United States District Court, S.D. Illinois
August 2, 2005.
ANDRE J. TWITTY, Plaintiffs,
E.A. STEPP, et al., Defendants.
The opinion of the court was delivered by: PHILIP FRAZIER, Magistrate Judge
REPORT AND RECOMMENDATION
Before the Court are motions to dismiss or for summary judgment
and/or judgment as a matter of law (Doc. Nos. 21, 35, 40, 44).
Also submitted is a sua sponte recommendation that plaintiff's
claims against a deceased defendant be dismissed.
Plaintiff filed this Bivens action challenging the conditions
of his confinement at USP-Marion. Specifically, he claims that
defendants Stepp, Bakke, Lee, Carids, Hershberger, Conner,
Nitchols, Tharp, Oxford, Bezy, and Miller violated his Eighth
Amendment right to be free from cruel and unusual punishment by
refusing to provide medical treatment for his painful inguinal
hernia and that defendant Conner violated his First Amendment
right to seek redress of grievances by retaliating when
grievances were filed at USP-Marion and USP-Leavenworth (Doc. No.
Claims against defendant N.L. Conner
The death of defendant Conner was suggested on the record on
January 31, 2005 (Doc. No. 28). Pursuant to Rule 25 of the
Federal Rules of Civil Procedure, a motion for substitution was
due within 90 days. Fed.R.Civ.P. 25(a)(1). Because a motion
for substitution was not filed, plaintiff's claims against
defendant N.L. Conner should be dismissed at this time.
Eighth Amendment Claim
Defendants Bakke, Bezy, Hershberger, Miller, Tharp, Oxford,
Step, Nitchols, and Lee challenge the sufficiency of plaintiff's
Eighth Amendment Claim pursuant to Rule 12(b) and seek judgment
in their favor pursuant to Rule 56 of the Federal Rules of Civil
Procedure (Doc. Nos. 21, 35). Plaintiff opposes some of
defendants' arguments and seeks judgment in his favor as a matter
of law (Doc. Nos. 24, 40, 41, 49).
I. Personal Jurisdiction. Defendants challenge this Court's
exercise of personal jurisdiction. They claim that the Court
lacks authority to resolve a dispute regarding conduct performed
in Kansas because no allegations suggest that they reside in or
have minimum contacts within the State of Illinois. Plaintiff
opposes the motion made by defendants Bezy, Hershberger, Miller
and Tharp on the basis that he alleges a conspiracy. As to
defendant Nitchols, he argues that there is no statutory
restriction on this Court's authority to evaluate events in
Kansas (Doc. Nos. 24, 41).
Defendants' jurisdictional argument is evaluated pursuant to
Rule 12(b)(2) of the Federal Rules of Civil Procedure. Once a
defendant moves to dismiss for lack of personal jurisdiction, the
plaintiff bears the burden of demonstrating the existence of
personal jurisdiction. In Purdue Research Foundation v.
Sanofi-Synthelabo, S.A., 338 F.3d 773, 781-82 (7th Cir. 2003),
the Court of Appeals summarized the familiar principals of
personal jurisdiction as follows:
In any given case, there must be some showing that
the defendant purposefully availed [himself] of the
privilege of conducting activities within the forum
state. . . . This requirement ensures that a
defendant's amenability to jurisdiction is not based
on fortuitous contacts, but on contacts that
demonstrate a real relationship with the state with
respect to the transaction at issue. See Burger
King, 471 U.S. at 475. . . . To this end, the
Supreme Court repeatedly has asked whether the
defendant has deliberately engaged in significant
activities within the forum state.
Purdue Research Foundation v. Sanofi-Synthelabo, S.A.,
338 F.3d at 780-81. Because plaintiff has not shown that defendants Bezy,
Hershberger, Miller, Tharp, or Nitchols conducted activities in
Illinois, he has not made a prima facie case of personal
jurisdiction. Plaintiff's Eighth Amendment claims against
defendants Bezy, Hershberger, Miller, Tharp and Nitchols should
be dismissed for lack of personal jurisdiction.
II. Venue. In the absence of personal jurisdiction, the
improper venue argument is not addressed.
III. Plaintiff's pauperis status. Defendants Bakke, Stepp,
Oxford, and Lee challenge plaintiff's right to proceed in forma
pauperis. Because improper filing status is not a defense that
can be resolved pursuant to Rule 12, this argument is CONSTRUED
as a motion to reconsider Judge Herndon's December 10, 2003,
Order, finding that plaintiff was entitled to proceed under
28 U.S.C. § 1915(g). At that time, the Court decided that
plaintiff's allegations were adequate to show that he was in
imminent danger of serious harm at the time of the events alleged
(Doc. No. 3). The defendants suggest that the Court should have
resolved the "imminent danger of serious harm" issue based on
plaintiff's condition at the time he filed his pleading, rather
than at the time of the events alleged in that pleading.
Plaintiff believes his allegations regarding hernia pain are
sufficient. He also relates symptoms attributed to an injury
suffered during his confinement in Connecticut (Doc. Nos. 25, 41,
In granting pauperis status, the Court reviewed allegations
that plaintiff suffered pain for the period between March 12 and
October 24, 2003. On the later date, emergency surgery was
performed by Dr. DeMattei. Plaintiff's pleading does not suggest
that he was in imminent danger of serious harm when his pleading
was filed (Doc. Nos. 1, 11).
