1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Magistrate Judge Craig B. Shaffer

Civil Action No. 11-cv-02746-CBS

MARTIN PEDRO,

Plaintiff,

v.

(1) MICHAEL SMITH, 

(2) LIEUTENANT, JOHN DOE,

(3) CORRECTIONAL OFFICER, JOHN DOE,

(4) CORRECTIONAL OFFICER, JOHN DOE,

(5) CORRECTIONAL OFFICER, JOHN DOE,

(6) CORRECTIONAL OFFICER, JOHN DOE, and

(7) CORRECTIONAL OFFICER, JOHN DOE,

Defendants.

__________________________________________________________________________

MEMORANDUM OPINION AND ORDER

__________________________________________________________________________

This civil action comes before the court on: (1) “Defendant Smith's Motion to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(1) and/or Fed. R. Civ. P. 12(b)(6)” (filed May 25, 2012) (Doc.

# 29), and (2) Mr. Pedro’s Motion to Amend (filed July 5, 2012) (Doc. # 38). On April 19, 2012,

the above-captioned case was referred to Magistrate Judge Craig B. Shaffer to handle all

dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C.

636(c), Fed. R. Civ. P. 73, and D.C. COLO. LCivR 72.2. (See Doc. # 21). The court has

reviewed the Motions, Mr. Pedro’s Response (filed June 14, 2012) (Doc. # 32), Defendant’s

Reply (filed July 19, 2012) (Doc. # 42), Defendant’s Response (filed July 31, 2012) (Doc. # 43),

Mr. Pedro’s Reply (filed August 13, 2012) (Doc. # 44), the pleadings, the entire case file, and the

applicable law and is sufficiently advised in the premises. 

I. Statement of the Case 

Mr. Pedro is currently incarcerated at the Administrative Maximum facility in Florence,

Colorado (“ADX Florence”). Mr. Pedro brings one claim in the Amended Complaint (“AC”) (Doc.

# 8) pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971), for deliberate indifference in violation of the Eighth Amendment. (See Doc. # 8 at

3-6 of 11). Mr. Pedro alleges that on July 20, 2010, the John Doe Defendants, who were

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“members of the cell extraction team,” violated his Eighth Amendment rights, federal regulations,

and federal policy when they “employed the use of C.S. gas” while performing a cell extraction

of inmate Sean Gillespie, who was housed in the cell next to his cell. (See id. at 3-6 of 11). Mr.

Pedro alleges that Defendant Smith “failed to check the medical records of the inmates on the

range to see if any suffered from respiratory illnesses & to notify the lieutenant John Doe to have

me moved before the employment of C.S. gas.” (See Doc. # 8 at 4 of 11). He alleges that

Defendants’ actions caused him to suffer an asthma attack. (See id. at 5-6 of 11). Mr. Pedro

seeks “money damages.” (See id. at 8 of 11). 

II. Standard of Review

Defendant Smith moves to dismiss the AC pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of

jurisdiction over the subject matter.” Dismissal under Rule 12(b)(1) is not a judgment on the

merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate

the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal

courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically

authorized to do so). Defendant’s argument that, to the extent that Mr. Pedro’s claims seek

monetary damages against him in his official capacity the claims are barred by the doctrine of

sovereign immunity, constitutes a challenge to subject matter jurisdiction. See Normandy

Apartments, Ltd. v. U.S. Dept. of Housing and Urban Development, 554 F.3d 1290, 1295 (10th

Cir. 2009) (“The defense of sovereign immunity is jurisdictional in nature, depriving courts of

subject-matter jurisdiction where applicable.”) (citation omitted). Mr. Pedro has “[t]he burden of

establishing subject matter jurisdiction” because he is “the party asserting jurisdiction.” Port City

Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).

