United States District Court, D. Oregon, Portland Division
GARCIA, JR. PLAINTIFF PRO SE
J. WILLIAMS UNITED STATES ATTORNEY JARED D. HAGER ASSISTANT
UNITED STATES ATTORNEY DISTRICT OF OREGON ATTORNEYS FOR
OPINION & ORDER
A Hernandez United States District Judge.
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. 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.
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.
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.
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.
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
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.
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.
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.
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.
seeks economic and non-economic damages, as well as punitive
damages, reasonable attorney's fees, and costs.
Service of Process
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
Subject Matter Jurisdiction
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