Thomas v. United States of America
Filing
8
Memorandum Opinion and Order: For the reasons stated above, The court ORDERS that all claims asserted, or purported to be asserted, by plaintiff against any of the individual defendants in his/her official capacity be, and are hereby, dismissed with out prejudice pursuant to the authority of 28 U.S.C. §§ 1915(e) (2) and 1915A(b). The court further ORDERS that all claims asserted, or purported to be asserted, by plaintiff against any of the individual defendants in his/her individual ca pacity be, and are hereby, dismissed pursuant to the authority of 28 U.S.C. §§ 1915 (e) (2) and 1915A(b). The court further ORDERS that from this point forward United States of America is the only defendant in this action and that the style of this action shall be "Vincent E. Thomas, plaintiff, v. United States of America, defendant." (Ordered by Judge John McBryde on 3/24/2017) (hth)
U.S. DISTRICT COURT
NORTHERl'\f DlSTRlCT OF TEXAS.
IN THE UNITED STATES DISTRICT OURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
MAR 2 L1 2017
CLERK, U.S. Di.;;
BY------~==.-------
VINCENT E. THOMAS,
§
§
Plaintiff,
§
§
vs.
§
§
UNITED STATES OF AMERICA, ET AL.§
Deputy
NO. 4:17-CV-240-A
§
Defendants.
§
MEMORANDUM OPINION
and
ORDER
After having conducted the preliminary screening
contemplated by 28 U.S.C. § 1915A(a), the court has concluded
that pursuant to the directives of §1915A(b), certain of the
claims asserted in the above-captioned action should be
dismissed, but that the claims against United States of America
should be allowed to proceed.
I.
Nature of the Action and Identities of Defendants
A.
:"""/''{"'
',) f'-.l
The Charges
Plaintiff, Vincent E. Thomas, an inmate of FCI Fort Worth, a
facility of the United States Bureau of Prisons, filed this
action on March 20, 2017, complaining that because of "the
Defendants [sic] failure to exercise the ordinary care required,
and failure to address the Plaintiff's serious, life threatening,
extremely painful, emergent medical needs [he] now suffers from
life long, permanent disability."
Doc. 1 at 10 . 1
He sought and
received in forma pauperis status for the filing of the action.
Plaintiff alleged that he suffered a stroke in January 2014
that could have been avoided if he had been given proper care and
treatment at his place of confinement (FCI Fort Worth), and that
such conduct of defendants constituted a violation of his
constitutional rights and negligence, and caused him to suffer
physical pain and mental anguish, in the past and future,
disfigurement, in the past and future, physical impairment, in
the past and future, permanent disability, in the past and
future, medical expenses in the future,
loss of bodily function.
loss of future wages, and
Id. at 11-12.
Plaintiff also alleged
that after he suffered a stroke in January 2014, and was returned
"to the facility," he had trouble trying to obtain treatment for
the injuries caused by the stroke.
Id. at 9-10.
Plaintiff sued each defendant other than the United States
of America in the defendant's official and individual capacities.
His claims against United States of America appear to be based on
the Federal Tort Claims Act, 28 U.S.C.
§
2671, et seq.; id. at 1-
2, 11, and, his claims against the other defendants in their
'The "Doc. _"references are to the numbers assigned to the referenced items on the docket in
this Case No. 4:17-CV-240-A.
2
individual capacities were brought pursuant to Bivens v. Six
Unknown Named Agents, 403 u.s. 388 (1971} . 2
Id. at 1, 10-11.
Plaintiff alleged that defendants violated his Eighth Amendment
constitutional rights by being deliberately indifferent to his
serious, life threatening, emergent medical needs.
B.
Id. at 10.
The Defendants
The defendants named in the complaint are:
1.
United States of America;
2.
Rodney Chandler ("Chandler"}, who is identified as the
Warden of FCI Fort Worth;
3.
Todd Williamson ("Williamson"}, who is identified as
the Health Services Administrator, FCI Fort Worth;
4.
Fateh Hyder ("Hyder"}, Clinical Director, FCI Fort
Worth;
5.
Butch Tubera ("Tubera"}, Doctor, FCI Fort Worth;
6.
A. Baruti ( "Baruti"}, Doctor, FCI Fort Worth;
7.
Nurse Sayarath ("Sayarath"}, FCI Fort Worth;
8.
Nurse Barkman ("Barkman"}, FCI Fort Worth; and
9.
Correctional Officer Ramon ("Ramon"}, FCI Fort Worth.
'Plaintiff made reference on page 2 of his complaint to 28 U.S.C. § 1367(a), which pertains to
supplemental jurisdiction. The court does not interpret the complaint as alleging any claims over which
the court would have subject matter jurisdiction pursuant to § 1367(a).
3
II.
The Court's Obligations Under§ 1915A
Sections 1915A(a) and (b) provide as follows:
(a) Screening.-The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
governmental entity.
(b) Grounds for dismissal.-On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
complaint-(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who
is immune from such relief.
28 u.s.c. § 1915A(a)
&
(b) . 3
Thus, the court is obligated at this time to review
plaintiff's complaint against the government and officers and
employees of the government to identify cognizable claims and
dismiss the complaint, or any portion of the complaint, if it or
'Because of plaintiff's in forma pauperis status, 28 U.S.C. § 1915(e)(2) applies. It reads as
follows:
(2)
Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines that-(A)
the allegation of poverty is untrue;
(B)
the action or appeal-(i)
is frivolous or malicious;
(ii)
fails to state a claim on which relief may be granted; or
(iii)
seeks monetary relief against a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2).
4
any part of it is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
The basic principles
to be considered in determining whether the court should dismiss
a claim for one of those statutory reasons are as follows:
A.
Frivolousness
A claim is frivolous if it "lacks an arguable basis either
in law or in fact."
(1989).
Neitzke v. Williams, 490 U.S. 319, 325
The •term 'frivolous,' when applied to a complaint,
embraces not only the inarguable legal conclusion, but also the
fanciful factual allegation.•
Id.
When evaluating the frivolousness issue, the court is to
bear in mind that the
§
1915 review provisions for possible sua
sponte dismissal are "designed largely to discourage the filing
of, and waste of judicial and private resources upon, baseless
lawsuits that paying litigants generally do not initiate because
of the costs of bringing suit and because of the threat of
sanctions for bringing vexatious suits . . .
that end, the statute •accords judges . .
•
Id. at 327.
. the unusual power to
pierce the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless.•
Id.; see also Denton v. Hernandez, 504 U.S. 25, 32
(1992).
5
To
With respect to a district court's evaluation as to whether
facts alleged are "clearly baseless," the Supreme Court in
Denton, in response to a request that it define the "clearly
baseless" guidepost with more precision, said "we are confident
that the district courts, who are 'all too familiar' with
factually frivolous claims, are in the best position to determine
which cases fall into this category," and thus declined "the
invitation to reduce the 'clearly baseless' inquiry to a
monolithic standard."
Denton, 506 U.S. at 33
(citation omitted).
The Neitzke and Denton decisions both dealt with a version
of 28 U.S.C.
§
1915 that contained in its subsection (d) an
authorization for the district court to dismiss a claim filed in
forma pauperis "if satisfied that the action is frivolous."
Neitzke, 490 U.S. at 324; Denton, 504 U.S. at 27.
current version of
§
While the
1915 still mandates in its subsection
(e) (2) (B) (i) dismissal of an in forma pauperis complaint if it is
frivolous,
the court's focus here is the part of the Prisoner
Litigation Reform Act codified as 28
u.s.c.
§
1915A, which
directs the court to review "as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee
of a governmental entity"
(28 U.S.C.
6
§
1915A(a)), and, on review,
to "dismiss the complaint, or any portion of the complaint, if
the complaint is frivolous," 28 U.S.C.
1915A(b).
§
The court has no reason to think that the Supreme Court or
the Fifth Circuit would give to the "frivolous• dismissal
provision of
§
1915A a narrower meaning than that given to the
similar dismissal provision in
1915.
§
In its unpublished
opinion in Widner v. Aguilar, 398 F. App•x 976, 978-79 (5th Cir.
2010), the Fifth Circuit equated the two.
history of
§
The legislative
1915A suggests that the courts could well have even
broader discretion in the frivolousness evaluations in litigation
filed by prisoners against the government or prison employees or
officials.
B.
Maliciousness
In Ballentine v. Crawford, 563 F. Supp. 627, 628-29 (N.D.
Ind. 1983), the court held that "a complaint plainly abusive of
the judicial process is properly typed 'malicious' within the
context of Section 1915(d) which authorizes immediate dismissal
of the same."
A suit brought for the purpose of harassing the
defendants is brought maliciously.
Daves v. Scranton, 66 F.R.D.
5, 8 (E.D. Pa. 1975).
C.
Failure to State a Claim
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides,
in a general way, the applicable standard of pleading.