Fed. R. Civ. P. Rule 12(b)(6) states that a court may dismiss a complaint for "failure to

state a claim upon which relief can be granted." To withstand a motion to dismiss, a complaint

must contain enough allegations of fact “to state a claim to relief that is plausible on its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The burden is on the plaintiff to frame

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“a complaint with enough factual matter (taken as true) to suggest” that he or she is entitled to

relief. Twombly, 550 U.S. at 556. “Factual allegations must be enough to raise a right to relief

above the speculative level.” Id. 

Because Mr. Pedro appears pro se, the court reviews his “pleadings and other papers

liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell

v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a

court may not assume that a plaintiff can prove facts that have not been alleged, or that a

defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v. Shelton,

587 F.3d 1063, 1067 (10th Cir. 2009) (court’s role is not to act as pro se litigant’s advocate);

Yang v. Archuleta, 525 F. 3d 925, 927 n. 1 (10th Cir. 2008) (the court cannot be a pro se litigant’s

advocate); Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may

not “supply additional factual allegations to round out a plaintiff’s complaint”); Drake v. City of

Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or

theories for the plaintiff in the absence of any discussion of those issues"). 

III. Analysis 

A. Claims against Defendants in their Individual vs. Official Capacities

Mr. Pedro did not specify in his pleading whether he is suing Defendants in their official

capacities, their individual capacities, or both. In Bivens, 403 U.S. at 388, the Supreme Court

recognized "an implied private right of action for damages against federal officers alleged to have

violated a citizen's constitutional rights." Correctional Services Corporation v. Malesko, 534 U.S.

61, 66 (2001). "If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may

bring a Bivens claim against the offending individual officer, subject to the defense of qualified

immunity." Malesko, 534 U.S. at 72. "The prisoner may not bring a Bivens claim against the

officer's employer, the United States, or the BOP." Malesko, 534 U.S. at 72. See also Simmat

v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005) (“a Bivens claim lies against the

federal official in his individual capacity – not . . . against officials in their official capacity”);

Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003) ("a Bivens claim

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 1 Copies of unpublished cases cited are attached to this Recommendation. 

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cannot be brought against the BOP, as a federal agency, or the other defendants in their official

capacities") (citation omitted), abrogated on other grounds by Jones v. Bock, 549 U.S. 199

(2007); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002) (doctrine of sovereign immunity

precludes a Bivens action against the United States or any agency thereof); Weaver v. United

States, 98 F.3d 518, 520 (10th Cir. 1996) (claim for damages against a federal defendant in his

official capacity is treated as a claim against the United States). Sovereign immunity would bar

any Bivens claim against Defendants in their official capacities. In his Response, Mr. Pedro

clarifies that “this is not an official capacity claim” and that he is suing the Defendants in their

individual capacities. (See Doc. # 32 at 12-13 of 16). The court thus proceeds to evaluate Mr.

Pedro’s claims for violation of his Eighth Amendment rights against the Defendants in their

individual capacities pursuant to Bivens, 403 U.S. at 388. 

B. Violation of Federal Regulations or Policy

To the extent that Mr. Pedro alleges that Defendants violated federal regulations or policy,

the "failure to adhere to administrative regulations does not equate to a constitutional violation."

Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993) (citing Davis v. Scherer, 468 U.S.

183, 194 (1984) (“[o]fficials sued for constitutional violations do not lose their qualified immunity

merely because their conduct violates some statutory or administrative provision”)). See also

Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) (“To the extent [plaintiff] seeks relief

for alleged violations of state statutes and prison regulations, however, he has stated no

cognizable claim” for deprivation of a right secured by the Constitution or laws of the United

States.) (citations omitted); Arcoren v. Peters, 829 F.2d 671, 676 (8th Cir.1987) (a Bivens action

“must be founded upon a violation of constitutional rights”); Malik v. Kindt, No. 95-6057, 76 F.3d

393, 1996 WL 41828, at * 2 (10th Cir. Feb. 2, 1996) (“a Bivens action must be founded upon a

violation of constitutional rights and a failure to adhere to administrative regulations does not

equate to a constitutional violation”) (internal quotation marks and citations omitted).1 Mr.

