United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
a civil action filed by the Plaintiff, Crescendo Perez-Perez,
pro se, and is before the Court for pre-service review. See
28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation
Reform Act, 105 F.3d 1131, 1134 (6th Cir.1997) [pleadings by
non-prisoners should also be screened]. Under established
local procedure in this judicial district, a careful review
has been made of the pro se complaint herein pursuant to the
procedural provisions of § 1915 and in light of the
following precedents: Denton v. Hernandez, 504 U.S.
25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989);
Haines v. Kemer, 404 U.S. 519 (T972): Nasim v.
Warden. Maryland House of Corr., 64 F.3d 951 (4th
Cir.1995) (en banc); and Todd v. Baskerville. 712
F.2d 70 (4th Cir.1983).
1915 permits an indigent litigant to commence an action in
federal court without paying the administrative costs of
proceeding with the lawsuit. However, to protect against
possible abuses of this privilege, the statute allows a
district court to dismiss the case upon a finding that the
action "is frivolous or malicious, " "fails to
state a claim on which relief may be granted, " or
"seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B). A
finding of frivolousness can be made where the complaint
"lacks an arguable basis either in law or in fact."
Denton v. Hernandez, 504 U.S. at 31. Hence, under
§ 1915(e)(2)(B), a claim based on a meritless legal
theory may be dismissed sua sponte. Neitzke v.
Williams, 490 U.S. 319. Further, while this Court is
also required to liberally construe pro se documents, holding
them to a less stringent standard than those drafted by
attorneys, Erickson v. Pardus, 551 U.S. 89, 94
(2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)), the requirement of liberal construction does not
mean that the Court can ignore a clear failure in the
pleading to allege facts which set forth a claim currently
cognizable in a federal court. Weller v. Dep't of
Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the
a former federal prisoner, alleges claims concerning his
medical care beginning in 1996 while he was incarcerated at
the Federal Correctional Institution in Estill, South
Carolina (FCI-Estill). According to the Complaint, at the
time of the alleged incidents Defendant Dr. Parina was a
medical officer at FCI-Estill, Dr. Frederick Goulding was a
physician who does not appear to have been employed at
FCI-Estill,  Dr, Jose Hernandez was a medical
officer at FCI-Estill, Dr. Ross Rames was a physician who
worked at the Hampton Medical Regional Medical Center, E,
Rainwater was an Assistant Health Services Administrator at
FCI-Estill, M. E. Ray was the Warden of FCI-Estill, C.E.
Floyd was the Warden of FCI-Estill, Carolyn V. Rickards was
the Regional Director for the BOP, and Wendy J. Roal was the
Administrator of National Inmate Appeals for the BOP. ECF No.
1-7 at 1-2. Plaintiffs claims are being brought pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 397 (1971).
alleges that on January 28, 1996, he injured himself after he
fell down and hit his penis while running on the FCI-Estill
recreation yard. ECF No. 1-7 at 3. On January 30, 1996, he
complained to A. Molina, a physician's assistant at
FCI-Estill, about pain, lack of erection, and numbness on the
left side of his penis. Id.; ECF No. 1-1 at 3.
Plaintiff alleges that PA Molina blamed Plaintiffs condition
on the medication Plaintiff was taking for hypertension
(Plaintiff appears to disagree with Molina's conclusion),
no action was taken to alleviate his condition, and he was
given no "pills" for pain. ECF No. 1-7 at 3; ECF
No. 1-1 at 3. On February 9, 1996, Plaintiff was examined by
Dr. Parina, who allegedly also blamed Plaintiffs medication
and referred Plaintiff for a psychological evaluation for a
possible cause of impotency. ECF No. 1-7 at 3; ECF No. 1-1 at
4. On April 4, 1996, Dr. Parina also referred Plaintiff to
urology for an evaluation and diagnosis of impotency. ECF No.
1-7 at 3; ECF No. 1-2 at 5.
Jonathan Hauser, chief psychologist at FCI-Estill, performed
a medical consultation in May 1996 and opined that Plaintiffs
onset and nature of symptoms was not consistent with
psychological impotence and that a medical cause appeared
more likely. ECF No. 1 -1 at 6. On referral from Dr. Parina,
Dr. Goulding then performed a urological examination on June
3, 1996, at which time his impression was that Plaintiff had
subjective loss of sensation and determined that no treatment
was needed. ECF No. 1-7 at 3; ECF No. 1-2 at 5.
5, 1996, Dr. Hernandez reviewed Plaintiffs June 3, 1996
urologist (Dr. Goulding's) evaluation and, allegedly,
blamed Plaintiffs medication for his problems. ECF No. 1-7 at
3; ECF No. 1-2 at 6. A urethrogram was then performed by Dr.
Stephen J. Gordin at Beaufort Memorial Hospital in December
1996. There was evidence of a stricture involving the
anterior urethra distal to the membranous urethra, while the
posterior urethra was not visualized which may have been
secondary to either spasm or possibly stricture. It was noted
that further evaluation with an antegrade voiding
cystourethrogram might help in further evaluation if
clinically indicated. ECF No. 1-1 at 22. In March 1997,
another urethrogram indicated that true stricture of the
posterior urethra was suspected based on the two retrograde
urethrograms with the same appearance. Dr. Gordin noted that
urological consultation and possible urethroscopy were needed
for further evaluation. ECF No. 1-7 at 3; ECF No. 1-1 at 23.
On April 25, 1997, Dr. Hernandez referred Plaintiff for a
urology consultation with a possible urethroscopy. ECF No.
1-7 at 4; ECF No. 1-2 at 20. In June 1997, a cystoscopy (and
not a urethroscopy) was performed by Dr. Ross Rames at
Hampton Regional Medical Center. The cystoscopy was normal
with no stricture seen. ECF No. l-7 at 4; ECF No. 1-1 at 25,
alleges that a urethroscopy, not a cystoscopy, should have
been performed. ECF No. 1-7 at 4. Plaintiff also alleges that
he never received any medical treatment, and that Defendants
were deliberately indifferent to his medical problem. ECF No.
1-7 at 4. Plaintiff lists his injuries as being an urethral
obstruction and left side of the penis obstruction. He
asserts that there should be an investigation with an
"instrument" to detect the problem, and that he did
not receive medical treatment and did not receive any pain
medication. ECF No. 1-6 at 7.
also complains that Defendant Rainwater denied his Request to
Staff Member dated September 3, 1997; Warden Ray denied his
Request for Administrative Remedy dated November 19, 1996;
Warden Floyd denied his Requests for Administrative Remedies
dated September 11, 1997 and March 8, 1999; Defendant
Rickards denied his Regional Administrative Remedy Appeal
dated October 6, 1997; and Defendant Roal denied his Central
Office Administrative Appeal on July 30, 1999. ECF No, 1-7 at
2. He contends that Defendants' actions (or inactions)
violated his Eighth and Fourteenth Amendment rights; ECF Nos.
1 -1 at 1; 1 -6 at 5; and that the Defendants were
deliberately indifferent to his serious medical needs. ECF
No. 1 -7 at 1, 3-4.
penile ultrasound was performed in California in May 2007
(while unclear, this may have been after Plaintiff was
released from incarceration). The conclusion was
"[b]ilateral corpus cavernosal arteries identified with
findings suggestive of increased density in the arterial
walls, raising the question of calcification." ECF No.
1-1 at 13-15. In November 2015, Plaintiff underwent a
fluoroscopic retrograde urethrocystography. It was noted that
there was narrowing that was symmetrical in the posterior
pendulous urethra. The cause of the narrowing was
indeterminate, and there was smooth tapering that was
possibly due to erection of the corpora. Stenosis could not
be excluded since insufficient contrast penetrated into the
prostatic urethra and bladder to allow visualization. ECF No.
1-1 at 27.
alleges that he has exhausted his available remedies as to
his Bivens claim by filing Requests to Staff
Members, Requests for Administrative Remedies, Regional
Remedy Appeals, and a Central Office Administrative Remedy
Appeal. ECF No. 1-6 at 9. He requests relief
of "[p]ain and suffering for their wrongdoing [which
caused] stress, anguish, insomnia, shock of conscience. A
jury assessment of the extent of [Plaintiff s] injuries or an
agreement." ECF No. 1-6 at 7.
order to state an Eighth Amendment claim for denial of
medical care, a plaintiff must demonstrate that the actions
of the defendants, or their failure to act, amounted to
deliberate indifference to a serious medical need. See
Estelle v. Gamble,429 U.S. 97, 106 (1976).
"Deliberate indifference" entails more than
ordinary negligence or lack of due care for the
prisoner's interests or safety; it instead requires that
a prison official actually "knows of and disregards an
excessive risk to inmate health or safety." Farmer
v. Brennan,511 U.S. 825, 837 (1994); De' Lonta
v, Angelone, 330 F.3d 630, 634 (4th Cir, 2003)[stating
that deliberate indifference requires "that a prison
official actually know of and disregard an objectively
serious condition, medical need, or risk of harm"].
Here, although Plaintiff alleges that he received "no
treatment, " he admits (and provides medical records to
show) that he saw numerous medical providers at FCI-Estill,
and also underwent medical procedures and consultations with
specialists outside of FCI-Estill, for his alleged injury
during the time he was incarcerated at FCI-Estill. He simply
disagrees with the treatment and diagnoses he received. See
ECF No. 1-7 at 3-4. For example, he claims that a
urethroscopy should have been performed (which he appears to
believe would have revealed the cause of his injuries), but
instead received a ...