United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Keith Shane Macleod is currently confined at United States Penitentiary ("USP")-McCreary in Pine Knot, Kentucky. Proceeding without an attorney, Macleod filed a civil rights complaint pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), against employees at several prisons where he has been confined. [Record No. 1] Because Macleod has been granted permission to pay the filing fee in installments, and because he asserts claims against government officials, the Court will conduct a preliminary review of his Complaint. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997).
For the reasons set forth below, Macleod's Bivens claims against Wardens Holland and Quintana will be dismissed for failure to state a claim upon which relief can be granted. His negligence claims against Dr. Onuoha will be dismissed for lack of jurisdiction and his official capacity Bivens claims against Dr. Onuoha and Dr. Vasquez will be dismissed; however, Macleod's individual capacity claims against both of them will be allowed to proceed. Finally, Macleod's Bivens claims against Grajales, Dr. Tidwell, Dr. Ortiz, and Jarvis will be dismissed for lack of personal jurisdiction.
Macleod alleges that he began experiencing back and neck pain while confined at USP-Coleman in 2011. Following a MRI, on September 27, 2011, the medical staff approved a surgical procedure. [Record No. 1-1, p. 2] After being transferred to USP-Victorville, Macleod was evaluated further. On March 15, 2012, he was again approved for surgery. [ Id., p. 4] Macleod alleges that officials at USP-Victorville did not perform the surgical procedure or provide necessary treatment for his condition. In August 2012, Macleod was transferred to USP-McCreary. Upon his arrival at that facility, Macleod advised the medical staff that he was in severe pain and needed surgery for his neck and back condition. He claims that the USP-McCreary medical staff (including Defendants Onuoha and Vazquez) ignored his complaints and instead treated his condition with pain medication. Eventually, Macleod underwent surgery on his neck, but he complains that he never had surgery on his back. [ Id., p. 6]
Macleod alleges that all of the defendants were deliberately indifferent to his serious medical needs in violation of his rights under the Eighth Amendment of the United States Constitution. Macleod further alleges that the defendants violated his Fifth Amendment due process rights. [Record No. 1, p. 8] Based on these claimed violations, he demands additional back surgery; treatment of an ankle injury; $50, 000 in compensatory damages; and $1 million in punitive damages. [ Id., p. 12]
A. Claims Against Warden Holland and Warden Quintana
Macleod alleges that Wardens Holland and Quintana knew about his medical conditions while incarcerated at USP-Coleman and USP-Victorville but neither warden took any action. However, his claims against both wardens fail because they may not be held liable as supervisors of their respective institutions. Under Bivens, a plaintiff must allege that a supervisor encouraged the specific incident of alleged misconduct or in some other way directly participated in it. Rose v. Caruso, 284 F.Appx. 279, 282-83 (6th Cir. 2008); Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994); Hays v. Jefferson County, Ky., 668 F.2d 869, 872 (6th Cir. 1982). "[F]or supervisory liability to attach, a plaintiff must allege and prove that the official did more than play a passive role in the alleged violation or showed mere tacit approval of the goings on.'" Loy v. Sexton, 132 F.Appx. 624, 626 (6th Cir. 2005) (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). In other words, liability under Bivens must be based on active unconstitutional behavior. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). A supervisor's awareness of allegations of unconstitutional conduct and failure to act are not a basis for liability. McCurtis v. Wood, 76 F.Appx. 632, 634 (6th Cir. 2003).
Macleod alleges only that Quintana and Holland failed to take action in response to his medical complaints. However, he does not allege that either was actively involved in the decisions relating to his medical treatment. Neither Quintana nor Holland may be held liable for the decisions of medical professionals at their respective institutions, absent some allegation that they were directly or personally involved in those medical decisions or condoned the allegedly unconstitutional actions. See Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984); see also Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) ("If a prisoner is under the care of medical experts... a non-medical prison official will generally be justified in believing that the prisoner is in capable hands."); Sanders v. United States, 760 F.2d 869, 872 (8th Cir. 1985) (holding that the warden of a federal medical center could not be liable under doctrine of respondeat superior for a prisoner's alleged inadequate medical treatment, absent a showing of warden's personal involvement in the alleged negligent acts); Bryant v. Carlson, 652 F.Supp. 1286, 1287-88 (D.D.C. 1987) (holding that the penitentiary warden could not be liable to a prisoner under the respondeat superior theory).
Although Macleod complains about the denial of his administrative grievances, the denial of a grievance or the failure to act upon the filing of a grievance is insufficient to establish liability under either Bivens or 42 U.S.C. § 1983. See Johnson v. Aramark, 482 F.Appx. 992, 993 (6th Cir. 2012); Alder v. Correctional Med. Servcs., 73 F.Appx. 839, 841 (6th Cir. 2003); Martin v. Harvey, 14 F.Appx. 307, 309 (6th Cir. 2001) ("The denial of the grievance is not the same as the denial of a request to receive medical care."); Shehee, 199 F.3d at 300. Further, the denial of administrative remedies does not constitute a violation of Macleod's Fifth Amendment right to due process of law, because there is no inherent constitutional right to an effective or responsive prison grievance procedure. Argue v. Hofmeyer, 80 F.Appx. 427, 430 (6th Cir. 2003); Overholt v. Unibase Data Entry, Inc., 221 F.3d 1335, 2000 WL 799760, at *3 (6th Cir. June 14, 2000) (Table) ("Hence, [plaintiff's] allegations that the defendants did not properly respond to his grievances simply do not rise to the level of a constitutional violation."); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). Based upon the foregoing, Macleod's Fifth and Eighth Amendment Bivens claims against Holland and Quintana will be dismissed.
B. Dr. Onuoha and Dr. Vazquez
Macleod asserts two claims against Dr. Onuoha: negligence and deliberate indifference to his medical needs. Macleod's negligence claims fall under the Federal Tort Claims Act, ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. The FTCA permits an action against the United States for wrongful acts committed by its employees during the course of their employment. See Fitch v. United States, 513 F.2d 1013, 1015 (6th Cir. 1975); United States v. Orleans, 425 U.S. 807, 813 (1975). It is the exclusive remedy for such acts or omissions. 28 U.S.C. § 2679.
An FTCA action is barred unless: (1) an administrative claim is presented to the appropriate federal agency for administrative settlement within two years of its accrual and (2) the agency has denied the claim. 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 111 (1993); Garrett v. United States, 640 F.2d 24, 25 (6th Cir. 1981). A claimant must then commence an action in federal court within six months of the agency's denial of the claim. 28 U.S.C. § 2401(b); Blakely v. United States, 276 F.3d 853, 865 (6th Cir. 2002). Compliance with both conditions is a jurisdictional prerequisite to filing suit under the FTCA in federal court. The claim is barred absent satisfaction of both requirements. 28 U.S.C. § 2401(b); Blakely, 276 F.3d at 865; Rogers v. United States, 675 F.2d 123 (6th Cir. 1982); Garrett, 640 F.2d at 25. If the plaintiff fails to file an administrative claim and receive a denial from the agency before filing suit, the district court has no subject matter jurisdiction over an FTCA claim against the United States and ...