Iran Dwayne Ketchup v. USA

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12855
Non-Argument Calendar
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D.C. Docket No. 1:20-cv-01549-MHC
IRAN DWAYNE KETCHUP,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(May 26, 2021)
Before GRANT, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
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In April 2020, Iran Dwayne Ketchup, at the time incarcerated in the United
States Penitentiary in Atlanta, filed a six-count complaint in federal district court.
That complaint named only the United States as a defendant, and alleged that
through its agents the United States both knew that the facility’s drinking water
contained dangerous levels of arsenic and other substances and allowed Ketchup to
drink the water without alerting him. So Ketchup alleged that he was poisoned,
that the United States was deliberately indifferent, that the United States
committed fraud, and that he had suffered “pain and suffering of body” and
“mind.” He brought these claims under the Federal Torts Claims Act (FTCA) and
as constitutional violations under the Supreme Court’s Bivens precedent.
The magistrate judge recommended dismissing Ketchup’s complaint under
28 U.S.C. § 1915A. That statute provides that the court shall dismiss a complaint
if it “is frivolous, malicious, or fails to state a claim upon which relief may be
granted.” First, the magistrate judge determined that there could be no Bivens
action here, because such actions can only be filed against individual defendants
and Ketchup included only the United States as a defendant. Second, the
magistrate judge recommended dismissing the FTCA claim for failure to allege
injury. The magistrate report read Ketchup’s complaint as saying only that the
arsenic “will cause him health problems in the ‘past present and future’” and that
Ketchup “has been poisoned by Arsenic.” The magistrate judge also noted that the
FTCA and the Prison Litigation Reform Act require a showing of physical injury
in order to bring an action for mental or emotional injury. Ketchup objected to the
report and recommendation, but the district court adopted it and found that
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Ketchup “failed to allege that he has an existing medical condition or injury as a
result of his exposure to any of the chemicals that he alleges are (or were) in the
drinking water at the prison.” The district court dismissed Ketchup’s complaint as
frivolous, prompting this appeal.
We review a district court’s sua sponte dismissal of a complaint as frivolous
for abuse of discretion. White v. Lemma, 947 F.3d 1373, 1379 n.8 (11th Cir.
2020). “A claim is frivolous if and only if it lacks an arguable basis either in law
or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal
quotation marks omitted). The district court was right to dismiss Ketchup’s Bivens
claims; as we have said, those claims cannot be brought against the United States
as a defendant. See United States v. 1461 W. 42nd St., 251 F.3d 1329, 1339–40
(11th Cir. 2001).
The district court erred, however, when it found that Ketchup did not allege
physical injury to support his FTCA claim. “A district court can generally
consider exhibits attached to a complaint in ruling on a motion to dismiss.”
Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016). Here, Ketchup
attached his administrative claim to his complaint as an exhibit. And in that
exhibit, he stated that he experienced a wide range of physical symptoms:
“immunological problems,” “neurological (nervous system) problems,” “diarrhea,”
“[dermatitis],” “nausea,” “nosebleed,” “digestive disorders,” “skin inflammation,”
“skin irritation,” “reddening of the skin,” “abdominal pain,” and so forth. So when
the district court found that Ketchup “failed to allege” injury, that was error. And
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because that is the only apparent reason the district court gives for dismissing
Ketchup’s complaint, that is reversible error.
We make no findings of whether any of Ketchup’s allegations in his
complaint are true. The only question we have to consider on this appeal is
whether Ketchup alleged physical injury. He did, so to the extent the district
court’s finding of frivolity for his FTCA claim was based on his failure to allege
physical injury, it was in error. REVERSED IN PART AND REMANDED.
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