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Kessler v. Vaughn

United States District Court, E.D. Virginia, Alexandria Division

December 14, 2016

Windsor W. Kessler, III, Plaintiff,
v.
Mr. Vaughn, et al., Defendants.

          MEMORANDUM OPINION

          Gerald Bruce Lee United States District Judge

         THIS 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 dismissed.

         I. Procedural and Factual Background

         The procedural history of this matter is somewhat complicated. Plaintiff initially filed a complaint in this matter on May 18, 2015.[1] 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.

         Before 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.

         In the 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. No. 26.

         On 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.

         On 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.

         In 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.

         Plaintiff 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.

         On 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.

         In 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.

         By 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.

         With regards to his FTCA claims, plaintiff filed the following administrative claims with the Federal Bureau of Prisons (BOP):

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 Court. Id.
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.

         Defendant 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.

         II. ...


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