The opinion
a
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
BOBBY WADE, CIVIL DOCKET NO. 1:19-CV-438-P
Plaintiff
VERSUS JUDGE DRELL
FRANCISCO J. QUINTANA, MAGISTRATE JUDGE PEREZ-MONTES
,
Defendants
MEMORANDUM ORDER
Before the Court is a Complaint (Doc. 14) filed by Plaintiff Bobby Wade
(“Wade”) (#94252-111) under Bivens v. Six Unknown Agents of the Federal Bureau
of Narcotics1 and the Federal Tort Claims Act (“FTCA”). Wade is an inmate in the
custody of the United States Bureau of Prisons (“BOP”), incarcerated at the United
States Penitentiary – Allenwood in White Deer, Pennsylvania. Wade complains that
he was denied adequate medical care while incarcerated at the United States
Penitentiary in Pollock, Louisiana (“USP—Pollock”).
Because Wade must provide additional documents to support his claim, IT IS
ORDERED that Wade AMEND his Complaint (Doc. 14).
1In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), the Supreme Court recognized that certain circumstances may give rise
to a private cause of action against federal officials that is comparable to the statutory
cause of action permitted against state officials by 42 U.S.C. § 1983.
I. Background
Wade alleges that he was assigned a top bunk bed while housed in the Special
Housing Unit (“SHU”) at the United States Penitentiary–Victorville (“USP-
Victorville”). (Doc. 7, p. 11). Wade fell from while trying to climb into the bed on
February 16, 2017. (Doc. 7, p. 11). Six days later, he was examined by a physician
assistant, who took X-rays of Wade’s knee. (Doc. 7, p. 12). Because the X-rays showed
a potential tear of the ACL, the physician assistant submitted a request for an urgent
consultation with an orthopedic specialist. (Doc. 9, p. 12).
On April 6, 2017, Wade was transferred from USP—Victorville to USP—
Pollock. (Doc. 7, p. 14). Upon his arrival, medical staff performed an initial medical
assessment and “verified and recorded” Wade’s injury and the “need for follow-up
medical care.” (Doc. 7, p. 14).
Wade alleges that Physician Assistant Mitchell “deliberately altered, changed
or otherwise manipulated Wade’s medical records to reflect that his injury did not
require ‘urgent’ but rather ‘routine’ medical care.” (Doc. 7, p. 14).
Wade saw Defendant Mitchell again on April 14, 2017, and Mitchel scheduled
an appointment for an orthopedic specialist to examine Wade and perform an MRI.
(Doc. 7, p. 14). The orthopedic specialist agreed that a diagnostic MRI was medically
indicated to determine the exact nature and extent of Wade’s injury to his knee. (Doc.
7, p. 15). For the next six months, Wade waited for an MRI and filed “numerous
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administrative grievances regarding the denial of medical care, including the
excessive delay in him receiving the approved diagnostic MRI.” (Doc. 7, p. 15).
Wade was “threatened with adverse action, including being placed in
segregated housing, by Defendant Gotreaux, for having filed numerous
administrative grievances” and for “potentially refusing to withdraw the grievances.”
(Doc. 7, p. 15). Wade alleges that, because he refused to withdraw the grievances,
Defendant Gotreaux placed Wade in the SHU on “trumped-up” contentions and
without a bottom-bunk pass. (Doc. 7, p. 16). Wade was found “not guilty” of the
“trumped-up” charge. (Doc. 7, p. 17). While in the SHU, Wade’s personal property
was destroyed and stolen. (Doc. 7, p. 16).
Wade alleges that he informed Warden Johnson and Associate Warden
Maldonado that his injury was worsening. (Doc. 7, p. 16). Wade also allegedly
advised Assistant Health Services Administrator Derrick, Trip Coordinator Brown,
Warden Johnson, Associate Warden Maldonado, Lt. Gotreaux, Lt. Moore, Dr. Garcia,
and Physician Assistant Mitchell that he was being denied a bottom bunk, which was
causing further injury to his left knee. (Doc. 7, p. 16). Wade informed Defendants
that he was in severe pain and requested medical care. (Doc. 7, p 16).
While in the SHU, Wade also developed fever, chills, nausea, vomiting, and a
rash. (Doc. 7, p. 18). An X-ray of Wade’s stomach revealed a lesion. (Doc. 7, p. 17). /
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In November 2017, Wade received the MRI of his knee, which indicated a
horizontal tear of the ACL with a suggestion of a prior partial tear. (Doc. 7, p. 18).
Wade was then transferred to another prison. During the transfer, Wade was
“handcuffed and shackled for twelve hours or more . . . which caused excruciating
pain” and further injury to his knee. (Doc. 7, p. 18).
After his transfer out of USP—Pollock, Wade received one surgery and is
waiting on another. (Doc. 7, p. 19).
Wade initially filed suit in the United States District Court for the Central
District of California. The claims against the USP—Pollock Defendants were severed
and transferred to this Court as a separate suit. (Doc. 9).
II. Instructions to Amend
The FTCA contains its own exhaustion provision, which is jurisdictional.1
Before filing suit under the FTCA, a plaintiff must fully exhaust all administrative
remedies. See McNeil v. United States, 508 U.S. 106, 113 (1993); Price v. United
States, 81 F.3d 520, 521 (5th Cir. 1996). Because this requirement is jurisdictional
1 28 U.S.C. §2676(a) provides in part: “An action shall not be instituted upon a claim against
the United States for money damages for injury or loss of property or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered mail. The failure of an
agency to make final disposition of a claim within six months after it is filed shall, at the
option of the claimant any time thereafter, be deemed a final denial of the claim for purposes
of this section.”
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in nature, the filing of a claim with the appropriate agency cannot be waived. See
Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir. 1981).
In order to determine whether this Court has jurisdiction over Wade’s FTCA
claim, Wade must provide evidence of exhaustion under the FTCA. Wade must
provide documents establishing that he provided a tort claim to the BOP with written
notification of the injury and a monetary demand. He must also provide a copy of any
responses received to the tort claim.
Additionally, in order to determine whether his Bivens claim is timely, Wade
must provide copies of all administrative remedies filed with the BOP, separate from
his tort claim.
III. Conclusion
Because Wade must provide additional documents to support his claim, IT IS
ORDERED that Wade AMEND his Complaint (Doc. 14) within 30 days of the filing
of this Order to provide the information outlined above.
Failure to comply with this Order may result in dismissal of this action under
Rule 41(b) or 16(f) of the Federal Rules of Civil Procedure. Petitioner is further
required to notify the Court of any change in his address under Rule 41.3 of the Local
Rules for the Western District of Louisiana.
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THUS DONE AND SIGNED in Alexandria, Louisiana, ongthis 25th day of
September 2019.
«| “ i me
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE