Richardson v. United States of America et al
Filing
77
MEMORANDUM OPINION regarding plaintiff's complaint. Signed by District Judge Thad Heartfield on 3/1/2019. (bjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
BRYAN KEITH RICHARDSON
§
VS.
§
LORETTA LYNCH, ET AL.
§
CIVIL ACTION NO. 1:16-CV-35
MEMORANDUM OPINION
Plaintiff Bryan Keith Richardson, a prisoner previously confined at the United States
Penitentiary in Beaumont, Texas, proceeding pro se and in forma pauperis, filed this civil rights
action pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971),1 against former Attorney General Loretta Lynch, Bureau of Prisons Director Charles
Samuels, Jr., Physician Assistant Henderson, Health Service Administrator Mallett, Nurse Byrd, Dr.
Sreedhar Polavarapu, Dr. Michael Oszcakiewicz, Acting Regional Counsel Jason Sickler, Acting
Regional Director D. J. Harmon, Warden Frank Lara, Administrator of National Inmate Appeals Ian
Connors, Dr. Reddy Keshava, and League Medical Concepts. Plaintiff alleges he received
inadequate medical care for a torn meniscus and a mass in his lung.
Factual Background
Plaintiff was transferred to the Beaumont penitentiary on July 24, 2015. At the time of his
transfer, plaintiff alleges he suffered from a torn meniscus in his left knee and a possible lung tumor.
Plaintiff was seen by a physician, defendant Polavarapu, for a chronic care visit on August 4, 2015.
Plaintiff subsequently complained to defendant Mallett, the Health Service Administrator, that he
was dissatisfied with the pain reliever prescribed by defendant Polavarapu. Defendant Mallett
responded that petitioner had been prescribed Gabapentin for nerve pain, neuralgia neuritis,
radiculitis, and derangement of posterior medial meniscus. Defendant Mallett stated that the
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Plaintiff also identified the United States of America as a defendant. In addition to the Bivens claims
raised against individual defendants, plaintiff contends the United States of America is liable for damages under the
Federal Tort Claims Act (FTCA) for medical malpractice and negligence in the treatment of his knee injury and possible
lung tumor. Plaintiff has filed an FTCA action concerning those claims. Because the FTCA claims are being addressed
in Civil Action No. 1:16-CV-62, they will not be addressed in this action.
prescription was later discontinued due to plaintiff’s refusal to take it, and he was prescribed
Naproxen. Defendant Mallett also told plaintiff that the physician ordered a cane and a knee brace
for him.
On September 7, 2015, plaintiff sent an electronic message to defendant Mallett in which he
complained that he was not properly treated for his “serious lung tumor” and was not scheduled for
surgery to repair his torn meniscus. Defendant Mallett responded that the physician had concluded
that orthopedic surgery was not needed at that time.
Plaintiff complained about his medical treatment to the warden and filed administrative
remedies complaining about the delayed orthopedic surgery on his knee. On September 7, 2015,
defendant Lara responded that the medical staff indicated that the knee condition was not life
threatening, and he advised plaintiff that the orthopedic surgery would be scheduled after plaintiff
completed treatment for the mass in his lung. On September 11, 2015, defendant Lara notified
plaintiff that he had a medical appointment scheduled for September 16, 2015. On September 24,
2015, defendant Connors advised plaintiff that he would be scheduled for knee surgery in the near
future. Plaintiff also complained about his medical treatment to defendants Samuels and Sickler.
On October 14, 2015, a CT scan of plaintiff’s chest showed a mass in his right lung. On
October 23, 2015, the results were reviewed by defendant Polavarapu, who advised referring plaintiff
to a specialist for a biopsy. On October 28, 2015, plaintiff was sent to Associated Cardiovascular
and Thoracic Surgeons for an office consultation. After conducting a physical examination and
reviewing the films, the specialist, defendant Osczakiewicz, recommended a “right thoracotomy with
wedge resection of the right lower lung mass and possible lobectomy.”
On November 10, 2015, plaintiff had surgery at Baptist Hospital in Beaumont. The
pathology report reflected that two biopsy samples and the section of the lung containing the mass
were negative for malignancy, but the samples were consistent with an infection. On November 17,
2015, plaintiff was evaluated by an infectious disease specialist, defendant Keshava. Defendant
Keshava recommended various tests, and suggested that plaintiff start on tuberculosis medications
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due to the possibility that the lung damage was caused by tuberculosis. Plaintiff remained in the
hospital until November 23, 2015. Prior to his release, plaintiff had additional chest x-rays and was
tested for tuberculosis. The initial tuberculosis test result was negative, but plaintiff was treated for
tuberculosis pending the final results from the tissue cultures. The x-ray report showed that “the
right pneumothorax is resolved. There are strandy scarring or atelectatic changes which persist in
the right base unchanged.”
On January 11, 2016, plaintiff went to his weekly medical appointment with Nurse Young,
who examined him and advised plaintiff to come back later to by seen by defendant Henderson, a
Physician’s Assistant. Defendant Henderson ordered a chest x-ray. On January 12, 2016, plaintiff
saw defendant Polavarapu. Plaintiff reported swelling and pain below his ribs. Defendant
Polavarapu told plaintiff that it was “nothing,” that plaintiff did not have tuberculosis, and that he
would inquire as to when the tuberculosis medications could be discontinued.
Plaintiff went to an appointment at the Beaumont Bone and Joint Clinic on March 8, 2016.
The clinic notes upon his return to the prison reflect that plaintiff was tentatively scheduled for
arthroscopic surgery on his knee on May 7, 2016. Plaintiff alleges he had surgery to repair his torn
meniscus in May 2016.
On June 29, 2016, plaintiff was transferred to the Federal Correctional Institution in El Reno,
Oklahoma.
Standard of Review
An in forma pauperis proceeding may be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)
if it: (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or
(3) seeks monetary relief from a defendant who is immune from such relief.
A complaint, containing as it does both factual allegations and legal conclusions, is frivolous
where it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). A complaint lacks an arguable basis
in law if it is based on an indisputably meritless legal theory. See Siglar v. Hightower, 112 F.3d 191,
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193 (5th Cir. 1997). A complaint lacks an arguable basis in fact if, after providing the plaintiff the
opportunity to present additional facts when necessary, the facts alleged are clearly baseless. Denton
v. Hernandez, 504 U.S. 25, 32 (1992).
A complaint does not need detailed factual allegations, but the plaintiff must allege sufficient
facts to show more than a speculative right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). Dismissal for failure to state a claim is appropriate if the complaint does not include
enough facts to state a claim that is plausible on its face. Id. at 570. Conclusory allegations and a
formulaic recitation of the elements of a cause of action will not suffice to prevent dismissal for
failure to state a claim. Id. at 555.
Analysis
A victim who has suffered a constitutional violation by a federal actor may recover damages
in federal court. Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 39597 (1971). A Bivens action is analogous to an action brought under 42 U.S.C. § 1983, which applies
to constitutional violations by state, rather than federal, officials. Abate v. Southern Pac. Transp.
Co., 993 F.2d 107, 110 n.14 (5th Cir. 1993). Thus, the analysis of plaintiff’s claims are the same
regardless of whether they arise under § 1983 or Bivens. See Evans v. Ball, 168 F.3d 856, 862-63
(5th Cir. 1999)(“Because a Bivens action parallels a § 1983 action, we reason that a plaintiff
attempting to base a Bivens claim on a prosecution unsupported by probable cause must establish
all the elements of malicious prosecution....”).
Plaintiff contends the defendants violated his Eighth Amendment right to be free from cruel
and unusual punishment by delaying his knee surgery and by unnecessarily removing part of his
lung. Although the Eighth Amendment does not explicitly mandate a certain level of medical care
for prisoners, the cruel and unusual punishment clause of the United States Constitution has been
interpreted to impose a duty on prison officials to provide inmates with adequate food, clothing,
shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Stewart v. Murphy, 174
F.3d 530, 533 (5th Cir. 1999). A prison official’s deliberate indifference to the serious medical
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needs of a prisoner constitutes the unnecessary and wanton infliction of pain proscribed by the
Eighth Amendment, whether the indifference is manifested by prison doctors or by prison guards.
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); Domino v. Texas Dep’t of Criminal Justice, 239 F.3d
752, 754 (5th Cir. 2001).
