Rodd v. Lariva

515 F.Supp.3d 1006

Jeffrey Charles RODD, Plaintiff,

v.Warden Leann LARIVA, Assistant Warden M. Smith, P.A. Norman Booth, Chief Dr. Sheila Hadaway, Dr. Nancy Jordan, Dr. Mark Kidman, and N.P. Tonya Birks, Defendants.

Case No. 19-CV-2115 (NEB/ECW)

United States District Court, D. Minnesota.

Signed January 27, 2021

Jeffrey Charles Rodd, Mound, MN, pro se.

Adam J. Hoskins, Ana H. Voss, United States Attorney's Office, Minneapolis, MN, for Defendants.

ORDER ON MOTION TO DISMISS AND MOTION TO APPOINT COUNSEL

Nancy E. Brasel, United States District Judge

Plaintiff Jeffrey Charles Rodd alleges that, in December 2014, while incarcerated at Federal Prison Camp—Duluth ("FPC Duluth"), he was forced to wait thirty or forty minutes outside in sub-zero temperatures. (ECF No. 1 ("Compl.") at 4.) He claims injuries resulting from this time spent outside and the medical care he received afterward. (Id. at 10–11.) Rodd brought this suit against various prison staff ("Defendants") claiming that their actions violated his Eighth Amendment rights by showing deliberate indifference to his medical needs, and that they engaged in medical malpractice by failing to treat his eye problems. (ECF No. 3 ("Memorandum")¹ at 4.) This matter is before the Court on Defendants’ motion to dismiss (ECF No. 39) and Rodd's motion to appoint counsel (ECF No. 49). For the reasons that follow, the Court grants Defendants’ motion to dismiss and denies Rodd's motion to appoint counsel.

BACKGROUND

In December 2014, Rodd was housed at FPC Duluth. (Compl. at 4.² ) Rodd, who uses a wheelchair, had to travel outside to get from his dorm building to the administrative building, where he receives his medications. (Id. ) On the morning of December 15, 2014, there was snow on the wheelchair ramp, and Rodd had to wait outside thirty or forty minutes while the ramp was shoveled. (Id. ) When he reached the administrative building, Rodd's eyes had frozen shut and were "watering and very red." (Id. ) Rodd alleges that he later discovered that the temperature was more than fifty degrees below zero. (Id. )

For the next week, Rodd's eyes continued to be sore, red, and watery. (Id. ) In February 2015, Rodd saw an eye doctor, Dr. Mark Kidman, who told him that he had fast-developing cataracts. (Id. at 5–6.) The following June, Dr. Kidman again told Rodd that he had cataracts, and Rodd informed Dr. Kidman that he could not see out of his left eye and could barely see out of his right eye. (Id. at 6.) In September 2016, the eye doctor determined that Rodd was completely blind in his left eye and ninety percent blind in his right eye; the eye doctor then referred Rodd to an ophthalmologist at the Mayo Clinic. (Id. at 6–7.)

On November 28, 2016, Rodd saw the ophthalmologist, who told Rodd that he would need surgery. The surgery was scheduled for the following January, though it was later delayed until April. (Id. at 7–8.) During the April surgery, doctors replaced Rodd's left eye lens. (Id. at 8.) The ophthalmologist allegedly told Rodd that, out of the 13,000 surgeries he had performed, Rodd's cataract was the worst he had seen. (Id. at 8–9.) The ophthalmologist scheduled surgery for Rodd's right eye for May 2017, but the Bureau of Prisons ("BOP") later canceled this procedure. (Id. at 9.) It was rescheduled for August. (Id. at 10.) In the interim, Rodd claims he suffered from headaches and eye flashes. (Id. at 9.) On August 12, 2017, Rodd underwent successful surgery on his right eye. (Id. at 10.)

As a result of these events, particularly the delays in the surgeries, Rodd claims that he spent two years effectively blind, and that he suffered additional various injuries: his eyes changed color as a result of a dye used in procedures; his eyes no longer dilate; he looks "beady eyed"; he suffers eye pains, "flashers," and headaches; his eyes burn and itch; he cannot see well; his eyes get tired; and his hand-eye coordination is poor. (Id. at 10–11.)

Rodd brought this suit in August 2019, alleging (1) that Defendants violated his Eighth Amendment rights by showing deliberate indifference to his medical needs and (2) that Defendants were negligent or committed medical malpractice and thus liable under the Federal Tort Claims Act ("FTCA"). (Compl.; Memorandum.) United States Magistrate Judge Elizabeth Cowan Wright permitted Rodd to proceed in forma pauperis but denied his request to appoint counsel. (ECF No. 8.) In October 2020, Defendants filed this motion to dismiss, (ECF No. 39); shortly after, Rodd filed a second Motion to Appoint Counsel, (ECF No. 49). Because Rodd did not exhaust his administrative remedies and did not timely bring his FTCA claims, Defendants’ motion to dismiss is granted. Rodd's motion to appoint counsel is denied.

