CORRAL v. UNITED STATES

Filing 11

OPINION. Signed by Chief Judge Jerome B. Simandle on 8/26/2013. (nz, )n.m.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PABLO FAVELA CORRAL,
Plaintiff,
v.
UNITED STATES,
Defendants.

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Civil Action No. 12-6220 (JBS)

OPINION

APPEARANCES:
Pablo Favela Corral
F.C.I. Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Plaintiff pro se

SIMANDLE, Chief Judge
Plaintiff Pablo Favela Corral, a prisoner confined at the Federal Correctional Institution
at Fort Dix, New Jersey, seeks to bring this action in forma pauperis pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq.1

1

This Court previously denied Plaintiff’s initial and deficient application for leave to
proceed in forma pauperis and ordered this matter administratively terminated. Plaintiff has
submitted a new and complete Application [7] for leave to proceed in forma pauperis. Based on
his affidavit of indigence and the absence of three qualifying dismissals within 28 U.S.C.
§ 1915(g), the Court will grant Plaintiff’s Application [7] to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915(a) and will order the Clerk of the Court to re-open the Court’s file in this
matter and to file the Complaint for further proceedings.

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 is a federal prisoner serving a 188-month term of imprisonment pursuant to a
sentence imposed by the U.S. District Court for the District of Nebraska. See United States v.
Favela-Corral, Crim. No. 02-3121 (D.Neb.).2 Plaintiff alleges that he has suffered a “life long
actual injury” while confined at the Federal Correctional Institution at Fort Dix, New Jersey
(“FCI Fort Dix”). (Complaint, ¶ 19.) Plaintiff alleges that the injuries resulted from Bureau of
Prisons (“BOP”) staff in Washington, DC, providing too few health care staff at FCI Fort Dix,
providing too small a budget for health care both at FCI Fort Dix and by outside providers, and
being too slow to respond to the need for outside treatment. (Complaint, ¶ 32.) Plaintiff further
contends that local FCI Fort Dix staff withheld administrative remedy forms3 from Plaintiff and

2

In the criminal action, Plaintiff is identified as “Pablo Favela-Corral.” Accordingly, the
Clerk of the Court will be ordered to amend the Docket in this matter to reflect this alternative
spelling of Plaintiff’s name.
3

Error! Main Document Only.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.” Error! Main
Document Only.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). The Federal Correctional Institution at Fort
Dix employs a BP-8 Informal Resolution Form for this purpose. That form requires the inmate
to state what efforts he has made to resolve his complaint informally and to state the names of
staff contacted. 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
2

that BOP staff in Washington had notice of that but failed to remedy the situation. (Compl.,
¶¶ 45, 66.) In addition, Plaintiff alleges that certain remedy forms that he submitted were
wrongfully rejected. (Compl., ¶¶ 72, 73.)
Plaintiff alleges that he submitted an institutional remedy in March, 2011, alleging that
FCI Fort Dix health care staffer Mr. Killen assaulted Plaintiff, who already had a broken arm,
thereby allegedly causing additional injury. (Compl., ¶¶ 85, 87.) Plaintiff argues that the
(otherwise undescribed) response to that remedy by BOP staff in Washington was a tortious
breach of their duty of care to Plaintiff. (Compl., ¶¶ 88-91.) He further alleges that BOP staff
breached their duty of care to provide him with two health care experts. (Compl., ¶¶ 98-103.)
Plaintiff alleges further that an unnamed outside medical expert advised him that the treatment he
received at FCI Fort Dix did not meet published standards of care. (Compl., ¶ 124.) He also
asserts generally delay and deprivation in the provision of medical care. (Compl., ¶¶ 109, 126.)
In addition, Plaintiff generally alleges injuries to his head, nose, and eyes (Compl.,
¶ 127), and he states that he has not exhausted remedies with respect to claims regarding those
injuries because of Warden Zickefoose’s exhaustion obstruction scheme (Compl., ¶ 129, 130.)
Plaintiff has attached to the Complaint a copy of a December 6, 2011, administrative
Claim form and attachments, asserting a claim under the Alien Tort Claims Act,4 and alleging

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. Error! Main Document Only.Id. Appeal to the
General Counsel is the final administrative appeal. Id.
4

Plaintiff appears to base this reference to the Alien Tort Claims Act, 28 U.S.C. § 1350, on
the fact that he is a citizen of Mexico. The Alien Tort Claims Act provides that “[t]he district
courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States,” and does not have any
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that the BOP staff at FCI withheld administrative remedy forms between 2003 and 2011, that
supervisory staff in Washington, DC, were aware of this but failed to remedy the problem, and
that he received inadequate care from the understaffed FCI Fort Dix medical department for
injuries to his back, arms, neck, hands, head, legs, hip, feet, and blood. (Compl., Ex. 1.)5
Plaintiff also attaches a letter dated December 16, 2011, from the U.S. Department of Justice,
advising that the claim has been referred to the Federal Bureau of Prisons and providing an
address for further correspondence. Plaintiff does not state whether he has received any further
response regarding his administrative Claim.6
In this Complaint, Plaintiff asserts jurisdiction under the Federal Tort Claims Act and
seeks damages in the amount of $10,000,000.00.7
II. STANDARDS FOR A SUA SPONTE DISMISSAL
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 132166 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B),
seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a
claim with respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts

applicability here. See generally Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
5

In the Claim form, Plaintiff does not assert a claim for the alleged assault by a
correctional employee. In addition, that information appears to be included in the text of this
Complaint by way of providing a factual context for the FTCA medical malpractice claim.
Accordingly, this Court does not construe the Complaint as asserting any FTCA claim for the
alleged assault.
6

Plaintiff’s Complaint is dated June 29, 2012, more than six months after the December 6,
2011, date of the Claim form. Thus, if he had not received a response, he was entitled to treat the
lack of response as a denial and to proceed in court. See 28 U.S.C. § 2675.
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The damages amount is the same as that demanded in the Claim form.
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to sua sponte dismiss any claim that is frivolous, is 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. This action is subject to sua sponte screening for dismissal under all the aforementioned
provisions because Plaintiff is proceeding in forma pauperis against the United States in a claim
relating to prison conditions.
According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive sua sponte screening for failure to state a claim8, the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “‘A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’” Belmont v. MB Inv. Partners, Inc., 708
F.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted) (emphasis added).
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
8

