United States District Court, W.D. Louisiana, Lake Charles Division
ADAM BRENT WALLACE REG. # 219036
UNITED STATES OF AMERICA
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
the court are a Motion for Summary Judgment [doc. 48] filed
by the government and a Motion to Dismiss and Motion for
Summary Judgment [doc. 49] filed by the individual defendants
in this matter. This matter was referred to the undersigned
for review, report, and recommendation in accordance with the
provisions of 28 U.S.C. § 636 and the standing orders of
suit arises from alleged delays in Wallace's medical care
while he was an inmate in the custody of the Bureau of
Prisons (“BOP”), during his incarceration at the
Federal Correctional Institution at Oakdale, Louisiana
(“FCIO”). Doc. 5. Specifically, he alleges that
he was denied follow-up treatment for hemorrhoids due to the
negligence of defendants Mary Thomas and Joe Alexander.
Id. He seeks relief through a suit filed in this
court under Bivens v. Six Unknown Named
Agents, 91 S.Ct. 1999 (1971),  against Alexander
and Thomas and under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671 et seq.,
against the United States government.
government now moves for summary judgment, asserting that the
record reveals Wallace received adequate care at FCIO. Doc.
48. The individual defendants also move for summary judgment,
asserting that (1) Wallace cannot establish that they were
deliberately indifferent to his serious medical needs and (2)
they are shielded from liability by the doctrine of qualified
immunity. Doc. 49; doc. 49, att. 1. Alternatively, they seek
dismissal under Federal Rule of Civil Procedure 12(b)(6) by
claiming Wallace has not exhausted his administrative
remedies for his Bivens claims. Wallace has not
filed a response to either motion, but instead submits a
statement of issues [doc. 53] in addition to the
“Response” [doc. 45] he submitted to the
individual defendants' answer.
A. Failure to Exhaust
the individual defendants' Motion to Dismiss was filed
after they appeared and filed an answer in this suit [doc.
42], it is properly considered as a Rule 12(c) motion for
judgment on the pleadings rather than a Rule 12(b)(6) motion
to dismiss. Additionally, because defendants' motion
relies on evidence outside the pleadings (namely, a
declaration from BOP employee Ashlee Welch), the court
converts it to a motion for summary judgment and reviews it
under the standards of Rule 56. E.g., Wright v.
La. Corrugated Prods., LLC, 59 F.Supp.3d 767, 773 (W.D.
should grant a motion for summary judgment when the movant
shows “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
2511 (1986) (quotations omitted). This requires more than
mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
“significant probative evidence” in support of
his claim. State Farm Life Ins. Co. v. Gutterman,
896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 106 S.Ct.
at 2511 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a