WILLIAMS v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF WEST VIRGINIA

MARTINSBURG

IRY JAMES WILLIAMS,

Plaintiff,

v. CIVIL ACTION NO.: 3:24-CV-10

(GROH)

UNITED STATES OF AMERICA,

Defendant.

REPORT AND RECOMMENDATION

I. INTRODUCTION

On October 25, 2023, the pro se Plaintiff, who is a federal prisoner

incarcerated at USP Hazelton, in Bruceton Mills, West Virginia, initiated this case by

filing a complaint in the United States District Court for the District of Columbia. ECF

No. 1.1 The case was transferred to this jurisdiction on January 25, 2024. ECF No. 6.

Upon docketing the complaint, the Clerk of Court issued a Notice of Deficient Pleading

and Intent to Dismiss because the complaint was not filed on the Court-approved form,

and on February 1, 2024, an Amended Notice of Deficient Pleading and Intent to

Dismiss was issued. ECF Nos. 7, 9. On February 27, 2024, the Plaintiff refiled his

complaint on the Court-approved form. ECF No. 11. On his form complaint, the Plaintiff

claims he is entitled to damages pursuant to the Federal Tort Claims Act, 28 U.S.C. §

2671, for acts which he alleges occurred while he was incarcerated at USP Hazelton in

1 All CM/ECF numbers cited herein are from the instant case, 3:24-CV-10, unless otherwise

noted.

the Northern District of West Virginia. ECF No. 11 at 1. However, he alleges that the

medical staff at George Beto Unit, a state prison in Texas, failed to provide “ . . . ‘any’

medical attention to serious medical need. . . ” Id. at 7–8. Further, he asserts that the

Defendant failed to “act in performance” in response to his Standard Form 95. Id. at 8.

The Plaintiff paid the initial partial filing fee on May 7, 2024. ECF No. 23.

The matter is now before the undersigned for a Report and Recommendation to

the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons

set forth below, the undersigned recommends that the complaint be denied and

dismissed with prejudice as to the Plaintiff’s claims.

II. FACTUAL AND PROCEDURAL HISTORY

A. Claims in the Complaint

The complaint alleges three claims for relief, that: (1) Sgt. Dinia Green neglected

her duties to the Plaintiff when she failed to prevent “excessive risk of danger” to the

Plaintiff’s health after he reported his ingestion of possibly contaminated water, and

further, that the actions of Sgt. Green, Warden William J. Wheat, Warden Keith Gorsuch

and the Bureau of Prisons form a basis for this claim [ECF No. 11 at 7]; (2) Nurse

Utende, P.A. Cynthia Goins, P.A. Steven Ciszewski, Beto Medical Staff, the Bureau of

Prisons, and George Beto Unit (State Prison in Texas), failed to provide the Plaintiff with

medical attention for his serious medical need, and/or delayed medical care for his

serious medical need [Id. at 7–8]; and (3) Federal Tort Claims Act Staff, Hope L. Swann,

and the United States Department of Justice failed to perform their duties to respond to

the Plaintiff’s Standard Form 95 for more than 669 days [Id. at 8–9].

As a result, the Plaintiff contends that he suffers from: (1) “multi-degenerative

disease and spondylosis with disc bulging,” that has confined him to a wheelchair for

more than two years; (2) “continual stomach problems”; (3) GERD (gastroesophageal

reflux disease) with spot bleeding; (4) pulmonary conditions2 which require daily

medication; and (5) H. pylori which lasted for months. Id. at 10. The Plaintiff seeks: (1)

entry of default judgment against the Defendant based on the “failure to ‘act in

performance’” in relation to the Plaintiff’s filed administrative remedy; and (2) a damage

award of ten million dollars. Id.

B. The Plaintiff’s Response to the Notice of Deficient Pleading

On February 27, 2014, the same date he filed his amended complaint, the Plaintiff

filed a “Response to the Notice of Deficient Pleading and Correcting Plaintiff’s Intention,”

and a 29-page memorandum of law in support thereof. ECF Nos. 15, 15-1.

In his Response, the Plaintiff asserts, “[t]he issue at hand is not in the terms of a

State matter NOR is Plaintiff intending to direct issues in the form of a COMPLAINT to be

adjudicated for violations of civil rights, but [the] sole purpose is the entry of default

against defendant[ ].” ECF No. 15 at 2. The Plaintiff contends that the Defendant failed to

answer or otherwise respond to the SF-95 he filed, and accordingly, he is entitled to the

entry of default related to his claims of inadequate medical treatment for his serious

medical needs as asserted therein. Id. at 3–6.

In his memorandum, the Plaintiff states that he was “borrowed” from State

custody by federal authorities. ECF No. 15-1 at 1. The Plaintiff further claims that the

“Texas Department of Criminal Justice is an Agency of Texas, which is a Department of

the United States.” Id. at 2. Additionally, the Plaintiff asserts that the “TDCJ’s Medical

2 The Plaintiff asserts that failure to take daily medication results in “a continual lung infection,”

and that he has twice acquired pneumonia. ECF No. 11 at 10.

UTMP (University of Texas Medical Branch) being recipient of federal funds concede to

federal regulations.” Id.

C. Motion for More Definite Statement and Response

Following the May 8, 2024, issuance of an Order [ECF No. 24] to Answer or

Otherwise Plead, on May 20, 2024, the Defendant filed a Motion for a More Definite

Statement pursuant to Federal Rule of Civil Procedure 12(e). ECF No. 31. Therein, the

Defendant asserted that the Complaint fails to make clear:

a. Whether Plaintiff filed one, or numerous, SF-95s

relating to the instant FTCA Complaint and the Claim

Number(s) associated with the relevant claims, see Doc. 11

at 5;

b. Whether the instant FTCA Complaint involves the BOP

and/or individuals who are employed by other government

agencies, see id. at 5-6. For example, Plaintiff identified the

“US Department of Justice, Civil Division, Torts Branch” as

the specific government agency where he filed notice of the

claim but makes no mention of the BOP, see id. at 6. Plaintiff

also appears to make claims against “Hope L. Swann” of the

“Federal Tort Claims Act Staff,” , see id. at 8;

c. Which BOP or other facility the numerous named

individuals, including “Sgt. Dinia Green,” “Warden William J

Wheat,” “Warden Keith Goruch” [sic], “Nurse Utunde” [sic],

“Cynthia Goins,” “Steven Ciszewski,” “Beto Medical Staff” –

all of whom appear to be employed with the Texas

Department of Criminal Justice – were employed at the time

giving rise to the claims alleged in the Complaint, see id. at

8; and

d. Which BOP or other facility Plaintiff was designated to

at the time giving rise to the claims alleged in the Complaint.

