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June 17, 2005.

TERRY A. BOYD, Plaintiff
M.V. PUGH, ET AL., Defendants.

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


Plaintiff, Terry A. Boyd ("Boyd"), an inmate incarcerated at the United States Penitentiary at Allenwood, White Deer, Pennsylvania, filed this action on August 9, 2004, alleging Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) civil rights claims in the form of denial of medical treatment, placement of erroneous information in his medical records, and erroneous responses to his administrative remedy requests. Also included is a denial of medical treatment under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. Presently pending is Defendants' motion to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to FED.R.CIV.P. 12(b)(6), and for summary judgment pursuant to FED.R.CIV.P 56. (Doc. 17). The motion is presently ripe for disposition. For the reasons set forth below, the motion to dismiss will be granted in part and denied in part, and the summary judgment motion will be granted.

I. Motion to Dismiss.

  A. Standard of Review.

  When evaluating a motion to dismiss, the court must accept all material allegations of the complaint as true and construe all inferences in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court assumes the truth of plaintiff's allegations, and draws all favorable inferences therefrom. See, Rocks v. City of Philadelphia, 868 F.2d. 644, 645 (3d. Cir. 1989). A complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 44-46 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A complaint that sets out facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976).

  B. Discussion.

  1. FTCA.

  To the extent that Plaintiff seeks to pursue denial of medical treatment under the FTCA Defendants seek to dismiss the complaint for failure to file the complaint within the applicable statute of limitations. An action under the FTCA must be brought within six months of the final denial of the claim. See 28 U.S.C. § 2401(b). Boyd filed an administrative tort claim which was received by the BOP Regional Office on June 2, 2003. (Doc. 20-1, p. 19). Boyd amended the claim on June 20, 2003. The claim was denied on November 26, 2003. (Id.). The pertinent portion of the denial of the claim is as follows:
After careful review of this claim, I have decided not to offer a settlement. Investigation reveals you have a history of several medical conditions, including right leg trauma and reconstruction. On February 25, 2003, you reported to medical staff you injured your right leg when you slipped and fell on the ice on February 17, 2003. The medication you requested is not authorized by the national formulary. You were, however, provided with adequate medication to provide you pain relief. A review of the medical record indicates you received appropriate treatment for the symptoms you presented. The record does not reflect you reported icy conditions or a slip and fall to any staff member on February 17, 2003. You fail to show you have experienced an injury as the result of the negligence on the part of any Bureau of Prisons' employee.
Accordingly, your claim is denied. If you are dissatisfied with this decision, you may seek reconsideration from this office or bring an action against the United States in an appropriate District Court within six (6) months of the date of this memorandum.
(Doc. 20-1, p. 20). It was therefore necessary for Boyd to file this action on or before May 26, 2004. Boyd did not file this action until August 9, 2004. The Court is unconvinced by Boyd's argument that his delay in filing was due to the fact that he did not receive the denial letter until February 2004. As is clear from the record, the memorandum denying the claim was marked as received on December 1, 2003 at Allenwood. (Doc. 26, p. 2; see also, id.). Also, as Defendants point out, even if Boyd did not receive the notice until February 2004, that still afforded him more than three months to file the action. Lastly, the language contained in the memorandum denying the claim clearly states that an action against the United States must be filed within six months of the date of the memorandum, not within six months of receipt of the memorandum. It is clear that this claim was brought after the six-month limitations period expired. The FTCA claim is therefore subject to dismissal.

  2. Bivens claim.

  The Defendants seek to dismiss Boyd's Bivens claims regarding erroneous information noted in his medical records and erroneous responses to his administrative remedy based upon his failure to exhaust available administrative remedies. The Prison Litigation Reform Act (PLRA) requires prisoners to present their claims through an administrative grievance process before seeking redress in federal court. The act specifically provides the following:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Prisoners must exhaust administrative remedies as to any claim that arises in the prison setting, regardless of any limitations on the kind of relief that may be gained through the grievance process. See Porter v. Nussle, 534 U.S. 516, 532 (2002): Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). "[I]t is beyond the power of [any] court . . . to excuse compliance with the exhaustion requirement." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998).

  The PLRA requires not only technical exhaustion of the administrative remedies, but also substantial compliance with procedural requirements. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004); see also Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).

  The BOP has established an administrative remedy procedure, which is set forth at 28 C.F.R. §§ 542 et seq., whereby a federal prisoner may seek formal review of any aspect of his imprisonment. Inmates must first informally present their complaints to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. Id. at § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. Id. at §§ 542.15(a) and 542.18. "If the appeal is denied by the Bureau of Prisons's Central Office, the inmate may then file a civil action." (Doc. 20-1, p. 4).

  On March 18, 2003, Boyd filed an administrative remedy request concerning the medical care that he was receiving for his legs, which was assigned number 293764-FI. The Defendants concede that through this request, Boyd successfully administratively exhausted the issue of improper medical care in violation of the Eighth Amendment. (Doc. 20-1, p. 4). However, there is no indication in the record that Boyd has exhausted his administrative remedies concerning any of the other claims he raises in his complaint. (Id. at p. 6). Boyd does not dispute this. Therefore, all claims with the exception of the claim alleging denial of adequate medical care will be dismissed. The adequate medical care claim will be considered on the merits.*fn1

  Defendants also seek to dismiss the Eighth Amendment claim against Defendants Pugh and Laino based upon lack of personal involvement. "A defendant in a civil rights action must have personal involvement in the alleged wrongs. . . . Personal involvement may be shown through allegations of personal direction or actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Also, it is well established that claims brought under § 1983 cannot be premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in Rode:
A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.
Rode, 845 F.2d ...

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