IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ALANI OLUSEGUN ARAWOLE, §

(BOP #32837-037) §

VS. § CIVIL ACTION NO.4:04-CV-506-Y

§

LINDA HEMINGWAY, § 

Chief Therapist, §

Rehabilitation Department, §

FCI–-Fort Worth, et al. §

OPINION AND ORDER

 GRANTING MOTION TO SUBSTITUTE UNITED STATES; GRANTING MOTION 

 TO DISMISS, IN PART; DENYING MOTIONS FOR LEAVE; and 

 PROVIDING PLAINTIFF AN OPPORTUNITY TO AMEND COMPLAINT 

 Plaintiff Alani Olusegun Arawole proceeds in this case under

28 U.S.C. § 1915 and, as he sought redress against a government

entity and employees, the court has already dismissed several

claims and parties under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) and

under 28 U.S.C. § 1915A(b)(1). Pursuant to orders of this Court,

the live pleadings are Arawole’s July 6, 2004, form complaint, and

his July 7, 2005, supplemental complaint. Excluding the claims and

defendants already dismissed, here Arawole asserts claims under the

Federal Tort Claims Act (“FTCA”) and alleges violations of his

constitutional rights arising out of the failure to provide to him

open-toed shoes, a certain kind of wheelchair, and any wheelchair

at all while he was in transit to and within Baltimore for a

hearing. Arawole also alleges that defendant Hemingway violated

his constitutional rights by retaliating against him. 

Now pending before the Court are several motions related to

the status of the pleadings and the appropriate parties to this

 

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2

action. The government has filed a motion to substitute the United

States of America for defendant Linda Hemingway on the claims under

the Federal Tort Claims Act (“FTCA”), along with a brief in

support, and an appendix in support. The defendants also filed a

motion to dismiss, along with a brief in support and an appendix.

Arawole filed a document on January 6, 2006, entitled “motion of

response,” which the Court has construed as a combined response to

the motion to substitute and the motion to dismiss. Arawole filed

on January 6 a motion for leave to file a supplemental and updated

complaint, without the proposed filing attached, but he then filed

essentially the same motion again on January 18, this time with a

forty-five-page proposed “supplemental complaint” attached thereto.

The defendants filed a response to Arawole’s motion for leave, and

Arawole then filed a reply. 

Substitution

The Court considers first the motion to substitute. Arawole

has raised a claim under the FTCA for the actions of defendant

Linda Hemingway. The FTCA provides that the jurisdiction authorized

under 28 U.S.C. § 1346(b) for civil actions for loss of property,

personal injury, or death caused by the negligent or wrongful act

or omission of any employee of the government while acting within

the scope of his employment, is an exclusive remedy against the

 

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128 U.S.C.A. § 1346(b)(West Supp. 2006);28 U.S.C.A. § 2679(b)(1)(West

1994).

228 U.S.C.A. §§ 2679(b)(1) and (2)(A)(West 1994).

328 U.S.C.A. § 2679(d)(2)(West 1994). 

4United States v. Testan, 424 U.S. 392, 399 (1976).

5Lehman v. Nakshian, 453 U.S. 156, 161 (1981)(citations omitted).

3

United States.1 Any other tort action against the employee is

precluded, although a civil action against a government employee

brought for a violation of the Constitution is not.2

 The United

States is to be substituted as the party defendant on the FTCA

action in any suit where the attorney general certifies that the

employee defendant was acting within the scope of his employment.3

In this case, the United States attorney, Richard B. Roper, by

delegation of the attorney general, has certified that Linda

Hemingway was acting within the scope of her employment. Thus, the

motion to substitute will be granted, and the United States will be

substituted for Linda Hemingway as to the plaintiff’s FTCA claims.

Dismissal--FTCA Claims

The United States is immune from suit unless it consents to be

sued, and the terms of such consent, or waiver of its sovereign

immunity, “define [the] Court’s jurisdiction to entertain the

suit.”4 The Supreme Court has recognized that “limitations and

conditions upon which the Government consents to be sued must be

strictly observed and exceptions thereto are not to be implied.”5

One of the prerequisites to filing suit under the FTCA is that the

 

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628 U.S.C.A. § 2675(a)(West 1994). 

728 U.S.C.A. § 2401(b)(West 1994). 

8Scott v. United States Veteran’s Admin., 929 F.2d 146, 147 (5th Cir. 1991),

citing Vernell v. United States Postal Service, 819 F.2d 108, 111 (5th Cir.

1987). 

9This case was opened as a new civil action after Arawole filed a motion

to reopen with a complaint attached thereto in a prior suit, as discussed in the

text below. 

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claimant must have first presented the claim to the appropriate

federal agency, and have obtained either a written denial or have

waited six months after filing, whereupon the agency decision may

be deemed a final denial.6

 Thereafter, the complainant’s suit must

be commenced within six months of the date of mailing of the notice

of final denial by the agency to which the claim was presented.7

The six-month limitations period begins the day after the denial

notice is sent and expires at the conclusion of the day before the

same calendar date six months later.8

The government argues that, as to Arawole’s claims for which

he sought administrative review, he has filed this suit beyond the

six-months deadline, and that the Court is thus without subjectmatter jurisdiction. Arawole provided as an attachment to his

complaint the December 1, 2003, final denial letter from the Bureau

of Prisons (“BOP”) regarding his claims for Hemingway’s failure to

provide him open-toed shoes. This suit was file-stamped by the

clerk of Court on July 6, 2004.9 But under the mailbox rule, it is

deemed filed as of the date that Arawole submitted it to prison

 

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10Cooper v. Brookshire, 70 F.3d 377, 378 (5th Cir.), reh’g en banc den’d,

77 F.3d 481 (5th Cir. 1995).

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authorities for forwarding to the clerk of Court.10 Arawole

certified that he placed this suit in the mailbox at his

institution on June 28, 2004. Accordingly, it will be deemed filed

that day, a date several weeks beyond the six-months deadline. 

Arawole notes that he filed a prior suit in this Court raising

many of the same claims, including the “open-toed-shoe” claim at

issue here. Arawole did, in fact, file suit on December 15, 2003,

in case number 4:03-CV-1464-Y, Arawole v. Heimanway. After the

entry of initial orders to assess and authorize the collection of

the filing fee under the Prison Litigation Reform Act (“PLRA”),

this Court directed Arawole, on February 4, 2004, to file an

amended form complaint. Arawole sought an extension, which the

Court granted until April 1, 2004, but Arawole never filed the

amended complaint. On April 20, 2004, Arawole’s suit was dismissed

for lack of prosecution based upon Arawole’s failure to file the

complaint or otherwise respond to the Court’s order. On July 6,

2004, the Court denied Arawole’s motion to reopen the suit, but

directed that the complaint submitted with his motion be opened as

a new civil action, which became the instant suit. 

Arawole argues, without so characterizing it, for tolling of

the six-month limitations period while the prior suit was pending.

This argument must fail for several reasons. First, it is well

 

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11See Williams v. Cook, 264 F.3d 1142 (5th Cir. 2001)(“While the filing of

an action normally tolls the statute of limitations, its dismissal without

prejudice leaves the plaintiff in the same position as if the action had never

been filed”), citing Lambert v. United States, 44 F.3d 296, 298-300 (5th Cir.

1995).

12Lambert, 44 F.3d at 299-300.

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settled that a dismissal without prejudice for failure to prosecute

does not toll the statute of limitations.11 In Lambert v. United

States, the court of appeals expressly rejected the claim that an

individual should receive equitable tolling credit for a prior suit

filed timely under the FTCA within six-months of administrative

denial, but dismissed for failure to prosecute because the

Plaintiff had not obtained sufficient service upon the proper

defendants, when the same claims were later refiled outside the

six-month period.12 Based on this precedent, it does not appear that

equitable tolling should apply. 

Furthermore, even if Arawole is extended undeserved

consideration under principles of equity, he is not entitled to

such tolling. When Arawole sought to reopen the prior case, he

provided a document prepared by his case manager indicating that

Arawole was hospitalized for three weeks in March and April 2004.

(Compl.; Martin Weinfuss Memorandum attachment.) That document was

dated May 7, 2004, but, without explanation, not submitted to the

Court until June 28. Likewise, Arawole has never shown why he

delayed from the April 20 dismissal of the prior suit until June 28

to file the new complaint. 

 

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Finally, a review of the claims made in the prior suit does

not include any reference to the “Federal Tort Claims Act,” the

“FTCA” or any of its statutory citations, and there is no textual

support for an intent to bring suit under the FTCA. (Arawole v.

Heimanway, 4:04-CV-1464-Y, Dec. 15, 2003 Complaint.) Although

Arawole attached to the complaint his denial-of-claim letter from

the BOP, the complaint itself did not indicate that Arawole was

trying to file an FTCA action. Rather, Arawole’s initial claims

arising out of the “denial-of-open-toed-shoes” issue were for

violations of the Americans with Disabilities Act and the

Rehabilitation Act of 1973. Thus, Arawole is not entitled to

tolling credit for the prior suit filed in this Court. 

 With regard to any claims under the FTCA based upon an alleged

denial to provide Arawole a wheelchair or to provide him an

adequate wheelchair, Arawole has wholly failed to show that he

sought administrative review of such claim or obtained a final

denial from the BOP as required under 28 U.S.C. § 2675(a). 

Thus, after review and consideration of the motion to dismiss

and response, the Court concludes that all of Arawole’s claims

under the FTCA must be dismissed for lack of subject-matter

jurisdiction. 

Dismissal--42 U.S.C. § 1997e(a) Exhaustion

Defendant Hemingway also has moved to dismiss Arawole’s claims

against her for violation of constitutional rights under Bivens v.

 

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13403 U.S. 388, 297 (1971). Bivens, of course, is the counterpart to 42

U.S.C. § 1983, and extends the protections afforded under § 1983 to parties

injured by federal actors. See Evans v. Ball, 168 F.3d 856, 863 n. 10(5th Cir.

1999) (“A Bivens action is analogous to an action under § 1983--the only

difference being that § 1983 applies to constitutional violations by state,

rather than federal officials.”),citing Abate v. Southern Pacific Transp. Co.,

993 F.2d 107, 110 n. 14 (5th cir. 1993). 

14The administrative remedy provisions applicable to a claim under the

Federal Tort Claims Act are set out at 28 C.F.R. §§ 543.30-32(2005) and 28 C.F.R.

§ 14.1-14.11 (2005).

1542 U.S.C.A. § 1997e(a)(West Supp. 2006).

16Booth, 532 U.S. at 738-41.

8

Six Unknown Named Agents of the Federal Bureau of Narcotics

(“Bivens”)13 on the basis that he has failed to exhaust

administrative remedies. In addition to the specific requirement

of administrative review as a pre-condition to filing an FTCA claim

discussed above,14 the PLRA now requires that “[n]o action shall be

brought with respect to prison conditions under [42 U.S.C. § 1983],

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.”15 In Booth v. Churner,

532 U.S. 731 (2001), the Supreme Court held that Congress intended

a prisoner to invoke whatever administrative grievance remedies are

available within a jail or prison, without regard to whether the

grievance procedure affords money-damage relief, before he may file

suit contesting prison conditions in federal court.16 The Supreme

Court has also held that this exhaustion requirement “applies to

all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege

 

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17Porter v. Nussle, 534 U.S. 516, at 532 (2002).

18Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001), citing Booth,

532 U.S. at 741 n.6.

19See Woodford v. Ngo, 126 S.Ct. 2378, 2382-2389 (2006).

2028 C.F.R. § 542.10 (2005).

9

excessive force or some other wrong.”17 As the Court of Appeals for

the Fifth Circuit has since explained: 

Quibbles about the nature of a prisoner’s complaint, the

type of remedy sought, and the sufficiency or breadth of

prison grievance procedures were laid to rest in Booth.

Justice Souter summed up the Court’s conclusion in a

footnote:

Here, we hold only that Congress has provided

in § 1997e(a) that an inmate must exhaust

irrespective of the forms of relief sought and

offered through administrative avenues.18

And, at the conclusion of its most recent term, the Supreme Court

held that the exhaustion required by 1997e(a) is “proper

exhaustion” meaning that the inmate must complete whatever

administrative review steps are provided in accordance with the

applicable procedural rules, without any exception for untimely,

unavailable, or procedurally defective attempts at exhaustion.19

As he is confined within a BOP facility, Arawole must first

exhaust administrative remedies on all of his prison-condition

claims through the BOP. The federal Administrative Remedy Program

established by the BOP is one through which an inmate may seek

formal review of issues that relate to his confinement.20 Under the

Administrative Remedy Program, the inmate is to first submit a

complaint informally to institution staff and, if the complaint is

 

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21See 28 C.F.R. §§ 542.14-15 (2005). The three steps beyond the informalresolution stage take the complainant to the institution's administrator

(warden); then if dissatisfied, through appeal to the regional director; and, if

the inmate remains dissatisfied, then finally to the general counsel. 

