Scher v. Bureau of Prisons
| Decision Date | 27 May 2021 |
| Docket Number | Civ. 19-2001 (SRN/BRT) |
| Parties | Gregory A. Scher, Plaintiff, v. Bureau of Prisons; Michael Carvajal, Director; F.M.C. Rochester; Steve Kallis, Warden; Sheila Hadaway, DO, FMC Clinical Director, Rhonda Woltman, Correctional Counselor; U.S. Public Health Service USPHS; Capt. Brian Lewis, MD, CMO, USPHS; Capt. Jessica Feda, USPHS Ret.; Lt. Daniel Bordt, USPHS; Mark Morgan, DO, USPHS; John and Jane Does 1 through 10; Defendants. Gregory A. Scher, pro se Plaintiff. v. Ana H. Voss, Esq., United States Attorney's Office, counsel for Defendants. |
| Court | U.S. District Court — District of Minnesota |
REPORT AND RECOMMENDATION
This case was initiated on July 29, 2019, when Plaintiff Gregory A. Scher, then an inmate at Federal Medical Center - Rochester, filed suit alleging he was provided a defective wheelchair, and that the Bureau of Prisons, Capt. Jessica Feda, Lt. Daniel Bordt, and FMC Rochester (“Original Defendants”) were deliberately indifferent to this problem and denied Scher access to either a powered wheelchair or the wheelchairassistance program wherein fellow inmates aid in pushing around wheelchair-bound inmates. (Doc No. 1, Compl. at 5-6.) Scher claimed that the Original Defendants' deliberate indifference resulted in two hernias, a damaged meniscus, and a torn right rotator cuff which all require surgery to correct. (Id.)
After various procedural pitstops, the Original Defendants were eventually served and moved to dismiss the Complaint. (Doc. No. 60.) Scher then filed his Amended Complaint (Doc. No. 78, Am. Compl.), mooting the Original Defendants' motion to dismiss. (Doc. Nos. 88, 89, 91.) Presently before the Court are a new slate of motions to dismiss aimed at the Amended Complaint filed by the Defendants that have appeared to date. (Doc. Nos. 103, 112, 117.)[1]
Scher pled guilty to one count of Social Security fraud in violation of 42 U.S.C. § 408(a)(3) on February 12, 2018, and was sentenced to 20 months' imprisonment, an above-guidelines prison sentence. See United States v. Scher, 2020 WL 4208921, at *1- *2 (D. Haw. July 22, 2020); United States v. Scher, 2020 WL 3086234, at *1 (D. Haw. June 10, 2020). Scher self-surrendered to BOP custody at FMC-Rochester on April 25, 2019. (Am. Compl. at 2.) At the time of his self-surrender, Scher “needed only supplemental oxygen and medications” to treat his “moderate COPD and an acute mycobacterium chimera infection.” (Id. at 2, 8.)
During prison intake, Scher met with Defendant Rhonda Woltman, a correctional counselor. (Id. at 8.) Scher asserts that Woltman had scribbled “acquitted sex offender” on the margins of Scher's presentence investigation report, so Scher asked her why. (Id. at 9.) Woltman “stormed out of the room” and “immediately went next door” to speak with Physician's Assistant Karin Parsons to inform her that Scher was a pathological liar. (Id. at 9-10.) Scher claims Woltman “made a regular habit of spreading lies and disinformation against [Scher] until the very end of her BOP career.” (Id. at 11.) These lies, Scher asserts, caused Defendants Feda and Bordt to not put Scher into the wheelchair pusher program, resulting in bilateral inguinal hernias, a torn left knee meniscus, and a torn right shoulder rotator cuff. (Id.)
Bordt served as Scher's physical therapist, prescribing treatments “that were grossly contraindicated.” (Id. at 12.) Feda supervised FMC-Rochester's physical therapy department, including Bordt. (Id.) Scher reached out to Feda twice to “assist him in getting proper treatment instead of the injurious treatment he was receiving at the hands of Defendant Bordt, ” but she refused to intervene. (Id. at 13.) Scher asserts Defendant Mark Morgan referred him for an orthopedic consultation, but Bordt, Feda, and Defendant Sheila Hadaway canceled the consultation request. (Id. at 16.) Morgan then ordered cortisone injections for Scher's left knee, which provided relief for four to five weeks. (Id. at 16-17.) Scher also asserts Bordt and Feda are practicing medicine without a license. (Id. at 15.)
Scher asserts his Amended Complaint arises under three authorities: (1) the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and § 1346; (2) 28 U.S.C. § 1983 and its federal actor corollary of Bivens; and (3) Section 504 of the Rehabilitation Act of 1973. (Am. Compl. At 1-2.)
“Federal courts are courts of limited jurisdiction and the ‘threshold requirement in every federal case is jurisdiction.'” Barclay Square Prop. v. Midwest Fed. Sav. and Loan Ass'n of Minneapolis, 893 F.2d 968, 969 (8th Cir. 1990) (quoting Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987)). Federal courts must dismiss a claim if it lacks subject matter jurisdiction over the claim. Fed.R.Civ.P. 12(h)(3), 12(b)(1). When considering a facial attack on jurisdiction in a Rule 12(b)(1) motion, the court “merely needs to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 914 (8th Cir. 2015) (quotation omitted). Under such an analysis, the court restricts itself to the pleadings and the non-moving party is afforded the same protections as those provided by a Rule 12(b)(6) motion. Id.
In deciding a Rule 12(b)(6) motion to dismiss, a court accepts as true all well-pleaded factual allegations and then determines “whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Sletten & Brettin Orthodontics v. Cont'l Cas. Co., 782 F.3d 931, 934 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)); accord Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015). Facial plausibility of a claim exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Although a sufficient complaint need not be detailed, it must contain “[f]actual allegations . . . enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted); see id. (“The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion of a legally cognizable right of action.”) (quotations and citation omitted). Additionally, complaints are insufficient if they contain “naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557) (internal quotation marks omitted). The court must draw reasonable inferences in the plaintiff's favor. Zink, 783 F.3d at 1098 (citation omitted).
In assessing a complaint by a pro se plaintiff, the court applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation and citation omitted); accord Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014). “If the essence of an allegation is discernible, ” then the court, in applying a liberal construction to pro se complaints, “should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). But notwithstanding the liberal construal of such complaints, the pro se plaintiff “still must allege sufficient facts to support the claims advanced.” Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir. 2006) (quoting Stone, 364 F.3d 912, 914 (8th Cir. 2004)). Thus, pro se litigants “must set a claim forth in a manner which, taking the pleaded facts as true, states a claim as a matter of law.” Stringer, 446 F.3d at 802 (quoting Cunningham v. Ray, 648 F.2d 1185, 1186 (8th Cir. 1981)).
Defendants argue that Scher has not exhausted administrative remedies and his lawsuit must be dismissed. Scher argues that the administrative remedy process is pointless.
The Prison Litigation Reform Act (“PLRA”) provides that: “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). The exhaustion requirement “applies 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 question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Brock, 549 U.S. 199, 211 (2007). The exhaustion requirement applies even if the administrative process cannot offer the relief sought. Booth v. Churner, 532 U.S. 731, 741 (2001). Simply put, the Supreme Court has “reject[ed] every attempt to deviate” from the PLRA's “textual mandate, ” Ross v. Blake, 136 S.Ct. 1850, 1857 (2016), including rejecting exceptions for constitutional claims, Woodford v. Ngo, 548 U.S. 81, 91 n.2 (2006).
While Scher filed his initial Complaint while he was incarcerated at FMC-Rochester, his Amended Complaint was filed following his release from prison. The PLRA's exhaustion requirement only applies to “person[s] incarcerated or detained.” 42 U.S.C. § 1997e(h). It follows that “the exhaustion...
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