intent shows that the CSRA, rather than a Bivens remedy, is the
appropriate remedial channel for employment grievances such as
those alleged by Dr. Otten in this case. Therefore, it is
argued, resort to a Bivens remedy is inappropriate.
The Supreme Court has determined that Courts may not always
fashion a remedy for constitutional claims; instead, the Court
has deferred to the legislature to fashion appropriate remedies
for constitutional violations. See e.g., Bush v. Lucas,
462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). This hesitancy
has sometimes been justified on separation of powers grounds,
but it has also been noted that if the Court is to perform its
functional role as protector of the Constitution, then Courts
should sometimes be able to fashion remedies for Constitutional
violations. See 68 S.Cal.L.Rev. 289, 316 (1995).
Nonetheless, following Supreme Court precedent, the Seventh
Circuit has concluded that when Congress sets out a meaningful
remedial scheme, courts may not supplement that scheme with a
Bivens action. See Feit v. Ward 886 F.2d 848, 853-855 (7th Cir.
1989); Moon v. Phillips, 854 F.2d 147 (7th Cir. 1988). Nor
should the courts allow a Bivens action to go forward when
there are "special factors" counseling hesitation. Carlson v.
Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). A
particular remedial scheme may constitute a "special factor"
under this analytical scheme. See Schweiker v. Chilicky,
487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (noting that
even if a remedial scheme did not afford "complete relief" it
may nonetheless preclude a Bivens action).
In Feit, plaintiff, who was employed by the Forest Service,
brought a Bivens action after he was terminated for his
participation in a protest. The Seventh Circuit held that the
remedial scheme provided by the Civil Service Reform Act
("CSRA") was sufficiently comprehensive to preclude resort to a
Bivens action for damages. Since Feit was a seasonal employee,
the remedies included an opportunity to file a complaint with
the Office of Special Counsel ("OSC"), after which the Special
Counsel is authorized to investigate the charges or direct the
head of the agency to do the investigation. See
5 U.S.C. § 1206(b)(3)(A); Feit at 852. The OSC may recommend corrective
action to the agency and may ultimately force compliance by
filing an action with the Merit Systems Protection Board
Similarly, in Moon, a former employee of the IRS claimed that
he was harassed by supervisors in violation of his First
Amendment light of freedom of speech. Plaintiff sought damages,
attorney's fees and costs. The Seventh Circuit held that Moon
had to resort to the remedies available in the Merit Systems
Protection Board ("MSPB"). One of the remedies included in the
scheme was judicial review of the administrative decision. See
Moon at 152; See also Paige v. Cisneros, 91 F.3d 40, 44 (7th
Cir. 1996) (noting that consolidation of CSRA and creation of
MSPB to deal with federal employee disputes "strengthens the
conclusion that Bivens remedies have no place in individual
personnel disputes arising out of federal employment.").
In this case, Dr. Otten claims that he was fired for speaking
out about the treatment of prisoners, and that this termination
constituted retaliation in violation of the First Amendment. He
also seems to claim that he had an Eighth Amendment right to
avoid violations of the inmates' Eighth Amendment rights, and
that this light was violated.*fn5 The authorities cited above
would give ample reason to require Dr. Otten to resort to his
remedies available in the CSRA, but one additional issue must
be decided before reaching that conclusion.
Though there is broad agreement that a money damages claim
would not be allowed in the circumstances presented here, the
courts are split on the issue of whether a claim for equitable
relief should be denied as well. Some courts reason that the
CSRA does not take away the traditional power of the courts to
hear claims for equitable relief. See Spagnola v. Mathis,
859 F.2d 223 (D.C. Cir. 1988); Mitchum v. Hurt, 73 F.3d 30 (3d.
Cir. 1995). Other courts focus on structural
concerns for separation of powers and conclude that Congress'
clear intent in the CSRA was to mandate that the CSRA was to be
the exclusive vehicle for federal employee claims related to
federal employment. See, e.g. Lombardi v. Small Bus. Admin.,
889 F.2d 959, 962 (10th Cir. 1989); Stephens v. Department of
Health & Human Services, 901 F.2d 1571, 1576 (11th Cir. 1990);
Also see Paige v. Cisneros, 91 F.3d 40, 44 (7th Cir. 1996)
(collecting cases, but not reaching a decision on the issue).
The parties in this case, however, do not acknowledge this
division on the issue of whether equitable claims are barred
under Bush and subsequent cases. In fact, Dr. Otten simply
acknowledges in his brief that his claims for individual relief
arising out of his employment must be dismissed pursuant to
Bush v. Lucas. (P1. Brief at p. 7). Even if Dr. Otten had not
conceded the issue, however, the Court finds that the principle
of separation of powers and proper deference to congressional
intent, shown by the comprehensive remedies of the CSRA, both
weigh in favor of the conclusion that a claim for equitable
relief will not allow a plaintiff to bypass the CSRA and bring
his claim instead in federal court.*fn6
Defendants also argue that Dr. Otten lacks standing.
Constitutional standing analysis consists of several
overlapping but analytically distinct threads: injury,
causation, and redressability. See, e.g. Northeastern Florida
Contractors v. Jacksonville, 508 U.S. 656, 113 S.Ct. 2297,
2302, 124 L.Ed.2d 586 (1993). Defendant is not careful to
distinguish the various aspects of standing that Dr. Otten
lacks, but it seems that they primarily attack the idea that
the relief requested would redress the injuries he sustained.
Defendant asserts that since Dr. Otten is no longer employed at
Pekin, any change in the policies or practices at Pekin would
not affect him. Dr. Otten asserts, on the other hand, that a
physician has standing to assert the constitutional rights of
When a defendant challenges standing via a motion to dismiss,
the trial courts "must accept as true all material allegations
of the complaint and must draw all reasonable inferences
therefrom in favor of the plaintiff." Retired Chicago Police
Assoc. v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996)
(citing Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45
L.Ed.2d 343, (1975); Capitol Leasing Co. v. FDIC, 999 F.2d 188,
191 (7th Cir. 1993)).
Dr. Otten argues that a physician has standing to assert the
Constitutional rights of his patients. See Warth, 422 U.S. at
508-10, 95 S.Ct. 2197; Singleton v. Wulff, 428 U.S. 106,
117-18, 96 S.Ct. 2868, 49 L.Ed.2d 826 (physicians permitted to
assert patients' right to abortion where privacy considerations
and imminent mootness of claim would prevent women themselves
from asserting right). In Singleton, the Court noted that the
physician is intimately involved with the patient's abortion
decision. The Court also emphasized that the doctrine of
imminent mootness and the need to protect the privacy of women
seeking abortions worked in favor of allowing third party
However, in a case very similar to the instant one, a
district court refused to allow a physician standing to assert
the Eighth Amendment rights of prison inmate-patients.
Carlen v. Dept of Health Serv., 912 F. Supp. 35, 41-42 (E.D.N Y
1996). In that case, a physician wished to assert the Eighth
Amendment rights of the inmates to receive proper medical care.
The court in Carlen found that the inmate-patients could assert
their own rights without serious difficulty. Cases such as
Carlen recognize that abortion is a very special context and
that third party standing should not be extended to all cases
where a physician seeks to assert some constitutional violation
that the patients could bring themselves.
Here, Plaintiff Otten asserts that the patients face
obstacles to the assertion of their rights. But the only
identified obstacles are the speculative possibility of
mootness, the possibility that the Pekin administrators will
simply revert to their former practices, and the risk of jury
hostility to inmates. But
none of these concerns, even if proven, make this case unusual,
and certainly do not make this case similar to the abortion
cases cited above. These asserted obstacles are insufficient,
as a matter of law, to allow Dr. Otten to assert the rights of
the prisoners in this case.
In addition, Dr. Otten himself has been terminated from his
employment and will thus not benefit from the injunctive and
declaratory relief he requests for the alleged Eighth Amendment
violations. Though he requests reinstatement for the First
Amendment violations, the Court has already determined that he
may not maintain that action because he must instead use the
remedial scheme provided in the CSRA. The only remaining relief
in the amended complaint is the request for
injunctive/declaratory remedies.*fn7 Thus, because his
injuries will not be redressed by the injunctive/declaratory
relief requested and because he lacks third party standing to
assert the rights of the inmates, the Court concludes that Dr.
Otten lacks standing to pursue his claims in this case.
