Opinion
CIV-18-763-D
09-24-2018
BRYAN KEITH RICHARDSON, Plaintiff, v. UNITED STATES OF AMERICA, et. al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a federal prisoner appearing pro se and in forma pauperis, brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Complaint pursuant to 28 U.S.C. § 1915A and 1915(e)(2)(B), the undersigned recommends certain Defendants be dismissed.
I. Factual Allegations
Plaintiff is currently incarcerated at United States Penitentiary Lompoc. Doc. No. 12 ("Am. Comp.") at 10. Plaintiff was previously incarcerated at the Federal Correctional Institution ("FCI") located in El Reno, Oklahoma. Id. at 1. In his Amended Complaint, Plaintiff names the United States of America and sixteen FCI employees as Defendants, including retired Correctional Officer, Rick Salmon; Food Service Correctional Officer, Mr. Coates; Correctional Officers, Jason Williams, Joseph Eglsaer, Ryan Doyle; Counselor Garza; Public Health Service Employee's Registered Nurses, Kassidy Burchette, Kevin Mackey, K. Orange, A. Russell, Kristi Egelston, S. Johnson, K. Deemers; Health Services Administrator Debra Aynes; Nurse Practitioner Jessina Graham; and, Lieutenant Sieja. Id.
Prior to the events underlying this action, Plaintiff suffered from a foot deformity that limited his footwear to soft toe shoes and resulted in a prohibition from working in a hazardous foot working environment. Id. at 2-3. Plaintiff alleges that following his submission of several complaints regarding the conduct of Defendant Salmon in February 2017, Defendant Salmon retaliated against him in violation of the First Amendment by assigning him to work in the kitchen beginning February 24, 2017, where steel toe boots are required, while knowing Plaintiff could not wear the required footwear. Id. at 2-4, 9, 10. Plaintiff further alleges Defendant Coates, the kitchen supervisor, was also aware Plaintiff was unable to wear the required work boots but, nevertheless, allowed him to be assigned to the kitchen. Id. at 5, 8-9, 10. On February 27, 2017, at approximately 6:00 a.m., Plaintiff sustained a serious foot injury when heavy kitchen machinery rolled over his foot. Id. at 4.
Plaintiff asserts that upon sustaining the injury, Defendant Coates immediately told him to report to the medical department to receive treatment. Id. at 5. However, Plaintiff also contends that, in an effort to hide the fact Plaintiff was injured, Defendant Coates never filled out the official Bureau of Prisons ("BOP") injury report, or Form A-1040. Id. at 8-9.
Plaintiff states that upon reporting to the medical department, Defendants Mackey and Graham refused to provide medical treatment and/or pain medication. Id. at 5. Instead, they instructed Plaintiff to return to his cell and they would "attend to his injury" by a call out. Id. However, they never placed Plaintiff on call out. Id. Further, at approximately 7:27 a.m. the same morning, Defendant Burchette altered Plaintiff's medical records so that they no longer showed Plaintiff suffered from a foot deformity and/or that he had been previously limited to soft toe shoes and prohibited from working around dangerous machinery and/or in a hazardous foot working environment. Id.
While in the lunch line on February 27, 2017, Plaintiff was instructed to report to Defendant Eglsaer. Id. at 7. Defendant Eglsaer attempted to force Plaintiff to accept a pair of steel toe boots into his possession and when Plaintiff refused, Defendant Eglsaer issued two false incident reports accusing Plaintiff of a rules violation. Id. On the same day, Defendant Sieja issued a false incident report accusing Plaintiff of a rules violation and placed him in the Segregated Housing Unit. Id. Plaintiff had still not received medical treatment. Id.
Also on February 27, 2017, Defendant Doyle issued a fraudulent memorandum and a fraudulent Bp-383 inmate property sheet indicating Plaintiff had previously been provided a pair of "institutional work safety boots" from a facility in which he was previously incarcerated. Id. Additionally, Defendant Williams issued a fraudulent memorandum in which he stated that he had observed Plaintiff in the recreational yard two weeks prior to the incident lifting weights, in violation of his medical restrictions. Id. at 8.
Plaintiff contends that the receipt of more than two incident reports in one year is considered excessive and when that occurs, the inmate's counselor is required to forward the reports to the "DHO" for review and determination. Id. Plaintiff asserts that due to the number of incident reports received on February 27, 2017, Defendant Garza should have forwarded them to DHO in conformance with this policy. Id. However, in an effort to hide and bury the medical injury Plaintiff sustained, Defendant Garza failed to do so and as a result, was able to obtain guilty dispositions on each report. Id. Plaintiff states that he did not receive the necessary x-rays and medical treatment on his foot injury until July 2017 when he was transferred to a different facility. Id. at 10.
By this action, Plaintiff asserts claims under the First, Eighth, and Fourteenth Amendments. In addition to the Defendants identified in the factual allegations set out above, Plaintiff also includes conclusory allegations that Defendants Aynes, Deemers, Orange, Russell, Egelston, and Johnson "fail[ed] to render medical care to the plaintiff's deformed feet injuries [when] they became aware of the claim - and they all did participate in the altering and fraudulently criminal changing of MDS chrono's and other medical information[] within the plaintiffs [sic] medical file[.]" Id. at 6.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), "[t]he burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Further, a claim is frivolous "where it lacks an arguable basis either in law or in fact" or is "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Analysis
As an initial matter, the undersigned notes that in the caption of his Amended Complaint and in paragraph two of the same, Plaintiff names the United States of America as a Defendant, though he does not mention it elsewhere in his allegations. Am. Comp. at 1. In Bivens, the Supreme Court "recognized a private right of action in favor of victims of constitutional violations committed by federal agents in the performance of their official duties." Farmer v. Perrill, 275 F.3d 958, 960 n.4 (10th Cir. 2001) (emphasis added). As Bivens is a remedy for redressing constitutional violations committed by federal agents in their individual capacities, it is not possible to bring a Bivens claim against the United States, its agencies, or public officials in an official capacity. See Dahn v. United States, 127 F.3d 1249, 1254 (10th Cir. 1997) ("The United States and its agencies are not subject to suit under Bivens."). Accordingly, to the extent Plaintiff intended to name the United States of America as a Defendant in this matter, any such claims must be dismissed.
Additionally, although Plaintiff includes sufficient factual allegations to support his claims against the majority of the Defendants named, his allegations against Defendants Aynes, Deemers, Russell, Egelston, and Johnson are too conclusory and vague to sustain his Eighth Amendment claim against them. Specifically, he states only that they failed to provide medical care to the injuries to his foot or feet and that they participated in altering his medical files. Am. Comp. at 6. Such allegations are not sufficient to sustain his claim.
As the Court explained to Plaintiff in a previous Order allowing him an opportunity to file an amended pleading, Federal Rule of Civil Procedure 8 requires "plaintiffs to state their claims intelligibly so as to inform the defendants of the legal claims being asserted." Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). The procedural rule "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). A pleading is not sufficient if it merely "tenders naked assertions devoid of further factual enhancement." Id. (quotations and brackets omitted). To avoid dismissal of an action for failure to state a claim for relief under Fed. R. Civ. P. 12(b)(6) or 28 U.S.C. § 1915A(b), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quotations omitted).
The United States Supreme Court has held that an inmate advancing an Eighth Amendment claim based on a failure to provide medical care must establish "deliberate indifference to serious medical needs . . . ." Estelle v. Gamble, 429 U.S. 97, 104 (1976). The "deliberate indifference" standard has two components: "an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind." Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991). With respect to the subjective component, a prison official does not act in a deliberately indifferent manner unless that official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Even with liberal construction, Plaintiff's statement that the specified Defendants failed to provide medical care is not sufficient to support his claim against them. Plaintiff's conclusory assertions do not establish these Defendants were aware of Plaintiff's alleged injury and his need for medical treatment and consciously disregarded a substantial risk of serious harm to Plaintiff. Farmer, 511 U.S. at 838-40. Among other things, Plaintiff does not provide even the barest factual details regarding the circumstances under which these Defendants allegedly denied medical care to Plaintiff. Plaintiff's Amended Complaint does not "'identify specific actions taken by [these] particular defendants.'" See Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 2011)). In Pahls, the Tenth Circuit reiterated that a plaintiff's "undifferentiated contention that 'defendants' infringed his rights" is insufficient to state a § 1983 claim because "a plaintiff must show that each defendant acted with the requisite state of mind." Pahls, 718 F.3d at 1226. See also Legler v. Bruce, No. 06-3311-SAC, 2007 WL 4241845, at *2 (D. Kan. Nov. 27, 2007) (finding that "[the p]laintiff's statements [that] he is 'not being properly treated,' is 'being denied meds,' the State is 'denying prisoners adequate treatments/meds,' and 'officials intentionally interfere with prescribed treatments,' are conclusory" and insufficient to establish a sufficiently serious deprivation under the Eighth Amendment).
While Plaintiff asserts, again in conclusory fashion, these Defendants altered his medical records, Plaintiff does not provide any factual details as to when this occurred or even the basis for Plaintiff's own alleged knowledge of the same. See id. (dismissing the plaintiff's Eighth Amendment claim noting he "again fails to allege dates, places, and to whom he presented with [the need for medical treatment] and that attention was denied"); see also Twombly, 550 U.S. at 555 (explaining that a complaint fails to state a claim when it lacks factual allegations sufficient "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)." (citations omitted)). Without specific allegations establishing the Defendants knew about Plaintiff's injury and/or his need for medical treatment and refused the same, Plaintiff's Amended Complaint fails to state an Eighth Amendment claim upon which relief may be granted.
RECOMMENDATION
Based on the foregoing findings, it is recommended that Defendants United States of America, Debra Aynes, K. Deemers, A. Russell, Kristi Egleston, and S. Johnson be dismissed based on the failure to state a claim upon which relief can be granted. The undersigned recommends Plaintiff's claims against the remaining Defendants proceed.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by October 15th , 2018, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 24th day of September, 2018.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE