Lamerique v. United States
| Decision Date | 14 June 2019 |
| Docket Number | Case No. 3:18-cv-00532 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | KEVIN FRITZ LAMERIQUE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
Pending before the Court are Plaintiff's pro se amended complaint filed pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens") and Defendant's Motion to Dismiss. (ECF Nos. 7, 19). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by standing order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
Having thoroughly reviewed Plaintiff's allegations, the undersigned FINDS that Plaintiff's claims against Defendant are barred as Plaintiff is unable to bring a suit for money damages directly against the United States and his claims for injunctive relief are moot. Therefore, the undersigned RECOMMENDS that the presiding District Judge GRANT Defendant's Motion to Dismiss, (ECF No. 19), and DISMISS Plaintiff's amended complaint, without prejudice. (ECF No. 7).
On December 20, 2017, a federal grand jury sitting in the Southern District of West Virginia returned a Second Superseding Indictment charging Plaintiff, Kevin Fritz Lamerique ("Plaintiff"), with attempting to corruptly obstruct, influence, and impede an official proceeding related to a multi-count drug conspiracy organized by Plaintiff's co-defendants. United States v. Lamerique et al., Case No. 3:17-cr-00100-6 (S.D.W. Va. July 7, 2017) at ECF No. 110 at 11. On December 26, 2017, Plaintiff was arrested in Stony Point, New York. Id. at ECF No. 118. Plaintiff's initial appearance was held later that same day before Magistrate Judge Judith C. McCarthy in the United States District Court for the Southern District of New York. (ECF No. 19-1 at 3). Judge McCarthy ordered Plaintiff to be detained and issued a Medical Order directed to the Warden of the Westchester County Jail, or any other detention facility in which Plaintiff might be placed. (ECF No. 19-2 at 2). In the Medical Order, Judge McCarthy stated that during the initial appearance, Plaintiff's counsel had revealed that Plaintiff suffers from multiple sclerosis ("MS"). (Id.). Consequently, Judge McCarthy ordered "the Correctional Facility to provide [Plaintiff] with a full medical examination and provide any additional necessary medical treatment." (Id.). Shortly thereafter, Plaintiff was transferred by the United States Marshal's Service to the Southern District of West Virginia. (ECF No. 19-1 at 3).
Plaintiff filed the instant complaint on March 26, 2018, while incarcerated at the Western Regional Jail and Correctional Center ("WRJ"), located in Barboursville, West Virginia. (ECF No. 1 at 2). The complaint was filed by Ashley Carrington, acting as next friend of Plaintiff, in the United States District Court for the Southern District of New York. (Id. at 11). In the complaint, Plaintiff alleged that he had been denied medical treatment in contravention of the Medical Order issued by Judge McCarthy whileincarcerated at Federal Bureau of Prisons ("BOP") institutions located within the Eastern District of Pennsylvania, the Western District of Oklahoma, and the Eastern District of Kentucky. (Id. at 4). Plaintiff requested (1) to be sent to a hospital for the remainder of his detention; (2) that prison officials be ordered to transfer him to a hospital for treatment during MS attacks; and (3) that he be transferred back to Carter County Detention Center located in Grayson, Kentucky, where he had previously been incarcerated. (Id. at 5). On March 30, 2018, the Southern District of New York determined that the Southern District of West Virginia was the more appropriate venue for the complaint, whether characterized as a civil rights complaint or a petition under 28 U.S.C. § 2241, because Plaintiff was temporarily incarcerated in this district and because "the claims regarding [Plaintiff's] current medical treatment arise in West Virginia." (ECF No. 2 at 3).
On April 24, 2018, the undersigned issued an Order addressing deficiencies with the complaint as filed. (ECF No. 5). The undersigned noted first that while the complaint was filed by Ms. Carrington, as next friend of Plaintiff, Ms. Carrington provided "no supporting documentation corroborating that she has a legal right to prosecute the case on behalf of Plaintiff." (Id. at 1). The undersigned further informed Plaintiff that, in order to pursue a civil rights complaint, he must pay the $400 filing fee, or file an Application to Proceed without Prepayment of Fees and Costs. (Id. at 2). Finally, the undersigned confirmed that Plaintiff had been returned to the Carter County Detention Center as requested in his complaint, and was receiving treatment for his MS, which likely rendered his action moot. (Id.). The undersigned accordingly ordered Plaintiff to file an amended complaint resolving these issues, or a motion voluntarily dismissing the complaint. (Id.).
On May 23, 2018, Plaintiff paid the $400 filing fee and submitted an Amended Complaint naming the United States as the sole defendant and alleging a violation of hiscivil rights. (ECF No. 7). In the amended complaint, Plaintiff indicated that he was currently housed at the Carter County Detention Center in Grayson, Kentucky. (Id. at 2). He complained that the Medical Order signed by Judge McCarthy was not being followed in that he had "requested medical treatment at four separate facilities which has not been received." (Id. at 3). Plaintiff explained that he suffered from severe MS and required an intravenous injection of Tysabri to be administered by a healthcare professional every four weeks; however, he had not received this treatment since being incarcerated. (Id.). Plaintiff described the location of the events giving rise to his amended complaint as follows:
(Id.). Plaintiff alleged that on January 19, 2018, he woke up and was unable to travel to the restroom due to his MS condition. (ECF No. 7 at 5). A nurse was called, and informed Plaintiff that prison staff would not "do anything unless [Plaintiff] was almost dead or passed out." (Id.). Plaintiff asserted that while incarcerated at the Oklahoma Federal Detention Center on February 1, 2018, he experienced problems with balance due to his MS. Plaintiff submitted a request to see a doctor, but the scheduled appointment was changed, and Plaintiff was transferred before he could be seen by a doctor. (Id.). Plaintiff stated that on March 14, 2018, while incarcerated at the Carter County Detention Center, he experienced a MS "attack" which resulted in spasms and numbness of the face, neck, and extremities. On March 19, 2018, while still at the Carter County Detention Center, Plaintiff experienced paralysis of his right foot and leg and was prescribed ibuprofen and prednisone, a steroid. Plaintiff claimed that the steroid treatment was "not good for hiscondition," but he was told by a nurse, allegedly at the direction of the United States Marshal's Service, that if Plaintiff refused the steroids he would be "denying treatment." (Id. at 5, 7).
Plaintiff alleged that he suffered various injuries due to the above-described incidents, including "extreme pain," and temporary paralysis. (Id. at 5). Plaintiff further asserted that after being transferred to the WRJ on March 21, 2018, he was locked in a cell for 24 hours and only allowed to exit "once every few days to make a 5 minute phone call." (Id.). Plaintiff was unable to shower for four consecutive days and was only permitted one shower between his arrival at the WRJ on March 21 and his transfer from the jail eight days later on March 29, 2018. (ECF No. 7 at 5). According to Plaintiff, the conditions at the WRJ violated the Eighth Amendment's prohibition against cruel and unusual punishment, as well as the Medical Order issued by Judge McCarthy. (Id.). For relief, Plaintiff requested the same equitable relief as before, asking that this Court "send him to a hospital that will provide him his treatments for the remainder of time that he is incarcerated" and enter an order requiring Plaintiff to be brought to a hospital for the administration of Tysabri injections if Plaintiff suffers from another attack. In addition, Plaintiff sought an award of "monetary relief for the significant amount of suffering and trauma [Plaintiff] experienced while incarcerated." (Id.).
Plaintiff asserted that he filed several "complaints" related to the events described in his amended complaint; specifically, he made two complaints while at the WRJ; two complaints while at the Oklahoma Federal Detention Center; and one complaint while at Carter County Detention Center. (Id. at 7). Plaintiff claims that, in these complaints, he informed prison staff he required hospitalization due to his untreated MS condition and brain lesions, that the condition caused swelling of the brain, neck and spine andtemporarily paralysis, and that if left untreated, his medical ailments could lead to death. (Id.). Plaintiff reported that he received no result from his complaints submitted at the Oklahoma Federal Detention Center and the WRJ, and that following the submission of his complaint at the Carter County Detention Center, he was examined by a nurse who informed Plaintiff that "unless if [sic] you're dying we cannot send you to the hospital." (Id.). Plaintiff admitted, however, that he had never filed a "formal grievance." (ECF No. 7 at 8). Plaintiff explained that the institutions at which he was...
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