[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 29, 2005
No. 04-15925
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-22807-CV-JAL
JAMES J. O'BRIEN,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
FEDERAL BUREAU OF PRISONS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 29, 2005)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
James J. O’Brien appeals pro se the district court’s grant of the defendants’
motion to dismiss his claims of negligence under the Federal Tort Claims Act and
the court’s ruling that O’Brien failed to raise or never intended to raise an Eighth
Amendment claim and thus failed to reach the defendants’ motion to dismiss a
possible claim under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397,
91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971). He further appeals the district court’s
failure to consider whether one of the defendants was properly served. For the
reasons stated more fully below, we affirm.
O’Brien, a federal prisoner proceeding pro se, filed a “pro se Federal Tort
Complaint for Monetary Damages” against the United States; the Federal Bureau
of Prisons (“BOP”); the Federal Detention Center (“FDC”) in Miami, Florida; John
Doe, Warden of the FDC; Associate Warden Hulle of the FDC; M.A. Stern,
D.D.S., of the FDC; and J.J. Jan,1 D.D.S., of the FDC, all jointly and severally
liable in their official and individual capacities. O’Brien’s complaint stated that he
sought redress for “actual pain and suffering and emotional distress, injuries
sustained as a direct result of the actions, inactions, and omissions of the named
Defendants and of their employees, agents, subordinates,” pursuant to 28 U.S.C. §§
1346(b), 2671 et seq. (Federal Tort Claims Act (“FTCA”). O’Brien specifically
1
The complaint states “Dan,” but pursuant to O’Brien’s request and the district court’s
order, the name was corrected to read “Jan” and, therefore, is changed in this opinion as well.
2
cited to the jurisdiction, venue, and statute of limitations requirements of the
FTCA.
In his complaint, O’Brien alleged the following: (1) he was incarcerated
from February 6, 1999, through February 4, 2002, was protected by “the Eighth
Amendment’s proscription against cruel and unusual punishment,” and at all times
had the right to “reasonable medical care that was the equivalent to that measure of
care accorded to private citizens,” including dental care; (2) he submitted 11
written request forms to the dentist complaining of mouth pain and was examined
at least 8 separate times to address his complaints; (3) from January 18, 2000, to
September 25, 2000, defendants Doe, Hulle, Stern, and Dan were aware of
O’Brien’s continued complaints of mouth pain; (4) from September 25, 2000,
when O’Brien had two molars extracted, until February 4, 2002, Doe, Hulle, Stern,
and Dan, were all aware of O’Brien’s complaints regarding his two remaining
molars; (5) from January 18, 2000, to September 25, 2000, Stern told O’Brien that
he had been placed on the oral surgery schedule three separate times, but defendant
Doe removed O’Brien’s name from the list, thus causing O’Brien ongoing mouth
pain in breach of the duty of reasonable care owed to him; (6) the same duty of
reasonable care was breached again between February 27, 2001 and February 4,
2002, when the defendants failed to provide reasonable care to O’Brien after being
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made aware of continuing pain from O’Brien’s remaining molars.
Based on the foregoing allegations, O’Brien argued that the defendants
exhibited “deliberate indifference to his medical needs by: (a) delaying his thrice-
scheduled oral surgery, and for an unreasonably long period of time; and (b) failing
to reschedule him for followup surgery to address the remaining two impacted
molars, again for an unreasonably long period of time.” O’Brien further alleged
that the FDC defendants were vicariously liable based upon the reasonably
foreseeable knowledge that their failure to act would cause O’Brien pain, they
acted in bad faith, and they committed “wanton misconduct and negligence.”
O’Brien further stated that the laws of the State of Florida permitted the
defendants’ liability for their negligent acts committed within the scope of their
employment and that the FTCA did not allow the United States to assert sovereign
immunity. O’Brien sought, inter alia, $10,000 in compensatory damages.
The defendants subsequently filed a motion to dismiss O’Brien’s complaint
pursuant to Fed.R.Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The
defendants argued that O’Brien had failed to exhaust his administrative remedies
under the FTCA because (1) he had filed an administrative claim with the BOP and
FDC on July 16, 2002, but filed his FTCA claim in federal court on September 24,
2002, before the administrative claim had been decided. Because O’Brien’s
4
administrative claim was not denied until December 2, 2002, the defendants argued
that O’Brien’s FTCA civil action had been prematurely filed and not properly
refiled within six months of the denial of his administrative claim and, thus, the
district court lacked jurisdiction over the claim because O’Brien had failed to
properly exhaust his administrative remedies. The defendants further argued that,
under the FTCA, only the United States was a properly named party and, therefore,
all of the individual defendants and the federal agencies named as defendants were
due to be dismissed.
