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Brenda Banks v. Gulbrandson

United States District Court, D. Minnesota

October 5, 2016

BRENDA BANKS, Plaintiff,
K. GULBRANDSON et al., Defendants.



         The above matter came before the undersigned United States Magistrate Judge upon defendant K. Gulbrandson's Motion to Dismiss Complaint [Docket No. 21].[1] 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.

         I. BACKGROUND

         A. Plaintiff's Complaint

         Plaintiff 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.[2] [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].

         In her 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 staff.

Complaint, p. 2.

         Plaintiff 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., p. 5.

         In 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 helped.
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 pain.
(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 months.
(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.

         For 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.

         B. Gulbrandson's Motion to Dismiss

         On July 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.

         Gulbrandson 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)).

         On July 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.

         C. Administrative Remedy Procedure

         The 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.).

         “[A]n 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.

         If the 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. ยง 542.14). The inmate must complete the first and second steps within 20 calendar ...

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