Waltermeyer v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Broc T. Waltermeyer
v. 	Case No. 19-cv-233-LM
Warden, FCI Berlin, et al.
REPORT AND RECOMMENDATION
Plaintiff Broc T. Waltermeyer, who is proceeding pro se,
filed this civil rights action under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcs., 403 U.S. 388 (1971), while he
was incarcerated at the Federal Correctional Institution in
Berlin, New Hampshire (“FCI Berlin”). 	In this action, Mr.
Waltermeyer asserts claims against (former) FCI Berlin Warden
Robert Hazelwood, FCI Berlin physician Diane L. Kistler, and
unidentified “John Does and Jane Roes 1-30.” 	Doc. No. 20, at 1.
Before the Court for a Report and Recommendation (“R&R”) as
to disposition is Mr. Waltermeyer’s “Motion Requesting
Permissive Joinder and Dropping of Parties” (Doc. No. 28). 	Also
before the Court are the factual assertions in Document Nos. 1,
12, 13, 20, 25, 27, and 28, which are construed, in the
aggregate, to comprise Mr. Waltermeyer’s third amended complaint
(“TAC”). 	The TAC, which the Court deems to be the operative
complaint in this matter, is before this Court for preliminary
review under 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
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Background
I. 	Facts Asserted in the TAC
A. 	2003 - 2018
Mr. Waltermeyer arrived at FCI Berlin on May 3, 2018.
Prior to that date, he served time in several Federal Bureau of
Prisons (“BOP”) facilities. 	Mr. Waltermeyer alleges that in
2003, while he was incarcerated in a federal prison, he was
diagnosed with Hepatitis C. 	In 2006, at a different federal
prison, an unidentified “John Doe” told Mr. Waltermeyer that
because of his Hepatitis C diagnosis, he would not live past age
fifty.
Mr. Waltermeyer states that, beginning in 2011, he reported
problems with his knees to the Health Services Unit at each BOP
facility in which has been incarcerated. 	He claims that at each
of those facilities, medical providers failed to provide him
with adequate medical care for his knee problems, and that the
condition of his knees worsened at each facility.
In 2016, Mr. Waltermeyer developed a lump on his left
shoulder, which was diagnosed as a lipoma. 	Mr. Waltermeyer
states that he was seen by a non-prison doctor who told him that
he would need surgery to remove the lipoma.
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Mr. Waltermeyer alleges that during the times he was in BOP
custody prior to his arrival at FCI Berlin, a number of
individuals, identified in the TAC as John Doe/Jane Roe
defendants, failed to provide him with constitutionally adequate
medical care for the lipoma on his shoulder, his chronic knee
problems, and his Hepatitis C, or for the pain caused by those
conditions. 	As a result, he states, he has suffered lasting
physical and mental harm.
B. 	FCI Berlin – May 3, 2018–July 25, 2019
Here, Mr. Waltermeyer claims violations of his Eighth
Amendment right to receive adequate medical care for his
shoulder, knees, and Hepatitis C, while incarcerated at FCI
Berlin between May 3, 2018 and July 25, 2019. 	Specifically, he
has identified the FCI Berlin defendants in this case as Warden
Hazelwood, Dr. Kistler, and John Does/Jane Roes who Mr.
Waltermeyer asserts are members of the FCI Berlin Utilization
Review Committee (“URC”), which is a body made up of the FCI
Berlin Health Services Clinical Director, Administrator, and
others.1 	Mr. Waltermeyer states that, other than Dr. Kistler, he
1 Every federal prison has a URC chaired by the Clinical
Director at that facility, including, but not limited to the:
the Health Services Administrator, Medical Trip Coordinator,
Health care provider(s) directly involved in the reviewed cases,
Director of Nursing, and a chaplain or social worker. 	See BOP
Program Statement 6031.04, § 8 (2013). 	The URC reviews, among
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does not know who sat on the FCI Berlin URC while he was
incarcerated at that facility, and therefore has identified
those individuals as John Doe/Jane Roe defendants.
Mr. Waltermeyer asserts that Warden Hazelton and Dr.
Kistler were both aware of his serious medical need for
treatment for his shoulder, knees, and Hepatitis C, since at
least September 2018. 	Despite that knowledge, Mr. Waltermeyer
claims that Warden Hazelton, Dr. Kistler, and unidentified
members of the FCI Berlin URC denied him treatment for those
conditions, or caused such treatment to be denied.
Mr. Waltermeyer states that Dr. Kistler told him that he
could not receive any treatment for Hepatitis C because his
liver function levels were not sufficiently elevated to meet the
BOP’s requirement for eligibility for Hepatitis C treatment.
