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Garcia v. Sheridan Federal Correctional Institute

United States District Court, D. Oregon, Portland Division

February 19, 2019

ISRAEL GARCIA, JR., Plaintiff,



          OPINION & ORDER

          Marco A Hernandez United States District Judge.

         Pro se Plaintiff Israel Garcia, formerly an inmate at the Federal Correctional Institution in Sheridan, Oregon ("FCI Sheridan"), brings this action against Defendants Richard Ives, identified as the FCI Sheridan Warden, Kristina Behrens, R.N., a nurse at FCI Sheridan, Andrew Grasley, M.D., a physician at FCI Sheridan, and against FCI Sheridan itself.[1] Generally, Plaintiff raises claims concerning the medical care he received while he was an inmate at FCI Sheridan. More specifically, Plaintiff brings a claim against Behrens and Grasley pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), contending that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Compl. ¶¶ 22-24. Plaintiff also brings a common law medical negligence claim against all Defendants based on Behrens's and Grasley's conduct, or lack thereof. Id. ¶¶ 25-29.

         Defendants move to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim. They also challenge the adequacy of service of process. I agree with Defendants that service was not properly perfected. I also agree that the negligence claim must be dismissed because although the United States has waived its sovereign immunity for that claim under the Federal Torts Claim Act, the waiver is limited to the United States and does not extend to federal agencies or employees. I reject Defendants' argument that the Complaint fails to state a Bivens claim. Thus, I grant the motion directed to the negligence claim and allow Plaintiff to replead. I deny the motion as to the Bivens claim except as to the Doe Defendants. Although service was improper, I do not dismiss the Complaint but instead, quash the improper service and extend the time for Plaintiff to effect proper service.


         In the Complaint, Plaintiff alleges that at the time relevant to this action, he was in custody at FCI Sheridan. Compl. ¶¶ 3, 10. He contends that while incarcerated there, both Behrens and Grasley were working "under color of law" for FCI Sheridan. Id. ¶¶ 11, 12. On December 19, 2015, Plaintiff woke up with sharp abdominal pain around 4:00 a.m., consistent with an appendix "injury." Id. ¶ 13. He went to the Special Housing Unit with complaints of his pain. Id. Behrens provided care to him and Grasley co-signed the visitation note as the supervising physician. Id. Plaintiff alleges that Behrens told him it was nothing and that Plaintiff was probably drinking too much coffee. Id. He asserts that Behrens instructed him to drink water and to lie down. Id.

         The next day, December 20, 2015, Plaintiff continued to have symptoms of an appendix "injury." Id. ¶ 14. He again went to the Special Housing Unit for an evaluation of his "midline, right lower quadrant pain in his abdomen." Id. He alleges that he was treated for pain, but that no antibiotics were provided and no further testing was ordered. Id. He asserts that Behrens again saw him during this visit and told him to sleep and drink water. Id.

         Nearly one year later, in November 2016, Plaintiff, who apparently had transferred to a different correctional institution, presented to Health Services. Id. ¶ 15. Lab tests and an ultrasound were ordered. Id. Several days later, he complained of abdominal pain. Id. The next day, he presented to Health Services to follow up on the previous day's complaint of abdominal pain, but he also reported night chills and pain at a level 9 out of 10. Id. ¶ 17. He was transferred to a local medical center where it was discovered that he had a ruptured appendix. Id.

         Plaintiff had surgery for the appendix. Id. ¶ 18. He alleges that during that operation, doctors discovered "physical findings consistent with a prolonged period of inflammation, scar formation, abscess development encased around the omentum, and other abdominal structures with over a half liter of pus." Id. He contends that the surgeon described an explosion of the appendix with "dense fibrinous exudate." Id. Plaintiff contends that his appendix burst in November 2015 and the infection had spread thereafter. Id.

         Post-operatively, Plaintiff developed complications including sepsis, small bowel obstruction, and a perforated cecum. Id. ¶ 19. In addition to the removal of his ruptured appendix, he had part of his intestines and part of his colon removed as well. Id. He alleges that he continues to experience substantial abdominal pain. Id.

         In support of his Bivens claim, Plaintiff alleges that he has an Eighth Amendment right to be free from cruel and unusual punishment and that Behrens and Grasley violated his rights when they were deliberately indifferent to his serious medical needs. Id. ¶ 23. Plaintiff contends that Behrens and Grasley knew that Plaintiff's condition warranted intense observation and/or ultrasound. Id. Yet, neither was ordered. Id. Further, Plaintiff alleges that Behrens should have asked Grasley to "review the patient as soon as possible." Id. They should have ordered a CT scan of his abdomen because his symptoms clearly indicated appendicitis. Id. Plaintiff alleges that the decision by Behrens and Grasley "to not officially diagnose, confirm, or treat Plaintiff's appendicitis caused unnecessary and wanton infliction of pain." Id.

         In support of his medical negligence claim, Plaintiff incorporates his previous allegations and further alleges that each Defendant owed Plaintiff a duty of reasonable care to appropriately assess the nature and extent of his condition, as well as appropriately diagnose and treat that condition. Id. ¶ 26. He alleges that upon information and belief, Defendants worked for, were employed by, or were apparent agents of FCI Sheridan and the federal Bureau of Prisons. Id. ¶ 27. He asserts that FCI Sheridan is vicariously liable for Behrens's and Grasley's actions and omissions. Id. He then alleges seven specific instances of the breach of duty of care by Behrens and Grasley. Id. ¶ 28. He also alleges that Behrens additionally breached her duty of care when she failed to ask Grasley to evaluate Plaintiff on December 19 and 20, 2015. Id. ¶ 29.

         Plaintiff seeks economic and non-economic damages, as well as punitive damages, reasonable attorney's fees, and costs.


         I. Service of Process

         Federal Rule of Civil Procedure 12(b)(5) allows a defendant to move to dismiss the action where the service of process of a summons and complaint is insufficient. Fed.R.Civ.P. 12(b)(5). Once a party challenges the sufficiency of process under Rule 12(b)(5), "the party on whose behalf service is made has the burden of establishing its validity." Neilson v. Beck, No. CV-94-520-FR, 1994 WL 578465, at *3 (D. Or. Oct. 18, 1994). The court may consider evidence outside the pleadings in resolving a Rule 12(b)(5) motion. See Lachick v. McMonagle, No. CIV. A. 97-7369, 1998 WL 800325, at *2 (E.D. Pa. Nov. 16, 1998) ("Factual contentions regarding the manner in which service was executed may be made through affidavits, depositions, and oral testimony.").

         II. Subject Matter Jurisdiction

         "The United States, including its agencies and employees, can be sued only to the extent that it has expressly waived its sovereign immunity." Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1117 (9th Cir. 2003). Absent a waiver of sovereign immunity, federal courts have no subject matter jurisdiction in cases against the United States government. United States v. Kitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may ...

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