ECF No. 31 at 2.

The Plaintiff responded on June 10, 2024, with “A More Definite Statement and

Memorandum in Support of Default and Complaint.” ECF No. 32. Among other

contentions, the Plaintiff asserts that: (1) the “Texas Department of Criminal Justice . . .

is an agency of Texas, which is a Department of the United States” [Id. at 2]; (2)

Supreme Court precedent states that “ANY employee of the Government while acting

within the scope of his office or employment” justifies a claim under the FTCA3 [Id. at 3

(emphasis in original)]; (3) the Texas Department of Criminal Justice “primarily acted as

[an] instrumentality or agency of the United States” [Id. at 3]; (4) the Plaintiff “was

confined in state custody” [Id.]; (5) the named individuals—Dinia Green, Warden William

J. Wheat, Warden Keith Gorsuch, Nurse Utende, Cynthia Goins, Steven Ciszewski, and

Beto Medical Staff—were “employed at the time of concern, with [the] Texas Department

of Criminal Justice,” although the Plaintiff contends that those individuals were acting as

instrumentalities or agency of the United States [Id. at 4]; (6) the Plaintiff was in the

primary custody of the Attorney General pursuant to a 2009 federal conviction, but “was

erroneously sent to State Prison and not retrieved” [Id.]; (7) to “be an employee of the

government includes merely ‘primarily acting’ as instrumentalities or [agencies] of the

United States” [Id. at 8]; and (8) he “did not begin to receive medical care until [ ] June of

2021 [ ] when at FCI Pollock” [Id. at 9].

D. Motion to Dismiss for Failure to State a Claim

The Defendant filed a Motion to Dismiss for Failure to State a Claim, and

memorandum in support thereof on June 11, 2024. ECF No. 34. Therein, the

3 The cited passage specifies that the government employee must be an employee of the United

States. “As a general rule, the United States is immune from claims for money damages in civil suits. See

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 686–90, 69 S.Ct. 1457, 93 L.Ed. 1628

(1949). The FTCA waives the United States’ sovereign immunity for civil suits 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.’ ”

Blanco Ayala v. United States, 982 F.3d 209, 214 (4th Cir. 2020) (quoting 28 U.S.C § 1346(b)(1)).

Defendant’s sole argument asserts that the Plaintiff’s claims concern wrongdoing of state

employees, not federal employees, and that his claims occurred at George Beto Unit of

the Texas Department of Criminal Justice. Id. at 3. The Defendant contends, “It is of no

matter that Plaintiff alleges or believes the Texas Department of Criminal Justice ‘is an

agency of Texas, which is a Department of the United States,’ or that the ‘Texas

Department of Criminal Justice…primarily acted as instrumentality or agency of the

United States,’ because those allegations are demonstrably false.” Id., internal citations

omitted. Further, the Defendant asserts that “Beto Unit is a prison within the

Correctional Institutions Division of the Texas Division of Criminal Justice. . . . [which] is

located in the City of Tennessee Colony, Anderson County, Texas.” ECF No. 34 at 3.

See https://www.tdcj.texas.gov/unit_directory/b.html.

The Defendant cites to Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 430

(1990), which provides that “[t]he FTCA provides authorization in certain circumstances

for suits by citizens against the Federal Government for torts committed by [Federal]

Government agents." ECF No. 34 at 4. The Defendant concludes that State actors

cannot be sued under the FTCA, and thus the Plaintiff’s claims against Texas State

actors who are not employees or agents of the United States, fail to state an FTCA

claim upon which relief can be granted. ECF No. 34 at 4.

E. The Plaintiff’s Response to Motion to Dismiss

On June 26, 2024, the Plaintiff filed a Response styled “Memorandum in support

of Objection to Respondent’s Motion to Dismiss Plaintiff’s Complaint,” along with

exhibits. ECF Nos. 41, 41-1 through 41-3. Therein, the Plaintiff states, “[b]y no means [ ]

does Petitioner imply ‘the Texas Department of Criminal Justice’ is [a] part [of] the

Federal Bureau of Prisons. Nor indicating that state actions or actors are within the

perimeters of the FTCA.” ECF No. 41 at 2. The Plaintiff contends, “[r]ather, it is not the

state actors, but the acting within the scope of his office or employment causing

negligence or wrongful act or omissions, where the government of the United States, if a

private person, would be liable to the claimant. . .” Id. Further, the Plaintiff asserts that

“‘Federal Agency’, requisite colorable [elucidation], respectfully presents the nexus while

implicitly reserving tort liability.” Id., citing Ali v. Federal Bureau of Prisons, 552 U.S. 214

(2008). See also ECF No. 41 at 7. The Plaintiff continues that “the term ‘any’ officer

covers all law enforcement officers.” Id. Additionally, the Plaintiff states that “[p]ursuant to

28 U.S.C. § 2671, ‘Employee of the government’ includes (1) officers or employees of

any federal agency . . . . and persons acting on behalf of a federal agency in an official

capacity, temporarily or permanently in the service of the United States.” ECF No. 41 at

3 (emphasis in original), 10. The Plaintiff concludes that because he was in the primary

custody of the Attorney General when he escaped from the RRC, that “it is the BOP’s

responsibility of duty to care.” Id.

Liberally construed, the Plaintiff argues that while he was in the primary custody of

federal authorities but the physical custody of the Texas Department of Criminal Justice,

that Department and its employees, acted as agents of the federal government, and thus

the federal government cannot elude tort liability under the FTCA for injuries the Plaintiff

claims to have incurred from drinking contaminated bottled water. Id. at 3–5, 7. The

Plaintiff asserts that, “[t]he only attempt at controversy From the United States in its [ ]

rebuttal, was to mislead the court to Perceive Plaintiff’s complaint as litigating a suit to

state actors under the FTCA.” Id. at 6. Further, the Plaintiff contends that the Defendant’s

“‘failure to state a claim’ arguments Fall short of Persuasiveness as it pertains to “Texas

Department of Criminal Justice’ is an agency of the State of Texas, ‘not the Federal

Bureau of Prisons.’ and fails to shift the burden of Proof and Persuasion to Plaintiff.” Id.

at 11. The Plaintiff explains that the Defendant “merely speculated . . . [an] assertion,

that [the] United States was not responsible or retain Jurisdiction by ‘Primary custody’,

and attempted to infer by divorced test, that claims were against state actors.” Id. The

Plaintiff argues that he has “not asserted, nor raised claims that [the] Texas Department

of Criminal Justice is an agency of the Federal Bureau of Prisons with expectant liability.”

Id. The Plaintiff argues that “Defendants have created a fact issue which would preclude

the granting of summary judgment on the issue” of whether the Texas Department of

Criminal Justice is an agency of the Federal Bureau of Prisons. ECF No. 41 at 11.

