United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING MOTION FOR SUMMARY JUDGMENT
Jane Magnus-Stinson, Judge United States District Court
William Evans, a former inmate of the Federal Bureau of
Prisons ("BOP"), brings this action against the
United States pursuant to the Federal Tort Claims Act
("FTCA"). Evans alleges that he was assaulted by a
correctional officer and that after the assault, he was taken
to the Special Housing Unit and denied food and drink for
four days. The United States has moved to dismiss or in the
alternative for summary judgment and Evans has not responded.
Because the United States has included evidence in support of
its motion, the motion is treated as a motion for summary
judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure.For the following reasons, the motion for
to dismiss [dkt 17] is granted.
Standard of Review
judgment should be granted "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(a). A "material fact" is
one that "might affect the outcome of the suit."
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute is genuine only if a reasonable
jury could find for the non-moving party. Id. If no
reasonable jury could find for the non-moving party, then
there is no "genuine" dispute. Scott v.
Harris, 550 U.S. 372, 380 (2007). "The applicable
substantive law will dictate which facts are material."
National Soffit & Escutcheons, Inc., v. Superior
Systems, Inc., 98 F.3d 262, 265 (7th Cir. 1996) (citing
Anderson, 477 U.S. at 248). "Summary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules
as a whole, which are designed 'to secure the just,
speedy and inexpensive determination of every
action.'" Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).
has not opposed the motion for summary judgment. The
consequence of his failure to do so is that he has conceded
the defendant's version of the facts. Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("[F]ailure
to respond by the nonmovant as mandated by the local rules
results in an admission."); Waldridge v. American
Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994). This
does not alter the standard for assessing a Rule 56(a)
motion, but does "reduc[e] the pool" from which the
facts and inferences relative to such a motion may be drawn.
Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).
February 9, 2015, Evans filed an SF-95, "Claim for
Damage, Injury, or Death, " with the BOP North Central
Regional Office. The SF-95 contained allegations of assault
and mistreatment arising from events that occurred on
November 4, 2014. That tort claim was assigned Claim Number
TRT-NRC-2015-02363. The BOP North Central Regional Office
denied Claim Number TRT-NRC-2015-02363 in a letter dated July
BOP's denial letter for Claim Number TRT-NRC-2015-02363
was mailed to Evans by certified mail on July 23, 2015. The
July 23, 2015, denial letter advises him that, if he is
dissatisfied with the BOP's action, he "may file
suit in an appropriate U.S. District Court no later than six
months after the date of mailing of this notification."
The letter was delivered in Terre Haute, Indiana, on July 27,
2015. Evans filed his Verified Complaint in this action on
February 1, 2016. According to the Complaint, Evans signed
and verified the Complaint and mailed it to the District
Court on January 27, 2016.
United States argues that this case must be dismissed because
Evans failed to comply with the terms of the FTCA when he
brought this case. The FTCA states that "[t]he United
States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the
same extent as a private individual under like
circumstances...." 28 U.S.C. § 2674. The statute
also provides that: "A tort claim against the United
States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years
after such claim accrues or unless action is begun within six
months after the date of mailing, by certified or registered
mail, of notice of final denial of the claim by the agency to
which it was presented." 28 U.S.C. 2401(b); Kanar v.
United States, 118 F.3d 527, 528 (7th Cir. 1997).
denial of Evans's tort claim was mailed to him on July
23, 2015. He therefore had through January 23, 2016 in which
to file this lawsuit. But he signed and mailed his complaint
on January 27, 2016 and it was filed in this Court on
February 1, 2016. Evans's complaint was therefore filed
beyond the six-month statute of limitations and must be
foregoing reasons, the motion to dismiss [dkt 17] is granted.