United States District Court, D. Minnesota
ORDER AND REPORT AND RECOMMENDATION
LEO I. BRISBOIS, Magistrate Judge.
This matter came before the undersigned United States Magistrate Judge upon Plaintiff John Smith's ("Plaintiff") Motion to Amend his Amended Complaint, [Docket No. 54], the Federal Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment, [Docket No. 60], and Defendant Thomas Mayer's Motion for Summary Judgment and/or Statutory Dismissal Pursuant to Minn. Stat. § 145.682, [Docket No. 72]. The case has been referred to the undersigned Magistrate Judge for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1.
For reasons outlined below, the Court will DENY Plaintiff's Motion to Amend his Amended Complaint, [Docket No. 54]; the Court subsequently recommends that Defendant Mayer's Motion for Summary Judgment and/or Statutory Dismissal Pursuant to Minn. Stat. § 145.682, [Docket No. 72], be GRANTED; and the Federal Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment, [Docket No. 60], be GRANTED.
On December 2, 2013, Plaintiff initiated this action by filing a pro se  complaint, alleging that Defendants had failed to provide him with proper medical care while he was incarcerated at the Federal Correctional Institution located in Sandstone, Minnesota ("FCI Sandstone"). (Compl., [Docket No. 1]). On January 16, 2014, Plaintiff filed an amended complaint that is the operative complaint in the present case. (Am. Compl. [Docket No. 2.]).
Plaintiff alleges that Defendants were deliberately indifferent by refusing to test him for possible venereal diseases (Id. ¶¶ 51-67, 70-74, 144, 146); falsifying Plaintiff's medical records (Id. ¶¶ 68-69, 86-87, 143, 145); refusing to authorize a cardiology stress test ("stress-echo test") for Plaintiff (Id. ¶¶ 75-96, 145, 147, 150); and misdiagnosing and refusing to provide adequate information about the medical care being provided with respect to a lump on Plaintiff's testicle (Id. ¶¶ 104-30, 148). Plaintiff also alleges that Defendants failed to provide him with qualified medical staff capable of providing him with adequate medical care (Id. ¶¶ 133-38, 149); that Defendants transferred Plaintiff from FCI Sandstone to the Federal Correctional Institution in Otisville, New York ("FCI Otisville") in retaliation for Plaintiff's complaints about his medical treatment (Id. ¶¶ 140-42, 151); and that Defendants are liable for negligence in connection with providing, or failing to provide him with medical treatment (Id. ¶¶ 152-75).
On June 13, 2014, Plaintiff filed the present Motion to Amend his Amended Complaint, [Docket No. 54]. In his motion, Plaintiff states that he seeks to add a claim against the Federal Bureau of Prisons. (See Id. at 1). Plaintiff's proposed second amended complaint, however, also seeks to clarify the legal and factual bases for some of his claims and add two state law negligence claims against Defendant Thomas Mayer ("Defendant Mayer"). (See Motion to Amend to Compl., [Docket No. 54], Attachment 1, ¶¶ 219, 236, 240, 244, 248-255).
On June 16, 2014, the Federal Defendants filed their Motion to Dismiss, or in the alternative, for Summary Judgment, [Docket No. 60]. The Court allowed Plaintiff until July 21, 2014, to file a response to the Federal Defendants' motion. (Order, [Docket No. 67] at 1). Plaintiff has not filed a response.
On June 30, 2014, Defendant Mayer filed his Motion for Summary Judgment and/or Statutory Dismissal Pursuant to Minn. Stat. § 145.682, [Docket No. 72]. The Court allowed Plaintiff until July 28, 2014, to file a response to Defendant Mayer's motion. (Order, [Docket No. 78] at 1). Plaintiff has not filed a response to Defendant Mayer's motion either.
II. STATEMENT OF FACTS
This Bivens action arises from three incidents related to Plaintiff's medical treatment while he was confined at FCI Sandstone. (Am. Compl., [Docket No. 2], ¶ 20).
With regards to the first incident, Plaintiff maintains that, in 1996, he contracted gonorrhea and chlamydia. (Am. Compl., [Docket No. 2], ¶ 51). In 2010, Plaintiff became concerned that he was experiencing symptoms associated with those infections not having been adequately treated. (Id.). On December 7, 2010, Plaintiff informed Defendant Pete Bennett ("Defendant Bennett"), a Public Health Service Nurse Practitioner working at FCI Sandstone, (see Declaration of Capt. George Durbin, [Docket No. 62], ¶¶ 3-4), about his concerns. (Am. Compl., [Docket No. 2], ¶ 52). On January 6, 2011, Plaintiff was questioned by Defendant Mayer, a private physician contracted by a private corporation to provide health care services to FCI Sandstone inmates, (see Affidavit of Tamara Healy, [Docket No. 75], ¶¶ 4-5), about his concerns. (Am. Compl., [Docket No. 2], ¶ 55). Plaintiff was also examined on that date by Defendant Bennett. (Id.). Defendant Mayer told Plaintiff that the results of the examination did not warrant further testing for gonorrhea or chlamydia. (Id.). Plaintiff then filed a complaint through the FCI Sandstone grievance process, seeking to be tested for gonorrhea and chlamydia. (See Id. at ¶¶ 29).
On February 3, 2011, pursuant to Defendant Bennett's request, Plaintiff submitted a urine sample for analysis. (Id. at ¶ 59). On February 10, 2011, Plaintiff was informed that the analysis had revealed the presence of red blood cells in his urine. (Id. at ¶ 61). Defendant Bennett ordered a follow-up urinalysis. (See Id. at ¶64). On April 7, 2011, Defendant Barbara Mock ("Defendant Mock"), the Health Services Administrator for FCI Sandstone, (see Declaration of Capt. George Durbin, [Docket No. 62], ¶¶ 3-4), provided Plaintiff with a copy of the results of the second urinalysis. (Am. Compl., [Docket No. 2], ¶ 68). Plaintiff suspects Defendant Mock falsified the report of the urinalysis results, at least in part because the report incorrectly indicated the urine sample has been collected using a catheter. (Id. at ¶¶ 2, 68). Concerned that a urinalysis would not detect gonorrhea or chlamydia, Plaintiff continued to use FCI Sandstone's grievance procedure seeking the administration of a urethral swab test. (See Id. at ¶¶ 35, 71). On May 11, 2011, Defendant Bennett offered Plaintiff a course of antibiotics "as a form of resolution." (See Id. at ¶ 70). When Plaintiff refused, Defendant Bennett administered the requested urethral swab test to Plaintiff in a manner that Plaintiff suspected was inadequate. (See Id. at ¶ 72).
With regard to the second incident, Plaintiff maintains that, while doing warm up exercises in his cell on March 28, 2012, his heart began to beat quickly and erratically, and that he felt both short of breath and faint. (Id. at ¶ 75). Defendant Bennett administered an electrocardiograph (EKG) test to Plaintiff the next day. (Id. at ¶ 76). The results of that test were normal. (Id.). On April 12, 2012, Plaintiff was interviewed by Defendant Mayer, who questioned him about the March 28th incident. (Id. at 77). Plaintiff told Defendant Mayer that he had experienced five or six similar since 2000. (Id.). Defendant Mayer confirmed that an EKG had been completed and then filed a request for authorization for Plaintiff to be given a stressecho test to see if Plaintiff's symptoms could be reproduced. (See Id. at ¶¶ 42, 44, 78).
Requests for authorization of specialized medical procedures for the inmates of FCI Sandstone are handled by the Utilization Resource Committee ("URC"), which is headed by the Acting Clinical Director of FCI Sandstone. (See Id. at ¶21). On April 17th, 2012, Plaintiff was informed that Defendant Harvey, as the Regional Medical Director and Acting Clinical Director for FCI Sandstone, had authorized a stress-echo test. ( Id., ¶¶ 21, 78).
On July 11, 2012, Plaintiff was verbally informed that Defendant Harvey had revoked authorization for the stress-echo test. (Id. at ¶ 81). Defendant Mock later provided Plaintiff with an administrative note indicating that Defendant Harvey had denied authorization for a stressecho test, which contained a reference to an administrative note dated April 18, 2012. (Id. at ¶ 83). Plaintiff later viewed the referenced April 18, 2012, administrative note in his medical file, which memorialized Defendant Harvey's decision to revoke authorization for the stress-echo. (Id. at ¶ 84). Plaintiff alleges that Defendant Harvey falsified a statement in the April 18, 2012, administrative note that indicated Plaintiff's "labs were normal" for the purpose of denying Plaintiff medical care. (Id. at ¶ 85).
Believing at the time that Defendant Harvey had denied authorization for the stress-echo text because of discrepancies in the manner in Plaintiff's history of coronary incidents, Plaintiff again met with Defendants Mayer and Bennett on September 12, 2012, to again report his medical history. (Id. at ¶¶ 86-88). During that meeting, Defendant Mayer inquired whether Plaintiff would be willing to be placed on an event monitor. (Id. at ¶ 88). Plaintiff agreed and left the meeting expecting to be placed on an event monitor. (Id. at ¶ 89). On October 18, 2012, Plaintiff received a notice indicating that authorization for an event monitor test had been denied by the URC. (Id.).
That same day, Plaintiff filed a complaint through the FCI Sandstone grievance process, seeking the administration of a stress-echo exam. (See Id. at 41-42). On November 27, 2012, Defendant Scott Fisher ("Defendant Fisher"), the FCI Sandstone Warden, denied the complaint. (Id. at ¶ 43). On December 3, 2012, Plaintiff filed an appeal to the Regional Medical Director, which was also denied. (Id. ¶¶ at 44-45). On January 7, 2013, Plaintiff appealed that denial to the central office of the Health Services Division of the Bureau of Prisons. (Id. at ¶ 46). On December 4, 2013, Plaintiff received a response indicating that Defendant Harrell Watts ("Defendant Watts"), National Inmate Appeals Administrator for the Federal Bureau of Prisons, (see Declaration of Harrell Watts [Docket No. 65], ¶ 1), had denied the appeal. (Am. Compl., [Docket No. 2], ¶ 48).
With regard to the third incident, Plaintiff maintains that, on January 22, 2013, he discovered a lump on his right testicle. (Id. at ¶ 104). On January 30, 2013, Defendant Bennett examined the lump and ordered an ultrasound test that was later administered by a radiologist at an outside medical facility. (Id. at ¶ 107-08). On February 19, 2013, Defendants Mayer and Bennett read Plaintiff the test results and informed him that the lump was located next to his epididymis, which is consistent with it being a spermatocele. (Id. at ¶ 110). A further physical examination that day revealed that Plaintiff also had a second lump on his testicle. (Id.). Defendant Mayer informed Plaintiff at that time that further treatment would not be ordered because "[They] don't treat this condition." (Id.). Plaintiff alleges that the diagnosis was incorrect and was not consistent with his symptoms. (Id. at ¶ 111).
On April 22, 2013, Plaintiff was transferred to FCI Otisville. (Id. at ¶139). Plaintiff asserts that Defendant Fisher transferred Plaintiff in retaliation for complaining about his medical care. (Id. at ¶ 151). Plaintiff then filed the present action.
Against Defendant Bennett, Plaintiff alleges a claim of deliberate indifference for offering Plaintiff antibiotics on May 11, 2011, instead of a urethral swab and by failing to properly perform the urethral swab test. (Id. at ¶ 144).
Against Defendant Mayer, Plaintiff alleges claims of deliberate indifference for intentionally denying Plaintiff medical care on September 12, 2012, and for ignoring the results of the ultrasound test when intentionally misdiagnosing Plaintiff on February 19, 2013. (Id. at ¶¶ 146, 148).
Against Defendant Mock, Plaintiff alleges two claims of deliberate indifference for falsifying his medical records on April 7, 2011, and for denying Plaintiff a stress-echo exam on October 16, 2012. (Id. at ¶¶ 143, 147).
Against Defendant Fisher, Plaintiff alleges a claim of deliberate indifference for failing to provide Plaintiff with staff capable of providing him with medical care, and a claim of retaliation for transferring Plaintiff to FCI Otisville. (Id. at ¶ 149, 51).
