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Forrester v. Federal Bureau of Prisons

United States District Court, N.D. Ohio, Eastern Division

December 23, 2019

MICHAEL KEITH FORRESTER, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 1, 32]

          Benita Y. Pearson United States District Judge.

         Pending 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.

         I. Procedural Posture

         Pro se Plaintiff Michael Keith Forrester, a former federal prisoner, filed this Bivens[1]action 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”).

         The 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 #: 343.

         District Judge Kathleen Cardone accepted and adopted the Magistrate Judge's Report and Recommendation.[2] 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.

         One day 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. Id.

         Based 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.

         II. Factual Background

         Plaintiff 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 conditions.

         Plaintiff 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.

         Additional 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 ignored.

         On 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.

         Plaintiff 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 ...


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