JANE MAGNUS-STINSON, District Judge.
The defendants' motion to dismiss [dkt. 72] must be
The relevant procedural history is set forth below because it illustrates the plaintiff's difficulty over the course of three years to allege a viable claim for injunctive relief against any defendant pursuant to the theory recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
This case was filed on December 8, 2009, by pro se plaintiff Ralph Thomas, an inmate at the United States Penitentiary in Terre Haute, Indiana, in the United States District Court for the District of Columbia. The defendants, the United States of America, Federal Bureau of Prisons ("BOP"), and the BOP's Administrator of the National Inmate Appeals, Harrell Watts ("Watts"), filed a motion to dismiss on October 28, 2010. On April 29, 2011, Judge Kollar-Kotelly granted the motion to dismiss the plaintiff's claims for money damages. On June 30, 2011, Judge Kollar-Kotelly ordered the transfer of the remaining claims for injunctive and declaratory relief to this Court. She explained, "Plaintiff does not state what type of injunctive relief is sought, but it is presumed that he seeks to compel prison officials at FCC Terre Haute to provide adequate medical treatment for his chronic ailments." Dkt. 31 at p. 5.
The action was transferred and opened on this Court's docket on July 22, 2011. Dkt. 37. Following transfer, Thomas was provided multiple opportunities to amend and supplement his complaint to allege a viable Eighth Amendment claim for injunctive relief.
Entry of March 20, 2012, [Dkt. 49.] Thomas was provided yet another opportunity to state a claim upon which relief may be granted by filing an amended complaint that asserts his claim for injunctive relief, identifies the injunctive relief sought and states the basis upon which each of the defendants could be liable to him for the relief he seeks.
On April 19, 2012, the plaintiff filed an amended complaint. [Dkt. 51.] In the amended complaint Thomas seeks injunctive relief from prison medical providers for the treatment of disabling pain and severe muscle cramps he has experienced throughout his body from August 2007 to the present. [Dkt. 51 at 3-4.] Thomas specifically asserts that the condition of severe muscle cramps is the only issue before the Court. [Id. at 3.] Thomas alleges that defendants Watts and Ndife are liable because they intentionally reported in response to administrative remedies that Thomas received medical care when he did not. The only allegation against Dr. W. Wilson is that he is the Chief Medical Doctor, Dkt. 50. From this allegation, the Court inferred that Dr. Wilson had the authority to obtain medical care for Thomas. In the Court's October 3, 2012, screening the amended complaint pursuant to 28 U.S.C. § 1915A(b), the Court stated:
In screening the amended complaint, the Court held that Dr. W. Wilson, Mr. A. Ndife, and Harrell Watts appeared to be appropriate defendants from which the plaintiff could obtain the injunctive relief he seeks pursuant to the theory recognized in Bivens.
The individual defendants, Wilson, Ndife and Watts responded to the amended complaint by filing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In response to the motion to dismiss, Thomas restates that 1) his Eighth Amendment rights have been violated; 2) the BOP is responsible for providing him with medical care; and 3) his claim is brought pursuant to the theory recognized in Bivens. Thomas further articulates that his claims are brought against Ndife and Watts who signed administrative remedy responses stating that medication and treatment was supplied, when it was not. For the reasons explained in the Entry of March 13, 2013, the
The foregoing procedural history brings the case to the present. What remains of Thomas's lawsuit initiated in the District of Columbia on December 8, 2009, is a single claim for injunctive relief against Dr. Wilson, pursuant to the theory recognized in Bivens.
To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint is sufficient if it gives "enough details about the subject-matter of the case to present a story that holds together." Swanson v. Citibank, 614 F.3d 400, 404 (7th Cir. 2010). On the other hand, a plaintiff "can plead himself out of court by pleading facts that show that he has no legal claim." Atkins v. City of Chicago, 631 F.3d 823 (7th Cir. 2011).
Thomas's claims are based upon the protections of the Eighth Amendment. The Eighth Amendment imposes a duty on prison officials to provide medical care to inmates. Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). In order for an inmate to state a claim under the theory recognized in Bivens for medical mistreatment or denial of medical care, the prisoner must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference exists only when an official "knows of and disregards an excessive risk to an inmate's health; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994) (construing Estelle). A condition is serious if "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (citation and internal quotations omitted). In order to state a valid claim, there must be a finding of personal participation of a defendant in the asserted constitutional deprivation. Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001).
Dr. Wilson does not dispute that equitable relief, including injunctive relief, may be available in the context of a Bivens case. Instead, he argues that the complaint is deficient because Thomas has failed to provide sufficient factual allegations to state a plausible claim that Dr. Wilson was or is deliberately indifferent to his serious medical needs. Without such allegations, Thomas is not entitled to relief.
