Hardman v. United States, CASE NO. 12-3060-SAC

Decision Date01 June 2012
Docket NumberCASE NO. 12-3060-SAC
PartiesFRANK HARDMAN, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
CourtU.S. District Court — District of Kansas

This civil complaint was filed by a federal prisoner confined at the United States Penitentiary, Leavenworth, Kansas (USPL). Plaintiff seeks damages against each defendant based upon claims of improper treatment immediately following gall bladder surgery. The court assesses an initial partial filing fee, and requires plaintiff to file an Amended Complaint that cures the deficiencies found upon screening.


Plaintiff has filed an Application to Proceed Without Prepayment of Fees (Doc. 2) and has attached an Inmate Account Statement in support as statutorily mandated. Under 28 U.S.C. § 1915(b)(1), a plaintiff granted such leave is not relieved of the obligation to pay the full fee of $350.00 for filing a civil action. Instead, being granted leave to proceed in forma pauperis merely entitles Mr. Hardman to proceed without prepayment of the full fee, and to pay the filing fee over time through payments deducted automatically from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2). Furthermore, § 1915(b)(1), requires the courtto assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the date of filing of a civil action. Having examined the records of plaintiff's account, the court finds the average monthly deposit to plaintiff's account over the applicable time period was $88.23, and the average monthly balance was $ 14.11. The court therefore assesses an initial partial filing fee of $ 17.50, twenty percent of the average monthly deposit, rounded to the lower half dollar. Plaintiff must pay this initial partial filing fee before this action may proceed further, and will be given time to submit the fee to the court. His failure to submit the initial fee in the time allotted may result in dismissal of this action without further notice.


Mr. Hardman names as defendants the United States "dba Bureau of Prisons" (BOP); Officer Mudlins, USPL Correctional Officer; PA Perkins, USPL; Dr. Aulepp, USPL; Dr. McCullum, USPL; Commander Blevins, USPL; unknown medical staff; unknown BOP officers; Cushing Hospital and Dr. Sorenson.

As the factual basis for this complaint, Mr. Hardman alleges as follows. On or about September 4, 2009, he was taken from the USPL to the Cushing Hospital in Leavenworth, where Dr. Sorensen removed his gall bladder. Immediately after the surgery, plaintiff, who was "still partially under the anesthesia," was placed in restraints and transported back to the USPL by Officer Mudlins and another unknown Officer. He was not taken from the hospital in a wheelchair, andthe van was not pulled up to the exit. Instead, while in a waist chain, handcuffs, and shackles, plaintiff was required to walk 200 to 300 feet to the BOP van, climb in and out of the van, and walk up the hill to the prison. Upon entering the prison, the surgical incision burst open soaking plaintiff with blood. Defendant Mudlins called a medical emergency, and plaintiff was taken in a wheelchair to Center Hall. PA Perkins, Commander Blevins, and Dr. Aulepp responded to the call. As Dr. McCullum was about to exit the prison Officer Mudlins informed him of plaintiff's severe bleeding. Dr. McCullum responded sarcastically, "tell Mr. Hardman to stop bleeding" and left the prison. Plaintiff was taken to the medical unit, where he was "cleaned and patched up." He was then told to return to his unit where he was assigned the upper bunk. The Unit Officer told him there were no bottom bunks available over the holiday weekend. Plaintiff was forced to climb in and out of the top bunk numerous times a day for medical attention, meals, and to use the toilet. On the third day, the incision opened again. PA Perkins called Dr. McCullum at home and told him "he could see through the fatty tissue to the intestines." Dr. McCullum instructed PA Perkins to butterfly the wound and send plaintiff to his cell. The following morning, September 8, 2009, the wound opened again. Dr. McCullum instructed that Mr. Hardman be taken to the emergency room. At the hospital, Dr. Sorenson "dry packed the wound" as it was too long to stitch shut. The wound took 4 months to heal. Plaintiff also claims that "unknown medical staff" altered the surgeon's prescription for pain medication and gave him an "inferior medication" that did not resolve the pain.

