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.
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 ...