Baskin v. United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Cazembie S. Baskin, Case No. 1:22cv00124

Plaintiff,

-vs- JUDGE PAMELA A. BARKER

MEMORANDUM OPINION AND

United States of America, et al., ORDER

Defendants.

Pro se plaintiff Cazembie S. Baskin, an inmate currently incarcerated at Federal

Correctional Institution, Morgantown (“FCI Morgantown”), filed this fee-paid civil rights

complaint against the following defendants: United States of America; Mark K. Williams, Warden;

FCI Elkton Medical Staff; FCI Elkton Doctor; J.A. Terris, Warden; Dr. Shirley; and John Doe,

P.A., nurse practitioner. (Doc. No. 1). Plaintiff alleges Defendants are liable under the Federal Tort

Claims Act (“FTCA”) for negligence and/or medical malpractice concerning the medical care and

treatment provided Plaintiff while incarcerated. Plaintiff also alleges Defendants’ deliberate

indifference to his serious medical needs violated the Eighth Amendment. Plaintiff requests

monetary relief.

For the following reasons, Plaintiff’s complaint is dismissed.

I. Background

Plaintiff’s complaint contains very few factual allegations. As best the Court can discern,

it appears that in 2019, Plaintiff was examined by a doctor at the Cleveland Clinic, who conducted

an MRI of Plaintiff’s abdomen and diagnosed Plaintiff with an enlarged liver and chronic liver

disease. (Id. at 7-8). Plaintiff alleges the defendants’ inadequate medical treatment “over a period

of time” caused his condition.1 (Id. at 5, 11). He alleges that Defendants failed to provide certain

procedures and medications, despite his repeated requests from 2015 to 2017, and this denial of

appropriate medical treatment constitutes negligence. Plaintiff asserts that Defendants are liable

under the FTCA for this negligence. (Id. at 6-10). Plaintiff also alleges that Defendants’ failure to

approve his “needed MRI, biopsy, and entomology testing,” their failure to “recommend and treat

[Plaintiff] with … testing and treatment,” and their failure “to ensure that needed medications were

provided” constitute deliberate indifference to his serious medical needs in violation of the Eighth

Amendment. (Id. at 10-11).

II. Standard of Review

A district court is expressly authorized to dismiss any civil action filed by a prisoner

seeking relief from a governmental entity, as soon as possible after docketing, if the Court

concludes that the complaint fails to state a claim upon which relief may be granted, or if the

plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§1915A; Siller v. Dean, No. 99-5323, 2000 U.S. App. LEXIS 1494, at *5 (6th Cir. Feb. 1, 2000);

see Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citing numerous Supreme Court cases for the

proposition that attenuated or unsubstantial claims divest the district court of jurisdiction); In re

Bendectin Litig., 857 F.2d 290, 300 (6th Cir. 1988) (recognizing that federal question jurisdiction

is divested by unsubstantial claims).

A cause of action fails to state a claim upon which relief may be granted when it lacks

“plausibility in the Complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading

must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

1 It is not clear from the complaint whether Plaintiff alleges the defendants’ purported inadequate medical treatment

caused his enlarged liver (Doc. No. 1 at 5) or the defendants’ purported inadequate treatment of his enlarged liver

caused his chronic liver disease (Doc. No. 1 at 11), or both.

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be

sufficient to raise the right to relief above the speculative level on the assumption that all the

allegations in the complaint are true. Twombly, 550 U.S. at 555. The plaintiff is not required to

include detailed factual allegations, but he or she must provide more than “an unadorned, the

Defendant unlawfully harmed me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal

conclusions or a simple recitation of the elements of a cause of action will not meet this pleading

standard. Id.

When reviewing a complaint, the Court must construe the pleading in the light most

favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998)

(citing Sistrunk, 99 F.3d at 197 (6th Cir. 1996)). The courts, however, are not required to conjure

unpleaded facts or construct claims against defendants on behalf of a pro se plaintiff. See Grinter

v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citation omitted); Beaudett v. City of Hampton, 775

F.2d 1274, 1277-78 (4th Cir. 1985).

III. Law and Analysis

A. Federal Tort Claims Act (“FTCA”)

Plaintiff alleges in his first cause of action that the United States of America, through its

employees, is liable under the FTCA for negligence and/or medical malpractice concerning the

medical care and treatment provided to Plaintiff while incarcerated.

The Westfall Act immunizes federal employees from liability for torts they commit when

acting within the scope of their federal employment. 28 U.S.C. § 2679(b)(1). When a federal

employee acts within the scope of his or her employment and commits a tort, any relief for that

tort must be sought against the Government under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-

2680 (the “FTCA”). The Federal Tort Claims Act provides the exclusive jurisdictional basis for

tort claims against the United States and its employees for actions committed in the scope of their

employment.

