NINA Y. WANG, Magistrate Judge.
This civil action is before the court on the Motion to Dismiss for Lack of Personal Jurisdiction or, Alternatively, for a More Definite Statement ("Motion to Dismiss") filed on March 31, 2015 by Defendants Charles T. May, Jr. ("Defendant May"), Brian Brittingham ("Defendant Brittingham"), Samantha Martin ("Defendant Martin") and Kevin Price ("Defendant Price") (collectively, "NCIS Defendants"). [#46]. This matter was referred to this Magistrate Judge pursuant to the Order Referring Case dated June 24, 2014 [#7], the Order of Reassignment dated February 10, 2015 [#37], and the memorandum dated March 31, 2015 [#47]. Also before the court is Plaintiff's failure to respond to the Order to Show Cause as to why this action should not be dismissed as to Defendants James Newell, Jr. ("Defendant Newell") and Jason Tucker ("Defendant Tucker") for failure to prosecute, failure to timely effect service of process as required by the Federal Rules of Civil Procedure, and failure to comply with an order of this court. See [#57]. After carefully considering the Motion and related briefing, the entire case file, and applicable case law, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED and the Complaint be DISMISSED as to all Defendants.
Plaintiff John Doe
Plaintiff immediately sought an order from the court directing the United States Marshal Service to serve Defendants. [#5] Magistrate Judge Boland denied the motion because Plaintiff was not proceeding in forma pauperis and did not provide "any competent authority to justify service by the United States Marshal," and ordered Plaintiff to file proof of service as to Defendants on or before October 21, 2014. [#9]. Plaintiff then filed a Motion for Reconsideration of Judge Boland's order, which Judge Boland struck because Plaintiff had signed his name as "John Doe," in contravention of Fed. R. Civ. P. 10(1). [#21, #23]. Plaintiff filed a second Motion for Reconsideration on October 21, 2015, seeking relief from the court's order that he file proof of service for all Defendants by that same day. [#24]. He represented that his repeated attempts to serve Defendants "with multiple process servers" had been unsuccessful because "[a]ll of the process servers are civilians and have been unable to access the military installation where the Defendants are located." Id. Judge Boland denied the motion, noting that Plaintiff had not submitted any evidence of attempted service or explanation as to why he could not have Defendants served when they were not at the military installation, and ordered Plaintiff show cause on or before November 10, 2014 why the case should not be dismissed as against all Defendants for failure to prosecute, failure to timely effect service of process as required by the Federal Rules of Civil Procedure, and failure to comply with an order of the court pursuant to D.C.COLO.LCivR 41.1. [#26]. Judge Boland warned Plaintiff that failure to show cause on or before the ordered date would result in a recommendation that the Complaint be dismissed. Id. In his Response to the Order to Show Cause, Plaintiff represented that "[t]he only way by which I can effect service of summons on the defendants who are located on Naval Station Norfolk is via the U.S. Marshals Service." [#27]. Judge Boland thereafter recommended that the court dismiss the Complaint without prejudice, noting that Plaintiff had again failed to provide any evidence of attempted service or explanation as to why the defendants could not be served when they were not at the military installation. [#29]. Plaintiff filed a timely objection to Judge Boland's recommendation. [#30].
On December 22, 2014, Judge Martinez sustained Plaintiff's objections, accepting "Plaintiff's assertion that private process servers are unable to access the military base." [#33]. The court found good cause to extend the deadline for service of process and that service by the U.S. Marshals Service was appropriate given the circumstances. Id. Judge Martinez then ordered Plaintiff to provide the U.S. Marshals Service with the "detailed address of the Naval base at which the Defendants can be located," on or before February 20, 2015, and required Plaintiff to remain responsible for serving Defendant Newell, whom Plaintiff acknowledged was not located on the military installation, and to file proof of service regarding Defendant Newell on or before February 20, 2015. Id. Judge Martinez additionally extended Plaintiff's time period for service under Fed. R. Civ. P. 4(m) as to all Defendants, except Defendant Newell, until the U.S. Marshals Service had filed proof of service with the court; and ordered the U.S. Marshals Service to file a writing with the court naming any Defendant who could not be located after diligent effort, and further ordered that the deadline for service would not thereafter be extended as to any such Defendant. Id.
On January 16, 2015, Plaintiff filed a "Notice of Compliance" with the address at which Defendants May, Brittingham, Martin, Price, and Tucker could be served. [#34]. On March 19, 2015, the U.S. Marshal Service filed executed returns of service for Defendants May, Brittingham, Martin, and Price. [#42, #43, #44, #45]. The U.S. Marshal Service filed unexecuted returns of service for Defendants Newell and Tucker. [#40, #41].
On October 22, 2015, this court issued an Order to Show Cause on or before November 13, 2015 why this case should not be dismissed as to Defendants Newell and Tucker for failure to prosecute, failure to timely effect service of process as required by the Federal Rules of Civil Procedure, and failure to comply with the December 22, 2014 Order pursuant to D.C.COLO.LCivR 41.1. [#57]. The undersigned warned in the Order to Show Cause that Plaintiff's failure to supply an adequate response would result in the recommendation that the Complaint be dismissed as to these Defendants. Id. Plaintiff did not file a timely Response, and to date he has not filed proof of service as to Defendants Newell or Tucker.
The following allegations are taken from the Complaint and deemed true for the purposes of the consideration of the instant Motion to Dismiss. Plaintiff resides in Colorado. See [#49 at 2]. Defendants May, Brittingham, Martin, and Price were employed by the Naval Criminal Investigative Service ("NCIS") at the time the events underlying the Complaint took place. [#1 at 3]. Defendant Tucker was commissioned with the United States Navy and Defendant Newell was employed by the New York State Police acting under the direction of NCIS. [Id.]
Plaintiff alleges that on June 7, 2012, Defendant Price unlawfully confiscated Plaintiff's personal properly, including several firearms, and a DNA sample before placing Plaintiff into confinement. [#1 at 5-7]. Defendant Price later falsified his report concerning the personal property. [Id. at 5-7]. That same day, while escorting Plaintiff, Defendant Tucker's "gross negligence caused Plaintiff to fall," during which he suffered a spinal injury. [Id. at 12]. Defendant Tucker deterred the medical personnel who attempted to assist Plaintiff after the fall, and offered Plaintiff pain medication only if he pleaded guilty. [Id.] Plaintiff alleges that on an unspecified date, Defendant Newell "knowingly and maliciously charged [him] with felony, despite knowing that the maximum lawful charge was a misdemeanor." [Id. at 8]. Plaintiff further alleges that, on an unspecified date, Defendant Price refused his request for an attorney during a police interrogation, and Defendants Newell and Price acted in concert to execute an arrest warrant for Plaintiff after his release from the hospital to conceal Plaintiff's medical condition from the arresting officers. [Id. at 9, 10]. Plaintiff asserts that Defendant Price concealed and omitted exculpatory information in his reports regarding the arrest and detainment of Plaintiff. [Id. at 10-11]. Several months later, following a November 28, 2012, phone call to Defendant Brittingham to inquire after the return of his personal property, Defendant Price arrived at Plaintiff's residence "and accosted his landlord demanding to know anything potentially incriminating about Plaintiff and further threatening her with imprisonment." [Id. at 10]. Plaintiff alleges generally that Defendants May, Brittingham, Price, and Tucker "had a duty to keep [him] from harm and willfully failed to do so," concealed Plaintiff's spinal cord injury to protect Defendants Price and Tucker, and generally "failed to investigate and instead lied to prosecutors, used intimidation, and wrote false reports." [Id. at 13].
