Sanchez v. Sabol, Civil Action No. 07-40090-NMG.

• Decision Date: 07 March 2008
• Docket Number: Civil Action No. 07-40090-NMG.
• Citation: 539 F.Supp.2d 455
• Parties: Jose V. SANCHEZ, Plaintiff, v. Carolyn A. SABOL, Defendant.
• Court: U.S. District Court — District of Massachusetts

539 F.Supp.2d 455

Jose V. SANCHEZ, Plaintiff, v. Carolyn A. SABOL, Defendant.

Civil Action No. 07-40090-NMG.

United States District Court, D. Massachusetts.

March 7, 2008.

COPYRIGHT MATERIAL OMITTED

Jose V. Sanchez, Ayer, MA, pro se.

Anita Johnson, United States Attorney's Office, Boston, MA, for Defendant.

MEMORANDUM & ORDER

GORTON, District Judge.

The petitioner, Jose V. Sanchez ("Sanchez"), is a federal prisoner who has lost both of his kidneys and has been treated with hemodialysis for over 14 years. He has filed this petition for habeas corpus in an effort to secure a kidney transplant and the government has responded with a motion to dismiss.

I. Background

A. The Petitioner and His Condition

Sanchez was sentenced in October, 1993, to a term of imprisonment of 365 months following his conviction for Possession with Intent to Distribute in Excess of 50 Grams of Cocaine Base. He is currently serving that sentence at the Medical Center for Federal Prisoners at Ft. Devens ("Devens") in Ayer, Massachusetts. The defendant, Carolyn Sabol ("Sabol") is the Warden at Devens.

When Sanchez entered the custody of the Federal Bureau of Prisons ("BOP") he had already lost one kidney. On January 19, 1994, he lost his remaining kidney when he was apparently the innocent victim of a stabbing during a lunchroom brawl at the BOP facility in Terre Haute, Indiana. Since then he has undergone hemodialysis three times each week which has, according to monthly blood tests, been effective.

Notwithstanding the results of the blood tests, Sanchez claims that, as a result of the prolonged hemodialysis, he has been subjected to great discomfort, the development of calcium deposits throughout his body and 23 separate surgeries. The surgeries have left numerous permanent scars ranging in length from ½ inch to 9½ inches. Sanchez claims that dialysis is no longer possible through his arms and that it is therefore being administered through his neck, groin and legs. He feels he must wear long-sleeved shirts to cover the damage to his arms.

B. The Procedure for Obtaining a Kidney Transplant While in Federal Custody

Under BOP policy, the organ transplant process operates as follows:

1) The Clinical Director ("CD") at the custodial location must determine that it is medically necessary to evaluate the inmate's suitability for a transplant.

2) The CD initiates a consultation with a specialist.

3) The CD forwards all pertinent medical information to the BOP's Medical Director in Washington, DC, for consideration.

4) If the Medical Director determines that the transplant is medically indicated, the inmate is approved for surgery.

5) The transplant center (in this case University of Massachusetts Medical Center ("the Medical Center")) then performs a full evaluation to determine whether the inmate is an appropriate candidate for a transplant.

6) If the candidate is approved, he is placed on a waiting list for an organ donation.

The pleadings indicate that Sanchez began informally requesting a kidney transplant in March, 1994, at which time he claims to have received verbal assurances that he would soon receive a transplant. In 2006, Sanchez filed what purported to be a motion for compassionate release pursuant to 18 U.S.C. § 3582. Because he had not filed any action in the District Court at that time he submitted his "motion" directly to the then-Warden at FMC Devens, David L. Winn ("Winn"). Winn denied the "motion" on December 26, 2006 on the grounds that Sanchez's illness did not significantly affect his ability to perform daily activities and that he was receiving adequate medical care.

On October 26, 2006, Sanchez filed an administrative tort claim seeking $25 million in damages for the allegedly delayed transplant and resulting prolonged dialysis. That claim was denied on April 27, 2007, after which he filed a separate action in this Court on October 27, 2007 (Docket No. 07-cv-40274-NMG) pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

In the meantime, in December, 2006, the CD at FMC Devens informed Sanchez that he was conducting a formal evaluation of Sanchez's suitability for a transplant. On June 14, 2007, the same CD recommended Sanchez for a kidney transplant and forwarded his medical information to the BOP Medical Director. As of February 14, 2008, the BOP Medical Director had determined that a transplant was medically indicated and that Sanchez was approved for referral to the Medical Center for the necessary workups.

On April 2, 2007, apparently before the CD's evaluation was complete, Sanchez filed this petition requesting that the Court 1) order the BOP to provide him with a kidney transplant and all necessary treatment associated therewith and 2) censure Sabol and the staff at Devens for unnecessarily delaying his transplant.

The government's motion to dismiss this petition is grounded on the allegation that it is not properly pled. The government contends that because Sanchez's complaint is addressed to the conditions of his confinement rather than the to fact or duration of confinement, habeas corpus relief does not lie and that if any relief is available it must emanate from a suit pursuant to Bivens. Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004). The government also contends that even if this petition is construed as a Bivens suit, dialysis does not violate the Eighth Amendment, so he has failed to plead facts sufficient to state a claim. Finally, because Sanchez has allegedly failed to plead his case correctly (or to pay the five dollar filing fee ordered by this Court), the government urges this Court to dismiss it.

II. Analysis

The government moves to dismiss Sanchez's habeas petition because he: 1) has no habeas claim, 2) does not plead a constitutional violation and 3) has not paid the filing fee.

A. Habeas Corpus and the Constitutional Claim

As a general matter, a petition for habeas corpus is the appropriate means to challenge the "fact or duration" of incarceration, while challenges to the conditions of confinement are generally brought as civil rights claims under Bivens.¹ See Muhammad, 540 U.S. at 750, 124 S.Ct. 1303; Kamara v. Farquharson, 2 F.Supp.2d 81, 89 (D.Mass.1998). When a claim involves inadequate medical treatment, courts usually find habeas relief unavailable. Kane v. Winn, 319 F.Supp.2d 162, 215 (D.Mass.2004)(citing cases). When the petitioner is proceeding pro se, the district court may proceed in one of three ways. It may 1) dismiss the petition, as the government urges, 2) require the petitioner to amend his pleading to bring it into the proper procedural framework or 3) construe the habeas petition as a constitutional claim brought pursuant to Bivens.

The Courts of the District of Massachusetts have, in different circumstances, followed either the first or the third course. See Kane, 319 F.Supp.2d at 215 (declining to dismiss a habeas petition, instead treating it as a civil rights claim); McCaffery v. Winn, 2005 WL 2994370 at *1 (D.Mass.2005) (same); Kelly v. Farquharson, 256 F.Supp.2d 93, 103 (D.Mass. 2003) (noting that habeas claims challenging confinement conditions are subject to dismissal); Kamara, 2 F.Supp.2d at 89(dismissing a habeas claim without prejudice as improperly pled). The most thorough analysis of these options appears in Kane and, as Judge Young there concluded, the best view is to treat such a habeas petition as an instance of inartful pleading and to permit the pro se petitioner to proceed as though his action were properly pled. Therefore, this memorandum turns next to the facts of Sanchez's case.

B. Relief Sought

As noted above, Sanchez has requested that this Court order 1) that he be provided with a kidney transplant and all necessary associated care and 2) that the medical staff at Devens be censured for failing to approve him for such a transplant earlier. Sanchez has filed a separate action in this Court seeking damages for the alleged mismanagement of his medical care.

The primary relief sought is the kidney transplant itself but, even if this Court possessed the medical expertise to recognize the efficacy of such a procedure, it lacks the authority to issue so specific and direct an order as Sanchez requests. The most it can do is to order BOP officials to review Sanchez's request for a transplant in an expedited manner. As noted above, however, both the CD at Devens and the BOP Medical Director in Washington, DC have already recommended Sanchez as a candidate for a transplant and, as of February, 2008, Sanchez was due to be examined by physicians at the University of Massachusetts Medical Center to determine his fitness for such a surgical procedure. His case is now out of the...