# Brizuela v. USP Hazelton

> District Court, N.D. West Virginia · September 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10741862

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** September 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10741862. Public record. Not legal advice.