Further, according to the Plaintiff, “[t]he said Agency4 unlawfully withheld action and

failed to make a decision for over 35 months. Of which it was required to do.” Id. at 7.

In the attached “Declaration in Support of FTCA” the Plaintiff asserts that on or

about August of 2015, he was placed in a federal halfway house or Residential Reentry

Center (RRC), in Midland, Texas to complete his 90-month term of incarceration

imposed in the Western District of Texas, case number 7:09-CR-42.5 ECF No. 41-2 at 1.

4 It is unclear which agency the Plaintiff refers to. Several sentences earlier in the previous

paragraph, the Plaintiff mentions the Attorney General and Bureau of Prisons. Construed liberally, the

undersigned understands the “said Agency” to mean the Bureau of Prisons. See 28 C.F.R. § 14.2(b)(1)

which provides that:

A claim shall be presented to the Federal agency whose activities gave rise to the claim. When a

claim is presented to any other Federal agency, that agency shall transfer it forthwith to the

appropriate agency, if the proper agency can be identified from the claim, and advise the claimant

of the transfer. If transfer is not feasible the claim shall be returned to the claimant. The fact of

transfer shall not, in itself, preclude further transfer, return of the claim to the claimant or other

appropriate disposition of the claim. A claim shall be presented as required by 28 U.S.C. 2401(b)

as of the date it is received by the appropriate agency.”

5 In that case the Petitioner was found guilty by a jury on May 12, 2009, of being a convicted

According to this Declaration, on or about February 28, 2016, the Plaintiff “decided not to

return” to his halfway house assignment, and was arrested on March 5, 2016, by officers

from the Midland County Sheriff’s Department and United States Marshal Service. Id.

The Plaintiff asserts he “was boarded in the Midland County Sheriff’s Department

(“MCSD”), although being a Federal inmate, later to be discovered as ‘Administrative

convenience’ (in order to seem as though [he] was under ‘primary custody’ of state

authorities, so the time spent in custody would not count towards Federal detention).” Id.

The Plaintiff states that he was transferred from state custody with the MCSD to a

federal facility, Odessa Detention Center (“Odessa”) on or about April 27, 2016, until

December 2016, when he was transferred for a psychological evaluation, and returned to

Odessa around February of 2017. Id. According to the Plaintiff he remained at Odessa

until he was sentenced on June 14, 2017. Id.

On or about June 14, 2017, the Plaintiff was sentenced to 260 months in federal

prison. Id. at 2. The Plaintiff asserts that he was still under the “primary custody” of the

Attorney General at the time of sentencing, and when the Judgment was entered on

June 23, 2017. Id. According to the Plaintiff, he was transferred to state authorities on

June 29, 2017, and was sentenced to a state term of ten years in September of 2017. Id.

The Plaintiff remained in state custody, being transferred to state prison where he served

five years before being paroled. Id. The Plaintiff states, “[w]hile in state custody, still

under ‘Primary custody’ of ‘Attorney General’, [he] was subjected and succumb(ed) to

felon in possession of a firearm, and was sentenced on July 28, 2009, to 78 months of incarceration, to

be served consecutively to the Petitioner’s sentence imposed in 7:05-CR-083-01 in the Western District of

Texas. W.D. Tex. 7:09-CR-42, ECF Nos. 49, 53. The Court of Appeals for the Fifth Circuit affirmed the

Petitioner’s conviction and sentence on April 20, 2010. W.D. Tex. 7:09-CR-42, ECF No. 65.

fatal6 injuries, which [he] did not receive adequate medical care for.” Id. The Plaintiff also

acknowledged that he previously filed a civil rights action under § 19837 in the Eastern

District of Texas, which was “ultimately denied.” ECF No. 41-2 at 2.

The Plaintiff attached to his response: (1) a document styled “Memorandum to

Courts” [ECF No. 41-1]; (2) a document styled “Declaration in Support of FTCA” which

was signed by the Plaintiff, and dated June 23, 2024 [ECF No. 41-2]; (3) a docket sheet

from the Western District of Texas, case number 7:16-CR-69, which contains the first ten

entries in that case from February 29, 2016 through May 2, 20168 [ECF No. 41-3 at 1];

(4) page 7 of an 18-page transcript9 from the Plaintiff’s sentencing hearing in the

Western District of Texas, case number 7:16-CR-68, [ECF No. 41-3 at 2]; (5) one page

from a Federal Bureau of Prisons Discipline Hearing Officer Report from an incident date

February 28, 2016, [ECF No. 43-3 at 3]; (6) a letter from the United States Department

of Justice, Civil Division, Torts Branch, Federal Tort Claims Act Staff dated September

30, 2021, which is signed by Hope L. Swann [ECF No. 41-3 at 4]; (7) a handwritten

document styled “Notice of Fault and Opportunity to Cure” which is directed to the United

States Department of Justice, Civil Division, Torts Branch, Federal Tort Claims Act Staff,

signed by the Plaintiff, and date stamped June 5, 2023 [ECF No. 43-3 at 5]; (8) one page

of a two-page Radiology Report from Central Louisiana Imaging Center for the Plaintiff

6 The undersigned recognizes that the Plaintiff’s characterization of his injuries being “fatal” is

incorrect as the Plaintiff is alive, registered as an inmate with the Federal Bureau of Prisons who is

housed at Hazelton USP, and actively litigating this case.

7 This action is summarized in Section III. below.

8 A review of the updated docket from that proceeding shows that the most recent entry is

Plaintiff’s “Motion to Correct Proceedings in Motion for Disqualification,” filed on August 2, 2024, which

the docket lists as “MOTION to Correct Docket Text re [ECF No.] 69 MOTION for Request of

Disqualification Pursuant to 28 U.S.C. § 455, 144.” W.D. Tex. 7:16-CR-69, ECF No. 75.

9 The full sentencing transcript can be found at W.D. Tex. 7:16-CR-68, ECF No. 47.

for an exam date of January 7, 2022, for a procedure listed as “STITCHES/THORAX W

CONT” [ECF No. 41-3 at 6]; and (9) one page of another two-page Radiology Report

from Central Louisiana Imaging Center for the Plaintiff for an exam date of January 7,

2022, for a procedure listed as “MRI/SPINE LUMBAR WO” [ECF No. 41-3 at 7].

F. Defendant’s Reply

The Defendant filed a reply on July 9, 2024, which contends that the Plaintiff

failed to “meaningfully address the arguments raised in the pending Motion to Dismiss.”

