Cardona-Sandoval v. U.S. Attorney General et al

Filing 71

OPINION AND ORDER granting 43 MOTION to dismiss as to Joaquin Cardona-Sandoval filed by Mr. Ledezma, Dr. Rivera, U.S. Attorney General, Mr. Rivera, Dr. Medina, Prison Staff, Prison Guards. Judgment shall be entered accordingly. Signed by Judge Jay A. Garcia-Gregory on 06/15/2011.(DPS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JOAQUIN CARDONA-SANDOVAL,
Plaintiff

v.
CIVIL NO. 07-1004 (JAG)
MR. LEDEZMA, et al.,

Defendants

OPINION AND ORDER
GARCIA-GREGORY, D.J.
Before the Court is Mr. Ledezma (“Ledezma”), Dr. Rivera,
Dr.

Medina

(“Medina”),

Mr.

Rivera,

Prison

Guards

and

Prison

Staff’s (collectively, “Defendants”) Motion to Dismiss. (Docket
No. 43). For the reasons set forth below, the motion is hereby
GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
On September 18, 2006, Plaintiff Joaquín Cardona Sandoval
(“Plaintiff”) filed the instant pro se complaint in the District
Court for the Northern District of Ohio. (Docket No. 5-2). The
complaint

alleges

that

the

U.S.

Attorney

General,

the

BOP

Director, and the aforementioned federal officials and employees
of the Bureau of Prisons (“BOP”) Metropolitan Detention Center

Civil No. 07-1004 (JAG)
(“MDC”)

in

Guaynabo,

2
Puerto

Rico,

acted

with

deliberate

indifference to his serious medical needs in violation of the
Eighth Amendment.
In the complaint, Plaintiff alleges that on March 22, 2005,
he sent a “cop-out”1 request to Dr. Rivera, asking for medical
treatment for pain around his left pectoral. (Docket No. 5-2,
Exhibit

1).

He

claims

that

he

had

previously

submitted

two

similar requests that went unanswered. Plaintiff avers that on
March 23, 2005, he received a response from Dr. Rivera stating
that

he

had

been

scheduled

for

a

medical

appointment

the

following week. However, Plaintiff claims that he never saw his
name on the “call out”2 list for medical appointments. Plaintiff
alleges that Prison Staff in his unit had the responsibility to
inform Plaintiff of his appointment time, but failed to do so.
Plaintiff

subsequently

sought

administrative

remedies

against the MDC medical department through a series of formal
grievances and requests. (Docket No. 5-2, Exhibits A-H). On July
11,

2005,

Plaintiff

submitted

a

BOP

form

BP-9

“Request

for

Administrative Remedy,” alleging that the “Medical Department
[had]

been

deliberately

indifferent

towards

[his]

serious

medical needs.” (Docket No. 5-2, Exhibit A). On August 26, 2005,
1

A cop-out is a request for medical attention by the MDC medical
department, submitted to the prisoner’s Unit Manager.
2

A call-out is a list where MDC prisoners’ medical appointments
are displayed.

Civil No. 07-1004 (JAG)

3

Plaintiff sent a request to his unit manager for an update on
the status of the BP-9 grievance. On August 29, 2005, the unit
manager issued a response stating that there was no record of
Plaintiff’s BP-9. (Docket No. 5-2, Exhibit B). Plaintiff alleges
that the BP-9 form was not received because Mr. Rivera did not
file it.
On

August

29,

2005,

Plaintiff

submitted

a

second

BP-9.

(Docket No. 5-2, Exhibit C). On September 28, 2005, MDC Warden
Ricardo

E.

