Goyer v. B. Ashe "Camp Admin"

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BRYAN GOYER, Plaintiff, v. B. ASHE “CAMP ADMIN” and THE UNITED STATES OF AMERICA, Defendants.

No. 21-cv-2059-JTF-atc

United States District Court, W.D. Tennessee, Western Division

January 16, 2024

ORDER GRANTING MOTION FOR EXTENSION OF TIME TO AMEND (ECF NO. 7) DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS (ECF NO. 7); DISMISSING THE AMENDED COMPLAINT (ECF NO. 8) WITH PREJUDICE; CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH; NOTIFYING GOYER OF THE APPELLATE FILING FEE; AND NOTIFYING GOYER OF THE COURT'S STRIKE RECOMMENDATION PURSUANT TO 28 U.S.C. § 1915(G)

JOHN T. FOWLKES, JR., UNITED STATES DISTRICT JUDGE

Before the Court are pro se Plaintiff Bryan Goyer's (1) “Motion To File Timely Appeal And Motion For Extension Of Time ... To Amend”, which he filed on May 1, 2023 (ECF No. 7 (“May 1 Motion”)); and (2) “Motion To Amend Claims”, which he filed on May 5, 2023. (ECF No. 8 (“May 5 Motion”).)

For the reasons explained below: (1) the May 1 Motion (ECF No. 7) is DENIED to the extent Goyer seeks leave to appeal in forma pauperis the Court's April 4, 2023 “Order Dismissing The Complaint With Prejudice In Part And Without Prejudice In Part And Granting Leave To Amend The Claims Dismissed Without Prejudice” (ECF No. 6 (“Screening Order”)); (2) the May 1 Motion (ECF No. 7) is GRANTED to the extent Goyer seeks an extension of time to amend the complaint's claims that the Court dismissed without prejudice in the Screening Order; (3) the May 5 Motion, which is construed as an amended complaint (ECF No. 8 “Amended Complaint”), is DISMISSED WITH PREJUDICE for failure to allege facts stating a claim to relief; and (4) leave to amend the Amended Complaint is DENIED.

I. BACKGROUND

The factual and procedural background of the case is set forth in the Screening Order, which dismissed the complaint (ECF No. 1) with prejudice in part and without prejudice in part. (See ECF No. 6 at PageID 26-27.) In the Screening Order, the Court granted leave to amend, within twenty-one (21) days, Goyer's claim under the Federal Tort Claims Act, 28 U.S.C. § 261, et seq. (“FTCA”) against Defendant United States of America (“USA”) arising (1) from the Incident^[1] and (2) from alleged malpractice during the period January 20, 2018 through January 19, 2021 (referred to as the “Claim Dismissed Without Prejudice”). (Id. at PageID 39.) Pursuant to the Screening Order, Goyer's deadline to amend the Claim Dismissed Without Prejudice was Tuesday, April 25, 2023. On April 4, 2023, the Clerk of Court mailed the Screening Order to Goyer at the Federal Correctional Institute in Milan, Michigan (“FCI-Milan”).^[2]

II. THE MAY 1 MOTION

A. Request For Extension Of Time To Amend

In the May 1 Motion, Goyer “asks the Court for an extension of time to amend his complaint due to late notification of ... [the] Court's [Screening Order] decision.” (ECF No. 7 at PageID 42.) Goyer alleges that he received the Screening Order on April 21, 2023. (Id. at PageID 41.)

For good cause shown, the Court GRANTS the May 1 Motion (ECF No. 7) to the extent Goyer seeks an extension of time to amend the Claim Dismissed Without Prejudice. The May 5 Motion (ECF 8) is construed as Goyer's amendment of the Claim Dismissed Without Prejudice. The instant Order will screen the Amended Complaint (ECF No. 8) pursuant to the Prison Litigation Reform Act, 28 U.S.C. §§ 1915, et seq. (“PLRA”).

B. Request For Leave To Appeal The Screening Order

In the May 1 Motion, Goyer also seeks to “file timely appeal with prejudice in part [sic].” (ECF No. 7 at PageID 41.) Goyer's request is construed as an application seeking leave to appeal in forma pauperis the Screening Order's dismissal of the Claims Dismissed With Prejudice. For two reasons, Goyer's request is not well taken.

First, the Screening Order's dismissal of the complaint with leave to amend is neither an appealable final order nor an appealable interlocutory or collateral order.

The dismissal of an action without prejudice may be appealable. See 28 U.S.C. § 1291 (“The court of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States”). The appealability inquiry turns on whether a dismissal without prejudice constitutes a final order under § 1291. Azar v. Conley, 480 F.2d 220, 222-23 (6th Cir. 1973) (internal citations omitted). “For a dismissal without prejudice to be inherently final, it must, as a practical matter, prevent the parties from further litigating the merits of the case in federal court.” Robert N. Clemens Tr. v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th Cir. 2007) (internal citation omitted). “Courts of appeals have uniformly held that an order dismissing a complaint is not a final order when it is possible for a plaintiff to file an amended complaint resurrecting the lawsuit.” Network Commc'n v. Mich. Bell Tel. Co., 906 F.2d 237, 238 (6th Cir. 1990) (citing cases). The Screening Order is not an appealable final decision because the Court “dismiss[ed] [the] complaint, as opposed to [the] action.” See Thompson v. Mich. Dep't of Corr., 23 Fed.Appx. 486, 487-88 (6th Cir. 2001). The Screening Order did not, “as a practical matter, prevent the parties from further litigating the merits of the case in federal court.” See United States v. Yeager, 303 F.3d 661, 664 (6th Cir. 2002). The Screening Order is a non-appealable nonfinal order because the Court granted leave to amend the complaint (ECF No. 6 at PageID 39-40) and did “not ... enter[ ] a final judgment.” See Clemens, 485 F.3d at 845.

Second, the May 1 Motion would not, in any event, satisfy the requirements of 28 U.S.C. § 1915(a) to proceed in forma pauperis on appeal.

To ensure access to the courts, 28 U.S.C. § 1915(a) permits an indigent plaintiff to avoid payment of filing fees by filing an in forma pauperis affidavit. Under that section:

any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.

28 U.S.C. § 1915(a). The Court must conduct a satisfactory inquiry into a plaintiff's ability to pay the filing fee and prosecute the lawsuit. Id. A plaintiff seeking in forma pauperis standing must respond fully to the questions on the Court's in forma pauperis form^[3] and execute the affidavit in compliance with the certification requirements in 28 U.S.C. § 1746. See Neal v. Shelby Cnty. Gov't Cnty. Services Agency, No. 08-2160, 2008 WL 11498159, at *1 (W.D. Tenn. Aug. 1, 2008) (citing Reynolds v. Fed. Bur. of Prisons, 30 Fed.Appx. 574 (6^th Cir. 2002)).

Here, Goyer's May 1 Motion does not include a properly completed in forma pauperis affidavit.

For the reasons explained above, the May 1 Motion (ECF No. 7) is DENIED to the extent Goyer seeks leave to appeal in forma pauperis the Screening Order's dismissal of the Claims Dismissed With Prejudice.

III. THE MAY 5 MOTION (THE AMENDED COMPLAINT)

In the initial complaint (ECF No. 1), Goyer alleged that the USA breached a duty of care by: (1) not checking his blood sugar levels during his confinement at the SPC-Millington^[4]; and (2) “den[ying] and/or delay[ing] medical treatment [to Goyer] by trainer healthcare professionals” during the Incident (see ECF No. 6 at PageID 26) “largely due to the fact that SPC-Millington does not have medical staff available 24 hours.” (ECF No. 1 at PageID 4-5.) In the Screening Order, the Court (1) dismissed the following claims with prejudice: (a) Goyer's claim under the FTCA against Ashe; (b) Goyer's claim under the FTCA against the USA arising from alleged medical malpractice during the period December 27, 2016 through January 19, 2018; (c) Goyer's Medical Care Claim; and (d) Goyer's Excessive Force Claim (collectively, the “Claims Dismissed With Prejudice”); and (2) granted leave to amend the Claim Dismissed Without Prejudice. (ECF No. 6 at PageID 28-32 & 36-39.)

In the Amended Complaint, Goyer alleges that the USA “violate[d] its duty of care owed to the Plaintiff' because SPC-Millington officers did not observe “Guidelines For Duty Officers Reporting To High Levels, Responsibilities, Confidentiality, And Documentation.”

(ECF No. 8 at PageID 44-45 (citing to ECF No. 8 at PageID 55-59) (referred to as the “Procedures”).) The Procedures cited by Goyer set types of situations at Federal Bureau of Prisons (“BOP”) facilities for which a duty officer must report such incident to a regional duty officer. (See id. at PageID 55-59; see also https://www.bop.gov/policy/progstat/5502011.pdf (last accessed Jan. 16, 2024).) Goyer alleges that when the Incident occurred, “911 was supposed to be called immediately. Instead, Mr. Goyer was forced to sit for an hour and plus minutes having multiple seizures as his condition worses [sic].” (ECF No. 8 at PageID 48.) As pertinent to the claims in the Amended Complaint, the Procedures do not (1) address whether a duty officer must immediately contact outside medical personnel for particular types of prisoner medical situations or (2) set forth the time within which BOP personnel must transport an inmate to an outside medical facility in health emergencies. (See id. at PageID 55-59; see also https://www.bop.gov/policy/progstat/5502 011.pdf (last accessed Jan. 16, 2024).)

Goyer further alleges that “staff avoided use of [a] video camera” during the Incident. (ECF No. 8 at PageID 48.) The Procedures do not address whether BOP personnel are...