John Doe v. United States

ALD-031                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                Nos. 20-1953 and 20-2638
                                      ___________

                                       JOHN DOE,
                                               Appellant

                                             v.

                           UNITED STATES OF AMERICA
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 1-19-cv-01673)
                        District Judge: Honorable Yvette Kane
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 12, 2020

           Before: MCKEE, GREENAWAY, JR., and BIBAS, Circuit Judges

                            (Opinion filed: January 12, 2021)
                                       _________

                                        OPINION *
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant John Doe 1 appeals from the final judgment and post-judgment order

entered by the United States District Court for the Middle District of Pennsylvania in his

lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq.

We will affirm.

       The parties are familiar with the background, and so we provide only a summary.

Doe is a federal inmate. In his complaint, he provided details concerning publicly

available decisions in his case history. On November 12, 2015, Ryan Smith, a case

manager at the United States Penitentiary (USP) Lewisburg, told other prisoners that Doe

was a “rat” and a “rapist.” (Compl. at 1.) The prisoners researched Doe using the

electronic law library, and on November 16, 2015, they “began reading aloud [Doe’s]

case orders and opinions on the open range,” leading to continuous taunts, threats, sexual

harassment, and a November 17, 2015 attack by his cellmate. (Id.) A similar sequence

of case downloading and harassment by Doe’s fellow prisoners occurred in October

2016, continuing until Doe’s prison transfer in 2017. When he arrived at USP McCreary,

he was confronted by other transferees from USP Lewisburg, forcing him to physically

defend himself on several occasions. In August 2018, Doe returned to USP Lewisburg,

where he again was labeled as a “rat and rapist” and subjected to harassment. In

September 2018, he was reassigned to another unit, where he encountered prisoners who

were strangers to him yet who identified him as a “rat” and “sex offender” from his


1
 Because the District Court granted Appellant’s motion for leave to proceed using the
John Doe pseudonym, this Court likewise granted Appellant the same allowance.
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downloaded case information. The cycle continued when new prisoners arrived in

October 2018. Doe stated that he did not “have a reputation as a rat nor rapist nor was

there reason for research [about his case] until Ryan Smith.” (Complaint at 2.)

       Doe filed his FTCA complaint in the District Court in September 2019. He

asserted that he made unsuccessful attempts to have his case information sealed, and he

contended that prison officials failed to address his security-related requests. Doe sought

$100,000,000 in compensatory damages relief, as well as transfer to either state custody

or assignment to a Federal Correctional Institution. He attached exhibits, including

documentation of his psychology services visit in August 2018 relating to the threats and

taunts. He also attached documentation of his pursuit of a prison administrative remedy

in March 2019, alleging that prison officials have been ignoring the ongoing problems

that started in November 2015.

       The District Court granted Doe leave to proceed in forma pauperis under

28 U.S.C. § 1915 and directed service of the complaint upon the Government. The

Government filed a motion for summary judgment and supporting materials, asserting

that Doe failed to file his FTCA complaint within six months of the denial of his

Administrative Tort Claims connected with his allegations regarding being labeled a “rat”

and a “rapist.” The Government also noted that Doe filed no other Administrative Tort

Claims relating to the complaint allegations. On April 3, 2020, the District Court agreed

that the complaint was untimely filed and granted the Government’s summary judgment


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motion. Doe filed a timely notice of appeal from this order; which was docketed at C.A.

No. 20-1953. 2

        Doe also filed a motion for extension of time to respond to the Government’s

summary judgment motion, which the District Court received only after it already had

granted the motion. On May 5, 2020, the District Court denied Doe’s motion as moot in

light of Doe’s notice of appeal. In July 2020, Doe filed in the District Court a motion for

relief under Rule 60(b). On July 23, 2020, the District Court denied Rule 60(b) relief

based on a lack of jurisdiction. Doe filed a timely notice of appeal concerning the denial

of his Rule 60(b) motion, which was docketed at C.A. No. 20-2638.

