Butler v. United States of America
Filing
54
MEMORANDUM -Based on the foregoing, Defendant's motion (Doc. 36) to dismiss will be granted and Defendant Ralloub will be dismissed from this action. Plaintiff will be afforded the opportunity to file asecond amended complaint. A separate order shall issue.Signed by Honorable Robert D. Mariani on 2/7/17. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STACY BUTLER,
Plaintiff
Civil No. 3:15-cv-2395
(Judge Mariani)
v.
RODWAN K. RAJJOUB,
Defendant
MEMORANDUM
Plaintiff, Stacy Butler, ("Plaintiff') an inmate currently confined at the United States
Penitentiary, Lewisburg, Pennsylvania, ("USP-Lewisburg"), filed the above-captioned action
pursuant to Bivens. 1 (Doc. 1). The matter is proceeding via an amended complaint wherein
Plaintiff names Rodwan K. Ran6ub, M.D., as the sole Defendant. (Doc. 13-1). Presently
pending before the Court2 is a motion (Doc. 36) to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) by Defendant Rajjoub. 3 For the reasons set forth below, the Court will
I
Bivens v. Six Unknown Named Agents of the Fed. Buteau of Narcotics, 403 U.S. 388 (1971).
Bivens stands for the proposition that "a citizel'l suffering a compensable injury to a constitutionally
protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an
award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478,
504 (1978).
Also pending before the Court is Plaintiffs motion (Doc. 35) for joinder requesting leave to add
three individual defendants to this action. Because Defendant Ralioub, the sole Defendant, will be
dismissed from this action and, in an effort to streamline this case, the Court will deny Plaintiffs motion for
joinder, but will grant him the opportunity to file asecond amended complaint.
2
3
Defendant initially moved for dismissal of the complaint due to Plaintiffs failure to file a
certificate of merit in accordance with PA.R.C.P. 1042.3, based on the presumption that Plaintiff was
proceeding under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. (Doc. 37). Plaintiff
grant the motion to dismiss.
I.
Standard of Review
Acomplaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege
"enough facts to state aclaim to relief that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must
aver "factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009).
"Though a complaint 'does not need detailed factual allegations, ... aformulaic
recitation of the elements of acause of action will not do.'" DelRio-Mocci v. Connolly Prop.
Inc., 672 F.3d 241,245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,
"[ijactual allegations must be enough to raise a right to relief above the speculative level."
Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
(internal citations and quotation marks omitted). Acourt "takers] as true all the factual
allegations in the Complaint and the reasonable inferences that can be drawn from those
facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements." Ethypharm S.A. France v.
subsequently clarified that he intended to filed a Bivens civil rights action, he is not proceeding under the
FTCA and, thus, "rule 1042.3 ... does not apply." (Doc. 40, p. 1, 1r 4). See also (Doc. 40, p. 1, 1r 4) ("The
claim of the plaintifij's] complaint is one of a Bivens action"). Consequently, Defendant's argument seeking
dismissal of the complaint for failure to comply with the directives of the FTCA will not be addressed herein.
2
,
Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation
marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the elements a
plaintiff must plead to state aclaim. Second, the court should identify allegations that,
because they are no more than conclusions, are not entitled to the assumption of truth.
Finally, where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether tl1ey plausibly give rise to an entitlement for relief.
Connelly V. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
"[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not show[n] - that the
pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks
omitted). This "plausibility" determination will be a "context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Id.
However, even 'Iif acomplaint is subject to Rule 12(b)(6) dismissal, adistrict court
must permit acurative amendment unless such an amendment would be inequitable or
futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a
defendant moves to dismiss it, unless the district court finds that amendment
would be inequitable or futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.
3
!
I
i
I
!
I
Id.
II.
Allegations of the Amended Complaint
Plaintiff alleges that he underwent spinal surgery in 2008 when confined at the
United States Penitentiary, Terre Haute, Indiana. (Doc. 13-1, p. 2). Several years later,
when housed at USP-Lewisburg, Plaintiff alleges that he continued to experience back pain,
and underwent x-rays, CT-scans, and MRls. (ld.). These tests allegedly revealed a
fractured pedicle screw. (ld.).
On April 25, 2013, Plaintiff underwent surgery performed by Dr. Ra]oub at the
Williamsport Hospital. (/d. at pp. 2, 4). Plaintiff avers that Dr. Rajjoub is a medical
doctor/surgeon employed by Lycoming Neurosurgical Associates. (Id. at p. 2). Subsequent
to the surgery, Plaintiff alleges that he continued to suffer from pain, a "click" in his lower
back, and temporary restricted mobility. (ld. at p. 2). On July 7,2015, Plaintiff underwent
an x-ray of the lower back and discovered that he had a fractured screw. (Id. at p. 3).
Plaintiff alleges that he was never informed about the potential complications and pain
associated with spinal surgery, including a fractured screw. {ld. at pp. 2-4}. Plaintiff claims
that his pain is due to the fractured screw. (Id.).
For relief, Plaintiff seeks compensatory and punitive damages. (Id. at p. 3).
III.
Discussion
A Bivens action is the federal counterpart to an action filed under 42 U.S.C. § 1983
!
i
4
I
!
t
I
and the same legal principles have been held to apply. See Paton v. LaPrade, 524 F.2d 82
(3d Cir.1975); Farmerv. Carlson, 685 F. Supp. 1335, 1338 (M.D.Pa. 1988). Section 1983
of Title 42 of the United States Code offers private citizens a cause of action for violations of
federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part,
as follows:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress....
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege lithe
violation of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under color of state
law." West v. Atkins, 487 U.S. 42, 48 (1988).
It is well-settled that Bivens civil rights liability does not extend to private parties, but
only applies to federal actors. In Malesko, the Supreme Court refused to extend liability
under Bivens to private individuals, noting that "[t]he purpose of Bivens is to deter individual
federal officers from committing constitutional violations." Carr. Servs. Corp. v. Malesko,
534 U.S. 61, 70,122 S.Ct. 515,151 L.Ed.2d 456 (2001). Similarly, the United States
5
Supreme Court refused to imply the existence of a Bivens action where "a federal prisoner
seeks damages from privately employed personnel working at a privately operated federal
prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and
where that conduct is of a kind that typically falls within the scope of traditional state tort law
(such as the conduct involving improper medical care at issue here)." Minneci v. Pollard,
-
U.S. - , 132 S.Ct. 617, 626, 181 L.Ed.2d 606 (2012); see also Robertson v. Exec. Dir.
Brain Inst. Geisinger Med etr., 578 F. App'x 76,77 (3d Cir. 2014) (lilt is well-settled that a
Bivens action can only be brought against federal officials, not private entities.") (citations
omitted); Groman v. Twp. of Manalapan, 47 F.3d 628, 642 (3d Cir. 1995) (a private
f
volunteer health care provider is not a state actor for purposes of federal civil rights liability).
I
l
f
Following Malesko and Minneci, this Court has held that a private physician employed at a
t
private hospital is not subject to federal civil rights liability under Bivens. See Michtavi v.
I
Scism, 2013 WL 371643 (M.D. Pa. 2013).
t
f
Defendant seeks dismissal of all claims against him because he is a private
1
I
individual working at a privately operated medical facility, and therefore are not subject to
liability under Bivens. (Doc. 42). The Court finds that Plaintiff has not alleged any facts that
would give rise to an inference that Dr. Rajjoub is a federal actor. There are no allegations
that Dr. Rajjoub was employed by, or under any contractual agreement with the United
[
States government or the Federal Bureau of Prisons. Indeed, Plaintiff asserts that
t
,
,
~
I
6
t
!
I
!
l
t
Defendant Ralloub is medical doctor employed by Lycoming Neurosurgical Associates.
(Doc. 13-1, p. 2). Central to any claim for relief under 42 U.S.C. § 1983 is that the plaintiff
must allege that he has been deprived of a right, privilege or immunity secured by the
Constitution and laws, by a person acting "under color of state law." West, 487 U.S. at 48.
Dr. Ralloub is a private individual working at a privately operated medical facility and is not
amenable to suit under Bivens. Consequently, the action against Defendant Ralloub will be
dismissed.
IV.
Leave to Amend
When a complaint fails to present a prima facie case of liability, courts should
generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview
State Hasp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d
Cir. 2000). Specifically, the Third Circuit has admonished that when a complaint is subject
to dismissal for failure to state a claim, courts should liberally grant leave to amend "unless
such an amendment would be inequitable or futile." Phillips, 515 F.3d at 245 (citing Alston
v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). The federal rules allow for liberal
amendments in light of the "principle that the purpose of pleading is to facilitate a proper
decision on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal
quotations omitted).
The Court concludes that any amendment with respect to Defendant Ralloub would
7
f
r
I
I
be futile. However, in light of Plaintiffs motion (Doc. 35) for joinder wherein he requests
leave to add three additional defendants, Plaintiff will be granted the opportunity to file a
second amended complaint. Plaintiff is advised that the second amended complaint must
comply with the dictates of Rule 20 of the Federal Rules of Civil Procedure. Federal Rule of
Civil Procedure 20, titled Permissive Joinder of Parties, provides in pertinent part:
Persons ... may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
FED.
V.
R. CIV. P. 20(a)(2).
Conclusion
Based on the foregoing, Defendant's motion (Doc. 36) to dismiss will be granted and
Defendant Ralloub will be dismissed from this action. Plaintiff will be afforded the
opportunity to file a second amended complaint. A separate order shall issue.
Dated: February ~, 2017
,
8
I
I
I
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?