Finally, the defendants sua sponte noted that, although O’Brien’s complaint
made only a single reference to the Eighth Amendment and one use of the term
“deliberate indifference,” and furthermore, on its face did not seek relief against
the individual defendants under 28 U.S.C. § 1331 for violating O’Brien’s
constitutional rights under Bivens, any possible construction of O’Brien’s
complaint to encompass a Bivens claim was also due to be dismissed under
Fed.R.Civ.P 12(b)(1) because O’Brien had not exhausted his administrative
remedies with respect to that claim.
O’Brien responded to the defendants’ motion by stating that he did not
dispute that his FTCA complaint was filed prematurely, but argued that he had no
access to the rules regarding the filing of such claims. O’Brien further argued that
5
he made a good-faith attempt to exhaust his administrative remedies, which should
prevent the district court from dismissing for lack of subject matter jurisdiction.
Finally, O’Brien argued that he was denied access to proper legal materials despite
requests. No mention was made of any Bivens claim or the fact that the defendants
addressed the issue in its motion to dismiss.
The defendants replied to O’Brien’s argument, that the exhaustion
requirements be waived, arguing that the exhaustion requirements were procedural
and non-waiveable, even for a pro se litigant and, in any event, it was evident from
O’Brien’s complaint that he had access to the FTCA because it was explicitly cited
as his cause of action. It further noted that O’Brien had failed to include any
requests for materials that were denied to him and that O’Brien had failed to allege
that he did not have access to legal resources during the time in which his FTCA
complaint should have been filed.
On October 21, 2003, O’Brien filed a motion to amend his complaint
pursuant to Fed.R.Civ.P. 15(a) in order to substitute Monica Wetzel, the warden of
the FDC in Miami for the majority of O’Brien’s incarceration, for “John Doe.” He
then filed a response to the defendants’ reply brief, arguing that (1) the FTCA’s
exhaustion requirements did not address an “attempt” at exhausting remedies
where request forms were filed and a plaintiff was unable to obtain the proper
6
forms; (2) he did not have an urgent need for a legal library or legal materials after
he had filed his “tort” claim on July 16, 2002; (3) he had no way of knowing that
he could refile his claim because he did not have legal materials available to him
and, while he conceded that he overlooked the inclusion of his specific requests,
the materials he requested were statutes, 28 U.S.C. §§ 2401(b) and 2675(a), “which
would have assisted plaintiff on the filing procedures for his Tort Complaint;” and
(4) the government’s failure to object to the evidence O’Brien presented waived
any right to do so, making summary judgment in O’Brien’s favor appropriate.
O’Brien also filed a motion to supplement his response to the defendants’ motion
to dismiss, essentially restating his arguments and citing Thomas v. Woodlum, 337
F.3d 720 (6th Cir. 2003) to support his “attempt” argument regarding exhaustion
requirements. No mention of Bivens, 42 U.S.C. § 1983, or any other potential
constitutional deprivation was made.
O’Brien filed two more motions to supplement his response to the
defendants’ motion to dismiss, first arguing that the BOP’s regional counsel
obstructed the evidence and violated the “Privacy Act,” 2 and second, arguing that
the government’s reading of Thomas was flawed and the issue was whether an
“attempt” to follow prison procedures was sufficient to exhaust his administrative
2
O’Brien refers to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.
7
remedies, which O’Brien argued was enough. The government responded only to
O’Brien’s FOIA claims, arguing that (1) O’Brien failed to exhaust his
administrative remedies and (2) the defendants were otherwise exempt from
O’Brien’s request. The district court granted O’Brien’s motions to supplement,
finding that the defendants had not objected to the additional arguments.
O’Brien’s FOIA claims, however, were denied.
On April 13, 2004, O’Brien submitted a brief arguing that he had received a
response from the BOP denying his tort claim and, therefore, the prematureness of
his FTCA complaint should be deemed cured. It is noted that, at no point in any of
O’Brien’s responses, replies, supplemental filings, or briefs, is there a mention of
Bivens, 42 U.S.C. § 1983, the Eighth Amendment, or any other deprivation of a
constitutional right.
Finally, on September 28, 2004, the district court granted the defendants’
motion to dismiss. It found that it was without jurisdiction to consider O’Brien’s
FTCA claim because he had failed to exhaust his administrative remedies before
filing his complaint. The court specifically rejected O’Brien’s argument that his
claim be allowed to proceed because no substantial progress had taken place before
his administrative claim was denied granted and, furthermore, it found that even
though O’Brien was pro se, the procedural requirements of the FTCA applied to
8
him without leniency. The district court found that O’Brien’s claim that the BOP
delayed his attempt to comply with administrative procedures was irrelevant
because O’Brien had filed an administrative claim with the BOP, then improperly
filed a civil complaint before the administrative claim had been denied, and failed
to file an FTCA claim within six months after O’Brien’s administrative grievance
had been denied. Finally, the court declined to reach the defendants’ argument that
O’Brien’s Bivens claim, if he had even made one, be dismissed for failing to
exhaust administrative remedies because the court found that “the Complaint does
not state a Bivens claim and . . . in his Response . . . Plaintiff did not assert that he
intended to raise such a claim.” All other pending motions were denied as moot.
