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Lowe v. United States

United States District Court, E.D. North Carolina, Western Division

March 13, 2017

JOHN WESLEY LOWE, Plaintiff,
v.
THE UNITED STATES OF AMERICA, THE FEDERAL BUREAU OF PRISONS, CORRECTIONAL OFFICER B AL DWI N, L I EUTENANT CRADDOCK, LIEUTENANT DAWSON, CORRECTIONAL OFFICER DELOSSANTOS, CORRECTIONAL OFFICER LASSISTER, AGENT LOWERY, CORRECTIONAL OFFICER MCHENRY, CORRECTIONAL OFFICER STATEN, LIEUTENANT WRIGHT, and UNIT MANAGER WILLIS, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         The matter comes before the court on defendants' second motion to dismiss, or in the alternative for summary judgment, [1] (DE 49), pursuant to Federal Rule of Civil Procedure 56(a), to which plaintiff responded. Also before the court is defendant Lieutenant Dawson's motion to dismiss (DE 69) for lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5), and 4(e), to which plaintiff did not respond. For the following reasons, the court grants defendants' motions.

         STATEMENT OF THE CASE

         For ease of reference, the statement of the facts as set forth in the court's August 21, 2015, order is as follows:

On December 30, 2013, plaintiff, a federal inmate, filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Torts Claim Act (“FTCA”), 28 U.S.C. § 2672, et seq. Plaintiff named the United States, the Federal Bureau of Prisons (“BOP”), Correctional Officer Baldwin (“Baldwin”), Lieutenant Craddock (“Craddock”), Lieutenant Dawson (“Dawson”), Correctional Officer [De Los Santos] (“[De Los Santos]”), Correctional Officer Lassiter (“Lassiter”), Agent Lowery (“Lowery”), Correctional Officer McHenry (“McHenry”), Correctional Officer Staten (“Staten”), Lieutenant Wright (“Wright”), and Unit Manager Willis (“Willis”) as defendants. Plaintiff alleged the following Bivens claims in his complaint: (1) his prison conditions violated the Eighth Amendment to the United States Constitution; (2) defendants used excessive force in violation of the Eighth Amendment; (3) bystander defendants failed to protect him from assault from other correctional officers in violation of the Eighth Amendment; (4) defendants acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment; (5) defendants interfered with the investigation of his excessive force claim by denying him access to the BOP's administrative remedy procedure; and (6) defendants engaged in retaliatory conduct. As for plaintiff's FTCA claim, plaintiff alleged that the United States breached its legal duty to properly train, monitor, and control its employees which resulted in the alleged assault and failure to provide medical care.
On July 11, 2014, the court conducted an initial review of plaintiff's action pursuant to 28 U.S.C. § 1915(e)(2)(b). As part of its order, the court ruled that the United States was the only proper party for plaintiff's FTCA action, and dismissed plaintiff's FTCA action against the remaining defendants. The court also dismissed the BOP as a defendant and allowed plaintiff to proceed with his Bivens action against the remaining defendants.
On November 7, 2014, defendants filed a motion to dismiss, or in the alternative, for summary judgment, arguing that plaintiff's Bivens action, in part, is time barred. Alternatively, defendants assert that plaintiff's Bivens claims should be dismissed because plaintiff failed to exhaust his administrative remedies prior to filing this action and because plaintiff, in part, failed to state a claim upon which relief may be granted. Defendant the United States moved to dismiss plaintiff's FTCA action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The motion was fully briefed. Plaintiff additionally filed pleadings captioned “plaintiff's motion for an order denying, alternatively, deferring defendants' motion/memorandum to dismiss, alternative for summary judgment” and “plaintiff's motion for relief pursuant to Fed.R.Civ.P. 56(d).” Defendants did not respond to plaintiff's motions.

((DE 75), pp. 1-3.)

         On August 21, 2015, the court granted in part and denied in part plaintiff's motion for a continuance pursuant to Rule 56(d). The court granted the motion as to plaintiff's Bivens claims, but denied it as to plaintiff's FTCA claims. Because the court granted plaintiff a continuance as to plaintiff's Bivens claim, the court denied as moot defendants' motion to dismiss, or in the alterative, motion for summary judgment as to plaintiff's Bivens claim. The court denied the remainder of defendant's motion to dismiss or for summary judgment. The court then entered a case management order setting both discovery and dispositive motion deadlines.

         Defendants thereafter filed an unopposed motion for an extension of time to complete discovery, motion for a protective order, ex parte motion to seal and for in camera review, and motion to extend the case management order deadlines. Plaintiff then filed a motion for an extension of the court's case management order deadlines. On March 16, 2016, the court granted defendants' motion for an in camera review and motion to seal an incident report and an investigative report attached to defendants' motion to seal. The court also granted defendants' motion for a protective order, which permitted plaintiff to review the two reports, but precluded plaintiff from possessing, copying, maintaining, or distributing the documents. Finally, the court granted the parties' motions for extension of time and extended the discovery and dispositive motions deadlines.

