Gonzalez v. United States

          OPINION & ORDER

          ROBERT E. WIER UNITED STATES DISTRICT JUDGE

         In this pro se matter, Plaintiff (and federal inmate) Sadiel Gonzalez originally pleaded a violation of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, based on an allegedly botched bullet removal surgery.^[1] See DE 19 (Order). Post service, the Government sought dispositive relief. See DE 26 (Motion to Dismiss or for Summary Judgment). On October 15, 2019, the Court ordered Gonzalez to respond. See DE 27.

         In the interim, Gonzalez filed a new complaint, thus initiating a completely new action. See Gonzalez v. Shelton, et al., Case No. 6:19-cv-228-JMH (E.D. Ky. 2019) (Gonzalez II). The fresh complaint did not reference this case but relies on the same incident undergirding Plaintiff's FTCA claim. Id. at ECF No. 1. Namely, the new pleading includes Gonzalez's claim that, in May 2016, Dr. Shelton (the surgeon) failed to fully remove bullet fragments from, or left surgical tools in Plaintiff's left axilla. Id. However, the new complaint alleges constitutional violations by the United States, the BOP, and Dr. Shelton pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 91 S.Ct. 1999 (1971).

         In light of the factual overlap, Judge Hood (assigned to Gonzalez's new case) directed Plaintiff to clarify whether his goal was to amend his pleading in this matter or to initiate a new and separate case. Gonzalez II, at ECF No. 4. In response, Gonzalez advised that he intended to amend his complaint in this matter. Id. at ECF No. 5. Accordingly, Judge Hood directed the Clerk to file Gonzalez's submission in this case and dismissed the separate matter. Id. at ECF No. 6. The Clerk has now (properly)^[2] docketed Gonzalez's filing as an Amended Complaint. See DE 29.

         Because Gonzalez is a prisoner seeking relief against a government entity, and given the entirely new claims and Defendants, his Amended Complaint is subject to screening pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. In other words, Gonzalez's Rule 15(a)(1) amendment does not circumvent the screening process for his new claims.

         I. APPLICABLE STANDARDS

         At this stage, the Court screens frivolous complaints. See Neitzke v. Williams, 109 S.Ct. 1827, 1831-32 (1989) (describing as “frivolous[, ]” claims lacking “an arguable basis either in law or in fact”). The Court dismisses any claims that seek monetary relief from an immune defendant. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). When testing pro se pleading sufficiency, the Court applies a tolerant construction, accepting as true all non-conclusory factual allegations and liberally construing legal claims toward encompassing a valid claim for relief. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012). The Court's liberal construction obligation has limits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Wilson v. Lexington Fayette Urban County Government, No. 07-cv-95-KSF, 2007 WL 1136743 (E.D. Ky. April 16, 2007). The Court will not “conjure allegations on a litigant's behalf.” Erwin v. Edwards, 22 F. App'x. 579, 580 (6th Cir. 2001); see also Coleman v. Shoney's, Inc., 79 Fed.Appx. 155, 157 (6th Cir. 2003) (“Pro se parties must still brief the issues advanced with some effort at developed argumentation.”). A pro se complaint, too, must forth claims in a clear and concise manner, and must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)); Hill, 630 F.3d at 470; see also Fed. R. Civ. P. 8. Additionally, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 127 S.Ct. at 1965.

         II. ANALYSIS

         Gonzalez alleges that, on May 20, 2016, Gonzalez was taken to “contract physician” Dr. Tommy Shelton for a scheduled surgery to remove bullet fragments in his left arm. DE 29 at 3. However, when Plaintiff's pain persisted, prison medical staff took an x-ray that, per Gonzalez, revealed that Dr. Shelton had either not fully removed the fragments or had left surgical tools in Gonzalez's left axilla. Id. Based on these allegations, Gonzalez claims Dr. Shelton, the United States, and the BOP violated his Fifth Amendment^[3] and Eighth Amendment rights. Id. The Court, on full review and under the applicable standards, finds Gonzalez's Amended Complaint, for several reasons, deficient and thus dismisses it on screening.

         Fifth Amendment

         Gonzalez's due process claim is fatally flawed. Per the Supreme Court, “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” See Albright v. Oliver, 114 S.Ct. 807, 813 (1994) (quotation marks omitted) (quoting Graham v. Connor, 109 S.Ct. 1865, 1871 (1989)). Thus, “[s]ubstantive due process analysis” is “inappropriate” if Plaintiff's claim is “covered by” a more specific constitutional provision. County of Sacramento v. Lewis, 118 S.Ct. 1708, 1715 (1998). “[T]he Fourth Amendment's prohibition against unreasonable seizures of the person, [and] the Eighth Amendment's ban on cruel and unusual punishments . . . are the two primary sources of constitutional protection against physically abusive governmental conduct.” Graham, 109 S.Ct. 1865, 1871. More specifically, the Eighth Amendment bars prison officials from acting with “deliberate indifference” to a prisoner's “serious medical needs.” Alexander v. Fed. Bureau of Prisons, 227 F.Supp.2d 657, 664 (E.D. Ky. 2002) (quoting Estelle v. Gamble, 97 S.Ct. 285, 292 (1976)).

         Plaintiff, here, claims constitutionally inadequate medical care. Courts routinely address such claims under the Eighth Amendment rubric. See, e.g., Estelle, 97 S.Ct. at 292 (back injury, high blood pressure, and heart problems); Alexander, 227 F.Supp.2d at 664 (knee surgery). As Plaintiff, himself, recognized, Gonzalez's claim falls squarely within the Eighth Amendment's coverage. Thus, due process analysis is inappropriate, and the Court screens out the Fifth Amendment claim. See Cooleen v. Lamanna, 248 Fed.Appx. 357, 362 (3rd Cir. 2007) (viability of claim under Eighth Amendment to challenge medical care of prisoner forecloses availability of substantive due process claim); cf. Bell v. Johnson, 308 F.3d 594, 609-10 (6th Cir. 2002) (prisoner's claim that officials retaliated against him for filing grievances was squarely covered by First Amendment, precluding due process claim under Fourteenth Amendment).

         Eighth Amendment

         As to the Eighth Amendment claim, Bivens^[4] authorized a “damages remedy to compensate persons injured by federal officers who violated” certain constitutional prohibitions. See Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017). However, Bivens claims are available only against federal officials in their individual capacities. F.D.I.C. v. Meyer, 114 S.Ct. 996, 1005 (1994) (“It must be remembered that the purpose of Bivens is to deter the officer. . . . If we were to imply a damages action directly against federal agencies . . . there would be no reason for aggrieved parties to bring damages actions against individual officers.” (emphasis in original)). Put differently, “[i]f a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens ...