Smith v. Mitchell et al
Filing
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MEMORANDUM OPINION & ORDER: 1)Pursuant to Federal Rule of Civil Procedure 21, Smiths constitutional claims against the FCI-Edgefield Defendants (M. M. Mitchell, Warden, FCI-Edgefield; L. Rosario, Health Care Administrator, FCI-Edgefield; and L. Bloc ker, Health Care Administrator, FCI-Edgefield) set forth in Smiths Complaint [R. 2 and Supplemental Complaint [R. 8 are SEVERED from this action and TRANSFERRED to the United States District Court for the District of South Carolina for all furthe r disposition: 2) Smith's constitutional claims against the USP McCreary Dfts Stine, Gregorey, and K. Baker in their offical capacities are DISMISSED WITH PREJUDICE; 3) Clerk prepare documents necessary for service; 3) Clerk prepare a "serv ice packet"; 4) Clerk make three sets of copies; 5) Clerk present the Service Packets and copies to USM Office in London, Kentucky; 6) Service of process upon dfts, Stine; L. Gregorey, and K. Baker shall be conducted by the USM in London by se rving a service packet personally upon each of them; USM responsible for ensuring that each dft is successfully served with process; 7) USM must complete service on the named dfts by serving by certified or registered mail; 8) Pla shall: a) Advise t he Clerk's Office of any change in address; b) Communicate solely through notices or motions filed w/the Clerk's Office; c) Every notice, motion, or paper be certified. Court will disregard any notice of motion which does not include this certification. Signed by Gregory F. VanTatenhove on 5/31/2012.(MRS)cc: COR, Pro Se Filer; [Transferred from Kentucky Eastern on 6/1/2012.]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
SHYHEEM LEE SMITH,
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Plaintiff,
V.
D. L. STINE, WARDEN, et al.,
Defendants.
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Civil No. 10- 246-GFVT
MEMORANDUM OPINION
&
ORDER
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Shyheem Lee Smith, formerly incarcerated in the United States Penitentiary- McCreary
(“USP-McCreary”) in Manchester, Kentucky, but presently incarcerated in the Federal
Correctional Institution at Edgefield, South Carolina (“FCI-Edgefield”) has submitted the instant
pro se civil rights Complaint under 28 U.S.C. § 1331 pursuant to the doctrine announced in
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and he has been granted
pauper status. Because Smith has been granted in forma pauperis status and is asserting claims
against government officials, the Court must screen his Complaint pursuant to 28 U.S.C. §§
1915A and 1915(e)(2)(B). Both of these sections require a district court to dismiss any claims
that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek
monetary relief from defendants who are immune from such relief.1 Id.; see also McGore v.
Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997).
1
A pro se pleading is held to less stringent standards than those drafted by attorneys. Burton v. Jones,
321 F.3d 569, 573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). But the Court
must dismiss a case at any time if it determines the action is frivolous, malicious, or fails to state a claim
upon which the Court may grant relief. 28 U.S.C. § 1915(e)(2)(B).
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For the reasons set forth below, the Court will dismiss a portion of Smith’s claims,
transfer Smith’s claims asserted against the FCI-Edgefield Defendants, and allow the remainder
of the claims to proceed.
I.
Smtih alleges that the defendants1 have been deliberately indifferent to his serious
medical needs in violation of his Eighth Amendment rights under the U.S. Constitution. He
seeks compensatory and punitive damages of not less than $1,000,000.00, the appointment of
counsel, and any and all other appropriate relief.
Smith alleges that in June of 2008, he slipped and fell in the shower at USP-McCreary
due to “unsafe and slippery tile” and a lack of safety mats, both inside and outside of the shower,
that could prevent one from slipping and falling on the wet tile. Smith claims that as a result of
this fall, he injured his left knee and that the next morning, he went to sick call concerning his
knee injury and was seen by Nurse Practitioner K. Baker, but that the treatment he received at
this sick call visit was unsatisfactory.
Smith further states that he continued to have pain in his left knee and that about two
weeks after Nurse Practitioner K. Baker’s examination and assessment of his knee injury and
pain, he contacted L. Gregorey, the Health Care Administrator at USP-McCreary. Smith relayed
his concern over the treatment he had received from Baker, advised L. Gregorey of the knee
situation and the daily pain he was still experiencing, and requested that L. Gregorey assign
someone to treat him other than Baker, due to her refusal to properly treat his knee injury. Smith
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The named Defendants are (1) D. L. Stine, Warden, FCI-McCreary; (2) M. M. Mitchell,
Warden, FCI-Edgefield; (3) L. Gregorey, Health Care Administrator, USP-McCreary; (4) K.
Baker, Nurse Practitioner, USP-McCreary; (5) L. Rosario, Health Care Administrator, FCIEdgefield; and (6) L. Blocker, Health Care Administrator, FCI-Edgefield. Plaintiff specifies that
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states that Gregorey denied that request. Undeterred, Smith persisted in his efforts to obtain an
x-ray of his left knee, and that after arguing with Baker and Gregorey for about three months,
and after filing a complaint with the Joint Commission, he obtained an x-ray of his left knee; it
showed no abnormality. Since the x-ray was normal, Smith received no further treatment for his
left knee condition.
Subsequently, Smith states that in April of 2009, he was transferred temporarily to
Columbia, South Carolina, for a court appearance in his criminal case there,2 where he was
housed in the Lexington County Detention Center. While there, in May of 2009, Dr. William L.
Miles examined his left knee condition and advised him that something was torn in his left knee
and that an MRI test should be done to determine the type of tear he had experienced. Smith
further states that Dr. Miles informed him that surgery would be required to repair the condition
and that if left untreated, there would be further damage to his knee. Dr. Miles ordered an x-ray
of his left knee, which revealed a prominent bone spur and arthritis in the left knee. Smith states
that Dr. Miles prescribed some medication for pain and for the arthritic condition of his left knee.
Post-resentencing in his criminal case in Columbia, South Carolina, Smith was returned
to USP-McCreary. He states that upon his return to USP-McCreary, medical staff there refused
to continue dispensing to him the medication that Dr. Miles in South Carolina had prescribed for
the arthritis and pain in the left knee, telling him that he did not need it. Smith further states that
he relayed Dr. Miles’ assessment of his left knee problem to the medical staff at USP-McCreary,
all defendants are being sued in both their individual and official capacities.
2
On September 11, 2007, Smith was convicted in the District of South Carolina for violations of
18 U.S.C. §§ 922, 924(a)(2) and (e), and received a 188-month sentence of imprisonment. See
United States v. Shyheem Lee Smith, No. 3:06-cr-1126-CMC. On appeal, the Fourth Circuit
Court of Appeals remanded this case to the District Court for re-sentencing. On May 28, 2009,
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pointing out that Dr. Miles recommended an MRI on his left knee, but that Health Administrator
L. Gregorey would not approve the administration of an MRI.
Smith, in his original Complaint, states that in October of 2009, he was transferred to
FCI-Edgefield in Columbia, South Carolina, where he is presently confined. Once there, Smith
was seen and examined by R. Blocker, FCI-Edgefield prison physician. Smith described to Dr.
Blocker the knee injury and Dr. Miles’ diagnosis of his left knee injury.
He then requested an
MRI for his left knee, asked for a knee brace for him to support his leg, and that hebe given the
medication that was prescribed for him by Dr. Miles. Smith states that none of his requests were
met by medical staff at FCI-Edgefield.
However, in May of 2011, Smith was examined by Dr. Douglas E. Holford, a Consultant
Orthopedist, who diagnosed Smith’s left knee injury as an “ACL tear.” Dr. Holford
recommended an MRI and then ACL reconstructive surgery. [See R. 8 at Ex. 1]. Dr. Holford’s
diagnosis is consistent with Dr. Miles’ assessment from his examination of Smith on April 30,
2009. [See R. 8 at Ex. 2].
II.
To state a claim that is cognizable as a Bivens action under 28 U.S.C. § 1331, a plaintiff
must plead and prove two essential elements. He must show, first, the deprivation of a right
secured by the Constitution or laws of the United States and, second, that the Defendants
allegedly depriving him of those rights acted under color of federal law. Id. at 397. Smith has
made the requisite showing concerning a deprivation. “Failure to provide medical care may rise
to the level of a violation of the Cruel and Unusual Punishments Clause of the Eighth
Smith was re-sentenced to an 84-month sentence, and was returned to USP-McCreary postsentencing.
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Amendment.” Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010). With respect to the second
element, it is fairly plain that each defendant was acting under color of federal law as they were
administrating health care to Smith while he was imprisoned and at the behest of the federal
government. Therefore, Smith has properly alleged both elements with regard to all named
defendants.
One issue raised in Smith’s factual allegations recounted above relates to the
administrative remedies which he has pursued and exhausted within the BOP. Pursuant to the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), a prisoner seeking compensation
from government employees through the courts must first exhaust whatever administrative
remedies are available to the prisoner.
On September 25, 2008, Smith began pursuing his administrative remedies concerning
the medical care he had received and was receiving at USP-McCreary relative to his injured left
knee while he was an inmate there. See Administrative Remedy No. 510628-F1 and
Administrative Remedy Appeal Nos. 510628-R1 and 510628-A1. This administrative remedy
was exhausted on April 22, 2009. [See R. 2].
Because Smith exhausted his administrative remedy concerning the medical care he
received at USP-McCreary for his injured left knee, the Court concludes that his Bivens claim
should go forward at this juncture and that the named USP-McCreary Defendants should be
required to respond to Smith’s Complaint. Consequently, the Court will direct the issuance of
summons to the USP-McCreary Defendants to respond to the allegations in Smith’s Complaint.
At the same time, however, Smith’s claims against some of the federal employees named as
Bivens defendants cannot go forward and will be dismissed for the reasons stated below.
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A.
The named USP-McCreary defendants are D.L. Stine, Warden, L. Gregorey, Health Care
Administrator, and K. Baker, Nurse Practitioner. Smith asserts claims against each of these
named defendants in both their individual and official capacities. When damages are sought
against federal employees in their official capacities, the damages are essentially sought against
the United States, and such claims cannot be maintained. Myers & Myers, Inc. v. United States
Postal Serv., 527 F.2d 1252, 1256 (2d Cir. 1975); Morris v. United States, 521 F.2d 872, 874-75
(9th Cir. 1975); see United States v. Mitchell, 463 U.S. 206, 212 (1983) (discussion of sovereign
immunity). Therefore, the official capacity claims for damages from the named USP-McCreary
defendants in this case will be dismissed, and only the claims for damages from these defendants
in their individual capacities will proceed.
B.
The named FCI-Edgefield defendants are M. M. Mitchell, Warden, L. Rosario, Health
Care Administrator, and L. Blocker, Health Care Administrator.
Having fully screened Smith’s original Complaint and Supplemental Complaint, the
Court must conclude that he has improperly joined the named FCI-Edgefield defendants to this
action. As a result those claims against should be severed and transferred to the District of South
Carolina for further disposition.
Proper venue in civil rights claims is governed by the general venue statute, 28 U.S.C. §
1391. Section 1391(e) provides a special venue provision for any action in which at least one of
the defendants is an officer or employee of the United States or its agencies acting in his or her
official capacity or under color of legal authority. See 28 U.S.C. § 1391(e). But even where
venue is proper, 28 U.S.C. § 1404(a) permits a district court to transfer a case to another district
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where it might have been brought when doing so would serve the convenience of the parties or
the interests of justice. “[A]s the permissive language of the transfer statute suggests, district
courts have ‘broad discretion’ to determine when party ‘convenience’ or ‘the interest of justice’
makes a transfer appropriate.” Reese v. CNH America, LLC, 574 F.3d 315, 320 (6th Cir.) (Ryan,
Gibbons, Sutton ), reh'g denied, 583 F.3d 955 (6th Cir. 2009).
In determining what would serve the convenience of the parties or the interests of justice,
a district court should consider the private interests of the parties, including their convenience
and the convenience of potential witnesses, as well as other public interest concerns “such as
systemic integrity and fairness, which come under the rubric of ‘interests of justice.’” Moses v.
Business Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir.1991) (citing Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 30 (1988)).
In this case, all of Smith’s constitutional claims against the FCI-Edgefield Defendants
arose in Edgefield, South Carolina, which is located in the judicial district of the United States
District Court for the District of South Carolina. Potential witnesses presumably reside or could
be located in that district and relevant documents, if any, are presumably located in the District
of South Carolina. To the extent that Smith asserts claims against the FCI-Edgefield Defendants
in their individual capacities, allowing this action to proceed in this Court based solely upon
venue considerations set forth in 28 U.S.C. § 1391(e) becomes even less attractive. If this action
remains in this district, the FCI-Edgefield Defendants would most likely argue with good reason
that any individual capacity claims against them should be dismissed for lack of in personam
jurisdiction.
A defendant must have purposefully established minimum contacts within the forum
State before personal jurisdiction will be found to be reasonable and fair. International Shoe
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Co. v. Washington, 326 U.S. 310, 316-19 (1945). In order to establish minimum contacts, a
plaintiff must show that the defendant should reasonably anticipate being hauled into court in the
forum state, because he purposefully availed himself of the privilege of conducting activities
there. Id.; Southern Machine Co. v. Mohasco Indus., 401 F.2d 374, 380 (6th Cir. 1968). Stated
another way, “the relevant inquiry is whether the facts of the case demonstrate that the nonresident defendant possesses such minimum contacts with the forum state that the exercise of
jurisdiction would comport with ‘traditional notions of fair play and substantial justice.’”
Theunissen v. Matthews, 935 F.2d 1454, 1459-50 (6th Cir. 1991) (citations omitted).
None of the South Carolina-domiciled FCI-Edgefield Defendants have the requisite
minimum contacts with the Commonwealth of Kentucky so that exercising personal jurisdiction
over them would be constitutionally permissible. Presumably, Smith filed this action in this
district because his left knee injury occurred while he was an inmate at USP-McCreary;
however, when Smith filed his complaint in August of 2010, he was an inmate at FCI-Edgefield,
having been transferred there in October of 2009. Thus, none of the FCI-Edgefield Defendants
could have reasonably foreseen or anticipated that they could be hauled into a federal court in
Kentucky based on their alleged actions in respect to the medical care they provided to Smith in
South Carolina. To the extent that Smith asserts individual capacity claims against the FCIEdgefield Defendants about events alleged to have occurred in South Carolina, the federal court
in the District of South Carolina is in a much better position to assess those claims and determine
whether any South Carolina state law is applicable thereto. See Abdur-Rahim v. Doe, No. 7:08CV-00224-ART, 2009 WL 678348 at *3, (E.D. Ky. March 11, 2009) (transferring venue of
prisoner’s civil rights claims, which accrued in New Jersey, to the federal court in that state
under 28 U.S.C. § 1404(a), for the convenience of the parties and the interests of justice).
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In this case, only the transfer of Smith’s claims against the FCI-Edgefield Defendants to
the District of South Carolina is warranted, not a transfer of the entire action which § 1404
authorizes. Under such circumstances, Federal Rule of Civil Procedure 21 permits severance of
claims against parties who have been improperly joined. Rule 21 provides:
Misjoinder of parties is not ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion
of any party or of its own initiative at any stage of the action and
on such terms as are just. Any claim against a party may be
severed and proceeded with separately.
Fed. R. Civ. P. 21. “The manner in which a trial court handles misjoinder lies within that court's
sound discretion.” Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir.
1988). “Rule 21 gives the court discretion to make three types of orders. The court may add
parties, drop (dismiss) parties, and may sever ‘[a]ny claim against a party.’” 4-21 Moore's
Federal Practice-Civil § 21.02 (internal quotation omitted). “Severance under Rule 21 results in
separate actions.” Id. at § 21.06. “As with any case in federal court, [the severed action] may be
transferred under appropriate circumstances . . . . Indeed, the fact that a claim might be subject to
transfer to a more appropriate venue is a valid reason to order severance.” Id.
Accordingly, the Court will sever Smith’s claims against the FCI-Edgefield Defendants.
Those claims will be transferred to the District of South Carolina for further disposition.
As Smith has been granted pauper status, an officer of the court will serve process on his
behalf pursuant to Fed. R. Civ. P. 4(c)(2) and 28 U.S.C. § 1915(d). The Clerk’s Office and the
Office of the United States Marshal (“USM Office”), therefore, will be directed to serve the
summons and complaint and supplemental complaint, as set forth below.
III.
Accordingly, it is ORDERED as follows:
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1. Pursuant to Federal Rule of Civil Procedure 21, Smith’s constitutional claims
against the FCI-Edgefield Defendants (M. M. Mitchell, Warden, FCI-Edgefield; L. Rosario,
Health Care Administrator, FCI-Edgefield; and L. Blocker, Health Care Administrator, FCIEdgefield) set forth in Smith’s Complaint [R. 2] and Supplemental Complaint [R. 8] are
SEVERED from this action and TRANSFERRED to the United States District Court for the
District of South Carolina for all further disposition;
2.
Smith’s constitutional claims against the USP-McCreary Defendants (D. L. Stine,
Warden, FCI-McCreary; L. Gregorey, Health Care Administrator, USP-McCreary; and K. Baker,
Nurse Practitioner, USP-McCreary) in their official capacities are DISMISSED WITH
PREJUDICE for failure to state a claim upon which relief can be granted;
3.
The Clerk of the Court shall prepare the documents necessary for service of
process upon the named USP-McCreary defendants, in their individual capacities:
a.
b.
c.
3.
Warden D. L. Stine;
L. Gregorey, Health Care Administrator; and,
K. Baker, Nurse Practitioner.
The Clerk of the Court shall prepare a “Service Packet” consisting of the
following documents for service of process upon the United States of America:
a.
b.
c.
d.
4.
a completed summons form;
the Complaint [R. 2] and Supplemental Complaint [R. 8];
this order; and
a completed USM Form 285.
Additionally, the Clerk of the Court shall make three sets of copies of the above-
described documents, each set containing the following:
a.
b.
c.
copies of all completed summons forms issued for
the defendants;
copies of all completed USM Forms 285;
one copy of the Complaint and all attachments [R. 2];
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d.
e.
5.
one copy of the Supplemental Complaint and all attachments [R. 8]; and
one copy of this Order.
The Clerk of the Court shall present the Service Packet(s) and copies to the USM
Office in London, Kentucky.
6.
Service of Process upon Defendants Warden D. L. Stine; L. Gregorey, Health
Care Administrator; and, K. Baker, Nurse Practitioner shall be conducted by the USM Office in
London, Kentucky, by serving a Service Packet personally upon each of them, through
arrangement with the Federal Bureau of Prisons.
The USM Office is responsible for ensuring that each defendant is successfully served
with process. In the event that an attempt at service upon a defendant is unsuccessful, the USM
Office shall make further attempts and shall ascertain such information as is necessary to ensure
successful service.
7.
The USM Office must complete service on the named defendants by serving the
copies described in above paragraph 4 by certified or registered mail to:
a.
b.
c.
8.
one set of the copies to the Civil Process Clerk at the Office of the United
States Attorney for the Eastern District of Kentucky;
one set to the Office of the Attorney General of the
United States in Washington, D.C.; and
one set to the Office of the Federal Bureau of Prisons in Washington, D.C.
The plaintiff SHALL:
a.
Immediately advise the Clerk’s Office of any change in his current
mailing address. Failure to do so may result in dismissal of this case.
b.
Communicate with the court solely through notices or motions filed with
the Clerk’s Office. The court will disregard correspondence sent
directly to the judge’s chambers.
c.
In every notice, motion, or paper filed with the court, certify in writing
that he or she has mailed a copy to every defendant (or his or her attorney) and state the date of
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mailing. The court will disregard any notice or motion which does not include this
certification.
This, the 31st of May, 2012.
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