Green v. USA

Filing 37

ORDER re 31 Amended Complaint filed by Nathaniel Green. Signed by Magistrate Judge Donald G. Wilkerson on 4/9/2015. (nms)

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

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

ORDER
WILKERSON, Magistrate Judge:
Plaintiff Nathaniel Green is currently in the custody of the Federal Bureau of Prisons at
FCI Greenville. Plaintiff initiated this action on February 3, 2014 asserting a claim under the
Federal Tort Claims Act (“FTCA”) against the United States of America.

Plaintiff was

subsequently recruited counsel and filed an amended complaint on December 1, 2014, which the
Court construed as a motion for leave to file an amended complaint (Doc. 35). For the reasons set
forth below, the motion to amend is GRANTED IN PART AND DENIED IN PART.
FACTUAL BACKGROUND
Plaintiff’s allegations in this case relate to a medical condition that developed in his right
foot in March, 2009 while he was housed at FCI Greenville. Plaintiff sought medical treatment
for his foot condition, complaining that it caused him pain and impeded his ability to walk or
undertake any physical activity.

Plaintiff was seen by various medical personnel who

recommended different courses of treatment, such as anti-fungal cream and antibiotics. Plaintiff
did not receive any relief and, in October, 2011, Plaintiff was diagnosed with atherosclerosis and
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critical ischemia of his right leg. An outside surgeon attempted to surgically repair Plaintiff’s leg
arteries; however, the surgery was unsuccessful and Plaintiff underwent an above-the-knee
amputation of his right leg on October 31, 2011. Plaintiff filed an administrative claim with the
United States Bureau of Prisons on March 5, 2013, which was ultimately denied on August 21,
2013. Plaintiff’s complaint was screened on March 3, 2014, and he was allowed to proceed on his
FTCA claim against the United States.
Plaintiff now seeks leave to amend his complaint to add a claim of deliberate indifference
against the United States and three additional defendants and drop his FTCA claim. More
specifically, Plaintiff seeks to add Nurse Goldstein, Nurse Mike Varnum, and Physician Assistant
Timothy Adesanya as defendants to this action alleging they failed to provide adequate medical
treatment for Plaintiff’s serious medical condition.
DISCUSSION
Federal Rule of Civil Procedure 15(a) states that a party may amend a pleading and leave to
amend should be freely given “when justice so requires”. The Seventh Circuit liberally allows
amendment of pleadings “so that cases may be decided on the merits and not on the basis of
technicalities.” Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir. 1977). This Circuit
recognizes “the complaint merely serves to put the defendant on notice and is to be freely amended
or constructively amended as the case develops, as long as amendments do not unfairly surprise or
prejudice the defendant.” Toth v. USX Corp., 883 F.2d 1297, 1298 (7th Cir. 1989).

A court may

deny a party leave to amend if there is undue delay, dilatory motive or futility. Guise v. BMW
Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004).
The Court finds that Plaintiff’s allegations against Adesanya, Goldstein, and Varnum state
a cognizable deliberate indifference claim. Accordingly, justice so requires that Plaintiff be
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granted leave to add Timothy Adesanya, Nurse Goldstein, and Mike Varnum as Defendants to this
action, as there was no apparent undue delay in the filing of the proposed amended complaint, nor
is it apparently dilatory or frivolous. Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008)
(quoting Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 948-49 (7th Cir. 2002)
(“courts in their sound discretion may deny a proposed amendment if the moving party has unduly
delayed in filing the motion, if the opposing party would suffer undue prejudice, or if the pleading
is futile.”)). However, the Court finds that Plaintiff cannot maintain his deliberate indifference
claim against the United States. Pursuant to the doctrine of sovereign immunity, the United
States is generally immune from suits unless it expressly waives its immunity and consents to be
sued. See United States v. Mitchell, 463 U.S. 206, 212 (1983); Parrott v. United States, 536 F.3d
629, 634 (7th Cir. 2008). Plaintiff cites to no statute where the United States has waived
immunity for claims under 42 U.S.C. § 1983. Although the Federal Tort Claims Act waives the
United States’ sovereign immunity for claims arising out of torts committed by federal employees,
it appears that Plaintiff is now abandoning his FTCA claim. Accordingly, Plaintiff’s deliberate
indifference claim against the United States is barred by sovereign immunity and, as such,
allowing Plaintiff to amend his complaint to bring only a deliberate indifference claim against the
United States is futile.
Accordingly, Plaintiff’s motion to amend the complaint is GRANTED IN PART AND
DENIED IN PART. Plaintiff is DIRECTED to refile his Amended Complaint by April 17,
2015, including only those claims and defendants the Court has indicated may proceed in this
action.
IT IS SO ORDERED.

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DATED: April 9, 2015
DONALD G. WILKERSON
United States Magistrate Judge

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