Bustillo v. Pfannkuchen et al

Filing 15

ORDER OF DISMISSAL dismissing 1 Complaint without prejudice. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 4/19/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JORGE A. BUSTILLO,
Plaintiff,
v.

Case No: 2:15-cv-640-FtM-29MRM

L. PFANNKUCHEN, Nurse, MR.
DOUGAN, Nurse, PAUL JACKSON,
Nurse,
CRUZ,
Nurse,
SIGLIANO, Nurse, H. GREIG,
Nurse, and WEXFORD MEDICAL
CO.,
Defendants.
ORDER OF DISMISSAL
I.
This matter comes before the Court upon periodic review of
the file.

On October 13, 2015, Plaintiff Jorge Bustillo, an inmate

in the custody of the Secretary of the Florida Department of
Corrections, initiated this action proceeding pro se by filing a
Civil Rights Complaint Form (Doc. #1, hereinafter “Complaint”)
under 42 U.S.C. § 1983.

The Complaint identifies defendants who

are employed by the medical department at Desoto Correctional
Institution, which is operated by Wexford Health Services, Inc.
The incident giving rise to the cause of action stems from the
medical staff’s alleged inability to draw blood from Plaintiff at
midnight after he had a seizure.

Complaint at 7.

The remaining

allegations in the Complaint include fantastic and/or delusional

allegations of detailed, sexual relations between members of the
medical staff and correctional officials.

Complaint at 8-12.

For

the reasons that follow, the Court finds this action is subject to
dismissal.
II.
The Prison Litigation Reform Act requires that the Court
review all complaints filed by prisoners against a governmental
entity to determine whether the action is “frivolous, malicious,
or fails to state a claim upon which relief can be granted; or
seeks monetary relief from a defendant who is immune from such
relief.”

See 28 U.S.C. § 1915A(b), (b)(1).

In essence, § 1915A

is a screening process to be applied sua sponte and at any time
during the proceedings.

In reviewing a complaint, however, the

Court applies the long established rule that pro se complaints are
to be liberally construed and held to a less stringent standard
than pleadings drafted by attorneys.

Erickson v. Pardus, 551 U.S.

89, 94 (2007)(citations omitted).
Under § 1915A, the Court “shall” dismiss the complaint if it
fails to state a claim upon which relief may be granted.
§ 1915(e)(2).

See also

The standard that applies to dismissals under Fed.

R. Civ. P. 12(b)(6) applies to dismissals under § 1915A and §
1915(e)(2)(b)(ii).

Leal v. Georgia Dep’t of Corr., 254 F.3d 1276,

1278-79 (11th Cir. 2001); Alba v. Montford, 517 F.3d 1249, 1252

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(11th Cir. 2008); Mitchell v. Carcass, 112 F.3d 1483, 1490 (11th
Cir. 1997).
Additionally, the Court “shall” dismiss the complaint if it
is frivolous or malicious.

See § 1915A(b)(1).

A complaint is

frivolous “where it lacks an arguable basis in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (discussing dismissal
under former section 1915(d), which contained the same language as
§ 1915A)).
claims

rest

A court may dismiss the claims under § 1915A where the
on

an

indisputably

meritless

legal

theory

or

comprised of factual contentions that are clearly baseless.

is
Id.

at 327.
In Neitzke, the United States Supreme Court provided examples
of frivolous or malicious claims.

Where the defendant is clearly

immune from suit, or where the plaintiff alleges infringement of
a legal interest which obviously does not exist, then the claim is
found on an indisputably meritless legal theory.

Id. at 327.

Claims detailing fantastic or delusional scenarios fit into the
factually baseless category. Id. at 327-328.

The Supreme Court

recognized that federal district judges are “all too familiar”
with claims based on fantastic or delusional scenarios.

Id. at

328.
III.
According to the Amended Complaint, Plaintiff has epilepsy
and brain cancer.

Complaint at 6.

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Based on the number of seizures

he was having, Plaintiff was housed in the infirmary at Desoto
Correctional Institution when the incident giving rise to the
Complaint occurred.

Id. at 7.

Also as a result of the seizures,

a physician at Desoto Correctional ordered blood work to be done
after he had one of the seizures.

Id.

On an unspecified date

around midnight after having a seizure, Plaintiff states he was
brought to the medical department for his blood to be drawn.

Id.

Plaintiff alleges when he arrived at the medical department,
Defendant Nurse Pfannkuchen tried to “find a vein” in order to
draw blood, while another nurse, who Plaintiff alleges is “legally
blind,” inserted a needle to draw blood to no avail.

Id.

The

remaining allegations in the Complaint detail other reasons why
Plaintiff believes his blood draw was not successful that night
and other unrelated conversations he had subsequently with Nurse
Pfannkuchen.
damages.

Id. at 8-12.

As relief, Plaintiff seeks monetary

Id. at 14.
IV.

The Court finds that the Complaint is subject to dismissal
pursuant to 28 U.S.C. § 1915A and/or § 1915(e)(2)(B)(ii) for
failure

to

state

an

Eighth

Amendment

claim.

Even

liberally

construing the facts alleged in the Complaint, the Court finds the
action fails to state a cruel and unusual punishment claim under
the United States Constitution.

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The Eight Amendment forbids cruel and unusual punishment and
applies to the states through the Due Process Clause of the
Fourteenth Amendment and prohibits the “unnecessary and wanton
infliction of pain.”

Thomas v. Bryant, 614 F.3d 1288, 1303-1304

(11th Cir. 2010) (citations omitted).

To establish an Eighth

Amendment conditions of confinement claim, a plaintiff must show:
an

objective

showing

of

a

deprivation

or

injury

that

is

“sufficiently serious” to constitute a denial of the Aminimal
civilized measure of life=s necessities@ and a subjective showing
that the official had a “sufficiently culpable state of mind.”
Id.

at

1304

(citations

omitted).

To

state

a

claim

for

an

unconstitutional condition of confinement, “extreme deprivations”
are required.

Id.

The relevant state of mind inquiry rests on

deliberate indifference.

Id.

At the outset, the Court will not engage in an analysis
involving the allegations that it finds delusional and fantastic,
e.g. the sexual relations of the correctional staff and the medical
staff in the medical department at Desoto Correctional.
490 U.S. at 328.

Neitzke,

The remaining facts set forth in the Complaint

do not show that Defendant Jackson’s attempts to draw Plaintiff’s
blood were done for malicious and sadistic purposes.

According

to the Complaint, a physician at Desoto Correctional ordered that
Plaintiff’s blood be drawn after he had a seizure for testing
purposes to determine why he was having an increased number of

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seizures.

Complaint at 7.

The attempt to draw Plaintiff’s blood

post-seizure was in compliance with the physician’s orders, albeit
to no avail.

See Ali v. McAnany, 262 F. App’x 443 (3d Cir. 2008)

(affirming district court’s finding that unsuccessful blood draw
did not violate the Eighth Amendment).

Further, the Complaint

does not explain how the nurses’ failure to successfully draw
Plaintiff’s blood on the evening in question caused him any harm.
To

the

extent

the

Complaint

is

attempting

to

allege

a

deliberate indifference to a serious medical condition claim, the
Court also finds the Complaint fails to state a claim.
alleging

a

constitutional

deliberate

indifference

A prisoner
claim

“must

sufficiently allege ‘both an objectively serious medical need and
that a Defendant acted with deliberate indifference to that need.’”
Harper v. Lawrence Cty., Ala., 592 F.3d. 1227, 1233 (11th Cir.
2010)(quoting Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir.
2008)(footnote omitted)).

“[A] serious medical need is considered

‘one that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’”

Farrow v.

West, 320 F.3d 1235, 1243 (11th Cir. 2003) (citing Hill v. Dekalb
Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).

In

either situation, “the medical need must be ‘one that, if left
unattended, pos[es] a substantial risk of serious harm.’”
(citing Taylor, 221 F.3d at 1258) (alteration in original).

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Id.

To establish “deliberate indifference,” the plaintiff must
establish that Defendants: “(1) had sufficient knowledge of a risk
of serious harm; (2) disregarded that risk; and, (3) acted with
more than gross negligence.”
omitted).