On appeal, O’Brien first argues that the district court erred by finding that he
had failed to state a claim under Bivens. He argues that the district court, by
failing to find that his claim was a constitutional claim under Bivens, failed to
reach the defendants’ motion to dismiss, and in so doing, failed to accept as true all
the factual allegations in his complaint, which he argues raised a constitutional
claim under the Eighth Amendment and deliberate indifference standards. O’Brien
argues that the district court was obligated to liberally construe his claim, and
failed to properly apply the rules for determining whether a cause of action under
Bivens had been made. He further argues that the district court should have
9
permitted him to amend his claim.
The United States Supreme Court has held that federal officials may be sued
in their individual capacities for violations of a person’s constitutional rights.
Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005,
29 L.Ed.2d 619 (1971). Because claims under 42 U.S.C. § 1983 and Bivens are
similar, courts generally apply § 1983 law to Bivens cases. Abella v. Rubino, 63
F.3d 1063, 1065 (11th Cir. 1995). Thus, under Bivens, “a plaintiff must show that
he or she was deprived of a federal right by a person acting under color of [federal]
law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
We will assume that review of the district court’s conclusions regarding
whether a plaintiff intends to raise a Bivens claim is reviewed de novo, as even
under a de novo review, the record shows that O’Brien, despite having an
opportunity to do so, never attempted or intended to invoke Bivens and, in fact, has
raised Bivens for the first time on appeal.3
O’Brien’s complaint sought redress for “actual pain and suffering and
3
The closest analogy to the district court’s finding that O’Brien did not intend to raise a
Bivens claim might be a finding that O’Brien failed to state a claim upon which relief could be
granted, warranting dismissal under Fed.R.Civ.P. 12(b)(6). That finding would be reviewed de
novo. See, e.g., Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir. 2004). However, this is
not a case where the district court found that the plaintiff failed to state a claim either factually or
legally, but rather found that this plaintiff never intended to raise a claim in the first instance,
meaning it did not reach any merit-based decision regarding whether the claim should be
dismissed because it found the claim did not exist in the first place.
10
emotional distress, injuries sustained as a direct result of the actions, inactions, and
omissions of the named Defendants and of their employees, agents, subordinates,”
pursuant to 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA). O’Brien specifically cited
to the jurisdiction, venue, and statute of limitations requirements of the FTCA. At
no point does the complaint mention 42 U.S.C. § 1983 (protecting against
deprivation of constitutional rights by government agents acting under color of
state law), Bivens (extending § 1983 protection to individuals acting under color of
federal law), or either 28 U.S.C. §§ 1331 or 1343 (federal question jurisdiction or
civil rights jurisdiction, including constitutional rights).
As the defendants noted in their motion to dismiss, O’Brien’s complaint
does assert that, while incarcerated at the FDC in Miami, he was protected by the
Eighth Amendment, but the complaint does not allege that O’Brien’s Eighth
Amendment rights were violated. Moreover, while O’Brien mentions that the
defendants were “deliberately indifferent” to his medical needs, the relief O’Brien
sought was for, inter alia, vicarious liability, agency, and negligence, all of which
he claims would be governed by Florida law under the FTCA. The defendants, in
their motion to dismiss, gave O’Brien the benefit of the doubt and raised the
possibility that O’Brien might have intended a Bivens claim. It noted that, even if
the district court were to give such a construction to O’Brien’s complaint, which it
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need not do given that the complaint did not facially seek relief for a violation of
constitutional rights, the claim should be dismissed for failure to exhaust
administrative remedies.
In his multiple responses to the defendants’ motion, O’Brien never once
raised Bivens, mentioned any alleged constitutional violation, filed a motion to
amend his complaint to include such a claim, or even addressed the government’s
argument that he had failed to exhaust his administrative remedies regarding a
Bivens claim. Furthermore, O’Brien knew how to amend his complaint pursuant
to Fed.R.Civ.P. 15(a), as he filed a motion to do so seeking to amend one of the
defendants.
The fact remains that throughout his responses and motions to
amend/supplement those responses, O’Brien only argues the FTCA, and for the
first time on appeal argues that he intended to raise a Bivens claim. “This Court
has repeatedly held that an issue not raised in the district court and raised for the
first time in an appeal will not be considered.” Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Accordingly, while O’Brien is
pro se and entitled to a liberal construction of his complaint, he had multiple
opportunities to respond to the defendants’ assertion that O’Brien did not raise a
Bivens claim, but if he did, it should be dismissed for lack of subject matter
12
jurisdiction. O’Brien chose not to amend his complaint or argue Bivens despite
being on notice (as he did respond to the defendants’ motion to dismiss) that a
Bivens claim was not out of the question if he intended to raise it. However, we
conclude that O’Brien’s Bivens claim is raised for the first time on appeal and,
therefore, decline to consider it. Access Now, 385 F.3d at 1331.
O’Brien next argues that the district court erred by finding that he had failed
to exhaust his administrative remedies, contending that his “attempt” to do so
should have been satisfactory. We review the dismissal of an action for lack of
subject matter jurisdiction de novo. Ochran v. United States, 117 F.3d 495, 499
(11th Cir. 1997). “The Federal Tort Claims Act (FTCA) provides that an ‘action
shall not be instituted upon a claim against the United States for money damages’
unless the claimant has first exhausted his administrative remedies.” McNeil v.
United States, 508 U.S. 106, 107, 113 S.Ct. 1980, 1981, 124 L.Ed.2d 121 (1993).
Pursuant to 28 U.S.C. § 2675(a) of the FTCA:
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. The failure of an agency to make final disposition of a
claim within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of the claim for
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purposes of this section.
28 U.S.C. § 2675(a).
In McNeil, the United States Supreme Court decided whether an action may
be maintained under the FTCA when the claimant failed to exhaust his
administrative remedies prior to filing suit, but did so before substantial progress
was made in the litigation. McNeil, 508 U.S. at 107, 113 S.Ct. at 1981. In
McNeil, the plaintiff filed a complaint on March 6, 1989, in district court under the
FTCA and four months later filed an administrative claim, which was subsequently
denied on July 21, 1989. Id. at 107-08, 113 S.Ct. at 1981-82. The government
moved to dismiss the complaint, arguing that the complaint was not filed until
April 15, 1990, when the plaintiff paid the filing fees, while the plaintiff argued
that the complaint was filed on March 6, 1989, and, therefore, timely. Id. at 108-
09, 113 S.Ct. at 1982. The Court rejected the plaintiff’s argument that, so long as
no substantial progress has been made in the litigation by the time the claimant has
exhausted his administrative remedies, the federal agency will have had a fair
opportunity to investigate and/or settle the claim. Id. at 111-12, 113 S.Ct at 1983.
Thus, the Supreme Court in McNeil held that the “FTCA bars claimants
from bringing suit in federal court until they have exhausted their administrative
remedies,” and because the plaintiff there “failed to heed that clear statutory
14
command, the District Court properly dismissed his suit.” Id. at 113, 113 S.Ct. at
1984. The Court further noted that, the fact that the plaintiff in McNeil was pro se
did not excuse mistakes in following procedural rules in ordinary civil litigation.
Id., 113 S.Ct at 1984.
Here, like in McNeil, O’Brien prematurely filed his civil complaint under
the FTCA and likewise “failed to heed that clear statutory command” requiring that
his administrative remedies be exhausted before bringing suit. Moreover, while
McNeil noted that pro se litigants are entitled to have their pleadings liberally
construed, procedural rules such as exhausting administrative remedies before
filing suit were specifically excluded from that rule. See McNeil, 508 U.S. at 113,
113 S.Ct. at 1984. Finally, any argument O’Brien makes regarding his inability to
properly file an administrative claim is meritless given that he adequately
presented his tort claim to the BOP, which denied the claim. Accordingly,
O’Brien’s complaint was filed prematurely, before administrative proceedings had
concluded, and was not refiled within six months after his administrative claim had
been denied. Therefore, we conclude that the district court properly dismissed
O’Brien’s FTCA complaint for lack of subject matter jurisdiction.
Lastly, O’Brien argues that the district court failed to address and review
whether defendant Wetzel was properly served. Here, because we have already
15
determined that the district court did not err by finding that O’Brien did not raise or
intend to raise a Bivens claim and did not err by dismissing O’Brien’s FTCA
complaint for lack of jurisdiction, any unresolved issues relating to service of
process on Monica Wetzel, former warden of the FDC in Miami, are moot because
the district court does not have jurisdiction over any of O’Brien’s claims, including
those against Wetzel.
Based on the foregoing, the district court did not err by dismissing O’Brien’s
FTCA complaint, finding that O’Brien did not raise or intend to raise a Bivens
claim, or denying as moot the propriety of service of process on defendant Wetzel.
We, therefore, affirm.
AFFIRMED.
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