Pounds v. Dieguez
| Decision Date | 22 October 2019 |
| Docket Number | CASE NO. 19-20743-CV-SCOLA |
| Parties | WADE D. POUNDS, Plaintiff, v. DR. TERESITA DIEGUEZ, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
REPORT OF MAGISTRATE JUDGE RE AMENDED CIVIL RIGHTS COMPLAINT-42 U.S.C. § 1983
[ECF 8]
Plaintiff, Wade D. Pounds, a convicted felon, has filed an amended civil rights complaint, pursuant to 42 U.S.C. § 1983, arising from a claim of deliberate indifference to a serious medical need since his arrival at Everglades Correctional Institution ("Everglades CI") in April 2015. [ECF 8]. The plaintiff sues the following Defendants: (1) Dr. Teresita Dieguez, M.D. ("Dr. Dieguez"), (2) Dr. Oscar Ortega, M.D. ("Dr. Ortega"), and (3) Dr. Rosalind Ajoku ("Dr. Ajoku"), all in their individual capacity. The defendants work at Everglades Correctional Institution ("Everglades CI"), as employees of Centurion, which manages the healthcare for that facility. [Id., p. 2].
This case has been referred to the undersigned for issuance of all preliminary orders and recommendations to the district court regarding dispositive motions. See 28 U.S.C. § 636(b)(1)(B), (C), Fed. R. Civ. P. 72(b), S.D. Fla. Local Rule 1(f) governing Magistrate Judges, and S.D. Fla. Admin. Order 2019-02.
Plaintiff has previously been granted in forma pauperis ("IFP") status [ECF 5] and is therefore subject to the screening provisions of 28 U.S.C. § 1915(e)(2). See Farese v. Scherer, 342 F.3d 1223, 1228 (11th Cir. 2003) (). Because Plaintiff is also a prisoner, seeking redress from governmental entities, employees, or officers, his complaint is subject to screening under 28 U.S.C. § 1915A, which does not distinguish between IFP plaintiffs and non-IFP plaintiffs. See 28 U.S.C. § 1915A; Thompson v. Hicks, 213 F. App'x 939, 942 (11th Cir. 2007)(per curiam).
In the amended complaint, Plaintiff states he has been hypertensive for the past 20 years and receives medical care and treatment for this condition. [ECF 8, p. 3]. From 2015 to the present, Plaintiff alleges he has repeatedly complained to the named Defendants about chronic disturbing problems with digestion, abnormal bowel and gas movements, shortness of breath, abdominal pain, and shocks. [Id., p. 5]. In March 2015, an ultrasound of his abdomen was conducted to address Plaintiff's complaints. [Id., p. 3]. The ultrasound report revealed the gallbladder was"mildly enlarged" and "severely contracted," and diagnosed "focal abdominal aortic ectasia without evidence for aneurysm." [ECF 1 Ex. A, p. 12]. Plaintiff claims the report shows that he has a "bulge" in his abdominal aorta, and that the walls of the abdominal aorta have lost elasticity, which could be confirmation of an actual aortic dissection resulting from infection, hypertension, or arthrosclerosis. [ECF pp. 3-4]. Plaintiff alleges that his medical history, together with the ultrasound findings confirms that the abdominal "bulge" poses a serious risk to Plaintiff's health. [Id., p. 4]. After submitting a stool sample in December 2015, which tested positive for the presence of blood, Dr. Ortega requested Plaintiff be examined by a gastroenterologist. [Id., pp. 5; 34].
Plaintiff alleges Dr. Dieguez was deliberately indifferent to Plaintiff's serious medical needs, cancelling Dr. Ortega's referral request, knowing Plaintiff's medical history spanning over four years, in which Plaintiff has complained of chronic pain, digestive issues, and discomfort in the abdominal area. [Id., pp. 5-6]. Review of the referral form, however, reveals Dr. Dieguez's notation "Cancel by CHO." [Id., p. 34].
He alleges Dr. Ortega was deliberately indifferent to Plaintiff's serious medical needs because he refused to submit another referral for Plaintiff to be examined by a gastroenterologist, following Dr. Ortega's cancellation and Plaintiff's continued chronic complaints of pain and abdominal discomfort. [Id., pp. 7-8].