On March 31, 2015, the NCIS Defendants filed the Motion to Dismiss, arguing that the court lacks personal jurisdiction over them because Plaintiff has not alleged they had any contact with the state of Colorado. [#46]. In the alternative, the NCIS Defendants ask that the court order Plaintiff to amend his Complaint "to provide a comprehensive chronological narrative, to identify the date on which the alleged relevant events occurred, and to clearly state his claims under the Fourth Amendment." [Id. at 2].
On April 22, 2015, Plaintiff filed a Response conceding that the NCIS Defendants are not Colorado residents, but asserting that the District of Colorado is the proper forum pursuant to 28 U.S.C. § 1391(e). [#49]. Plaintiff further asserted that an amendment of the Complaint is not necessary, but offered to provide a more definite statement if ordered by the court. Id. The NCIS Defendants filed a Reply on May 11, 2015. [#50]. The Motion to Dismiss is thus ripe for adjudication and oral argument would not materially aid in my deliberation.
Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss a complaint for "lack of jurisdiction over the person." The question of personal jurisdiction must be addressed before a court can reach the merits of a case, because "a court without jurisdiction over the parties cannot render a valid judgment." OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998) (citing Leney v. Plum Grove Bank, 670 F.2d 878, 879 (10th Cir. 1982)). Plaintiff bears the burden of establishing either specific or general jurisdiction over Defendants. See AST Sports Science, Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008). Where, as in this case, there has not been an evidentiary hearing and the Parties have not presented affidavits or other sworn testimony, the court must accept a plaintiff's well-pled allegations as true in questioning whether the plaintiff has made a prima facie showing of personal jurisdiction. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008). In addition, all factual disputes must be resolved in favor of jurisdiction. Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1065 (10th Cir. 2007). However, conclusory allegations need not be accepted as true. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995).
Pursuant to Federal Rule of Civil Procedure 12(e) "a party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). A Rule 12(e) motion is appropriate "only in cases where the movant cannot reasonably be required to frame an answer or other responsive pleading to the pleading in question." Drury v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 12-2012-JTM-DJW, 2012 WL 2339747, at *2 (D. Kan. June 19, 2012) (quoting Advisory Committee's Note to 1946 Amendments to Fed. R. Civ. P. 12).
Because Plaintiff is appearing pro se, the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a court may not assume that a plaintiff can prove facts that he has not alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) ("[Court's] role is not to act as [pro se litigant's] advocate"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues") (internal citation omitted).
Pursuant to this instant Motion, the NCIS Defendants challenge this court's personal jurisdiction over them. Plaintiff asserts this court has personal jurisdiction over the NCIS Defendants pursuant to 28 U.S.C. § 1391(e). [#49 at 1]. The NCIS Defendants argue that this statute governs whether venue is proper, not whether the court has authority to bind parties in litigation. The NCIS Defendants further argue that Plaintiff has pled no facts to demonstrate they have sufficient minimum contacts with Colorado,
Section 1391 is entitled "Venue generally," and subsection (e) reads in relevant part:
This court respectfully agrees with the NCIS Defendants that this statute does not confer jurisdiction over them, but rather, pertains only to venue. [#50 at 2-3]. "Section 1391(e) is a venue statute, not a grant of nationwide in personam jurisdiction in a personal damage action against a United States official in his individual capacity." Overton v. United States, 925 F.2d 1282, 1284 (10th Cir. 1991) (citation and quotation marks omitted). The matter of appropriate venue is statutory in nature; whereas "personal jurisdiction implicates constitutional as well as statutory concerns." 14 D Charles A. Wright et. al., Federal Practice and Procedure § 3801 (4th ed. 2015) ("subject matter jurisdiction addresses whether a dispute may be heard by a federal court at all ... [i]f so, venue then determines which federal court."). See also Ford v. Valmac Industries, Inc. 494 F.2d 330, 331 (10th Cir. 1974) ("Jurisdiction is the power to adjudicate," whereas "venue is where judicial authority may be exercised."). As noted by the NCIS Defendants, a court typically considers whether it may exercise personal jurisdiction over the defendant before then turning to the issue of the appropriate venue. Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979).
"[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist `minimum contacts' between the defendant and the forum State." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92 (1980) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 315 (1945)). The requirement of minimum contacts both "protects the defendant against the burdens of litigating in a distant or inconvenient forum," and "acts to ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system." Id. Requiring a defendant to defend a lawsuit in a state with which he possesses minimum contacts does not "offend traditional notions of fair play and substantial justice." Dudnikov, 514 F.3d at 1070 (quoting International Shoe Co., 326 U.S. at 316). In Colorado, because its long-arm statute confers the maximum jurisdiction permissible consistent with the Due Process clause, the inquiry with regard to personal jurisdiction is whether the exercise of such jurisdiction over the defendant comports with constitutional due process demands. Dudnikov, 514 F.3d at 1070.
A forum may possess either "general jurisdiction" or "specific jurisdiction" over the defendant. The exercise of general personal jurisdiction comports with due process where the defendant's affiliations with the State are "so continuous and systematic as to render it essentially at home in the forum State." Archangel Diamond Corporation Liquidating Trust v. OAO Lukoil, 75 F.Supp.3d 1343, 1366 (D. Colo. 2014) (quoting Daimler v. Bauman, 134 S.Ct. 746, 760 (2014)). Specific jurisdiction "encompasses cases in which the suit `arise[s] out of or relate[s] to the defendant's contacts with the forum.'" Daimler, 134 S.Ct. at 748-49 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, n.8 (1983)). To determine whether the exercise of specific personal jurisdiction comports with due process, the court asks "(1) whether the defendant purposefully directed its activities at residents of the forum state; (2) whether the plaintiff's injury arose from those purposefully directed activities; and (3) whether exercising jurisdiction would offend traditional notions of fair play and substantial justice." Newsome v. Gallacher, 722 F.3d 1257, 1264 (10th Cir. 2013) (citing Dudnikov, 514 F.3d at 1070).
Plaintiff has pled no contacts between the NCIS Defendants and Colorado—either to support general or specific jurisdiction. The NCIS Defendants do not reside in Colorado; indeed, in his Response to the Motion to Dismiss, Plaintiff concedes that "Defendants are nonresidents of the jurisdiction of this Court." [#49 at 1]. The court's docket indicates that the NCIS Defendants work in Norfolk, Virginia and were served in Norfolk, Virginia. [#34, #42 through #45]. There is no allegation that the NCIS Defendants maintain any type of contact with Colorado, let alone systematic ones that would make the NCIS Defendants "at home" in Colorado. In addition, while Plaintiff describes his allegations of wrongful conduct with detail, including that Defendant Price unlawfully confiscated personal property and later accosted his landlord, he does not identify where the June 7, 2012 search occurred, where he lived on November 28, 2012, or generally where he lived or worked during the time relevant to the allegations. [#1 at ¶¶ 15-17]. Indeed, the allegations refer to a false allegation that Plaintiff's TASER was confiscated from Plaintiff at "Naval Station Norfolk" [id. at ¶ 15(h)]; a conspiracy to have Plaintiff arrested by the Virginia Beach police and detained, despite the nonviolent nature of the charge and no flight risk [id. at ¶ 15(m)]; and concealment of Plaintiff's injuries from the prosecutors in New York and Virginia [id. at ¶ 16(d)]. The allegations do not assert that any of this conduct occurred in Colorado.
The Complaint contains no facts, nor is there any other evidentiary basis, e.g., an affidavit, to support a finding that the NCIS Defendants have continuous and systematic affiliations with Colorado, or to establish that the acts that gave rise to this Complaint occurred in Colorado. Nor is there factual support to a conclusion that the exercise of jurisdiction over these Defendants would not "offend traditional notions of fair play and substantial justice." However significant the plaintiff's contacts with the forum may be, those contacts cannot be "decisive in determining whether the defendant's due process rights are violated." Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014) (citing Rush v. Savchuk, 444 U.S. 320, 332 (1980)).
In light of its review of the record before it, the court concludes that Plaintiff has not carried even his light burden of establishing that this forum has personal jurisdiction over the NCIS Defendants.
None of the Parties has raised the issue of transfer of this action to another jurisdiction. Courts in this Circuit, upon determining that personal jurisdiction is lacking, must consider whether to forbear dismissing the action without prejudice in lieu of transferring the action to a forum where personal jurisdiction exists over the defendants. See, e.g., Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006) (remanding for district court to consider whether plaintiff's claims should be transferred rather than dismissed). "A court may sua sponte cure jurisdictional and venue defects by transferring a suit under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the interests of justice." Id. at 1222. Whether to transfer in the interests of justice is within the trial court's discretion. Id. at 1222-23 (citing United States v. Botefuhr, 309 F.3d 1263, 1274 n.8 (10th Cir. 2002). In considering whether to transfer, the district court may "tak[e] a `peek at the merits' to avoid raising false hopes and wasting judicial resources that would result from transferring a case which is clearly doomed." Arocho v. Lappin, 461 F. App'x. 714, 719 (10th Cir. 2012) (quoting Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000)).
In following these directives from the Tenth Circuit, I find that the interests of justice do not counsel transferring this case to the Eastern District of Virginia because the Complaint and briefing related to the Motion to Dismiss demonstrate that subject matter jurisdiction is lacking and the defect cannot be cured. To wit, Plaintiff has filed a Bivens action to assert claims of constitutional violations against federal agents in their official capacities. The Complaint does not specify in what capacity Plaintiff sued the NCIS Defendants; however, they raised the capacity question in the Motion to Dismiss and elected to proceed "with the understanding that they are sued in their individual capacities" because the Complaint states the causes of action arise under Bivens. [#46 at n.1]. While Plaintiff does not expressly refute this inference in his Response, he relies on the theory that the NCIS Defendants were acting in their official capacity in asserting that 28 U.S.C. § 1391(e) should apply because "Defendants are all officers or employees of the United States and/or an agency thereof ... acting in his or her official capacity and/or under color of legal authority." [##49 at 1].
The doctrine of sovereign immunity provides that the United States is immune from suit unless it expressly consents to be sued. United States v. Testan, 424 U.S. 392, 399 (1976). "[A]ny action that charges ... an official with wrongdoing while operating in his or her official capacity as a United States agent operates as a claim against the United States." Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005) ("There is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity."). Accordingly, neither the United States nor its agents operating in their official capacity may be sued in a Bivens action. See, e.g., Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009) (affirming that a Bivens action can be brought "only against federal officials in their individual capacities ... Bivens claims cannot be asserted directly against the United States, federal officials in their official capacities, or federal agencies") (citations omitted).
Furthermore, from the few dates Plaintiff provides, it may be that most, if not all of his causes of action, are barred by the applicable statute of limitations. "Although state law establishes thestatuteoflimitations, federal law determines when plaintiffs' federal Bivens claims accrued." Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir. 2004) (citation omitted). In Colorado, Bivens actions are governed by a two-year statute of limitations. Colo. Rev. Stat. § 13-80-102(1)(g). See also White v. Tharp, No. 06-cv-01179-EWN-KLM, 2008 WL 596156, at *6 (D. Colo. February 29, 2008) ("it is clear and well-established that [a] Bivens action is subject to the two-year personal injury statute of limitations established by C.R.S. § 13-80-102(g)"). Similarly, in Virginia, Bivens actions are subject to a two year statute of limitations. See Moody v. DeJesus, No. CIV A 7:08-CV-00432, 2008 WL 5082432, *2 (W.D. Va. Dec. 1, 2008) (citing Va. Code § 8.01-243(A)). "[T]he statute of limitations on a Bivens claim begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action." Van Tu, 364 F.3d at 1199 (internal quotation marks and citation omitted). Plaintiff alleges that "[o]n or about 07 June 2012 through the present, Defendants May, Brittingham, Martin, Price, Tucker, and Newell have had personal involvement in violating Plaintiff's constitutional rights by subjecting Plaintiff to numerous egregious acts and conspiring to do the same." [#1 at 3]. Plaintiff then details the alleged wrongful conduct that occurred on June 7, 2012, including that various NCIS Defendants seized his weapons, keys, and a safe, and photographed Plaintiff's medications. [Id. at ¶ 15(a)-(c), (e)]. Plaintiff did not file this lawsuit until June 26, 2014—beyond the two-year limitation period.
As recounted above, Judge Martinez ordered Plaintiff to remain responsible for serving Defendant Newell on or before February 20, 2015, and specified that the deadline for service would not be extended for any Defendant whom the U.S. Marshal Service was unable to locate. [#33]. Plaintiff did not file proof of service as to Defendant Newell by the required date, and the U.S. Marshal Service was unable to locate Defendant Tucker to effect service. [#41]. In addition, this court ordered Plaintiff to show cause on or before November 13, 2015, as to why this case should not be dismissed as to Defendants Newell and Tucker for failure to prosecute, failure to timely effect service of process as required by the Federal Rules of Civil Procedure, and failure to comply with the December 22, 2014 Order. [#57]. Plaintiff did not respond to the Order to Show Cause.
Based on the record before it, this court finds that Defendants Newell and Tucker have not been properly served in this matter, as required by the multiple orders of this court and Rule 4(m) of the Federal Rules of Civil Procedure. Plaintiff has been specifically warned, on repeated occasions, that failure to properly serve or failure to comply with the court's orders regarding service might result in dismissal. Nevertheless, Plaintiff has not filed any proof that Defendants Newell and Tucker have been properly served. As a result, this court respectfully RECOMMENDS that Defendants Newell and Tucker be DISMISSED from this action for lack of proper service and failure to prosecute pursuant to D.C.COLO.LCivR 41.1. See e.g., Boyd v. Tkach, Civil Action No. 99-cv-2431-ZLW-CBS, 2007 WL 1192044 (D. Colo. April 19, 2007).
For the forgoing reasons, I respectfully
(1) The Motion to Dismiss [#46] be
(2) The Complaint be dismissed as to Defendants May, Brittingham, Martin, and Price for lack of personal jurisdiction; and
(3) The Complaint be dismissed as to Defendants Tucker and Newell for failure to prosecute, failure to timely effect service of process as required by the Federal Rules of Civil Procedure, and failure to comply with multiple orders of this court.
Joe Benedict Garcia, Joe Benedict Garcia, United States Attorney's Office, Denver, CO, for Defendants.
Markeith Boyd, pro se.
ZITA L. WEINSHIENK, United States District Judge.
The Court, after careful consideration, agrees with the Magistrate Judge's analysis and conclusion, and hereby accepts and adopts the Magistrate Judge's findings and Recommendation. Therefore, it is
ORDERED that Defendant Janet Reno be dismissed from the action and her name be removed from the case caption.
CRAIG B. SHAFFER, Magistrate Judge.
This civil action comes before the court regarding Mr. Boyd's failure to respond to the court's Order dated February 27, 2007 (doc. # 163), which directed Mr. Boyd to provide an address where Defendant Reno may be served. Pursuant to the Order of Reference dated November 22, 2006 (doc. # 143), this civil action was referred to the Magistrate Judge to, inter alia,"[h]ear and determine pretrial matters, including discovery and other nondispositive motions ... and to submit proposed findings of facts and recommendations for rulings on dispositive motions."The court has reviewed the entire case file and the applicable law and is sufficiently advised in the premises.
Mr. Boyd is currently incarcerated and is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. (See June 12, 2002 "Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915" (doc. # 87)). The Amended Complaint (doc. # 92) was accepted by the court for filing on July 29, 2002.
Return receipts for certified mail sent to Defendants Stephen J. T'Kach, Tracey Hendricks, and Janet Reno were filed with the court on December 5, 2002 and December 11, 2002. (See docs. # 107, # 108, and # 111). Defense counsel has correctly argued that return receipts for certified mail do not constitute proper service on Defendants T'Kach, Hendricks, and Reno under the Federal Rules of Civil Procedure. SeeFed.R.Civ.P. 4(i)(2)(B). Defense counsel has provided current addresses for Defendants Hendricks and T'Kach and the court has ordered service of the Amended Complaint on Defendants Hendricks and T'Kach by the United States Marshal. (See docs. # 164 and # 165). Defendant Reno is no longer employed as the United States Attorney General and can no longer be served at the Department of Justice. Defense counsel has represented that he does not know Defendant Reno's current address. Thus, the court does not have an address at which Defendant Reno can be served.
Fed.R.Civ.P. 4(m) provides that the court shall dismiss an action without prejudice as to any defendant who has not been served within 120 days of the filing of the action:
While an incarcerated plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint, there is no indication in this case that the U.S. Marshal or the Clerk of the Court have failed to perform their duties to serve Defendant Reno. The court need not require the U.S. Marshal or the Clerk of the Court to search for Defendant Reno's address. On February 27, 2007, the court ordered Mr. Boyd to provide on or before Marsh 19, 2007 an address at which Defendant Reno may be served. (See doc. # 163). The court warned Mr. Boyd that failure to comply with the court's order may result in a recommendation to dismiss Defendant Reno from this civil action pursuant to Rule 4(m) for failure to effect service and pursuant to D.C.COLO. LR 41.1 for failure to prosecute. As of this date, Mr. Boyd has not responded to the court's Order or provided an address at which Defendant Reno may be served.
Accordingly,
IT IS RECOMMENDED that Defendant Reno be dismissed from this civil action for: (1) Mr. Boyd's failure to comply with the court's February 27, 2007 Order, (2) Mr. Boyd's failure to effect service pursuant to Rule 4(m) and (3) Mr. Boyd's failure to prosecute Defendant Reno pursuant to D.C.COLO. LR 41.1.
Within ten days after service of a copy of the Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir.1995).
"[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel of Real Property, 73 F.3d at 1060.Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir.1999) (district court's decision to review a magistrate's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Property, 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the magistrate's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).
Judy A. Pope, Dickson & Pope, P.A., Leawood, KS, for Plaintiff.
Brandon L. Corl, Todd M. Johnson, Baty, Holm, Numrich, & Otto, PC, Kansas City, MO, for Defendant.
DAVID J. WAXSE, U.S. Magistrate Judge.
On December 14, 2011, Plaintiff initiated this claim in Kansas state court. On January 6, 2012, pursuant to 28 U.S.C. § 1441, Defendant removed the action to this court. Plaintiff alleges that on or about December 30, 2009, she slipped and fell on ice and snow in Defendant's parking lot, suffering injuries to her back, neck, shoulder, and hip, among other things. According to Plaintiff, Defendant knew or should have known of the dangerous conditions, and failed or refused to take measures to make the area safe.
Defendant Wendy's denies that it caused any of the injuries or damages Plaintiff allegedly suffered.
On March 30, 2012, pursuant to Fed.R.Civ.P. 16(b), the Court conducted a telephone scheduling conference with the parties, at which time the Court ordered that, by April 20, 2012, any party asserting comparative fault shall identify all persons or entities whose fault is to be compared.
Plaintiff filed the instant motion in response to Defendant's designations, arguing that Defendant should be required to clarify its comparative fault designation. In support of her motion, Plaintiff asserts that Defendant failed to identify the nature of the business RS Unlimited, Inc. Additionally, Plaintiff asserts that Defendant failed to explain the legal nexus between Plaintiff and RS Unlimited, Inc. Plaintiff argues that she needs a more detailed statement of comparative fault to verify, by the May 11, 2012 deadline imposed by the Scheduling Order, whether any other parties should be named as defendants. Plaintiff further argues that she may be prejudiced in her claim if Defendant is not required to clarify its designations.
Fed.R.Civ.P. 12(e) provides "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response."
This Court has addressed the issue of pleading requirements for affirmative defenses in Bowers v. Mortgage Electronic Registration Systems.
In Bowers, this Court declined to apply the heightened pleading requirements of Iqbal and Twombly to affirmative defenses.
Thus, the Court concluded in Bowers that affirmative defenses are not subject to the heightened pleading requirements of Iqbal and Twombly.
Consistent with its holding in Bowers, the Court will not apply the heightened pleading requirements of Iqbal and Twombly to Defendant's affirmative defense of comparative fault. Fed.R.Civ.P. 8(c) specifically lists contributory negligence as among the affirmative defenses that may be asserted in response to a pleading. The list of affirmative defenses contained in Rule 8(c), however, is not exhaustive. "Both federal and state courts in Kansas have recognized and referred to comparative fault as an affirmative defense."
Under the standard set forth in Fed.R.Civ.P. 12(e) and the accompanying advisory committee notes, "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response ."
In support of its position, Defendant cites to the court's decision in Tate v. QuikTrip Corp.
With this in mind, Defendant argues that the nearly identical language of this Court's Scheduling Order only required Defendant to identify the persons or entities whose fault is to be compared. Defendant further argues, as the court reasoned in Tate, that Plaintiff may attempt to obtain discovery relating to the potential comparative fault of R.S. Unlimited, Inc. before the discovery deadline. According to Defendant, then, it is not required to provide additional information regarding the persons or entities it identified.
Charles Moody, Glenville, VA, pro se.
JACKSON L. KISER, Senior District Judge.
Moody alleges that the defendants at various times dismissed Moody's medical concerns, improperly diagnosed his conditions, and took too long to properly treat his conditions over a four-year period while he was an inmate at the United States Penitentiary in Lee County, Virginia.