A district court has considerable discretion to reconsider an
earlier order. Cameo Convalescent Center, Inc. v. Percy,
800 F.2d 108, 110 (7th Cir. 1986) ("The district court has the
discretion to make a different determination of any matters that
have not been taken to judgment or determined on appeal). Because recent cases clarify that the
exception to § 1915(g)'s three strikes rule targets genuine
emergencies, the Court should evaluate the danger faced by
plaintiff at the time he filed his pleading. Heimermann v.
Litscher, 337 F.3d 781 (7th Cir. 2003); Ciarpaglini v. Saini,
352 F.3d 328 (7th Cir. 2003). Because plaintiff's Eighth
Amendment claim is premised on events preceding hernia repair
surgery performed on October 24, 2003, the allegations do not
logically permit an inference that plaintiff faced an imminent
danger of serious harm when he filed his Complaint on November
21, 2003. The December 10, 2003 Order should be reconsidered.
Plaintiff's pauperis status should be revoked and he should be
directed to pay the $150.00 filing fee within 30 days.
IV. Sufficiency of Plaintiff's Eighth Amendment Claim.
Defendants Bakke, Stepp, Oxford, and Lee challenge the
sufficiency of the Complaint, arguing that plaintiff has not
alleged that they were involved in decisions regarding his
The first step in evaluating the sufficiency of a pleading is
to give pro se allegations a liberal interpretation, accept as
true all well-pleaded facts, and draw all inferences in favor of
the plaintiff. If, so viewed, the allegations put the defendants
on notice that plaintiff is asserting an Eighth Amendment claim,
and his allegations do not rule out the possibility that the
defendants violated the applicable legal standard, the pleading
cannot be dismissed. That is, dismissal is proper only if it is
"beyond doubt" that plaintiff could prove no set facts consistent
with his complaint that would entitle him to relief. Nance v.
Vieregge, 147 F.3d 589, 590 (7th Cir. 1998). Plaintiff argues
that his pleading is adequate to put these defendants on notice
that he is asserting an Eighth Amendment claim based on
insufficient medical care.
The Court agrees with plaintiff that his pleadings are
sufficient to survive a Rule 12(b)(6) challenge. Plaintiff has
provided enough information to place these defendants on notice
that plaintiff is asserting an Eighth Amendment claim regarding
inadequate medical care. V. Exhaustion of Administrative Remedies. Defendants Bakke,
Stepp, Oxford and Lee also argue that plaintiff filed this action
in violation of 42 U.S.C. § 1997e(a), which makes exhaustion of
administrative remedies a precondition to suit. Plaintiff alleges
that he filed grievances pursuant to the Bureau of Prisons'
administrative remedy procedure and that all grievances were
denied (Doc. No. 1, p. 3). As defendants point out, plaintiff's
exhibits show that grievances and appeals regarding his medical
treatment between March 12 and October 24, 2003, were not
considered on the merits. Rather, they were rejected on the basis
of procedural defects. Plaintiff argues that exhaustion is
complete because he filed the required forms and gave prison
authorities an opportunity to address his complaints before he
filed suit (Doc. No. 41, p. 12, 49).
In order to exhaust administrative remedies, a prisoner must
take all steps prescribed by the prison's grievance system. See
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002); Strong v.
David, 297 F.3d 646 (7th Cir. 2002). Federal prisoners must
provide requested information, state the nature of their
complaint, include supporting exhibits, and state the reason for
appeal, accompanied by institutional and regional filings.
28 C.F.R. § 542.14, 542.15. Plaintiff's administrative remedy
appeals were rejected because he failed to comply with these
requirements (Doc. No. 41, pp. 12-17); 28 C.F.R. §§ 542.13,
542.14, 542.15. Because the record does not permit a finding that
plaintiff exhausted his administrative remedies before he filed
this action, the Eighth Amendment claim against defendants Bakke,
Stepp, Oxford, and Lee should be dismissed without prejudice.
VI. Judgment as a Matter of Law. Plaintiff seeks judgment as
a matter of law, claiming that the evidence shows that the
defendants knew that he had a serious medical need and stood by
and did nothing. The motion is moot as to defendant Conner,
deceased, and is premature as to defendant Carids, who has not
yet been served with process. The motion is also moot as to
defendants Bakke, Bezy, Hershberger, Miller, Tharp, Oxford, Step,
and Nitchols, all of whom have asserted valid defenses which are properly resolved before the
Court reaches the merits of plaintiff's claims. Employers
Reinsurance Corp. v. Bryant, 299 U.S. 374, 382 (1937); Perez v.
Wisconsin Dept. of Corrections, 182 F.3d 532, 536 (7th Cir.
IT IS RECOMMENDED that plaintiff's claims against deceased
defendant Conner be DISMISSED.
IT IS FURTHER RECOMMENDED that plaintiff's pauperis status be
REVOKED and that plaintiff be directed to pay the filing fee
within 30 days.
IT IS FURTHER RECOMMENDED that defendants' motions to dismiss
or for summary judgment (Doc. Nos. 21, 35, 44) be GRANTED in part
and DENIED in part, as follows:
(1). Plaintiff's claims against defendants Bezy,
Hershberger, Miller, Tharp and Nitchols should be
DISMISSED without prejudice for lack of personal
(2). Plaintiff's claims against defendants Bakke,
Stepp, Oxford, and Lee should be DISMISSED without
prejudice for failure to exhaust administrative
IT IS FURTHER RECOMMENDED that plaintiff's motion for judgment
as a matter of law (Doc. No. 40) be DENIED.
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