Graciani-Gonzalez v. Volunteers of America et al

Filing 57

OPINION AND ORDER dismissing the claims without prejudice. Signed by Judge Juan M Perez-Gimenez on 4/5/2013.(VCC)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

EDGAR GRACIANI,
Plaintiff,
v.

Civil Case. NO. 12-1717 (PG)

VOLUNTEERS OF AMERICA,
CASA ALBORADA, HOSPITAL PAVIA,
Defendants.

OPINION AND ORDER
Plaintiff

filed

the

Complaint

on

August

29,

2012.

Though

he

provides a vivid account of his mental state after suffering an injury
his left hand, his pleading is insufficient to establish the grounds for
the

$3,000,000.00

relief

he

seeks

against

defendants.

Illegible

and

incomprehensible at times, the Complaint does not put forth sufficient
facts to allow the court to draw the reasonable inference that the
defendants are liable for the misconduct alleged. For the reasons stated
below, this Court DISMISSES WITHOUT PREJUDICE plaintiff’s claims.
I.

FACTUAL AND PROCEDURAL BACKGROUND

After filing the instant action on August 29, 2012 [Docket No. 1],
plaintiff filed an Amended Complaint on September 17, 2012 [Docket No.
4]. A “Motion to Leave Petitioner to Amended Complaint” [sic] [Docket No.
7]

followed

on

December

28,

2012

(hereinafter

“Second

Amended

Complaint”). Shortly thereafter, Defendant Volunteers of America, Inc.
(“VOA”) filed a Motion to Dismiss [Docket No. 9] for failure to execute
timely service of process. After that, Plaintiff filed myriad Motions,
including
“Motion

a

“Motion

requesting

requesting
Hearing”

payment

[Docket

of

No.

debt”
22],

a

[Docket
“Motion

No.

21],

a

requesting

Documents” [Docket No. 23] and a “Motion to Compel” [Docket No. 24].

Civil No. 12-1717 (PG)

Page 2

On February 4, 2013, defendants VOA, Mike King, Raul Gonzalez,
Julio Salinas and E. Anguita filed a Motion to Dismiss pursuant to Fed.
R.Civ.P. 12(b)(6) [Docket No. 25] for failure to state a cause of action
or, in the alternative, for lack of personal jurisdiction.
II. STANDARD OF REVIEW
In

determining

whether

dismissal

of

a

complaint

is

appropriate

pursuant to Rule 12(b)(1) or 12(b)(6), the court must keep in mind that
“[t]he general rules of pleading require a short and plain statement of
the claim showing that the pleader is entitled to relief… this short and
plain statement need only give the defendant fair notice of what the…
claim is and the grounds upon which it rests.” Gargano v. Liberty Intern.
Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009) (internal citations
and

quotation

marks

omitted).

Nevertheless,

“even

under

the

liberal

pleading standard of Federal Rule of Civil Procedure 8, the Supreme Court
has… held that to survive a motion to dismiss, a complaint must allege ‘a
plausible entitlement to relief.’” Rodríguez-Ortiz v. Margo Caribe, Inc.,
490 F.3d 92, 95 (1st Cir. 2007) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 559 (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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 556). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level… on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations and
quotation

marks

omitted).

“Determining

whether

a

complaint

states

a

plausible claim for relief will… be a context-specific task that requires

Civil No. 12-1717 (PG)

Page 3

the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 129 S.Ct. at 1950.
When en evaluating the plausibility of a legal claim, a court may
not “attempt to forecast a plaintiff’s likelihood of success on the
merits; a well-pleaded complaint may proceed even if… a recovery is very
remote and unlikely.” Ocasio-Hernández v. Fortuño-Buset, 640 F.3d 1,
12-13 (1st Cir. 2011) (citing Twombly, 550 U.S. at 556). Thus, “[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.” Ocasio-Hernández, 640 F.3d at 13.
The District Court may sua sponte dismiss a claim pursuant to Rule
12(b)(6) without notice where it is “patently obvious” that the plaintiff
cannot possibly prevail based on the facts alleged in the Complaint.
Rollins v. Wackenhut Services, 703 F.3d 122 (D.C. Cir. 2012)(citing Baker
v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990)).
III. DISCUSSION
In the Complaint, plaintiff sues VOA; a number of its officials in
their

individual

and

official

capacity;

Hospital

Pavia

(hereinafter

“Pavia”); its Director; its emergency room staff and two doctors on a
wide

arrange

Amendment

of

of

theories,

the

United

most

States

notably,

for

Constitution,

violation
for

“cruel

of
and

the

14th

unusual

punishment” pursuant to the 8th Amendment and for medical malpractice.1
The

Complaint

charges

that

the

defendants

were

deliberately

indifferent to plaintiff’s serious medical needs and therefore violated

1

The other claims include: “Infliction of emotional distress, loss of sleep,
financial problems;” “injury;” “perpetua impediment of his left hand;” “adequate
medical care;” “deprivation of care and treatment prescribed by surgeon;”
“unnecessary and wanton infliction of pain;” “negligence; “Malfeasant Act;”
“Discrimination.” See, Docket No. 7, page 5.

