Opinion
Civil No. 01-1247 (PG)
April 16, 2002
Gilberto Valentin-Valentin, Pro Se, Institucion Maxima Seguridad, Penuelas, PR, for the Plaintiff
Jose A. Santiago-Rivera, Esq., Department of Justice of PR, Federal Litigation Division, San Juan, PR, for the Defendant
REPORT AND RECOMMENDATION
Above plaintiff filed this action for damages under section 1983. Named defendant are the Government of Puerto Rico, the Administration of Corrections, Department of Health and Correctional Health Department of the Commonwealth of Puerto Rico {D.E. #1}. Plaintiff is an inmate in state penal facility who claimed he was denied medical treatment [orthopedic, dental, and referrals] for his conditions in a timely and satisfactory manner. He seeks to receive indemnity and additional medical treatment.
42 U.S.C.A § 1983 (1994).
Plaintiff filed this pro-se claim and service of same to the Administration of Correction through the Department of Justice followed. The Commonwealth of Puerto Rico filed an answer submitting copies of the official medical reports as to the services provided to plaintiff at the Correctional facilities and raising there was no federal cognizable right in plaintiffs allegations, except for plaintiffs lack of satisfaction with the quality of the medical services which would, if anything, could present a state tort under medical malpractice statutes {D.E. #11, 12, 14}. Plaintiff was provided initially fifteen days to reply to the request for dismissal and apprised that his failure to respond could cause dismissal for want of prosecution {D.E. #13}.
Plaintiff sought to obtain legal representation from the Civil Action and Education Corporation, which after evaluation declined to assume legal representation {D.E. #15, 18}. An order was issued thereafter apprising plaintiff of his responsibility to develop and prosecute his own case, and once again notifying possible grounds for dismissal of his pro-se claim, granting him twenty additional days to file a reply to the motion to dismiss filed by defendant {D.E. #20}. request for appointment of counsel was thereafter denied {D.E. #22}.
The right of access to court does not extend to enable prisoners to litigate with maximum effectiveness once in court or to the appointment of counsel in a civil case. Lassiter v. Dept. of Soc. Services, 452 U.S. 18, 101 S.Ct. 2153 (); Boivin v. Black, 225 F.3d 36 (1st Cir. 2000).
In ruling on a Rule 12(b)(6) motion to dismiss, a court must accept all well-pled factual averments as true and must draw all reasonable inferences in the plaintiffs favor, although it is to be granted only in limited circumstances when it appears to a certainty that plaintiff would not be entitled to relief under any legal theory which might be suggested by the facts therein submitted.
Defendants named by plaintiff are local governmental institutions for which liability is claimed under § 1983 and thus any federal constitutional violation cannot be premised solely under respondeat superior doctrine. Succinctly plaintiff alleges that the government is liable as supervisor of whoever are employed by those agencies, no particular defendant mentioned, that cause his delay in receiving and/or proper medical treatment. Under section 1983, a supervisor may not be liable based upon a theory of respondeat superior. Monell v. Dept. of Social Services of New York, 436 U.S. 658, 694 n. 58, 98 S.Ct. 2018, 2037 n. 58, 56 L.Ed.2d 611 (1978); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989). See Donaldson, Russell G., Vicarious Liability of Superior Under 42 U.S.C.A. § 1983 For Subordinates "Acts In Deprivation of Civil Rights, 51 ALRFed 285 (1981). A plaintiff seeking to impose liability to local government must identify a policy or custom that caused his injury. Board of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382 (1997). Damage claims against government officials cannot be founded upon conclusory, vague, or general allegations but must present facts that show the existence of the asserted constitutional rights violation recited in the complaint and what each defendant did in violation of such right. For § 1983 purposes a state or the Commonwealth of Puerto Rico in this case, is not considered a person and is protected from suit under the Eleventh Amendment immunity. The Eleventh Amendment protects an unconsenting state from suits brought by its own citizens as well as citizens of other states. Edelman v. Jordan, 415 U.S. 651, 657, 94 S.Ct. 1347, 1353 (1974). On this ground alone, above plaintiff's claims could have been dismissed.
For a supervisor to be liable a plaintiff must show that (i) the supervisors acts or omissions have deprived the plaintiffs of their protected rights; (ii) the supervisor's action or inaction amounted to callous indifference or gross negligence with regard to the constitutional rights of others; and (iii) the supervisor's action or inaction must be affirmatively linked to the street-level misconduct.Gutierrez-Rodrigue, 882 F.2d at 562; Roman Figueroa v. Torres Molina, 754 F. Supp. 239, 241-42 (D.P.R. 1990).
Further considering a more lenient construction of the pro-se claim under the Eighth Amendment standard, the United States Constitution, prohibits the infliction of cruel and unusual punishment, which is the provision plaintiff might most likely assert under the facts presented to establish a federal claim in this case. The legal standard to assert an Eighth Amendment claim regarding medical care for prisoners was stated inEstelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976), in that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment. . . Not every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment".
"Grossly inadequate medical care is one that is grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness". Rogers v. Evan, 792 F.2d 1052, 1058 (11th Cir. 1986).
A perusal of all the claims presented does not show lack of medical treatment but rather what plaintiff considers to be untimely or unsatisfactory treatment, falling short of a federal constitutional violation. Having granted ample opportunity to plaintiff to amend or respond to the motion to dismiss or to rebut in any manner the medical record of treatment afforded for his conditions, the safeguards for a Rule 12 dismissal have been met.
It is thus recommended that the complaint filed BE DISMISSED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).