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Thrower v. United States

United States District Court, E.D. Kentucky, Southern Division, London

October 28, 2014




William Thrower is a federal inmate presently confined at the Federal Correctional Institution in Talladega, Alabama ("FCI-Talladega"). Prior to his transfer to FCI-Talladega, Thrower has been confined in various other federal correctional institutions, including the Medical Center for Federal Prisoners located in Springfield, Missouri ("FMC-Springfield"). While housed at FMC-Springfield, Thrower, proceeding pro se, filed this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80, in the Western District of Missouri on July 21, 2011. See William Thrower v. United States of America, et al., No. 11-3268-CV-S (W.D. Mo. 2011) [R. 1]. On August 25, 2011, the Western District of Missouri transferred the action to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404. [R. 3]. On October 19, 2011, that Court severed Thrower's claims relating to events which transpired at USP-Lewisburg and transferred the remaining claims, which arose from an incident(s) and/or conduct occurring at USP-McCreary, while Thrower was confined there, to this Court pursuant to 28 U.S.C. § 1406(a).[1] [R. 13; R. 14].

As to the claims relating to USP-McCreary, Thrower alleges that on or about August 22, 2008, he was injured in a slip-and-fall incident while working in the kitchen at USP-McCreary. Thrower also claims that prison personnel used excessive force and "tossed me into the back seat" of a van in order to transport him to a medical facility for treatment after the slip-and-fall incident at the prison, causing him further pain. [R. 1 at 4]. Second, Thrower alleges that on a separate occasion, during the time he had been placed in the Special Housing Unit at USP-McCreary, prison personnel placed an intoxicated inmate in his cell who, once his handcuffs had been removed, attacked him. Third, Thrower alleges that on yet another occasion he was placed in four-point restraints after he informed an officer that he had a bottom bunk pass. [R. 1 at 5]. Fourth, Thrower contends he was transferred to the Special Management Unit at USP-Lewisburg without a proper pre-transfer hearing.

The Court screens complaints filed by prisoners which assert claims against governmental entities or employees, pursuant to 28 U.S.C. § 1915A(a), which requires a district court to dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Id .; McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). For the reasons stated below, all claims raised herein will be dismissed.


On page 1 of his Complaint, Thrower clearly indicates that he filed this action pursuant to the FTCA, 28 U.S.C. §§ 2671-80. [R. 1, page 1]. Title 28 U.S.C. § 1346(b) grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity and "render[ed]" itself liable. Richards v. United States, 369 U.S. 1, 6 (1962). The FTCA is within that category of claims.

However, a fair reading of the Complaint suggests that in addition to his FTCA claim, he is also attempting to assert, within this FTCA action, constitutional claims pursuant to the doctrine announced in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). A Bivens claim is an implied right of action allowing plaintiffs to sue federal agents acting under color of federal authority for civil rights violations. It is analogous to its statutory cousin, 42 U.S.C. § 1983[2], which allows federal suits against state agents who commit civil rights violations while acting under color of state law. The required elements of a Bivens claim are (1) the conduct complained of was by a person acting under color of law, and (2) the conduct deprived that person of a right, privilege, or immunity secured by the Constitution. See, e.g., Grohman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (describing elements of a § 1983 claim).

"[A] Bivens action does not lie against either agencies or officials in their official capacity." Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002). This well-settled rule of law is because a suit against a federal agency or a federal official in his or her official capacity is essentially a suit against the United States. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 61 (1989). As a sovereign, the United States is immune from suit except when it consents to abrogate that immunity. The immunity is jurisdictional in nature. FDIC v. Meyer, 510 U.S. 471, 475 (1994).



The Court first considers Thrower's Bivens claims. Regardless of the merit any of Thrower's Bivens claims may have, these claims cannot be considered within the confines of Thrower's FTCA action. Thrower is free to file such claims in a separate action, and it appears that he has already done so. On July 13, 2011, one week before he filed the present FTCA action, Thrower filed a separate action seeking injunctive relief in the Western District of Missouri. Thrower v. U.S. Bureau of Prisons, et al., No. 11-3267-CV-S-DW-P (W.D. Mo. 2011).[3] In an Amended Complaint filed on August 22, 2011, Thrower named the Warden at USP-McCreary, the Warden at USP-Lewisburg, EMS, et al., as additional defendants therein. [ Id. at R. 7 therein] As it did with the present action, on September 21, 2011, the court in the Western District of Missouri transferred this action to the Middle District of Pennsylvania. Thrower v. Bureau of Prisons, No. 1:11-CV-1759 (M.D. Pa. 2011). That court, in turn, transferred that action to this Court on October 24, 2011. Thrower v. U.S. Bureau of Prisons, No. 6:11-CV-291-GFVT (E.D. Ky. 2011).

Subsequently, in a Memorandum Opinion and Order entered on May 31, 2012, this Court screened and considered the merits of Thrower's Bivens claims raised in Thrower v. U.S. Bureau of Prisons, No. 6:11-CV-291-GFVT (E.D. Ky. 2011). [R. 25 therein]. For the reasons stated, the Court dismissed with prejudice any and all Bivens claims asserted therein related to events occurring at USP-McCreary involving Thrower in 2008 and 2009, prior to his transfer to USP-Lewisburg, and entered judgment in favor of the defendant Warden at USP-McCreary. [R. 25 therein; R. 26 therein]. Thrower appealed that dismissal to the United States Court of Appeals, but on September 11, 2012, his appeal was dismissed for want of prosecution. [R. 29 therein].

For these reasons, the Court need not consider Thrower's Bivens claims raised in this FTCA action because these same claims were previously considered and dismissed in the foregoing action, Thrower v. U.S. Bureau of Prisons, No. 6:11-CV-291-GFVT (E.D. Ky. 2011). [R. 25 therein]. These same Bivens claims must be dismissed from the present action under the doctrine of res judicata. Where there has been a prior decision on the merits of a claim raised in another proceeding, the parties are bound by that decision. Schreiber v. Philips Display Components Co., 580 F.3d 355, 367 (6th Cir. 2009). Thus, under the doctrine of res judicata, Thrower is bound by the Court's prior ruling on these same claims raised ...

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