UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA HARVEY MERRI WEATHER, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2453 ( CKK) ) HARL EY LAPPI

N et al., ) ) Def endants. )

MEMORANDUM OPI

NI ON This matter is befor e the Court on the de fenda nts’ motion to di smiss t he complaint and plaintiff’s motions for re considera tion of a prior or der, f

or appointed c ounsel, and for discovery

. The c omplaint will be dism issed without prejudice f or fa ilure to state a c laim upon which re lief may be g rante d, and all other

pendingmotions wil l be denied a s moot.

BA CKGROUND The plaintiff, H arve y

Merr iweathe r, is a 67-year -old fede ral prisone r cur rently incar cer ated a

t the United States Penitentiary in McCrea

ry , Kentucky

(“U SP M cCrea

ry”), se rving a 120-month sentenc e for bank robbe ry

imposed in 2001; he is due to be re lease d in April 2011. Def s.’ Mot. to Dismis s at 1-2 & Ex . 1. Procee ding in f orma pa uperis and pr o se, Mer

riweather filed this Bivens action for c ompensatory and punitive damag es in the amount of $5 million. 1 Compl. at 5. Merriwea

ther a lleg es that he w as diagnosed in 1998 with hepatitis C while he was incar cer ated a

t the Fe dera l Correc tional Institut ion (“F CI ”) Sher aton, and that he was not treated for the dise ase be tween 1998 a nd 2002. Compl. ¶¶ 7-9. He a lso alleg es that af ter a liver biopsy

See B ivens v . Six Unknown Named A gents of the Fede ral Bureau of Narcotics , 403 U.S. 1 388 (1971) ( deter

mining that ther e is an implied rig ht of ac tion ag ainst fede ral off icials in their persona l capa cities for c erta in constituti onal depr ivations).in 2008, two doctors at two diffe rent fe dera l prison fac iliti es re commended that he re ceive

treatment. Id. ¶¶ 10- 11. The c omplaint does not identify , in either spec ific or g ener al terms, the treatment rec ommended by either doc tor. After

beingtransfe rre d in October 2009 to USP McCrea ry , Merr iweathe r alleg edly reque sted treatment for hepatitis C, and his reque st was denied. Id. ¶ 12. Mer

riweather a lleg es that the de nial of trea tment shows deliberate indiffer ence to his serious medical nee ds, and he a sserts Eig hth Amendment claims ag ainst three de fenda nts in their persona l capa cities only : ( i ) Ha rley G. L appin, the Dire ctor of the Fe dera l Bure au of Prisons, ( ii ) Eric Wil son, Warden at USP McCrea ry , and ( iii ) L isa Gre g ory , Hea lth Adminis trator at USP McCrear

y . Id. ¶¶ 4- 6. Wit h his complaint, Merriwe ather filed a motion for a

preliminary

injunction, which was denied without pre

judice. The rea fter, Me rriwe ather filed a se cond motion identical to the first one, asse rtingthat he “f

ace s an immediate thre at to his health” be cause “[f]or over 11 y ear s the defe ndants have denied the pla intiff medical c are treatment for He patitis C.” The motion was ag ain denied w ithout prejudice, be cause Merr iweathe r’s motion relied on c onclusory statements and he ha d not pled fac ts sufficient to provide the Court with a “basis on which to c onclude that [he] will suffer ir

repa rable harm or that he is likely to preva il on the merits of the under lying claim.” Or der ( J an. 21, 2010). The de fenda

nts have moved to dismiss the complaint, arguing that this C ourt does not have pe rsonal jurisdiction over Wilson or Greg ory , that venue in this Court is improper, that the defe ndants have not been se rved in their pe rsonal ca pacities, that Mer

riweather did not exhaust his administrative remedie s as re quired by the Prison L itigation Refor m Act (“ PL RA”), 42 U.S.C. § 1997e, that Merriwe ather has not and c annot state a n Eig hth Amendment claim upon
- 2 -which re lief may be g rante d ag ainst these thre e def endants, a nd that eac h of the thre e def endants is entitled to qualified immunit y . See Def s.’ Mot. to Dismis s at 4-14. Mer riweather ha s filed an opposition, alleging , amongother thing s, that “Gre g ory knowing ly

disreg ard[ed] plaintiff[’s] formal r esolution [ sic] for medical c are treatment for the disea se. De fenda nt Wi lson [ was] persona lly

involved in the depriva

tion of the plaintiff[’s] rig hts when he w as put on notice of the deprivation.” Opp’n at 8. Merriwe ather has also filed a

