DUNN v. SAMUELS et al
OPINION. Signed by Judge Renee Marie Bumb on 7/6/16. (jbk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHARLES E. SAMUELS, Jr., et al.,
CIV. NO. 16-3558(RMB)
RENÉE MARIE BUMB, U.S. District Judge
This matter comes before the Court upon Plaintiff’s submission
of a prisoner civil rights complaint. (Compl., ECF No. 1.) Plaintiff
is confined in the Federal Correctional Institution (“FCI”) in Fort
Dix, New Jersey. (Id., ECF No. 1 at 3.) He failed to pay the $400
filing fee (including a $50 administrative fee) or to alternatively
submit an application to proceed in forma pauperis pursuant to 28
U.S.C. § 1915(a).
28 U.S.C. § 1915(a) provides that a prisoner seeking to bring
a civil action without prepayment of fees shall submit an affidavit
indicating the person is unable to pay such fees, and shall also
“submit a certified copy of the trust fund account statement for the
prisoner for the 6-month period immediately preceding the filing of
the complaint . . . obtained from the appropriate official of each
prison at which the prisoner is or was confined.” Plaintiff has not
done so, and this case will be terminated. See Local Rule 5.1(f)
(“[a]ny papers received by the Clerk without payment of such fees
as may be fixed by statute . . . shall be marked "received"); see
28 U.S.C. § 1914 (establishing filing fee). Plaintiff will be given
the opportunity to reopen this matter by paying the filing fee or
submitting a properly completed IFP application.
SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(b) and § 1915A
After Plaintiff pays the filing fee or is granted in forma
pauperis status, the Court is required to review a prisoner’s civil
rights complaint under 28 U.S.C. § 1915(e)(2)(b) and § 1915A.1
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.
This Court’s conclusive screening of Plaintiff’s claims is reserved
until he pays the filing fee or properly obtains in forma pauperis
status. See Izquierdo v. New Jersey, 532 F. App’x 71 (3d Cir. July
25, 2013) (district court may decide whether to dismiss the complaint
under 28 U.S.C. § 1915(e)(2) after leave to proceed IFP is granted).
Plaintiff alleges the following in his Complaint. Charles E.
Samuels Jr. is the Director of the Federal Bureau of Prisons, and
he is responsible for all civil rights violations by BOP employees
and agents who violated Plaintiff’s constitutional rights from 2012
through 2016. (Compl., ¶4(b)). J.L. Norwood, the Regional Director
of the Federal Bureau of Prisons, denied Plaintiff’s tort claim and
all administrative remedies to date. (Id., ¶4(c)).
Dr. Nicolette Turner-Foster is a doctor at FCI Fort Dix who
misdiagnosed Plaintiff’s condition as gout, and failed to approve
a needed operation. (Id., ¶4(d)). Rolando Newland, the Clinical
Director at FCI Fort Dix, is responsible for Dr. Turner-Foster’s
misdiagnosis. (Id., ¶4e)). Dr. Rivi Sood, also a doctor at FCI Fort
Dix, misdiagnosed Plaintiff with gout on February 1, 2013, and again
on August 25, 2014. (Id., ¶4(f)).
D. Mclain, D.O. is the Clinical Director at FCI Beckley.2 (Id.,
¶4(g)). Dr. Mclain initially misdiagnosed Plaintiff’s medical
condition on May 29, 2009. (Id.) Dr. Jennifer Jung is a radiologist
at the University of Maryland who misread Plaintiff’s x-ray (Id.,
Plaintiff attached a number of exhibits to his Complaint.
“Because the court can take judicial notice of facts [attached as
FCI-Beckley is located in Beaver, West Virginia. Available at
an exhibit to a complaint] in adjudicating a motion to dismiss under
12(b)(6), and the standards under 12(b)(6) and under the PLRA are
the same regarding complaints that fail to state a claim, the court
may likewise take judicial notice of facts in its sua sponte screening
of complaints under the PLRA.” Evans v. Rozum, Civ. Action No.
07-230J, 2008 WL 5068963 at *6 (W.D. Pa. Nov. 24, 2008). One of the
exhibits to the Complaint is the tort claim Plaintiff submitted to
the Bureau of Prisons Northeast Regional Office. (Compl., Ex. ECF
No. 1-2 at 1-3.) In his tort claim, Plaintiff stated:
The failure to properly diagnose and provide
care and treatment for a “Heel Spur” constitutes
negligence and/or deliberate indifference to a
serious medical condition.