Chávez

(“Chávez”)

issued

a

response

stating

that

Plaintiff had already received treatment for his condition on
August 1, 2005. (Docket No. 5-2, Exhibit D). Plaintiff claims
that on August 1, 2005 he received Ibuprofen, but that no x-ray
or other medical examinations were performed.
On

October

determination

by

10,

2005,

submitting

Plaintiff
a

BP-10

appealed

form

to

the

Chávez’s
Regional

Director of the BOP. (Docket No. 5-2, Exhibit E). In his appeal,
Plaintiff indicates that he has intensive pain around his left
pectoral and that he fears that the condition may be cancerrelated. On November 14, 2005, the Regional Director replied to
the appeal and stated that Plaintiff had been scheduled for a
medical evaluation on March 28, 2005, shortly after his cop-out
request,
(Docket

but
No.

that

he

failed

5-2,

Exhibit

to

F).

report
In

this

for

the

reply,

appointment.
the

Regional

Director reminded Plaintiff that he had received various medical

Civil No. 07-1004 (JAG)

4

evaluations since the missed appointment and made no complaints
related

to

his

pectoral.

Furthermore,

the

Regional

Director

stated that on November 2, 2005, Plaintiff underwent a medical
evaluation

of

the

area

which

did

not

yield

any

objective

findings. The Regional Director determined that there was no
evidence

supporting

Plaintiff’s

allegations.

Finally,

the

Regional Director gave instructions as to how Plaintiff could
appeal this determination to the BOP Office of General Counsel
in Washington, D.C.
As

stated

Guaynabo

on

above,

Plaintiff

December

2,

2005,

attests
without

that

he

receiving

left

MDC

effective

medical treatment for his still-painful condition. On February
23, 2006, Plaintiff submitted a final administrative appeal to
the BOP. (Docket No. 5-2, Exhibit G). On April 3, 2006, the
office of National Inmate Appeals issued a denial of Plaintiff’s
appeal. (Docket No. 5-2, Exhibit H).
On September 18, 2006, Plaintiff filed the instant action
in the United States District Court for the Northern District of
Ohio.

On

December

26,

2006,

the

Honorable

James

S.

Gwin

dismissed with prejudice the claims against the Attorney General
and the BOP Director. (Docket No. 5-3). Judge Gwin then found
that the Northern District of Ohio was not the proper venue for
Plaintiff’s

remaining

claims.

Namely,

Judge

Gwin

held

that

because all of the events giving rise to the claims took place

Civil No. 07-1004 (JAG)

5

in Puerto Rico, the District Court for the Northern District of
Ohio could not exercise personal jurisdiction over Defendants.
As a result, Judge Gwin transferred the present case to this
Court. (Docket No. 5).
On May 8, 2007, the remaining Defendants filed the Motion
to Dismiss now before the Court. Defendants’ dismissal request
is premised on the following grounds: (1) Plaintiff’s claims are
time-barred;

(2)

the

claims

against

Ledemza

and

Dr.

Rivera

should be dismissed because respondeat superior liability does
not apply in actions brought pursuant to Bivens v. Six Unknown
Named

Agents

(1971);

(3)

of

Federal

Bureau

the

claims

of

against

Narcotics,

federal

403

employees

U.S.
in

388

their

official capacities should be dismissed because they are barred
by sovereign immunity; (4) all claims should be dismissed on the
grounds that Plaintiff’s complaint fails to state a Bivens claim
because the allegations do not rise to the level of an Eighth
Amendment

violation;

and,

(5)

entitled to qualified immunity.

all

federal

defendants

are

(Docket No. 43). Plaintiff did

not oppose the motion.
On June 29, 2009, the Court entered an Opinion and Order
granting

the

Motion

to

Dismiss.

(Docket

No.

44).

Plaintiff

appealed the judgment because the motion was never notified to
him. The First Circuit vacated the judgment and remanded the
case for it found that, even though this Court had no way of

Civil No. 07-1004 (JAG)
knowing

about

the

6

notice

problem

before

it

disposed

of

the

motion, there was no indication in the docket that Plaintiff had
been properly notified and Defendants were unable to provide a
copy of the certified mail receipt. (Docket No. 53).
After receiving the First Circuit’s mandate on November 3,
2010, the Court granted Plaintiff until November 29, 2010 to
amend his complaint and/or file his opposition to the Motion to
Dismiss. (Docket No. 54). Plaintiff requested an extension of
time

to

comply

with

the

order

and

his

request

was

granted.

