Jerome Weathington v. USA ( 2017 )

Case: 16-30829 Document: 00514110515 Page: 1 Date Filed: 08/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-30829 FILED
Summary Calendar August 10, 2017
Lyle W. Cayce
Clerk
JEROME WEATHINGTON,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA; UNKNOWN DENTIST; UNKNOWN
WARDEN,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:16-CV-87
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jerome Weathington, federal prisoner # 08121-028, appeals from the
district court’s dismissal of his complaint filed pursuant to the Federal Tort
Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). When, as here, a district court
dismisses a complaint as both frivolous and for failure to state a claim under
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-30829
28 U.S.C. § 1915 and 28 U.S.C. § 1915A, this court reviews the dismissal
de novo. See Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009); Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). “Factual allegations must be
enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful
in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citation omitted).
Weathington argues that the district court erred by dismissing his FTCA
claim as time barred. The FTCA “requires a claimant to file an administrative
claim within two years [of accrual] and file suit within six months of its denial.”
Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001); see also 28 U.S.C.
§ 2401(b). A cause of action accrues within the meaning of § 2401(b) “when the
plaintiff knows or has reason to know of the injury which is the basis of the
action.” Ramming, 281 F.3d at 162. Because Weathington knew in 2009 that
the dental work performed on him was not complete and he did not file an
administrative claim until several years after the two-year statute of
limitations expired, the district court did not err in dismissing the FTCA claim
as time barred. See Beech v. United States, 345 F.2d 872, 874 (5th Cir. 1965)
(“Where the trauma coincides with the negligent act and some damage is
discernible at the time, [§ 2401(b)’s] two-year statute of limitations begins to
run, even though the ultimate damage is unknown or unpredictable.”); see also
In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 191 (5th
Cir. 2011), abrogated on other grounds by United States v. Kwai Fun Wong,
135 S. Ct. 1625 (2015).
Weathington also argues that the district court erred by dismissing his
Bivens claim against the dentist who performed dental work on him in 2009.
Weathington’s claim for injunctive relief under Bivens regarding his dental
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Case: 16-30829 Document: 00514110515 Page: 3 Date Filed: 08/10/2017
No. 16-30829
care at the Federal Correctional Institution in Pollock, Louisiana, is moot
because he was transferred to and currently resides in a different prison. See
Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (holding that transfer to
a different facility rendered claims for declaratory and injunctive relief moot).
The district court’s judgment is AFFIRMED.
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