Green v. USA

Filing 125

ORDER GRANTING 104 Motion for Summary Judgment and GRANTING 118 Motion for Summary Judgment. Defendants Goldstein, Varnum, and Adesanya are DISMISSED with prejudice. Green now proceeds in this action against the United States of America on claims brought pursuant to the Federal Tort Claims Act (Counts I and II of the Second Amended Complaint). Signed by Judge Nancy J. Rosenstengel on 9/25/2017. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATHANIEL GREEN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
TIMOTHY ADESANYA,
NURSE GOLDSTEIN,
and MIKE VARNUM,
Defendants.

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Case No. 3:14-CV-119-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on the motions for summary judgment filed by
Defendants Nurse Goldstein and Mike Varnum (Doc. 104) and Timothy Adesanya
(Doc. 118). For the reasons set forth below, the motions are granted.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff Nathaniel Green, an inmate in the custody of the United States Bureau
of Prisons (“BOP”) currently incarcerated at the Federal Correctional Institution in
Greenville, Illinois (“FCI Greenville”), filed this lawsuit on February 3, 2014, pursuant
to the Federal Tort Claims Act (“FTCA”) (see Doc. 1). Green alleged that healthcare
professionals at FCI Greenville failed to adequately diagnose and treat severe arterial
disease in his right leg that led to an above-the-knee amputation. Green’s complaint was
screened pursuant to 28 U.S.C. § 1915A, and he was allowed to proceed on a negligence
claim against the United States of America under the FTCA (see Doc. 5).
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Subsequently, counsel was appointed to represent Green in this matter. Green,
through counsel, filed an amended complaint on July 2, 2015 (though it was not
approved for filing until August 27, 2015), captioned as the second amended complaint
(see Doc. 42). Green’s second amended complaint, the operative complaint in this
matter, sets forth the following claims:
Count I:

Medical negligence claim against the United States of
America for its failure to provide Green with
adequate care (brought pursuant to the FTCA);

Count II:

Negligence claim against the United States of
America for its failure to properly supervise
employees (brought pursuant to the FTCA);

Count III:

Eighth Amendment deliberate indifference claim
against Timothy Adesanya, Nurse Goldstein, and
Mike Varnum for failing to provide medical care; and

Count IV:

Medical malpractice claim against Dr. Jack R. Oak.

Defendant Dr. Jack Oak was dismissed on October 26, 2016 (see Doc. 99). Thus, Green
currently proceeds on Counts I, II, and III.
Defendants Goldstein, Varnum, and Adesanya filed motions for summary
judgment that are now before the Court (see Docs. 104 and 1181). Defendants argue they
are entitled to summary judgment because Green failed to timely file this action under
the applicable statute of limitations. Green timely responded to Defendants’ motions
(see Docs. 105 and 120).

Defendant Adesanya’s motion for summary judgment was filed much later than the motion filed by
Defendants Goldstein and Varnum because Defendant Adesanya was not served with summons until
April 30, 2017.
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Exhaustion Efforts
Relevant to the statute of limitations issue are Green’s efforts to exhaust his
administrative remedies for both his Bivens claims and his claims brought pursuant to
the FTCA. The parties do not dispute the following facts concerning Green’s efforts at
exhausting his administrative remedies.
As mentioned above, Green’s claims in this matter concern the failure of medical
personnel at FCI Greenville to adequately treat and diagnose Green with peripheral
artery disease resulting in above-the-knee amputation of his right leg. The amputation
occurred in October 2011. Soon thereafter, Green initiated the BOP’s internal
administrative remedy procedures by submitting an institution-level request (BP-9) on
January 19, 2012, seeking monetary compensation (see Doc. 104-1, p. 26). Green’s BP-9
was denied on February 4, 2012, and he was advised that monetary compensation was
not available through the administrative remedy process, but was advised that he may
file a claim for money damages for personal injury under the FTCA (see id. at p. 25).
In accordance with the administrative remedy process, Green submitted a BP-10
to the Regional Director on March 7, 2012 (see Doc. 104-1, p. 24). The BP-10 was denied
by the Regional Director on March 21, 2012 (see id. at p. 23). Finally, Green appealed his
issue to the BOP Central Office by filing a BP-11 on April 9, 2012 (see id. at p. 22). The
Central Office denied the appeal on October 11, 2012 (see id. at p. 21).
Following the Central Office’s denial of his BP-11, Green filed a Form 95 Claim
for Damage Injury or Death to pursue an FTCA claim on March 5, 2013 (Doc. 42, ¶ 53).
Green’s claim was denied on August 21, 2013 (Doc. 1, ¶ 89).
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LEGAL STANDARDS
1. Summary Judgment Standard
Summary judgment is proper only if the moving party can demonstrate that
“there is no genuine dispute as to any material fact and the movant 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). See also Ruffin Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603,
607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc.,
409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that
no material facts are in genuine dispute; any doubt as to the existence of a genuine issue
must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160
(1970). See also Lawrence v. Kenosha Cnty., 391 F.3d 837, 841 (7th Cir. 2004). A moving
party is entitled to judgment as a matter of law where the non-moving party “has failed
to make a sufficient showing on an essential element of her case with respect to which
she has the burden of proof.” Celotex, 477 U.S. at 323. “[A] complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all
other facts immaterial.” Id. The Seventh Circuit has stated that summary judgment is
“the put up or shut up moment in a lawsuit, when a party must show what evidence it
has that would convince a trier of fact to accept its version of the events.” Steen v. Myers,
486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d
852, 859 (7th Cir. 2005) (other citations omitted).

