Quirindongo v. Federal Bureau of Prisons et al
MEMORANDUM AND ORDER: 1) The mtn to dismiss 20 as to Dft BOP is GRANTED.The BOP is terminated as a party in this action.2) The mtn to dismiss 20 as to Dft Warden Martinez is GRANTED without prejudice to Pltf to file an amended complaint asserting claims against him and any other potential dfts, if possible.3) Pltfs amended complaint shall be filed in accordance with the instructions set forth in the accompanying memorandum no later than 7/5/11.4) Failure to timely comply with this order will result in dismissal of thisaction with prejudice. Signed by Honorable Sylvia H. Rambo on 06/16/11 (ma, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FEDERAL BUREAU OF PRISONS,
CIVIL NO. 1:CV-10-01742
Plaintiff Dulcidio Quirindongo, an inmate currently incarcerated at the
United States Penitentiary at Allenwood (“USP-Allenwood”) in White Deer,
Pennsylvania, filed this Bivens1-type action on August 19, 2010, naming the
Federal Bureau of Prisons (“BOP”) and Warden Ricardo Martinez as Defendants.
(Doc. 1.) In the complaint, Plaintiff asserts that Defendants were deliberately
indifferent to his serious medical needs following surgery related to his prostate
Before the court is a motion to dismiss or, in the alternative, for summary
judgment, filed on behalf of Defendants. (Doc. 20.) For the reasons set forth
Bivens actions are the federal counterpart to § 1983 claims brought against state
officials. Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004) (citing Brown v. Philip
Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001)). “[C]ourts have generally relied upon the
principles developed in the case law applying section 1983 to establish the outer perimeters
of a Bivens claim against federal officials.” Schrob v. Catterson, 948 F.2d 1402, 1409 (3d Cir.
below, the court will grant the motion to dismiss with prejudice as to Defendant
BOP and dismiss it from this action. Further, the court will grant the motion to
dismiss as to Defendant Warden Martinez without prejudice to Plaintiff to file an
amended complaint asserting claims, if any, against Defendant Warden Martinez
and any other potential defendants, if possible.
In his complaint, Plaintiff alleges that “[o]n 10-7-2008, while at [USPAllenwood], the plaintiff underwent radical prostatectomy that required major
surgery.” (Doc. 1 at 1.) He alleges that following the surgery, Defendants “(1)
failed to provide the proper standard of care; (2) willfully neglected to maintain a
proper delivery of aftercare; (3) the on site medical staff at USP Allenwood was
untrained to deal with the seriousness of the medical issues of the plaintiff; (4)
plaintiff was not provided with the minimal standard of care for a human being; (5)
and kept the plaintiff in a contaminated, unsanitary environment, post-operatorily
[sic], that caused the plaintiff a major infection.” (Id. at 2.) Plaintiff further alleges
that the lack of Spanish speaking personnel caused delay and/or denial of proper
and adequate medical care because personnel could not understand his complaints.
(Id. at 3.) He also claims that Defendants “repeated[ly] failed to give him proper
medication and competent medical attention.” (Id.)
As relief, Plaintiff seeks an order directing that medical staff be trained to
speak Spanish at USP-Allenwood, monetary damages for pain and suffering, and
an evidentiary hearing.
Plaintiff filed his complaint on August 19, 2010. (Doc. 1.) By order dated
September 1, 2010, the court directed service of the complaint. (Doc. 10.)
Following an enlargement of time, Defendants filed a motion to dismiss, or
in the alternative, for summary judgment, on January 20, 2011. (Doc. 20.)
Plaintiff filed a brief in opposition on February 3, 2011, arguing that Defendants’
motion should be denied because they had failed to comply with three separate
court orders directing them to respond to the allegations in the complaint. (Doc.
26.) There is nothing in the record to support this assertion. Nevertheless, this
motion is ripe for disposition.
Standard of Review - Motion to Dismiss
Defendants have filed a motion which, in part, seeks dismissal of the
complaint on the grounds that Plaintiff’s complaint fails to state a claim upon
which relief can be granted, as provided by Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Specifically, Defendants argue, in part, that Plaintiff has failed to
name the proper party Defendants in his complaint. As the court need not rely on
any accompanying evidentiary documents outside the pleadings to address this
threshold issue, the court will address this motion under the motion to dismiss
Among other requirements, a sound complaint must set forth “a short and
plain statement of the claim showing that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(2). This statement must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Fair
notice” in Rule 8(a)(2) “depends on the type of case – some complaints will require
at least some factual allegations to make out a showing that the pleader is entitled
to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)
(quotation omitted). “[A] situation may arise where, at some point, the factual
detail in a complaint is so undeveloped that it does not provide a defendant the type
of notice of claim which is contemplated by Rule 8.” Id. A plaintiff must provide
“more than labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” to show entitlement to relief. Twombly, 550 U.S. at 555; accord,
e.g., Phillips, 515 F.3d at 231-32; Baraka v. McGreevey, 481 F.3d 187, 195 (3d
Cir. 2007) (the court is not “compelled to accept unsupported conclusions and
unwarranted inferences or a legal conclusion couched as a factual allegation.”)
