Opinion

Hernandez-Perez v. Prince

Court
District Court, W.D. Tennessee
Filed
Aug 1, 2019
Cited by
0 cases
Authority
More cited than 29.7%

“We agree with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts.”

How later courts described this case

  • “We agree with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

FRANCISCO HERNANDEZ-PEREZ, )

)

Plaintiff, )

)

VS. ) No. 17-2038-JDT-cgc

)

DR. PRINCE, )

)

Defendant. )

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On January 18, 2017, Plaintiff Francisco Hernandez-Perez, who at the time was

incarcerated at the Federal Correctional Institution in Memphis, Tennessee (FCI

Memphis), filed a pro se complaint under Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388 (1974). (ECF No. 1.) After Hernandez-Perez filed a properly supported in

forma pauperis application, the Court issued an order on February 7, 2017, granting leave

to proceed in forma pauperis and assessing the civil filing fee pursuant to the Prison

Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) The Clerk shall

record the Defendant as the FCI Memphis Medical Director, Dr. First Name Unknown

Prince.

Hernandez-Perez alleges that on March 18, 2016, while performing his duties in the

food services department, he slipped and fell. (ECF No. 1 at PageID 6.) Hernandez-Perez

believes he slipped on water left on the floor from a spill or from mopping. (Id. at PageID

6-7.) There were no wet floor signs in the area. (Id. at PageID 7.) As a result of his fall,

Hernandez-Perez injured his back. (Id.) Hernandez-Perez contacted his supervisor, Mrs.

Garrison, who took Hernandez-Perez to the medical department. (Id.) Mrs. Garrison, who

is not a party to this action, did not inform the medical staff that Hernandez-Perez did not

speak English and needed an interpreter. (Id.) Therefore, Hernandez-Perez used gestures

in an attempt to explain the injury to his back, “by using his hand pointing to his lower

back and signaling to the floor that he had fallen.” (Id.) The medical provider, without

contacting an interpreter, dispensed ibuprofen and told Hernandez-Perez that he had only

injured his hand. (Id.)

Hernandez-Perez continued to experience extreme pain in his back despite taking

the ibuprofen and returned to the medical unit on April 13, 2016, taking with him an

interpreter who was able to explain the slip and fall and Hernandez-Perez’s recurring back

pain. (Id.)1 Medical personnel prescribed new medication and took x-rays. (Id.)

Hernandez-Perez also underwent an MRI on July 13, 2016, which did not show any

vertebral cracks or fractures but did reveal a protrusion at the L4 vertebra in the lumbar

region of Hernandez-Perez’s back. (Id. at PageID 7-8.) Hernandez-Perez alleges he saw

1 Hernandez-Perez alleges that when his pain did not subside, he “returned to medical

explaining that the ibuprofen prescribed was not working to ease his pain. It was not until April

13, 2016 that Mr. Hernandez-Perez was contacted by medical staff and he brought with him an

interpreter to translate for him. . . .” (Id.) It is uncertain whether this means Hernandez-Perez

went to medical on April 13th with his interpreter to explain the medication was not working and

also was able to see a medical provider that same day, or whether he went to medical alone on an

unspecified date before April 13th to explain he was still in pain and then was called to see a

medical provider on April 13th, at which time he took an interpreter.

a neurologist on September 15, 2016, who recommended that Hernandez-Perez schedule

an appointment with a neurosurgeon. (Id. at PageID 8.) At the time of filing, the Institution

Utilization Review Committee, which is chaired by Dr. Prince and approves such

treatment, had not yet given approval for Hernandez-Perez to see a neurosurgeon. (Id.)

Hernandez-Perez alleges that he filed an administrative remedy over the delay in

additional treatment. (Id. at PageID 9.) Warden Batts and the Bureau of Prisons (BOP)

Central Office responded that Hernandez-Perez was receiving medical care in accordance

with BOP policy and that the Institution Review Committee had his case under

consideration. (Id. at PageID 11, see also ECF 1-1 at PageID 18-19, 21.) Hernandez-Perez

alleges that because of Dr. Prince’s deliberate indifference in delaying treatment, he was

not seen by a neurosurgeon in the ten months after his injury. (ECF No. 1 at PageID 11-

14.) Hernandez-Perez now seeks compensatory damages in an unspecified amount. (Id.

at PageID 5.)

The Court is required to screen prisoner complaints and to dismiss any complaint,

or any portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or

(2) seeks monetary relief from a defendant who is immune from such

relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may

be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556

U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57

(2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court

accepts the complaint’s “well-pleaded” factual allegations as true and then determines

whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin,

631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations

“are not entitled to the assumption of truth,” and legal conclusions “must be supported by

factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.

R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’

rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings

drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at

383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants,

however, are not exempt from the requirements of the Federal Rules of Civil Procedure.

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.

App’x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for

failure to comply with “unique pleading requirements” and stating “a court cannot ‘create

a claim which [a plaintiff] has not spelled out in his pleading’” (quoting Clark v. Nat’l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

Hernandez-Perez filed his complaint pursuant to Bivens, which provides a right of

action against federal employees who violate an individual’s rights under the United States

Constitution. “Under the Bivens line of cases, the Supreme Court has recognized a cause

of action against federal officials for certain constitutional violations when there are no

alternative processes to protect the interests of the plaintiff and no special factors

counseling against recognizing the cause of action.” Koubriti v. Convertino, 593 F.3d 459,

466 (6th Cir. 2010).

The gravamen of Hernandez-Perez’s complaint is that Dr. Prince has been

deliberately indifferent to Hernandez-Perez’s serious medical need for back surgery.

According to the complaint, Dr. Prince oversees the prison’s medical review committee,

and the medical review committee has failed to take any action on a neurologist’s

recommendation that Hernandez-Perez consult a neurosurgeon about his back. The Eighth

Amendment’s prohibition on cruel and unusual punishment governs Hernandez-Perez’s

claim. The Eighth Amendment deliberate indifference standard consists of both objective

and subjective elements. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective

element requires that the deprivation be “sufficiently serious.” Id. In the context of the

denial of medical care, the objective element under Farmer requires that a prisoner have a

serious medical need. Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004).

“[A] medical need is objectively serious if it is one that has been diagnosed by a physician

as mandating treatment or one that is so obvious that even a lay person would readily

recognize the necessity for a doctor’s attention.” Id. at 897 (internal quotation marks

omitted).

To establish the subjective element of the claim, a prisoner must show that a prison

official acted with “deliberate indifference” to a substantial risk that the prisoner would

suffer serious harm. Farmer, 511 U.S. at 834. “[D]eliberate indifference describes a state

of mind more blameworthy than negligence.” Id. at 835. A prison official cannot be found

liable under the Eighth Amendment unless he subjectively knows of an excessive risk of

harm to an inmate’s health or safety and disregards the risk. Id. at 837. “[A]n official’s

failure to alleviate a significant risk that he should have perceived but did not” does not

state a claim for deliberate indifference. Id. at 838.

In this case Hernandez-Perez’s complaint fails to state a claim for deliberate

indifference to a serious medical need. The complaint does not allege enough facts to show

that Dr. Prince subjectively acted with deliberate indifference. Hernandez-Perez faults Dr.

Prince for not acting quickly enough to refer him for a surgery consult. But a plaintiff’s

“desire for additional or different treatment does not by itself suffice to support an Eighth

Amendment claim.” Anthony v. Swanson, 701 F. App’x 460, 464 (6th Cir. 2017) (citing

Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)). And the grievances attached

to the complaint show that Hernandez-Perez received x-rays, pain medication, an MRI,

back support, a lower bunk pass, and a restriction from lifting weights over twenty pounds.

(ECF No. 1-1 at PageID 21.) When a plaintiff has received some medical treatment,

“federal courts are generally reluctant to second guess medical judgments and to

constitutionalize claims which sound in state tort law.” Burgess v. Fischer, 735 F.3d 462,

476 (6th Cir. 2013) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)).

Furthermore, Hernandez-Perez’s allegation of delay, standing alone, does not state

a claim for deliberate indifference. Hernandez-Perez states that he received an MRI in

June 2016 and that the neurologist first recommended that Hernandez-Perez see a

neurosurgeon in September 2016. The Sixth Circuit has held that “delay of a recommended

plan of treatment could constitute a constitutional violation if the doctor acted with

deliberate indifference to a serious medical need.” Santiago v. Ringle, 734 F.3d 585, 590

(6th Cir. 2013). However, “the mere existence of delay in receiving treatment” does not

establish deliberate indifference. Id. at 593 (citing Reilly v. Vadlamudi, 680 F.3d 617, 625–

27 (6th Cir. 2012)). A plaintiff must show more than just delay in treatment or acting on a

recommendation in order to prove deliberate indifference. In this case there are no facts

alleged to show how much time passed between the neurosurgeon’s recommendation and

when Dr. Prince first learned of the recommendation or that Dr. Prince’s course of action

reflects a deliberate indifference to Hernandez-Perez’s serious medical needs. Without

more facts to show that Dr. Prince delayed the recommended treatment plan with the

subjective intent to disregard Hernandez-Perez’s need for the surgery consult, the

complaint fails to state an Eighth Amendment claim against Dr. Prince.

For the foregoing reasons, Hernandez-Perez’s complaint is subject to dismissal in

its entirety for failure to state a claim.

The Sixth Circuit has held that a district court may allow a prisoner to amend his

complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d

944, 951 (6th Cir. 2013); see also Brown v. R.I., 511 F. App’x 4, 5 (1st Cir. 2013) (per

curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form of

notice and an opportunity to cure the deficiencies in the complaint must be afforded.”).

Leave to amend is not required where a deficiency cannot be cured. Curley v. Perry, 246

F.3d 1278, 1284 (10th Cir. 2001) (“We agree with the majority view that sua sponte

dismissal of a meritless complaint that cannot be salvaged by amendment comports with

due process and does not infringe the right of access to the courts.”). In this case, the Court

finds that Hernandez-Perez should be given an opportunity to file an amended complaint.

In conclusion, the Court DISMISSES Hernandez-Perez’s complaint for failure to

state a claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

1915A(b)(1). However, Hernandez-Perez is GRANTED leave to file an amended

complaint. Any amendment must be filed on or before August 22, 2019.

Hernandez-Perez is advised that an amended complaint will supersede the original

complaint and must be complete in itself without reference to the prior pleadings. The

amended complaint must be signed, and the text of the amended complaint must allege

sufficient facts to support each claim without reference to any extraneous document. Any

exhibits must be identified by number in the text of the amended complaint and must be

attached to the complaint. All claims alleged in an amended complaint must arise from the

facts alleged in the original complaint. Each claim for relief must be stated in a separate

count and must identify each defendant sued in that count. If Hernandez-Perez fails to file

an amended complaint within the time specified, the Court will assess a strike pursuant to

28 U.S.C. § 1915(g) and enter judgment.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.