Gonzalez v. Holder ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
MARCOS GONZALEZ, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-0346 (CKK)
)
ERIC HOLDER, et al., )
)
Defendants. )
___________________________________ )
MEMORANDUM OPINION
This matter is before the Court on defendants’ motion to dismiss. For the reasons
discussed below, the motion will be granted in part and denied in part without prejudice, and this
action will be transferred to the United States District Court for the Western District of Texas.
I. BACKGROUND
Plaintiff, a federal inmate in the custody of the Federal Bureau of Prisons (“BOP”),
alleges that, in November 2002, he suffered “an injury in the recreation yard at the Federal
Correctional Institution in Beaumont, Texas,” Compl. ¶ 30, which caused him “pain in his groin,
testicles and inside thigh . . . [continuing] unabated for over six years,” id. ¶ 31. In July 2008, he
“was diagnosed . . . as having a hernia [which] continued to grow over the years as the rupture of
the abdomen wall became larger.” Id. ¶ 32. Notwithstanding several efforts to obtain medical
treatment, see id. ¶¶ 33-40, he continued to endure pain, id., ¶¶ 41, 50. Plaintiff was told that the
hernia could be repaired by laproscopic surgery, see id. ¶ 49, yet “[d]efendants have refused to
provided needed medical attention,” which has “endangered [plaintiff’s] health and well being,”
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id. ¶ 50.
In Counts I and II of his complaint, plaintiff alleges that Claude Maye, FCI Bastrop’s
Warden, is aware of plaintiff’s “injury[] and the need for immediate surgical intervention . . . and
. . . ha[s] failed to act, or by omission ha[s] been deliberately indifferent to [p]laintiff’s medical
needs, id. ¶ 61, causing plaintiff “unnecessary and wanton infliction of pain and suffering,” id. ¶
62; see id. ¶ 66. For this alleged violation of plaintiff’s rights under the Eighth Amendment to
the United States Constitution, plaintiff sues Warden Maye in his individual capacity under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and in
his official capacity. See id. ¶¶ 4, 66. He demands compensatory and punitive damages as well
as costs and attorney fees. See id. ¶¶ 63, 67. Similarly, in Counts I and III of his complaint,
plaintiff alleges that Dr. McLaughlin, Clinical Director at FCI Bastrop, and Michael
Schappaugh, a commissioned officer of the U.S. Public Health Service Officers Corps, too, are
aware of plaintiff’s need for surgical intervention and “have failed to direct that the medical
procedure[] be performed,” and thus “have been deliberately indifferent to [p]laintiff’s medical
needs.” Id. ¶ 69; see id. ¶ 61. These defendants are sued in their individual and official
capacities, see id. ¶¶ 5-6, 63, 70, and plaintiff demands compensatory and punitive damages as
well as costs and attorney fees. See id.
In Count V, plaintiff alleges that Dr. Regina Benjamin, Surgeon General, and
Schappaugh “are responsible for providing adequate medical care to inmates,” id. ¶ 78, that they
have failed or otherwise refused to provide plaintiff the treatment prescribed for him, and that
they have “acted with deliberate indifference to [p]laintiff’s medical needs,” id. ¶ 79. He sues
Dr. Benjamin in her official capacity, and Schappaugh in both his official and individual
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capacity, “for malpractice, deliberate indifference, conscious avoidance or deliberate avoidance
for the pain [p]laintiff has suffered and the continued degeneration of his injuries,” for which he
demands monetary compensation. Id.
Plaintiff also brings a claim in Count IV under the Administrative Procedure Act
(“APA”), see 5 U.S.C. § 701 et seq., against the United States Department of Justice (“DOJ”),
the BOP, and the Public Health Service, for the agencies’ failure “to promulgate regulations
along with a notice and comment period to provide procedures for the equal access to health care
by inmates” in BOP custody. Compl. ¶ 72. He demands a declaratory judgment and injunctive
relief directing the Attorney General, the BOP Director, and the Surgeon General to “promulgate
independent regulations authorizing the [Public Health Service] . . . to administer [healthcare] to
inmates.” Id. ¶ 76.
Lastly, in Count VI, plaintiff demands mandamus relief to compel defendants to provide
“necessary medical care [to include] out-patient, in-patient care, medicine, and/or medical
procedures to repair an injury and to further prevent it’s [sic] degeneration, or place [p]laintiff
into jeopardy of loss of life[] or further illness.” Id. ¶ 82.
