Blank v. United States of America et al
Filing
50
MEMORANDUM OPINION AND ORDER: The court ORDERS that movants' 30 motion to dismiss be, and is hereby, granted in part and the claims against Shead, Riley, White, Zagotti, and Chandler be, and are hereby, dismissed. The court determines that t here is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of the claims against said defendants. The court ORDERS that the motion be, and is hereby, otherwise denied. (Ordered by Judge John McBryde on 11/17/2017) (bdb)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
FILED
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NOV I 7 20!7 [
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TRAVIS BLANK,
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CLERK, U.S. DISTRICT COURT
§
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Plaintiff,
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vs.
§
NO. 4:17-CV-609-A
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UNITED STATES OF AMERICA, ET AL.§
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Defendants.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendants Lawanda
Shead ("Shead"), Aminia Baruti ("Baruti"), James Riley ("Riley"),
Ronald White ("White"), Chris Zagotti ("Zagotti"), and Rodney
Chandler ("Chandler") (collectively "movants") to dismiss. The
court, having considered the motion, the response of plaintiff,
Travis Blank, the reply, the record, and applicable authorities,
finds that the motion should be granted in part.
I.
Plaintiff's Claims
Plaintiff, a prisoner at FMC-Fort Worth, complains of
treatment he received while incarcerated there. Plaintiff asserts
claims against United States of America under the Federal Tort
Claims Act and claims against movants under Bivins v. Six Unknown
Named Agents, 403 U.S. 388
(1971). Plaintiff complains of medical
treatment provided by Shead and Baruti and sues the other movants
for failing to address a pigeon infestation at the facility, all
of which he alleges caused him grievous harm. Doc.' 3.
Briefly, plaintiff alleges that he has Crohn's disease and
takes medication that weakens/compromises his immune system. He
says that he is designated as a "Care Level 3 inmate." Doc. 3 at
11, , 21. Plaintiff developed a rash common to hundreds of
inmates at the facility. His doctor, Baruti, was deliberately
indifferent to plaintiff's medical needs. Shead, a nurse,
knowingly caused him to undergo treatments that were ineffective
and caused plaintiff extreme pain. Riley, White, Zagotti and
Chandler were aware of and consciously disregarded a pigeon
infestation at the facility that caused inmates, including
plaintiff, to be exposed to dangerous conditions. Plaintiff
developed histoplasmosis as a result of the exposure and
continues to suffer as a result.
II.
Grounds of the Motion
Movants allege that plaintiff has failed to state plausible
claims against them. They alternatively argue that they are
entitled to qualified immunity.
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'The "Doc.
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III.
Applicable Legal Principles
A.
Pleading Standards
Rule 8 (a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
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, the facts pleaded must allow the court to infer
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that the plaintiff's right to relief is plausible.
U.S. at 678.
Igbal, 556
To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
relief .
[is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense."
Id.
As the Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading.• Anderson v. U.S. Dep't of
Housing
&
Urban Dev., 554 F.3d 525, 528
(5th Cir.
2008).
In sum,
"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint
must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29. Further,
the complaint must specify the acts of the defendants
individually, not collectively, to meet the pleading standards of
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Rule 8(a). See Griggs v. State Farm Lloyds, 181 F.3d 694, 699
(5'" Cir. 1999); see also Searcy v. Knight (In re Am. Int'l
Refinery), 402 B.R. 728, 738
(Bankr. W.D. La. 2008).
In considering a motion to dismiss for failure to state a
claim, the court may consider documents attached to the motion if
they are referred to in the plaintiff's complaint and are central
to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d
533, 536 (5'" Cir. 2003). The court may also refer to matters of
public record. Davis v. Bayless, 70 F.3d 367, 372 n.3
1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6
(5'" Cir.
(5'" Cir. 1994).
This includes taking notice of pending judicial proceedings.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.1
(5'" Cir.
2003). And, it includes taking notice of governmental websites.
Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457
(5'" Cir.
2005); Coleman v. Dretke, 409 F.3d 665, 667 (5'" Cir. 2005).
B.
Qualified Immunity
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
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violates that right.•
(1987).
Anderson v. Creighton, 483 U.S. 635, 640
Individual liability thus turns on the objective legal
reasonableness of the defendant's actions assessed in light of
clearly established law at the time.
224, 228
Hunter v. Bryant, 502 U.S.
(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."
at 818.
457 U.S.
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.
510, 512
(1994).
Elder v. Holloway, 510 U.S.
If public officials of reasonable competence
could differ on the lawfulness of 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 analyzing whether an individual defendant is entitled to
qualified immunity, the court considers whether plaintiff has
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alleged any violation of a clearly established right, and, if so,
whether the individual defendant's conduct was objectively
reasonable.
Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett
v. City of Cedar Park,
so doing,
950 F.2d 272, 276-80
(5th Cir. 1992).
In
the court should not assume that plaintiff has stated a
claim, i.e., asserted a violation of a constitutional right.
Siegert, 500 U.S. at 232.
Rather, the court must be certain
that, if the facts alleged by plaintiff are true, a violation has
clearly occurred.
(5th Cir. 1989) .
Connelly v. Comptroller, 876 F.2d 1209, 1212
A mistake in judgment does not cause an officer
to lose his qualified immunity defense.
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."
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.