22Irwin v. Hawk, 40 F.3d 347, 349 n.2 (11th Cir. 1994), cert denied, 516

U.S. 835 (1995). 

23Alexander v. Tippah County, 351 F.3d 626, 630 (5th Cir.2003) (citations

and internal quotation marks omitted), cert. denied, 541 U.S. 1012 (2004).

10

not resolved to his satisfaction, the inmate must commence a threetiered administrative procedure within the BOP.21 An inmate has not

fully exhausted this administrative program until he has appealed

through all levels.22

In response to the motion to dismiss on the basis of lack of

exhaustion, Arawole contends that as to his claims about the

failure to provide him a wheelchair, he was initially unable to

commence the informal review process because he “could not get the

forms from the hospital or jail,” and he then blames a counselor

for failing to provide him the BP-9 form because it was more than

20 days after the incident. (Response at 6.) Arawole contends that

the counselor should have given him the form to fill out, and that

the counselor’s failure to do so violated his right to due process

and prevented him from seeking administrative review related to the

wheelchair issues. (Response at 6.) But this Court is not permitted

to “inquire whether administrative procedures satisfy minimum

acceptable standards of fairness and effectiveness”; rather,

prisoners simply “must exhaust such administrative remedies as are

available, whatever they may be.”23 Even if Arawole’s counselor

 

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24See generally Id. (“While it may be true that the Detention Facility’s

guards did not give Alexander a pre-printed grievance form, this does not change

the fact that he was provided with the means to write one himself.”) Although,

in Holloway v. Gunnell, 685 F.2d 150, 154 (5th Cir. 1982), the Fifth Circuit

recognized that the exhaustion requirement may be excused where prison officials

ignore or interfere with an inmate’s pursuit of exhaustion, that opinion preceded

the amendments to 1997e(a) resulting from the passage of the PLRA. Since the

passage of the PLRA, the Fifth Circuit has explained that although the prior

version of § 1997e, as interpreted by the Supreme Court in McCarthy v. Madigan,

503 U.S. 140, 149-50 (1992), “contained a `limited’ exhaustion requirement that

courts had `ample discretion’ to forgo [. . .] [i]n contrast, the current version

at issue here provides no such discretion–-exhaustion is mandatory.” Clifford v.

Gibbs, 298 F.3d 328, 332 (5th Cir. 2002)(other citations and quotations omitted).

Even to the extent the Holloway opinion may still have precedential value,

Arawole has not claimed that an official ignored, interfered, or thwarted any

attempt by him to exhaust as to his lack-of-wheelchair claims. 

25See Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir. 1998).

11

failed to provide him a form, this does not change the fact that

Arawole could have obtained one and completed it himself, once he

was returned to his institution.24 

Arawole’s failure to exhaust his claim against government

defendant Hemingway with respect to the wheelchair access renders

such claim for relief premature. By choosing to file and pursue a

lawsuit before meeting the section 1997e exhaustion-ofadministrative-remedies requirement as to claims arising “with

respect to prison conditions,” plaintiff Arawole has sought relief

to which he was not entitled.25 Because Arawole’s filing of such

claims presently lacks an arguable basis in law, it may be

dismissed for failure to state a claim upon which relief may be

 

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26The Court notes that under its authority under 28 U.S.C. § 1915

(e)(2)(B)(ii), it may also dismiss Arawole’s retaliation claim for failure to

state a claim upon which relief may be granted. Although Arawole has asserted

a distinct claim in his supplemental complaint against Hemingway based upon

alleged retaliation for his complaints about her other actions, he has not shown

that he pursued administrative exhaustion as to any retaliation claim. Thus, the

retaliation claim will also be dismissed as required by 42 U.S.C. § 1997e(a). See

Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir.2001) (affirming the district

court's dismissal of a retaliation claim for failure to exhaust).

27See Schultea v. Wood, 47 F.3d 1427, 1430 (“[W]e will no longer insist

that plaintiff fully anticipate the [qualified immunity] defense in his complaint

at the risk of dismissal under Rule 12")(5th Cir. 1995); see also Todd v. Hawk,

72 F.3d 443, 446 (5th Cir. 1995). 

12

granted, and the motion to dismiss on such basis must be granted.26

Qualified Immunity--Not Addressed

Defendant Hemingway also asserted the defense of qualified

immunity in the motion to dismiss. Because of the Court’s

resolution of the other outstanding issues, its determination to

afford Arawole one more opportunity to restate his complaint

against Hemingway (as noted below), and as the assertion of

qualified immunity through a 12(b) motion is disfavored in this

circuit,27 the Court will deny the motion on the basis of qualified

immunity without prejudice to Hemingway’s right to reassert such

defense consistent with the deadlines in a future scheduling order.

