Flonery v. United States of America et al
Filing
18
Memorandum of Opinion and Order For the reasons set forth herein, Defendant's Motion to Dismiss (ECF No. 16 ) is granted. The FTCA claim is dismissed without prejudice. The Eighth Amendment claim is dismissed with prejudice. Judge Benita Y. Pearson on 7/23/2018. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DERRICK FLONERY,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
CASE NO. 4:17CV1068
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 16]
Pending is Defendants’ Motion to Dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ.
P. 12(b)(6). ECF No. 16. The motion is unopposed. For the reasons stated below, the motion is
granted.
I. Background
Pro se Plaintiff Derrick Flonery, a federal prisoner formerly incarcerated at FCI Elkton1,
filed this in forma pauperis action against Defendants United States of America, the Director of
the Northeast Region of the Federal Bureau of Prisons, and the Warden of the Federal
Correctional Institution in Milan (collectively, “Defendants”), asserting a medical malpractice
claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674 et seq., and an Eighth
Amendment claim for deliberate indifference to serious medical needs. ECF No. 1 at PageID#:
2.
1
Plaintiff has since transferred to a different federal prison in Milan, Michigan.
ECF No. 1 at PageID#: 3, 6.
(4:17CV1068)
In his Complaint, Plaintiff alleges that while he was incarcerated at FCI Elkton, he
suffered from a small skin irritation that grew into a large rash. Id. Plaintiff asserts that when he
initially sought medical care, a physician assistant, who is not a party to this suit, performed a
medical assessment, and concluded that “the skin rash was Dermtophystosis of the body; a rash
and other nonspecific skin eruption.” Id. The physician assistant prescribed Plaintiff
medications for a period of months, however, Plaintiff alleges that his symptoms worsened. Id.
Accordingly, Plaintiff continued to seek medical care for his condition, and based on subsequent
medical assessments conducted by another physician assistant and several nurses, who are also
not parties to this suit, the assessments revealed that Plaintiff’s skin condition was diagnosed as
“Psorasis,” and that there were “no significant findings/no apparent distress.” Id. at PageID#:
2 3.
Despite these determinations, Plaintiff brought suit against Defendants alleging that
Defendants’ treatment of Plaintiff’s conditions was “woefully inadequate” and amounted to
“reckless disregard to the serious nature of Plaintiff’s medical needs.” Id. at PageID#: 5.
Plaintiff seeks compensatory damages in the amount of three million dollars. Id.
Defendants move to dismiss Plaintiff’s Complaint, pursuant to Fed. R. Civ. P. 12(b)(6),
for failure to state a claim. ECF No. 16. The motion is unopposed.
II. Standard of Review
To survive a Fed. R. Civ. P.12(b)(6) motion to dismiss, the plaintiff’s complaint must
allege enough facts to “raise a right to relief above the speculative level.” Ass’n of Cleveland
Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Fed. R. Civ. P. 8(a)(2) requires only that a
(4:17CV1068)
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” However, “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A complaint requires “further factual enhancement,” which “state[s] a claim to relief
that is plausible on its face.” Id. at 557, 570. A claim has facial plausibility when there is
enough factual content present to allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When a claim lacks “plausibility in th[e] complaint,” that cause of action fails to state a claim
upon which relief can be granted. Twombly, U.S. 550 at 564.
When ruling on a Rule 12(b)(6) motion to dismiss, a court may consider “documents
incorporated into the complaint by reference, and matters of which a court may take judicial
notice.” Solo v. United Parcel Serv. Co., 819 F.3d 788, 794 (6th Cir. 2016) (quoting Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
III. Analysis
As an initial matter, Plaintiff has not responded to Defendants’ motion. The Sixth Circuit
has held that it is an abuse of discretion for a district court to dismiss under Fed. R. Civ. P.
12(b)(6) solely because the plaintiff failed to respond to a motion to dismiss unless the failure
rises to the level of a failure to prosecute. Carver v. Bunch, 946 F.2d 451, 453
55 (6th Cir.
1991). While Plaintiff’s failure to respond could be considered a failure to prosecute, the Court
declines to grant Defendants’ motion on this ground. Rather, the Court has reviewed
Defendants’ motion, and for the reasons stated below, finds it to be well-taken.
(4:17CV1068)
A. FTCA Claim
Defendants assert that Plaintiff’s FTCA claim should be dismissed because he failed to
attach an affidavit of merit to his complaint, as required under Ohio law. ECF No. 16-1 at
PageID#: 100.
Under the FTCA, “[l]iability is determined by reference to the law of the place where the
act or omission occurred.” Rodriguez v. United States, 2015 WL 4496279, at *3 (N.D. Ohio July
23, 2015) (citing 28 U.S.C. § 1346(b)). See Daniel v. United States, 716 F. Supp. 2d 694, 696
(N.D. Ohio 2010) (“[L]iability on the part of the federal government under the [FTCA] is
determined in accordance with the law of the state where the event giving rise to liability
occurred.”) (citing Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995) (finding that the
Erie doctrine applies to FTCA actions))).
