United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
plaintiff Miguel Rivera filed suit against defendants
Kristine Aulepp, Jason Clark, and Mulughetta Berhane alleging
violations of his Eighth Amendment right to be free from
cruel and unusual punishment due to inadequate medical care
while he was incarcerated. This matter is now before the
court on defendants Aulepp and Clark's Motion to Dismiss
or in the Alternative, for Summary Judgment (Doc. 15).
Plaintiff failed to timely respond to defendants' motion
and did not respond to the Order to Show Cause (Doc. 21)
issued by this court on October 23, 2017, in which plaintiff
was given until October 31, 2017 to respond to
defendants' motion. Because plaintiff failed to comply
with the court's order, the court will consider
defendants' motion as uncontested pursuant to D. Kan.
Rule 7.4(b). The court, however, cannot grant defendants'
motion solely based on plaintiff's failure to respond.
See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th
Cir. 2003) (“[E]ven if a plaintiff does not file a
response to a motion to dismiss for failure to state a claim,
the district court must still examine the allegations in the
plaintiff's complaint and determine whether the plaintiff
has stated a claim upon which relief can be granted.”).
The court, therefore, will review defendants' motion
while liberally interpreting the allegations in
plaintiff's pro se complaint. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
was incarcerated with the Bureau of Prisons
(“BOP”), specifically at the United States
Penitentiary in Leavenworth, Kansas (“USP
Leavenworth”), from November 13, 2014 until November 9,
2016. Prior to and during his incarceration, plaintiff
suffered from a number of medical conditions including mental
health, cardiac, stomach, intestinal, and kidney issues, as
well as Hepatitis C. Plaintiff was frequently evaluated by
BOP medical staff while at USP Leavenworth.
Aulepp and Clark were both employed as physicians at USP
Leavenworth. Dr. Aulepp evaluated plaintiff when he first
arrived at USP Leavenworth and identified him as an
appropriate candidate for potential Hepatitis C antiviral
therapy. From September 2014 through May 2015, plaintiff
underwent various laboratory tests to monitor his condition
for the potential antiviral therapy. In April 2015, plaintiff
signed a “Consent to Hepatitis C Treatment” form
and acknowledged that he was to abstain from receiving a
tattoo because it may interfere with treatments or worsen his
condition. Prior to plaintiff's scheduled therapy,
doctors noticed he had a “new or fresh tattoo.”
Because of the complications the new tattoo may have caused,
Dr. Aulepp recommended delaying the treatment for one year
while continuing to monitor plaintiff's condition.
March 2016, plaintiff was diagnosed with Barrett's
esophagus (a precancerous lesion of the esophagus),
esophagitis, and duodenal ulcers. Plaintiff's treatment
for these conditions further delayed his Hepatitis C therapy.
At the time he was evaluated for his esophageal issues,
doctors noted plaintiff had “compensated
cirrhosis” with no additional symptoms.
2016 doctors determined plaintiff's ulcers were healed
and Dr. Aulepp advised plaintiff it was safe to begin the
Hepatitis C treatment. Plaintiff was on Hepatitis C
medication from July 2016 until November 2016 and was
continuously evaluated. Doctors determined the treatment
appeared to be working.
was released from BOP custody on November 9, 2016 and filed
the present action on the same day. He alleges Dr. Aulepp and
Dr. Clark failed to treat or address his cirrhosis of the
liver condition in a timely manner, violating his Eighth
Amendment right to be free from cruel and unusual punishment.
Plaintiff seeks injunctive relief, punitive damages and
compensatory damages for their failure to act, treat, or
inform him of his condition, which he claims caused him
irreparable damage to his liver.
Aulepp and Clark filed a Motion to Dismiss or in the
Alternative, for Summary Judgment, arguing plaintiff's
complaint should be dismissed for the following reasons: 1)
plaintiff's official capacity claims are barred by the
doctrine of sovereign immunity; 2) plaintiff's tort
claims, if any, are barred as plaintiff has not met the
jurisdiction requirements of the Federal Tort Claims Act
(FTCA); and 3) defendants are entitled to qualified immunity
for claims against them in their individual capacity.
Official Capacity Claims
against government officials in their official capacity are
treated as suits against the entity. Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (“It is not a
suit against the official personally, for the real party in
interest is the entity.”). When an action is brought
against a defendant in its capacity as an agent of the United
States, “the action is in fact one against the United
States.” Atkinson v. O'Neill, 867 F.2d
589, 590 (10th Cir. 1989). The United States, and its
employees sued in their official capacities, are immune from
suit unless sovereign immunity is waived. Id. The
United States only waives sovereign immunity when it consents
to be sued. United States v. Murdock Mach. &
Engineering Co. of Utah, 81 F.3d 922, 930 (10th Cir.
1996). The United States only consents to be sued when
Congress “unequivocally expresses” its intention
to waive sovereign immunity. Id.
Federal Tort Claims Act (“FTCA”) was passed to
“render the Government liable in tort as a private
individual would be under like circumstances.”
Richards v. United States, 369 U.S. 1, 6 (1962). The
United States Supreme Court, however, has found that
“the United States simply has not rendered itself
liable under § 1346(b) for constitutional tort
claims.” FDIC v. Meyer, 510 U.S. 471, 478
(1994). Further, the United States has not waived sovereign
immunity in actions brought pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971). Laury v. Greenfield, 87
F.Supp.2d 1210 (D. Kan. 2000) (citing Meyer, 510
U.S. at 483-86). Plaintiff's punitive and compensatory
damage claims for Eighth Amendment violations against
defendants in their official capacities are therefore barred
by sovereign immunity.
also seeks injunctive relief, though it is unclear what
specific relief he is requesting. The Tenth Circuit has held
that sovereign immunity is not a bar to a prisoner
defendant's action for injunctive relief against prison
medical providers. Id. at 1233. Plaintiff, however,
is no longer incarcerated by the BOP. His claims for
injunctive relief are therefore moot. See Nasious v.
Colorado, 495 F. App'x 899, 903 (10th Cir. 2012)
(“[I]t is well settled that a ...