On February 6, 2004, Moody sought and received medical care from Pham for stomach discomfort, and he received a medication. On March 2, 2004, Moody sought and received medical assistance from DeJesus for neck pain and shortness of breath. DeJesus gave Moody pain killers and assured him his heart was healthy, but Moody alleges that DeJesus should have identified him with asthma at that time. On March 5, 2004, Moody sought and received medical care from Pham for food coming up his throat, and Pham gave him medication. On March 24, 2004, Moody sought and received a physical exam. On April 5, 2004, Moody sought and received more medical assistance from DeJesus for his previous complaints, and DeJesus gave him a prescription medication for his stomach. On April 26, 2004, Moody sought and received medical care from DeJesus, the results from his previous stomach exam, and three more various prescription medications to treat his stomach condition. On March 5, 2004, Moody sought and received medical care from Pham for his stomach condition and lungs, and he received more medications and a chest exam. On July 19, 2004, Moody sought and received medical care from DeJesus for foot pain. At two o'clock in the morning on October 17, 2004, Moody sought and received a medical exam for dizziness and shortness of breath. DeJesus examined Moody again the next day and did not find anything abnormal with him. On Febraury 13, 2006, Moody sought medical care for all of his conditions from Fish, who referred Moody to the psychological department for evaluation the next day. On March 7, 2006, Fish collected blood and urine samples for testing and gave Moody more medication, and Moody alleges that Fish would not examine him at that time. Moody further alleges that the Federal Bureau of Prisons, Allred, and Roff did not properly train and supervise Fish; Allred and Roff improperly denied Moody medications and proper medical care; and Fish, Allred, and Roff do not have a license to practice medicine in the Commonwealth of Virginia.
I am required to dismiss any action or claim filed by an inmate if I determine the action or claim is frivolous or fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2); see28 U.S.C. § 1915A(b)(1). The first standard includes claims based upon "an indisputably merit less legal theory," or claims where the "factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The second standard is the familiar standard for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). A complaint needs "a short and plain statement of the claim showing that the pleader is entitled to relief [,]" and sufficient "[f] actual allegations ... to raise a right to relief above the speculative level."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 1965, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted). Although I liberally construe pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978), I do not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985).
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that damage suits could be maintained against federal officials for violations of the United States Constitution. 403 U.S. at 392;see Carlson v. Green, 446 U.S. 14, 24-25, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (applying Bivens to constitutional claims against federal prison officials). Federal civil rights actions under Bivens. like civil rights actions against state officials under 42 U.S.C. § 1983, are governed by the statute of limitations for personal injuries in the state where the tort allegedly occurred. See Owens v. Okure, 488 U.S. 235, 239-40, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989).Bivens actions arising from a personal injury sustained within the Commonwealth of Virginia fall under Virginia's two-year statute of limitations for personal injury.
Moody alleges in his complaint that he told the defendants throughout 2004 that he was experiencing breathing difficulties; dizziness; and neck, stomach, foot and arm pain, but he was repeatedly unsatisfied with the care the defendants provided during this time. (Pl. Mem. at 6-9.) Moody also contends that he was finally properly diagnosed in May 2006 with an enlarged prostate and asthma. (Pl. Mem. at 9.) Moody would certainly have been on inquiry notice at some point between 2004 and 2006 since he alleges that he experienced complete dissatisfaction with the defendants' medical care throughout that time to the degree it constituted cruel and unusual punishment. Furthermore, Moody had actual notice of his claim by the May 2006 prostate and asthma diagnosis, as evidenced by his administrative complaint in June 2006, in which he raised the same complaints as he does in his Bivens claim. (Pl. Attach. # 3 Grievances, 4-6; Compl. Ex. B.) Therefore, Moody had notice of his claims against the defendants before July 2006, two years before he filed this Bivens claim, and thus, his Bivens claim is time barred by the statute of limitations. When a court determines that the statute of limitations unquestionably provides an affirmative defense, the court may summarily dismiss the complaint as failing to state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1). See Todd v, Baskerville, 712 F.2d 70 (4th Cir.1983) (holding a court may dismiss a claim based on affirmative defense under predecessor statute). Accordingly, I dismiss Moody's Bivens claim, pursuant to 28 U.S.C. § 1915A(b)(1), for failing to state a claim upon which relief may be granted.
Even if the statute of limitations did not bar Moody's Bivens claims, Moody did not show that his medical treatments violated his constitutional rights. A Bivens claim must allege three elements: (1) the defendants are federal agents, (2) the defendants acted under the color of their authority, and (3) the defendants engaged in unconstitutional conduct. Bivens, 403 U.S. at 389.To prove that he received medical treatment in violation of the Eighth Amendment prohibition against cruel and unusual punishment, Moody must show that personnel to whose care he was committed exhibited "deliberate indifference" to his "serious medical needs." See Estelle, 429 U.S. at 104-05 (asserted by a convicted felon); Hill v, Nicodemus, 979 F.2d 987, 991-92 (4th Cir.1992) (asserted by a pretrial detainee).
Moody fails to show any deliberate indifference by the defendants. It is evident on the face of Moody's complaint that the defendants gave Moody consistently prompt medical care to diagnose and treat his symptoms and were not deliberately indifferent to his medical concerns. Moody's complaint indicates that the prison's medical personnel did indeed provide Moody extensive medical diagnosis and treatment, including medications for his stomach, breathing, and prostate conditions; sarcoidosis exams; urine analysis; and an overnight sleep exam. See (Compl. Ex. B; Pl. Mem. at 6-13.) Moody's Bivens claim amounts, at best, to disagreements about his courses of treatments but does not state a cognizable constitutional claim.
To bring an Eighth Amendment claim of deliberate indifference against supervisory prison personnel, an inmate must show that such officials were personally involved with a denial of treatment, deliberately interfered with a prison physician's treatment, or tacitly authorized or were indifferent to the prison physician's misconduct. Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir.1990). As I have already noted, the prison medical personnel's acts or omissions did not result in any constitutional violations; thus, any allegations of improper authorization or indifference on the part of supervisors-defendants Alfred and Roff logically fail to state a claim. Id. Furthermore, a Bivens claim is actionable against only individuals, not against the United States or its entities. See Randall v. United States, 95 F.3d 339, 345 (4th Cir.1996) (stating no remedy under Bivens against the federal government exists, just against federal officials individually). Therefore, the Federal Bureau of Prisons cannot be a defendant to a Bivens claim. Accordingly, Moody's Bivens claim is dismissed, pursuant to 28 U.S.C. § 1915A(b)(1).
The United States is entitled to sovereign immunity and cannot be sued without its consent. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The FTCA operates to waive the sovereign immunity of the United States such that the government may be "liable in tort in the same manner and to the same extent as a private individual under like circumstances" under the laws of the state where the tort occurred. 28 U.S.C. § 2674; see Baum v. United States, 986 F.2d 716, 719 (4th Cir.1993); Williams v. United States, 50 F.3d 299, 305 (4th Cir.1995). As a waiver of immunity, the FTCA is to be "strictly construed, and all ambiguities ... resolved in favor of the sovereign." Robb, 80 F.3d at 887.
