The opinion of the court was delivered by: J. Phil Gilbert U. S. District Judge
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 74) of Magistrate Judge Clifford J. Proud recommending that the Courtgrant in part and deny in part the motion to dismiss or, in the alternative, for summary judgment filed by defendants Alberto Pimentel, John J. Feeney and Darryl Lockrige*fn1 (Doc. 46). The Report also recommends construing the June 11, 2007, filing (Doc. 49) by plaintiff Jimmie Gholson ("Gholson") not as a motion but as a response to the defendants' motion.
I. Report and Recommendation Review Standard
After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The events alleged in this case began when Gholson, a prisoner in custody of the Bureau of Prisons ("BOP"), was housed in the United States Penitentiary in Pollock, Louisiana. Defendants Pimentel and Feeney worked at that facility. In Count 1, Gholson alleges that in June 2003 those defendants violated his First Amendment rights by retaliating against him for discussing with another inmate a BOP memorandum regarding a gang-related incident. Gholson was then transferred to an Immigration and Naturalization ("INS") facility in Oakdale, Louisiana, and than to the United States Penitentiary in Marion, Illinois, where defendant Lockrige was employed. At that facility, Gholson states he was denied medical treatment in violation of his Eighth Amendment rights (Count 2).
III. The Report and Objection
The Report found that this Court has no personal jurisdiction over Pimentel and Feeney because their lack of minimum contacts with Illinois would render the exercise of jurisdiction over them incompatible with traditional notions of fair play and substantial justice, International Shoe Co. v. Washington, 326 U.S. 310 (1945), and because they are not amenable to service of process under Federal Rule of Civil Procedure 4(k)(1). The Report further found that there is evidence from which a reasonable fact-finder could conclude Gholson exhausted his administrative remedies as to Count 1. The Report therefore recommends dismissal of Count 1 against Pimentel and Feeney for lack of jurisdiction.
Gholson objects to the Report (Doc. .76), arguing that so long as Pimentel and Feeney violated a federal constitutional right and are subject to any state's jurisdiction, they should be subject to the jurisdiction of any district court. The Court reviews the matter de novo.
In a federal question jurisdiction case, to establish personal jurisdiction over a defendant, a plaintiff must show that (1) the Court's exercise of jurisdiction over the defendant comports with the Due Process Clause of the Fifth Amendment and (2) that the defendant is amenable to service of process. Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).
It is true that there has been some dispute whether the Fifth Amendment's due process clause requires a defendant to have contacts with the nation as a whole or with the specific state encompassing the district court seeking to exercise jurisdiction over him. When examining Fifth Amendment due process rights, some courts apply a relaxed version of the Fourteenth Amendment "minimum contacts" due process test announced in International Shoe Co. v. Washington, 326 U.S. 310 (1945), and require that exercise of personal jurisdiction not offend "traditional notions of fair play and substantial justice." 4 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1068.1 (2007) (citing Willingway Hosp., Inc. v. Blue Cross & Blue Shield of Ohio, 870 F. Supp. 1102 (S.D. Ga. 1994)). Other courts have only required sufficient minimum contacts with the United States as a whole to satisfy Fifth Amendment due process, leaving the adequacy of contacts with the particular forum state to be addressed as a venue or transfer question. See United Rope Distribs., Inc. v. Seatriumph Marine Corp., 930 F.2d 532, 534 (7th Cir. 1991); ISI Int'l, Inc. v. Borden Ladner Gervais, LLP, 256 F.3d 548, 551 (7th Cir. 2001). In this case, resolution of the exact scope of Fifth Amendment due process rights is not necessary because Pimentel and Feeney are clearly not amenable to service of process under Federal Rule of Civil Procedure 4(k).
Federal Rule of Civil Procedure 4(k) governs whether a defendant is amenable to service of process by a ...