Pedro’s allegations of violation of a prison administrative regulation, rule, policy, or procedure are

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 2 Mr. Pedro alleges that the Doe Defendants used a chemical agent on another inmate

located in the cell next to him. Even if Mr. Pedro could base his Bivens claim on an alleged

violation of prison regulations, rules, policies, or procedures, the Program Statement that he

relies upon does not require a review of the medical records of all inmates on a particular

range or housing unit, but only the inmate against whom chemical agents may be used. See

U.S. Dept. of Justice, Federal Bureau of Prisons, Program Statement No. 5566.06 at 16 of 22

(“Ordinarily, in a calculated use of force situation, the inmate’s medical file must be reviewed

by these [qualified health] personnel to determine whether the inmate has any diseases or

conditions which would be dangerously affected if chemical agents or non-lethal weapons are

used.”). The prison regulations, rules, policies, or procedures Mr. Pedro relies upon do not

support his claim. 

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properly dismissed pursuant to Rule 12(b)(6) for failure to state a claim to which relief can be

granted under Bivens.

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C. Eighth Amendment Claim

"To establish a Bivens cause of action, a party must have some evidence to support

finding that [a] federal agent acting under color of such authority violated some cognizable

constitutional right of plaintiff." Hron v. Jenkins, 15 F. Supp. 2d 1082, 1085 (D. Kan. 1998) (citing

Bivens, 403 U.S. at 388). The Eighth Amendment prohibits the infliction of "cruel and unusual

punishments." U.S. CONST. Amend. VIII. “[T]he treatment a prisoner receives in prison . . . [is]

subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(citation omitted). 

An Eighth Amendment claim involves “a two-pronged inquiry, comprised of an objective

component and a subjective component.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006).

“Under the objective inquiry, the alleged deprivation must be sufficiently serious to constitute a

deprivation of constitutional dimension.” Self, 439 F.3d at 1230 (internal quotation marks and

citation omitted). Under the subjective inquiry, the defendant must have acted with a “sufficiently

culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). To meet the subjective

component of an Eighth Amendment claim, a plaintiff must establish the defendant “knew

[plaintiff] faced a substantial risk of harm and disregarded that risk, ‘by failing to take reasonable

measures to abate it.’” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Farmer,

511 U.S. at 847). For a prison official to be found liable of deliberate indifference under the

Eighth Amendment, “the official must ‘know[ ] of and disregard[ ] an excessive risk to inmate

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 3 “[I]n deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look both to

the complaint itself and to any documents attached as exhibits to the complaint.” Oxendine v.

Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (citing Fed.R.Civ.P. 10(c); (“A copy of any

written instrument which is an exhibit to a pleading is a part thereof for all purposes”); Hall v.

Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991) (“a written document that is attached to the

complaint as an exhibit is considered part of the complaint and may be considered in a Rule

12(b)(6) dismissal.”)). 

 4 Mr. Pedro’s allegation that his exposure to “CS gas” cause an asthma attack is based

merely on his own subject report to Defendant Smith. (See Doc. # 1 at 8 of 25). 

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health and safety; the official must both be aware of facts from which the inference could be

drawn that a substantial risk of harm exists, and he must draw the inference.’” Perkins v. Kansas

Dept. of Corrections, 165 F.3d 803, 809 (10th Cir. 1999) (quoting Farmer, 511 U.S. at 837). 

Mr. Pedro does not allege that he was the intended recipient or directly sprayed with the

chemical agent. He alleges he suffered from exposure to it when the John Doe Defendants

sprayed another inmate, Sean Gillespie, during a cell extraction. Mr. Pedro sought treatment at

the prison’s Health Services center, reporting difficulty breathing. (See Doc. # 8 at 5 of 11; Doc.

