United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Plaintiff Tony Taylor is currently incarcerated at the Federal Medical Center in Lexington, Kentucky ("FMC-Lexington"). Proceeding without an attorney, Taylor has filed a Complaint alleging claims under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [Record No. 1]
The Court conducts a preliminary review of Taylor's Complaint. 28 U.S.C. §§ 1915(e)(2), 1915A. Any claim that is frivolous or 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 must be dismissed. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Taylor's Complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). The Court also accepts his factual allegations as true and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). For the reasons outlined below, the Court will deny the relief sought.
On May 2, 2012, while incarcerated at the Federal Correctional Institution in Beckley, West Virginia, ophthalmologist Dr. Muge Ruken Kesen of West Virginia University Healthcare performed surgery on Taylor to repair a detached retina in his right eye. [Record No. 1-2] A follow-up examination on July 12, 2012, indicated that Taylor still suffered from recurrent retinal detachment with proliferative vitreoretinopathy. That day, after certified ophthalmic medical technologist Elizabeth Genco discussed the risks, benefits, and alternatives of vitrectomy surgery, Taylor indicated that he wanted to proceed with the surgical procedure. [Record No. 1-3]
On August 7, 2012, the Bureau of Prisons' ("BOP") Utilization Review Committee approved the request for surgery. [Record No. 1-6] Taylor was transferred to FMC-Lexington on August 21, 2012, so that the surgery could be performed at the University of Kentucky Medical Center ("UKMC"). [Record Nos. 1-8, 1-9] However, on October 2, 2012, an ophthalmologist at UKMC examined Taylor and concluded that further surgery would be futile. Instead, palliative care with two prescriptions for eye drops to be administered was ordered, with a follow-up examination scheduled for six months later. [Record No. 1-10]
On or before January 23, 2013, Taylor filed a Standard Form 95 seeking administrative settlement of his claim that the BOP had unreasonably delayed carrying-out the recommended surgery under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. ("FTCA"). [Record No. 1-1, p. 2] The BOP rejected his request for settlement on March 14, 2013, noting that UKMC's ophthalmologist had determined that performing the planned vitrectomy surgery would not be beneficial. Taylor was further advised that if he wished to file suit regarding the matter, he was required to do so within six months. [ Id., pp. 3-4]. Taylor did not file suit arising out of the administrative denial.
On March 19, 2013, Taylor began informal and formal grievances regarding the delay in receiving the surgery. His grievances were denied by the warden and the Mid-Atlantic Regional Office because the ophthalmologist at UKMC determined that further surgery would be futile. Taylor appealed that decision. As of November 8, 2013, the BOP's Central Office had failed to issue a timely response to Taylor's appeal, and acknowledged his right to consider that failure a denial. [Record No. 1-12]
On January 8, 2014, Taylor submitted a second Form 95 administrative claim form. He asserted the same medical claim under the FTCA that he had previously asserted on January 23, 2013, which the BOP had denied on March 14, 2013. The BOP rejected his second claim as a duplicate of the first, on January 10, 2014. [Record No. 1-1, pp. 1, 5-8] Thereafter, on July 10, 2014, Taylor filed this action alleging that "the defendants" violated his rights under the Eighth Amendment because they displayed deliberate indifference to his serious medical needs "when they failed to get the plaintiff to a[n] eye specialist for surgery instead of the delay...." [Record No. 1, p. 3] Taylor identifies six individuals as defendants: L. Thompson, M.D.; Angela Carpenter, R.N.; Laura Carr, M.D.; Richard Ramirez, M.D.; R. Rozenfort, M.D.; and Clinical Director Dominic Mclain, M.D. However, Taylor makes no specific allegations against any of the defendants individually, stating only that the "delay of treatment from July, 2012 to Oct[ober], 2012 was a violation of plaintiff's [E]ighth [A]mendment [rights] knowing this was an emergency surgery." [ Id., p. 4]
Taylor's Eighth Amendment claim will be dismissed for failure to state a claim and as barred by the statute of limitations. The Court also finds that if Taylor intended to assert a claim under the FTCA, it will be dismissed for the same reasons.
Taylor claims that "the defendants" were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. [Record No. 1, p. 3] However, his factual allegations are devoid of any reference to the six individuals identified as defendants. To recover against a particular defendant in a Bivens action, the plaintiff "must allege that the defendant [was] personally involved in the alleged deprivation of federal rights." Nwaebo v. Hawk-Sawyer, 83 F.Appx. 85, 86 (6th Cir. 2003) (citing Rizzo v. Goode, 423 U.S. 362, 373-77 (1976)). The requirement of personal involvement does not mean that the defendant actually committed the conduct complained of, but it does require a supervisory official to have "at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct." Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir. 1982). The mere fact of supervisory capacity is insufficient because respondeat superior is not an available theory of liability. Polk Cnty. v. Dodson, 454 U.S. 312, 325-26 (1981). Taylor makes no allegation that any of the defendants were personally involved in deciding whether to perform surgery on his right eye. Also, no such role or decision-making authority is suggested by any of the documents he has submitted as exhibits to his Complaint. Thus, Taylor has failed to state an Eighth Amendment claim. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
Additionally, any properly-asserted claim under the Eighth Amendment would be barred by the applicable statute of limitations. Neither 42 U.S.C. § 1983 nor the judicially-crafted remedy under Bivens include a statutory limitations. As a result, federal courts apply the most analogous statute of limitations from the state where the events giving rise to the cause of action occurred. Wilson v. Garcia, 471 U.S. 261, 268-71 (1985). The events at issue occurred in Kentucky. Therefore, Kentucky's one-year statute of limitations for asserting personal injuries applies. Ky. Rev. Stat. § 413.140(1)(a); Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003).
In a Bivens action, federal law supplies its own rule of claim accrual. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996). A claim accrues and the statute of limitations begins to run when a plaintiff knows, or has reason to know through the exercise of reasonable diligence, of the injury providing the basis for the claim. Kelly v. Burks, 415 F.3d 558, 561 (6th Cir. 2005). On October 2, 2012, the ophthalmic specialist at UKMC determined that surgery would be futile and Taylor was advised of that decision. Thus, Taylor's ...