# WILLIAMS v. United States

> District Court, N.D. West Virginia · October 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10765683

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** October 3, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765683. Public record. Not legal advice.