II. DISCUSSION
A. Plaintiff’s Claims Against the Individual Defendants in their
Official Capacities Will Be Dismissed
Defendants move to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure
on the ground that sovereign immunity shields the United States from suit with respect to
plaintiff’s constitutional claims. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’
Mem.”) at 7-8.
The claims plaintiff brings against individual defendants in their official capacities, see
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Compl. ¶¶ 2-6, are treated as if they were brought against the United States directly. 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). Accordingly, defendant’s motion to dismiss plaintiff’s constitutional claims
against the individual defendants in their official capacities will be granted.
B. Plaintiff’s Claims Against Defendants McLaughlin, Maye and Schappaugh Will Not Be
Dismissed for Lack of Subject Matter Jurisdiction, Insufficient Process,
or Insufficient Service of Process
Defendants McLaughlin, Maye and Schappaugh move to dismiss under Rules 12(b)(2),
(4) and (5) on the ground that insufficient process and insufficient service of process deprive the
Court of personal jurisdiction over them. See Defs.’ Mem. at 8-9. Plaintiff responds that the
“lack of personal service . . . should not be held against him” in light of his incarceration. Pl.’s
Answer to Mot. to Dismiss (“Pl.’s Opp’n”) at 1. He represents that, as an incarcerated person, he
“has no internet access [and] no access to . . . phone directories from which he could glean the
residence addresses of defendants.” Id.The Court is mindful that a pro se party who is proceeding in forma pauperis may rely on
the Clerk of Court and the United States Marshals Service to effect service of process on his
behalf. See Fed. R. Civ. P. 4(c)(3). In these circumstances, the plaintiff generally should not be
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penalized for court officers’ failure or mistake in properly effecting service. See Mondy v. Sec’y
of the Army, 845 F.2d 1051, 1060 (D.C. Cir. 1988) (MacKinnon, J. concurring). Plaintiff is not
wholly relieved of his obligation to serve the defendants because of his pro se status, however.
See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993) (“While in forma pauperis plaintiffs
should not be penalized for a marshal’s failure to obtain proper service, it was [the plaintiff’s]
responsibility to provide proper addresses for service on [the defendants].”); Thomas v.
Robinson, No. 8:08-CV-662-T-30, 2008 WL 5110857, at *1 (M.D. Fla. Nov. 25, 2008) (“Even
though the Court must assist pro se litigants proceeding in forma pauperis with service of
process, the Court cannot meet this duty when a plaintiff fails to provide the Court with a valid
name or address for a defendant.”). In this case, the failure to effect service cannot “be ascribed
to the plaintiff’s dilatoriness or fault or inaction.” Holly v. Metro. Transit Auth., 213 Fed. Appx.
343, 345 (5th Cir. 2007) (per curiam) (internal quotation marks and citation omitted).
Accordingly, defendants’ motion to dismiss under Rules 12(b)(2), (4) and (5) will be denied
without prejudice. See, e.g., Portis v. Caruso, No. 1:09CV846, 2010 WL 3609517, at *1 (W.D.
Mich. Sept. 13, 2010) (adopting Magistrate Report and Recommendation to grant defendants’
motion under Rule 12(b)(5), construed as a motion to quash service, and allowing the prisoner
plaintiff another attempt to properly serve defendants); Kaminsky v. Wake Forest Univ. Baptist
Med. Ctr., No. 1:08CV882, 2009 WL 3208449, at *5 (M.D.N.C. Sept. 30, 2009); Muhammad v.
Bunts, No. 1:03CV228, 2006 WL 898128, at *8 (N.D.W. Va. March 31, 2006).
C. Plaintiff’s Bivens Claim Against Warden Maye Will Be Dismissed
Plaintiff alleges that, as FCI Bastrop’s Warden, defendant Maye is “responsible for the
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custody and care of inmates housed” there. Compl. ¶ 4. His sole involvement in the events
giving rise to plaintiff’s claims appears to be his responses to grievances filed by plaintiff in
2009 regarding his desire to see a medical doctor, id., Ex. D-E (Request for Administrative
Remedy dated April 9, 2009 and Response dated April 28, 2009), and a surgeon, id., Ex. J
(Informal Request to Staff dated June 10, 2009 and Response dated July 29, 2009). Defendants
contend that plaintiff “does not identify any direct involvement by [d]efendant Maye in the
alleged constitutional violations,” Def.’s Mem. at 12, and that Maye “is not personally liable for
constitutional torts of employees he supervises under the doctrine of respondeat superior,” id. at
11. In response, plaintiff argues that Maye is responsible for “a direct denial of treatment,” Pl.’s
Opp’n at 4, through this response to an inmate grievance:
A review of your case reveals that you have an appointment with a
surgeon in the near future. Should you require follow-up care in the
interim, you have access to Health Services via sick call, Inmate
Request to Staff, and the Health Services Administrator at main line.
