Christensen v. United States

Decision Date26 August 2013
Docket NumberCivil No. 5: 11-321-KKC
PartiesHERBERT SAMUEL CHRISTENSEN, JR., Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
CourtU.S. District Court — Eastern District of Kentucky
MEMORANDUM OPINIONAND ORDER

Herbert Samuel Christensen, Jr., is an inmate confined at the Federal Medical Center in Lexington, Kentucky. Christensen, proceeding without an attorney, has filed a complaint asserting civil rights claims under 42 U.S.C. § 1983 and the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"); the Federal Tort Claims Act, 28 U.S.C. § 2671-80 ("FTCA"), the Privacy Act, 5 U.S.C. § 552a; and various pendent claims under Kentucky law. [R. 1] The Court has granted Christensen's motion to pay the filing fee in installments by prior Order. [R. 8]

The Court must conduct a preliminary review of Christensen's complaint because he has been granted permission to pay the filing fee in installments 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 standardbecause 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, 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).

I

Christensen's complaint appears to assert five discernible claims, which the Court will discuss in turn. In doing so, the Court notes that Christensen's complaint is 67 pages long; provides an extensive description of facts; identifies thirty defendants; and cites numerous statutes, regulations, and policy documents. However, Christensen makes little or no effort to actually state claims by linking the three together, by explaining or suggesting how particular conduct by a given defendant states a cause of action under a particular statute. Nonetheless, the Court has given his complaint a liberal, and hence broad, construction, and will evaluate any cause of action which can reasonably be inferred from the allegations made.1

A. Medical treatment for gastric ulcers.

Christensen indicates that in February 2005, Dr. Maria Marrero, his primary care physician employed by the Bureau of Prisons ("BOP"), requested that he be evaluated by an outside gastroenterologist. Two months later, Dr. Shedlofsky - a physician employed by the University of Kentucky Medical Center ("UKMC") - examined Christensen and recommended that an ultrasound be taken of his liver and an endoscopy performed on his upper GI tract. [R. 1, p. 28] However, it was not until September 16, 2005, that UKMC physician Dr. Razvan Arsenescu performed theendoscopy.

That examination indicated that Christensen had three bleeding gastric ulcers. Christensen indicates that Dr. Arsenescu recommended that his prescription for enteric-coated aspirin be terminated, and that he be tested for h. pylori bacteria. [R. 11-1, p. 14] However, the doctor did not advise Christensen of his diagnosis, nor did he convey the test results or his recommendations to Drs. Marrero or Shedlofsky. [R. 1, p. 29] It was not until a medical conference with Dr. Shedlofsky on February 21, 2006, that he learned that the h. pylori tests recommended by Dr. Arsenescu had not been performed. This test was performed on April 21, 2006, and indicated that h. pylori bacteria was present. Dr. Marrero prescribed antibiotics for peptic ulcer on May 9, 2006. [R. 1, p. 31]

Christensen complains that Drs. Marrero, Shedlofsky, and Arsenescu permitted unreasonable delays in his treatment, and failed to communicate adequately either with him or with one another to ensure prompt and effective treatment. [R. 1, pp. 30-31] Because Christensen does not directly explain how this conduct is actionable, the Court infers the nature of his claims by looking to two other portions of his complaint. First, pages one through twenty-seven of Christensen's complaint are dedicated to identifying each of the 30 defendants, and attributing to each numerous legal duties and responsibilities. The Court assumes that Christensen contends Drs. Marrero, Shedlofsky, and Arsenescu violated these duties by the actions described in the complaint. [R. 1, pp. 15-16, 26] Second, at the conclusion of what Christensen describes as his first cause of action, he includes a section titled "Proximate Cause to First Cause of Action" which offers some insight into the nature of his claims. [R. 1, pp. 51-55]

Christensen suggests that Dr. Marrero's actions violated 18 U.S.C. § 4042 ("The Bureau of Prisons ... shall ... (2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States ..."); BOP ProgramStatement ("PS") 6031.01, Patient Care; PS 3906.21, Bureau Mandatory Training Standards; PS 3420.09, Standards of Employee Conduct; 5 C.F.R. § 2635.101(a) (provides general rules of ethical conduct applicable to all officers and employees of the executive branch, and requires "each employee [to] respect and adhere to the principles of ethical conduct set forth in this section, ..."); her duty of reasonable care; and Christensen's constitutional rights. [R. 1, pp. 15-16, 52-54] Christensen further suggests that Drs. Shedlofsky and Arsenescu violated their duties of reasonable care and his constitutional rights. [R. 1, pp. 26, 52-54]

First, throughout his complaint Christensen asserts that these and other defendants "violated" various Program Statements issued by the BOP. It is not clear that he intends to do so, but to the extent that Christensen is attempting to assert claims directly under the Program Statements, all such claims 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 they are not promulgated in compliance with the Administrative Procedures Act. Reno v. Koray, 515 U.S. 50, 61 (1995). Accordingly, they do not carry the force of law, and do not create substantive rights that may be enforced by any person. 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" under a Program Statement 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).

Likewise, the ethical regulations applicable to federal employees of the executive branch, 5 C.F.R. § 2635 et seq., do not create a private right of action enforceable at law. 5 C.F.R. § 2635.106(c) ("A violation of this part or of supplemental agency regulations, as such, does not create any right or benefit, substantive or procedural, enforceable at law by any person against theUnited States, its agencies, its officers or employees, or any other person."); Scherer v. United States, 241 F. Supp. 2d 1270, 1285 (D. Kan. 2003).

Second, the Court interprets Christensen's references to violations of 18 U.S.C. § 4042, the duty of care, and to his constitutional rights as claims of medical negligence and of deliberate indifference to his serious medical needs in violation of the Eighth Amendment.

With respect to his constitutional claims, they must fail as a matter of law because he failed to timely exhaust his administrative remedies, because they are barred by the statute of limitations, and because his allegations fail to state a claim of deliberate indifference. The events about which Christensen complains occurred no later than September 16, 2005, when Dr. Arsenescu performed his endoscopy, and April 21, 2006, when the test for h. pylori bacteria was performed. BOP regulations require an inmate to file a grievance regarding a matter within twenty days after the events or conduct about which he complains. 28 C.F.R. § 542.14(a). Christensen states that he did not file a grievance regarding his medical treatment until January 24, 2011, nearly five years after the events he describes. [R. 4, p. 1] Federal law requires inmates to exhaust their administrative remedies properly, which includes meeting the agency's deadlines for filing and complying with other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Because "Woodford makes clear that prisoners cannot satisfy the PLRA's exhaustion [requirement] by filing an untimely or otherwise procedurally defective administrative grievance," Brewer v. Corrections Corp. of America, No. 7:09-CV-89-KKC, 2010 WL 398979 (E.D. Ky. Jan. 27, 2010), Christensen has procedurally defaulted this claim, and it must be dismissed. Davis v. United States, 272 F. App'x 863, 865-66 (11th Cir. 2008) (affirming dismissal of Eighth Amendment deliberate indifference claim where grievance to warden filed outside of 20-day period).

Christensen's constitutional claims are also barred by the applicable statute of limitations.With respect to his Eighth Amendment claims, neither the judge-made remedy afforded by Bivens nor the statutory remedy authorized by 42 U.S.C. § 1983 establish a limitations period. Instead, federal courts apply the most analogous statute of limitations from the state where the events occurred. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). The medical treatment about which Christensen complains occurred in Kentucky, and therefore Kentucky's residual one-year statute of...

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