7
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. S(a) (2), "in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted) .
(internal
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true,
it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556
u.s.
662, 679 (2009)
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12 (b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.
Id.
To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient.
U.S. at 566-69.
Twombly, 550
"Determining whether a complaint states a
8
plausible claim for relief .
[is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense."
Iqbal, 556 U.S. at 679.
The pleading standards stated above apply separately to each
claim and each defendant in a plaintiff's complaint.
D.
Immunity From Relief
Each of the individual defendants is eligible to assert the
qualified immunity defense as to each claim asserted against her.
Although a plaintiff is not obligated to anticipate such a
defense in his complaint at the risk of dismissal under Rule 12
of the Federal Rules of Civil Procedure, see Schultea v. Wood, 47
F. 3d 1427, 1430 (5th Cir. 1995), the wording of
§
1915 (e) (2) (B) (iii) suggests that qualified immunity is a factor
the court should consider as part of the
§
1915 review process.
Qualified immunity insulates a government official from
civil damages liability when the official's actions do not
"violate clearly established statutory or constitutional rights
of which a reasonable person would have known."
Fitzgerald, 457 U.S. 800, 818 (1982).
Harlow v.
For a right to be "clearly
established," the right's contours must be "sufficiently clear
that a reasonable official would understand that what he is doing
violates that right."
(1987) .
Anderson v. Creighton, 483 U.S. 635, 640
Individual liability thus turns on the objective legal
9
reasonableness of the defendant's actions assessed in light of
clearly established law at the time.
Hunter v. Bryant, 502
u.s.
224, 228 (1991); Anderson, 483 U.S. at 639-40.
In Harlow, the court explained that a key question is
"whether that law was clearly established at the time an action
occurred" because "[i]f the law at that time was not clearly
established, an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly be
said to 'know' that the law forbade conduct not previously
identified as unlawful."
457
u.s.
at 818.
In assessing whether
the law was clearly established at the time, the court is to
consider all relevant legal authority, whether cited by the
parties or not.
Elder v. Holloway, 510
u.s.
510, 512
(1994).
If public officials of reasonable competence could differ on
the lawfulness of a defendant's actions, the defendant is
entitled to qualified immunity.
Malley v. Briggs, 475 U.S. 335,
341 (1986); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th
Cir. 1992).
• [A]n allegation of malice is not sufficient to
defeat immunity if the defendant acted in an objectively
reasonable manner.•
Malley, 475
u.s.
at 341.
In Hunter, the Supreme Court explained:
The qualified immunity standard •gives ample room for
mistaken judgments• by protecting "all but the plainly
incompetent or those who knowingly violate the law.•
10
Malley, [475 U.S.] at 343 . . . . This accommodation for
reasonable error exists because •officials should not err
always on the side of caution• because they fear being sued.
502 U.S. at 229.
There are two aspects to the qualified immunity inquiry.
one is a decision as to whether the facts alleged and shown make
out a violation of a constitutional right, and the other is
whether the right at issue was clearly established at the time of
the defendant's alleged conduct.
In Pearson v. Callahan, the
Supreme Court held that district courts are authorized to
determine the order of deciding the two aspects.
242
555 U.S. 223,
(2009) . Inasmuch as the qualified immunity defense creates
entitlement to "immunity from suit rather than a mere defense to
liability
it is effectively lost if a case is erroneously
permitted to go to trial."
Id. at 231 (emphasis added).
III.
Analysis
At this point, the court conducts its
§
1915A(b) review of
the claims against each of the defendants.
A.
United States of America
Consistent with this court's rulings in Muhammed v. United
States, 6 F. Supp. 2d 582, 594-95 (N.D. Tex. May 12, 1998), the
court concludes that the claims plaintiff has made against United
11
States of America, whether viewed to be pure negligence claims or
medical malpractice claims, are claims that are assertable under
the Federal Tort Claims Act.
They are claims that are within the
scope of liability created on the part of the United States by
28
u.s.c.
§
2674.
The court is not intending to comment on the
merit of any such claim, only that plaintiff appears to have
pleaded such a claim.
While limitations would bar all of the claims against the
remaining defendants, there does not appear to be basis for such
a bar of the claims alleged by plaintiff against United States of
America.
The applicable limitations period is six months after
the date of mailing of notice of final denial of the claim by the
agency to which it was presented.
28 U.S.C.
§
2401(b).
An
attachment to the complaint shows that the denial of plaintiff's
claim was mailed to him on September 20, 2016, by the
Department of Justice, Federal Bureau of Prisons.
u.s.
