United States District Court, E.D. Virginia, Alexandria Division
Windsor W. Kessler, III, Plaintiff,
Mr. Vaughn, et al., Defendants.
Bruce Lee United States District Judge
MATTER comes before the Court upon review of defendant's
Motion to Dismiss and Motion for Partial Summary Judgment.
Windsor W. Kessler, III, a federal inmate proceeding
pro se, filed a civil rights action, pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.
("FTC A"), alleging that the only remaining
defendant in this case, the United States of America, is
liable for negligently providing inadequate medical care to
plaintiff while he was incarcerated at FCI-Petersburg. The
issue before the Court is whether there is subject matter
jurisdiction over the remaining FTCA claims or whether they
were timely filed. The Court concludes that it does not have
jurisdiction to hear most of the claims and that remaining
claims were not timely filed. Thus, the complaint must be
Procedural and Factual Background
procedural history of this matter is somewhat complicated.
Plaintiff initially filed a complaint in this matter on May
18, 2015. Dkt. No. 1. The original complaint
asserts claims against defendants Vaughn and Reeves regarding
the falsification of information on two incident reports.
Id. Plaintiffs claims were liberally construed as
seeking relief pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Dkt. No. 6.
this Court's initial review of the original complaint,
plaintiff submitted a motion to amend his complaint. Dkt. No.
4. Plaintiff sought to add claims related to grievances he
filed regarding administrative and medical issues.
Id. By Orders dated September 15, 2015, and
September 30, 2015, plaintiffs motion was denied without
prejudice for him to submit a renewed motion with a proposed
amended complaint. Dkt. Nos. 6, 9. Plaintiff filed three more
motions to amend his complaint without a proposed amended
complaint on September 10, 2015, September 21, 2015, and
October 2, 2015, again seeking to add claims regarding
administrative and medical issues. Dkt. Nos. 8, 10, 17. On
November 17, 2015, plaintiff filed a fifth motion to amend
his complaint, this time with an attached proposed amended
complaint. Dkt. Nos. 23-25. The proposed amended complaint
asserted claims pursuant to Bivens and the FTCA,
named several individual defendants, and included the
allegations presented in the original complaint as well as
claims related to medical care. Dkt. No. 24. By Order dated
February 5, 2016, plaintiffs motions to amend were denied
without prejudice and plaintiff was directed to file a
particularized and amended complaint that would serve as the
sole complaint in the matter. Dkt. No. 29.
meantime, plaintiff filed a notice of appeal on September 21,
2015. Dkt. No. 12. By Order dated December 8, 2015,
plaintiffs appeal was dismissed by the United States Court of
Appeals for the Fourth Circuit for failure to prosecute. Dkt.
March 3, 2016, plaintiff filed an amended complaint, which is
now the sole operative complaint in this matter. Dkt. No. 31.
This complaint named over twenty individuals as defendants
and asserted five claims, which are essentially the same
claims asserted in the proposed amended complaint filed on
November 17, 2015. Id. Plaintiff asserted the
following allegations which, for purposes of the motion to
dismiss, will be taken as true.
November 14, 2012, plaintiff broke his tibia and fibula while
exercising in the recreation yard at a prison facility in New
York. Id. at ¶ 1. On March 20, 2013, plaintiff
arrived at FCI Petersburg Medium in Virginia and was given a
restriction of "no ladders/no climbing" and
"bottom bunk;" however, plaintiff was assigned a
middle bunk which required him to climb and use a ladder.
Id. at ¶ 23-25. Plaintiff was also assigned to
work as a compound orderly, a job which required a lot of
walking. Id. at ¶ 26.
March 2013, plaintiff was denied an ankle brace for his
injured foot and was told to begin walking without his
crutches. Id. at ¶ 27. This caused plaintiff to
reinjure his foot. Id. at ¶¶ 28-29.
Plaintiff was given an ankle brace and pain medication;
however, the brace did not provide sufficient support and
plaintiff injured his foot again in September 2013.
Id. at ¶¶ 30-32. On January 10, 2014, he
underwent surgery to remove the screws and plates from his
first foot surgery. Id. at ¶ 34. On February 5,
2014, plaintiff was placed in the Special Housing Unit
("SHU") for "allegedly fighting with another
person." Id. at ¶ 38. While in the SHU,
plaintiff developed MRSA, which was treated with an
antibiotic which "was not supposed to be taken with the
medication he was already taking." Id. at
¶ 40, 42.
had a disciplinary hearing regarding the alleged fight and
was found guilty, even though his due process rights were
violated because, instead of reviewing the incident report
within five days as policy requires, defendants delayed
plaintiffs hearing until March 2014. Id. at
¶¶ 38-39, 45.
