Goyer v. Ashe "Camp Admin" United States of America

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

BRYAN GOYER, )

)

Plaintiff, )

)

vs. ) No. 21-cv-2059-JTF-atc

)

ASHE “CAMP ADMIN” UNITED STATES )

OF AMERICA, )

)

Defendants. )

ORDER MODIFYING THE DOCKET;

DISMISSING THE COMPLAINT (ECF NO. 1) WITH PREJUDICE IN PART AND

WITHOUT PREJUDICE IN PART; AND

GRANTING LEAVE TO AMEND THE CLAIMS DISMISSED WITHOUT PREJUDICE

On January 28, 2021, Plaintiff Bryan Goyer, Federal Bureau of Prisons register number

24771-076, who is incarcerated at the Federal Correctional Institution, Milan (the “FCI-Milan”)

in Milan, Michigan1 filed (1) a pro se complaint pursuant to 28 U.S.C. § 1346 and (2) a motion to

proceed in forma pauperis. (ECF Nos. 1 & 2.) On April 2, 2021, the Court granted leave to

proceed in forma pauperis and assessed the $350.00 filing fee. (ECF No. 4.)

The complaint (ECF No. 1) is before the Court.

For the reasons explained below, the complaint (ECF No. 1) is DISMISSED WITH

PREJUDICE in part and DISMISSED WITHOUT PREJUDICE in part. Leave to amend the

claims dismissed without prejudice is GRANTED.

1 See https://www.bop.gov/locations/institutions/mil/ (last accessed Mar. 23, 2023); see

also ECF No. 5 (Goyer’s January 4, 2023 letter notifying the Court of Goyer’s facility transfer to

the FCI-Milan).

I. BACKGROUND

Goyer alleges that when he arrived at the Federal Correctional Institute-Memphis (the

“FCI-Memphis”) on December 27, 2016, “a health screen was completed, [but] I was not provided

routine lab work.” (ECF No. 1-1 at PageID 7.) Sometime during Goyer’s confinement, he was

transferred to Satellite Prison Camp, Millington (the “SPC-Millington”) in Millington, Tennessee,

where he remained for two years. (ECF No. 1 at PageID 4.)

Goyer says that on July 30, 2018, he exercised twice at the SPC-Millington, performed his

prison job, napped in his cell, and “did not awake again until 8/6/2018.” (Id. at PageID 2.) Goyer’s

fellow inmates thought that Goyer was having a seizure, and they notified jail personnel. (Id. at

PageID 3-4.) Goyer was transported to Methodist Le Bonheur Healthcare. (Id. at PageID 4.)

Goyer alleges that he had suffered “a diabetic attack.” (Id. at PageID 2 (the “Incident”).)

Goyer claims that his blood sugar levels were never checked during his confinement at the

SPC-Millington, “which could have detected if [I] was a diabetic.” (Id.) Goyer contends that “had

I known I was a diabetic, I would have [observed] proper dieting.” (ECF No. 1-1 at PageID 7.)

Goyer alleges that he “was denied and/or delayed medical treatment by trained healthcare

professionals” during the Incident “largely due to the fact that SPC-Millington does not have

medical staff available 24 hours.” (ECF No. 1 at PageID 4-5.) Goyer claims that he “was in

extreme pain and mild pain every day for approximately 6 months where I had to perform physical

therapy on myself.” (ECF No. 1-1 at PageID 9.) Goyer says that he “has been and will continue

to be in great physical, mental, and emotional pain and distress.” (ECF No. 1 at PageID 6.)

The complaint asserts claims of: (1) violation of the Federal Tort Claims Act, 28 U.S.C. §

261, et seq.; (2) deprivation of medical care in violation of the Eighth Amendment (ECF No. 1 at

PageID 4-6; ECF No. 1-1 at PageID 8-9); and (3) use of excessive force (ECF No. 1-1 at PageID

8.)

Goyer seeks: (1) declaratory relief; (2) injunctive relief; and (3) three million dollars

($3,000,000.00) in damages. (ECF No. 1 at PageID 6; ECF No. 1-2 at PageID 12.)

