Gibson v. Matthews

• Decision Date: 12 January 1989
• Docket Number: Civ. A. No. 87-200.
• Citation: 715 F. Supp. 181
• Parties: Leisa GIBSON, Plaintiff, v. Robert MATTHEWS, etc., et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

715 F. Supp. 181

Leisa GIBSON, Plaintiff, v. Robert MATTHEWS, etc., et al., Defendants.

Civ. A. No. 87-200.

United States District Court, E.D. Kentucky, Lexington Division.

January 12, 1989.

Sara L. Pratt and David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, Ky., for plaintiff.

Louis DeFalaise, U.S. Atty., Marianna J. Read, Asst. U.S. Atty., Lexington, Ky., and Marianne Finnerty, Trial Atty., U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM OPINION

SCOTT REED, Senior District Judge.

INTRODUCTION

This matter is before the court on the motion of the defendants to dismiss the plaintiff's claims against them, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. In the alternative, the defendants seek to have the court grant a motion for summary judgment, pursuant to Rule 56(c), because there is no genuine issue as to any material fact. The plaintiff in her response generally denies the merit of the arguments set forth by the defendants in support of their motion.

OPERATIVE FACTS

Ms. Leisa Gibson (hereinafter "the plaintiff") alleges that, while incarcerated as a prisoner, she was not provided access to abortion facilities, as she had requested, while being transported to and from correctional institutions located in Texas and West Virginia. The plaintiff further complains that, while incarcerated as a prisoner at the Federal Correctional Institution (hereinafter "FCI") in Lexington, she requested and was deliberately or recklessly denied an abortion. The plaintiff contends that such alleged denial of her request for an abortion occurred directly as a result of the named defendants' conduct. The plaintiff more specifically asserts that she was denied the abortion by defendants Ellis, Simms and Picard, the medical staff at FCI, in that, as a result of medical examinations performed by them, she was informed that it was too late for an abortion. The plaintiff states that defendant Ellis, in addition to informing her that it was too late for an abortion, failed to perform a sonogram or other examinations which would have clarified the plaintiff's actual stage of pregnancy. The plaintiff asserts that had the defendant performed such further examinations he would have, in fact, discovered that she was still within a proper time frame to receive an abortion.

The plaintiff states that because of the effective denial of her request for an abortion she was forced to carry the pregnancy to term, and as a result thereof has incurred damages of $750,000.00. These damages include compensation for alleged emotional and mental distress and for the costs of raising the child. The plaintiff also requests declaratory relief as a result of alleged violation of her constitutional rights.

DISCUSSION

The plaintiff's claims must be addressed in the context of a motion for summary judgment because "matters outside the pleadings were presented to and not excluded by" this court. Fed.R.Civ.P. 12(b)(6). Therefore, "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56...." Id.

Summary judgment is proper if the moving party can show from the record before the court that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Although summary judgment is a useful and often efficient device for deciding cases, it must be used only with extreme caution for it operates to deny a litigant his day in court." Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.1979) (citing cases — citations omitted).

Thus, on a motion for summary judgment the movant has the burden of showing conclusively that there exists no genuine issue as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to party opposing the motion.

Id. (citing cases — citations omitted) (emphasis in the original).

Notwithstanding the foregoing, it must be remembered that "the function of summary judgment is to avoid a useless trial." County of Oakland v. City of Berkley, 742 F.2d 289, 298 (6th Cir.1984). That is to say, "while the court must treat papers in opposition to summary judgment indulgently ... it is not required to overlook the truism that every alleged dispute of fact does not relate to material fact and thus may not raise a genuine issue requiring a trial." Id. Therefore, it is incumbent upon the court to determine, with regard to each of the plaintiff's claims individually, whether there exists "a factual dispute which, if present, would require resolution by a jury or other trier of fact." Schultz v. News-week, 668 F.2d 911, 918 (6th Cir.1982).