         On June 16, 2016, defendants Baldwin, Craddock, De Los Santos, Lassister, Lowery, McHenry, Staten, Wright, and the United States filed the instant motion to dismiss plaintiff's FTCA claims for lack of subject matter jurisdiction. Defendants also move for summary judgment, arguing inter alia, that plaintiff's Bivens claims should be dismissed pursuant to the FTCA's judgment bar or for failure to exhaust administrative remedies. In support of their motion, defendants submit declarations and supporting documentation from defendants Stock, Lowery, Willis, as well as Cornelia Coll.[2] Defendants also include the following in their appendix: plaintiff's response to defendants' first request for admissions; plaintiff's response to defendants' first set of interrogatories; the United States' response to plaintiff's “request to produce;” the United States' response to plaintiff's request for production of documents; and a BOP Program Statement. These defendants additionally filed a motion for leave to file excess pages, which the court granted.

         On June 17, 2016, plaintiff filed a motion for default judgment as to defendant Dawson and a motion for a jury trial. Plaintiff then filed a motion for permission to file an out of time response. On October 14, 2016, the court denied without prejudice plaintiff's motion for entry of default, denied as moot plaintiff's motion to make a jury demand, and granted plaintiff's motion to file an out of time response.

         On November 3, 2016, defendant Dawson filed the instant motion to dismiss for lack of personal jurisdiction based on insufficient service of process pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5), and 4(e). In support of his motion, Dawson submits declarations from Shaw Hargett, Phillip Clark, and Contina Jefferson.[3] Although plaintiff was granted an extension of time to respond to Dawson's motion to dismiss, plaintiff did not file a response.

         STATEMENT OF FACTS

         The facts viewed in the light most favorable to plaintiff may be summarized as follows. This cause of action arose while plaintiff was incarcerated at the Federal Medical Center in Butner, North Carolina (“Butner”). (Verified Compl. p. 9). On October 31, 2010, plaintiff was charged with a prohibited act for his use of intoxicants following two positive breathalyzer tests. (Willis Decl. ¶ 6 and Attach. 1). As a result, plaintiff was placed in Butner's special housing unit (“SHU”) pending the investigation of the disciplinary charge. (Id. and Attach. 2). A disciplinary hearing officer subsequently conducted a hearing on plaintiff's charge and found him guilty of the prohibited act of “making, possessing, or using intoxicants.” (Id. Attach. 3). As a result of his disciplinary conviction, plaintiff was sanctioned with the loss of 27 days good conduct time, 30 days of suspended disciplinary segregation, and loss of commissary privileges for a period of one year. (Id.)

         On December 10, 2010, plaintiff signed a written statement stating that defendants De Los Santos and McHenry physically assaulted him in the SHU at Butner on November 1, 2010. (Lowery Decl. ¶ 5 and Attach. 1). Following plaintiff's allegations of assault, he was transferred back to Butner's SHU pending the investigation into his allegations. (Lowery Decl. ¶ 14). On July 13, 2011, plaintiff filed an administrative remedy request regarding the alleged assault by staff and issues surrounding the investigation into the alleged assault (grievance number 650183-F1). (Coll Decl. ¶ 7 and Attach. 3).

         Plaintiff presented grievance number 650183-F1 to defendant Baldwin. (DE 32, p. 9). Shortly thereafter, defendants Willis, Dawson and Lowery met with plaintiff on July 21, 2011, and ordered plaintiff to withdraw his grievance or plaintiff would not be released from the SHU and medical staff would not treat his prostate cancer. (Compl. p. 14; Lowery Decl. Attach. 10, p. 3).[4]On the same date, plaintiff executed an affidavit recanting his allegations regarding the November 1, 2010, assault and stating that he made such allegations out of frustration for having received a disciplinary charge for using intoxicants. (Lowery Decl. ¶ 9 and Attach. 8). On July 25, 2011, plaintiff was transferred from the SHU to the general population. (Id. ¶ 14). On August 4, 2011, plaintiff withdrew grievance number 650183-F1, and did not file any further administrative remedy requests regarding the instant claims. (Coll Decl. ¶ 7 and Attach. 3). Plaintiff states that defendant Baldwin refused to provide him with the proper forms to file a grievance. (DE 32, p. 8, 14).

         On March 19, 2012, plaintiff was transferred from Butner to the United States Penitentiary in Atlanta, Georgia. (DE 32, p. 5 and Ex. 6; Coll Decl. ¶ 4). On October 24, 2012, plaintiff filed an administrative tort claim regarding the instant allegations with the BOP's Mid Atlantic Regional Office using the following address: 10010 Junction Dr.; Suite 100-N; Annapolis JCT, Maryland 20701. (Compl. p. 6 and Attach. p. 3-4). Plaintiff obtained such address from the inmate law library at the United States Penitentiary in Atlanta. (Id.) After hearing no response from the Mid Atlantic Regional Office for over six months, plaintiff sent a letter to the address where he filed his October 24, 2012, administrative tort claim, and the letter was returned to plaintiff as “Not Deliverable As Addressed.” (Id. Attach. pp. 3, ...


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