Doc. 1-1 at
ECF 15.'
While the court has concerns about the conclusory nature of
plaintiff's claims against United States of America, the court is
nevertheless allowing plaintiff to go forward with those claims.
4
ECF page number references are to the ECF header numbers at the tops of the pages.
12
B.
The Remaining Defendants
The defendants other than united States of America are
referred to in this memorandum opinion and order as the
"individual defendants."
For the reasons given below, the court
has concluded that all claims plaintiff has asserted against the
individual defendants should be dismissed.
At the outset, the court notes that the general description
of the allegedly wrongful conduct of the individual defendants
given in the introductory paragraphs on pages 3-6 of the
complaint have identical wording except for
(1) differences in
names and job titles and (2) the addition of the words "in
writing, and in administrative remedies" at the ends of the
penultimate sentences of the paragraphs pertaining to Chandler,
Williamson, and Hyder.
Doc. 1 at 2-6.
Eliminating the name and
job title, and including the added words, each of those
paragraphs is worded as follows:
[Name and job title] is being sued in both his [her]
official, and individual, capacities. [Name] had both
personal, and official, knowledge of the violations of
the Plaintiff's Constitutional rights and federal law.
[Name] knew of, and ignored, the excessive risk to the
Plaintiff's health. [Name] failed to provide treatment,
or to ensure that treatment was provided, when the
Plaintiff addressed him [her] in person, in writing,
and in administrative remedies. [Name] used the power
of his [her] position and/or office, or had knowledge
13
of, or took actions that violated the Plaintiff's
Constitutional rights and/or federal law.
1.
The Official Capacity Claims
The court is not giving effect to the official capacity
claims as to any of the individual defendants.
They are deemed
to be claims against United States of America of which each of
the individual defendants is an officer or employee.
See
Kentucky v. Graham, 473 U.S. 159, 166 (1985).
2.
Use of the Word "Defendants" in the Complaint
Plaintiff's repeated references in the complaint to
activities of "defendants," without specifying or identifying a
particular defendant (such as repeated allegations of that nature
made on pages 10 and 11 of the complaint, Doc. 1 at 10-11), are
not to be given effect as to any individual defendant in an
evaluation of whether facts are alleged from which the court
could plausibly infer that defendant did or failed to do
something that would be a legal basis for a claim against that
defendant.
See Griggs v. State Farm Lloyds, 181 F.3d 694, 699
(5th Cir. 1999).
3.
Plaintiff's Conclusory Allegations
Nor are the conclusory allegations plaintiff made throughout
the complaint to be taken into account in the court's evaluation
14
of whether plaintiff has stated a plausible cause of action
against an individual defendant.
4.
The 28 U.S.C.
§§
2679 (b) (1)- (2)
Immunity
Also applicable to each of the individual defendants is the
immunity created by 28 U.S.C.
constitutional claims.
§§
2679 (b) (1)- (2)
from non-
Those sections cause United States of
America to be the exclusive defendant as to all of the claims of
the kind asserted in this action, other than constitutional
claims.
5.
The Limitations Bar as to the Bivens Claims
Thus, the only claims plaintiff can assert against the
individual defendants are Bivens claims.
Plaintiff described his
claims in the complaint as being based on events that occurred in
January and early-February 2014.
Doc. 1-1 at 11-12.
The statute
of limitations applicable to his Bivens claims is two years.
Brown v. NationsBank Corp., 188 F.3d 579, 590 (5th Cir. 1999).
He did not bring this action until March 20, 2017, over three
years after the events upon which he based his claims.
Therefore, claims of plaintiff against all individual defendants
are barred by limitations.
When a successful affirmative defense
such as limitations is apparent on the face of the pleadings,
dismissal is appropriate on that ground.
15
Kansa Reinsurance Co.
v. Cong. Mortg. Corp. Of Texas, 20 F.3d 1362, 1366 (5th cir.
19 94) .
6.
Sections 1915(e) (2) and 1915A(b) Each Requires
Dismissal
With the principles stated in Section II above in mind, the
court now discusses plaintiff's allegations as to each of the
individual defendants and the inadequacy of those allegations:
a.
Chandler
Other than the general, conclusory allegations at the
beginning of the complaint, Doc. 1 at 3, Chandler is mentioned
only two times in the complaint.
Plaintiff alleged on pages 9-10
that he "repeatedly tried to address his issues in person with
Warden Chandler during mainline," and that "all [Chandler) would
ever say was that [he'd) look into the issue and get back to the
Plaintiff."
