                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0847n.06
                             Filed: December 13, 2007

                                               Case No. 06-5849

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

 DULCE CUCO,                                                  )
                                                              )
            Plaintiff-Appellant,                              )
                                                              )        ON APPEAL FROM THE
                   v.                                         )        UNITED STATES DISTRICT
                                                              )        COURT FOR THE EASTERN
 FEDERAL MEDICAL CENTER,                                      )        DISTRICT OF KENTUCKY
 LEXINGTON; JOE BOOKER, JR., Warden;                          )
 MICHAEL GROWSE; REBECCA                                      )
 DURBIN; PAULETTE SHIRLEY;                                    )
 QUENTIN MOORE; LINDA DE HOYOS;                               )
 PAM SCHNEIDER; BELINDA SNEAD;                                )
 RANULFO MENDOZA; ROBERT                                      )
 WILLIAMS; ROSIE HARLESS; TERI                                )
 WARD; PHILLIP LAFLEUR; MATTHEW                               )
 ZAGULA; SUSAN WILCOX, Individually                           )
 and in their Official Capacities,                            )
                                                              )
       Defendants-Appellees.                                  )
 _______________________________________                      )

BEFORE: BATCHELDER, COLE and GRIFFIN, Circuit Judges.

        ALICE M. BATCHELDER, Circuit Judge. Plaintiff Dulce Cuco appeals the district

court’s order granting summary judgment to the Federal Medical Center-Lexington (“FMC-

Lexington”) and numerous federal prison officials and healthcare providers1, in both their individual


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          Joe Booker, Jr., W arden; Dr. Michael Growse, FM C-Lexington Clinical Director; Rebecca Durbin,
Physician’s Assistant; Paulette Shirley, Registered Nurse; Quentin M oore, Nurse Practitioner; Dr. Linda De Hoyos;
Dr. Pam Schneider; Belinda Snead, Associate W arden; Ranulfo Mendoza, Physician’s Assistant; Robert W illiams,
Physician’s Assistant; Rosie Harless, Executive Assistant; Teri W ard, Unit Manager; Phillip LaFleur, Physician’s
Assistant; Matthew Zagula, Physician’s Assistant; and Dr. Susan W ilcox.

        Dr. Pam Schneider is not a federal employee. Instead, she was a contract physician not directly employed
and official capacities (collectively “Defendants”), on her claim that the Defendants violated, inter

alia, the Eighth Amendment’s prohibition on cruel and unusual punishment. Cuco also appeals the

district court’s denial of her motions to amend her complaint and to delay consideration of the

Defendants’ summary judgment motion pending further discovery.

         Cuco entered the FMC-Lexington on November 11, 2003, to serve a 10-month prison term

following her conviction for conspiring to make a false alien employment application. Cuco, a

morbidly obese woman, suffers from anemia, and prior to entering the FMC-Lexington, she had

followed a treatment regimen of intravenous iron (“IV iron”) to combat her anemia. She used IV

iron because oral iron supplements upset her stomach, causing her significant pain. Upon entering

the FMC-Lexington, she apprised the medical staff of her anemia and IV iron therapy. She alleges

that the Defendants refused to treat her anemia with IV iron therapy and instead gave her oral iron

supplements, even though the oral iron was not as effective and caused her gastric upset. Cuco also

began to experience extremely heavy and long-lasting menstrual cycles.                             Throughout her

incarceration, Cuco complained of fatigue, dizziness, gastric pain and discomfort, and continued

heavy menstrual bleeding. She was released on August 11, 2004, to report to a half-way house in

New Jersey. Cuco alleges that she was instead admitted immediately to a nearby hospital where she

remained for a week and received several blood transfusions.

         Cuco brought suit against the FMC-Lexington and members of its administrative and medical

staff. She alleged (1) an Eighth Amendment deliberate indifference claim, pursuant to 42 U.S.C. §


by the Bureau of Prisons. The district court, however, assumed without deciding that Dr. Schneider “may be
considered a federal actor subject to civil rights liability,” and therefore granted summary judgment in favor of Dr.
Schneider, along with the other federal Defendants. Cuco has not challenged this aspect of the district court’s
opinion. For the purposes of this opinion, we will likewise consider Dr. Schneider a federal actor subject to civil
rights liability.



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1983; (2) claims arising under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

(“ADA”); and (3) pendent state law claims arising under Kentucky common law concerning

negligence, gross negligence, and intentional infliction of emotional distress. The government filed

a motion to dismiss, or, in the alternative, a motion for summary judgment, on the grounds of

sovereign and qualified immunity and the statute of limitations. In response, Cuco moved to delay

consideration of the Defendants’ motion for summary judgment pursuant to Rule 56(f) of the Federal

Rules of Civil Procedure; she also sought to amend her complaint to add a claim under the

Rehabilitation Act, 29 U.S.C. § 701, et seq., against the FMC-Lexington and tendered an amended

complaint adding the United States as a defendant and adding a claim under the Federal Tort Claims

Act, 28 U.S.C. §§ 2671-2680 (“FTCA”), against the United States.

        The district court issued an exhaustive 89-page opinion dismissing all of Cuco’s claims.

After construing Cuco’s § 1983 claims as claims brought pursuant to Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the district court concluded that (1)

sovereign immunity barred suit against the FMC-Lexington and the Defendants in their official

capacities; (2) the exclusivity provision in the FTCA barred the Bivens claims against the individual

defendants who were commissioned officers with the U.S. Public Health Services; (3) the Bivens

claims failed as against the administrative staff because they had no personal involvement in Cuco’s

medical care; (4) certain Bivens claims — including her inappropriate-treatment-of-anemia claim

— were barred by the statute of limitations as to the medical officials even though Cuco’s efforts to

exhaust her administrative remedies tolled the limitations period for a short time; (5) the “continuing

violations” doctrine did not further toll the statute of limitations; (6) even if the statute of limitations

did not bar all of Cuco’s Bivens claims, she failed to establish that the individual Defendants violated


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her constitutional rights; and (7) that even if Cuco demonstrated that her medical treatment violated

her rights under the Eighth Amendment, the individual Defendants were still entitled to qualified

immunity.

        The district court dismissed Cuco’s ADA claim and denied Cuco’s motion to amend the

complaint to add a Rehabilitation Act claim, finding that, as a matter of law, such a claim could not

survive a motion to dismiss. The court found that Cuco’s pendent state law claims were barred by

the FMC-Lexington’s sovereign immunity and the individual Defendants’ absolute immunity. The

court also refused to accept Cuco’s tendered amended complaint, finding that Cuco did not timely

move to add the United States as a defendant and the amendment did not relate back to the original

complaint.

        Cuco timely appealed, limiting her appeal to whether the district court erred (1) in finding

that she did not state an Eighth Amendment claim against the Defendants for their inappropriate

treatment of her anemia; (2) in denying her motion to amend her complaint and add (a) the

Rehabilitation Act claim and (b) the United States as a defendant with a corresponding FTCA claim

against the United States; (3) in its calculation of the tolling period for the statute of limitations and

in its finding that the “continuing violations” doctrine was inapplicable; and (4) in denying her the

opportunity to conduct further discovery under Rule 56(f) of the Federal Rules of Civil Procedure.

        Having carefully considered the record on appeal, the briefs of the parties, and the applicable

law, and having had the benefit of oral argument, we are convinced that the district court did not err

in its conclusions, nor did it abuse its discretion in denying Cuco’s motions to amend and to conduct

further discovery. As the district court’s extensive opinion carefully and correctly sets out the law

governing Cuco’s claims and clearly articulates the reasons underlying its decision, the issuance of


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a full written opinion by this court would serve no useful purpose. Accordingly, for the reasons

stated in the district court’s opinion, we AFFIRM the judgment. However, because the district

court’s Memorandum Opinion and Order correctly holds that the claims in the complaint are to be

dismissed with prejudice, but the Judgment memorializing the Opinion and Order dismisses them

without prejudice, we REMAND with instructions that the district court dismiss this matter with

prejudice.




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