ECF No. 42 at 1. Further, the Defendant argues that the Plaintiff presents no evidence or

explanation to support his assertion that he was in the primary custody of the Attorney

General at the time the alleged tortious conduct occurred because agents of the Texas

Department of Criminal Justice “primarily acted as instrumentalities or agency of the

United States.” Id. at 1–2. The Defendant further argues that:

Even if Plaintiff had escaped from a federal RRC and was

subsequently placed in a Texas facility where the alleged

tortious conduct occurred, the applicable analysis here is

whether an employee of agent of the United States

negligently caused injury to Plaintiff while acting within the

scope of his office or employment, under circumstances

where the United States, if a private person, would be liable

to the claimant in accordance with the laws of the State of

Texas. . . . The answer is no.

Id. at 2. The Defendant further asserts that the Plaintiff’s reliance on Evans is

“misplaced and inapplicable” because “Evans was a criminal case that considered

whether a defendant was in federal custody for purposes of sustaining an escape

charge under 18 U.S.S. § 751(a).” Id. In conclusion, the Defendant contends that the

Plaintiff failed to establish subject matter and personal jurisdiction, and “[t]hroughout his

pleading, Plaintiff admits that these alleged torts occurred in Texas but fails to establish

why this Court has personal jurisdiction over state actors in Texas.” Id. at 3.

G. Plaintiff’s Reply to Respondent’s Response to the Motion to Dismiss

On July 31, 2024, the Plaintiff filed a “Reply to Respondents [sic] Response of

Motion to Dismiss.”10 ECF No. 45. The Plaintiff contends that he refused to respond to

“meaningless assertions of claims not alleged.” Id. at 1. Further, the Plaintiff contends

that he “does not allege tortious conduct against Texas state actors.” Id. The Plaintiff

reiterates arguments previously made regarding the definition of the term “any,” and the

application of that term to all law enforcement officers. Id. at 2. Further, the Plaintiff

asserts that where the United States failed within six months to appear or controvert his

Standard Form 95 seeking ten million dollars in damages. Id. at 2–3.

According to the Plaintiff, the Fourth Circuit has held that “a criminal conviction

may be used as conclusive proof of some issues in a subsequent litigation.” Id. at 3. To

that end, the Plaintiff asserts that the criminal case of United States v. Evans 159 F.3d

908, 912 – 13 (4th Cir. 1988),11 supports his contention that “primary custody remained

10 The undersigned recognizes that under Local Rule of Prisoner Litigation Procedure 11(d),

“Surreply and surrebuttal memoranda may not be filed.” Nonetheless, the Plaintiff’s “reply” which is in

actuality as surreply, is considered herein.

11 In Evans, Evans appealed his conviction for escape from federal custody in the Northern

District of West Virginia. A United States Probation Officer in this district filed a petition for revocation of

Evans’s supervised release. Following the issuance of an arrest warrant, Evans was arrested in Iowa,

and subsequently transported back to this district by the United States Marshal Service. While

incarcerated in a state facility, the Central Regional Jail, a West Virginia State Circuit Judge issued a writ

of habeas corpus ad prosequendum to allow the State to prosecute grand larceny charges against Evans.

The writ directed the United States Marshal Service to deliver Evans to the custody of the sheriff of

Harrison County, West Virginia. On July 23, 1995, Evans was transported to the Harrison County Jail,

where he suffered a medical emergency which led to his hospitalization. Evans escaped from the hospital

and was a fugitive until he was arrested more than five months later. During his period as a fugitive Evans

was indicted in this district, and upon his arrest was tried and convicted by a jury of escape from custody,

and was sentenced to imprisonment for sixty months. The Fourth Circuit affirmed the judgment of the

district court, holding that “the term of supervised release, the revocation of that term, and any additional

term of imprisonment imposed for violating the terms of the supervised release are all part of the original

sentence.” 159 F.3d at 913.

vested in the sovereign that first arrests the individual until it relinquishes its priority.” Id.

at 3–4. The Plaintiff argues that in his case “federal authorities attempted to overshadow

primary custody and board Plaintiff in [a] state facility to appear that state would obtain

and retain primary jurisdiction[, by] filing ad prosequendum as if primary jurisdiction has

been exhausted or relinquished, which [it] had NOT.” Id. at 5. The Plaintiff concludes that

the “tortious conduct is not on the Actions of Texas Department of Criminal Justice and

its employees but of the tortious conduct[ ] delegated to the BOP by the Attorney

General . . . which was established by jurisdiction in Plaintiff’s convictions,” which in turn

grants this Court jurisdiction to adjudicate his claims under the FTCA. Id. at 5 – 6.

III. PRIOR CLAIMS FILED UNDER 42 U.S.C. § 198312

On October 23, 2020, the Plaintiff filed a § 1983 action in the Eastern District of

Texas, case number 6:20-CV-566. E.D. Tex. 6:20-CV-566, ECF No. 1. An amended

complaint filed on January 4, 2021, names as Defendants: (1) Andrew Peykos, Sr.

CEO, Niagara Water; (2) Andy Peykos II, President of Niagara Water; (3) Lorie Davis,

Director Correctional Institute Division; (4) Keith E. Gorsuch, Warden at George Beto

Unit (“Beto”) of the Texas Department of Criminal Justice; (5) William Wheat, Assistant

Warden at Beto; (6) Dinia Green, Sergeant of Corrections at Beto; (7) Brenda Plantt,

Commissary Staff at Beto; (8) “Nurse” Utende at Beto; (9) Cynthia Goins, Physical

Assistance at Beto; (10) “Dr. John Doe” at Beto; (11) Steven Ciszewski, P.A. at Beto;

and (12) unnamed “Medical Staff” at Beto; and alleges that on March 17, 2020, the

12  All CM/ECF references in Section III, unless otherwise noted, refer to entries in the docket of

Civil Action No. 6:20-CR-566, from the Eastern District of Texas, available on PACER. Philips v. Pitt Cnty.

Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (Courts “may properly take judicial notice of public

record); Colonial Penns. Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most

frequent use of judicial notice is in noticing the contents of court records.’”).

Plaintiff’s constitutional rights were violated when he was deprived or health and safety

“by way of defective or dangerous product (polluted water bottle).” ECF No. 14. The

amended complaint alleges that on March 19, 2020, the Plaintiff “unknowingly ingested”

the water sold by Brenda Plantt at the prison commissary. Id. at 6. The Plaintiff alleges

that “[a]fter noticing and verifying affects [sic] Plaintiff informed Sgt. Dinia Green who

deliberately disregard[ed] Plaintiff[’s] health and safety by telling him to ‘get out of [her]

face.’” Id. The Plaintiff claims he then filed a grievance, “which was unanswered.” Id.

