United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge
matter is now before the Court on Plaintiff George
Besser's Motion  for Leave to Amend Complaint and
Defendant Scott Moats's Motion  to Dismiss or in the
Alternative for Summary Judgment. For the reasons set forth
below, Plaintiff's Motion  is DENIED and
Defendant's Motion  is GRANTED.
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.
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.
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.
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.
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.
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).
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).
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).
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. ...