Sloat v. USA
Filing
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ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. IT IS HEREBY ORDERED that Plaintiff may proceed with his claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, in COUNT 1 against Defendant UNITED STATES OF AMERICA. IT IS FURTHER ORDERED that all claims brought pursuant to Bivens are considered DISMISSED without prejudice from this action for failure to state a claim upon which relief may be granted. Signed by Judge Staci M. Yandle on 3/6/2017. (jaj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT ALLEN SLOAT,
#09037-025,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
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Case No. 16-cv-00917-SMY
MEMORANDUM AND ORDER
YANDLE, District Judge:
Now before the Court for consideration is the First Amended Complaint filed by Plaintiff
Robert Sloat. (Docs. 9, 9-1, 9-2). Plaintiff is currently incarcerated at the Federal Correctional
Institution located in Greenville, Illinois (“FCI-Greenville”). He brings this action against the
United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 26712680. Plaintiff alleges that he was denied necessary dental surgery and dentures for more than 4
years at FCI-Greenville, and that federal officials allegedly knew of and disregarded his urgent
dental needs (Doc. 9-2, pp. 1-9). Plaintiff now seeks monetary damages against the United
States for the negligence and/or deliberate indifference of these officials. (Doc. 9, p. 6).
This case is now before the Court for preliminary review of the First Amended Complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
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(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim
that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th
Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
First Amended Complaint
The factual allegations offered in support of the First Amended Complaint are set forth in
an exhibit that Plaintiff refers to as a “Brief” in his Statement of Claim (Doc. 9, p. 5) and as a
“Motion for Leave to File First Amended Complaint” on the face of the exhibit (Doc. 9-2, pp. 16). Plaintiff alleges that he underwent a dental screening at FCI-Greenville on April 9, 2012.
(Doc. 9-2, pp. 1-2). “Health Services” determined that he was missing all 32 teeth and was also
suffering from bleeding and infected gums. Id. Plaintiff indicated that he suffered from pain and
problems chewing, swallowing and digesting food. Id.
On June 6, 2012, Plaintiff received a recommendation for a form of pre-prosthetic
surgery referred to as “tori removal and mandibular [a]nterior vestibuloplasty.” (Doc. 9-2, p. 2).
On August 12, 2012, Doctor Hartnagel ordered radiographs, recommended removal of the
mandibular “bilateral,” and requested further pre-prosthetic evaluation. Id. Months passed
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without further treatment. Id. On December 11, 2012, Plaintiff submitted a written inquiry
regarding the status of his case and indicated that he was still waiting for oral surgery and
dentures. Id. Years passed without surgery or dentures.
On August 7, 2015, Plaintiff returned to Health Services. (Doc. 9-2, p. 2). During the
appointment, he complained of continued difficulty chewing and eating. Id. Plaintiff explained
that he had been waiting for dentures for nearly 4 years. Id.
On August 12, 2015, the Chief Dental Officer once again determined that Plaintiff
needed “[b]ilateral [m]andibular, and [t]ori [r]emoval” along with “[m]andibular [a]nterior
[v]estibuloplasty.” (Doc. 9-2, p. 2). Surgery was tentatively scheduled for November 2, 2015.
Id. Plaintiff’s dental records from that date reveal the same diagnosis as the one he received on
June 6, 2012. (Doc. 9-2, p. 3). Doctor Hartnagel’s records include a similar note dated October
9, 2015. Id. On the same date, Plaintiff’s case was finally referred to the regional office for
approval.
Id.
On or around November 18, 2015, Plaintiff underwent a “neurosurgery
procedure.” Id. At some point between November 2015 and July 2016, he underwent a second
surgery that Doctor Swanson originally said Plaintiff could undergo at the same time as his first
surgery. Id.
Plaintiff finally received dentures on July 7, 2016. (Doc. 9-2, p. 3). However, they did
not fit and required modification. Id. Plaintiff’s dentures have since caused him to suffer from
“serious problems.” Id.
He now brings an FTCA claim against the United States based on the negligence and/or
deliberate indifference of officials in Health Services at FCI-Greenville, including Doctors
Hartnagel and Swanson. (Docs. 9, 9-1, 9-2). He seeks monetary relief. (Doc. 9, p. 6).
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Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
deems it appropriate to organize the claim in Plaintiff’s pro se First Amended Complaint into the
following enumerated count:
Count 1 -
Defendants, by and through the negligence of federal officials at
FCI-Greenville, are liable under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671-2680, for denying Plaintiff necessary
dental care and dentures for a period of more than 4 years
beginning in 2012.
The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation does not constitute an
opinion regarding the merits of this claim.
A federal prisoner may seek relief for the misconduct of federal officials by bringing a
suit against the United States under the FTCA based on conduct of federal officials that is
considered tortious under state law. Sisk v. United States, 756 F.2d 497, 500 n. 4 (7th Cir. 1985)
(citing 28 U.S.C. §§ 1346(6), 2680). Alternatively, he may bring a suit against the individual
federal officials who violated his constitutional rights under the theory set forth in Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Or, he may bring both types of claims in
a single suit. See, e.g., Ting v. United States, 927 F.2d 1504, 1513 n. 10 (9th Cir. 1991).
This suit is limited to a claim under the FTCA against the United States. Although the
allegations allude to both an FTCA claim and an Eighth Amendment deliberate indifference
claim, Plaintiff fails to name any particular individual in connection with an Eighth Amendment
claim in the case caption of his First Amended Complaint. He names the United States as the
only defendant. This defendant is properly named in connection with an FTCA claim, but not in
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connection with a claim brought pursuant to Bivens. See Myles v. United States, 416 F.3d 551
(7th Cir. 2005) (pro se federal inmate’s complaint asserting an FTCA claim against United States
could not be deemed to assert a Bivens claim against individual federal employees who were not
specified in the case caption). This action is therefore limited to an FTCA claim against the
United States.
