Gray v. Prince, et al
Filing
81
ORDER Granting in Part and Denying in Part 77 Defendants' Motion for Summary Judgment and Granting 79 Plaintiff's Motion to Appoint Counsel. Signed by Judge Thomas L. Parker on 8/23/2021. (ljt)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DEANDREA GRAY,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
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No. 2:17-cv-02346-TLP-tmp
JURY DEMAND
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION TO
APPOINT COUNSEL
Plaintiff DeAndrea Gray brings Bivens and Federal Tort Claims Act (“FTCA”) claims
against Defendants United States of America, Edna Prince, F. Cabanero, Sharonda DobbinsBranch, Dustin Bowden, Frank Hargrove, Sheena Bailey, and Cynthia Gaia. 1 For the second
time, Defendants move to dismiss Plaintiff’s Amended Complaint or, in the alternative, for
summary judgment. (ECF No. 77.) Plaintiff responded in opposition and Defendants replied.
(ECF Nos. 78 & 80.) For the reasons explained below, the Court now GRANTS IN PART
AND DENIES IN PART Defendants’ Motion for Summary Judgment.
BACKGROUND
I.
Plaintiff’s Claims
Plaintiff’s suit arises out of the allegedly insufficient medical care he received while
1
Plaintiff also sued the Director of the Bureau of Prisons, Hugh Hurwitz. This Court dismissed
Defendant Hurwitz in its Order on Defendants’ first Motion to Dismiss. (ECF No. 66 at PageID
434.) The Sixth Circuit affirmed. (ECF No. 74 at PageID 461).
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incarcerated at the Federal Correctional Institution in Memphis, Tennessee (“FCI Memphis”). In
particular, Plaintiff asserts in his Amended Complaint that Defendants denied him adequate
medical care after he suffered a stroke in April 2012. (ECF No. 29-1 at PageID 185.) Plaintiff
claims that he had slurred speech, he was experiencing numbness and tingling throughout his
body, and he felt disoriented during this time. (Id.) Plaintiff’s unit officer, Mr. Miller, observed
Plaintiff’s condition and immediately took him to the medical department. (Id.) There,
Defendant Dobbins-Branch examined Plaintiff by taking his blood pressure. (Id.) She allegedly
told him that he was not suffering a stroke or a heart attack and that she would order an x-ray of
his hands and spine to determine the cause of his sensations. (Id.) Plaintiff then went back to his
unit. (Id.)
But Plaintiff’s condition did not improve. He alleges that the facility staff denied him
medical care throughout his time at FCI Memphis. (Id. at PageID 186.) He also claims,
however, that Defendants Prince, Dobbins-Branch, and Gaia evaluated him medically during this
time. (Id.) In any event, Plaintiff claims Defendants denied him additional testing and pain
medication to deal with his “constant” and “severe pain” that prevented him from sleeping. (Id.)
Around seven weeks after Plaintiff allegedly suffered the stroke, an optometrist evaluated
Plaintiff as part of his routine clinical treatment for hypertension. (Id.) The optometrist
allegedly informed Plaintiff that “she (the optometrist) discovered symptoms indicating that he
was suffering from serious medical conditions.” (Id.) During his follow-up appointment with
Defendant Prince, Plaintiff allegedly learned that the optometrist had observed signs of carotid
artery disease and that she recommended a Doppler ultrasound exam for Plaintiff. (Id.) Even so,
Defendant Prince allegedly refused to run tests to determine whether he had suffered a stroke
although he was still experiencing numbness and tingling. (Id.) What is more, Plaintiff alleges
2
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Defendant Prince did not give him any medication and failed to include the optometrist’s full
report in his medical file. (Id.)
Over the months that followed, Plaintiff continued to experience symptoms such as
weakness, atrophy in his left side, and severe chest pain. (Id. at PageID 187.) Defendants
Prince, Cabanero, and Gaia all examined Plaintiff during this time, but none provided any
medication. (Id.)
A cardiothoracic surgeon then examined Plaintiff and performed an arteriogram to check
for stenosis of Plaintiff’s blood vessels. (Id.) Despite the cardiothoracic surgeon allegedly
finding evidence of significant carotid artery stenosis, Defendant Prince told Plaintiff that he was
physically fit with no sign of atrophy or deficits. (Id.) And according to Plaintiff, Defendants
knew of the severity of his medical conditions and deliberately failed to tell Plaintiff about his
diagnoses. (Id. at PageID 194.)
Plaintiff’s condition allegedly continued to deteriorate. He asserts that he suffered from
neurological and skeletal conditions that Defendants failed to treat even though he made repeated
requests for assistance. (See id. at PageID 189–90.) And in December 2014, Plaintiff “took a
turn for the worse” and collapsed to the floor, unable to move or walk from severe back pain.
(Id. at PageID 190.) But Defendant Prince refused to send him to the hospital. (Id. at PageID
191.)
Then Plaintiff collapsed again in May 2015. At that time, Defendants transferred him to
Delta Medical Center. (Id. at PageID 192.) An MRI revealed damage to his spine, leading
Plaintiff to have surgery. (Id. at PageID 193.) And after the hospital released him, Plaintiff
alleges that Defendants placed him in the Special Housing Unit and denied him the medical
necessities he needed to recover. (Id.)
3
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II.
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Defendants’ First Motion to Dismiss and the Sixth Circuit’s Opinion
Plaintiff then sued Defendants for negligence and violations of his constitutional rights.
(Id. at PageID 217.) But Defendants moved to dismiss his complaint or, in the alternative, for
summary judgment. (ECF No. 55.) This Court, construing it as a motion for summary
judgment, granted the Motion after finding that Plaintiff failed to exhaust his administrative
remedies. (ECF No. 66.)
Next Plaintiff appealed the Court’s Order. (ECF No. 69.) The Sixth Circuit affirmed in
part, vacated in part, and remanded the case for further proceedings. (ECF No. 74.) It found that
Plaintiff exhausted his administrative remedies on his FTCA claims and that there was a genuine
dispute about whether Plaintiff exhausted his administrative remedies on his Bivens claims. (Id.
at PageID 459.)
The Sixth Circuit noted that Defendants did not present enough evidence to show that
Plaintiff failed to exhaust his Bivens claims. Instead, Defendants attached only a “conclusory
declaration” and a SENTRY report that “contain[ed] insufficient information to show whether
Gray exhausted his administrative remedies.” (Id. at PageID 459–60.) The SENTRY report
“merely lists a series of numbers, dates, and abbreviations” that failed to show clearly which
submissions Plaintiff failed to exhaust. (Id.) In short, the Sixth Circuit found that “defendants
failed to meet their initial burden to show that Gray failed to exhaust his administrative remedies
with respect to his Bivens claims, and a genuine dispute of material fact exists as to whether he
did.” (Id. at PageID 461.)
Defendants now claim that their new Motion addresses “the Sixth Circuit’s evidencerelated concerns” and presents “non-conclusory, detailed evidence and argument showing that
the Court should dismiss” Plaintiff’s claims. (ECF No. 77 at PageID 467.) And so, they move to
4
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dismiss the complaint or, in the alternative, for summary judgment on Plaintiff’s claims. (Id. at
PageID 466.)
LEGAL STANDARD
I.
Converting a Rule 12(b)(6) Motion to a Motion for Summary Judgment
Defendants move to dismiss Plaintiff’s Amended Complaint under Federal Rule of Civil
Procedure 12(b)(6), or in the alternative, for summary judgment under Rule 56. (ECF No. 77.)
Defendants have attached affidavits and exhibits to the Motion that are outside the scope of the
pleadings. (See, e.g., ECF Nos. 77-5, 77-6, 77-7, 77-8, 77-9, & 77-10.) “If, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56. All parties must
be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.
R. Civ. P. 12(d); see also Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104–05 (6th Cir.
2010). Additional notice is not required when the non-moving party has (1) notice that the Court
may convert a motion to dismiss into one for summary judgment and (2) enough time to produce
evidence to refute the moving party’s evidence. See Wysocki, 607 F.3d at 1105.
Plaintiff here had notice that the Court might convert this Motion into a motion for
summary judgment. First, Defendants state in their Motion that they are moving to dismiss or, in
the alternative, for summary judgment. (ECF No. 77 at PageID 466 (emphasis added).) Their
Motion also summarizes the legal standard for summary judgment. (Id. at PageID 469.) Plus
this Court converted Plaintiff’s first Motion into a motion for summary judgment because, there
too, Defendants attached affidavits outside the scope of the pleadings. As a result, Plaintiff
should not be surprised that the Court is treating this motion the same way. Finally, Plaintiff too
5
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had a reasonable chance to present materials outside the pleadings. 2 (See ECF No. 78.) So the
Court converts Defendants’ Motion into a motion for summary judgment.
II.
Summary Judgment Standard
One is entitled to summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “A fact is ‘material’ for purposes of summary judgment if proof of that fact
would establish or refute an essential element of the cause of action or defense.” Bruederle v.
Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir. 2012) (citing Kendall v. Hoover Co., 751
F.2d 171, 174 (6th Cir. 1984)).
“In considering a motion for summary judgment, [the] court construes all reasonable
inferences in favor of the nonmoving party.” Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir.
2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). And
“[t]he moving party bears the initial burden of demonstrating the absence of any genuine issue of
material fact.” Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)).
“Once the moving party satisfies its initial burden, the burden shifts to the nonmoving
party to set forth specific facts showing a triable issue of material fact.” Id. at 448–49; see also
Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587. This means that, if “the non-moving party
fails to make a sufficient showing of an essential element of his case on which he bears the
burden of proof, the moving parties are entitled to judgment as a matter of law and summary
judgment is proper.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914
2
Plaintiff did not attach any evidence to his response to Defendants’ Motion for Summary
Judgment. (See ECF No. 78.) That said, he never asked the Court for additional time to collect
evidence. And he never argued that he could not adequately respond to the Motion.
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(6th Cir. 2013) (quoting Chapman v. United Auto Workers Loc. 1005, 670 F.3d 677, 680 (6th
Cir. 2012) (en banc)); see also Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 469 (6th Cir.
2012).
What is more, “to show that a fact is, or is not, genuinely disputed, both parties are
required to either cite to particular parts of materials in the record or show that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Bruederle, 687 F.3d at 776 (internal
quotations and citations omitted); see also Mosholder, 679 F.3d at 448 (“To support its motion,
the moving party may show ‘that there is an absence of evidence to support the nonmoving
party’s case.’” (quoting Celotex, 477 U.S. at 325)). But “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge[.]” Martinez, 703 F.3d at 914 (alteration in original) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). As a result, “[t]he court need
consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ.
