Opinion
Civil Action No. 2:05-CV-260.
April 19, 2006
MEMORANDUM
Presently before this Court is Defendants' Motion to Dismiss (Doc. No. 15) and Plaintiff's response thereto (Doc. No. 17). For the reasons that follow, Defendants' Motion is granted.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 20, 2005, Anthony Vasquez, pro se, filed suit against Mr. Akano, a Correction Officer at the Federal Detention Center ("FDC"), Philadelphia, Mr. Bokhari, a mid-level practioner at the FDC, Philadelphia and Dr. Reynolds, a physician at the FDC, Philadelphia (collectively, "defendants") for alleged violations of the Eighth and Fourteenth Amendments of the U.S. Constitution under 42 U.S.C. § 1983. Plaintiff alleges that he was denied adequate and timely medical treatment in violation of the Eighth and Fourteenth Amendments and that the defendants have violated his constitutional right to be free from "cruel and unusual punishment" and from "wanton infliction of pain." Compl. at 9-10. Plaintiff further alleges that the practice of double celling at the FDC, Philadelphia violates the Fourteenth Amendment. Id. at 18.
A. Achilles Tendon Injury
On September 25, 2004, plaintiff severely injured himself while an inmate at Camden County Correctional Facility. Compl. at 2. A nurse examined him and diagnosed his injury as a torn Achilles tendon. Id. On October 1, 2004, an orthopedic surgeon diagnosed plaintiff with a torn Achilles tendon; however, the orthopedic surgeon stated that an MRI was necessary to determine the severity of the injury. Id. The orthopedic surgeon opined that plaintiff would need surgery to repair any damage to his Achilles tendon. Id. at 3. The surgeon placed a splint on plaintiff's ankle and leg. Id.
On October 5, 2004, after spending the day at the federal courthouse in Camden, New Jersey, plaintiff was transported to the FDC, Philadelphia. Id. While being processed in the intake department, plaintiff explained the nature and severity of his injury to a physician's assistant. Id. The physician's assistant prescribed a pain reliever and told plaintiff that he would be seen by a doctor soon. Id. Two days later, plaintiff, who had yet to be seen by a doctor, asked Defendant Akano for a plastic bag to cover his splint while he showered; Defendant Akano refused his request because plastic bags are considered contraband. Id. at 4. Plaintiff was forced to take off the splint as it was breaking and digging into his skin. Id.
Plaintiff alleges that, although the U.S. Marshals knew of his injury, they forced him to walk and stand on his injured leg all day long. Compl. at 3. The U.S. Marshals are not defendants in this case.
On October 18, 2004, plaintiff went to the medical department for his standard physical. Id. at 6. Defendant Bokhari, who is not a physician, examined plaintiff and did not find a tear in plaintiff's Achilles tendon. Id. Plaintiff alleges that Defendant Bokhari was incompetent and disrespectful. Id. Plaintiff met with the unit counselor, Mr. Stremmel, concerning plaintiff's lack of medical treatment for his Achilles tendon. Id. On November 1, 2004, plaintiff was called to the medical department, and Dr. Massa examined plaintiff's Achilles tendon. Id. at 7. Dr. Massa confirmed that plaintiff should see an orthopedic surgeon, but Dr. Massa could not tell plaintiff when he would be able to see one. Id. Plaintiff alleges that, as a result of lack of treatment and inadequate treatment, he has suffered a permanent injury to his Achilles tendon. Pl's Resp. at 1.
B. Lower Abdomen and Bank Pain
On October 15, 2004, plaintiff felt an excruciating pain in his lower left abdomen and back area. Compl. at 5. After plaintiff pressed the emergency button, Defendant Dr. Reynolds arrived at plaintiff's cell. Id. Defendant Reynolds tapped on plaintiff's stomach and took his vital signs, after which he diagnosed plaintiff with gas. Id. Plaintiff was given a pain reliever.Id.
Early in the morning of October 23, 2004, plaintiff again experienced excruciating pain in his lower left abdomen and back.Id. at 6. A few hours later, plaintiff urinated blood. Id. When this occurred, plaintiff asked Defendant Akano for a favor, to which Defendant Akano replied, "I don't do favors." Id. Plaintiff asked Defendant Akano to call the doctor. Id. A half hour later, Dr. Parmley arrived to examine plaintiff. Id. After examining plaintiff and taking a urine sample, Dr. Parmley advised plaintiff to drink a lot of water and to take a pain reliever. Id. Three days later, Dr. Parmley informed plaintiff that he probably had a kidney stone. Id. Dr. Parmley advised plaintiff that he should continue to take a pain reliever if he had pain, but that there was nothing else that could be done.Id. at 6-7.
On November 1, 2004, plaintiff told Dr. Massa about the discomfort and pain in his lower back. Id. at 7. The pain and discomfort in his lower back was still present on November 8, 2004, and plaintiff continued to have blood in his urine. Id. On November 9, 2004, plaintiff received another prescription for a pain reliever due to the continued pain in his lower back. Id. The next day, plaintiff experienced excruciating pain in his lower stomach, back and side and had difficulty urinating. Id. Plaintiff asked Defendant Akano to call the medical department, but Defendant Akano stated that he was too busy. Id. Later, after Defendant Akano noticed plaintiff in extreme pain, he told plaintiff that he would call medical after his "shake-down." Id. at 8. After the shake-down, when asked if he had called medical, Defendant Akano stated, "I did, just fill out a cop-out." Id. At this point, the unit counselor, Mr. Stremmel, walked into the unit, and plaintiff asked him to call the medical department. Id.
Plaintiff was called to the medical department where he was examined by Dr. Martinez. Id. Dr. Martinez ordered an x-ray and a urine sample. Id. When the x-ray was developed, Defendant Bokhari, who plaintiff alleges is unqualified to read an x-ray, stated that he did not see anything in the x-ray and that plaintiff probably had a urinary tract infection, since the pain he was experiencing was consistent with a urinary tract infection. Id. Defendant Bokhari prescribed Sulfameth/Trimeth and Phenazopyeidine HCL. Id.
C. Double Celling
The double celling that occurs in the FDC, Philadelphia is "not the typical double celling." Id. at 18. Plaintiff alleges that the prison administration places an inmate in a double cell by random process, which disregards the potential risk of harm to an inmate. Id. The random process by which roommates are assigned a cellmate does not take into account whether cellmates are compatible. Id. at 19. First time non-violent offenders might be placed with an inmate with a history of known violence. Pl's Resp. at 5. As a result, inmates that are double celled face a pervasive risk of harm, the threat of violence and the possibility of catching a disease. Compl. at 19.
II. LEGAL STANDARD
Dismissal for failure to state a claim pursuant to Rule 12(b)(6) is appropriate when it clearly appears that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Robb v. City of Philadelphia, 733 F.2d 286. 290 (3d Cir. 1984). In deciding a motion to dismiss pursuant to Rule 12(b)(6), all facts alleged in the complaint must be accepted as true. Malia v. General Electric Co., 23 F.3d 828, 830 (3d Cir. 1994). A claim may be dismissed when the facts alleged and the reasonable inferences therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179-80 (3d Cir. 1988).
A pro se complaint should be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint "must be held to `less stringent standards than formal pleadings drafted by lawyers' and can only be dismissed for failure to state a claim if it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle, 429 U.S. at 106 (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996).
III. DISCUSSION
In order to prevail on a § 1983 claim, the plaintiff must show that he was deprived of a constitutional right by a person acting under the color of state law. See 42 U.S.C. § 1983. The first inquiry in a § 1983 suit is whether the plaintiff has been deprived of a constitutional right. See Baker v. McCollan, 443 U.S. 137, 140 (1979); Gibson v. Superintendent of N.J. Department of Law Public Safety-Division of State Police, 411 F.3d 427, 433 (3d Cir. 2005).