The Plaintiff claimed that because he was “feeling affects [sic] of dangerous product

[was] placed in a sick cell.” Id. On March 25, 2020, the Plaintiff was seen by Nurse

Utende. He complained of lower back pain, from possibly contaminated water, and

requested to be “thoroughly tested.” Id. at 7. On or about April 28, 2020, P.A. Goins

informed the Plaintiff of a medication plan. By May 26, 2020, the Plaintiff could not stand

or walk, was in “excruciating pain,” and had to be transported by stretcher. Id. On May

27, 2020, the Plaintiff needed a wheelchair to get to medical because of his pain from

ingesting contaminated water. Id. Once there, he contends that P.A. Ciszewski

“forcefully held [his] legs down although he complained of pain.” Id.

Among other claims of wrongdoing, the Plaintiff asserts that: (1) Gorsuch and

Wheat violated his constitutional right to health and safety and by their failure to

supervise employees, including medical staff; (2) Plantt acted with reckless disregard

and gross negligence when she exposed him to the “unreasonable risk” of placing a

defective or dangerous product into the stream of commerce, namely bottled water at

the commissary; (3) Dinia Green subjected him to cruel and unusual punishment and by

deliberately disregarding the Plaintiff’s health and safety; (4) Defendants Utende, Goins,

Ciszewski, and medical staff violated his constitutional rights by deliberately

disregarding the Plaintiff’s health and safety, and inflicted pain and suffering for more

than nine months. Id. at 8–9. For relief, the Plaintiff requested that the Court “[r]edress

[him] of violated rights and injury of pain and suffering and physical injury by

compensatory, punitive and nominal damages with reasonable attorney [sic] fees and

costs and [ ] any other equitable relief.” Id.

A Report and Recommendation was filed on March 24, 2023, and the District

Court adopted the Report and Recommendation on May 1, 2023. ECF Nos. 46, 48. The

Report and Recommendation found that “Plaintiff’s claim suffers from a causation

problem. Plaintiff has self-diagnosed his lower back pain and intestinal issues as being

cause by drinking approximately 16.9 fluid ounces of purified, bottled water. A self-

diagnosis, alone, will not support a medical conclusion.” ECF No. 46 at 19. Further, it

found that:

Plaintiff has not alleged sufficient facts demonstrating that

any Defendant violated his Eighth Amendment rights

concerning his medical care. Construing Plaintiff’s claim in

the light most favorable to him, Nurse Utende, P.A. Goins,

P.A. Ciszewski, and the Beto Unit Medical Staff have at most

misdiagnosed Plaintiff’s back pain and intestinal issues in

their respective evaluations of his symptoms. It is

indisputable that an incorrect diagnosis by medical

personnel does not suffice to state a claim for deliberate

indifference.

Id. Moreover, the Report and Recommendation concluded that:

Plaintiff’s own statements in his Amended Complaint [ ]

reveal that Plaintiff was evaluated by nurses and physician’s

assistants and received treatment for his pain, even though

the pain was not alleviated. There is nothing in his Amended

Complaint to support a conclusion that the Defendants

refused to treat him, ignored his complaints, intentionally

treated him incorrectly, or engaged in any similar conduct

that would clearly evince a wanton disregard for any serious

medical needs. Overall, the facts as alleged in the Amended

Complaint do not support a claim of deliberate indifference to

Plaintiff’s serious medical needs by Defendants. Plaintiff’s

medical deliberate indifference complaint fails to state a

claim upon which relief may be granted and is frivolous in

that it lacks any basis in law and fact.

Id. at 20–21. The District Court adopted the Report and Recommendation on May 1,

2023. ECF No. 48.

The Plaintiff appealed to the Fifth Circuit Court of Appeals which on June 11,

2024, dismissed the appeal as frivolous. ECF Nos. 50, 69, 69-1.

IV. LEGAL STANDARDS

A. Review of Complaints

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and the Court’s Local

Rules of Prisoner Litigation Procedure, this Court is authorized to review such complaint

and submit findings and recommendations to the District Court. This Court is charged to

“hear and determine any pretrial matter pending before the court, except a motion for

injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss, . . . to

dismiss for failure to state a claim upon which relief can be granted, and to involuntarily

dismiss an action.”

B. Pro Se Litigants.

Courts must read pro se allegations in a liberal fashion. Haines v. Kerner, 404

U.S. 519, 520 (1972). However, a complaint is frivolous if it is without arguable merit

either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by

statute). The Supreme Court in Neitzke recognized that:

Section 1915(d)13 is designed largely to discourage the

13 The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided,

filing of, and waste of judicial and private resources

upon, baseless lawsuits that paying litigants generally do

not initiate because of the costs of bringing suit and

because of the threat of sanctions for bringing vexatious

suits under Federal Rule of Civil Procedure 11. To this

end, the statute accords judges not only the authority

to dismiss a claim based on an indisputably meritless

legal theory, but also the unusual power to pierce the

veil of the complaint's factual allegations and dismiss

those claims whose factual contentions are clearly

baseless. Examples of the former class are claims

against which it is clear that the defendants are immune

from suit. . .

490 U.S. at 327.

C. Actions Under the Federal Tort Claims Act (FTCA)

The FTCA is a comprehensive legislative scheme by which the United States has

waived its sovereign immunity to allow civil suits for actions arising out of the negligent

acts of agents of the United States. The United States cannot be sued in a tort action

unless Congress has waived the government’s sovereign immunity and authorized suit

under the FTCA. Dalehite v. United States, 346 U.S. 15, 30-31 (1953). The provisions of

the FTCA are found in Title 28 of the United States Code. 28 U.S.C. §§ 1346(b),

1402(b), 2401(b) and 2671-2680.

In 2021, the Supreme Court issued a decision which summarized the historical

precedent which led to the enactment of the FTCA:

The FTCA streamlined litigation for parties injured by federal

employees acting within the scope of their employment.

Before 1946, a plaintiff could sue a federal employee directly

for damages, but sovereign immunity barred suits against

“The court may request an attorney to represent any such person unable to employ counsel and may

dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or

malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On

review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint,

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."

the United States, even if a similarly situated private

employer would be liable under principles of vicarious

liability. Despite that immunity, the Government often would

provide counsel to defendant employees or indemnify them.

In addition, Congress passed private bills that awarded

compensation to persons injured by Government employees.

But by the 1940s, Congress was considering hundreds of

such private bills each year. Critics worried about the speed

and fairness with which Congress disposed of these claims.

In 1946, Congress passed the FTCA, which waived the

sovereign immunity of the United States for certain torts

committed by federal employees acting within the scope of

their employment. The Act in effect ended the private bill

system by transferring most tort claims to the federal courts.

