Thomas v. United States of America ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Ralph Thomas, :
:
Plaintiff, :
v. : Civil Action No. 09-2327 (CKK)
:
United States of America et al., :
:
Defendants. :
MEMORANDUM OPINION
In this civil action filed pro se, plaintiff, a federal prisoner confined at the Federal
Correctional Complex (“FCC”) in Terre Haute, Indiana, claims that he has been deprived of
adequate medical treatment because of “a long-standing custom or usage of the United States of
America . . . .” Complaint for the Deprivation of Constitutional Rights Pursuant to Title 28
U.S.C. § 1331 (“Compl.”) at 2. He sues the United States, the Federal Bureau of Prisons
(“BOP”), and BOP’s Administrator of National Inmate Appeals Harrell Watts for alleged
violations of the Eighth Amendment. Plaintiff seeks monetary damages and equitable relief.
Defendants move to dismiss the complaint pursuant to Rules 12(b)(1), (b)(2), (b)(4), (b)(5) and
(b)(6) of the Federal Rules of Civil Procedure. See Mem. of P. & A. in Supp. of Defs.’ Mot. to
Dismiss (“Defs.’s Mem.”) [Dkt. # 22] at 1.
Upon consideration of the parties’ submissions, the Court will grant the motion to dismiss
the damages claim against the United States under Rule 12(b)(1) for lack of subject matter
jurisdiction, grant the motion to dismiss the claim against Watts in his personal capacity under
Rule 12(b)(6) for failure to state a claim, and permit plaintiff to show cause why the surviving
claims for injunctive and declaratory relief should not be transferred to the Southern District of
Indiana. In light of this disposition, the Court will not address the remaining grounds for
dismissal based on alleged deficiencies in serving Watts personally with process.1
I. BACKGROUND
The allegations of the complaint are as follows. Plaintiff is a 76-year-old diabetic who
“suffers from renal insufficiency.” Compl. at 4. In December 2008, he sought treatment for
“severe cramps all over his body” that were “debilitating.” Id. at 4-5. A Unit Officer called
Health Services, but a Physician’s Assistant, who initially agreed to evaluate and treat plaintiff,
allegedly left before seeing plaintiff. Id. at 5. He “refused to even evaluate Thomas, let alone
treat his concerns.” Id. at 6. Plaintiff’s visit to Health Services allegedly occurred on a Friday
afternoon before a holiday weekend; thus, he “was forced to suffer without treatment for
approximately 96 hours.” Id. at 5. In responding to plaintiff’s administrative appeal of the
denial of his grievance about the lack of medical care, defendant Watts allegedly “falsified an
official Government document when he claimed” in July 2009 that plaintiff’s medical records
revealed that he had been treated for his cramps. Id. at 7; see Compl. Attach. at 29 (Response to
Administrative Remedy (“Admin. Resp.”)).
In the instant complaint lodged on December 8, 2009, plaintiff claims that he “does not
have a difference of opinion with FCC Medical Staff on what kind of treatment he should
receive,” Compl. at 6, but rather he disagrees “with FCC Terre Haute Medical Staff on the claim
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Because plaintiff is proceeding in forma pauperis, the Court would not grant
defendants’ motion to dismiss the complaint against Watts based on insufficient personal service,
see Defs.’s Mem. at 7-8, without first giving plaintiff the opportunity to provide additional
information for the court officers to attempt proper service. See 28 U.S.C. § 1915(d) (obligating
“[t]he officers of the court [to] serve all process, and perform all duties in [IFP] cases.”).
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that he has received ANY TREATMENT for his condition.” Id. (emphasis in original). He also
claims that the delay in medical treatment violated BOP policy permitting same-day treatment for
urgent medical needs. Id. at 5-6. Plaintiff seeks an unspecified amount of monetary damages, as
well as declaratory and injunctive relief. Id. at 12.
II. DISCUSSION
1. Subject Matter Jurisdiction
Defendants move to dismiss under Rule 12(b)(1) on the ground that sovereign immunity
bars plaintiff’s Eighth Amendment claim for damages against the United States, BOP and Watts
in his official capacity. Defs.’ Mem. at 4-5. The claim against Watts in his official capacity is
equivalent to a claim against the United States. See Kentucky v. Graham, 473 U.S. 159, 165-66
(1985). “[T]he United States may not be sued without its consent and . . . the existence of
consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983).
Such consent may not be implied, but must be “unequivocally expressed.” United States v.
Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). The Federal Tort Claims Act (“FTCA”) waives
the United States' immunity as to certain common law torts, see 28 U.S.C. §§ 1346(b)(1),
2679(b), but not constitutional tort claims, see FDIC v. Meyer, 510 U.S. 471, 478 (1994); Clark
v. Library of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984). Therefore, the Court will grant
defendants’ motion to dismiss the constitutional claim for damages against the United States,
BOP and Watts in his official capacity under Rule 12(b)(1) for lack of subject matter jurisdiction.
2. Failure to State a Claim Against Watts
Defendants move under Rule 12(b)(6) to dismiss the constitutional claim against Watts in
his individual capacity, arguing, inter alia, that it is based on an impermissible theory of
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respondeat superior. Defs.’ Mem. at 8-10. In Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court “recognized for the first time an
implied private action for damages against federal officers alleged to have violated a citizen's
constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). To be held liable,
however, the official must have participated personally in the alleged wrongdoing. Liability
cannot be based on a theory of vicarious liability, Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct.
1937, 1948 (2009) (“vicarious liability is inapplicable to Bivens . . . suits”), or a theory of
respondeat superior. Id.; see Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993)
(concluding that a complaint naming Attorney General and the BOP Director as defendants based
on theory of respondeat superior, without allegations specifying their involvement in the case,
did not state Bivens claim against them); Epps v. U.S. Att’y Gen., 575 F. Supp. 2d 232, 239
(D.D.C. 2008) (“A superior official cannot be held liable under . . . Bivens for the constitutional
torts of employees under him or her; the common law theory of respondeat superior does not
pertain to the federal government in this context.”) (citing Marshall v. Reno, 915 F. Supp. 426,
429-30 (D.D.C. 1996)).
In his one-page response to plaintiff’s appeal to BOP’s Central Office, Watts stated that
“[r]elevant portions of [plaintiff’s] medical record have been reviewed which reveal you have
received treatment for your complaints of body cramps.” Admin. Resp. Watts explained that the
medical record showed that plaintiff was “evaluated, prescribed appropriate medication, and
provided education regarding treatment of [his] condition,” and that “the record reflects you are
receiving medical care and treatment in accordance with Bureau policy.” Id. Plaintiff alleges
that Watts “falsified an official Government document” Compl. at 7, but he does not state in
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what way. Furthermore, the claim against Watts, predicated only on his issuance of an adverse
decision on plaintiff’s administrative appeal, does not establish the requisite personal
involvement of Watts in any decisions about plaintiff’s medical care. Watts therefore cannot be
held liable under Bivens for the alleged acts or omissions of medical staff at FCC Terre Haute.
See Gonzalez v. Holder, — F. Supp. 2d —, 2011 WL 44210, at * 4 (D.D.C., Feb. 8, 2011) (“[A]
prison official's decision on an inmate grievance with respect to an alleged constitutional
violation does not itself render him personally liable under Bivens.”) (citing cases).
3. Plaintiff’s Claim for Injunctive Relief
Plaintiff does not state what type of injunctive relief is sought, but it is presumed that he
seeks to compel prison officials at FCC Terre Haute to provide adequate medical treatment for
his chronic ailments. This claim brought directly under the Eighth Amendment is not foreclosed.
See Corr. Servs. Corp., 534 U.S. at 74 (recognizing that a lawsuit for “injunctive relief has long
been recognized as the proper means for preventing entities from acting unconstitutionally.”);
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (concluding that “deliberate indifference to
serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ . .
. proscribed by the Eighth Amendment. This is true whether the indifference is manifested by
prison doctors in their response to the prisoner's needs or by prison guards in intentionally
denying or delaying access to medical care or intentionally interfering with the treatment once
prescribed.”) (citations and footnotes omitted). Because plaintiff genuinely disputes that he has
received proper treatment for his ailments, the Court cannot conclude based only on defendants’
argument, see Defs.’ Mem. at 10-11, that plaintiff has stated no Eighth Amendment claim for
injunctive relief.
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Nevertheless, this venue is not a convenient forum for litigating plaintiff’s disputes with
prison officials in Terre Haute about his medical care. Under 28 U.S.C. § 1404(a), the Court
may transfer a case in the interest of justice “for the convenience of parties and witnesses . . . to
any other district . . . where it might have been brought.” In doing so, the Court considers such
factors as (1) the difficulty of transporting the prisoner for court proceedings, (2) the availability
of witnesses and files, (3) the speed of resolution of the case, and (4) whether the case involves
issues of national policy. Starnes v. McGuire, 512 F.2d 918, 929-33 (D.C. Cir. 1974).
The Court does not have sufficient information to address the speed of resolution, and
although plaintiff claims that the alleged deprivation is because of “a long-standing custom or
usage of the United States of America,” Compl. at 2, he has not described any such behavior
emanating from BOP headquarters to invoke national policy. Thus, factors three and four are
negligible to the Court’s analysis. The remaining two factors, however, weigh heavily in favor of
transferring the case to the judicial district of plaintiff’s confinement where the pertinent
witnesses and files are located and where plaintiff’s transport to court, if required, would be far
less taxing and costly. However, “before ordering transfer[,] the judge should, at minimum, issue
an order to show cause why the case should not be transferred, and thereby afford the parties an
opportunity to state their reasons for believing that this forum is most convenient or that the
proposed alternative forum is inconvenient or not within the ambit of § 1404(a).” Starnes, 512
F.2d at 934. Although the Court finds it in the interests of justice to transfer what is left of this
case to the Southern District of Indiana, it will permit plaintiff time to respond.
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III. CONCLUSION
For the foregoing reasons, the Court grants defendants’ motion to dismiss the damages
claim against the United States, BOP and Watts in his official capacity under Rule 12(b)(1), and
grants their motion to dismiss the Bivens claim against Watts in his personal capacity under Rule
12(b)(6). The Court finds it in the interests of justice to transfer the remaining claims for
injunctive and declaratory relief to the United States District Court for the Southern District of
Indiana, but will defer such action pending plaintiff’s response or the expiration of the deadline
for him to respond. A separate Order accompanies this Memorandum Opinion.
__________s/s__________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
DATE: April 29, 2011
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