The factual basis for this tort claim is that
for nearly six years I have repeatedly
complained about swelling and severe pain in my
right foot, which medical condition was
initially diagnosed as GOUT, and thus, the
treatment prescribed was a suggestion to
purchase Tylenol from the commissary, to be
careful of whatever I eat, and to return to sick
call as needed.
Subsequent ex rays [sic] revealed that I was
erroneously diagnosed as having gout, and that
the swelling and pain I was suffering was the
result of a prior injury to my foot. However,
rather than recommending that my foot be broken
and re-set, as I was specifically told was
absolutely necessary, the only medical care and
treatment I received was a prescription for
ibuprofen, heel cups and medical shoes, which
incidentially [sic] did not stop the swelling
and pain from continuing almost on a daily
Finally my medical condition was diagnosed as
“MTP with Superimposed DID Heel Spur.” However,
my persistent requests to have said heel spur
surgically removed, or at the very least, a
podiatry consultation, were both denied. . .
(Id., at 3.)
Another attachment to the Complaint is an affidavit Plaintiff
submitted with his Administrative Claim No. TRT-NER-2015-03826.
(Id., at 11.) In his affidavit, Plaintiff said he was suffering pain
in his right foot and toe since 2009. Dr. Turner-Foster looked at
his foot and diagnosed gout. Plaintiff was prescribed NSAIDS for four
years until he saw a podiatrist, who said he did not have gout, he
had a chronic non-healed bone fracture that requires extensive
medications Plaintiff was taking for years, his creatine levels are
elevated. Plaintiff’s pain and suffering has been unbearable at
Turner-Foster first saw Plaintiff at FCI Fort Dix in November 2011,
when she diagnosed Plaintiff with gout. (Compl., Ex. ECF No. 1-2 at
14.) Plaintiff underwent a podiatry consultation on May 13, 2015,
when he learned he had a chronic non-healed bone fracture, not gout.
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.
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
Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”) subjects the United States
to liability for the tortious conduct of federal government employees
occurring within the scope of employment. 28 U.S.C. §§ 1346(b), 2671
et seq. Before this Court can exercise jurisdiction over Plaintiff’s
FTCA claim, Plaintiff must meet the criteria of 28 U.S.C. §
1346(b)(1), which contains six threshold requirements. CNA v. U.S.,
535 F.3d 132, 141 (3d Cir. 2008). An FTCA claim must be made:
 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 or omission of
any employee of the Government  while acting
within the scope of his office or employment,
 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.
Id. (quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994) (quoting 28
U.S.C. § 1346(b)(1)) (alterations in original)).
Plaintiff seeks to bring his negligence claims for misdiagnosis
under the Federal Tort Claims Act, 28 U.S.C. § 2675 et seq., but he
has not included the United States as a defendant in this action.
FTCA claims are not properly brought against federal employees.
Plaintiff should file an amended complaint alleging his FTCA claims
solely against the United States.
“A plaintiff cannot institute an FTCA suit until he or she
presents the claim to a federal agency and receives a final decision
on the claim.” Accolla v. U.S. Government, 369 F.3d App’x 408 (3d
Cir. 2010) (citing 28 U.S.C. § 2675(a); see McNeil v. United States,
508 U.S. 106, 112 (1993)). If the agency has not acted on the claim
within six months, the claimant may treat the failure to issue a
administrative remedies under the FTCA “is jurisdictional and cannot
be waived.” Bialowas v. U.S., 443 F.2d 1047, 1049 (3d Cir. 1971).
Plaintiff alleged his administrative tort claim was denied in
October 2015, and he requested reconsideration. However, Plaintiff
did not indicate when, if ever, he received a response to his request
for reconsideration. Plaintiff should submit an amended complaint
to establish that this Court has jurisdiction over his FTCA claim,
either because the agency failed to issue a decision within six months
of his request for reconsideration or because he received the final
agency decision, and then filed this action within six months.
In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 395 (1971), the Supreme Court held that
damages may be obtained for injuries caused by “a violation of the
Fourth Amendment by federal officials.” Bivens also extends to Eighth
Amendment claims by prisoners. See e.g., Carlson v. Green, 446 U.S.
