Lutz v. United States of America et al
MERIT REVIEW ORDER entered by Judge Joe Billy McDade on 6/14/2017. See full written Order. (VH, ilcd)
Wednesday, 14 June, 2017 04:21:41 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
UNITED STATES et al.,
MERIT REVIEW ORDER
Plaintiff, proceeding pro se, filed suit pursuant to the Federal Tort Claims Act (“FTCA”)
and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971).1 Plaintiff alleges medical negligence, intentional infliction of emotional distress
(“IIED”), deliberate indifference to a serious medical need, and a due process violation arising
from the Federal Correctional Institution in Pekin, Illinois (FCI-Pekin). The case is before the
Court for a merit review pursuant to 28 U.S.C. § 1915A. In reviewing the Complaint, the Court
accepts the factual allegations as true, liberally construing them in Plaintiff's favor. Turley v.
Rednour, 729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to “state a claim for relief that is plausible on its
face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013)(citation and internal
quotation marks omitted). While the pleading standard does not require “detailed factual
allegations”, it requires “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Wilson v. Ryker, 451 Fed. Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Plaintiff has named the United States, the Federal Bureau of Prisons (“BOP”), FCI-Pekin
Clinical Director Dr. Scott Moats, Dr. Jefferey Lee Ho and BOP Regional Counsel, Richard
Federal Tort Claims Act 28 U.S.C. § 1346 et. seq.
Schott. His allegations are directed against Defendants in both their official and individual
Plaintiff is a diabetic who allegedly developed blisters on his left heel on an unspecified
date. In August 2013, he requested a soft shoe permit from Drs. Moats and Lee Ho and was
refused. In May 2015, Plaintiff was treated for an ulcer to the left big toe which he claims is the
result of his having to wear boots rather than the soft shoes he had requested. Plaintiff alleges
that he was placed on antibiotics to treat the ulcer and, while the ulcer began to heal, he
developed an unspecified “allergic reaction” to the antibiotics. Plaintiff claims that the ulcer
never completely closed and in June and July 2015, Defendants placed him on the same
antibiotic to which he is allergic.
On an unspecified date, Plaintiff was transferred to a hospital where he underwent an
amputation of the big toe, not identifying whether the left or the right. Plaintiff claims that the
doctors at the hospital confirmed that he was allergic to the antibiotic given him at FCI-Pekin.
Plaintiff does not claim that he he suffered any ill effects due to the antibiotic. His claim is that,
had he been provided soft shoes in 2013, he would not have had had his big toe amputated.
In January and February 2016, Plaintiff developed an ulcer on the tip of his second toe. The
Defendant physicians allegedly treated him with the same objectionable antibiotic before
eventually changing it to the “right” medication. Plaintiff alleges that he subsequently
underwent amputation of this toe as well. Plaintiff subsequently developed an infection
requiring hospitalization and IV treatment.
Plaintiff filed a federal claim for restitution with the North Central Regional Office of the
BOP. His claim for compensation was denied by Regional Counsel, Richard Schott. Plaintiff
believes that Defendant Schott is covering up for the medical staff and has violated his
Fourteenth Amendment rights to due process.
Defendants’ Amenability to Suit in their Official and Personal Capacities
Plaintiff names Defendants Moats and Lee Ho in both their official and individual
capacities. A Bivens claim, however, may only be brought against a federal employee in his
individual capacity. See Yeadon v. Lappin, 423 F. App’x 627, 629 (unpublished) (7th Cir. 2011)
(no Bivens action against federal employees in their official capacities). This is because an
action for damages against an individual in his official capacity is an action against the
government and barred under the Eleventh Amendment. Hadi v. Horn, 830 F.2d 779, 783 (7th
Cir. 1987). The official capacity claims against Defendant Lee Ho is DISMISSED with
prejudice. The official capacity claim for money damages against Defendant Moats is
DISMISSED with prejudice, though as explained below, he remains potentially liable for
Plaintiff’s request for injunctive relief.
Here, Plaintiff requests declaratory and injunctive relief, as well as money damages
against all Defendants. While Plaintiff may seek money damages in his FTCA claim against the
United States, he may not assert a claim for injunctive relief. 28 U.S.C. § 1346(b) (suit must be
against United States itself for money damages). The only relief available to Plaintiff in his
FTCA medical negligence and IIED claims against the United States is one for money damages.
