RIOS-SALINAS v. DE LASALLE et al
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 10/28/2011. (nz, )n.m.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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:
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Plaintiff,
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v.
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DR. ABIGAIL LOPEZ DE LASALLE,:
et al.
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Defendants.
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ALEJANDRO RIOS-SALINAS,
Civil No. 11-2036 (RMB)
OPINION
APPEARANCES:
ALEJANDRO RIOS-SALINAS, Plaintiff pro se
Reg. No. # 23961-009
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
BUMB, District Judge
Plaintiff, Alejandro Rios-Salinas, a federal inmate confined
at the FCI Fort Dix in Fort Dix, New Jersey, at the time he
submitted the above-captioned Complaint for filing, seeks to
bring this action in forma pauperis.
Based on his affidavit of
indigence, the Court will grant plaintiff’s application to
proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)
(1998) and order the Clerk of the Court to file the Complaint.
At this time, this Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether the
Complaint should be dismissed as frivolous or malicious, for
failure to state a claim upon which relief may be granted, or
because it seeks monetary relief from a defendant who is immune
from such relief.
For the reasons set forth below, the Court
concludes that the Complaint should be dismissed with prejudice.
I.
BACKGROUND
Plaintiff brings this civil action pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), alleging a violation of his Eighth Amendment right
against cruel and unusual punishment.
Plaintiff names the
following defendants: Dr. Abigail Lopez de Lasalle; Dr. Williams;
Lynn Johnson, ARNP; and Mr. Eichel, Acting Health Services
Administrator at the FCI Fort Dix (West) Health Services Unit
(“HSU”).
(Complaint, Caption and ¶¶ 4(b) through (e)).
The
following factual allegations are taken from the Complaint, and
are accepted for purposes of this screening only.
The Court has
made no findings as to the veracity of plaintiff’s allegations.
Plaintiff alleges that, on February 11, 2010, he slipped and
fell on ice at FCI Fort Dix, shattering his patella.
An
emergency medical technician (“EMT”), Andrew Ackley, responded to
the medical call where Plaintiff had fallen to provide emergency
assistance.
Ackley observed that Plaintiff was in “very bad”
pain (“10 on a pain scale”), and that there was an “obvious
deformity to the left knee.”
With assistance, Plaintiff was
lifted to a “leap” while traction was held on Plaintiff’s leg,
and Plaintiff was taken to the HSU for examination.
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(Plaintiff’s
Attachment to Complaint, “Bureau of Prisons Health Services
Clinical Encounter” report, 3 pages, at Docket entry no. 1-3).
Plaintiff was examined by Dr. De Lasalle at the HSU urgent
care room.
The patella was noted to “be dislocated approximately
2 inches onto the head of the femur.”
discoloration in the affected area.
There was swelling and
Plaintiff’s knee was
immobilized and ice was placed on the knee to reduce swelling.
The on-call orthopedic surgeon was called, Dr. Williams, who
advised that he would examine Plaintiff the next day and that
Plaintiff’s knee should be immobilized in a straight position.
Plaintiff was prescribed Tylenol with codeine for the pain.
(Id.).
Plaintiff was examined by Dr. Williams the next day, on
February 12, 2010.
the patella.
An x-ray was performed showing a fracture of
Dr. Williams scheduled Plaintiff for surgery on
February 17, 2010.
FCI Fort Dix Warden Donna Zickefoose
confirms, in her June 1, 2010 response to Plaintiff’s BP-9
Administrative Remedy, that surgery was performed without
complications on February 17, 2010, and Plaintiff was discharged
back to FCI Fort Dix.
Follow-up care and re-evaluations were
performed by Dr. Williams on March 25, 2010 and April 29, 2010,
and it was noted that Plaintiff was healing well with continuing
strengthening exercises.
(Plaintiff’s Exhibit # 7 to the
Complaint, at Docket entry no. 1-3 pg. 15).
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Plaintiff complains that the delay in medical treatment
(i.e., 6 days waiting for surgery while in severe pain with only
Tylenol w/ codeine prescribed) and the provision of a
“dilapidated” wheelchair constitutes a denial of medical care in
violation of his Eighth Amendment right against cruel and unusual
punishment.
(Compl., ¶ 6 and Plaintiff’s attached statement at
Docket entry no. 1-3, pg. 2).
Plaintiff seeks compensatory and punitive damages in excess
of $ 1 million.
II.
(Compl., ¶ 7).
STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a district court to review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or seeks
redress against a governmental employee or entity.
The Court is
required to identify cognizable claims and to sua sponte dismiss
any claim that is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
1915(e)(2)(B) and 1915A.
28 U.S.C. §§
This action is subject to sua sponte
screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an
§ 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93-94
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(2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
See also United
The Court must
“accept as true all of the allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the plaintiff.”
Morse v. Lower
Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
The Court
need not, however, credit a pro se plaintiff’s “bald assertions”
or “legal conclusions.”
Id.
A complaint is frivolous if it “lacks an arguable basis
either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319,
325 (1989) (interpreting the predecessor of § 1915(e)(2), the
former § 1915(d)).
The standard for evaluating whether a
complaint is “frivolous” is an objective one.
Deutsch v. United
States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).
A pro se complaint may be dismissed for failure to state a
claim only if it appears “‘beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.’”
Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)).
See also Erickson, 551 U.S.
at 93-94 (In a pro se prisoner civil rights complaint, the Court
reviewed whether the complaint complied with the pleading
requirements of Rule 8(a)(2)).
However, recently, the Supreme Court revised this standard
for summary dismissal of a Complaint that fails to state a claim
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in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
The issue before
the Supreme Court was whether Iqbal’s civil rights complaint
adequately alleged defendants’ personal involvement in
discriminatory decisions regarding Iqbal’s treatment during
detention at the Metropolitan Detention Center which, if true,
violated his constitutional rights.
Id.
The Court examined Rule
8(a)(2) of the Federal Rules of Civil Procedure which provides
that a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2).1
Citing its recent opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the
proposition that “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the elements of a
cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting
Twombly, 550 U.S. at 555), the Supreme Court identified two
working principles underlying the failure to state a claim
standard:
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice ... . Rule 8 ... does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for
relief will ... be a context-specific task that requires the
1
Rule 8(d)(1) provides that “[e]ach allegation must be
simple, concise, and direct. No technical form is required.”
Fed.R.Civ.P. 8(d).
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reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
“show[n]”-“that the pleader is entitled to relief.” Fed.
Rule Civ. Proc. 8(a)(2).
Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).
The Court further explained that
a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Iqbal, 129 S.Ct. at 1950.
Thus, to prevent a summary dismissal, civil complaints must
now allege “sufficient factual matter” to show that a claim is
facially plausible.
This then “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Id. at 1948.
The Supreme Court’s ruling in
Iqbal emphasizes that a plaintiff must demonstrate that the
allegations of his complaint are plausible.
Id. at 1949-50; see
also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,
578 F.3d 203, 210(3d Cir. 2009).
Consequently, the Third Circuit observed that Iqbal provides
the “final nail-in-the-coffin for the ‘no set of facts’ standard”
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set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),2 that
applied to federal complaints before Twombly.
at 210.
Fowler, 578 F.3d
The Third Circuit now requires that a district court
must conduct the two-part analysis set forth in Iqbal when
presented with a motion to dismiss:
First, the factual and legal elements of a claim should be
separated. The District Court must accept all of the
complaint’s well-pleaded facts as true, but may disregard
any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50].
Second, a District Court must then determine whether the
facts alleged in the complaint are sufficient to show that
the plaintiff has a “plausible claim for relief.” [Id.] In
other words, a complaint must do more than allege the
plaintiff’s entitlement to relief. A complaint has to
“show” such an entitlement with its facts. See Phillips,
515 F.3d at 234-35. As the Supreme Court instructed in
Iqbal, “[w]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not ‘show [n]’-‘that
the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at
1949-50]. This “plausibility” determination will be “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id.
Fowler, 578 F.3d at 210-211.
This Court is mindful, however, that the sufficiency of this
pro se pleading must be construed liberally in favor of
Plaintiff, even after Iqbal.
(2007).
See Erickson v. Pardus, 551 U.S. 89
Moreover, a court should not dismiss a complaint with
2
In Conley, as stated above, a district court was
permitted to summarily dismiss a complaint for failure to state a
claim only if “it appear[ed] beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief. Id., 355 U.S. at 45-46. Under this “no set of
facts” standard, a complaint could effectively survive a motion
to dismiss so long as it contained a bare recitation of the
claim’s legal elements.
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prejudice for failure to state a claim without granting leave to
amend, unless it finds bad faith, undue delay, prejudice or
futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.
2000).
III.
BIVENS ACTIONS
Plaintiff asserts that his constitutional rights, namely his
right under the Eighth Amendment, have been violated, and
proceeds with this action under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
In
Bivens, the Supreme Court held that one is entitled to recover
monetary damages for injuries suffered as a result of federal
officials’ violations of the Fourth Amendment.
In doing so, the
Supreme Court created a new tort as it applied to federal
officers, and a federal counterpart to the remedy created by 42
U.S.C. § 1983.
The Supreme Court has also implied Bivens damages
remedies directly under the Eighth Amendment, see Carlson v.
Green, 446 U.S. 14 (1980), and the Fifth Amendment, see Davis v.
Passman, 442 U.S. 228 (1979).
Bivens actions are simply the federal counterpart to
§ 1983 actions brought against state officials who violate
federal constitutional or statutory rights.
Egervary v. Young,
366 F.3d 238, 246 (3d Cir. 2004), cert. denied, 543 U.S. 1049
(2005).
Both are designed to provide redress for constitutional
violations.
Thus, while the two bodies of law are not “precisely
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parallel”, there is a “general trend” to incorporate § 1983 law
into Bivens suits.
Chin v. Bowen, 833 F.2d 21, 24 (2d Cir.
1987)).
In order to state a claim under Bivens, a claimant must show
(1) a deprivation of a right secured by the Constitution and laws
of the United States; and (2) that the deprivation of the right
was caused by an official acting under color of federal law.
See
Mahoney v. Nat’l Org. For Women, 681 F. Supp. 129, 132 (D. Conn.
1987)(citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56
(1978)).
The United States has sovereign immunity except where it
consents to be sued.
212 (1983).
United States v. Mitchell, 463 U.S. 206,
In the absence of such a waiver of immunity,
plaintiff cannot proceed in an action for damages against the
United States or an agency of the federal government for alleged
deprivation of a constitutional right, see FDIC v. Meyer, 510
U.S. 471, 484-87 (1994), or against any of the individual
defendants in their official capacities, see Kentucky v. Graham,
473 U.S. 159, 166 (1985) (a suit against a government officer in
his or her official capacity is a suit against the government).
IV.
ANALYSIS
Plaintiff generally asserts that defendants violated his
Eighth Amendment right to adequate medical care by denying and/or
delaying medical treatment.
The Eighth Amendment proscription
against cruel and unusual punishment requires that prison
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officials provide inmates with adequate medical care.
Estelle v.
Gamble, 429 U.S. 97, 103-04 (1976); Rouse v. Plantier, 182 F.3d
192 (3d Cir. 1999).
In order to set forth a cognizable claim for
a violation of his right to adequate medical care, an inmate must
allege:
(1) a serious medical need; and (2) behavior on the part
of prison officials that constitutes deliberate indifference to
that need.
Estelle, 429 U.S. at 106; Natale v. Camden County
Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’”
(1992).
Hudson v. McMillian, 503 U.S. 1, 9
The Third Circuit has defined a serious medical need as:
(1) “one that has been diagnosed by a physician as requiring
treatment;” (2) “one that is so obvious that a lay person would
recognize the necessity for a doctor’s attention;” or (3) one for
which “the denial of treatment would result in the unnecessary
and wanton infliction of pain” or “a life-long handicap or
permanent loss.”
Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d
Cir. 2003)(internal quotations and citations omitted); see also
Monmouth County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006
(1988).
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The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to
his serious medical need.
See Natale, 318 F.3d at 582 (finding
deliberate indifference requires proof that the official knew of
and disregarded an excessive risk to inmate health or safety).
“Deliberate indifference” is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless
disregard of a known risk of harm.
825, 837-38 (1994).
Farmer v. Brennan, 511 U.S.
Furthermore, a prisoner’s subjective
dissatisfaction with his medical care does not in itself indicate
deliberate indifference.
Andrews v. Camden County, 95 F. Supp.2d
217, 228 (D.N.J. 2000); Peterson v. Davis, 551 F. Supp. 137, 145
(D. Md. 1982), aff’d, 729 F.2d 1453 (4th Cir. 1984).
Similarly,
“mere disagreements over medical judgment do not state Eighth
Amendment claims.”
1990).
White v. Napoleon, 897 F.2d 103, 110 (3d Cir.
“Courts will disavow any attempt to second-guess the
propriety or adequacy of a particular course of treatment ...
[which] remains a question of sound professional judgment.”
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir. 1979) (internal quotation and citation omitted).
Even if a
doctor’s judgment concerning the proper course of a prisoner’s
treatment ultimately is shown to be mistaken, at most what would
be proved is medical malpractice and not an Eighth Amendment
violation.
Estelle, 429 U.S. at 105-06; White, 897 F.3d at 110.
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The Third Circuit has found deliberate indifference where a
prison official: (1) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment for non-medical reasons; or (3)
prevents a prisoner from receiving needed or recommended
treatment.
See Rouse, 182 F.3d at 197.
The court also has held
that needless suffering resulting from the denial of simple
medical care, which does not serve any penological purpose,
violates the Eighth Amendment.
Atkinson, 316 F.3d at 266.
See
also Monmouth County Correctional Institutional Inmates, 834 F.2d
at 346 (“deliberate indifference is demonstrated ‘[w]hen ...
prison authorities prevent an inmate from receiving recommended
treatment for serious medical needs or deny access to a physician
capable of evaluating the need for such treatment”); Durmer v.
O’Carroll, 991 F.2d 64 (3d Cir. 1993); White v. Napoleon, 897
F.2d 103 (3d Cir. 1990).
Here, Plaintiff’s injuries sustained on February 11, 2010,
namely, a fractured patella, would satisfy the first prong, the
objective prong (serious medical need), under Estelle to support
an Eighth Amendment violation.
However, the allegations and the
medical records attached to the Complaint, fail to support the
second, subjective prong (deliberate indifference), necessary to
state an actionable Eighth Amendment claim.
The record provided by Plaintiff shows that Plaintiff
received immediate medical treatment and that his recommended
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surgery was scheduled six days later.
Rather, Plaintiff’s
allegations are premised on the fact that he was prescribed only
Tylenol with codeine for his pain, which Plaintiff contends was
not sufficient for the level of pain he was experiencing.
He
also complains that he was given a “dilapidated” wheelchair
during this time, but the record shows that it was serviceable
for the short distances that Plaintiff had to travel.
Further,
Plaintiff seems to argue that a six-day wait for surgery while he
was in pain was too long.
Thus, at best, Plaintiff’s allegations show that he simply
disagreed with the level of medical care he received at the time,
and/or that he was dissatisfied with his medical treatment.
As
stated above, “mere disagreements over medical judgment do not
state Eighth Amendment claims.”
White, 897 F.2d at 110.
Such
allegations sound in medical negligence, which is not actionable
under the Eighth Amendment as a claim of a constitutional
deprivation.
See Farmer, 511 U.S. at 837-38.
Accordingly, the
Complaint should be dismissed for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).
V.
CONCLUSION
For the reasons set forth above, the Complaint will be
dismissed with prejudice, in its entirety, as against all named
defendants, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
1915A(b)(1), for failure to state a claim upon which relief may
be granted.
An appropriate order follows.
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s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: October 28, 2011
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