Goyer sues “B. Ashe ‘Camp Admin’ United States of America” as the Defendant. (Id. at

PageID 1.) The Clerk is directed to MODIFY the docket to record the Defendants as: (1) B. Ashe,

the SPC-Millington Camp Administrator; and (2) the United States of America (“USA”).

II. LEGAL STANDARD

The Court must screen prisoner complaints and dismiss any complaint, or any portion of

it, if the complaint —

(1) is frivolous, malicious, or fails to state a claim upon which relief may be

granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint states a claim on which relief may be granted, the Court

applies the standards under Federal Rule of Civil Procedure 12(b)(6), as stated in Ashcroft v. Iqbal,

556 U.S. 662, 677–79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007).

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). Under those standards, the Court accepts

the complaint’s “well-pleaded” factual allegations as true and then determines whether the

allegations “plausibly suggest an entitlement to relief.” Williams v. Curtin, 631 F.3d 380, 383 (6th

Cir. 2011) (quoting Iqbal, 556 U.S. at 681). The Court does not assume that conclusory allegations

are true, because they are not “factual,” and all legal conclusions in a complaint “must be supported

by factual allegations.” Iqbal, 556 U.S. at 679. Federal Rule of Civil Procedure 8 provides

guidance on this issue. Although Rule 8 requires a complaint to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief,” it also requires factual

allegations to make a “‘showing,’ rather than a blanket assertion, of entitlement to relief.”

Twombly, 550 U.S. at 555 n.3.

Courts screening cases accord more deference to pro se complaints than to those drafted

by lawyers. “Pro se complaints are to be held ‘to less stringent standards than formal pleadings

drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383

(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants are not exempt

from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. 2011)

(affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements”

and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”

(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

III. ANALYSIS

A. FTCA Claim Against Ashe

Goyer sues the Ashe as SPC-Millington’s “Camp Admin.” (ECF No. 1 at PageID 1.)

The SPC-Millington is a satellite prison camp of the Federal Bureau of Prisons (the

“BOP”). (See https://www.bop.gov/locations/institutions/mem/ (last accessed Mar. 23, 2023).)

The BOP is a federal law enforcement agency within the Department of Justice. (See

https://www.justice.gov/agencies/chart/map (last accessed Mar. 23, 2023).)

The FTCA provides a cause of action against the USA for personal injury or property loss

suffered as a result of the negligence of a federal government employee. 28 U.S.C. § 2679(b)(1);

Jackson v. United States, 24 F. Supp. 2d 823, 832 (W.D. Tenn. 1998) (citing Flechsig v. United

States, 991 F.2d 300, 303 (6th Cir. 1993)). The FTCA requires a plaintiff to exhaust his

administrative remedies before filing suit under the FTCA. 28 U.S.C. § 2675(a). Goyer exhausted

his administrative remedies before filing the instant lawsuit. (See ECF No. 1-2 at PageID 11-13

(Goyer’s March 30, 2020 administrative claim and the BOP’s September 30, 2020 claim denial.)

The USA is the only proper defendant for clams under the FTCA. Jones v. Johnson, 707

F. App’x 321, 331 (6th Cir. 2017) (citing 28 U.S.C. § 2679(b)(1)). “In order to sue successfully

under the FTCA, a plaintiff must name the United States as the sole defendant.” Harris v. Federal

Med. Ctr., Fort Worth, No. 4:06-cv-701, 2007 WL 836828, at *2 (N.D. Tex. Mar. 20, 2007).2

Goyer cannot sue Ashe under the FTCA.

Goyer’s claim under the FTCA against Ashe fails to state a claim to relief as a matter of

law and is DISMISSED WITH PREJUDICE.

B. FTCA Claim Against The USA

Goyer asserts a claim under the FTCA on the grounds that (1) his “blood A1C levels w[ere]

never checked …[when] I arrived at FCI-Memphis on December 27, 2016 … [or] while [I] [was]

held at SPC-Millington for 2 years” and (2) the SPC-Millington failed to provide medical treatment

during the Incident because the jail “does not have medical staff available 24 hours.” (ECF No. 1

at PageID 1 & 4; ECF No. 1-1 at PageID 7 (the “FTCA Claim”).) Goyer’s FTCA Claim alleges

medical malpractice. (See ECF No. 1 at PageID 5 (alleging that “prison officials” committed

“negligence”); ECF No. 1-1 at PageID 8 (alleging that “my injuries were suffered as a direct result

of staff negligence”).) The FTCA Claim arose during Goyer’s confinement at the FCI-Memphis

and SPC-Millington, which spanned December 27, 2016 through July 30, 2018. (ECF No. 1 at

PageID 2 & 4; ECF No. 1-1 at PageID 7.)

