Opinion
3:20-cv-181-SLH-KAP
06-07-2022
VICTOR DARNELL THOMAS, Plaintiff, v. R.N. MARTYNUSKA, Medical Contractor, F.C.I. Loretto, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge.
Recommendation
In September 2020, plaintiff Victor Thomas, a federal inmate at F.C.I. Berlin who had been at F.C.I. Loretto, filed a complaint about conditions at Loretto, ECF no. 4, that he amended twice in quick succession in March 2021, see ECF no. 8 and ECF no. 10, both styled as amended complaints. I screened ECF no. 10 under the Prison Litigation Reform Act and in September 2021 recommended that some claims by Thomas proceed against some defendants. ECF no. 13.
No timely objections were filed. In November 2021, the Court issued an order at ECF no. 15, permitting the filing of another amended complaint by December 1, 2021. Shortly thereafter Thomas filed untimely objections, ECF no. 16, and a proposed amended complaint (with no motion for leave to file) styled “Second Amended Complaint,” ECF no. 17, that had crossed in the mail with the Court's order. Thomas followed these with a motion to file those two pleadings out of time, ECF no. 18, followed by a redundant motion under Rule 59(e) styled “Plaintiff's Motion for Clarity...”. ECF no. 20.
In December 2021, I ordered Thomas to file a Third Amended Complaint in light of the Court's order, see ECF no. 21. Thomas did this in February 2022, ECF no. 23; Thomas also submitted medical records that I ordered docketed separately and under seal at ECF no. 24 to maintain their privacy.
Because the Third Amended Complaint is substantially the same as plaintiff's previous effort at ECF no. 10 (and with minor format changes is identical to the Second Amended Complaint at ECF no. 17), I adhere to my previous recommendations:
(1) Thomas has adequately stated a deliberate indifference claim under Farmer v. Brennan, 511 U.S. 825 837 (1994) against Swindell, Martynuska, and Robinson for Swindell's alleged inaction prior to September 2, 2018, and for Martynuska and Robinson's alleged actions on September 2, 2018, in delaying medical treatment for plaintiff. The other defendants should be dismissed.
(2) The scope of Bivens actions is being significantly narrowed by recent decisions, see Mack v. Yost, 968 F.3d 311 (3d Cir. 2020)(retaliation claims), Mammana v. Barben, 856 Fed.Appx. 411 (3d Cir. 2021)(conditions of confinement claims), but for now Thomas has also adequately stated a claim against Robinson under the Eighth Amendment and the First Amendment for Robinson's alleged gratuitous use of force against Thomas by punching Thomas in the head. The other defendants should be dismissed.
Report
For inmates proceeding in forma pauperis, the Prison Litigation Reform Act at 28 U.S.C.§ 1915(e)(2) commands:
(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; or
(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.See also 28 U.S.C. § 1915A. For Thomas to state a claim against any defendant, Fed.R.Civ.P. 8(a) requires Thomas to set out a short and plain statement containing sufficient factual matter that if accepted as true would state a legal claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the Supreme Court's words, Thomas must allege enough facts in the complaint to “nudge” a claim “across the line from conceivable to plausible.” Id., 556 U.S. at 683, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thomas must sufficiently allege each defendant's personal involvement by describing the defendant's participation in or actual knowledge of and acquiescence in the alleged wrongful conduct. See Chavarriaga v. New Jersey Department of Corrections, 806 F.3d 210, 222 (3d Cir. 2015). Conclusory assertions that one or more defendants “had knowledge” of another defendant's actions or inactions, or “acted jointly” with a defendant, or “failed to prevent” a defendant's actions, or “conspired with” a defendant are common tropes of inmate complaints that do not in the absence of factual allegations making such knowledge, joint action, or conspiracy plausible extend a claim from the acting defendant to anyone else.
That said, I incorporate my discussion at ECF no. 13 of the screening of the amended complaint at ECF no. 10, because Thomas adds no significant factual allegations in his fifth version of his complaint. Once, again Thomas gives a history of his medical conditions that indicate his past episodes of and treatment for epididymitis while in Bureau of Prisons custody years before his transfer to Loretto in 2016, and of his alleged flare-up at Loretto beginning in July 2018. Thomas alleges that Golden and Bender misdiagnosed of Thomas's condition as a urinary tract infection, see ¶35, ¶55. Thomas adequately alleges that despite enough information to give Swindell knowledge of Thomas's serious medical condition (albeit not the correct one) Swindell took no action to investigate further between July and September 2018, and on one occasion even countermanded Bender's treatment decision despite never examining Thomas. See ¶38. (I interpret the complaint as alleging that Bender is alleged to have acted “in deference to” Swindell's orders, not “indifference to” them.)
Thomas describes Martynuska's and Robinson's alleged delay of obtaining treatment for Thomas in the crisis situation described for September 2, 2018, to adequately state a claim under Pearson v. Prison Health Service, 850 F.3d 526, 538 (3d Cir.2017). ¶40.
Thomas has nothing else. Thomas' complaint elaborately claims deliberate indifference by a further host of medical staff and nonmedical staff at Loretto based on his obvious assumption that his informing prison medical staff of his medical history, his personal diagnosis, and his requests for specific medications between July and September 2018 placed the prison medical staff on notice of his serious medical need for specific medications. This assumption is mistaken. Put another way, even when an inmate's complaints are sincere and well-founded, an inmate's complaints put prison officials on notice of the existence of the complaints but not of the facts underlying them. From the complaint itself it is clear that Thomas was afforded emergency treatment when it was clear that he needed it, and once referred to and properly diagnosed at an outside hospital he was returned there the next day when his lab results were in and it was clear he needed further treatment. He received extensive and apparently appropriate treatment. Any patient's dissatisfaction with not being treated better sooner does not imply deliberate indifference (or even negligence) on the part of medical care providers, and Thomas offers nothing more.
Thomas also adequately repeats his claim that Robinson gratuitously punched him in the head. ¶106. Although as I said above the scope of Bivens actions is being significantly reduced, since Farmer v. Brennan would give Thomas a Bivens claim against Robinson for failing to prevent a fellow inmate from punching Thomas in the head, a Bivens claim against Robinson ought to exist for Robinson himself allegedly punching Thomas in the head.
Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) allows plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” After five opportunities it would be inequitable to allow plaintiff further use of the court's time to amend his complaint. The Third Amended Complaint should be served on the defendants as stated above.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).