motion for discovery

. DI SCUS SI ON A pro se c omplaint, “howeve r inartf ully pleade d,” must be ac corde d a libera l construction. Haines v. Kerne r, 404 U.S. 519, 520 (1972). None theless, to survive a motion to dismiss , a complaint must alleg e “e noug h fac ts to state a claim for relief that is plausible on its fac e,” Bell Atlantic Corp. v. Tw ombly , 550 U.S. 544, 570 (2007), and to show that the pleade r is entitled to relief, id. at 557. A cour t is obli g ated to construe the fa ctual alleg ations in a complaint in the light most favor able to the plaintiff, inc luding r easona ble infer ence s derived f

rom the fac tual alleg ations. Barr v. Clinton , 370 F.3d 1196, 1199 ( D.C. Cir. 2004). A cour t’s favor able construction does not e x tend, howeve r, to infer ence s or to conclusory alleg ations that are unsupported by

the fa cts in the complaint. Kowal v. MCI Communications Corp ., 16 F.3d 1271, 1276 (D.C. Cir. 1994). An Eig hth Amendment claim for inadequate medica l car e re quires a show ing of a substantial risk of serious har m, a deliber ate indiffe renc e to that risk by the def endants, a nd a

causa l connec tion. See F armer v. B rennan , 511 U.S. 825, 827 (1994). As a threshold matter, Merr iweathe r has not alleg ed fa cts to support a re asonable infere nce that he fa ces a ny substantial risk of ser ious harm if he is not treated. Rather, he mere ly alleg es g ener ally

that hepatitis C can
- 3 -lead to ser ious injury , an undenia ble contention. He does not alleg e fa cts that establish that his hepatitis C infection is such that he now f ace s a substantial risk of ser ious harm if untrea ted, or that his infection has c aused him to experience ill effec ts or any sy mptoms at all. For this rea son alone, his Eig hth Amendment claims fa il. The c laims must fail for another rea son, as well. An Eighth Amendment claim ag ainst a defe ndant who wa s not personally involved in an alleg ed constitutional deprivation wa rra nts dismiss al for f

ailure to state a

claim upon which r elief ma y be g rante d. “Abse nt alleg ations

conce rningpersona l involvement by [t he def endants, the] Eig hth Amendment claims ag ainst them are nothing more than an a lleg ation of re spondeat super ior, which is not cog nizable in a Bivens action.” Risley v. H awk, 108 F.3d 1396 ( D.C. Cir. 1997) (per curiam) (citing Cameron v. Thornburgh , 983 F.2d 253, 258 ( D.C. Cir. 1983)). Mer riweather’s c omplaint does not alleg e fac ts to support a rea sonable infe renc e that any of the de fenda

nts were persona lly

and dire ctly involved in denying a

medical r ecommenda

tion to provide him with t reatment. It does not alleg e that any doctor at USP M cCrea

ry has re commended tr eatment f or Mer riweather’s he patitis C condition, or that any

of the de fenda

nts personally

revie wed a

nd denied a

ny rec ommendation by any doctor that Mer

riweather should re ceive treatment for hepatitis C. I t conclusorily alleg es that L appin “kne w” a

nd was “ on notice” by

Doctors Quinn a

nd Allen re g ardingthe unspec ified treatment rec ommendation. Compl. ¶ 14. In the abse nce of more spec ific fa ct-ba sed alleg ations 2 establishing how

L appin alleg edly

“knew ” of the alleg ed tre atment re commendations, and his persona l involvement in denying me dically rec ommended tre atment, such va gue and c onclusory

I t is not clear whe ther “ doctor Allen,” id. , is the same doctor who alleg edly

made a 2 treatment rec ommendation in 2008, “doctor M. Aslam,” id. ¶ 10. - 4 -alleg ations do not “state a c laim for re lief that is plausible on its face .” Bell Atlantic Corp. v.

Twombly , 550 U.S. at 570. Acc ording ly , Merr iweathe r’s Eig hth Amendment claims will be dismissed for fa ilure to state a c laim upon which re lief may be g rante d. Additionally , the Court notes that the cla ims ag ainst defe ndants Gre g ory and Wilson are also subjec t to dism issal beca use this Court lacks persona l jurisdiction over them, and that the c omplaint is subj ect to dismissal beca use venue in this dist rict is improper unde r 28 U.S.C. § 1391(b). Nonethele ss, beca use these de fec ts are 3

cura ble, and be cause it is conceivable that Merr iweathe r could state a claim upon which r elief may be g rante d arisingfrom this nucleus of f acts, the dismissal will be without prejudice. A sepa rate order acc ompanies this memorandum opinion.

/s/ COL L EEN KOL LAR-KOTELL Y Date: Ma y 11, 2010 United States District J udg e

Be cause the fa ctual re cord is in dispute and e volving, the Court e x pressly declines to 3 make a deter mination reg ardingMerr iweathe r’s a lleg ed fa ilure to exhaust his admini strative reme dies. Be cause the re cord is insuffic iently develope d, the Court expressly declines to a ddress the def endants’ c laim of entitlement to qualified immunity

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