Civil No. 12-1717 (PG)

Page 4

his Eighth Amendment right to be free from cruel and unusual punishment,
as well as his Fourteenth Amendment’s due process and equal protection
rights. Plaintiff puts forth an intelligible account from which the Court
can only gather that he claims to have suffered an injury on his left
hand that caused him a permanent disability. For the purpose of properly
addressing plaintiff’s claims, the Court will discuss them separately:
A. Violation of 42 U.S.C. §1983
In his Complaint, plaintiff does not detail why he claims that he
has suffered a denial of equal protection, procedural due process and
substantive due process under the Fourteenth Amendment of the United
States Constitution.
Plaintiff basically alleges that, while at Casa Alborada--a halfway
house in which he was admitted for 180 days-- he was “forced” by Ms.
Gladys (who he claims is a VOA employee, though he fails to provide a
last name), to clean the restroom located on the third floor. See, Docket
No. 7, page 6. While doing so, he suffered “a deep cut” on his hand as a
result of taking out a garbage can. See, Docket No. 7, page 6.
Plaintiff
garbage

trash

asserts
can

was

that

he

unsafe

complained
and

needed

to
to

Ms.
be

Gladys

that

“the

repaired”

and

that

defendant Casa Alborada failed to “place a notice” of the “defected
garbage trash can” or take any steps to “obviate the danger.” See, Docket
No. 7, pg. 6.
He further claims that “after the unhurried modus operandus [sic]
of Volunteers of America-Casa Alborada staff” he was “referred to the
emergency room at the Hospital Pavia in Santurce.” See, Docket No. 7,
page 6. Plaintiff goes on to assert that Alborada refused to pay for his

Civil No. 12-1717 (PG)

Page 5

medical expenses and would not allow him permission to go to the hospital
for further treatment.
From the facts thus recited, this Court is left to wonder what
actions, if any, on Defendant VOA’s part, constitute a violation of
Plaintiff’s rights under the Fourteenth Amendment.
The Supreme Court has recognized that “[t]he purpose of the equal
protection of the Fourteenth Amendment is to secure every person within
the

State’s

jurisdiction

against

intentional

and

arbitrary

discrimination, whether occasioned by express terms of a statute or by
its

improper

execution

through

duly

constituted

agents.”

Sioux

City

Bridge Co. v. Dakota County, 260 U.S. 441, 445, 43 S.Ct. 190 (citing
Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352, 38
S.Ct. 495, 62 L.Ed. 1154 (1918)).
Plaintiff has not alleged that he suffered a disparate treatment
nor has he pled any particular action that indicates a violation of his
substantive and procedural due process. Insofar as there is not a single
allegation that supports a Fourteenth Amendment claim, plaintiff’s claims
founded on violations of 42 U.S.C. §1983 are Dismissed without Prejudice.
B. Violation of the 8th Amendment
Similarly, plaintiff does not allege sufficient facts to establish
a claim for cruel and unusual punishment under the Eight Amendment of the
United States Constitution.
Plaintiff claims that, after he suffered an injury on his left
hand, “the unhurried modus operandus [sic] and refusal of Casa Alborada
staffs to call the ambulance” forced him to “walk all the way to the
hospital” accompanied by Mr. M. Lopez, a member of VOA staff. See, Docket
No. 7, page 6. He also asserts that VOA staff refused to assist him with

Civil No. 12-1717 (PG)

Page 6

transportation to Centro Medico for his treatment. See, Docket No. 7,
page 8. Furthermore, Plaintiff relates that while waiting for surgery at
the hospital, “the director of Casa Alborada refused to allow extra hours
for petitioner surgery and order petitioner to return to Casa Alborada.”
See, Docket No. 7, page 9.
Generally, a prison official's acts or omissions violate the Eight
Amendment’s

ban

on

cruel

and

unusual

punishment

when

they

are

deliberately indifferent to a prisoner’s serious medical needs. Estelle
v. Gamble, 429 U.S. 97, 104-106 (1976). An inadvertent failure to provide
adequate medical care is not enough, nor is a delay in medical care
unless the plaintiff can show the delay resulted in substantial harm.
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005; Olson v. Stotts, 9 F.3d
1475, 1477 (10th Cir. 1993). Such harm may be shown by evidence that the
delay caused unnecessary pain or caused the condition to worsen. Id. at
755. However, postponing surgery for a period, does not provide a cause
of action for deliberate indifference to serious medical needs if the
delay would not cause further damage. White v. Colorado, 82 F.3d 364, 366
(10th Cir. 1996).
Plaintiff points to the case of Estelle to claim that defendants’
deliberate indifference to his medical needs constitute “the unnecessary
and

wanton

infliction

of

pain”

proscribed

by

the

Eight

Amendment.

