IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CONCHITA WASHINGTON §

§

 §

VS. § CIVIL ACTION NO.4:05-CV-571-Y

§

UNITED STATES OF AMERICA, et al.§

 

ORDER GRANTING MOTION FOR LEAVE TO AMEND COMPLAINT and, ORDER OF

DISMISSAL UNDER 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(b)

This case is before the Court for review of pro-se FMC--

Carswell inmate and plaintiff Conchita Washington’s claims under

the screening provisions of 28 U.S.C. §§ 1915A and 1915(e)(2)(B).

Although the Court previously denied Washington’s motion for

preliminary injunction, she was afforded the opportunity to file an

amended complaint. The court extended the deadline, and within the

extended time, Washington mailed a motion for leave to amend

complaint, which was filed on May 16, 2006, along with a completed

complaint form and two volumes of a “supporting appendix.” On May

24, Washington filed volume three of the “supporting appendix,” and

on May 31, volume four. After review and consideration of the

motion for leave to amend, the Court concludes that it should be

granted to the extent that the Court will consider and review all

of Washington’s filings as pleadings under the screening

provisions. Thus, the Court has considered Washington’s May 16

amended complaint, her May 16 “affidavit for injunctive relief,”

along with the May 16 supporting appendix volumes one and two, the

May 24 supporting appendix volume three, and the May 31 supporting

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 1 of 10 PageID 398
1Although Washington lists Harley Lappin along side her naming of the

Bureau of Prisons, her handwritten attachment pages make clear that she intends

as defendants only the Bureau of Prisons and the United States of America.

(Compl. § IV attachment page 3-A.) She also identifies only these two defendants

in her motion for leave to amend complaint. (May 16, 2006, Motion for Leave, at

1.) Washington complains of the actions of several other individuals in her May

16 affidavit, but she does not list them as defendants nor does she request

particular relief from any of these individuals.

2

appendix volume four. 

Plaintiff Washington names as the defendants in this action

the Federal Bureau of Prisons (BOP), and the United States of

America.1 (Compl. Style; § IV(B).) Plaintiff Washington complains

that the BOP and the United States of America breached a promise to

her, made through an assistant United States attorney at her

sentencing, that she would be provided the “best care in the

country.” Washington claims that she has been deprived of meals;

deprived of an assigned room for her particular medical conditions;

exposed to sudden temperature changes, including assignment to a

room without heat and the air conditioning blowing directly on her;

deprived of bathing facilities and forced to bathe out of a foot

pan; exposed to allergens that triggered asthma; and subjected to

actions that caused deformities in her bones. (Compl. § V.) She

alleges that such actions amount to violations of her rights under

the Eighth and Fourteenth Amendments to the Constitution. (Compl.

§ V.) Washington’s appendix one contains copies of numerous

different grievances and the responses thereto on her allegations

of exposure to life-threatening allergies to soaps, chemicals,

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 2 of 10 PageID 399
2Including administrative remedy numbers 291946, 291958, 291945, 314181,

313682, 284723, and 300021. 

3Including administrative remedy numbers 293012, 335439, 329430, 305583,

203341, and 291959. 

4Including administrative remedy numbers 329430, 329350, and 341495. 

5Including administrative remedy numbers 291944, 291952, 348264, 319002,

and 319009. 

6Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)

requires dismissal not only when an allegation of poverty is untrue or the action

is frivolous or malicious, but also when “the action . . . fails to state a

claim on which relief may be granted; or seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(A) and

(B)(West Supp. 2006). 

3

detergents, liquids, solids, and fumes.2 Appendix two contains

copies of grievances and responses related to the alleged failure

to provide proper care for her ankles, bones, and feet, and to her

requests for chelation therapy.3 Appendix three includes copies of

Washington’s grievances and responses thereto related to her claims

of inadequate gynecological care and evaluation, and deprivation of

meals and snacks.4 Appendix four includes copies of grievances and

responses thereto related to Washington’s claims that she has

Raynaud’s disease and been improperly treated.5 In total,

Washington’s appendices include 207 copies of papers of grievances

and responses related to at least 20 separate administrative

complaints. Washington seeks permanent injunctive relief regarding

the provision of medical care to her by physicians licensed in the

State of Texas. (Compl. § VI.) 

A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.6 Under 28

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 3 of 10 PageID 400
7See 28 U.S.C.A. § 1915(e)(2)(West Supp. 2006); Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th

Cir. 1990)(discussing authority to dismiss at any time under prior § 1915(d)).

8See 28 U.S.C.A. § 1915A(a)(West Supp. 2006).

9See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

10Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

4

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

in determining at any time whether an in-forma-pauperis claim

should be dismissed.7 Furthermore, as a part of the PLRA, Congress

enacted 28 U.S.C. § 1915A, which requires the Court to review a

complaint from a prisoner seeking relief from a governmental entity

or governmental officer or employee as soon as possible after

docketing.8 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await a responsive

pleading to conduct its § 1915 inquiry.9 Rather, § 1915 gives

judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”10 After review and consideration of

Washington’s claims as asserted in the amended complaint and

appendices, the Court finds that they must be dismissed under the

authority of these provisions.

As noted above, Washington alleges that the defendants

breached a promise to her to provide medical care for her

recognized needs, and have refused with deliberate indifference to

take care of her reasonable medical needs. Washington has not set

forth the common law or statutory authorization for either claim,

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 4 of 10 PageID 401
11United States v. Testan, 424 U.S. 392, 399 (1976).

12Lehman v. Nakshian, 453 U.S. 156, 161 (1981)(citations omitted).

1328 U.S.C.A. § 1346(b)(West Supp. 2006);28 U.S.C.A. § 2679(b)(1)(West

1994).

1428 U.S.C.A. §§ 2679(b)(1) and (2)(A)(West 1994).

5

but as she has named only the United States of America and the BOP

as defendants, the Court will address her potential causes of

action. 

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.”11 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.”12

The Federal Tort Claims Act (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 United States.13 Any other tort action against a federal

employee is precluded, although a civil action against a government

employee brought for a violation of the Constitution is not.14

To the extent that Washington’s naming of the United States

and her allegation that the government breached a promise to her to

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 5 of 10 PageID 402
1528 U.S.C.A. § 2675(a)(West 1994). 

1628 U.S.C.A. § 2401(b)(West 1994). 

17Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995), citing McNeil v.

United States, 508 U.S. 106, 111-12 (1993), cert. den’d, 519 U.S. 927 (1996); and

Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981).

18See 28 C.F.R. §§ 543.30-32(2006) and 28 C.F.R. § 14.1-14.11 (2006). These

provisions applicable to the administrative review of a tort claim are distinct

from the BOP’s Administrative Remedy Program that applies to an inmate’s claims

relating to other aspects of their confinement. See 28 C.F.R. §§ 542.10,

542.12(b)(2006). The Administrative Remedy Program for inmate resolution of

other claims is set forth at 28 C.F.R. §§ 542.13-542.15 (2006).

6

provide medical care is a claim for relief under the FTCA, the

Court examines the preconditions to such a suit. One of the

prerequisites to filing suit under the FTCA is that the claimant

must have first presented the claim to the appropriate federal

agency and have obtained a written denial or else wait six months

after filing for the agency decision to be deemed by law as a final

denial.15 Thereafter, any suit must be commenced within six months

of the date of mailing of the notice of final denial by the agency

to which it was presented.16 This Court’s subject-matter

jurisdiction is conditioned upon compliance with these

preconditions, and an action filed before the expiration of the six

months, “cannot become timely by the passage of time after the

complaint is filed. The requirement is jurisdictional and may not

be waived.”17

Specific administrative procedures for the pursuit of a tort

claim within the BOP are set out in the Code of Federal

Regulations.18 Although Washington has pursued the administrative-

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 6 of 10 PageID 403
19The Court observes that plaintiff Conchita Washington was informed of the

different administrative exhaustion requirements applicable to different kinds

of claims in a prior suit before this Court: Washington v. Mallisham, No.4:02-CV878-Y (Jan. 13, 2003, Order of Dismissal at 4.) The Court takes judicial notice

of its own records in this prior case. 

20403 U.S. 388, 297 (1971).

21See 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). 

7

remedy process on many of her claims, she has not provided any

copies of a tort claim against the United States, nor has she

provided any indication that she obtained a final denial of a tort

claim or waited six months from the filing of such a claim before

filing this suit.19 Any claim that might be construed as a claim

under the FTCA must be dismissed without prejudice under 28 U.S.C.

§ 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(b)(i) and (ii). 

With regard to Washington’s claim that she was subjected to

deliberate indifference to her medical needs, she has expressly

claimed violation of her rights under the Eighth and Fourteenth

Amendments to the Constitution. Although Washington has not

provided authority, the only avenue to seek relief for an alleged

violation of constitutional rights against federal actors is

through Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics (“Bivens”).20 Bivens, of course, is the counterpart to

42 U.S.C. § 1983, and extends the protections and remedies for

violation of constitutional rights for parties injured by state

actors under § 1983 to parties injured by federal actors.21

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 7 of 10 PageID 404
22See Correctional Services Corp. v. Malesko, 534 U.S. 61, 71-72 (2001);

see also Federal Deposit Insurance Corp. V. Meyer, 510 U.S. 471, 484-86 (1994).

23See Brown v. Nationsbank Corp., et al., 188 F.3d 579,590 (5th Cir. 1999),

cert. den’d, 530 U.S. 1274 (2000), citing Alford v. United States, 693 F.2d 498,

499 (5th Cir. 1982).

24See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)(noting that

district courts in Texas must use Texas's general two-year, personal injury

limitations period); see TEX. CIV. PRAC. & REM. CODE 16.003(a)(Vernon Supp.

2006)(Texas’s two-year personal injury limitations statute). 

25Brown, 188 F.3d at 590, citing Pena v. United States, 157 F.3d 984, 987

(5th Cir. 1998). 

8

Washington may bring a Bivens action against individual officers

for an alleged constitutional violation, but she may not bring an

action against the United States or the BOP.22 Thus, Washington’s

claims for violation of constitutional rights against the BOP and

the United States must be dismissed under 28 U.S.C. § 1915A(B)(1)

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

Furthermore, and in the alternative, most of the Washington’s

claims of violation of constitutional rights are time barred by the

applicable statue of limitations. The Fifth Circuit has held that

a Bivens action is controlled by the applicable state statute of

limitations.23 In Texas the applicable limitations period is two

years.24 Thus, the applicable statute of limitations period on a

Bivens claim arising in Texas is two years.25 Washington’s Bivens

claims are subject to the Texas two-year personal-injury statute of

limitations. 

A district court may dismiss claims sua sponte under § 1915

where it is clear from a review of the complaint that the alleged

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 8 of 10 PageID 405
26Moore, 30 F.3d at 620, citing Gartrell V. Gaylor, 981 F.2d 254, 256 (5th

Cir.1993); see also Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992)(“Although

the statute of limitations is an affirmative defense, a district court may

properly dismiss a complaint under 28 U.S.C. § 1915(d) when it is apparent that

the statute of limitations has run.”)(citations omitted).

27See Gartrell, 981 F.2d at 256; see also Daniel v. United States, Nos.

CA3:01CV0328-H,CR3:92CR029-H, 2002 WL 66160, at *2(N.D.Tex.Jan. 10, 2002).

9

claims are barred by the applicable statute of limitations.26

Federal courts look to federal law to determine when a civil-rights

action accrues, and under federal law a cause of action accrues

when the plaintiff knows or has reason to know of the injury that

is the basis for his action.27 Plaintiff raises numerous claims in

this action, and most of them relate to complained-of events from

several years before she filed suit. Washington knew of her alleged

injuries at the time they occurred and, because of her ongoing

health problems, must have been aware at or near the time of the

alleged events of the purported inadequacy of her medical care.

Washington did not file this suit until September 6, 2005; thus,

any claims arising from alleged events prior to September 6, 2003,

must be dismissed under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B).

Therefore, Washington’s May 16, 2006, motion for leave to file

amended complaint [docket no. 20] is GRANTED. 

All of Washington’s claims under the Federal Tort Claims Act

are DISMISSED without prejudice to refiling if the FTCA

jurisdictional precondition is satisfied, under 28 U.S.C. §

1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). 

Washington’s remaining claims against the Bureau of Prisons

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 9 of 10 PageID 406
10

and the United States of America are DISMISSED WITH PREJUDICE under

authority of 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915

(e)(2)(B)(i) and (ii). 

SIGNED October 4, 2006.

 

 Case 4:05-cv-00571-Y Document 27 Filed 10/04/06 Page 10 of 10 PageID 407