An Eighth Amendment claim consists of two components--one objective and one subjective.
Farmer, 511 U.S. at 839. To satisfy the objective requirement, the plaintiff must prove that he was
exposed to a substantial risk of serious harm. Id. at 834; Lawson v. Dallas County, 286 F.3d 257,
262 (5th Cir. 2002). The plaintiff must also demonstrate that the defendant was deliberately
indifferent to that risk. See Farmer, 511 U.S. at 834; Lawson, 286 F.3d at 262. The deliberate
indifference standard is a subjective inquiry; the plaintiff must establish that the defendant was aware
of an excessive risk to plaintiff’s health or safety, and yet consciously disregarded the risk. Farmer,
511 U.S. at 840-41; Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002); Stewart, 174 F.3d at
534.
Under exceptional circumstances, the defendant’s knowledge of a substantial risk of harm
may be inferred by the obviousness of the risk. Farmer, 511 U.S. at 842; Harris v. Hegman, 198
F.3d 153, 159 (5th Cir. 1999); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). Medical records
of sick calls, examinations, diagnoses, and medications may rebut an inmate’s allegations of
deliberate indifference. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
Mere negligence, neglect, or medical malpractice does not rise to the level of a constitutional
violation. Domino, 239 F.3d at 756 (“It is indisputable that an incorrect diagnosis by prison medical
personnel does not suffice to state a claim for deliberate indifference.”); Hall v. Thomas, 190 F.3d
693, 697 (5th Cir. 1999)(“[A]llegations of malpractice or negligence will never state a claim under
the Eighth Amendment.”); Stewart, 174 F.3d at 534. Nor does an inmate’s disagreement with his
medical treatment amount to an Eighth Amendment violation. Stewart, 174 F.3d at 537; Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). “Rather, the plaintiff must show that the officials
‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any
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similar conduct that would clearly evince a wanton disregard for any serious medical needs.’”
Domino, 239 F.3d at 756 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
Although plaintiff’s knee surgery was delayed, there are no factual allegations demonstrating
that the defendants were aware of plaintiff’s medical condition and chose not to treat it. The medical
records plaintiff submitted as part of his amended complaint show that the knee surgery was delayed
due to the mass in plaintiff’s lung, which the medical providers considered to be potentially life
threatening. Plaintiff’s allegations do not establish a wanton disregard of plaintiff’s knee injury. In
addition, plaintiff’s complaint about the pain medication he received is a disagreement over medical
care, which does not rise to the level of an Eighth Amendment violation.
Plaintiff contends that he should have had a biopsy or other testing to determine whether the
mass in his lung was malignant before he had surgery to remove that portion of his lung, and that he
should not have been prescribed medications to treat tuberculosis. At most, plaintiff’s allegations
support a finding that the defendants were negligent, but demonstrating that the defendants were
negligent or failed to act reasonably is not enough to show a constitutional violation. Mace v. City
of Palestine, 333 F.3d 621, 626 (5th Cir. 2003); Domino, 239 F.3d at 756 (“It is indisputable that an
incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate
indifference.”); Hall v. Thomas, 190 F.3d 693, 697 (5th Cir. 1999)(“[A]llegations of malpractice
or negligence will never state a claim under the Eighth Amendment.”); Stewart, 174 F.3d at 534.
Defendants Lynch, Samuels, Sickler, Harmon, Lara, and Connors were not personally
involved in plaintiff’s medical treatment; they only reviewed complaints and grievances plaintiff
filed regarding his medical care. Although plaintiff is dissatisfied with their responses, inmates do
not have a protected liberty interest in having grievances resolved to their satisfaction. Geiger v.
Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Plaintiff has not demonstrated that defendants Lynch,
Samuels, Sickler, Harmon, Lara, or Connors were aware of an excessive risk to plaintiff’s health or
safety, or that they consciously disregarded such a risk.
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Conclusion
For the reasons set forth above, this civil rights action is frivolous and fails to state a claim
upon which relief may be granted. Therefore, the action should be dismissed pursuant to 28 U.S.C.
§ 1915(e). A final judgment shall be entered in accordance with this Memorandum Opinion.
SIGNED this the 1 day of March, 2019.
____________________________
Thad Heartfield
United States District Judge
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