2 Accord Burns v. United States Dep’t of Justice, 864 F. Supp. 80, 81 (N.D. Ill. 1994)

(“[F]ederal agencies or employees may not be named [as defendants in an FTCA case]”).

1. FTCA Statute Of Limitations

The FTCA contains a two-part statute of limitations for cases brought in federal court.

First, the claimant must present the claim “to the appropriate Federal agency within two years after

such claim accrues.” 28 U.S.C. § 2401(b).3 Second, after the claim is “finally denied by the

agency in writing,” 28 U.S.C. § 2675(a)4, the claimant must file in federal court “within six months

after the date of mailing, by certified or registered mail, of notice of final denial.” 28 U.S.C. §

2401(b). Federal law determines when an FTCA claim accrues. Chomic v. United States, 377

F.3d 607, 610 (6th Cir. 2004). Tort claims under the FTCA accrue at the time of a plaintiff's injury,

and “accrual of a claim does not await awareness by the plaintiff that his injury was negligently

inflicted.” Wood v. Wilson, No. 21-5153, 2021 WL 7161614, 2021 WL 7161614, at *3 (6th Cir.

Sept. 29, 2021) (citing United States v. Kubrick, 444 U.S. 111, 120 (1979) and Hertz v. United

States, 560 F.3d 616, 618 (6th Cir. 2009)).

Goyer submitted his administrative claim to the Mid-Atlantic Regional Office of the BOP

on March 30, 2020 – i.e., within two years of the July 30, 2018 Incident. The BOP denied Goyer’s

administrative claim on September 30, 2020 (the “BOP Denial”). (ECF No. 1-2 at PageID 13;

ECF No. 1-2 at PageID 12.) Goyer satisfied the first part of the FTCA’s statute of limitations.

3 “A tort claim against the United States shall be forever barred unless it is presented in

writing to the appropriate Federal agency within two years after such claim accrues or unless action

is begun within six months after the date of mailing, by certified or registered mail, of notice of

final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b).

4 “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.” 28 U.S.C. § 2675(a).

Goyer filed the instant lawsuit on January 19, 2021 – i.e., within six months of the BOP

Denial. (ECF No. 1-1 at PageID 10 (deemed filed on January 19, 2021); see Houston v. Lack, 487

U.S. 266, 270, 276 (1988) (adopting the mailbox rule for federal pro se prisoner filings).) Goyer

satisfied the second part of the FTCA’s statute of limitations.

The FTCA’s statute of limitations is not, however, the only hurdle that Goyer must satisfy

to assert his FTCA Claim.

2. FTCA Statute Of Repose

“Unlike a statute of limitations, which eliminates the remedy available to plaintiffs, [a]

statute of repose extinguishes the cause of action itself … Tennessee’s statute of repose is a

substantive requirement, not just a procedural hurdle.” Eiswert v. United States, No. 2:11-cv-304,

2013 WL 12214455, at *1 (E.D. Tenn. Sept. 30, 2013), remanded on other grounds, 639 F. App’x

345 (6th Cir. 2016). The substantive limitations of state statutes of repose apply to FTCA suits

because the FTCA permits liability only where the United States would, if it were a private person,

be liable to the claimant in accordance with the law of the place where the act or omission

occurred. Id. (“Federal law incorporates state substantive law for the purposes of FTCA claims”)

(citing 28 U.S.C. § 2674).

Tennessee law has a three year statute of repose that “sets an absolute limit on the time in

which a plaintiff may bring a medical malpractice action.” Mills v. Wong. 155 S.W.3d 916, 920

(Tenn. 2005); Tenn. Code Ann. § 29–26–116(a)(3).5 “The running of the statute of repose has a

substantive effect.” Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2005).

