Michael Little v. W. Holzapful ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7646
MICHAEL LITTLE,
Plaintiff – Appellant,
v.
W. HOLZAPFUL, Special Investigating Supervisor; ADAM PRICE,
Correctional Officer; CASE MANAGER COORDINATOR, Unknown,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cv-00041-FPS-JSK)
Submitted: January 31, 2013 Decided: March 14, 2013
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Michael Little, Appellant Pro Se. Alan McGonigal, Assistant
United States Attorney, Wheeling, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Little appeals from the district court’s order
adopting the report and recommendation of the magistrate judge
and granting the defendants’ motion to dismiss or, in the
alternative, motion for summary judgment on Little’s complaint
filed under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). We vacate and remand for
further consideration of Little’s attempt to raise a claim under
the Federal Tort Claims Act (“FTCA”). We affirm the remainder
of the district court’s order.
The district court adopted the recommendation of the
magistrate judge that, to the extent Little was attempting to
raise an FTCA claim, his claim was untimely filed more than six
months after his administrative tort claim was denied. The
magistrate judge noted that Little’s claim was administratively
denied on August 17, 2010, and his complaint was filed March 14,
2011, more than six months later. However, we find that the
August 17 letter stated only that Little’s complaint had been
received and did not deny the claim. On appeal, Little submits
evidence showing that his administrative tort claim was actually
denied on June 30, 2011. We therefore vacate the district
court’s ruling on this issue and remand for further
consideration of the timeliness of Little’s FTCA claim.
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Little also contends that the district court erred in
failing to permit him to conduct discovery. He does not allege
that he ever moved for discovery or claimed that he could not
respond to the motion for summary judgment without discovery.
Instead, Little avers that, by denying his motion to amend his
complaint, * the district court cut off his opportunity to conduct
discovery. Specifically, he alleges that he was entitled to
copies of regulations covering inmate processing. However,
because these regulations would not have had any relevance to
the reasons summary judgment was granted, the district court did
not err in denying the motion to amend without sua sponte
granting discovery.
With regard to the remainder of Little’s appellate
claims, we affirm for the reasons stated by the district court.
Little v. Holzapful, No. 5:11-cv-00041-FPS-JSK (N.D. W. Va.
Sept. 11, 2012). We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
*
Little sought to amend his complaint to add defendants and
claims of deliberate indifference to his medical needs.
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