Mr. Waltermeyer claims, however, that during all of the time he
has spent in BOP custody since his 2003 Hepatitis C diagnosis,
his liver function levels exceeded the BOP’s threshold for
treatment, except that on one occasion in June 2018 his liver
function test levels were below that threshold. 	Mr. Waltermeyer
states that in response to his complaint to Dr. Kistler of pain
in his liver, Dr. Kistler repeatedly told him that he would have
other things, outside medical and surgical procedures, and
evaluations by medical specialists. 	See id.
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to learn to deal with the pain, and continued to refuse to treat
him for either Hepatitis C or pain.2
Regarding the lipoma on his left shoulder, Mr. Waltermeyer
states that it developed in 2016, before he arrived at FCI
Berlin. 	Mr. Waltermeyer alleges that he saw an outside doctor
who told him that he would need to have surgery to remove it.
At FCI Berlin, the lipoma was “about the size of a hand-ball.”
Doc. No. 1, at 2. 	Mr. Waltermeyer requested that Dr. Kistler
arrange for him to have surgery to remove the lipoma, pursuant
to the outside doctor’s recommendation, because the size and
weight of the lipoma was causing him to have numbness in his
left hand and/or fingers, and because he was concerned that the
mass could be cancerous. 	Mr. Waltermeyer alleges that Dr.
Kistler ignored the information provided by the outside doctor
and denied his request for surgery. 	Mr. Waltermeyer further
claims that, because he did not receive surgery or any other
treatment for his lipoma, it began to grow at an alarming rate
while he was at FCI Berlin. 	As a result, he asserts, he
2 After Mr. Waltermeyer filed this action, he was deemed
qualified for Hepatitis C treatment. 	Mr. Waltermeyer was
transferred to the Federal Corrections Complex Coleman Low (“FCC
Coleman”), “ostensibly so he could be at ‘a facility capable of
treating his medical conditions.’” Doc. No. 28, at 1 (citing
Defs.’ Notice of Transfer (Doc. No. 15, at 1)).
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suffered numbness, extreme pain, and a loss of mobility in his
shoulder.
While he was at FCI Berlin, Mr. Waltermeyer states he
experienced extreme chronic pain in both of his knees which
limited his ability to walk and sit, and interfered
significantly with his sleep. 	Dr. Kistler diagnosed Mr.
Waltermeyer with degenerative bone disease in both of his knees.
While he was at FCI Berlin, Mr. Waltermeyer saw an outside
orthopedic specialist who stated that both of his knees would
need to be replaced, but felt that Mr. Waltermeyer was too young
to have that surgery, which is generally not recommended for
people under fifty.3 	Mr. Waltermeyer also asserts that he was
not provided with effective treatment for his pain.
At FCI Berlin, Mr. Waltermeyer requested diagnostic imaging
be ordered for his knees. 	On September 25, 2018, Dr. Kistler
examined Mr. Waltermeyer and then requested, and obtained,
approval for an MRI, which was performed on December 7, 2018.
Mr. Waltermeyer asserts that the MRI results demonstrated that
his condition was severe, and that he needed knee replacement
surgery, physical therapy and treatment for pain.
3 According to the BOP Inmate Locator, Mr. Waltermeyer is
now fifty years old. 	https://www.bop.gov/inmateloc/ (last
viewed Apr. 11, 2023).
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Mr. Waltermeyer also requested cortisone injections in his
knees for pain treatment. 	Dr. Kistler approved Mr. Waltermeyer
to receive those injections, but, he states, he did not receive
them every month, which is the frequency he states was necessary
to effectively reduce his pain.
Mr. Waltermeyer asked Dr. Kistler to approve knee
replacement surgy for him despite his age, stating that in his
particular circumstances, the benefits of having the surgery
before he turned fifty outweighed any risk associated with the
surgery. 	Dr. Kistler did not approve surgery, citing the
outside doctor’s recommendation against performing that
procedure on a person under fifty. 	Instead, Mr. Waltermeyer was
treated at FCI Berlin with pain medication, special shoes, knee
braces, cortisone shots, access to a low bunk, and a cane, all
of which, he claims, were ineffective to correct his condition
or relieve his pain.
C. 	FCC Coleman -- October 2019-Present
Mr. Waltermeyer was transferred out of FCI Berlin on July
25, 2019, and sent to FCC Coleman because, where he arrived in
October 2019. 	He was transferred there because FCC Coleman Low,
unlike FCI Berlin, FCC Coleman is able to provide him with
treatment for Hepatitis C. 	In addition to his claims arising
out of his confinement at FCI Berlin, Mr. Waltermeyer has
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asserted similar violations of his Eighth Amendment right to
adequate medical care against FCC Coleman defendants Warden
Spears (whose first name is unknown), Director of Health
Services C. Donato, and unknown John Doe/Jane Roe members of FCC
Coleman’s URC, so identified because he does not have access to
their names.
