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BELCHER v. U.S.

September 6, 2005.

STEPHEN C. BELCHER, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant.



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

MEMORANDUM AND ORDER

Background

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 remaining Defendant.

  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, ...


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