Cole v. United States of America et al

Filing 15

ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING THAT PROCESS BE ISSUED FOR THE UNITED STATES. Signed by Judge James D. Todd on 11/7/17. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
GARRICK D. COLE,
Plaintiff,
VS.
UNITED STATES OF AMERICA,
ET AL.,
Defendants.

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No. 15-1105-JDT-cgc

ORDER PARTIALLY DISMISSING COMPLAINT AND
DIRECTING THAT PROCESS BE ISSUED FOR THE UNITED STATES

On May 4, 2015, Plaintiff Garrick D. Cole (“Cole”), Bureau of Prisons (“BOP”)
register number 25462-076, who is incarcerated at the United States Medical Center for
Federal Prisoners (“USMCFP”) in Springfield, Missouri, filed a pro se civil complaint
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. Of Narcotics, 403 U.S.
388 (1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 26712680. (ECF No. 1.)1 After Cole submitted the necessary documentation, the Court
granted leave to proceed in forma pauperis and assessed the civil filing pursuant to the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) The
Clerk shall record the Defendants as the United States of America (“United States”), U.S.
1

Although Cole also invokes 42 U.S.C. § 1983, that statute applies only if the defendants
acted under color of state law. Cole alleges that the defendants in this case acted under color of
federal law, not state law. Therefore, he has no valid § 1983 claim.

Marshal for the Western District of Tennessee Jeffrey Holt,2 and the United States
Marshals Service (“USMS”). Defendant Holt is sued in both his individual and official
capacities.
I. The Complaint
Cole and several co-defendants were indicted by a federal grand jury in this
district on October 15, 2012. (No. 12-10096-JDB, Crim. ECF No. 3.) Cole was ordered
detained in the custody of the USMS from the time of his arrest on November 1, 2012,
until he was released on bond on March 5, 2013. (Id., Crim. ECF Nos. 47, 53, 89, 99,
175, 306, 310 & 311.) In the present civil complaint, Cole alleges that he suffers from
severe kidney failure diagnosed as end stage renal disease (“ESRD”) which, if the patient
does not receive a kidney transplant, must be treated with regular dialysis by either
hemodialysis or peritoneal dialysis.3 (ECF No. 1 at 2.) Cole states that he elected to
receive peritoneal dialysis for its convenience and the greater independence it would
allow him because it is self-administered. (Id. at 3.)
On the same day that he was released on bond, Cole was seen by a surgeon at
Jackson Surgical Associates for evaluation to replace the right-side perma catheter used
for his peritoneal dialysis with a “more enduring dialysis option.” (Id.) Thereafter, on
2

The Court takes judicial notice of Marshal Holt’s first name, which Cole does not
provide in the complaint. The Clerk is directed to MODIFY the docket accordingly.
3

Cole states that hemodialysis usually involves visits to a dialysis unit three times per
week with each treatment lasting several hours. (ECF No. 1 at 2.) He further states that
peritoneal dialysis is a process by which a large volume of liquid is inserted into a permanently
implanted tube in the abdominal cavity and is repeated more or less continually as needed. (Id.)
Cole states that with hemodialysis there can be problems with access that may require repeated
surgeries, while peritoneal dialysis issues can usually be treated with antibiotics. (Id. at 2-3.)
2

March 14, 2013, Cole states that he underwent a laparoscopic procedure to receive a
Tenckhoff catheter for peritoneal dialysis. (Id.)
On September 5, 2013, while still on bond, Cole appeared before U.S. District
Judge J. Daniel Breen for sentencing, at which time Judge Breen recommended that Cole
be housed in the nearest medical facility able to treat Cole’s illnesses. (Id. at 3-4; see
also No. 12-10096, Crim. ECF No. 568.) During the sentencing hearing, Judge Breen
allowed Cole’s defense attorney, Dianne Smothers, and Defendant Holt time to contact
the West Tennessee Detention Facility (“WTDF”) in Mason, Tennessee to determine
whether that facility could address Cole’s medical needs. (Id. at 4; see also No. 1210096, Crim. ECF No. 568.) Judge Breen then heard statements from both Ms. Smothers
and Defendant Holt on that issue. (No. 12-10096, Crim. ECF No. 568.) However, the
complaint does not set out the substance of either statement. The termination of Cole’s
bond then was deferred to allow him to consult with his primary care doctor, Dr. Sakar.
(ECF No. 1 at 4.)
During the consultation with Dr. Sakar on September 9, 2013, at which Ms.
Smothers also was present, Ms. Smothers allegedly informed Dr. Sakar that the federal
system did not accommodate peritoneal dialysis care, which Cole contends was
“misinformation”. (Id.) Dr. Sakar then consulted Jackson Surgical Associates about
removing the Tenckhoff catheter that had been placed the previous March.

