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Jesse Ray Walthers v. Federal Bureau of Prisons

April 30, 2013

JESSE RAY WALTHERS, PLAINTIFF,
v.
FEDERAL BUREAU OF PRISONS, ET AL.,
DEFENDANTS.



MEMORANDUM OPINION AND ORDER

Jesse Ray Walthers is an inmate confined in the United States Penitentiary ("USP")-Lewisburg, located in Lewisburg, Pennsylvania.*fn1 Proceeding without an attorney, Walthers has filed a civil rights Complaint [R.1] asserting claims arising from personal injuries which he sustained on July 11, 2011, while confined in the USP-McCreary in Pine Knot, Kentucky.

The Court must conduct a preliminary review of Walthers' Complaint because he has been granted permission to pay the filing fee in installments and because he asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A district court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). The Court evaluates Walthers' Complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). At this stage, the Court "must construe the complaint in a light most favorable to the plaintiff, and accept all of [his] factual allegations as true." Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citations omitted).

Having reviewed Walthers' Complaint, the Court will dismiss it for lack of subject matter jurisdiction. Walthers may pursue his claims, which fall under the Inmate Accident Compensation Act ("IACA") 18 U.S.C. § 4126, at the correctional institution where he is confined, in the manner prescribed by 28 C.F.R. § 301.303(a).

BACKGROUND

Walthers alleges that on July 11, 2011, while working as a food service employee at USPMcCreary, Defendant Brown, the Food Service Supervisor, instructed him to load food onto a food cart and return it to the food service area. While Walthers was loading food onto the cart in front of the food service area, the cart "tipped over" on him, causing an injury to his head which required 10 stitches and bruising over his back and neck. Walthers claims that the food carts were damaged and malfunctioning, and that two days after the incident, Defendant Solomon, the Food Service Administrator, told Walthers that he (Solomon) was aware that the food carts had been broken for some time. [R. 1, p. 3] Walthers contends that Defendants Solomon and Brown acted with gross negligence by requiring him to operate a food cart which they knew was damaged, unsafe, and in need of repair.

Walthers further alleges that after he was injured on July 11, 2011, USP-McCreary Nurse Miracle refused to take pictures of his injuries because "she didn't want to lose her job," and that Defendant K. Bennett-Baker, the USP-McCreary Physician's Assistant, ignored his medical complaints and "...refused to have me seen by an outside specialist after my x-rays were clear...." [Id.] Walthers claims that after Physician's Assistant Jennifer West took over his medical care, he continued to receive nothing more than a prescription for ibuprofen. [Id.]

Walthers acknowledges that his X-rays were determined to be "clear," but claims that he continues to suffer chronic headaches, neck pain, and numbness in his left arm. [Id., p. 7] Walthers states that he has "continually complained of the lingering effects to medical from that date until the present (8-20-2012)," id. p. 3,*fn2 but that the medical staffs at both USP-McCreary and at FCI-Talladega refused to allow him to be examined by a specialist despite his complaints of headaches, neck pain, and numbness in his left arm. [Id., p. 7]

Walthers states that he completed the three-step Bureau of Prisons ("BOP") administrative remedy process as to his claims. [Id., p. 4, § IV] In his Request for an Informal Resolution, Walthers demanded $100,000 in damages for his injuries. On August 24, 2011, Richard B. Ives, then Warden of USP-McCreary, denied Walthers' request for a formal remedy, informing him that he must pursue his claims through the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. [R. 1-1, p. 6]

In his appeal to the BOP's Mid-Atlantic Regional Office ("MARO"), Walthers stated that a tort claim examiner had informed him "that the tort claim was not the appropriate remedy. Furthermore, the Warden's response does not fully and accurately address my issue." [Id., p. 7]

The MARO subsequently denied Walthers' BP-10 appeal, stating: Investigation of your complaint reveals you are receiving appropriate medical treatment and you continue to have access to sick call for your concerns. Regarding to your request for compensation, the Administrative Remedy Program does not provide monetary compensation of this nature. Please refer to the Federal Tort Claims Act for that purpose. In addition, you are encouraged to continue to work with your primary care provider team for other health care related issues and concerns. [Id., p. 8 (no date specified on the denial)]

Walthers attached no documentation relative to an appeal to the BOP Central Office, but he stated in his Complaint form that on March 12, 2012, he filed an appeal to the Office of General Counsel. [R. 1, p. 4, § IV(A)(2)]

On July 25, 2011, Walthers submitted an administrative claim to the BOP, seeking $100,000 in damages to compensate him for "serious physical injuries due to staff neglect and reckless disregard for my safety." [R. 1-1, p. 9] Walthers submitted his claim on Form BP-AO943, entitled "Small Claims for Property Damage or Loss (31 U.S.C. § 3723)." [Id.]

On August 9, 2011, Michelle T. Fuseyamore, BOP Regional Counsel, denied Walthers' administrative claim, which she construed as a request for a settlement under the FTCA and identified as Administrative Tort Claim No. 2011-05595. [Id., p. 11] Fuseyamore explained to Walthers that he must pursue his claims under the IACA, not the FTCA, because he alleged that he sustained personal injuries while performing a prison job. [Id]. She further explained that the IACA was Walthers' exclusive remedy for all of his claims. [Id.]

Our investigation reveals all damages you claim directly arise from a work related accident and may only be considered for compensation through Title 18, U.S.C. ยง4126, Inmate Accident Compensation Act (IAC). The IAC is the exclusive remedy for inmates allegedly injured while performing federal prison job duties. This interpretation was set forth by the United States Supreme Court in United States v. Demko, 385 U.S. 149 (1966), where the Court ruled that actions for inmate job-related injuries cannot be maintained under the FTCA. Rather, the exclusive remedy for inmate job injuries, including your claim, is the lAC. You may contact staff ...


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