United States District Court, D. Minnesota
REPORT & RECOMMENDATION
S. MAYERON UNITED STATES MAGISTRATE JUDGE
above matter came before the undersigned United States
Magistrate Judge upon defendant K. Gulbrandson's Motion
to Dismiss Complaint [Docket No. 21]. The matter has been referred
to this Court for a Report and Recommendation pursuant to 28
U.S.C. § 636 and Local Rule 72.1.
Brenda Banks is an inmate at the Federal Correctional
Institute in Waseca, Minnesota (“FCI-Waseca”). On
September 28, 2015, plaintiff filed a Complaint pursuant to
42 U.S.C. § 1983 in the United States District Court for
the Southern District of Ohio against Dr. Sandra Lauring,
Medical Director at FCI-Waseca, Julie Nicklin, Warden of
FCI-Waseca, and K. Gulbrandson, Medical Administrator at
FCI-Waseca. [Docket No. 1]. On October 9, 2015, the
case was transferred to this District. See Order of
Transfer in S.D. Ohio Case No. 1:15-cv-629 [Docket No. 2].
Complaint, plaintiff alleged as follows:
This action is regard [sic] to a failure to treat claim.
Plaintiff suffers from [left] groin, buttock, leg pain and
spasms and a charcot joint at the left ankle. Plaintiff goes
to medical daily and gets no response. FCI-Waseca is a
non-medical facility. There isn't any night medical
Complaint, p. 2.
alleged that her Eighth Amendment right against cruel and
unusual punishment had been violated. Id., p. 3.
According to plaintiff, she has been in severe pain for
months, and the medical department at FCI-Waseca has failed
to treat her. Id. Plaintiff alleged that she had
exhausted all administrative remedies available to her, and
she was now filing in federal district court. Id.,
support of her claim, plaintiff alleged the following facts:
I am a 62 y/o female who had L/5 spine surgery Dec. 2012. I
have done reasonably well since then except for bilateral
ankle swelling. I was finally DX with charcot joint [in the
left] ankle. Crowalker booths [sic] were prescribed and
However, I have a progressive worsening of pain [in the left]
groin, buttock, low back and leg that is constant.
(1) It prevents me from sleeping. I have severe cramps and
(2) I have to flex my torso to get relief.
(3) The pain is aching and dull, but contin[u]ous.
(4) The pain began about 22 Aug. 2015.
(5) I have associated nausea and decreased appetite.
(6) My [range of movement] is limited and my ability to
ambulate is decreasing.
(7) I use a walker after being in a wheelchair for eleven
(8) My ability to take a shower is now limited.
(9) I have changed bowel and bladder function.
(10) I am concerned about a [diagnosis] of multiple myeloma
(My maternal uncle died of the disease)
I have been to sick call numerous times. Sick call consist[s]
of seeing the EMT or nurse. Each time I was told I would be
put on a call out to see a provider (MD or PA). No pain
relief is achieved with anti-inflammatories or Tylenol. I
have asked to be sent to a medical facility like Carswell,
TX. I have seen the PA and doctor once in this past month. I
need to be seen by neurology or neurosurgery. I asked to go
to Carswell, TX, but was denied.
Id., pp. 6-7.
relief, plaintiff stated that because she had only eight
months remaining in her sentence, she should be granted early
home confinement in order to consult with her own health care
team that knew her medical conditions and would properly
treat her. Id., p. 5.
Gulbrandson's Motion to Dismiss
15, 2016, defendant Gulbrandson filed the instant motion to
dismiss the Complaint. [Docket No. 21]. In support of the
motion, Gulbrandson argued that plaintiff failed to exhaust
her available administrative remedies, as required under the
Prisoner Litigation Reform Act of 1995 (“PLRA”),
42 U.S.C. § 1997e(a). Memorandum in Support of Motion to
Dismiss Complaint (“Def's Mem.”), [Docket No.
