Opinion
Civil Action No. 04-3023-KHV.
November 1, 2004
MEMORANDUM AND ORDER
Frank Martinez, a former inmate at the United States Penitentiary in Leavenworth, Kansas (USP-Leavenworth) and at a facility operated by Corrections Corporation of America, Inc. ("CCA"), filed suit against the Bureau of Prisons ("BOP"), the director of the BOP and CCA. Under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and Kansas state law, plaintiff alleges that defendants denied him adequate medical care while he was an inmate at a CCA facility in Leavenworth, Kansas. This matter is before the Court on theFederal Defendants' Motion To Dismiss (Doc. #13) filed May 24, 2004 and the Motion To Dismiss Of Defendant Corrections Corporation Of America (CCA) (Doc. #7) filed April 22, 2004. For reasons set forth below, the Court sustains defendants' motions.
Standards For Motions To Dismiss Under Rule 12(b)(1)
The Court may only exercise jurisdiction when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 280 (D. Kan. 1995) (citing Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); Fed.R.Civ.P. 12(h)(3). Plaintiff sustains the burden of showing that jurisdiction is proper, see id., and he must demonstrate that the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D. Kan. 1993).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial attacks on the complaint or factual attacks on the accuracy of the allegations in the complaint. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Defendant's motion falls within the former category because the Court need not consider evidence outside the complaint.
Standards For Motions To Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). In reviewing the sufficiency of plaintiff's complaint, the issue is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Factual Background
Plaintiff's complaint alleges the following facts:
Plaintiff is a former inmate at the federal prison hospital in Rochester, Minnesota. Because of his medical conditions, plaintiff used a wheelchair and had restrictions on his ability to walk. At some point in time, plaintiff was transferred to CCA. CCA held plaintiff on behalf of the BOP until he could be transferred to USP-Leavenworth.
Except for the date that he filed an administrative claim, plaintiff has not set forth any dates in his complaint.
In his complaint, plaintiff alleges that he was transferred to the "Leavenworth Prison." Plaintiff does not distinguish between USP-Leavenworth and the CCA facility in Leavenworth. Liberally construing plaintiff's complaint, he was temporarily transferred to CCA, which held plaintiff on behalf of the BOP.
During plaintiff's incarceration at CCA, prison officials confiscated his wheelchair and housed him on the second floor, which required him to walk a lot. As a result, plaintiff developed an ulcer on his right foot which became septic because of lack of care. Plaintiff told prison guards and the warden about his condition, but they denied him medical care for three weeks. Ultimately, plaintiff sought and obtained relief in federal court to have his own doctors care for his condition. After nearly a month in the hospital, plaintiff had to have his right leg amputated below the knee.
On January 20, 2004, plaintiff filed his complaint in this Court. Plaintiff alleges that Lappin, the BOP and CCA inflicted cruel and unusual punishment in violation of the Eighth Amendment and were negligent because they did not provide him a wheelchair, they made him walk a lot and they denied medical treatment on his foot for three weeks. Plaintiff asserts claims under Bivens and the FTCA against all defendants, and he asserts a state law negligence claim against CCA.
On the day that plaintiff filed his complaint in this Court, he filed an administrative tort claim with the BOP.
Plaintiff's complaint alleges that he filed the tort claim with the "Veterans' Administration," Complaint (Doc. #1) ¶ 26, but the briefing on the motions to dismiss suggests that he actually filed his claim with the BOP.
Analysis
I. Motion To Dismiss Of Federal DefendantsA. Bivens Claim
Defendants argue that the BOP and Lappin in his official capacity as director of the BOP are entitled to sovereign immunity on plaintiff's Bivens claim. The Court agrees. The United States did not waive its sovereign immunity for constitutional torts asserted against federal agencies or the directors of those agencies in their official capacity. See FDIC v. Meyer, 510 U.S. 471, 484-85 (1994) (Bivens action not implied directly against federal agencies); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002) (federal employees in official capacities immune from Bivens suit); Pickens v. Fed. Bureau of Prisons, 1997 WL 271326 (10th Cir. May 22, 1997) (noBivens action against United States or its agencies for compensatory damages). Plaintiff has not identified any explicit waiver of immunity. Absent a waiver of sovereign immunity, the Court must dismiss plaintiff's Bivens claim against the BOP and Lappin in his official capacity for lack of jurisdiction. See S.W. Four Wheel Drive Ass'n. v. Bureau of Land Mgmt., 363 F.3d 1069, 1071 (10th Cir. 2004).