Mr. Waltermeyer alleges that at FCC Coleman, he is
receiving ibuprofen and steroid injections in his knees, but
that both the condition of his knees and his pain have become so
severe that those treatments are ineffective. 	He also asserts
that while he has been given certain accommodations to maximize
his mobility, he has been denied others that he needs. 	Mr.
Waltermeyer asserts that the FCC Coleman Low defendants’ failure
to provide him with adequate medical care has caused him
permanent physical damage as well as mental, emotional, and
psychological pain and suffering.
II. 	Procedural History
The Court directed service of Mr. Waltermeyer’s original
complaint (Doc. No. 1) on the two defendants named therein,
Warden Hazelwood and Dr. Kistler. 	See May 14, 2019 Order (Doc.
No. 5). 	The defendants filed a motion to dismiss (Doc. No. 15)
the complaint in its entirety, arguing that: (1) Mr. Waltermeyer
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had sought only injunctive relief therein, which is not
available in a Bivens action; and (2) because Mr. Waltermeyer’s
transfer to FCC Coleman Low rendered his request for injunctive
relief moot.
Mr. Waltermeyer then filed an amended complaint (Doc. No.
20) seeking only damages. 	As a result, the defendants’ motion
to dismiss was denied pursuant to LR 15.1(c).4
After preliminary review of Mr. Waltermeyer’s amended
complaint, the undersigned Magistrate Judge issued an Order
(Doc. No. 22) directing the defendants to file an answer and an
R&R5 (Doc. No. 21) identifying the following three claims for
damages to be served on the named defendants in their individual
capacities:
1. 	Warden Robert Hazlewood and Dr. Diane Kistler violated
Mr. Waltermeyer’s Eighth Amendment rights, in that they
refused to provide needed treatment to Mr. Waltermeyer for
Hepatitis C, causing him memory loss, stomach problems,
aching and weakened joints, and constant fatigue.
2. 	Warden Robert Hazlewood and Dr. Diane Kistler violated
Mr. Waltermeyer’s Eighth Amendment rights, in that they
4 LR 15.1(c) states, in relevant part:
When a plaintiff files an amended complaint as of
right or with leave of court after the filing of a
motion to dismiss for failure to state a claim, the
motion to dismiss shall be automatically denied
without prejudice and the defendant(s) shall respond
to the amended complaint as may be appropriate . . ..
5 As noted above, in an Order issued this date, the Court
vacates the June 6, 2022 R&R.
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refused to order surgery for the lipoma on Mr.
Waltermeyer’s shoulder, allowing the lipoma to grow larger,
causing a limitation in the movement of Mr. Waltermeyer’s
left shoulder, and disrupting his sleep.
3. 	Warden Robert Hazlewood and Dr. Diane Kistler violated
Mr. Waltermeyer’s Eighth Amendment rights, in that they
have failed to provide needed medical care and treatment in
response to Mr. Waltermeyer’s complaints of excruciating
pain in his knees, limiting Mr. Waltermeyer’s movement,
creating the necessity for steroid injections, and causing
permanent physical damage which will require knee
replacements.
Doc. No. 21, at 4.
In that R&R, this Court also recommended the dismissal of
all the John Doe/Jane Roe defendants, because Mr. Waltermeyer
“ha[d] not alleged specific facts against any unnamed ‘Doe’ or
‘Roe’ defendant which are sufficient to state a claim upon which
relief might be granted as to those defendants.” 	Doc. No. 21,
at 5. 	The Court recommended that the Doe/Roe defendants be
dismissed:
without prejudice to Mr. Waltermeyer’s ability to move
to add appropriate defendants to this case if he is
able to obtain, through discovery, the names of such
defendants and can assert sufficient facts with regard
to those defendants to support an Eighth Amendment
claim upon which relief might be granted.
Doc. No. 21, at 6.
Mr. Waltermeyer filed an objection (Doc. No. 27) to that
R&R and a “Motion Requesting permissive Joinder and Dropping of
Parties” (Doc. No. 28). 	The defendants filed an objection (Doc.
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No. 29) to the motion for joinder and Mr. Waltermeyer filed a
reply (Doc. No. 30) to that objection.