Against Defendant Harvey, Plaintiff alleges a claim of deliberate indifference for falsifying a medical record on April 18th, 2012, for the purpose of denying him a stress-echo exam. (Id. at 145).
Against Defendant Watts, Plaintiff alleges a claim of deliberate indifference for denying his appeal to the denial of a stress echo-exam. (Id. at ¶ 150).
Against Defendant United States, Plaintiff alleges state law claims of negligence for failing to provide a reasonable course of treatment: 1) when a Defendant falsified his medical records, (Id. at ¶¶ 152-55); 2) for his venereal infection (Id. at ¶¶ 156-59); 3) for his heart condition when a Defendant falsified his medical records, (Id. at ¶¶ 160-63); 4) when Defendants intentionally denied his request for a stress-echo exam (Id. at ¶¶ 163-67); 5) for Plaintiff's medical needs, (Id. at ¶¶ 168-171); and 6) for his heart condition, (Id. at ¶¶ 172-175).
Plaintiff now brings the present Motion to Amend his Amended Complaint, [Docket No. 54]. The Federal Defendants bring a Motion to Dismiss or, in the alternative, for Summary Judgment. (Defs.' Motion to Dismiss [Docket No. 60]). Defendant Mayer brings a Motion for Summary Judgment and/or Statutory Dismissal Pursuant to Minn. Stat. § 145.682, [Docket No. 72].
The Court first considers the Motion to Amend the Amended Complaint, [Docket No. 54]. See Augustine v. United States, No. 13-cv-1417 (DWF/LIB), 2014 U.S. Dist. LEXIS 35517, at *11-12 (D. Minn. Feb. 20, 2014) (Brisbois, M.J.) ("Eighth Circuit case law provides that courts should consider motions to amend prior to ruling on motions to dismiss.") (citing Pure Country, Inc. v. Sigma Chi Fraternity , 312 F.3d 952, 955-56 (8th Cir. 2002)), adopted by, 2014 U.S. Dist. LEXIS 33148 (D. Minn. Mar. 14, 2014) (Frank, J.).
III. PLAINTIFF'S MOTION TO AMEND THE AMENDED COMPLAINT [Docket No. 54].
Plaintiff moves the Court for leave to amend the operative complaint in a number of respects: 1) to add a deliberate indifference Bivens claim against the Federal Bureau of Prisons (See Motion to Amend Am. Compl. [Docket No. 54], Attachment 1, ¶ 219); 2) to amend his state law negligence claim alleging failure to provide reasonable treatment for his heart condition to name Defendant Harvey instead of the United States (see Id. at ¶¶ 236-37); 3) to amend his state law negligence claim alleging deliberate indifference by denying a stress-echo test to name Defendant Mock instead of the United States (see Id. at ¶¶ 240-41); 4) to amend his state law negligence claim alleging failure to provide treatment for his medical needs to name Defendant Bennett instead of the United States (see Id. at ¶¶ 244-45); 5) to add a state law negligence claim against Defendant Mayer alleging he impeded Plaintiff's access to a reasonable course of medical treatment (see Id. at ¶¶ 248-51); and 6) to add a second state law negligence claim against Defendant Mayer alleging he purposely avoided evidence in misdiagnosing Plaintiff (see Id. at ¶¶ 252-55).
For the following reasons, the Court will DENY Plaintiff's Motion to Amend the Amended Complaint, [Docket No. 54].
A. Standard of Review
Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleading with the opposing party's written consent or the court's leave, and Rule 15 instructs that "[t]he court should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). The Supreme Court has explained the purposes of Rule 15(a) as follows:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of such an apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. - the leave sought should, as the rules require, be "freely given."
Foman v. Davis , 371 U.S. 178, 182 (1962). Although "parties do not have an absolute right to amend their pleadings, even under this liberal standard, " Sherman v. Winco Fireworks, Inc. , 532 F.3d 709, 715 (8th Cir. 2008), the Court begins its review "with a presumption of liberality." ...