United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
Y. Pearson United States District Judge.
before the Court is Health Service Administrator Barnes',
Dr. J. Dunlop's, and Physicians Assistant Griffith's
(Collectively, “Ohio Defendants”) Motion to
Dismiss. ECF No. 32. Plaintiff did not respond. The
Court has reviewed the parties' filings and the
applicable law. For the reasons stated herein, the Ohio
Defendants' Motion is granted.
se Plaintiff Michael Keith Forrester, a former federal
prisoner, filed this Bivensaction in the United States
District Court for the Western District of Texas on September
7, 2018. ECF No. 1-1. In Forrester's Complaint, he
alleges numerous instances of negligence, medical deliberate
indifference and poor living conditions while incarcerated in
FCI La Tuna in Anthony, Texas from April 9, 2014 to February
24, 2016 and then in FCI Elkton in Lisbon, Ohio from March 1,
2016 until his release from prison on October 26, 2017. He
named as Defendants the Federal Bureau of Prisons
(“BOP”) South Central Region, the BOP Northeast
Region, seven Defendants employed by the La Tuna prison
(“Texas Defendants”), and FCI Elkton Health
Services Administrator Barnes, Dr. J. Dunlop, and Physicians
Assistant Griffith (as noted, “Ohio Defendants”).
Texas Defendants and Ohio Defendants each filed Motions to
Dismiss (ECF Nos. 31 and 32). The Magistrate Judge to whom
the matter was referred issued a Report and Recommendation.
ECF No. 36. First, he recommended granting the Texas
Defendants' Motion on the grounds that it was barred by
the statute of limitations. Id. at PageID #: 347. He
then separated the claims against Nurse Rios from those
against the other Texas Defendants, in part, because she was
not properly served, and recommended dismissal of the Fifth
and Fourteenth Amendment claims against her with prejudice;
it was also recommended that the Eighth Amendment claims
against Rios be dismissed without prejudice. Id. at
PageID#: 353. The Magistrate Judge recommended granting the
Ohio Defendants' Motion to Dismiss on the grounds that
the Court lacked personal jurisdiction over the Defendants.
Id. at PageID #: 349. In addition, the Magistrate
Judge recommended that the Bivens claims against the
Ohio Defendants be transferred to this Court. Id. at
PageID #: 354. The Magistrate Judge construed claims against
the BOP in the South Central Region and the Northeast Region
as claims against the United States under the Federal Tort
Claims Act (“FTCA”). Id. at PageID #:
Judge Kathleen Cardone accepted and adopted the Magistrate
Judge's Report and Recommendation. ECF No.
42. She granted the Motion to Dismiss filed by the Texas
Defendants (ECF No. 31) and dismissed the claims
against them with prejudice as time-barred. ECF No. 42 at
PageID #: 366. She ordered the claims against the Ohio
Defendants be transferred to this District Court but did not
address the portion of the Report and Recommendation that she
adopted which also granted the Motion to Dismiss.
Id. The Ohio Defendants' Motion to Dismiss
(ECF No. 32), however, was terminated on the docket.
The Court dismissed the Fifth and Fourteenth Amendment claims
against Nurse Rios with prejudice and dismissed the Eighth
Amendment claims against Rios without prejudice. Finally, the
Court ordered Plaintiff to file an Amended Complaint
asserting his FTCA claims against the government and any
Eighth Amendment claims against Rios which were not time
barred within twenty-one days of the order. ECF No. 42 at
PageID #: 365-66.
after issuing her order adopting the Report and
Recommendation, Judge Cardone issued another order which
clarified her intent with regard to the prior order (ECF
No. 42) and the status of the case. See W.D.
Tex. Docket 2018-CV-00261, ECF No. 43.
First, she clarified that all claims against the
individually-named Texas Defendants were dismissed, including
those against Rios. Id. Claims against the
individually-named Ohio Defendants and their Motion to
Dismiss were transferred to this Court. Id. Finally,
all claims against the BOP, including those asserted against
the Northeast Region, remained before the Texas Court.
on the clarification order (ECF No. 43), it appears
that only Plaintiff's Bivens claims asserted
against the Ohio Defendants (ECF No 1 at PageID #:
7-12) and the Ohio Defendants' Motion to Dismiss
(ECF No. 32) are before this Court.
was first incarcerated in FCI La Tuna in Anthony, Texas. He
alleges the living conditions at FCI La Tuna caused him to be
infected with anthrocosilicosis (“Black Lung”)
and coccidioides immitis (“Valley Fever').
Plaintiff was HIV positive prior to his incarceration at La
Tuna. He contends the Special Housing Unit
(“SHU”) did not have proper ventilation and he
was exposed to mold, asbestos, coal dust, and fungal spores.
He also alleges the walls of the SHU dripped a yellowish
liquid and the prison was infested with cockroaches. He
complained to prison staff about living conditions but was
only transferred from one cell to another without abating the
was transferred to FCI Elkton on March 1, 2016. On March 16,
2016, during a routine chest x-ray, a lesion approximately 20
mm in diameter was discovered on the middle lobe of his left
lung. Prison officials transported him to Salem Regional
Medical Center in Salem, Ohio where additional testing was
conducted. There, a pulmonologist offered a preliminary
diagnosis of non-tuberculosis mycobacterium pneumonia.
Plaintiff states he remained hospitalized for thirty days and
was started on different treatment regimes. He was released
from the hospital on April 15, 2016. At that time the lesion
had decreased in size to 12mm. He was prescribed three
different medications and was told to follow up with an
infectious disease physician. He claims the follow up
appointment did not occur.
chest x-rays were taken on April 20, 2016 to ensure the
treatment regime was working. The x-rays were read by a
private company with which the BOP contracted. Plaintiff
alleges the lesion continued to measure at 12 mm. One month
later on May 26, 2016, the lesion was determined to be 11 mm.
A third x-ray was taken in the summer of 2016. Based on that
x-ray the lesion was determined to have remained at 11mm. An
x-ray performed on September 9, 2016, just days after a CT
scan was performed, showed the lesion to be 16 mm x 14mm.
Plaintiff questions whether the individual who read the x-ray
was performing his or her job properly rather than simply
glancing at the image and moving on. A pocket of air and
fluid was found in the x-ray. Plaintiff states it was
April 6, 2017, Plaintiff had surgery to remove a portion of
his lung. He was hospitalized for three days. Once he was
returned to FCI Elkton, he developed an infection at the
surgical site. He claims the infection site was ignored for
several days before being cultured. He contends that the
pathology for the portion of removed lung tissue revealed the
presence of Black Lung and Valley Fever.
alleges he faced negligence, medical indifference, and
inadequate care while incarcerated at both institutions. He
seeks twenty-five million dollars in monetary damages
“for pain and suffering incurred by the Federal Bureau
of Prisons and its staff for cruel ...