Carson v. Grajales et al
Filing
39
ORDER granting in part and denying in part 27 motion to dismiss. Signed by Judge James D. Whittemore on 3/3/2015. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JOSEPH CHARLES CARSON,
Plaintiff,
Case No. 5:13-CV-507-27PRL
vs.
DR. GRAJALES, et al.,
Defendants.
ORDER
BEFORE THE COURT is Defendants Grajales, Buggs, Lee, Storey, and United States'
Motion to Dismiss, and Alternatively, Motion for Summary Judgment (Dkt. 27). Plaintiff has filed
a response requesting the opportunity to conduct discovery (Dkt. 38). For the reasons discussed
below, Defendants' motion is granted in part and denied in part.
BACKGROUND
In his Amended Complaint (Dkt. 8), Plaintiff alleges the following: On July 7, 2011, while
incarcerated at the Coleman Federal Correctional Complex, Medium, in Coleman, Florida, he
slipped and fell, breaking his right hand. Defendant Storey, a nurse, did not x-ray his hand or wrap
it and refused to give him medication for pain. Plaintiff waited five days for a medical call-out, to
no avail, and on July 12, 2011, after complaining to an officer, was seen by a mid-level practitioner
(MLP). The MLP x-rayed Plaintiffs hand and told him that he needed to see. a surgeon as soon as
possible. Defendant Dr. Lee reviewed the x-rays and the MLP's findings, and Plaintiffs hand was
placed in a bandage. He was given ibuprofen for pain, but could not take it because of a pre-existing
medical condition. On July 26, 2011, Plaintiff saw an orthopedic surgeon, Defendant Dr. Chiang,
who informed Plaintiff that he should have seen him much sooner, because his bone was beginning
to heal. Plaintiffs hand was placed in a cast and additional x-rays were ordered. The additional xrays did not occur until October 5, 2011. Meanwhile, between July 27, 2011 and August 30, 2011,
Plaintiff complained to Defendants Buggs and Lee several times of pain but received no response.
Plaintiff saw Dr. Chiang again on August 30, 2011, but no action was taken despite continued,
intense pain. Plaintiff saw Dr. Chiang the next time on May 29, 2012, when Dr. Chiang noted no
improvement and recommended Plaintiff see another hand specialist. Defendant Grajales, clinical
director, approved an orthopedic consultation on June 5, 2012; a hand surgery evaluation on June
19, 2012, and the hand surgery on December 19, 2012. Plaintiff received surgery on his broken hand
on April 18, 2013, nearly two years after he broke his hand.
Plaintiff asserts claims under the Federal Tort Claims Act (FTCA) and for deliberate
indifference to his medical needs pursuantto Bivens v. Six Unknown Fed. Narcotic Agents, 403 U.S.
388 (1971). 1 Plaintiff seeks damages in the amount of$150,000 (Dkt. 8).
DISCUSSION
In their Motion to Dismiss, and Alternatively, Motion for Summary Judgment (Dkt. 27),
Defendants Grajales, Buggs, Lee, and Storey argue that they are immune from suit in their official
capacity; that they are entitled to summary judgment on the deliberate indifference claim; and that
they are entitled to qualified immunity. Dr. Grajales also asserts that she is entitled to absolute
immunity by virtue ofher role as an officer with the Public Health Service. The United States asserts
that it is entitled to summary judgment because Plaintiff has provided no medical evidence to support
1Although
Plaintiff is currently represented by counsel, he filed both his initial complaint (Dkt. I) and his
amended complaint (Dkt. 8) prose. In his original complaint, Plaintiff states that he is suing under bothBivens and
the FTCA. In his amended complaint, Plaintiff does not specifically refer to Bivens, but a liberal construction of his
pro se amended complaint gives rise to both types of claims. See, e.g., Haines v. Kerner, 404 U.S. 519 (1972).
his position (Dkt. 27). In response, Plaintiffs counsel requests the opportunity to conduct discovery
in order to adequately respond to the motion for summary judgment (Dkt. 38).
Although Plaintiff does not specify in his amended complaint in what capacities he is suing
defendants, defendants are correct that they are immune from suit in their official capacities as to the
Bivens claims. Accordingly, any official capacity Bivens claims against Defendant Grajales, Buggs,
Lee, Storey, and the United States are dismissed. See. e.g .. Kentucky v. Graham, 473 U.S. 159
(1985).
As to Plaintiffs Bivens claim against Dr. Grajales individually, this claim is also dismissed
because she is immune by virtue of her position as a Public Health Service (PHS) officer. See 42
U.S.C. § 233(a); Hui v. Castaneda, 559 U.S. 799, 802 (2010) (holding that "based on the plain
language of§ 233(a), we conclude that PHS officers and employees are not personally subject to
Bivens actions for harms arising out of such conduct.")
As to Defendants' request for summary judgment on all claims, and their argument that they
are entitled to qualified immunity because Plaintiff has failed to state a claim for a constitutional
violation, the Court finds that Plaintiff is entitled to conduct discovery prior to a ruling on these
arguments. The motion is denied without prejudice to the extent that Defendants request summary
judgment in their favor prior to a discovery period.
Finally, the Court notes that service has not been executed as to Defendant Dr. Chiang.
Service was unsuccessful at FCC Coleman-Medium (Dkt. 14), and service was attempted again at
a Dade City address provided by Plaintiff (Dkt. 30). The USM-285 service form was returned
unexecuted, with notes showing that several attempts at service were made. On November 19, 2014,
the Court directed to Plaintiff to show cause why Defendant Chiang should not be dismissed without
prejudice for failure to timely serve Defendant Chiang in accord with Rule 4(m) of the Federal Rules
..
of Civil Procedure (Dkt. 31).
In response, Plaintiffs counsel filed, unaccompanied by any
memorandum or notice, a copy of the service form showing that service was unsuccessful (Dkt. 32).
Based on the failed attempts at service and Plaintiffs response, Defendant Chiang is due to be
dismissed without prejudice.
CONCLUSION
Accordingly, it is ORDERED that the Defendants' Motion to Dismiss, and Alternatively,
Motion for Summary Judgment (Dkt. 27), is GRANTED IN PART AND DENIED IN PART.
The motion is granted to the extent that any official capacity Bivens claims against the defendants
are dismissed; Defendant Grajales is DISMISSED from the case because she is immune from the
Bivens claim against her. The motion is denied to the extent that defendants seek judgment in their
favor on the Bivens and FTCA claims. The parties will be permitted to conduct discovery and
submit dispositive motions pursuant to a separate scheduling order. The scheduling order will be
entered after Defendants have filed an answer. Fed. R. Civ. P. 12(a)(4)(A).
In addition, Defendant Chiang is DISMISSED from this suit without prejudice because
Plaintiff failed to timely serve the defendant in accord with Rule 4(m) of the Federal Rules of Civil
Procedure.
DONE AND ORDERED in chambers this
Copies to:
Counsel of Record
,J
3-
day of March, 2015.
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