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Michel v. Federal Bureau of Prison FCI

United States District Court, N.D. Alabama, Western Division

February 13, 2018

HELENE MICHEL, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS FCI, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         On November 15, 2017, the Magistrate Judge's Report and Recommendation was entered and the parties were allowed therein fourteen days in which to file objections to the recommendations made by the Magistrate Judge. (Doc. #35). In his Report and Recommendation, the Magistrate Judge recommended that the court (1) dismiss without prejudice Warden Patricia Bradley (“Bradley”) from this action; (2) dismiss without prejudice the Federal Bureau of Prisons FCI (“BOP”); and (3) deny without prejudice Defendants' Motion to Dismiss Plaintiff's Federal Tort Claims Act (“FTCA”) and Bivens[1] claims. (Id.). On December 6, 2017, [2] Defendants filed objections to the Magistrate Judge's Report and Recommendation. (Doc. #40). Specifically, Defendants object to (1) the Magistrate Judge's application of the prison mailbox rule to the FTCA's presentment requirement and (2) the finding that the administrative remedy process was unavailable to Plaintiff regarding her Bivens claim. (Id.). Plaintiff has not objected to the Report and Recommendation. (Doc. #38). No. objections have been filed regarding the dismissals of Bradley or the BOP.

         After careful consideration of the record in this case, the Magistrate Judge's Report and Recommendation, and Defendants' objections thereto, the court hereby ADOPTS the Report of the Magistrate Judge. The court ACCEPTS the recommendations of the Magistrate Judge that Bradley and the Federal Bureau of Prisons FCI be dismissed without prejudice from this case. Despite Defendants' objections, which are discussed below, the court FURTHER ACCEPTS the recommendations of the Magistrate Judge that the court deny without prejudice Defendants' Motion to Dismiss Plaintiff's FTCA and Bivens claims against the remaining defendants.

         I. Application of the Prison Mailbox Rule to the FTCA's Presentment Requirement

         Defendants assert that application of the prison mailbox rule to the presentment requirement of 28 U.S.C. § 2675(a) is inconsistent with the United States' limited waiver of sovereign immunity under the FTCA. (Doc. #40 at 5-20). More specifically, Defendants argue that the court does not have subject matter jurisdiction over Plaintiff's claims because first, as a matter of law, she did not present her claims to the agency because the agency did not obtain “actual receipt” of her administrative appeal and, second, as a factual matter, Plaintiff does not sustain her burden of demonstrating presentment of the administrative appeal. (Id.). Defendants falter on both fronts.

         “The FTCA is a specific, congressional exception to the general rule of sovereign immunity [in that it] allows the government to be sued by certain parties under certain circumstances for particular tortious acts committed by employees of the government.” Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994). Title 28 U.S.C. § 2675(a) sets forth one condition of the government's waiver of sovereign immunity under the FTCA:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a). “A claim is deemed to be presented ‘when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 [“SF95”] or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the accident.'” Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1236-37 (11th Cir. 2002) (quoting 28 C.F.R. § 14.2(a)).

         In order to satisfy the presentment requirement in 28 U.S.C. § 2675(a), a plaintiff is not necessarily required to present affirmative evidence of actual receipt by the agency. Id. at 1239 (“While we agree with the fundamental premise that a claim is presented upon its receipt, we cannot go so far as to say that affirmative evidence of such receipt is required.”). A plaintiff creates a presumption that the agency received her SF95 when she demonstrates that her completed SF95 was (1) properly addressed, (2) stamped, and (3) mailed. Id. at 1240. However, a plaintiff need not achieve this high level of proof to create such a presumption. Id. at 1238-40. For instance, in Barnett v. Okeechobee Hospital, a plaintiff's statement that he mailed a completed SF95 to the relevant agency, along with copies of his accompanying cover letter and the prepaid postage reply envelope in which he allegedly mailed it, raised an inference --although not conclusive proof -- that the plaintiff mailed a completed SF95 to the relevant agency. Id. Declarations from agency employees that the agency did not receive the plaintiff's SF95 do not rebut the presumption of receipt because the “court c[an] not rely on the bare assertion of one member of the office that the mail was not received, since the mail might have been received by another.” Id. at 1241-42.

         In Garvey v. Vaughn, the Eleventh Circuit extended the prison mailbox rule articulated in Houston v. Lack[3] “to pro se prisoners filing complaints in section 1983 cases and claims under the Federal Tort Claims Act.” 993 F.2d 776, 783 (11th Cir. 1993). The Court further explained that, for these cases, “the date of filing shall be that of delivery to prison officials of a complaint or other papers destined for district court for the purpose of ascertaining timeliness.” Id.

         (emphasis in original). Although the Eleventh Circuit has established that the prisoner mailbox rule applies to the FTCA for statute of limitations purposes, no binding precedent for this court has settled “whether the prison mailbox rule extends to the filing of the administrative claim itself.” Echemendia v. United States, -- Fed.App'x --, 2017 WL 4334121, at *2 n.3 (11th Cir. Sept. 29, 2017). However, the principles underlying Garvey -- i.e., there are situations beyond a prisoner's control that, depending upon the circumstances of a case, should not be construed against a prisoner in determining when a pleading is filed -- buttress the reasoning behind extending the prison mailbox rule to the presentment requirement:

Unskilled in law, unaided by counsel, and unable to leave the prison, [a pro se prisoner's] control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access-the prison authorities- and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.

Garvey, 993 F.2d at 780 (quoting Houston, 487 U.S. at 271-72); cf. Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (“Since, with regard to the difficulties inherent in being a pro se prisoner litigant, we see no difference between the filing of a court action and the filing of an administrative claim, we hold that [our prior ruling[4] that the filing of a § 1983 complaint occurs upon delivery to a prison official also] applies to an FTCA administrative filing.”). But see Censke v. United States, No. 1:16-cv-02761-TWP-MJD, 2017 WL 4099208, at *4 (S.D. Ind. Sept. 15, 2017)[5] (“[B]ecause an administrative filing pursuant to the FTCA is not a court filing, and because the BOP regulation defines presentment of a claim as when it is received by the federal agency, the ‘prison mailbox rule' does not apply to [the plaintiff's] presentment of his SF-95 to the BOP in this case.”). The court agrees with the Magistrate Judge that a holding that the prison mailbox rule applies to the administrative filing of a FTCA claim most closely aligns with the precedent set forth by the Eleventh Circuit in Barnett, 283 F.3d 1232, and Garvey, 993 F.2d 776.

         As an alternative to its argument that the prison mailbox rule does not apply to the FTCA, Defendants assert that the Report and Recommendation does not include a factual finding that Plaintiff sent the SF95 through the legal mail system or the prison's regular mail system. (Doc. #40 at 14). However, in the Report and Recommendation, the Magistrate Judge stated, “[U]nless the defendants establish otherwise, the plaintiff's FTCA form is deemed filed on May 24, 2016.” (Doc. #35 at 12). In considering the merits of Defendants' Motion to Dismiss, the Magistrate Judge relied on Plaintiff's Amended Complaint, which was submitted under oath, and accepted Plaintiff's statement that “[o]n June 10th, 2016, [she] submitted Standard Form 95 Claim for Damages, Injury or Death to South East Regional Office [of the Bureau of Prisons].” (Doc. #27 at 3). Defendants did not provide the court with sufficient evidence[6] to rebut this presumption of receipt. See Barnett, 283 F.3d at 1241-42 (finding that ...


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