5 “In no event shall any such action be brought more than three (3) years after the date on

which the negligent act or omission occurred except where there is fraudulent concealment on the

part of the defendant[,] in which case the action shall be commenced within one (1) year after

discovery that the cause of action exists.” Tenn. Code Ann. § 29–26–116(a)(3).

The Incident that Goyer complains of occurred on July 30, 2018. (ECF No. 1 at PageID

2.) To the extent the FTCA Claim arises from that Incident, Tennessee’s medical malpractice

statute of repose time limit expired on July 30, 2021. Goyer filed suit on January 19, 2021. (ECF

No. 1-1 at PageID 10.) To the extent the FTCA Claim against the USA arises from the Incident,

Goyer meets Tennessee’s statute of repose.

However, to the extent the FTCA Claim arises from the USA’s supposed failure to test

Goyer’s blood sugar levels between December 27, 2016, and January 19, 2018 (ECF No. 1-1 at

PageID 7), Goyer has no cognizable claim. Any alleged wrongdoing by the USA that occurred

more than three years prior to January 19, 2021 – i.e., when Goyer filed the instant case – cannot

give rise to an actionable claim because it violates Tennessee’s three-year statute of repose. To

the extent the FTCA Claim against the USA is based on medical malpractice during the period

December 27, 2016 through January 19, 2018, it is DISMISSED WITH PREJUDICE for failure

to state a claim to relief as a matter of law.

The Court now turns to screening Goyer’s FTCA allegations that satisfy Tennessee’s

statute of repose.

3. FTCA Claim Against The USA Arising From (a) The Incident And (b)

Alleged Medical Malpractice During The Period January 20, 2018

Through January 19, 2021

The FTCA provides, in pertinent part:

The United States shall be liable, respecting the provisions of this title relating to

tort claims, in the same manner and to the same extent as a private individual under

like circumstances, but shall not be liable for interest prior to judgment or for

punitive damages.

28 U.S.C. § 2674. The FTCA does not create a new cause of action. Chomic, 377 F.3d at 611

(citing Feres v. United States, 340 U.S. 135 (1950)). The FTCA “merely provided for the

acceptance of liability under circumstances that would bring private liability into existence.” Id.

(citing Feres, 340 U.S. at 141). Under the FTCA, the United States may be held liable for

negligence, which includes claims of medical malpractice, only “in accordance with the law of the

place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Goyer’s FTCA Claim is

governed by Tennessee law because the alleged acts and omissions giving rise to (1) the Incident

and (2) alleged malpractice during the period January 20, 2018 through January 19, 2021 occurred

at the FCI-Memphis and the SPC-Millington, which are both in Tennessee. See Ward v. United

States. 838 F.2d 182, 184 (6th Cir. 1988).

Under Tennessee law, “[a] claim of common law negligence requires proof of the

following elements: a duty of care owed by the defendant to the plaintiff; conduct falling below

the applicable standard of care that amounts to a breach of that duty; an injury or loss; cause in

fact; and proximate or legal cause.” Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 639 (Tenn.

2003). The elements of proof for negligence and malpractice actions overlap6:

Medical malpractice actions are specifically controlled by the medical malpractice

statute, Tenn. Code Ann. § 29–26–115, which essentially codifies the common law

elements of negligence [and] places on the claimant the burden of proving the

following statutory elements: (1) the recognized standard of professional care; (2)

that the defendant failed to act in accordance with the applicable standard of care;

and (3) that as a proximate result of the defendant’s negligent act or omission, the

claimant suffered an injury which otherwise would not have occurred.

Id. at 639–40; accord Rye v. Women’s Care Ctr. of Memphis, MPLLC, 2014 WL 903142, at *6

(Tenn. Ct. App. Mar. 10, 2014).

Goyer fails to allege facts demonstrating two elements for his FTCA Claim: (1) the USA’s

breach of the standard of professional care and (2) but-for causation and proximate causation.

6 “Because medical malpractice is a category of negligence, the distinction between

medical malpractice and negligence claims is subtle; there is no rigid analytical line separating the

two causes of action.” Nixon v. United States , No. 3:11-cv-0766, 2012 WL 3095398, at *1 (M.D.

Tenn. July 30, 2012) (internal citation omitted).

First, Goyer fails to allege facts showing that the USA failed to act in accordance with the

applicable standard of professional medical care. To begin, Goyer alleges that he was “not

provided routine lab work” when he arrived at the SPC-Millington on an unspecified date. (ECF

No. 1 at PageID 7.) Even if Goyer’s allegation is true, nothing in the record suggests that the USA

breached a duty of care by not screening his blood sugar levels. When Goyer’s arrived at FCI

Memphis on December 27, 2016, the usual health screen was administered. At that time, Goyer

“did not identify any health issues or concerns.” (ECF No. 1-2 at PageID 12.) Goyer does not

even allege that he ever notified FCI-Memphis personnel or SPC-Millington personnel of diabetic-

like symptoms. (ECF No. 1 at PageID 2.) In fact, Goyer’s “usual routine” included twice daily

exercise sessions of over two hours each. (Id.) Thus, the complaint’s factual allegations contradict

any suggestion that the USA had a duty to perform blood sugar testing or that the USA breached

any standard of professional care.

Second, Goyer fails to allege facts demonstrating but-for cause and proximate cause. See

In re Blasingame, 986 F.3d 633, 638 (6th Cir. 2021) (“To make out a prima facie claim of legal

malpractice under Tennessee law, a plaintiff must show … the breach [of duty owed to plaintiff]

was the but for cause of the plaintiff’s damages and the breach was the proximate cause of the

plaintiff’s damages”) (emphasis added). The “‘but for’ test … requires the plaintiff to

[demonstrate] that it is more likely than not that the conduct of the defendant was a cause in fact

of the result.” McClain v. United States, 996 F. Supp. 2d 683, 692 (M.D. Tenn. 2014) (“A mere

possibility of such causation is not enough”). For alleged wrongdoing to constitute proximate

cause, “the tortfeasor’s conduct must have been a ‘substantial factor’ in bringing about the harm

being complained of.” Kim v. State of Tennessee, 622 S.W.3d 753, 760 (Ct. App. Tenn. 2020)

(citations omitted).

Goyer was “transported to the local hospital on July 30, 2018 due to significant changes in

mental status consistent with synthetic drug use, including violent behavior requiring security and

medical restraints. [Goyer] w[as] diagnosed and treated for disorder of kidney and ureter, altered

mental status, other specified diabetes with ketoacidosis without coma, abnormal levels of other

serum enzymes, acidosis, elevated white blood cell count, rhabdomyolysis, unspecified

convulsion, and sepsis.” (ECF No. 1-2 at PageID 12.) The record suggests several possible causes

for the Incident. (Id.) However, Goyer alleges no facts demonstrating that the USA’s failure to

screen him for diabetes was the Incident’s but-for cause and proximate cause. (See ECF No. 1-2

at PageID 12.) In other words, nothing in the complaint shows that the Incident was “more likely

than not” caused by the USA’s failure to screen Goyer for diabetes during the period January 20,

2018 – January 19, 2021. “[T]he mere occurrence of an injury does not prove negligence … Proof

of negligence without proof of causation is nothing.” Kilpatrick v. Bryant, 868 S.W.2d 594, 599

(Tenn. 1993). Goyer “strongly reject[s] the notion [in the BOP Denial] that I use any drugs” (ECF

No. 1-1 at PageID 8), but his protest does not show that diabetes substantially caused the Incident.

The FTCA Claim against the USA arising from (1) the Incident and (2) alleged malpractice

during the period January 20, 2018, through January 19, 2021 is DISMISSED WITHOUT

PREJUDICE for failure to allege facts7 stating a claim to relief.

7 That Goyer failed to file a certificate of good faith as required by the Tennessee Health

Care Liability Act does not require dismissal of the FTCA Claim. See Tenn. Code Ann. 29-16-

122(a) (“[i]n any health care liability action in which expert testimony is required by [Tennessee

law], the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint”);

see also Gallivan v. United States, 943 F.3d 291, 294 (6th Cir. 2019) (noting that “although

substantive state law governs the merits of a FTCA claim, the Federal Rules govern procedural

issues”, and finding that no Federal Rule of Civil Procedure requires litigants to file any affidavits

of good faith in order to state a claim alleging medical negligence under the FTCA) (emphasis in

original).