When a defendant relies on qualified immunity, the burden is
on the plaintiff to negate the defense. Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010); Foster v. City of Lake
Jackson, 28 F.3d 425, 428
(5th Cir. 1994). Although Supreme Court
precedent does not require a case directly on point, existing
precedent must place the statutory or constitutional question
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beyond debate. White v. Pauly, 137 S. Ct. 548, 551 (2017). That
is, the clearly established law upon which plaintiff relies
should not be defined at a high level of generality, but must be
particularized to the facts of the case. Id. at 552. Thus, the
failure to identify a case where an officer acting under similar
circumstances was held to have violated a plaintiff's rights will
most likely defeat the plaintiff's ability to overcome a
qualified immunity defense. Id.; Surratt v Mcclarin, 851 F.3d
389, 392
(5th Cir. 2017).
IV.
Analysis
A.
Medical Claims
The bulk of plaintiff's complaint is devoted to the alleged
actions and inactions of Shead, said to be an infectious diseases
nurse, and Baruti, the doctor assigned to oversee plaintiff's
healthcare.
Plaintiff alleges that Shead forced plaintiff to undergo
scabies treatment two times even though he never tested positive
for such, was never diagnosed as having scabies, or ordered to
undergo scabies treatment. Doc. 3 at 4,
~
12. However, plaintiff
further pleads that a dermatologist he saw said that plaintiff
"most likely has scabies" and recommended treatment for it. Id.
at 18-19,
~
49. The next day, Shead informed plaintiff that he
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and his roommates would be isolated and treated for scabies. Id.
at 19, ,
50. The remainder of plaintiff's allegations regarding
Shead are conclusory, e.g., that Shead was deliberately
indifferent, acted contrary to established due process
protections, and engaged in acts of medical malpractice or
negligence. Id. at 43, , 124; 49, , 136. The complaint does not
describe the alleged second incident of scabies treatment. The
facts alleged are insufficient to show more than a disagreement
with the treatment provided, which is insufficient to state a
claim. Norton v. Dimazana, 122 F.2d 286, 292
Banuelos v. McFarland, 41 F.3d 232, 235
(5th Cir. 1997);
(5th Cir. 1995).
Plaintiff's allegations regarding Baruti take up the
majority of the complaint. Plaintiff recognizes that to state a
claim against her he must do more than show that she committed
malpractice. He attempts to do so by alleging that Baruti
intentionally and knowingly refused to examine plaintiff at a
time plaintiff was suffering from an unknown but severe rash.
Doc. 3 at 5, , 13. Plaintiff says that Baruti ignored requests
from nurses, physician's assistants, and health services
personnel and ignored BOP policy requiring that she examine him.
Id.
As movants note, plaintiff's complaint reflects that he
constantly complained about medical care and was seen by medical
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personnel on a consistent basis. Nevertheless, the court is
satisfied that plaintiff has at least pleaded a plausible claim
against Baruti for deliberate indifference to his serious medical
needs. He alleges that she was responsible for overseeing his
medical care but only belatedly reviewed his medical records,
e.g., Doc. 3 at 16, , , 40, 42; 23, ,
67. At times, she refused to
see plaintiff. See, e.g., id. at 16, , 42
(nurse told plaintiff
that Baruti refused to see him and there was nothing the nurse
could do); 17, , 43
(another provider informs Baruti that
plaintiff has been to seven sick calls in seven weeks with severe
rash, unbearable burning and itching and inability to sleep, but
she refuses to see plaintiff); 18, , 46
(medical providers note
that Baruti has been informed by them that she should see
plaintiff but will not) . And, she refused to prescribe medication
as recommended by other doctors or healthcare providers. Id. at
22, ,
61; 32, , , 102, 104. Plaintiff suffered a severe rash that
interfered with his daily living, yet continued to receive the
same treatment over and over despite its ineffectiveness. The
scabies treatments did not help, but actually made things worse.
Id. at 20, ,, 54, 55. Caregivers and the pharmacist told
plaintiff that the steroidal cream he was given was damaging to
his skin. Id. at 18, , 48; 23, ,
68. The shots he received were
also harmful. Id. at 23-24, ,, 70, 71, 73. These allegations are
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sufficient to overcome the motion to dismiss as to Baruti. That
plaintiff was seen numerous times by other caregivers does not
excuse the conduct of Baruti. Murrell v. Bennett, 615 F.2d 306,
310 n.4
B.
(5th
Cir. 1980).
Pigeon Infestation
Plaintiff alleges that the remaining movants, Riley, White,
Zagotti, and Chandler, violated the Eighth Amendment by failing
to adequately address a pigeon infestation with the result that
plaintiff contracted histoplasmosis, a fungal infection, in his
lungs. The Supreme Court has recently explained that a Bivens
claim may only be asserted in three limited sets of
circumstances, none of which exists here with regard to the
pigeon infestation. Ziglar v. Abbasi, 137 S. Ct. 1843, 1854-55
(2017). And, in any event, plaintiff has not cited, and the court
is unable to find, any decision that would have put these
defendants on notice that their actions or inactions with regard
to the pigeons would subject them to liability, i.e., constituted
a clear violation of plaintiff's constitutional rights. White,
137 S. Ct. at 552; Surratt, 851 F.3d at 392. Accordingly, the
claims against them must be dismissed.
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v.
Order
The court ORDERS that movants' motion to dismiss be, and is
hereby, granted in part and the claims against Shead, Riley,
White, Zagotti, and Chandler be, and are hereby, dismissed.
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of the claims against said defendants.
The court ORDERS that the motion be, and is hereby,
otherwise denied.
I
SIGNED November 17, 2017.
JOH}i' McB
.Un/ted Stat
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