OWENS v. LOPEZ DE LASALLE et al
Filing
2
OPINION. Signed by Judge Robert B. Kugler on 1/8/2013. (nz, )n.m.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DOUGLAS OWENS,
Plaintiff,
v.
ABIGAIL LOPEZ DE LASALLE,
M.D., et al.,
Defendants.
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Civil No. 12-3365 (RBK)
OPINION
APPEARANCES:
DOUGLAS OWENS, Plaintiff pro se
# 51716-056
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
KUGLER, District Judge
Plaintiff, Douglas Owens, a federal inmate confined at the
FCI Fort Dix in Fort Dix, New Jersey, at the time he filed this
Complaint, 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, the Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, 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.
For the reasons set forth below, the Court concludes
that the Complaint should be dismissed.
I.
BACKGROUND
Plaintiff, Douglas Owens (“Plaintiff”), brings this civil
action, pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971)1 and 28 U.S.C. § 1331,
against the following defendants: Abigail Lopez De Lasalle, M.D.,
Clinical Director at FCI Fort Dix; Donna Zickefoose, Warden at
FCI Fort Dix; and John Does 1-100.
d.)
(Complaint, Caption, ¶¶ 4b-
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 June 15, 2010, he twisted his
ankle stepping in a pot hole on his return from the evening meal.
Because the Medical Department was closed for the day, Plaintiff
returned to his room.
The next day, on June 16, 2010, during the
1
In Bivens, 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).
2
morning insulin line,2 Plaintiff told EMT Wilk that he was
experiencing pain while walking.
EMT Wilk advised Plaintiff to
go to his morning meal and return to see him afterwards.
Plaintiff returned to EMT Wilk after breakfast and was told that
since he was ambulatory, no treatment was required.
When
Plaintiff later attempted to go to his midday meal, however, he
could not put any weight on his right leg.
He was carried from
his room and a wheelchair was secured for him.
then taken to EMT Wilk for an examination.
Plaintiff was
Crutches were issued
to Plaintiff and x-rays were ordered.
The next day, an x-ray of Plaintiff’s right ankle showed
“[a]cute to subacute nondisplaced (and possibly incomplete)
fracture of the posteromedial tibia ... . [and] a large amount of
soft tissue swelling.”
(Compl., pg. 2 and Exhibit B-1.)
A cast
was applied to Plaintiff’s right lower leg, an orthopedic
examination was requested, and Motrin was prescribed to
Plaintiff.
tightly.
Plaintiff alleges that EMT Wilk applied the cast too
(Id., pg. 2.)
Several days later, on June 23, 2010, Plaintiff noticed that
his right toes were red and swollen.
During his morning insulin
line, Plaintiff showed his toes to EMT Wilk, who instructed
Plaintiff to return to Medical after his morning meal.
2
I.
The cast
Plaintiff has been diagnosed with Diabetes mellitus, type
(Complaint at Exhibit K-3.)
3
was removed, Plaintiff’s foot was cleaned, and an antibiotic
ointment was applied.
and foot.
A splint also was applied to the right leg
A follow-up consultation was scheduled for Plaintiff
to be examined by Dr. Patel, and Bactrim was prescribed for the
infection.
(Id., pp. 2-3, Ex. C-1.)
Plaintiff returned each day
for a bandage change, and on June 25, 2010, Defendant Dr. Lopez
was called to examine Plaintiff’s foot.
Upon Dr. Lopez’s
examination, Plaintiff was referred and admitted to St. Francis
Medical Center in Trenton, New Jersey, for treatment of a staph
infection.
(Id., pp. 2-3.)
Plaintiff remained at St. Francis for 10 days for treatment
of cellulitis and wound infection with antibiotics.
Hospital
discharge summary records show a surgical consultation and
treatment plan, which noted that Plaintiff was found to have a
nondisplaced fracture of the distal tibia in the metaphysis.
The
summary also noted that callus had formed around the fracture,
and it was determined that the condition was chronic and at least
three to four weeks old.
Further, “[i]t was recommended that the
patient remain in a splint till the wounds were improved.
The
plan was to place the patient in a short leg cast once the wounds
were stabilized.
Unfortunately, the patient was discharged prior
to this being performed.”
(Id., pg. 4, Ex. F-1.)
Plaintiff was discharged from St. Francis and returned to
FCI Fort Dix on June 29, 2010.
He had been placed in the same
4
splint and was instructed to wait for Medical to review his
discharge instructions with him.
After waiting more than one
hour, Plaintiff was told that he would have to return in the
morning.
He was driven back to his unit without any crutches
provided to him for ambulation.
Plaintiff alleges that, later
that same evening as he was stepping into the shower, Plaintiff
heard a “crack” and felt a sharp pain in his leg.
He also
noticed a change in the appearance of his right leg and ankle.
