Abel v. Lappin

• Decision Date: 24 September 2009
• Docket Number: Civil Action No. CV207-88.
• Citation: 661 F.Supp.2d 1361
• Parties: Robert Keith ABEL, Plaintiff, v. Harley LAPPIN, Director Federal Bureau of Prisons, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

Page 1361

661 F.Supp.2d 1361

Robert Keith ABEL, Plaintiff, v. Harley LAPPIN, Director Federal Bureau of Prisons, et al., Defendants.

Civil Action No. CV207-88.

United States District Court, S.D. Georgia, Brunswick Division.

September 24, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert Keith Abel, Petersburg, VA, pro se.

James L. Coursey, Jr., U.S. Attorney's Office, Savannah, GA, for Defendants.

ORDER

ANTHONY A. ALAIMO, District Judge.

On February 26, 2009, Magistrate Judge James E. Graham entered a report and recommendation, which suggested that the Court should grant in part, and deny in part, the dispositive motion filed by Defendants. Presently before the Court are the parties' objections to the Magistrate Judge's report and recommendation.

After a thorough review of the applicable facts and the law, Judge Graham determined that genuine issues of material fact remained in dispute as to Abel's retaliation claims against Vasquez, Wheeler, Shaw, Sumner, Burgos, and Ellis. The Magistrate Judge found that Abel's claims in all other respects were not tenable and were due to be dismissed. The Court concurs with the Magistrate Judge's disposition of the case, and ADOPTS the report and recommendation as the order of the Court. The parties have not shown that the Magistrate Judge's suggested disposition of the case was clearly erroneous or contrary to law, and their objections are OVERRULED.

MAGISTRATE JUDGE'S ORDER AND REPORT AND RECOMMENDATION

JAMES E. GRAHAM, United States Magistrate Judge.

Plaintiff, who is currently incarcerated at the Mahoning County Jail in Youngstown, Ohio, filed a cause of action pursuant to pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), contesting the conditions of his confinement while he was incarcerated at the Federal Correctional Institution in Jesup, Georgia ("FCI Jesup"). Defendants Harley Lappin, Director of the Bureau of Prisons ("BOP"); Harrell Watts, Administrator of National Inmate Appeals; Bethzadia Ricoff, Medical Director, Southeast Region; Newton Kendig, Medical Director for the BOP, Central Office; Mike Nelson, former Chief of Health Programs; Joyce Young, an employee of the Health Programs Branch; R.E. Holt, Regional Director, Southeast Region; Lisa Sunderman, Regional Counsel, Southeast Region; Lillian Jimenez, Health Services Administrator, Southeast Region; Robert McFadden, former Warden at FCI Jesup; Jose Vasquez, former Warden at FCI Jesup; Dr. Louis Burgos, former Clinical Director, FCI Jesup; Dr. Martha Chipi, Clinical Director, FCI Jesup; Thomas Ellis, former Health Services Administrator, FCI Jesup; FNU Shaw, Unit Manager; FNU Wheeler, Unit Case Manager; R. Sumner, Unit Counselor; Jeffrey Allen, Chief of Health Programs Branch, Central Office; and the BOP ("Defendants") filed a Motion to Dismiss, or, in the Alternative, for Summary Judgment. Plaintiff filed a Response. Defendants filed a Reply. For the reasons which follow, Defendants' Motion should be GRANTED in part and DENIED in part.

STATEMENT OF THE CASE

Plaintiff asserts that, while he was an inmate at FCI Jesup, he was supposed to have a liver biopsy after he tested positive for hepatitis C. Plaintiff asserts he discussed his situation with Dr. Burgos and Ellis, and they would not allow Plaintiff to have a liver biopsy, even though the Central Office approved this procedure. Plaintiff contends he filed a BP-9 with Sumner and that Warden McFadden, despite having knowledge of his need for a liver biopsy and treatment, denied his BP-9. Plaintiff contends he continued telling Warden McFadden about Dr. Burgos' and Ellis' denial of his needed treatment, yet Warden McFadden did nothing. Plaintiff also contends Wheeler and Sumner called him to Wheeler's office, and Sumner told him he was going to be transferred to another institution and that he would not be getting treatment for his liver. Plaintiff alleges he finally received a liver biopsy two and one half years after he requested it and one and one half years after the Central Office approved it. Plaintiff asserts Dr. Chipi, Dr. Burgos' replacement, refused to provide him with necessary follow-up treatment after the biopsy. Plaintiff avers Shaw reviewed all of the documentation Plaintiff had submitted and told Plaintiff he did not have any right to receive treatment for a condition he had when he entered the penal system. Plaintiff also alleges Warden Vasquez (McFadden's replacement as Warden) knew he needed treatment for his liver problems but told him he was going to be transferred to another institution. Plaintiff asserts he was transferred not once, but twice, and that prison staff were deliberately indifferent to his serious medical needs; Plaintiff contends these actions were taken because staff knew Plaintiff had filed grievances. Plaintiff also contends he informed Defendants Lappin, Watts, Ricoff, Kendig, Nelson, Allen, Young, Holt, Sunderman, and Jimenez, all of whom are or were in supervisory positions with the Bureau of Prisons, about his need for treatment, and that these Defendants did nothing to assist him. Finally, Plaintiff generally asserts Defendants conspired to delay his access to medical treatment and to transfer him.

