Mann v. Harvey et al

Filing 145

MEMORANDUM Opinion and Order Signed by the Honorable Joan H. Lefkow on 10/30/2014.(mjc, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JACK MANN (#22865-424),
Plaintiff,

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No. 11 C 4625

v.

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Judge Joan H. Lefkow

UNITED STATES of AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff, a federal prisoner presently in custody at Milan-FCI, brought this pro se civil
rights action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff’s Bivens
action was dismissed by the court on summary judgment, but Plaintiff was granted leave to
submit a proposed amended complaint stating a claim under the Federal Tort Claims Act, 28
U.S.C. § 1346 (hereinafter, “FTCA”), to the extent there was no legal reason barring him from
doing so.
Plaintiff has submitted a proposed amended complaint [132] alleging that Dr. Harvey,
whom the plaintiff represents to be the Regional Medical Director of the Federal Bureau of
Prisons, was negligent in his medical treatment of Plaintiff. More specifically, Plaintiff alleges
that Dr. Harvey refused to prescribe Provigil for him because it is not on the Bureau of Prisons’
formulary list, a refusal that breached the duty of care and caused Plaintiff injury. Plaintiff had
been prescribed Provigil prior to incarceration for the collateral effects of a traumatic brain
injury.
This matter is before the court for ruling on the United States’ motion to dismiss for
failure to exhaust administrative remedies prior to filing suit [139] and Plaintiff’s motion for
default [138]. For the reasons stated in this order, both motions are denied.

LEGAL STANDARDS
Pro se complaints are to be liberally construed. Kaba v. Stepp, 458 F.3d 678, 681, 687
(7th Cir. 2006). Pro se submissions are held to a less stringent standard than formal pleadings
drafted by lawyers. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Rule 8(a)(2) of the
Federal Rules of Civil Procedure 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.’” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)); Windy City Metal Fabricators & Supply, Inc. v. CIT
Tech. Fin. Servs., Inc., 536 F.3d 663, 667 (7th Cir. 2008).
At the same time, a plaintiff’s “factual allegations must be enough to raise a right to
relief above the speculative level.” Bridges, 557 F.3d at 546. Put differently, a complaint must
contain sufficient factual content “to allow the court ‘to draw a reasonable inference that the
defendant is liable for the misconduct alleged.’” Charleston v. Board of Trs. of Univ. of Ill. at
Chicago, 741 F.3d 769, 772 (7th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). See Thomson v. Washington, 362 F.3d 969, 971 (7th Cir. 2004) (To satisfy the notice
pleading requirements of Fed. R. Civ. P. 8(a)(2), the plaintiff must only state his basic legal
claim and provide “some indication . . . of time and place.”).
“In reviewing the sufficiency of a complaint under the plausibility standard, [courts]
accept the well-pleaded facts in the complaint as true.” Alam v. Miller Brewing Co., 709 F.3d
662, 665-66 (7th Cir. 2013). The court views all facts—as well as any inferences reasonably
drawn therefrom—in the light most favorable to the plaintiff. Parish v. City of Elkhart, 614

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F.3d 677, 679 (7th Cir. 2010); Bell Atlantic Corp., 550 U.S. at 563 (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002)). A well-pleaded
complaint may proceed even if it appears “that actual proof of those facts is improbable, and
that a recovery is very remote and unlikely.” Bell Atlantic Corp., 550 U.S. at 556.
BACKGROUND
Defendant’s motion to dismiss focuses on a narrow question. Defendant argues that
because Plaintiff exhausted his administrative remedies for purposes of pursuing an FTCA
claim after he filed his Bivens complaint he is barred from pursuing his FTCA claim now.
Plaintiff filed his Bivens complaint on July 8, 2011, On June 27, 2012, the court denied
Defendant’s motion to dismiss and invited Plaintiff to submit a proposed amended complaint to
add the United States as a defendant and to add a claim under the FTCA, to the extent he had
exhausted his administrative remedies.
Plaintiff did not file a proposed amended complaint at that time but pursued discovery
related to a possible FTCA claim, and on June 29, 2012 he began the process to exhaust his
administrative remedies. When Plaintiff attempted to submit a proposed amended complaint,
the court, on August 20, 2012, entered an order denying Plaintiff leave to amend his complaint
based on a failure to exhaust at that time. On August 31, 2012, the court struck Plaintiff’s
proposed second amended complaint. Meanwhile, on July 26, 2012, Defendant Harvey filed a
motion for summary judgment on the Bivens complaint on the basis that he is absolutely
immune from suit under 42 U.S.C. § 233(a).
Plaintiff’s administrative claim was denied on September 9, 2012, and he submitted a
proposed second amended complaint on September 17, 2012. Due to a docketing error, the
proposed second amended complaint was not reviewed by the court until May 22, 2013.

