THOMAS v. UNITED STATES OF AMERICA et al
Filing
96
Entry Granting Defendants' Motion to Dismiss - The defendants' motion to dismiss [dkt. 72] must be granted. The Court agrees with the defendants that the nature of the injunctive relief requested in this action requires that if this ca se is to move forward it can only do so against defendant Dr. William E. Wilson, M.D., in his official capacity. The claim against Dr. Wilson in his individual capacity is dismissed. Instead, the claim for injunctive relief shall be understood t o be brought against Dr. Wilson in his official capacity. The clerk is directed to amend the docket accordingly. The motion to reconsider the dismissal of Harrell Watts [dkt. 83] is denied. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 6/17/2013. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
RALPH THOMAS,
Plaintiff,
vs.
HARRELL WATTS, et al.,
Defendants.
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Case No. 2:11-cv-187-JMS-WGH
Entry Granting Defendants’ Motion to Dismiss
The defendants’ motion to dismiss [dkt. 72] must be granted. For the reasons explained
in this Entry, the Court agrees with the defendants that the nature of the injunctive relief
requested in this action requires that if this case is to move forward it can only do so against
defendant Dr. William E. Wilson, M.D., in his official capacity.1
Background
The relevant procedural history is set forth below because it illustrates the plaintiff’s
difficulty over the course of three years to allege a viable claim for injunctive relief against any
defendant pursuant to the theory recognized in Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971).
1
The Court identified Dr. William E. Wilson as the defendant most likely to obtain the
injunctive relief sought by the plaintiff given his alleged position as Chief Medical Doctor at the
United States Penitentiary in Terre Haute, Indiana. The Court reaffirms its ruling that Dr.
Wilson, in his official capacity, is the appropriate defendant in this action. Given the nature of an
official capacity claim, Dr. Wilson is invited to seek substitution of another individual in his or
her official capacity if appropriate.
This case was filed on December 8, 2009, by pro se plaintiff Ralph Thomas, an inmate at
the United States Penitentiary in Terre Haute, Indiana, in the United States District Court for the
District of Columbia. The defendants, the United States of America, Federal Bureau of Prisons
(“BOP”), and the BOP’s Administrator of the National Inmate Appeals, Harrell Watts (“Watts”),
filed a motion to dismiss on October 28, 2010. On April 29, 2011, Judge Kollar-Kotelly granted
the motion to dismiss the plaintiff’s claims for money damages. On June 30, 2011, Judge KollarKotelly ordered the transfer of the remaining claims for injunctive and declaratory relief to this
Court. She explained, “Plaintiff does not state what type of injunctive relief is sought, but it is
presumed that he seeks to compel prison officials at FCC Terre Haute to provide adequate
medical treatment for his chronic ailments.” Dkt. 31 at p. 5.
The action was transferred and opened on this Court’s docket on July 22, 2011. Dkt. 37.
Following transfer, Thomas was provided multiple opportunities to amend and supplement his
complaint to allege a viable Eighth Amendment claim for injunctive relief.2 On October 26,
2011, Thomas was directed to provide a plain statement of his claim for equitable relief. Thomas
failed to comply with the Entry of October 26, 2011, and on December 2, 2011, he was given
additional time to do so. Thomas responded (see Dkt. 45), but again his response was found
deficient. The Court stated:
The plaintiff’s claim is deficient at this point because the court and
defendants are left to speculate regarding what medical treatment the plaintiff
seeks and what his “obvious” symptoms requiring treatment might include.
Additionally, it must be considered whether the defendants he has named—a
choice he has made—can be sued and could provide the relief he seeks. See
generally, Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005)(“Pro se
litigants are masters of their own complaints and may choose who to sue-or not to
2
Given the fact that this case had been pending for more than 18-months prior to its arrival in
this Court, Thomas was not invited to expand the scope of his claims beyond those for injunctive
relief.
sue.”); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999) (the court may not
rewrite a petition to include claims that were not presented).
Entry of March 20, 2012, [Dkt. 49.] Thomas was provided yet another opportunity to state a
claim upon which relief may be granted by filing an amended complaint that asserts his claim for
injunctive relief, identifies the injunctive relief sought and states the basis upon which each of
the defendants could be liable to him for the relief he seeks.