22], pp. 6-9. Although plaintiff has used some of the
BOP's administrative remedy process, she has not fully
exhausted her administrative remedies as required under the
PLRA. Id., p. 8.
also contended that the United States has not waived
sovereign immunity as to official-capacity constitutional
claims. Id., pp. 9-10. Because Plaintiff's
Complaint does not state whether she is suing defendants in
their official or individual capacities, this Court must
interpret the complaint as including only official capacity
claims. Id., p. 9 (citing Andrus ex rel. Andrus
v. Arkansas, 197 F.3d 953, 955 (8th Cir.1999) (“In
actions against officers, specific pleading of individual
capacity is required to put public officials on notice that
they will be exposed to personal liability.”);
Egerdahl v. Hibbing Comm. Coll., 72 F.3d 615, 619
(8th Cir. 1995) (If “the plaintiff's complaint is
silent about the capacity in which she is suing the
defendant, [courts] interpret the complaint as including only
official-capacity claims.”)). Further, suits against
public officials acting in their official capacities are
treated as suits against the public entity, and therefore,
plaintiff's Complaint should be interpreted as raising an
Eighth Amendment deliberate-indifference claim against the
United States. Id. (citing Kentucky v.
Graham, 473 U.S. 159, 166 (1985); Elder-Keep v.
Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A
suit against a public official in his official capacity is
actually a suit against the entity for which the official is
an agent.”)). The United States has not waived its
sovereign immunity from civil lawsuits in this case.
Consequently, plaintiff's Complaint must be dismissed.
Id., p. 10 (citing Orff v. United States,
545 U.S. 596, 601 (2005); FDIC v. Meyer, 510 U.S.
471, 477-78 (1994); United States v. Mitchell, 463
U.S. 206, 212 (1983); Harje v. F.T.C., 106 F.3d
1406, 1408 (8th Cir. 1997)).
18, 2016, this Court issued an Order directing plaintiff to
serve and file a response to defendant Gulbrandson's
motion to dismiss on or before August 15, 2016. [Docket No.
25]. To date, plaintiff has not served or filed any response.
Plaintiff's failure to respond is a sufficient basis to
grant Gulbrandson's motion. Mark v. Ault, 498
F.3d 775, 786 (8th Cir. 2007) (holding that a party's
“failure to raise or discuss an issue in his brief
[would] be deemed an abandonment of that issue.”)
(quoting Hacker v. Barnhart, 459 F.3d 934, 937 n.2
(8th Cir. 2006)); Christensen v. PennyMac Loan Servs.,
Inc., 988 F.Supp.2d 1036, 1042 (D. Minn. 2013)
(“Plaintiff's failure to respond amounts to a
waiver, and on that basis alone, defendants' motion to
dismiss should be granted.”) (citations omitted);
cf. Stransky v. Cummins Engine Co., Inc., 51 F.3d
1329, 1335 (7th Cir. 1995) (When “presented with a
motion to dismiss, the non-moving party must proffer some
legal basis to support his cause of action. The federal
courts will not invent legal arguments for
litigants.”). Nevertheless, for completeness, the Court
addresses the substance of Gulbrandson's motion.
Administrative Remedy Procedure
Federal Bureau of Prisons (“BOP”) has a
four-tiered Administrative Remedy Program, as set forth in
the Code of Federal Regulations. Declaration of Shannon Boldt
(“Boldt Decl.”) [Docket No. 23], ¶ 6 (citing
28 C.F.R. § 542.10 et seq.).
inmate shall first present an issue of concern informally to
staff, and staff shall attempt to informally resolve the
issue before an inmate submits a Request for Administrative
Remedy.” 28 C.F.R. § 542.13(a). A Request for
Informal Resolution Form, also known as a “BP-8,
” is not assigned a Remedy ID number and is not
tracked. Boldt Decl., ¶ 7.
inmate is unable to resolve the complaint informally, the
inmate may proceed to the second step-the filing of a formal
Request for Administrative Remedy (“BP-9”) at the
institution in which the inmate is incarcerated. Id.
(citing 28 C.F.R. § 542.14). The inmate must complete
the first and second steps within 20 calendar ...