Opinion
C/A No. 4:17-cv-3490 RMG-TER
02-19-2019
JULIO RODRIQUEZ Plaintiff, v. DR. EDWARD REED, M.D.; EVE ULMER, R.N.; V. ENEJE, MLP, Defendants.
Report and Recommendation
This is a civil action filed pro se by Julio Rodriquez ("Plaintiff"/ "Rodriquez") on December 28, 2017. Plaintiff is currently housed at the Federal Correctional Institution in Estill, South Carolina. This matter is currently before the court on the motion to dismiss, or in the alternative, motion for summary for summary judgment filed on behalf of Defendants on October 9, 2018. (ECF #49). As the Plaintiff is proceeding pro se, the court issued an order on or about October 10, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss/ motion for summary judgment procedure and the possible consequences if he failed to respond adequately. After being granted two extensions to file a response to the motion to dismiss/motion for summary judgment, Petitioner failed to file a response. Petitioner was advised in each of the orders granting the extension, that if he did not file a response, his case may be dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure. (ECF #55 and #59).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d),DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
A Report and Recommendation was entered on February 12, 2018, recommending that the complaint be summarily dismissed. The District Judge declined to adopt the recommendation concluding that "whether Plaintiff filed his complaint outside the statute of limitations is too close of a question to warrant sua sponte summary dismissal." (ECF #14 at 3). Therefore, the District Judge found that the ends of justice would be met by allowing the parties the opportunity to fully brief the legal and factual issues concerning whether Plaintiff filed his lawsuit within the statute of limitations and whether Plaintiff has exhausted his administrative remedies. Id.
RULE 41(B) DISMISSAL
A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal. Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).
In the present case, the Plaintiff is proceeding pro se so he is entirely responsible for his actions. It is solely through Plaintiff's neglect, and not that of an attorney, that no responses have been filed. After being granted two extensions, Plaintiff has not responded to Defendants' motion for summary judgment or the court's orders requiring him to respond. No other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).
However, in the alternative, it is recommended that Defendants' Motion for Summary Judgment be granted on the merits.
DISCUSSION
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed. R. Civ. P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ANALYSIS
Plaintiff brings suit against federal employees and as such his constitutional claims are analyzed under Bivens, which "established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. 14, 18 (1980). A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. However, federal officials cannot be sued under § 1983, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 & n.30 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir.1988) (abrogated on other grounds in Johnson v. Jones, 515 U.S. 304 (1995)). Violation of the Eighth Amendment is a cognizable claim under the expansion of Bivens. See Carlson v. Green, 446 U.S. 14 (1980).
Plaintiff alleges that the Defendants were deliberately indifferent to his serious medical needs when they allegedly failed to provide him with care in connection with two hernia operations he received on March 15, 2013, and June 20, 2014. On November 14, 2012, Plaintiff was approved for hernia surgery. (ECF No. 1 at 4). On March 15, 2013, Plaintiff had hernia surgery. (ECF No. 1 at 4). Plaintiff then alleges that after surgery he was returned to his prison housing unit without after-care or follow-up treatment. (ECF No. 1 at 4). Nurse Ulmer stated "to chill, you're not going to die." A few days later Plaintiff experienced extreme pain. (ECF No. 1 at 4). He then visited Dr. Reed about his pain, but he refused to give Plaintiff medication. (ECF No. 1 at 4). On June 20, 2014, Plaintiff had a second surgery. After the surgery, he was returned to prison and Nurse Ulmer stated "see you later." (ECF No. 1 at 5).
Plaintiff responded to interrogatories from the court stating that he intended to name Dr. Edward Reed, M.D. as a Defendant to replace previously named Dr. Reid, Eve Ulmer R.N. to replace previously named Jane Doe-1-nurse, and V. Eneje, MLP to replace previously named Jane Doe-2-medical administrator. (ECF # 32).
Plaintiff alleges a claim for deliberate indifference against Dr. Reed for the 4 month delay in scheduling the first surgery in 2012 and also for the 12 month delay from 2013 to 2014 between the first and second surgery, resulting in extreme pain to Plaintiff. (ECF No. 1 at 5). Plaintiff alleges a claim for deliberate indifference against Nurse Ulmer for failure to give follow-up care after the surgeries in March 2013 and June 2014. Plaintiff alleges V. Eneje, medical administrator, with Dr. Reed failed to timely schedule appointments that would have prevented pain. Plaintiff alleges it was V. Eneje's "duty to ensure follow-up care once made once inmate returned from scheduled surgery." (ECF No. 1 at 5). Plaintiff requests monetary damages. Plaintiff allegedly first filed his BP-8 on May 28, 2017. Several administrative rejections attached to the complaint stated Plaintiff's request was untimely and must have been received within 20 days of the event complained about. (ECF No. 1-1).
