               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0922n.06

                                          No. 13-5663                                FILED
                                                                                 Oct 25, 2013
                                                                            DEBORAH S. HUNT, Clerk
                         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.
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
       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
                                          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
