Holley v. Director of Danbury Medical Staff., et al

Filing 12

INITIAL REVIEW ORDER dismissing complaint. Signed by Judge Stefan R. Underhill on 6/3/14.(Sbalbi, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

GERTRILLA HOLLEY,
Plaintiff,
v.
DIRECTOR OF DANBURY MEDICAL
STAFF, et al.,
Defendants.

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CASE NO. 3:14-cv-349 (SRU)

INITIAL REVIEW ORDER
The plaintiff, Gertrilla Holley, currently incarcerated at the Federal Correctional
Institution in Danbury, Connecticut, commenced this action pro se pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The complaint
was transferred to this court from the Northern District of West Virginia on March 18, 2014.
The plaintiff’s motion to proceed in forma pauperis was granted on April 24, 2014. The plaintiff
names as defendants in the case caption, the Director of Danbury Medical Department, Danbury
Medical Staff PA Rosemary Johnson, Dr. Tiffany Sanders and Nurse F. Zork. Within the body
of the complaint, she also names MLP Nicholas Peralta. The plaintiff names the defendants in
their individual and official capacities.
Under 28 U.S.C. § 1915A (2000), the court must review prisoner civil complaints and
dismiss any portion of the complaint that is frivolous or malicious, that fails to state a claim upon
which relief may be granted, or that seeks monetary relief from a defendant who is immune from
such relief. Id. In reviewing a pro se complaint, the court must assume the truth of the
allegations, and interpret them liberally to “raise the strongest arguments [they] suggest[].”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although detailed allegations are not

required, the complaint must include sufficient facts to afford the defendants fair notice of the
claims and the grounds upon which they are based and to demonstrate a right to relief. Bell
Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory allegations are not sufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. But “‘[a] document filed
pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.’” Boykin v. KeyCorp.,
521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
The plaintiff alleges that she injured her left ankle on November 13, 2010. Documents
attached to the complaint indicate that she was brought to the medical department where
defendant Zork issue an ace wrap, crutches and a wheelchair and instructed the plaintiff to report
for sick call the following day. At sick call, defendant Johnson ordered x-rays. About a week
later, defendant Johnson prescribed Motrin and stretching exercises and told the plaintiff to
elevate her foot. Although the plaintiff alleges that she was not evaluated for ankle surgery for
eleven months, she states in her administrative remedy documents that she was seen by a
neurologist on February 18, 2011, and an orthopedist two weeks after than. Doc. #1-1 at 4. The
Administrative Remedy response indicates that the plaintiff has been under the care of an
orthopedist since April 4, 2011. Doc. #1-1 at 5. The plaintiff contends that the defendants
misdiagnosed her injury resulting in delayed treatment and some permanent damage.
The plaintiff brings this Bivens action1 against the defendants in their individual and

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The plaintiff filed an administrative tort claim. The claim was denied and, on August 6,
2013, the plaintiff was told that she had six months to file a claim against the United States in an
appropriate United States District Court. The complaint is dated March 5, 2014. As the
complaint was filed a month beyond the deadline for commencing an action against the United
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official capacities. The defendants are federal officials. Thus, the claims against them in their
official capacities are barred by sovereign immunity. See Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 510 (2d Cir. 1994) (“Because an action against a federal agency or federal
officers in their official capacities is essentially a suit against the United States, such suits are
also barred under the doctrine of sovereign immunity unless such immunity is waived.”); Higazy
v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (“The only remedy available in a Bivens action is
an award for monetary damages from the defendants in their individual capacities.”). Because
the plaintiff has alleged no facts indicating a waiver, all claims against the defendants in their
official capacities are dismissed.
To assert a cognizable Bivens claim, the plaintiff must allege facts indicating that the
defendants violated constitutionally protected rights. See Correctional Servs. Corp. v. Malesko,
534 U.S. 61, 67 (2001) (explaining that Bivens recognizes ‘in limited circumstances a claim for
money damages against federal officers who abuse their constitutional authority”); Schweiker v.
Chilicky, 487 U.S. 412, 447 (1988) (in a Bivens action, the plaintiff must “prove a deliberate
abuse of governmental power rather than mere negligence”).
The plaintiff alleges that the defendants misdiagnosed her injury and did not immediately
recommend examination by an orthopedist. At most, the plaintiff’s allegations constitute a
medical malpractice claim. Mere malpractice, however, does not rise to the level of a
constitutional violation to support a claim under Bivens. “[A] complaint that a physician has
been negligence in diagnosing or treating a medical condition does not state a valid claim of

States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), and the plaintiff has
named specific individuals as defendants rather than the United States, the court will not
construe the complaint as asserting an FTCA claim.
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medical mistreatment under the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97,
106 (1976). Because medical malpractice is not cognizable under Bivens, the complaint is
dismissed.
ORDERS
Accordingly, the court enters the following orders:
(1)

The complaint is DISMISSED pursuant to 28 U.S.C. § 1915A.

(2)

The Clerk is directed to enter judgment and close this case.

SO ORDERED this 3rd day of June 2014, at Bridgeport, Connecticut.

/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

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