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1Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,

29 L.Ed.2d 619 (1971) (recognizing an implied private action for damages against federal officers alleged to

have violated a citizen's constitutional rights).

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOSE LUIS ORTIZ,

Plaintiff,

vs. Case No. 5:10cv54/RS/MD

FEDERAL PRISONS CAMP, et al.,

Defendants.

ORDER 

This cause is before the court upon plaintiff’s complaint asserting claims under 28

U.S.C. § 1331 and Bivens1 for the alleged violation of his constitutional rights, as well as

claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2401(b),

2671-2680 for negligence. (Doc. 6). The filing fee has been paid. (Doc. 5). From a

review of the complaint, it is evident that the facts as presented fail to support a viable

claim for relief as to one or more of the named defendants. It is further evident that

plaintiff’s tort claims may be time-barred. The court will therefore allow the plaintiff an

opportunity to clarify his allegations in an amended complaint.

Plaintiff is a federal inmate currently confined at the Federal Correctional Institution

- Low in Coleman, Florida. He is suing the United States of America and several individual

prison officials at the Federal Detention Center in Miami, Florida (“FDC-Miami”) and the

Federal Prison Camp in Pensacola, Florida (“FPC-Pensacola.”) with regard to an inmate

assault that occurred on April 15, 2007, and the medical care provided for plaintiff’s

injuries. Plaintiff also challenges two Incident Reports (“IRs”) he received during that time.
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2W arden Grayer, Warden Fisher, and Counselor Crespo are not mentioned in the body of plaintiff’s

com plaint.

3

In this regard, plaintiff is advised that in a Bivens action, “Governm ent officials may not be held liable

for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal,

--- U.S. ---, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009); see also id. (“Because vicarious liability is

inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Governm ent-official defendant,

Case No: 5:10cv54/RS/MD

Based on plaintiff’s allegations, he asserts the following constitutioanl claims: (1) Eighth

Amendment claims for denial of adequate medical care, (2) Fourth Amendment malicious

proseuction claims relating to the Incident Reports, and (3) a violation of “Right to Privacy”

with regard to the disclosure of plaintiff’s medical records to a non-medical prison official.

Plaintiff’s tort claims are based on the defendants’ alleged negligence in failing to protect

plaintiff from the inmate assault and failing to provide necessary medical care. As relief,

plaintiff seeks $3 million “on any and all sustained Constitutional claims” and $1 million “on

any [and] all sustained Tort claims.” He also seeks an injunction “directing the Defendants

to provide Plaintiff Ortiz proper medical treatment which should include proper medication

and corrective and reconstructive surgery.” (Doc. 6).

As an initial matter, plaintiff must clarify the defendants in this action. In the style

of the case plaintiff names twelve defendants: Loren A. Grayer, Warden of FDC-Miami;

Lieutenant Hernandez, prison official at FDC-Miami; H. L. Harrison, Unit Manager at FDCMiami; Henry Crespo, Counselor at FDC-Miami; Scott, Fisher, Warden of FPC-Pensacola;

J. Garbrick, correctional officer at FPC-Pensacola; Edwin Lopez, medical doctor at FDCMiami; M. Ramirez, medical doctor at FDC-Miami; P. Carabeo, Physician’s Assistant; Barry

J. Stein, optometrist at FPC-Pensacola; J. Woods, Physician’s Assistant at FPCPensacola; and the United States of America. (Doc. 6, p. 1). However, in the

“Defendants” section of the complaint, plaintiff identifies only eleven defendants. (Doc. 6,

p. 2). Furthermore, three of the individuals listed as defendants in the style of the case and

in the defendants section of the complaint are mentioned no where in the body of plaintiff’s

complaint.2 Plaintiff is advised that the defendants listed in the style of the case must

conform to those identified in the “Defendants” section of the complaint. In determining the

proper defendants, plaintiff should name only those persons who are responsible for the

alleged constitutional violations.3 In the “Statement of Facts” section, plaintiff should clearly
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through the official’s own individual actions, has violated the Constitution.”); Dalrymple v. Reno, 334 F.3d 991,

995-96 (11th Cir. 2003) (“It is well established in this Circuit that supervisory officials are not liable under Bivens

for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.”)

(internal quotation m arks om itted). 

Case No: 5:10cv54/RS/MD

describe how each named defendant is involved in each alleged constitutional violation.

If plaintiff cannot state exactly how a particular defendant harmed him, he should delete

or drop that person as a defendant from his complaint.

It is further noted that in the style of the case plaintiff indicates he is suing each

individual defendant in his individual and official capacity. Naming the individual

defendants in their official capacities is improper. A suit against a federal employee in his

official capacity is, in essence, a suit against the United States. Kentucky v. Graham, 473

U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). Sovereign immunity bars

damages claims against the United States for a federal official’s violation of a litigant’s

constitutional rights. Id.; cf. FDIC v. Meyer, 510 U.S. 471, 485, 114 S.Ct. 996, 127 L.Ed.2d

308 (1994) (explaining that the Court “implied a cause of action against federal officials in

Bivens in part because a direct action against the government was not available” to remedy

constitutional tort claims). Thus, plaintiff cannot assert Bivens claims against the individual

federal defendants in their official capacities, only their individual capacities. See

Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 521-22, 151 L.Ed.2d

456 (2001); Simanonok v. Simanonok, 918 F.2d 947, 950 (11th Cir. 1990) (holding that no

Bivens relief is available for constitutional claims against federal officials in their official

capacities); Leonard v. Rumsfeld, 146 F.Supp.2d 1227, 1230-31 (M.D. Ala. 2001) (same);

Marsden v. Federal B.O.P., 856 F.Supp. 832, 835 (S.D. N.Y. 1994) (holding that claims for

money damages against individual federal defendants in an official capacity must be

dismissed for lack of jurisdiction). 

Further, although plaintiff also brings claims under the Federal Tort Claims Act,

those claims are properly pursued by naming the United States as a defendant, which

plaintiff has done. Therefore it is unnecessary for plaintiff to sue any of the individual

officials in their official capacities. In amending, plaintiff should remove his reference to

official capacity claims against the individual defendants. 
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Case No: 5:10cv54/RS/MD

Also with regard to plaintiff’s FTCA claims, he is advised of the following. Before

bringing an FTCA action in federal district court, a claimant must first exhaust his

administrative remedies by filing an administrative grievance with the appropriate federal

agency within two years of the date the claim accrues. Specifically, 28 U.S.C. § 2675(a)

provides, in relevant part:

An action shall not be instituted upon a claim against the United States for

money damages for injury or loss of property or 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 office or employment,

unless the claimant shall have first presented the claim to the appropriate

Federal agency and his claim shall have been finally denied by the agency

in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a). Title 28 U.S.C. 2401(b) 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(b). 

Once the agency mails notice of final denial of the claim, the claimant has six

months in which to bring an action in district court. 28 U.S.C. § 2401(b); Phillips v. United

States, 260 F.3d 1316, 1317 (11th Cir. 2001) (“It is undisputed that under section 2401(b),

a tort claim must be presented to the appropriate federal agency within two years after the

claim accrues and the lawsuit must be commenced within six months after the receipt of

a final agency decision.”); Day v United States, No. 4:08cv92/SPM/WCS, 2008 WL

4327361, at *1 (N.D. Fla. Sept. 16, 2008) (“In construing the plain meaning of section

2401(b), tort claimants filing suit against the United States can be barred by the statute of

limitations in two ways: (1) they can be barred if they do not file a claim with the

appropriate federal agency within two years; or (2) they can be barred even if they do file

a timely administrative claim, but fail to file a suit in district court within six months after final

notice of the agency’s action on their claim.”).

Failure to timely file a civil action in district court is a jurisdictional bar that prevents

judicial review of a tort claim against the United States. Phillips, 260 F.3d at 1319
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4Generally, “statutes of limitations are subject to equitable tolling.” Robinson v. United States, 327

Fed. Appx. 816 (11th Cir. 2007) (unpublished) (citing United States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct.