C. Claims Against Ashe And The USA For (1) Deprivation Of Medical Care In

Violation Of The Eighth Amendment and (2) Use Of Excessive Force

Goyer alleges that Ashe and the USA denied adequate medical care in violation of the

Eighth Amendment by failing to “have medical staff available on 7/30/2018 competent to examine

Goyer and diagnos[e] his illness.” (ECF No. 1 at PageID 4-5.) The Court construes Goyer’s

allegation as a claim for deprivation of medical care in violation of the Eighth Amendment

(“Medical Care Claim”) under Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971).8

Goyer further alleges generally that he “was handled unprofessionally by untrained prison

officials who used excessive force” during the Incident, “instead of treating the issue as a health

crisis.” (ECF No. 1-1 at PageID 8.) Goyer does not describe the forceful conduct or identify the

relevant actors. The Court construes Goyer’s allegation as a claim for excessive force in violation

of the Eighth Amendment (“Excessive Force Claim”). See generally Hudson v. McMillian, 503

U.S. 1, 5 (1992).

Goyer’s Medical Care Claim and Excessive Force Claim fail to state claims to relief for

the following reasons:

8 To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of

rights secured by the “Constitution and laws” of the United States (2) committed by a defendant

acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). Ashe is

not a state actor. (See ECF No. 1 at PageID 1 (Ashe is the Camp Administrator of the SPC-

Millington, which is a BOP facility).) Ashe and the USA are federal actors. Therefore, Goyer’s

§ 1983 claims arise, if at all, under Bivens. See, e,g,, Nason v. United States Attorney’s Office for

Middle Dist. Of Tennessee, No. 3:06-cv-0903, 2007 WL 1170742, at *1 (M.D. Tenn. Feb. 27,

2007) (“the claims in the instant case allege [constitutional] violations … by federal actors.

Therefore, the plaintiff’s claim for relief arises under Bivens”) (emphasis in original). The

decisional law for § 1983 claims and Bivens claims is essentially the same. Butz v. Economou, 438

U.S. 478, 498-504 (1978); Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)

(1) The limitations period for § 1983 actions and Bivens actions arising in Tennessee

is the one-year limitations provision found in Tenn. Code Ann. § 28-3-104(a)(1)(B). Edison v.

Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634-35 (6th Cir. 2007); Gray v. United States, 556

F. Supp. 2d 832 (W.D. Tenn. Aug. 23, 2021 (the appropriate statute of limitations for a Bivens

action arising in Tennessee is one year after the cause of action accrued).) “[F]ederal law governs

the question of when that limitations period begins to run.” Sevier v. Turner, 742 F.2d 262, 272

(6th Cir. 1984) (citations omitted). The one-year period begins to run when the plaintiff “knows

or had reason to know” of the alleged injury through “reasonable diligence.” Edison, 510 F.3d at

635; Sevier, 742 F.2d at 272.

Goyer’s Medical Care Claim and Excessive Force Claim arise from the July 30, 2018

Incident. The plausible inference from the complaint is that he knew or had reason to know of his

alleged injuries at the time of the Incident. The time for Goyer to file his Medical Care Claim and

Excessive Force Claim expired on July 31, 2019. See Tenn. Code Ann. § 28-3-104(a)(1)(B);

Edison, 510 F.3d at 634-35. The Court treats January 19, 2021 as the date on which Goyer gave

the complaint to prison authorities for mailing to the Court. (ECF No. 1-1 at PageID 10; see also

Houston, 487 U.S. at 270 & 276.) Goyer filed the complaint over seventeen months after the

statute of limitations expired. Goyer’s Medical Care Claim and Excessive Force Claim against

Ashe and the USA are time-barred by the statute of limitations.

(2) The complaint does not allege facts demonstrating Ashe’s personal involvement in

the Incident. See Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010) (to establish liability

under § 1983 against an individual defendant acting under color of state law, a plaintiff must show

that the defendant was “personally involved” in the unconstitutional incident).

(3) A prisoner “may not bring a Bivens claim against [a federal] officer’s employer, the

United States, or the BOP,” see Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001), because

Bivens claims against the United States and federal agencies are barred by sovereign

immunity. Franklin v. Henderson, No. 00–4611, 2000 WL 861697, at *1 (6th Cir. June 20, 2001).

