Christensen v. United States
| Decision Date | 02 December 2014 |
| Docket Number | Civil Action No. 5: 14-134-DCR |
| Parties | HERBERT SAMUEL CHRISTENSEN, JR., Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Herbert Samuel Christensen, Jr., was formerly confined as an inmate at the Federal Medical Center in Lexington, Kentucky ("FMC-Lexington").1 While incarcerated, Christensen filed a pro se Complaint under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA"). [Record No. 1] The Complaint alleges civil rights violations under 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), as well as pendent state claims of negligence under Ky. Rev. Stat. § 189.125(6). [Record No. 1] Christensen seeks recovery for the "personal physical and psychological injuries" he allegedly sustained as the result of the defendants' negligence or wrongful acts and omissions. [Id., p. 1] The Complaint names as defendants the United States of America and the following FMC-Lexington personnel: Francisco J. Quintana, Warden; David Carpenter,Captain; Mr. Henderson, Safety Manager; and two unknown Correctional Officers. By prior Order, the Court granted Christensen's motion to proceed in forma pauperis. [Record No. 3]
As a threshold matter, the Court conducts a preliminary review of Christensen's Complaint because he has been granted permission to proceed in forma pauperis and because he asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A district court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Christensen's Complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage of the proceedings, the Court accepts the plaintiff's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court has construed the Complaint liberally and will evaluate any cause of action which can reasonably be inferred from the allegations made.
For the reasons stated below, with the exception of his FTCA claim against the United States, Christensen's claims will be dismissed.
Christensen's Complaint concerns an incident occurring on July 1, 2013, when he was transported from FMC-Lexington to the University of Kentucky Medical Center for a medical appointment. Christensen, an ambulatory inmate, generally complains about beingplaced in a wheel-chair van for transport, being forced to sit sideways in a seat, and the improper use of a seatbelt to secure him in that seat . Specifically, Christensen states:
13.) Thus on 7-1-2013 right before the med trip plaintiff had a seatbelt harness placed improperly across his carotid artery high up on his neck while he was forced to sit sideways in a seat of a wheel chair van, that was too small and narrow for him to sit in, thus that it injured plaintiff's left neck and the nerves in his left ulnar nerve distribution.
[Record No. 1, p. 4] Christensen also alleges that, on the return trip from this medical appointment and all other instances of transportation from the prison, he was transported without the protection of a seatbelt. On such trips, prisoners are secured by hand cuffs, ankle cuffs, and a waist chain; therefore, they cannot buckle the seatbelt themselves. [Id., p. 3]
A. Federal Tort Claims Act
The United States of America is immune from suit except where its sovereign immunity is explicitly waived. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). The FTCA waives this immunity and allows federal district courts to hear tort actions against the federal government 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." 28 U.S.C. § 1346(b)(1). Substantively, the FTCA makes the United States liable "to the same extent as a private individual under like circumstances," subject to enumerated exceptions. 28 U.S.C. § 2674. See Levin v. United States, 133 S. Ct. 1224, 1228 (2013).
The FTCA is the exclusive remedy for tort actions against the federal government, its agencies, and its employees. Ascot Dinner Theatre v. Small Business Admin., 887 F.2d 1024,1028 (10th Cir. 1989). Federal prisoners are among the possible plaintiffs in FTCA cases. United States v. Muniz, 374 U.S. 150 (1963). See also, 28 U.S.C. § 1346(b)(1); Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004). Importantly, an FTCA claim may only be asserted against the United States of America. See 28 U.S.C. § 2674; Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009) (); Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008) (same).
A plaintiff must exhaust his FTCA claim before a district court has jurisdiction over his lawsuit. 28 U.S.C. § 2675(a); Holt v. Morgan, 79 F. App'x 139, 141 (6th Cir. 2003) . Thus, an inmate must first present his claim (typically, by filing a Standard Form 95) to the regional office of the Bureau of Prisons (BOP) and the agency must deny his request before the inmate is authorized to file an FTCA claim in the district court. 28 U.S.C. § 2675(a). If the plaintiff does not file an administrative claim and receive a denial from the agency before filing suit, the Court must dismiss the claim for lack of jurisdiction. McNeil v. United States, 508 U.S. 106, 113 (1993).
