United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE
THE COURT is the Complaint (ECF No. 1) filed pro se
by Marcus Weaver, who at the time he filed his Complaint, was
a postconviction inmate in the custody of the Federal Bureau
of Prisons. He has since been released. Weaver alleges that,
while he was incarcerated, he was subject to medical
malpractice and cruel and unusual punishment because prison
medical providers failed to diagnose his Herpes Simplex Virus
until approximately four years after he first complained of
testicular pain. Defendants have filed a Motion to Dismiss,
or in the Alternative, Motion for Summary Judgment. (ECF No.
57). In response, Weaver filed a Motion for Summary Judgment
(ECF No. 67) and a Motion to Change Venue (ECF No. 71).
considered the Motions, the record, and relevant law, the
undersigned United States Magistrate Judge concludes that
Defendants' Motion to Dismiss, or in the Alternative for
Summary Judgment should be GRANTED IN PART AND DENIED IN
PART, Weaver's Motion for Summary Judgment should be
GRANTED IN PART AND DENIED IN PART, and Weaver's Motion
to Transfer Venue with respect to the claims against the
out-of-state-medical providers should be GRANTED.
Weaver's FTCA medical malpractice claims should be
dismissed on summary judgment because Weaver has not provided
expert medical testimony in support of these claims. The
constitutional Bivens claims against out-of-state
medical providers should be severed and transferred to the
United States District Court for the Central District of
Illinois, where the events or omissions underlying these
claims occurred. Weaver should be allowed more time to serve
the in-state medical providers because he is proceeding
in forma pauperis and entitled to rely on Court
officers to effect service of process on his behalf.
2007, Weaver was sentenced to 151 months' imprisonment
with three years of supervised release for bank robbery. (ECF
No. 57-2, at 1). Weaver contends that he first complained of
testicular pain to Dr. Roberto Martinez in May 2011, while he
was housed at the Federal Correctional Institution in Yazoo
City, Mississippi (FCI Yazoo). (ECF No. 30, at 18). Dr.
Martinez purportedly instructed Weaver to take ibuprofen.
2011, Weaver sought out Dr. Martinez in regard to his
testicular pain. Id. at 19. Dr. Martinez was on
vacation at the time, so Weaver was examined by Dr. Norma
Natal and Nurse Jeneen Ratliff. Id. Weaver
articulated his concerns over the “white papules,
redness, discoloration, and lesions” on his genitalia,
and Dr. Natal prescribed Podophyllum, which Weaver submits is
a medication to treat genital warts. Id. at 19-20.
Dr. Natal and Nurse Ratliff refused to provide pain
medication or schedule Weaver for additional testing.
Id. at 20.
demanded to see Dr. Anthony Chambers, whom he asserts was the
“chief doctor” at FCI Yazoo. Id. Weaver
was seen by Dr. Chambers and nurse Natasha Hudson. Dr.
Chambers recommended ibuprofen and prescribed antibiotics.
Id. Dr. Chambers ordered that Weaver be tested for
syphilis and gonorrhea. Id. Weaver describes Dr.
Chambers' actions in ordering testing as
“cosmetic” and “a transparent effort to
avoid culpability.” Id.
the examination by Dr. Chambers, Weaver maintains that he
submitted countless complaints to staff about “[a]
burning sensation and pain in [his] penis[.]”
Id. at 21. Nurse Ratliff directed Weaver to
“[p]urchase ibuprofen and return in 1-week.”
Id. Weaver submits that his genitals were
“extremely sensitive” over the next week.
Id. He alleges that all medical personnel refused to
treat him or even speak to him until Dr. Martinez returned
from vacation. Id. Upon Martinez's return,
Weaver contends that Dr. Martinez examined him and advised
him that he had “nothing to worry about[.]”
Id. at 21-22.
to Weaver, he submitted numerous requests for sick-call
visitation during the period from September 2011 through
March 2012. Id. at 22. Weaver contends that he
repeatedly informed Defendants that he was experiencing
“pain . . . burning, lesions, ulcers, and
blisters.” Id. Weaver asserts that the FCI
Yazoo Defendants ignored his requests for medical treatment.
Weaver submits that when he was examined for other medical
conditions, these Defendants “literally
ignore[d]” his concerns regarding his genitalia.
Id. at 22-23.
point, Dr. Martinez tested Weaver for Herpes Simplex Virus.
Id. at 23. Dr. Martinez allegedly informed Weaver
that the test came back negative. Id. at 24. Weaver
submits that the results were either misread or inaccurate.
Id. Weaver claims that, despite the appearance of
innumerable symptoms, he received no further medical testing
while housed at FCI Yazoo. Id.
2012, Weaver was transferred to the Federal Correctional
Institution in Pekin, Illinois (FCI Pekin) and remained there
throughout 2013. Id. Dr. Jeffery Lee Ho medically
screened Weaver upon his arrival. Id. at 24-25.
Weaver described his symptoms to Dr. Lee Ho and told Dr. Lee
Ho that he needed two more doses of Podophyllum. Id.
at 25. Dr. Lee Ho ordered this medication but did not order
additional testing or refer Weaver to an outside specialist.
Id. Weaver maintains that he continued to experience
“pain, ulcers, blisters, lesions, and burning of
genitalia[.]” Id. He contends that he relayed
these symptoms to Scott Moats, Nurse Ted Wall, and Dr. Lee
Ho, but these Defendants did not diagnose or treat him
was transferred to the United States Penitentiary in Marion,
Illinois (USP Marion) in 2014. (ECF No. 12, at 3). He was
tested in 2014 for Hepatitis B and C, and for HIV, but was
not tested for Herpes Simplex Virus. Id. at 3-4. In
March 2015, Weaver had outbreaks of lesions and warts in his
genital region. Id. at 4. Weaver alleges he sent a
series of email requests to medical staff between March to
September 2015 requesting medical treatment but was told to
buy pain medication from the prison commissary. Id.
April 2, 2015, Ferando Castillo, a physician's assistant
at USP Marion, informed Weaver that he was infected with
Herpes Simplex Virus-2 (HSV-2). Id. Castillo noted
that the severity of Weaver's lesions, redness, and pain
could have resulted from the long period of time that HSV-2
was not treated. Id. Weaver alleges that, due to the
four-year delay in correctly diagnosing him, his immune
system is weakened, and he is prone to infections.
Id. Weaver maintains that he was forced to quit his
prison job due to severe pain. Id.
March 15, 2016, Weaver filed a Complaint in the United States
District Court for the Southern District of Illinois. (ECF
No. 1). Weaver advanced medical malpractice claims under the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346,
against various medical providers at FCI Yazoo, FCI Pekin,
and USP Marion. He also alleged Eighth Amendment violations
under Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971) against these medical providers.
Southern District of Illinois screened Weaver's claims
under 28 U.S.C. § 1915(a). The Southern District of
Illinois dismissed the FTCA medical malpractice claims lodged
against the individual defendants because the United States
is the only proper defendant to an FTCA claim. (ECF No. 12,
at 5-6) (citing 28 U.S.C. § 2679(b) and FDIC v.
Meyer,510 U.S. 471 (1994)). The Southern District of
Illinois allowed the FTCA medical malpractice claims to
proceed against the United States for the incidents or
omissions arising at FCI Yazoo, finding that the claims
passed threshold review. Id. at 7. The FTCA medical
malpractice claims based on the events or omissions at FCI
Pekin were dismissed because Weaver did not submit a personal
affidavit and written report from a qualified health
professional that is required under Illinois law to file a