Namer v. USA et al

Filing 38

ORDER denying 30 Motion for Relief; denying 31 Motion in Limine; holding in abeyance 33 Motion to Compel, pending deft's response to plaintiff's reply; and denying 36 Motion for Hearing. Signed by Magistrate Judge Jerome T. Kearney on 7/26/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
DAVID I. NAMER,
REG. #15869-034
v.

PLAINTIFF
2:10-cv-00112-JTK

UNITED STATES OF AMERICA

DEFENDANT
ORDER

This matter is before the Court on Plaintiff's Motions for Relief, In Limine, to Compel and
for Hearing (Doc. Nos. 30, 31, 33, 36). Defendant filed Responses to the Motions (Doc. Nos. 32,
35), and Plaintiff filed a Reply to the Response to his Motion to Compel (Doc. No. 37).
Plaintiff is a federal inmate incarcerated at the Federal Correctional Institution (FCI), Forrest
City, Arkansas, who filed this Federal Tort Claims Act (FTCA) action against Defendant based on
injuries he received in two accidents at the Unit.
I.

Motion for Relief
In this Motion, Plaintiff asks the Court to order Defendant to schedule him for an

examination with an oral surgeon within two weeks, to require that Dr. Sokoloff’s prescripted
treatment be implemented within two weeks, and to bar Defendant from transporting him further
than sixty miles from his present place of incarceration. Plaintiff states in support that he suffered
injuries to his jaw, mouth, left knee and right shoulder when he slipped and fell in the kitchen area
of the Unit on April 18, 2008. He further states these injuries were exacerbated when he fell out of
a chair which broke on February 21, 2010. Plaintiff claims Defendants consistently have denied
him requested treatment from an oral surgeon and have failed to surgically repair a torn rotator cuff
in his right shoulder and torn meniscus in his left knee.
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In its Response, Defendant states Plaintiff cannot obtain injunctive relief in this action filed
pursuant to the FTCA. Defendant cites to Talbert v. United States, 932 F.2d 1064 (4th Cir. 1991),
which provides that the FTCA does not support an action for injunctive relief or writ of mandamus.
Rather, the statute waives the sovereign immunity of the federal government only for claims for
money damages. Id., 28 U.S.C. §1346(b)(1). In the alternative, Defendant states that the type of
relief Plaintiff seeks is in the nature of a writ of mandamus, which only available when the plaintiff
demonstrates a clear right to the relief, the defendant has a clear duty to perform the action, and the
plaintiff has no adequate alternative remedy, citing Longie v. Spirit Lake Tribe, 400 F.3d 586, 591
(8th Cir. 2005).

Defendant provides a Declaration of Mary Ellen Rivers-Graham, the Health

Services Administrator at FCI-Forrest City, who states that Plaintiff’s dental records do not indicate
a referral for an oral surgeon consult, and that Plaintiff’s knee and shoulder were originally treated
with injections. (Doc. No. 32-1). A MRI in February, 2011 revealed a tear in his rotator cuff and
a MRI in May, 2011 revealed a tear in the medial meniscus, and Plaintiff then saw an orthopedic
surgeon. Id. According to Ms. Rivers-Graham, the BOP Health services currently is trying to
determine the best course of action in having the surgical procedures completed, and is considering
Plaintiff for transfer to a Care Level 3 facility of a federal medical center. Id.
A district court “lacks subject matter jurisdiction under the FTCA to provide injunctive and
declaratory relief,” Estate of Trentadue v. United States, 397 F.3d 840, 863 (10th Cir. 2005). In light
of this, and the fact that Plaintiff currently is receiving treatment for his injuries, the Court will deny
Plaintiff’s Motion for Relief.

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II.

Motion in Limine
In this Motion, Plaintiff asks the Court to declare that he exhausted his administrative

remedies with respect to the claims at issue in his Complaint, and to bar the Defendant from raising
a failure to exhaust defense. Plaintiff states he complied with the exhaustion requirements with
respect to most of his claims and that prison officials prevented him from using certain procedures,
thus rendering the grievance procedure “unavailable” within the meaning of the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e.
Defendant does not directly respond to this Motion. However, the Court finds such a request
inappropriate where Defendant has not yet filed a Motion relying on the exhaustion defense.
Therefore, any such determination is premature, and the Court will deny Plaintiff’s Motion.
III.

Motion to Compel/Hearing
In his Motion to Compel, Plaintiff asks the Court to order Defendants to provide

investigation reports, notes, journals, logs, and all other documents relating to the two incidents at
issue in his Complaint. Plaintiff also asks for all records of his attempts to receive medical treatment
and any medical reports.
In its Response, Defendant states it submitted responses to Plaintiff’s first two sets of
discovery, which included 781 pages of medical records, a diagram of the food services area, color
photographs of the food services area, and names of people responsible during the incidents at issue.
Defendant also refers to additional documents attached to its Response to Plaintiff’s Motion for
Relief, and states that Plaintiff was previously told that no incident or investigative reports of the
incidents were produced (Doc. No. 32). Finally, Defendant states that any attempt by Plaintiff to
depose FCI employees should be made through written questions.

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Plaintiff filed a Reply in which he disputes the Defendant’s Response and states that
Defendant provided only one of four names of witnesses to the April 8, 2008 accident, and failed
to provide an incident report which was ordered to be prepared by an inmate employee who
witnessed the incident.

Plaintiff refers to “many failures of the United States to comply with

discovery,” but does not specify any further information Defendant refuses to provide. Finally,
Plaintiff asks the Court to schedule a hearing on his Motion to Compel.
The Court will deny Plaintiff’s Motion for Hearing, and will hold in abeyance Plaintiff’s
Motion to Compel, pending a response from the Defendant concerning the missing information
raised in Plaintiff’s Reply. Accordingly,
IT IS, THEREFORE, ORDERED that:
1)

Plaintiff’s Motion for Relief (Doc. No. 30) is DENIED.

2)

Plaintiff’s Motion in Limine (Doc. No. 31) is DENIED.

3)

Plaintiff’s Motion for Hearing (Doc. No. 36) is DENIED.

4)

Ruling on Plaintiff’s Motion to Compel (Doc. No. 33) is held in abeyance, pending

Defendant’s response to Plaintiff’s Reply. Defendants shall file an additional Response within ten
days of the date of this Order.
IT IS SO ORDERED this 26th day of July, 2011.

______________________________________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE

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