Plaintiff may proceed in his request for injunctive relief against Defendant Moats, the FCI-Pekin
Clinical Director. This because, the proper parties in a claim for injunctive relief include the
supervisory government officials who would be responsible for ensuring injunctive relief is
carried out. Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Here, Defendant Moats,
would be in a position to provide injunctive relief while Defendant Lee Ho would not. This claim
shall proceed against Defendant Moats in his official capacity. Grayson v. Goetting, No. 15-CV00198-NJR, 2015 WL 887800, at *4 (S.D. Ill. Feb. 27, 2015).
The Court notes that Plaintiff’s claims against Defendants Moats and Lee Ho arise from
the same conduct which supports his FTCA claim. A Plaintiff may maintain both an FTCA
claim and a Bivens claim in the same action. Thomas v. Szoke, No. No. 10-838, 2011 WL
1517948, at *4 (S.D. Ill. Apr. 19, 2011). Plaintiff is advised, however, that he may not recover
under both. See 28 U . S.C. § 2679(b)(1); Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir. 1987)
(no double recovery in FTCA and Bivens claims).
Defendant the United States of America
Plaintiff’s claim against the United States is brought under the FTCA which codifies the
government’s voluntarily waiver of sovereign immunity in certain cases. Under the FTCA, a
plaintiff may assert delineated tort claims against the United States 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); Smith v. United States, 15-CV-33, 2016 WL
3165533, at *8 (S.D. Ill. June 7, 2016), aff'd, 16-3117, 2017 WL 391872 (7th Cir. Jan. 27, 2017).
Plaintiff’s FTCA claim alleges that the United States is liable for the medical negligence and
IIED allegedly caused by Defendants Moats and Lee Ho. Plaintiff’s medical negligence and
IIED claims are governed by Illinois state law, the state where the alleged torts occurred. 28
U.S.C. § 1346(b)(1)28 U.S.C. § 1346(b)(1); Kaniff v. United States, 351 F.3d 780, 790 (7th Cir.
To prove IIED under Illinois law, plaintiff must establish that: “(1) the defendants'
conduct was extreme and outrageous; (2) the defendants knew that there was a high probability
that their conduct would cause severe emotional distress; and (3) the conduct in fact caused
severe emotional distress.” Swearnigen–El v. Cook Cty. Sheriff's Dept., 602 F.3d 852, 864 (7th
Cir. 2010) (internal citation omitted). The allegation against Moats and Lee Ho is that they
denied his request for a soft shoe permit in 2013; and treated the ulcer that developed with the
same antibiotic to which he was allergic. The allegations relating to Defendants’ failure to
provide him with a soft shoe are insufficient to make out a plausible IIED claim and merit
dismissal. Plaintiff’s claim, however, that he continued to be given antibiotic medication to
which he had a recognized antibiotic allergy states a plausible IIED claim and will proceed.
Plaintiff’s FTCA claim for medical negligence claim against the United States is
governed by the Illinois Healing Arts Malpractice Act (“Act”). See Gipson v. U.S., 631 F.3d
448, 450-51 (7th Cir. 2011) (applying state medical malpractice law), quoting 28 U.S.C. §
1346(b)(1). The Act requires that a medical negligence claim contain an affidavit and written
report of a health professional, known as a “certificate of merit,” asserting that there is a
“reasonable and meritorious cause for the filing”. 735 ILCS 5/2-622(a). Sherrod v. Lingle, 223
F.3d 605, 613 (7th Cir. 2000). Failure to file an affidavit pursuant to § 2-622 is cause for
dismissal under 735 ILCS 5/2-619. Chapman v. Chandra, No. 06-0651, 2007 WL 1655799, at
*2 (S.D. Ill. June 5, 2007); Winfrey v. Walsh, 2008 WL 1766600, at *3 (C.D. Ill. April 14, 2008).
Here, Plaintiff has not provided a certificate of merit with his complaint. However,
“[t]he Appellate Court of Illinois has held expressly that when a plaintiff raises a claim that
implicates section 2–622 but fails to include an affidavit and report, the plaintiff should have the
opportunity to amend her complaint before it is dismissed with prejudice… a sound exercise of
discretion mandates that [the plaintiff] be at least afforded an opportunity to amend her
complaint to comply with § 2–622 before her action is dismissed with prejudice.”) Hahn v.