Further Amendment or Supplement? 

Thus, the only claim that remains pending in this suit is

Arawole’s claim that Linda Hemingway violated his constitutional

rights in failing to provide open-toed shoes to him. Arawole has

filed a motion to file what he labeled as a “Supplemental Updated

and Factual Allegation.” Although Arawole has cited authority

 

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28See Mendez through Mendez v. Rutherford, 655 F.Supp. 115, 117 (N.D.Ill.

1986).

13

related to providing a pro-se party an opportunity to amend prior

to dismissal, the Court has reached the dismissal motion in this

case first for several reasons. Arawole’s proposed pleading did

not include any factual allegations that would change the Court’s

resolution of the timeliness of the FTCA suit or its resolution of

the exhaustion-of-remedies issue. Further, in addition to his

initial complaint and attachments, prior to allowing service upon

the defendants, this Court already took the unusual step of

construing a pleading submitted by Arawole as a “supplemental

complaint.” At that time, the Court noted to Arawole that an

amended complaint would supersede his original, and that because it

did not appear that he sought to render the initial complaint and

attachments a nullity, the Court would construe the submitted

pleading as supplemental to the original complaint. Yet Arawole

still wants to add further recitation of much of the allegations

and arguments he has already provided. But such piecemeal

construction of pleadings is disfavored.28 Thus, Arawole’s motions

for leave to supplement with the proposed “supplemental complaint”

will be denied. The Court, however, will give Arawole additional

time to determine whether he wishes to stand on his existing

complaint and supplemental complaint, or file an amended complaint,

as to his remaining claim against Hemingway. The Court will not

 

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29Such a dismissal is without prejudice to refiling a fee-paid complaint

making the same allegations with proof of satisfaction of exhaustion of

administrative remedies. See Wright, 260 F.3d at 359 (holding that dismissal for

the failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a)should

be without prejudice and that the applicable statute of limitations should be

equitably tolled during the pendency of dismissed suit and any additional

administrative proceedings); ; see also Smith v. Strain, No.Civ.A. 03-612, 2004

WL 1837380, at *2 (E.D. La. Aug. 17, 2004)(“If an inmate files in federal court

an in forma pauperis complaint containing claims that have not been exhausted

through available administrative remedies, those claims should be dismissed

without prejudice, but with prejudice for the purpose of proceeding in forma

pauperis pursuant to 28 U.S.C. § 1915"). 

30This claim, too, is without prejudice to refiling a fee-paid complaint.

See supra note 29. 

14

issue a scheduling order until the time expires for Arawole to

file any such amended pleading.

Order

Therefore, the motion to substitute party [docket no. 27] is

GRANTED, such that the United States of America is substituted for

Linda Hemingway on any claim under the Federal Tort Claims Act.

The motion to dismiss [docket no. 30] is GRANTED to the extent

that all claims under the Federal Tort Claims Act are DISMISSED

for lack of subject matter jurisdiction; and all claims against

Linda Hemingway for violation of constitutional rights arising out

of the failure to provide a wheelchair or the adequacy of any

wheelchair, are DISMISSED WITH PREJUDICE to refiling in forma

pauperis.29 

Arawole’s claim of retaliation against Linda Hemingway is

DISMISSED WITH PREJUDICE to refiling in forma pauperis pursuant to

28 U.S.C. § 1915(e)(2)(B)(i) and (ii).30 

 

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31Arawole is cautioned again that an amended complaint entirely supersedes

and takes the place of an original pleading, rendering the original complaint of

no legal effect. See Clark v. Tarrant County, 798 F.2d 736, 740 (5th Cir. 1986);

Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985). Thus, if he

chooses to file an amended complaint, the Court will review only that document

in future consideration of Arawole’s remaining claim. 

15

The motions for leave to file a supplemental updated factual

allegation [docket nos. 37 and 39] are DENIED. To the extent

plaintiff Arawole seeks to further amend the remaining claim before

the Court against defendant Linda Hemingway, he must file any such

amended complaint within thirty days of the date of this order.31

SIGNED August 11, 2006.

 

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