United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
DAVID L. BUNNING, District Judge.
Plaintiff Stephen Villarreal is currently confined by the Bureau of Prisons ("BOP") in the Residential Reentry Management ("RRM") field office located in San Antonio, Texas. Proceeding without counsel, Villarreal has filed a civil rights complaint, asserting constitutional claims under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). (Doc. #1). By separate Order, the court has granted Villarreal's motion to proceed in forma pauperis. (Doc. #4).
The Court has conducted a preliminary review of Villarreal's complaint because he asserts claims against a government official and because he has been granted pauper status. 28 U.S.C. §§ 1915(e)(2)(B), 1915A. Because Villarreal is not represented by an attorney, the Court liberally construes his claims and accepts his factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). For the reasons set forth below, the Court will dismiss some of Villarreal's claims, but will allow others to proceed.
II. ALLEGATIONS OF THE COMPLAINT
Villarreal claims that from the time he arrived at USP-McCreary in 2012, he has experienced various adverse side effects of Hepatitis C, such as nausea, fatigue, joint pain, liver pain, depression, anxiety, and loss of appetite. Villarreal contends that the USP-McCreary medical staff has failed to adequately treat his Hepatitis C condition. Specifically, Villarreal alleges that prison medical staff has failed and/or refused to provide him with Interferon and Ribaviran, medications which he alleges will give him a "Sustained Virological Load." (Doc. #1, at 2). Villarreal alleges that the USP-McCreary medical staff informed him that he had been approved to receive these medications, but that as of January 13, 2014, he had not received the treatment therapy. Villarreal contends that by failing and/or refusing to administer these medications to him, the USP-McCreary medical staff has been deliberately indifferent to his serious medical needs, in violation of his rights guaranteed by the Eighth Amendment of the U.S. Constitution, which prohibits cruel and unusual punishment.
Villarreal states that between April 30, 2013, and June 10, 2013, he exhausted his medical claims through all levels of the BOP's administrative remedy process, but that the BOP Central Office never responded to his final appeal. (Doc. #1, at 5). He further alleges that in May 2013, the BOP informed him that he would undergo a liver biopsy, but that as of January 13, 2014, the liver biopsy had not been performed. ( Id. ); see also (Doc. #1, at 4) (stating that the Utilization Review Committee had approved Villarreal for a liver biopsy). Villarreal requests both injunctive relief and monetary damages: both an order directing the USP-McCreary medical staff to provide him with the Interferon and Ribaviran medications and unspecified monetary and punitive damages to compensate him for his pain and suffering. ( Id. at 8).
A. Injunctive Relief and Bivens Official Capacity Claims
Villarreal's claims seeking injunctive relief regarding his medical treatment will be denied as moot. As noted, Villarreal is now confined in the RRM facility in San Antonio Texas, and is no longer confined in USP-McCreary. A prisoner's request for injunctive relief becomes moot when he is transferred to another facility. See Coleman v. Bowerman, 474 F.App'x 435, 438 (6th Cir. 2012); Cardinal v. Metrish, 564 F.3d 794, 798-99 (6th Cir. 2009); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (holding prisoner's claim for injunctive and declaratory relief mooted by his transfer to new facility).
To the extent that Villarreal may be asserting claims for money damages against the three named USP-McCreary officials in their official capacities, he cannot proceed. A claim under Bivens can only be asserted against federal officials sued in their individual capacities. See Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991); Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987); see also Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (stating that Bivens actions are "against federal officials individually."). Thus, Villarreal cannot assert claims seeking monetary damages from these defendants in their official capacities.
B. Bivens Individual Capacity Claims
Villarreal's Eighth Amendment claims seeking monetary and punitive damages from USP-McCreary Warden J.C. Holland, in his individual capacity, will be dismissed without prejudice. Villarreal has named Holland as a defendant to this action, but he did not mention or refer to Holland in his summary of the events, nor did he allege facts which would indicate how Holland violated his Eighth Amendment rights relating to his medical treatment. Villarreal may have named Holland because he is the Warden and head administrator of USP-McCreary, but a Bivens claim requires a showing that the named defendant's action(s) resulted in the deprivation of a constitutional right. Rizzo v. Goode, 423 U.S. 362, 375-76 (1976). A supervisory government employee is only liable for his or her own misconduct. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009), and respondeat superior cannot form the basis of liability in a Bivens action. Jones v. City of Memphis, 586 F.2d 622, 625 (6th Cir. 1978). In other words, a plaintiff cannot assert a claim against a federal official merely because he had supervisory authority over subordinates who may have allegedly violated his federal constitutional rights.
Instead, a Bivens plaintiff must show that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. Gregory v. Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994). Villarreal does not, however, allege that Holland was directly or indirectly involved in any of allegedly adverse medical decisions, or that Holland encouraged any type of misconduct at USP-McCreary relative to his medical treatment. Villarreal may be basing his Eighth Amendment claims against Holland on the fact that Holland denied his administrative remedy on May 14, 2013, but the denial of a grievance or the failure to act upon the filing of a grievance is insufficient to establish liability under Bivens. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). ...