Federal courts apply the substantive law of the state in which the act or omission giving rise to the action occurred for FTCA actions; therefore, Virginia law applies to Moody's FTCA claim. Myrick v. United States, 723 F.2d 1158, 1159 (4th Cir.1983) (citations omitted). However, Moody fails to discuss the relationship of Virginia law to his tort claims against the defendants, and he will be unable to proceed with his FTCA action until he does. Therefore, I will provide, by a separate conditional filing order, the opportunity for Moody to amend his complaint to address Virginia law for his remaining FTCA claim.
To prove negligence under Virginia law, a plaintiff must (1) identify a legal duty of the defendant to the plaintiff, (2) a breach of that duty, and (3) injury to the plaintiff (4) proximately caused by the breach. Talley v. Danek Med. Inc., 179 F.3d 154, 157 (4th Cir.1999). In Virginia, a party alleging medical malpractice must also obtain an expert certification of merit before serving the defendant, pursuant to the Virginia Medical Malpractice Act (VMMA).Va.Code § 8.01-20.1; see Parker v. United States, 475 F.Supp.2d 594, 596 (E.D.Va.2007) (stating that an FTCA medical malpractice claim is subject to the VMMA expert certification of merit requirement). The VMMA provides an exception to the certification requirement when expert certification is unnecessary "if the plaintiff, in good faith, alleges a medical malpractice action that asserts a theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the [factfinder's] common knowledge and experience."Va.Code § 8.01-20.1; see Beverly Enterprises-Va., Inc. v. Nichols, 247 Va. 264, 267, 441 S.E.2d 1 (1994) (noting that the exception applies only in "rare instances" because only rarely do the alleged acts of medical negligence fall within the range of a factfinder's common knowledge and experience)."Where ... a plaintiff `calls into question' a `quintessential professional medical judgment,' the matter `can be resolved only by reference to expert opinion testimony.'"Parker, 475 F. Supp 2d at 597 (citing Callahan v. Cho, 437 F.Supp.2d 557, 563 (E.D.Va. July 6, 2006); see Beverly Enterprises-Va., Inc., 247 Va. at 267, 441 S.E.2d 1.
Moody filed a request for a temporary injunction against the Federal Bureau of Prisons' (BOP) employees for their "unreasonable retaliation." (Docket # 9.) Moody requests the injunction remain effective while he is under BOP control to prevent BOP employees from subjecting Moody to "unreasonable disciplinary reports, or lockdowns in either disciplinary or administrative segregation unit."Moody argues that he is transferred to other prisons without warning, is still denied his medical treatment, and does not have adequate access to his medical records.
Moody fails to clearly show that he will suffer irreparable injury without the injunction and that the harm is "neither remote nor speculative, but actual and imminent."Id Furthermore, Moody has not stated a claim of constitutional significance nor shown that he is likely to succeed on the merits. Therefore, I find no basis upon which to grant him a temporary injunction. Accordingly, I deny Moody's motion for injunctive relief.
For the foregoing reasons, I dismiss Moody's Bivens claim and terminate the Federal Bureau of Prisons as a defendant to plaintiff's remaining FTCA claim. I also deny Moody's request for injunctive relief. Therefore, only Moody's Federal Tort Claims Act claims against defendants Daniel DeJesus, David Allred, David Roff, Irwin Fish, and Judy Pham remain.
The Clerk is directed to send copies of this memorandum opinion and the accompanying order to the plaintiff.
Robert White, Milan, MI, pro se.
Terry Fox, U.S. Attorney's Office, Denver, CO, for Defendants.
EDWARD W. NOTTINGHAM, Chief Judge.
1. The recommendation is ACCEPTED.
2. The Motion to Dismiss (# 21, filed May 22, 2007) is GRANTED as to Defendants Negron, Tharp and Lamb.
KRISTEN L. MIX, United States Magistrate Judge.
This matter is before the Court on
Subject matter jurisdiction is the court's authority to hear a case and cannot be waived. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). Motions to dismiss pursuant to Rule 12(b)(1) may take two forms. First, if a party attacks the facial sufficiency of the complaint, the court must accept the allegations of the complaint as true. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir.1995) (citing Ohio Natl Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.1971).
Second, if a party attacks the factual assertions regarding subject matter jurisdiction through affidavits and other documents, the court may make its own findings of fact. See Holt, 46 F.3d. at 1003."In a factual attack ... the movant goes beyond the allegations in the complaint and challenges facts upon which subject matter jurisdiction depends."Id. at 1002.Further, "[w]hen reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations."Id. A court's consideration of evidence outside the pleadings, including affidavits, will not convert the motion to dismiss to a motion for summary judgment under Rule 56. Id.
"A 12(b)(6) motion must be converted into a motion for summary judgment if `matters outside the pleadings are presented to and not excluded by the court' and `all parties ... [are] given a reasonable opportunity to present all material made pertinent to such a motion by [Fed.R.Civ.P.] 56.'" GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir.1997) (quoting Fed.R.Civ.P. 12(d)); see also Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713 (10th Cir.2005) (holding that where the District Court relied on facts presented in affidavits, a Rule 12(b)(6) motion was properly converted into a motion for summary judgment).
In the instant case, both Defendants and Plaintiff have submitted documents outside the pleadings in support of their arguments. See, e.g., Motion to Dismiss, Ex. C [Locke Declaration]; Ex. D [Negron Declaration]; Ex. E [Tharp Declaration]; Ex. F [Lamb Declaration]; Response, White Declaration [Docket No. 25]; Reply, Ex. A-1 [Locke Declaration]; Ex. A-2 [Blank Declaration]; Surreply, Ex. 1. When a court converts a Rule 12(b)(6) motion into a motion for summary judgment, "it must provide the parties with notice so that all factual allegations may be met with countervailing evidence." Burnham, 403 F.3d at 713 (citing Nichols v. United States, 796 F.2d 361, 364 (10th Cir.1986)). However, this required notice may be "actual or constructive, and in some circumstances, courts have concluded that the submission of evidentiary material by the movant, the nonmovant, or both of them constitutes sufficient notice."David v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996) (citing Nichols, 796 F.2d at 364 ("[F]ailure to give notice is not reversible error if a party does not attempt to exclude the supporting documents, but files its own sworn affidavits in response") (citation omitted). See also Lamb v. Rizzo, 391 F.3d 1133, 1137, n. 3 (10th Cir.2004) (finding that conversion of a Rule 12(b)(6) motion into Rule 56 motion without notice was not prejudicial to a pro se plaintiff where he failed to object to defendant's exhibits and filed his own exhibits in response); Klover v. Antero Healthplans, 64 F.Supp.2d 1003, 1007 (D.Colo.1999) (finding that "when a party submits material beyond the pleadings in support of or opposing a motion to dismiss, the prior action on the part of the parties puts them on notice that the judge may treat the motion as a Rule 56 motion") (citations omitted)).