A. Inadequate Medical Care
At all relevant times, plaintiff was a federal pretrial detainee. Compl. at 18. Therefore, plaintiff's medical treatment claims are governed by the Due Process Clause of the Fifth Amendment. Hubbard v. Taylor, 399 F.3d 150, 158 n. 13 (3d Cir. 2005) (noting that the Fifth Amendment Due Process Clause is implicated because plaintiff is a federal pretrial detainee); see also Natale v. Camden County Correctional Facility, 318 F.3d 575, 581 (3d Cir. 2003) (holding that a § 1983 claim for inadequate medical care brought by a pretrial detainee in a state correctional facility should have been brought under the Due Process Clause of the Fourteenth Amendment).
Plaintiff states that he is "currently a Pre-Trial inmate awaiting [a] judicial proceeding." Compl. at 18. This Court, for purposes of the instant motion to dismiss, assumes that this factual allegation is correct.
Plaintiff brought his claims pursuant to the Eighth and Fourteenth Amendments. Since a pro se complaint is held to less stringent standards than a formal pleadings drafted by lawyers, this Court will treat plaintiff's claims as if they were brought under the Fifth Amendment.
In order to establish a violation of a pretrial detainee's constitutional right to adequate medical care, the plaintiff must demonstrate (1) a serious medical need and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Natale, 318 F.3d at 582. A medical need is serious if it is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the need for a doctor's attention. Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Deliberate indifference is a subjective standard of liability consistent with recklessness as that term is defined in criminal law.Natale, 318 F.3d at 582. In order for a prison official to be held liable, proof is required that the prison official "knows of and disregards an excessive risk to inmate health or safety."Natale, 318 F.3d at 582 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). However, "mere allegations of malpractice do not raise issues of constitutional import." Lanzaro, 834 F.2d at 346.
When analyzing a pretrial detainee's claims of inadequate medical care, the Third Circuit applies the standard used to evaluate similar claims brought under the Eighth Amendment, as set forth in Estelle v. Gamble, 429 U.S. 974 (1976). Natale, 318 F.3d at 581. The due process rights of a pretrial detainee are "at least as great as the Eighth Amendment protections available to a convicted prisoner." Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 346 n. 31 (3d Cir. 1987).
Defendants argue that, even if all of plaintiff's factual assertions are taken as true, plaintiff fails to state a claim that his constitutional rights have been violated by inadequate medical care at FDC, Philadelphia. Defs' Memo. at 3-6. This Court will examine the allegations against each defendant.
1. Defendant Akano
Plaintiff alleges that Defendant Akano refused to provide plaintiff with a plastic bag to cover his splint while he showered because plastic bags are considered contraband. Defendant Akano's refusal to provide a bag forced plaintiff to take off the splint. On another occasion, when plaintiff, who was experiencing excruciating pain in his lower left abdomen and back, asked Defendant Akano for a favor, Defendant Akano retorted, "I don't do favors." However, immediately thereafter, plaintiff asked Defendant Akano to call the doctor and a half hour later, Dr. Parmley arrived to examine plaintiff. When plaintiff again experienced excruciating pain in his lower stomach, back and side, he asked Defendant Akano to call the medical department, but Defendant Akano stated that he was too busy. Later, after Defendant Akano noticed plaintiff in extreme pain, he told plaintiff that he would call medical after his "shake-down." After the shake-down, when asked if he had called medical, Defendant Akano stated, "I did, just fill out a cop-out."
None of Defendant Akano's actions or inactions rise to the level of a constitutional violation. Both times plaintiff asked Defendant Akano to call a doctor, he did. The second time plaintiff asked Defendant Akano to call a doctor, Defendant Akano initially refused; however, after he noticed plaintiff in extreme pain, he stated that he would call. While Defendant Akano's response may not have been as quick as plaintiff wanted it to be, there is no allegation that Defendant Akano knew of or disregarded an excessive risk to inmate health or safety. See Natale, 318 F.3d at 582. Similarly, Defendant Akano's refusal to provide plaintiff with a plastic bag to cover his splint is not a constitutional violation.
2. Defendant Bokhari
Plaintiff alleges that Defendant Bokhari, who is not a physician, examined plaintiff when he had a torn Achilles tendon and did not find the tear. In addition, when analyzing the x-rays that were taken of plaintiff in order to determine the cause of plaintiff's extreme pain in his abdomen and lower back, Defendant Bokhari, who plaintiff alleges is unqualified to read an x-ray, stated that he did not see anything in the x-ray and that plaintiff probably had a urinary tract infection, since the pain he was experiencing was consistent with a urinary tract infection. At most, these allegations, taken as true, support a finding that Defendant Bokhari misdiagnosed plaintiff. A misdiagnosis dose not rise to the level of a constitutional violation. See Lanzaro, 834 F.2d at 346.
Plaintiff does not allege that the pain was caused by something other than a urinary tract infection. However, making every possible reasonable inference in favor of plaintiff, this Court will assume that the urinary tract infection diagnosis was incorrect.
3. Defendant Reynolds
Plaintiff alleges that Defendant Reynolds misdiagnosed plaintiff on October 15, 2004. Specifically, when plaintiff sought medical treatment for excruciating pain in his lower left abdomen and back, Defendant Reynolds, after a cursory examination, diagnosed him with gas. Plaintiff was subsequently seen by Dr. Parmley, Dr. Massa, Dr. Martinez and Defendant Bokhari. After being diagnosed with a potential kidney stone by Dr. Parmley, plaintiff was diagnosed with a urinary tract infection. Presumably, plaintiff is suing Dr. Reynolds for allegedly misdiagnosing the cause of his abdominal and back pain. At most, these allegations support a claim of medical malpractice, a claim which is not of constitutional import. See Lanzaro, 834 F.2d at 346.
4. Conclusion
Even construing the allegations in the Complaint liberally, the actions of Defendants Akano, Bokhari and Reynolds do not rise to the level of a constitutional violation. Since plaintiff has failed to allege a constitutional violation, his § 1983 inadequate medical care claims must fail. See 42 U.S.C. § 1983.
B. Double Celling
A defendant in a § 1983 action must have personal involvement in the alleged wrongs. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Personal involvement can be demonstrated through allegations of personal direction or of actual knowledge and acquiescence. Id. In the instant matter, plaintiff has not alleged that Akano, Bokhari or Reynolds had personal involvement in the alleged wrongs; in fact, plaintiff did not provide any connection between his cell conditions and Defendants Akano, Bokhari and Reynolds. Plaintiff admits that he has not identified a specific defendant with regard to his double celling claim. Pl's Resp. at 2. Plaintiff states that the portion of his complaint addressing double celling should be directed to the FDC, Philadelphia personnel responsible for cell assignments. Id. Therefore, this claim is dismissed as to Defendants Akano, Bokhari and Reynolds.
Plaintiff requests that this Court amend his Complaint to include any unnamed persons or institutions that might be responsible for selecting cellmates whose criminal histories illustrate a violent disposition. Pl's Resp. at 2. This Court will dismiss plaintiff's Complaint without prejudice. As a result, plaintiff shall have the opportunity to file an amended Complaint that names the appropriate institutions, persons and/or unnamed persons as defendants.
Plaintiff also requests that this Court investigate his claims and review the history of plaintiff's BOP records, the history of his cellmate's criminal activities and violation in prisons, the institution and staff policies regarding the segregation of violent and non-violent offenders at FDC, Philadelphia, and the history of similar complaints and actions. Pl's Resp. at 6. A judge may not become a surrogate attorney for a pro se party. Thorpe v. Dohman, No. 04-CV-1099, 2004 U.S. Dist. LEXIS 21495, at *4 (E.D. Pa Oct. 22, 2004) (quoting Taylor v. Diznoff, 633 F. Supp. 640, 641 (W.D. Pa. 1986)). While this Court appreciates the difficulties inherent in investigating a claim while incarcerated, this Court cannot investigate plaintiff's claims for him.
IV. CONCLUSION
Accordingly, defendants' motion to dismiss is granted. An appropriate order follows.
ORDER
AND NOW, this 19th day of April 2006, upon consideration of Defendants' Motion to Dismiss (Doc. No. 15) and Plaintiff's Response thereto (Doc. No. 17), it is hereby ORDERED that Defendants' Motion is GRANTED. It is further ORDERED that Plaintiff's Complaint is DISMISSED without prejudice.