ABDUL-HAKEEM v. ANGUD et al
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 3/22/2016. (jbk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
IBN ABDUL-HAKEEM,
Plaintiff,
v.
M. ANGUD, et al.,
Defendants.
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CIV. ACTION NO. 16-548 (RMB)
OPINION
RENÉE MARIE BUMB, U.S. District Judge
This matter comes before the Court upon Plaintiff’s filing of
a prisoner civil rights complaint.
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(Compl., ECF Nos. 1, 3.)
Plaintiff is a prisoner confined in the Federal Correctional
Institution in Fairton, New Jersey (“FCI-Fairton”). (Id.) He brings
this civil action seeking monetary damages and injunctive relief for
alleged constitutional violations and medical malpractice claims.
(Id.)
Plaintiff seeks to proceed in forma pauperis pursuant to 28
U.S.C. §§ 1915(a) and 1915(A). The Court has reviewed Plaintiff’s
1
The Court administratively terminated Plaintiff’s initial
complaint because it was unsigned. Plaintiff has now submitted a
signed complaint, and it incorporates material from the initial
complaint. Therefore, the Court will treat both documents as
comprising the operative complaint.
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IFP application (ECF No. 1-3), and it establishes Plaintiff’s
inability to pay the filing fee. Plaintiff’s IFP application will
be granted; and prison officials will begin to deduct installment
payments for the filing fee from Plaintiff’s trust account, as
required by 28 U.S.C. § 1915(b)(1).
The Court now reviews Plaintiff’s Complaint, as required by 28
U.S.C. § 1915(e)(2)(b) and § 1915A. The Court must dismiss any claims
that are: (1) frivolous or malicious; (2) fail to state a claim on
which relief may be granted; or (3) seek monetary relief against a
defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B);
28 U.S.C. § 1915A.
II.
DISCUSSION
A.
The Complaint
Plaintiff brings this civil action against M. Angud, Satish
Limbekar, Tonya McClellan, Shirley Nati, Amira Hussien, Mrs. Scott,
J.T. Shartle, Mrs. Smith, and “all staff of FCI Fairton.” (Compl.,
ECF Nos. 1, 3.)
In 2007, Plaintiff sustained a gunshot wound in the
right foot, and the bullet remained in his foot. (Compl., ECF No.
3 at 5.) The following events took place at FCI Fairton. (Compl.,
ECF No. 1 at 11.) Plaintiff saw Dr. Morales on August 30, 2010, and
complained about chronic and severe pain in his right foot. (Id.)
Dr. Morales did not recommend removal of the bullet. (Id.) Plaintiff
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saw MLP Satish Limbekar for the same complaint on August 11, 2011,
and Limbekar did nothing for Plaintiff. (Id.) On December 2, 2011,
Limbekar prescribed Ibuprofen for Plaintiff’s foot pain. (Id.)
Plaintiff’s foot pain continued, and Limbekar did nothing during
their subsequent clinical encounters in 2012. (Id. at 6.)
Plaintiff continued to complain of severe pain in his right foot
from 2013 through 2015. (Id.) The only treatment he was offered was
Ibuprofen. (Id.) Plaintiff alleged, “[t]hroughout all these years
of complaining about this problem with my right foot, I informed all
of the defendants mentioned in this civil complaint . . . I have
contact and informed each one of the defendants named in this civil
complaint
more
than
once
without
receiving
adequate
medical
treatment.” (Id.)
Plaintiff the failure to remove the bullet from his foot has
caused chronic and severe nerve damage. (Id.) He seeks damages for
violation of the Eighth Amendment, and injunctive relief directing
Defendants to order removal of the bullet from his foot. (Compl.,
ECF No. 1 at 13.) Plaintiff also asserts jurisdiction under the
Federal Tort Claims Act. (Compl., ECF No. 3 at 2.)
B.
Standard of Review
A pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
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8(a)(2). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “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.”
Id. (quoting Twombly, 550 U.S. at 556.)