On April 19, 2012, the plaintiff filed an amended complaint. [Dkt. 51.] In the amended
complaint Thomas seeks injunctive relief from prison medical providers for the treatment of
disabling pain and severe muscle cramps he has experienced throughout his body from August
2007 to the present. [Dkt. 51 at 3-4.] Thomas specifically asserts that the condition of severe
muscle cramps is the only issue before the Court. [Id. at 3.] Thomas alleges that defendants
Watts and Ndife are liable because they intentionally reported in response to administrative
remedies that Thomas received medical care when he did not. The only allegation against Dr. W.
Wilson is that he is the Chief Medical Doctor, Dkt. 50. From this allegation, the Court inferred
that Dr. Wilson had the authority to obtain medical care for Thomas. In the Court’s October 3,
2012, screening the amended complaint pursuant to 28 U.S.C. § 1915A(b), the Court stated:
The plaintiff seeks injunctive relief ordering Bureau of Prison medical
providers to provide treatment for his disabling pain related to severe muscle
cramps throughout his body. The plaintiff names a variety of medical providers in
the complaint explaining how their responses to his requests and grievances were
inadequate and in violation of the Eighth Amendment. The plaintiff specifically
seeks to add individual defendants to this action, including Dr. W. Wilson,
(described by the plaintiff as the Chief Medical Director) and Mr. A. Ndife (who
allegedly represented that plaintiff received treatment for his muscle cramps when
he had not). See dkt. 50.
In screening the amended complaint, the Court held that Dr. W. Wilson, Mr. A. Ndife, and
Harrell Watts appeared to be appropriate defendants from which the plaintiff could obtain the
injunctive relief he seeks pursuant to the theory recognized in Bivens.
The individual defendants, Wilson, Ndife and Watts responded to the amended complaint
by filing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
In response to the motion to dismiss, Thomas restates that 1) his Eighth Amendment rights have
been violated; 2) the BOP is responsible for providing him with medical care; and 3) his claim is
brought pursuant to the theory recognized in Bivens. Thomas further articulates that his claims
are brought against Ndife and Watts who signed administrative remedy responses stating that
medication and treatment was supplied, when it was not. For the reasons explained in the Entry
of March 13, 2013, the motion to dismiss claims against Ndife and Watts was granted. Dkt.
76.
The foregoing procedural history brings the case to the present. What remains of
Thomas’s lawsuit initiated in the District of Columbia on December 8, 2009, is a single claim for
injunctive relief against Dr. Wilson, pursuant to the theory recognized in Bivens.
Discussion
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
complaint is sufficient if it gives “enough details about the subject-matter of the case to present a
story that holds together.” Swanson v. Citibank, 614 F.3d 400, 404 (7th Cir. 2010). On the other
hand, a plaintiff “can plead himself out of court by pleading facts that show that he has no legal
claim.” Atkins v. City of Chicago, 631 F.3d 823 (7th Cir. 2011).
Thomas’s claims are based upon the protections of the Eighth Amendment. The Eighth
Amendment imposes a duty on prison officials to provide medical care to inmates. Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996). In order for an inmate to state a claim under the theory
recognized in Bivens for medical mistreatment or denial of medical care, the prisoner must allege
“acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference exists only when an
official “knows of and disregards an excessive risk to an inmate’s health; the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994)(construing Estelle). A condition is serious if “the failure to treat a prisoner’s condition
could result in further significant injury or the unnecessary and wanton infliction of pain.”
Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (citation and internal quotations
omitted). In order to state a valid claim, there must be a finding of personal participation of a
defendant in the asserted constitutional deprivation. Sanville v. McCaughtry, 266 F.3d 724, 734
(7th Cir. 2001).
Dr. Wilson does not dispute that equitable relief, including injunctive relief, may be
available in the context of a Bivens case. Instead, he argues that the complaint is deficient
because Thomas has failed to provide sufficient factual allegations to state a plausible claim that
Dr. Wilson was or is deliberately indifferent to his serious medical needs. Without such
allegations, Thomas is not entitled to relief.3
Dr. Wilson’s argument is persuasive. Thomas has not alleged a plausible claim against
Dr. Wilson. The amended complaint does not allege any wrongdoing on his part. The only
allegation against Dr. Wilson is that he is the Chief Medical Doctor. Dkt. 50. “Where a
complaint alleges no specific act or conduct on the part of the defendant and the complaint is
3
Dr. Wilson also argues that the injunctive relief sought is not obtainable from him in his
individual capacity. To state a claim upon which relief may be granted, the relief sought must
necessarily be available from the named defendant.
silent as to the defendant except for his name appearing in the caption, the complaint is properly
dismissed.” Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); see also Black v. Lane, 22 F.3d
1395, 1401 and n.8 (7th Cir. 1994)(district court properly dismissed complaint against one
defendant when the complaint alleged only that defendant was charged with the administration
of the institution and was responsible for all persons at the institution). “Because vicarious
liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”
Ashcroft, 556 U.S. at 676.
For these reasons, the claim against Dr. Wilson in his individual capacity is
dismissed. Instead, the claim for injunctive relief shall be understood to be brought against
Dr. Wilson in his official capacity. The clerk is directed to amend the docket accordingly.
Finding that the claim for injunctive relief may proceed against Dr. Wilson in his official
capacity would appear to contradict the Entry of October 3, 2012. Dkt. 56. In that Entry the
Court screened the amended complaint and found that the claim for injunctive relief as a remedy
for a Bivens claim was necessarily against the defendants in their individual capacities only
because any claim against the defendants in their official capacities is barred by the United
States’ sovereign immunity. This statement of the law is correct. The United States—which
includes an employee of the United States sued in his or her official capacity—is not a proper
defendant in a Bivens action. Kaba v. Stepp, 458 F.3d 678, 687 (7th Cir. 2006) (“A Bivens action
may not be brought against the United States or a federal agency.”); Glaus v. Anderson, 408 F.3d
382, 389 (7th Cir. 2005) (“[F]ederal prisoners suing under Bivens may sue relevant officials in
their individual capacity only.”); Bunn v. Conley, 309 F.3d 1002, 1009 (7th Cir. 2002) (“There is,
however, a more fundamental problem: Bivens claims are brought against the relevant officials in
their individual capacity, and Bunn's suit against the warden is plainly an official capacity
action.”).
Misplaced, however, was the Court’s assumption that this action for injunctive relief to
redress allegedly on-going unconstitutional medical treatment could be understood as an action
brought pursuant to the theory recognized in Bivens. “[T]he decision in Bivens established that a
citizen suffering a compensable injury to a constitutionally protected interest could invoke the
general federal-question jurisdiction of the district courts to obtain an award of monetary
damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478, 504 (1978).
As discussed above, the plaintiff’s claims for money damages have been dismissed. All that
remains is a claim for injunctive relief. Such relief was available before Bivens. Justice Harlan
recognized “the presumed availability of federal equitable relief, if a proper showing can be
made in terms of the ordinary principles governing equitable remedies.” Bivens, 403 U.S. at 400
(J. Harlan, concurring) (citing Bell v. Hood, 327 U.S. 678, 684 (1946) (which states, “. . . where
the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of
the United States, the federal court . . . must entertain the suit.” Id. at 681-682)).
It does not appear that the plaintiff’s claim for injunctive relief to remedy an alleged ongoing constitutional violation is barred by sovereign immunity, although, “’(t)he extent to which
sovereign immunity may bar an action against a federal officer for acts done in his or her official
capacity is an extraordinarily difficult question. . .’” Clark v. U.S., 691 F.2d 837, 839 (7th Cir.
1982) (quoting C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure s 3655, at 177
(1976)). The Seventh Circuit has recognized that not all suits against federal officials for
injunctive relief are deemed suits against the United States for sovereign immunity purposes. See
Clark, 691 F.2d at 839 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682
(1949)). Under Ex parte Young, 209 U.S. 123, 159-60 (1908), a plaintiff may file “suit[ ] against
state officials seeking prospective equitable relief for ongoing violations of federal law. . . .”
Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997). See also Indiana Protection and Advocacy
Services v. Indiana Family and Social Services Admin., 603 F.3d 365, 370-72 (7th Cir. 2010) (J.
Hamilton) (discussing exceptions to the Eleventh Amendment’s bar against actions in federal
court against state officials acting in their official capacities); Gautreaux v. Romney, 488 F.3d
731, 735 (7th Cir. 1971) (holding that the doctrine of sovereign immunity “does not bar a suit
such as this which is challenging alleged unconstitutional and unauthorized conduct by a federal
officer.”).4
In addition, Congress amended the Administrative Procedure Act (“APA”) to allow suits
for injunctive relief to be brought against the United States.5 Title 5, United States Code, Section
702 “waives the federal government’s sovereign immunity from actions seeking judicial review
of federal administrative decisions, provided the action is not one for ‘money damages.’”
Czerkies v. U.S. Dep't of Labor, 73 F.3d 1435, 1438 (7th Cir. 1996). “’The APA’s waiver of
4
In E.E.O.C. v. Peabody Western Coal Co., 610 F.3d 1070, 1085 (9th Cir. 2010), the Ninth
Circuit called into question whether prospective relief against federal officials is available under
the fiction of Ex parte Young following the passing of § 702 of the Administrative Procedure
Act, 5 U.S.C. § 702.
5
Section 702 provides:
An action in a court of the United States seeking relief other than money damages
and stating a claim that an agency or an officer or employee thereof acted or
failed to act in an official capacity or under color of legal authority shall not be
dismissed nor relief therein be denied on the ground that it is against the United
States or that the United States is an indispensable party. United States may be
named as a defendant in any such action, and a judgment or decree may be
entered against the United States: Provided, That any mandatory or injunctive
decree shall specify the Federal officer or officers (by name or by title), and their
successors in office, personally responsible for compliance.
5 U.S.C. § 702.
sovereign immunity applies to any suit whether under the APA or not.’” Magee v. Housing
Authority of South Bend, 2010 WL 3000660, *5-6 (N.D. Ind. 2010) (quoting Chamber of
Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996)); see also Blagojevich v. Gates, 519
F.3d 370, 372 (7th Cir. 2008) (stating that Ҥ 702 does not say that it covers only claims
reviewable through the APA. In Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101
L.Ed.2d 749 (1988), the Supreme Court treated § 702 as generally applicable.”).
The finding that this action for injunctive relief may proceed against Dr. Wilson in his
official capacity is consistent with dicta in Vance v. Rumsfeld, 701 F.3d 193, 228-229 (7th Cir.
2012) stating that injunctive relief against illegal conduct by the federal government is available
under established doctrine and that the judiciary retains the power to enjoin an unconstitutional
practice of unlawful deprivation of rights. Id. (“Injunctions that enforce the Detainee Treatment
Act prospectively may be possible under the doctrine of Ex parte Young . . . or the waiver of
sovereign immunity in 5 U.S.C. § 702.”).6
Conclusion
Thomas has failed to state a claim upon which the relief sought may be granted against
any defendant in his or her individual capacity. Accordingly, the motion to dismiss [dkt. 72] is
granted and the motion to reconsider the dismissal of Harrell Watts [dkt. 83] is denied.
6
This Court is bound to follow informed, as opposed to casual, statements by the Seventh Circuit
as a considered expression of the issues before it. See United States v. Bloom, 149 F.3d 649, 65253 (7th Cir. 1998) (“The question had been briefed by the parties, so the statement was informed
rather than casual; it is a considered expression by the Court . . . . It would ill serve the interests
of litigants and the judicial system as a whole to row against the tide of such statements.”)
(citations omitted). See also Rock v. NCAA, 2013 U.S. Dist. LEXIS 29034, 12-13 (S.D. Ind. Mar.
1, 2013).
The clerk is directed to update the docket to reflect that the claim against Dr. Wilson is
in his official capacity only. Directions regarding the further development of this action for
injunctive relief shall be issued in a separate order.
IT IS SO ORDERED.
_______________________________
06/17/2013
Date: __________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Note to Clerk:
Distribution: Processing this document requires actions in addition to docketing and distribution.
RALPH THOMAS
R18369-001
TERRE HAUTE
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
All Electronically Registered Counsel
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