(Id.)

Consequently, on October 3, 2013, Cole underwent surgery to remove the Tenckhoff
catheter; later the same day another surgery was performed to put in place a tunneled
hemodialysis catheter. (Id.)
3

On October 9, 2013, Cole alleges that he self-surrendered to the USMS and was
housed at the WTDF,4 which was able to provide him medical treatment after his
surgeries. (Id.) However, Cole alleges that following Judge Breen’s recommendation at
sentencing would have resulted in his immediate placement at the USMCFP, which he
asserts is, in fact, able to accommodate peritoneal dialysis. Therefore, the Tenckhoff
catheter would not have been removed and replaced by a hemodialysis catheter. (Id.)
Cole alleges that the “needless surgeries . . . expose[d] his person to unnecessary peril of
injury and pain” and caused him “excessive pain, suffering, and emotional duress.” (Id.)
Plaintiff asserts that he was transferred to the USMCFP on or about January 11,
2014. (Id.) In March 2014, Dr. Wade T. Jordan, the USMCFP Clinical Director,
consulted with a surgeon and recommended that Cole undergo another laparoscopic
surgery to again place a catheter for peritoneal dialysis, essentially the fourth surgery for
the same illness. (Id.) That surgery was performed on April 8, 2014. (Id. at 5.) Yet a
fifth surgery was performed on May 28, 2014, to remove the hemodialysis catheter. (Id.)
Cole alleges that Defendant Holt breached his duty as a federal employee through
negligence and that his acts and/or omissions resulting in repetitious surgeries amounted
to cruel and unusual punishment under the Eighth Amendment.

(Id.)

Cole seeks

damages of $500,000 under the FTCA; compensatory damages of $30,000 and punitive
damages of $15,000 against Holt in his individual capacity; and reimbursement of any
fees or expenses associated with his claims. (Id. at 5-6.)
4

In the complaint, Cole states that he surrendered and was confined at the “Madison
Jail.” (Id.) However, in an attachment to the complaint, he states that it was the “Mason Jail,”
i.e., the WTDF in Mason, Tennessee.
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II. Analysis
The Court is required to screen prisoner complaints and to dismiss any complaint,
or any portion thereof, if the complaint—
(1)
is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2)
such relief.

seeks monetary relief from a defendant who is immune from

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may
be granted, the court applies standards under Federal Rule of Civil Procedure 12(b)(6), as
stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.
2010).

“Accepting all well-pleaded allegations in the complaint as true, the Court

‘consider[s] the factual allegations in [the] complaint to determine if they plausibly
suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)
(quoting Iqbal, 556 U.S. at 681) (alteration in original). “[P]leadings that . . . are no more
than conclusions . . . are not entitled to the assumption of truth. While legal conclusions
can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule
8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.
Without some factual allegation in the complaint, it is hard to see how a claimant could
satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but
also ‘grounds’ on which the claim rests.”).
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“A complaint can be frivolous either factually or legally. Any complaint that is
legally frivolous would ipso facto fail to state a claim upon which relief can be granted.”
Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for
relief. Statutes allowing a complaint to be dismissed as frivolous give
“judges not only the authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims whose factual
contentions are clearly baseless.” Neitzke, 490 U.S. at 327, 109 S. Ct. 1827
(interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a
claim, where a judge must accept all factual allegations as true, Iqbal, 129
S. Ct. at 1949-50, a judge does not have to accept “fantastic or delusional”
factual allegations as true in prisoner complaints that are reviewed for
frivolousness. Neitzke, 490 U.S. at 327-28, 109 S. Ct. 1827.
Id. at 471.
“Pro se complaints are to be held ‘to less stringent standards than formal pleadings
drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at
383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and
prisoners are not exempt from the requirements of the Federal Rules of Civil Procedure.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 092259, 2011 WL 285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se
complaint for failure to comply with “unique pleading requirements” and stating “a court
cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”) (quoting
Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in
original); Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming sua
sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, “[n]either
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this court nor the district court is required to create Payne’s claim for her”); cf. Pliler v.
Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation to act as counsel or
paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App’x 506, 510 (6th
Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause
of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it
would transform the courts from neutral arbiters of disputes into advocates for a
particular party. While courts are properly charged with protecting the rights of all who
come before it, that responsibility does not encompass advising litigants as to what legal
theories they should pursue.”).
Bivens provides a right of action against federal employees who violate an
individual’s rights under the United States Constitution. “Under the Bivens line of cases,
the Supreme Court has recognized a cause of action against federal officials for certain
constitutional violations when there are no alternative processes to protect the interests of
the plaintiff and no special factors counseling against recognizing the cause of action.”
Koubriti v. Convertino, 593 F.3d 459, 466 (6th Cir. 2010). However, claims against
federal entities such as the USMS and against federal agents in their official capacity are
construed as claims against the United States. The United States can be sued only to the
extent it has waived its sovereign immunity. McGinness v. United States, 90 F.3d 143,
145 (6th Cir. 1996). A waiver of sovereign immunity cannot be implied but must be
expressed unequivocally by Congress. United States v. Mitchell, 445 U.S. 535, 538
(1980); Johnson v. Hubbard, 698 F.2d 286, 290 (6th Cir. 1983); Jahn v. Regan, 584 F.
Supp. 399, 406 (E.D. Mich. 1984).

