United States District Court, M.D. North Carolina
ROBERT A. ZANDER, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
This action, filed pursuant to the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671-2680 (West 2006 & Supp. 2013), comes before the Court on a Motion to Dismiss or for Summary Judgment [Doc. #7] filed by Defendant United States of America, and a Motion to Expedite [Doc. #12] filed by Plaintiff Robert Zander. Plaintiff Zander, proceeding pro se, has responded to the Government's Motion to Dismiss. For the reasons set forth below, the Government's Motion to Dismiss should be granted with respect to all of Plaintiff's claims except his claims that employees of the Bureau of Prisons assaulted and battered him while he was incarcerated. Plaintiff's Motion to Expedite will be denied.
I. FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff Zander alleges in his Complaint that on September 4, 2007, while he was incarcerated at Federal Prison Camp Butner ("Butner"), he authored a commentary on the existing disparity in sentencing for crack cocaine as compared to powder cocaine crimes. (Compl. [Doc. #2] at 4.) Plaintiff attempted to mail 19 copies of his commentary to members of Congress and media outlets. He alleges that his commentary expressed his personal views and never criticized prison rules or regulations. According to Plaintiff, Bureau of Prisons' personnel unlawfully intercepted, opened, and read his correspondence and attempted to destroy all copies of it. However, Plaintiff managed to send a complete copy to his spouse. Plaintiff alleges that on September 6, 2007, Bureau of Prisons' personnel "aggressively interrogated" him about his correspondence, falsely accused him of violating prison rules and regulations, and threatened him. Plaintiff denied any wrongdoing.
Plaintiff alleges that Bureau of Prisons' personnel thereafter issued a written incident report charging Plaintiff with violations of prison rules and regulations. They "ordered Claimant confined to the Hole' for more than six (6) months, " according to Plaintiff. (Id. at 6.) Plaintiff says that at this time, he was 62 years old and in poor health as a result of an extensive history of coronary artery disease, hypertension, and allergy rhinitis. He required several medications and had two blocked arteries. Plaintiff contends that while "confined to the Hole, ' Defendant's employees directed at Claimant abusive vitriol, derisive appellations, a derogatory racial epithet, and also routinely assaulted, degraded, and threatened Claimant with brutality and with serious and irreparable physical injury." (Id. at 7.)
Plaintiff further alleges that after several months in the "hole, " he was brought before the disciplinary hearing officer in January 2008. The hearing officer "ruled that Claimant did not commit' the charged offense and completely and unconditionally exonerated Claimant of all charges and directed that the charge be expunged from Claimant's record." (Id. at 7-8.) Bureau of Prisons' employees then transferred Plaintiff from Butner to FCI Oakdale in Oakdale, Louisiana. Plaintiff contends that he was at the time a Care Level 3 inmate which "expressly prohibited" his transfer to FCI Oakdale. Bureau personnel allegedly "fraudulently altered, upgraded, and misrepresented" Plaintiff's medical records to inaccurately reflect that he was a Care Level 2 inmate. Plaintiff says that he used the administrative remedy procedure to object to most of this misconduct, although Plaintiff says that at the time, he did not yet know about the misrepresentation of his care level.
Plaintiff also claims that to "further effectuate [his] unlawful transfer" to FCI Oakdale, Bureau personnel "deployed a force team' consisting of six heavily protected guards who violently struck Claimant in his upper chest cavity, lifted Claimant up off the ground, forcefully slammed Claimant onto a sheet metal slab, and sadistically subjected Claimant to excruciating pain as a 260 pound prison guard placed his weight onto Claimant's chest." (Id. at 9.) Plaintiff says he was then stripped of all clothing in front of a female guard. Plaintiff contends that Bureau officials were to make a copy of the video recording of this use-of-force incident but failed to do so and failed to file a use-of-force report. In September 2008, Plaintiff says he filed a Bivens action in the United States District Court for the Eastern District of North Carolina and that Bureau personnel retaliated by sending him to the hole' again where he was deprived of his heart and blood pressure medication for three days. (Id. at 10.)
Based upon these alleged facts, Plaintiff raises 16 causes of action. These claims are: (1) failure to follow rules and regulations; (2) malicious prosecution in disciplinary hearings; (3) abuse of disciplinary process; (4) false imprisonment and loss of liberty interest; (5) assault by communicating threats; (6) battery; (7) unauthorized use of force by "force team"; (8) breach of duty to keep Plaintiff from harm; (9) failure to intervene and keep Plaintiff from harm; (10) breach of duty to report criminal conduct by employees; (11) conspiracy to violate Plaintiff's rights; (12) general negligence by employees; (13) negligent retention of incompetent employees; (14) defamation; (15) emotional distress; and (16) negligent misrepresentation. (Compl. [Doc. #2] at 13-21.)
Defendant filed its Motion to Dismiss or for Summary Judgment and initially argued that all of Plaintiff's claims were barred by the statute of limitation of the FTCA. (Mem. in Support [Doc. #8].) This argument was based on the belief that Plaintiff had filed only one FTCA claim [Doc. #8-1, at 15-16] in June 2011. However, Plaintiff in his Response [Doc. #10] identified for the first time a second FTCA claim [Doc. #11-1, at 6] which he filed in May 2008. He filed the 2008 claim with the Federal Bureau of Prisons' South Central Regional Office in Texas. That office wrote to Plaintiff on July 22, 2008 [Doc. #11-1 at 9], to inform him that it was transferring his claim to the Mid-Atlantic Regional Office because the events he complained of occurred when he was incarcerated at FCI Butner. However, there was apparently no further action taken on the 2008 claim.
In his 2008 claim [Doc. #11-1 at 6], Plaintiff complained that on or about September 6, 2007, he was the victim of theft of his personal property by prison officials, he lost wages of $500, and that his medical conditions of angina and high blood pressure were aggravated by the assault and battery by prison officials.
In Plaintiff's subsequent 2011 FTCA claim [Doc. #8-1 at 15], Plaintiff filed an additional claim for alleged inadequate or improper training, management, and supervision of Bureau personnel including: the assault and battery of him for exercising his "lawful rights of free speech"; the filing of false declarations in federal district court to cover up criminal conduct of law enforcement officials; and the fraudulent alteration of his medical records and deliberate indifference to his medical needs. (Id.) Plaintiff also claimed that he suffered from blocked arteries when he was beaten by law enforcement officials and was deprived of heart and blood pressure medications for several days "in order to induce fatality." (Id.)
In its Reply Brief, Defendant takes the position that Plaintiff's claims are barred by either a failure to administratively exhaust or due to the running of the FTCA limitation period, except for his assault and battery claims which Defendant now contends should be dismissed for failure to state a claim upon which relief may be granted. (Def.'s Reply [Doc. #11] at 4.)
1. FTCA Exhaustion of Remedies and Statute ...