The FTCA allows “civil actions on claims against the United States, for money damages .
. . for . . . personal injury or death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment.”
28 U.S.C. § 1346(b)(1). Pursuant to the FTCA, “federal inmates may bring suit for injuries they
sustain in custody as a consequence of the negligence of prison officials.” Buechel v. United
States, 746 F.3d 753, 758 (7th Cir. 2014). State tort law of the state where the tort occurred
applies when determining “whether the duty was breached and whether the breach was the
proximate cause of the plaintiff’s injuries.” Parrott v. United States, 536 F.3d 629, 637 (7th Cir.
2008); Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003).
In this case, Illinois law applies to Plaintiff’s claim.
In order to state a claim for
negligence under Illinois law, the First Amended Complaint must allege facts sufficient to
establish that the defendant owed the plaintiff a duty of care, breached that duty and that the
breach was the proximate cause of the plaintiff’s injury. Thompson v. Gordon, 948 N.E.2d 39,
45 (Ill. 2011) (citing Iseberg v. Gross, 879 N.E.2d 278 (2007)). The First Amended Complaint
suggests that Doctor Hartnagel and Doctor Swanson, among others employed in Health Services
at FCI-Greenville, responded to Plaintiff’s dental needs with negligence and/or deliberate
indifference. These allegations support a claim against the United States under Count 1.
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In order to pursue an FTCA claim based on medical negligence or medical malpractice
that occurred in Illinois, an inmate must also comply with 735 ILCS § 5/2-622. Under Section 2622, a plaintiff “[i]n any action, whether in tort, contract or otherwise, in which the plaintiff
seeks damages for injuries or death by reason of medical, hospital, or other healing art
malpractice,” must file an affidavit along with the complaint, declaring one of the following:
(1) that the affiant has consulted and reviewed the facts of the case with a qualified health
professional who has reviewed the claim and made a written report that the claim is reasonable
and meritorious (and the written report must be attached to the affidavit); (2) that the affiant was
unable to obtain such a consultation before the expiration of the statute of limitations, and affiant
has not previously voluntarily dismissed an action based on the same claim (and in this case, the
required written report shall be filed within 90 days after the filing of the Complaint); or (3) that
the plaintiff has made a request for records but the respondent has not complied within 60 days
of receipt of the request (and in this case the written report shall be filed within 90 days of
receipt of the records). See 735 ILL. COMP. STAT. § 5/2-622(a). 1 A separate affidavit and report
shall be filed as to each official. See 735 ILL. COMP. STAT. § 5/2-622(b).
Plaintiff failed to file the required certificate or affidavit with his Complaint. He was
granted leave to file a First Amended Complaint that complies with 735 ILCS § 5/2-622. He has
attempted to do so by filing “Affidavits” with his First Amended Complaint. (Doc. 9-1, p. 1-14).
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The August 25, 2005, amendments to a prior version of this statute were held to be unconstitutional in
2010. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010) (Holding P.A. 94-677 to be
unconstitutional in its entirety). After Lebron, the previous version of the statute continued in effect.
See Hahn v. Walsh, 686 F. Supp. 2d 829, 832 n.1 (C.D. Ill. 2010). The Illinois legislature re-enacted and
amended 735 ILL. COMP. STAT. §5/2-622 effective January 18, 2013 (P.A. 97-1145), to remove any
question as to the validity of this section. See notes on Validity of 735 ILL. COMP. STAT. § 5/2-622
(West 2013).
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Whether the self-described “Affidavits” satisfy 735 ILCS § 5/2-622 remains to be determined.
For now, the FTCA claim in Count 1 shall proceed against the United States.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed with his claim under the Federal
Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, in COUNT 1 against Defendant UNITED
STATES OF AMERICA.
IT IS FURTHER ORDERED that all claims brought pursuant to Bivens are considered
DISMISSED without prejudice from this action for failure to state a claim upon which relief
may be granted.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons for
service of process on the United States; the Clerk shall issue the completed summons. Pursuant
to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally deliver to or send by
registered or certified mail addressed to the civil-process clerk at the Office of the United States
Attorney for the Southern District of Illinois a copy of the Summons, the First Amended
Complaint (Docs. 9, 9-1, 9-2), and this Memorandum and Order, and (2) send by registered or
certified mail to the Attorney General of the United States at Washington, D.C., a copy of the
Summons, the First Amended Complaint (Docs. 9, 9-1, 9-2), and this Memorandum and Order.
Plaintiff shall serve upon the United States Attorney for the Southern District of Illinois,
a copy of every pleading or other document submitted for consideration by the Court. Plaintiff
shall include with the original paper to be filed a certificate stating the date on which a true and
correct copy of the document was served on the U.S. Attorney. Any paper received by a district
judge or a magistrate judge that has not been filed with the Clerk or that fails to include a
certificate of service will be disregarded by the Court.
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Each Defendant is ORDERED to timely file an appropriate responsive pleading to the
First Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Reona J. Daly for further pre-trial proceedings, pursuant to Local Rule 72.2(b)(2) and
28 U.S.C. § 636(c), if all parties consent to such a referral. Further, this entire matter shall be
REFERRED to United States Magistrate Judge Daly for disposition, pursuant to Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a referral.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: 3/6/2017
s/Staci M. Yandle
____________________________________
STACI M. YANDLE
United States District Judge
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