United States District Court, C.D. Illinois
MERIT REVIEW ORDER
BILLY McDADE UNITED STATES DISTRICT JUDGE.
proceeding pro se, filed suit pursuant to the Federal Tort
Claims Act (“FTCA”) and Bivens v. Six Unknown
Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388 (1971). Plaintiff alleges medical negligence,
intentional infliction of emotional distress
(“IIED”), deliberate indifference to a serious
medical need, and a due process violation arising from the
Federal Correctional Institution in Pekin, Illinois
(FCI-Pekin). The case is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A. In reviewing the
Complaint, the Court accepts the factual allegations as true,
liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir.
2013). However, conclusory statements and labels are
insufficient. Enough facts must be provided to “state a
claim for relief that is plausible on its face.”
Alexander v. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted).
While the pleading standard does not require “detailed
factual allegations”, it requires “more than an
accusation.” Wilson v. Ryker, 451 Fed.Appx.
588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
has named the United States, the Federal Bureau of Prisons
(“BOP”), FCI-Pekin Clinical Director Dr. Scott
Moats, Dr. Jefferey Lee Ho and BOP Regional Counsel, Richard
Schott. His allegations are directed against Defendants in
both their official and individual capacities.
is a diabetic who allegedly developed blisters on his left
heel on an unspecified date. In August 2013, he requested a
soft shoe permit from Drs. Moats and Lee Ho and was refused.
In May 2015, Plaintiff was treated for an ulcer to the left
big toe which he claims is the result of his having to wear
boots rather than the soft shoes he had requested. Plaintiff
alleges that he was placed on antibiotics to treat the ulcer
and, while the ulcer began to heal, he developed an
unspecified “allergic reaction” to the
antibiotics. Plaintiff claims that the ulcer never completely
closed and in June and July 2015, Defendants placed him on
the same antibiotic to which he is allergic.
unspecified date, Plaintiff was transferred to a hospital
where he underwent an amputation of the big toe, not
identifying whether the left or the right. Plaintiff claims
that the doctors at the hospital confirmed that he was
allergic to the antibiotic given him at FCI-Pekin. Plaintiff
does not claim that he he suffered any ill effects due to the
antibiotic. His claim is that, had he been provided soft
shoes in 2013, he would not have had had his big toe
amputated. In January and February 2016, Plaintiff developed
an ulcer on the tip of his second toe. The Defendant
physicians allegedly treated him with the same objectionable
antibiotic before eventually changing it to the
“right” medication. Plaintiff alleges that he
subsequently underwent amputation of this toe as well.
Plaintiff subsequently developed an infection requiring
hospitalization and IV treatment.
filed a federal claim for restitution with the North Central
Regional Office of the BOP. His claim for compensation was
denied by Regional Counsel, Richard Schott. Plaintiff
believes that Defendant Schott is covering up for the medical
staff and has violated his Fourteenth Amendment rights to due
Amenability to Suit in their Official and Personal
names Defendants Moats and Lee Ho in both their official and
individual capacities. A Bivens claim, however, may
only be brought against a federal employee in his individual
capacity. See Yeadon v. Lappin, 423 F. App'x
627, 629 (unpublished) (7th Cir. 2011) (no Bivens
action against federal employees in their official
capacities). This is because an action for damages against an
individual in his official capacity is an action against the
government and barred under the Eleventh Amendment. Hadi
v. Horn, 830 F.2d 779, 783 (7th Cir. 1987). The official
capacity claims against Defendant Lee Ho is DISMISSED with
prejudice. The official capacity claim for money damages
against Defendant Moats is DISMISSED with prejudice, though
as explained below, he remains potentially liable for
Plaintiff's request for injunctive relief.
Plaintiff requests declaratory and injunctive relief, as well
as money damages against all Defendants. While Plaintiff may
seek money damages in his FTCA claim against the United
States, he may not assert a claim for injunctive relief. 28
U.S.C. § 1346(b) (suit must be against United States
itself for money damages). The only relief available to
Plaintiff in his FTCA medical negligence and IIED claims
against the United States is one for money damages. Plaintiff
may proceed in his request for injunctive relief against
Defendant Moats, the FCI-Pekin Clinical Director. This
because, the proper parties in a claim for injunctive relief
include the supervisory government officials who would be
responsible for ensuring injunctive relief is carried out.
Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.
2011). Here, Defendant Moats, would be in a position to
provide injunctive relief while Defendant Lee Ho would not.
This claim shall proceed against Defendant Moats in his
official capacity. Grayson v. Goetting, No.
15-CV-00198-NJR, 2015 WL 887800, at *4 (S.D. Ill. Feb. 27,
Court notes that Plaintiff's claims against Defendants
Moats and Lee Ho arise from the same conduct which supports
his FTCA claim. A Plaintiff may maintain both an FTCA claim
and a Bivens claim in the same action. Thomas v.
Szoke, No. No. 10-838, 2011 WL 1517948, at *4 (S.D. Ill.
Apr. 19, 2011). Plaintiff is advised, however, that he may
not recover under both. See 28 U . S.C. §
2679(b)(1); Arevalo v. Woods, 811 F.2d 487, 490 (9th
Cir. 1987) (no double recovery in FTCA and Bivens
the United States of America
claim against the United States is brought under the FTCA
which codifies the government's voluntarily waiver of
sovereign immunity in certain cases. Under the FTCA, a
plaintiff may assert delineated tort claims against the
United States where “the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b); Smith v.
United States, 15-CV-33, 2016 WL 3165533, at *8 (S.D.
Ill. June 7, 2016), aff'd, 16-3117, 2017 WL
391872 (7th Cir. Jan. 27, 2017). Plaintiff's FTCA claim
alleges that the United States is liable for the medical
negligence and IIED allegedly caused by Defendants Moats and
Lee Ho. Plaintiff's medical negligence and IIED claims
are governed by Illinois state law, the state where the
alleged torts occurred. 28 U.S.C. § 1346(b)(1)28 U.S.C.
§ 1346(b)(1); Kaniff v. United States, 351 F.3d
780, 790 (7th Cir. 2003).
prove IIED under Illinois law, plaintiff must establish that:
“(1) the defendants' conduct was extreme and
outrageous; (2) the defendants knew that there was a high
probability that their conduct would cause severe emotional
distress; and (3) the conduct in fact caused severe emotional
distress.” Swearnigen-El v. Cook Cty. Sheriff's
Dept.,602 F.3d 852, 864 (7th Cir. 2010) (internal
citation omitted). The allegation against Moats and Lee Ho is
that they denied his request for a soft shoe permit in 2013;
and treated the ulcer that developed with the same antibiotic
to which he was allergic. The allegations relating to
Defendants' failure to provide him with a soft shoe are
insufficient to make out a plausible IIED claim and ...