Defendants have pleaded the affirmative defense of failure to exhaust remedies and submitted the declaration of Amy J. Williams in support of their position. (ECF # 49-1). Williams declares that she is employed as a Legal Assistant for the United States Department of Justice, Federal Bureau of Prisons (BOP) and has been assigned to the South Carolina Consolidated Legal Center since March 17, 1997.(Williams' declaration). Included in her ordinary course of official duties, Williams provides legal assistance to staff at the four federal prisons located within the state of South Carolina having access to BOP records, and official databases concerning, among other things, inmate administrative remedies and location information. Id. Inmates may challenge any aspect of their confinement through the Administrative Remedy Process. Id. The inmate generally files a Documentation of Informal Resolution, known as a BP-8, with their Correctional Counselor. Id. The matter is investigated and the inmate is provided with a response. Id. If dissatisfied with the response, the inmate may file a formal request for Administrative Remedy, known as a BP-9, with the Warden. Id. If the inmate is dissatisfied with the Warden's response, he may file a Regional Administrative Remedy Appeal, known as a BP-10, at the regional level. If dissatisfied with the regional response, he may file a Central Office Administrative Remedy Appeal, known as a BP-11, at the national level. Id. There are specific time periods within which inmates can file their grievance under the administrative process. See 28 C.F.R. 542.14(a). Id. If the inmate does not receive a response from the Warden, Regional Director, or the Central Office within the allotted time frame, the inmate can consider the remedy or appeal as denied and proceed to the next level. Id. All formal requests are logged into the national database and are given a unique identifying number. Id. An extension is added to the number which denotes the level at which the claim is filed. (Id.). Subsequent appeals of an issue will have the same identification number with a different extension identifying the level where filed. (Id.). If an appeal is rejected and re-filed at the same level, perhaps correcting the identified deficiencies, then the number will change but the letter will remain the same. (Id.).
Williams declares that a review of the BOP records reveal that federal inmate Julio Rodriquez, federal Register Number (Reg. No.) 94970-004, failed to properly exhaust his administrative remedies available under the formal Administrative Remedy procedure established by the BOP on the issues set forth in his complaint. (Id.). (See Attachment A to Williams' declaration, SENTRY, Administrative Remedy Generalized Retrieval).
Rodriquez began his administrative remedy process on or around June 11, 2017, with a BP-8 provided to his Unit Team. (Id.). On or about July 11, 2017, Mr. Rodriquez filed Request for Administrative Remedy #908547-F1 with FCI Estill alleging deliberate indifference and delay of medical care based on alleged events in 2012, 2013, and 2014. (Id.). FCI Estill rejected his claim on the same day citing several reasons for the rejection. (Id.). First, Rodriquez did not sign his BP-9 appeal. Second, the BP-9 request was not filed timely, as institution requests must be received within twenty (20) days of the complained event. (Id.). Third, his request was not filled out correctly. (Id.).
Rodriquez submitted a letter from his Unit Manager, Steve Midock, date July 18, 2017, noting that he filed his BP-9 on June 28, 2017, but it was rejected by FCI Estill as being untimely.(Id.). Mr. Midock noted that the BP-9 was delayed for filing at the institutional level due to staff being on scheduled leave and requested that the BP-9 for Rodriquez be accepted for review. (Id.). However, the letter does not correct the incurable defect in his Remedy, as Mr. Rodriquez's timing defect relates to the subject matter of the remedy, not the date he filed his BP-9 at the institution. (Id.). Rodriquez complained of events that allegedly occurred between April 2012 and June 20, 2014, but he did not file his BP-8 until May 28, 2017, nearly three years after the 20 day deadline following the date on which the alleged event occurred. 28 C.F.R. §542.14(a); PS 1330.18, Section 8. (Id.). Thus, Remedy #908547-F1 was untimely and was properly rejected by FCI Estill in accordance with 28 C.F.R. §542.14(a). (Id.). On July 21, 2017, Rodriquez filed Remedy #908547-F2 with FCI Estill alleging deliberate indifference and appealing the rejection of Remedy 908547-F1. FCI Estill rejected this claim on the same day, noting that his appeal of the rejection should be sent to the next higher level, the Southeast Regional Office. (Id.). On August 18, 2017, Rodriquez filed Request for Administrative Remedy #908547-R1 at the Southeast Regional Office asserting deliberate indifference. (Id.). Even though he filed this administrative remedy at the Regional level, he did not meet the time frame to file an appeal on the issues from 2012-2014, pursuant to 28 C.F.R. §542.14.(Id.). The Regional Office rejected Remedy #908547-R1, noting concurrence with the rationale for rejection at the institution level and referring him back to the institution for review. (Id.). On October 6, 2017, Rodriquez filed Remedy #908547-A1 with the BOP Central Office appealing the regional Office's rejection of his BP-10 and alleging deliberate indifference to his medical needs from 2012-2014 at FCI Estill. (Id.). Rodriquez included another letter from Unit Manager Midock dated September 18, 2017, stating that Rodriquez filed Remedy #908547-F1 with the institution but it was delayed due to staff being on scheduled leave. (Id.). The letter still did not correct the incurable defect based on the untimely subject matter of the remedy. (Id.).
28 C.F.R. §542.14 requires that the BP-8 and BP-9 remedies must be filed no later than "20 calendar days following the date on which the basis for the Request occurred." 28 C.F.R. §542.14. (Id.). Rodriquez has not demonstrated that he meets any of the excused reasons for delay, including "an extended period in-transit during which the inmate was separated from documents needed to prepare the Request or Appeal; an extended period of time during which the inmate was physically incapable of preparing a Request or Appeal; an unusually long period taken for informal resolution attempts; indication by an inmate, verified by staff, that a response to the inmate's request for copies of dispositions." 28 C.F.R. 542.14. (Id.).
The Defendants contend that Plaintiff also failed to file his action within the three year statute of limitations, but the primary basis for dismissal is his failure to meet the required timeliness under 28 C.F.R. §542.14(a). (Id.). Rodriquez's failure to initiate the administrative remedy process within twenty days after June 20, 2014, the latest date he complains of, is an incurable prohibition to filing his lawsuit under the PLRA and cannot be corrected b filing an administrative remedy three years later. (Id.). Mr. Rodriquez is now forever time-barred from presenting these issues in new administrative remedies and from filing a lawsuit on these claims. (Id.).
As part of Williams' job duties, she is involved in reviewing and processing inmate claims under the Federal Tort Claims Act (FTCA). (Id.). The regulations for filing an administrative claim under the FTCA are codified at 28 C.F.R.; 14.1 et seq. (Id.). Williams' declares that the BOP records reveal Rodriquez has never filed any administrative tort claims regarding the issues in his complaint or any other matters. (Id.).
Based on a review of the filings in this case, Plaintiff has failed to properly exhaust his administrative remedies with regards to his Bivens action. Rodriquez has alleged that the events of deliberate indifference and delay of medical care took place in 2012, 2013, and 2014. Rodriquez did not begin the administrative remedy until 2017, thereby failing to file within twenty days following the date of the alleged events as required under 28 C.F.R. §542.14(a). Accordingly, it is recommended that Defendants' Motion for Summary Judgment (ECF #49) be granted as to the Bivens action for failure to exhaust administrative remedies. FTCA
Additionally, Defendants assert the complaint should be dismissed as being outside the three year statute of limitations for South Carolina. The undersigned agrees. Plaintiff's Complaint was signed on December 12, 2017; there is no clear institutional receipt stamp. There is a USPS green card certified mail tracking number which shows receipt with USPS first on December 26, 2017. Under a liberal construction, the court will use the December 12, 2017 date to run the statute of limitations as the filing date of the instant complaint.