# 1 at 8-10 of 25).3 Mr. Pedro alleges that Defendant Smith’s failure to review his medical file

prior to the cell extraction and failure to notify the cell extraction team prior to the use of “C.S.

gas” “resulted in me suffering an asthma attack.” (See Doc. # 8 at 3, 5 of 11).4

 Mr. Pedro does

not allege that Defendant Smith was present when the inmate next door was extracted from his

cell or participated in exposing him to “C.S. gas.” Nor does Mr. Pedro allege that Defendant

Smith delayed or denied him medical treatment. (See Doc. # 32 at 16 of 16 (“Plaintiff wishes to

drop his 8th amendment claim against Defendant Smith for denial or undue delay of medical

care.”)). Mr. Pedro alleges that Defendant Smith provided him medical treatment for his asthma

attack. (See id. at 5 of 11; Doc. # 1 at 8-10 of 25). 

 The “use of mace, tear gas or other chemical agent of the like nature when reasonably

necessary . . . to subdue recalcitrant prisoners does not constitute cruel and inhumane

punishment.” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984). See also Clemmons v.

Greggs, 509 F.2d 1338, 1340 (5th Cir. 1975) (same); Poindexter v. Woodson, 510 F.2d 464,

466-67 (10th Cir. 1975) (in absence of any malice on the part of defendants, use of tear gas as

control measure during period of disruption at prison was not improper); Bethea v. Crouse, 417

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F.2d 504, 509 (10th Cir. 1969) (teargassing was purely disciplinary measure and did not amount

to cruel and unusual punishment). Nevertheless, a prisoner's exposure to tear gas and similar

chemical agents can be sufficiently serious to raise an Eighth Amendment claim if prison officials

use it in quantities greater than necessary or for the sole purpose of punishment or the infliction

of pain. Soto, 744 F.2d at 1270. 

Personal participation is an essential allegation in a Bivens action. See Ashcroft v. Iqbal,

556 U.S. 662, 677 (2009) (“each Government official, . . . is only liable for his or her own

misconduct”); Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003) (“[D]irect,

personal participation [is] required to establish Bivens liability.”), abrogated on other grounds by

Jones v. Bock, 549 U.S. 199 (2007); Antelope v. U.S., Civil No. 08-cv-00649-LTB-MEH, 2009

WL 473655, at *6 (D. Colo. 2009) (“A Bivens action requires an allegation of personal

participation, demonstrating how each defendant caused the deprivation of a federal right.”)

(citation omitted). Mr. Pedro does not allege that Defendant Smith made the decision to use

“C.S. gas,” was present, or personally participated in the cell extraction next door to his cell. At

the Preliminary Scheduling Conference held on June 27, 2012, Mr. Pedro acknowledged that he

does not know whether Defendant Smith was present at the cell extraction. The allegations do

not plausibly suggest that Defendant Smith personally participated in the use of “C.S. gas” during

the July 20, 2010 cell extraction. Mr. Pedro makes no allegation that Defendant Smith was

responsible for unreasonably using a chemical agent. As Mr. Pedro’s allegations do not arguably

state a claim for relief against Defendant Smith for violation of the Eighth Amendment, his claim

is properly dismissed. 

Nor do Mr. Pedro’s allegations satisfy the subjective component of his Eighth Amendment

claim that Defendant Smith acted with the requisite mental state. Mr. Pedro makes no

allegations regarding the state of mind of any of the Defendants regarding their subjective

knowledge of his “respiratory illnesses.” Mr. Pedro does not allege that Defendant Smith had

any knowledge that C.S. gas would be used on July 10, 2010. The AC contains no facts to

plausibly demonstrate that Defendant Smith knew that Mr. Pedro suffered a respiratory condition

that would be exacerbated by exposure to “C.S. gas” and disregarded that risk. See Farmer, 511

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U.S. at 837 (“the official must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw that inference”); Callahan

v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (“To prevail on the subjective component, the

prisoner must show that the defendants knew he faced a substantial risk of harm and

disregarded that risk, by failing to take reasonable measures to abate it.”) (internal quotation

marks and citation omitted). To the extent that Mr. Pedro argues that Defendant Smith’s failure

to move him before the cell extraction “shows his incompetence” and establishes the subjective

component of Plaintiff’s claim” (see Doc. # 32 at 11 of 16), negligent exposure to tear gas does

not satisfy the subjective element of an Eighth Amendment claim. Ayon v. NEOCC, No. 4:11 CV

1010, 2011 WL 5373784, at * 3 (N.D. Ohio 2011). As Mr. Pedro fails to allege sufficient facts to

plausibly support the subjective component of an Eighth Amendment claim against Defendant

Smith, his claim is properly dismissed. 