ANALYSIS

I. Bivens Claims

The Prison Litigation Reform Act ("PLRA") requires prisoners to exhaust administrative remedies before bringing a suit regarding prison conditions. 42 U.S.C. § 1997e(a). A suit regarding prison conditions includes both claims about "general circumstances" of confinement and claims regarding "particular episodes." Porter v. Nussle , 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Administrative exhaustion is required regardless of the nature of the relief the prisoner seeks. Booth v. Churner , 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The PLRA does not specify an exhaustion procedure; for a prisoner's claims to be considered administratively exhausted, the prisoner must follow the grievance procedure of the facility where they are incarcerated. Jones v. Bock , 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

The BOP has a four-step administrative remedy procedure. (ECF No. 41 at 4–5; ECF No. 43 ¶¶ 5–9); 28 C.F.R. §§ 542.10 – .19. First, a prisoner must bring the issue to a staff member, who should attempt to informally resolve the issue. 28 C.F.R. § 542.13(a). Second, if the issue is not informally resolved, the prisoner must submit an Administrative Remedy Request. Id. § 542.14. If the warden denies the Administrative Remedy Request, the prisoner must, third, appeal the denial to the BOP's Regional Director. Id. § 542.15(a). Fourth and finally, if that appeal is denied, the prisoner must appeal again, this time to the BOP's General Counsel. Id. Thus, under the BOP's administrative remedy procedure, a claim is not fully exhausted until the BOP's General Counsel has denied it. See id. ("Appeal to the General Counsel is the final administrative appeal.").

Rodd has not exhausted the administrative remedy process. Viewing the allegations in the light most favorable to him, it appears he has satisfied the first step of the BOP's procedure—bringing the issue to the attention of a staff member and attempting to informally resolve the issue—for at least some of his claims. 28 C.F.R. § 542.13(a). After the surgery scheduled for January 2017 was delayed, Rodd told a nurse practitioner about the pain he was experiencing. (Compl. at 7–8.) Additionally, after the surgery scheduled for May 2017 was canceled, Rodd informed a physician's assistant and several doctors of his pain, and apparently threatened to notify Minnesota Senator Amy Klobuchar, newspapers, and civil rights attorneys of what he "was victim to[ ]." (Id. at 9.) At the motion to dismiss stage, the Court will assume that these actions satisfy the requirement to try to informally resolve disputes. 28 C.F.R. § 542.13(a). But Rodd does not allege that he took any of the latter three steps in the BOP's administrative remedy procedure, and the BOP's database shows that he made no administrative remedy claims. (ECF No. 43 ¶¶ 10–13; ECF No. 43-2.) Because Rodd has not taken these steps, the PLRA bars his claims. 42 U.S.C. § 1997e(a).

Rodd argues that he was unable to utilize the BOP's administrative remedy procedure because of his blindness. (ECF No. 50 at 4–5.) The PLRA contains no exceptions to its requirement that prisoners administratively exhaust their remedies. Ross v. Blake , 578 U.S. 632, 136 S. Ct. 1850, 1856–57, 195 L.Ed.2d 117 (2016). There are, however, certain circumstances where administrative exhaustion procedures may not be "available" for purposes of the PLRA. Id. at 1858–60. These circumstances include: (1) when the procedure would be a "dead end" because officers are unable or unwilling to provide relief; (2) when the procedure is so opaque as to become "incapable of use"; and (3) when prison officials prevent a prisoner from utilizing the procedure through "machination, misrepresentation, or intimidation." Id. at 1859–60. Rodd has not alleged that administrative remedy procedures were unavailable for any of these three reasons, nor does the record suggest as much. And, as to Rodd's argument that his blindness prevented him from complying with the administrative remedy procedure, the procedure explicitly allows prisoners to obtain assistance from other prisoners, prison staff, family members, or attorneys.³ 28 C.F.R. § 542.16(a). Because Rodd had administrative remedies available and failed to exhaust them, the PLRA bars his Eighth Amendment claims.

II. FTCA Claim

Under the FTCA, a would-be plaintiff must first present his or her claim to the appropriate federal agency.

28 U.S.C. § 2675(a). In addition, the suit must be filed within six months of the agency's denial of the claim. 28 U.S.C. § 2401(b). Thus, the Court must make two inquiries: (1) whether Rodd presented his claim to the BOP; and (2) whether he filed this suit within six months of the BOP's denial of his claim. The Court concludes that although Rodd may have presented his tort claims to the BOP, he did not comply with the six-month statute of limitations after the BOP denied his claim.

A. Presentment of the Claim

Defendants contend that Rodd did not properly present his tort claims to the BOP because none of the administrative tort claims he filed sufficiently relate to the claim he brings here. To be adequately presented, the claim must provide written notification of the...