from the Chicago Osteopathic Hospital medical staff on three documented occasions. As a result of his repeated refusals, Chicago Osteopathic Hospital discontinued treatment and care.
In addition to the documented refusal of medical care, Neville took part in self-mutilation and feigned heart attacks. Neville's cellmate observed him unraveling the bandages on his legs, and using his fingers and fingernails to scratch and open his wounds. The cellmate also witnessed Neville fake two heart attacks, each time after eating salt and other food the MCC medical staff told him not to eat.
On May 27, 1993, a federal jury convicted Neville of the aforementioned charges. On July 16, 1993, Neville finally agreed to the pacemaker insertion procedure. However, medical records evidence that Neville's heart condition substantially deteriorated during the seven-month refusal to undergo the treatment. On September 9, 1993, Neville was sentenced and is currently assigned to the Springfield Federal Medical Center in Springfield, Missouri.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); Salima v. Scherwood South, Inc., 38 F.3d 929, 931 (7th Cir. 1994). Summary judgment is not a discretionary remedy, it must be granted when warranted. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994). The moving party bears the burden of demonstrating that there is an absence of evidence to support the position of the nonmoving party. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 1994 WL 699135, at *3 (7th Cir. 1994). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Associated Milk Producers, Inc. v. Meadow Gold Dairies, 27 F.3d 268, 270 (7th Cir. 1994), presenting only a scintilla of evidence will not suffice to oppose a motion for summary judgment. Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994).
A dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses . . . ."). Accordingly, the nonmoving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
In addition to the above rules of law, the court is mindful that pro se complaints are to be liberally construed. Chenh v. Logan, 42 F.3d 1391, 1391 (7th Cir. 1994). Complaints filed by lawyerless litigants, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). The liberal construction relates to both the pro se indigent plaintiff's factual allegations and its legal theories. Neitzke v. Williams, 490 U.S. 319, 330-31 n.5, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989). However, since this motion is one for summary judgment, Neville's allegations need not be taken as true.
Although Neville brings this action pursuant to 42 U.S.C. § 1983, it is well-settled that § 1983 requires a "state actor." Such a state actor does not exist in the case sub judice; Neville names a federal agency and three federal employees as the defendants to his claim. Yet, despite the absence of a Congressional statute, the United States Supreme Court has specifically allowed a federal inmate to bring suit against a federal prison official for a deprivation of a constitutional right. Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980). Thus, the court construes the portion of the Complaint pertaining to the individual Defendants, True, Lopez, and Alston, to allege a violation of the Eight Amendment pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 391, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and Carlson v. Green.
Neville also does not specify whether he is suing Defendants True, Lopez, and Alston in their official or individual capacities. A Bivens action may not be maintained against a federal employees in their official capacities. Ecclesiastical Order of the Ism of Am., Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988). As such, the court will construe the federal claim against True, Lopez, and Alston to be in their individual capacities for money damages and against the USMS for damages and injunctive relief. See, e.g., Wilson, 839 F.2d 375, 378.
With regard to the portion of the Complaint pertaining to the USMS, the court notes that the USMS is a federal agency, thus, the claim is effectually against the United States of America. Again, the court construes the Complaint to allege a Bivens -type claim against the United States. Further, since the Federal Tort Claims Act ("FTCA") is the exclusive remedy for money damages against the United States for the wrongful acts or omissions of a federal employee while that employee acted within his scope of employment, 28 U.S.C. § 2679(b)(1), the court construes the Complaint against the United States to seek injunctive relief pursuant to Bivens, and damages under the FTCA.
Prior to discussing Defendants' contentions, the court acknowledges that Plaintiff has yet to comply with Local Rule 12(N) The procedural defects could warrant dismissal. Nevertheless, the court opts to address the issues raised by Defendants' motion. Henderson v. Harris, 672 F. Supp. 1054, 1057 (N. D. Ill. 1987) (disregarding the failures of a pro se litigant to abide by the Local Rules, and addressing the merits of the case instead).
Defendants cite several reasons to support their motion for judgment as a matter of law, including a purported lack of personal jurisdiction, Neville's failure to exhaust administrative remedies, a lack of sufficient facts to support Neville's Bivens claim, qualified immunity, and sovereign immunity of the federal government. Since the court finds that Neville failed to properly serve certain parties, and that the facts do not support the allegations in Neville's Complaint, the court need not address the latter two issues.
The court will first determine whether it has personal jurisdiction over the Defendants. With regard to the individual Defendants, True, Lopez and Alston, Federal Rule of Civil Procedure 4 requires service of process, including the summons and Complaint, upon each of them. Fed. R. Civ. P. 4(c)(2)(C), (d)(1) & (e). The court file and Docket show that, although Alston and True have been properly and effectively served, Lopez has yet to receive service. Without satisfaction of this procedural requirement, the court is without personal jurisdiction over Defendant Lopez. Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 98 L. Ed. 2d 415, 108 S. Ct. 404 (1987). Therefore, the court must dismiss any and all claims against Lopez, as mandated by Rules 12(b)(2), (4) & (5) of the Federal Rules of Civil Procedure.
With regard to jurisdiction over the United States, against which Neville seeks injunctive relief, the law requires that notice of this action, including copies of the summons and Complaint, be served upon the "United States attorney for the district in which the action is brought . . . [and] to the Attorney General of the United States at Washington, District of Columbia . . . ." Fed. R. Civ. P. 4(d)(4). Neville did not do so and his failure to comply with the Federal Rule is fatal. Accordingly, the court is without jurisdiction over the United States.
The only remaining Defendants to this action are True and Alston. Therefore, the only relief the law allows Neville to seek against True and Alston is for monetary damages.
Defendants' second argument in support of their motion is that Neville failed to exhaust the administrative remedies set forth in 29 C.F.R. Part 542 (1991), which include the general "Administrative Remedy Procedure for Inmates" assigned to federal correctional facilities. McCarthy v. Madigan, 503 U.S. 140, 142, 117 L. Ed. 2d 291, 112 S. Ct. 1081 (1992).
However, this argument is without merit. The Supreme Court has already disposed of such an argument. A prisoner who seeks only money damages is not required to exhaust administrative remedies provide by the Bureau of Prisons' grievance procedure since monetary relief can neither be sought nor provided by such grievances. Id. at 155. Therefore, since the portion of Neville's claim that involves injunctive relief has been eliminated, Neville now seeks only damages, and is not barred from suing in federal court by his failure to exhaust administrative remedies.
The court next addresses the merits of Neville's Bivens -type claim against Alston and True. As previously discussed, the Supreme Court recognizes a claim against individual federal officials for the deprivation of right secured by the Eighth Amendment, the right of an inmate to be free from cruel and unusual punishment.
Carlson, 446 U.S. at 25. This right is violated when a prison official or member of the prison medical staff exhibits deliberate indifference to an inmate's serious medical needs, thus resulting in injury. Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). A pretrial detainee is afforded the same constitutional right to be free from cruel and unusual punishment as is a convicted inmate. Murphy v. Walker, 51 F.3d 714 (7th Cir. 1995). Thus, the court's inquiry is three-fold: (1) whether serious medical needs exist; (2) whether True and Alston exhibited deliberate indifferent to Neville's serious medical needs; and (3) whether the deliberate denial of essential care resulted in actual harm. Id.; Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir. 1980).
First, a serious medical need is "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a layperson would easily recognize the necessity for a doctor's attention." Monmouth County Correction Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Moreover, a serious medical need exists where the denial or delay of medical treatment results in "unnecessary and wanton infliction of pain." Id. The court finds that Neville had, and continues to have, many serious needs. Neville has a heart condition, a pacemaker, and poor circulation. The poor circulation causes a skin condition that continues to plague Neville. Therefore, the first part of the inquiry is satisfied.
Second, deliberate indifference is defined as "recklessness" in the criminal sense. Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1980 (1994). To act deliberately indifferent to a plaintiff's medical needs, a defendant must have "acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 1981. Deliberate indifference occurs when a defendant intentionally denies or delays access to medical care, or if the defendant intentionally interferes with a prescribed treatment. Kerney v. Chicago Police Officers, 1995 U.S. Dist. LEXIS 11733, No. 93 C 7081, 1995 WL 493442, at *2 (N.D. Ill. Aug. 16, 1995). The indifference to medical needs must be substantial; "neither an inadvertent failure to provide medical care nor negligence in treating a medical condition amount to Eighth Amendment violations." Kelubai v. Wright, 1995 U.S. Dist. LEXIS 11406, No. 94 CV 0305 AS, 1995 WL 477740, at *3 (N.D. Ind. Aug. 7, 1995) (citing Estelle v. Gamble, 429 U.S. 97, 106-07, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)). "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 104; Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir. 1991).
The record demonstrates that True and Alston were not deliberately indifferent to Neville's serious medical needs. With regard to Alston, the record shows that contrary to Neville's allegations, Alston provided competent medical treatment and that she, as did the entire MCC medical staff, gave Neville the necessary medical attention. Alston, the MCC Clinical Director, scheduled a great number of appointments with "outside doctors" at three different hospitals to compliment and supplement the treatment administered to Neville at the MCC. The only time Alston had the opportunity to personally treat Neville, Alston did so; she administered oxygen and bandaged Neville's wrist. In fact, Alston did much more than the bare minimum. The record shows that on June 19, 1992, Alston ordered the MCC staff to provide Neville with an extra pillow and fan for Neville's room "for medical reasons" for one year. Alston also prescribed a cane to Neville for ambulation. Alston counseled Neville to undergo pacemaker surgery, but Neville repeatedly refused. Neville did not receive the pacemaker until well after he filed this Complaint. Moreover, facts exist to show that Neville himself caused certain injuries to his legs, and hindered treatment and proper healing of his leg injuries by unwrapping the bandages and re-opening the healing wounds.
In sum, the court finds that Alston, and her staff, met every legal duty owed to Neville; thus, the actions of Alston were not tantamount to medical malpractice or simple negligence, and certainly do not rise to the level of deliberate indifference to Neville's medical needs. Even when viewed under a light most favorable to Neville, the facts do not show that Alston violated Neville's Eighth Amendment rights. Accordingly, the court enters judgment in favor of Alston and against Neville.
With regard to True, the record is devoid of any facts to show that True was involved in any negligent wrongdoing, let alone intentional deprivation of Neville's Eighth Amendment rights. True is not mentioned by name in any of Neville's allegations. True is not responsible for the day-to-day management of any department within the MCC; rather, his duty is to delegate such responsibilities to the appropriate associate warden or department head. A defendant cannot be held liable by virtue of his employment or supervision of individuals who are alleged to have engaged in unconstitutional conduct. Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976). Neville never made any oral or written complaint to True, and True at no time had any personal contact with Neville. Neville must show that True was personally involved in the alleged violations of his rights. Rascon v. Hardiman, 803 F.2d 269 (7th Cir.) Therefore, the court finds that True has met his burden in demonstrating that there is an absence of evidence to support Neville's position. The court, accordingly, disposes of the factually unsupported claim against True by granting summary judgment in favor of True and against Neville.
For the foregoing reasons, the motion for summary judgment is granted in favor of True and Alston and against Neville. Due to improper service and a lack of personal jurisdiction, the court dismisses all allegations pertaining to Lopez and the United States. Because plaintiff is indigent the court will not impose any costs or fees against him.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court