D. Qualified Immunity 

Defendant Smith raises the individual capacity defense of qualified immunity. Whether

a defendant is entitled to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810,

813 (10th Cir. 2007). 

Resolution of a dispositive motion based on qualified immunity involves a

two-pronged inquiry. First, a court must decide whether the facts that a plaintiff has

alleged or shown make out a violation of a constitutional right. Second, . . . the

court must decide whether the right at issue was clearly established at the time of

the defendant's alleged misconduct. 

Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks

and citations omitted). “A reviewing court may exercise [its] sound discretion in deciding which

of the two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Id. “Qualified immunity is applicable unless” the

plaintiff can satisfy both prongs of the inquiry. Id. 

As the court has concluded that Mr. Pedro fails to state any Eighth Amendment violation

by Defendant Smith, the court need not reach the “clearly established” prong of qualified

immunity to conclude that dismissal is correctly granted in favor of Defendant. Defendant in his

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individual capacity is entitled to qualified immunity. See Wilder, 490 F .3d at 815 (instructing

district court on remand to enter judgment in favor of defendant on basis of qualified immunity,

where plaintiff failed to carry his burden to show violation of a constitutional right). 

E. John Doe Defendants

There is no provision in the Federal Rules of Civil Procedure for the naming of fictitious

or anonymous parties in a lawsuit. Watson v. Unipress, Inc., 733 F.2d 1386, 1388 (10th Cir.

1984); Coe v. U.S. Dist. Court for Dist. of Colorado, 676 F.2d 411, 415 (10th Cir. 1982). To the

contrary, the Federal Rules provide: 

"[e]very pleading shall contain a caption setting forth the name of the court, the title

of the action, the file number, and a designation as in Rule 7(a). In the complaint,

the title of the action shall include the names of all the parties . . . ."

Fed. R. Civ. P. 10(a). Because anonymous parties are not permitted by the Federal Rules and

Mr. Pedro has not identified the anonymous Defendants, the John Doe Defendants must be

dismissed from the AC. Even if the Doe Defendants were identified, the court concludes, supra.,

that Mr. Pedro has not stated an Eighth Amendment claim upon which relief can be granted

against them. 

F. Mr. Pedro’s Motion to Amend

After filing his Response to Defendant Smith’s Motion to Dismiss, Mr. Pedro moved “to

amend the previously amended complaint” to “name the United States of America & the Federal

Bureau of Prisons as defendants & raise a claim under the Federal Tort Claim[s] Act.” (See Doc.

# 38 at 1 of 3). 

Motions to amend are committed to the trial court's discretion. Woolsey v. Marion

Laboratories, Inc., 934 F.2d 1452, 1462 (10th Cir. 1991). While Fed. R. Civ. P. 15 requires leave

to amend be given freely, see Fed. R. Civ. P. 15(a)(2), "[t]he broad permissive language

appearing in both the rule and the cases does not mean that there are no standards by which

the trial court is to be guided." Moore v. U.S./U.S. Dept. of Agriculture Forest Service, 864 F.

Supp. 163, 164 (D. Colo. 1994) (internal quotation marks and citation omitted). The requirement

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that leave to amend be given freely does not apply where an amendment obviously would be

futile. T.V. Communications Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022,

1028 (10th Cir. 1992) (citations omitted). Where a complaint, as amended, would be subject to

dismissal, leave to amend need not be granted. Id. See also Lind v. Aetna Health, Inc., 466

F.3d 1195, 1199 (10th Cir. 2006) (“A proposed amendment is futile if the complaint, as amended,

would be subject to dismissal.”) (internal quotation marks and citation omitted); Bauchman v.