Plaintiffs were (and are) required to bring claims under the

FTCA in federal district court. Federal courts have

jurisdiction over these claims if they are actionable under §

1346(b). A claim is actionable if it alleges the six elements

of § 1346(b), which are that the claim be:

[1] against the United States, [2] for money damages, ... [3]

for injury or loss of property, or personal injury or death [4]

caused by the negligent or wrongful act or omission of any

employee of the Government [5] while acting within the

scope of his office or employment, [6] under circumstances

where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where

the act or omission occurred.14

Brownback v. King, 141 S. Ct. 740, 746 (2021) (cleaned up and internal citations

omitted).

An inmate “can sue under the FTCA to recover damages from the United States

Government for personal injuries sustained during confinement in a federal prison, by

reason of the negligence of a government employee.” United States v. Muniz, 374 U.S.

14 28 U.S.C. § 1346(b)(1) provides, “[T]he district courts ... shall have exclusive jurisdiction of civil actions

on claims 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, under circumstances where the United States, if a private person, would be

liable to the claimant in accordance with the law of the place where the act or omission occurred.”

150 (1963). The FTCA provides at § 2674 as follows:

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.

However, the FTCA does not create a new cause of action. Medina v. United States,

259 F.3d 220, 223 (4th Cir. 2001). “The statute merely “permits the United States to be

held liable in tort in the same respect as a private person would be liable under the law

of the place where the act occurred.” Id.

Even where the government has waived sovereign immunity, the FTCA only

authorizes lawsuits against the United States itself. 28 U.S.C. § 1346(b). Therefore, the

United States, not any government employee or agency, is the only proper defendant in

an FTCA lawsuit. See 28U.S.C. 2679(a); Webb v. Hamidullah, 281 F. App’x 159, 161 n.

4 (4th Cir. 2008) (per curiam) (unpublished) (United States is the only proper defendant

in FTCA claim); Holmes v. Eddy, 341 F.2d 477, 480 (4th Cir. 1965) (per curiam) (federal

agency cannot be sued pursuant to the FTCA); Allfgeir v. U.S., 909 F.2d 869 (6th Cir.

1990) (“The FTCA clearly provides that the United States is the only proper defendant in

a suit alleging negligence by a federal employee”).

A constitutional civil rights claim is not cognizable in an FTCA lawsuit. FDIC v.

Myer, 510 U.S. 471, 477-79 (noting that a constitutional tort claim is not cognizable in

an FTCA lawsuit because the United States has not waived its sovereign immunity with

respect to constitutional tort allegations); Blanchard v. United States, No. 2:14cv58,

2015 WL 4107311, at 13 (N.D.W. Va. July 7, 2015), aff’d 622 F. App’x 287 (4th Cir.

2015) (per curiam) (unpublished) (finding that a civil rights claim alleging a violation of

the Eighth Amendment prohibition against cruel and unusual punishment is not

actionable against the United States in an FTCA lawsuit because a constitutional tort

claim is not cognizable under the FTCA).

A number of statutory exceptions apply to the Federal Tort Claims Act, including

an exception for any discretionary function, or for any damages related to establishment

of a quarantine:

The provisions of this chapter and section 1346(b) of this title

shall not apply to--

(a) Any claim based upon an act or omission of an employee

of the Government, exercising due care, in the execution of

a statute or regulation, whether or not such statute or

regulation be valid, or based upon the exercise or

performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency

or an employee of the Government, whether or not the

discretion involved be abused.

. . . .

(f) Any claim for damages caused by the imposition or

establishment of a quarantine by the United States.

28 U.S.C.A. § 2680.

D. Motions to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a case when a

complaint fails to state a claim upon which relief can be granted. The Federal Rules of

Civil Procedure require only, “‘a short and plain statement of the claim showing that the

pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim

is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited,

“the accepted rule that a complaint should not be dismissed for failure to state a claim

unless it appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.

Plaintiff’s complaint was filed pro se and therefore the Court must liberally

construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.

Kerner, 404 U.S. 519, 520 - 1 (1972) (per curiam); Erickson v. Pardus, 551 U.S. 89, 94,

127 S.Ct. 2197 (2007). Although a complaint need not contain detailed factual

allegations, a plaintiff’s obligation in pleading, “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not

do....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, “[f]actual

allegations must be enough to raise a right to relief above the speculative level,” to one

that is “plausible on its face.” Id. at 555, 570. In Twombly, the Supreme Court found

that, “because the plaintiffs [ ] have not nudged their claims across the line from

conceivable to plausible, their complaint must be dismissed.” Id. at 570. Thus, to survive

a motion to dismiss, a plaintiff must state a plausible claim in his complaint which is

based on cognizable legal authority and includes more than conclusory or speculative

factual allegations.

“[O]nly a complaint that states a plausible claim for relief survives a motion to

dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice,” because courts are not bound to accept as true

a legal conclusion couched as a factual allegation. Id. at 678. “[D]etermining whether a

complaint states a plausible claim . . . [is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus,

a well-pleaded complaint must offer more than, “a sheer possibility that a defendant has

acted unlawfully,” in order to meet the plausibility standard and survive dismissal for

failure to state a claim. Id. at 678.

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding facts, the merits of a claim, or the

applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943,

952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a

claim, a plaintiff’s well-pleaded allegations are taken as true and the complaint is viewed

in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d1130, 1134

(4th Cir. 1993); see also Martin, 980 F.2d at 952.

V. ANALYSIS

A. The Plaintiff Cannot Meet the Six-Part Brownback Test to Establish

an FTCA Claim

As recognized by the Supreme Court in Brownback v. King, 141 S. Ct. at 746, an

FTCA claim is actionable if it alleges the six elements of 28 U.S.C. § 1346(b), which are

that the claim be: (1) against the United States; (2) for money damages; (3) for injury or

loss of property, or personal injury or death; (4) caused by the negligent or wrongful act

or omission of any employee of the Government; (5) while acting within the scope of his

office or employment; (6) under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the law of the place where

the act or omission occurred.

Regardless of whether he can demonstrate that he meets some of the six prongs

of the Brownback test, the Plaintiff cannot meet all of the prongs of the test as required.

Sgt. Dinia Green, Warden William J. Wheat, Warden Keith Gorsuch, Nurse Utende, P.A.

Cynthia Goins, P.A., Steven Ciszewski, Beto Medical Staff, and George Beto Unit are

not federal government employees who are responsible by their negligent or wrongful

act or omission for injury or loss of property, or personal injury or as alleged by the

Plaintiff. While the undersigned acknowledges that those individuals may be

government employees of the state of Texas, none are employees of the federal

government, the subject of the Federal Tort Claims Act. Moreover, the Plaintiff’s filing

a prior action under § 1983 in the Eastern District of Texas, alleging the same

wrongdoing which he asserts here, demonstrates a tacitly admission by the Plaintiff that

he knew the alleged wrongdoers were state, not federal, employees. Accordingly, the

Plaintiff cannot meet the fourth prong of the Brownback test. For these reasons, the

Plaintiff’s complaint as to those state individuals or entities should be dismissed for

failure to state a claim upon which relief may be granted.