(Docket Nos. 55, 56). However, instead of amending his complaint
or opposing the motion, Plaintiff filed a Motion Requesting the
Appointment of Counsel. (Docket No. 57). The Court then ordered
him to comply with Local Rule 83L in order to properly evaluate
his request for an attorney. After receiving his request in
accordance with the Local Rules, the Court ordered the Clerk to
designate an attorney from the panel of

pro bono

attorneys.

(Docket No. 63). Counsel was thus appointed on February 3, 2011.
(Docket No. 64).
On

April

20,

2011,

the

appointed

attorney

requested

withdrawal from the case and the appointment of another pro bono
counsel for Plaintiff. The Court granted the attorney leave to
withdraw,

but

denied

the

attorney. (Docket No. 70).

appointment

of

a

second

pro

bono

Civil No. 07-1004 (JAG)

7

Several days before the appointment of counsel took place,
however,

Plaintiff

had

filed

a

response

to

the

Motion

to

Dismiss. (Docket No. 60). He argued that the Court must be less
stringent in its application of the standards regarding motions
to dismiss given that he is a pro se litigant and that, in any
case, the allegations contained in the complaint are sufficient
to survive Defendants’ motion. He avers that he has suffered and
continues

to

suffer

irreparable

harm

due

to

Defendants’

deliberate indifference to his constitutional rights.
STANDARD OF REVIEW
In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the
Supreme Court held that to survive a motion to dismiss under
Rule 12(b)(6), a complaint must allege “a plausible entitlement
to relief.” Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92,
95-96 (1st Cir. 2007) (quoting Twombly, 550 U.S. at 559). While
Twombly does not require heightened fact pleading of specifics,
it

does

require

enough

facts

to

“nudge

[plaintiffs’]

claims

across the line from conceivable to plausible.” Twombly, 550
U.S.

at

570.

Accordingly,

in

order

to

avoid

dismissal,

the

plaintiff must provide the grounds upon which his claim rests
through

factual

allegations

sufficient

“to

raise

a

right

to

relief above the speculative level.” Id. at 555.
In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme
Court

upheld

Twombly

and

clarified

the

principles

that

must

Civil No. 07-1004 (JAG)

8

guide this Court’s assessment of the adequacy of the plaintiff’s
pleadings when evaluating whether a complaint can survive a Rule
12(b)(6) motion. See Iqbal, 129 S.Ct. at 1949-50. The court must
identify any conclusory allegations in the complaint as such
allegations are not entitled to an assumption of truth. Id. at
1949. “[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of
action,

supported

by

mere

conclusory

statements,

do

not

suffice.” Id. (citing Twombly, 550 U.S. at 555). A claim has
facial plausibility when the pleaded facts allow the court to
reasonably infer that the defendant is liable for the specific
misconduct alleged. Id. at 1949, 1952. Such inferences must be
more than a sheer possibility and at least as plausible as any
obvious alternative explanation. Id. at 1949, 1951. Plausibility
is a context-specific determination that requires the court to
draw on its judicial experience and common sense. Id. at 1950.
In a recent case, Ocasio-Hernández v. Fortuño Burset, No.
09-2207, 2011 U.S. App. LEXIS 6763 (1st Cir. April 1, 2011), the
First Circuit analyzed and distilled several principles from the
Supreme Court decisions in Twombly and Iqbal. It thus boiled
down the inquiry a Court must perform while resolving a motion
to

dismiss

under

Fed.R.Civ.Proc.

12(b)(6)

to

a

two-pronged

approach. The first step involves the process of identifying and

Civil No. 07-1004 (JAG)

9

disregarding the threadbare recitals of the elements of a cause
of

action

and/or

the

legal

conclusions

disguised

as

fact.

