CAPALBO v. HOLLINGSWORTH
Filing
11
OPINION. Signed by Judge Renee Marie Bumb on 12/19/2013. (tf,n.m. )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
:
ANGELO RICCARDO CAPALBO,
:
: Civil Action No. 13-3291 (RMB)
Petitioner,
:
:
v.
:
:
OPINION
J. HOLLINGSWORTH,
:
:
Respondent.
:
_______________________________________
:
BUMB, District Judge:
This habeas matter comes before the Court upon Petitioner’s
submission of his application to prosecute his civil rights
challenges in forma pauperis.
See Docket Entry No. 9.
For the
reasons detailed below, Petitioner’s application will be denied,
and he will be directed to show cause as to why he qualifies for
in forma pauperis.
As set forth below, Petitioner may be
permitted to prosecute his civil action: (a) upon prepayment of
the filing fee (or upon duly showing cause as to why he qualifies
for in forma pauperis status in that action); and (b) upon
submission of an amended pleading stating a plausible claim in
light of the guidance provided to Petitioner infra.
I.
BACKGROUND
The proceedings in this matter commenced on May 28, 2013,
when the Clerk docketed Petitioner’s application styled as a
habeas petition executed pursuant to 28 U.S.C. § 2241.1
Docket Entry No. 1.
See
The habeas application asserted that
Petitioner, who has been having extensive medical problems and
who has been provided with extensive medical treatment, was
recently prescribed a certain surgical procedure but that
procedure was suddenly denied to him for non-medical reasons, and
said denial posed a grave danger to Petitioner’s life.
See id.
at 8 (Petitioner’s application raising, simultaneously and
somewhat cryptically, negligence challenges framed in medical
malpractice terms and, in addition, a claim asserting a challenge
of constitutional magnitude, that is, that the said denial of the
prescribed surgery would result in Petitioner’s “death”).
Six days later, Petitioner submitted the $5 fee applicable
to habeas actions.
See Docket Entry dated June 3, 2013.
Albeit Petitioner’s challenges presented a range of de facto
civil rights challenges that could be litigated only under Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), see
Preiser v. Rodriguez, 411 U.S. 475 (1973); Cardona v. Bledsoe,
681 F.3d 533 (3d Cir. 2012); Leamer v. Fauver, 288 F.3d 532, 542
(3d Cir. 2002), this Court – taking Petitioner’s assertion (that
he was facing imminent death) at face value, directed Respondent
1
Petitioner, a federal inmate confined at the FCI Fort
Dix, submitted the application at bar without the filing fee
applicable to habeas petitions and without providing the Court
with his in forma pauperis application. See Docket Entry No. 1.
2
to file an affidavit and evidentiary record verifying that
neither Petitioner’s life nor his health was in imminent danger,
and reserved its determinations as to all other aspects of the
case at bar.
See Docket Entry No. 2.
Respondent duly complied, see Docket Entry No. 3,2 providing
the Court with evidence indicating that: (a) Petitioner has been
receiving extensive and systemic medical treatments; and (b) no
medical treatment, moreover no prescribed medical treatment, has
been denied to Petitioner for non-medical reasons (and Petitioner
was in no imminent danger of any kind).
3-1 to 3-4.3
See Docket Entries Nos.
In response, Petitioner filed a letter stating that
certain unspecified “mail [that Petitioner] intended to use in
[his traverse] ha[d] been denied to [him],” and requesting an
order directing that Petitioner “be given [that unspecified]
mail.”4
Docket Entry No. 7.
2
In accordance with the Court’s mandate, Respondent filed
the directed submission within five days from the date of entry
of the Court’s order. See Docket Entry No. 3. That submission,
which included the required affidavit and was accompanied by a
well-detailed summary and voluminous exhibits (reflecting
Petitioner’s extensive record of medical treatments), totaled 190
pages. See Docket Entries Nos. 3 to 3-4. The Court thanks
Respondent for the prompt and thoughtful submission.
3
Respondent also correctly noted that Petitioner’s
challenges were of a Bivens rather than a habeas nature.
4
Therefore, the Court has no certainty that Respondent’s
submission docketed in this matter was served upon Petitioner.
3
Upon careful examination of the affidavit and record
submitted by Respondent, this Court satisfied itself that neither
Petitioner’s life nor his health was in imminent danger.
