The opinion of the court was delivered by: Harold A. Baker United States District Judge
Before the court are the plaintiff' motion for leave to file an amended complaint, d/e 31, the defendants' response, d/e 32, and the plaintiff's reply, d/e 35. Further, before the court are the defendants, Thomas Webster, Angel Ortiz, Charlito Reyes and Harris Hansen's summary judgment motion, d/e 22, and the plaintiff's response, d/e 27.
The plaintiff is advised that his complaint is subject to the screening required by 28 U.S.C. § 1915A(b). Pursuant to this statute, the Court must dismiss a complaint or any claim within a complaint which "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992).
However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no 'genuine' issue for trial." Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359 (7th Cir. 1988). A "metaphysical doubt" will not suffice. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Disputed facts are material only if they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, *247-248, 106 S.Ct. 2505, 2510 (1986).
In March 1996, the plaintiff was diagnosed with "degenerative joint disease/osteoarthritis of the spine" by Dr. Leon Grobler at the University of Iowa Hospital and Clinic. In December 1997, the plaintiff was diagnosed with "myofascial pain syndrome" by Dr. James Rochelle and Dr. C. A. Jackson at Alegent Health Mercy Hospital in Council Bluffs, Iowa. In January 1999, the plaintiff was placed on social security disability due to severe pain and medical conditions. described above. In June 1999, the plaintiff was diagnosed with "herniated/prolapsed disc" by Dr. Sandhya Saxena at Clarkson West Hospital, Omaha, Nebraska. Dr. Misa Hidaka, East County Community Clinic, El Cajon, California prescribed narcotic painkillers (vicodin) for the plaintiff's severe back pain caused by the medial conditions described above. The plaintiff's medical problems became worse and his pain increased over time. In September 2000, the plaintiff was arrested. (Apparently he has been incarcerated since his arrest.) The plaintiff claims he has not received the prescribed narcotic pain killers since the date of his arrest. In February 2001, the plaintiff reported his painful back conditions to the U. S. Probation Department and "said conditions were made part of the presentence investigation report (PSIR) filed in his criminal case." The PSIR was forwarded to the Federal Bureau of Prisons upon the plaintiff's commitment to the federal prison.
In June 2001, the plaintiff arrived at FCI in Pekin, Illinois, to serve his 120 month sentence. The plaintiff's chronic and severe painful back conditions were made known to the prison's officers, staff and employees when the plaintiff arrived at the prison. During the plaintiff's incarceration at FCI Pekin, the medical department staff has requested and received the plaintiff's medical records which verify his medical conditions. The defendants, Webster, Ortiz, Reyes and Hansen have personally examined the plaintiff and been made aware of the plaintiff's chronic and painful back condition through personal consultation with the plaintiff and by examining the plaintiff and his medical records. Further, the plaintiff claims that he has advised these defendants that the medicine prescribed for treatment of his back conditions do not adequately control the pain and as a result the plaintiff suffers severe pain daily.
On October 21, 2003, the plaintiff attended a medical appointment with P. A. Harris Hansen at FCI Pekin Health Services for treatment of his back condition and the lack of adequate treatment. Hansen informed the plaintiff that he agreed that the plaintiff's painful back condition warranted the administration of narcotic painkillers and muscle relaxors, but FCI Pekin's medical policy prohibited Hansen from prescribing those medications. The plaintiff claims that each of the defendants denied and/or continue to deny him any meaningful or effective medications, treatment and/or rehabilitation for his documented serious medical conditions. The plaintiff requests monetary damages and appropriate medical treatment.
The plaintiff's original complaint was received by the clerk of the court on June 14, 2004. The original complaint alleged solely a constitutional claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1972). The plaintiff asserted claims against individual defendants employed at the Federal Correctional Institution located in Pekin, Illinois. They are Thomas Webster and Angel Ortiz, both clinical directors, and Charlito Reyes and Harris Hansen, both Physician Assistants. The plaintiff claims these defendants violated his Eighth Amendment rights because they were deliberately indifferent to his serious medical condition by failing to give him adequate medical care. He claims the defendants failed to give him narcotic pain medication, adequate treatment and rehabilitation for his serious medical conditions. The plaintiff's complaint was filed on November 24, 2004.
On March 3, 2005, the defendants filed a motion to dismiss and/or for summary judgment, d/e 22, asserting as defenses: lack of proper service, a violation of the statute of limitations, and that plaintiff's allegations did not rise to the level of a constitutional violation. On April 5, 2005, the plaintiff responded to the defendants' motion to dismiss and/or for summary judgment, and the defendants replied on April 15, 2005. The motion is pending.
On May 11, 2005, the plaintiff filed a motion for leave to file an amended complain. On July 22, 2005, the court denied the plaintiff's motion because the docket reflected that the plaintiff had not submitted a proposed amended complaint. However, on September 22, 2005, the clerk of the court has brought to the court's attention that the clerk had inadvertently failed to reflect in the docket that the plaintiff had submitted a proposed amended complaint, along with his motion for leave to file an amended complaint. As a result, the Court vacated its July 22, 2005 order denying the plaintiff's motion for leave to amend his complaint, directed the clerk of the court to reinstate the plaintiff's motion and ordered defendants to file a response to the plaintiff's motion by October 7, 2005. The defendants timely complied with the court's order.
In his amended complaint, the plaintiff adds a claim under the Federal Tort Claim Act ("FTCA"), and also adds three additional defendants, Ferdinand Somalio, Health Services Administrator, Dr. Dalmasi, physician at FCI, and the United States of America. While the plaintiff continues to assert his Bivens claims, currently subject to the pending summary judgment motion, he adds a FTCA claim asserting negligence based upon the ...