Young v. United States of America et al
Filing
35
OPINION AND ORDER dismissing defendant Chiang; granting 28 Defendants' Motion to Dismiss; denying as moot 32 Defendant Chiang's Motion to Quash. The Clerk shall enter judgment accordingly and close this case. Signed by Judge John E. Steele on 8/7/2015. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JAMES R. YOUNG,
Plaintiff,
v.
Case No: 5:14-cv-62-Oc-29PRL
UNITED STATES OF AMERICA, S.
LEE, M.D., R. LI, M.D., R.
CARVER, M.D., J. CACHO, MLP,
M. RAMOS, MLP, S. BUGGS, RN
AHSA, FNU PIERCE, Therapy
Specialist,
and
BEN
L.
CHIANG, Orthopedic Surgeon,
Defendants.
OPINION AND ORDER
I.
Introduction
Plaintiff James R. Young, a federal prisoner who is proceeding
in this action pro se, initiated this action by filing a Civil
Rights Complaint Form (Doc. #1).
Plaintiff is now proceeding on
his Amended Complaint (Doc. #8, Amended Complaint) against the
United States and several medical defendants, including: Doctor S.
Lee; Doctor R. Li; Doctor R. Carver; J. Cacho, MLP; M. Ramos, MLP;
S. Buggs, RN AHSA; Mr. Pierce, Therapy Specialist; and, Doctor Ben
L. Chiang, who Plaintiff identifies as an orthopedic surgeon.
Liberally
under the
construed,
Federal
the
Tort
Amended
Claims
Complaint
Act
(FTCA)
alleges
for
violations
negligence
and
malpractice, and Bivens v. Six Unknown Named Agents, 403 U.S. 388
(11th
Cir.
1971)
stemming
from
the
alleged
failure
to
treat
Plaintiff’s injuries he sustained after slipping and falling on
water outside of his shower at FCC-Coleman.
Amended Complaint at
9-12.
Defendants Lee, Li, Carver, Cacho, Ramos, Buggs, Pierce, and
the United States move to dismiss the Amended Complaint and attach
supporting exhibits to show that Plaintiff did not exhaust his
administrative remedies.
See Docs. #28, #28-1.
Defendant Chiang
filed a motion to quash service. See Doc. #32.
Plaintiff filed
responses
exhibits. 1
opposing
the
motions
See Docs. #29, #33.
and
also
attached
supporting
Upon consideration, the Court
finds this action subject to dismissal as to all defendants.
1
Although Defendants attach exhibits supporting their
argument that Plaintiff did not exhaust his remedies, the Court
will not convert Defendants’ motion to a motion for summary
judgment.
This Court treats the failure to properly exhaust
available administrative remedies under the Prison Litigation
Reform Act (PLRA) as a matter in abatement, Bryant v. Rich, 530
F.3d 1368, 1374 (11th Cir. 2008), meaning that procedurally the
defense is treated “like a defense for lack of jurisdiction,”
although it is not a jurisdictional matter. Id. at 1374.
Here, the facts relating to whether Plaintiff exhausted his
administrative remedies do not bear on the merits of his other
claims. And, Plaintiff has had sufficient opportunity to develop
(and did develop) a record on this issue. Accordingly, this Court
will consider the pleadings submitted by both sides relating to
the issue of exhaustion. However, because the Court declines to
convert Defendants’ motion to dismiss into a motion for summary
judgment, it will not consider any attached documents that do not
relate to the issue of exhaustion. Thus, the Court will not
consider any of Plaintiff’s other exhibits unrelated to the
exhaustion issue.
- 2 -
II.
Factual Background
The pertinent facts alleged in the Amended Complaint are as
follows:
on the evening of June 28, 2012, Plaintiff claims he
slipped and fell on water outside of a shower located in the
Special Housing Unit (SHU).
states
that
he
sustained
Amended Complaint at 12. Plaintiff
injuries
as
a
result
of
the
fall,
including: “injuries to his right and left chest and shoulders, a
tear in his left bicep, a fractured right hand, right and left
wrist problems, and a right knee injury that swells with prolonged
standing.”
Id.
Plaintiff claims that Defendants have failed to
properly treat his injuries and as a result, he continues to
experience pain and limited mobility in his hands and shoulders.
Id.
According
to
the
Amended
Complaint,
Plaintiff
underwent
several physical examinations and diagnostic tests, including xrays, MRIs, and CT scans.
Id. at 9.
Plaintiff was prescribed
Naproxen for approximately one year to alleviate the pain he
associated with these injuries.
Id.
As of the date Plaintiff
filed the Amended Complaint, however, he was no longer prescribed
the Naproxen and now has to take over-the-counter pain medication
at his own expense.
Id.
Plaintiff claims that Defendants are at fault for entirely
failing
to
treat
his
serious
medical
conditions.
Id.
Specifically, Plaintiff alleges that “[i]t has been since [his] x-
- 3 -
ray diagnosis of the fracture in
his right hand, tissue tear in
the right and left shoulders and chest (found by MRI), tear in
left biceps, and initial notice of problems with my right knee
that medical staff defendants began individual acts to refuse
Plaintiff medical treatment.”
Id. at 12-13.
The only specific allegations regarding each Defendant, with
the exception of Defendant Carver who is not mentioned in the
Amended Complaint, are as follows:
-Defendant Doctor Li prescribed a medical
wrist brace, but on August 21, 2013 when
Plaintiff went to do a medical request to
pick-up the brace, he was denied. Plaintiff
filed a grievance regarding such.
-On August 22, 2013, Defendant S. Buggs
responded
to
Plaintiff’s
aforementioned
grievance and told Plaintiff to report to her
on August 27 for the brace. Defendant Buggs
never showed up to see Plaintiff for the
callout.
Buggs has refused to order “the
necessary level of treatment.”
-Defendant Doctor Lee examined Plaintiff and
concluded that Plaintiff had a torn muscle or
ligament, and swelling of his right hand, but
said the Government wouldn’t pay for the
operation and treatment to correct the
problem.
-Defendants J. Cacho, M. Ramos examined
Plaintiff, but never attempted to request any
form of treatment.
-Defendant Pierce, the Physical Therapist,
conducted one visit and refused further
treatment.
-Defendant
Doctor
Chiang,
an
orthopedic
surgeon, assessed Plaintiff’s injuries and
reviewed the x-rays and MRIs, and “denied the
- 4 -
true findings of the facture to [Plaintiff’s]
hand, and said carpal tunnel was the cause for
pain in wrists.” Doctor Chiang said “nothing
could be done about [Plaintiff’s] biceps
tear.”
Id. at 14.
Based on the foregoing, Plaintiff believes Defendants
have shown deliberate indifference to his medical needs.
As
relief, Plaintiff seeks monetary compensation, including punitive
damages, for his physical and emotional injuries.
Id. at 15.
III. Defendants’ Motion to Dismiss
Defendants Lee, Li, Carver, Cacho, Ramos, Buggs, Pierce, and
the United States move to dismiss the Amended Complaint under
Federal
Rule
of
Civil
generally Doc. #28.
raise
three
Procedure
12(b)(1)
and
12(b)(6).
See
With regard to the FTCA claim, Defendants’
arguments:
(1)
Plaintiff
failed
to
exhaust
his
administrative remedies because the grievances only pertained to
the slip and fall, not the medical care related thereto; (2)
Plaintiff
requisite
failed
to
six-month
file
his
statute
federal
of
tort
claim
limitations;
within
and
(3)
the
the
allegations in the Amended Complaint are conclusory in nature and
do not satisfy Federal Rule of Civil Procedure 8.
Id. at 17-19.
Turning to the Bivens claims, Defendants also raise three
arguments:
(1)
Defendants
are
entitled
to
qualified
immunity
because there is no violation of the Eighth Amendment based on the
face of the Amended Complaint; (2) Plaintiff did not fully and
properly
exhaust
his
administrative
- 5 -
remedies;
and,
(3)
the
allegations in the Amended complaint are conclusory in nature and
do not satisfy Federal Rule of Civil Procedure 8.
IV.
A.
Id. at 8-12.
Standards of Review
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(1) provides for a
dismissal
of
jurisdiction.
an
action
if
the
court
lacks
subject
matter
When reviewing a motion to dismiss for lack of
subject matter jurisdiction, the allegations of the complaint
should be construed in a light most favorable to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Cole v. United States,
755 F.2d 873, 878 (11th Cir. 1985).
jurisdiction come in two forms.
Attacks on subject matter
Carmichael v. Kellogg, Brown &
Root Servs., Inc., 572 F.2d 1271, 1279 (11th Cir. 2009); Lawrence
v. Dunbar, 919 F.2d 1525, 1528 (11th Cir. 1990).
The first is a
facial attack on the complaint, which requires the court to see
whether plaintiff has sufficiently alleged a basis of subject
matter jurisdiction.
facial
validity,
the
Lawrence, 919 F.2d at 1529.
court
must
take
the
complaint as true for purposes of the motion.
In considering
allegations
Id.
in
the
In contrast,
as in the instant case, a factual attack challenges the existence
of subject matter jurisdiction, or the court=s power to hear the
case.
Id.
The court can look outside the pleadings in order to
make its determination, and the court is free to weigh the evidence
in order to determine whether it has jurisdiction.
- 6 -
Id.; see also
Bryant,
530
F.3d
at
1376
A[w]here
(stating
exhaustion--like
jurisdiction, venue, and service of process--is treated as a matter
in abatement and not an adjudication on the merits, it is proper
for a judge to consider facts outside of the pleadings and to
resolve factual disputes so long as the factual disputes do not
decide the merits and the parties have sufficient opportunity to
develop
the
record.@).
The
Court
nonetheless
will
liberally
construe Plaintiff=s pro se pleadings and hold the pleadings to a
less stringent standard than pleadings drafted by an attorney.
Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003) (citing
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)).
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits
its
consideration
to
well-pleaded
factual
allegations,
documents central to or referenced in the complaint, and matters
judicially noticed.
La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845 (11th Cir. 2004).
Thus, the Court must accept all factual
allegations in Plaintiff=s Amended Complaint as true and take them
in
the
light
most
favorable
to
the
plaintiff.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
Pielage
v.
Conclusory
allegations, however, are not entitled to a presumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1951 (2009)
(discussing a 12(b)(6) dismissal); Marsh v. Butler County, Ala.,
268 F.3d 1014, 1036 n.16 (11th Cir. 2001).
- 7 -
The Court employs the Twombly-Iqbal plausibility standard
when reviewing a complaint subject to a motion to dismiss.
v. Scott, 610 F.3d 701, 708, n.2 (11th Cir. 2010).
Randall
A claim is
plausible where the plaintiff alleges facts that Aallow[] the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.@
Ct. 1937, 1949 (2009).
plaintiff
allege
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.
The plausibility standard requires that a
sufficient
facts
Ato
raise
a
reasonable
expectation that discovery will reveal evidence@ that supports the
plaintiff=s claim.
556 (2007);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
Marsh, 268 F.3d at 1036 n.16.
Specifically, A[w]hile
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff=s obligation
to provide the >grounds= of his >entitle[ment] to relief= requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.@
(citations omitted).
Id. at 555
Thus, Athe-defendant-unlawfully harmed me
accusation@ is insufficient.
Ashcroft, 129 S. Ct. at 1949.
ANor
does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.@ 2
Id.
2Additionally,
the PLRA requires that the Court review all
complaints filed by prisoners against a governmental entity to
determine whether the action is Afrivolous, 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(a), (b)(1), (b)(2).
In essence, ' 1915A is a
- 8 -
A complaint must satisfy the pleading requirements of Federal
Rule of Civil Procedure 8 by simply giving the defendant fair
notice of what the plaintiff=s claims are and the grounds upon
which they rest.
Conley v. Gibson, 355 U.S. 41 (1957).
However,
the A[f]actual allegations must be enough to raise a right to
relief above the speculative level.@
See Twombly, 550 U.S. 544,
127 S. Ct. 1955, 1965, 1968-69 (citations omitted).
B.
Negligence and the Federal Tort Claims Act
“It is well settled that sovereign immunity bars suit against
the United States except to the extent that it consents to be
sued.”
Means v. United States, 176 F.3d 1376, 1378 (11th Cir.
1999).
The FTCA provides a “limited waiver” of this sovereign
immunity, “making the United States liable for ‘injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office of employment.’”
JBP
Acquisitions, L.P. v. United States ex rel. FDIC, 224 F.3d 1260,
1263 (11th Cir. 2000) (quoting 28 U.S.C. § 1346(b)(1)).
FTCA
liability attaches “under circumstances where the United States,
screening process to be applied sua sponte and at any time during
the proceedings. Id. (emphasis added). Pursuant to ' 1915A, the
Court Ashall@ dismiss the complaint, if, inter alia, it fails to
state a claim upon which relief may be granted.
' 1915(b)(1).
The standards that apply to a dismissal under Federal Rule of Civil
Procedure 12(b)(6) apply to a dismissal under ' 1915(b)(1). Leal
v. Georgia Dep=t of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001).
- 9 -
if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.”
28
U.S.C. § 1346(b)(1).
The United States is the only permissible defendant in an
FTCA action.
See 28 U.S.C. § 2679(b)(1) (the FTCA remedy against
the United States “is exclusive of any other civil action or
proceeding for money damages by reason of the same subject matter
against the employee whose act or omission gave rise to the
claim”); United States v. Smith, 499 U.S. 160, 166–67 & n. 9 (1991)
(noting that § 2679(b)(2) provides two exceptions to the exclusive
remedy provision, allowing injured plaintiffs to obtain “remedy
for torts committed by government employees in the scope of their
employment”
under
Bivens
or
“under
a
federal
statute
authorizes recovery against a government employee”).
that
Therefore,
a plaintiff may proceed against the United States, as the sole
permissible
defendant
under
the
FTCA,
and
against
a
federal
employee, under Bivens, and he may do so in the same civil action.
See Denson v. United States, 574 F.3d 1318, 1336 (11th Cir. 2009)
(noting that, “[a]s co-extensive causes of action, Bivens and FTCA
claims necessarily arise from the same wrongful acts or omissions
of a government official[,]” and analyzing viability of both sets
of claims) (quoting Carlson v. Green, 446 U.S. 14, 20 (1980), for
proposition that “plaintiffs, ‘[i]n the absence of a contrary
expression from Congress, . . . shall have an action under FTCA
- 10 -
against the United States as well as a Bivens action against the
individual
officials
alleged
to
have
infringed
their
constitutional rights’”)).
C.
Civil Rights Violations under Bivens
In order to state a Bivens claim against a federal official
in his individual capacity, a plaintiff must allege that: (1) a
federal official acting under color of federal law; (2) deprived
him of a right secured by the United States Constitution.
Bivens,
403 U.S. at 388; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71
(2001).
Because claims under 42 U.S.C ' 1983 and Bivens are
similar, courts generally apply ' 1983 law to Bivens cases.
v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).
Abella
Similar to ' 1983,
A[i]t is well established that supervisory officials are not liable
under [Bivens] for the unconstitutional acts of their subordinates
on
the
basis
of
respondeat
superior
or
vicarious
liability.@
Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003).
A[T]he
immunities provided federal officials in Bivens are coextensive
with those provided state officials in '1983 actions.@
Story, 225 F.3d 1234, 1241-42 (11th Cir. 2000).
Bolin v.
A plaintiff may
bring a Bivens action against a federal officer in his individual
capacity, but may not bring a Bivens action against a federal
agency, or federal officer in his official capacity.
See Solliday
v. Fed. Officers, 413 F. App’x 206, 209-210 (11th Cir. 2011)
(citations omitted).
Bivens actions also do not extend to private
- 11 -
entities, or employees of private entities, alleged to have acted
unconstitutionally under color of federal law.
Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 69-70 (2001).
V.
A.