Lappin also argues that the Bivens claim against him in his personal capacity should be dismissed for failure to state a claim. In particular, Lappin argues that plaintiff has not alleged how Lappin was personally involved in the conduct giving rise to this action. Plaintiff does not respond to this argument. Lappin cannot be liable for the conduct of other officials underBivens. See Whayne v. State of Kansas, 980 F. Supp. 387, 394 (D. Kan. 1997) (must allege actual and knowing participation for Bivens liability). In addition, the doctrine of respondeat superior does not apply because plaintiff does not allege an "affirmative link" between the actions of Lappin and the individuals who allegedly treated plaintiff improperly. See Kite v. Kelley, 546 F.2d 334, 337 (10th Cir. 1976) (Bivens action against superior only if plaintiff shows "affirmative link" to subordinate's actions). Plaintiff has not shown any reason why Lappin should be held liable for the actions of other prison officials.
The Court therefore sustains the federal defendants' motion to dismiss plaintiff's Bivens claim.
B. FTCA Claim
Defendant argues that as to plaintiff's FTCA claim, plaintiff has not exhausted administrative remedies. As a jurisdictional prerequisite, the FTCA bars a claimant from bringing suit in federal court until he has exhausted administrative remedies. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 113 (1993); Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999); Pipkin v. U.S. Postal Serv., 951 F.2d 272, 273 (10th Cir. 1991). In order to comply with Section 2675(a), a claimant must file an administrative claim which contains "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir. 1992) (citations omitted). The requirements are jurisdictional and cannot be waived. See id. Furthermore, because the FTCA constitutes a waiver of the government's sovereign immunity, the Court must strictly construe its notice requirements. See id.
Initially, the Court notes that the proper defendant in an FTCA case is the United States of America, not a particular federal agency or the director of that agency. See 28 U.S.C. § 2674. Even if the Court substituted the United States as defendant on plaintiff's FTCA claim, however, it would reach the same result on defendants' motions.
Plaintiff maintains that the failure to exhaust administrative remedies under the Prison Litigation Reform Act does not deprive a federal court of subject matter jurisdiction.See Plaintiff's Opposition (Doc. #18) at 3. While this statement is correct as to a Bivens claim, exhaustion of administrative remedies is a jurisdictional prerequisite for an FTCA claim. See Cizek, 953 F.2d at 1233.
Plaintiff apparently maintains that the BOP effectively denied his claim on July 18, 2004, for expiration of time to act on it, and that any jurisdictional defect has therefore been cured. The Tenth Circuit has expressly rejected this position. See Duplan, 188 F.3d at 1199. "Allowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system." Id. (quotation and citation omitted). The Court therefore sustains the federal defendants' motion to dismiss plaintiff's FTCA claim for failure to exhaust administrative remedies.
In Duplan, the Tenth Circuit held that the filing of an amended complaint could cure the defect where "the government agreed that the amended complaint effectively constituted a new action and agreed to administrative closure of the first action pending exhaustion." Id. at 1199. In Duplan, "[b]ecause the government expressly agreed to the procedure employed by the district court, the filing of the amended complaint was properly construed as instituting a new action against the government."Id. at 1200. Here, plaintiff has not filed an amended complaint and the government has not agreed to treat any such amended complaint as instituting a new action against the government. Therefore, plaintiff must file a new suit.
In his response to the federal defendants' motion to dismiss, plaintiff suggests that the Court should overrule the motion for equitable reasons. Plaintiff states as follows:
Mr. Martinez made contact with his attorneys and initiated litigation near the end of the two-year statute of limitations for his state tort claim. The state claim is currently viable because it is attached to Mr. Martinez's federal claims against the [BOP]. Dismissing the [BOP] claim would potentially destroy pendent party jurisdiction, ending Mr. Martinez's claim against CCA in federal court. Mr. Martinez would then face sizable legal hurdles and severe statute of limitations challenges in attempting to refile his state tort claim in Kansas court. CCA would skate free of all liability. * * *
To the extent the Defendants suggest that a Bivens claim can not be brought against the agency itself or against the Director, in his official capacity, the Plaintiff agrees, but adds that the Director should remain party to this action until the agent directly responsible for Mr. Martinez's lost leg can be ascertained. The Plaintiff further asserts that it could well be that the policies of the [BOP] are responsible for Mr. Martinez's harm, and to the extent this is true, Bivens provides a possible model for the court to use in permitting the Plaintiff to find justice in his case. The Plaintiff requests leave to amend his petition to include the [BOP] agents directly responsible for the policies and actions responsible for injuring the Plaintiff.Plaintiff's Opposition to Defendant Bureau Of Prisons And Harry G. Lappin's Motion To Dismiss (Doc. #18) filed July 6, 2004 at 4-5, 7.
