Fleming v. United States of America

Background

Rhonda Fleming, an inmate housed at Federal Correctional Institution–Dublin, filed this case without a lawyer. The court had previously found cognizable claims that Warden Jusino and Health Services Administrator Park were deliberately indifferent to dangerous conditions involving mold, asbestos, and bird feces, and that Jusino retaliated against Fleming for meeting with the United States Attorney’s Office and the Federal Bureau of Investigation about sexual assaults at FCI-Dublin. The court had dismissed other claims without prejudice because they did not satisfy the federal rule governing the joinder of claims and defendants.

Fleming sought permission to file a second amended complaint. Defendants opposed amendment, arguing, among other things, that Fleming had not exhausted administrative remedies, that some claims were legally unavailable, and that claims against the Environmental Protection Agency were futile.

Leave to Amend and Screening

The court granted Fleming leave to file the proposed second amended complaint. The court noted that the proposed pleading no longer named Park and did not repeat the First Amendment retaliation claim against Jusino. It also concluded that the allegations that the United States negligently allowed Fleming to live in unsafe environmental conditions appeared to state a cognizable Federal Tort Claims Act claim, while leaving exhaustion issues for later rather than deciding them during initial screening.

Because Fleming was seeking relief from governmental defendants, the court screened the second amended complaint under 28 U.S.C. § 1915A. Screening is an early review to identify claims that may proceed and dismiss claims that are frivolous, legally insufficient, or barred by immunity.

The court found that the allegations that Jusino and the United States deliberately or negligently housed Fleming in an environment with toxic mold, asbestos, and bird feces, failed to remediate those conditions, and failed to provide adequate medical treatment or remove her from the environment stated a cognizable Eighth Amendment claim against Jusino under Bivens and a cognizable Federal Tort Claims Act claim against the United States.

Claims and Defendants Dismissed

The court dismissed Park because the second amended complaint did not name him. It dismissed the First Amendment retaliation claim against Jusino because Fleming did not include that claim in the second amended complaint.

The court dismissed the Doe defendants without prejudice to Fleming seeking permission to amend after identifying them through discovery. It dismissed the Freedom of Information Act claim for the same reasons given in the earlier screening order, without prejudice to Fleming bringing that claim in a separate action.

The court dismissed the Federal Tort Claims Act claim against Jusino with prejudice because the United States is the only proper defendant in a Federal Tort Claims Act action.

The court dismissed the claims against the Environmental Protection Agency because the statutes Fleming cited did not require the agency to inspect FCI-Dublin after receiving a complaint. The order states that Fleming could amend to correct the identified deficiency if she could do so. The court also noted that the federal joinder rule might prevent bringing those claims in this action.

The court dismissed with prejudice Fleming’s Ex Post Facto claim concerning the alleged sentencing-district United States Attorney’s Office veto over home-confinement requests. It also dismissed the related Equal Protection Clause and Administrative Procedure Act claims because the remedy for seeking compassionate release lay in Fleming’s criminal case after the required Bureau of Prisons procedures, not in this civil action. The court’s analysis describes those dismissals as with prejudice, but the final numbered conclusion describes the Equal Protection and Administrative Procedure Act dismissal as without prejudice; the order is inconsistent on that point.

The court dismissed with prejudice the claim under 18 U.S.C. § 4042 because that statute does not create a private civil cause of action against federal officials. It dismissed the Bane Act claim with leave to amend because the pleading was unclear about the legal basis, the defendants’ specific conduct, when and how the conduct occurred, and how Fleming was personally affected.

Other Rulings and Case Schedule

The court denied as moot the defendants’ summary-judgment motion and Fleming’s request for a new briefing schedule. It denied requests in two other filings for court action concerning alleged retaliation, intimidation, and abuse because those matters were outside the scope of this case. The court warned that future filings seeking relief outside the case’s claims would be summarily denied.

The court ordered service of the second amended complaint on the United States and reset the briefing schedule. Defendants were required to file a summary-judgment or other dispositive motion within 91 days after the order was filed, followed by Fleming’s opposition within 28 days and defendants’ reply within 14 days. The court also allowed Fleming 28 days to file a third amended complaint addressing the identified deficiencies. If she did not do so, the second amended complaint would remain the operative complaint and the case would proceed on the claims the court found cognizable.

Disposition

The order granted leave to file the second amended complaint; denied as moot the defendants’ summary-judgment motion and Fleming’s request for a new briefing schedule; found cognizable an Eighth Amendment claim against Jusino and a Federal Tort Claims Act claim against the United States; granted leave to amend the Environmental Protection Agency and Bane Act claims; dismissed specified claims and defendants as described above; denied the unrelated requests for court action; and reset the briefing schedule. This is classified as a procedural order because it concerned amendment, screening, and case management rather than finally deciding the merits of the surviving claims.