Discussion
I. 	Request to Drop Claims
In Document No. 27, which the Court has identified as a
complaint addendum, Mr. Waltermeyer states that since filing
this action, he has received treatment for his Hepatitis C and
the lipoma on his shoulder. 	Mr. Waltermeyer asks the Court to
allow him to drop the claims identified above as Claims 1 and 2,
“so that the parties may focus on the sole remaining claim,
Claim 3,” concerning his knees. 	Doc. No. 27, at 2.
“‘A plaintiff wishing to eliminate particular claims or
issues from the action should amend the complaint under Rule
15(a).’” 	Shwachman v. Town of Hopedale, 540 F. Supp. 3d 134,
139-40 (D. Mass. 2021) (citation omitted). 	(“The court should
freely give leave [to amend a pleading] when justice so
requires.” 	Fed. R. Civ. P. 15(a)(2). 	As Mr. Waltermeyer has
provided a sensible rationale for requesting to drop Claims 1
and 2, that is not contrary to the interests of justice, the
District Judge should grant Mr. Waltermeyer’s request and drop
those claims from this action. 	See Fed. R. Civ. P. 15(a)(2)).
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II. 	Motion for Permissive Joinder and Dropping of Parties
A. 	Legal Standard
Where a proposed amendment seeks to join a party, that
request is “‘governed by Rule 21, which provides that the court
may at any time, on just terms, add or drop a party.’” Gigunda
Grp., Inc. v. Creative Collective Grp., No. 15-cv-104-LM, 2015
WL 6872281, at *1, 2015 U.S. Dist. LEXIS 151771 (D.N.H. Nov. 9,
2015) (citation omitted). 	“‘[T]he same standard of liberality
applies’” under both Rule 15(a) and Rule 21. Id. (citation
omitted). 	“[C]ourts freely give leave to amend where justice so
requires, unless the amendment would be futile or reward undue
delay.” 	Hornof v. United States, No. 2:19-cv-00198-JDL, 2021
U.S. Dist. LEXIS 79853, at *2, 2021 WL 1651193, at *1 (D. Me.
Apr. 27, 2021).
B. 	Joinder of FCC Coleman Low Claims and Defendants
Mr. Waltermeyer seeks to join named and unnamed individuals
employed at FCC Coleman to this action, and to drop Warden
Hazelton and Dr. Kistler from this action. 	In other words, Mr.
Waltermeyer is asking the Court to allow him to continue
litigating this case, in this Court, and to replace the FCI
Berlin defendants with FCC Coleman Low defendants. 	While Mr.
Waltermeyer appears to be abandoning this case, it is not clear
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to the Court that he is aware of the consequences of the relief
he requests.
In this case, Mr. Waltermeyer has asserted that he is
entitled to money damages because, during the time he was
incarcerated at FCI Berlin, Warden Hazelton and Dr. Kistler
engaged in certain acts or omissions which violated his right to
receive medical care under the Eighth Amendment. 	Claims against
the FCI Berlin defendants concerning their acts and omissions
are not transferable to the individuals who hold their positions
at FCC Coleman. 	To the extent Mr. Waltermeyer seeks to continue
to pursue Claim 3, as identified in this R&R, therefore, those
claims must remain against the FCI Berlin defendants identified
therein.
The court further notes that it cannot join the FCC Coleman
Low defendants to this action because it lacks personal
jurisdiction over them. 	See Trujillo v. Williams, 465 F.3d
1210, 1217 (10th Cir. 2006) (holding, in suit by pro se
prisoner, that court may sua sponte consider lack of personal
jurisdiction when the defense is “obvious on the face of the
complaint”). 	Mr. Waltermeyer has not alleged any facts
supporting this Court’s exercise of personal jurisdiction over
individuals located in Florida. 	See Banks v. Partyka, No. CIV-
07-0331-F, 2007 WL 2693180, at *5-6 (W.D. Okla. Sept. 11, 2007)
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(dismissing pro se prisoner’s Bivens action against North
Carolina prison psychologist because court lacked personal
jurisdiction over defendant). 	This court therefore lacks
jurisdiction to grant relief on defendant’s putative Bivens
action for inadequate medical care to the extent he seeks to
hold FCC Coleman defendants liable for the alleged denial of
adequate medical care at FCI Berlin.
Similarly, venue is proper in “a judicial district in which
any defendant resides if all residents are residents of the
State in which the district is located, [or] a judicial district
in which a substntial part of the events or omissionss giving
tise to the claim occurred . . ..” 	28 U.S.C. § 1391(b)(1)-(2).
“When a case is filed in an improper venue, the court meay
either dismiss it or transfer it to a more appropriate district
if doing so serves ‘the interests of justice.’” 	Bobola v.
Fishing Vessel Expectation, No. 15-cv-296-PB, 2016 DNH 077, 2016
U.S. Dist. LEXIS 45405, at *2, 2016 WL 1312529, at *1-2, (D.N.H.