The plaintiff alleges that the defendants' conduct has resulted in a deprivation of her fifth, eighth and ninth amendment rights under the United States Constitution. Furthermore, the plaintiff asserts that the defendants have violated those duties owed to her as a prisoner as prescribed by 28 C.F. R. §§ 551.22-.24, thereby giving rise to a separate cause of action against them for breach of said duty. The plaintiff asserts the foregoing claims against the defendants in both their official and individual capacities, except for defendant Morris, against whom such claims are asserted in his official capacity only.

The defendants initially state that the plaintiff's claims should be dismissed because the claims are allegedly conclusory, vague, and lack the specificity necessary for defendants to prepare their defense. After careful review of the entire record before it, the court is not of the opinion that the plaintiff's claims are of such a procedurally deficient character so as to warrant dismissal solely for the reasons submitted by the defendants. Therefore, the court will consider the merit of each of plaintiff's claims individually.

I. OFFICIAL CAPACITY CLAIMS

The plaintiff brings suit against all defendants in their official capacities for alleged violation of her fifth, eighth and ninth amendments under the Constitution. In addition, the plaintiff brings suit against the defendants in their official capacity for violation of specific federal regulations governing duties owed to her as a federal prisoner as found in 28 C.F.R. §§ 551.22-.24.

It is beyond contention that "the United States, as sovereign, is immune from suit save as it consents to be sued...." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); see also United States v. Shaw, 309 U.S. 495, 500-01, 60 S.Ct. 659, 661, 84 L.Ed. 888 (1940) ("without specific statutory consent, no suit may be brought against the United States"). Although the plaintiff has not officially named the United States as a defendant in the action sub judice, "the bar of sovereign immunity cannot be avoided simply by naming officers and employees of the United States as defendants." Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 115 (6th Cir.1988) (citing Hutchinson v. United States, 677 F.2d 1322 (9th Cir.1982)); see Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 877-78, 83 L.Ed.2d 878 (1985).

There does exist, however, a limited waiver of the United States of its sovereign immunity as found within the Federal Tort Claims Act (hereinafter "FTCA"). Insofar as the plaintiff has failed to assert or to indicate that she is, in fact, entitled to the limited waiver of the United States, as found in the FTCA, as a basis of jurisdiction, the court is not therefore impelled to consider the applicability of the FTCA to the claims, constitutional or otherwise, currently before it.

Hence, because of the bar of sovereign immunity, the plaintiff's constitutional claims against all defendants in their official capacities will be dismissed without prejudice.

The plaintiff's claims against the defendants in their official capacities for the alleged violation of 28 C.F.R. §§ 551.22-.24 must be analyzed separately in that they are affected by the Administrative Procedure Act ("APA"). See 5 U.S.C. § 702. Under § 702 of the APA, Congress has specifically waived the sovereign immunity of the United States as regards claims against the United States based on an agency's violation of regulations, etc. This waiver applies, however, only to claims seeking injunctive or declaratory relief. The statute does not apply to actions against the United States for money damages.

Therefore, the plaintiff's claims under the federal regulations, as they pertain to her prayer for relief in the form of money damages, are barred under the doctrine of sovereign immunity. The plaintiff's claim for declaratory relief must be evaluated on a separate basis in light of § 702 of the APA.

Whether or not a plaintiff is to be granted declaratory relief lies within the discretion of the court. See, e.g., Moore v. U.S. House of Representatives, 733 F.2d 946, 954-55 (D.C.Cir.1984) ("declaratory relief is discretionary with the Court, and it may be denied when prudential considerations counsel against its use").

The court is fully aware of, and under circumstances other than those immediately before it would be compelled to discuss, "the principles that govern the exercise of discretion to grant declaratory relief, the purposes such relief may serve and the considerations affecting its propriety...." See Hanes Corp. v. Millard, 531 F.2d 585, 591-92 (D.C.Cir.1976), discussing the propriety of the granting of declaratory relief; see also id. at 591 n. 4, listing many of the factors relevant to the granting of declaratory relief.

In the instant case, however, consideration of the foregoing would be superfluous in light of the apposite case law as applied to the facts before the court. The Sixth Circuit has recently held, acknowledging previous authority, that the release or transfer of a prisoner renders moot that prisoner's claims for injunctive...