14 (1980). In the limited settings where Bivens applies, “the implied
cause of action is the ‘federal analog to suits brought against state
officials under ... 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at 675–76
(quoting Hartman v. Moore, 547 U.S. 250, 254 n. 2 (2006)). “If a
deprivation, he may bring a Bivens claim against the offending
individual officer, subject to the defense of qualified immunity.”
Corr. Services. Corp. v. Malesko, 534 U.S. 61, 72 (2001).
Inadequate Medical Care Under the Eighth Amendment
Bivens actions have been extended to Eighth Amendment claims
based on inadequate medical care of prisoners. See e.g. Ruiz v.
Federal Bureau of Prisons, 481 F. App’x 738, 741 (3d Cir. 2012)
(prisoner’s claim against BOP Director “could have proceeded if
properly pled [but] he did not allege in any of his complaints that
. . . had any personal involvement in the denial of
his medical care”) (citing Iqbal, 556 U.S. 662; Argueta v. U.S.
Immigration & Customs Enforcement, 643 F.3d 60, 71–72 (3d Cir. 2011).
To state an Eighth Amendment claim, “a prisoner must show that the
defendants exhibited ‘deliberate indifference to serious medical
needs.’” Tsakonas v. Cicchi, 308 F. App’x 628, 631-32 (3d Cir. 2009)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Supervisors
may be liable for their subordinates’ Eighth Amendment violation “if
it is shown that they, ‘with deliberate indifference to the
consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm.’” Id.
(quoting A.M. ex rel. J.M.K. v. Luzerne County Juvenile Det. Ctr.,
372 F.3d 572, 586 (3d Cir.2004) (quoting Stoneking v. Bradford Area
Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). There is no liability
unconstitutional conduct is responding to an administrative remedy
request. See Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006)
(alleged inappropriate response to later-filed grievances about
medical treatment do not establish personal involvement in the
a. Claims against supervisory officials
Plaintiff’s claims against Charles E. Samuels, Jr., J.L.
Norwood, and Rolando Newland are based on their supervisory roles
over the prison and/or over medical staff at FCI Fort Dix. For Bivens
actions, as with liability under 42 U.S.C. § 1983, a supervisor is
not liable solely for the unconstitutional conduct of an employee.
Dinote v. Danberg, 601 F. App’x 127, 131 (3d Cir. 2015) (citing Barkes
v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2015) reversed
on other grounds by Taylor v. Barkes, 135 S.Ct. 2042 (2015).
Therefore, Plaintiff has improperly pled claims against Samuels,
Norwood and Newland.
Claims against Drs. Turner-Foster, Sood, Mclain
Plaintiff alleges Drs. Turner-Foster, Sood, Mclain and Jung
misdiagnosed him. “Mere medical malpractice cannot give rise to a
violation of the Eighth Amendment.” White v. Napolean, 897 F.2d 103,
108 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Claims of
misdiagnosis sound in negligence, and do not constitute deliberate
indifference. Weigher v. Prison Health Services, 402 F. App’x 668,
671 (3d Cir. 2010). Therefore, Plaintiff has improperly pled Bivens
claims based on misdiagnosis against Drs. Turner-Foster, Sood,
Mclain and Jung.
Plaintiff further alleged that Dr. Turner-Foster failed to
approve surgery for his heel spur, and he continues to suffer pain
as a result. Although failure to prescribe the treatment an inmate
desires does not violate the Eighth Amendment, a doctor may be liable
for deliberate indifference to a serious medical need if the doctor
“insisted on continuing courses of treatment that the doctor knew
were painful, ineffective or entailed substantial risk of serious
harm to the prisoner.” White, 897 F.2d at 109; see Monmouth County
Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.
1987) (“mere disagreement as to the proper medical treatment” does
not support a claim of an Eighth Amendment violation). Plaintiff has
not alleged sufficient facts to show that Dr. Turner-Foster insisted
on continuing an ineffective course of treatment after he was
diagnosed with a heel spur. Plaintiff may cure this deficiency by
alleging additional facts concerning his communications with Dr.
For the reasons discussed above, in the accompanying Order filed
herewith, the Court will administratively terminate this action.
Plaintiff may reopen this action by paying the $400 filing fee or
alternatively submitting a properly completed IFP application.
Plaintiff will also be permitted to file an amended complaint to cure
the deficiencies in the present complaint.
s/RENÉE MARIE BUMB__________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
DATED JULY 6, 2016
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