Jeffrey Rodd v. Leann LaRiva

United States Court of Appeals
For the Eighth Circuit
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No. 21-1724
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Jeffrey Charles Rodd
lllllllllllllllllllllPlaintiff - Appellant
v.
Warden Leann LaRiva et al.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: September 15, 2020
Filed: September 20, 2021
[Unpublished]
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Before LOKEN, BENTON, and KOBES, Circuit Judges.
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PER CURIAM.
Federal inmate Jeffrey Rodd brought this action under Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act against various
prison staff, alleging they were deliberately indifferent to his serious medical needs
when they left him outside in sub zero weather in December 2014, causing serious
injury to his eyes, and then delayed effective treatment until successful surgeries on
each eye in 2017.
The district court1 granted summary judgment dismissing Rodd’s Bivens claims
for failure to exhaust available administrative remedies, as he did not attempt to file
formal grievances. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). His
alleged blindness did not excuse failure to exhaust because Bureau of Prisons
regulations provide for assistance in obtaining administrative remedies, and Rodd did
not allege that prison officials prevented him from seeking assistance. See 28 C.F.R.
§ 542.16(a). The court dismissed Rodd’s Federal Tort Claims Act claims because
they were not adequately presented in any of the five prior administrative tort claims
Rodd filed; this action was not filed within six months after the Bureau of Prisons
denied the only arguably related claim, see 28 U.S.C. § 2401(b); and Rodd was not
entitled to equitable tolling because he failed to establish that anything prevented him
from timely filing suit, see Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
After careful review of the record, we agree with the district court’s analysis
and further conclude the court did not abuse it discretion in denying Rodd’s motion
for appointment of counsel. Accordingly, we affirm the judgment of the district court
but modify dismissal of the Bivens claims to be without prejudice. We deny Rodd’s
request that we appoint appellate counsel.
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1
The Honorable Nancy E. Brasel, United States District Judge for the District
of Minnesota.
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