Apr. 4, 2016). 	This Court provides the appropriate venue for
the litigation of Mr. Waltermeyer’s claims against the FCI
Berlin defendants, which arise out of events which occurred in
New Hampshire. 	However, as all of the claims giving rise to the
claims against the FCC Coleman Low defendants occurred in
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Florida, where those defendants are located, this Court is not
the proper venue to litigate those claims.
For these reasons, the District Judge should deny Mr.
Waltermeyer’s motion to the extent it seeks to join any named or
unnamed FCC Coleman employee as a defendant to this action, and
should deny his request to add claims to this action which arise
out of events which occurred in Florida, as they are futile.
The denial of those requests should be entered without prejudice
to Mr. Waltermeyer’s ability to bring an action asserting such
claims against FCC Coleman Low personnel in a court of competent
jurisdiction.
C. 	Dropping FCI Berlin Defendants
Mr. Waltermeyer asks to drop Warden Hazelwood and Dr.
Kistler from this action, apparently under the assumption that
his case can proceed against FCC Coleman defendants who hold the
same positions at that facility as Warden Hazelwood and Dr.
Kistler do at FCI Berlin. 	It does not appear that Mr.
Waltermeyer wants to drop Claim 3, however, which is asserted
against those defendants. 	Accordingly, in order to protect the
rights of the pro se plaintiff, the District Judge should deny
the motion to the extent it seeks to drop the FCI Berlin
defendants from this action without prejudice to Mr.
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Waltermeyer’s ability to again move to drop them, acknowledging
that doing so would cause Claim 3 to be dismissed.
III. Preliminary Review6
A. 	Warden Hazelwood and Dr. Kistler
The Court has previously served Warden Hazelwood and Dr.
Kistler with Claim 3. 	Nothing in the TAC changes the Court’s
position that service of that claim on those defendants is
appropriate. 	In an Order issued this date, the Court will grant
Warden Hazelwood and Dr. Kistler the opportunity to file an
answer or otherwise respond to the TAC.
B. 	John Doe/Jane Roe Defendants
1. 	FCI Berlin
Mr. Waltermeyer alleges that members of the URC at FCI
Berlin violated his rights by denying him medical treatment.
Mr. Waltermeyer has not alleged any facts, however, showing that
any particular request was presented to the URC and denied, or
that any URC member who may have denied a request was acting
with deliberate indifference to Mr. Waltermeyer’s serious
medical needs. 	If Mr. Waltermeyer were to obtain such
information during discovery in this matter, he could move to
6 The Court applies the preliminary review standard set
forth in the June 16, 2022 R&R (Doc. No. 21, at 1-2).
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amend his complaint to join those defendants at that time. 	At
this time, Mr. Waltermeyer has failed to state sufficient facts
against the unnamed John Doe/Jane Roe FCI Berlin URC members to
state a claim for relief.
2. 	2003 –May 2, 2018
Mr. Waltermeyer asserts that all of the Doe/Roe defendants
at FCI Berlin and FCC Coleman are members of the URCs at those
facilities. 	Mr. Waltermeyer, in his filings, also refers to
other John Doe/Jane Roe defendants at facilities where he was
incarcerated prior to arriving at FCI Berlin on May 3, 2018, in
Indiana, Kansas, and Wisconsin.
As stated above, the Court does not have personal
jurisdiction over defendants in other districts concerning
matters that occurred in those districts. 	Additionally, this
Court is not the appropriate venue for such claims.
Accordingly, the District Judge should dismiss all of Mr.
Waltermeyer’s claims against Doe/Roe defendants arising out of
events which occurred in federal prison facilities in Indiana,
Kansas, and Wisconsin.
Conclusion
For the foregoing reasons, the District Judge should:
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1. 	Grant Mr. Waltermeyer’s request to drop Claims 1 and 2
from this action;
2. 	Deny Mr. Waltermeyer’s “Motion Requesting Permissive
Joinder and Dropping of Parties” (Doc. No. 28), without
prejudice.
3. 	Dismiss all claims against any John Doe/Jane Roe
defendants in this action, without prejudice.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file any objection within the specified
time waives the right to appeal the district court’s Order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016). 	Only those issues raised in the objection(s) to this
Report and Recommendation “‘are subject to review in the
district court.’” 	Id. 	Additionally, any issues “‘not preserved
by such objection are precluded on appeal.’” 	Id. (citations
omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 13, 2023
cc: 	Broc T. Waltermeyer, pro se
T. David Plourde, Esq.
Michael T. McCormack, Esq.
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