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Besser v. Moats

United States District Court, C.D. Illinois

August 4, 2017

DR. SCOTT MOATS, Defendant.


          James E. Shadid Chief United States District Judge

         This matter is now before the Court on Plaintiff George Besser's Motion [13] for Leave to Amend Complaint and Defendant Scott Moats's Motion [15] to Dismiss or in the Alternative for Summary Judgment. For the reasons set forth below, Plaintiff's Motion [13] is DENIED and Defendant's Motion [15] is GRANTED.


         On February 16, 2016, Plaintiff George Besser filed a Complaint against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671. Besser is a 78-year-old male currently incarcerated at FCI Pekin. On June 6, 2012, while Besser was incarcerated at FCI-Ashland, he received approval from the Utilization Review Committee for surgery to correct carotid artery stenosis. On July 2, 2012, Dr. Abul-Khoudoud examined Besser and determined that Besser should continue his prescription for aspirin and recommended that a “CTA” (“Computed Tomography Angiogram”) be performed on the aortic arch and bilaterally on the carotid arteries. On July 14, 2014, Besser was transferred to FCI Pekin. In his Complaint, Besser asserts that the previously approved surgery has been withheld from him. Besser also alleges that he injured his hip and back after he fell down steps on the tarmac during transport to FCI Pekin, and Dr. Moats refused to x-ray his hip and back. Finally, Besser alleges that Dr. Moats decreased the dosage of his long-term thyroid medicine, causing him to experience seizures and other side effects. Doc. 1.

         On June 27, 2016, the Court entered a Merit Review Order. That Order provided that: (1) the case would proceed solely on the Eighth Amendment deliberate indifference claim, and claims not identified would not be included in the case; (2) FCI Pekin Medical Director Moats would be added as a Defendant; (3) the United States would be dismissed; (4) the FTCA claim for medical malpractice would be dismissed with leave to replead if plaintiff attaches an affidavit and certificate of merit; (5) the deliberate indifference claim against the United States Marshals would be severed. Doc. 5.

         On September 28, 2016, Plaintiff filed a Motion for Leave to File Amended Complaint. Therein, Besser repeats the allegations from his original Complaint. Besser also attempts to add as defendants FCI Pekin, Mr. Schumm, a nurse at FCI Pekin's medical center, and Dr. Terry Meriden. Besser's proposed amendment to his Complaint adds an additional allegation that Defendants failed to treat the loss of vision in his left eye. Doc 13.

         On October 21, 2016, Defendant filed a Motion to Dismiss or in the Alternative for Summary Judgment. Defendant's Motion argues that Besser failed to exhaust his administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997(e)a because Besser never filed any administrative complaint regarding his medical care at FCI Pekin. Additionally, Defendant asserts that Besser's claims relating to his vascular condition are identical to his claims in a prior lawsuit, which was dismissed in a comprehensive merit review order. Docs. 15, 16.

         On October 31, 2016, Besser moved for an extension of time to respond to Defendant's Motion. Doc. 19. The Court granted Besser's Motion and extended the time to respond until November 21, 2016, but noted that Plaintiff's proposed amendment to the Complaint had not yet been allowed. From January through March 2017, Besser filed three requests to stay proceedings (discovery had already been stayed) while he attempted to find legal counsel. Docs. 21, 22, 24. Plaintiff never submitted a response to Defendant's Motion.

         Legal Standard

         Summary judgment is appropriate where the movant shows, through “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations … admissions, interrogatory answers, or other materials” that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. In resolving a motion for summary judgment, “[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

         In order to withstand a motion for summary judgment, the nonmovant must “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When presented with a motion for summary judgment, the Court must construe the record “in the light most favorable to the nonmovant and avoid[] the temptation to decide which party's version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). If the evidence, however, is “merely colorable, or is not significantly probative or merely raises ‘some metaphysical doubt as the material facts, ' summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50. Thus, in order to overcome the undisputed facts set forth in a defendants' motion for summary judgment, a plaintiff cannot rest on the allegations in his complaint but must point to affidavits, depositions or other evidence of an admissible sort that a genuine dispute of material fact exists between parties. Fed.R.Civ.P. 56(e)(2); Behrens v. Pelletier, 516 U.S. 299, 309 (1996).


         The Prisoner Litigation Reform Act (“PLRA”) requires inmates who file lawsuits with respect to prison conditions to first exhaust all available administrative remedies prior to filing suit. 42 U.S.C. § 1997e(a). Failure to exhaust administrative remedies is an affirmative defense. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). If a prisoner fails to follow all of the necessary grievance procedures, the claim will not be exhausted, and will be barred, even if there are no remaining administrative remedies available. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).

         Besser has not provided copies of any administrative complaints filed while incarcerated at FCI Pekin, nor has he alleged that he attempted to do so, or that administrative remedies were unavailable to him. Defendant's Motion asserts that Besser has failed to exhaust his administrative remedies, and has supported that assertion with the declaration of Heather MaCconnell. Attached to the MacConnell declaration are records indicating that Besser has filed seven administrative complaints while in the custody of the BOP, and each of the seven complaints were filed while he was incarcerated at FCI Ashland, Kentucky. ...

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