The exhibits attached to Christensen's Complaint reflect that on October 1, 2013, he submitted a tort claim on a Standard Form 95 against the United States and mailed it to the BOP's Mid-Atlantic Regional Office in Annapolis, Maryland. [Record No. 1-1, pp. 47-48] This tort claim concerned the July 1, 2013 medical transport. Although the claim was received October 17, 2013, the BOP catalogued this tort claim as filed in 2014, assigning it the following number: TRT-MXR-2014-00572. [Id., p. 42] On December 23, 2013, the BOP rejected this claim, considering it to be a duplicate of Christensen's prior tort claim identified as Administrative Tort 2013-03235.2 [Record No. 1-1, p. 49] On March 17, 2014, the BOP notified Christensen that it had closed tort claim 2014-00572 as a duplicate claim "concerning the medical transports," which the BOP had denied nearly one year earlier, on March 26, 2013. [Record No. 1-1, pp. 51-52] The Court considers this notice to have effectively denied the 2014 tort claim without a separate, official response.
The BOP is correct that both the 2013 and the 2014 tort claims concern the medical transports. However, the two tort claims are not identical. The 2013 tort claim concerns the failure to secure Christensen in a seatbelt during transports, whereas the 2014 tort claim concerns (1) the improper use of a seatbelt to effectively secure him in a seat and (2) the failure to secure him with a seatbelt on the return trip to the prison. Thus, one claim concerns the failure to use a seatbelt and the other claim concerns the improper use of a seatbelt on one leg of the trip and the failure to use a seatbelt at all on the return trip. The two claims are not synonymous.3
Christensen's 2014 tort claim appears to have been timely presented to the BOP and fully exhausted. Further, Christensen timely filed the present action challenging its denial. Given the apparent administrative confusion in the BOP's records concerning these two tort claims and the fact that the BOP did not officially respond to Christensen's 2014 tort claim, the Court will direct the United States to file a response to Christensen's 2014 FTCA claim.
B. BOP Policy Program Statements
Christensen asserts that the defendants, their agents and subordinates have violated BOP Policy 1600.09, which concerns occupational safety, environmental compliance, and fire protection. It is unclear how this particular BOP Program Statement addresses Christensen's seatbelt issue. Regardless, his claims under this or any other BOP Program Statement fail as a matter of law. The BOP's Program Statements are not "laws" which may be broken. Rather, they are merely internal agency guidelines and manuals and are not promulgated in compliance with the Administrative Procedures Act. Reno v. Koray, 515 U.S. 50, 61 (1995). Accordingly, they neither carry the force of law nor create enforceable substantive rights. United States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990); Schweiker v. Hansen, 450 U.S. 785, 789 (1981). Because a federal employee's failure to adhere to a Program Statement does not constitute a violation of federal law, any claim of violation fails as a matter of law. United States v. Loughner, 782 F. Supp. 2d 829, 831 (D. Ariz. 2011); Callahan v. Patton, No. 07-CV-54-JMH, 2007 WL 1662695, at *5 (E.D. Ky. June 4, 2007).
C. 18 U.S.C. § 4042
Although Christensen does not specify which subsection of 18 U.S.C. § 4042 the defendants have violated, it appears that he may be referring to 18 U.S.C. § 4042(a)(2), which directs the BOP to "provide suitable quarters and provide for the safekeeping, care and subsistence of all persons charged with or convicted of offenses against the United States" or to 18 U.S.C. § 4042(a)(3), which directs the BOP to "provide for the protection . . . of all persons charged with or convicted of offenses against the United States." Broadly construing this claim, Christensen may be attempting to assert claims of deliberate indifference to his safety...
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