Orozco-Barajas v. Zickefoose
| Decision Date | 24 April 2012 |
| Docket Number | Civil Action No. 11-3628 (NLH) |
| Parties | SERGIO OROZCO-BARAJAS, Plaintiff, v. DONNA ZICKEFOOSE, Warden, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
APPEARANCES:
Plaintiff pro se
Sergio Orozco-Barajas
Federal Correctional Center - Fort Dix
Plaintiff Sergio Orozco-Barajas, a prisoner confined at the Federal Correctional Institution at Fort Dix, New Jersey, seeks to bring this action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging violations of his constitutional rights. Plaintiff paid the filing fee.
At this time, the Court must review the Complaint 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 it seeks monetary relief from a defendant who is immune from such relief.
The following factual allegations are taken from Plaintiff's Complaint and are accepted as true for purposes of this review. Plaintiff alleges that in 2009, while he was a pre-trial detainee in the custody of the U.S. Marshal in Kingsville, Texas, he was taken to Defendant Christus Spohn Hospital Kleberg in Kingsville. He alleges that Defendant Dr. Flores1 performed surgery to his leg which was supposed to replace some metallic hardware installed in his femur in 1999. Plaintiff alleges that Dr. Flores did not replace the metallic hardware, but just removed one or more screws from the metallic hardware. Plaintiff alleges that he then developed abscesses and bone infections. Plaintiff alleges that Dr. Flores then performed additional surgeries to drain the abscesses and clean the bone infections. Defendant Christus Spohn Hospital Kleberg and Dr. Flores are collectively referred to hereinafter as the "Texas Defendants."
Plaintiff alleges that sometime thereafter he was sentenced and transferred to the Federal Correctional Institution at Ashland, Kentucky. He alleges that, while there, he developed an abscess in the area of the incision on his leg. He alleges that on June 1, 2010, an X-ray revealed a fracture still present in his thigh and problems with his metallic hardware resulting fromthe alleged failure of Dr. Flores to replace the metallic hardware in his leg. Plaintiff alleges that, instead of taking him to an outside specialist surgeon, Defendants Dr. Ralph I. Touma, Dr. Kenneth J. Gomez, and physician's assistant Laura Bradley, all in the Health Services department at F.C.I. Ashland, performed three surgeries to drain the abscesses, which remained open and draining. Plaintiff alleges that he requested a referral to a specialist surgeon to remove the metallic hardware, but that Dr. Gomez told him that he would die with this infection. Plaintiff alleges that he began the administrative remedy process, but was transferred to the Federal Correctional Institution at Fort Dix in November, 2010. Hereinafter, this Court will refer to Defendants Touma, Gomez, and Bradley, collectively, as the "Kentucky Defendants."
Finally, Plaintiff alleges that while at F.C.I. Fort Dix, he has developed three additional abscesses. He alleges that the abscesses were observed by the following defendants: 1) Defendant Dr. Abigail Lopez de Lasalle, a clinical director at the Health Services department at F.C.I. Fort Dix, (2) Defendant nurse Ed Eichel, employed as a nurse at F.C.I. Fort Dix, and allegedly responsible for referrals to specialty consultants as Co-Chairperson of the Utilization Review Committee, (3) Defendant Jose Ravago, an MLP at the Health Services department of F.C.I. Fort Dix, who has allegedly been treating Plaintiff, 4) DefendantDr. Williams, described as an orthopedic surgeon consulting with the Health Services department at F.C.I. Fort Dix, and (5) Defendant Dr. Sulayman, a physician at the Health Services department at F.C.I. Fort Dix, all of whom will be collectively referred to hereinafter as the "New Jersey Medical Defendants." Plaintiff alleges that the New Jersey Medical Defendants have refused to open and drain these abscesses and have disregarded radiology reports about his fracture and problems with his metallic hardware. Plaintiff alleges that the New Jersey Medical Defendants have persisted in an easy but ineffective course of treatment with antibiotic medications. Plaintiff also names Warden Donna Zickefoose as a Defendant.
Plaintiff alleges that all of the named Defendants have been deliberately indifferent to his serious medical needs. He seeks compensatory damages from all and injunctive relief, in the form of an order directing Defendant Warden Zickefoose to evaluate and treat his serious medical needs.2
This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (); 28 U.S.C. § 1915A (); 42 U.S.C. § 1997e ().
In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In addition, any complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint must plead facts sufficient at least to "suggest" a basis for liability. Spruill v. Gillis, 372 F.3d 218, 236 n.12 (3d Cir. 2004). "Specific facts are not necessary;the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (). Factual allegations must be enough to raise a right to relief above the speculative level ... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
The Court of Appeals for the Third Circuit has that the Twombly pleading standard applies in the context of a civil rights action. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
More recently, the Supreme Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions -- which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted -- and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Although the Court must assume the veracity of the facts asserted in the complaint, it is "not bound to accept as true a legalconclusion couched as a factual allegation." Id. at 1950. Thus, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id.
Therefore, after Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted).
Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissalpursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court held that a violation of the Fourth Amendment by a federal agent acting under color of his authority gives rise to a cause of action against that agent, individually, for damages. The Supreme Court has also implied damages remedies...
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