The United States, as a sovereign, is immune from suit unless it explicitly waives its

immunity. United States v. Sherwood, 312 U.S. 584, 590–91 (1941). By enacting the FTCA,

Congress waived the United States' sovereign immunity under very limited circumstances for

claims against the federal government arising from torts committed by federal employees who are

acting within the scope of their employment. 28 U.S.C. §§ 1346(b)(1), 2679(d)(1); United States

v. Orleans, 425 U.S. 807 (1976). Congress defined the exact terms and conditions upon which the

government may be sued, and the terms of the United States’ consent define the parameters of

federal court jurisdiction to entertain suits brought against the United States. United States v.

Orleans, 425 U.S. at 814; Honda v. Clark, 386 U.S. 484, 501 (1967).

The parameters placed on these tort claims dictate that they “shall forever be barred

unless...presented in writing to the appropriate Federal agency within two years after such claim

accrues.” 28 U.S.C. § 2401(b). The timely filing of an administrative claim is a requirement of the

FTCA. If the administrative requirements of the FTCA have not been fulfilled, the case must be

dismissed for lack of jurisdiction. Dolan v. U.S., 514 F.3d 587, 593 (6th Cir. 2008). This Court

cannot extend the waiver of immunity beyond what Congress intended. United States v. Kubrick,

444 U.S. 111, 118 (1979). Because Section 2401(b) is a condition of the United States’ waiver of

immunity, it must be interpreted solely by reference to federal law.

Here, the complaint does not show that Plaintiff has properly exhausted a claim regarding

the alleged negligence or medical malpractice under the FTCA. This claim must therefore be

dismissed.

B. Bivens Action

In his second cause of action, Plaintiff alleges that Defendants’ deliberate indifference to

his serious medical needs violated the Eight Amendment. This claim arises under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d

619 (1971). See Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004) (district court

properly construed action as a Bivens action where plaintiff alleged that he was deprived of a right

secured by the United States Constitution by persons acting under color of federal law) (citing

Bivens). Bivens provides a cause of action against federal officials for certain limited constitutional

violations, including an Eighth Amendment cruel and unusual punishment claim. Ziglar v. Abbasi,

137 S. Ct. 1843, 1854-55, 198 L. Ed. 2d 290 (2017).

The Eighth Amendment prohibits prison officials from acting with “deliberate

indifference” toward an inmate’s serious medical needs. See Estelle, 429 U.S. at 104; see also

Horn by Parks v. Madison Cty. Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994) (“Where prison

officials are so deliberately indifferent to the serious medical needs of prisoners as to unnecessarily

and wantonly inflict pain, they impose cruel and unusual punishment in violation of the Eighth

Amendment.”). A prisoner must therefore demonstrate that (1) his medical condition posed a

“substantial risk of serious harm” to him, and (2) each defendant in question acted with subjective

deliberate indifference to that risk. See Farmer, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811

(1994).

The objective element requires the existence of a “sufficiently serious” medical need.

Farmer, 511 U.S. at 834. A sufficiently serious medical need has been defined as one “that has

been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.” Harrison v. Ash, 539 F.3d

510, 518 (6th Cir. 2008) (citations omitted).

The subjective element requires “an inmate to show that prison officials have ‘a sufficiently

culpable state of mind in denying medical care.’” Blackmore v. Kalamazoo County, 390 F.3d 890,

895 (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.2000). To establish the requisite

culpability, a prisoner must demonstrate that the prison official(s) “(1) subjectively knew of a risk

to the inmate’s health, (2) drew the inference that a substantial risk of harm to the inmate existed,

and (3) consciously disregarded that risk.” Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir.

2010); Brik v. McConnell, No. 4:20-cv-1825, 2021 U.S. Dist. LEXIS 16955, at *6 (N.D. Ohio Jan.

29, 2021). “[A]n inadvertent failure to provide adequate medical care” is not “repugnant to the

conscience of mankind” and is therefore insufficient to state a claim of deliberate indifference.

Estelle, 429 U.S. at 105-106. Likewise, allegations of medical malpractice or negligent diagnosis

and treatment are insufficient to state a claim. Jennings v. Al-Dabagh, 97 Fed.App’x. 548, 549-50

(6th Cir. 2004).

1. United States of America

As an initial matter, Plaintiff cannot bring a Bivens claim against the United States or its

agencies. The United States, as a sovereign, is immune from suit unless it explicitly waives its

immunity. United States v. Sherwood, 312 U.S. 584, 590-91, 61 S. Ct. 767, 85 L. Ed. 1058 (1941).

In most cases, Congress defines the exact terms and conditions upon which the United States, its

agencies, and its employees may be sued. The terms of the consent define the parameters of federal

court jurisdiction to entertain suits brought against the United States government. United States v.

Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976); Honda v. Clark, 386 U.S.

484, 501, 87 S. Ct. 1188, 18 L. Ed. 2d 244 (1967). And the United States has not waived sovereign

immunity for claims asserted under Bivens. See Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991)

(stating that a Bivens claim cannot be asserted against the United States government or its

employees in their official capacities); Flonery v. United States, No. 4:17-cv-1068, 2018 U.S. Dist.

LEXIS 122553, at *8 (N.D. Ohio July 23, 2018).

Plaintiff’s Bivens claim against the United States of America therefore fails.

2. Warden Terris, Dr. Shirley, and John Doe, P.A.

Plaintiff alleges that while incarcerated at Federal Correctional Institution, Milan (“FCI

Milan”), the defendants employed at FCI Milan (“FCI Milan defendants”) violated his Eighth

Amendment rights. Specifically, Plaintiff alleges that Warden Terris “failed to approve … his

needed MRI, biopsy, and entomology testing,” and Dr. Shirley and John Doe, P.A. “failed to

recommend and treat [Plaintiff] … with testing, treatment, and medications.” (Doc. No. 1 at 10).

Plaintiff claims such action constitutes deliberate indifference. The Court finds that the Northern

District of Ohio is not the proper venue for these claims.

A civil action may be brought only in: (1) a judicial district where any defendant resides,

if all Defendants reside in the state in which the Court is located; (2) a judicial district in which a

substantial part of the events or omissions giving rise to the claim occurred; or (3) if there is no

district in which an action may otherwise be brought as provided by this section, any judicial

district in which any defendant is subject to the Court’s personal jurisdiction with respect to the

action brought. 28 U.S.C. § 1391(b). The events in the complaint concerning Terris, Shirley, and

Doe occurred in FCI Milan, which is located within the Eastern District of Michigan. Defendants

presumably reside in Michigan. Therefore, the Eastern District of Michigan is the proper venue

for Plaintiff’s claims against the FCI Milan defendants.

3. Warden Willaims, FCI Elkton Medical Staff, and FCI Elkton Doctor

Plaintiff asserts the same Bivens claims against the defendants employed at FCI Elkton

(“FCI Elkton defendants”). He alleges that Warden Williams failed to approve medical treatment

and failed to ensure that medications were provided. He also alleges that the FCI Elkton doctor

and the “FCI Elkton assigned P.A.” failed to ensure that Plaintiff received “needed medical

treatment and needed medications.” (Doc. No. 1 at 11).

Even assuming Plaintiff’s allegations are sufficient to demonstrate that he has a serious

medical need or condition, he has not alleged facts sufficient to demonstrate that any defendant

was “deliberately indifferent” to that need. The complaint indicates that Plaintiff received

treatment at the Cleveland Clinic and was diagnosed with an enlarged liver and chronic liver

disease. It appears that Plaintiff believes some testing and additional medication should have been

provided over the years of his incarceration to address his condition, perhaps prevent his condition

from worsening, and alleviate some of his pain. Plaintiff, however, has not alleged facts plausibly

suggesting that any defendant subjectively “drew the inference that a substantial risk of harm” to

him existed in connection with his condition—in the absence of additional testing or otherwise—

or that they consciously disregarded a serious risk to his health. It is well-established that a

prisoner’s disagreement with the level of testing or treatment he receives does not rise to the level

of a constitutional violation. See Dodson v. Wilkinson, 304 Fed.App’x. 434, 440 (6th Cir. 2008);

Ward v. Smith, No. 95-6666, 1996 U.S. App. LEXIS 28322, 1996 WL 627724 (6th Cir. Oct. 29,

1996) (“differences in judgment between an inmate and prison medical personnel regarding

appropriate medical diagnosis or treatment are not enough to state a deliberate indifference

claim”). Plaintiff has not alleged facts plausibly suggesting any defendant had the subjective state

of mind necessary to support a constitutional “deliberate indifference” claim.

Additionally, Plaintiff has not alleged facts suggesting that Warden Williams was

personally involved in or responsible for his medical care. Plaintiff alleges that the warden failed

to approve medical treatment and failed to ensure that medications were provided. At most,

Plaintiff's allegations suggest he seeks to impose liability on the warden on the basis of his

supervisory authority over prison medical staff. Prison officials, however, cannot be liable for

constitutional deprivations of subordinates where their only alleged conduct is failing to intervene

on a prisoner’s behalf. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Moreover, liability

cannot be imposed on a supervisory official for constitutional violations of subordinates solely on

the basis of respondeat superior. Okoro v. Scibana, 63 Fed.Appx. 182, 184 (6th Cir. 2003).

Plaintiff therefore fails to state a deliberate indifference claim against the FCI Elkton

defendants.

IV. Conclusion

Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915A. The Court further

certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken

in good faith.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: April 28, 2022 U. S. DISTRICT JUDGE