Opinion
13 Civ. 2849 (CM)(DCF)
02-18-2015
KEVIN WRIGHT, Plaintiff, v. H. CONDIT, et al., Defendants.
BY ECF TO ALL COUNSEL BY FIRST CLASS MAIL TO PLAINTIFF PRO SE Kevin Wrights #DE-8812 SCI Waymart PO Box 256 Waymart, PA 18472-0256
MEMORANDUM ORDER DENYING MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT :
Plaintiff pro se Kevin Wright has moved for leave to file a second amended complaint, which would, if allowed, add Bivens claims against four additional defendants: (1) Charles E. Samuels, the Director of the Bureau of Prisons and (2) "Prison Health Service (subcontracted health care provider), in their official capacities; and (3) Warden T. Billingsley, and (4) Health Care Administrator J. Burkett in their individual capacities.
Because amendment would be futile, the motion is denied.
Bivens claims do not lie against federal employees in their official capacities, because such suits are considered actions against the United States, and are barred by the doctrine of sovereign immunity. Robinson v. Overseas Military Sales Corp., 21 F. 3d 502, 510 (2d Cir. 1994). For that reason, the proposed new claims against Director Samuels and the Prison Health Service fail to state a claim on which relief may be granted, rendering amendment futile.
Additionally, plaintiff has not administratively exhausted any individual capacity claim with respect to either proposed defendant Billingsley or proposed defendant Burkett. Even when a plaintiff has followed Prisoner Litigation Reform Act exhaustion requirements as to certain allegations or defendants, he may not subsequently introduce new, unexhausted allegations into his Bivens action or sue defendants as against whom he has failed to exhaust. Mr. Wright attaches to his proposed second amended complaint an "Informal Resolution Form" (Docket #113 at 21), which mentions "others to be named later," but does not name either Billingsley or Burkett. He also attached a document entitled "Inmate Request to Staff," (Docket #113 at 25), which contends that his failure to file his "administrative remedy" in a timely manner should be excused due to his illness, but that document (filed more than three months after the original informal resolution form), does not name either proposed defendant, either. Therefore, amending the complaint to assert claims against these two individuals in their individual capacity would be futile.
I would like to get this case ready for trial at the earliest opportunity. Please advise how much more discovery (if any) is anticipated. This is not a case that seems amenable to resolution on a motion for summary judgment.
The Clerk is directed to remove the motion at Docket #113 from the court's list of open motions. Dated: February 18, 2015
/s/_________
U.S.D.J. BY ECF TO ALL COUNSEL BY FIRST CLASS MAIL TO PLAINTIFF PRO SE
Kevin Wrights
#DE-8812
SCI Waymart
PO Box 256
Waymart, PA 18472-0256