Based upon the allegations of the Complaint, the latest day upon which the statute of limitations began running was June 20, 2014, after the second surgery when a nurse allegedly failed to give after-care and stated "see you later." Plaintiff's failure to file his Bivens claims within three years of learning of the alleged improper actions by Defendants warrants dismissal of this claim. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (applying § 1983 case law to analyze plaintiff's Bivens claim); Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161-62 (4th Cir. 1991) (statute of limitations for § 1983 claim is the analogous state statute of limitations governing personal injury actions); S.C. Code Ann. § 15-3-530(5) (personal injury statute of limitations in South Carolina is three years). Therefore, it is recommended that Defendants' motion for summary judgment be granted as the Bivens complaint is barred by the statute of limitations. Because the statute of limitations here arises from state law, the equitable tolling doctrine to consider is state law. South Carolina does adhere to the doctrine of equitable tolling with the burden of proof on the Plaintiff, but "equitable tolling is a doctrine that should be used sparingly and only when the interests of justice compel its use." Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr., 687 S.E.2d 29, 33 (S.C. 2009) Plaintiff has not pleaded any facts that he is entitled to equitable tolling- that he has acted with reasonable diligence and that extraordinary circumstances beyond Plaintiff's control exist.
Defendants argue that, at most, Plaintiff's claims constitute a claim of negligence which is not actionable under the Fifth and Eighth Amendments. Defendants assert that they concede that prison officials have a duty to provide "reasonable care" to the prisoners. However, Defendants contend Plaintiff fails to state a viable medical malpractice claim under South Carolina law because he did not file an expert affidavit contemporaneously with his complaint and his allegations do not fall in the "common knowledge" category. (ECF #49).
The Federal Tort Claims Act ("FTCA") allows exceptions to the sovereign immunity the United States otherwise enjoys. 28 U.S.C. § 1346. The FTCA vests the district courts with:
exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1).
To proceed with a case under the FTCA, Plaintiff must first exhaust his claims with the appropriate administrative agency:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.28 U.S.C. § 2675(a).
Since the allegations purportedly occurred while Plaintiff was housed in a BOP facility located in South Carolina, the substantive law of South Carolina controls. Where a plaintiff brings claims arising from alleged negligent medical treatment, the claims are for medical malpractice. Millmine v. Harris, No. 3:10-1595-CMC, 2011 WL 317643, at *1 (D.S.C. Jan. 31, 2011). As the Defendant correctly notes in its brief, in order to pursue a malpractice claim in South Carolina, a plaintiff is first required to file "as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim....". See S.C.Code Ann. § 15-36-100. A failure to file such an affidavit with the Complaint requires dismissal of the case in state court. See Rotureau v. Chaplin, No. 09-1388, 2009 WL 5195968, at * 6 (D.S.C. Dec. 21, 2009). Although Plaintiff s claim has been filed in federal court under the FTCA, and not in state court, the filing of such an affidavit is nevertheless a mandatory prerequisite to the filing of a malpractice claim against the United States under the FTCA in this District. See Frederick v. United States, No. 9:15-cv-02699-MGL, 2016 WL 1317528 (D.S.C. Mar. 14, 2016); Chappie v. United States, No. 13-1790, 2014 WL 3615384 at * *1,5 (D.S.C, July 21, 2014); and, Millmine v. Harris, supra (pre-suit notice and expert affidavit requirements in S.C. Code Ann. § 15-36-100 and 15-79-125 are the substantive law in South Carolina).
This court agrees that any claim by Plaintiff for medical malpractice must be dismissed because it has no supporting expert affidavit. Therefore, it is recommended that Defendants' Motion for Summary Judgment with respect to the FTCA claim be granted without prejudice because Plaintiff did not file the required expert affidavit with his complaint.
A dismissal for failure to comply with S.C. Code 15-36-100 is without prejudice. See Rodgers v. Glenn, 2017 WL 1051011 (D.S.C. Mar. 20, 2017) citing Rotureau v. Chaplin, Civ. No. 2:09-1388-DCN, 2009 WL 5195968, at *6 (D.S.C. Dec. 21, 2009).
RECOMMENDATION
Based on the above reasoning, it is RECOMMENDED that this action be dismissed for failure to prosecute pursuant to Fed. R. Civ. Proc. 41(b) with prejudice.
It is noted that Defendant V. Eneje has not been served. (See ECF #43 and ECF #49 at 2). Therefore, it is recommend that this action be dismissed pursuant to Rule 41b of the Federal Rules of Civil Procedure without prejudice as to this Defendant. In the alternative, it is recommended that Defendant Eneje be dismissed for violation of Rule 4m of the Federal Rules of Civil Procedure, without prejudice. --------
In the alternative, for the reasons set forth above, it is RECOMMENDED that Defendants' motion for summary judgment (ECF #49) be granted. February 19, 2019
Florence, South Carolina
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge