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Christensen v. United States

United States District Court, Sixth Circuit

August 26, 2013

UNITED STATES OF AMERICA, et al., Defendants.


KAREN K. CALDWELL, District Judge.

Herbert Samuel Christensen, Jr., is an inmate confined at the Federal Medical Center in Lexington, Kentucky. Christensen, proceeding without an attorney, has filed a complaint asserting civil rights claims under 42 U.S.C. § 1983 and the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"); the Federal Tort Claims Act, 28 U.S.C. § 2671-80 ("FTCA"), the Privacy Act, 5 U.S.C. § 552a; and various pendent claims under Kentucky law. [R. 1] The Court has granted Christensen's motion to pay the filing fee in installments by prior Order. [R. 8]

The Court must conduct a preliminary review of Christensen's 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, 607-08 (6th Cir. 1997). The Court evaluates Christensen's 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). At this stage, the Court accepts the plaintiff's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).


Christensen's complaint appears to assert five discernible claims, which the Court will discuss in turn. In doing so, the Court notes that Christensen's complaint is 67 pages long; provides an extensive description of facts; identifies thirty defendants; and cites numerous statutes, regulations, and policy documents. However, Christensen makes little or no effort to actually state claims by linking the three together, by explaining or suggesting how particular conduct by a given defendant states a cause of action under a particular statute. Nonetheless, the Court has given his complaint a liberal, and hence broad, construction, and will evaluate any cause of action which can reasonably be inferred from the allegations made.[1]

A. Medical treatment for gastric ulcers.

Christensen indicates that in February 2005, Dr. Maria Marrero, his primary care physician employed by the Bureau of Prisons ("BOP"), requested that he be evaluated by an outside gastroenterologist. Two months later, Dr. Shedlofsky - a physician employed by the University of Kentucky Medical Center ("UKMC") - examined Christensen and recommended that an ultrasound be taken of his liver and an endoscopy performed on his upper GI tract. [R. 1, p. 28] However, it was not until September 16, 2005, that UKMC physician Dr. Razvan Arsenescu performed the endoscopy.

That examination indicated that Christensen had three bleeding gastric ulcers. Christensen indicates that Dr. Arsenescu recommended that his prescription for enteric-coated aspirin be terminated, and that he be tested for h. pylori bacteria. [R. 11-1, p. 14] However, the doctor did not advise Christensen of his diagnosis, nor did he convey the test results or his recommendations to Drs. Marrero or Shedlofsky. [R. 1, p. 29] It was not until a medical conference with Dr. Shedlofsky on February 21, 2006, that he learned that the h. pylori tests recommended by Dr. Arsenescu had not been performed. This test was performed on April 21, 2006, and indicated that h. pylori bacteria was present. Dr. Marrero prescribed antibiotics for peptic ulcer on May 9, 2006. [R. 1, p. 31]

Christensen complains that Drs. Marrero, Shedlofsky, and Arsenescu permitted unreasonable delays in his treatment, and failed to communicate adequately either with him or with one another to ensure prompt and effective treatment. [R. 1, pp. 30-31] Because Christensen does not directly explain how this conduct is actionable, the Court infers the nature of his claims by looking to two other portions of his complaint. First, pages one through twenty-seven of Christensen's complaint are dedicated to identifying each of the 30 defendants, and attributing to each numerous legal duties and responsibilities. The Court assumes that Christensen contends Drs. Marrero, Shedlofsky, and Arsenescu violated these duties by the actions described in the complaint. [R. 1, pp. 15-16, 26] Second, at the conclusion of what Christensen describes as his first cause of action, he includes a section titled "Proximate Cause to First Cause of Action" which offers some insight into the nature of his claims. [R. 1, pp. 51-55]

Christensen suggests that Dr. Marrero's actions violated 18 U.S.C. § 4042 ("The Bureau of Prisons... shall... (2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States..."); BOP Program Statement ("PS") 6031.01, Patient Care; PS 3906.21, Bureau Mandatory Training Standards; PS 3420.09, Standards of Employee Conduct; 5 C.F.R. § 2635.101(a) (provides general rules of ethical conduct applicable to all officers and employees of the executive branch, and requires "each employee [to] respect and adhere to the principles of ethical conduct set forth in this section, ..."); her duty of reasonable care; and Christensen's constitutional rights. [R. 1, pp. 15-16, 52-54] Christensen further suggests that Drs. Shedlofsky and Arsenescu violated their duties of reasonable care and his constitutional rights. [R. 1, pp. 26, 52-54]

First, throughout his complaint Christensen asserts that these and other defendants "violated" various Program Statements issued by the BOP. It is not clear that he intends to do so, but to the extent that Christensen is attempting to assert claims directly under the Program Statements, all such claims fail as a matter of law. The BOP's Program Statements are not "laws" which may be broken. Rather, they are merely internal agency guidelines and manuals, and they are not promulgated in compliance with the Administrative Procedures Act. Reno v. Koray, 515 U.S. 50, 61 (1995). Accordingly, they do not carry the force of law, and do not create substantive rights that may be enforced by any person. United States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990); Schweiker v. Hansen, 450 U.S. 785, 789 (1981). Because a federal employee's failure to adhere to a Program Statement does not constitute a violation of federal law, any "claim" under a Program Statement fails as a matter of law. United States v. Loughner, 782 F.Supp.2d 829, 831 (D. Ariz. 2011); Callahan v. Patton, No. 07-CV-54-JMH, 2007 WL 1662695, at *5 (E.D. Ky. June 4, 2007).

Likewise, the ethical regulations applicable to federal employees of the executive branch, 5 C.F.R. § 2635 et seq., do not create a private right of action enforceable at law. 5 C.F.R. § 2635.106(c) ("A violation of this part or of supplemental agency regulations, as such, does not create any right or benefit, substantive or procedural, enforceable at law by any person against the United States, its agencies, its officers or employees, or any other person."); Scherer v. United States, 241 F.Supp.2d 1270, 1285 (D. Kan. 2003).

Second, the Court interprets Christensen's references to violations of 18 U.S.C. § 4042, the duty of care, and to his constitutional rights as claims of medical negligence and of deliberate indifference to his serious medical needs in violation of the Eighth Amendment.

With respect to his constitutional claims, they must fail as a matter of law because he failed to timely exhaust his administrative remedies, because they are barred by the statute of limitations, and because his allegations fail to state a claim of deliberate indifference. The events about which Christensen complains occurred no later than September 16, 2005, when Dr. Arsenescu performed his endoscopy, and April 21, 2006, when the test for h. pylori bacteria was performed. BOP regulations require an inmate to file a grievance regarding a matter within twenty days after the events or conduct about which he complains. 28 C.F.R. § 542.14(a). Christensen states that he did not file a grievance regarding his medical treatment until January 24, 2011, nearly five years after the events he describes. [R. 4, p. 1] Federal law requires inmates to exhaust their administrative remedies properly, which includes meeting the agency's deadlines for filing and complying with other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Because " Woodford makes clear that prisoners cannot satisfy the PLRA's exhaustion [requirement] by filing an untimely or otherwise procedurally defective administrative grievance, " Brewer v. Corrections Corp. of America, No. 7:09-CV-89-KKC, 2010 WL 398979 (E.D. Ky. Jan. 27, 2010), Christensen has procedurally defaulted this claim, and it must be dismissed. Davis v. United States, 272 F.Appx. 863, 865-66 (11th Cir. 2008) (affirming dismissal of Eighth Amendment deliberate indifference claim where grievance to warden filed outside of 20-day period).

Christensen's constitutional claims are also barred by the applicable statute of limitations. With respect to his Eighth Amendment claims, neither the judge-made remedy afforded by Bivens nor the statutory remedy authorized by 42 U.S.C. § 1983 establish a limitations period. Instead, federal courts apply the most analogous statute of limitations from the state where the events occurred. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). The medical treatment about which Christensen complains occurred in Kentucky, and therefore Kentucky's residual one-year statute of limitations for asserting personal injury claims applies. Ky. Rev. Stat. § 413.140(1)(a); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003). The events described in the complaint occurred between February 2005 and May 2006, but Christensen did not file suit until October 2011, well past the one-year limitations period. This remains true even if, as Christensen alleged in his January 24, 2011, grievance, he did not discover the delay in treatment for his ulcers until he reviewed copies of his medical records from UKMC in June 2009. [R. 11-3, p. 4] While the running of the statute of limitations can be tolled during the period when administrative remedies are exhausted as required by law, such equitable tolling is not warranted where, as here, the prisoner unreasonably delayed in pursuing those grievances. Cuco v. Federal Medical Center - Lexington, No. 05-CV-232-KSF, 2006 WL 1635668, at *25-26 (E.D. Ky. 2006) ( citing Miller v. Collins, 305 F.3d 491, 495-96 (6th Cir. 2002), aff'd, 257 F.Appx. 897 (6th Cir. 2007). Even accepting Christensen's assertion that he did not and could not have become aware of a possible claim until June 2009 when he received copies of his medical records from UKMC, he still did not file any grievance regarding that care until October 2011, some 19 months later. Because Christensen did not diligently pursue the exhaustion of his administrative remedies, no equitable tolling is warranted, and his claims remain time barred.

Finally, Christensen's allegations fail to state a claim of deliberate indifference under the Eighth Amendment. Such a claim requires an allegation that the medical care provider act with a knowing and culpable state of mind demonstrated by circumstances such as "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104 (1976); Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir. 1992). Here, Dr. Arsenescu recommended merely that Christensen "Avoid NSAIDs." [R. 11-1, pp. 14-15] However, Marrero continued Christensen's prescription for enteric coated aspirin because, apart from his ulcers, he needed long-term treatment for his cardiac problems while reducing the gastric inflammation caused by the aspirin. [R. 11-3, p. 6] While that aspirin may have, to some degree, exacerbated symptoms associated with Christensen's gastric upset, Dr. Marrero's decision to continue his prescription for it was evidently based upon her medical judgment that its benefits to his long-term cardiac health outweighed its detrimental side effects. Such balancing of competing goals is one of medical judgment, and is the antithesis of deliberate indifference to Christensen's medical care. Cuco, 2006 WL 1635668, at *34. Christensen's Eighth Amendment claims will therefore be dismissed.

Christensen's claims of medical negligence must be analyzed separately for the federal and state defendants. With respect to a claim against BOP physician Marrero, a negligence action against her directly is barred by the Westfall Act, which immunizes federal employees from tort liability for actions taken within the scope of their employment. 28 U.S.C. § 2679(b)(1); Roberts v. United States, 191 F.Appx. 338 (6th Cir. 2006). Instead, as Christensen has done here, he may pursue a claim directly against the United States for the alleged negligence of one of its employees under the FTCA. 28 U.S.C. § 2674. Before he may do so, however, he must first present his claim to the BOP for possible settlement pursuant to 28 U.S.C. § 2675, which must be done within two years after the cause of action accrues, and if the BOP denies the claim, he must then file suit within six months. 28 U.S.C. § 2401(b). Here, while Christensen indicates that he did file a tort claim with the BOP regarding Dr. Marrero's care, he did not file it until April 11, 2011, approximately five years after the conduct he complains of. [R. 4, p. 2] Because Christensen did not file a timely request for administrative settlement, his FTCA claim is time-barred. Cf. Humphrey v. U.S. Attorney General's Office, 279 F.Appx. 328, 331-32 (6th Cir. 2008); Smith v. United States, No. 1:10-cv-112, 2011 WL 4899933, at *11-15 (M.D. N.C. Oct. 14, 2011). The failure to file a timely FTCA claim with the BOP precludes the exercise of subject matter jurisdiction over his claim, a non-waivable defect which requires dismissal of his claim. Huddleston v. United States, 485 F.Appx. 744 (6th Cir. 2012) ("Timeliness of suit is one of the conditions of the government's waiver of sovereign immunity under the FTCA, and the district court lacks subject matter jurisdiction to proceed under the FTCA if a plaintiff fails to satisfy the FTCA's timing requirements set forth in § 2401(b).") ( quoting In re Franklin Sav. Corp., 385 F.3d 1279, 1287 (10th Cir. 2004)); Zander v. United States, 494 F.Appx. 386 (4th Cir. 2012) (holding that the limitations period established by § 2401(b) is a jurisdictional prerequisite to suit).

As for a medical malpractice claim against Drs. Shedlofsky and Arsenescu, Kentucky law requires such a claim to be filed within one year after the conduct complained of. Ky. Rev. Stat. 413.140(1)(e); Harrison v. Valentini, 184 S.W.3d 521, 523 (Ky. 2005). Because Christensen's claims accrued in 2005 and 2006, his complaint filed in 2011 is filed well beyond the applicable limitations period. In addition, to the extent Christensen is attempting to assert a tort claim under Kentucky law against UKMC arising out of the medical care provided by two of its physicians, such a claim is barred by the governmental immunity afforded by the Kentucky Constitution. Withers v. University of Kentucky, 989 S.W.2d 340 (Ky. 1997) (holding that UKMC is entitled to governmental ...

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