West High School, 132 F.3d 542, 559 (10th Cir. 1997) (affirming district court's denial of motion

to amend based on futility); Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992) (a court may

deny a motion to amend as futile if the proposed amendment would not withstand a motion to

dismiss or if it fails to state a claim upon which relief may be granted); Schepp v. Fremont

County, 900 F.2d 1448, 1451 (10th Cir. 1990) (A motion to amend may be denied as futile “if the

proposed amendment could not have withstood a motion to dismiss or otherwise failed to state

a claim.”); Sheldon v. Vermonty, 204 F.R.D. 679, 682 (D. Kan. 2001) (In order to determine

whether a proposed amendment is futile, the court must analyze the proposed amendment as

if it were before the court on a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6)). 

The United States, as a sovereign, cannot be sued without its prior consent, and the terms

of its consent define this court's subject matter jurisdiction. See McGinness v. United States, 90

F.3d 143, 145 (6th Cir. 1996). The United States has not waived sovereign immunity for itself

or its agencies under Bivens for constitutional tort claims and therefore cannot be sued in a

Bivens action. See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 483-86 (1994)

(holding that a Bivens action may not be brought against the United States); Chapoose v. Hodel,

831 F.2d 931, 935 (10th Cir. 1987) (implied right of action under Bivens seeks to impose

personal liability and damages on a federal official for violation of a constitutional right and thus

only applies against individual defendants in their individual capacities) (internal quotation marks

and citations omitted). Mr. Pedro’s proposed amendment to name the United States and/or the

Federal Bureau of Prisons pursuant to Bivens is barred by sovereign immunity. 

In enacting the Federal Tort Claims Act (“FTCA”), the United States waived, with certain

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exceptions, its sovereign immunity for common law torts committed by its agents in the scope

of their employment. See 28 U.S.C. § 2674; Woodruff v. Covington, 389 F.3d 1117, 1126 (10th

Cir. 2004) (“The [FTCA] is a limited waiver of sovereign immunity” that only applies to federal

employees.) (internal quotation marks and citation omitted). The Federal Bureau of Prisons

(“BOP”), as a federal agency, cannot be sued under the FTCA. See 28 U.S.C. § 2679(a) (“The

authority of any federal agency to sue and be sued in its own name shall not be construed to

authorize suits against such federal agency on claims which are cognizable under section

1346(b) of this title, and the remedies provided by this title shall be exclusive.”); Meyer, 510 U.S.

at 476 (“Thus, if a suit is ‘cognizable’ under § 1346(b) of the FTCA, the FTCA remedy is

‘exclusive’ and the federal agency cannot be sued ‘in its own name,’ despite the existence of a

sue and be sued clause.”). 

As to a federal employee, the FTCA waives sovereign immunity for certain tort claims

seeking relief via money damages. 28 U.S.C. § 1346(b)(1); Franklin Sav. Corp. v. United

States, 180 F.3d 1124, 1140 (10th Cir. 1999). The express terms of such waiver, however, are

limited such that a suit may not be brought against the Government, “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.” 28 U.S.C. § 2675(a). Exhaustion of administrative

remedies is a prerequisite to suit under the FTCA. See id.; McNeil v. United States, 508 U.S.

106, 107 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have

exhausted their administrative remedies.”); Nero v. Cherokee Nation of Oklahoma, 892 F.2d

1457, 1463 (10th Cir. 1989) (Section 2675 of the FTCA requires that administrative remedies be

exhausted before suit is filed in district court.). 

Timeliness of suit is also one of the conditions of the government's waiver of sovereign

immunity under the FTCA, and the district court lacks subject matter jurisdiction to proceed under

the FTCA if a plaintiff fails to satisfy the FTCA's timing requirements set forth in Title 28 U.S.C.

§ 2401(b). Dahl v. United States, 319 F.3d 1226, 1228 (10th Cir. 2003). “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

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 5 The court assumes that this was a typographical error on Mr. Pedro’s part. 

