Amit P. Mehta, United States District Judge.
Plaintiff Jean-Gabriel Bernier, a federal prisoner, brought this action against the Federal Defendants
This matter is before the court on the Federal Defendants' Motion to Dismiss the remaining claim for injunctive relief as moot, and Plaintiff's Motion for Reconsideration of the court's dismissal of his damages claim against Defendant Allen, Chief Physician of the Federal Bureau of Prisons. For the reasons discussed below, the Federal Defendants' Motion to Dismiss is granted and Plaintiff's Motion for Reconsideration is granted in part and denied in part.
The court described the facts alleged in Plaintiff's pro se Complaint in its March 2017 opinion granting in part and denying in part the Federal Defendants' Motion to Dismiss, and it need not repeat them at length here. See generally Bernier v. Trump, 242 F.Supp.3d 31 (D.D.C. 2017). To summarize, Plaintiff challenged two aspects of his confinement in his Complaint, seeking both injunctive relief and money damages. See id. at 34-37. Only one of those challenges is at issue here.
The Federal Defendants ("Defendants") previously moved to dismiss Plaintiff's Eighth Amendment claims. See Bernier, 242 F.Supp.3d at 34, 38-40. Defendants sought dismissal on multiple grounds, but the court's opinion focused on only two. First, Defendants sought dismissal of Plaintiff's Eighth Amendment claim for injunctive relief, asserted against Defendants in their official capacities, for failure to state a claim. Id. at 40; see Compl. ¶¶ 1-7, 45-46; see also id. at 16 (requesting that the BOP Director direct Defendant Allen to approve Plaintiff's treatment with Harvoni). The court, however, found that Plaintiff had stated a cognizable claim under the Eighth Amendment. See Bernier, 242 F.Supp.3d at 40-41. Specifically, after concluding that Plaintiff had sufficiently alleged a serious medical need, the court found the following allegations "more than adequate" to satisfy the Rule 8(a) pleading standard with respect to Defendants' deliberate indifference to Plaintiff's serious medical need:
Id. at 41 (first alteration in original). Thus, the court allowed Plaintiff's Eighth Amendment claim seeking injunctive relief in the form of Harvoni treatment to proceed. See id. at 44-45.
Second, Defendants also moved to dismiss Plaintiff's claim against Defendant Jeff Allen, then-Chief Physician of BOP, in his individual capacity, seeking money damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Compl. ¶¶ 1, 7, 45-46; see also id. at 16 (seeking $50,000 in damages assessed against Defendant Allen for the denial of medical treatment). The court dismissed this claim on the ground of qualified immunity. Bernier, 242 F.Supp.3d at 38-40. The court held:
Id. at 39. So, in summary, following Defendants' initial motion to dismiss, the court
Following the court's ruling, instead of answering Plaintiff's Complaint, Defendants moved once more to dismiss Plaintiff's Eighth Amendment claim for injunctive relief. In their present motion, Defendants argue that Plaintiff's claim is now moot because "Plaintiff's (and other inmates') priority level(s) have been adjusted and Plaintiff is now receiving treatment for his Hepatitis C condition." Defs.' Second Mot. to Dismiss at 1. Plaintiff appears to concede that his claim for injunctive relief is now moot. See Pl.'s Mot. & Opp'n, Pl.'s Consolidated Mem. of Points & Authorities in Supp. of Mot. for Reconsideration and in Opp'n to Federal Defs.' Mot. to Dismiss, ECF No. 57 [hereinafter Pl.'s Mem.], at 22-23.
Plaintiff, however, seeks to revive his previously dismissed Eighth Amendment Bivens claim against Defendant Allen and, thus, avoid the end of this action. See id. Plaintiff asks the court to reconsider its dismissal of the Bivens claim on the ground that the court erred in recognizing Defendant Allen's entitlement to qualified immunity, or at least did so prematurely. See id. at 6-22. If the court were to grant his Motion for Reconsideration, Plaintiff reasons, then there would be no basis for dismissal of his claim under the Eighth Amendment. Id. at 23.
The court begins with Defendants' Motion to Dismiss, which arises under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A motion filed under Rule 12(b)(1) challenges a court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When deciding a motion under Rule 12(b)(1), a court must accept all well-pleaded factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). In addition, the court may consider "such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Mykonos v. United States, 59 F.Supp.3d 100, 103-04 (D.D.C. 2014) (applying rule in mootness context). Specifically, when it is necessary to look beyond the face of the complaint to determine whether the court has subject matter jurisdiction, the court may consider "the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." See Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation mark omitted).
