Brizuela v. USP Hazelton

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

FELIX BRIZUELA,

Plaintiff,

v. Civil Action No. 1:22-CV-93

(JUDGE KLEEH)

USP HAZELTON,

Defendant.

REPORT AND RECOMMENDATION, AFTER

INITIAL SCREENING, RECOMMENDING THAT PLAINTIFF’S

COMPLAINT [ECF NO. 1] BE DISMISSED WITHOUT PREJUDICE AND THAT

MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2] BE DENIED

On September 15, 2022, pro se Plaintiff Felix Brizuela (“Plaintiff”) filed a Complaint

against Defendant by which Plaintiff alleges that Defendant did not provide proper care and

living/working conditions during Plaintiff’s imprisonment, and in so doing, violated his civil

rights. [ECF No. 1 at 1]. Having screened Plaintiff's Complaint in accordance with the provisions

of 28 U.S.C. § 1915(e)(2), the undersigned now RECOMMENDS that the Complaint [ECF No.

1] be DISMISSED WITHOUT PREJUDICE for failure to state a claim on which relief may be

granted. The undersigned further RECOMMENDS that Plaintiff’s related motion [ECF No. 2] to

proceed in forma pauperis be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND1

1 Plaintiff, pro se, recently has filed 15 civil lawsuits in this Court, including the instant matter. The other

civil matters are: (1) Brizuela v. Federation of State Medical Boards, 1:22-CV-66, (2) Brizuela v. Sarah

Wagner, 1:22-CV-67, (3) Brizuela v. Douglas Sughrue, 1:22-CV-68, (4) Brizuela v. Michael DeRiso, 1:22-

CV-69, (5) Brizuela v. WVU Medical Center, 1:22-CV-70, (6) Brizuela v. Tano O’Dell [sic], 1:22-CV-75,

(7) Brizuela v. Mark Zogby, 1:22-CV-74, (8) Brizuela v. Highlands Hospital and Michelle Cunningham,

1:22-CV-76, (9) Brizuela v. Blue Cross Blue Shield, 1:22-CV-79, (10) Brizuela v. CPEP, 1:22-CV-82, (11)

Brizuela v. KDKA TV, 1:22-CV-83, (12) Brizuela v. West Virginia Board of Pharmacy, 1:22-CV-84, (13)

Brizuela v. Drug Enforcement Administration, 1:22-CV-87, and (14) Brizuela v. WPXI Pittsburgh, 1:22-

CV-90. Although these are separate matters, they all stem from circumstances concerning Plaintiff’s career

Plaintiff, a resident of the Commonwealth of Pennsylvania, brings this action against a

federal penitentiary in this District at which Plaintiff was incarcerated. Plaintiff alleges that

Defendant did not provide proper living and working conditions such that Plaintiff’s health issues

were exacerbated. In so doing, according to Plaintiff, Defendant violated his civil rights. Plaintiff

seeks damages in the amount of $50,000,000.00. [ECF No. 1, at 1].

Broadly speaking, and in synthesizing allegations from the filings in Plaintiff’s multiple

pro se lawsuits pending in this Court, Plaintiff alleges that he was a physician practicing in this

District. He had a specialty in neurology and pain management. In this District, Plaintiff was

criminally prosecuted as reflected in Criminal Action No. 1:18-CR-1. Plaintiff was tried and

convicted in Criminal Action No. 1:18-CR-1. As a result, he lost medical licenses which he held

in West Virginia and Pennsylvania. Plaintiff appealed his conviction to the United States Court of

Appeals for the Fourth Circuit. The Fourth Circuit reversed his conviction, and on remand, Plaintiff

ultimately pled guilty to Distribution of Controlled Substances Outside the Bounds of Professional

Medical Practice, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C),

as charged in Count Two in Criminal Action No. 1:18-CR-1.2 Plaintiff was sentenced to

imprisonment for a term of time served, followed by three years of supervised release. Plaintiff

complains that, because of the felony conviction resulting from the guilty plea, he is unable to

regain his medical license or otherwise find gainful employment. In the pro se civil cases which

as a physician, including but not limited to his criminal prosecution and eventual guilty plea in this Court

in Criminal Action No. 1:18-CR-1. The presiding District Judge, Hon. Thomas S. Kleeh, has referred all of

these matters to the undersigned Magistrate Judge, for written Reports and Recommendations. Concurrently

with the instant Report and Recommendation, the undersigned enters Reports and Recommendations as to

some of the other matters. As such, given the commonality among the matters, there is some duplication in

the citations to authority and analyses in the Reports and Recommendations.

2 Plaintiff also was prosecuted in another matter, Criminal Action No. 5:20-CR-22. It appears that Criminal

Action 5:20-CR-22 resulted from the re-filing of charges after Criminal Action No. 1:18-CR-1 had been

dismissed pursuant to a tolling agreement. The two matters ultimately were consolidated. [ECF No. 487 in

Criminal Action No. 1:18-CR-1].

Plaintiff now seeks to bring here, he attempts to lodge grievances against a range of persons and

entities who were involved in his criminal matters and/or other aspects of his defunct medical

practice.

As for the substance of Plaintiff’s claims in the instant matter, Plaintiff was incarcerated at

the facility operated by Defendant in the course of his underlying criminal proceedings. He

complains of the conditions of imprisonment in the facility operated by Defendant, and the terms

of his imprisonment there. Plaintiff states that he experienced issues with his heart and knee prior

to his imprisonment. He alleges that, once imprisoned at the facility operated by Defendant, he

was unable to engage in proper exercise and movement such that his heart and orthopedic functions

were compromised. Plaintiff alleges that he was forced to engage in a work detail, which worsened

his condition. He alleges some violation(s) of civil rights, although it is unclear which authorities

establish the civil rights which he claims were violated. Plaintiff includes two brief, handwritten

citations to statutory authority: Chapter 21 of Title 24, United States Code. Plaintiff gives no

further detail about which of the scores of statutory provisions contained therein he relies upon in

making his claims.

Plaintiff includes a single-spaced, two-page narrative [ECF No. 1, at 2-3] which appears to

be correspondence addressed to Defendant itself. This narrative details his health issues prior to

imprisonment. It also details the conditions of imprisonment summarized in the preceding

paragraph here. He complains of an unknown person or persons encouraging other inmates to

believe that he was faking his health issues and laughing at him. Plaintiff also complains that his

underlying criminal prosecution was a “smear campaign” by which he was stripped of his

professional licensure, such that he is relegated to seek service employment. Yet, Plaintiff

complains that he cannot engage in such alternative work because of his health problems. Plaintiff

explains that he was incarcerated at the facility at issue from December 2019 to June 2020.

Finally, in conjunction with the Complaint, Plaintiff filed a pro se Motion for Leave to

Proceed in forma pauperis including an Application to Proceed Without Prepayment of Fees and

Affidavit. [ECF No. 2].

On September 15, 2022, this Court, by the Honorable Thomas S. Kleeh, Chief United

States District Judge, entered an Order of Referral [ECF No. 3], referring this matter to the

undersigned United States Magistrate Judge in order “to conduct a scheduling conference and issue

a scheduling order, for written orders or reports and recommendations, as the case may be,

regarding any motions filed, and to dispose of any other matters that may arise.”

II. LEGAL STANDARDS

Pursuant to 28 U.S.C. § 1915(e)(2)(B), where a plaintiff is seeking to proceed without the

prepayment of fees and costs, the court is obliged to screen the case to determine if the complaint

is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Courts often perform this screening before ruling upon the corresponding Motion for Leave

to Proceed in forma pauperis and Application to Proceed Without Prepayment of Fees and Costs,

and before service of process is effectuated. See Portee v. United States Dep't of Agric., No. 2:15-

CV-13928, 2016 WL 4962727, at *2 (S.D.W. Va. July 14, 2016) (Tinsley, J.), report and

recommendation adopted, No. 2:15-CV-13928, 2016 WL 4942023 (S.D.W. Va. Sept. 15, 2016)

(Johnston, J.). The purpose of this statute is “to discourage the filing of, and waste of judicial and

private resources upon, baseless lawsuits that paying litigants generally do not initiate because of

the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under

Federal Rule of Civil Procedure 11.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). “To this end,

the statute accords judges not only the authority to dismiss a claim based on an indisputably

meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual

allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. See also

Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 953 (4th Cir. 1995) (initial

screenings required because § 1915 removed the “economic incentive to refrain from filing

frivolous, malicious, or repetitive lawsuits.”) (internal citation omitted); Whitehead v. Paramount

Pictures Corp., No. 1:08CV792, 2009 WL 1565639, at *4 (E.D. Va. May 28, 2009), aff'd in part

sub nom. Whitehead v. Paramount Pictures, Inc., 366 F. App'x 457 (4th Cir. 2010) (upholding

dismissal). Thus, while 28 U.S.C. § 1915(e)(2)(B) speaks specifically to review as to pro se

litigants who are prisoners, the Court may conduct such a screening regardless of whether a pro se

litigant is a prisoner.

Relatedly, the undersigned of course is mindful of Plaintiff’s pro se status in this context.

Because Plaintiff is proceeding pro se, the Court must liberally construe the pleadings. Estelle v.

Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A pro

se complaint is subject to dismissal, however, if the Court cannot reasonably read the pleadings to

state a valid claim on which a plaintiff could prevail. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th

Cir. 1999). A court may not construct the plaintiff’s legal arguments for him, nor should it “conjure

up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th

Cir. 1985).

III. ANALYSIS

The Complaint [ECF No. 1] and accompanying narrative provide no factual allegations as

a basis for the Plaintiff’s claims which would allow this Court to grant relief. Nor does Plaintiff

set forth in the Complaint any necessary legal grounds which would entitle him to any sort of relief

in this matter.

The undersigned is mindful that Rule 8(a) of the Federal Rules of Civil Procedure does not

generally require that claims be pled with great detail. Nonetheless, claims must be pled with

sufficient detail such that a defendant has fair notice of the basis of a plaintiff’s claim. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007). More specifically:

It is established that a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face. We have recognized that

facial plausibility is established once . . . the complaint’s factual allegations produce

an inference . . . strong enough to nudge the plaintiff’s claims across the line from

conceivable to plausible. In assessing the sufficiency of a complaint, we assume as

true all its well-pleaded facts and draw all reasonable inferences in favor of the

plaintiff. Thus, to satisfy the plausibility standard, a plaintiff is not required to plead

factual allegations in great detail, but the allegations must contain sufficient factual

heft to allow a court, drawing on judicial experience and common sense, to infer

more than the mere possibility of that which is alleged.

Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal citations and

quotations omitted). Necessarily implied in this analysis, of course, is that the legal claims asserted

must have a basis in law.

The principal issue here is that Plaintiff simply does not explain how Defendant wronged

him in any way such that he can maintain cognizable causes of action. By the above-noted,

accompanying narrative (which appears to be correspondence directed at Defendant, and not

necessarily a component of a well-pleaded complaint), Plaintiff accuses Defendant of providing

inadequate living conditions and medical care, and requiring Plaintiff to engage in physically

harmful activity. Plaintiff explains how the conditions of imprisonment did not allow for the type

of exercise he desired and involved work activity which he did not wish to undertake. Yet, in

review of the narrative, one is left wondering how Plaintiff alleges that Defendant acted contrary

to any provision at law – constitutional, statutory, regulatory, common law, etc. – or any policy or

procedure otherwise.