Analysis
Bivens Claim and Qualified Immunity
The
qualified
immunity
doctrine
“protect[s]
government
officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Youmans
v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010) (internal quotation
marks omitted).
officials
to
The protection of qualified immunity allows
carry
out
discretionary
duties
without
personal liability or threat of possible litigation.
fear
of
McCullough
v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (citations
omitted).
his
If a government official is acting within the scope of
discretionary
authority,
the
burden
then
shifts
to
the
plaintiff to allege a constitutional violation, which would render
application of this immunity inappropriate.
Id.
Courts follow a two-part analysis when a defendant asserts
qualified
immunity,
asking
whether
the
plaintiff
carried
its
burden of showing: (1) that the defendant’s actions deprived the
plaintiff
of
a
constitutional
right;
and
(2)
that
the
constitutional right at issue was clearly established at the time
of the defendant’s actions.
- 12 -
There is no disagreement that Defendants were acting within
the scope of their discretionary authority.
Here, the Court must
determine
contains
whether
allegations
to
the
Amended
state
an
Complaint
Eighth
Amendment
sufficient
claims
against
defendants.
B.
Eighth Amendment Deliberate Indifference Principles
A[D]eliberate indifference to [the] serious medical needs of
[a] prisoner [ ] constitutes the unnecessary and wanton infliction
of pain . . . proscribed by the Eighth Amendment.@
Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)); Campbell v. Sikes, 169 F.3d 1353 (11th
Cir. 1999).
Eighth
In order to state a claim for a violation under the
Amendment,
sufficiently
a
plaintiff
harmful
to
serious medical needs.@
must
evidence
allege
Aacts
deliberate
or
omissions
indifference
Estelle, 429 U.S. at 106.
to
This showing
requires a plaintiff to satisfy an objective and a subjective
inquiry.
Farrow, 320 F.3d at 1243 (citing Taylor v. Adams, 221
F.3d 1254, 1257 (11th Cir. 2000)).
A plaintiff must first show
that he had an Aobjectively serious medical need.@
Id.
A serious
medical need is Aone that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay
person
would
attention.@
easily
Id.
recognize
the
(citations omitted).
- 13 -
necessity
for
a
doctor=s
AThe medical need must be
one that, if left unattended, pos[es] a substantial risk of serious
harm.@
Id.
Second, a plaintiff must establish that a defendant acted
with Adeliberate indifference@ by showing both a: (1) subjective
knowledge of a risk of serious harm (i.e., both awareness of facts
from which the inference could be drawn that a substantial risk of
serious harm exists and the actual drawing of the inference); and
(2) disregard of that risk; and (3) conduct that is more than gross
negligence.
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005).
AWhether a particular defendant has subjective knowledge of the
risk of serious harm is a question of fact >subject to demonstration
in
the
usual
ways,
including
inference
from
circumstantial
evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious.=@
Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir.
2007) (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).
Inadvertence
or
mere
negligence
in
failing
to
provide
adequate medical care does not rise to a constitutional violation.
Farrow, 320 F.3d at 1243.
Eighth
Amendment
only
Rather, Amedical treatment violates the
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)).
Choosing
- 14 -
an
easier
but
less
efficacious course of treatment can also demonstrate deliberate
indifference.
McElligott, 182 F.3d at 1255.
However, a mere difference in medical opinion between the
inmate
and
the
indifference.
care
provider
does
not
constitute
deliberate
The Supreme Court has concluded that decisions such
as whether an x-ray, additional diagnostic techniques, or other
forms of treatment are indicated are A[c]lassic example[s] of
matters for medical judgment.@
Estelle, 429 U.S. at 107. The
course of treatment chosen by a medical official would appear to
be such Aa classic example of a matter for medical judgment.@
See
Estelle, 429 U.S. at 107.
Thus, no constitutional violation
exists
a
where
an
inmate
and
prison
medical
official
disagree as to the proper course of medical treatment.
merely
See Harris,
941 F.2d at 1505.
Moreover, to prevail on a Bivens claim alleging deliberate
indifference to a serious medical need, a plaintiff must show
causation between the defendant’s deliberate indifference and his
injury.
Hairston v. Negron, 557 F. App’x 884, 891 (11th Cir.
2014) (citations omitted).
C. Whether there are sufficient allegations to plausibly
support that Defendants acted with deliberate indifference
Initially,
contains
no
the
Court
allegations
notes
as
to
that
the
Defendant
Amended
Carver’s
Complaint
alleged
involvement in Plaintiff’s medical treatment, or alleged lack
- 15 -
thereof.
See generally Amended Complaint.
Because there are no
facts supporting a causal connection between Defendant Carver and
the alleged Eighth Amendment violation, the Court grants the motion
to dismiss as to Defendant Carver.
With
allegations
regard
in
to
his
the
remaining
Amended
Complaint
Defendants,
belie
his
Plaintiff’s
conclusory
assertions that Defendants acted with deliberate indifference to
his serious medical needs.
Initially, the injuries or problems
Plaintiff sustained after the fall, i.e. “right and left chest and
shoulder [injuries],” “tear in left bicep,” “right and left wrist
problems,” do not satisfy the definition of a serious medical need
(i.e. one that has been diagnosed by a physician as mandating
treatment or one that is obvious that even a lay person would
recognize the necessity for a doctor’s attention).
See Youmans,
626 F.3d at 561 (concluding that plaintiff had not established a
“serious medical need” when he had “several cuts and abrasions on
his head, face, shoulder, elbow, and hand” and appeared to be
bleeding slightly); Jackson v. Capraun, 534 F. App’x 854 (11th
Cir. 2013) (affirming district court’s dismissal of action in which
court found acute back pain did not constitute a serious medical
condition).
Further, these conditions were not such that “if left
unattended, pose[d] a substantial risk of serious harm.”
320 F.3d at 1245.
Farrow,
Further, to the extent Plaintiff claimed he had
a fractured right hand, his allegations belie that contention
- 16 -
considering
Defendant
Chiang
evaluated
him,
reviewed
his
diagnostic tests, found no fracture, and diagnosed him with carpal
tunnel syndrome. Amended Complaint at 14.
Amended
Complaint
no
less
than
four
As alleged in the
medical
professionals
evaluated Plaintiff and determined that no follow-up treatment was
necessary.
Assuming arguendo that Plaintiff’s injuries he sustained from
the fall constitute a serious medical condition, the allegations
do not plausibly allege deliberate indifference. Plaintiff was
evaluated by Defendants Li, Lee, Cacho, Ramos, Pierce, and Chiang.
Amended Complaint at 9.
Defendant Chiang diagnosed Plaintiff with
carpal tunnel syndrome and told Plaintiff there was nothing that
could be done with respect to his bicep tear.
Id.
Defendant
Pierce provided Plaintiff with physical therapy, albeit one time.
Id.
Plaintiff also underwent several diagnostic tests including
MRIs, Catscans, and x-rays.
Id.
Plaintiff was provided with
Naproxen for approximately one year and now can take over-thecounter pain medication to the extent necessary.
Id.
Plaintiff
simply disagrees with all of these medical evaluations and believes
more should have been done, or that he should have had a different
course of treatment.
Id.
Because an inmate’s disagreement with
medical officials as to diagnosis or course of treatment does not
amount to a violation of a Constitutional right, Defendants Li,
Lee, Cacho, Ramos, Buggs, and Pierce are entitled to qualified
- 17 -
immunity.
See Brown v. Pastrana, 446 F. App’x 270, 273 (11th Cir.
2011) (affirming district court’s decision to grant defendants’
qualified immunity as to the plaintiff’s medical care claims
stemming from injuries he sustained when falling off a bunk bed).
Additionally, Defendant Chiang is dismissed because the Complaint
fails to state a claim. 3
D. FTCA Claim against United States is Barred by the
Statute of Limitations
The United States asserts that Plaintiff failed to file this
action within the requisite six-month statute of limitations.
Doc. #28 at 17.
Complaint
Defendant notes that Plaintiff had filed another
alleging
claims
of
deliberate
indifference
and
negligence based on the facts alleged sub judice in case number
5:13-cv-515-WTH-PRL,
limitations.
which
was
filed
within
the
statute
of
This case was dismissed due to Plaintiff’s failure
to comply with the Court’s orders, however.
Id. at fn. 3.
Defendant argues that dismissal of a previous lawsuit without
prejudice does not authorize a subsequent lawsuit brought outside
the otherwise binding period of limitations.
3The
Id.
Court sua sponte dismisses Chiang under § 1915A. Chiang,
as the orthopedic surgeon, was not included in the Defendants’
motion to dismiss and instead separately moved to quash service.
See Doc. #32. Because the Court finds the Amended Complaint fails
to state an Eighth Amendment claim against Chiang, the Court denies
as moot Chiang’s motion to quash service effected by the United
States Marshal.
- 18 -
The Court agrees with Defendant that the FTCA claim is barred
by the statute of limitations.
The FTCA requires that the claimant
present his claim to the appropriate federal agency within two
years after the claim accrues and the law suit must be commenced
within six months after the receipt of a final agency decision.
Phillips
v.
United
2001)(citations
States,
260
omitted).
F.3d
The
1316,
BOP
1318
(11th
denied
Cir.
Plaintiff’s
administrative claim on June 5, 2013, but Plaintiff did not bring
this action until January 31, 2014, more than six months beyond
the deadline.
Plaintiff’s filing of the initial lawsuit, which
was dismissed due to Plaintiff’s failure to comply with the Court’s
order, does not extend the statute of limitations.
Reynolds
Securities,
Inc.,
667
F.2d
33,
(11th
Stein v.
Cir.
1982).
Accordingly, Plaintiff’s FTCA claim is time-barred.
E.
FTCA Claim is not Exhausted
The United States also asserts that Plaintiff has failed to
exhaust
his
administrative
remedies.
Doc.
#28
at
14-17.
Significantly, Defendant points out that the administrative tort
claim Plaintiff submitted to the BOP concerned his slip and fall,
not his claims that he was being denied medical treatment for his
injuries.
Id.
Title 42 U.S.C. § 1997e(a) provides that
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner
- 19 -
confined in any jail, prison, or other
correctional
facility
until
such
administrative remedies as are available are
exhausted.
Id.
Administrative exhaustion under the FTCA requires an inmate
to submit written notification of the incident to the federal
agency responsible for the activities giving rise to the claim.
Specifically, 28 U.S.C. § 2675(a) provides that a claimant may not
bring an FTCA action against the United States “unless the claimant
shall have first presented the claim to the appropriate Federal
agency[.]” 28 U.S.C. § 2675(a).
To sufficiently meet § 2675(a)'s
requirement of giving notice to the appropriate federal agency, a
claimant must: (1) give the appropriate agency written notice of
his or her claim sufficient to enable the agency to investigate;
and (2) place a value on his or her claim. Burchfield v. United
States, 168 F.3d 1252, 1255 (11th Cir. 1999).
If the plaintiff
has not satisfied those requirements, the district court lacks
jurisdiction over the FTCA claim.
Id. at 1254–55.
Here, Defendant attaches to its motion to dismiss exhibits
supporting their assertion that Plaintiff did not properly exhaust
his
FTCA
medical
claims.
See
Doc.
#28-1.
Plaintiff
filed
Administrative Tort Claim Number TRT-SER-2012-06252 on September
12, 2012 concerning his fall outside of the shower and safety
issues concerning the shower.
The content of the tort claim
concerned only his fall and shower hazards.
- 20 -
Nothing in this tort
claim form provided notice that Plaintiff was not receiving medical
care for any injuries related thereto.
Accordingly, Plaintiff's
FTCA medical negligence claims are dismissed without prejudice for
failure to exhaust his administrative remedies.
28 U.S.C. §
2675(a); 42 U.S.C. § 1997e(a).
ACCORDINGLY, it is hereby
ORDERED:
1. Defendant Chiang is dismissed sua sponte under § 1915
because the Amended Complaint fails to state a claim.
2.
The motion to dismiss filed on behalf of Defendants (Doc.
#28) is GRANTED.
3.
Defendant Chiang’s motion to quash service (Doc. #32) is
DENIED as moot.
4.
The Clerk of Court shall enter judgment accordingly and
close this case.
DONE and ORDERED in Ocala, Florida on this
August, 2015.
SA: ftmp-1
Copies: All Parties of Record
- 21 -
7th
day of
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