Mootness is one ground for dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). Indian River Cty. v. Rogoff, 254 F.Supp.3d 15, 18 (D.D.C. 2017) ("A motion to dismiss for mootness is properly brought under Rule 12(b)(1) because mootness
In this case, Defendants argue that Plaintiff's claim for injunctive relief is moot because, after this court's previous decision, Plaintiff started receiving treatment for his Hepatitis C condition. Defs.' Second Mot. to Dismiss at 6. According to Defendants' declarant Elizabete Stahl, a licensed physician employed as the Clinical Director at FCI Allenwood, the facility where Plaintiff was formerly housed, the BOP released in October 2016 an updated guidance for treating incarcerated patients with Hepatitis C. See Defs.' Second Mot. to Dismiss, Ex. A, Second Decl. of Elizabete Stahl, D.O., ECF No. 50-1, ¶ 4. Pursuant to this new guidance, the medical team at FCI Allenwood submitted a request that Plaintiff be treated with a 12-week, daily regime of Harvoni. See id. ¶ 5. Although not approved for Harvoni, Plaintiff was approved for treatment with a different drug Zepatier, a newly approved medication that the FDA "consider[s] [to be] an equivalent treatment option for Hepatitis C," as compared to Harvoni, "depending on the clinical presentation of each individual patient." Id. ¶ 7. Plaintiff then began a twelve-week Zepatier treatment regimen that was scheduled to end in July 2017. See id. ¶ 8. As of May 23, 2017, there was no Hepatitis C viral load detected in Plaintiff's blood. See Notice of Filing Exs., ECF No. 61, Ex. F, Third Decl. of Elizabete Stahl, D.O., ECF No. 61-1, ¶ 3.
Plaintiff does not dispute that he is now receiving treatment in the manner described in Defendants' declaration. See generally Pl.'s Mot. & Opp'n; Pl.'s Mem. Nor does he dispute the efficacy of Zepatier as an equivalent treatment option to Harvoni. To the contrary, in his Complaint he identified Zepatier as a lower-cost treatment alternative to Harvoni. Compl. ¶ 27. Instead, to the extent he opposes Defendants' Motion to Dismiss, he does so only on the ground that the court should reconsider its previous decision and allow Plaintiff's Bivens claim to proceed. See Pl.'s Mot. & Opp'n at 2 ("[S]ince the revitalization of the damages claim would require this case to continue irrespective of
The court now turns to Plaintiff's Motion for Reconsideration. The court evaluates Plaintiff's Motion under Rule 54(b) of the Federal Rules of Civil Procedure, which governs reconsideration of non-final decisions. See Cobell v. Norton, 355 F.Supp.2d 531, 538-39 (D.D.C. 2005). Rule 54(b) provides that "any order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Relief under Rule 54(b) may be granted "as justice requires." See Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011). "Courts in this district interpret that abstract phrase narrowly and will grant a motion to reconsider `only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.'" Ferrer v. CareFirst, Inc., 278 F.Supp.3d 330 (D.D.C. 2017) (quoting Zeigler v. Potter, 555 F.Supp.2d 126, 129 (D.D.C. 2008)); cf. U.S. ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F.Supp.2d 258, 268 (D.D.C. 2012) ("Under this standard, reconsideration may be warranted where the court has patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or [where] a controlling or significant change in the law has occurred." (alteration in original) (internal quotation marks omitted)). While these considerations "leave a great deal of room for the court's discretion," that discretion "is limited by the law of the case doctrine and subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Ali v. Carnegie Inst. of Wash., 309 F.R.D. 77, 80 (D.D.C. 2015) (internal quotation marks omitted).
The court agrees with Plaintiff that it framed the asserted right at issue too narrowly in its previous decision. In other words, by asking whether it was clearly established that "denying a prisoner Harvoni to treat Hepatitis C based only on his APRI score violates the Eighth Amendment," the court erred by defining the right in accordance with "the very action in question." See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) ("We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011))). Thus, the court agrees with Plaintiff that "justice requires" reconsideration of its decision.
Such reconsideration will not, however, result in the revival of Plaintiff's Bivens claim against Defendant Allen — at least not yet. In Defendants' initial Motion to Dismiss, Defendant Allen moved to dismiss for lack of personal jurisdiction. See Fed. Defs.' Mot. to Dismiss, ECF No. 28 [hereinafter Defs.' First Mot. to Dismiss], at 6-11. The court did not reach that ground because it dismissed the Bivens claim against Allen on the alternative
Defendants premised their motion to dismiss for lack of personal jurisdiction on two grounds. First, Defendants moved to dismiss Plaintiff's Bivens claims against the non-resident defendants sued in their individual capacity, including Defendant Allen, for lack of personal jurisdiction under Rule 12(b)(2). See Defs.' First Mot. to Dismiss at 6-10 (arguing that Plaintiff failed to meet his burden to establish that personal jurisdiction satisfied due process requirements and was authorized under the District of Columbia long-arm statute). Second, Defendants moved to dismiss Plaintiff's Bivens claims for lack of personal jurisdiction based on insufficient service of process, which is a basis for dismissal under Rule 12(b)(5). See id. at 6, 10-11; see also Hickman v. Fed. Election Comm'n, No. 14-295, 2014 WL 5902547, at *1 n.1 (D.D.C. Nov. 13, 2014)). For the reasons that follow, the court should have dismissed Plaintiff's Bivens claim against Defendant Allen on the second ground. See Mwani v. bin Laden, 417 F.3d 1, 8 (D.C. Cir. 2005) ("Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." (quoting Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987))); cf. Forras, 812 F.3d at 1105.