       We consolidated Doe’s two appeals for disposition. We have jurisdiction pursuant

to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s order granting

the Government’s summary judgment motion. See Kaucher v. County of Bucks,

455 F.3d 418, 422 (3d Cir. 2006). We review the denial of Rule 60(b) relief for an abuse

of discretion. See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008).


       The FTCA allows claims to be brought against the United States for torts

committed by federal employees, but certain statutory requirements apply. First, a

claimant must file an administrative claim within two years of the tort; and second, the



2
 Doe’s notice of appeal specifies only the order concerning the disposition of the
Government’s summary judgment motion. See Fed. R. App. P. 3(c)(1). Doe does not
contest the District Court’s January 21, 2020 denial of injunctive relief as unavailable
under the FTCA, or the April 3, 2020 denial of Doe’s motion for default judgment.
                                             4
FTCA lawsuit must be initiated within six months of the federal agency’s denial of the

administrative claim. See 28 U.S.C. § 2401(b). Both conditions must be met for the

FTCA action to be viable. See Sconiers v. United States, 896 F.3d 595, 598 (3d Cir.

2018) (noting that the FTCA constitutes a waiver of sovereign immunity, and the

statutory requirements are strictly construed).


       In support of its motion for summary judgment, the Government produced

evidence showing that the only Administrative Tort Claims filed by Doe concerning his

allegations were both filed in 2015. In particular, by letters dated February 11, 2016 and

May 23, 2016, the Federal Bureau of Prisons denied these claims and notified Doe of the

six-month deadline to file a federal court action against the United States. Doe did not

file his FTCA complaint until 2019, long after both of the six-month periods expired. We

agree with the District Court’s conclusion that summary judgment was appropriate here

because Doe’s complaint was filed beyond the § 2401(b) six-month periods. See

Sconiers, 896 F.3d at 599-600. The District Court acknowledged the possibility of

equitable tolling but found no justification in the record to apply it in Doe’s case. (See

District Court Apr. 3, 2020 Mem. at 8-9 (citing Santos ex rel. Beato v. United States,

559 F.3d 189, 194-97 (3d Cir. 2009)).) We agree that the record is devoid of any

allegations that equitable tolling should apply here.

       As for Doe’s Rule 60(b) motion, the District Court correctly noted that it lacked

jurisdiction to grant Rule 60(b) relief during the pendency of Doe’s timely appeal. See

                                              5
Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (“As a general rule, the timely filing of

a notice of appeal divests the district court of jurisdiction over the case pending

disposition of the appeal.”). 3 We discern no abuse of discretion here.

       Because no substantial question is presented by this appeal, we will summarily

affirm the District Court’s decisions. See Third Circuit L.A.R. 27.4 and I.O.P. 10.6.




3
  The District Court acknowledged the procedure to follow if had been inclined to grant
Rule 60(b) relief, but it declined to do so. See Fed. R. Civ. P. 62.1(a)(3) (“If a timely
motion is made for relief that the court lacks authority to grant because of an appeal that
has been docketed and is pending, the court may… state either that it would grant the
motion if the court of appeals remands for that purpose or that the motion raises a
substantial issue”). On the record currently before us, it does not appear that Doe would
have been entitled to Rule 60(b) relief. Doe contested the District Court’s decision,
characterizing it as a grant of summary judgment for failure to exhaust administrative
remedies, asserting that “Lewisburg stonewall[s] prisoners from exhaustion.” (Br. in
Supp. of Rule 60(b) Motion.) Doe attached a copy of an Inmate Request to Staff, dated
March 12, 2019, in which he asked whether his “personal injury tort claim for failure to
protect inmates keep downloading my case information” was sent; the prison staff
member responded, “That is no.” (Id.) It is true that an FTCA plaintiff must exhaust all
administrative remedies before suing in federal court, and exhaustion “is jurisdictional
and cannot be waived.” See Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015);
28 U.S.C. § 2675(a). However, the District Court’s April 3, 2020 summary judgment
ruling is based on untimeliness—not failure to exhaust—concerning Doe’s
Administrative Tort Claims filed in 2015 and denied in 2016. Doe’s Rule 60(b) motion
does not contain any allegations concerning the District Court’s calculation of
§ 2401(b)’s six-month deadline.
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