P. 56(c)(3).
In the end, the “question is whether ‘the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.’” Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir. 2015)
(quoting Liberty Lobby, 477 U.S. at 251–52). “[A] mere ‘scintilla’ of evidence in support of the
non-moving party’s position is insufficient to defeat summary judgment; rather, the non-moving
party must present evidence upon which a reasonable jury could find in her favor.” Tingle v.
Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (quoting Liberty Lobby, 477 U.S. at 251).
And statements in affidavits that are “nothing more than rumors, conclusory allegations and
7
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subjective beliefs” are insufficient evidence. Mitchell v. Toledo Hosp., 964 F.2d 577, 584–85
(6th Cir. 1992).
ANALYSIS
Defendants here argue that the Court should dismiss Plaintiff’s Bivens claims for six
reasons: (1) he failed to exhaust his administrative remedies; (2) his claims are time barred; (3)
he cannot state a claim for deliberate indifference under the Eighth Amendment; (4) the
individual Defendants are entitled to qualified immunity; (5) Defendants Bailey, Gaia, and
Hargrove are immune from suit under Bivens; and (6) Plaintiff never served Defendants Prince,
Cabanero, Dobbins-Branch, and Bowden. (ECF No. 77 at PageID 470.) Defendants also argue
that Plaintiff’s FTCA claims fail because he did not file a certificate of good faith with his
complaint. (Id.)
Plaintiff responds that because Defendants’ Motion is successive, this Court should take
no action. (ECF No. 78 at PageID 705.) He also argues that the Court has to follow the Sixth
Circuit’s mandate, and so it cannot reconsider Defendants’ arguments. (Id. at PageID 706.) In
sum, he claims that “[t]he defendants’ arguments are repetitive, have been litigated on appeal,
and decided against the Defendants.” (Id. at PageID 707.)
The Court first addresses Plaintiff’s mandate argument. Under the “mandate rule,” a
district court “is bound to the scope of the remand issued by the court of appeals.” United States
v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). And under the “doctrine of the law of the case,”
the findings by a court of appeals on issues of law are binding on the district court on remand.
Id. The Sixth Circuit found that Plaintiff exhausted his administrative remedies for his FTCA
claims, and so it vacated this Court’s grant of summary judgment on that issue and remanded for
further proceedings. (ECF No. 74 at PageID 459.) But as to his Bivens claims, the Sixth Circuit
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found that, based on the record at the time, there was a genuine dispute of material fact about
whether Plaintiff exhausted his remedies. (Id. at PageID 461.) So likewise, it vacated the
Court’s grant of summary judgment and remanded for further proceedings on that issue too.
(Id.)
Given the Sixth Circuit’s decision, the Court will not violate either the mandate rule or
the law-of-the-case doctrine by considering Defendants’ Motion here. First, the Sixth Circuit
remanded the case for further proceedings. And second, Defendants do not ask the Court to
reconsider any of the Sixth Circuit’s findings. True enough, the Sixth Circuit held that
Defendants’ first motion for summary judgment failed to show the lack of a genuine dispute of
material fact about whether Plaintiff exhausted his Bivens claims. But Defendants have now
filed a new Motion with additional evidence. So because the Sixth Circuit remanded the case for
further proceedings, the Court can, and will, now consider Defendant’s Motion.
I.
Exhaustion of Plaintiff’s Administrative Remedies for His Bivens Claims
Defendants first argue that Plaintiff did not exhaust his administrative remedies for any of
his medical care claims. (ECF No. 77 at PageID 470.) In response, Plaintiff counters that he did
exhaust all available remedies. (ECF Nos. 78 at PageID 707; 29-1 at PageID 180–81; 62-1.)
A.
Legal Standards for Exhaustion Under the PLRA
Under the Prison Litigation Reform Act (“PLRA”), prisoners can only sue based on
prison conditions if they first exhaust all available administrative remedies. 42 U.S.C. §
1997e(a). 3 This mandatory exhaustion requirement applies to Bivens claims too. See Risher v.
Lappin, 639 F.3d 236, 240 (6th Cir. 2011). Indeed, § 1997e(a)’s exhaustion requirement applies
3
“No action shall be brought with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
9
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“to all inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534
U.S. 516, 532 (2002).
“There is no uniform federal exhaustion standard.” Mattox v. Edelman, 851 F.3d 583,
590 (6th Cir. 2017). What is more, the administrative remedies process “need not meet federal
standards, nor must [it] be plain, speedy, and effective.” Porter, 534 U.S. at 524 (internal
citations and quotation marks removed). To that end, “[a] prisoner exhausts his remedies when
he complies with the grievance procedures put forward by his correctional institution.” Mattox,
851 F.3d at 590. Inmates must make “affirmative efforts to comply with the administrative
procedures,” and courts should consider “whether those ‘efforts to exhaust were sufficient under
the circumstances.’” Risher, 639 F.3d at 240 (quoting Napier v. Laurel Cnty., Ky., 636 F.3d
218, 224 (6th Cir. 2011)).
“[F]ailure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not
required to specially plead or demonstrate exhaustion in their complaints.” Arflack v. Cnty. of
Henderson, 412 F. App’x 829, 831 (6th Cir. 2011) (quoting Jones v. Bock, 549 U.S. 199, 216
(2007)). Instead, a defendant “has the burden to plead and prove by a preponderance of the
evidence” that the prisoner did not exhaust the available administrative remedies. Lee v. Willey,
789 F.3d 673, 677 (6th Cir. 2015). Thus, a complaint is subject to dismissal if a defendant
proves that “no reasonable jury could find that the plaintiff exhausted his administrative
remedies.” Mattox, 851 F.3d at 590. So in the end, summary judgment on exhaustion “is
appropriate only if defendants establish the absence of a ‘genuine dispute as to any material
fact’ regarding non-exhaustion.” Risher, 639 F.3d at 240 (quoting Fed. R. Civ. P. 56(a)).
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B.
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The BOP’s Administrative Remedy Procedures
The Bureau of Prisons (“BOP”) has a four-step administrative remedy process. Step 1:
If an inmate wants to file a grievance, he must first try to resolve the issue informally with staff
(a “BP-8” request). 28 C.F.R. § 542.13(a). Step 2: If the staff member cannot resolve the issue,
the inmate may file a formal written Administrative Remedy Request with the Warden at his
facility (a “BP-9” request). Id. at § 542.14(a). Step 3: If unsatisfied with the Warden’s
response, the inmate may appeal to the Regional Director (a “BP-10” appeal) within twenty days
of when the Warden signed the response. Id. at § 542.15(a). Step 4: And then, if unsatisfied
with the Regional Director’s response, the inmate may appeal to the General Counsel at the
Central Office (a “BP-11” appeal) within thirty days of when the Regional Director signed its
response. Id. “Appeal to the General Counsel is the final administrative appeal.” Id.
This process is not without nuance, however. If the inmate has a valid reason for delay,
he may seek an extension of time to appeal. Id. A “valid reason for delay means a situation
which prevented the inmate from submitting the request within the established time frame.” Id.
at § 542.14(b). For example, an inmate has a valid reason for delay when the inmate physically
could not prepare the request or appeal. Id.
The BOP must also respond to inmate submissions within a certain timeframe. If the
BOP accepts a submission, the coordinator at each administrative level has a certain number of
days to respond. Id. at § 542.18. And if the coordinator does not respond during this timeframe,
the inmate may consider the submission denied at that level and move to the next stage. Id.
What is more, an administrative remedy coordinator at any level can reject a request or
appeal if it fails to meet one of the filing requirements. Id. at § 542.17(a). This differs from a
denial, however. If the BOP coordinator rejects a submission, they must explain why and give
11
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the inmate a reasonable extension of time to correct the mistake and refile. Id. at § 542.17(b). If
the coordinator does not give the inmate an extension of time, the inmate may then appeal the
rejection to the next appeal level. Id. at § 542.17(c). The coordinator at the next appeal level
may then affirm the rejection; direct the lower level to accept the submission; or accept the
submission for filing. Id.
C.
Analysis of Plaintiff’s Exhaustion
Defendants attached to their Motion a declaration from Howard Williams, a Legal
Assistant and Administrative Remedy Clerk at the Mid-Atlantic Regional Office of the BOP.
Mr. Williams explains the BOP’s computerized records for Plaintiff’s administrative remedy
history (“ARH” or “Administrative Remedy History sheet”). (See ECF No. 77-5.) They also
provide what Mr. Williams swears is a true and accurate copy of Plaintiff’s ARH. 4 (ECF No.
77-8.) That ARH is a computer printout with numbers, coded language, abbreviations, and
cryptic explanations. But according to Mr. Williams’ sworn testimony, it “reflects all of the
formal Bureau administrative grievances that Plaintiff has filed regardless of topic.” (ECF No.
77-5 at PageID 653.)
Mr. Williams then explains what terms on that ARH mean, such as “REMEDY-ID,”
“RCV-OFC,” and “STATUS CODE.” (Id. at PageID 653–54.) And he details each
administrative remedy entry related to Plaintiff’s medical claims. (See id.) So unlike their first
Motion to Dismiss (ECF No. 55) where they attached the SENTRY printout and concluded that
Plaintiff failed to exhaust his remedies, Defendants here attach Plaintiff’s complete
4
This sheet differs from the SENTRY report Defendants provided with their first Motion to
Dismiss. There, they only provided a “SENTRY computerized Administrative Remedy
Generalized Retrieval” sheet. (ECF BNo. 52-5 at PageID 283.) The Administrative Remedy
History Sheet attached to its motion here has more detailed information about Plaintiff’s
administrative remedy entries.
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Administrative Remedy History sheet and explain the contents on that sheet under oath, and their
position how Plaintiff failed to exhaust his administrative remedies. Plaintiff meanwhile attaches
some documentation about his grievances that raise questions about Defendants’ position.
According to Mr. Williams’ interpretation of the ARH, Plaintiff made only three
Administrative claims related to his medical care: (1) Claim 753685, (2) Claim 816342, and (3)
Claim 827225. (See ECF No. 77-5 at PageID 654; 77-8.) But, as explained below, Claim
854880 and another unnumbered claim also seem to relate to Plaintiff’s medical care. 5
The ARH lacks much detail about these administrative cases. For example, all it says
about Claim 753685 is that the case concerns “other medical matters.” (ECF No. 77-8 at PageID
667.) So based on the ARH only, it is hard to determine any alleged facts about Plaintiff’s
grievances. The Court is then left to piece together the sequence of events by using the dates in
Plaintiff’s Amended Complaint, the dates in some other documents, and the dates in the ARH.
The court will now take each claim one at a time.
i.
Claim 753685
Plaintiff alleges that in September 2013, he filed a grievance about his inadequate
medical care with the Warden of FCI Memphis and that the Warden responded on October 30.
(ECF No. 29-1 at PageID 189.) And Plaintiff attached the Warden’s response to show he
exhausted his remedies. (ECF No. 62-3 at PageID 363.) That response from the Warden shows
that Case Number 753685 related to Plaintiff’s alleged stroke and his allegedly inadequate
medical care. (Id.) Likewise, the ARH from Defendants shows that Plaintiff filed a BP-9 form
5
The Administrative Remedy History sheet shows that Plaintiff’s other two Administrative
Cases did not concern medical matters. Administrative Case Number 741173 involved “DHO
Appeal” (ECF No. 77-8 at PageID 667) and Administrative Case Number 839359 involved
“Administrative Remedy Procedures” (id. at PageID 671). Plaintiff does not provide any
evidence that these cases involved medical matters.
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in Claim 753685 in October 2013 and that the Warden responded before the end of that month.
(ECF No. 77-8 at PageID 667.)
After FCI Memphis received Plaintiff’s BP-9 request on October 17, 2013, the facility
closed the case. (ECF Nos. 77-8 at PageID 667; 77-5 at PageID 655.) In his response to the BP9 request, the Warden explained that Plaintiff could appeal to the Regional Director within
twenty days if he disagreed with the Warden’s response. (ECF No. 77-9 at PageID 689.) And so
Plaintiff then submitted a BP-10 appeal to the Regional Office in November 2013. (ECF No. 778 at PageID 668.) Then on December 13, 2013, 6 the Regional Office closed the case with
explanation (“December 2013 response”). 7 (Id.; ECF No. 77-5 at PageID 655.) Plaintiff’s ARH
shows that Plaintiff failed to exhaust his administrative remedies for Claim Number 753685,
because he did not timely appeal that response from the Regional Office.
To exhaust his administrative remedies, the next step Plaintiff should have taken was to
file a BP-11 appeal to the Central Office within thirty days of the Regional Office’s December
2013 response. See 28 C.F.R. § 542.15. But Plaintiff either failed to appeal that response at all
or he waited two-and-a-half years (until April 2016) to do so. 8 Under either scenario, he failed
to exhaust this claim.
According to BOP records, Plaintiff waited until March 2016 to submit a second BP-10
to the Regional Office for Claim 753685 (“March 2016 BP-10”). (ECF Nos. 62-3 at PageID
371; 77-8 at PageID 672; 77-5 at PageID 655.) The Regional Director rejected that appeal for
status reason “WRL,” which Mr. Williams explains meant that he filed at the wrong level. (ECF
6
The Regional Office had until December 18, 2013, to respond. (ECF No. 77-8 at PageID 668.)
So its response was timely.
7
Neither party attached the Regional Office’s response.
8
As the Court explains later, there is a question whether Plaintiff intended the BP-11 he
submitted in April 2016 to be part of this claim at all or did someone assign it the wrong number.
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No. 77-5 at PageID 655.) Next, according to BOP records, Plaintiff filed a BP-11 appeal to the
Central Office in April 2016. (ECF Nos. 62-3 at PageID 373; 77-8 at PageID 673.) The Central
Office rejected the appeal for the status reason “LEG UTA RAP OTH.” (Id.) Mr. Williams
explains that this status reason “means that Plaintiff’s appeal was untimely; he did not provide a
copy of the Regional Appeal; and there are additional remarks explaining the reason for
rejection.” (ECF No. 77-5 at PageID 655 n.1.) In the “Remarks” section of his Administrative
History Remedy sheet, the Central Office wrote, “Your 853685 9 Appeal was responded to by the
Region on 12-13-13. It is over 2 years late.” (ECF No. 77-8 at PageID 673.)
The BOP records show that, in July 2016, Plaintiff tried to appeal to the Central Office
again. (ECF No. 77-8 at PageID 674.) This time, the Central Office rejected the appeal for
status reason “UTA MEM OTH.” (Id.) Mr. Williams explains that this status reason “means
that Plaintiff’s appeal was untimely, and there are remarks explaining the reason for rejection.”
(ECF No. 77-5 at PageID 655.) In the “Remarks” section of the ARH for this appeal, the Central
Office explained that he filed his April 2016 appeal 864 days after the Regional Office’s
December 2013 response, and that he needed a staff letter to appeal it. (ECF No. 77-8 at PageID
674.) Plaintiff never provided a letter from a staff member or otherwise argued that an extension
of time was appropriate under 28 C.F.R. § 542.15(a). After receiving the Central Office’s
response, Plaintiff did not try to appeal again.
Defendants thus argue that the ARH shows that Plaintiff failed to exhaust his
administrative remedies. The Court agrees. The Regional Office responded to Plaintiff’s BP-10
appeal on December 13, 2013. (ECF Nos. 77-8 at PageID 668; 77-5 at PageID 655.) Plaintiff
9
This is presumably a typo. The Administrative Case Number for this claim is 753685, not
853685. (See ECF No. 77-8 at PageID 673.)
15
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PageID 741
had thirty days from the date the Regional Director signed the response to appeal to the Central
Office. 28 C.F.R. § 542.15(a). This means he needed to appeal by January 12, 2014. But he did
not do so.
All in all, because Plaintiff’s appeal of the Regional Office’s December 2013 response
was untimely, the Court finds that Plaintiff failed to exhaust his administrative remedies. See
Woodford v. Ngo, 548 U.S. 81, 90–92 (2006) (“Proper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules”); Petty v. Rush, No.08-159-GFVT, 2010
WL 1796573, at *7 (E.D. Ky. May 4, 2010) (finding that a claim is not properly exhausted when
a prison rejects a prisoner’s grievance as untimely because the prisoner did not file it within the
prescribed period); Nunez v. Fed. Bureau of Prisons, No. 7:08-CV-201-KKC, 2008 WL
5096001, at *3 (E.D. Ky. Dec. 1, 2008) (“A prisoner may not simply ignore an agency’s
procedural requirements for administrative appeals, for permitting him to do so would turn the
requirement that a prison exhaust administrative remedies prior to filing suit into a meaningless
formality.”). Plaintiff should have appealed within thirty days of the Regional Office’s response.
See 28 C.F.R. § 542.15(a). What is more, if he waited until March or April 2016 to appeal, he
did not argue that he had a valid reason for delaying his appeal under 28 C.F.R. §§ 542.15(a) and
542.14(b). (See ECF No. 62-3 at PageID 371.) And so the Court finds that Defendants have
carried their burden of showing by a preponderance of the evidence that Plaintiff failed to
exhaust his administrative remedies for Claim 753685.
ii.
Unnumbered Claim: What if Plaintiff Did Not Intend to Appeal
Claim Number 753685 in March and April 2016?
It is unclear that Plaintiff intended for his March 2016 BP-10 appeal to act as an appeal in
Claim 753685. In fact, the only thing connecting the BP-10 to Claim 753685 is the case number
16
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PageID 742
that someone wrote in the “Response” section of the grievance. (See ECF No. 62-3 at PageID
371.) Neither party explains who assigned the case number to the submission.
Based on the content of Plaintiff’s appeals in 2016, the Court finds it plausible that he
sought to appeal the BOP’s response for a different administrative case. Consider his March
2016 BP-10 appeal where Plaintiff wrote that he “filed a BP-8 on September 29, 2015 against the
medical department for deliberate indifference to his serious medical needs.” (Id.) Although
partly illegible, Plaintiff appears to have attached the BP-8 to his response to Defendants’ first
Motion to Dismiss. (ECF No. 62-3 at PageID 359.) In that BP-8, he complains of Defendants’
deliberate indifference to his ongoing serious medical needs, their failure to document his
medical encounters, delays in treatment, and intentional infliction of pain and suffering. (Id.)
Plaintiff further explained that he filed a BP-9 on October 13, 2015, but that the Warden
never responded. (Id. at PageID 371–72.) Although Plaintiff did not attach this BP-9, he claims
that “[w]hen the institution failed to respond in this matter, they as well, failed to return the BP-9
to (Plaintiff).” (Id. at PageID 377.) Because the Warden failed to respond, Plaintiff then filed
his March 2016 BP-10 appeal to the Regional Office. (Id.) Somehow, this BP-10 appeal has the
number 753685. Did the BOP give this number or did Plaintiff? The answer is unknown.
After the Regional Office rejected the March 2016 BP-10, Plaintiff appealed to the
Central Office in April 2016. (Id. at PageID 373.) Again, he mentioned that he was appealing
grievances he filed in September and October 2015, not 2013. (Id.) And after the Central Office
rejected his April 2016 appeal, Plaintiff asked the Central Office to reconsider its denial. (Id. at
PageID 376.) There, he explained that his appeal was timely and that “[t]he central office is
confusing this appeal with an earlier appeal of 2013 (for claim number 753685).” (Id. at PageID
377.)
17
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PageID 743
In the end, the Court finds it plausible that Plaintiff did not intend for his March 2016 BP10 to appeal Claim 753685. Instead, he argues convincingly here that he intended to appeal a
BP-8 and BP-9 request submitted in September and October 2015. (See ECF Nos. 62-3 at
PageID 37; 29-1 at PageID 181.) But if he filed a BP-9 in 2015, however, Plaintiff’s ARH does
not show it. Defendants therefore argue less convincingly here that he failed to exhaust.
This Court finds instead that there is a genuine issue of material fact about whether
Plaintiff exhausted his administrative remedies for this claim. Plaintiff filed a BP-8 (ECF No.
62-3 at PageID 359) and says he filed a BP-9 that the Warden never responded to or returned.
The record also reflects that he tried to appeal this missing BP-9 to the Regional Office (id. at
PageID 371) and to the Central Office (id. at PageID 373). The bottom line is that it is not clear
what happened to Plaintiff’s BP-9 or why Plaintiff’s BP-10 and BP-11 from 2016 reflect a claim
number (753685) from 2013.
As a result, Defendants have failed to show “the absence of a ‘genuine dispute as to any
material fact’ regarding non-exhaustion.” Risher, 639 F.3d at 240 (quoting Fed. R. Civ. P.
56(a)). The Court thus finds that there is a genuine issue of material fact about whether Plaintiff
exhausted the claims in this BP-8. (ECF No. 62-3 at PageID 359.) The Court thus DENIES
summary judgment here.
iii.