(Id., pg. 4, Exs. F-1, F-2.)
Plaintiff reported the incident to Medical the next morning
when he picked up his crutches.
A subsequent x-ray on July 6,
2010, revealed a “significant angulation” of his distal right
tibia.
Dr. Patel saw Plaintiff that same day and conferred with
Lawrence Orthopedics to discuss a schedule for an open reduction
and internal fixation.
(Id., pp. 4-5, Ex. F-2.)
Plaintiff was re-admitted to St. Francis Medical Center on
July 8, 2010, where he underwent open reduction and internal
fixation of the distal tibia fracture.
Summary of the procedure
indicates that:
... A good reduction was obtained with correction of the
deformity. The fracture was stabilized with plate fixation.
The fibula was stable at the conclusion of tibia fixation
and, therefore, was not fixed. It was felt that additional
fixation was not necessary and that it would increase his
risk of infection with two incisions in the right lower
extremity in a poorly controlled diabetic.
5
(Id., pg. 5, Ex. F-2.)
Plaintiff alleges that “although the
surgeons supposedly corrected his deformity, the [Plaintiff’s]
right leg was still deformed, leaving him unable to walk without
a limp or pain.”
Plaintiff also complains that he suffers a loss
of feeling in his right foot and is unable to navigate stairs.
Plaintiff points to an August 4, 2010 radiology report that notes
a “mild angulation.”
(Id., pp. 5-6, Ex. H.)
Plaintiff was examined by an orthopedic surgeon on August 5,
2010, at which time a short leg cast was placed on his right leg.
An eight-week follow-up examination was requested.
On October 7,
2010, an x-ray was taken which reported no “significant changes.”
(Id., pg. 6, Ex. J.)
On October 13, 2010, Plaintiff was examined
by Mid-Level Practitioner Vincente Elias for swelling of his limb
and right foot.
(Id., pg. 6, Ex. D.)
Plaintiff again was
examined on December 20, 2010, by Dr. Patel, his primary care
physician, for Plaintiff’s six-month chronic care appointment.
Dr. Patel’s notes document that Plaintiff complained of “mild
pain above the ankle in front of the leg” and numbness in his
toes.
(Id., pg. 7, Ex. K.)
Plaintiff was examined by the
orthopedic surgeon on January 27, 2011, March 24, 2011 and May
26, 2011.
Plaintiff asserts that he has been denied adequate and
necessary medical care in violation of his Eighth Amendment right
against cruel and unusual punishment.
6
He complains that he has
an obvious physical deformity in his leg that causes him pain,
and renders him unable to walk without limping.
(Id., pg. 7.)
He alleges that the first wrongful act of defendants occurred
when his fracture was mis-diagnosed as a minor injury and a cast
was placed too tightly on his leg, causing sores that resulted in
a staph infection.
He next alleges that he was wrongfully
discharged from the hospital, against medical advice, before the
recommended orthopedic surgery was to be performed.
Plaintiff
presumes that Defendant Dr. Lopez was responsible for the
premature discharge.
(Id., PP. 10-11.)
Plaintiff next alleges that the second act of deliberate
indifference to his medical needs occurred after his discharge
from the hospital when he was returned to his unit without
crutches or a wheelchair for one day.
The same day Plaintiff was
returned to prison, he went to take a shower in the evening and
further exacerbated his fracture.
(Id., pg. 11.)
Plaintiff alleges that the third act of deliberate
indifference occurred when his eight-week follow-up orthopedic
exam was not scheduled until January 27, 2011, almost six months
after his examination by the orthopedic surgeon on August 5,
2010, when the request for the eight-week follow-up was made.
further treatment was planned on Plaintiff’s deformed leg after
No
his last orthopedic examination on May 26, 2011.
13.)
7
(Id., pp. 12-
Finally, Plaintiff alleges that Defendant Warden
Zickefoose’s responses to Plaintiff’s administrative remedies
regarding medical notations that Plaintiff denied being in pain
are “blatantly false.”
(Id., pp. 13-14.)
Plaintiff alleges that he has exhausted his administrative
remedies before filing this action for relief.
remedy forms and responses to his Complaint.
He attaches the
Plaintiff’s first
administrative remedy was filed on June 7, 2011, requesting
“necessary medical care for an injury to [his] lower right tibia
and right ankle.”
(Id., Ex. L-1, L-2.)
Warden Zickefoose
responded on June 20, 2011, as follows:
A review of your medical record reveals on June 16, 2010,
you were seen for an injury assessment in which you reported
that you had twisted your ankle on the compound. An x-ray
was requested, crutches were issued and you were instructed
to avoid weight-bearing on your right leg. On June 17, 2010
you were seen for follow-up due to an abnormal x-ray, which
indicated a nondisplaced (possibly incomplete) fracture of
the posteromedial tibia. A cast was applied, a referral to
the Orthopedic Surgeon was made, and you were issued
crutches and Motrin for pain. On June 23, 2010, staff
observed that you had open sores with swellings at the end
of your foot and toes. You denied any pain and said you
were not aware of the blisters of your foot. Your cast was
removed, your foot was cleaned and antibiotic ointment was
applied. A splint was put in place and you were prescribed
Bactrim. You were advised to use crutches and avoid weight
bearing on your right foot until seen by the Orthopedic
Surgeon.
On June 25, 2010, you were seen by the Physician and sent to
the Emergency Room for IV antibiotic treatment due to
cellulitis of the right lower extremity. On July 6, 2010,
you were seen at Health Services upon return to the
institution. It was noted that a posterior splint was
applied at the hospital, and you were prescribed Motrin.
You reported you had been putting weight on the leg and were
8
not using crutches all the time. You also stated Motrin
assisted with your pain control. A wheelchair was issued to
you and you were instructed not to put weight on your right
ankle. On that same date, you were witnessed by staff
walking with crutches, but putting weight on your right leg.
On July 12, 2010, you were discharged from the hospital
after surgical repair of your right tibia. On August 5,
2010, you were seen by the Orthopedic Surgeon as a followup. After review of the x-ray, you were placed in a shortleg cast and were continued in the wheelchair with
instructions to not put weight on your right leg. On
October 13, 2010, you were seen for swelling of the right
foot and toes. You were using only one crutch and applying
full body weight against medical advice. There was only
mild swelling, and you were instructed to report to Sick
Call as needed, or if your condition worsened. On January
27, 2011, you were evaluated by the Orthopedic Surgeon who
determined you had a healed fracture. He advised you to
increase weight-bearing. On February 11, 2011, you were
seen for follow-up and denied being in pain. On March 2,
2011, you were seen at Sick Call to renew your first floor
pass and again you denied having pain in your right foot.
You were seen again by the Orthopedic Surgeon on March 24
and May 26. You did not report any pain or issues on those
occasions. There is also no record of you reporting to Sick
Call for any issues with pain. You have been properly
treated for your fracture, and should follow medical staff’s
advice with regard to care of your right leg. Accordingly,
your request is denied.
(Id., Ex L-3, L-4.)
Plaintiff filed an administrative appeal from the Warden’s
decision on July 1, 2011.
(Id., Ex. M-1.)
The Regional Director
denied Plaintiff’s appeal on August 4, 2011, noting that
A review of your appeal reveals the Warden detailed the
medical care you are receiving. On July 19, 2011, you were
re-evaluated by the contract Orthopedic Surgeon who noticed
a healed fracture and recommended periodic wound checks.
Medical staff advise you are receiving appropriate medical
treatment and continue to have access to sick call for your
concerns. Accordingly, your appeal is denied.
9
(Id., Ex. M-2.)
Plaintiff filed a Central Office Administrative
Remedy Appeal on August 16, 2011.
(Id., Ex. N-1.)
Plaintiff
states that he did not receive a response from the Central
Office, but pursuant to 28 C.F.R. § 542.18, he may consider his
administrative appeal denied.
(Id., pg. 8.)
Plaintiff seeks to have surgery performed to correct the
deformity in his right leg.
He also asks for compensatory and
punitive damages in the amount of $ 15 million.
(Complaint at §
7, Relief.)
II.
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) and
§ 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
10
plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662 (2009).
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).
Citing its 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, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555), the Supreme Court held
that, to prevent a summary dismissal, a civil complaint must now
allege “sufficient factual matter” to show that the claim is
facially plausible.
This then “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Fowler v. UPMC Shadyside, 578 F.3d 203 (3d
Cir. 2009)(citing Iqbal, 556 U.S. at 676).
The Supreme Court’s
ruling in Iqbal emphasizes that a plaintiff must demonstrate that
the allegations of his complaint are plausible.
See id. at 678-
79; see also Twombly, 505 U.S. at 555, & n. 3; Warren Gen. Hosp.
v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).
11
“A complaint must
do more than allege the plaintiff’s entitlement to relief.
A
complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citing Phillips v. County of Allegheny,
515 F.3d 224, 234–35 (3d Cir. 2008).
See also Argueta v. U.S.
Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir.
2011); Bistrian v. Levi, 2012 WL 4335958, *8 (3d Cir. Sept. 24,
2012)(allegations that are no more than conclusions are not
entitled to the assumption of truth; a court should “look for
well-pled factual allegations, assume their veracity, and then
‘determine whether they plausibly give rise to an entitlement to
relief.’”)(quoting, Iqbal, 556 U.S. at 679).
III.
ANALYSIS
“The Eighth Amendment, which applies to the states by virtue
of the Fourteenth Amendment, prohibits” punishments that are
“cruel and unusual.”
Cir. 2010).
Jackson v. Danberg, 594 F.3d 210, 216 (3d
An Eighth Amendment claim includes an objective
component, whether the deprivation of a basic human need is
sufficiently serious, and a subjective component, whether the
officials acted with a sufficiently culpable state of mind.
Wilson v. Seiter, 501 U.S. 294, 298 (1991).
The objective
component is “contextual and responsive to ‘contemporary
standards of decency.’”
Hudson v. McMillian, 503 U.S. 1, 8
(1992)(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
The
subjective component “follows from the principle that ‘only the
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unnecessary and wanton infliction of pain implicates the Eighth
Amendment.’”
Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quoting Wilson, 501 U.S. at 297).
“What is necessary to
establish an ‘unnecessary and wanton infliction of pain,’ ...
varies according to the nature of the alleged constitutional
violation.”
Hudson, 503 U.S. at 5 (quoting Whitley v. Albers,
475 U.S. 312, 320 (1986)).
Where the claim is one alleging the failure to provide
medical care, as alleged by Plaintiff here, the core inquiry is
whether the defendant’s actions constituted “deliberate
indifference” to an inmate’s serious medical needs.
U.S. at 104.
Estelle, 429
Deliberate indifference is shown if a defendant
“intentionally den[ies] or delay[s] access to medical care or
intentionally interfere[es] with the treatment once prescribed.”
Id. at 104–05.
Furthermore, deliberate indifference can be
manifested by “persistent conduct in the face of resultant pain
and risk of permanent injury.”
109 (3d Cir. 1990).
White v. Napoleon, 897 F.2d 103,
Moreover, “[s]hort of absolute denial, if
necessary medical treatment is ... delayed for non-medical
reasons, a case of deliberate indifference has been made out.”
Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987)(alterations in original)(internal
quotation marks and citation omitted).
A medical need is serious
if it “has been diagnosed by a physician as requiring treatment
13
or ... so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.”
Atkinson v. Taylor, 316
F.3d 257, 272–73 (3d Cir. 2003)(internal quotation marks and
citation omitted). However, “[a]llegations of medical malpractice
or mere disagreement as to the proper medical treatment are
insufficient to establish a constitutional violation.”
Szemple
v. Univ. of Med. & Dentistry, No. 11–1376, 2011 U.S.App. LEXIS
22914, at *8, 2011 WL 5562668 (3d Cir. Nov. 16, 2011)(citing
Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)).
Here, the Complaint fails to state a claim of deliberate
indifference necessary to support an Eighth Amendment violation.
Plaintiff provided the relevant medical records with his
Complaint which evidences that Plaintiff was extensively treated
for his staph infection and fracture.
At best, Plaintiff disagrees with the treatment course set
forth by the medical defendants, and alleges negligence.
For
instance, Plaintiff complains that his cast was put on his leg
too tightly, and that the fracture initially was mis-diagnosed as
a minor injury.
He also complains that he was discharged from
the hospital too early, but offers no evidence that the discharge
was prompted by any named defendant with deliberate disregard for
Plaintiff’s health.
As noted above, such claims of disagreement
in treatment, or negligence, or medical malpractice, do not rise
to the level of an Eighth Amendment violation.
14
As the Third
Circuit has noted “mere disagreements over medical judgment do
not state Eighth Amendment claims” because there may be “several
acceptable ways to treat an illness.”
White, 897 F.2d at 110;
see also Hodge v. United States Dep’t of Justice, 372 Fed. Appx.
264, 268 (3d Cir. 2010)(“disagreements ... among physicians,
concerning the course of medical treatment ... do not support a
claim for a violation of the Eighth Amendment.”); Ham v. Greer,
269 Fed. Appx. 149, 151 (3d Cir. 2008)(“Ham’s primary dispute, in
essence, is that he did not receive the kind or quality of
treatment that he would have preferred.
This simply does not
rise to the level of a violation of a constitutionally protected
right.”).
Plaintiff was given crutches, a wheelchair and medication to
help with pain.
He was seen regularly as prescribed for periodic
examination and follow-up care, and did not request or report to
Sick Call on any occasion for issues with pain.
Medical staff
and his Orthopedic Surgeon also reminded Plaintiff to keep weight
off his right leg, which Plaintiff apparently chose to ignore at
his detriment.
Thus, while this Court sympathizes with
Plaintiffs medical condition and alleged deformity, it is clear
that the defendants were not deliberately indifferent to his
medical needs to support an Eighth Amendment violation.
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IV.
CONCLUSION
Therefore, for the reasons set forth above, the Complaint
will be dismissed with prejudice, in its entirety as against the
named defendants, for failure to state a claim upon which relief
may be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
An appropriate order follows.
S/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: January 8, 2013
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