Plaintiff alleges Dr. Ajoku was also deliberately indifferent to Plaintiff's serious medical needs by failing to provide Plaintiff treatment for his abdominal condition, chronic pain and discomfort. [Id., pp. 6-8]. Plaintiff has filed grievances, seeking reinstatement and approval of the referral or a re-referral and approval for him to be examined by a gastroenterologist. [Id.; pp. 6-8].
He seeks compensatory and punitive damages. [Id., p. 8].
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), where a plaintiff is proceeding IFP, the complaint must be dismissed if the court determines that the complaint fails to state a claim on which relief may be granted. Wright v. Miranda, 740 F. App'x 692, 694 (11th Cir. 2018). Pursuant to § 1915A, a case is also subject to dismissal where a plaintiff seeks redress from the government if the complaint fails to state a claim on which relief may be granted. Id.
In reviewing the complaint under § 1915(e), the court takes the allegations as true and construes them in the most favorable light to the plaintiff. See Maps v. Miami Dade State Attorney, 693 F. App'x 784, 785 (11th Cir. 2018)(per curiam). Complaints filed by pro se prisoners are held to "less stringent standards than formal pleadings drafted by lawyers[.]" Haines v. Kerner, 404 U.S. 519, 520 (1972)(per curiam).
In order to "avoid dismissal for failure to state a claim, a complaint must contain factual allegations that, when accepted as true, allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct." Wright v. Miranda, 740 F. App'x 692, 694 (11th Cir. 2018)(citing Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017) (per curiam)). Although a pro se pleading is liberally construed, it must still "suggest that there is some factual support for a claim." Id.
To state a claim for relief under § 1983, a plaintiff must show that he was deprived of a federal right by a person acting under color of state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Under § 1915(e)(2)(B)(i), courts may dismiss as frivolous claims that are "based on an indisputably meritless legal theory" or "whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
Furthermore, the same standards govern dismissal for failure to state a claim under Fed. R. Civ. P. 12(b) and dismissal for failure to state a claim under § 1915(e)(2)(B)(ii). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Thus, under 28 U.S.C. § 1915(e)(2)(B)(ii), the court may dismiss a complaint that fails "to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleadsfactual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Although federal courts give liberal construction to pro se pleadings, courts "nevertheless have required them to conform to procedural rules." Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)(per curiam)(quotation omitted). Rule 8 requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). There is no required technical form, but "each allegation must be simple, concise, and direct." Id. at 8(d)(1). The statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quotation omitted)(ellipses in original). Additionally, each separate claim should be presented in a separate numbered paragraph, with each paragraph "limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b).
"Precedent also teaches, however, that a court, of course, should not abandon its neutral role and begin creating arguments for a party, even an unrepresented one." Sims v. Hastings, 375 F.Supp.2d 715, 718 (N.D. Ill. 2005)(citing Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). A district court may not rewrite a pleading to include claims that were never presented. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). The court may also not construct a litigant's legalarguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993); or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). When read liberally, a pro se pleadings "should be interpreted 'to raise the strongest arguments that [it] suggest[s]." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
The plaintiff alleges that Dr. Dieguez, Dr. Ortega, and Dr. Ajoku were deliberately indifferent to his serious medical needs because Dr. Dieguez cancelled Dr. Ortega's request that Plaintiff be examined by a gastroenterologist, and Drs. Ortega and Dieguez provided inadequate treatment or otherwise failed to properly follow-up on the findings in the 2015 ultrasound. He maintains Dr. Ortega's medical management of his physical complaints is inappropriate and has put plaintiff at risk for further, more severe complications. In conclusory fashion, he suggests the named doctors have acted with "malice" The plaintiff fails to state a deliberate indifference claim upon which relief can be granted.
The Eighth Amendment governs the conditions under which convicted prisoners are confined and the treatment that they receive while in prison. Farmer v.Brennan, 511 U.S. 825, 832 (1994). The Supreme Court has interpreted the Eighth Amendment to...
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