Malouf v. Turner-Foster

• Court: U.S. District Court — District of New Jersey
• Writing for the Court: JEROME B. SIMANDLE
• Decision Date: 17 January 2013
• Docket Number: Civil No. 12-2555 (JBS)
• Citation: Malouf v. Turner-Foster, Civil No. 12-2555 (JBS) (D. N.J. Jan 17, 2013)
• Parties: MICHAEL J. MALOUF, Plaintiff, v. DR. NICOLETTA TURNER-FOSTER, et al., Defendants.

MICHAEL J. MALOUF, Plaintiff, v. DR. NICOLETTA TURNER-FOSTER, et al., Defendants.

Civil No. 12-2555 (JBS)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: January 17, 2013

NOT FOR PUBLICATION

OPINION

APPEARANCES:

MICHAEL J. MALOUF, Plaintiff pro se

SIMANDLE, Chief Judge

Plaintiff, Michael J. Malouf, a federal inmate confined at the FMC Devens in Ayers, Massachusetts, at the time he submitted the above-captioned Complaint for filing, seeks to bring this action in forma pauperis. Based on his affidavit of indigence, the Court will grant plaintiff's application to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file the Complaint.

At this time, the Court must review the Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because itseeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court concludes that the Complaint may proceed in part.

I. BACKGROUND

Plaintiff, Michael J. Malouf ("Plaintiff"), brings this civil action against the following Defendants: the United States of America; the Federal Bureau of Prisons ("BOP"); Warden Jeff Grondolsky, Warden;¹ Steven Spaulding, Heath Services Administrator;² Dr. Nicoletta Turner-Foster, staff physician at FCI Fort Dix; and Dr. Abigal Lopez de Lasalle, Medical Director at FCI Fort Dix. (Complaint, Caption, ¶¶ 8-13.) The following factual allegations by Plaintiff are taken from the Complaint, and are accepted for purposes of this screening only.

Plaintiff alleges that he has been incarcerated in the federal prison system since 2003. Before his incarceration, Plaintiff had two surgeries on his back as a result of two motor vehicle accidents. Plaintiff was on a course of pain management for his back before his imprisonment. (Compl., ¶¶ 14-16.) In January 2008, Plaintiff was transferred to FCI Fort Dix. During the nine hour transfer process, Plaintiff was handcuffed andshackled, causing him to suffer "excruciating pain in his legs, numbness, insomnia, and loss of concentration." (Compl., ¶ 18.)

After initially being evaluated at FCI Fort Dix, Plaintiff was denied pain medication for his extreme pain. He continued to seek pain medication but was denied on repeated occasions. Then in October 2008, Plaintiff was given Oxycodone for pain "that significantly relieved the pain in his back ... and Plaintiff was able to resume normal functions." (Compl., ¶¶ 19, 20.) Then, in January 2009, Plaintiff slipped and fell on ice between the medical facility and Building #5803 at FCI Fort Dix, further aggravating Plaintiff's prior back injury and causing "significant additional pain." (Compl., ¶ 21.)

Plaintiff was medically treated for his slip and fall injury and provided a wheelchair and an increased dosage of Oxycodone for his pain. However, in March 2009, Plaintiff was called to meet with Defendants, Dr. Turner and Dr. Lopez de Lasalle, who informed Plaintiff that the pain medication would not be renewed without any examination or new MRI results. Plaintiff's pain medication was terminated "instantly" and Dr. Turner refused to renew the Oxycodone prescription. (Compl., ¶¶ 22-25.)

Thereafter, in March 2009, Plaintiff allegedly "collapsed during the middle of the night due to the extreme pain he was enduring in his back and legs." (Id., ¶ 26.) An unnamed correction officer contacted Defendant Spaulding to obtain authorization for Plaintiff's transfer to the hospital forevaluation. Spaulding denied the request and Plaintiff was left lying on the floor until morning because he could not move. Plaintiff alleges that he suffered "significant and excruciating pain" and urinated on himself in the night because he could not move. (Id., ¶¶ 27-30.)

When Spaulding reported for duty in the morning, Plaintiff was picked up off the floor and was transferred to medical where he waited for "a number of hours despite being in excruciating pain." (Id., ¶¶ 30-31.) Plaintiff also complains that he was unable to ambulate without the assistance of a wheelchair and became incontinent as a result of the refusal to provide treatment. He alleges that the "Defendant refused to provide another MRI until March 25, 2009." (Id., ¶ 32.)

Plaintiff further alleges that Defendants Grondolsky and Spaulding "engaged in a course of continuous conduct that virtually ignored Plaintiff's complaints." (Id., ¶ 33.) Namely, Plaintiff alleges that from March 2009 until May 2010 (when Plaintiff was transferred to FMC Devens), Defendants prescribed pain medications that "they knew" did not alleviate Plaintiff's pain. These new medications also caused Plaintiff to have headaches, nausea and other side effects. (Id., ¶¶ 34, 35.)

After Defendants Turner and Lopez de Lasalle terminated Plaintiff's Oxycodone, Plaintiff attended many sick calls for medication to stop his severe back pain. Plaintiff alleges that his request to see a doctor was refused. During this time,Plaintiff also suffered "heart palpitations, irregular heartbeat, tightness in his chest and extreme pain in his back and legs." (Id., ¶¶ 38-40.) Plaintiff lost his appetite and bladder control functions. (Id., ¶ 41.)

In April 2010, Defendants finally scheduled a myelogram, and Plaintiff was then designated a Care Level 3 inmate from a Care Level 2 inmate.³ Once designated a Care Level 3 inmate, Plaintiff was transferred to FMC Devens in Massachusetts. At FMC Devens, Plaintiff was designated a Care Level 4 inmate, who requires 24-hour nursing care or assistance. (Id., ¶¶ 42-48.)

Plaintiff contends that between the time that he was designated a Care Level 3 inmate to a Care Level 4 inmate, he was treated in a manner that was "palpably unreasonable to the well-being of Plaintiff." (Id., ¶ 50.) For instance, Defendants refused to evaluate Plaintiff for his severe back pain, refused to see Plaintiff at sick call, and Defendant Lopez de Lasalle removed Plaintiff's wheelchair, which he needed to get around. (Id., ¶¶ 51, 52.) Plaintiff alleges that his sick call requests were removed from the FCI Fort Dix computer tracking system. (Id., ¶ 53.) He refers to an incident when he had an open woundon his lower back, but was refused treatment for wound care, as well as another occasion where medical staff slammed the door in his face when he came to the medical area for treatment. (Id., ¶¶ 54, 55.)

After his transfer to FMC Devens, Plaintiff was prescribed Oxycodone for pain, but the prescription eases his pain for only three hours per dose. Plaintiff further complains that he has not been provided with a companion to assist him in daily activities, nor has he been given a hospital mattress to alleviate the pain in his back and legs. He contends that other inmates with similar medical problems at FMC Devens have been provided with a companion and hospital mattress. (Id., ¶¶ 56-59.) Plaintiff also alleges that his treating physician has taken away his pain medication because Plaintiff continued to complain about pain, and was told that if he complains to another physician or medical director, all pain medications will be removed. (Id., ¶¶ 60, 61.)

Plaintiff asserts an Eighth Amendment denial of medical care claim, a medical negligence claim, and a claim of retaliation. (Id., Counts I, II and III.) He seeks unspecified compensatory and punitive damages. (Id., p. 11.)

This Court takes judicial notice of Plaintiff's earlier civil rights action, Malouf v. Turner, et al., Civil No. 09-2117 (JBS), which raised similar prior claims of denial of medical care, retaliation, and medical negligence, as well as a premisesliability claim not raised here. In an Opinion and Order entered on August 31, 2011, this Court found that Plaintiff had failed to exhaust his administrative remedies, as required under 42 U.S.C. § 1997e(a), before bringing his Eighth Amendment denial of medical care claim. This Court also determined that Plaintiff failed to present his medical negligence (tort) claim to the BOP, as required under the Federal Tort Claims Act at 28 U.S.C. § 2675(a), before filing his complaint in Civil No. 09-2117 (JBS). Accordingly, this Court dismissed Plaintiff's medical negligence claim for lack of jurisdiction, and granted Defendants' motion for summary judgment regarding the Eighth Amendment denial of medical care claim and retaliation claim for failure to exhaust administrative remedies. The dismissal was without prejudice. (Civil No. 09-2117 (JBS) at Docket Nos. 66 and 67.)

II. STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a governmental employee or entity. The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§1915(e)(2)(B) and 1915A. This action is subject to sua sponte screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) and § 1915A.

In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

The Supreme Court refined the standard for summary dismissal of a complaint that fails to state a claim in Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Court examined Rule 8(a)(2) of the Federal Rules of Civil Procedure which provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled...