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Pary v. Register

United States District Court, W.D. Wisconsin

January 30, 2018

CHRISTOPHER PARY, Plaintiff,
v.
KATHERINE REGISTER, KEITH OAKLEY, GREG KINGSTON, PAUL DOROGHAZI, MARTIN S. TINDEL, WILLIAM RESTO RIVERA, NWANNEM OBI-OKOYE, JUDITH LAMARRE, DAVID WILLIAMS, SANDRA FUTRELL, J. CAPPS, TERESA NEHLS, PENNY PERRY, DR. R. GUPTA, RAME AWD, BONNIE NOWAKOWSKI, B. MILLER and HABIBA SEIDU-FUSEINI, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB, District Judge

         Pro se plaintiff Christopher Pary, who is incarcerated at the Milan Federal Correctional Institution in Milan, Michigan, is proceeding on claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1974), relating to allegations that numerous health care providers at a county jail in Kentucky and two federal correctional institutions in Arkansas and Wisconsin failed to provide him adequate medical care for rectal bleeding. All proceedings in the case, including discovery, were stayed pending the resolution of motions to dismiss filed by several of the defendants. Dkt. #90. The following five motions are now before the court: (1) a motion to dismiss for lack of personal jurisdiction filed by defendant Rame Awd, dkt. #42; (2) a motion to dismiss for lack of personal jurisdiction filed by defendants Greg Kingston and Keith Oakley, dkt. #46; (3) a motion to dismiss for lack of personal jurisdiction filed by defendants J. Capps and Nwannem Obi-Okoye, dkt. #55; (4) a motion to dismiss for lack of personal jurisdiction filed by defendant Katherine Register, dkt. #62; and (5) a motion to dismiss for lack of personal jurisdiction, failure to execute service of the complaint and failure to state a claim upon which relief may be granted, filed by defendants Sandra Futrell, R. Gupta, Judith Lamarre, Teresa Nehls, Bonnie Nowakowski, Penny Perry, William Resto-Rivera, Habiba Seidu-Fuseini and Martin Tindel (the federal defendants), dkt. #77. In addition, it is worth noting that the United States Marshals Service was unable to serve plaintiff's amended complaint on remaining defendant David Williams because no one by that name worked at the federal prison in Arkansas during the relevant time period and his name is too common to allow the bureau of prisons to perform a more extensive search. Dkt. #52.

         For the reasons explained below, I conclude that defendants Awd, Kingston, Oakley, Capps, Obi-Okoye, Register, Futrell, Nowakowski and Tindel must be dismissed for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2) because none of them has sufficient contacts with the state of Wisconsin. Defendants Resto-Rivera, Lamarre and Seidu-Fuseini will be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) because plaintiff agrees that they are commissioned public health service officers who are immune from civil liability under 42 U.S.C. § 233(a). The federal defendants' motion to dismiss the claims against defendant Gupta under Fed.R.Civ.P. 12(b)(5) for insufficient service and against defendants Gupta, Perry and Nehls under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted will be denied. Finally, defendant David Williams will be treated as a John Doe defendant whose name plaintiff will have an opportunity to obtain through discovery.

         I have set forth plaintiff's allegations of fact in previous orders, dkt. ##10 and 12, and incorporate those allegations by reference. In conjunction with their motions to dismiss, defendants submitted declarations with additional facts related to jurisdiction, and I discuss those facts in the opinion below. Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (“In reviewing a factual challenge [to subject matter jurisdiction], the court may look beyond the pleadings and view any evidence submitted.”); Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir. 1983) (“To determine whether exercising personal jurisdiction is proper, a court may receive and weigh affidavits prior to trial on the merits.”).

         OPINION

         All defendants except for Gupta, Perry and Nehls argue that this court lacks personal jurisdiction over them because they do not have sufficient contacts with the state of Wisconsin. In addition, the defendants employed by the Federal Bureau of Prisons argue that Resto-Rivera, Lamarre and Seidu-Fuseini are commissioned officers who are subject to immunity under 42 U.S.C. § 233(a); Gupta and Resto-Rivera have not been served with the amended complaint; plaintiff's allegations fail to state a claim upon which relief may be granted; and they are subject to qualified immunity. I will discuss each theory separately.

         A. Immunity for Public Health Service Officers

         The federal defendants have adduced evidence that Resto-Rivera, Lamarre and Seidu-Fuseini are commissioned officers who were employed by the United States Public Health Service to provide medical services to federal prisoners at all times relevant to plaintiff's complaint. Under 42 U.S.C. § 233(a), the sole remedy for a plaintiff alleging that he was harmed by any such officer acting within the scope of his or her employment is a claim against the United States under the Federal Tort Claims Act. Hui v. Castenada, 559 U.S. 799, 806-07 (2010) (Section 233(a) “grants absolute immunity to [United States Public Health Service] officers and employees for actions arising out of the performance of medical or related functions within the scope of their employment by barring all actions against them for such conduct.”). Plaintiff does not challenge defendants' contentions that these defendants have absolute immunity and agrees to voluntarily dismiss them from the case. Dkt. #94 at 2. Accordingly, the claims against defendants Resto-Rivera, Lamarre and Seidu-Fuseini will be dismissed.

         B. Personal Jurisdiction

         Defendants Awd, Kingston, Oakley, Capps, Obi-Okoye, Register, Futrell, Nowakowski and Tindel argue that this court may not exercise personal jurisdiction over them because they do not have sufficient contacts with the state of Wisconsin. On a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), the court accepts all well-pleaded factual allegations in the plaintiff's complaint as true and resolves any factual disputes in his favor. Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012). The burden of proof rests on the party asserting jurisdiction-in this case, plaintiff-to make a prima facie showing of personal jurisdiction. Hyatt International Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002). In other words, “once the defendant has submitted affidavits or other evidence in opposition to the exercise of jurisdiction, the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction.” Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 783 (7th Cir. 2003).

         For Bivens and § 1983 claims, “personal jurisdiction issues are resolved under the laws of the state where the forum is located, ” which in this case is Wisconsin. Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012); Smith v. Jefferson County Board of Education, 378 Fed.Appx. 582, 585 (7th Cir. 2010); Kinslow v. Pullara, 538 F.3d 687, 690 (7th Cir. 2008). In Wisconsin, personal jurisdiction depends on two factors: (1) whether defendants fall within the state's jurisdictional (or “long-arm”) statute, Wis.Stat. § 801.05; and (2) whether the exercise of jurisdiction over each defendant comports with due process requirements of the Fourteenth Amendment. Purdue Research Foundation, 338 F.3d at 779; Kopke v. A. Hartrodt S.R.L., 245 Wis.2d 396, 408-09, 629 N.W.2d 662, 667-68 (Wis. 2001). To comply with the due process clause, defendants must “have sufficient ‘minimum contacts' with [Wisconsin] such that the maintenance of the suit ‘does not offend traditional notions of fair play and substantial justice.'” Tamburo v. Dworkin, 601 F.3d 693, 700-01 (7th Cir. 2010) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Two different types of contacts may satisfy this requirement: (1) “continuous and systematic” contacts with Wisconsin, which are not necessarily related to the basis of the lawsuit, but that make defendants “essentially at home” in Wisconsin (general jurisdiction); and (2) contacts with Wisconsin that relate directly to the subject matter of the lawsuit (specific jurisdiction). Id. at 701-02; SV Gopalratnam v. Hewlett-Packard Co., 2014 WL 1572942, at *2 (E.D. Wis. Apr. 17, 2014) (citing Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 & nn. 8-9 (1984)).

         I will not spend time discussing the more specific requirements of the long-arm statute or general and specific jurisdiction because plaintiff does not allege any facts to support a finding that any of the above defendants had sufficient contacts with Wisconsin that would permit this court to exercise personal jurisdiction over them in this case. I will discuss the parties' arguments with respect to Awd and the other defendants separately.

         1. Dr. Awd

         Dr. Awd avers that he is a resident of Pennsylvania and has never lived in, worked in or visited Wisconsin. In response, plaintiff has submitted a July 9, 2015 clinical note identifying Awd as plaintiff's medical provider. However, according to a Bureau of Prisons work record, Awd was working at the Forrest City Correctional Complex in Arkansas on July 9, 2015, when he renewed two different medications for plaintiff. In addition, the clinical note does not state that the encounter took place at the Federal Correctional Institution at Oxford and identifies the facility as “FOM.” A review of the Federal Bureau of Prisons website (https://www.bop.gov /locations/institutions/fom/, accessed Jan. 17, 2018) shows that “FOM” is used in the facility email to ...


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