Opinion
CIVIL ACTION NO. 1:02-CV-073-BG
October 24, 2002
ORDER OF DISMISSAL WITH PREJUDICE
Plaintiff, proceeding pro se and informa pauperis, has filed a claim pursuant to Bivens v. Six Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff has consented to proceed in this matter before the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and, therefore, this court has jurisdiction in this matter.
After reviewing Plaintiff's Complaint and the relevant case law, the court is of the opinion that Plaintiff's Complaint should be dismissed with prejudice for the reason that Plaintiff's claims are barred by time limitations.
Statement of the Case
Plaintiff alleges that on June 22, 1999, a fight broke out between two groups of inmates at the U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Big Spring, Texas, where Plaintiff was incarcerated. During the disturbance, Plaintiff alleges that a bullet struck him in the upper right side of his chest. He was treated at the prison hospital and he was placed in administrative segregation for six months.
On October, 23, 2001, Plaintiff submitted his "Request for Administrative Remedy" requesting monetary compensation for the incident. His request was denied, and, subsequently, all of his appeals were denied.
On April 1, 2002, Plaintiff filed his civil action in District Court.
Discussion
Plaintiff's claims are barred by Texas' two-year statute of limitations in a Bivens claim. Alford v. United States, 693 F.2d 498, 499 (5th Cir. 1982) (stating the applicable state statute of limitations governs in a Bivens action); Aggarwal v. Sec'y of State, 951 F. Supp. 642, 649-50 (S.D. Tex. 1996) (applying Texas's two-year state of limitations to a Bivens action). See also Pena v. United States, 157 F.3d 984 (5th Cir. 1998).
The alleged assault occurred on June 22, 1999. Plaintiff did not initiate his civil action on his claims until April 1, 2002, over two years after limitations began to run.
Even if this action were viewed as one filed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et. seq., Plaintiff's claims would still be barred by the statute of limitations. To proceed under the Federal Tort Claims Act, Plaintiff should have submitted his administrative claim no later than June 22, 2001, (two years after the date the claim arose, which was June 22, 1999) ( 28 U.S.C. § 2401(b)). Plaintiff did not submit his administrative claim until October 23, 2001.
Conclusion
Since the applicable state statute of limitations governs in a Bivens action, Plaintiff's claims are time barred and his Complaint should be dismissed. It is, therefore,
ORDERED that Plaintiff's claims are hereby dismissed with prejudice.
ORDERED that all pending motions not previously considered by the court are DENIED as moot.
This is a consent case assigned to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) with authority to enter judgment. Any appeal shall be to the Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C. § 636(c)(3).
A copy of this Order shall be mailed to Plaintiff pro se and to R. Wayne Hughes, Jr., Assistant United States Attorney, Burnett Plaza, 801 Cherry Street, Suite 1700, Fort Worth, Texas 76102-6882.
Judgment shall be entered accordingly.