Further,

the

Harper, 592 F.3d at 1233 (citations

plaintiff

must

show

that

it

was

“Defendant’s conduct” that “caused [Plaintiff’s] injuries.”

the
Id.

“[M]edical treatment violates the Eighth Amendment only when it is
‘so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness.’”

Harris

v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quoting Rogers
v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)).
Further,

a

plaintiff

must

allege

that

the

Defendant

disregarded the risk of serious harm to the plaintiff with conduct
that rises beyond negligence.

Marsh v. Butler Cty., Ala., 268

F.3d 1014, 1027 (11th Cir. 2001).

“Deliberate indifference” can

include “the delay of treatment for obviously serious conditions
where it is apparent that delay would detrimentally exacerbate the
medical problem, the delay does seriously exacerbate the medical
problem, and the delay is medically unjustified.”

Taylor v.

Adams, 221 F.3d 1254, 1259-60 (11th Cir. 2000) (internal quotation
omitted).

Whether the delay was tolerable depends on the nature

of the medical need and the reason for the delay.
320 F.3d 1235, 1247 (11th Cir. 2003).
that

a

delay

in

medical

A plaintiff seeking to show

treatment

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Farrow v. West,

amounted

to

deliberate

indifference “must place verifying medical evidence in the record
to

establish

the

detrimental

treatment to succeed.”

effect

of

the

delay

in

medical

Hill v. Dekalb Reg'l Youth Pet. Ctr., 40

F.3d 1176, 1188 (11th Cir. 1994), abrogated in part on other
grounds by, Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002)); see
also Farrow v. West, 320 F.3d 1235, 1244 n.12 (11th Cir. 2003)
(“In Hope v. Pelzer, 536 U.S. 730 (2002) . . . the Supreme Court
criticized part of the qualified immunity analysis in Hill, but
not Hill's analysis of what constitutes a serious medical need of
prisoners.”).
To establish “sufficient knowledge,” a Defendant “‘must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and [ ] must also draw
the inference.’” Id. (quoting Bozeman v. Orum, 422 F.3d 1265, 1272
(11th Cir. 2005)).

“[I]mputed or collective knowledge cannot

serve as the basis for a claim of deliberate indifference. Each
individual Defendant must be judged separately and on the basis of
what that person knows.”

Burnette, 533 F.3d at 1331.

Here, Plaintiff’s need to have his blood drawn does not
constitute a serious medical condition.

As set forth above, a

serious medical need is considered ‘one that has been diagnosed by
a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.’”

Farrow, 320 F.3d at 1243.

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In either

situation, “the medical need must be ‘one that, if left unattended,
pos[es] a substantial risk of serious harm.”
any

allegations

that

Plaintiff’s

blood

There are neither

was

not

eventually

successfully drawn, nor any ramifications from a delay in having
the blood drawn for testing.

Accordingly, the Court finds this

action subject to dismissal for failure to state a deliberate
indifference to a serious medical need claim.
V.
Finally, the Court finds this action subject to dismissal due
to Plaintiff’s failure to comply with the Court’s Order.

On

January 6, 2016, the Court entered an order directing Plaintiff to
file an initial, partial filing fee of $23.00 within thirty days
from the date on the Order based on the funds he had available in
his inmate account.

See Doc. #12.

The Court warned Plaintiff

that failure to timely comply would result in the dismissal of the
case without further notice.

Id. at 1.

As of the date on this

Order, Plaintiff has not complied with the Court’s January 6, 2016
Order. 1

See Feb. 12, 2016 entry detailing $14.00 in fees.

For

failing to comply with the Court’s order, this case is subject to
dismissal, without prejudice.
ACCORDINGLY, it is hereby

1Plaintiff

alleges in his motion for miscellaneous relief that
defendants have not served him copies of their responses.
See
Doc. #13.
Considering defendants have not been served with
process, Plaintiff is not missing any copies from Defendants.

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ORDERED:
1.

The Complaint (Doc. #1) is DISMISSED, without prejudice,

under § 1915A and/or § 1915(e)(2)(b)(ii).

Alternatively, the

Complaint is DISMISSED, without prejudice, for failing to comply
with the Court’s January 6, 2016 order.
2.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of April, 2016.

SA: ftmp-1
Copies: All Parties of Record

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19th

day