The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge
Stephen C. Belcher ("Plaintiff"), an inmate presently confined
at the Federal Medical Center, Lexington, Kentucky
("FMC-Lexington") filed this pro se civil action. The
remaining Defendant is the United States of America.
By Memorandum and Order dated January 26, 2005, this Court
construed Plaintiff's amended complaint as a combined civil
rights/Federal Tort Claims Act (FTCA) action and partially
granted the Defendants' motion to dismiss or in the alternative
for summary judgment. Specifically, the motion was granted with
respect to Belcher's civil rights allegations and those claims
were dismissed for failure to exhaust administrative remedies and
as time barred. However, Defendants' motion was denied with
respect to the FTCA portion of the amended complaint and the United States of America was deemed the sole
Plaintiff's amended complaint states that during December,
2000, he was placed in the USP-Lewisburg Special Housing Unit
(SHU) on the grounds that there was "an immediate threat to the
Plaintiff's safety." See Record document no. 13, ¶ 13. On
December 26, 2000, Belcher was physically assaulted by fellow
inmate Robert Dorsey in the SHU shower room.
Dorsey allegedly struck Plaintiff with his metal prosthetic arm
causing a fracture to the orbital bone of Belcher's right eye and
permanent damage to the optic nerve.*fn1 The amended
complaint alleges that the Defendants "had the necessary
information and knowledge to prevent the attack that took place."
Id. at ¶ 20. However, they purportedly conspired to "create a
situation where a violent predator was left unsupervised." Id.
at p. 7, ¶ 5.
Belcher concludes that his injury was the result of "gross
negligence." Id. at p. 7. Furthermore, the Defendants' alleged
negligent conduct was purportedly the proximate cause of his
injuries. The amended complaint also sets forth the procedural
history of his unsuccessful administrative FTCA claim. Discussion
Defendants seek dismissal of the Plaintiff's remaining FTCA
claims on the grounds that: (1) Belcher's assertions regarding
the failure to place him into protective custody and
inappropriate assignment to a penitentiary have not been
administratively exhausted and (2) his allegations are barred by
the applicable statute of limitations.
A court, in rendering a decision on a motion to dismiss, must
accept the veracity of the plaintiff's allegations. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); White v. Napoleon,
897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d
Cir. 1996), the Court of Appeals for the Third Circuit added that
when considering a motion to dismiss based on a failure to state
a claim argument, a court should "not inquire whether the
plaintiffs will ultimately prevail, only whether they are
entitled to offer evidence to support their claims." "[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, 45-46 (1957).
"The test in reviewing a motion to dismiss for failure to state
a claim is whether, under any reasonable reading of the
pleadings, plaintiff may be entitled to relief." Holder v. City
of Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (citation
omitted). Additionally, a court must "accept as true the factual
allegations in the complaint and all reasonable inferences that can be drawn from
them." Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d
Cir. 1990); Independent Enters., Inc. v. Pittsburgh Water &
Sewer Auth., 103 F.3d 1165, 1168 (3d Cir. 1997). Finally, it is
additionally well-settled that pro se complaints should be
liberally construed. Haines v. Kerner, 404 U.S. 519, 520
(1972). This Court will now discuss Defendant's motion in light
of the standards set forth above and Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
I. Administrative Exhaustion
Belcher states that on December 19, 2002, he initiated an
administrative FTCA claim. His amended complaint maintains that
final administrative denial of his FTCA claim occurred on
February 3, 2003. He adds that a request for reconsideration was
submitted on February 7, 2003. After no response was received,
Plaintiff initiated his present action.
Defendant acknowledges that Belcher initiated an administrative
tort claim alleging that prison officials were negligent because:
(1) he was not placed in protective custody until after the
December, 2000 attack, (2) there was no correctional officer on
duty in the shower station at the time of the assault and (3) as
a first time non-violent offender he should not have been placed
in a penitentiary. However, the Defendant contends that Plaintiff
failed to exhaust his available administrative remedies with
respect to his FTCA claims of inappropriate assignment to a penitentiary and failure to be
placed in protective custody prior to the assault by Dorsey.
Defendant's argument initially notes that since the assault by
Dorsey did not occur until December, 2000, the August 24, 2000
date appearing on the Plaintiff's administrative tort claim was
clearly incorrect. In support of their argument they have
submitted a copy of the administrative tort claim. See Record
document 37, Attachment 1. The government adds that Belcher's
administrative tort claim was date stamped as having been
received in the BOP's Northeast Regional office on December 27,
2002. See id. Based on the date of receipt, BOP's Regional
Counsel, by letter dated December 30, ...