Occasion-Hernández, 2011 U.S. App. LEXIS 6763 *23-24. The second
step involves treating the non-conclusory factual allegations as
true,

even

if

seemingly

incredible,

and

determine

if

those

“combined allegations, taken as true, state a plausible and not
merely a conceivable, case for relief.” Id. at *24 (quoting
Sepúlveda-Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 29
(1st Cir. 2010).
The

First

Circuit

warned

that

even

if

determining

the

plausibility of a claim “requires the reviewing court to draw on
its judicial experience and common sense,” it must not attempt
to forecast the likelihood of success even if recovery is remote
and unlikely. Id. at *25 (quoting Iqbal, 129 S. Ct. at 1950)
(other

citations

omitted).

It

further

stated

that,

“[t]he

relevant inquiry focuses on the reasonableness of the inference
of liability that the plaintiff is asking the Court to draw from
the facts alleged in the complaint. Id.
Finally, because Plaintiff appears pro se, the Court reads
his complaint generously. Haines v. Kerner, 404 U.S. 519, 520
(1972).

This Court recognizes that pro se pleadings are “held

to less stringent standards than formal pleadings drafted by
lawyers.”

Erickson

Nonetheless,

“even

v.
a

Pardus,
pro

se

551

U.S.

complaint

89,

must

94

(2007).

plead

‘factual

Civil No. 07-1004 (JAG)
matter’

that

permit

10

the

Court

to

infer

‘more

than

the

mere

possibility of misconduct.’” Atherton v. District of Columbia,
567 F.3d 672 (D.C. Cir. 2009) (quoting Iqbal, 129 S. Ct. at
1950).
DISCUSSION
A.

Bivens Claim
As previously stated in the Opinion and Order issued by

this Court on this same motion on June 29, 2010, the present
suit is a civil rights action brought pursuant to 42 U.S.C §
1983

and

Bivens

Plaintiff’s

Eighth

to

redress

Amendment

the

rights

alleged
by

deprivation

federal

agents

of

acting

under the color of federal law. As section 1983 provides a cause
of action against state rather than federal officers, the Court
understands

the

present

action

as

one

brought

pursuant

to

Bivens.
Under Bivens, “a person may sue a federal official in his
or

her

individual

capacity

for

damages

arising

out

of

a

constitutional violation committed under color of federal law.”
Santoni
Supreme

v.

Potter,

Court

constitutional

has

369

F.3d

596,

established

violation

by

a

598
that

federal

(1st
the
agent

Cir.

2004).

victim
has

a

The

of

a

right

to

recover damages against the official in federal court despite
the absence of any statute conferring such a right. Carlson v.
Green, 446 U.S. 14, 18 (1980).

Civil No. 07-1004 (JAG)

11

Having determined that this is a Bivens action and there
being

no

question

that

this

Court

has

subject

matter

jurisdiction over Plaintiff’s claims, the Court turns to the
question of whether Plaintiff timely presented his claims.
B.

Timeliness of Claims
The statute of limitations applicable to a Bivens claim is

determined by the state tort statute. Moran Vega v. Cruz Burgos,
537 F.3d 14, 20 (1st Cir. 2008). Hence Bivens actions arising in
this

District,

have

a

one

year

statute

of

limitations.

Id.

Although state law determines the applicable limitations period,
federal law determines when the limitations period begins to
accrue. Id. Under federal law, the limitations period for a
Bivens claim accrues “when a plaintiff knows or has reason to
know of the injury which forms the basis of the action.” Id. A
plaintiff is deemed to have knowledge of the injury “at the time
of

the

act

itself

and

not

at

the

point

that

the

harmful

consequences are felt.” Guzman Rivera v. Rivera-Cruz, 29 F.3d 3,
5 (1st Cir. 1994).
Defendants

argue

that

the

present

suit

is

time

barred

because Plaintiff did not file his complaint until more than one
year after he learned of his injury. Defendants contend that the
limitations period began to accrue on March 22, 2005, because on
that date Plaintiff knew of his alleged medical condition and
began seeking treatment. The Court agrees with Defendants that

Civil No. 07-1004 (JAG)

12

because Plaintiff’s efforts to receive appropriate medical care
were allegedly ignored beginning on March 22, 2005, the one year
statute of limitations began to accrue on that date. However, in
the case at bar, we find that the one year limitations period
was tolled pursuant to the Puerto Rico tolling provision.
Just as state law limitations provisions apply in a Bivens
claim, state law also controls the tolling of the limitations
period.

Hardin

v.

Straub,

490

U.S.

536,

543

(1989).

Puerto

Rico’s tolling provision, Article 1873 of the Civil Code, P.R.
Ann. tit. 31, § 5303 (2011), provides that “[p]rescription of
actions is interrupted by their institution before the courts,
by

extrajudicial

claim

of

the

creditor,

and

by

any

act

or

acknowledgment of the debt by the debtor.” See Rodríguez Narvaez
v. Nazario, 895 F.2d 38, 43-44 (1st Cir. 1990). Pursuant to said
article, each such interruption that is filed within one year of
a previous interruption serves to reset the limitations period.
Id. at 45.
For an extrajudicial claim such as an administrative appeal
to toll the limitations period, the claim must: (1) “be made by
the

holder

of

the

substantive

right

(or

his

legal

representative)”; (2) “be addressed to [the defendant], not to a
third party”; and, (3) “require or demand the same conduct or
relief ultimately sought in the subsequent lawsuit.” Morán Vega,
537 F.3d at 20. “Consequently, an administrative claim will toll

Civil No. 07-1004 (JAG)
the

limitations

13

period

only

if

it

puts

forth

an

‘identical

cause[] of action,’ and only if ‘[t]he relief sought in the
extrajudicial

claim

[is]

the

same

as

that

later

sought

in

court.’” Id. (quoting Rodríguez Narvaez, 895 F.2d at 43, 46)
(alterations in the original) (internal citations omitted). The
purpose

of

requisite

this
fair

requirement
notice

that

is

to

[they]

give

“the

might

be

defendants
called

the

upon

to

defend” against a particular cause of action. Rodríguez-García
v.

Municipality

of

Caguas,

354

F.3d

91,

99

(1st.

Cir.

2004)(internal citations and quotation marks omitted).
Hence, the Court must determine whether Plaintiff’s pursuit
of administrative remedies tolled the limitations period and, if
so, on what date the one year limit began to run anew. The Court
approaches the issue of tolling mindful that “the Supreme Court
of Puerto Rico has stated that in view of the importance of
‘extinctive prescription’ in the civil law traditions, tolling
provisions must be interpreted restrictively against the person
invoking their protection.” Rodríguez-Narvaez, 895 F.2d at 43
(citing Díaz de Diana v. A.J.A.S. Ins. Co., 110 P.R.R. 602, 607
n.1 (P.R. 1980)).
Defendants
tolled

in

the

admit

that

present

the

limitations

period

could

case.

Defendants

argue

that

be
the

limitations period began to run anew on July 11, 2005, the date
on which Plaintiff filed his initial BP-9 appeal. Defendants

Civil No. 07-1004 (JAG)

14

further posit that the limitations period expired on July 11,
2006 and, therefore, Plaintiff’s complaint is time barred since
it was filed September 18, 2006.
In

order

for

the

limitations

period

to

be

tolled,

the

Plaintiff must have filed an administrative appeal sufficient to
put Defendants on notice of the present action within one year
of March 22, 2005. Plaintiff filed four administrative appeals
with the BOP between July 11, 2005 and February 23, 2006. Each
was submitted within the limitations period. In each, Plaintiff
claimed

that

MDC’s

medical

department

acted

with

deliberate

indifference toward his serious medical needs.
This

Court

notes

that

Plaintiff

did

not

request

money

damages in his administrative appeals. However, money damages
are not available under the BOP administrative remedy regime.
This Court finds, nonetheless, that the language employed by
Plaintiff in his administrative appeals -deliberate indifference
to serious medical needs - tracks the legal standard relevant to
the

present

action.

