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UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

RENE GARBUTT, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-04-2241

:

UNITED STATES OF AMERICA, :

: (Judge McClure)

Defendant :

MEMORANDUM AND ORDER

July 26, 2005 

Background

Rene Garbutt (“Plaintiff”), an inmate presently confined at the Allenwood

Federal Correctional Facility, White Deer, Pennsylvania, initiated this pro se action

pursuant to the Federal Tort Claims Act (“FTCA”). Named as Defendant is the

United States of America. Service of the complaint was previously ordered. 

Plaintiff alleges that on November 25, 2001, he was assaulted from behind

and knocked unconscious while in the dining hall at the McKean Federal

Correctional Institution, Bradford, Pennsylvania (“FCI-McKean”). As a result of

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the attack, Garbutt allegedly incurred lacerations to his chin and lips which required

12-13 stitches. Plaintiff also states that he suffered injuries to his neck and back. 

His complaint asserts that Correctional Officers Kolwasky and Zapparino

witnessed the assault and failed to intervene. Due to their purported failure to

protect his safety, Garbutt’s assailant was able “to continue uninterrupted until he

beat me unconscious and got tired.” Record document no. 1, ¶ 9. 

X-rays were ordered for Plaintiff’s neck and back injuries on January 4,

2002. However, the x-rays were allegedly not taken until ten (10) months later. 

Garbutt claims that the failure of FCI-McKean correctional officers to intervene in

the assault and the delay with respect to his resulting medical treatment constitute

negligence. 

Presently pending is the Defendant’s motion to dismiss or in the alternative

to transfer this matter to the United States District Court for the Western District of

Pennsylvania. See Record document no. 13. Since Plaintiff has failed to file an

opposing brief, the motion will be deemed unopposed.

Discussion

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

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(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

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1 The notice must be in writing and mailed by either certified or registered mail.

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12(b)(6) of the Federal Rules of Civil Procedure.

Defendant maintains that the Plaintiff’s complaint is time-barred because it

was not filed in this Court until more than six months after he received notice of

the final denial of his administrative tort claim.

The FTCA provides a remedy in damages for the simple negligence of

employees of the United States to protect federal inmates. United States v. Muniz,

374 U.S. 150, 150 (1963). In presenting an FTCA claim, a plaintiff must show: 

(1) that a duty was owed to him by a defendant; (2) a negligent breach of said

duty; and (3) that the negligent breach was the proximate cause of the plaintiff's

injury/loss. Mahler v. United States, 196 F. Supp. 362, 364 (W.D. Pa. 1961),

aff'd, 306 F.2d 713 (3d Cir.), cert. denied, 371 U.S. 923 (1962).

The deadline for seeking judicial review of an FTCA claim is six (6) months

after the date of mailing of notice of the agency’s final denial of the administrative

tort claim.1 28 U.S.C. § 2401(b); see also Pascale v. United States, 998 F. 2d

186 (3d Cir. 1993). As noted above, this statute of limitations begins to run from

the mailing date of the denial. Tuttle v. United States Postal Service, 585 F. Supp.

55 (M.D. Pa. 1983), aff’d, 735 F. 2d 1351 (3d Cir. 1984). A court may not extend

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the six month time period. See United States v. Kubrick, 444 U.S. 111, 117-18

(1979). The time limitations contained in the FTCA are jurisdictional in nature.

Willis v. United States, 879 F. Supp 889, 892 (C.D. Ill. 1994). Thus, a plaintiff’s

failure to sue within the period of limitations recognized by § 240(b) deprives a

court of subject matter jurisdiction. Ahmed v. United States, 30 F.3d 514 (4th Cir.

1994) .

It is undisputed that Garbutt filed an administrative FTCA claim regarding

his present claims. On March 17, 2004, Northeast Regional Counsel for the

Bureau of Prisons (“BOP”) issued a written memorandum advising Garbutt that his

administrative tort claim was denied and that he had six (6) months in which to file

a civil action in the United States District Court. See Record document no. 14,

Exhibit 1, p. 39. Plaintiff acknowledged in writing that he received the denial on

March 31, 2004. See id. at p. 40.

The present complaint was filed on October 12, 2004. An attached

combined declaration and certificate of service signed by Garbutt indicates that he

mailed his complaint to this Court on October 4, 2004. See Record document no.

1, p. 6.

In Houston v. Lack, 487 U.S. 266 (1988), the United States Supreme Court

held that a prisoner’s notice of appeal of a habeas corpus petition was deemed

filed as of the date it was delivered to prison officials for mailing to the court. This

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2 The Eastern District noted its disagreement with a prior decision of that

court, Jackson v. Nicoletti, 875 F. Supp. 1107, 1111-114 (E.D. Pa. 1994), wherein it

was held that the mailbox rule was inapplicable to a prisoner’s civil rights complaint.

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“mailbox rule” resulted from the Court’s concern that prisoners had no choice but

to rely upon prison authorities for the filing of their legal papers. The Court in

Houston also noted that if a question regarding timeliness of a filing date arises, a

prisoner would not likely be able to establish that prison staff were responsible for

any delays in the filing of such papers. See id. at 271. More recently, in Rivers v.

Horn , 2001 WL 312236 *1, n. 1 (E.D. Pa. March 29, 2001), the Eastern District

of Pennsylvania, agreeing with a majority of federal courts, ruled that the Houston

mailbox rule should be extended to the filing of a prisoner’s civil rights complaint.2

 See also Piacentini v. Levangie, 998 F. Supp. 86, 90 (D. Mass. 1998) (“where a

pro se prisoner lacks control over the timely receipt of the complaint by the clerk

of the district court, and uses the official prison mailing system to deliver section

1983 complaint to the clerk of court, the complaint is filed when it is delivered to

prison authorities.”)

Pursuant to the above standards, Plaintiff’s complaint will be deemed filed

as of October 4, 2004. The undisputed record establishes that the BOP’s final

denial of Plaintiff’s administrative tort claim was mailed on March 17, 2004. 

Plaintiff received the notice of final administrative denial on March 31, 2004. 

Clearly, this action was not initiated within six (6) months of the mailing of the final

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administrative denial (on or before September 17, 2004) or even the Plaintiff’s

receipt of the final administrative denial (on or before September 30, 2004).

In conclusion, the Court will grant Defendant’s unopposed motion to

dismiss. Plaintiff’s FTCA complaint, which is barred by the applicable statute of

limitations, will be dismissed for lack of subject matter jurisdiction pursuant to the

standards announced in Ahmad. Consequently,

IT IS HEREBY ORDERED THAT:

1. The Defendant’s unopposed motion to dismiss or to transfer

(Record document no. 14) is granted.

2. Plaintiff’s action is dismissed for lack of subject matter

jurisdiction as being barred by the applicable statute of

limitations.

3. The Clerk of Court is directed to close the case.

4. Any appeal will be deemed frivolous without probable cause

and not taken in good faith.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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