Plaintiff, however, did not show that the alleged actions resulted in the
denial of any basic human needs or that VOA officials demonstrated a
deliberate indifference to his health and safety. In addition, plaintiff
did not sufficiently plead that the actions of VOA caused his condition
to worsen.

Civil No. 12-1717 (PG)

What

is

Page 7

more,

taking

as

true

plaintiff’s

allegations

in

the

Complaint, he does not have a private cause of action for damages against
defendant VOA.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized for the
first time an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights. The Supreme
Court later refused to extend the Bivens limited holding to confer a
right of action for damages against private entities acting under color
of federal law in Correctional Services Corporation v. Malesko, 534 U.S.
61, 122 S.Ct. 515 (2001).
In

his

organization

Complaint,
dedicated

plaintiff
to

alleges

administer

the

that

VOA

halfway

is

a

houses

“non-profit
for

federal

prisoners 180 days placement in Puerto Rico.” See, Docket No. 7, page 2.
He further asserts that the Defendants were acting “in the name of the
state under the authority granted by the state, county, city or other
non-federal government entity.” Id.
If VOA is, in fact, a private entity that administers the halfway
house, plaintiff would not have a private cause of action for damages
against VOA, and even if it did, plaintiff has not asserted sufficient
facts to configure a cause of action against defendants pursuant to the
Eight Amendment.
C. Negligence on VOA’s part
Regarding the negligence claim, plaintiff’s only assertion is that
VOA

had

knowledge

that

a

garbage

can

located

on

the

third

floor’s

bathroom was “unsafe” because he informed their staff of that fact. In

Civil No. 12-1717 (PG)

Page 8

what way was the garbage “unsafe” and why that created a dangerous
condition is left for the Court to ponder.
Certainly, Plaintiff has not pled even a general recital of facts
that would create a reasonable inference of negligence on the part of
VOA.
D. Malpractice claims
Plaintiff’s claims against Hospital Pavia, its director, staff and
two physicians basically center on their delay in providing medical care.
In fact, plaintiff claims that he was in the emergency room for almost
four hours before a physician checked his wound. See, Docket No. 7, page
7.

He

also

asserts

that

defendants

Hospital

Pavia,

its

director,

emergency room staff and doctors Ruth Calderon and Manuel Pérez did not
provide “adequate medical care.”
There is no jurisdictional basis for Plaintiff’s malpractice claims
before this Court. “Federal courts are courts of limited jurisdiction,”
possessing “only that power authorized by Constitution and statute.” See,
Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (citing Kokkonen v. Guardian
Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d
391 (1994)). Relevant here, Congress has authorized the federal district
courts to exercise original jurisdiction in “all civil actions arising
under the Constitution, laws, or treaties of the United States,” 28
U.S.C. §1331. A case arises under federal law when federal law creates
the cause of action asserted. See, Gunn, 133 S.Ct. at 1064 (citing
American Well Works Co. v. Layne & Bowler, Co., 241 U.S. 257, 260, 36
S.Ct. 585, 60 L.Ed. 987 (1916)).
Simply put, this legal malpractice suit does not belong in federal
court.

As

such,

the

claims

against

Hospital

Pavia,

its

director,

Civil No. 12-1717 (PG)

Page 9

emergency room staff and doctors Ruth Calderon and Manuel Perez are
dismissed without prejudice.

IV. CONCLUSION
A court may dismiss a complaint, sua sponte, if it fails to state a
claim upon which relief may be granted.
After examining each of the allegations in the Complaint, it is
fitting to conclude that plaintiff simply does not state a viable claim
as to any of the defendants, thus warranting dismissal. In addition, this
Court does not have jurisdiction to entertain the malpractice claims
against defendants Hospital Pavia, its director and emergency room staff
and doctors Ruth Calderón and Manuel Pérez.
In

light

of

the

aforementioned,

this

Court

hereby

DISMISSES

Plaintiff’s claims WITHOUT PREJUDICE.
SO ORDERED.
In San Juan, Puerto Rico, April 3, 2013.

S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE