OROZCO-BARAJAS v. ZICKEFOOSE et al
Filing
5
OPINION. Signed by Judge Noel L. Hillman on 4/24/2012. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SERGIO OROZCO-BARAJAS,
Plaintiff,
v.
DONNA ZICKEFOOSE, Warden,
et al.,
Defendants.
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Civil Action No. 11-3628 (NLH)
OPINION
APPEARANCES:
Plaintiff pro se
Sergio Orozco-Barajas
Federal Correctional Center - Fort Dix
Fort Dix, New Jersey 08640
HILLMAN, District Judge
Plaintiff Sergio Orozco-Barajas, a prisoner confined at the
Federal Correctional Institution at Fort Dix, New Jersey, seeks
to bring this action pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971), alleging violations of his
constitutional rights.
Plaintiff paid the filing fee.
At this time, the Court must review the Complaint to
determine whether it 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.
I.
BACKGROUND
The following factual allegations are taken from Plaintiff’s
Complaint and are accepted as true for purposes of this review.
Plaintiff alleges that in 2009, while he was a pre-trial detainee
in the custody of the U.S. Marshal in Kingsville, Texas, he was
taken to Defendant Christus Spohn Hospital Kleberg in Kingsville.
He alleges that Defendant Dr. Flores1 performed surgery to his
leg which was supposed to replace some metallic hardware
installed in his femur in 1999.
Plaintiff alleges that Dr.
Flores did not replace the metallic hardware, but just removed
one or more screws from the metallic hardware.
Plaintiff alleges
that he then developed abscesses and bone infections.
Plaintiff
alleges that Dr. Flores then performed additional surgeries to
drain the abscesses and clean the bone infections.
Defendant
Christus Spohn Hospital Kleberg and Dr. Flores are collectively
referred to hereinafter as the “Texas Defendants.”
Plaintiff alleges that sometime thereafter he was sentenced
and transferred to the Federal Correctional Institution at
Ashland, Kentucky.
He alleges that, while there, he developed an
abscess in the area of the incision on his leg.
He alleges that
on June 1, 2010, an X-ray revealed a fracture still present in
his thigh and problems with his metallic hardware resulting from
1
Dr. Flores appears to be a physician in the private
practice of medicine in Kingsville, Texas.
2
the alleged failure of Dr. Flores to replace the metallic
hardware in his leg.
Plaintiff alleges that, instead of taking
him to an outside specialist surgeon, Defendants Dr. Ralph I.
Touma, Dr. Kenneth J. Gomez, and physician’s assistant Laura
Bradley, all in the Health Services department at F.C.I. Ashland,
performed three surgeries to drain the abscesses, which remained
open and draining.
Plaintiff alleges that he requested a
referral to a specialist surgeon to remove the metallic hardware,
but that Dr. Gomez told him that he would die with this
infection.
Plaintiff alleges that he began the administrative
remedy process, but was transferred to the Federal Correctional
Institution at Fort Dix in November, 2010.
Hereinafter, this
Court will refer to Defendants Touma, Gomez, and Bradley,
collectively, as the “Kentucky Defendants.”
Finally, Plaintiff alleges that while at F.C.I. Fort Dix, he
has developed three additional abscesses.
He alleges that the
abscesses were observed by the following defendants: 1) Defendant
Dr. Abigail Lopez de Lasalle, a clinical director at the Health
Services department at F.C.I. Fort Dix, (2) Defendant nurse Ed
Eichel, employed as a nurse at F.C.I. Fort Dix, and allegedly
responsible for referrals to specialty consultants as CoChairperson of the Utilization Review Committee, (3) Defendant
Jose Ravago, an MLP at the Health Services department of F.C.I.
Fort Dix, who has allegedly been treating Plaintiff, 4) Defendant
3
Dr. Williams, described as an orthopedic surgeon consulting with
the Health Services department at F.C.I. Fort Dix, and
(5) Defendant Dr. Sulayman, a physician at the Health Services
department at F.C.I. Fort Dix, all of whom will be collectively
referred to hereinafter as the “New Jersey Medical Defendants.”
Plaintiff alleges that the New Jersey Medical Defendants have
refused to open and drain these abscesses and have disregarded
radiology reports about his fracture and problems with his
metallic hardware.
Plaintiff alleges that the New Jersey Medical
Defendants have persisted in an easy but ineffective course of
treatment with antibiotic medications.
Plaintiff also names
Warden Donna Zickefoose as a Defendant.
Plaintiff alleges that all of the named Defendants have been
deliberately indifferent to his serious medical needs.
He seeks
compensatory damages from all and injunctive relief, in the form
of an order directing Defendant Warden Zickefoose to evaluate and
treat his serious medical needs.2
2
During the pendency of this action, Plaintiff has advised
the Court that he was transferred to the Federal Medical Center Devens, at Ayer, Massachusetts, for a short time, and that he was
then transferred back to F.C.I. Fort Dix. To the extent the
transfer was for treatment of the medical condition at the heart
of this Complaint, the claim for injunctive relief against Warden
Zickefoose may have become moot. Nevertheless, based upon the
allegations of the Complaint, the claim for injunctive relief
will be permitted to proceed at this time.
4
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
This Court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are
frivolous, malicious, fail to state a claim, or seek monetary
relief from a defendant who is immune from such relief.
See 28
U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.
§ 1915A (actions in which prisoner seeks redress from a
governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
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).
In addition, any complaint must comply with the pleading
requirements of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
A complaint must plead facts sufficient at least to
“suggest” a basis for liability.
218, 236 n.12 (3d Cir. 2004).
Spruill v. Gillis, 372 F.3d
“Specific facts are not necessary;
5
the statement need only ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... 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, see Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to
relief above the speculative level ... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
The Court of Appeals for the Third Circuit has that the
Twombly pleading standard applies in the context of a civil
rights action.
See Phillips v. County of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008).
More recently, the Supreme Court has emphasized that, when
assessing the sufficiency of any civil complaint, a court must
distinguish factual contentions -- which allege behavior on the
part of the defendant that, if true, would satisfy one or more
elements of the claim asserted -- and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Although the Court must assume the veracity of the facts asserted
in the complaint, it is “not bound to accept as true a legal
6
conclusion couched as a factual allegation.”
Id. at 1950.
Thus,
“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.”
Id.
Therefore, after Iqbal, when presented with a
motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis.
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. 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.” 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.’”
This “plausibility” determination will be “a
context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)
(citations omitted).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment.
Denton v. Hernandez, 504 U.S. 25, 34
(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane
v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
7
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III.
Bivens v. Six Unknown Agents
In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court held that
a violation of the Fourth Amendment by a federal agent acting
under color of his authority gives rise to a cause of action
against that agent, individually, for damages.
The Supreme Court
has also implied damages remedies directly under the Eighth
Amendment, see Carlson v. Green, 446 U.S. 14 (1980), and under
the equal protection component of the Fifth Amendment’s Due
Process Clause, see Davis v. Passman, 442 U.S. 228 (1979).
Relying upon Bivens, several lower federal courts have implied a
damages cause of action against federal officers, under the Due
Process Clause of the Fifth Amendment, for claims by federal pretrial detainees alleging inadequate medical care or
unconstitutional conditions of confinement.
See, e.g., Lyons v.
U.S. Marshals, 840 F.2d 202 (3d Cir. 1988); Magluta v. Samples,
375 F.3d 1269 (11th Cir. 2004); Loe v. Armistead, 582 F.2d 1291
(4th Cir. 1978), cert. denied, 446 U.S. 928 (1980).
The Supreme Court has not addressed whether supervisors in
Bivens actions may be held liable on a theory of respondeat
superior.
Most courts to address the issue, however, have held
that liability may not be based on respondeat superior.
8
See,
e.g., Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.
2000)(collecting cases); Laswell v. Brown, 683 F.2d 261, 268 &
n.11 (8th Cir. 1982), cert. denied, 459 U.S. 1210 (1983) (basing
its conclusion on the fact that the Supreme Court has looked to
42 U.S.C. § 1983 cases in evaluating the nature of defendant
officials’ qualified immunity); Kite v. Kelly, 546 F.2d 334,
337-38 (10th Cir. 1976).
See also Parker v. U.S., 197 Fed.Appx.
171, 173 n.1 (3d Cir. 2006) (not precedential); Balter v. U.S.,
172 Fed.Appx. 401, 403 (3d Cir. 2006) (not precedential).
This
Court finds persuasive the reasoning of those courts that have
declined to impose respondeat superior liability in Bivens
actions.
Accordingly, as any damages claims against Warden Donna
Zickefoose appear to be based solely upon an untenable theory of
vicarious liability, such claims will be dismissed.3
3
In addition, any damages claims against the Warden would
be meritless, as Plaintiff alleges only that she “disregarded
Plaintiff’s verbally and written requests for his serious medical
needs in the case below.” (Complaint, ¶ 1.) Compare Durmer v.
O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (summary judgment
properly granted to prison warden and state commissioner of
corrections, the only allegation against whom was that they
failed to respond to letters from prisoner complaining of prison
doctor’s treatment decisions) with Sprull v. Gillis, 372 F.3d
218, 236 (3d Cir. 2004) (a non-physician supervisor may be liable
under § 1983 if he knew or had reason to know of inadequate
medical care).
9
IV.
A.
ANALYSIS
Diversity Jurisdiction
In addition to asserting federal question jurisdiction under
28 U.S.C. § 1331 for his Bivens-type claims, Plaintiff also
asserts that this Court can exercise diversity jurisdiction under
28 U.S.C. § 1332.
Section 1332 provides jurisdiction over state-law civil
actions if, in the provision pertinent here, the matter in
controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between “citizens of different
States.”
It has long been recognized that, to found jurisdiction
upon § 1332, there must be complete diversity among all parties,
i.e., each plaintiff must be a citizen of a different state from
each defendant.
Owen Equipment and Erection Co. v. Kroger, 437
U.S. 365 (1978).
A plaintiff, as the party asserting federal jurisdiction,
“must specifically allege each party’s citizenship, and these
allegations must show that the plaintiff and defendant are
citizens of different states.”
American Motorists Ins. Co. v.
American Employers’ Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979);
see also Universal Reinsurance Co., Ltd. v. St. Paul Fire &
Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000) (“The failure
to allege [the party’s] citizenship in a particular state is
10
fatal to diversity jurisdiction”).
Specifically with respect to
individuals,
For purposes of determining diversity, state
citizenship is equated with domicile. Domicile,
however, is not necessarily synonymous with residence;
one can reside in one place and be domiciled in
another. Residence and an intent to make the place of
residence one’s home are required for citizenship and
to establish a new domicile. Although the analysis is
necessarily case specific, courts have looked to
certain factors, including state of employment, voting,
taxes, driver’s license, bank accounts and assets, and
civic and religious associations in determining the
citizenship of an individual. ...
McCracken v. Murphy, 328 F.Supp.2d 530, 532 (E.D. Pa. 2004)
(citations omitted), aff’d, 129 Fed.Appx. 701 (3d Cir. 2005).
“For inmates, citizenship for diversity purposes is the state in
which the inmate was domiciled prior to incarceration, unless the
inmate plans to live elsewhere when he is released in which event
citizenship would be that state.”
McCracken, 328 F.Supp.2d at
532 (citing Flanagan v. Shively, 783 F.Supp. 922, 935 (E.D. Pa.),
aff’d, 980 F.2d 722 (3d Cir. 1992)).
Here, Plaintiff has alleged no facts that would permit this
Court to determine his citizenship.
Thus, he has failed to
allege sufficient facts to permit any state-law claims to proceed
based upon diversity jurisdiction.
This finding does not affect
this Court’s ability to exercise pendent jurisdiction over
certain state-law claims under 28 U.S.C. § 1367.
11
A.
Claims Against Kentucky and Texas Defendants
Plaintiff seeks to assert here state-law medical malpractice
claims against the Texas Defendants, who are not alleged to be
employees or officers of the United States, as well as Bivenstype claims for deprivation of his Eighth Amendment right to
adequate medical care against the Kentucky Defendants, all of
whom are alleged to be employees of the United States.
Under Rule 4(e) of the Federal Rules of Civil Procedure, a
federal district court has personal jurisdiction over nonresident
defendants “to the extent authorized under the law of the forum
state in which the district court sits.”
Sunbelt Corp. v. Noble,
Denton & Assoc., Inc., 5 F.3d 28, 31 (3d Cir. 1993).
New
Jersey’s long-arm statute extends personal jurisdiction to the
boundaries of the Due Process Clause of the Fourteenth Amendment.
See N.J.Ct.R. 4:4-4.
A federal district court may exercise either general or
specific jurisdiction over nonresident defendants.
When a court
exercises jurisdiction over a defendant in a suit not arising out
of or related to the defendant’s contacts with the forum, the
Court is said to be exercising “general” jurisdiction over the
defendant.
