United States District Court, M.D. Pennsylvania
September 28, 2005.
LASCELL SIMMONS Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
On June 30, 2003, Plaintiff, Lascell Simmons, an inmate
formerly housed at United States Penitentiary at Allenwood
("USP-Allenwood"), filed the present action asserting both
Bivens claims*fn1 and claims under the Federal Tort Claims
Act (hereinafter "FTCA"), 28 U.S.C. § 2671, et seq. Simmons
alleges that on July 3, 1998, while housed at USP-Allenwood,
defendants failed to protect him from being assaulted by his
cellmate. Simmons seeks monetary relief. Named as defendants are
Chris Adams, Jonathan Grill, Allen Stevenson, Steven Hannis, John Fanello, Kathleen Hawk Sawyer, and
Presently before the Court is Defendants' Second Motion to
Dismiss the Amended Complaint raising, inter alia, the
following arguments: (1) Simmons' claims under the FTCA are
barred by the applicable statute of limitations due to his
failure to timely present his tort claim to the Bureau of Prisons
("BOP"); and (2) Simmons' Bivens claims also are time barred as
they were filed more than two years after the assault. For the
following reasons, Defendants' motion will be granted and the
action will be dismissed.
As alleged in the amended complaint filed on September 7, 2004,
Simmons suffered a stroke in 1989 that has hindered him in all
aspects of his life. On July 3, 1998,*fn2 Plaintiff and his
cellmate, Holliway, were handcuffed by staff and escorted from
their USP-Allenwood Special Housing Unit cell to a recreation
area. While on the way to the recreation area, Holliway declined
the opportunity to exercise and was return to his cell. After a
period of recreation, Officer Hannis handcuffed Simmons behind
his back and escorted him to his cell. Without requiring Holliway
to be handcuffed, and while Simmons remained handcuffed, Hannis
opened Simmons' cell door and ordered him to enter. When Simmons
complied with this order, the cell door was shut. Prior to the
officer removing Simmons' handcuffs, Holliway attacked Simmons with a sharp object. As a result of his injuries, Simmons
was transported to an outside hospital where he received over 100
stitches and staples to patch his numerous wounds.
Plaintiff claims that on several occasions prior to the
assault, inmate Holliway told defendants Stevenson, Grill, and
Adams that "he was going to hurt somebody if he did not get
transferred out of U.S.P. Allenwood." The remaining defendants
(Fanello, Hawk-Sawyer, and Ashcroft) are alleged to be
"responsible for making sure all rules, regulations, policies, or
code of federal regulations are received and understood by all
B.O.P. personnel employed within U.S.P. Allenwood."
III. Relevant Procedural History.
In June of 2000, almost two years after the alleged
altercation, Simmons previously filed a Bivens-civil rights
complaint asserting a failure to protect claim arising out of the
July 3, 1998 incident, Simmons v. Doe, 3:CV-00-1078 (M.D. Pa.
2000), which was dismissed sua sponte for failure to exhaust
administrative remedies.*fn3 The Third Circuit Court of
Appeals affirmed this ruling, see Simmons v. Doe, No. 00-4382
(3d Cir. June 18, 2001) (unpublished). Simmons then began pursuing BOP administrative remedies in July
2001. (Dkt. Entry 43.) Simmons avers that his administrative
complaints were rejected as untimely.*fn4 Simmons also avers
that in 2002 he filed an administrative tort claim, which was
rejected because filed after the applicable two year limitations
period had expired. (Id.)
Simmons initiated his present action on June 30, 2003. After
reviewing the voluminous Complaint, I directed Simmons to file an
amended complaint, which he did on November 12, 2003. (See Dkt.
Entries 10 and 14.) After service of the Amended Complaint,
Defendants filed a Motion to Dismiss. (Dkt. Entry 27.) Simmons
then attempted to file a second amended complaint which was
inadvertently filed as a separate action.*fn5 Because the
two actions dealt with the 1998 assault, but asserted different
claims against varying defendants, I consolidated the actions and
granted Simmons the opportunity to file one all-inclusive amended
complaint. In the same Order I dismissed Defendants' motion to
dismiss without prejudice. (Dkt. Entry 41.) On September 7, 2004,
Simmons filed a second amended complaint (Dkt. Entry 43), which
is the standing complaint in this action. (Dkt. Entry 47.) The
United States was not included as a defendant in the second
Defendants filed their Second Motion to Dismiss on December 6,
2004. (Dkt. Entry 55.) After Simmons was granted several
enlargements of time to file a brief in opposition to defendants' potentially dispositive motion, I directed Simmons
to file his opposition brief by May 31, 2005, or the motion would
be granted as unopposed. Without requesting another extension of
time, or offering any explanation for his tardy response, Simmons
filed a brief in opposition to Defendants' Second Motion to
Dismiss on July 1, 2005. (Dkt. Entry 68.)
IV. Standard of Review.
In deciding a Rule 12(b)(6) motion, the court must accept all
material allegations of the complaint as true and construe all
inferences in the light most favorable to the plaintiff. See
Mariana v. Fisher, 338 F.3d 189, 195 (3d Cir. 2003). Claims may
be dismissed pursuant to Rule 12(b)(6) only if the plaintiff
cannot demonstrate any set of facts that would entitle him to
relief. Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir.