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2. Statute of Limitations
Although Bivens actions do not contain an express statute of limitations, it is well
established in the Seventh Circuit that in such actions, like actions brought pursuant to
42 U.S.C. § 1983, the statute of limitations and tolling laws in the state where the alleged
injury occurred are applied. Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir. 1996).
Illinois law prescribes that actions for personal injury must be commenced
within two years after the cause of action accrued; thus, this case is governed by a twoyear statute of limitations period. 735 ILCS § 5/13-202; see Ashafa v. City of Chicago, 146
F.3d 459, 461 (7th Cir. 1998) (citations omitted). Further, pursuant to 735 ILCS 5/13-216,
“[w]hen the commencement of an action is stayed by … statutory prohibition, the time of
the continuance of the…prohibition is not part of the time limited for the
commencement of the action” (emphasis added). Because the Prison Litigation Reform
Act (“PLRA”) requires inmates to exhaust administrative remedies prior to filing suit
under § 1983, the Seventh Circuit Court of Appeals has held that a federal court relying
on the Illinois statute of limitations in §1983 cases must toll the limitations period while
a prisoner completes the administrative grievance process. See 42 U.S.C. § 1997(e)(a);
Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001). This tolling principle is equally
applied to Bivens actions. See Delgado, 93 F.3d at 342.

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DISCUSSION
1. Tolling of the Statute of Limitations
Defendants Goldstein, Varnum, and Adesanya assert that the Bivens claims
against them are untimely and, as such, must be dismissed. In support of their
argument, Defendants rely on the two-year statute of limitations period. Specifically,
Defendants assert that Green’s claim accrued on the date he underwent surgery for an
above-the-knee amputation, October 31, 2011, or, at the very latest, on January 19, 2012,
when Green initiated his administrative remedy appeals regarding the treatment at
issue. Defendants also recognize that the limitations period was tolled while Green was
engaging in the administrative remedy process; however, Defendants contend that the
tolling period ended on October 11, 2012, when Green received his final response from
the Central Office. Accordingly, Defendants argue that the statute of limitations period
ended, at the very latest, on October 11, 2014, but Green failed to assert any claim
against them until he sought to file an amended complaint on December 1, 2014.2
Green objects to Defendants’ argument on the issue of tolling. In particular,
Green asserts that his Bivens claim against Defendants was tolled until his last
administrative remedy was denied on August 21, 2013, causing his statute of limitations
to expire on August 21, 2015, well before Green first sought to assert claims against
Defendants. The crux of Green’s argument is that his efforts to engage in the

2 On December 1, 2014, Green sought to file an amended complaint that set forth claims against
Defendants Adesanya, Goldstein, and Varnum; however, the Court granted in part and denied in part
Green’s motion to amend and directed him to file a second amended complaint. Green’s second amended
complaint was filed on July 2, 2015, but the Court did not deem it operative until August 27, 2015 (see
Doc. 45).

