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BRYANT v. CARLSON

January 30, 1987

BILLIE AUSTIN BRYANT, Plaintiff,
v.
NORMAN CARLSON, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

 Defendants are Norman Carlson, Director of the United States Bureau of Prisons; Jerry O'Brien, warden of the Leavenworth Penitentiary; and the United States.

 I.

 Plaintiff's claim under the FTCA is barred by the statute of limitations. Prior to the initiation of this action, plaintiff filed an administrative tort claim with the Bureau of Prisons. The Bureau denied plaintiff's claim and mailed him notice of such denial on November 8, 1985. Plaintiff acknowledged receipt of this notice on November 18, 1985. He subsequently initiated this action on May 31, 1986. 28 U.S.C. § 2401(b) provides:

 
(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

 Read literally, the statute permits a suit to be filed if either of the conditions are satisfied -- i.e., if the claim is presented to the agency within two years of its accrual or if suit is filed within six months of the agency's notice of denial. However, our Court of Appeals has held that "common sense and the legislative history [of subsection 2401(b)] tell us that it requires the claimant both to file the claim with the agency within two years after accrual of the claim and then to file a complaint in the District Court within six months after the agency denies the claim." Schuler v. United States, 202 U.S. App. D.C. 199, 628 F.2d 199, 201 (D.C. Cir. 1980) (per curiam) (emphasis in original); see also Willis v. United States, 719 F.2d 608 (2d Cir. 1983). Because plaintiff did not file this action within six months of the notice, the FTCA claim is barred. *fn2"

 Furthermore, even if the FTCA claims were not barred, venue under the FTCA would not be proper here. Venue exists only where the cause of action arose or where the plaintiff resides. 28 U.S.C. § 1402(b). Plaintiff's cause of action arose in Kansas, and the plaintiff resides in Illinois, where he is presently incarcerated. See In re Pope, 188 U.S. App. D.C. 357, 580 F.2d 620, 622 (D.C. Cir. 1978).

 II.

 In response to defendants' motion to dismiss, plaintiff asserts for the first time that he notified defendants of his mistreatment in two letters, copies of which are attached to an accompanying affidavit. The letters are handwritten, are dated August 18, 1985 and September 5, 1985, and are addressed to defendant O'Brien and defendant Carlson, respectively. In his affidavit, plaintiff repeatedly refers to the events described in the letters as occurring in 1986. More important, in the body of the September 5 letter, purportedly written in 1985, plaintiff complains that he has "not seen a doctor about my condition since July 12, 1986." (Emphasis added.) It is incomprehensible that a person writing by hand in September 1985 could mistakenly refer to the year as 1986. Compare Reply to Defendants Carlson's and O'Brien's Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss (filed December 5, 1986). Furthermore, defendants have submitted an affidavit stating that a diligent search has failed to locate the original copies of these letters in any of the files in which they might be found. Declaration of Doris Page at para. 3, in Defendants Carlson's and O'Brien's Reply to Plaintiffs Opposition to Defendants Motion to Dismiss (filed November 14, 1986). Under the circumstances, it is patent that these letters were composed recently for the purpose of litigation and are not credible. Treating defendants' motion to dismiss as a motion for summary judgment, *fn4" these letters do not constitute "sufficient evidence . . . for a jury to return a verdict for [plaintiff]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Accordingly, these letters do not preclude a grant of summary judgment on defendants' behalf. See Anderson, supra; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Whitaker v. Coleman, 115 F.2d 305, 306 (5th Cir. 1940); 6 J. Moore, Moore's Federal Practice § 56.15[4] at 56-521 (2d ed. 1985).

 Plaintiff has not credibly suggested that defendants were aware of plaintiff's alleged mistreatment, or that their failure to know or correct that mistreatment constituted an actionable breach of duty to him under the eighth amendment to the Constitution. Under these circumstances, the claims against the individual defendants cannot stand. See Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).

 Furthermore, even if these individuals were proper defendants, venue would not lie in this Court. Under 28 U.S.C. § 1391(b), plaintiff's claim may be brought only in the district where all defendants reside or the claim arose. See Stafford v. Briggs, 444 U.S. 527, 63 L. Ed. 2d 1, 100 S. Ct. 774 (1980). As stated above, the claim arose in ...


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