(quotations and citations omitted)); Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.
2005); see also Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009)
(recognizing that Rule 8 pleading standard “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation”) (quoting Twombly, 550 U.S. at 555).
A defendant may attack a complaint by a motion under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. In deciding a motion to
dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual
allegations in the complaint, Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197,
2200 (2007), and all reasonable inferences permitted by the factual allegations,
Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the
light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.
2007); accord Phillips, 515 F.3d at 233. If the facts alleged are sufficient to “raise
a right to relief above the speculative level” such that the plaintiff’s claim is
“plausible on its face,” a complaint will survive a motion to dismiss. Twombly,
550 U.S. at 555, 570; Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d
227, 234 (3d Cir. 2007); Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007); see
also Iqbal, 129 S. Ct. at 1949 (explaining 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”). Further, when a
complaint contains well-pleaded factual allegations, “a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id. at 1950. However, a court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at
555). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements do not suffice.” Id. at 1949 (citing Twombly, 550 U.S. at
“To decide a motion to dismiss, courts generally consider only the
allegations contained in the complaint, exhibits attached to the complaint and
matters of public record.” Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit to a
motion to dismiss if the plaintiff’s claims are based on the [attached] document[s].”
Pension Benefit, 998 F.2d at 1196. Additionally, “documents whose contents are
alleged in the complaint and whose authenticity no party questions, but which are
not physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see
also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002)
(“Although a district court may not consider matters extraneous to the pleadings, a
document integral to or explicitly relied upon in the complaint may be considered
without converting the motion to dismiss into one for summary judgment.”)
(internal quotation omitted). However, the court may not rely on other parts of the
record in making its decision. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20
F.3d 1250, 1261 (3d Cir. 1994).
When presented with a pro se complaint, the court should construe the
complaint liberally and draw fair inferences from what is not alleged as well as
from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003);
Youse v. Carlucci, 867 F. Supp. 317, 318 (E.D. Pa. 1994). Such a complaint “must
be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson, 127 S. Ct. at 2200 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Finally, in the Third Circuit, a court must grant leave to amend before
dismissing a civil rights complaint that is merely deficient. See, e.g., FletcherHarlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007);
Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213
F.3d 113, 116 (3d Cir. 2000). “Dismissal without leave to amend is justified only
on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v. Parker,
363 F.3d 229, 236 (3d Cir. 2004).
In the instant motion, Defendants argue, inter alia, that they should be
dismissed as parties in this action.2 The court will discuss each Defendant in turn.
In their motion to dismiss, Defendants argue that the BOP should be
dismissed as a party in this Bivens action because the BOP is not a properly named
party. The court agrees.
It is well-settled that a federal agency is not a proper party Defendant in a
Bivens action. As stated in Reynolds v. Federal Bureau of Prisons, Civ. No. 09-
Because the court finds that Plaintiff has failed to name the proper Defendants in this
Bivens action and will grant Plaintiff leave to assert a claim against Warden Martinez and any
other potential defendants, if possible, see infra, the court is not inclined to address Defendants’
other arguments, including one related to exhaustion of administrative remedies, at this stage in
3096, 2010 WL 744127 (E.D. Pa. March 2, 2010),
While a Bivens action may proceed against . . . individual defendants,
the Supreme Court held that a Bivens action cannot be maintained
against a federal agency. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471, 485, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994). Thus, count one
will be dismissed against the BOP and Office of Inspector General on
sovereign immunity grounds. It is well settled that the United States
Government and its agencies are immune from suit absent a waiver.
Id. at 475; Zynger v. Dep’t of Homeland Security, 615 F. Supp. 2d 50,
56 (E.D.N.Y. 2009). No waiver has occurred here.
Reynolds, 2010 WL 744127, at *3. Thus, Defendant BOP will be dismissed from
Defendant Warden Martinez
Defendant Warden Martinez argues that the complaint should be dismissed
as to him because Plaintiff has failed to allege any personal involvement by
Warden Martinez in violating any of Plaintiff’s constitutional rights, and Warden
Martinez cannot be held liable solely on the basis of respondeat superior. The
court agrees that on the basis of respondeat superior, Defendant Martinez is
subject to dismissal from this action.3
It is well-established that civil rights claims cannot be premised on the
theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988). Rather, each named defendant must be shown, via the complaint’s
Defendants also claim that because it appears that Plaintiff is suing Defendant Warden
Martinez in his official capacity, he is entitled to sovereign immunity and should be dismissed
from this action. The court will defer addressing this claim pending the filing of an amended
complaint. See infra.
allegations, to have been personally involved in the events or occurrences that
underlie a claim. See Rizzo v. Goode, 423 U.S. 362, 371-72 (1976) (relating to a
claim under 42 U.S.C. § 1983, but also applicable to Bivens actions); Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976). Liability cannot
be based solely on the basis of a defendant’s supervisory capacity. The plaintiff
must allege that the official had knowledge of or acquiesced in any purported acts
of constitutional mistreatment. See Rode, 845 F.2d at 1207.
Plaintiff names Defendant Warden Martinez as a Defendant in this action.
Other than being listed in the caption of the complaint, Plaintiff does not mention
Defendant Martinez or assert any claims against him. Clearly Warden Martinez
has been included by Plaintiff as a Defendant due to his official and/or supervisory
role. Plaintiff does not allege that he had any personal knowledge of the incidents
that allegedly took place in this case or acquiesced in them. Therefore, the court
will grant the instant motion to dismiss as to Defendant Warden Martinez without
prejudice and will grant Plaintiff leave to amend his complaint to state a claim
against Warden Martinez and any other potential defendants, if possible.
In light of Plaintiff’s failure to assert Bivens claims in his originally filed
complaint against properly named Defendants, the court will grant him leave to file
an amended complaint in order to state a claim, if possible, against properly named
In preparing his amended complaint, Plaintiff is advised that, among other
requirements, a sound complaint must set forth “a short and plain statement of the
claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This
statement must “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not contain
detailed factual allegations, but a plaintiff must provide “more than labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” to
show entitlement to relief as prescribed by Rule 8(a)(2). Id.; see also Evancho v.
Fisher, 423 F.3d 347, 350 (3d Cir. 2005).
To meet the standards set forth in Rule 8, a complaint must at least contain a
modicum of factual specificity, identifying the defendants and the particular
conduct of the defendants purported to have harmed the plaintiff. “A complaint
which contains a bare bones allegation that a wrong occurred and which does not
plead any of the facts giving rise to the injury, does not provide adequate notice.”
Purveegiin v. Pike County Corr. Facility, No. 3:CV-06-0300, 2006 WL 1620219
(M.D. Pa. June 6, 2006).
In addition, Plaintiff is advised that the “amended complaint must be
complete in all respects. It must be a new pleading which stands by itself as an
adequate complaint without reference to the complaint already filed.” Young v.
Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). Additionally, it must specify
the existence of actions by defendants which have resulted in constitutional
deprivations. See, e.g., Rizzo v. Goode, 423 U.S. 362, 370–73 (1976).
Finally, Plaintiff is advised that if he fails to file, within the applicable time
period, an amended complaint adhering to the standards set forth above, this action
will be dismissed with prejudice.
For the reasons set forth herein, the motion to dismiss will be granted with
prejudice as to Defendant BOP, and BOP will dismissed as a party in this action.
Further, the motion to dismiss will be granted without prejudice as to Defendant
Warden Martinez. Plaintiff will be granted leave to amend his complaint to state a
claim against Warden Martinez and any other potential defendants, if possible.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: June 16, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FEDERAL BUREAU OF PRISONS,
CIVIL NO. 1:CV-10-01742
In accordance with the accompanying memorandum, IT IS HEREBY
1) The motion to dismiss (Doc. 20) as to Defendant BOP is GRANTED.
The BOP is terminated as a party in this action.
2) The motion to dismiss (Doc. 20) as to Defendant Warden Martinez is
GRANTED without prejudice to Plaintiff to file an amended complaint asserting
claims against him and any other potential defendants, if possible.
3) Plaintiff’s amended complaint shall be filed in accordance with the
instructions set forth in the accompanying memorandum no later than July 5, 2011.
4) Failure to timely comply with this order will result in dismissal of this
action with prejudice.
S/Sylvia H. Rambo
United States District Judge
Dated: June 16, 2011
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