Despite plaintiff's equitable pleas, the Court cannot keep the BOP and Lappin in this case solely for plaintiff to retain his state law claim against CCA and to take discovery to find out who should be the actual defendants on his Bivens claims. Plaintiff apparently chose to seek legal advice only shortly before the statute of limitations on his state law claim against CCA expired. Rather than filing a claim instate court against CCA, however, plaintiff and his counsel made the strategic choice to file a complaint in federal court combining his state law claim against CCA with Bivens and FTCA claims against CCA, the BOP and Lappin. In retrospect, plaintiff's choice not to file a separate suit against CCA in state court may have been mistaken, but this Court cannot re-write federal law to rectify that mistake. In addition, as explained below, plaintiff has at least 30 days (and possibly six months) to commence a new action in state court. See infra note 8. The Court therefore overrules plaintiff's equitable request for the Court to overrule the motion to dismiss of the BOP and Lappin.
II. Motion To Dismiss Of CCA
Against CCA, plaintiff asserts claims under Bivens, the FTCA and state malpractice law. CCA first argues that the Court does not have jurisdiction over plaintiff's Bivens claim against it. In response, plaintiff concedes that this Court has already determined that a Bivens claim cannot be asserted against a private corporation. See Plaintiff's Opposition (Doc. #15) at 7-8; Peoples v. CCA Det. Ctr., No. 03-3129-KHV, 2004 WL 74317, at *7 (D. Kan. Jan. 15, 2004); see also Purkey v. CCA Det. Ctr., ___ F. Supp.2d ___, 2004 WL 2283070, at *2 (D. Kan. June 10, 2004). InCorrectional Services Corporation v. Malesko, 534 U.S. 61 (2001), a federal prisoner sued Correctional Services Corporation ("CSC"), a private corporation under contract with the BOP to house federal prisoners and detainees. See id. at 63-64. While Malesko was in CSC custody, CSC employees forced him to climb stairs to his fifth floor living quarters even though he had a known heart condition. See id. at 64. Malesko had a heart attack, fell, and sustained injuries. See id. Malesko brought a Bivens action against CSC for actual and punitive damages. See id. The Supreme Court refused to extend Bivens liability to CSC, and found that imposing liability on private prison facilities is a question for Congress, not the courts, to decide. See id. at 72. Therefore, Malesko clearly precludes plaintiff's claim against CCA under Bivens.
CCA also argues that the Court does not have jurisdiction over plaintiff's FTCA claim against CCA because it is not the federal government or one of its employees. The FTCA provides a limited waiver of sovereign immunity that allows the United States to be sued for damages arising from torts committed by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b); see Curry v. United States, 97 F.3d 412, 414 (10th Cir. 1996). The FTCA, however, does not authorize suits based on the acts of independent contractors or their employees. Id. Plaintiff maintains that the Court could consider CCA an employee based on plaintiff's allegation that CCA operated the facility on behalf of the BOP. In the alternative, plaintiff argues that the Court should grant leave to amend his complaint to allege CCA's status as an employee of the United States. The Court need not reach plaintiff's arguments because he has not exhausted administrative remedies as to the FTCA claim, a jurisdictional prerequisite. See supra text, part I.B. The Court therefore sustains CCA's motion to dismiss plaintiff's FTCA claim.
The only remaining claim in this case is plaintiff's state law negligence claim against CCA. Absent the Bivens and FTCA claims, plaintiff's state law claim is no longer supplemental to any federal claim. Given the early stage of this case and the absence of a federal claim, the Court dismisses plaintiff's state law claim against CCA without prejudice. See Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995). IT IS THEREFORE ORDERED that the Federal Defendants' Motion To Dismiss (Doc. #13) filed May 24, 2004 be and hereby is SUSTAINED. IT IS FURTHER ORDERED that the Motion To Dismiss Of Defendant Corrections Corporation Of America (CCA) (Doc. #7) filed April 22, 2004 be and hereby is SUSTAINED. IT IS FURTHER ORDERED that plaintiff's Bivens claim against the Bureau of Prisons, Harry G. Lappin in his official capacity and Corrections Corporation Of America, Inc., and plaintiff's FTCA claim against all defendants, are DISMISSED for lack of jurisdiction. Plaintiff's Bivens claim against Harry G. Lappin in his individual capacity is DISMISSED for failure to state a claim.
Plaintiff argues that he will face statute of limitations challenges in state court. Under 28 U.S.C. § 1367(d), however, "[t]he period of limitations for any [supplemental] claim . . . shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." The tolling provision of Section 1367(d) provides "assurance that state-law claims asserted under § 1367(a) will not become time barred while pending in federal court." Jinks v. Richland County, 538 U.S. 456, 464 (2003);see Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1168 n. 4 (10th Cir. 2004). In addition, Kansas state law ordinarily gives a plaintiff six months to commence a new action if a previous timely action failed "otherwise than upon the merits." K.S.A. § 60-518. Accordingly, plaintiff has at least 30 days (and possibly six months) to commence a new action in state court.
IT IS FURTHER ORDERED that plaintiff's negligence claim against Corrections Corporation Of America, Inc. is DISMISSED without prejudice.