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GABRIEL v. CORRECTIONS CORPORATION OF AMERICA

July 16, 2002

KEITH GABRIEL, PLAINTIFF,
V.
CORRECTIONS CORPORATION OF AMERICA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Roberts, District Judge

  MEMORANDUM OPINION AND ORDER

Plaintiff, a prisoner who is HIV positive, has brought suit under 42 U.S.C. § 1983 (West 2000) against the federal Bureau of Prisons ("BOP"),*fn1 Corrections Corporation of America ("CCA") and the District of Columbia, alleging that the defendants failed to ensure that his "medical jacket" was transferred with him to the District of Columbia correctional facility in Lorton, Virginia, thus causing him not to receive the medical treatment he needed. Defendants BOP and CCA have moved to dismiss Counts I and III, respectively, of plaintiff's second amended complaint asserting that the court lacks subject matter jurisdiction and that the complaint fails to state a claim.*fn2 Defendant District of Columbia has moved for summary judgment on Counts III and IV, claiming that plaintiff has not identified any District policy or custom that caused plaintiff's purported injuries. Because this Court lacks subject matter jurisdiction over Count I if the Count alleges a violation of the Federal Tort Claims Act and Count I fails to state a claim if it alleges a violation of § 1983, BOP's motion to dismiss will be granted. Because plaintiff has not adequately pled his § 1983 claim against CCA, CCA's motion to dismiss Count III as to CCA will be granted. Defendant District of Columbia's motion for summary judgment will be granted because plaintiff has failed to offer any basis for finding that the District of Columbia could be liable under § 1983.

BACKGROUND

Plaintiff was initially incarcerated in 1985 at the federal penitentiary in Leavenworth, Kansas, where he was diagnosed as being HIV positive. BOP immediately began to provide plaintiff with medical treatment. In 1988, plaintiff was transferred to another federal penitentiary. His medical jacket was transferred with him, and he continued to receive appropriate treatment for his HIV condition. (Second Am. Compl. ¶ 6-8.)

After being transferred to Lorton, plaintiff alleges that he did not receive any further medical treatment until his HIV status was rediscovered in 1998. Plaintiff alleges that as a result of his failure to receive treatment, he has suffered a decline in his T-Cell count and experienced the onset of premature dementia and depression. Plaintiff asserts that the dementia and depression prevented him from informing anyone of his failure to receive proper treatment. Finally, plaintiff contends that when CCA and the District were alerted to plaintiff's HIV status, both defendants failed to obtain his medical jacket and CCA provided plaintiff with an improperly low dosage of one of the drugs that he needed to take. (Id. ¶¶ 10-13.)

DISCUSSION

I. BOP

BOP has moved under Fed.R.Civ.P. 12(b)(1) to dismiss plaintiff's gross negligence claim (Count I), arguing that this Court lacks subject matter jurisdiction. It asserts that plaintiff failed to adhere to the requirement of 28 U.S.C. § 2401(b)*fn3 that he present his claim to BOP within two years of its accrual.

BOP's argument has merit and is well rooted in precedent. See, e.g., United States v. Kubrick, 444 U.S. 111, 113 (1979) (holding that "a tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency `within two years after such claim accrues'"); Stokes v. U.S. Postal Serv., 937 F. Supp. 11, 14 (D.D.C. 1996) (holding that presenting a claim to the appropriate agency within two years is "a mandatory jurisdictional prerequisite to filing a lawsuit in the United States"). Plaintiff apparently concedes as much but argues that "[w]hile it may not be in dispute that Plaintiff's notice came more than two years after his injury was sustained, Defendant [BOP] is not entitled to judgment as a matter of law because the limitations period of 28 U.S.C. § 2401(b) is not applicable to the Plaintiff's claim under 42 U.S.C. § 1983." (Mem. in Opp'n to Bureau of Prison's Mot. to Dismiss ("Opp'n to BOP") at 4.) Insofar as Count I alleges a violation of § 1983,*fn4 it must be dismissed for failing to state claim, see Fed.R.Civ.P. 12(b)(6),*fn5 because "[s]ection 1983 only applies to state officials acting under color of state law." Abramson v. Bennett, 707 F. Supp. 13, 16 (D.D.C. 1989) (dismissing § 1983 claim pursuant to Fed.R.Civ.P. 12(b)(6) because plaintiff filed claim against a federal official acting under color of federal law). BOP is not a state official acting under color of state law.

While plaintiff has clearly stated that he attempted to allege a cause of action under § 1983 in Count I, his second amended complaint and opposition to BOP's motion to dismiss are ambiguous, at best, as to whether the plaintiff has attempted to allege any other causes of action in Count I. Count I purports to allege against BOP the tort of gross negligence, but the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., the exclusive remedy against the federal government for torts committed by its employees, id. at § 2679, is not explicitly cited in that count or elsewhere in his second amended complaint. Perhaps when plaintiff alleged that he provided notice to BOP pursuant to 42 U.S.C. § 2671, et seq. (Second Am. Compl. ¶ 4), plaintiff meant to cite the FTCA which is codified at 28 U.S.C. § 2671, et seq. and to allege that he complied with the requirement of 28 U.S.C. § 2675 that all claims against the federal government must first be presented to the appropriate federal agency.

Plaintiff's opposition to BOP's motion has done nothing to clear up the ambiguity in the second amended complaint. At one point, plaintiff's opposition seems to take the position that Count I contains only a § 1983 cause of action. (Opp'n to BOP at 4.) Yet, at another point, plaintiff argues that a different statute of limitations should apply to his suit because he is a federal prisoner who has brought suit under the FTCA. (Id. at 7-8.)

If plaintiff has attempted to allege a negligence cause of action under the FTCA against the BOP in Count I, that cause of action must be dismissed for lack of subject matter jurisdiction because the plaintiff failed to comply with the requirement of 28 U.S.C. § 2401(b) that he present his claim to the BOP within two years of the time that his claim accrued. A claim "accrues" at the time the plaintiff discovers both his injury and its cause. See Sexton v. United States, 832 F.2d 629, 633 (D.C. Cir. 1987) (citing Kubrick, 444 U.S. at 120). Even if one were to accept plaintiff's argument that his failure to receive treatment caused the onset of "premature dementia and major depression" that prevented him from informing anyone of his need for medication and treatment (Second Am. Compl. ¶ 10), plaintiff's FTCA claim still fails. Plaintiff's health records reveal that he has been receiving treatment for HIV since at least September of 1998. (District of Columbia's Mot. for Summ. J., Ex. D at 6.)*fn6 On September 25, 1998, plaintiff requested an increase in his medication. (Id., Ex. D at 7.) Furthermore, on October 28, 1998, plaintiff asked to see an "HIV and AIDS specialist." (Id., Ex. D at 9.) Plainly, plaintiff has had the ability to inform people of his HIV status, recognize his need for treatment and perceive deficiencies in his treatment since at least October 28, 1998. Plaintiff did not file his complaint with the BOP until December 4, 2000. (BOP's Mot. Ex. 4.) Thus, any claim for a violation of the FTCA would have been presented to the BOP over two years after it accrued. Accordingly, plaintiff is barred from recovering under the FTCA by § 2401(b).*fn7

Insofar as Count I asserts a cause of action under ยง 1983, it must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted. Insofar as it asserts a cause of action under the FTCA, it must be dismissed pursuant ...


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