Michael R. Burns v. UNITED STATES DISTRICT COURT FOR THE WESTERN HARRY G. LAPPIN, Director, et al.,…

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0922n.06
No. 13-5663
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL R. BURNS, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
HARRY G. LAPPIN, Director, et al., ) DISTRICT OF TENNESSEE
)
Defendants, )
)
and )
)
DOCTOR NAHEM A. NAIMEY, Clinical )
Director at FCI Memphis, )
)
Defendant-Appellee. )
BEFORE: SILER and COLE, Circuit Judges; DOWD District Judge. *
PER CURIAM. This Bivens action was the first of two actions filed by plaintiff-appellant
Michael Burns in the Western District of Tennessee in connection with allegations regarding
medical treatment for a hernia while Burns was an inmate at the Federal Correctional Institute in
Memphis, Tennessee (W.D. Tenn. Case No. 2:11-cv-02152). The second action filed by Burns in
the Western District of Tennessee alleged violations of the Federal Tort Claims Act (FTCA) (W.D.
*The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.

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Tenn. Case No. 2:12-cv-02287) with respect to the same medical treatment at issue in the Bivens
action.
The Bivens action and the FTCA action were before different judges in the Western District
of Tennessee. Although Burns’s FTCA action was filed second, that case was decided and appealed
(Case No. 13-5018) before the first-filed Bivens action was decided and appealed (Case No. 13-
5663). This Court has issued its opinion in Burns’s appeal concerning his FTCA action (Case No.
13-5018), reversing and remanding with instructions to the district court.
For the reasons contained herein, the district court’s dismissal of Burns’s Bivens action is
reversed and remanded.
I. BACKGROUND
A. Factual Background
Plaintiff-appellant’s factual allegations regarding medical treatment for a hernia while he was
an inmate at the Federal Correctional Institute in Memphis, Tennessee, are the same in both the
Bivens action and FTCA action. Those factual allegations have been extensively detailed in this
Court’s opinion in the FTCA action, Case No. 13-5018, and will not be repeated here.
B. Procedural Background of the Bivens Action
In this Bivens action, the district court initially dismissed Burns’s complaint against
defendants Lappin, Watts, Franklund and Cabanero pursuant to §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) for failure to state a claim upon which relief may be granted. The district court also
dismissed all claims based on events occurring before February 14, 2010, as outside of the one-year
statute of limitations applicable to Bivens actions in Tennessee.1
1 Doc. No. 5, W.D. Tenn. Case No. 2:11-cv-02152.
2

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Subsequently, the remaining defendants in this Bivens action, Juan Castillo and Nahem
Naimey, moved to dismiss the claims against them pursuant to Fed. R. Civ. P. 12(b)(6) or,
alternatively, for summary judgment pursuant to Rule 56(c). The district court granted defendants’
motion as to defendant Castillo, but denied defendants’ motion as to defendant Naimey. 2
After the district court in this Bivens action ruled that defendant Naimey was not entitled to
judgment as a matter of law, the district court in the FTCA action (W.D. Tenn. Case No. 2:12-cv-
02287) granted defendants’ motion to dismiss the case against all defendants with prejudice pursuant
to Fed. R. Civ. P. 12(b)(6), including defendant United States. As a consequence of the dismissal
of the FTCA action, the remaining defendant, Naimey, in this Bivens action moved for dismissal on
the grounds that the claims against him were prohibited by 28 U.S.C. § 2676 after Burns’s FTCA
action (W.D. Tenn. Case No. 2:12-cv-02287) was dismissed against the United States.3
The district court in this Bivens action granted defendant Naimey’s motion to dismiss on that
basis.4 The instant appeal arises from the district court’s dismissal of the Bivens action based on the
dismissal of the FTCA action.
2 Doc. No. 24, W.D. Tenn. Case No. 2:11-cv-02152.
3 28 U.S.C. § 2676 provides that “The judgment in an action under section 1346(b) of this
title shall constitute a complete bar to any action by the claimant, by reason of the same subject
matter, against the employee of the government whose act or omission gave rise to the claim.” 28
U.S.C. § 1346(b)(1) gives district courts “exclusive jurisdiction of civil actions on claims 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 of omission of any employee of the Government while
acting within the scope of . . . employment . . . .”
4 “[T]he judgment on the FTCA claims [requires] dismissal of the Bivens action.”
(Doc. No. 44, W.D. Tenn. Case No. 2:11-cv-02152).
3

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II. ANALYSIS
A. The Sixth Circuit’s Ruling on Burns’s Appeal of the FTCA Action (Case No. 13-5018)
The Sixth Circuit recently issued its opinion with respect to Burns’s appeal of the district
court’s dismissal of his FTCA action. In that ruling, Case No. 13-5018, the district court’s dismissal
of Burns’s FTCA action was reversed and remanded with instructions.
B. Effect of Disposition of FTCA Appeal on Burns’s Appeal of Dismissal of Bivens Action
On appeal of this Bivens action, the parties take opposite positions as to whether the district
court erred in dismissing the Bivens action based on dismissal of the FTCA action. However, in
light of this Court’s disposition of the FTCA appeal, those arguments are moot.
The district court’s dismissal of this Bivens action as to the remaining defendant Naimey was
directly based on the dismissal of the FTCA action. Because this Court has reversed and remanded
the FTCA action, the underlying basis for dismissal of the Bivens action pursuant to
28 U.S.C. § 2676 has been negated.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court dismissing plaintiff’s claims as
to defendant Naimey is reversed. This case is remanded to the district court for proceedings
consistent with this opinion.
4

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