The USA is immune from suit for the Medical Care Claim and Excessive Force Claim.

(4) A suit under Bivens may be brought only against individual officers for certain

constitutional violations. See Fagan v. Luttrell, No. 97–6333, 2000 WL 876775, at *3 (6th Cir.

June 22, 2000); Miller v. Fed. Bureau of Investigation, No. 96–6580, 1998 WL 385895, at *1 (6th

Cir. July 1, 1998). Goyer’s Bivens claims against Ashe are construed as official capacity claims

because Goyer does not specify the capacity in which he sues Ashe. See Northcott v. Plunkett, 42

F. App'x 795, 796 (6th Cir. 2002). Because “the real party in interest in an official-capacity suit

is the entity represented and not the individual officeholder,” Bivens does not permit suits against

government employees in their official capacities. Walter J. Himmelreich v. BOP, No. 11-3474,

2012 WL 13226685, at *1 (6th Cir. May 7, 2012). Goyer’s § 1983 claims under Bivens against

Ashe in his official capacity fail as a matter of law.

For all of the above reasons, Goyer’s Medical Care Claim and Excessive Force Claim

against Ashe and the USA are DISMISSED WITH PREJUDICE.

IV. AMENDMENT UNDER THE PLRA

The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint

to avoid a sua sponte dismissal under the Prison Litigation Reform Act, 28 U.S.C. §§ 1915, et seq.

(the “PLRA”). Lucas v. Chalk, 785 F. App’x 288, 291 (6th Cir. 2019) (citing LaFountain v. Harry,

716 F.3d 944, 951 (6th Cir. 2013)). Leave to amend is not required where a deficiency cannot be

cured. Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“If it is crystal clear

that ... amending the complaint would be futile, then a sua sponte dismissal may stand”); Curley

v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with the majority view that sua sponte

dismissal of a meritless complaint that cannot be salvaged by amendment comports with due

process and does not infringe the right of access to the courts”).

The Court GRANTS leave to amend the complaint under the guidelines set forth below.

V. CONCLUSION

For the reasons stated above:

A. The following claims in the complaint (ECF No. 1) are DISMISSED WITH

PREJUDICE: (1) Goyer’s claim under the FTCA against Ashe, (2) Goyer’s claim under the FTCA

against the USA arising from alleged medical malpractice during the period December 27, 2016

through January 19, 2018, (3) Goyer’s Medical Care Claim, and (4) Goyer’s Excessive Force

Claim. Leave to amend those four claims is DENIED.

B. The following claim in the complaint is DISMISSED WITHOUT PREJUDICE for

failure to allege facts stating a claim to relief: Goyer’s FTCA Claim against the USA arising (1)

from the Incident and (2) from alleged malpractice during the period January 20, 2018 through

January 19, 2021. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1)-(2). Leave to

amend that claim is GRANTED. An amended pleading must comply with the Federal Rules of

Civil Procedure, including but not limited to Rule 8’s requirement of a short and plain statement

of Goyer’s amended claims. An amended complaint supersedes the original complaint and must

be complete in itself without reference to the prior pleadings. Goyer must sign the amended

complaint, and the text of the amended complaint must allege sufficient facts to support each claim

without reference to any extraneous document. Any exhibits must be identified by number in the

text of the amended complaint and must be attached to the complaint. All claims alleged in an

amended complaint must arise from the facts alleged in the original complaint. Each claim for

relief must be stated in a separate count and must identify each Defendant sued on that count. Any

amendment must be filed within twenty-one (21) days after the date of this Order and in accordance

with the conditions described supra.

The Court grants Goyer one opportunity to amend. If Goyer fails to amend his complaint

in a timely manner, the Court will dismiss this case and enter judgment. The Court recommends

that any such dismissal of this case be treated as a strike pursuant to 28 U.S.C. § 1915(g). See

Simons v. Washington, 996 F.3d 350 (6th Cir. 2021).

IT IS SO ORDERED, this 4th day of April, 2023.

/s/ John T. Fowlkes, Jr.

JOHN T. FOWLKES, JR.

UNITED STATES DISTRICT JUDGE