If a plaintiff wants to pursue a Bivens action against a federal official in his or her individual capacity, that federal official "must be served as [an] individual[], pursuant to Rule 4(e)." Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C. Cir. 1997); see also Fed. R. Civ. P. 4(i)(3) ("To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g)."). Rule 4(e) provides that service may be effected on an individual by one of the following methods:
Fed. R. Civ. P. 4(e)(2). Alternatively, a plaintiff may properly serve an individual
In this case, the summons to Defendant Allen was returned unexecuted. See Process Receipt and Return, ECF No. 24. As a pro se party proceeding in forma pauperis, Plaintiff relied on the Clerk of Court and U.S. Marshal Service to serve Defendants. See Gonzalez v. Holder, 763 F.Supp.2d 145, 148 (D.D.C. 2011); see Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d). In his Complaint, Plaintiff listed the Central Office for BOP as Defendant Allen's address. See Compl. ¶ 9; Compl., Attach. A, ECF No. 1. A U.S. Marshal attempted to personally serve Defendant Allen at the Central Office for BOP on three separate occasions, but was unsuccessful. See Process Receipt and Return, ECF No. 24. There is a likely explanation for that failure: the Process Receipt and Return contains a handwritten note indicating "[w]orkers stated that Allen no longer works for BOP." Id.
In light of the foregoing, the court agrees that Plaintiff has not properly served Defendant Allen pursuant to Rule 4(e). Thus, the court grants Defendants' Motion to Dismiss Plaintiff's Bivens claim against Defendant Allen under Rule 12(b)(5) for insufficient service of process. Importantly, however, the court will dismiss this claim without prejudice. While a pro se plaintiff proceeding in forma pauperis "is not wholly relieved of his obligation to serve the defendants," judges in this District repeatedly have held that such plaintiffs "generally should not be penalized for court officers' failure ... [to] properly effect[] service." See, e.g., Gonzalez, 763 F.Supp.2d at 148. Thus, the court will give Plaintiff additional time to properly serve Defendant Allen. See Morris v. U.S. Sentencing Comm'n, 62 F.Supp.3d 67, 71 n.1 (D.D.C. 2014) (noting that in such circumstances, "the court typically w[ill] give plaintiff the opportunity to provide additional information to cure any service deficiencies before dismissing the case under... Rule 12(b)(5)"); Nabaya v. Dudeck, 38 F.Supp.3d 86, 96-97 (D.D.C. 2014) ("[D]ue to the plaintiff's pro se status, dismissal of his case without giving him the opportunity to perfect service is inappropriate."). Such service shall be accomplished within 60 days of the date of this opinion.
Before concluding, the court directs Plaintiff to proceed as follows regarding this action. If Plaintiff intends to continue to pursue his Bivens claim against Defendant Allen, he shall do so in one of two ways. Plaintiff must either: (1) file and serve an amended complaint, or (2) serve the original complaint and, within 21 days of service, submit a more definite statement under Rule 12(e). See Momenian v. Davidson, 878 F.3d 381, 391 (D.C. Cir. 2017) (stating that "a court can sua sponte order a plaintiff to submit a more definite statement" (citing 2 J. Moore et al., Moore's Federal Practice § 12.34[1][b] (3d ed. 2017))); see also Pinson v. U.S. Dep't of Justice, 975 F.Supp.2d 20, 26 (D.D.C. 2013). The amended complaint or more definite statement should set forth with greater specificity, to the extent known, (1) the time, place, and personnel involved in Plaintiff's institutional testing and treatment for Hepatitis C; (2) the institutional personnel involved in making a recommendation regarding treatment with Harvoni and their recommendations; (3) the BOP approval process for receiving Harvoni treatment; and (4) Defendant Allen's role in denying treatment with Harvoni. The court requires these additional factual allegations to make an informed determination about the qualified immunity question should Defendant Allen once more raise
For the foregoing reasons, Defendants' Motion to Dismiss, ECF No. 50, is granted, and Plaintiff's Motion for Reconsideration, ECF No. 57, is granted in part and denied in part.
The court hereby vacates its previous decision to the extent it dismisses Plaintiff's Bivens claim for damages against Defendant Allen in his individual capacity on qualified immunity grounds, and grants Defendants' Motion to Dismiss this claim under Rule 12(b)(5) for insufficient service of process. This claim is dismissed without prejudice. Plaintiff shall be afforded 60 days from this date to properly serve Defendant Allen. If Plaintiff does not accomplish service within 60 days from the date of this opinion, unless additional time is requested and granted, the court will enter a final order dismissing this action.