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Hodge v. United States

August 31, 2007

MICHAEL EUGENE HODGE, PLAINTIFF
v.
UNITED STATES OF AMERICA, JOHN ASCROFT, ALBERTO GONZALES, HAL MCDONOUGH, HARLEY LAPPIN, KAREN F. HOGSTEN, SCOTT DODRILL, HARRELL WATTS, DANIAL E. JESUS, ERIC WILSON, J. BRADY, A. OKUNDAY, KEVIN PIGOS, RONALD LAINO, AND MS. INCH, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court are plaintiff's objections to Magistrate Judge Thomas M. Blewitt's Report and Recommendation (hereinafter "R & R") (Doc. 54) proposing that we dismiss the's Second Amended Complaint against Defendants Ashcroft, Gonzales, McDonough, Lappin, Jesus, Conrad, Webster, Wilson, Inch, Hogsten, Dodrill and Watts; that plaintiff's Bivens action proceed with respect to defendants Vermiere, Okunday, Brady, Laino and Pigos and that his Federal Tort Claims Act (hereinafter "FTCA") action proceed against the United States; and that the Plaintiff's Motion to Serve Defendants (Doc. 53) should be denied as moot if we accept his R&R. Having been fully briefed, this matter is ripe for disposition.

I. Background

The plaintiff, Michael Hodge, an inmate at the Federal Correctional Institution at Allenwood, Pennsylvania (hereinafter "FCI-Allenwood"), filed, pro se, this joint Bivens*fn1 and FTCA, 28 U.S.C. §§ 1346 and 2680 action, on August 18, 2006.*fn2 Initially, the plaintiff claimed that the United States Marshals Service (hereinafter "USMS") failed to ensure that he would receive comprehensive medical care while he was in its custody prior to his federal trial for weapons charges. (Plaintiff's Second Amended Complaint (Doc. 51) at 6). Plaintiff averred that the USMS failed to screen and treat him for blood-borne infectious diseases. (Id.). Plaintiff claimed that after his trial and conviction the Bureau of Prisons, (hereinafter "BOP") failed to give him a proper medical evaluation. (Id.). He alleged that the medical tests preformed on him showed he had abnormal blood properties, but that the BOP failed to inform him of the tests' results. (Id. at 7). Plaintiff claimed the BOP failed properly to treat him after he was diagnosed with Hepatitis-C, stage IV cirrhosis and "spleenmagaly" [sic]. (Id. at 8) Plaintiff also asserted that the BOP failed to timely treat and properly monitor him for complications involving his medical condition. (Id. at p. 10).

The plaintiff filed a motion to proceed in forma pauperis, a Motion for Appointment of Counsel, a Motion for an Evidentiary Hearing, and a Motion to Consolidate his Bivens and FCTA action. (Docs. 3, 4, 5, 8, 9, 12).*fn3

On October 5 ,2006, Magistrate Judge Blewitt issued an R&R (Doc. 18) in which we preliminarily screened Plaintiff's original Complaint under the Prison Litigation Reform Act (hereinafter "PLRA"). On November 17, 2006, the plaintiff filed an Amended Complaint (Doc. 22). This court had not yet reviewed Magistrate Judge Blewitt's R&R. On November 29, 2006, we issued a Memorandum and Order (Doc. 25) adopting Magistrate Judge Blewitt's R&R of October 5, 2006.

Our November 29, 2006 order directed the plaintiff to file an amended complaint in compliance with Magistrate Judge Blewitt's earlier R&R (Doc. 18). We noted that the Plaintiff's November 17, 2007 Amended Complaint may not have addressed the deficiencies identified by Magistrate Judge Blewitt with respect to both his Bivens claim and tort claim contained in his original pleading.

Magistrate Judge Blewitt reviewed the Amended Complaint and found that it did not comply with his R&R.*fn4 On December 26, 2006, Magistrate Judge Blewitt ordered the plaintiff to file a Second Amended Compliant that complied with the terms of the R & R within twenty (20) days. (See Doc. 29).

On February 20, 2007, plaintiff filed his Second Amended Complaint. (Doc. 51). Plaintiff again claims that defendants failed to provide him with proper medical care for his stated serious medical conditions, both before and after his federal convictions. The plaintiff states that the defendants violated his constitutional rights by failing to provide him with proper and required medical care for his serious Hepatitis-C condition. Plaintiff contended that these findings constituted a violation of his Eighth Amendment right to be free from cruel and unusual punishment. (See Doc. 51).

The plaintiff alleges that he was in pretrial USMS custody from April 2000 to April 2003. He was transferred to several holding facilities while in that custody. Plaintiff contends that he made many claims to medical personnel during this time. He complained of problems related to his medical condition such as delirium, abdominal pain and fatigue. He was not given any diagnostic test to evaluate his symptoms. On May 7, 2003, the USMS remanded custody of the plaintiff to the BOP.

Plaintiff alleges he filed grievances with the BOP regarding his claims of improper medical care and denial of treatment and medication for serious conditions. (Id., at p. 3). Plaintiff contends that as a result of this improper medical care, his conditions grew worse and he has been made to suffer undue complications and pain. (Id.). This lack of proper medical treatment, plaintiff claims, rendered him disabled and negatively impacted his chance of recovery and treatment. Those failings, he asserts, have shortened his life expectancy. (Id.). Plaintiff also contends that he has attempted to exhaust his administrative remedies. (Doc. 51, p.3).

Plaintiff summarizes his claim in his Second Amended Complaint as follows: The continued acts have denied/dalayed [sic] the Plaintiff (plf) comprehensive medical care for screening of infections desiese [sic] diagnosis of Hepititis [sic] -C- (hep-c), stage IV liver cirrhosis and the continued treatment of cirrhosis that included participation in medicinal clinical trials, participation in organ transplantation programs, a medical nutritional diet and classification to a prison that is closer to the plf's home to support better family ties for psycological [sic] well being. (Id. at 1). Plaintiff seeks compensatory and punitive damages as well as injunctive relief. (Id. 14).

On March 8, 2007, Magistrate Judge Blewitt issued a decision recommending that the plaintiff's Second Amended Complaint be dismissed as to Defendants Ashcroft, Gonzales, McDonough, Lappin, Jesus, Conrad, Webster, Wilson, Inch, Hogsten, Dodrill and Watts. (Doc. 54 at 16). Magistrate Judge Blewitt further recommended that the plaintiff's Bivens action proceed with respect to defendants Vermiere, Okunday, Brady, Laino and Pigos and that his FTCA action proceed against the United States. Magistrate Judge Blewitt also recommends that plaintiff's Motion to Serve Defendants (Doc. 53) should be denied as moot if we adopt his opinion. Upon remand Magistrate Judge Blewitt will direct the USMS to serve any remaining Defendants to the Plaintiff's Second Amended Complaint.

On March 26, 2007 the Defendant filed his Objections to Magistrate Judge Blewitt's R&R, bringing the case to its present posture.

II. Jurisdiction

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.") and 28 U.S.C. § 1346(b)(1) ("The district courts. . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under ...


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