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Lutz v. United States

United States District Court, C.D. Illinois

June 14, 2017

UNITED STATES, Defendants.



         Plaintiff, 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).[1] 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 unadorned, the-defendant-unlawfully-harmed-me accusation.” Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir. 2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Plaintiff 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.


         Plaintiff 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.

         On an 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.

         Plaintiff 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 process.

         Defendants' Amenability to Suit in their Official and Personal Capacities

         Plaintiff 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.

         Here, 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, 2015).

         The 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 claims).

         Defendant the United States of America

         Plaintiff's 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).

         To 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 ...

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