Walsh, 762 F.3d 617, 633-34 (7th Cir. 2014) quoting Cammon v. West Suburban Hosp. Med.
Ctr, 301 Ill.App.3d 939, 235 Ill.Dec. 158, 704 N.E.2d 731, 738 (Ill.App.Ct.1998) (emphasis in
Accordingly, the FTCA medical negligence claim against the United States is
DISMISSED with leave to replead. Plaintiff will be given 90 days in which to obtain and file a
certificate of merit as required by 735 ILCS 5/2-622(a). If the Plaintiff obtains the certificate, he
is to file an amended complaint attaching a copy.
Defendants Moats and Lee Ho
Plaintiff attempts to assert a Bivens action against Defendants Moats and Lee Ho for
medical malpractice and IIED. Bivens provides a private cause of action for violations of
constitutional law, not state torts. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Plaintiff’s
medical negligence and IIED claims against Defendants Moats and Lee Ho do not assert
constitutional violations which may be brought under Bivens, and are DISMISSED.
Plaintiff also alleges Eighth Amendment deliberate indifference claims against Moats and
Lee Ho under Bivens. A Bivens claim is an action against a federal employee in his or her
individual capacity, and may not be brought against the federal government or its agencies. It is
the federal equivalent of an § 1983 action, and the same legal principles apply. To state an
actionable Bivens claim, a plaintiff must allege that an individual acting under color of state law
deprived him of a federal right. Moorer-Bey v. Fed. Bureau of Prisons, No. 12-212, 2012 WL
1409500, at *2 (S.D. Ill. Apr. 22, 2012) (internal citations omitted).
It is well established that deliberate indifference to a serious medical need is actionable as
a violation of the Eighth Amendment. Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008). A
deliberate indifference must establish “(1) an objectively serious medical condition; and (2) an
official's deliberate indifference to that condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th
Cir. 2011). Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and “either acts or fails to act in disregard of that risk.” Id.
at 751. Deliberate indifference may be shown where prison officials delay the treatment of an
objectively serious medical need. Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996)
(internal citations omitted). Plaintiff has alleged sufficient facts to make out a plausible claim
that Defendants were deliberately in different in treating his 2016 toe ulcer with an antibiotic to
which they knew Plaintiff was allergic.
Plaintiff alleges that Defendant Shot, violated his Fourteenth Amendment due process
rights by denying his claim for compensation. See Moorer-Bey at *2 (defendants’ alleged denial
of complaint did not establish that they personally participated in the infringement). “Assuming
that any of these Defendants were involved in a denial of a grievance or other administrative
complaint by [plaintiff], this nonetheless does not establish the personal involvement of these
Defendants in any wrongdoing against [plaintiff]. ‘Only persons who cause or participate in the
violations are responsible. Ruling against a prisoner on an administrative complaint does not
cause or contribute to the violation.”’ Id. at *2, citing George v. Smith, 507 F.3d 605, 609-10
(7th Cir. 2007) (citations omitted). Here, Plaintiff fails to allege Defendant Schott’s personal
participation in the infringement and Defendant Schott is DISMISSED.
Bureau of Prisons
Plaintiff asserts an unspecified claim against the BOP. As previously noted, the United
States is the only proper party to an FTCA claim. Plaintiff’s claim against the BOP, to the extent
that it is construed under the FTCA, is DISMISSED. Similarly, if Plaintiff’s claim against the
BOP is construed under Bivens, it is denied as individuals, not governmental agencies, are the
only proper parties in a Bivens claim. See Moorer-Bey at *2 (dismissing BOP as not amenable to
suit under Bivens). The BOP is DISMISSED with prejudice.
IT IS THEREFORE ORDERED:
Plaintiff’s FTCA claim against the United States for intentional infliction of
emotional distress will go forward. Plaintiff’s medical negligence claim against the United
States is dismissed with leave to replead. If Plaintiff wishes to proceed on this claim he must file
a certificate of merit as required by 735 ILCS 5/2-622(a), and an amended complaint within 90
days. The amended complaint must contain all of his claims against all Defendants without
reference to a prior pleading. Piecemeal complaints are not accepted.
Plaintiff’s claim for injunctive relief against the Defendant United States is
DISMISSED with prejudice.