To eliminate frivolous malpractice actions, Ohio Civil Rule 10(D)(2) requires that “a
complaint that contains a medical claim . . . shall include one or more affidavits of merit relative
to each defendant named in the complaint for whom expert testimony is necessary to establish
liability.” Ohio Civ. R. 10(D)(2). The affidavit-of-merit requirement ensures that “only those
plaintiffs truly aggrieved at the hands of the medical profession have their day in court.”
Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 897 N.E.2d 147, 170 (Ohio 2008).
“To further this end, Civ. R. 10(D)(2)(c) expressly made it clear that the affidavit is necessary to
in order to ‘establish the adequacy of the complaint.’” Id. Therefore, a complaint that does not
attach an affidavit of merit must be dismissed. Rodriguez, 2015 WL 4496279, at *3 (citing
Fletcher, 897 N.E.2d at 170).
(4:17CV1068)
“When applying state law, federal courts apply state substantive law and federal
procedural law.” Daniel, 716 F. Supp. 2d at 696. See, e.g., Erie Railroad Co. v. Tompkins, 304
U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1988) (federal courts must apply state substantive law and
federal procedural law while sitting in diversity jurisdiction); Felder v. Casey, 487 U.S. 131, 108
S.Ct. 2302, 101 L.Ed.2d 123 (1988) (federal courts must apply state substantive law and federal
procedural law while sitting in pendent jurisdiction).
A substantive state law is a law that “gives rise to ‘state-created rights and obligations’ or
is otherwise ‘bound up with these rights and obligations in such a way that its application to
federal court is required.’ ” Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 574 (6th Cir.2008)
(quoting Byrd v. Blue Ridge Rural Elec. Co-op., 356 U.S. 525, 535, 78 S.Ct. 893, 2 L.Ed.2d 953
(1958)). A law is substantive if it would “significantly affect the result of a litigation for a
federal court to disregard a law of a State that would be controlling in an action upon the same
claim by the same parties in a State court.” Daniel, 716 F. Supp. 2d at 697 (citing Hanna v.
Plumer, 380 U.S. 460, 466, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)). The outcome-determinative
test must be read with “reference to the twin aims of the Erie rule: discouragement of
forum-shopping and avoidance of inequitable administration of the laws.” Id.
The decision in Bierbauer v. Manenti, 2010 WL 4008835 (N.D. Ohio Oct. 12, 2010),
summarizes the analysis required when a plaintiff alleges an FTCA violation and fails to file an
affidavit of merit. In that case, the Court found:
Failure to attach an affidavit results in dismissal. Fletcher, 120 Ohio St.3d at
170-71. The requirement to attach one, therefore, must be substantive. Daniel v.
United States, No. 1:09CV2371, 2010 WL 481267, at *3-4 (N.D. Ohio, Feb. 5,
2010)[.] To hold otherwise would thwart the policy goals of Erie, i.e, a plaintiff
bringing FTCA claims in state court would have a different result than one in
(4:17CV1068)
federal court. Accordingly, FTCA claims alleging medical malpractice in Ohio
district courts must be accompanied with an affidavit of merit or be dismissed.
Since Plaintiff attaches no affidavit of merit to the Complaint, his medical
malpractice[] claims warrant dismissal.
Bierbauer v. Manenti, 2010 WL 4008835, at *10 (N.D. Ohio Oct. 12, 2010) (citations omitted).
It is undisputed that Plaintiff in the instant case has not provided an affidavit of merit in
support of his FTCA claim as required under Ohio Civ. R. 10(D)(2). Therefore, Defendants’
motion to dismiss Plaintiff’s FTCA claim, pursuant to Fed. R. Civ. P. 12(b)(6) is granted.2
B. Eighth Amendment Claim
Plaintiff alleges that Defendants violated his Eighth Amendment rights by failing to
provide him adequate medical care while he was at FCI Elkton. ECF No. 1 at PageID#: 2.
Specifically, Plaintiff alleges that Defendants’ treatment of his skin condition was “woefully
inadequate.” Id. at PageID#: 5. Defendants contend that Plaintiff’s Eighth Amendment claim
fails to state a claim for relief because Plaintiff did not name any federal agents in their
individual capacities, as required under Bivens, nor did he allege that Defendants were
deliberately indifferent. ECF No. 16-1 at PageID#:104. The Court will address each argument in
turn.
2
Plaintiff’s FTCA claim began to run by at least February 16, 2015, when he
made his last Health Service visitation, in which he later noted that “his skin problem has
not gotten any better.” ECF No. 1 at PageID#: 3. 28 U.S.C. § 2401(b) sets the statute of
limitations for filing an administrative claim at two years. 28 U.S.C. § 2401(b) (“A tort
claim against the United States shall be forever barred unless it is presented in writing to
the appropriate Federal agency within two years after such claim accrues . . . .”). Plaintiff
filed an administrative claim on August 1, 2016, within the two year statute of limitations
period. ECF No. 1 at PageID#: 3. Because it appears that Plaintiff timely filed his FTCA
claim, the Court dismisses Plaintiff’s claim without prejudice to him amending the
Complaint by attaching an affidavit of merit.
(4:17CV1068)
In Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), the Supreme Court recognized an
implied damages action to compensate persons injured by federal officers who violated the
Fourth Amendment’s prohibition against unreasonable searches and seizures. Bivens v. Six
Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). “Bivens established that
the victims of a constitutional violation by a federal agent have a right to recover damages
against the official in federal court despite the absence of any statute conferring such a right.”
Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980).
Defendants assert that: “to the extent Flonery seeks to bring a Bivens action against the
United States of America or the Federal Bureau of Prisons, no such claim exists.” ECF No. 16-1
at PageID#: 103. The United States, as a sovereign, cannot be sued without its prior consent, and
the terms of its consent define the court’s subject matter jurisdiction. McGinness v. U.S., I.R.S.,
90 F.3d 143, 145 (6th Cir. 1996). A waiver of sovereign immunity must be strictly construed,
unequivocally expressed, and cannot be implied. United States. v. King, 395 U.S. 1,4, 89 S.Ct.
1501, 1503, 23 L.Ed.2d 52 (1969); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269,
273, 1 L.Ed.2d 306 (1957).
The Court finds that Plaintiff cannot pursue a Bivens claim against the United States of
America or its agencies. Bivens provides a cause of action against individual officers acting
under color of federal law alleged to have acted unconstitutionally. Correctional Services
Corporation v. Malesko, 534 U.S. 61, 70-72, 122 S.Ct. 515, 521-23, 151 L.Ed.2d 456 (2001). It
does not support an action against the United States government or any of its agencies. Id.; see
Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86, 114 S.Ct. 996, 1004-06,127 L.Ed.2d
308 (1994) (holding that Bivens action cannot be brought against a federal agency). The United
(4:17CV1068)
States has not waived sovereign immunity for claims asserted against its agencies under Bivens.
See Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991) (stating that a Bivens claim cannot be
asserted against the United States government or its employees in their official capacities).
Therefore, Plaintiff’s claim against Defendant United States of America fails.
Next, Defendants Director of the Federal Bureau of Prisons and Warden of FCI Elkton
assert that Bivens action against them is improperly based on a theory of respondeat superior,
and therefore, fails. ECF No. 16-1 at PageID#: 103. Supervisory officials are generally not
liable for the unconstitutional actions of subordinates. Monell v. Dept. of Social Services, 436
U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The liability of supervisors cannot be based
solely on the right to control employees, nor “simple awareness of employees’ misconduct.”
Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003); Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984). At a minimum, Plaintiff must show that the supervisor at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending
officers. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
There is no indication in the Complaint that Plaintiff has established that Defendants had
a role in making medical decisions pertaining to Plaintiff’s care. Plaintiff does not allege, at a
minimum, that Defendants are responsible for the actions of other prison employees and that
inference is not apparent on the face of the Complaint. In addition, Defendants correctly point
out that: “although Flonery mentions several prison medical officials by name, he does not
identify them as individual defendants or state how each of their individual actions violated the
Constitution.” ECF No. 16-1 at PageID#: 104. Accordingly, because a Bivens suit cannot lie
against Defendants in their official capacities, under the theory of respondeat superior, Plaintiff
(4:17CV1068)
fails to state a valid Eighth Amendment claim. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct.
1937, 1948, 173 L.Ed.2d 868 (2009) (“Because vicarious liability is inapplicable to Bivens and §
1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s
own individual actions,[] violated the Constitution.”).
Defendants further assert that Plaintiff’s “Bivens claim fails for the additional reason that
his allegations do not establish a violation of the Eighth Amendment.” ECF No. 16-1 at
PageID#: 104. Because the Court has found that Plaintiff failed to state a claim because he did
not name any federal agents in their individual capacities, as mandated under Bivens, the Court
need not address this argument.
In sum, the Court grants Defendants’ motion to dismiss Plaintiff’s Eighth Amendment
claim pursuant to Fed. R. Civ. P. 12(b)(6).
IV. Conclusion
For the reasons stated above, Defendant’s Motion to Dismiss (ECF No. 16) is granted.
The FTCA claim is dismissed without prejudice. The Eighth Amendment claim is dismissed
with prejudice.
IT IS SO ORDERED.
July 23, 2018
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?