Benson v. Assoc. Warden Stock

• Decision Date: 17 June 2013
• Docket Number: No. 12-3092-STA-tmp,12-3092-STA-tmp
• Parties: RONNIE J. BENSON, Plaintiff, v. ASSOCIATE WARDEN STOCK, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

RONNIE J. BENSON, Plaintiff,

v.ASSOCIATE WARDEN STOCK, et al., Defendants.

No. 12-3092-STA-tmp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

Dated: June 17, 2013

ORDER TO MODIFY THE DOCKET

ORDER OF DISMISSAL

AND

ORDER GRANTING LEAVE TO AMEND

On December 20, 2012, Plaintiff Ronnie J. Benson, Bureau of Prisons ("BOP") register number 12405-076, an inmate at the Federal Correctional Institution in Memphis, Tennessee ("FCI Memphis"), filed a pro se complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). (ECF No. 1.) After Plaintiff filed the required documents (ECF No. 3), the Court issued an order on January 11, 2013, granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk shall record the defendants as FCI Memphis Associate Warden First Name Unknown ("F/N/U") Stock; Health Services Administrator D. Franklund, who was incorrectly sued as "D.Franklin";¹ Assistant Health Services Administrator J. Hargrove; Dr. N. Naimey; and S. Branch, C. Rodriguez, and R.C. Gaia, all of whom are nurses.

The complaint alleges that, on September 2, 2011, Plaintiff went to the medical department "complaining of a growth above his right eye that hurts and interferes with his vision and hampers his (Plaintiff) ability to sleep." (Compl. ¶ 8.) He was provided no medication or relief. (Id.) Plaintiff returned to the medical department on September 30, 2011, complaining about his right eye and stating that he was suffering "consistent pain." (Id. ¶ 9.) "At this time 9-30-11 Plaintiff was seen by a different MLP (mid-level-provider). During this evaluation the MLP could not determine the nature of the growth and informed Plaintiff that a consultation would be submitted referring Plaintiff to an outside specialist." (Id.) Plaintiff received no other treatment at that time. (Id.)

Plaintiff returned to sick call on January 5, 2012, complaining that the growth was increasingly painful. (Id. ¶ 10.) Plaintiff asked that a biopsy be performed because there was a history of cancer in his family. (Id. ¶ 11.) Plaintiff "was informed by medical staff that his condition has been properly evaluated by medical staff (nurse practitioner/Clinical Director) and a diagnosis of Sebaceous Cyst has been recorded in Plaintiff medical records." (Id. ¶ 12.) Also on January 5, 2012, Plaintiff learned that the Utilization Review Committee ("URC") denied therequest for an outside consultation on the grounds that Plaintiff's complaint concerned a preexisting condition and the procedure was cosmetic in nature. (Id. ¶ 13.) Plaintiff avers that, "[o]ther than a clinical observation and a measurement taken by nurse practitioner of Plaintiff growth above his right eye, Plaintiff have [sic] not received or provided any further treatment by qualified medical staff to lessen Plaintiff [sic] pain or condition." (Id. ¶ 14.)

On August 20, 2012, Plaintiff learned that medical staff had denied his request for a biopsy. (Id. ¶ 15.)

The complaint asserts two claims. Count One asserts a claim under the Eighth Amendment for deliberate indifference to his serious medical needs. (Id. ¶¶ 21-23.) Plaintiff seeks $250,000 in compensatory damages and $250,000 in punitive damages on that claim. (Id. ¶ 23.) Count Two asserts a violation of Plaintiff's right to Due Process under the Fifth Amendment. (Id. ¶¶ 24-26.) Plaintiff seeks punitive damages in the amount of $250,000 on that claim. (Id. ¶ 26.)

The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint—

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

In assessing whether the complaint in this case states a claim on which relief may be granted, the Court applies the standardsunder Federal Rule of Civil Procedure 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S. Ct. 1937, 1949-50 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S. Ct. 1955, 1964-66, 167 L. Ed. 2d 929 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). "Accepting all well-pleaded allegations in the complaint as true, the Court consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks and alteration omitted). "[P]leadings that . . . are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950; see also Twombly, 550 U.S. at 555 n.3, 127 S. Ct. at 1964-65 n.3 ("Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests.").

"A complaint can be frivolous either factually or legally. Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted." Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1831-32, 104 L. Ed. 2d 338 (1989)).

Whether a complaint is factually frivolous under §§ 1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give "judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S. Ct. 1827 (interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as true, Iqbal, 129 S. Ct. at 1949-50, a judge does not have to accept "fantastic or delusional" factual allegations as true in prisoner complaints that are reviewed for frivolousness. Neitzke, 490 U.S. at 327-28, 109 S. Ct. 1827.

Id. at 471.

"Pro se complaints are to be held 'to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed." Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and prisoners are not exempt from the requirements of the Federal Rules of Civil Procedure. As the Sixth Circuit has explained:

Before the recent onslaught of pro se prisoner suits, the Supreme Court suggested that pro se complaints are to be held to a less stringent standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam). Neither that Court nor other courts, however, have been willing to abrogate basic pleading essentials in pro se suits. See, e.g., id. at 521, 92 S. Ct. at 596 (holding petitioner to standards of Conley v. Gibson); Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (duty to be less stringent with pro se complaint does not require court to conjure up unplead allegations), cert. denied, 464 U.S. 986, 104 S. Ct. 434, 78 L. Ed. 2d 3366 (1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v. Tisch, 656 F. Supp. 237 (D.D.C. 1987) (pro se plaintiffs should plead with requisite specificity so as to give defendants notice); Holsey v. Collins, 90 F.R.D. 122 (D. Md. 1981) (even pro se litigants must meet some minimum standards).

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App'x 608, 612, 613 (6th Cir. 2011) (affirming dismissal of pro se complaint for failure to comply with "unique pleading requirements" and stating "a court cannot 'create a claim which [a plaintiff] has not spelled out in his pleading'") (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in original); Payne v. Secretary of Treas., 73 F. App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir. 2011) ("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue."), cert. denied, ___ U.S. ___, 132 S. Ct. 461, 181 L. Ed. 2d 300 (2011).

Plaintiff's claims arise under Bivens, which provides a right of action against federal employees who violate an individual's rights under the United States Constitution. "Under the Bivens line of cases, the Supreme Court has recognized a cause of actionagainst federal officials for certain constitutional violations when there are no alternative processes to protect the interests of the plaintiff and no special factors counseling against recognizing the cause of action." Koubriti v. Convertino, 593 F.3d 459, 466 (6th Cir. 2010).

The Complaint contains no factual allegations against any named defendant....