Claim 816342
As for Case Number 816342, the ARH shows that Plaintiff filed a BP-9 request alleging
improper medical care in April 2015. (ECF No. 77-8 at PageID 668.) And Plaintiff alleges in
his Amended Complaint that he filed one in May 2015 “to address his medical needs” following
his spine surgery. (ECF No. 29-1 at PageID 193.) Defendants do not dispute that Case Number
18
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PageID 744
816342 relates to his allegedly poor medical care after his back surgery. (See id. at PageID 191–
93.)
But, as Defendants argue, Plaintiff’s ARH also shows that he did not exhaust his
administrative remedies for this claim because he did not refile after the facility rejected his
submission. Plaintiff submitted his BP-9 to FCI Memphis on April 3, 2015. (ECF No. 77-8 at
PageID 668.) The facility rejected his filing for status reason “INF” (failing to first try to resolve
the dispute informally). (Id.) The “Remarks” section of Plaintiff’s ARH explains that he should
have sought informal resolution before filing his grievance. (Id.) It states that Plaintiff could
refile the BP-9 within seven days. (Id.) Plaintiff, however, never refiled.
Inmates must try to resolve issues informally with staff before filing a BP-9 request. 10 28
C.F.R. § 542.13(a). And if the staff member cannot resolve the issue, only then can the inmate
file a formal BP-9 request. Id. at § 542.14(a); see also Woodford, 548 U.S. at 85 (discussing
informal resolution requirement). Here Plaintiff’s ARH reflects that he failed to refile his
grievance after learning that he needed to first try to resolve the issue informally. And so,
Plaintiff abandoned Claim 816342 without fully exhausting the administrative remedy process.
The Court finds therefore that Defendants satisfied their burden of showing that Plaintiff failed to
exhaust his administrative remedies for this claim. For that reason, the Court grants summary
judgment for Defendants for Claim 816342.
iv.
Claim 827225
Next the ARH shows that Plaintiff filed a BP-9 request in Case Number 827225 related
to “other medical matters” in August 2015. (ECF No. 77-8 at PageID 670.) And Plaintiff filed
10
Inmates in Community Corrections Centers (“CCCs”) need not attempt informal resolution.
28 C.F.R. § 542.13(b). Because Plaintiff was an inmate at FCI Memphis, this exception does not
apply to him.
19
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PageID 745
this grievance around the time he claims that he discovered that Defendant Prince intentionally
withheld medical information from him. (See ECF No. 29-1 at PageID 194.) Again, there is no
dispute that this grievance related to a medical issue. But Plaintiff failed to exhaust his
administrative remedies in Claim 827225 too. This is because he did not resubmit his BP-10
appeal after the facility rejected it for procedural defects.
According to Defendant’s records, Plaintiff submitted this BP-9 to FCI Memphis on July
7, 2015. That same day, the facility rejected his grievance for status reason “ONE.” (ECF No.
77-8 at PageID 669.) Mr. Williams explains that “ONE” means that Plaintiff’s BP-9 exceeded
the page limit. (ECF No. 77-5 at PageID 656.) According to the “Remarks” section for this BP9, the facility told Plaintiff that he had seven days to refile using the same form and with one
attachment only. (ECF No. 77-8 at PageID 669.)
So Plaintiff refiled his BP-9. (Id.) This time the facility closed the case with an
explanation. (Id.) Neither party includes FCI Memphis’s response, so the record is silent about
why the facility closed the case. Even still, Plaintiff then filed a BP-10 appeal with the Regional
Office on August 11, 2015. (Id. at PageID 670.) The Regional Office rejected this appeal the
same day for status reason “IRQ.” (Id.) Mr. Williams explains that the Regional Office rejected
this BP-10 because Plaintiff did not submit a copy of the facility request with his appeal. (ECF
No. 77-5 at PageID 656.)
Undeterred, Plaintiff refiled with the Regional Office nine days later. (ECF No. 77-8 at
PageID 670.) But the Regional Office rejected his refiling again for the same reason—he failed
20
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PageID 746
to attach a copy of the facility request. (Id.) Plaintiff did not refile again after his second
rejection and he never appealed to the Central Office. 11
The BOP can reject a request or appeal if it does not meet one of the filing requirements.
28 C.F.R. § 542.17(a). If it rejects a submission, the administrative remedy coordinator has to
explain the reason for the rejection and give the inmate a reasonable extension of time to correct
the mistake and refile. Id. at § 542.17(b); see also Nunez, 2008 WL 5096001, at *2. If the
coordinator does not give the inmate an extension of time, the inmate may appeal the rejection to
the next appeal level. Id. at § 542.17(c). The coordinator at the next appeal level may then
affirm the rejection, direct the lower level to accept the submission, or accept the submission for
filing. Id.
It is not clear here whether the Regional Office gave Plaintiff an extension of time to fix
his mistake and to refile after it rejected his second BP-10. But even so, Plaintiff never appealed
to the Central Office. And by failing either to refile with the Regional Office or to appeal to the
Central Office, Plaintiff abandoned his efforts to pursue his administrative remedies. The Court
thus finds that Plaintiff failed to exhaust his administrative remedies as to Claim 827225 as well.
And so, the Court Grants summary judgment for Defendants on that claim too.
v.
Claim 854880
Finally, the ARH reflects that Case Number 854880 relates to “staff misconduct.” (ECF
No. 77-8 at PageID 672.) But it gives no detail about that staff misconduct. Without more
11
In his Amended Complaint, Plaintiff alleges that he exhausted his administrative remedies,
presumably for this administrative case. (ECF No. 29-1 at PageID 180.) But yet, despite
Plaintiff’s allegations, his Administrative Remedy History sheet shows that he never complied
with the Regional Office’s instructions, nor did he appeal to the Central Office. And Plaintiff
does not provide copies of his alleged BP-11 appeal or the Central Office’s response to the BP11.
21
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PageID 747
information, “staff misconduct” could include diverse allegations including that prison staff
provided inadequate medical care or withheld important medical information from Plaintiff.
Plaintiff attached a BP-9 request that he allegedly filed here. 12 (ECF No. 62-4 at PageID 385.)
There, he discusses his medical care after his spine surgery. (Id.) What is more, Plaintiff relies
on the grievances in Case 854880 to allege that he exhausted his administrative remedies on his
medical claims. 13 (See ECF No. 29-1 at PageID 180.) As a result, there is question about
whether Claim 854880 relates to Plaintiff’s claims of inadequate medical care after his spine
surgery. (See ECF No. 62-4 at PageID 386.)
After close review, there is also a genuine issue of material fact about whether Plaintiff
exhausted in Claim 854880. Plaintiff alleges that he filed a BP-9 on June 12, 2015. In fact, he
attached that grievance. (Id. at PageID 385–86.) After filing that BP-9, the Warden responded.
(Id. at PageID 387.) But the Warden used the wrong header on his response, labeling it an
“inmate request to staff member” instead of a response from the Warden. (Id.) Plaintiff then
timely filed a BP-10 appeal in July 2015. (Id. at PageID 389.) He attached that BP-10 to his
Response to Defendant’s first Motion to Dismiss, yet the ARH does not reflect this BP-10.
Then in March 2016, he appealed to the Regional Office again. (Id. at PageID 392.) The
prison gave that BP-10 a case number—854880. It is unclear why his previous grievances are
not associated with this claim number, or why they are not on his ARH. The Regional Office
12
This BP-9 does not have a case number. Even so, following the BP-9 is Plaintiff’s BP-10
appeal, which the prison associated with Case 854880. (See ECF No. 62-4 at PageID 389.)
Reading the facts in the light most favorable to Plaintiff and because Defendants failed to show
otherwise, the Court finds that the BP-9 Plaintiff attached here relates to Case 854880.
13
For example, to prove that he exhausted here, Plaintiff alleges that he filed a BP-10 appeal on
March 3, 2016. And yet the Administrative Remedy History sheet shows that the Regional
Office received his BP-10 appeal in Case 854880 on March 10, 2016. (See ECF Nos. 29-1 at
PageID 180; 77-8 at PageID 672.)
22
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PageID 748
rejected the BP-10 because Plaintiff did not include a copy of the Warden’s response. (Id. at
PageID 394.) Next Plaintiff filed a BP-11 appeal to the Central Office. (Id. at PageID 395.)
Likewise, the Central Office rejected his appeal for the same reason. (Id. at PageID 397.)
Based on this evidence, the Court finds that there remains a genuine issue of material fact
about whether Plaintiff exhausted his remedies for Claim 854880. Defendants have not shown
why Plaintiff’s BP-9, the Warden’s response, and Plaintiff’s June 2015 BP-10 are missing from
the ARH or how they may affect exhaustion here. Of course, with more evidence, the proof may
show these filings relate to other claims. But if the Regional Office failed to respond to
Plaintiff’s June 2015 BP-10, then maybe he exhausted by later filing a BP-11. With this gap in
the ARH, a reasonable jury could find that Plaintiff exhausted his remedies here. For that
reason, the Court DENIES summary judgment on Claim 854880.
vi.
Plaintiff’s Other Administrative Claims
Even though Plaintiff’s other two administrative cases did not involve medical matters,
the Court notes that he failed to exhaust those cases. In Claim 741173 about “DHO Appeal,”
Plaintiff did not appeal after the Regional Office denied his BP-10 appeal. (ECF No. 77-8 at
PageID 667.) And in Claim 839359 about “administrative remedy procedures,” Plaintiff filed
two BP-9 requests with FCI Memphis. (Id. at PageID 671). After the facility closed the case
with explanation, the Administrative Remedy History sheet shows that Plaintiff did not appeal.
So he never exhausted these claims.
In sum, the Court finds that Plaintiff failed to exhaust four of his six administrative cases.
But there are still factual disputes about whether he exhausted the claims in the Unnumbered
Claim and Claim 854880.
23
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II.
PageID 749
Timeliness of Plaintiff’s Bivens Claims
Plaintiff’s unexhausted Bivens claims fail because they are untimely. But because there
is a question of fact about whether he exhausted his remedies for his claims related to the
Unnumbered Case and Case 854880, there is a question of fact about whether those claims are
timely also.
Defendants argue that Plaintiff did not file his Bivens claims “until almost two years after
the last alleged event occurred,” and so his claims are time barred. (ECF No. 77 at PageID 474).
Plaintiff counters that his claims are timely and that Defendants waived this argument because
they failed to raise the issue in their first Motion to Dismiss. (ECF No. 78 at PageID 707.)
Because Defendants did, in fact, argue in their first Motion to Dismiss that Plaintiff’s claims
were time barred, they did not waive this argument and the Court considers it now. (See ECF
No. 55 at PageID 302.)
The Sixth Circuit has found that state law governs the statute of limitations in a Bivens
action. Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005); Zundel v. Holder, 687 F.3d
271, 281 (6th Cir. 2012). Plaintiff’s alleged injuries here occurred in Tennessee. (See ECF No.
29-1.) So Tennessee’s statute of limitations applies. Tennessee law requires a plaintiff to bring a
civil action under a federal civil rights statute “within one (1) year after the cause of action
accrued.” 14 Tenn. Code Ann. § 28-3-104(a)(1)(B). And so, “the appropriate statute of
14
“Although federal courts borrow state statute of limitations, federal law governs when a Bivens
claim accrues.” Meeks v. Larsen, 999 F. Supp. 2d 968, 980 (E.D. Mich. 2014). And the statute
of limitations starts running “when the plaintiff knows or has reason to know of the injury which
is the basis of this action.” Mason v. Dep’t of Just., 39 F. App’x 205, 207 (6th Cir. 2002); Sevier
v. Turner, 742 F.2d 262, 273 (6th Cir. 1984) (a claim accrues when a plaintiff “knows or has
reason to know of the injury which is the basis of the action”).
24
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PageID 750
limitations for [a] Bivens action arising in Tennessee is one year.” Mason v. Dep’t of Just., 39 F.
App’x 205, 207 (6th Cir. 2002); see also Zundel, 687 F.3d at 281.
Plaintiff’s Amended Complaint includes a detailed timeline of Defendants’ alleged
misconduct. In his summary of the facts, he alleges that Defendants were deliberately indifferent
to his serious medical needs from April 2012 to October 2015. 15 (ECF No. 29-1 at PageID 196.)
But Plaintiff did not file this suit until almost two years later—in May 2017. (ECF No. 1.)
In any event, that does not necessarily mean Plaintiff’s claims are untimely. “The time
during which a prisoner exhausts his administrative remedies tolls the one-year statute of
limitations.” Petty, 2010 WL 1796573, at *7 (citing Brown v. Morgan, 209 F.3d 595, 596 (6th
Cir. 2000)). This means that “defendants are required to show that a prisoner’s claims are
untimely even after tolling for the period during which he was exhausting his administrative
remedies.” Hollis v. Erdos, 480 F. Supp. 3d 823, 830 (S.D. Ohio 2020) (quoting Surles v.
Andison, 678 F.3d 452, 458 (6th Cir. 2012)).
A.
Unnumbered Claim and Claim 854880
Because there is a question of fact about whether Plaintiff exhausted his remedies for his
Bivens claims in the Unnumbered Claim and Claim 854880, there is also a question about
whether those claims are timely. As explained in detail above, the record is unclear about
whether Plaintiff exhausted these claims. Because the Court cannot determine when Plaintiff
either (1) exhausted his claims or (2) stopped pursuing them, the Court likewise cannot
determine when the statute of limitations ended. So there is a genuine issue of material fact and
the Court DENIES summary judgment on the timeliness of these two claims.
The last incident of alleged misconduct occurred on August 17, 2015. (Id. at PageID 201; see
also ECF No. 62-1 at PageID 328.)
15
25
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B.
PageID 751
Claim 753685, Claim 816342, and Claim 827225
Plaintiff’s claims arising from Claim 753685 are time barred. As the Court discussed
earlier, the Regional Office responded to Plaintiff’s BP-10 in Claim 753685 on December 13,
2013. (ECF No. 77-8 at PageID 668.) Plaintiff only had thirty days from the date the Regional
Director signed the response to appeal to the Central Office. 28 C.F.R. § 542.15(a). So he
needed to appeal by January 12, 2014. But he did not do so. His claims therefore accrued in
2014 when he stopped pursuing his administrative remedies. This means that his May 2017
Complaint is untimely. (ECF Nos. 62-3 at PageID 371; 77-8 at PageID 672; 77-5 at PageID
655.)
What is more, the fact that Plaintiff appealed to the Regional Office in 2016 did not toll
the statute of limitations. For starters, his March 2016 BP-10 was almost three years late.
Allowing this appeal to toll the statute of limitations “would only accommodate [the plaintiff’s]
lack of diligence in exhausting his claims.” Petty, 2010 WL 1796573, at *8. “The time is only
tolled while the inmate diligently pursues his administrative claim.” Smith v. United States, No.
09-314-GFVT, 2011 WL 4591971, at *6 (E.D. Ky. Sept. 30, 2011); see also Petty, 2010 WL
1796573, at *7. Plaintiff failed to file properly or diligently pursue his appeal of the Regional
Office’s response to his December 2013 BP-10. And so, his March 2016 appeal did not toll the
statute of limitations. Instead, his claims accrued in 2014 and are time barred.
Plaintiff’s claims arising from Claim 816342 are also untimely. FCI Memphis rejected
Plaintiff’s BP-9 for this claim on April 3, 2015, and Plaintiff never refiled or appealed. (See ECF
No. 77-8 at PageID 668.) Because Plaintiff stopped pursuing his administrative remedies, the
statute of limitations never tolled beyond April 2015. So Claim 816342 is also time barred.
26
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PageID 752
And Claim 827225 is time barred for the same reason. In August 2015, Plaintiff refiled
his BP-10 with the Regional Office after it rejected his first appeal. (Id. at PageID 670.) But on
August 24, 2015, the Regional Office rejected his refiling again. (Id.) Plaintiff failed to refile
after his second rejection and he never appealed to the Central Office. As a result, he stopped
pursuing his administrative remedies in Case 827225 in 2015.
The bottom line is that Plaintiff’s claims arising from his unexhausted administrative
cases are untimely. That said, there is an issue of fact about whether the Unnumbered Claim and
Claim 854880 are timely, making summary judgment inappropriate for these two claims.
The Court now considers whether Plaintiff proves a deliberate indifference claim under
Bivens.
III.
Plaintiff’s Deliberate Indifference Claims Under Bivens
Defendants argue that Plaintiff has not shown that their treatment of his medical
conditions violated his Eighth Amendment rights. (ECF No. 77 at PageID 476.) This is mostly
because Defendants treated Plaintiff many times for his alleged medical problems. (Id.; see ECF
Nos. 77-2 & 77-4.) Plaintiff, however, alleges that Defendants were deliberately indifferent to
his serious medical needs by (1) failing to disclose and document important medical information,
including that he had a stroke in 2012; (2) failing to treat his various medical conditions; and (3)
housing him in a Special Housing Unit (“SHU”) after his spine surgery and failing to provide
him with medical necessities. (ECF No. 29-1 at PageID 193–94, 196.)
A.
Legal Standard
The Court looks to the Eighth Amendment to address these allegations. See generally
Wilson v. Seiter, 501 U.S. 294 (1991). “Where prison [or jail] official(s) are so deliberately
indifferent to the serious medical needs of prisoners as to unnecessarily and wantonly inflict
27
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PageID 753
pain, they impose cruel and unusual punishment in violation of the Eighth Amendment.” Napier
v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001) (quoting Horn v. Madison Cnty. Fiscal Ct.,
22 F.3d 653, 660 (6th Cir. 1994)).
The test to determine whether prison officials acted with deliberate indifference has an
objective and subject component. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004). In the context of inadequate medical care
claims, the Eighth Amendment’s objective component requires that a prisoner have a serious
medical need. Blackmore, 390 F.3d at 895–97; Brooks v. Celeste, 39 F.3d 125, 127–28 (6th Cir.
1994). “[A] medical need is objectively serious if it is ‘one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would readily
recognize the necessity for a doctor’s attention.’” Blackmore, 390 F.3d at 897 (quoting
Gaudreault v. Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990)); see also Johnson v. Karnes,
398 F.3d 868, 874 (6th Cir. 2005). And so, “[n]ot ‘every ache and pain or medically recognized
condition involving some discomfort can support an Eighth Amendment claim.’” Sarah v.
Thompson, 109 F. App’x 770, 771 (6th Cir. 2004) (quoting Gutierrez v. Peters, 111 F.3d 1364,
1372 (7th Cir. 1997)).
The subjective component requires that prison officials acted with requisite intent—that
they had a “sufficiently culpable state of mind in denying medical care” Blackmore, 390 F.3d at
895 (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)); Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 550 (6th Cir. 2009). Under this requirement, a prison official must
subjectively know of an excessive risk of harm to an inmate’s health or safety and choose to
disregard that risk. Farmer, 511 U.S. at 837; Wilson v. Seiter, 501 U.S. 294, 302–03 (1991).
(finding that plaintiffs must show that prison officials acted with “deliberate indifference” to a
28
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PageID 754
substantial risk that the prisoner would suffer serious harm). “Knowledge of the asserted serious
needs or of circumstances clearly indicating the existence of such needs, is essential to a finding
of deliberate indifference.” Horn v. Madison Cnty. Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994).
B.
There Is a Dispute of Material Fact as to Plaintiff’s Deliberate Indifference
Claims
To prove that there is no genuine issue of material fact about Plaintiff’s deliberate
indifference claims, Defendants attach Plaintiff’s medical records (ECF No. 77-4), a two-page
SENTRY report (ECF No. 77-3), and a declaration from Jessica Brown, the Mid Atlantic
Regional Office’s Regional Health Systems Specialist. (ECF No. 77-4). In her position, Ms.
Brown responds to inmate correspondence about medical care and “has access to all inmates’
medical records on the Bureau’s secure medical website.” (Id. at PageID 491.) Here Ms. Brown
reviewed Plaintiff’s medical records and explained them in her declaration. (Id.)
All in all, this evidence falls short. Defendants argue that “Plaintiff received appropriate
medical care for his alleged maladies” (ECF No. 77 at PageID 476), and that “the BOP providers
rendered professional medical opinions, treatment, and care in their best efforts to relieve
Plaintiff’s symptoms.” (id. at PageID 477.) Presumably Defendants believe that Plaintiff’s
medical records show that he received appropriate medical care. Yet those records do not
explain whether his medical care was appropriate or why Defendants chose certain courses of
treatment.
Defendants provide no other evidence about their conduct related to Plaintiff’s medical
treatment. With just a copy of Plaintiff’s medical records and a declaration explaining those
medical records, there are still material facts in dispute because of Plaintiff’s verified
29
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PageID 755
complaint. 16 True enough, the medical records show that Plaintiff had health problems and that
he received medical treatment while at FCI Memphis. But Plaintiff does not deny that he
received medical care from Defendants. Instead, Plaintiff argues that Defendants failed to
diagnose properly or to treat certain medical conditions. And it is unclear from his medical
records alone whether Defendants were deliberately indifferent to Plaintiff’s serious medical
needs by failing to diagnose his alleged stroke or through their chosen course of treatment for his
alleged stroke symptoms and spine problems.
Defendants further argue that Plaintiff’s Amended Complaint “does not allege any
specific facts suggesting that [Defendants] acted with a culpable state of mind when they made
their medical decisions.” (Id. at PageID 477.) But that is not so. Plaintiff alleges that Defendant
Prince “intentionally” withheld medical information from him and “purposefully mislead” him
about the seriousness of his medical issues. (ECF No. 29-1 at PageID 194.) He further alleges
that all Defendants “deliberately failed to document plaintiff’s medical emergency on the
morning of December 3, 2014, in an attempt to cover up their continued indifference and denial
of plaintiff’s serious medical needs.” (Id.) Indeed, he alleges even more that each Defendant
“intentionally, willingly, deliberately, and consciously, denied plaintiff proper and adequate
medical care.” (Id. at PageID 205–16; see also PageID 199.) And these are just some of his
allegations about Defendants’ state of mind.
All in all, Plaintiff sued here with a verified complaint where he alleges, among other
things, that Defendants intentionally withheld important medical information from him, failed to
diagnose his stroke, denied him treatment for his stroke symptoms and his spine problems, and
16
A verified complaint has “the same force and effect as an affidavit and would give rise to
genuine issues of material fact.” Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992).
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failed to provide him with medical necessities following his spine surgery. (ECF No. 29-1 at
PageID 193–94, 196.) Plaintiff’s medical records and Ms. Brown’s declaration do not address
these claims or speak to Defendants’ state of mind. In the end, Defendants have the burden to
show the lack of a genuine issue of material fact. Mosholder, 679 F.3d at 448. They have not
done so here, and “the evidence presents a sufficient disagreement to require submission to a
jury.” Liberty Lobby, Inc., 477 U.S. at 251–52. The Court therefore DENIES summary
judgment on these grounds.
IV.
Defendants Bailey, Gaia, and Hargrove Are Immune from Suit Under Bivens
Defendants Bailey, Gaia, and Hargrove (“PHS Defendants”) argue that they are immune
from suit because they are members of the U.S. Public Health Service (“PHS”). (ECF No. 77 at
PageID 478; 77-1; 52-1; 52-2.) Plaintiff argues that Defendants’ claim is false and that they
either waived this argument or the Court decided this issue against them in an earlier order.
(ECF No. 78 at PageID 707). Though Defendants raised this issue in their original Motion to
Dismiss (ECF No. 55 at PageID 298–300), this Court did not address the issue in its Order. (See
ECF No. 66 at PageID 434.) So Defendants did not waive this argument. Nor did the Court
decide this issue against them. Rather, the Court now finds that the PHS Defendants are, in fact,
immune from suit here.
In Hui v. Castaneda, the Supreme Court held that the Public Health Service Act, 42
U.S.C. § 233(a), bars Bivens claims against PHS officers and employees for constitutional
violations arising out of their official duties. 559 U.S. 799, 801–02 (2010). So if a Defendant is
a PHS employee, “suit under the FTCA provides the ‘exclusive’ remedy for civil harms caused
by such employees acting within the scope of their employment.” C.H. By & Through Shields v.
United States, 818 F. App’x 481, 482 (6th Cir. 2020).
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All three PHS Defendants provided declarations swearing that they were PHS employees
when the alleged misconduct occurred. (ECF Nos. 52-1 at PageID 275; 52-2 at PageID 277; 7711 at PageID 702.) No evidence disputes these declarations. What is more, all of Plaintiff’s
claims against the PHS Defendants are against them in their capacity as PHS employees
providing medical services. (See ECF No. 29-1.) As a result, § 233(a) bars Plaintiff’s Bivens
claims against the PHS Defendants.
V.
Qualified Immunity of the Individual Defendants
The Court now considers whether the other individual Defendants (Defendants Prince,
Cabanero, Dobbins-Branch, and Bowden) are entitled to qualified immunity here. 17 Defendants
argue that they “are entitled to qualified immunity because Plaintiff cannot show that they
violated a constitutional right.” (ECF No. 77 at PageID 477.) This is because Plaintiff “did not
plead sufficient facts establishing that Defendants acted with deliberate indifference to his health
or safety when they provided medical care to him.” (Id.)
A.
Qualified Immunity Standard
The qualified immunity analysis for § 1983 and Bivens claims are “identical.” Wilson v.
Layne, 526 U.S. 603, 609 (1999); see also Lyons v. Brandly, No. 4:03CV1620, 2007 WL
7572652, at *13 (N.D. Ohio Sept. 26, 2007) (“[W]hen presented with a Bivens-based action, a
court can in most instances borrow freely from civil rights principles developed under 42 U.S.C.
§ 1983.”).
Government officials “are immune from civil liability, unless, in the course of performing
their discretionary functions, they violate the plaintiff’s clearly established constitutional
17
The doctrine of sovereign immunity bars any of Plaintiff Bivens claims for money damages
against the individual Defendants in their official capacities. Ashbrooke v. Block, 917 F.2d 918,
924 (6th Cir. 1990); Blakely v. United States, 276 F.3d 853, 870 (6th Cir. 2002).
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rights.” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (citing Messerschmidt v.
Millender, 565 U.S. 535, 546 (2012)). To determine whether qualified immunity applies, a
court must decide (1) “whether the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right,” and (2) “whether the right at issue was clearly established at
the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009)
(internal references and citations omitted). Under this standard, “[t]he contours of the right
must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The doctrine allows government officials “breathing room to make reasonable but
mistaken judgments, and protects all but the plainly incompetent or those who knowingly
violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per curiam) (citations and quotations
omitted). The Sixth Circuit “has long recognized that the purpose of this doctrine is to protect
officers ‘from undue interference with their duties and from potentially disabling threats of
liability.’” Nelson v. City of Battle Creek, Mich., No. 18-1282, 2020 WL 916966, at *2 (6th Cir.
Feb. 26, 2020) (quoting Sample v. Bailey, 409 F.3d 689, 695 (6th Cir. 2005)). “Once the
defending officer raises qualified immunity, the plaintiff bears the burden of showing that the
officer is not entitled to qualified immunity.” Id. (citing Burgess v. Fischer, 735 F.3d 462, 472
(6th Cir. 2013); Coble v. City of White House, 634 F.3d 865, 870–71 (6th Cir. 2011)).
B.
Clearly Established Rights
Government officials lose their immunity when “in the course of performing their
discretionary functions, they violate the plaintiff’s clearly established constitutional rights.”
Mullins, 805 F.3d at 765. A “clearly established right” is one “sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.” Mullenix v.
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Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664(2012)). Case law
often defines those established rights.
“There need not be ‘a case directly on point’ for the law to be clearly established, ‘but
existing precedent must have placed the statutory or constitutional question beyond debate.’”
Nelson, 2020 WL 916966, at *3 (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)). “To
violate a plaintiff’s clearly established right, an officer’s conduct must be such that, at the time
of the allegedly-violative conduct, the contours of that right were sufficiently defined that every
‘reasonable official would have understood that what he is doing violates that right.’” Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
In determining whether a right is clearly established, the Court looks to decisions of the
Supreme Court, then to decisions of the Sixth Circuit, and finally to other courts of appeal, and
asks whether these precedents placed the constitutional question at issue “beyond debate.”
Hearring v. Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013) (citing Ashcroft, 563 U.S. at 741).
District court decisions do not create clearly established law. See Camreta v. Greene, 563 U.S.
692, 709 n.7 (2011) (“A decision of a federal district court judge is not binding precedent in
either a different judicial district, the same judicial district, or even upon the same judge in a
different case. . . . Otherwise said, district court decisions—unlike those from the courts of
appeals—do not necessarily settle constitutional standards or prevent repeated claims of
qualified immunity.” (quoting 18 J. Moore et al., Moore’s Federal Practice § 134.02(1)(d), p.
134–36 (3d ed. 2011)).
C.
Analysis of the Individual Defendants’ Qualified Immunity
Plaintiff had a clearly established right to necessary medical treatment and there is a
question of fact about whether Defendants’ violated that right. The Supreme Court has held that,
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under the Eighth Amendment, prisoners have a constitutional right to medical care for serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 103 (1976). What is more, at the time of the
alleged constitutional violations here, the Sixth Circuit had found that a prisoner’s right to be free
from cruel unusual punishment in the medical care context was clearly established. Taylor v.
Franklin Cnty. Ky,, 104 F. App’x 531, 543–44 (6th Cir. 2004); Harris v. City of Circleville, 583
F.3d 356, 369 (6th Cir. 2009) (“[I]t is beyond dispute that the right to medical treatment for a
serious medical need was clearly established”). And Defendants here do not seem to argue that
Plaintiff did not have a clearly established right to necessary medical treatment—only that
Plaintiff has not shown a constitutional violation. (See ECF No. 77 at PageID 477.)
But as the Court explained earlier, there is a genuine issue of material fact about whether
the individual Defendants violated Plaintiff’s constitutional rights. As a result, there remains a
dispute about the individual Defendants’ qualified immunity. For that reason, the Court
DENIES summary judgment on qualified immunity over Defendants Prince, Cabanero,
Dobbins-Branch, and Bowden.
D.
Plaintiff must serve Defendants Prince, Cabanero, Dobbins-Branch, and
Bowden with Process
The Court found before that Plaintiff did not properly serve Defendants Prince, Cabanero,
Dobbins-Branch, and Bowden. 18 (ECF No. 66 at PageID 431 n.3.) Plaintiff still has not
properly served these Defendants. Defendants thus ask the Court to direct Plaintiff to serve these
Defendants properly within sixty days of this Order. (ECF No. 77 at PageID 480.)
18
Plaintiff argues that Defendants either waived this argument or the Court found against
Defendants on this issue. That said, in a prior order, the Court in fact found that Plaintiff had not
served these Defendants yet. (See ECF No. 66 at PageID 432 n.3.)
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Because much time has passed since the U.S. Marshal first tried to serve Defendants, the
Court ORDERS Plaintiff to provide the Court with updated contact information for Defendants
Prince, Cabanero, Dobbins-Branch, and Bowden within twenty-one (21) days after entry of this
Order. Once the Court receives this updated information, it will direct the U.S. Marshal to issue
another alias summons. If, however, Plaintiff fails to update this Court timely with the needed
contact information, the Court may dismiss the claims against them for failure to prosecute.
VI.
Certificate of Good Faith Under the THCLA
Defendants also ask the Court to dismiss Plaintiff’s FTCA claims. 19 (ECF No. 77 at
PageID 480–82.) They contend that Plaintiff’s failure to file a certificate of good faith with his
complaint “requires dismissal of his FTCA claims with prejudice under Tennessee substantive
law.” 20 (Id. at PageID 470.) Plaintiff, though, “denies any allegation that he did not comply”
with the good faith certificate requirement and argues that Defendants’ argument is an “untrue
and a misleading statement of fact.” (ECF No. 78 at PageID 708.)
Plaintiff here did not attach a certificate of good faith to his Complaint or Amended
Complaint. But the Court finds that, to bring his FTCA claims, Plaintiff did not need to attach a
19
The parties agree—and the Sixth Circuit has found—that Plaintiff exhausted his administrative
remedies for his FTCA claims. (ECF No. 74 at PageID 459.)
20
Defendants did not raise this issue in their first motion to dismiss. Under Federal Rule of Civil
Procedure 12(g)(2), a party that moves under Rule 12 “must not make another motion under this
rule raising a defense or objection that was available to the party but omitted from its earlier
motion.” Here, however, the Court construes Defendants’ motion as a motion for summary
judgment. And Rule 56 does not include a similar limitation. See Averhart v. Ortho-McneilJanssen Pharms., No. 3:09OE40028, 2014 WL 3866026, at *2 (N.D. Ohio Aug. 6, 2014)
(finding that “Rule 12(g)(2)’s restriction is inapplicable to Rule 56(a)”). What is more, the Court
would use its discretion to consider Defendants’ argument “in the interest of judicial economy”
anyway. McCoy v. Carlson, No. 3:17-cv-432, 2020 WL 419439, at *2 (S.D. Ohio Jan. 27,
2020).
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good faith certificate. So for the reasons explained below, the Court DENIES Defendants’
Motion for Summary Judgment on this issue.
A.
The Tennessee Health Care Liability Act
For claims under the FTCA that arose in Tennessee, the FTCA guides this Court to apply
Tennessee substantive law while “federal law still governs the procedural aspects of the case.”
Brusch v. United States, 823 F. App’x 409, 411 (6th Cir. 2020); see also Young v. United States,
71 F.3d 1238, 1242 (6th Cir. 1995) (finding that “liability on the part of the federal government
under the Federal Tort Claims Act is determined in accordance with the law of the state where
the event giving rise to liability occurred”). The Tennessee Health Care Liability Act
(“THCLA”) governs health care liability actions in Tennessee. A health care liability action is
“any civil action, including claims against the state or a political subdivision thereof, alleging
that a health care provider or providers have caused an injury related to the provision of, or
failure to provide, health care services to a person, regardless of the theory of liability on which
the action is based.” Tenn. Code Ann. § 29-26-101(a)(1).
To bring a health care liability action under the THCLA, a plaintiff must prove three
elements by a preponderance of the evidence. See Tenn. Code Ann. § 29-26-115(a). The
plaintiff must show: (1) “the recognized standards of acceptable professional practice in the
profession”; (2) “[t]hat the defendant acted with less than or failed to act with ordinary and
reasonable care in accordance with such standard”; and (3) “[a]s a proximate result of the
defendant’s negligent act or omission, the plaintiff suffered injures which would not otherwise
have occurred.” Id.
To prove these elements, generally the plaintiff must provide expert testimony. Young v.
First Cardiology, PLLC, 599 S.W.3d 568, 571–72 (Tenn. 2020); Ellithorpe v. Weismark, 479
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S.W.3d 818, 829 (Tenn. 2015). And in any health care liability action that requires expert
testimony under § 29-26-115, the plaintiff “shall file a certificate of good faith with the
complaint.” Tenn. Code Ann. § 29-26-122. The good faith certificate should “evidence[]
consultation with at least one expert who has provided a written opinion that there is a good faith
basis to maintain the action.” Burns v. United States, 542 F. App’x 461, 463 (6th Cir. 2013). If
the plaintiff fails to attach a certificate of good faith, “the complaint shall be dismissed . . . absent
a showing that the failure was due to the failure of the provider to timely produce copies of the
claimant’s records as provided in § 29-26-121 or demonstrated extraordinary cause.” § 29-26122.
B.
This Is a Health Care Liability Action Under Tennessee Law
The certificate of good faith requirement only arises in health care liability actions. The
Court finds that this case is a health care liability action. Under Tennessee Code Annotated § 2926-101, a health care liability action is “any civil action . . . alleging that a health care provider or
providers have caused an injury related to the provision of, or failure to provide, health care
services to a person . . . .” § 29-26-101(a)(1).
Plaintiff alleges that his health care providers at FCI Memphis harmed him by failing to
provide appropriate care. (See ECF Nos. 29-1.) As a result, Plaintiff’s claims fall within the
THCLA’s definition of a “health care liability action.” See also Burns, 542 F. App’x at 463
(discussing applying the good faith certificate requirement to FCI Memphis employees). Indeed,
Tennessee courts have recognized that, “[g]iven the breadth of the statute, it should not be
surprising if most claims now arising within a medical setting constitute health care liability
actions.” Osunde v. Delta Med. Ctr., 505 S.W.3d 875, 884 (Tenn. Ct. App. 2016).
38
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As a result, the THCLA applies to Plaintiff’s claims. Even so, the THCLA’s certificate
of good faith requirement does not. The Court explains why below.
C.
Does the Certificate of Good Faith Requirement Apply to Plaintiff’s FTCA
Claims?
i.
The Sixth Circuit’s Decision in Gallivan
The Sixth Circuit’s decision in Gallivan v. United States, 943 F.3d 291 (6th Cir. 2019), is
central to this analysis.
In Gallivan, a federal prisoner in Ohio brought a negligence claim against the United
States under the FTCA. 943 F.3d at 292–93. But Ohio Civil Rule 10(D)(2) requires a plaintiff
alleging a medical negligence claim to include with the complaint an affidavit from a medical
professional swearing that the claim has merit. Id. at 293. Because the plaintiff in Gallivan did
not include an affidavit with his complaint, the district court dismissed his FTCA claims. Id.
The Ohio rule is similar to the Tennessee requirement. Like the Tennessee certificate of good
faith, the Ohio rule requires the plaintiff to file the affidavit along with the complaint.
On appeal, the Sixth Circuit applied the test outlined in Shady Grove Orthopedic
Associates. v. Allstate Insurance Co., 559 U.S. 393, 398 (2010). In Shady Grove, the Supreme
Court considered whether a New York law prohibiting class actions seeking penalties or
statutory minimum damages prevented a federal district court with diversity jurisdiction from
considering a class action under Federal Rule of Civil Procedure 23. Shady Grove, 559 U.S. at
396. The Court applied a two-step test to this issue. First, the court should determine whether a
Federal Rule governs the question in dispute. Id. at 398. And second, if the Federal Rule
controls, the court should apply the Rule unless it “exceeds statutory authorization or Congress’s
rulemaking power.” Id.
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Restating the Shady Grove test, the Gallivan court explained that “[t]he first question we
must ask is whether the Federal Rules of Civil Procedure answer the question in dispute: does
someone need an affidavit of merit to state a claim for medical negligence?” 943 F.3d at 293.
And if the Federal Rules “answer that question,” the court must then ask “whether the Federal
Rules are valid under the Constitution and the Rules Enabling Act.” Id. The Sixth Circuit found
that, “[i]f the answers to both those questions are yes, then our work is done[,]” and the court
applies the Federal Rules. Id.
Applying this test to the Ohio rule requiring the merit affidavit, the Sixth Circuit held that
the Federal Rules answered the first question—“does someone need an affidavit of merit to state
a claim for medical negligence?” Id. The court highlighted three different Federal Rules of
Civil Procedure that answered this question—Rules 8, 12, and 9. Rule 8 requires only “(1) a
short and plain jurisdictional statement, (2) a short and plain statement of the claim, and (3) an
explanation of the relief sought.” Id. It does not require that a plaintiff file an affidavit to state a
claim. Id. What is more, Rule 12 does not require that a plaintiff provide evidentiary support to
state a plausible claim for relief because “[e]ven without an affidavit, a complaint may move
beyond the pleading stage and into discovery.” Id. And Rule 9 identifies certain times when a
plaintiff must satisfy heightened pleading requirements. Id. But because none of Rule 9’s
heightened pleading requirements apply to medical negligence claims, Rule 8’s liberal pleading
standard applies instead. Id. The court thus explained that, “[t]o impose a heightened pleading
standard in [the plaintiff’s] case would upset the careful balance struck by the Federal Rules.”
Id. at 293–94. So in the end, the Sixth Circuit found that the Federal Rules answered the
question in dispute—“Gallivan did not have to file an affidavit with his complaint to state a
claim.” Id. at 294.
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Next the court asked whether these Federal Rules were valid under the Constitution and
the Rules Enabling Act. Id. at 294. The Sixth Circuit found this question “easy to answer,”
explaining that the Federal Rules are “presumptively valid.” Id. As a result, the court held that
the district court should have applied the Federal Rules and that the plaintiff need not follow
Ohio law by providing a good faith affidavit with his complaint. Id. With all this in mind, the
Court now applies Gallivan’s version of the Shady Grove test.
ii.
Plaintiff Need Not Attach a Certificate of Good Faith
First, the Court has to decide whether the Federal Rules of Civil Procedure answer the
question in dispute. And here, “the question in dispute” is almost identical to the question in
Gallivan—does someone need a certificate of good faith (rather than an affidavit of merit) to
state a claim for medical negligence under the FTCA?
Just as in Gallivan, the Federal Rules answer this question. Rule 8 only requires a short
and plain statement of the court’s jurisdiction, the plaintiff’s claims, and the plaintiff’s relief. It
requires nothing more. And Rule 9 does not include a heightened pleading standard for medical
negligence cases, so Rule 8’s liberal pleading standard applies. Nor does Rule 12 require that
Plaintiff attach any evidence to his complaint to state a claim for relief here. And so, the Federal
Rules “answer the question in dispute”—Plaintiff does not have to file a certificate of good faith
to state a medical negligence claim.
Second, this Court must determine whether these Federal Rules are valid. Just as the
Sixth Circuit in Gallivan found, this Court agrees that the Federal Rules are valid procedural
rules. Indeed, the Federal Rules of Civil Procedures are “presumptively valid” and the Supreme
Court has “rejected every statutory challenge to a Federal Rule that has come before” it.
Gallivan, 943 F.3d at 294; Shady Grove, 559 U.S. at 407. In short, following the Sixth Circuit’s
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opinion in Gallivan, this Court finds that the Federal Rules control and that the THCLA’s good
faith certificate requirement does not apply to Plaintiff’s FTCA claims.
Defendants argue that Gallivan does not control here because the “Sixth Circuit has not
expressly addressed the applicability of Tennessee’s Certificate of Good Faith requirement under
federal question jurisdiction.” (ECF No. 77 at PageID 481 n.7.) But the claim in Gallivan was
an FTCA claim too. 943 F.3d at 292–93. And the Sixth Circuit explained that “it doesn’t make
sense for federal courts to have one system of procedural rules in diversity cases and another in
FTCA cases.” Id. at 295; see also Andes, 2020 WL 3895780, at *5 (agreeing with the court’s
reasoning in Gallivan and finding that “applying the Tennessee certificate of good faith
requirement in an FTCA case but not in a medical malpractice case invoking the federal court’s
diversity jurisdiction would lead to confusion and incongruous results.”). So in the context of
the FTCA, the Sixth Circuit suggested that its analysis in Gallivan applies whether the court has
diversity jurisdiction or federal question jurisdiction. 21 943 F.3d at 295.
Defendants further argue that “Gallivan does not bind the Court because the THCLA’s
Certificate of Good Standing requirement arises from the THCLA itself rather than the
Tennessee Rules of Civil Procedure.” (ECF No. 77 at PageID 481 n.7.) This is an effort to
21
In his concurring opinion in Brusch, Judge Readler noted that in Gallivan, the Sixth Circuit
“used a diversity-jurisdiction framework to determine whether that Ohio procedural rule should
apply in a federal forum.” 823 F. App’x at 412. The concurrence suggested that, when a court
has jurisdiction under the FTCA, “the better approach” would be to view the issue “through the
lens of federal question jurisdiction.” Id. In that case, the court would “simply apply federal
substantive and procedural law.” Id. at 413. Because the FTCA requires courts to apply state
substantive law, the concurrence explains that, “if the Tennessee good-faith certificate
requirement is substantive, the FTCA demands we apply it.” Id. With that concurrence in mind,
the Sixth Circuit may later address whether the Tennessee certificate of good faith is required in
an FTCA case. But for now, the court in Brusch left that question for another day. Id. And
Gallivan applied the Shady Grove test to an FTCA claim. Plus, as discussed below, the Gallivan
court held that, under the Supremacy Clause, even if it analyzed whether the Ohio rule were
deemed substantive or procedural, it would make “no difference.” Gallivan, 943 F.3d at 295.
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argue that Tennessee’s requirement is substantive rather than procedural. But the Sixth Circuit
in Gallivan addressed similar arguments and rejected them. 943 F.3d at 294–95. That court
made clear that “a Federal Rule (if valid) displaces inconsistent state law.” Id. In fact, Gallivan
held that it need not determine whether the Ohio rule at issue was substantive. The court
explained that “the government’s argument that Ohio Rule 10(D)(2) is substantive under Erie
makes no difference.” Id. at 295. In effect, the Sixth Circuit found that “the procedural v.
substantive analysis was irrelevant to the case because a Federal Rule, if valid, displaces
inconsistent state law under the Supremacy Clause.” Osborne v. Pickaway Cnty., Ohio, No.
2:19-cv-3628, 2020 WL 1275722, at *4 (S.D. Ohio Mar. 17, 2020). In the same way, whether
the THCLA’s good faith certificate requirement is substantive rather than procedural “makes no
difference” to this Court’s analysis.
Under the Gallivan analysis, that the good faith certificate requirement arises from the
THCLA statute does not change the fact that the Federal Rules apply and that those rules are
valid. See Andes v. United States, No. 1:19CV00005, 2020 WL 3895780, at *5 (W.D. Va. July
10, 2020) (finding that the Sixth Circuit’s analysis in Gallivan applies to Tennessee’s certificate
of good faith requirement); see also Albright v. Christensen, 507 F.Supp.3d 851, 860 (E.D. Mich.
2020) (finding that “[a]lthough the Michigan affidavit-of-merit statute is not identical to the Ohio
rule at issue in Gallivan, they both require plaintiffs to file an affidavit along with their
complaint,” so the analysis in Gallivan “applies to Michigan’s statute as well.”); Herriges v.
Cnty. of Macomb, No. 19-12193, 2020 WL 3498095, at *11 (E.D. Mich. June 29, 2020) (finding
that, under Gallivan, “a plaintiff filing a complaint in federal court does not need an affidavit of
merit to state a claim for medical negligence.” (internal quotations omitted)). But the law has not
always been so straightforward.
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Before Gallivan, courts in the Sixth Circuit had found that the THCLA’s certificate of
good faith requirement was substantive and that it applied in FTCA actions. 22 Burns, 542 F.
App’x at 463; Daniels v. United States, No. 11-5009, 2011 WL 13202357, at *1–2 (6th Cir. Oct.
7, 2011); see also Williams v. United States, 754 F. Supp. 942, 952 (W.D. Tenn. 2010). 23 But in
recent opinions, the Sixth Circuit has implied that Gallivan changed the law in this circuit.
Brusch, 823 F. App’x at 411–12; cf. Estate of Barnwell v. Grigsby, 801 F. App’x 354, 361 n.4
(6th Cir. 2020). For example, in Brusch v. United States, that court commented that before
Gallivan, “the law in the Sixth Circuit was far from clear that the THCLA’s good-faith affidavit
requirement should not apply in federal court.” 24 Id. This suggests that post-Gallivan, the law
in the Sixth Circuit is now “clear” that Tennessee’s good-faith certificate requirement does not
apply in this Court.
In sum, this Court finds that the THCLA’s good faith certificate requirement does not
apply to Plaintiff’s FTCA claims. Instead, consistent with the holding in Gallivan, the Federal
Rules of Civil Procedure control here. And they did not require that Plaintiff provide a
22
Almost every case that Defendants cite here to support their argument that the good faith
certificate applies pre-dates Gallivan. (ECF No. 77 at PageID 482.)
23
In Williams, the district court found that Tennessee’s good faith certificate requirement was
substantive. 754 F. Supp. 2d at 952. But the version of the THCLA at issue here is different
than the statute the court addressed in Williams. Now the THCLA requires plaintiffs to file a
certificate of good faith with their complaint, much like the Ohio rule at issue in Gallivan. See
Ohio R. Civ. P. 10(D)(2); see also Mich. Comp. Laws § 600.2912d. Plus after Williams, the
Tennessee Supreme Court has referred to the amendments to the Tennessee law including the
good faith certificate at issue here as “procedural” changes. It said, “the 2008 and 2009
amendments to the Tennessee Medical Malpractice Act established new procedural requirements
for plaintiffs seeking to file medical malpractice actions.” Ellithorpe, 479 S.W.3d at 825
(emphasis added).
24
The Sixth Circuit in Brusch found that a district court’s pre-Gallivan decision to dismiss a
plaintiff’s complaint for failure to file a certificate of good faith with her complaint was not
clearly erroneous. But it did so “because the law was not clear” and “the relevant caselaw
actually favored the application of the THCLA at the time the district court dismissed [the
plaintiff’s] complaint.” 823 F. App’x at 411–12.
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certificate of good faith with his Complaint. 25 As a result, the Court DENIES Defendants’
motion for summary judgment on Plaintiff’s FTCA claims.
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff moves for appointment of counsel. (ECF No. 79 at PageID 710.) Under 28
U.S.C. § 1915, the “court may request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). But “the appointment of counsel in a civil proceeding is not a
constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v.
Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel
appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir.
1993) (finding that there is no constitutional right to counsel in a civil case). Appointment
of counsel is thus “a privilege that is justified only by exceptional circumstances.” Lavado, 992
F.2d at 606 (internal quotation marks and citation omitted); Lanier, 332 F.3d at 1006.
When determining “whether exceptional circumstances exist, courts have examined the
type of case and the abilities of the plaintiff to represent himself.” Lavado, 992 F.2d at 606
(internal quotation marks and citations omitted). “This generally involves a determination of the
complexity of the factual and legal issues involved.” Id. What is more, appointment of counsel
is not appropriate when a pro se litigant’s claims are baseless or when his chances of success are
extremely slim. Id. (quoting Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see
also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir. 2009) (same).
Plaintiff claims that this case is complex and that counsel “is necessary and warranted in
this matter to aid and assist plaintiff to fairly and properly present and navigate the complexities
25
Defendants move for summary judgment on Plaintiff’s FTCA claims solely on Plaintiff’s
alleged procedural defect. They provide no evidence related to the merits of the claim such as
whether they breached the applicable standard of care here.
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of the rules, discovery, and legal issues of the case.” (ECF No. 79 at PageID 711.) He
emphasizes that his claims will require expert witness testimony. (Id. at PageID 712.) He also
claims that he “has been diligently trying to obtain an attorney on his own” but has not
succeeded. (Id. at PageID 717; ECF No. 79-1 at 720.)
The Court finds that appointment of counsel is warranted here. Deliberate indifference
and medical negligence cases are often complex. To develop the facts, the parties will likely
need to engage in significant discovery. And Plaintiff will need to find and retain expert
witnesses to support his claims. All in all, the Court uses its broad discretion to find that Plaintiff
needs assistance of counsel to present the essential merits of his claims to the Court. So the
Court GRANTS Plaintiff’s motion for appointment of counsel. The Court further respectfully
DIRECTS the Clerk of Court to engage an attorney to represent Plaintiff.
CONCLUSION
In sum, the Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion
for Summary Judgment. The Court finds that there is a genuine issue of material fact about
whether Plaintiff exhausted some of his administrative claims. What is more, the Court finds
also that there is a question about whether Plaintiff states a deliberate indifference claim and
whether Defendants Prince, Cabanero, Dobbins-Branch, and Bowden are entitled to qualified
immunity. As a result, the Court DENIES summary judgment as to these issues. What is more,
the Court further ORDERS Plaintiff to provide the Court with updated contact information for
Defendants Prince, Cabanero, Dobbins-Branch, and Bowden within twenty-one (21) days after
entry of this order, so that the U.S. Marshal can issue summons.
The Court however GRANTS summary judgment as to Defendants Bailey, Gaia, and
Hargrove because they are immune from suit under Bivens. The Court thus DISMISSES them
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from this action. Next the Court DENIES summary judgment on Plaintiff’s FTCA claims.
Finally, the Court GRANTS Plaintiff’s Motion to Appoint Counsel.
SO ORDERED, this 23rd day of August, 2021.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE
47
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