explaining that an appellant’s failure to raise an argument constitutes forfeiture of that argument
How later courts described this case
- explaining that an appellant’s failure to raise an argument constitutes forfeiture of that argument
- requiring a plaintiff to establish that a medical provider breached a duty, and the breach was the proximate cause of the plaintiff’s harm
Written by the judges who cited it.
The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2905
__________
ROBERT L. SWINTON, JR.,
Appellant
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 3:21-cv-00011)
District Judge: Honorable Stephanie L. Haines
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 18, 2023
Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges
(Opinion filed: August 3, 2023)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Robert Swinton, a federal inmate proceeding pro se, appeals the District Court’s
order granting defendant’s motion to dismiss. For the following reasons, we will affirm.
Swinton filed suit against the United States, seeking compensatory damages and
injunctive relief for alleged constitutional violations. He alleged that, while he was
housed at FCI-Loretto, prison medical providers were deliberately indifferent by failing
to properly treat his gout. Dkt. No. 5 at 4-5. Swinton also alleged that prison officials
subjected him to unlawful searches, retaliation, and overcrowding, and interfered with his
access to legal materials and his legal mail. Id. at 4-11. The United States moved to
dismiss or, in the alternative, for summary judgment. Dkt. No. 22. The District Court,
over Swinton’s objections, adopted a Magistrate Judge’s Report and Recommendation
and granted the defendant’s motion to dismiss, concluding that Swinton had not
exhausted his claims as required by the Federal Tort Claims Act (“FTCA”). Dkt. No. 36.
Swinton filed this timely appeal. Dkt. No. 37.
We have jurisdiction under 28 U.S.C. § 1291. We exercise de novo review over
the District Court’s grant of a motion to dismiss.1 Castleberry v. STI Grp., 863 F.3d 259,
262-63 (3d Cir. 2017). We may affirm on any grounds supported by the record,
1
We do not review issues that an appellant has not raised on appeal. See Barna v. Bd. of
Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145-47 (3d Cir. 2017) (explaining
that an appellant’s failure to raise an argument constitutes forfeiture of that argument).
Here, Swinton does not argue that he should have been granted leave to amend his
complaint, and we will not consider that issue.
2
including those the District Court did not rely on.2 See Tourscher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999); Cent. Pa. Teamsters Pension Fund v. McCormick Dray
Line, Inc., 85 F.3d 1098, 1107 (3d Cir. 1996).
As Swinton argues and the United States concedes, the District Court erred in
concluding that Swinton failed to exhaust all five of his claims.3 A plaintiff cannot bring
a claim under the FTCA until an agency has finally denied the claim. See 28 U.S.C.
§§ 2401(b), 2675(a). But when the agency fails to respond to a grievance in the time
allowed by its own procedural rules, the administrative remedy is rendered “unavailable,”
and a plaintiff may advance his claim. Robinson v. Superintendent Rockview SCI, 831
F.3d 148, 153-54 (3d Cir. 2016). Here, the Bureau of Prisons (“BOP”) failed to respond
within six months to Swinton’s requests for reconsideration of his grievances about his
medical care and the searches. Dkt. No. 23-1 at 1-2. Accordingly, as prescribed by the
BOP’s procedural rules, Swinton was allowed to file suit based on the grievances in
federal court. See 28 C.F.R. § 543.32(i).
2
Swinton requested that we take judicial notice of an opinion of the United States
District Court for the Western District of New York. C.A. Dkt. No. 13. We deny this
request as irrelevant to the issues before us. See Landy v. FDIC, 486 F.2d 139, 151 n.6B
(3d Cir. 1973).
3
To the extent Swinton argues otherwise, the District Court properly dismissed
Swinton’s constitutional tort claims against the United States as barred by sovereign
immunity. See FDIC v. Meyer, 510 U.S. 471, 477-78 (1994).
3
Regardless, as the Magistrate Judge explained in the alternative, these two claims
fail on the merits. Under the FTCA, federal district courts generally have jurisdiction
over tort claims against the United States for “injury or loss of property, or personal
injury or death” caused by the negligence of a federal government employee, if the claim
would give rise to liability in the state where the tort occurred. 28 U.S.C. § 1346(b)(1).
Regarding his medical care, Swinton generally alleged that prison medical providers were
deliberately indifferent by failing to properly treat his gout, conspired against him, and
treated him differently than other inmates, in violation of the United States Constitution.
Dkt. No. 5 at 4-5. These vague assertions fail to state a medical negligence claim under
Pennsylvania law. See Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. Ct. 2005)
(requiring a plaintiff to establish that a medical provider breached a duty, and the breach
was the proximate cause of the plaintiff’s harm).
As to Swinton’s allegations that prison staff conducted unlawful searches that
caused mental and emotional injuries, see Dkt. Nos. 5 at 5-7 & 32 at 17, the FTCA
precludes inmate tort actions against the United States for these injuries “suffered while
in custody without a prior showing of physical injury or the commission of a sexual act,”
28 U.S.C. § 1346(b)(2). Swinton did not plausibly allege a physical injury, and none of
the facts he presented qualify as a “sexual act” pursuant to 18 U.S.C. § 2246.
The District Court also erred in concluding that Swinton failed to exhaust his
retaliation claim. Swinton filed an administrative grievance about the alleged retaliation,
4
which the BOP finally denied on October 21, 2019. Dkt. No. 23-1 at 2. The BOP
informed Swinton he had six months to file a suit in federal court, as required by the
FTCA. Id. at 2; see 28 U.S.C. § 2401(b). Swinton neither requested reconsideration of
the retaliation claim nor filed a suit based on it until January 2021, nine months after the
statutory period ended.4 Despite the District Court’s error in its reasoning, the claim was
properly dismissed because it was untimely.
On appeal, Swinton argues that he is entitled to equitable tolling on the otherwise
barred retaliation claim. C.A. Dkt. No. 17 at 23-27. FTCA claims are subject to
equitable tolling, which is available where, inter alia, the plaintiff has been prevented
from asserting his rights in some extraordinary way. See D.J.S.-W. ex rel. Stewart v.
United States, 962 F.3d 745, 750 (3d Cir. 2020); United States v. Wong, 575 U.S. 402,
420 (2015). Swinton argues that, in February 2020, he was placed in restricted housing
and did not have access to his legal materials, constituting extraordinary circumstances
preventing him from filing a suit in federal court. C.A. Dkt. No. 17 at 25. But Swinton
was transferred from restricted housing to a county jail in March 2020. See Dkt. No. 292,
United States v. Swinton, No. 6:15-cr-0655 (W.D.N.Y. Mar. 26, 2020). He does not
explain in what extraordinary way he was prevented from filing a suit during the other
4
Swinton requested reconsideration of his claim about the searches, which he raised in
the same grievance. See Dkt. No. 23-1 at 2.
5
five months of the statutory period, so he is not entitled to equitable tolling on his
retaliation claim.
Accordingly, we will affirm the judgment of the District Court.
6