Docket Entries Nos. 7 and 8.
See
Correspondingly, the Court found it
warranted to return this matter to the track it should have been
on ab initio.
Therefore, the Court advised Petitioner that his
civil rights challenges could have been entertained only in a
Bivens action.
See id.
In conjunction with the same, the Court
advised Petitioner of his obligation to either prepay the $400
filing fee associated with a civil rights action or to duly
obtain in forma pauperis (“IFP”) status.
at 9 and n.1; see also Docket Entry No. 8.
See Docket Entry No. 7,
Moreover, since the
submission made by Respondent: (a) provided the Court with no
basis to conclude sua sponte that Petitioner’s civil rights might
have been violated; and, hence (b) left this Court guessing
whether Petitioner would be interested in commencing a civil
rights matter altogether, the Court found it premature to direct
Petitioner’s filing of an amended pleading operating as a civil
complaint.
See Docket Entry No. 8.
Apparently misconstruing this Court’s observation (that
Petitioner may commence a Bivens action upon properly prepaying
the filing fee or duly obtaining IFP status) as this Court’s
finding that Petitioner actually has a viable civil rights claim,
Petitioner submitted his IFP application in this habeas matter.
4
See Docket Entry No. 9, at 3, 6 (showing that, within the last
six months, Petitioner received $3,000 in monetary gifts
deposited on his prison account, and $2,138 of that amount
remained available for payments of Petitioner’s expenses).
The IFP application arrived accompanied by Petitioner’s
statements that: (a) his “claims [were] of substance,” even
though he did not know the “critical facts” of those claims; but
(b) he wished to conduct “cross-examination” of unspecified
individuals to determine facts showing that Respondent’s
submission contained some unspecified “conflicting evidence”; and
(c) in connection with those endeavors, Petitioner was seeking
appointment of pro bono counsel in order to “identify” the proper
defendants to be named in his civil rights pleading and to detect
and state “the facts showing the deliberate indifference [on the
part of those yet-to-be-identified defendants] to [Petitioner’s]
medical needs.”
Docket Entry No. 9, at 1.
In other words,
Petitioner conceded that, as of now, he had no facts to support a
viable claim.
II.
IN FORMA PAUPERIS APPLICATION
Section 1914, the filing fee statute, provides, in relevant
part, that “the [C]lerk . . . shall require the [plaintiff] . . .
to pay a filing fee of $ 350 except [in] a writ of habeas corpus
5
the filing fee shall be $ 5.”5
28 U.S.C. § 1914(a).
The
accompanying provision, Section 1915, governs applications filed
IFP and provides, in relevant part, that leave to proceed IFP may
be granted in any suit to a litigant “who submits an affidavit
that includes a statement of all assets such [litigant] possesses
[if such affidavit demonstrates] that the [litigant] is unable to
pay such fees.”
28 U.S.C. § 1915(a)(1); see also Smith v.
Bennett, 365 U.S. 708, 712 (1961) (“[W]hile [$5.00] is . . . an
‘extremely nominal’ sum, if one does not have it . . . the fee
might as well be [$5,000]”); Clay v. New York Nat’l Bank, 2001
U.S. Dist. LEXIS 3209, at *1 (S.D.N.Y. Mar. 21, 2001) (same).
Therefore, the grant of IFP status is trusted to the good
faith discretion of the federal judiciary.
Reflecting on the
same, the Supreme Court clarified that one need not be absolutely
destitute to qualify for IFP status.
See Adkins v. E. I. DuPont
De Nemours & Co., Inc., 335 U.S. 331 (1948).6
Here, however,
5
Effective May 1, 2013, if a litigant prepays the filing
fee, an additional $50 administrative fee shall be submitted for
a total of $400. See http://www.njd.uscourts.gov/sites/njd/files/
AdminFee_0.pdf (“Effective May 1, 2013, pursuant to Judicial
Conference Policy, all federal courts will begin charging a new
$50 administrative fee for filing a [c]ivil [a]ction . . . in
addition to the $350 filing fee for a total of $400”).
6
In Adkins, the plaintiff filed a timely motion in
district court requesting leave to appeal the district court’s
decision and stated, in her affidavit, that she was a widow of 74
years of age, that the estimated cost of her record on appeal was
$ 4,000, that all she owned was a house inherited from her
husband which had been appraised at a value of $ 3,450, and her
6
Petitioner is an inmate whose living expenses, including housing,
food, clothing, medications, etc. are provided by the prison
authorities and, thus, it does not appear that his minimal needs
would be left unsatisfied unless he utilizes his funds.
Thus, it
does not appear that prepayment of the filing fee, especially if
that payment would be equal to less than one-fifth of his current
funds, would be too burdensome for Petitioner within the meaning
of the Adkins test.
Correspondingly, the IFP application fails
to qualify Petitioner for IFP status.
However, out of an
abundance of caution, the Court will allow him an opportunity to
show cause as to why prepayment of the filing fee, equal to less
than one-fifth of his funds, would be so burdensome to bring him
within the standard articulated and exemplified in Adkins.
II.
SUBSTANTIVE DISCUSSION
Since Petitioner’s submission of his IFP application
suggests his interest in commencing and prosecuting a Bivens
action, the Court finds it warranted to summarize the governing
only source of income was a small rent from the parts of her home
without which she would not be able to purchase even the barest
necessities of life, such as food. The district and appellate
courts refused to grant the plaintiff IFP status because she had
not mortgaged her home to raise money toward her litigation,
ruling that the plaintiff had to contribute her last dollar to
the cost of litigating the suit. The Supreme Court reversed and
ruled that a plaintiff need not be absolutely destitute before
allowing to proceed IFP; rather the plaintiff has to establish to
the satisfaction of the district court’s good faith discretion
that the payment of the fee would be unduly burdensome in light
of the minimal necessities of life unique to each plaintiff.
7
pleading standard and substantive test applicable to the claims
Petitioner is seemingly striving to allege.
A.
THE PLEADING REQUIREMENT
The Supreme Court detailed the standard for summary
dismissal of a complaint in Ashcroft v. Iqbal, 556 U.S. 662
(2009), where the Court examined Rule 8(a)(2) of the Federal
Rules of Civil Procedure stating that a complaint must contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief.”
supplied).
Fed. R. Civ. P. 8(a)(2) (emphasis
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 as pled,
since only such pleading “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, 210 (3d Cir.
2009) (citation omitted).7
Thus, the Court is obligated to disregard any conclusory
allegations proffered in the complaint. See id. at 201-11.
7
For
Plausibility “asks for more than a sheer possibility that
a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)).
Therefore, when the facts pled only suggest a “mere possibility
of misconduct,” they necessarily fail to show that the plaintiff
is entitled to relief. Fowler, 578 F.3d at 211 (quoting Iqbal,
556 U.S. at 679).
8
example, the Court should ignore legal conclusions or factually
unsupported accusations which merely state that “the-defendantunlawfully-harmed-me” or bold self-serving averments that the
plaintiff has a viable claim.
See Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In the
same tune, a plaintiff’s promises to plead a viable claim (based
on a hope that the facts might be determined upon discovery)
cannot be pled in lieu of plausible, already known facts.
[T]he question of sufficiency of pleadings does not
turn on the discovery process. See Twombly, 550 U.S.]
at 559. The plaintiff is not entitled to discovery
where the complaint alleges any of the elements
“generally,” i.e., as a conclusory allegation, since
Rule 8 does not allow pleading the bare elements of the
cause of action and affixing the label “general
allegation” in hope of developing facts through
discovery.
In re Synchronoss Secs. Litig., 705 F. Supp. 2d 367, 394 (D.N.J.
2010) (quoting Iqbal, 129 S. Ct. at 1949-54) (original brackets
and ellipsis removed).
B.
THE EIGHTH AMENDMENT TEST
A Section 1983 action applies only to state actors, it is
not available to federal prisoners.
The federal counterpart of
the same is a Bivens action alleging deprivation of a
constitutional right.
See Brown v. Philip Morris, Inc., 250 F.3d
789, 801 (3d Cir. 2001) (“A Bivens action . . . is the federal
equivalent of the § 1983 cause of action against state actors,
[it] will lie where the defendant has violated the plaintiff's
9
rights under color of federal law”); see also Tavarez v. Reno, 54
F.3d 109, 110 (2d Cir. 1995) (the elements of a Bivens claim are:
(a) “that a defendant acted under color of federal law”; and (b)
“to deprive plaintiff of a constitutional right”).8
For the purposes of Eighth Amendment challenges asserting
denial of medical care, the Court must determine whether the
asserted facts show: “(i) a serious medical need, and (ii) acts
or omissions by prison officials that indicate deliberate
indifference to that need.”
Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003) (emphasis supplied);
see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999);
Estelle v. Gamble, 429 U.S. 97, 103 (1976); White v. Napoleon,
897 F.2d 103, 109 (3d Cir. 1990); Monmouth Cnty. Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
An inmate’s disagreement with medical professionals “as to
the proper medical treatment” cannot support an Eighth Amendment
claim.
See Lanzaro, 834 F.2d at 346.
Likewise, an allegation
that a doctor or medical practitioner was negligent cannot state
a claim of constitutional magnitude. See Estelle, 429 U.S. at
106.
At most, “it is medical malpractice” not cognizable in
constitutional review.
Id. at 107.
8
Moreover, a medical
But see Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001)
(the scope of review and ensuing availability of causes of action
under Bivens is narrower and more limited than under § 1983).
10
practitioner’s disagreement with another medical practitioner’s
professional judgment (or with the inmate’s self-diagnosis or the
inmate’s opinion as to the needed or preferred treatment or
tests) is not actionable.
See Napoleon, 897 F.2d at 110; see
also Gatewood v. Hendrick, 368 F.2d 179 (3d Cir. 1966), cert.
denied, 386 U.S. 925 (1967); accord Alsina-Ortiz v. Laboy, 400
F.3d 77 (1st Cir. 2005) (a doctor’s failure to respond to certain
request for services by the inmate, in context of the doctor’s
continued and regular services, did not deprive the inmate of a
meaningful treatment); Ford v. Lane, 714 F. Supp. 310 (N.D. Ill.
1989) (“A medical decision not to order an X-ray, or like
measures, does not represent cruel and unusual punishment"); cf.
Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973) (allegations of
mere differences of opinion over matters of medical judgment fail
to state a claim); Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970)
(a difference of opinion between physician and patient cannot
sustain a claim under § 1983); Goff v. Bechtold, 632 F. Supp. 697
(S.D. W. Va. 1986) (denial of preferred course of treatment does
not infringe constitutional rights).
Hence, allegations of brief
delays in treatment, denial of preferred treatment or tests,
negligent or unsuccessful medical treatment, medical malpractice,
etc., fail to state a plausible claim giving rise to a viable §
1983 or Bivens action, especially if the record shows continuous
treatment of and attention to the litigant’s medical needs.
11
C.
LEAVE TO AMEND
At this juncture, Petitioner offered this Court no factual
allegations stating a plausible Eighth Amendment claim.
All he
has offered was his bald assertion that he was facing imminent
death, but that position was shown meritless by Respondent’s
submission.
Thus, while this Court cannot rule out that
Petitioner, if allowed an opportunity to file an amended
pleading, might state a plausible Eighth Amendment claim within
the meaning of Iqbal, read in conjunction with the substantive
test detailed supra, the Court, as of now, has no basis to
conclude that Petitioner’s challenges state such a claim.
Hence,
Petitioner will be allowed to detail the facts of his challenges,
if any, in light of the guidance provided to him herein.
See
Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002);
see also Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend
is freely given).
The Court, however, stresses that Petitioner should not
misconstrue this leave to amend as dispensing with Petitioner’s
obligation to state the actual facts of the alleged
constitutional wrongs he suffered, if any, and to identify the
actual wrongdoers, if any, personally implicated in those wrongs.
Cf. In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256,
276-77 (3d Cir.2006) (a plaintiff must assert all the essential
factual background that would accompany “‘the first paragraph of
12
any newspaper story’ — that is, the ‘who, what, when, where and
how’ of the events at issue”) (citations omitted).
It follows
that Petitioner’s generic references to his warden, in the
warden’s capacity of a supervising officer, shall not be repeated
in the amended pleading, since such references cannot sustain a
viable claim.
“A defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.”
Solan v. Ranck, 326 F. App’x 97, 100-01 (3d Cir. 2009), cert.
denied, 558 U.S. 884 (2009) (quoting Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988) (internal quotations omitted)).
A
civil complaint must allege the actual “conduct, time, place, and
person responsible.” Id. (quoting Evancho v. Fisher, 423 F.3d
347, 353 (3d Cir. 2005)); see also Iqbal, 556 U.S. at 676
(“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior").
III. APPLICATION FOR APPOINTMENT OF PRO BONO COUNSEL
Finally, the Court takes notice of Petitioner’s request for
appointment of counsel made in conjunction with Petitioner’s
expression of hope that such counsel might discover facts
enabling Petitioner to state a viable claim.
As explained supra, Petitioner is not entitled to discovery,
be it conducted pro se or through counsel, if such discovery is
13
sought in hope to detect whether Petitioner has a viable claim to
plead.
Accord In re Ins. Brokerage Antitrust Litig., 2007 U.S.
Dist. LEXIS 25632, at *119 (D.N.J. Apr. 5, 2007) (citing In Re
Silicon Graphics Sec. Litig., 183 F.3d 970 (9th Cir. 1999), for
the observation that, without examination of the actual facts
pled, the court cannot distinguish a sufficient complaint from a
boiler-plate “fishing expedition”), aff’d, 579 F.3d 241 (3d Cir.
2009).
Accordingly, Petitioner is not entitled to appointment of
counsel at this juncture, be it for the purposes of discovery or
any other purposes preceding this Court’s findings that: (a)
Petitioner stated a plausible claim; and, in addition, (b) the
claim is such that it warrants appointment of pro bono counsel.
In determining whether to appoint pro bono counsel, the
Court must consider the litigant’s financial circumstances, his
ability to present his case, the complexity of the legal issues
involved, the need for extensive discovery, and the likelihood of
credibility determinations or expert testimony, etc.
v. Grace, 6 F.3d 147 (3d Cir. 1993)).
See Tabron
Thus, this Court could
give a consideration to appointing counsel only if an indigent
plaintiff actually states a plausible claim entailing the
aforesaid complexities.
See id. at 156 (“‘Before the court is
justified in exercising its discretion in favor of appointment,
it must first appear that the claim has some merit in fact and
14
law’”) (quoting, inter alia, Maclin v. Freake, 650 F.2d 885, 887
(7th Cir. 1981)).
Here, Petitioner has neither established his indigence nor
stated a plausible claim.
Moreover, it appears that there is
little, if any, discovery needed in light of Respondent’s filing
of 186 pages of Petitioner’s prison and medical records.
And,
while Petitioner’s medical history might be complex, the legal
issues implicated here are well-settled and straight-forward.
At
this juncture, appointment of counsel would be both premature and
at odds with both the letter and spirit of Tabron.
Such
appointment will be denied.9
III. CONCLUSION
For the foregoing reasons, the Court will direct the Clerk
to commence a new and separate Bivens matter for Petitioner.
With regard to such new and separate Bivens matter, Petitioner
will be denied IFP status; however, he will be allowed an
opportunity to show cause that prepayment of the fee would be
unduly burdensome for him in light of his minimal life
necessities.
Petitioner’s statement filed in this matter jointly
with his IFP application will be construed as his original Bivens
complaint; the so-construed original complaint will be dismissed
9
Such denial will be without prejudice to renewal of
Petitioner’s application in the event Petitioner forms a bona
fide belief that such appointment might be warranted in light of
the guidance provided to Petitioner in this Opinion.
15
for failure to state a claim upon which relief can be granted.
Said dismissal, however, will be without prejudice to
Petitioner’s submission of a timely amended complaint naming the
proper defendants, if any, and stating Petitioner’s facts, if
any, that amount to a plausible constitutional claim in light of
the guidance provided to him supra.
Mindful of Petitioner’s statement that he was not provided
with certain unspecified mail, this Court will liberally construe
that statement as suggesting that Respondent’s submission,
docketed in this matter as Docket Entries Nos. 3, 3-1, 3-2, 3-3
and 3-4, might have not been served upon Petitioner.
Thus,
Respondent will be directed to serve the same upon Petitioner and
file an affidavit of service (or file an affidavit verifying that
such service was already executed).10
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: December 19, 2013
10
Out of an abundance of caution, this Court, acting sua
sponte, will direct the Clerk to seal Docket Entries Nos. 3-1, 33 and 3-4, in light of Petitioner’s medical records contained
and/or discussed therein. The same records will be filed in the
civil action that would be commenced for Petitioner.
16
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