Furthermore,

the

final

administrative

appeal, submitted by Plaintiff to the BOP Administrative Remedy
Section on February 23, 2006, makes express reference to Bivens
in

the

context

of

allegations

of

deliberate

indifference

to

serious medical needs. Therefore, we hold that the final appeal
gave the defendants the requisite fair notice of a subsequent
Bivens claim for damages.

Civil No. 07-1004 (JAG)

15

In sum, Plaintiff’s administrative appeal of February 23,
2006 tolled the limitations period. Hence, the one year statute
of limitations began to acrue anew on that date and expired on
February 23, 2007. Consequently, the present action was timely
filed on September 18, 2006.
C. Claims against Defendants in their Official Capacities
Bivens provides for liability of federal officers only in
their individual capacities. Ruiz Rivera v. Riley, 209 F.3d 24,
28 (1st. Cir. 2000). Any claims brought under Bivens against
federal agents in their official capacities must be dismissed.
Pérez Olivo v. Gonzólez, 384 F. Supp. 2d 536, 543 (D.P.R. 2005).
Accordingly,

all

claims

against

Defendants

in

their

official

capacities must be dismissed with prejudice.
D.

Claims

against

Supervisory

Officials

Ledezma

and

Dr.

Medina
“[R]espondeat superior is not a viable theory of Bivens
liability.” Ruiz Rivera, 209 F.3d at 28. Rather, supervisory
liability in a Bivens action “exists only where ‘(1) there is
subordinate
inaction

liability

was

and

‘affirmatively

(2)

the

linked’

supervisor’s
to

the

action

or

constitutional

violation caused by the subordinate.” Pérez Olivo, 384 F. Supp.
2d at 543. (quoting Aponte Matos v. Toledo Davila, 135 F. 3d
182, 192 (1st Cir. 1998)). An affirmative link exists where a
supervisor’s

alleged

actions

amount

to

“encouragement,

Civil No. 07-1004 (JAG)

16

condonation or acquiescence, or gross negligence amounting to
deliberate indifference.” Aponte Matos, 135 F.3d at 192.
Here, Plaintiff has made no allegations against Ledezma, a
former

MDC

Warden,

coordinator.
inaction

The

by

or

against

complaint

these

does

supervisory

Dr.
not

Medina,

MDC

reference

officials

any

that

hospital
action

or

suggests

an

affirmative link between them and the challenged conduct. While
the Court reads Plaintiff’s pleadings liberally, it will not
infer

allegations

of

wrongdoing

against

a

party

where

none

appear. Accordingly, the claims against Ledezma and Dr. Medina
must be dismissed with prejudice.
E. Sufficiency of Eighth Amendment Claim
It

is

well

established

that

“deliberate

indifference

to

serious medical needs of prisoners constitutes the ‘unnecessary
and wanton infliction of pain’ . . . proscribed by the Eighth
Amendment.

This is true whether the indifference is manifested

by prison doctors in their response to the prisoner’s needs or
by prison guards in intentionally denying or delaying access to
medical care.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
However,

not

every

claim

that

a

prisoner

has

been

inadequately diagnosed or treated constitutes a constitutional
violation.

Id.

at

105.

An

allegation

of

a

merely

negligent

failure to provide adequate care is insufficient. Id. at 105-06.

Civil No. 07-1004 (JAG)
Rather,

deliberate

17

indifference

“defines

a

narrow

band

of

conduct” in which the “care provided [is] ‘so inadequate as to
shock the conscience.’” Feeney v. Correctional Medical Services,
Inc., 464 F.3d 158, 162 (1st Cir. 2006) (quoting Torraco v.
Maloney, 923 F.2d 231, 235 (1st Cir. 1991)). “When a plaintiff’s
‘allegations simply reflect a disagreement on the appropriate
course

of

treatment[,

professional
negligence,

judgment
but

it

s]uch
may

falls

a

dispute

present

short

of

a

with

an

exercise

colorable

alleging

a

claim

of
of

constitutional

violation.’” Id. (quoting Ferranti v. Moran, 618 F.2d 888, 891
(1st. Cir. 1980)) (alteration in the original). In order for a
prisoner to state a claim for inadequate medical care, he must
allege that the “treatment received [was] so clearly inadequate
as to amount to a refusal to provide essential care.” Layne v.
Vinzant, 657 F.2d 468, 474 (1st Cir. 1981)(internal citations
and quotation marks omitted).
In determining whether Plaintiff’s pro se complaint stated
a sufficient Eighth Amendment claim, this Court considers the
factual

allegations

made

in

the

complaint

and

in

the

administrative appeals attached thereto. Thus the allegations
made in the attached appeals are incorporated into Plaintiff’s
pleadings for the purposes of ruling on the present motion to
dismiss. See, e.g., Stein v. Royal Bank of Canada, 239 F.3d 389,
392 (1st. Cir. 2001) (holding that a district court may properly

Civil No. 07-1004 (JAG)

18

consider documents attached to a complaint in its review of a
motion to dismiss).
The

non-conclusory

factual

allegations

in

Plaintiff’s

pleadings may be stated as follows: (1) Dr. Rivera failed to
respond to Plaintiff’s first two cop-out requests; (2) MDC Staff
failed to add Plaintiff’s name to the call out list or to inform
Plaintiff of his March 28, 2008 medical appointment; (3) MDC
doctors failed on multiple occasions to adequately diagnose and
treat Plaintiff’s intensively painful condition, which he feared
was cancer-related; although Plaintiff received muscle relaxant
and painkillers, which did not remedy the condition, no x-ray
examination or other comparable diagnostic tests were performed;
and, (4) Mr. Rivera did not file Plaintiff’s first BP-9 appeal.
Plaintiff alleges that he suffered from intense pain on a
daily basis from a condition that he feared was cancer-related,
and that his requests for effective medical care were delayed
and

ignored.

However,

Plaintiff

also

states

that

he

was

scheduled for a medical exam and did ultimately receive medical
attention on a number of occasions. Even liberally construed in
the light most favorable to the Plaintiff, these allegations are
essentially a dispute about the treatment provided. Plaintiff’s
“subjective
the

absence

characterizations”
of

corresponding

of

deliberate

factual

indifference,

allegations,

are

in
not

Civil No. 07-1004 (JAG)

19

entitled to an assumption of truth. See Dewey v. Univ. of New
Hampshire, 694 F.2d 1, 3 (1st Cir. 1982).
Although it is clear that Plaintiff was frustrated with the
level of attention his complaints received from Prison Staff and
various doctors, we find that Plaintiff did not sufficiently
plead

that

Defendants’

conduct

rises

to

the

level

of

a

deliberate refusal to provide essential care. Plaintiff suggests
that conduct of Prison Staff may have unnecessarily delayed his
access

to

medical

attention.

Nonetheless,

Plaintiff

has

not

alleged conduct beyond the level of negligence. Therefore, the
alleged

conduct

deliberate

does

not

indifference

fall

that

within

shocks

the

the

narrow

zone

conscience.

of

Because

Plaintiff’s pleadings do not state a claim for a violation of
the Eighth Amendment, his claims must be dismissed.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendants’
Motion

to

Dismiss.

(Docket

No.

43).

Consequently,

all

of

Plaintiff’s claims against Defendants shall be dismissed with
prejudice. Judgment shall be entered dismissing the complaint.
IT IS SO ORDERED.
In San Juan, Puerto Rico this 15th day of June, 2011.

s/ Jay A. García Gregory
JAY A. GARCIA GREGORY
U.S. DISTRICT JUDGE