Plaintiff’s Eighth Amendment deliberate indifference claim against Defendants
Moats and Lee Ho, in their individual capacities, will proceed. The Bivens medical negligence
and IIED claims asserted against them are DISMISSED.
Plaintiff’s official capacity claim against Defendant Lee Ho is DISMISSED with
Plaintiff’s official capacity claim against Defendant Moats seeking money
damages is DISMISSED. Plaintiff’s request for injunctive relief will proceed as to Defendant
Moats in his official capacity.
This case will proceed on Plaintiff’s IIED claim for money damages against the
United States, his Eighth Amendment claim for money damages against Defendants Moats and
Lee Ho, and his claim for injunctive relief against Defendant Moats, only. Any claims not
identified will not be included in the case, except in the Court's discretion upon motion by a
party for good cause shown, or by leave of court pursuant to Federal Rule of Civil Procedure 15.
The Bureau of Prisons and Defendant Schott are DISMISSED with prejudice. The Clerk is to
terminate them as parties.
The Clerk is directed to send Defendant Moats and Lee Ho: 1) a Notice of
Lawsuit and Request for Waiver of Service; 2) a Waiver of Service; 3) a copy of the Complaint;
and 4) a copy of this Order, pursuant to this District's internal procedures.
The Clerk is directed to send : 1) a Notice of Lawsuit and Request for Waiver of
Service; 2) a Waiver of Service; 3) a copy of the Complaint; and 4) a copy of this Order, to the
U.S. Attorney General and the local office of the Assistant U.S. Attorney, on behalf of the
Defendant United States.
If a Defendant fails to sign and return a Waiver of Service to the Clerk within 30
days after the Waiver is sent, the Court will take appropriate steps to effect formal service on that
Defendant and will require that Defendant pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2). If a Defendant no longer works at the address provided
by Plaintiff, the entity for which Defendant worked at the time identified in the Complaint shall
provide to the Clerk Defendant's current work address, or, if not known, Defendant's forwarding
address. This information will be used only for purposes of effecting service. Documentation of
forwarding addresses will be maintained only by the Clerk and shall not be maintained in the
public docket nor disclosed by the Clerk.
Defendants shall file an answer within the prescribed by Local Rule. A Motion to
Dismiss is not an answer. The answer it to include all defenses appropriate under the Federal
Rules. The answer and subsequent pleadings are to address the issues and claims identified in
Plaintiff shall serve upon any Defendant who has been served, but who is not
represented by counsel, a copy of every filing submitted by Plaintiff for consideration by the
Court, and shall also file a certificate of service stating the date on which the copy was mailed.
Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk
or that fails to include a required certificate of service will be stricken by the Court.
Once counsel has appeared for a Defendant, Plaintiff need not send copies of
filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintiff's
document electronically and send notice of electronic filing to defense counsel. The notice of
electronic filing shall constitute notice to Defendant pursuant to Local Rule 5.3. If electronic
service on Defendants is not available, Plaintiff will be notified and instructed accordingly.
Counsel for Defendants is hereby granted leave to depose Plaintiff at Plaintiff's
place of confinement. Counsel for Defendants shall arrange the time for the depositions.
Plaintiff shall immediately notice the Court of any change in mailing address or
phone number. The Clerk is directed to set an internal court deadline 60 days from the entry of
this Order for the Court to check on the status of service and enter scheduling deadlines.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) ATTEMPT SERVICE ON DEFENDANTS PURSUANT TO THE STANDARD
2) SET AN INTERNAL COURT DEADLINE 90 DAYS FROM THE ENTRY OF
THIS ORDER FOR THE COURT TO CHECK ON THE STATUS OF SERVICE AND ENTER
LASTLY, IT IS ORDERED THAT IF A DEFENDANT FAILS TO SIGN AND
RETURN A WAIVER OF SERVICE TO THE CLERK WITHIN 30 DAYS AFTER THE
WAIVER IS SENT, THE COURT WILL TAKE APPROPRIATE STEPS TO EFFECT
FORMAL SERVICE THROUGH THE U.S. MARSHAL'S SERVICE ON THAT
DEFENDANT AND WILL REQUIRE THAT DEFENDANT TO PAY THE FULL COSTS OF
FORMAL SERVICE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(d)(2).
s/Joe Billy McDade
JOE BILLY McDADE
UNITED STATES DISTRICT JUDGE
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