cruz v. Archie, CIVIL ACTION NO. 5:12cv86, 2013 WL
3544764, *7 (E.D. Tex. July 12, 2013) (“Cruz has failed to show
Archie’s actions in giving him the wrong pill amounted to
anything more than negligence or lack of due care.”).
G.
Plaintiff’s Objection 12
Hancock’s final objection is to the PF&R’s conclusion that
he has not stated a sufficient claim against defendants Saunders
and Rickard because he has failed to show how they violated his
constitution rights.
According to Hancock:
In a prison setting, like the military, rank holds
ultimate power. After notifying the defendant’s
subordinates, Plaintiff notified the supervisory
defendants of the constitutional violations. In
prison, the Warden is the Commander in Chief. If the
warden gives an order to subordinates, the order must
be followed; and the Warden can make sure it is
followed. The same goes for defendant Saunders, he was
the SHU supervisor and had the power to give orders
that would correct the unconstitutional conditions.
Once both supervisory defendants were notified of the
unconstitutional conditions, it was their duty to do
whatever necessary to correct them.
ECF No. 100 at 5.
The Fourth Circuit has explained:
Bivens liability may not be based on respondeat
superior. Jett v. Dallas Ind. School Dist., 57
U.S.L.W. 4858, 4867 (U.S. June 22, 1989) (No. 87–2084).
This Court has held, however, that supervisory
officials may be held liable in certain circumstances
for constitutional injuries inflicted by their
subordinates. Slakan v. Porter, 737 F.2d 368, 372 (4th
Cir. 1984), cert. denied, 470 U.S. 1035 (1985).
Instead of respondeat superior, liability is premised
“on a recognition that supervisory indifference or
15
tacit authorization of subordinates' misconduct may be
a causative factor in the constitutional injuries they
inflict on those committed to their care.” Id. A
plaintiff must show “a pervasive and unreasonable risk
of harm from some specified source and that the
supervisor's corrective inaction amounts to deliberate
indifference or ‘tacit authorization of the offensive
[practices].’” Id. at 373 (citations omitted).
Evidence of a supervisor's continued inaction in the
face of documented widespread abuses provides an
independent basis for finding he either was
deliberately indifferent or acquiesced in the
constitutionally offensive conduct of his subordinates.
Johnathan Lee X v. Casey, No. 90-6677, 924 F.2d 1052, *1 (4th
Cir. Feb. 4, 1991).
Hancock’s objection to the PF&R is OVERRULED for four
reasons.
First, as noted above, Hancock has not alleged or
proven an injury of constitutional magnitude against anyone.
Second, the record is devoid of the sort of documented widespread
abuses contemplated by Slakan.
See Caldwell v. Green, 451 F.
Supp.2d 811, 821 (W.D. Va. 2006) (“Documentation of widespread
abuses are necessary to establish a sheriff’s liability for
constitutional violations by a subordinate.”).
Third, despite
Hancock’s attempt to characterize it otherwise, a careful reading
of plaintiff’s objection is that his theory of liability against
Rickard and Saunders actually rests on respondeat superior
liability, which is not allowed under Bivens.
See Ziglar v.
Abbasi, 137 S. Ct. 1843, 1860 (2017) (“Bivens is not designed to
hold officers responsible for acts of their subordinates.”).
Finally, Hancock has failed to show an affirmative causal link
16
between the alleged inaction on the part of Rickard and Saunders
and any constitutional injury he suffered.
H.
Defendants’ Objection:
Failure to Exhaust
As noted above, Magistrate Judge Aboulhosn concluded that
only plaintiff’s FTCA claim survived defendants’ motion.
With
respect to Hancock’s alleged failure to exhaust his
administrative remedies, Magistrate Judge Aboulhosn could not
find that Hancock failed to exhaust his available administrative
remedies.
See ECF No. 98.
Specifically, based upon the
conflicting evidence of record, the PF&R could not conclude that
the administrative remedy process was available to Hancock while
he was placed in SHU.
For that reason, the PF&R recommended that
insofar as defendants sought dismissal based upon the failure to
exhaust, their motion be denied.
The government objects to the PF&R’s conclusion that Hancock
was unable to file an administrative claim under the FTCA.
ECF No. 99.
See
Pointing to the different requirements for
exhaustion under the Prison Litigation Reform Act (“PLRA”) and
the FTCA, defendants argue that Magistrate Judge Aboulhosn
“appear[ed] to conflate the administrative remedy process under
the PLRA and the administrative claim process under the FTCA.”
Id. at 2.
According to defendants, even if Hancock’s placement
in SHU made it impossible for him to get the specific forms
17
necessary to exhaust his administrative remedies under the PLRA,
he was still able to file an administrative claim under the FTCA.
As sovereign, the United States "can be sued only to the
extent that it has waived its immunity" from suit.
United States
v. Orleans, 425 U.S. 807, 814 (1976); see also Department of the
Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (“Absent a
waiver, sovereign immunity shields the Federal Government and its
agencies from suit.”).
Under the FTCA, the United States has
waived its immunity and is liable for any “negligent or wrongful
act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where the
act or omission occurred.”
28 U.S.C. § 1346(b).
The FTCA
provides for government liability for "tort claims, in the same
manner and to the same extent as a private individual under like
circumstances."
28 U.S.C. § 2674.
In order to bring a tort claim against the United States
under the Federal Tort Claims Act, a claimant must first file an
administrative claim with the appropriate federal agency within
two years of accrual of the claim.
See 28 U.S.C. § 2401(b).
28
U.S.C. § 2401(b) specifies that “[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.”
Before bringing a claim in federal court,
18
“a claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or
registered mail.”
Id. at § 2675(a).
requirement may not be waived.
The claim-filing
See Plyler v. United States, 900
F.2d 41, 42 (4th Cir. 1990); see also Garza-Ovalle v. Armstrong,
Civil Action No. ELH-19-895, 2020 WL 230896. *12 (D. Md. Jan. 15,
2020) (“That the claim must be presented to the appropriate
agency is ‘jurisdictional and may not be waived.’”) (quoting
Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986));
Lamerique v. United States, Case No. 3:18-cv-00532, 2019 WL
2932673, *10 (S.D.W. Va. June 14, 2019) (“The requirement of
filing an administrative complaint is jurisdictional and cannot
be waived.”); Baynes v. United States, 1:15-CV-1604 (LMB/TCB),
2016 WL 4492807, *8 (E.D. Va. Aug. 25, 2016) (“This
jurisdictional requirement may not be waived.”) (citing Kokotis
v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000)).
“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
19
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.”).
There is no dispute that Hancock has not filed an
administrative claim regarding his FTCA claim.
unable to do so while he was in SHU.
He claims he was
Nevertheless, even when he
was in SHU, he was able to institute this civil action on January
8, 2018, see ECF Nos. 1 and 2, and file documents that were
received in this court on January 11, 2018, January 26, 2018,
March 1, 2018, and March 8, 2018.
26.
See ECF Nos. 5-9, 21-24, and
Therefore, Hancock’s actions in filing this lawsuit and
pursuing it indicate that he was not unable to file an
administrative claim while in SHU.
Furthermore, given that
plaintiff was only in SHU from December 17, 2017 through April 4,
2018, he has failed to explain his failure to file an
administrative claim since then and well within the two-year
period.
Cf. Clark v. United States, Civil No. 6:16-252-GFVT,
2018 WL 1950427, *3 (E.D. Ky. Apr. 25, 2018) (“Clark complains
that unidentified BOP officials violated his right of access to
the courts by failing to give him a complaint form to file this
action. . . .
This claim is without merit.
Even ignoring
Clark’s failure to identify a culpable defendant, the filing of
this action demonstrates that Clark was not prevented from
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asserting his claims.”).
Therefore, Hancock’s FTCA cause of
action is subject to dismissal for failure to exhaust.
Based upon the foregoing, defendants’ objection is SUSTAINED
to the extent it argues that exhaustion is mandatory and,
therefore, plaintiff’s FTCA claim is subject to dismissal.
III.
Conclusion
Having reviewed the Findings and Recommendation filed by
Magistrate Judge Aboulhosn, the court hereby OVERRULES
plaintiff’s objections except for Objection 1 which was
sustained.
The court SUSTAINS defendants’ objection on the issue
of exhaustion of plaintiff’s FTCA claim.
With these exceptions,
the court adopts the findings and recommendations contained in
the PF&R.
Accordingly, the court GRANTS defendants’ “Motion to
Dismiss, or in the Alternative, Motion for Summary Judgment;
DISMISSES this action; and directs the Clerk to remove this case
from the court’s active docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and to
plaintiff pro se.
IT IS SO ORDERED this 30th day of March, 2020.
ENTER:
David A. Faber
Senior United States District Judge
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