“[A] court must accept as true all of the allegations contained
in a complaint.” Id. A court need not accept legal conclusions as
true. Id. Legal conclusions, together with threadbare recitals of
the elements of a cause of action, do not suffice to state a claim.
Id. 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. at
679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002).
C.
FTCA Claims
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Plaintiff asserts jurisdiction under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2690. Claims are cognizable
under the FTCA if they are
[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
[Federal] 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.
Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477 (1994) (quoting
28 U.S.C. § 1346(b)). Plaintiff has not named the United States as
a defendant, and the United States is the only proper defendant to
an FTCA claim. CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir.
2008). Therefore, the Court will dismiss Plaintiff’s FTCA claim
without prejudice. Plaintiff may amend the Complaint to assert his
FTCA claim solely against the United States, although there is
another hurdle he must first overcome.
In any action seeking tort damages for personal injury against
the
United
States,
the
plaintiff
must
first
exhaust
administrative remedies. 28 U.S.C. § 2675(a) provides:
An action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury
or death caused by the negligent or wrongful act
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his
or omission of any employee of the Government
while acting within the scope of his office or
employment, unless the claimant shall have
first presented the claim to the appropriate
Federal agency and his claim shall have been
finally denied by the agency in writing and sent
by certified or registered mail.
This a jurisdictional requirement, and if the claim has not been
properly exhausted, the court must dismiss it. McNeil v. United
States, 508 U.S. 106, 112 (1993)). Therefore, if Plaintiff wishes
to file an amended complaint with an FTCA claim against the United
States, he should indicate in the amended complaint when he exhausted
his administrative remedies.
Plaintiff may also wish to consider that there is a two-year
statute of limitations for FTCA claims. 28 U.S.C. § 2401(b) provides:
A tort claim against the United States shall be
forever barred unless it is presented in writing
to the appropriate Federal agency within two
years after such claim accrues or unless action
is begun within six months after the date of
mailing, by certified or registered mail, of
notice of final denial of the claim by the agency
to which it was presented.
D.
Statute of Limitations on Bivens Claims
In addition to his FTCA claim, Plaintiff alleged violations of
the Eighth Amendment by federal prison officials and medical
providers within the prison. “[A] district court may sua sponte
dismiss a claim as time-barred under 28 U.S.C. § 1915(A)(b)(1) where
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it is apparent from the complaint that the applicable limitations
period has run.” Hunterson v. Disabato, 244 F. App’x 455, 457 (3d
Cir. 2007). There is a two-year statute of limitations for Eighth
Amendment claims brought under Bivens.2 See Wooden v. Eisner, 143 F.
App’x 493, 494 (“a Bivens claim in which the plaintiff is alleging
personal injury has a two-year statute of limitations.”) A Bivens
claim accrues and the statute of limitations begins to run “when the
plaintiff knows, or has reason to know, of the injury that forms the
basis of the action.” Wooden, 143 F. App’x at 494 (quoting Sameric
Corp. Of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998)).
Plaintiff filed this action in March 2016. Therefore, his claims
that Dr. Ruben Morales and Satish Limbekar denied his request to have
the bullet removed from his right foot prior to March 2014 are
untimely and will be dismissed without prejudice. Plaintiff may amend
his complaint if he can allege any facts that bring these claims
within the two-year statute of limitations. Plaintiff’s claims
against Tony McClellan and M. Angud accrued within the limitations
period will be addressed below.
E.
The Elements of an Eighth Amendment Claim
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In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, the Supreme Court recognized a federal cause of action
for damages based on a constitutional violation by a person acting
under color of federal authority. 403 U.S. 388 (1971.)
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For liability based on a constitutional violation under Bivens,
the plaintiff must allege the personal involvement of each defendant
in the constitutional violation because vicarious liability does not
apply. Iqbal, 556 U.S. at 676. The factors necessary to establish
a Bivens action will vary based on the constitutional provision at
issue. Id. The Eighth Amendment proscribes deliberate indifference
to the serious medical needs of prisoners. Estelle v. Gamble, 429
U.S. 97, 104 (1976).
Deliberate indifference is more than negligence. Farmer v.
Brennan, 511 U.S. 825, 835 (1994) (citing Estelle, 429 U.S. at 104).
“[D]eliberate indifference constitutes the ‘unnecessary and wanton
infliction of pain.’” Estelle, 429 U.S. at 104 (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)).
Deliberate indifference may be found when a prison official
“knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Farmer, 511 U.S. at 837. Deliberate
indifference by a prison official may be shown where the official:
(1) knows of the prisoner’s need for medical treatment but denies
it; (2) delays necessary treatment for a non-medical reason; or (3)
prevents a prisoner from receiving needed or recommended medical
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treatment. Rouse v. Plantier, 183 F.3d 192, 197 (3d Cir. 1999). A
prison
official
who
is
not
a
physician
is
not
deliberately
indifferent “simply because [he or she] failed to respond directly
to the medical complaints of a prisoner who was already being treated
by the prison doctor.” Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.
1993).
Mere disagreement with the medical treatment provided is
insufficient to establish deliberate indifference. Spruill v.
Gillis, 372 F.3d 218, 235 (3d Cir. 2004). On the other hand, the
deliberate
indifference
standard
is
met
“when
a
doctor
is
‘intentionally inflicting pain on [a] prisoner[].’” Id. (quoting
White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990)).
Plaintiff
does
not
allege
what
the
following
defendants
personally did to violate his constitutional rights or when the
violation occurred:
Shirley Nati, Amira Hussien, Mrs. Scott, and
Mrs. Smith. Therefore, the Court will dismiss claims against these
defendants without prejudice.
Plaintiff’s claim that Ibuprofen was not the proper treatment
for his right foot pain does not rise to the level of an Eighth
Amendment violation.
In an abundance of caution, however, Plaintiff
may state a claim against an individual medical provider, within the
statute of limitations period, whom he told Ibuprofen was not
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effective, but the person deliberately refused to try another
treatment.
See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
The present Complaint fails to state a claim against any prison
official who did not provide medical treatment to Plaintiff because
there is no vicarious liability for a constitutional violation, and
nonmedical prison personnel are entitled to rely on the professional
judgment of the prison doctor who is treating the prisoner, unless
they know or have reason to know medical providers are mistreating
or not treating a prisoner. Therefore, Plaintiff’s claim against the
warden, J.T. Shartle, and Plaintiff’s claim against “all FCI Fairton
staff” shall be dismissed without prejudice. Unless Plaintiff can
allege conduct by each individual defendant that violates his
constitutional rights, and it is not enough that they knew he
disagreed with the treatment provided for his foot, he may not bring
these claims in an amended complaint.
Within the two-year statute of limitations period, Plaintiff
alleged that he had a clinical encounter with Tonya McClellan, and
he complained about severe pain in his right foot. He does not allege
that McClellan refused to provide any treatment, only that he has
not been scheduled to have the bullet removed. This is insufficient
to state a claim against McClellan. A prisoner is not entitled to
the medical treatment of his choice. See Reed v. Cameron, 380 F. App’x
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160, 162 (3d Cir. 2010) (dissatisfaction with prison medical care
is not sufficient to allege violation of Eighth Amendment.)
Plaintiff also alleged that he sent Marilyn Angud a request to
see a foot specialist on June 5, 2015, and although the request was
approved, he has not yet seen the specialist. Plaintiff does not
allege that he asked Angud to treat his pain and she refused. He does
not allege that the delay in scheduling the appointment with a
specialist was done for a non-medical reason. Given that the bullet
has been in his foot since 2007, years before he entered FCI Fairton,
it does not appear that he was at risk of permanent injury by delay
in seeing a specialist. Therefore, the Court will dismiss the claims
against Marilyn Angud without prejudice.
Plaintiff may amend his
claims against McClellan and Angud if he can allege additional facts
showing that they were deliberately indifferent to his pain.
III. CONCLUSION
For the reasons discussed above, in the accompanying Order filed
herewith, the Court will dismiss the Complaint without prejudice.
s/Renee Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: March 22, 2016
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