Opinion
8:20-cv-00877-JD-JDA
05-19-2021
Michael Louis Hepstall, Plaintiff, v. United States of America, Defendant.[1]
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a partial motion to dismiss filed by Defendant. [Docs. 51.] Plaintiff, proceeding pro se, brought this action pursuant to the Federal Tort Claims Act (?FTCA”). [Doc. 1.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court.
Plaintiff filed this action on February 28, 2020. [Doc. 1.] On March 19, 2021, Defendant filed a motion to dismiss the Complaint in part for failure to state a claim. [Doc. 51.] On March 22, 2021, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 52.] On April 15, 2021, the Clerk docketed from Plaintiff a response opposing Defendant's motion. [Doc. 54.] On April 21, 2021, Defendant filed a reply. [Doc. 57.] And, on May 17, 2021, Plaintiff filed a sur-reply. [Doc. 59.] The motion is now ripe for review. 1
The facts included in this Background section are taken directly from the Complaint. [Docs. 1; 1-1; 1-2; 1-3.]
At the time of the beginning of the events giving rise to this action, Plaintiff was a federal prisoner in FCI-Manchester in Manchester, Kentucky. [Doc. 1-2 at 1.] Plaintiff alleges that, during his time there, he informed the psychology and medical departments there that he was claustrophobic and that he had “a shy bladder.” [Id.]
By the time Plaintiff filed this action, he was on home confinement. [Doc. 12 at 1; see Doc. 1-4 at 1.]
Plaintiff was subsequently transferred to FCI-Petersburg in Hopewell, Virginia. [Id.] On June 18, 2018, at around 1:30 a.m., he was placed in a small holding cell with his hands cuffed behind his back. [Docs. 1-1 at 2; 1-2 at 1.] Although he was the third or fourth inmate placed in the cell, other prisoners continued to enter, and he ended up in the back of the cell with 13 to 15 other prisoners. [Doc. 1-2 at 1.] Additionally, the aircirculation system was not operating. [Docs. 1-1 at 2; 1-2 at 1.] Plaintiff began to feel dizzy, and then he passed out. [Docs. 1-1 at 2; 1-2 at 1.]
Plaintiff was dragged out of the cell and propped up against a wall, and then he was placed in another holding cell. [Doc. 1-2 at 1.] He reported that he “was in a lot of pain and [his] jaw hurt and [his] teeth didn't line up.” [Docs. 1-1 at 2; 1-2 at 1.] He went without medical attention from about 2:00 a.m. to 8:00 a.m, during which time he was bleeding steadily from his right ear and a gash on his chin and he vomited several times due to the pain. [Docs. 1-1 at 2; 1-2 at 1.] Some time after 8:00 a.m., he was taken to medical and then to dental. [Docs. 1-1 at 2; 1-2 at 1.] They took four x-rays and examined his ear and 2 chin. [Docs. 1-1 at 2; 1-2 at 1.] He then returned to his cell and remained there until after 4:00 p.m. without being given anything he was able to eat. [Docs. 1-1 at 2; 1-2 at 1.] Plaintiff informed prison staff that, due to his injuries, he could not eat the food the other inmates were being given. [Docs. 1-1 at 2; 1-2 at 1.]
Shortly after 5:00 p.m., Plaintiff was taken to see an “outside doctor, ” where he was given several tests, his ear was cleaned, stitches were put in his chin, and his jaw-which was broken-was wired shut. [Docs. 1-1 at 2; 1-2 at 1.] A doctor informed Plaintiff that “the procedure for any broken bone is to reset the break” but that at that time “the swelling around the injury was to great too perform the proper procedure.” [Doc. 1-2 at 1.] The doctor told Plaintiff that “the procedure would be done in less than 2 weeks.” [Id.] Another doctor told Plaintiff that “they would wire [his] mouth shut to keep [him] from further injury until [he] was seen by an oral surgeon.” [Id.] Plaintiff arrived back at FCI-Petersburg around 3:00 a.m. on June 19, 2018. [Id.] That morning, for the first time, he was given a liquid diet meal, after not having eaten for 37 to 40 hours. [Docs. 1-1 at 2; 1-2 at 1.]
