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Perez-Perez v. M.E. Ray

United States District Court, D. South Carolina

March 2, 2017

Crescendo Perez-Perez, Plaintiff,
v.
M.E. Ray, Warden of F.C.I. Estill, S.C., as an individual and in his official capacity; C.E. Floyd, Warden off. CI. Estill, S. C, as an individual and in his official capacity; E. Rainwater, A.H.S.A., as an individual and in her official capacity; Dr.; Jose Hernandez, Medical Officer, as an individual and in his official capacity; B. Parina, M.D., as an individual and in his official capacity; Dr. Ross; Rames, as an individual and in his official capacity; Carolyn V. Rickards, Regional Director, as an individual and in her official capacity; Wendy J. Roal, Administrator National Inmate Appeals, as an individual and in her; official capacity; Frederick J. Goulding, Defendants.

          REPORT AND RECOMMENDATION

          Bristow Marchant, United States Magistrate Judge.

         This is 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).

         Section 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 case here.

         Allegations and Background

         Plaintiff, 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).[1] 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, [2] 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).[3]

         Plaintiff 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.

         Dr. 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.

         On June 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, 26.

         Plaintiff 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.

         Plaintiff 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.

         A 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.

         Plaintiff 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.[4] 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.

         Discussion

         In 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 ...


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