Compl., Ex. J (Response to Request for Administrative Remedy, Remedy I.D. #547957-F1). In
plaintiff’s view, Maye “is personally responsible for his own actions.” Pl.’s Opp’n at 4.1
In Bivens, 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.
1
The Court will not address plaintiff’s apparent attempt to add a new claim against
Warden Maye “for failing to provide proper training and guidance to McLaughlin and
Schappaugh,” Pl.’s Opp’n at 4, because it does not appear in the complaint. See Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam) (holding that
plaintiff may not raise new legal claim for the first time in his opposition to defendant’s
summary judgment motion). Plaintiff, however, might consider filing an amended complaint to
add new claims or parties to this suit. See Carter v. Dep’t of the Navy, No. 05-cv-0775, 2006
WL 2471520, at *4 (D.D.C. Aug. 24, 2006) (dismissing without prejudice new claims raised in
plaintiff’s opposition to defendant’s motion to dismiss with leave to amend the complaint), aff’d,
258 Fed. Appx. 342 (D.C. Cir. 2007) (per curiam).
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Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). It appears that the plaintiff’s constitutional
claim against Warden Maye could only be based on the theory of respondeat superior, and thus
plaintiff purports to hold him liable for the wrongful acts committed within the scope of his
federal employment. See generally Monell v. Dep’t of Soc. Serv. of the City of New York, 436
U.S. 658, 690-94 (1978). Warden Maye’s supervisory role does not render him personally liable
for the alleged unconstitutional acts of his subordinates. See id. at 691 (respondeat superior
liability cannot form the basis of liability for a § 1983 claim). And 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. See Arocho v. Nafziger, 367 Fed. Appx. 942, 954 (10th Cir.
2010) (affirming dismissal of Bivens claim against warden because the denial of a grievance
regarding treatment for Hepatitis C does not establish his participation in alleged constitutional
violation); Hansen v. Bragg, No. EP-09-CV-166, 2010 WL 157509, at *9 (W.D. Tex. Jan. 12,
2010) (dismissing Bivens claim against warden whose “only involvement was in responding to
Plaintiff’s administrative remedy request and in discussing Plaintiff’s medical needs with him
and directing him to request information about his dentures from the medical personnel,” and
citing cases supporting the proposition that “the act of responding to an inmate's administrative
remedy, alone, is insufficient to support a constitutional claim against the supervisory official
who so responded”).
Simply put, “vicarious liability is inapplicable to Bivens . . . suits,” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1948 (2009). Plaintiff fails to articulate any specific action taken by Warden Maye
in violation of his constitutional rights, and, therefore, this Bivens claim must be dismissed. Id.;
Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993) (concluding that a complaint
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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. Attorney Gen., 575 F. Supp. 2d 232, 239 (D.D.C. 2008) (citing
Marshall v. Reno, 915 F. Supp. 426, 429-30 (D.D.C. 1996)) (“A superior official cannot be held
liable under Section 1983 or 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.”).
D. Plaintiff’s Bivens Claim Against Schappaugh Will Be Dismissed
Plaintiff purports to bring his claims against Schuppaugh under 42 U.S.C. § 233. See
Compl. ¶ 13. Defendants move to dismiss this claim on the ground that, as an officer of the
Public Health Service, Schappaugh is absolutely immune from suit under 42 U.S.C. § 233(a),
Defs.’ Mem. at 12, which provides:
The remedy against the United States provided by [28 U.S.C. §§
1346(b) and 2672], or by alternative benefits provided by the United
States where the availability of such benefits precludes a remedy
under [28 U.S.C. §§ 1346(b)], for damage for personal injury,
including death, resulting from the performance of medical, surgical,
dental, or related functions, including the conduct of clinical studies
or investigation, by any commissioned officer or employee of the
Public Health Service while acting within the scope of his office or
employment, shall be exclusive of any other civil action or
proceeding by reason of the same subject-matter against the officer
or employee . . . whose act or omission gave rise to the claim.
42 U.S.C. § 233(a).
Schappaugh is “an employee of the Commissioned Corps of United States Public Health
Service,” Defs.’ Mem., Ex. A (Schappaugh Decl.) ¶ 2, and, effective September 27, 2009, he is
the Health Services Administrator at FCI Bastrop, id. ¶ 1; see id., Attach. (Request for Personnel
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Action – Commissioned Officer and Personnel Order). The complaint alleges personal injury
resulting from the performance of Schappaugh’s duties as the Health Services Administrator.
“By its terms, § 233(a) limits recovery for such conduct to suits against the United States,” Hui
v. Castaneda, 130 S. Ct. 1845, 1851 (2010), and plaintiff’s Bivens claims against this Public
Health Service officer are precluded, id. at 1854; see Murrell v. Serrato, No. CV 09-0556, 2010
WL 3705288, at *4 (D. Ariz. Sept. 14, 2010) (dismissing prisoner plaintiff’s Bivens claims
against Public Health Service employees for alleged denial of adequate medical and dental care
for lack of subject matter jurisdiction); Edwards v. Price, No. 09 CV 5583, 2010 WL 2836715,
at *5 (N.D. Ill. July 16, 2010) (dismissing Bivens claim against Public Health Service nurse in
her individual capacity because she is immune from suit under § 233(a)); Tillitz v. Jones, No.
03-742, 2004 WL 2110709, at *4 (D. Or. Sept. 22, 2004) (dismissing Bivens claims against the
Chief Dental Officer at FCI Sheridan for lack of subject matter jurisdiction, noting that “by
operation of § 233(a) [plaintiff] must bring his claim against the United States pursuant to the
FTCA.”).
E. Plaintiff’s Claim for Mandamus Relief Will Be Dismissed as Moot
Defendants argue that plaintiff is not entitled to mandamus relief compelling them to
provide a medical procedure, Defs.’ Mem. at 21, and plaintiff concedes that his “mandamus
claim is now moot by virtue of the fact that the BOP provided hernia surgery.” Pl.’s Opp’n at 3.
Accordingly, the Court will dismiss Count VI of the complaint as moot.
F. Plaintiff’s APA Claim Will Be Dismissed
Plaintiff contends that defendants are required “to promulgate regulations along with a
notice and comment period” setting forth “procedures for the equal access to health care by
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inmates,” Compl. ¶ 72, regardless of the facility to which they are designated, see id. ¶ 75.
Wholly absent, plaintiff alleges, “is specific direction to medical staff to determine inmates[’]
eligibility for medial treatment.” Id. Plaintiff apparently seeks revision of the BOP’s Program
Statement 6301.01, Patient Care (1/15/2005), and demands new regulations by the Public Health
Service directing it “to administer healthcare to inmates.” Id. ¶ 76. Defendants move to dismiss
plaintiff’s APA claims, arguing that such “interpretive” rules are not subject to the APA. Defs.’
Mem. at 19. Plaintiff does not address this argument in his opposition, and the Court treats the
matter as conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 238 F. Supp.
2d 174, 178 (D.D.C. 2002) (““It is well understood in this Circuit that when a plaintiff files an
opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a
court may treat those arguments that the plaintiff failed to address as conceded.”) (citations
omitted); see Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294-95 (D.C. Cir. 2004) (affirming
district court’s dismissal of a complaint where the plaintiff failed to comply with Local Civil
Rule 7(b)).2
Furthermore, as defendants argue, the BOP’s program statements generally are
considered internal policy statements rather than enforceable legislative rules to which the APA
applies.3 See Phillips v. Hawk, No. 98-5513, 1999 WL 325487, at *1 (D.C. Cir. Apr. 14, 1999)
2
If a party fails to file a memorandum of points and authorities in opposition to a
motion within the time allotted by the Court, the Court may treat the motion as conceded. LCvR
7(b).
3
Generally, an agency must publish a general notice of proposed rule making in
the Federal Register, 5 U.S.C. § 553(b), give notice to interested parties and an opportunity for
them to comment, 5 U.S.C. § 553(c), and publish the rule not less than 30 days before its
effective date, 5 U.S.C. § 553(d). These provisions do not apply “to interpretative rules, general
(continued...)
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(per curiam) (concluding that Program Statements 5100.06 and 5800.09 were internal agency
guidelines not subject to the APA’s notice and comment requirements); Parsons v. Pitzer, 149
F.3d 734, 738 (7th Cir. 1998) (concluding that Program Statement 5162.02, which “merely lists
certain crimes and identifies them as crimes of violence in all cases or in some cases[,] . . . is not
a substantive rule subject to the [APA]”). Accordingly, Count IV of the complaint will be
dismissed.
G. The Remaining Bivens Claims Will Not Be Dismissed for Improper Venue
Defendants move under Rule 12(b)(3) to dismiss plaintiff’s Bivens claims on the ground
that venue in this district is improper. Defs.’ Mem. at 10. Plaintiff counters that, under 28
U.S.C. § 1391(e), venue in the District of Columbia is proper for any case brought against the
BOP. Pl.’s Opp’n at 3. His reliance on 28 U.S.C. § 1391(e) is misplaced, however, insofar as he
brings Bivens claims against the individual defendants in their individual capacities.4
“Courts in this jurisdiction must examine challenges to personal jurisdiction and venue
carefully to guard against the danger that a plaintiff might manufacture venue in the District of
Columbia. By naming high government officials as defendants, a plaintiff could bring a suit here
that properly should be pursued elsewhere.” Cameron, 983 F.2d at 256. Venue in a Bivens case
3
(...continued)
statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. §
553(b)(3)(A); see 5 U.S.C. § 553(d)(2).
4
Under 28 U.S.C. § 1391(e), a civil action against a government officer or
employee “may . . . be brought in any judicial district in which (1) a defendant in the action
resides, (2) a substantial part of the events or omissions giving rise to the claim occurred . . . ., or
(3) the plaintiff resides if no real property is involved in the action.” Id. Under this provision,
notwithstanding the “residence” of the Attorney General and Dr. Benjamin and the location of
the headquarters of the DOJ and the BOP, venue in this district is improper.
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is governed by 28 U.S.C. § 1391(b). Stafford v. Briggs, 444 U.S. 527, 544 (1980); Cameron,
983 F.2d at 257 (applying § 1391(b) to Bivens action); Freeman v. Fallin, 254 F. Supp. 2d 52, 57
(D.D.C. 2003) (same). Under that provision, venue is proper in “(1) a judicial district where any
defendant resides, if all defendants reside in the same State, (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred . . . or (3) a judicial
district in which any defendant may be found, if there is no district in which the action may
otherwise be brought.” 28 U.S.C. § 1391(b). Thus, venue is proper if the “activities that
transpired in the forum district were not insubstantial in relation to the totality of the events”
plaintiff alleges. Lamont v. Haig, 590 F.2d 1124, 1134 n.62 (D.C. Cir. 1978).
The Court concludes that venue is improper in this district. All of the defendants do not
reside in the District of Columbia; a substantial part of the events relevant to this case did not
occur in this district; there is another district where this action otherwise may be brought. The
defendants most closely involved in the events described in the complaint work at FCI Bastrop,
and a substantial portion of the events giving rise to this action occurred there.
H. The Court Will Transfer This Action to the
United States District Court for the Western District of Texas
Having concluded that venue is improper in the District of Columbia, the Court must
either dismiss the action or, “if it be in the interest of justice, transfer [it] to any district or
division in which it could have been brought.” 28 U.S.C. § 1406(a). “The decision whether a
transfer or a dismissal is in the interest of justice . . . rests within the sound discretion of the
district court.” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). Transfer
is appropriate “when procedural obstacles [such as lack of personal jurisdiction, improper venue,
and statute-of-limitations bars] impede an expeditious and orderly adjudication on the merits.”
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Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C. Cir. 1983). Generally, the interests of justice
require transferring a case to the appropriate judicial district rather than dismissing it. See
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962).
Review of plaintiff’s complaint and the factual allegations therein suggest that the United
States District Court for the Western District of Texas will have personal jurisdiction over the
defendants most involved with the underlying events and that venue will lie in that district.5
Accordingly, the Court will transfer this action. See, e.g., Baez v. Connelly, No. 09-0925, 2010
WL 3398851, at *3 (D.D.C. Aug. 27, 2010) (transferring action under § 1406(a) to the district
which may exercise personal jurisdiction over defendants and where events giving rise to
plaintiff’s claims occurred); see also Spotts v. United States, 562 F. Supp. 2d 46, 55-57
(transferring case under §§ 1404(a) and 1406(a)).
An Order consistent with this Memorandum Opinion will be issued separately.
/s/
DATE: February 8, 2011 COLLEEN KOLLAR KOTELLY
United States District Judge
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The individual defendants raise the statute of limitations and qualified immunity
as affirmative defenses. In light of the Court’s rulings on personal jurisdiction and venue,
however, consideration of these defenses is better left for the transferee court, presumably after
service of process has been effected properly and after counsel enters an appearance on their
behalf.
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