Id. at 9-10.
Plaintiff added that he would
continually approach Chandler to remind him of the problem, and
that Chandler never took steps to correct any of the delays or
treatment issues.
Id. at 10.
The only other mention of Chandler
in the complaint is in the "Relief Requested" section where
plaintiff requested $1,000,000.00 from Chandler.
b.
Id. at 12.
Williamson
The allegations of the complaint against Williamson mirror
those made against Chandler. Id. at 3, 9-10, & 12.
16
c.
Hyder
The allegations against Hyder mirror those made against
Chandler and Williamson.
d.
Id. at 3, 9, & 12.
Tubera
Other than the general, conclusory allegations at the
beginning of the complaint, id. at 4, Tubera is mentioned only
two times in the complaint, id. at 9 & 12.
The allegation is
made that Tubera delayed seeing the plaintiff for the injuries
caused by his stroke after he returned to his facility.
9.
Id. at
In the "Relief Requested" section, plaintiff requested from
Tubera $1,000,000.00.
e.
Id. at 12.
Baruti
The allegations against Baruti mirror those against Tubera.
Id. at 4, 9, & 12.
f.
Sayarath
Sayarath is mentioned three times in the complaint.
5,
7,
& 12.
paragraph.
Id. at
The first mention was the usual introductory
Id. at 5.
Plaintiff alleged at page 7 that Sayarath,
a nurse, did sick rounds on the unit where he was situated a few
days before he had his stroke, that he explained to her his
symptoms and raised the concern of a stroke; and, he alleged that
she "simply said she did not want to hear it, and to put in a
sick call slip."
Id. at 7.
She kept repeating that, and at no
17
time during his discussion with her did she perform any kind of
exam, or triage, on the plaintiff.
Id.
When she told him to put
in a sick call slip, she said to submit it on Monday, even though
his conversation with her was on Friday.
Id.
Plaintiff included
in his "Relief Requested" paragraph a request of $1,000,000.00
from Sayarath.
g.
Id. at 12.
Barkman
Plaintiff's allegations against Barkman mirror those he made
against Sayarath.
h.
Id. at 5, 8, & 12.
Ramon
Ramon was mentioned four times in the complaint.
8, & 12.
Id. at 5-
The first mention was the usual introductory paragraph.
Id. at 5-6.
On pages 6-8, plaintiff alleged that on January 24,
2014, he informed Officer Ramon "about the need for immediate
medical assistance, and the concern of a stroke occurring," to
which Officer Ramon "simply stated that the nurse was due to do
her rounds, and refused to call control or medical, and that on
January 25, 2014, his symptoms were worse, and he "informed the
unit officer, Officer Ramon, of the need for immediate medical
assistance," and, plaintiff alleged that "Officer Ramon continued
to refuse to notify control, a supervisor, or medical, of the
need for immediate medical assistance"
18
Id. at 6-8.
Plaintiff
made his usual demand of relief of $1,000,000.00 from Ramon.
Id.
at 12.
* * * * *
Plaintiff's Bivens claims against the individual defendants
are claims of violation by each of them of plaintiff's rights
under the Eighth Amendment of the Constitution.
Deliberate
indifference to a prisoner's serious illness or injury
constitutes the basis for such a claim.
U.S. 97, 105-06 (1976).
Estelle v. Gamble, 429
A complaint that prison officials have
been negligent in treating a medical condition does not state a
valid claim of an Eighth Amendment violation.
Id. at 106.
"Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner."
Id.
"In order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs."
Id.
Whether
certain diagnostic techniques or forms of treatment are indicated
"is a classic example of a matter of medical judgment."
107.
Id. at
Such a medical decision does not represent cruel and
unusual punishment.
Id.
"At most it is medical malpractice
"
19
In Farmer v. Brennan, the supreme Court explained that:
[A] prison official cannot be held liable under
the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health and
safety; the official must both be aware of facts from
which the inference can be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.
511 U.S. 825, 837 (1994).
"The Eighth Amendment does not outlaw
cruel and unusual 'conditions'; it outlaws cruel and unusual
'punishments.'"
Id.
"[A]n official's failure to alleviate a
significant risk that he should have perceived but did not, while
no cause for commendation, cannot under [Supreme Court] cases be
condemned as the infliction of punishment."
Id. at 838.
Liability cannot be imposed on prison officials solely because of
the presence of objectively inhumane prison conditions.
Id.
"[Supreme Court] cases mandate inquiry into a prison official's
state of mind when it is claimed that the official has inflicted
cruel and unusual punishment."
Id.
(quoting Wilson v. Seiter,
501 u.s. 294, 299 (1991)).
The Fifth Circuit has been faithful to the principles
announced by the Supreme Court in Gamble and Farmer.
Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
See,
~,
In
Norton, the Fifth Circuit was not impressed with the inmate's
allegation that medical personnel should have attempted different
20
diagnostic measures or alternative methods of treatment,
explaining that "[d]isagreement with medical treatment does not
state a claim for Eighth Amendment indifference to medical
needs."
Id.
The Fifth Circuit explained that:
In order to show that his medical care violated the
Eighth Amendment, [the inmate] must allege that prison
officials were deliberately indifferent to his serious
medical needs. Deliberate indifference encompasses
only unnecessary and wanton infliction of pain
repugnant to the conscience of mankind.
"Subjective
recklessness," as used in the criminal law, is the
appropriate test for deliberate indifference.
Id. at 291 (citations omitted).
None of the facts alleged in the complaint as to any of the
individual defendants enables the court to infer that plaintiff
has a plausible Eighth Amendment claim against any of them.
There was no allegation that any of them acted with deliberate
indifference to any serious illness or medical need of plaintiff;
nor did he allege any facts from which such an inference would be
the most reasonable to be drawn.
In each instance, the
conclusory allegations he alleged against the individual
defendants could have perfectly reasonable and innocent
explanations that would not constitute deliberate indifference.
As the Fifth Circuit explained in Gobert v. Caldwell,
"[u]nsuccessful medical treatment, acts of negligence, or medical
malpractice do not constitute deliberate indifference," and that
21
deliberate indifference is an extremely high standard to meet.
463 F.3d 339, 346 (5th Cir. 2006).
Plaintiff has failed to meet that standard from a pleading
standpoint.
Therefore, plaintiff's claims against the individual
defendants must be dismissed by reason of his failure to state a
claim of violation of his Eighth Amendment rights upon which
relief may be granted.
In addition to that, the court is satisfied that dismissal
of all the claims against the individual defendants would be
appropriate on the ground that the assertion by plaintiff of
those claims was frivolous and malicious.
His shotgun approach
to the naming of the individual defendants, starting with the
Warden of the prison going through nursing personnel and a
correctional officer, is a badge of a frivolous and malicious
complaint by an inmate about the conduct of prison personnel.
If
no other ground for dismissal existed, that would provide basis
for dismissal of plaintiff's claims against the individual
defendants.
Finally, plaintiff has not alleged any facts that would
overcome the qualified immunity defense to which each of the
individual defendants is entitled, thus providing yet another
reason why all claims against the individual defendants should be
dismissed.
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IV.
Conclusion
Summing up the rulings of the court,
1.
The court is allowing plaintiff's action against United
States of America to proceed.
2.
The court is dismissing all of the claims against the
individual defendants for the following reasons:
a.
The official capacity claims are deemed to be
claims against United States of America, and must be
dismissed without prejudice.
b.
To whatever extent plaintiff purports to be
asserting non-constitutional claims against any of the
individual defendants, those claims would have to be
dismissed pursuant to the authority of 28 U.S.C.
§§
2679 (b) (1)- (2).
c.
All that would remain would be plaintiff's Bivens
claims against the individual defendants.
All those claims
are barred by limitations.
d.
Plaintiff's claims against the individual
defendants are frivolous and malicious.
e.
Plaintiff has failed to plead facts from which the
court can infer that plaintiff has a plausible claim of any
23
kind against an individual defendant upon which relief may
be granted.
f.
Each of the individual defendants has qualified
immunity from the monetary relief sought by plaintiff.
v.
Order
For the reasons stated above,
The court ORDERS that all claims asserted, or purported to
be asserted, by plaintiff against any of the individual
defendants in his/her official capacity be, and are hereby,
dismissed without prejudice pursuant to the authority of
28 U.S.C.
§§
1915(e) (2) and 1915A(b).
The court further ORDERS that all claims asserted, or
purported to be asserted, by plaintiff against any of the
individual defendants in his/her individual capacity be, and are
hereby, dismissed pursuant to the authority of 28 U.S.C.
§§
1915 (e) (2) and 1915A(b).
The court further ORDERS that from this point forward United
States of America is the only defendant in this action and that
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the style of this action shall be "Vincent E. Thomas, plaintiff,
v. United States of America, defendant."
SIGNED March 24, 2017.
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