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On May 22, 2013, the court clarified its order denying Plaintiff leave to amend to state a
claim pursuant to FTCA in September of 2012, stating:
Plaintiff faces a conundrum because his two claims require
opposite proofs: if, as set out in Dr. Harvey’s motion for summary
judgment, he was acting within the scope of his employment
while treating plaintiff, he is absolutely immune from liability for
alleged malpractice under 42 U.S.C. §233(a). See also Hui v.
Castaneda, 559 U.S. 799 (2010). Any claim arising from
malpractice occurring within the scope of Dr. Harvey’s
employment would be under the FTCA and against the United
States. Dr. Harvey was acting within the scope of his employment
if (a) he was performing work of the kind he was employed to
perform; (b) the alleged wrongdoing occurred substantially within
the authorized time and space limits of his employment; and (c) it
was actuated, at least in part, by a purpose to serve the employer.
See Taboas v. Mlynczak, 149 F.3d 576, 582 (7th Cir. 1998)
(quoting Pyne v. Witmer, 543 N.E. 2d 1304, 1308, 129 Ill. 2d 351,
135 Ill. Dec. 557 (1989)). If, however, Dr. Harvey was acting
outside the scope of employment, then plaintiff’s law suit is
against Dr. Harvey and Bivens would be his only avenue of relief.

The court then instructed the parties that it would rule on the pending motion for summary
judgment and, if it granted the motion, dismissing Plaintiff’s Bivens action, it would grant
Plaintiff leave to submit an amended complaint asserting a claim under the FTCA.
The court granted Defendant’s motion for summary judgment on November 26, 2013. Plaintiff
sought an extension of time in which to submit his proposed amended complaint, which the
court granted, and Plaintiff submitted his proposed amended complaint alleging a claim under
the FTCA on January 22, 2014. Defendant now seeks dismissal pursuant to McNeill v. United
States, 508 U.S. 106, 112-13 (1993).

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ANALYSIS
Plaintiff’s motion for default can be readily denied because Plaintiff has submitted an
untimely motion for default, which he concedes in his response to the motion to dismiss. As
such, the motion is without merit.
With respect to Defendant’s motion to dismiss, Defendant argues that Plaintiff may not
pursue any FTCA claim now because he originally filed suit in July of 2011 and did not exhaust
his administrative remedies until September 6, 2012. In support of its argument, Defendant
cites to McNeill v. United States, 508 U.S. 106 (1993) and Kaba v. Stepp, 458 F.3d 678 (7th Cir.
2006). Both cases held that a lawsuit filed before the federal agency finally denies the claim is
premature and must be dismissed. Kaba, 458 F.3d at 688; citing McNeill, 508 U.S. 112-13.
However, in McNeill the suit filed by the plaintiff contained a claim against the United States
under the FTCA for money damages. McNeill, 508 U.S. at 108. In other words, unlike in the
present case, McNeill initiated suit under the FTCA prior to exhausting his administrative
remedies as required. By contrast, Plaintiff here has never successfully put an FTCA claim
before the court and, when Plaintiff attempted on multiple occasions to amend to state an FTCA
claim, the court instructed Plaintiff to wait until the motion for summary judgment on the
Bivens claim was resolved. On September 17, 2012, after his administrative claim was denied,
Plaintiff again attempted to file a second amended complaint, but the court again denied leave
to file until after Defendant’s pending motion for summary judgment on the existing Bivens
claim was resolved. The court also notes that Defendant Harvey argued in his motion for
summary judgment that the only claim entitling Plaintiff to relief on this case is one brought
under the FTCA. (See Defendant’s motion for summary judgment ECF #33 at p. 3). The court
specifically stated that once the motion for summary judgment was resolved, Plaintiff would be

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granted leave to amend to make an FTCA claim. Once the court granted the motion for
summary judgment, Plaintiff, pursuant to the court’s direction, submitted his amended
complaint stating an FTCA claim.
In Kaba, the court declined to allow the plaintiff to submit a proposed amended
complaint. 458 F3d. at 688. In this case, the court instructed Plaintiff not to submit his
proposed amended complaint until the court had resolved the motion for summary judgment.
Thus, Kaba presents a different and distinguishable procedural history in that, unlike in Kaba,
the court’s refusal to allow the amended complaint should toll the running of the statute of
limitations. To rule otherwise would be patently unfair to Plaintiff and counter to the interest of
justice. See Rule 1, Fed. R. Civ. P.
Additionally, “[a] party may amend the party’s pleading once as a matter of course at
any time before a responsive pleading is served.” FED. R. CIV. P. 15(a). Even after a responsive
pleading has been served, a party may amend its pleading by leave of the court, “and leave shall
be freely given when justice so requires.” Id. “It is, by now, axiomatic that district courts have a
special responsibility to construe pro se complaints liberally and to allow ample opportunity for
amending the complaint when it appears that by so doing the pro se litigant would be able to
state a meritorious claim.” Donald v. Cook County Sheriff's Dep’t, 95 F.3d 548, 555 (7th Cir.
1996).
The court expressly gave Plaintiff leave to submit his proposed amended complaint in
this case in its order granting summary judgment. Plaintiff did so in a timely manner.
Accordingly, Defendant’s motion will be denied.

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CONCLUSION
Defendant’s motion to dismiss [139] is denied. Plaintiff’s motion for default [138] is
denied. The Clerk is directed to substitute the United States of America as Defendant for all
other named Defendants in the caption. Defendant shall file its answer to Plaintiff’s amended
complaint stating an FTCA claim by December 1, 2014. This matter is set for status on
December 16, 2014 at 11:30 a.m. Defendant shall arrange for plaintiff to appear by telephone
and bring a contact phone number to court on December 16, 2014.

Date: October 30, 2014

Enter: _________________________________
JOAN H. LEFKOW
United States District Judge

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