On Saturday, June 23, 2018, Plaintiff was informed that his name was on the upcoming bus schedule. [Doc. 1-2 at 2.] Plaintiff asked if he was going to be shipped in his injured condition and was told that he was. [Id.] Plaintiff was taken out of his cell at approximately 1:30 a.m. on June 25, 2018, to board the transport bus, which was to take him to USP Atlanta in Atlanta, Georgia. [Docs. 1-1 at 2; 1-2 at 2.] Plaintiff informed the officer on the bus that he was on a liquid diet and could not eat the food that the other inmates were being given. [Docs. 1-1 at 2; 1-2 at 2.] Plaintiff was given water only, no food. [Docs. 1-1 at 2; 1-2 at 2.] 3
Plaintiff arrived in Atlanta on June 25, 2018, at around 4:00 p.m. [Doc. 1-2 at 2.] He was seen by medical staff during intake, and he informed them that he had not been given any food since about 5:00 p.m. the day before. [Id.] Consulting Plaintiff's file, the medical staff recognized he was on a liquid diet. [Id.] Even so, he was not fed until the following morning, which was about 37 to 40 hours after he had last eaten. [Docs. 1-1 at 2; 1-2 at 2.]
The next day, Plaintiff went to dental, which took an x-ray and told Plaintiff that he needed to see an outside doctor. [Docs. 1-1 at 2; 1-2 at 2.] Plaintiff explained that he had been told that the wires would be only temporary until he could see an oral surgeon but that he had been put in transit before he could see an outside surgeon in Virginia. [Doc. 1-2 at 2.] Plaintiff was not taken to an outside doctor in Atlanta either, and on July 6, 2018, he was placed on a bus for transit to the Atlanta airport, where he boarded a plane to the Oklahoma Transit Center. [Id.]
Upon his arrival in Oklahoma, Plaintiff was seen by medical and dental staff, who determined that the wires holding his jaw shut were not serving any purpose. [Id.] They therefore removed the wires from his jaw on July 10, 2018, and Plaintiff was again informed that he needed to see an oral surgeon. [Docs. 1-1 at 3; 1-2 at 2.] On August 2, 2018, he went to a consultation with Dr. Martin. [Doc. 1-2 at 2.] Dr. Martin informed Plaintiff that they would re-break his jaw, set the break, put in a plate to stabilize it, put arch bars on, and wire it shut. [Id.] On August 22, 2018, Plaintiff was taken back to Dr. Martin for surgery, but when he arrived, he was told Dr. Martin would simply be wiring his jaw shut again to see if it would correct the issues. [Docs. 1-1 at 3; 1-2 at 2-3.] Then, on September 26, 2018, Plaintiff was again taken back to Dr. Martin, and the wires were 4 removed, but the arch bars remained in place at that time and were later removed on October 3, 2018. [Docs. 1-1 at 3; 1-2 at 3.]
A few months later, Plaintiff was transferred to FCI-Milan, in Milan, Michigan. [Doc. 1-2 at 3.] When he informed medical of his condition, medical staff reviewed his x-ray, examined his jaw, and scheduled a consultation. [Id.] At that consultation, which occurred on April 9, 2019, the doctor told him that the x-ray indicated that there was a problem area but, given the time that had passed since the injury, surgery was no longer a viable option, and he would be dealing with pain for the rest of his life. [Id. at 3, 7-10.] The doctor told him that Plaintiff could try to realign his bite by training himself, but the doctor did not explain how he should do that. [Id. at 3.] The doctor “put [Plaintiff] on medication” that staff at FCI-Milan told him he would not be receiving. [Id.]
Plaintiff's Complaint, construed liberally, alleges that BOP staff at FCI-Manchester caused him serious injury when they acted negligently and with deliberate indifference to his serious medical needs by failing to give instructions to relevant staff regarding Plaintiff's claustrophobia so that he could be safely transported and transferred to FCI-Petersburg, resulting in his personal injury. [Docs. 1 at 4; 1-2 at 1.] Plaintiff also alleges that BOP staff at FCI-Petersburg and USP Atlanta acted negligently and with deliberate indifference to his serious medical needs by failing to give him adequate medical treatment, specifically prompt surgery to address his broken jaw and, in the case of the staff at USP Atlanta, by allowing him to be transferred to Oklahoma Transit Center. [Docs. 1 at 4; 1-1 at 2-3; 1-2 at 1-2.]
For his injuries, Plaintiff alleges that he has suffered a broken jaw, that his bite mark cannot be fixed, and that he continues to suffer constant pain. [Doc. 1 at 4.] For his relief, 5 he requests compensatory and punitive damages. [Id. at 5.] He alleges that he has exhausted his administrative remedies by submitting a Form 95. [Id.]
On March 8, 2021, the Honorable Joseph Dawson, III, granted in part and denied in part a motion to dismiss filed by Defendant (“the March 8 Order”). [Doc. 49; see Doc. 37.] Judge Dawson granted the motion “to the extent that Plaintiff challenges the adequacy of the medical treatment he received at FCI-Petersburg and to the extent he asserts that his constitutional rights were violated, ” and Judge Dawson otherwise denied the motion. [Doc. 49 at 4.]
On March 19, 2021, Defendant filed the motion at issue today, asserting that “to the extent that Plaintiff is alleging medical malpractice claims arising in Georgia and Michigan, such claims should be dismissed.” [Doc. 51-1 at 7.]
On April 15, 2021, the Clerk also docketed a motion from Plaintiff requesting that the Court take judicial notice of adjudicative facts and requesting clarification of the March 8 Order. [Doc. 56.] Plaintiff's motion requests (1) that the Court recognize that Plaintiff “did not raise a claim challenging the adequacy of the medical treatment” but “instead complains about the [Bureau of Prisons] Staff's NEGLIGENCE & Deliberate Indifference”; and (2) “that the Court take judicial notice pursuant to Federal Rules of Evidence, 201(d) and clarify the decision so he may be afforded due process in his proceeding for redress.” [Doc. 56 at 2.] Because Plaintiff's motion seeks clarification of Judge Dawson's Order, the undersigned makes no recommendation regarding how that motion should be resolved.
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard 6 than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d). 7
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. 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).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. 8 P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)).
Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
The claims in Plaintiff's Complaint are based on several different actions and omissions that arose in multiple states, Kentucky, Virginia, Georgia, Oklahoma, and Michigan. [Doc. 49 at 2, 4.] Defendant's previous motion to dismiss addressed only claims based on acts and omissions that occurred in Kentucky and Virginia. [See Doc. 37 at 9-11.] Thus, the undersigned, in issuing a Report and Recommendation regarding the motion, did not consider whether claims based on actions and omissions in Georgia, Oklahoma, and Michigan failed to state a claim. [Id. at 11.] In its objections to the Report and Recommendation, Defendant asserted that it had not read Plaintiff's Complaint as alleging claims based on actions and omissions in Georgia, Oklahoma, and Michigan, but Defendant argued that, to the extent the Court liberally read the Complaint to allege such claims, the allegations fail to state a claim. [Doc. 42 at 3-7.] The Court overruled Defendant's objections, however, holding that Defendant's new arguments were not properly before the Court because they had not been raised in the motion to dismiss. [Doc. 49 at 4.] 9
In its second motion to dismiss, as noted, Defendant asserts that “[t]o the extent that Plaintiff challenges the adequacy of the medical treatment he received while in BOP custody in Georgia and Michigan, ” such claims should be dismissed under Rule 12(b)(6) for failure to state a claim. [Doc. 51 at 1.] In his response opposing Defendant's motion, Plaintiff argues that he in fact “did not raise a claim challenging the adequacy of the medical treatment he received.” [Doc. 54 at 1; see id. (“Plaintiff did not plead that he was challenging the adequacy of the medical treatment.”).] He insists that he only intends to assert claims for negligence and deliberate indifference and he contends that “the Court should not construe his complaint for anything other than [n]egligence” and “[d]eliberate indifference.” [Id.]
The Court notes that Rule 12(g)(2) generally precludes successive rule 12(b)(6) motions unless the successive motion is allowed by Rule 12(h)(2) or (3). See Fed.R.Civ.P. 12(g)(2). Nonetheless, courts “have interpreted the bar on successive Rule 12 motions permissively and have accepted subsequent motions on discretionary grounds.” Superior Performers, Inc. v. Ewing, No. 1:14CV232, 2015 WL 3823907, at *2-3 (M.D. N.C. June 19, 2015) (internal quotation marks omitted). Plaintiff does not challenge the propriety of this second motion under Rule 12(g)(2), and the Court sees no indication that Defendant is attempting to delay the proceedings. Moreover, the Court finds that “failure to consider [Defendant's motion] at this stage would amount to needless delay and a waste of judicial and party resources.” Nance v. Rowan-Salisbury Bd. of Educ., No. 1:17-cv-957, 2019 WL 1437212, at *1 n.2 (M.D. N.C. Feb. 27, 2019).
In the end, the parties appear to be in agreement on the critical question now before the Court, namely, whether Plaintiff has alleged claims challenging the adequacy of medical treatment he received while in custody in Georgia or Michigan. They agree he has not. Moreover, the Court notes that even had Plaintiff intended to allege medical malpractice claims-and he states he did not and does not-the Court would recommend that they be dismissed for the reasons Defendant asserts. See Georgia Code Ann. § 9-11- 10 9.1(a) (providing that in a medical malpractice action, “the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim”); Peterson v. Columbus Med. Ctr. Found., Inc., 533 S.E.2d 749, 753 (Ga.Ct.App. 2000) (holding that even a Plaintiff proceeding pro se in a medical malpractice case must comply with the expert affidavit requirement); Mich. Comp. Laws Ann. § 600.2912d(1) (providing that a plaintiff alleging a medical malpractice claim must file, along with the complaint, an affidavit of merit from an expert health care professional stating that, in the opinion of that affiant, the applicable standard of care was breached); Judd v. Heartland Health Care Ctr. - Georgian E., No. 01-CV-73837-DT, 2001 WL 1680124, at *3 (E.D. Mich. Dec. 21, 2001) (holding that “[a] plaintiff who files a medical malpractice complaint without the required affidavit is subject to a dismissal without prejudice, and can refile properly at a later date [within] the applicable period of limitation”). To Plaintiff's argument that he seeks to assert only claims of negligence and deliberate indifference, the Court notes that whether claims of denial of adequate medical care were described as ordinary negligence or medical malpractice would make no difference, see Comprehensive Pain Mgmt. v. Blakely, 719 S.E.2d 579, 579-80 (Ga.Ct.App. 2011) (holding that, in a medical malpractice action, “alleging that [the medical defendants'] negligence in prescribing medication and failing to monitor [the plaintiff's] 11 health resulted in damage to her liver, ” the trial court erred by denying a motion to dismiss because the plaintiff “failed to file the required expert affidavit contemporaneously with the original complaint”); Dorris v. Detroit Osteopathic Hosp. Corp., 594 N.W.2d 455, 465 (Mich. 1999) (holding that “[a] complaint cannot avoid the application of the procedural requirements of a malpractice action by couching its cause of action in terms of ordinary negligence” and that an affidavit of merit was required because the allegations involved “questions of professional medical management and not issues of ordinary negligence”), and this Court has already dismissed all of Plaintiff's claims to the extent he alleges that his constitutional rights have been violated, including by Defendant's deliberate indifference to his serious medical needs [Doc. 49 at 4]. Accordingly, the undersigned recommends that the Court grant Defendant's motion to dismiss Plaintiff's claims to the extent that Plaintiff is alleging claims challenging the adequacy of the medical treatment he received arising in Georgia and Michigan.
The FTCA provides a limited waiver of sovereign immunity whereby the United States government submits itself to be sued in limited situations for negligent or wrongful acts or omissions of its employees, in which private individuals under similar circumstances would be liable under state law. 28 U.S.C. § 1346(b)(1). Under the FTCA, federal courts must determine liability in accordance with the substantive tort law of the state “where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's motion to dismiss Plaintiff's claims to the extent that Plaintiff challenges the adequacy of the medical treatment he received in Georgia and Michigan [Doc. 51] be GRANTED.
IT IS SO RECOMMENDED. 12