In such circumstances, due process is not offended if
the defendant has certain minimum contacts with the forum so that
traditional notions of fair play are not offended by the exercise
of jurisdiction.
See generally Helicopteros Nacionales de
12
Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984) (collecting
cases).
Nothing in the Complaint suggests that this Court could
exercise general jurisdiction over the nonresident Texas
Defendants or Kentucky Defendants.
Under the Due Process Clause, a plaintiff asserting
“specific” jurisdiction over a nonresident defendant must
establish (1) that the defendant purposefully directed his
activities at the forum, (2) that the action arises out of or is
related to at least one of those activities, and (3) if the first
two requirements are met, that the court’s exercise of
jurisdiction otherwise comports with notions of fair play and
substantial justice.
See generally D’Jamoos v. Pilatus Aircraft
Ltd., 566 F.3d 94, 102-03 (3d Cir. 2009) (collecting cases).
Again, based upon the allegations of the Complaint, the
claims asserted here do not arise out of any activities in or
directed at this forum by the Texas Defendants or the Kentucky
Defendants.
Accordingly, this Court may not exercise specific
personal jurisdiction over the Texas Defendants or the Kentucky
Defendants.
Pursuant to 28 U.S.C. § 1631, when a District Court finds
that it is lacking jurisdiction,
the court shall, if it is in the interest of justice,
transfer such action or appeal to any other such court
in which the action or appeal could have been brought
at the time it was filed or noticed, and the action or
appeal shall proceed as if it had been filed in or
noticed for the court to which it is transferred on the
13
date upon which it was actually filed in or noticed for
the court from which it is transferred.
Under this provision, a District Court may sever individual
claims and transfer them.
See D’Jamoos v. Pilatus Aircraft Ltd.,
566 F.3d 94, 106-07, 109-111 (3d Cir. 2009).
Factors warranting
transfer rather than dismissal include finding that a new action
would be time barred, that the claims are likely to have merit,
and that the original action was filed in good faith rather than
filed after the plaintiff either realized or should have realized
that the forum in which he or she filed was improper.
Here, it may be that the statute of limitations has run on
Plaintiff’s claims against the Texas and Kentucky Defendants.
See, e.g., McSurely v. Hutchison, 823 F.2ed 1002 (6th Cir. 1987),
cert. denied, 485 U.S. 934 (1988) (Kentucky’s one-year “personal
injury” limitations period applies to Bivens claims); Compton v.
Follender, 61 Fed.Appx. 120 (5th Cir. 2003) (Texas limitations
period for medical malpractice claims is two years); V.T.C.A.,
Civil Practice & Liability Code § 74.251 (two year limitations
period for medical malpractice claims in Texas).4
In addition, this Court must consider whether the claims
would likely be meritorious.
In the same vein, as Plaintiff is a
prisoner, the claims would be subject to screening, under 28
4
The cover letter to this Complaint was dated June 24,
2011. Thus, it is not clear whether some or all of the claims
against the Texas and Kentucky Defendants would have been barred
at the time the Complaint was filed here.
14
U.S.C. §§ 1915 or 1915A or 42 U.S.C. § 1997e.
Here, Plaintiff
does not allege that he has complied with the procedural
prerequisites for bringing a medical malpractice claim against a
Texas health-care provider.
More specifically, Texas law
requires written notice of a medical malpractice claim by
certified mail, return receipt requested, at least 60 days before
the filing of suit and requires, in subsequent filed pleadings,
that the plaintiff shall state that he has fully complied with
the pre-filing notice provision.
Remedies Code § 74.051.
V.T.C.A., Civil Practice &
Plaintiff does not plead that he has
complied with this provision.
Section 74.351 of the Texas Civil
Practice & Remedies Code requires a plaintiff asserting a medical
malpractice claim to serve an expert report within 120 days of
filing suit.
Nothing presently before this Court suggests that
Plaintiff has complied with the expert report provision, either.
Failure to timely provide the expert report is grounds for
dismissal.
See Otero v. Alonzo, 2011 WL 765673 (Tex. App.
March
3, 2011).
Also, as Plaintiff has failed to allege facts regarding his
citizenship, it is not clear whether he would be able to proceed
in a federal district court sitting in Texas, under diversity
jurisdiction, in state-law medical malpractice claims against
Texas defendants.
15
Moreover, with respect to the Kentucky Defendants, Plaintiff
has failed to allege facts demonstrating an Eighth Amendment
violation.
As discussed more fully below, with respect to the
New Jersey Medical Defendants, mere disagreement over the course
of care is not sufficient to state a claim under the Eighth
Amendment.
Here, Plaintiff alleges that the Kentucky Defendants
performed three operations to treat his continuing infections.
Thus, it is clear from Plaintiff’s allegations that he was
receiving care for his medical problems.
The fact that he
desired different care is not sufficient to state a claim for
violation of the Eighth Amendment.
Finally, and particularly with respect to the claims against
the Kentucky Defendants, Plaintiff admits that he abandoned his
administrative remedies when he was placed in the Special Housing
Unit and then transferred.5
Pursuant to 42 U.S.C. § 1997e, no
5
“[T]he ... exhaustion requirement applies to all inmate
suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S.
516, 532 (2002) (citation omitted). In addition, a prisoner must
exhaust all available administrative remedies even where the
relief sought, such as monetary damages, cannot be granted
through the administrative process. Booth v. Churner, 532 U.S.
731 (2001).
Inmates are not required to specifically plead or
demonstrate exhaustion in their complaints; instead, failure to
exhaust is an affirmative defense that must be pled by the
defendant. Jones v. Bock, 549 U.S. 199 (2007). Nevertheless, a
district court has inherent power to dismiss a complaint which
facially violates this bar to suit. See, e.g., Bock, 549 U.S. at
214-15 (referring to the affirmative defense of a statute of
16
claim can be brought in federal court, with respect to prison
conditions, if the prisoner has not exhausted his administrative
remedies.6
limitations bar); Lindsay v. Williamson, 271 Fed.Appx. 158, 159160, 2008 WL 902984, *1 (3d Cir. 2008); Ray v. Kertes, 285 F.3d
287, 293 n.5 (3d Cir. 2002); Nyhuis v. Reno, 204 F.3d 65 (3d Cir.
2000).
The Bureau of Prisons Administrative Remedy Program is a
multi-tier process that is available to inmates confined in
institutions operated by the BOP for “review of an issue which
relates to any aspect of their confinement.” 28 C.F.R. § 542.10.
An inmate must initially attempt to informally resolve the issue
with institutional staff. 28 C.F.R. § 542.13(a). If informal
resolution fails or is waived, an inmate may submit a BP-9
Request to “the institution staff member designated to receive
such Requests (ordinarily a correctional counsel)” within 20 days
of the date on which the basis for the Request occurred, or
within any extension permitted. 28 C.F.R. § 542.14. An inmate
who is dissatisfied with the Warden’s response to his BP-9
Request may submit a BP-10 Appeal to the Regional Director of the
BOP within 20 days of the date the Warden signed the response.
28 C.F.R. § 542.15(a). The inmate may appeal to the BOP’s
General Counsel on a BP-11 form within 30 days of the day the
Regional Director signed the response. Id. Appeal to the
General Counsel is the final administrative appeal. Id.
Response times for each level of review are set forth in 28
C.F.R. § 542.18.
If responses are not received by the inmate
within the time allotted for reply, “the inmate may consider the
absence of a response to be a denial at that level.” 28 C.F.R.
§ 542.18.
6
In addition, the Court notes that should Plaintiff wish to
proceed in two additional cases, as a prisoner, he would be
required to prepay two additional $350 filing fees, either
immediately or incrementally, if he is permitted to proceed in
forma pauperis. Should those courts dismiss these claims as
frivolous or malicious, or for failure to state a claim, they
could count as “strikes” under 28 U.S.C. § 1915(g) that would
impair Plaintiff’s ability to proceed in forma pauperis in
federal court in the future, which permits only three such
“strikes.” As a further consideration of the potential negative
impact, to Plaintiff’s future ability to litigate as a pauper in
federal court, of dismissal of any such severed and transferred
17
Accordingly, it does not appear that it would be in the
interest of justice to sever and transfer the claims against the
Texas Defendants or the Kentucky Defendants.
Although the claims
against those defendants may now be time-barred, the many
deficiencies noted above suggest that the claims are not
meritorious.
This Court will dismiss without prejudice, for lack
of personal jurisdiction, all claims against the Texas Defendants
and the Kentucky Defendants.
B.
Claims Against New Jersey Medical Defendants
The Eighth Amendment to the United States Constitution,
applicable to the individual states through the Fourteenth
Amendment, prohibits the states from inflicting “cruel and
unusual punishments” on those convicted of crimes.