April 16, 2014, plaintiff was questioned about sending money
to two other inmates. Id. at ¶ 47. Plaintiff
was issued incident reports related to this behavior on April
17, 2014, and May 1, 2014. Id. at ¶¶ 48,
50. Both of these reports contained false information
regarding the day Vaughn and Reeves became aware of plaintiff
s conduct, Id. at ¶¶ 49, 50. In June 2014,
plaintiff was found guilty, despite the due process
violations, and was sent to the SHU. Id. at ¶
52. Plaintiff was not provided access to a mental health
professional after May 2015. Id. at ¶ 54.
October 2014, plaintiff experienced stomach and shoulder pain
in the SHU, but was never examined. Id. at ¶
53. In May 2015, the pain worsened, but the medical
department determined that plaintiff did not require
treatment. Id., at ¶ 56. In September 2015, upon review
of his medical records, plaintiff realized that his Bilirubin
levels had been increasing since September 2014. Id.
at ¶ 57. Plaintiff discovered that this was a
"by-product of the liver or gallbladder in metabolizing
red blood cells." Id. at ¶ 58.
Memorandum Opinion and Order dated July 18, 2016, and July
22, 2016, respectively, this Court dismissed all of plaintiff
s claims except for the FTCA claim raised in Count Four of
plaintiffs complaint. Dkt. Nos. 39, 40. In Count Four,
plaintiff alleged that employees of the Federal Bureau of
Prisons ("BOP") were negligent with regards to (1)
"malicious prosecution with an intent to cause
[p]laintiff ill will, injury, and emotional distress, "
and (2) "their actions [which] rise to the level of
malpractice." Dkt. No. 31. The only remaining defendant,
the United States of America, was directed to file a
responsive pleading addressing the claims in Count Four
"within sixty (60) days of the date of service."
Dkt. No. 40.
regards to his FTCA claims, plaintiff filed the following
administrative claims with the Federal Bureau of Prisons
1. Administrative Tort Claim Number TRT-MXR-2013-04842 which
consists of six Standard Form 95s submitted by plaintiff.
Def. Mot. to Dismiss at Ex. Q. One SF 95 was dated April 29,
2013 and the other five were dated June 14, 2013.
Id. Plaintiffs claims are based on allegations
related to his treatment after his foot surgery in March
2013, the refusal of an ankle brace and the re-injury of his
foot in May 2013, his assignment to a middle bunk despite his
medical restrictions, the re-injury to his foot due to the
physical demands of his job, and a request for lost wages
because his injury did not allow him to work. Id.
Plaintiff sought a total of $ 10, 025, 000 in personal injury
damages. Id. at Ex. R. This claim was denied by the
BOP by letter dated August 19, 2013. Id. Plaintiff
was informed that, if he was dissatisfied with the decision,
he had six months to file suit in a United States District
2. Administrative Tort Claim Number TRT-MXR-2015-06584 and
Administrative Tort Claim Number TRT-MXR-2015-065 86 which
consist of two SF 95s which contain identical claims against
defendants Vaughn and Reeves regarding the alleged
falsification of information on incident reports filed in
April 2014. Id. at Ex. S. The SF 95s were dated
October 7, 2015, but were received by the BOP on September
16, 2015. Id. Plaintiff sought a total of $22, 000
in property damages for "attorney/court" and $77,
999.98 in personal injury damages. Id. These claims
were denied by the BOP by two separate letters dated November
2, 2015. Id. at Ex. T.
3. Administrative Tort Claim Number TRT-MXR-2016-00716 which
consists of a SF 95 submitted by plaintiff on October 26,
2015. Id. at Ex. U. Plaintiffs claim is based on the
alleged medical negligence regarding plaintiffs bilirubin
levels. Id. Plaintiff sought $4, 000, 000 in
personal injury damages. Id. Plaintiffs claim was
denied by the BOP by letter dated December 7, 2015.
Id. at Ex. V.
filed a Motion to Dismiss and Motion for Partial Summary
Judgment along with a supporting memorandum and exhibits on
September 26, 2016, and which was corrected on September 28,
2016. Dkt. Nos. 59, 60, 62, 63. After receiving extensions of
time to file his response, plaintiff filed a Motion to Quash
Summary Judgment and Continuance. Dkt. No. 71. After
receiving an extension of time to file a reply, defendant
filed a reply on November 1, 2016. Dkt. No. 76. This matter
is now ripe for adjudication.