1785, 85 L.Ed.2d 64 (1985)). The Supreme Court has held that equitable relief should be expanded only

sparingly to individuals and highlighted two scenarios demonstrating the application of such relief.

W e have allowed equitable tolling in situations where the claimant has actively

pursued his judicial remedies by filing a defective pleading during the statutory period or

where the complainant has been induced or tricked by his adversary’s misconduct into

allowing the filing deadline to pass. W e have generally been much less forgiving in receiving

late filings where the claimant failed to exercise due diligence in preserving his legal rights.

Case No: 5:10cv54/RS/MD

(affirming dismissal of plaintiff’s FTCA claims for lack of jurisdiction, where plaintiff did not

file her action in district court within six months after she received notice that her claims

had been administratively denied); Shoff v. United States, 245 F.3d 1266 (11

th Cir. 2001)

(affirming dismissal of plaintiff’s FTCA claims where plaintiff filed his complaint in federal

court seven months after the date of mailing of the agency’s denial letter). 

In the instant case, plaintiff has advised that his tort claim was denied on October

8, 2009. (Doc. 1, p. 1). Yet he did not file the instant complaint until June 14, 2010. (Doc.

6, p. 11). This is well beyond the six-month limitations period. In a “Motion for Extension

of Time” filed in this court on March 10, 2010, plaintiff requested an “extension” of the sixmonth limitations period, explaining that he was transferred from FPC-Pensacola to the

Escambia County Jail on February 7, 2010, and then transferred to the Jackson County

Jail in Marianna, Florida. Plaintiff asserted that he was without his legal papers during this

period, and that as of March 10, 2010, he still had not received his papers despite having

submitted an inmate request to the Jackson County Jail on February 22, 2010. Plaintiff

argued that his “excusable negligence” warranted an extension of the limitations period.

(Doc. 1). In response to this motion, the court issued an order on March 19, 2010 advising

plaintiff that until he filed a complaint, the court was without jurisdiction to consider its

timeliness or whether any exceptions to the statute of limitations may apply. (Doc. 4).

Plaintiff was mailed an FTCA complaint form, and expressly warned that “[d]ue to the sixmonth time limitation, plaintiff should file his complaint as quickly as possible.” Plaintiff

waited another three more months before filing his complaint. Plaintiff has not explained

this delay, or the four-month delay preceding his transfer. In amending, plaintiff should

address why his FTCA claims are not barred by the statute of limitations.4
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Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)(citations

omitted); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (“Equitable tolling is appropriate when

a movant untimely files because of extraordinary circumstances that are both beyond his control and

unavoidable even with diligence.”); see, e.g., Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 157, 104

S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984) (permitting tolling if “affirmative misconduct on the part of a

defendant lulled the plaintiff into inaction”). “[T]he principles of equitable tolling . . . do not extend to what is

at best a garden variety claim of excusable neglect.” Irwin, 498 U.S. at 96. In order to show entitlement to

equitable tolling, plaintiff must establish both extraordinary circumstances and diligence.

Case No: 5:10cv54/RS/MD

As to the substance of plaintiff’s Bivens claims against the individual defendants,

he is advised of the following. Plaintiff seeks to hold defendant Lieutenant Hernandez

liable for the April 15, 2007 inmate assault, yet he provides no allegations indicating a

causal connection between this defendant and the assault. To the contrary, plaintiff’s sole

allegation against defendant Hernandez is that this defendant granted plaintiff’s request

to be placed in protective custody inside the Special Housing Unit. (Doc. 6, p. 7). It was

allegedly defendant Harrison who ordered that plaintiff be releasedfrom protective custody.

(Id.) Unless plaintiff can demonstrate a causal connection between defendant Hernandez

and the inmate assault, he should remove this defendant from his amended complaint.

