Schuett v. Federal Medical Center - Rochester

Filing 93

ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED. (Written Opinion) Signed by Judge Wilhelmina M. Wright on 1/12/2017. (TJB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Clifford J. Schuett,

Case No. 15-cv-4207 (WMW/SER)
Plaintiff,
ORDER ADOPTING REPORT AND
RECOMMENDATION AS MODIFIED

v.
L. LaRiva and M. Smith,
Defendants.

This matter is before the Court on the November 3, 2016 Report and
Recommendation (“R&R”) of United States Magistrate Judge Steven E. Rau. (Dkt. 88.)
The R&R recommends that the Court grant Defendants’ motion to dismiss Plaintiff
Clifford J. Schuett’s amended complaint without prejudice because Schuett failed to
exhaust his administrative remedies. The R&R also recommends that the Court deny
Schuett’s remaining motions as moot. For the reasons that follow, the Court adopts the
R&R as modified.
BACKGROUND
Schuett commenced this action on November 19, 2015, while incarcerated at the
Federal Medical Center Rochester in Rochester, Minnesota (“FMC Rochester”). On
December 10, 2015, Schuett amended his complaint (“Amended Complaint”). (Dkt. 4.)
Schuett’s Amended Complaint asserts claims against L. LaRiva, the warden at FMC
Rochester, and M. Smith, the associate warden at FMC Rochester (collectively

“Defendants”). 1 The Amended Complaint alleges that Defendants violated Schuett’s
civil rights by denying him appropriate medical care in the form of cataract-removal
surgery, which resulted in injuries.2
Specifically, Schuett alleges that: (1) he ran into a light pole in the facility yard
and cut his right leg on September 20, 2015; (2) he was hit by a door and cut his right leg
on September 24, 2015; (3) he fell out of his wheelchair when it went off the edge of the
sidewalk on September 29, 2015; and (4) he was hit again by a door, causing a cut,
bruising and swelling to his left leg on October 22, 2015. Schuett alleges that FMC
Rochester denied his request for an examination by an ophthalmologist in October 2015
and that Defendants’ conduct places him in imminent danger because he will suffer
additional injuries and may become blind without cataract-removal surgery.
Schuett’s Amended Complaint seeks an order directing Defendants either to
arrange for him to undergo cataract-removal surgery or to transfer him to a facility that
will do so. Schuett also seeks $25 million in damages for pain and suffering. On March
14, 2016, Schuett was transferred from FMC Rochester to the United States Penitentiary

1

The Eighth Circuit requires plaintiffs to plead with specificity the capacity in
which defendants are sued. “If the complaint does not specifically name the defendant in
his individual capacity, it is presumed he is sued only in his official capacity.” Baker v.
Chisom, 501 F.3d 920, 923 (8th Cir. 2007) (quoting Artis v. Francis Howell N. Band
Booster Ass’n, 161 F.3d 1178, 1182 (8th Cir. 1998)). Because Schuett’s Amended
Complaint names Defendants and lists their official titles as warden and associate
warden, the Court construes this lawsuit as against Defendants in their official capacities.
2

This matter is a Bivens action because Schuett’s allegations target federal actors.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
389 (1971).

2

Coleman I in Sumterville, Florida (“USP Coleman I”).

Schuett subsequently was

transferred to his current location at the United States Penitentiary Hazelton in Bruceton
Mills, West Virginia (“USP Hazelton”).
Defendants move to dismiss Schuett’s Amended Complaint, arguing that Schuett
failed to exhaust available administrative remedies, the Amended Complaint fails to
allege sufficient personal involvement by Defendants for Schuett’s injuries and that
Defendants are entitled to qualified immunity. In support of their motion, Defendants
attach the Declaration of Paralegal Specialist Shannon Boldt (“Boldt Declaration”),
which addresses—among other things—Schuett’s utilization of available administrative
remedies for the allegations in the Amended Complaint. The Boldt Declaration attaches
eleven substantiating exhibits.

Schuett counters that he need not exhaust his

administrative remedies because the Amended Complaint alleges that he is in imminent
danger.
On June 2, 2016, Schuett filed a motion for miscellaneous relief, informing the
Court of his transfer to USP Hazelton and alleging that he had been attacked and suffered
injuries at that facility. Schuett also complains that, in retaliation for the filing of this
lawsuit, Defendants illegally changed his custody-point level, which affects the type of
facility in which he is incarcerated. Schuett seeks the Court’s immediate intervention to
prevent further injuries.
Schuett moved to voluntarily dismiss the Amended Complaint on July 22, 2016,
explaining that he is now completely blind and unable to prosecute this action. Schuett

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also contends that Defendants continue to transfer him to different facilities in order to
impede this litigation.
On October 17, 2016, Schuett moved to withdraw his motion to voluntarily
dismiss his Amended Complaint because he “still wants to prosecute this action” and “is
still being injured by the BOP through the defendants [sic] actions getting the Plaintiff
transferred to another [facility].”
Magistrate Judge Rau’s November 3, 2016 R&R recommends converting
Defendants’ motion to dismiss into a motion for summary judgment and dismissing the
Amended Complaint without prejudice because Schuett failed to exhaust available
administrative remedies before filing this lawsuit.

The R&R recommends denying

Schuett’s other motions as moot. In the alternative, the R&R recommends denying
Schuett’s motion for miscellaneous relief because it seeks relief unrelated to the
Amended Complaint. Schuett timely objected to the R&R only as to its recommendation
regarding Schuett’s motion for miscellaneous relief.
ANALYSIS
In the absence of timely objections, this Court reviews the R&R for clear error.
See Fed. R. Civ. P. 72(b); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996).
However, a party “may file and serve specific written objections to a magistrate judge’s
proposed findings and recommendations.” LR 72.2(b)(1). A district court reviews de
novo any portion of a magistrate judge’s R&R to which objections are properly filed. 28
U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); LR 72.2(b)(3); United States v.

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Lothridge, 324 F.3d 599, 600 (8th Cir. 2003). Ordinarily, the district judge relies on the
record of proceedings before the magistrate judge. LR 72.2(b)(3).
I.

Defendants’ Motion to Dismiss

Because Schuett does not object to the R&R’s recommendation to dismiss without
prejudice his Amended Complaint, this aspect of the R&R is reviewed for clear error.
See Fed. R. Civ. P. 72(b); Grinder, 73 F.3d at 795.

The R&R properly converts

Defendants’ motion to dismiss into a motion for summary judgment because Defendants
rely on the Boldt Declaration to substantiate their affirmative defense that Schuett failed
to exhaust available administrative remedies prior to filing this lawsuit. See Gibb v. Scott,
958 F.2d 814, 816 (8th Cir. 1992). As a converted motion for summary judgment, “[a]ll
parties must be given a reasonable opportunity to present all the material[s] . . . pertinent
to the motion.” Fed. R. Civ. P. 12(d). But consideration of matters outside the pleadings
without notice is appropriate when the nonmoving party has an adequate opportunity to
respond to the motion and the material facts are neither disputed nor missing from the
record. BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 688 (8th Cir. 2003); see
also Van Zee v. Hanson, 630 F.3d 1126, 1129 (8th Cir. 2011). Here, Schuett responded
directly to Defendants’ assertion that he failed to exhaust his administrative remedies by
arguing that he was not required to do so because his Amended Complaint alleges
imminent danger. But Schuett’s argument is unavailing.
The imminent-danger exception permits a prisoner to file in forma pauperis
despite having a record of filing frivolous actions if “the prisoner is under imminent
danger of serious physical injury.” 28 U.S.C. § 1915(g). In fact, it was this exception

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that permitted Schuett to file his Amended Complaint in forma pauperis.

But the

imminent-danger exception does not excuse Schuett’s obligation to exhaust
administrative remedies before filing a lawsuit. McAlphin v. Toney, 375 F.3d 753, 755
(8th Cir. 2004) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)).

The Boldt

Declaration makes clear that Schuett failed to exhaust available administrative remedies.
Dismissal without prejudice is appropriate in such circumstances. Nash v. Lappin, 172 F.
App’x 702, 703 (8th Cir. 2006). This resolution moots Schuett’s motion to voluntarily
dismiss this action as well as his request to withdraw that motion. Accordingly, the
R&R’s recommendations as to these motions are not clearly erroneous.3
II.

Schuett’s Motion for Miscellaneous Relief

Schuett’s motion for miscellaneous relief alleges that his custody-point level has
been changed “illegally” and that he was attacked and suffered injuries during his time at
USP Coleman I and USP Hazelton. The R&R recommends denying this motion either as
moot or as inconsistent with the relief sought by Schuett’s Amended Complaint. Schuett
objects that the R&R misconstrues his motion, and he maintains that Defendants
unlawfully changed his custody-point level, which caused him to be placed at higherlevel facilities where the injuries occurred. Because Schuett timely objected to this
portion of the R&R, it is reviewed de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b)(3); LR 72.2(b)(3); Lothridge, 324 F.3d at 600.

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Because Schuett failed to exhaust his administrative remedies, the Court need not
address Defendants’ other arguments in support of their motion to dismiss.
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When read narrowly, Schuett’s motion appears to seek injunctive relief to preserve
the status quo—that is, to prevent any transfer as a result of the alleged change in his
custody-point level and any injuries that may result. But to receive injunctive relief, a
relationship must exist “between the injury claimed in the party’s motion and the conduct
asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). No
such relationship exists between the allegations in Schuett’s Amended Complaint
regarding the denial of a cataract-removal procedure and the alleged improper change in
his custody-point level and resulting transfers. A broader interpretation of Schuett’s
motion for miscellaneous relief suggests that he is attempting to assert new claims and
causes of action against new defendants. But Schuett did not amend his complaint to
include these allegations, and they are not properly before this Court. See Wishon v.
Gammon, 978 F.2d 446, 448 (8th Cir. 1992). Schuett may raise his new claims in a
different lawsuit, so long as he follows the correct procedures. See id.
Accordingly, Schuett’s objections to this portion of the R&R are overruled. With
respect to Schuett’s motion for miscellaneous relief, the Court adopts Magistrate Judge
Rau’s R&R to the extent that it recommends denying Schuett’s motion as unrelated to his
Amended Complaint.

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ORDER
Based on the R&R, the foregoing analysis and all the files, records and
proceedings herein, IT IS HEREBY ORDERED:
1.

Schuett’s objections to Magistrate Judge Rau’s R&R, (Dkts. 89, 90), are

OVERRULED.
2.

The R&R, (Dkt. 88), is ADOPTED AS MODIFIED herein.

3.

Defendants’ motion to dismiss, (Dkt. 61), is GRANTED.

4.

Schuett’s motion for miscellaneous relief, (Dkt. 76), is DENIED.

5.

Schuett’s motion to voluntarily dismiss this action, (Dkt. 80), is DENIED

AS MOOT.
6.

Schuett’s motion to withdraw his motion to voluntarily dismiss this action,

(Dkt. 84), is DENIED AS MOOT.
7.

Schuett’s Amended Complaint, (Dkt. 4), is DISMISSED WITHOUT

PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: January 12, 2017

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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