McBarron v. Federal Bureau of Prisons , 332 F. App'x 961 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2009
No. 08-10197 Charles R. Fulbruge III
Summary Calendar Clerk
THOMAS MCBARRON
Plaintiff-Appellant
v.
FEDERAL BUREAU OF PRISONS; NEWTON E KENDIG, Director, Bureau
of Prisons; LES E FLEMING, Warden, Federal Medical Center Fort Worth;
NEIL H ADLER, Warden, Federal Detention Center - Houston; MARY C
MARTINEZ, Associate Warden of Medical at Federal Medical Center Fort
Worth; VICTOR S ORSOLITS, Associate Warden of Medical at Federal
Medical Center Forth Worth; PAUL CELESTIN, Health Service
Administrator at Federal Medical Center Fort Worth; M WINKLMEIER,
Assistant Health Services Administrator, Federal Detention Center -
Houston; DO JOHN MILLS, Clinical Director, Federal Medical Center Fort
Worth; MD ANTHONY CUBB, Clinical Director, Federal Detention Center
Houston; Dr JOHN BARRY, Medical Officer, Federal Medical Center Fort
Worth; Captain ARDEN HANSON, R.PH., Chief Pharmacist, Federal
Medical Center Fort Worth; R ANDERSON, R.PH., Pharmacist, Federal
Medical Center Fort Worth; J DICKENS, Mid-Level Practioner, Federal
Medical Center Fort Worth; CECELIA COLON, Mid-Level Practioner,
Federal Medical Center Fort Worth; WILLY FELICIANO, Mid-Level
Practioner, Federal Medical Center Fort Worth; DANNY MARRERO,
Mid-Level Practioner, Federal Medical Center Fort Worth; ROMAN E
QUEZA, Mid-Level Practioner, Federal Medical Center Fort Worth; A
MARTIN, Mid-Level Practitioner, Federal Detention Center Houston;
BRUCE COX, Nurse, Federal Medical Center Fort Worth; ROGER
SEARLES, Nurse, Federal Medical Center Fort Worth; MARY LEVINE,
Nurse, Federal Medical Center Fort Worth; Captain ELMER Corrections
Officer, Federal Medical Center Fort Worth; Captain LES PHILLIPS,
Corrections Officer, Federal Medical Center Fort Worth also known as Les
Randazzo; Leiutenant NFN HARRISON, Corrections Officer, Federal Medical
Center Fort Worth; Leiutenant NFN HOPKINS, Corrections Officer, Federal
No. 08-10197
Medical Center Fort Worth; NFN WARD, Corrections Officer, Federal
Medical Center Fort Worth; L L BELL, Corrections Officer, Federal Medical
Center Fort Worth; A REEVES, Corrections Officer, Federal Medical Center
Fort Worth; NFN MCDONALD, Corrections Officer, Federal Medical Center
Fort Worth; B J BEARD, Unit Manager, Federal Detention Center Houston;
STEVE RAGON, Case Manager, Federal Medical Center Fort Worth;
NELSON VARGAS, Counselor, Federal Medical Center Fort Worth; TEENER
CALCOTE, Counselor, Federal Medical Center Fort Worth; DARRELL W
GRAY, Safety
Manager, Federal Medical Center Fort Worth; JOHN DOES 1-10; JANE
DOES 1-10
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-318
Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
Thomas McBarron, federal prisoner # 44999-079, appeals from the district
court’s dismissal of his Bivens 1 suit pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A. Reviewing the dismissal de novo, Velasquez v. Woods, 329 F.3d 420, 421
(5th Cir. 2003), we AFFIRM the district court’s judgment for the following
reasons:
1. The majority of McBarron’s claims involved the same general series of
events, facts, and conditions that were at issue in an earlier 28 U.S.C.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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No. 08-10197
§ 2241 proceeding and therefore constituted “‘[r]epetitious litigation of
virtually identical causes of action’” that were properly dismissed as
malicious. See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)
(citation omitted). We are satisfied that McBarron had an adequate
opportunity for “one bite at the litigation apple.” See Pittman v. Moore,
980 F.2d 994, 995 (5th Cir. 1993).
2. We find no reversible error in the district court’s dismissal of claims on
limitations grounds. The limitations period is generally tolled while a
prisoner exhausts the prison grievance process. See Harris v. Hegmann,
198 F.3d 153, 158 (5th Cir. 1999). However, most of the claims McBarron
cites as tolled by grievances were either dismissed as duplicative because
they were raised in the earlier litigation, or they were facially untimely
even allowing tolling for the period that prison grievances were pending.
To the extent that McBarron’s appendix may be construed to assert that
tolling applies to the pendency of Federal Tort Claims Act administrative
remedies, we find the issue inadequately briefed for review. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); F ED. R. A PP. P. 28(a)(9).
McBarron’s citation to grievances concerning claims that arose after May
5, 2004 is inapplicable because the district court dismissed on limitations
grounds only claims arising before that date.
3. McBarron asserts that he adequately pleaded that the defendants were
deliberately indifferent to his need for surgery to repair an inguinal
hernia. The record does not show that the recommended surgery was
immediately necessary, and Dr. Reyes’ difference of opinion as to the
course of treatment or need for surgery does not constitute deliberate
indifference. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999).
McBarron may not have received all the treatment that he desired as
quickly as he wanted, but the brief and pleadings show that he was not
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No. 08-10197
ignored, that he was given pain medication, and that surgery was
approved once it became medically necessary. No showing of deliberate
indifference is made. See Domino v. Texas Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001) (deliberate indifference requires that inmate
show prison officials “‘refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct
that would clearly evince a wanton disregard for any serious medical
needs’” (citation omitted)).
4. McBarron’s claims in count 4 of the second amended complaint
concerning allegedly unconstitutional policies or customs relating to the
confinement and medical treatment of inmates were properly dismissed
as conclusory allegations. See Spiller v. City of Texas City, Police Dep’t,
130 F.3d 162, 167 (5th Cir. 1997). Because the operative pleading was
McBarron’s third complaint in this suit, and because we do not see
arguable merit in McBarron’s claims, the district court did not abuse its
discretion by dismissing the complaint without giving McBarron an
opportunity to amend. See Jones v. Greninger, 188 F.3d 322, 326–27 (5th
Cir. 1999).
5. McBarron’s claim for denial of access to courts was properly dismissed,
because McBarron has not shown that he was prevented from filing a
viable FTCA claim. Even assuming that McBarron was coerced into
withdrawing his original complaint, the record indicates that McBarron
was able to file a subsequent FTCA claim asserting the same facts.
Therefore, McBarron has not demonstrated an actual injury. See Chriceol
v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999).
6. Similarly, we find no error in the dismissal of McBarron’s FTCA claims
against the Bureau of Prisons because such claims may not be brought
against a federal agency, and a plaintiff instead must name the United
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No. 08-10197
States as the sole defendant. See Galvin v. OSHA, 860 F.2d 181, 183 &
n.3 (5th Cir. 1988).
AFFIRMED.
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