Plaintiff is further advised that his EighthAmendment claims against the five medical

personnel, defendants Edwin Lopez, Ramirez, Carabeo, Woods and Stein, require further

factual development. Plaintiff alleges, generally, that these defendants “failed to keep with

the planned medical treatment to correct Plaintiff Ortiz’s injuries. The Defendants have

missed scheduled medical appointments with the local hospitals and doctors, and also

have denied Ortiz medical treatment and medication within the prison medical

departments.” (Doc. 6, p. 8). These allegations are too broad. As plaintiff was advised

on the complaint form, he must describe how each defendant was involved in the violation

of his constitutional rights, and what each person did or did not do which gives rise to his

claim. In describing what each defendant did, plaintiff must state the name of the person

involved, dates, places, and specific conduct. Plaintiff’s allegations must be specific

enough to apprise each defendant of what he did that violated plaintiff’s constitutional

rights. 

With regard to plaintiff’s claim that defendants Harrison and Garbrick violated his

Fourth Amendment rights by maliciously prosecuting him for two Incident Reports, (doc.
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Case No: 5:10cv54/RS/MD

6, p. 9) he is advised that his allegations fail to state a plausible Fourth Amendment claim.

Plaintiff alleges in support of this claim that the Incident Reports were “unwarranted” and

“unfounded.” However, the filing of false disciplinary charges against an inmate does not

alone amount to a constitutional violation. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.

1989); Freeman v. Rideout, 808 F.2d 949, 951-53 (2nd Cir. 1986). This is primarily because

the Constitution requires only that plaintiff be afforded due process at the institutional

hearing, which represents his opportunity to expose any such falsities or inaccuracies.

Freeman, 808 F.2d at 952; see also Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41

L.Ed.2d 935 (1974). Because the mere issuance of an “unwarranted” or “unfounded”

incident report, alone, does not amount to a constitutional violation, plaintiff has failed to

state a plausible Fourth Amendment claim against defendants Harrison and Garbrick. 

In amending, plaintiff should carefully review the foregoing to determine whether he

can present allegations sufficient to state a cause of action under the relevant law. If

plaintiff chooses not to proceed with this action, he should file with the court a notice of

voluntary dismissal. If plaintiff chooses to proceed with this action, he must completely fill

out a new complaint form, marking it “Amended Complaint.” Plaintiff must limit his

allegations to claims related to the same basic incident or issue and name as defendants

only those persons who are responsible for the alleged constitutional violations. Plaintiff

must place their names in the style of the case on the first page of the civil rights complaint

form, and include their addresses and employment positions in the “Parties” section of the

form. In the “Statement of Facts,” plaintiff should clearly describe how each named

defendant is involved in each alleged constitutional violation, alleging the claims as to each

defendant in separately numbered paragraphs and including specific dates and times of

the alleged unconstitutional acts. If plaintiff cannot state exactly how a particular defendant

harmed him, he should delete or drop that person as a defendant from his complaint. In

the section entitled “Statement of Claim,” plaintiff must state what rights under the

Constitution or laws of the United States have been violated, and he must provide support

in the statement of facts for the claimed violations. Plaintiff is advised that the amended

complaint must contain all of his allegations because once an amended complaint is filed,

all earlier complaints and filings are disregarded. N.D. Fla. Loc. R. 15.1. 
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Case No: 5:10cv54/RS/MD

Plaintiff should file the amended complaint with an original signature with the court

and keep an identical copy for himself. Plaintiff should not file a memorandum of law or

otherwise provide citations to statutes and cases, and he should not file exhibits as

evidentiary support for his complaint. The court will notify plaintiff when memoranda and

exhibits are necessary, such as prior to trial or in conjunction with a motion for summary

judgment. Furthermore, plaintiff should not submit service copies of his complaint unless

and until the court directs him to do so. Finally, plaintiff is advised that discovery is

premature at this stage of the case and plaintiff should not do any discovery without leave

of court.

Accordingly, it is ORDERED:

1. The clerk of court shall forward to the plaintiff a complaint form for use in actions

under 28 U.S.C. § 1331 or § 1346. This case number should be written on the form. 

2. Within twenty-eight (28) days of the date of this order, plaintiff shall file an

amended complaint, which shall be typed or clearly written and submitted on the court form

as instructed above. Failure to submit an amended complaint as instructed will result in

a recommendation that this case be dismissed.

DONE AND ORDERED this 23rd day of November, 2010.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE