Opinion
Civil Action No. 07-cv-02426-BNB.
December 13, 2007
ORDER TO DISMISS IN PART AND TO DRAW CASE TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE
Plaintiff Eddie Dean Fluker is a prisoner in the custody of the United States Bureau of Prisons (BOP) at the United States Penitentiary, Administrative Maximum, at Florence, Colorado. Mr. Fluker has filed pro se a Prisoner Complaint for injunctive relief. The Court must construe the complaint liberally because Mr. Fluker is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). If the complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [the Court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. However, the Court should not be the pro se litigant's advocate. See id.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the complaint because Mr. Fluker is a prisoner and he is seeking redress from officers or employees of a governmental entity. Pursuant to § 1915A(b), the Court is required to dismiss the complaint, or any portion of the complaint, that is legally frivolous. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or in which he asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). For the reasons stated below, the Court will dismiss the complaint in part as legally frivolous pursuant to § 1915A(b).
Mr. Fluker asserts two numbered claims for relief in the complaint. He first claims that his Eighth Amendment rights have been violated because he has been denied reconstructive surgery for a ruptured biceps tendon. Mr. Fluker's first claim is asserted against the BOP and the two individual doctors named as Defendants. Mr. Fluker alleges in his second claim that the BOP is not following prison regulations regarding grievances, that he is being served food that is nutritionally inadequate and laced with drugs and other substances that are making him sick, and that he has been denied tests to determine exactly what is making him sick. Mr. Fluker's second claim is asserted only against the BOP.
The Court has reviewed the complaint and finds that Mr. Fluker's claims against the two individual doctors named as Defendants are legally frivolous. As mentioned above, the doctors are named as Defendants only in connection with Mr. Fluker's first claim for relief regarding his ruptured biceps tendon. Mr. Fluker alleges that in February 2005, Defendant Vikas V. Patel, a doctor who is not employed by the BOP, recommended against reconstructive surgery of Mr. Fluker's biceps tendon. Mr. Fluker alleges that Defendant Patrick Devanny, another doctor who is not employed by the BOP, sent Mr. Fluker a letter apparently stating that reconstructive surgery would relieve Mr. Fluker's pain. Mr. Fluker does not allege that Dr. Devanny violated his rights in any way, he does not assert any claim against Dr. Devanny, and he does not request any relief from Dr. Devanny. Although Mr. Fluker disagrees with Dr. Patel's recommendation, he also does not seek any relief from Dr. Patel in this action.
The only relief Mr. Fluker seeks in the instant action is injunctive relief against the BOP. Therefore, because Mr. Fluker does not request any relief from the individual doctors named as Defendants, the claims against the doctors will be dismissed as legally frivolous and they will be dismissed as parties to this action. The Court will not address at this time the merits of Mr. Fluker's claims against the BOP. Instead, this action will be drawn to a district judge and to a magistrate judge. Accordingly, it is
ORDERED that the claims asserted against Defendants Vikas V. Patel and Patrick Devanny, M.D., are dismissed pursuant to 28 U.S.C. § 1915A(b) as legally frivolous. It is
FURTHER ORDERED that Defendants Vikas V. Patel and Patrick Devanny, M.D., are dismissed as parties to this action. It is
FURTHER ORDERED that this case shall be drawn to a district judge and to a magistrate judge.