Plaintiff makes the additional claim that his daily journal"came up missing."

Based upon the foregoing allegations, plaintiff asserts that defendants were deliberately indifferent to his serious medical needs and violated his right to be free of cruel and unusual punishment under the 8th Amendment. His claims also include malpractice and negligence. He alleges that he suffered mental anguish, anxiety, and unnecessary severe pain over an extended time. In addition, he asserts that his rights under the 4th Amendment were violated "in the unknown staff member's taking" his journal. He seeks millions of dollars in damages.

Mr. Hardman alleges that he exhausted prison administrative remedies and then filed an administrative tort claim, which was denied without explanation on August 29, 2011.


Because Mr. Hardman is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). Having screened the complaint, the court finds as follows.


Plaintiff is claiming tortious conduct on the part of federal officials and others and violation of his constitutional rights. The court has jurisdiction under 28 U.S.C. § 1331 over all civil action arising under the Constitution or laws of the United States.However, plaintiff must also state a claim for relief or a "cause of action" in federal court. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230-31 (10th Cir. 2005)("To bring suit, a plaintiff must also state a claim upon which relief may be granted, what used to be called stating a cause of action.")(citing e.g., Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 398 (1979)(distinguishing "the cause-of-action argument," which is directed at "the existence of a remedy," from jurisdictional questions). Plaintiff does not specify the authority under which he claims entitlement to relief. The court below considers the two most likely causes of action for plaintiff's claims.

1. Federal Tort Claims Act (FTCA)

Mr. Hardman's complaint might be read as asserting a claim for relief under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), § 2671 et seq.1 He names the United States as one defendant. The United States is immune to suit for money damages except where there is a specific statutory provision waiving sovereign immunity.2 Congress has provided a cause of actionagainst the United States under the FTCA for injury caused by the negligent or wrongful act or omission of any employee of a federal agency acting in his or her official capacity. 28 U.S.C. § 2672; United States v. Orleans, 425 U.S. 807, 813 (1976)("The Federal Tort Claims Act is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment."); see 28 U.S.C. § 1346(b).

If Mr. Hardman intended to bring this action under the FTCA, his complaint is deficient in the following ways. First, the only proper defendant in an FTCA suit is the United States. Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009)(citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001)). Thus, if plaintiff is attempting to proceed under the FTCA only, then he fails to state a claim against every defendant named herein other than the United States.

Second, the damages sued for under the FTCA may not exceed the amount that was requested by the plaintiff in his administrative tort claim. Plaintiff does not provide a copy of his tort claim, or summarize its contents. In his administrative claim, he was required to have set forth a "sum certain", and does not show that he asked for millions of dollars. Because the FTCA constitutes a waiver of the Government's sovereign immunity, the conditions established by the FTCA are strictly construed. See Pipkin v. United States Postal Serv., 951 F.2d 272, 275 (10th Cir. 1991); Franklin Savings Corp., In re, 385 F.3d 1279, 1287 (10th Cir. 2004), cert. denied, 546 U.S. 814 (2005). The FTCA requirements are jurisdictional and cannot be waived. See Estate of Trentadue exrel. Aguilar v. U.S., 397 F.3d 840, 852 (10th Cir. 2005).

In order for plaintiff to proceed under the FTCA, he must file an Amended Complaint naming the United States as the only defendant and stating therein that he seeks relief under the FTCA.

2. Bivens

A claim of unconstitutional denial of medical treatment might be liberally construed as brought directly under the Eighth Amendment pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).3 The Eighth Amendment prohibits the Government from incarcerating prisoners without providing adequate medical care. See Oxendine, 241 F.3d at 1276. Generally, prison officials violate the Eighth Amendment when they are "deliberately indifferent" to a prisoner's "serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976).

However, the court does not construe plaintiff's complaint as one brought under Bivens for several reasons. First, Mr. Hardman makes no mention of Bivens as the...

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