Further, because none of those individuals or agencies are agents of the federal

government, it is impossible for any of them to have been acting within the scope of

their federal office or employment during the alleged wrongdoing. Accordingly, the

Plaintiff fails to allege the facts necessary to allege a sufficient claim as to the fifth prong

of Brownback.

As to the Plaintiff’s contention that the Bureau of Prisons, Federal Tort Claims Act

Staff, Hope L. Swann, and the United States Department of Justice violated his rights

under the FTCA. It is undisputed that these individuals are federal employees, and the

agencies are federal agencies. However, the only allegation against these federal

employees and agencies is that the Plaintiff has not yet received a response to his

Standard Form 95, which seeks monetary damages under the Federal Tort Claims Act

for the actions of Texas state employees. It is clear that, even liberally construed,

Plaintiff’s complaint fails to articulate the facts necessary to allege a successful FTCA

claim against these alleged wrongdoers. The Plaintiff cannot demonstrate as to prong

three, that he has incurred an injury or loss of property, or personal injury or death

based on a perceived delay on the processing of a Standard Form 95. Further, the

Plaintiff now complains that federal employees or agencies have failed to comply with

their obligations under the FTCA to process his Standard Form 95 grievance. That

allegation does not adequately assert a claim for injury or loss of property, or personal

injury or death. Rather the claim merely asserts a delay in response. Even when

construed liberally, the Plaintiff fails to state a claim under the FTCA because he fails to

allege that he suffered an injury or loss of property, or personal injury or death as a

result of any action or omission by these employees or agencies to satisfy prong 3 of

Brownback.

To the extent that the Plaintiff argues that those federal employees or agencies

violated his Eighth Amendment rights by failing to provide him with adequate medical

care, he fails to explain how his medical treatment at the state prison, Beto Unit, fell

below the applicable standard of care, or how any of the actions or inactions of any

federal employee proximately caused him any injury. For all these reasons, the Plaintiff

fails to state a claim under the Federal Tort Claims Act upon which relief may be

granted, and his complaint should be dismissed with prejudice.

B. Plaintiff’s Request for Default Judgment

The Plaintiff’s complaint seeks an entry of default against the United States

based on the failure to “act in performance” related to his filing of an administrative

remedy. ECF No. 11 at 10.

Standard Form 95, entitled “CLAIM FOR DAMAGE, INJURY, OR DEATH,” is

prescribed by the Department of Justice, pursuant to 28 C.F.R. § 14.2. See

https://www.gsa.gov/system/files/SF95-07a.pdf. The form instructions direct that, “[c]laims

presented under the Federal Tort Claims Act should be submitted directly to the

‘appropriate Federal agency’ whose employee(s) was involved in the incident. . . ” Id.

Final denial of a claim submitted under the Federal Tort Claims Act is governed

by 28 C.F.R. § 14.9, which provides:

(a) Final denial of an administrative claim shall be in writing

and sent to the claimant, his attorney, or legal representative

by certified or registered mail. The notification of final denial

may include a statement of the reasons for the denial and

shall include a statement that, if the claimant is dissatisfied

with the agency action, he may file suit in an appropriate

U.S. District Court not later than 6 months after the date of

mailing of the notification.

(b) Prior to the commencement of suit and prior to the

expiration of the 6–month period provided in 28 U.S.C.

2401(b), a claimant, his duly authorized agent, or legal

representative, may file a written request with the agency for

reconsideration of a final denial of a claim under paragraph

(a) of this section. Upon the timely filing of a request for

reconsideration the agency shall have 6 months from the

date of filing in which to make a final disposition of the claim

and the claimant's option under 28 U.S.C. 2675(a) shall not

accrue until 6 months after the filing of a request for

reconsideration. Final agency action on a request for

reconsideration shall be effected in accordance with the

provisions of paragraph (a) of this section.

Further, 28 C.F.R. § 14.11 provides that, “[e]ach agency is authorized to issue

regulations and establish procedures consistent with the regulations in this part.”

Pursuant to 28 C.F.R. part 14, the Bureau of Prisons adopted Program

Statement 1320.07 related to the Federal Tort Claims Act.

https://www.bop.gov/policy/progstat/1320.07.pdf. Program Statement 1320.07 cites to

the Code of Federal Regulations to support each of the provisions within the Program

Statement. Citing to 28 C.F.R. § 543.31, Program Statement 1320.07, subpart 3,

provides:

Employees will provide a SF-95, Claim for Damage, Injury,

or Death form, which is available on the public U.S. General

Services Administration (GSA) website in the GSA Forms

Library and on the Employee Resources page of the Bureau

intranet.

A claim may be filed without a SF-95, Claim for Damage,

Injury, or Death form. However, the claimant should provide

all the following information:

■ date of incident

■ place where the incident occurred

■ explanation of events

■ names of witnesses

■ description of injury or property loss

■ date of claim

■ sum certain claimed (required)

■ claimant’s signature (required)

Inmates should obtain forms from employees at the

institution where they are incarcerated.

https://www.bop.gov/policy/progstat/1320.07.pdf at 3–4. Subpart 3 explains the process

for presenting a claim, pursuant to 28 C.F.R. § 543.31(c). Id. at 4. Subpart 4 of the

Program Statement, related to processing the claim, quotes 28 C.F.R. § 543.32, and

directs that after the claim is received by the appropriate agency office, an Institutional

Investigation will be conducted, and an Investigation Report prepared. Id. at 4–6. If a

claimant is “dissatisfied with the final agency action, [he] may file suit in an appropriate

United States District Court, as no further administrative action is available.” Id. at 7,

quoting 28 C.F.R. 543.32(f). Further, pursuant to the Program Statement, “[a]ll denial

letters must be sent via certified or registered mail. The denial letter must state that if

the claimant is dissatisfied with the denial, they may file suit in the appropriate District

Court within six months after the mailing of the denial.” Id. at 7. Finally, the Program

Statement quotes 28 C.F.R. 543.32(h), which provides:

Response timeline. Generally, you will receive a decision

regarding your claim within six months of when you properly

present the claim. If you have not received a letter either

proposing a settlement or denying your claim within six

months after the date your claim was presented, you

may assume the claim is denied. You may then proceed to

file a lawsuit in the appropriate United States District Court.

https://www.bop.gov/policy/progstat/1320.07.pdf at 7, underlined emphasis added.