Chapman, 452 U.S. 337, 344-46 (1981).
Rhodes v.
This proscription against
cruel and unusual punishment requires that prison officials
provide inmates with adequate medical care.
Estelle v. Gamble,
cases, this Court notes that the Bureau of Prisons Inmate Locator
reflects an anticipated release date of July 26, 2027, so
Plaintiff will be incarcerated for many years to come. See also
United States v. Orozco-Barajas, Criminal No. 08-0190 (S.D.
Texas) (reflecting a sentence of 262 months). Moreover, the
medical issues regarding the proper treatment of Plaintiff’s leg
condition would have to be litigated in three different forums,
possibly requiring some degree of participation by the Texas
Defendants, the Kentucky Defendants, and the New Jersey Medical
Defendants, in all forums, and possibly leading to inconsistent
judgments. Plaintiff has offered no explanation for his failure
to timely bring his claims in the appropriate jurisdictions where
the courts could exercise personal jurisdiction over the
defendants.
18
429 U.S. 97, 103-04 (1976).
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.
Id. at 106.
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
Serious medical needs include those that have been
diagnosed by a physician as requiring treatment or that are so
obvious that a lay person would recognize the necessity for
doctor’s attention, and those conditions which, if untreated,
would result in lifelong handicap or permanent loss.
Monmouth
County Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988).
This Court considers Plaintiff’s characterization of chronic
infections arising out of the injury to his leg as sufficient, at
this screening stage, to demonstrate a serious medical need.
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to
his serious medical need.
“Deliberate indifference” is more than
19
mere malpractice or negligence; it is a state of mind equivalent
to reckless disregard of a known risk of harm.
Brennan, 511 U.S. 825, 837-38 (1994).
Farmer v.
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.”
F.2d 103, 110 (3d Cir. 1990).
White v. Napoleon, 897
“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.
Implicit in this deference to prison medical
authorities is the assumption that such informed judgment has, in
fact, been made.”
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.2d at 110.
“Where prison authorities deny reasonable requests for
medical treatment, however, and such denial exposes the inmate
‘to undue suffering or the threat of tangible residual injury,’
20
deliberate indifference is manifest.
Similarly, where ‘knowledge
of the need for medical care [is accompanied by the] ...
intentional refusal to provide that care,’ the deliberate
indifference standard has been met.
...
Finally, 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.”
Monmouth County Corr.
Inst. Inmates v. Lanzaro, 834 F.2d at 346 (citations omitted).
“Short of absolute denial, ‘if necessary medical treatment [i]s
... delayed for non-medical reasons, a case of deliberate
indifference has been made out.”
Id. (citations omitted).
“Deliberate indifference is also evident where prison officials
erect arbitrary and burdensome procedures that ‘result[] in
interminable delays and outright denials of medical care to
suffering inmates.’”
Id. at 347 (citation omitted).
With respect to the New Jersey Medical Defendants, Plaintiff
has alleged that these defendants have engaged in a completely
ineffective course of treatment with antibiotics and that they
have refused to drain the abscesses that have resulted from the
ineffective antibiotic treatment.
Consistent with its obligation
to construe pro se pleadings liberally, then, it appears to the
Court that Plaintiff is asserting that the New Jersey Medical
Defendants’ persistence in a repeatedly ineffective course of
21
antibiotics, coupled with the failure to undertake any
alternative treatment such as draining the infections, amounts to
no meaningful treatment at all, and, thereby, to deliberate
indifference to his needs with respect to the recurrent
infections.
While the claim here comes close to a mere
disagreement over the treatment delivered, it is also plausible
on the facts alleged that the defendants knowingly continued an
ineffective treatment.
Such allegations are sufficient to state
a claim for inadequate medical treatment in violation of the
Eighth Amendment.
Cf., e.g., Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999) (prison officials who continue a course of
treatment they know is painful, ineffective, or entails a
substantial risk of serious harm act with deliberate
indifference); White v. Napoleon, 897 F.2d 103, 109 (3d Cir.
1990) (same).
V.
CONCLUSION
For the reasons set forth above, the Eighth Amendment
medical-care claim may proceed as against the New Jersey Medical
Defendants.
The claim for injunctive relief may proceed as
against Defendant Warden Donna Zickefoose.
All other claims will
be dismissed without prejudice.
An appropriate order follows.
s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
At Camden, New Jersey
Dated: April 24, 2012
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