The purpose of a summary judgment motion, unlike that of a motion to dismiss, is to determine whether there is evidence to support a party's factual claims. In reviewing a summary judgment motion, the court is to view the record "in the light most favorable to the nonmoving party." Thournir v. Meyer, 909 F.2d 408, 409 (10th Cir.1990) (citation omitted). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works of Colorado, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248.The moving party bears the initial burden, by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, to demonstrate the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The party opposing the motion is then required to go beyond the pleadings and designate evidence of specific facts showing that there is a genuine issue for trial. Id. at 324.Unsupported conclusory allegations thus do not create a genuine issue of fact. See United States v. Simons, 129 F.3d 1386, 1388-89 (10th Cir.1997) (citing Allen v. Muskogee, Okla., 119 F.3d 837, 843-44 (10th Cir.1997)). Instead, "sufficient evidence (pertinent to the material issue) must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Id. The court may only consider admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985).
Finally, because Plaintiff here is proceeding pro se, the Court construes his pleadings liberally. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir.2003). Even so, Plaintiff still retains "the burden of alleging sufficient facts on which a recognized legal claim could be based."Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). This burden remains because a "pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted." Id. A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Plaintiff was incarcerated at the Federal Correctional Institution ("FCI") in Florence, Colorado from October 21, 1999 until June 2007. Motion to Dismiss, p. 4. Plaintiff alleges that, on January 2, 2001, the Defendants directed him to visit the FCI Florence medical clinic in order to receive a tuberculosis skin test. Complaint, p. 5. However, it is Plaintiff's contention that, instead of receiving a tuberculosis skin test, he was "trickishly inject[ed] ... with an unknown medical substance."Id. Plaintiff alleges that, due to this injection, he has since developed health problems including diarrhea, eye problems and a fungal infection of his toenails. Id. Plaintiff finally alleges that Defendants were deliberately indifferent to Plaintiff's resulting health problems and refused to prescribe certain medications in order to resolve his toenail fungal infection. Id. at 5-6.Plaintiff requests compensatory and punitive damages against each Defendant in his or her individual and official capacities. He further requests that the Defendants be compelled to disclose the actual substance with which he was injected, that Defendants be compelled to provide proper medical treatment to him, that Defendants be enjoined from retaliating against him or his "pro se assistant", and that Defendants be enjoined from using inmates as medical experiments or injecting them with unknown substances.
Defendants Dr. Denny Tharp, Christopher Lamb and Jose Negron have filed a Motion to Dismiss.
Plaintiff's claims pursuant to Bivens against Defendants Tharp, Lamb and Negron in their official capacities are barred by sovereign immunity and are thus properly dismissed with prejudice for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1).
Defendants further argue that Plaintiff's claims are barred by the applicable Colorado statute of limitations, C.R.S. § 13-80-102. Motion to Dismiss, p. 11. It is well established that "a Bivens action is subject to the limitation period for an action under 42 U.S.C. § 1983, and that limitation period is set by the personal injury statute in the state where the cause of action accrues."Roberts v. Barreras, 484 F.3d 1236, 1238 (10th Cir.2007) (citing Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir.1994) and Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir.1984)). Because the violations alleged in the Complaint occurred in Colorado, the Colorado statute of limitations applies. In Colorado, the limitation on a personal injury claim is two years. SeeC.R.S. § 13-80-102(g) (creating a two-year limitation period for "all actions upon liability created by a federal statute where no period of limitation is provided in said federal statute" and for "all other actions of every kind for which no other period of limitation is provided"); Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.1993) (applying C.R.S. § 13-80-102 to a § 1983 claim).
However, "[a]lthough state law establishes the statute of limitations, federal law determines when plaintiffs' federal Bivens claims accrued." Van Tu v. Koster, 364 F.3d 1196, 1199 (10th Cir.2004) (citation omitted). In Van Tu, the Tenth Circuit held that pursuant to federal law, "the statute of limitations on a Bivens claim begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action." Id. (internal quotation marks and citation omitted); see also Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir.2006) (holding that "[s]ection 1983 claims accrue, for the purposes of the statute of limitations, when plaintiff knows or has reason to know of the injury which is the basis of his action").
Plaintiff filed his original Bivens action in the United States District Court for the Eastern District of Michigan on or about May 9, 2006 [Docket No. 1]
Plaintiff makes several arguments in his attempt to avoid Defendants' statute of limitations affirmative defense. First, Plaintiff appears to disagree that the Colorado statute of limitations applies to his Bivens claim. Plaintiff states that "neither the Supreme court in Bivens nor U.S. Congress in 28 USC sec 1331 expressly imposed any color of state law statute of limitation on a Bivens federal question jurisdiction [sic]."Response, p. 5. Plaintiff cites Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir.1994) and Sac & Fox Nation of Oklahoma v. Cuomo, 193 F.3d 1162 (10th Cir.1999), to support his argument that the Colorado statute of limitations does not apply to his Bivens claim. However, Plaintiff is incorrect that these cases are applicable to his argument. In Industrial Constructors Corp., the Tenth Circuit expressly held that "a Bivens action ... is subject to the statute of limitations of the general personal injury statute in the state where the action arose."15 F.3d at 968 (citation omitted). Further, the Court has reviewed Sac & Fox Nation of Oklahoma, 193 F.3d 1162, and fails to see its applicability. This case pertains to the burden of proof on the party invoking federal question jurisdiction, and is not relevant to the issue of Bivens claims and statutes of limitations. Contrary to Plaintiff's argument, it is clear and well-established that his Bivens action is subject to the two-year personal injury statute of limitations established by C.R.S. § 13-80-102(g).Barreras, 484 F.3d at 1236; Industrial Constructors Corp., 15 F.3d at 968; Garcia, 731 F.2d at 651.
First, when the dates provided in a complaint clearly demonstrate that the right to sue has been extinguished, "the plaintiff has the burden of establishing a factual basis for tolling the statute."Aldrich, 627 F.3d at 1041, fn. 4 (citations omitted). Second, Colorado law only allows equitable tolling of a statute of limitations where "either the defendant has wrongfully impeded the plaintiff's ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his or her claim despite diligent efforts." Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1099 (Colo.1996). The application of equitable tolling calls for the court to make "an inquiry into the circumstances of the delay that prompted the statute of limitations to be invoked." Shell Western E & P, Inc. v. Dolores County Bd. Of Com'rs, 948 P.2d 1002, 1010 (Colo.1997). Moreover, once the statute of limitations is raised as an affirmative defense, the burden shifts to the plaintiff to show that the statute has been tolled, as "[t]his accords with the rule that the person asserting a claim in equity bears the burden of furnishing satisfactory proof." Garrett v. Arrowhead Improvement Assn, 826 P.2d 850, 855 (Colo.1992) (citations omitted).
In the first instance, where the plaintiff alleges that the defendant has wrongfully prevented the plaintiff from bringing a claim, the plaintiff "must assert facts sufficient to establish that the defendant's actions prevented the filing of a timely claim." Olson v. State Farm Mut. Auto. Ins. Co., 2007 WL 4198354, *9 (Colo.App.2007) (citing Shell W. E & P, Inc., 948 P.2d at 1008). Thus, "[i]f there is no evidence to demonstrate that defendant engaged in any conduct which adversely affected the filing of the plaintiff's claim, a court may not apply the doctrine of equitable tolling." Samples-Ehrlich v. Simon, 876 P.2d 108, 110 (Colo.App.1994) (citation omitted). In the second instance, where the plaintiff has invoked the "extraordinary circumstances" basis for equitable tolling, he must show that he made good faith efforts to pursue his claim. Dean Witter Reynolds, Inc., 911 P.2d at 1098.That is, "[w]here a plaintiff has options on which he does not act, he has failed to act in good faith and equitable tolling cannot apply." Id.