Dr. Wilson's argument is persuasive. Thomas has not alleged a plausible claim against Dr. Wilson. The amended complaint does not allege any wrongdoing on his part. The only allegation against Dr. Wilson is that he is the Chief Medical Doctor. Dkt. 50. "Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed." Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); see also Black v. Lane, 22 F.3d 1395, 1401 and n.8 (7th Cir. 1994) (district court properly dismissed complaint against one defendant when the complaint alleged only that defendant was charged with the administration of the institution and was responsible for all persons at the institution). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution." Ashcroft, 556 U.S. at 676.
Finding that the claim for injunctive relief may proceed against Dr. Wilson in his official capacity would appear to contradict the Entry of October 3, 2012. Dkt. 56. In that Entry the Court screened the amended complaint and found that the claim for injunctive relief as a remedy for a Bivens claim was necessarily against the defendants in their individual capacities only because any claim against the defendants in their official capacities is barred by the United States' sovereign immunity. This statement of the law is correct. The United States—which includes an employee of the United States sued in his or her official capacity—is not a proper defendant in a Bivens action. Kaba v. Stepp, 458 F.3d 678, 687 (7th Cir. 2006) ("A Bivens action may not be brought against the United States or a federal agency."); Glaus v. Anderson, 408 F.3d 382, 389 (7th Cir. 2005) ("[F]ederal prisoners suing under Bivens may sue relevant officials in their individual capacity only."); Bunn v. Conley, 309 F.3d 1002, 1009 (7th Cir. 2002) ("There is, however, a more fundamental problem: Bivens claims are brought against the relevant officials in their individual capacity, and Bunn's suit against the warden is plainly an official capacity action.").
Misplaced, however, was the Court's assumption that this action for injunctive relief to redress allegedly on-going unconstitutional medical treatment could be understood as an action brought pursuant to the theory recognized in Bivens. "[T]he decision in Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504 (1978). As discussed above, the plaintiff's claims for money damages have been dismissed. All that remains is a claim for injunctive relief. Such relief was available before Bivens. Justice Harlan recognized "the presumed availability of federal equitable relief, if a proper showing can be made in terms of the ordinary principles governing equitable remedies." Bivens, 403 U.S. at 400 (J. Harlan, concurring) (citing Bell v. Hood, 327 U.S. 678, 684 (1946) (which states, ". . . where the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court . . . must entertain the suit." Id. at 681-682)).
It does not appear that the plaintiff's claim for injunctive relief to remedy an alleged ongoing constitutional violation is barred by sovereign immunity, although, "`(t)he extent to which sovereign immunity may bar an action against a federal officer for acts done in his or her official capacity is an extraordinarily difficult question . . .'" Clark v. U.S., 691 F.2d 837, 839 (7th Cir. 1982) (quoting C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure s 3655, at 177 (1976)). The Seventh Circuit has recognized that not all suits against federal officials for injunctive relief are deemed suits against the United States for sovereign immunity purposes. See Clark, 691 F.2d at 839 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949)). Under Ex parte Young, 209 U.S. 123, 159-60 (1908), a plaintiff may file "suit[] against state officials seeking prospective equitable relief for ongoing violations of federal law. . . ." Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997). See also Indiana Protection and Advocacy Services v. Indiana Family and Social Services Admin., 603 F.3d 365, 370-72 (7th Cir. 2010) (J. Hamilton) (discussing exceptions to the Eleventh Amendment's bar against actions in federal court against state officials acting in their official capacities); Gautreaux v. Romney, 488 F.3d 731, 735 (7th Cir. 1971) (holding that the doctrine of sovereign immunity "does not bar a suit such as this which is challenging alleged unconstitutional and unauthorized conduct by a federal officer.").
In addition, Congress amended the Administrative Procedure Act ("APA") to allow suits for injunctive relief to be brought against the United States.
The finding that this action for injunctive relief may proceed against Dr. Wilson in his official capacity is consistent with dicta in Vance v. Rumsfeld, 701 F.3d 193, 228-229 (7th Cir. 2012) stating that injunctive relief against illegal conduct by the federal government is available under established doctrine and that the judiciary retains the power to enjoin an unconstitutional practice of unlawful deprivation of rights. Id. ("Injunctions that enforce the Detainee Treatment Act prospectively may be possible under the doctrine of Ex parte Young . . . or the waiver of sovereign immunity in 5 U.S.C. § 702.").
Thomas has failed to state a claim upon which the relief sought may be granted against any defendant in his or her individual capacity. Accordingly, the
The
5 U.S.C. § 702.