United States District Court, E.D. Kentucky, Southern Division, London
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 ...