C. Rule 56(f) Motion
Mr. Massey also has filed a motion styled "Rule 56(f) Motion
to Deny Defendants' Application for Summary Judgment Asserted
in Their Motion to Dismiss or Alternatively, to Conduct Hearing
on the Application To Allow Plaintiff to Conduct Discovery." In
this motion, he notes that Defendant's Motion to Dismiss
included an affidavit from Ms. Deborah Hickey, Executive
Assistant to the Warden of the Federal Correctional Institution
in Pekin. This affidavit set out her statement that she was the
coordinator of Administrative Remedies at Pekin and that
Plaintiff had not requested any injunctive relief and had not
exhausted the BOP's remedial procedure as set out in 28 C.F.R.
§ 542.10 et seq.
Mr. Massey contends that this affidavit has transformed the
Motion to Dismiss into a Motion for Summary Judgment.
Specifically, Mr. Massey asserts that the inclusion of the
affidavit converts a Rule 12(b)(6) motion into a Motion for
Summary Judgment. He believes that the Court must now provide
for more discovery so that Plaintiff may properly respond to
the motion to dismiss, now converted into a motion for summary
judgment. Mr. Massey particularly wishes to propound
interrogatories in order to determine the adequacy of the
remedy available to him. Plaintiff further asserts that he
needs more discovery to determine which party has the burden to
prove the existence of administrative remedies.
Defendants' Motion to Dismiss was not denominated as a Rule
12(b)(6) motion. Defendants clearly indicated that the motion
to dismiss Mr. Massey's claims was brought as a motion to
dismiss for lack of exhaustion. At any rate, it is clear that
the plaintiff should allege some facts sufficient to infer that
he has met the exhaustion requirement in the PLRA. The
sufficiency of the allegations may be decided without engaging
in a factual inquiry.
Here, Plaintiff has had ample opportunity to read the
relevant regulations. See 28 C.F.R. § 542.10 et seq. He has not
alleged that he has exhausted his administrative remedies, nor
has he even asserted or implied that he has begun the
administrative review process. The existence of the
administrative remedies is clear from 28 C.F.R. § 542.10 et
seq. Instead, Plaintiff seeks to conduct a broad based inquiry
into the effectiveness of the remedies provided at Pekin.
However, that inquiry, as noted in the discussion above, is not
relevant. It is the existence, rather than the ultimate
effectiveness, of the remedial procedures that is relevant.
Thus, the Rule 56(f) Motion is DENIED.
C. Motion to Amend
Plaintiffs have filed a motion to amend the fourth amended
complaint in order to delete the injunctive damages claim
asserted by Plaintiff Massey and assert a claim for damages.
Plaintiffs also seek to amend their complaint after they have
conducted further discovery.
However, "the court should not allow the plaintiff to amend
his complaint when to do so would be futile." Moore v. Indiana,
999 F.2d 1125, 1128 (7th Cir. 1993) (citing Villa v. City of
Chicago, 924 F.2d 629, 632 (7th Cir. 1991)) (citing Foman v.
Davis, 371 U.S. 178, 183, 83 S.Ct. 227, 9 L.Ed.2d 222(1962) and
Williams v. United States Postal Service, 873 F.2d 1069, 1072
(7th Cir. 1989)).
In light of the dismissal of both Counts of the Complaint,
the proposed amendment will not cure the defects in the
complaint. Even if a money damages claim were added, the
exhaustion requirement would still apply, as already indicated.
Thus, the Motion for Leave to Amend is denied.
Mr. Massey's claims must be dismissed because he has failed
to allege that he has filed or exhausted any sort of
administrative grievance or availed himself of any
administrative procedures as required by the PLRA. Thus, his
claim in this Court must be dismissed.
Also, Dr. Otten may not bring his Bivens claims arising out
of his employment due to the comprehensive remedial scheme
provided by Congress for those claims. In addition, Dr. Otten
lacks standing to pursue his claims.
Ergo, Defendants' Motion to Dismiss is ALLOWED. Count I is
dismissed without prejudice for failure to allege exhaustation
of administrative remedies. Count II is dismissed for lack of
jurisdiction and lack of standing.
Plaintiff's Rule 56(f) Motion is DENIED. Plaintiffs Motion
for Leave to Amend is DENIED. The pending motion to compel is
DENIED AS MOOT.