McBarron v. Federal Bureau of Prisons

332 F. App'x 961

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 15, 2009
• Docket: 08-10197
• Status: Unpublished

Opinion

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. § 2241 proceeding and therefore constituted “ ‘[rjepetitious 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 Hams 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 du-plicative 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); Fed. R.App. 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 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 conelusory 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. MeBarron’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 States as the sole defendant. See Galvin v. OSHA, 860 F.2d 181, 183 & n. 3 (5th Cir.1988).

AFFIRMED.

* 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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).