Plaintiff does not articulate facts in support of cognizable claims or cite to appropriate

authority in support of such claims. More to the point, Plaintiff does not at all specify what cause

of action he wishes to pursue, other than vaguely invoking a civil rights claim. As to the possible

civil rights claim, Plaintiff makes a passing citation to statutory authority, noted above – that being

Chapter 21 of Title 24, United States Code. However, he does nothing to specify how this is an

avenue for relief in this matter. This chapter of the United States Code contains scores of provisions

concerning a vast array of civil rights-related sections and subsections. Plaintiff fails to explain

which of the provision(s) therein he relies upon for authority in support of his civil rights claim,

let alone how he should be permitted to maintain such a claim by dint of such provision(s). He

fails to explain how Defendant’s action or inaction is in direct contravention of any provision

therein, or how such action or inaction would allow him to maintain a private cause of action.

At bottom, the undersigned finds that the Complaint and accompanying materials, by

which Plaintiff attempts to propound legal claims, simply do not contain sufficient factual

allegations giving rise to cognizable claims.

To summarize, the undersigned cannot discern a clear nexus between (a) the sets of factual

allegations made and (b) the intended cause(s) of action which Plaintiff seeks to bring. Nor can

the undersigned discern the assertion of permissible claims otherwise. Thus, even when construing

the pro se Complaint most liberally, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), the

undersigned respectfully FINDS that the Complaint (and citations to authority in related

attachments), as currently written, are without foundation in fact and do not set forth cognizable

claims at law. As such, the Complaint does not sufficiently state a claim for relief. Twombly, 550

U.S. 544. The Complaint is so insufficient that it does not provide Defendant with fair notice of

the nature of the claims Plaintiff would lodge against it or the relief Plaintiff would have this Court

order.

Thus, Plaintiff’s Complaint here is not cognizable and fails as a matter of law, and the

undersigned RECOMMENDS that it be dismissed without prejudice.

Relatedly, because of the lack of any factual allegations of acts, omissions, or wrongdoing

by the Defendants giving rise to cognizable legal claims, the undersigned specifically FINDS that

the Complaint fails to state a claim upon which relief may be granted. Thus, after performing an

initial screening pursuant to 28 U.S.C. § 1915(e)(2), the undersigned concludes and

RECOMMENDS that Plaintiff’s motion to proceed in forma pauperis [ECF No. 2] be denied.

IV. RECOMMENDATION

For the abovementioned reasons, the undersigned FINDS that the Complaint [ECF No.

1] fails to state a claim upon which relief may be granted. Accordingly, the undersigned

respectfully RECOMMENDS Plaintiff's Complaint, filed in forma pauperis [ECF No. 1],

should be DISMISSED in its entirety WITHOUT PREJUDICE after review and screening

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Further, the undersigned RECOMMNEDS that

Plaintiff’s motion to proceed in forma pauperis [ECF No. 2] be DENIED.

Any party shall have fourteen (14) days (filing of objections) and then three days

(mailing/service) from the date of the filing of this Report and Recommendation to file with the

Clerk of the Court specific written objections identifying the portions of the Report and

Recommendation to which objection is made, and the basis for such objection. A copy of

such objections should also be submitted to the Honorable Thomas S. Kleeh, United States District

Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages,

including exhibits, unless accompanied by a motion for leave to exceed the page limitations,

consistent with LR PL P 12.

Failure to timely file written objections to the Report and Recommendation as set

forth above shall constitute a waiver of de novo review by the District Court and a waiver of

appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985);

United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

The Clerk of the Court is DIRECTED to send a copy of this Report and

Recommendation to counsel of record as provided in the Administrative Procedures for Electronic

Case Filing in the United States District Court for the Northern District of West Virginia, and to

the pro se Plaintiff by certified mail, return receipt requested.

DATED: September 20, 2022.

MICHAEL JO

UNITED STATES MAGISTRATE JUDGE