The moving party bears the initial burden, by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, to demonstrate the absence of genuine issues of material fact. Celotex Corp., 477 U.S. at 325.In order to meet their initial burden, Defendants have submitted several affidavits. The first is the declaration of Deborah Locke. Motion to Dismiss, Ex. C. Ms. Locke has been employed as an attorney at FCI Florence since August of 2002. Id. at p. 1. Ms. Locke states that she has access to "official prisoner files, official manuals, and electronic records maintained within the FCC." Id. at p. 2. Ms. Locke further states that Plaintiff did not file any requests for administrative remedy complaining about the January 2, 2001 injection during the time he was incarcerated at the FCI Florence. Id. at p. 5. In fact, Ms. Locke attests that "although Plaintiff has filed 12 administrative remedies and/or appeals since his BOP incarceration, he did not begin filing grievances until August 2004, over 3-1/2 years after the incident complained of in the Amended Complaint took place."Id. Finally, she states that "Plaintiff did not properly use the BOP's administrative remedy process to grieve his complaint that any of the named defendants (or any of the staff at FCI Florence) violated his constitutional rights, or otherwise provided him improper medical treatment, by injecting him with the tetanus toxoid or other unknown medical substance instead of the PPD." Id.
Second, in directly responding to Plaintiff's allegations that they intercepted his administrative grievances, Defendants submitted the affidavit of Jeffrey Blank. Reply, Ex. A-2. Mr. Blank states that he has been employed as a Correctional Counselor at the FCI since 1999. Id. at p. 1. Mr. Blank explains that one of his duties as Correctional Counselor is to issue and then retrieve from an inmate a Request for Administrative Remedy, also known as a "BP-9." Id. Mr. Blank states that he is familiar with Plaintiff, who was assigned to his case load from December 16, 1999 until June 7, 2001. Id. at 2. He further states, "[a]lthough [Plaintiff] claims he provided me with a BP-9 concerning an injection in 2001, I do not recall receiving such BP-9. Given the nature of the BP-9, I am certain I would have remembered such BP-9.... [H]ad I received such BP-9, I would have forwarded it to the Administrative Remedy Clerk.... Even if [Plaintiff] later withdrew the BP-9, it still would show up in SENTRY as having been filed."Id. Mr. Blank attests, "I would not, and did not, allow the defendants to `intercept' any BP-9 or otherwise interfere with [Plaintiff's] ability to file such B9."Id. Finally, Mr. Blank states, "[i]n light of the fact that SENTRY does not show that [Plaintiff] filed any BP-9s at FCI Florence, let alone a BP-9 regarding an injection in 2001, I am confident that he did not submit to me a BP-9 regarding such issue." Id.
Alternatively, Plaintiff's sworn complaint may be treated as a proper affidavit. Hayes, 70 F.3d at 1148 (citing Hall, 935 F.2d at 1111). However, while in his Complaint Plaintiff makes numerous allegations regarding his injection, he does not allege that Defendants obstructed or thwarted his use of the administrative grievance process. Complaint, p. 4-6. In examining Plaintiff's other evidence and pleadings, he alleges that "[t]he record clearly shows" that he timely submitted a B.P. 9 to his counselor in response to the January 2, 2001 injection. Reply, p. 6. However, Plaintiff does not state where in the record it "clearly shows" that he submitted a B.P. 9 grievance. A review of the entire record before the Court establishes that Plaintiff has not provided a copy of the B.P. 9 grievance that he allegedly submitted in January of 2001 regarding his use as a medical experiment. Indeed, the majority of documents that Plaintiff has attached to his Complaint relate to a fungal toenail infection that he apparently contracted in or around 2003. See, e.g., Ex. C ("I've had an infection in my toenail for about 1 year and would like to get treated"); Ex. D (diagnosing "Tinea Unguium", a fungal toenail infection); Ex. F (BP-229, dated January 14, 2005, responding to Plaintiff's allegations regarding his fungal toenail infection); Ex. G (Regional Administrative Remedy Appeal, dated April 14, 2005, responding to Plaintiff's allegations of insufficient medical care for his fungal toenail infection). I note that any claims regarding a fungal toenail infection that Plaintiff allegedly contracted in or around 2003 have already been dismissed for failure to state a claim upon which relief can be granted by the United States District Court for the Eastern District of Michigan [Docket No. 1; filed June 20, 2006].
Plaintiff cites to Carter v. Newland, 441 F.Supp.2d 208, 211 (D.Mass.2006), to support his claim that the actions he alleges on the part of Defendants are sufficient to protect his case from dismissal. Surreply, p. 2. In Carter, the defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), alleging that the inmate failed to exhaust his available administrative remedies. 441 F.Supp.2d at 210.The Carter inmate then alleged that the defendants obstructed his use of the administrative grievance process, as his counselor tore up his paper work. Id. at 211.This case is inapplicable to the case at hand for several reasons. First, the inmate in Carter had actual copies of the administrative grievances that he previously submitted and filed them with the Court. 441 F.Supp.2d at 211.In the instant case, while Plaintiff has alleged that he filed administrative grievances in January of 2001, he has never provided copies of such grievances to the Court or any actual evidence that would allow the Court to conclude that they were filed. Further, the Carter court declined to dismiss that case on the grounds that the defendants had not yet responded to the assertion that they had obstructed the plaintiff's access to the administrative grievance process. Id. The Carter court found that "[t]here is a genuine fact question as to whether Carter's attempt to [exhaust administrative remedies] was thwarted by either government incompetence or misconduct." Id. In the instant case, Defendants have clearly responded to Plaintiff's allegations that they obstructed his use of the administrative process. In turn, Plaintiff has provided no more than his unsupported conclusory allegations, which are not sufficient to create a genuine issue of material fact. Simons, 129 F.3d at 1388-89.Plaintiff has failed to "assert facts sufficient to establish that the defendant's actions prevented the filing of a timely claim," which prevents the application of equitable tolling to the statute of limitations in this case. Olson, 2007 W L 4198354 at *9.
I have viewed the record "in the light most favorable" to Plaintiff, the non-movant. Thournir, 909 F.2d at 409.I find that the pleadings and the affidavits on file show that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c); see Anderson, 477 U.S. at 248-50; Concrete Works, Inc., 36 F.3d at 1517.The evidence is not such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.As Plaintiff has provided no more than his unsupported conclusory allegations and inadmissible evidence, he has not created a genuine issue of fact. See Simons, 129 F.3d at 1388-89.
Plaintiff's claims are barred by the statute of limitations. Plaintiff's Complaint alleges conduct that occurred in January, 2001. Plaintiff initiated his Michigan action in May 9, 2006, well outside the two-year statute of limitations set forth in C.R.S. § 13-80-102(g). Therefore, to the extent Plaintiff seeks relief resulting from any alleged constitutional violation that occurred prior to January 3, 2003, those claims are barred by the applicable statute of limitations period and should be dismissed with prejudice.
Based on the findings above, the Court finds it unnecessary to address Defendants' additional grounds for dismissal.
For the reasons stated above, I respectfully RECOMMEND that Defendants' Motion to Dismiss [Docket No.21] be
