United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
Robert Barroca brings this Bivens action, claiming
that defendants showed deliberate indifference to his medical
needs. See Bivens v. Six Unknown Named Agents of Fed.
Bur. of Narcotics, 403 U.S. 388 (1971). Defendants filed
a motion to dismiss (Doc. 17), moving for dismissal on a
number of grounds, including qualified immunity. Defendants
attached evidence to their motion, and the court gave the
parties notice that it intended to convert defendants'
motion to dismiss to a motion for summary judgment. The court
gave plaintiff until April 2, 2018 to file an amended
response to defendants' motion, with evidence in support.
Instead of filing an amended response on April 2, plaintiff
filed an unopposed motion for extension of time until May 2.
Then, on May 2, plaintiff filed Plaintiff's Motion for
Extension of Time to Seek Leave to Amend (Doc. 40). Notably,
this motion does not seek additional time to amend
plaintiff's summary judgment response. Instead, the
motion seeks additional time to amend the complaint.
Plaintiff did not file an amended response to defendants'
summary judgment motion. Defendants oppose plaintiff's
motion for an extension of time.
40, plaintiff essentially concedes that he cannot prove his
remaining constitutional claims against defendants Aulepp,
Clark, and the Bureau of Prisons. (See Doc. 40 at
3-4 (“[A]fter deliberate consideration, Plaintiff is
now of the opinion that it will be difficult to prove the
subjective element of his claims of deliberate
indifference.”).) Plaintiff previously conceded that
all other claims should be dismissed. (See Doc. 32
at 2 n.1.) Plaintiff does believe, however, that he can state
claims for negligence against the United States based on
essentially the same facts pleaded in his complaint.
Plaintiff represents that he currently has an administrative
claim pending with the Bureau of Prisons, and after that
claim is exhausted, he will be in a position to file an
amended complaint in this case for negligence against the
United States under the Federal Tort Claims Act
(“FTCA”). Plaintiff therefore is not seeking to
amend his complaint now, but asking the court to
essentially stay the case until after plaintiff exhausts his
administrative claim. At that time, plaintiff will seek leave
problem with plaintiff's approach is that if summary
judgment is warranted in favor of defendants, such a ruling
would terminate all of the parties and claims remaining in
the case. There would not be any “case” to stay
while plaintiff exhausts his administrative remedies. In
addition, this court cannot predict the outcome of
plaintiff's exhaustion efforts. Plaintiff may receive
relief from the Bureau of Prisons, thereby mooting any
prospective requests for relief before this court.
filed this case in December 2016. Defendants moved to dismiss
the case on August 1, 2017. After three extensions of time to
respond, plaintiff responded to the motion on January 3,
2018. The court stayed discovery during that time. Plaintiff
filed his administrative claim with the Bureau of Prisons on
January 19, 2018. The Bureau of Prisons is not required to
respond to the administrative claim until July 18, 2018, and
plaintiff seeks until August 31, 2018 to ask for leave to
amend his complaint.
light of the length of time defendants' motion has been
pending, and the additional time that would pass if the court
would wait until after the Bureau of Prisons responds to
plaintiff's administrative claims, the court determines
that plaintiff has not shown good cause for further delaying
a ruling on defendants' summary judgment motion. See
generally Fed. R. Civ. P. 6(b)(1) (requiring good cause
for an extension of time). Defendants' summary judgment
motion is unopposed, and all of the facts are deemed
admitted. D. Kan. R. 56.1(a). Based on the arguments and
legal authority in the summary judgment motion, as well as
plaintiff's withdrawn claims, the court determines that
summary judgment in favor of defendants is warranted.
Plaintiff has offered no evidence of deliberate indifference.
Without deliberate indifference, plaintiff cannot establish a
constitutional violation. See Martin v. Bd. of Cnty.
Com'rs of Cnt. of Pueblo, 909 F.2d 402, 406 (10th
Cir. 1990) (requiring deliberate indifference for
constitutional claims about a prisoner's medical
treatment). And without a constitutional violation, plaintiff
cannot state a claim against individual defendants in their
individual capacities or against the Bureau of Prisons for
court grants summary judgment for defendants as to all
existing claims. This action leaves no claims to keep the
case open for plaintiff to later file a motion to amend the
complaint. The court therefore finds no good cause for
granting plaintiff an extension of time to file a motion to
add an FTCA claim in August 2018. Plaintiff's motion for
an extension of time is denied.
IS THEREFORE ORDERED that Plaintiff's Motion for
Extension of Time to Seek Leave to Amend (Doc. 40) is denied.
IS FURTHER ORDERED that defendants' Motion for
Summary Judgment (Doc. 17) is granted. The Clerk of Court is
directed to enter judgment ...