Defendants aver Plaintiff received appropriate medical care and treatment and that Plaintiff's "disagreement with the medical judgment of his health providers does not rise to the level of a constitutional violation." (Doc. No. 64, p. 4). Defendants also aver they did not conspire against him, nor did they retaliate against Plaintiff to have him transferred to other penal institutions.

MOTION TO DISMISS STANDARD OF REVIEW

In considering a motion to dismiss filed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, a court must determine whether a plaintiff's "[f]actual allegations [are] enough to raise the right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007)¹. In making this determination, a court must construe the complaint in a light most favorable to the plaintiff. Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). When evaluating a motion to dismiss, the issue is not whether a plaintiff will ultimately prevail, but "whether the claimant is entitled to offer evidence to support the claims." Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir.1986). The threshold is "`exceedingly low'" for a complaint to survive a motion to dismiss. Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir. 1985) (quoting Quality Foods de Centro America, S.A. v. American Agribusiness Devel., 711 F.2d 989, 995 (11th Cir.1983)). A complaint filed by a pro se plaintiff is held to even less stringent standards than a complaint drafted by a lawyer. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (citing Conley, 355 U.S. at 45-46, 78 S.Ct. at 102).

DISCUSSION AND CITATION TO AUTHORITY

I. Improper Service

Defendants assert Plaintiff's Complaint should be dismissed as to all individual defendants for insufficiency of process and insufficiency of service of process pursuant to Rules 12(b)(4) and (5) of the Federal Rules of Civil Procedure. Defendants contend the Court lacks in personam jurisdiction over them as a result. Defendants also assert there is no evidence they have been served on an individual basis with copies of the summons and Complaint. Defendants further assert that effective service of process upon individual defendants requires a signed waiver of service, personal service, or service pursuant to the law of the state in which the district court is located and that neither Georgia law nor federal law permits service on an individual defendant by certified mail. Defendants contend the United States Marshals Service attempted service upon Defendants, but Plaintiff provided the Marshals Service with improper addresses. Defendants contend the United States Attorney and the Attorney General of the United States have been served, but they have not been served on an individual basis.

Plaintiff asserts Defendants should be required to waive personal service or to be properly served in person at their own expense. Plaintiff alleges he properly identified each individual Defendant and listed his or her position and last known place of employment with the Bureau of Prisons. Plaintiff asserts the Court entered an Order on January 17, 2008, directing the Marshals Service to serve the individual Defendants with a copy of that Order and Plaintiff's Complaint. Plaintiff asserts he has filed motions with the Court in an attempt to have the individual Defendants served to no avail.

The United States Attorney's Office, on behalf of the Bureau of Prisons and other Defendants sued in their individual capacities, filed a Motion for Extension of Time to Answer or Otherwise Defend on March 25, 2008. In this Motion, the United States Attorney's Office stated, "Upon information and belief, all defendants are believed to be served. The United States Attorney was served on January 25, 2008, ... [and o]ther individual defendants have been served on later dates[.]" (Doc. No. 47, p. 2). The United States Attorney's Office also stated it had "under consideration several representation requests by all of the individual defendants remaining in this case" and that it did "not have the authority to file answers on the individual defendants' behalf but [did] anticipate that such authority will be forthcoming for most, if not all, of the significant number of individual Defendants." (Id.) The United States Attorney's Office filed a second Motion for Extension of Time to Answer or Otherwise Defend on May 28, 2008; in this Motion, the United States Attorney's Office stated, "All of the...