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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). An FTCA tort claim

accrues on the date of the injury's occurrence. Plaza Speedway Inc. v. United States, 311 F.3d

1262, 1267-68 (10th Cir. 2002). 

Defendant Smith argues that Mr. Pedro’s Motion to Amend to raise a claim under the

FTCA is futile because his FTCA claim is untimely as a matter of law. Mr. Pedro argues that this

lawsuit was timely filed based on the second FTCA administrative claim that he filed on August

25, 2011. (See Doc. # 44). Since July 20, 2010, the date Mr. Pedro’s claim accrued, he filed two

administrative tort claims relating to allegations of negligence. (See Declaration of Terri White,

Exhibit A to Defendant Smith’s Response (Doc. # 43-1) at ¶ 4). On November 12, 2010, the

BOP received an SF-95 filed by Mr. Pedro alleging that on July 20, 2010 he suffered an acute

asthma attack, vomiting, shortness of breath, and physical/mental distress as a result of the

negligence of BOP employees in their use of "C.S. gas without prior evaluating inmates with

respiratory illnesses . . . .” (See Tort Claim TRT-NCR-2011-0669, Exhibit A-1 to Defendant

Smith’s Response (Doc. # 43-2) at 3-6 of 13). On February 18, 2011, the BOP notified Mr. Pedro

via certified mail, return receipt requested, that his administrative tort claim was denied. See id.

at 3-6 of 13. Mr. Pedro was advised that he “may file suit in an appropriate U.S. District Court

no later than 6 months after the date of mailing of this notification.” See id. Mr. Pedro did not

file suit on this claim within six months. 

On August 25, 2011, the BOP received a second SF-95 filed by Mr. Pedro alleging the

identical claim that he suffered “a severe asthma attack, & vomiting, shortness of breath” as a

result of the negligence of BOP employees in “using C.S. gas on inmate Sean Gillespie” on July

20, 2011 [sic].5 (See Tort Claim TRT-NCR-2011-6421 (Doc. # 43-2) at 9-12 of 13; Doc. # 43-1

at ¶ 6). On January 13, 2012, the BOP notified Mr. Pedro via certified mail, return receipt

requested, that after an investigation, his administrative tort claim was denied. (See id. at 13 of

13). Mr. Pedro was advised that he “may file suit in an appropriate U.S. District Court no later

than 6 months after the date of mailing of this notification.” See id. Mr. Pedro had already filed

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13

the instant lawsuit on October 21, 2011. First, Mr. Pedro’s argument that this lawsuit was

timely filed based on the second administrative claim that he filed on August 25, 2011 must fail.

The BOP notified Mr. Pedro on January 13, 2012, after he had filed suit, that his second

administrative tort claim was denied. “[E]xhaustion, however, is a prerequisite to bringing a civil

action against the United States . . . .” D’Addabbo v. United States, No. 08-4142, 316 F. App’x

722, 725 (10th Cir. Dec. 2, 2008) (citation omitted). “The Supreme Court has held that the FTCA

exhaustion requirement was not satisfied by a pro se claimant who exhausted administrative

remedies after filing his complaint.” Id. (citation omitted). 

Second, both of Mr. Pedro’s administrative tort claims describe the same event and a

single injury. Where a party files duplicative administrative claims, the court may regard the

second claim “as either an attempt to re-file the original claim or an attempt to have the agency

reconsider its disposition of the original claim.” Roman-Cancel v. United States, 613 F.3d 37,

42 (1st Cir. 2010). “Either way, the second claim in this case is a nullity.” Id. If the second claim

is viewed as an attempt to re-file, it would not reconfigure the FTCA statute of limitations.

“Nothing to change the substance of the claims occurred in the interval between the first and

second filings.” Roman-Cancel, 613 F.3d at 42. Thus, “the second administrative claim served

no legitimate purpose.” Id. “[I]t would be pointless for a court to allow a claimant an opportunity

to reopen the FTCA's limitations window by the simple expedient of re-filing a claim to supplant

an earlier, functionally equivalent claim on which the window had shut.” Roman-Cancel, 613

F.3d at 42. “[H]onoring a re-filed claim would frustrate the goal of the FTCA's filing deadlines.”

Id. (citation omitted). “[S]uch repetitive filings should not be given effect.” Id. (citation omitted).

“[O]ne bite at the apple is all that the FTCA's claim-filing scheme allows.” Id. (citation omitted).

Even if the second claim is viewed as a request to reconsider the denial of the original

claim, it would not avoid the FTCA statute of limitations. 

The FTCA sets out a six-month period following the denial of an administrative

claim in which an FTCA action premised on that claim may be brought. Prior to the

expiration of that period, a claimant, as an alternative, also has six months to file

a request with the agency for reconsideration of the previously denied claim. A

timely request for reconsideration will toll the six-month period for filing suit for an

additional six months (or such shorter period in which the agency actually responds

to the request). 

Case 1:11-cv-02746-CBS Document 47 Filed 09/26/12 USDC Colorado Page 13 of 15
 6 Mr. Pedro’s proposed Second Amended Prisoner Complaint restates his Eighth

Amendment deliberate indifference claim against Defendant Smith. For the reasons set forth

in this Memorandum Opinion and Order, Mr. Pedro’s Motion to Amend with respect to his

claims against Defendant Smith is properly denied as futile. 

14

The time parameters for such requests for reconsideration are strictly enforced.

This means that an untimely request does not reopen an expired six-month window

for the filing of suit. 

Roman-Cancel, 613 F.3d at 43 (citations omitted). The BOP denied the first administrative claim

by letter dated February 18, 2011. The FTCA provides that a plaintiff has six months from the

date of mailing of the denial of an administrative claim within which either to (1) file his lawsuit

in district court, or (2) file a request for reconsideration with the agency. 28 U.S.C. § 2401(b); 28

C.F.R. § 14.9(b). Mr. Pedro’s second administrative claim was not filed until August 25, 2011 –

beyond the six-month period allotted for reconsideration requests. In the event that a plaintiff

fails to file either a lawsuit or request for reconsideration within the prescribed period, his claim

is “forever barred.” 28 U.S.C. § 2401(b). See also Berti v. V.A. Hospital, 860 F.2d 338, 340 (9th

Cir.1988) (only timely request for reconsideration would have tolled the six-month period

concerning lawsuit filed after denial of that request). “[N]o matter how the second administrative

claim is characterized, it had no practical effect.” Roman-Cancel, 613 F.3d at 43. Consequently,

the first administrative claim is the relevant claim for the purpose of determining the timeliness

of the instant action.

The first administrative claim was denied on February 18, 2011. Mr. Pedro had six

months from that date within which to sue. See 28 U.S.C. § 2401(b). He commenced this suit

on October 21, 2011. This was eight months and three days after the denial of the relevant

administrative claim. Mr. Pedro’s FTCA claim is untimely. “Since compliance with the six month

time limit under the FTCA is a condition of the United States' waiver of sovereign immunity,

failure to comply is a fatal defect.” Vélez–Díaz v. United States, 507 F.3d 717, 720 (1st Cir.

2007) (citations omitted). Accordingly, Mr. Pedro’s Motion to Amend the Amended Complaint

to “name the United States of America & the Federal Bureau of Prisons as defendants & raise

a claim under the Federal Tort Claim[s] Act” is properly denied as futile.6 

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In conclusion, IT IS ORDERED that:

1. Mr. Pedro’s Motion to Amend (filed July 5, 2012) (Doc. # 38) is DENIED.

2. “Defendant Smith's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and/or

Fed. R. Civ. P. 12(b)(6)” (filed May 25, 2012) (Doc. # 29) is GRANTED for failure to state a claim

to which relief can be granted. 

3. This civil action is dismissed. 

DATED at Denver, Colorado, this 26th day of September, 2012.

BY THE COURT:

 s/Craig B. Shaffer 

United States Magistrate Judge 

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