2004). Also, in a pro se case, the court must be mindful of
the well-settled principle that the complaint should be liberally
construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). Finally,
a litigant should be granted leave to amend, but not if amendment
would be inequitable or futile. Alston v. Parker, 363 F.3d 229,
235 (3d Cir. 2004).
A. Simmons' FTCA Claim.
The Defendants contend that I lack subject matter jurisdiction
over Simmons' FTCA claims because he did not timely present his
administrative tort claim to the BOP. Plaintiff avers that he
filed his tort claim with the BOP on July 5, 2002,
TRT-NER-2002-10160, which was rejected "because plaintiff failed to file within the
two year time limit." (Dkt. Entry 43.)
The FTCA expressly provides:
A tort claim against the United States shall be
forever barred unless it is presented in writing to
the appropriate Federal agency within two years after
such claim accrues or unless action is begun within
six months after the date of mailing, by certified or
registered mail, of notice of final denial of the
claim by the agency to which it was presented.
28 U.S.C. § 2401. Plaintiff's administrative tort claim was
Plaintiff does not dispute this fact. Instead, he indicates in
his opposition brief that he has deliberately abandoned any claim
under the FTCA. (Brief in Opposition to Defendants' Motion to
Dismiss/Motion for Summary Judgment (Dkt. Entry 68) the "United
States of America [was] dropped".)*fn6 Under these
circumstances, the motion to dismiss the FTCA claim as
time-barred will be granted.
B. Simmons' Bivens Claim.
Simmons alleges that on July 3, 1998, Defendants failed to
protect him from assault by his former cellmate. Simmons alleges
that Defendants knew that the cellmate would "hurt somebody if he
did not get transferred out of USP-Allenwood." (Dkt. Entry 43.) Defendants contend that Simmons' Bivens action is barred by the
statute of limitations as it was not filed before July 3, 2000.
(Dkt. Entry 57.)
The statute of limitations applicable to a Bivens claim is
the state statute of limitations for personal injury claims.
Howard v. Mendez, 304 F. Supp. 2d 632, 635 (M.D. Pa. 2004)
(citing Napier v. Thirty or More Unidentified Federal Agents,
855 F.2d 1080, 1087 n. 3 (3d Cir. 1988)). In Pennsylvania, claims
brought pursuant to § 1983 are governed by a two-year statute of
limitations. Garvin v. City of Philadelphia, 354 F.3d 215, 220
(3d Cir. 2003). The statute of limitations "begins to run from
the time when the plaintiff knows or has reason to know of the
injury which is the basis of the Section 1983 action." Genty v.
Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991)
Simmons had two years from the date of his injury in which to
commence his Bivens action, or in other words, until July 3,
2000. Putting aside for now the effect of the fact that Simmons
may have procedurally defaulted any administrative remedy by his
delay, it is clear that Simmons did not initiate this action
until June 30, 2003, almost three (3) years beyond the applicable
statute of limitations.
Simmons offers no argument as to why this action should not be
dismissed as untimely. (See Dkt. Entries 68 and 70.) Simmons'
initial action, Simmons v. Doe, 3:CV-001-078 (M.D. Pa. 2000),
which was originally dismissed without prejudice, did not toll
the statute of limitations. Jones v. Morton, 195 F.3d 153, 160
(3d Cir. 1999); Cardio-Medical Assocs. v. Crozier-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983).
"Traditionally, a statute of limitations is not tolled by the
filing of a complaint that is subsequently dismissed without
prejudice." Jones, 195 F.3d at 160. Another avenue of exploration
is the possible tolling of the limitations period during the
pendency of a Simmons' administrative remedies made mandatory by
42 U.S.C. § 1997e.*fn7 Unfortunately, this basis for tolling
is unavailable to Simmons as he did not commence his exhaustion
efforts until July 22, 2001, more than one (1) year after the
limitations period had expired.*fn8 Even if the extended
limitations period of 42 Pa. Cons. Stat. Ann. § 5535(a)(1) were
applicable here,*fn9 dismissal of this action would be
warranted because it is evident that Simmons had procedurally
defaulted the requisite administrative remedy process by not filing a grievance until more than three years after the
incident in question. See Spruill v. Gillis, 372 F.3d 218,
231-32 (3d Cir. 2004). Furthermore, Simmons did not file this
action until more than one year after he concluded the
administrative process, and 42 Pa. Cons. Stat. Ann. § 5535(a)(1)
extends the filing period by only one year. Thus, even if the
extended one year statute was tolled while he pursued his
administrative claims, see Howard, 304 F. Supp. 2d at 638,
Simmons waited too long to return to this Court. As such,
Simmons' Bivens action to recover for injuries purportedly
sustained in the alleged July 3, 1998 assault, must be dismissed
For the reasons set forth above, Defendants' Motion to Dismiss
will be granted. An appropriate Order follows.*fn10 ORDER
AND NOW, this 28th day of SEPTEMBER, 2005, for the reasons
set forth in the foregoing Memorandum, IT IS HEREBY ORDERED
1. Plaintiff's Motions for Appointment of Counsel
(Dkt. Entries 62 and 69) are DENIED.
2. Defendants' Second Motion to Dismiss (Dkt. Entry
55), is GRANTED.
3. The Clerk of Court shall close this file.
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