The United States has not waived sovereign
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immunity and, therefore, cannot be sued in a Bivens action. Berger v. Pierce, 933 F.2d
393, 397 (6th Cir. 1991) (stating that a Bivens claim cannot be asserted against the United
States government or its employees in their official capacities).
With regard to the individual capacity claims against Defendant Holt, the
complaint contains no factual allegations to support Cole’s conclusory claims of
wrongdoing. The only specific allegation against Defendant Holt is that he provided a
statement to Judge Breen during the sentencing hearing. (ECF No. 1 at 4.) However, as
stated, Cole does not specify what Holt actually told Judge Breen.

Therefore, the

complaint necessarily fails to “state a claim for relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
Furthermore, to the extent Cole has sued Defendant Holt merely because of his
position as the U.S. Marshal for this district, he has no claim. Under both 42 U.S.C.
§ 1983 and Bivens, “[g]overnment officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal,
556 U.S. at 676; see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus,
“a plaintiff must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific
incident of misconduct or in some other way directly participated in it. At a
minimum, a § 1983 plaintiff must show that a supervisory official at least
implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinates.

8

Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official, who is aware of the
unconstitutional conduct of his subordinates, but fails to act, generally cannot be held
liable in his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);
Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28
(6th Cir. 1996). The complaint does not sufficiently allege that Defendant Holt, through
his own actions, violated Cole’s rights.
Cole has also filed his claim pursuant to the FTCA. Under the FTCA, “[t]he
United States shall be liable, respecting the provisions of this title relating to tort claims,
in the same manner and to the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to judgment or for punitive
damages.” 28 U.S.C. § 2674. Under 28 U.S.C. § 1346(b)(1), the federal courts have
jurisdiction over claims for damages against the United States for personal injury “caused
by the negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.”
In order for the Court to have jurisdiction over Cole’s FTCA claim, he must have
first exhausted the claim by presenting it to the appropriate federal agency. See 28
U.S.C. § 2675(a). In his complaint, Cole alleges that he sent the appropriate claim form
to the USMS, where it was delivered on October 14, 2014; however, he had received no
response to the claim as of the date the complaint was signed, on May 1, 2015. (ECF No.
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1 at 2; see also ECF No. 1-3.) Under these circumstances, the Court will require a
response from the United States.
III. Conclusion
The Court DISMISSES all of Cole’s claims brought under 42 U.S.C. § 1983 and
Bivens for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). However, it is ORDERED that the Clerk shall
issue process for the United States on Cole’s claims under the FTCA and deliver that
process to the U.S. Marshal for service. Service shall be made on the United States
pursuant to Federal Rule of Civil Procedure 4(i)(1)(A)-(B). All costs of service shall be
advanced by the United States.
It is further ORDERED that Cole shall serve a copy of every subsequent document
he files in this cause on the attorney for the Defendant. He shall make a certificate of
service on every document filed. Cole shall familiarize himself with the Federal Rules of
Civil Procedure and this Court’s Local Rules.5
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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A copy of the Local Rules may be obtained from the Clerk. The Local Rules are also
available on the Court’s website at www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf.
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