Hayes v. United States Department of Justice et al

Filing 64

ORDER - Based on the foregoing, and on all of the files, records, and proceedings herein, the R&R 59 is ADOPTED IN PART and REJECTED IN PART. Accordingly, IT IS HEREBY ORDERED THAT: The motion of defendant Dr. Willis for summary judgment and/or statutory dismissal 47 is GRANTED. All claims against Dr. Willis are DISMISSED WITH PREJUDICE. The remaining defendants' motion to dismiss or for summary judgment 27 is GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART. The motion is DE NIED WITHOUT PREJUDICE as to plaintiff's Eighth Amendment Bivens claims against defendants Michael Abbott and Jorge Diaz in their individual capacities. The following claims are DISMISSED WITHOUT PREJUDICE: Plaintiff's claims under the Fe deral Tort Claims Act. Plaintiff's Bivens claims against the Federal Bureau of Prisons and the individual defendants in their official capacities. All other claims are DISMISSED WITH PREJUDICE. (Written Opinion). Signed by Judge Patrick J. Schiltz on 03/17/14. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JACQUELINE HAYES,

Case No. 12-CV-0577 (PJS/FLN)

Plaintiff,
v.
ORDER
FEDERAL BUREAU OF PRISONS;
NICOLE ENGLISH, Warden; R. RIOS,
Warden; MR. ABBOTT, UNICOR Manager;
MR. DIAZ, UNICOR Manager;
MS. ANDERSON, Medical Services
Administrator; DR. WILLIS, Medical
Services Provider; MR. ISAACCSON, Unit
Manager; MS. HILLER, Case Manager;
MS. L JONES, Case Manager;
MR. INVAQSON, all sued in their individual
and official capacities as Administrative Staff
at FCI-Waseca, Minnesota,
Defendants.

Jacqueline Hayes, pro se.
David W. Fuller, UNITED STATES ATTORNEY’S OFFICE, for defendants Federal
Bureau of Prisons, Nicole English, R. Rios, Mr. Abbott, Mr. Diaz, Ms. Anderson,
Mr. Isaaccson, Ms. Hiller, Ms. L Jones, and Mr. Invaqson.
Andrea Pavelka Hoversten and Robert M. Mahoney, GERAGHTY O’LOUGHLIN &
KENNEY, PA, for defendant Dr. Willis.
This action arises out of a work-related, repetitive-stress injury that plaintiff Jacqueline
Hayes allegedly suffered as a result of her work for UNICOR during her incarceration at FCIWaseca. Construed liberally, Hayes’s amended complaint alleges (1) Eighth Amendment claims
of deliberate indifference to a serious medical need under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971); (2) intentional- or negligent-infliction-of-

emotional-distress claims under the Federal Tort Claims Act (“FTCA”); and (3) a medicalmalpractice claim against Dr. Willis, who treated Hayes while she was incarcerated.
This matter is before the Court on the objection of defendants Federal Bureau of Prisons
(“BOP”), Michael Abbott, and Jorge Diaz (collectively “defendants”) to the Report and
Recommendation (“R&R”) of Magistrate Judge Franklin L. Noel dated January 29, 2014.
Defendants object to the recommendation that summary judgment be denied as to Hayes’s Eighth
Amendment claims against Abbott and Diaz, as well as to the recommendation that Hayes’s
FTCA claims be dismissed without (rather than with) prejudice. Defendants also object to the
invitation to Hayes to seek leave to amend her complaint to add claims under the Inmate
Accident Compensation Act (“IACA”). The Court has conducted a de novo review. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
As defendants note, this case is in an unusual procedural posture. Under the scheduling
order issued on October 24, 2012, all discovery in this case had to be completed by June 1, 2013.
ECF No. 25. Defendants filed their motions for summary judgment in May 2013. Hayes did not
respond in any way to those motions, but she did appear by telephone at the July 19, 2013
hearing. During the hearing, Judge Noel invited Hayes to submit any documents bearing on her
claims that were in her possession, even though the deadline for submitting such documents had
long passed. About a week after the hearing, Hayes submitted 234 pages’ worth of materials.
ECF No. 56.
The materials submitted by Hayes were not accompanied by any kind of an affidavit —
such as an affidavit explaining what the materials were, attesting that they were authentic, or
explaining if and when they had previously been provided to defendants. Defendants had no
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opportunity to review these materials before they were submitted, and apparently they were given
no opportunity to respond to the materials after they were submitted. Instead, more than six
months after the materials were submitted, Judge Noel issued his R&R in which he
recommended that defendants’ summary-judgment motion be denied as to Hayes’s Eighth
Amendment claims against Abbott and Diaz. (While Hayes was incarcerated at FCI-Waseca,
Abbott was the UNICOR superintendent and Diaz was the factory manager. Abbott Decl. ¶ 1;
Diaz Decl. ¶ 1.) Judge Noel’s recommendation was based on certain documents that Hayes had
submitted and that Judge Noel interpreted as suggesting that Abbott and Diaz had some
knowledge of Hayes’s injury and yet failed to take action or to excuse her from work. See R&R
at 15-19. In his R&R, Judge Noel also invited Hayes to move to amend her complaint, even
though the deadline for bringing such motions had passed over a year earlier. ECF No. 25.
Defendants object to these recommendations, in large part based on the argument that
Judge Noel wrongly assumed that some of the documents submitted by Hayes had previously
been submitted to the BOP or to UNICOR.1 But defendants seem to have overlooked the fact
that Hayes’s amended complaint is verified, which makes it equivalent to an affidavit for
purposes of summary judgment. See Davis v. Jefferson Hosp. Ass’n, 685 F.3d 675, 682 (8th Cir.
2012). Defendants have therefore not addressed whether the allegations in Hayes’s amended
complaint, in combination with the documents that Judge Noel permitted her to submit, create a
genuine issue of fact. Although the Court is sympathetic to defendants’ complaint that they
should not have been sandbagged by Hayes’s belated submissions, the Court believes that, at this

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It also appears to the Court that none of Hayes’s evidentiary submissions are properly
authenticated. See Fed. R. Evid. 901. Defendants have not objected on this basis, however.
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point, the best course of action is to deny their motion as to the Eighth Amendment claims
against Abbott and Diaz without prejudice. On remand, a full record can be developed,
defendants can again seek summary judgment on those claims, and the issues can be properly
briefed.
To that end, the Court makes several observations:
First, it is true, as the R&R notes, that Hayes is proceeding pro se, and “pro se litigants
are held to a lesser pleading standard than other parties.” Fed. Express Corp. v. Holowecki, 552
U.S. 389, 402 (2008). But “[a]lthough pro se pleadings are to be construed liberally, pro se
litigants are not excused from compliance with relevant rules of the procedural and substantive
law.” Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983). Moreover, “it is not the place of
a district court to act as the petitioner’s advocate.” Bracken v. Dormire, 247 F.3d 699, 705 (8th
Cir. 2001).
Second, as the party with the burden of proof, Hayes must cite admissible evidence in
support of her claims. Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006); Ince v.
Aetna Health Mgmt., Inc., 173 F.3d 672, 677 (8th Cir. 1999). Documents dumped into the
record without any kind of supporting affidavit are not “evidence” and should not be cited as a
reason to deny a summary-judgment motion.
Third, the fact that the record lacks certain information (see R&R at 18) is a reason to
grant, not deny, summary judgment. In Celotex Corp. v. Catrett, the Supreme Court held that:
. . . the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial. In
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such a situation, there can be “no genuine issue as to any material
fact,” since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other
facts immaterial. The moving party is “entitled to a judgment as a
matter of law” because the nonmoving 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.
477 U.S. 317, 322-23 (1986) (citations omitted). “Like any other civil litigant, [a pro se plaintiff
is] required to respond to defendants’ motions with specific factual support for [her] claims to
avoid summary judgment.” Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001). If defendants again
move for summary judgment — and, in response, Hayes fails to submit sufficient evidence to
establish an essential element of her Eighth Amendment claims — defendants’ motions should
be granted.
And finally, no party should be permitted to conduct discovery or amend the pleadings
unless that party can first establish good cause under Fed. R. Civ. P. 16(b)(4) to amend the
pretrial scheduling order. If, as it appears, Hayes did not comply with Fed. R. Civ. P. 26(a)(1),
then defendants would likely be able to establish good cause to extend the discovery schedule
(should they wish to do so). It is unclear to the Court, however, how Hayes could establish good
cause either to extend discovery or to extend the time for amending her complaint.
As to defendants’ objection regarding the FTCA claims: Judge Noel recommended that
Hayes’s claims under the FTCA be dismissed without prejudice for two reasons. First, Judge
Noel found that the FTCA claims should be dismissed “because the Inmate Accident
Compensation Act (IACA) is the exclusive remedy for prisoners who suffer work-related
injuries . . . .” R&R at 20. Second, Judge Noel found that the FTCA claims “would [also] fail
because Hayes did not exhaust her administrative remedies.” R&R at 21 n.9. The government
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argues that Hayes’s FTCA claims should be dismissed with prejudice, but the government is
incorrect: Both a finding that an FTCA claim is precluded by the IACA2 and a finding that an
FTCA claim is precluded by a failure to exhaust administrative remedies3 are findings that a
court lacks jurisdiction over the FTCA claim — and a dismissal for lack of jurisdiction is
properly without prejudice. See Cnty. of Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir.
2004) (“A district court is generally barred from dismissing a case with prejudice if it concludes