Pursuant to 28 U.S.C. § 2675(a):

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.

28 U.S.C. § 2675(a) (emphasis added).

The Plaintiff contends that he is entitled to default judgment because he did not

receive a response to his Standard Form 95 Claim for Damage, Injury or Death for more

than 669 days. ECF No. 11 at 8. However, a review of 28 U.S.C. § 2675(a) is

dispositive. That statute provides that, “[t]he 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.”

Accordingly, pursuant to the statute, after the Plaintiff failed to receive a final disposition

within six months after filing his claim, he was entitled to deem that his claim was

denied. At that time, the Plaintiff was entitled to proceed with an action under the FTCA

in the appropriate United States District Court. This result is also dictated by 28 C.F.R. §

543.32(h), which provides in part that, “If you have not received a letter either

proposing a settlement or denying your claim within six months after the date

your claim was presented, you may assume the claim is denied. You may then

proceed to file a lawsuit in the appropriate United States District Court.” (Emphasis

added.) Further, BOP Program Statement 1320.07 quotes 28 C.F.R. § 543.32(h) in

regard to timeliness of disposition.

Accordingly, based on the clear language of the statute, regulation, and program

statement, the Plaintiff was entitled to deem his claim asserted on Standard Form 95 to

be denied after six months without a response or disposition. The statute does not

authorize default judgment against the Government based on a failure to respond to an

administrative claim within six months. Rather, the statute specifies that the Plaintiff’s

remedy at that time was to file suit under the Federal Tort Claims Act for the violations

which were alleged in his administrative claim. For all of these reasons, the Plaintiff’s

request for default judgment is without authority, and should be denied and dismissed

with prejudice.

C. Res Judicata

Further, even if the Plaintiff met all six prongs of the Brownback test, he is

precluded from relief under the FTCA because he previously raised these same claims

in the Eastern District of Texas, case number 6:20-CV-566, ECF No. 14. To the extent

that the Plaintiff alleges that BOP15 employees’ actions were negligent as related to his

need for medical treatment after allegedly ingesting contaminated bottled water, the

Plaintiff has already raised these claims in a civil rights complaint filed in the Eastern

District of Texas pursuant to § 1983. The District Court in that case found that the

claims were frivolous and dismissed the action. The claims raised in the instant FTCA

case mirror the substance of the claims asserted in his § 1983 motion.

Res judicata bars litigation of all claims or defenses that were available to the

parties in the previous litigation, regardless of whether they were asserted or

determined in the prior proceeding. See Brown v. Felson, 442 U.S. 127, 131 (1979)

(“Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation,

and frees the courts to resolve other disputes”). Further, in Meekins v. United Transp.

Union, 946 F.2d 1054, 1057 (4th Cir. 1991) the Fourth Circuit held:

The preclusive [e]ffect of a prior judgment extends beyond

claims or defenses actually presented in previous litigation,

for ‘not only does res judicata bar claims that were raised

and fully litigated, it prevents litigation of all grounds for, or

defenses to, recovery that were previously available to the

parties, regardless of whether they were asserted or

determined in the prior proceeding.’

The elements required for res judicata to apply are: “(1) a judgment on the merits in a

prior suit resolving (2) claims by the same parties or their privies, and (3) a subsequent

suit based on the same cause of action.” Coyne v. Delaney Co. v. Selman, 98 F.3d

1457, 1473 (4th Cir. 1996).

15 For sake of argument, the undersigned will consider that the Plaintiff properly raised claims

against BOP employees, although he has clearly stated that the alleged wrongdoers are employees of

the Texas Department of Criminal Justice.

In the instant case it is clear that res judicata bars Plaintiff’s FTCA complaint. The

claims raised in his FTCA complaint are identical to those filed in his § 1983 complaint

in the Eastern District of Texas, case number 6:20-CV-566. There, the Plaintiff’s claims

of deliberate indifference to the Plaintiff’s serious medical needs by Defendant Utende,

Goins, Ciszewski, and the Beto Unit Medical Staff, were found to be frivolous and were

dismissed based on the failure to state a claim upon which relief may be granted. 6:20-

CV-566, E.D. Tex. 6:20-CV-566, ECF Nos. 46 at 21, 48. Those claims, that the Plaintiff

was injured after consuming contaminated bottled water at the Beto commissary, are

the same claims raised in the Plaintiff’s FTCA complaint, and list many of the same

alleged wrongdoers. Moreover, on appeal, the Fifth Circuit affirmed the decision

rendered by the Eastern District of Texas, and found that the appeal was frivolous. 6:20-

CV-566, ECF Nos. 69, 69-1. Accordingly, the Plaintiff is precluded from raising those

same claims in this action under another provision of federal law. For all these reasons,

the Plaintiff cannot re-litigate his allegations regarding deliberate indifference to his

medical care at a Texas state prison, and his current FTCA action should be dismissed

as frivolous as he has no chance of success.

VI. RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS that Plaintiff’s

complaint as to the United States of America be DISMISSED WITH PREJUDICE for

failure to state a claim upon which relief may be granted.

It is further RECOMMENDED that Defendant’s motion to dismiss [ECF No. 34]

be GRANTED.

Further, it is RECOMMENDED that the Plaintiff’s complaint be deemed

FRIVOLOUS, because: (1) there is no liability for state employees under the Federal

Tort Claims Act; and (2) the same underlying facts have already been raised in the

Eastern District of Texas, where relief was denied and the claim deemed frivolous, and

the Court of Appeals for the Fifth Circuit affirmed that decision.

Within fourteen (14) days after being served with a copy of this

Recommendation, any party may file with the Clerk of the Court, specific written

objections, identifying the portions of the Report and Recommendation to which

objection is made, and the basis of such objection. A copy of such objections

should also be submitted to the Honorable Gina M. Groh, United States District Judge.

Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten

pages, including exhibits, unless accompanied by a motion for leave to exceed the page

limitation, consistent with LR PL P 12.

Failure to file written objections as set forth above shall constitute a waiver

of de novo review by the District Court and a waiver of appellate review by the

Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas

v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United

States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

This Report and Recommendation completes the referral from the district court.

The Clerk is directed to terminate the Magistrate Judge’s association with this case.

The Clerk is directed to provide a copy of this Report and Recommendation to the

pro se Plaintiff by certified mail, return receipt requested, to his last known address as

reflected on the docket sheet, and to all counsel of record, as applicable, as provided in

the Administrative Procedures for Electronic Case Filing in the United States District

Court for the Northern District of West Virginia.

DATED: October 3, 2024

/s/ Robert W. Trumble

ROBERT W. TRUMBLE

UNITED STATES MAGISTRATE JUDGE