The opinion of the court was delivered by: Richard Mills, District Judge.
A prisoner and a prison doctor join together to bring this
Plaintiff John Otten was a physician who worked at the Pekin
Facility until he was discharged in February 1998. He alleges
that he was discharged in furtherance of the unconstitutional
policy of depriving inmates of their Eighth Amendment right to
medical care and their First Amendment right of access to the
courts. In addition, he claims a deprivation of his own First
Amendment right to speak on matters of public concern.
II. PROCEDURAL BACKGROUND
The parties have filed a plethora of motions in this
case*fn2, and few of the memoranda in support of those motions
have been especially helpful to the Court in terms of clear
argument or complete inclusion of relevant authorities. In
fact, in one of the representative types of pleadings before
the Court, Plaintiff*fn3 Massey filed a motion to discuss
additional authority in which was mentioned several cases that
supported contentions in one of his earlier motions. However,
he completely omitted discussion of other cases, such as the
Eleventh Circuit case of Alexander v. Hawk, 159 F.3d 1321 (11th
Cir. 1998) that directly undermines his contentions. The
Alexander case was decided more than a month before Plaintiff's
motion was filed. This sort of selective presentation of
authority is more than a little deceptive and is strongly
discouraged by the Court.
Defendants have filed a motion to dismiss the complaint. The
grounds for this motion are (1) that Mr. Massey is required to
exhaust his administrative remedy before filing an action in
this Court, (2) that the Court lacks jurisdiction over Dr.
Otten's claims, and (3) that Dr. Otten lacks standing to bring
Plaintiffs filed their responses in two lengthy and
overlapping memoranda. Their argument, in summary, is that
exhaustion is not required as to Mr. Massey and that Dr.
Otten's claims are not barred by any lack of jurisdiction or
Perhaps on the theory that more is preferable to less, Mr.
Massey also has filed a motion styled "Rule 56 Motion to Deny
Defendants Application for Summary Judgment." In this motion,
Mr. Massey asserts that Defendants have converted their motion
to dismiss into a motion for summary judgment by including an
affidavit with the motion to dismiss. Thus, he concludes, there
must be additional discovery on the contested issues of fact
and he must be given a further opportunity to respond. In
addition, Plaintiffs have filed a motion for leave to amend his
fourth amended complaint and a motion to compel.
A. MOTION TO DISMISS COUNT I
Defendants, in their motion to dismiss count I, contend that
Mr. Massey has failed to exhaust his administrative remedies as
a prerequisite to bringing this action in federal court.
Defendants argue that since he has not satisfied this
requirement, the action must be dismissed.
This exhaustion requirement is set out in the Prison
Litigation Reform Act ("PLRA"), codified at 42 U.S.C. § 1997e(a):
Plaintiff contends that there is no requirement of
administrative exhaustion in this case because there is no
administrative remedy "available" in this case. Mr. Massey's
contention is that he could not have received the relief he is
seeking in this case in any administrative proceedings
available to him at Pekin. Specifically, he argues that neither
money damages nor an alteration in the BOP's alleged policy
prohibiting surgical repair of hernias could be obtained via
the administrative remedy. Thus, he concludes that no
administrative remedy was "available" to him and that the PLRA
therefore does not bar this action in federal court.
On the other hand, the defendants argue that the term
"available" does not refer to the effectiveness of the
administrative remedy. They argue that because an
administrative remedy does exist for challenging prison
conditions at Pekin, and because Mr. Massey has failed to use
those procedures, he is barred from bringing this claim in this
Court. Thus, the resolution of this issue turns on whether the
term "available" means that the remedy sought in the lawsuit
must be obtainable via the administrative procedures, or,
instead, the term "available" means that there is some remedy
in place that the ...