2

See, e.g., Walker v. Reese, 364 Fed. Appx. 872, 876 (5th Cir. 2010) (per curiam)
(“Because the IAC system is Walker’s exclusive remedy against the Government, the court lacks
jurisdiction to adjudicate his FTCA claim.”); Walthers v. Fed. Bureau of Prisons, No. 12-CV196-DLB, 2013 WL 1856107, at *4 (E.D. Ky. Apr. 30, 2013) (holding that, because a prisoner
was required to assert his claims under the IACA, “the Court lacks subject matter jurisdiction to
entertain Walthers’ . . . FTCA claims”); Patterson v. Potope, No. No. 4:11-CV-497, 2013 WL
1314050, at *27 (M.D. Pa. Mar. 28, 2013) (holding that, because the IACA is the exclusive
remedy for a federal prisoner who is injured on the job, “the courts do not have jurisdiction to
entertain an FTCA claim for an inmate’s work-related injuries”); Jones v. Fed. Bureau of
Prisons, No. 2:13-4-TMC-BHH, 2013 WL 876931, at *2 (D.S.C. Feb. 7, 2013) (“It is settled that
prisoners covered by the IACA are precluded from bringing a claim for work-related injuries
through the FTCA. . . . Consequently, this court is deprived of jurisdiction over any FTCA claim
that Plaintiff attempts to raise . . . .”); Saddoris v. United States, No. 4:12cv1851, 2012 WL
6732139, at *4 (N.D. Ohio Dec. 28, 2012) (“Further, because the IACA is the exclusive remedy
through which federal inmates employed in federal prison work programs can seek compensation
for work-related injuries . . . this Court lacks subject matter jurisdiction to entertain plaintiff’s
claims under either the FTCA or Bivens.”).
3

See, e.g., Allen v. United States, 590 F.3d 541, 544 (8th Cir. 2009) (“A federal district
court does not have jurisdiction over an FTCA claim unless it was ‘first . . . presented to the
appropriate federal agency . . . within two years of when the claim accrued.’ . . . The district court
therefore lacked jurisdiction over Allen’s [FTCA] claim and erred by exercising jurisdiction over
the claim.”) (quoting Walker v. United States, 176 F.3d 437, 438 (8th Cir.1999)); Daniels v.
United States, 135 Fed. Appx. 900, 901 (8th Cir. 2005) (per curiam) (“Because presentment is a
jurisdictional prerequisite to suit under the FTCA, and jurisdiction is a threshold issue for the
district court to decide, the district court may appropriately resolve legal and factual questions
determinative of jurisdiction and may dismiss the case under Federal Rule of Civil
Procedure 12(b)(1) if the FTCA requirements are not met.”); Osborn v. United States, 918 F.2d
724, 728 (8th Cir. 1990) (“Compliance with . . . 28 U.S.C. § 2401(b) is a jurisdictional
prerequisite to suit under the Federal Tort Claims Act (FTCA) . . . .”).
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subject matter jurisdiction is absent.”); Ahmed v. United States, 147 F.3d 791, 797 (8th Cir.
1998) (“Under Rule 41(b) of the Federal Rules of Civil Procedure, dismissal for lack of
jurisdiction is not an adjudication on the merits and thus such a dismissal should be without
prejudice.”).
Finally, the Court notes that Judge Noel recommended dismissing Hayes’s officialcapacity Bivens claims with prejudice on the basis of sovereign immunity. Sovereign immunity
is jurisdictional in nature, however, and therefore these claims must be dismissed without
prejudice. See Roth v. United States, 476 Fed. Appx. 95 (8th Cir. 2012) (per curiam).
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, the R&R
[ECF No. 59] is ADOPTED IN PART and REJECTED IN PART. Accordingly, IT IS HEREBY
ORDERED THAT:
1.

The motion of defendant Dr. Willis for summary judgment and/or statutory
dismissal [ECF No. 47] is GRANTED. All claims against Dr. Willis are
DISMISSED WITH PREJUDICE.

2.

The remaining defendants’ motion to dismiss or for summary judgment [ECF
No. 27] is GRANTED IN PART and DENIED WITHOUT PREJUDICE IN
PART.
a.

The motion is DENIED WITHOUT PREJUDICE as to plaintiff’s Eighth
Amendment Bivens claims against defendants Michael Abbott and Jorge
Diaz in their individual capacities.

b.

The following claims are DISMISSED WITHOUT PREJUDICE:
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i.

Plaintiff’s claims under the Federal Tort Claims Act.

ii.

Plaintiff’s Bivens claims against the Federal Bureau of Prisons and
the individual defendants in their official capacities.

c.

All other claims are DISMISSED WITH PREJUDICE.

Dated: March 17, 2014

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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