Galloway v. Warden et al

Filing 7

Memorandum of Opinion and Order For the reasons stated above, this action is dismissed pursuant to 28 U.S.C. §§ 1915(e) and 1915A to the extent it alleges claims under 42 U.S.C. § 1983 and Bivens. The Court further certif ies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this dismissal could not be taken in good faith. This action may proceed only to the extent it purports to allege tort claims for malpractice against Dr. Dunlop and Nurse Tomko. Judge Benita Y. Pearson on 6/30/2016. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHARLES LEONARD GALLOWAY,
Plaintiff,
v.
WARDEN FCI - ELKTON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 4:16cv572

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

Pro se Plaintiff Charles Galloway, a federal prisoner incarcerated at FCI Elkton, has filed
this in forma pauperis civil action against the “Warden,” Dr. Dunlop, and Nurse M. Tomko,
contending he is asserting claims under 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and for “malpractice.”
The only allegations Plaintiff sets forth in his complaint are that he went to sick call, but
the “doctor” said he was faking. After he stood up to explain, Nurse Tomko called an emergency
and he was sent to a special housing unit. Plaintiff alleges he had an aneurysm while in
segregation and that Dr. Dunlop did not properly examine him. He asks the Court to vacate his
sentence and give him $10 million in damages.1

1

Plaintiff filed a previous civil rights action arising from these same facts against the
“FCI Medical Department,” which this Court dismissed pursuant to 28 U.S.C. § 1915A. See
Galloway v. FCI Medical Department, Case No. 4:15 CV 2276.

(4:16cv572)

Standard of Review
District courts are required, under 28 U.S.C. §§ 1915(e) and 1915A, to screen and dismiss
before service any portion of an in forma pauperis action, or any action in which a prisoner seeks
redress from an officer or employee of a governmental entity, that the court determines is
frivolous or malicious, fails to state a claim on which relief can be granted, or seeks relief from a
defendant who is immune from such relief. See Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir.
2010). In order to state a claim on which relief may be granted, a complaint must contain
sufficient factual matter, accepted as true, to state claim to relief that is plausible on its face. See
id. (holding that the dismissal standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) governs dismissals under 28 U.S.C. §§
1915(e) and 1915A).
Analysis
After review, the Court finds that Plaintiff’s complaint may proceed past this initial
screening stage only to the extent it purports to allege tort “malpractice” claims based on conduct
of Dr. Dunlop and Nurse Tomko.2 ECF No. 1-1 at PageID #: 7. Plaintiff’s complaint, however,

2

Tort claims based on conduct of federal employees acting within the scope of their
employment may be brought only against the United States pursuant to the Federal Tort Claims
Act. See Rector v. U.S., 243 F. App’x 976, 978 (6th Cir. 2007). Before a plaintiff may pursue a
claim under the FTCA, he must first exhaust his administrative remedies. See id. Construed
liberally in his favor, Plaintiff’s filings suggest that he contends he has properly exhausted his
administrative remedies under the FTCA. See ECF No. 4.
2

(4:16cv572)

must be dismissed pursuant to 28 U.S.C. §§ 1915(e) and 1915A to the extent it alleges claims
under 42 U.S.C. § 1983 and Bivens.
Because Plaintiff is a federal prisoner suing federal prison officials and employees, he has
no viable claim under 42 U.S.C. § 1983, as that statute only prohibits constitutional violations by
defendants who act under color of state law. See 42 U.S.C. § 1983.
Bivens provides federal prisoners a limited cause of action for damages against individual
federal defendants alleged to have violated their constitutional rights. Plaintiff’s allegations,
however, are insufficient to allege a plausible Bivens claim. The complaint fails to allege a
plausible claim against the Warden because it contains no allegations of any conduct whatsoever
on the part of the Warden, and it is well-settled that respondeat superior alone cannot form the
basis of liability in a Bivens action. See Okoro v. Scibana, 63 F. App’x 182, 184 (6th Cir. 2003).
The allegations in the complaint are also insufficient to support a plausible Bivens claim
against Doctor Dunlop and Nurse Tomko. Prison officials violate a prisoner’s constitutional
rights under the Eighth Amendment with regard to medical care only when they are “deliberately
indifferent” to the prisoner’s “serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106
(1976). “Deliberate indifference is characterized by obduracy or wantonness—it cannot be
predicated on negligence, inadvertence, or good faith error.” Reilly v. Vadlamudi, 680 F.3d 617,
624 (6th Cir. 2012). To prove the required level of culpability, a plaintiff must allege facts
suggesting the official in question “(1) subjectively knew of a risk to the inmate’s health, (2)
drew the inference that a substantial risk of harm to the inmate existed, and (3) consciously

3

(4:16cv572)

disregarded that risk.” Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010). Allegations
of medical malpractice or negligent diagnosis and treatment are insufficient to state a
constitutional claim. Jennings v. Al-Dabagh, 97 F. App’x 548, 549–50 (6th Cir. 2004).
Even liberally construed, Plaintiff’s few, generalized allegations do not support plausible
inferences that either Dr. Dunlop or Nurse Tomko were “deliberately indifferent” to his medical
needs. His allegations do not support plausible inferences that Dr. Dunlop and Nurse Tomko
subjectively knew, and drew an inference of a substantial risk of harm to Plaintiff’s health at the
time he presented in sick call. To the contrary, Plaintiff’s allegations at the most suggest Dr.
Dunlop and Nurse Tomko subjectively believed that Plaintiff was faking a medical condition and
acting inappropriately. Even assuming Dr. Dunlop and Nurse Tomko were incorrect in their
assessments, and/or negligently failed to properly diagnosis and treat the plaintiff, such
allegations are insufficient to support constitutional claims for “deliberate indifference” under
Bivens.
Conclusion
For the reasons stated above, this action is dismissed pursuant to 28 U.S.C. §§ 1915(e)
and 1915A to the extent it alleges claims under 42 U.S.C. § 1983 and Bivens. The Court further
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this dismissal could not be
taken in good faith.
This action may proceed only to the extent it purports to allege tort claims for malpractice
against Dr. Dunlop and Nurse Tomko. The Clerk’s Office is therefore directed to forward the

4

(4:16cv572)

appropriate documents to the U.S. Marshal for service of process on these defendants for
purposes of tort claims, and a copy of order shall be included with the documents to be
served.

IT IS SO ORDERED.

June 30, 2016
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

5