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administrative process to pursue an FTCA claim should toll the limitations period for
not only his FTCA claim, but also his Bivens claims. In support of his position, Green
suggests that “[f]orcing a prisoner… to be aware of and comply with two separate and
distinct statutes of limitations for claims arising from the same event would…likely lead
to pro se prisoners filing multiple claims to address the same issues and injuries—one
against the individual defendants alleged to have committed a constitutional violation
and a second against the United States” (see Doc. 105, p. 5).
Significantly, the parties did not provide any relevant or persuasive case law to
support their respective positions from this Circuit. Indeed, it appears that the only
relevant case to address the issue of whether a Bivens claim may be tolled while a
plaintiff pursues the administrative process to file an FTCA claim is Roseboro v. Brown, a
case from the Eastern District of Virginia. In Roseboro, the court determined that the
“mere fact that plaintiff had to comply with two different exhaustion and timeliness
requirements does not warrant equitable tolling of the statute of limitations in his Bivens
claim.” No. 1:13cv513 LO/TRJ, 2015 WL 631352, at *5 (E.D. Va. Feb. 12, 2015). The court
further noted that the processing of the plaintiff’s FTCA claim had no impact on the
timeliness of the filing of his Bivens action. Id.
Although Roseboro only has limited persuasive value in this Court, the reasoning
applied is relevant here. In particular, though the Court is mindful of Green’s argument
concerning the efficiency of filing a lawsuit after all of the required administrative
remedies are complete, the processing of Green’s administrative remedy for his FTCA
claim had no impact on Green’s ability to file his Bivens action. Indeed, at the time
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Green filed his initial complaint in this matter, the administrative remedy process
related to both his FTCA and Bivens claims was complete. Thus, the Court need not
decide whether a plaintiff should be entitled to equitable tolling in instances where he
waited to file suit until all of his administrative claims were decided, because the facts
here do not align with such a circumstance. Accordingly, the Court finds that Green’s
statute of limitations on his Bivens claim was tolled until October 11, 2014, and his
second amended complaint was untimely as to Defendants Adesanya, Varnum, and
Goldstein.
2. Relation Back
In light of this ruling, the Court considers whether Green’s claims against
Defendants Adesanya, Varnum, and Goldstein relate back to Green’s original complaint
pursuant to Rule 15 of the Federal Rules of Civil Procedure. The parties do not dispute
that Rule 15(c)(1)(C) applies to this case.
In relevant part, Rule 15(c)(1)(C) provides that an amendment to a pleading
relates back to the date of the original pleading when the amendment changes the party
or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i)

received such notice of the action that it will not be prejudiced in
defending on the merits; and

(ii)

knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s
identity.

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Defendants do not dispute that the requirements of Rule 15(c)(1)(B) have been
satisfied (that the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out in the original pleading). Defendants contend,
however, they had no knowledge of this lawsuit until they received waivers of service
in 2015 (as to Varnum and Goldstein) or until they were contacted about a possible
deposition in 2017 (as to Adesanya). Defendants also assert that Green cannot establish
that they “knew or should have known” that this action would have been brought
against them, and any such knowledge should not be imputed to them.
First, the Court considers the requirements of Rule 15(c)(1)(C)(i) and whether
Defendants will be prejudiced if they are made to defend this suit on the merits. In
support of their motion, Defendants explain that they did not receive notice of this
lawsuit until 2015 or 2017, and this significant delay in receiving notice would prejudice
them, because they last rendered medical treatment to Green over four years ago.
Green objects to this argument, asserting that Defendants have failed to show
any prejudice aside from the passage of time, and they have not suggested they are
unable to access any piece of evidence that could assist them in this litigation. The Court
disagrees. Green’s claims in this matter necessarily require Defendants to recall events
that occurred approximately six years ago. Although Green minimizes the effect the
passage of time would have on this case, the Court finds it to be significant and unduly
prejudicial. See Drake v. United States, Case No. 2:14-cv-00386-JMS-DKL, 2016 WL
4088724, at *4 (S.D. Ind. Aug. 1, 2016). Moreover, this is not a case in which Defendants

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knew or should have known that this action would be brought against them. FED. R.
CIV. P. 15(c)(1)(C)(ii). There was no mistake in the filing of Green’s original complaint.
Finally, Green asks the Court to find that his second amended complaint relates
back to his original complaint pursuant to Rule 15(c)(2). Rule 15(c)(2) provides that:
When the United States or a United States officer or agency
is added as a defendant by amendment, the notice
requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if,
during the stated period, process was delivered or mailed to
the United States attorney or the United States attorney’s
designee, to the Attorney General of the United States, or to
the officer or agency.
By relying on this provision, Green asks the Court to reject Seventh Circuit
precedent that clearly proscribes the application of this provision to instances in which
an officer is sued in his or her individual capacity. See Lojuk v. Johnson, 853 F.2d 560, 56263 (7th Cir. 1988) (finding that Rule 15(c) was not intended to hold individual federal
employees liable for batteries committed beyond the period of limitations and noting
that “[i]f either Congress or the drafters of the Civil Rules had intended to wipe out the
defense of the statute of limitations otherwise available to federal officers, there would
certainly have been a clearer indication.”); see also Delgado-Brunet v. Clark, 93 F.3d 339,
344 (7th Cir. 1996). Although Green attempts to distinguish the factual underpinnings of
this case from those in Lojuk, Green has not provided a compelling argument for the
Court to contravene established precedent. Accordingly, the Court concludes that
Green’s second amended complaint does not relate back to his original complaint.

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CONCLUSION
For the reasons set forth above, the motions for summary judgment filed by
Defendants Goldstein and Varnum (Doc. 104) and Defendant Adesanya (Doc. 118) are
GRANTED. Defendants Goldstein, Varnum, and Adesanya are DISMISSED with
prejudice.
Green now proceeds in this action against the United States of America on claims
brought pursuant to the Federal Tort Claims Act (Counts I and II of the second
amended complaint).
IT IS SO ORDERED.
DATED: September 25, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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