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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pursuant to 28 U.S.C. § 1915(e)(2)), cited in Thomaston v. Meyer, No. 12-4563, 2013 WL
2420891, *2 n.1 (3d Cir. June 5, 2013); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000)
(dismissal pursuant to 42 U.S.C. § 1997e(c)(1)).
III. ANALYSIS
The United States has sovereign immunity except where it consents to be sued. U.S. v.
Bormes, 133 S.Ct. 12, 16 (2012); United States v. Mitchell, 463 U.S. 206, 212 (1983). The
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., constitutes a limited waiver of the
sovereign immunity of the United States. 28 U.S.C. § 2679(b)(1); White-Squire v. U.S. Postal
Service, 592 F.3d 453, 456 (3d Cir 2010). The Federal Tort Claims Act gives federal district
courts exclusive jurisdiction over civil actions:
[1] against the United States, [2] for money damages, ... [3] for injury or loss of
property, ... [4] caused by the negligent or wrongful act or omission of any
employee of the Government [5] while acting within the scope of his office or
employment, [6] under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.
Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995) (quoting 28 U.S.C. § 1346(b)); see
also CAN v. U.S, 535 F.3d 132, 141 (3d Cir. 2008) (quoting Federal Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 477 (1994)); United States v. Muniz, 374 U.S. 150 (1963).
Here, in brief, Plaintiff alleges medical malpractice by staff at FCI Fort Dix, based in part
on the negligent failure of BOP staff in Washington to provide a sufficient budget for medical
care at FCI Fort Dix, and negligent failure by BOP staff in Washington to resolve obstructionist
tactics by FCI Fort Dix staff that prevented Plaintiff from exhausting administrative remedies
regarding his medical treatment. Plaintiff also contends that FCI Fort Dix staff and BOP staff in
Washington were negligent in their processing of Plaintiff’s administrative remedies.
Claims under the FTCA are governed by the substantive tort law of the state where the
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acts or omissions occurred, here, New Jersey. See Richards v. United States, 369 U.S. 1, 6
(1962); Ciccarone v. United States, 486 F.2d 253, 257 (3d Cir. 1973); Shuster v. Cabanas, Civil
Action No. 11-1764, 2013 WL 3783891, *4 (D.N.J. July 19, 2013). Thus, as an initial matter,
Plaintiff must show the typical elements of the tort of negligence under New Jersey law: (1) that
the defendant owed a duty of care to the plaintiff, (2) that the defendant breached that duty,
(3) that the defendant’s breach caused the plaintiff’s injuries, and (4) that the plaintiff suffered
damages. See generally Natale v. Camden County Correctional Facility, 318 F.3d 575, 579 and
n.3 (3d Cir. 2003); Weinberg v. Dinger, 106 N.J. 469, 484 (1987). More specifically with
respect to medical malpractice, Plaintiff must demonstrate “(1) the applicable professional
standard of care, (2) that [the] defendant deviated from that standard of care, and (3) that the
deviation was the proximate cause of [the] plaintiff’s injuries.” N.D. ex rel. P.D. v. Rosen, 2011
WL 2410332, *8 (N.J. Super. App. Div. June 13, 2011) (citing Gardner v. Pawliw, 150 N.J. 359,
375 (1997)). See also Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) (“A medical malpractice case
is a kind of tort action in which the traditional negligence elements are refined to reflect the
professional setting of a physician-patient relationship.”).
Here, Plaintiff’s claims of medical malpractice are too vague and conclusory to state a
claim. Plaintiff does not describe the nature of his medical problems, the treatment received, the
identities of the treatment providers, the dates of the treatments, the alternative treatment
required, the manner in which the treatment received was deficient, or the harm caused by the
allegedly inadequate treatment. Cf. Skyers v. U.S., Civil Action No. 12-3432, 2013 WL
3340292, *13-*14 (S.D.N.Y. July 2, 2013) (dismissing FTCA medical malpractice claim as
conclusory). To the extent he contends that some injury resulted because officials up the chain
of the administrative remedy process acted negligently in their review of grievances or requests

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for medical treatment, Plaintiff has utterly failed to plead a single fact tying events in the
grievance or medical review process to the delivery of medical care. Overall, Plaintiff has failed
to plead sufficient facts to raise his right to relief for medical malpractice above a “speculative
level.” See Twombly, 550 U.S. at 555.9
Moreover, the FTCA does not encompass all torts committed by federal government
employees. Rather, the “discretionary function” exception provides that the provisions of the
FTCA shall not apply to any claim “based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). To determine whether the discretionary function exception applies, a court must
determine (1) “whether the act involves an ‘element of judgment or choice,” and (2), if so,
“’whether that judgment is of the kind that the discretionary function exception was designed to
shield.’” Mitchell v. U.S., 225 F.3d 361 (3d Cir. 2000) (quoting U.S. v. Gaubert, 499 U.S. 315,
322 (1991)). More specifically, with respect to the second requirement, the discretionary
function exception “protects only governmental actions and decisions based on considerations of
public policy.” Berkovitz v. U.S.¸486 U.S. 531, 537 (1988). See generally S.R.P. ex rel.
Abunabba v. U.S., 676 F.3d 329 (3d Cir. 2012).
While federal law requires the Bureau of Prisons to “provide for the safekeeping, care,
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In addition, Plaintiff fails to plead facts that would permit this Court to determine
whether his claims are timely and exhausted. See 28 U.S.C. § 2401(b). For example, Plaintiff
makes references in both the Claim and the Complaint to administrative remedies by number, but
fails to provide a copy of those remedy forms or to describe the dates and contents of the forms
and the responses. The repeated references to alleged obstruction in obtaining administrative
remedy forms and processing them suggests that Plaintiff is seeking to rely on equitable tolling
of the limitations period, see Santos ex rel. Beato v. U.S., 559 F.3d 189 (3d Cir. 2009), but he has
failed to provide factual details regarding the identities of persons involved in refusing to provide
administrative remedy forms, or the dates and circumstances of such alleged refusals. Because
of other defects in the Complaint, this Court need not reach the timeliness issue here.
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and subsistence” of all persons within its custody, 18 U.S.C. § 4042(a)(2), the statute leaves the
implementation of these duties to BOP officials’ discretion. See Cohen v. United States, 151
F.3d 1338, 1342 (11th Cir. 1998), cited in Rinaldi v. U.S., 460 F.App’x 80, 81-82 (3d Cir. 2012).
Various courts have found that budgetary considerations, especially with regard to decisions
relating to medical services, are included among the policy considerations that may justify
application of the discretionary function exception to BOP staff decisions. See, e.g., Hatten v.
U.S., Civil Action No. 07-0935, 2011 WL 855677, *3 (E.D. Tex. Feb. 10, 2011) (budget
considerations may have influenced decision regarding placement of prisoner in protective
custody); Dudley v. U.S., Civil Action No. 09-4024, 2010 WL 5290024, *3-*4 (D.S.D. Dec. 17,
2010) (holding that discretionary function exception applied to medical classification decision
and collecting cases).
Here, Plaintiff explicitly alleges that budget decisions by BOP officials in Washington
contributed to the allegedly deficient medical care that he received. The dearth of facts pled in
support of this contention limits the ability of this Court to evaluate the applicability of the
discretionary function exception to the claims otherwise raised here. Nevertheless, to the extent
Plaintiff seeks to proceed on the theory that policymakers at the BOP in Washington were
negligent in their decisions regarding the budget for medical services at individual prisons, the
discretionary function exception would appear to bar any such claim.
Finally, as noted above, liability under the FTCA depends upon conduct that amounts to a
tort under state law. To the extent Plaintiff seeks to assert a claim based upon certain federal
officials’ negligent failure to comply with the administrative remedy procedures, this Court has
failed to locate any corresponding duty under New Jersey tort law, and Plaintiff has not
identified any. Accordingly, Plaintiff cannot proceed under the FTCA for negligent failure to

9

process administrative remedies. Cf. Janis v. U.S., Civil Action No. 06-1613, 2009 WL 564207,
*10-*11 (S.D. Ind. March 4, 2009) (dismissing FTCA claim for negligent interference with
administrative remedy process because there is no corresponding duty in Indiana law). See also
Talley v. U.S., Civil Action No. 11-1180, 2013 WL 1314414, *4 (D.N.J. March 28, 2013)
(noting that violation of federal statute or regulation creates an FTCA cause of action “only if
there are analogous dutires under local tort law” (citing Art Metal-U.S.A., Inc. v. United States,
753 F.2d 1151, 1157 (D.C. Dir. 1985) (emphasis in original)). Accordingly, the claim for
negligence in connection with the processing of administrative remedies will be dismissed with
prejudice. However, this Court is not determining whether Plaintiff has filed a proper and timely
administrative tort claim as required before filing suit under the Federal Tort Claims Act; if
Plaintiff chooses to pursue his FTCA action, he will need to allege in his proposed Amended
Complaint that he has complied with the requirement of filing a timely administrative tort claim
regarding the torts he is alleging, and that such administrative claim contained a demand for
monetary damages in a sum certain, as explained above.
IV. CONCLUSION
For the reasons set forth above, the Complaint will be dismissed without prejudice,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim.
However, because it is conceivable that Plaintiff may be able to supplement his pleading with
facts sufficient to overcome the deficiencies described herein, the Court will grant Plaintiff leave
to file an application to reopen his case accompanied by a proposed amended complaint.10 Any

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Plaintiff should note that when an amended complaint is filed, it supersedes the original and
renders it of no legal effect, unless the amended complaint specifically refers to or adopts the
earlier pleading. See West Run Student Housing Associates, LLC v. Huntington National Bank,
No. 12-2430, 2013 WL 1338986, *5 (3d Cir. April 4, 2013) (collecting cases). See also 6
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2008).
10

such application to reopen his case and to file an amended complaint must be filed within thirty
(30) days after entry of the appropriate order which follows.

s/ Jerome B. Simandle
Jerome B. Simandle
Chief Judge
United States District Court
Dated: August 26, 2013

To avoid confusion, the safer practice is to submit an amended complaint that is complete in
itself. Id.
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