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Sifford v. Drew

United States District Court, D. South Carolina

February 7, 2018

Tyrone Sifford, formerly #12712-058, Plaintiff,
v.
Warden Darlene Drew, Warden FCI Bennettsville; Luis Berrios, M.D.; Julia E. Berrios, M.D.; Nestor Osorto, M.L.P., Defendants.

          REPORT AND RECOMMENDATION

          JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         Tyrone Sifford (“Plaintiff”), proceeding pro se and in forma pauperis, commenced this civil action by filing a Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). Specifically, Plaintiff asserts a claim against the above-named Defendants for deliberate indifference to a serious medical need. Pursuant to 28 U.S.C. §636(b)(1) and Local Civil Rule 73.02(B)(2) D.S.C., the undersigned magistrate judge is authorized to review such complaints for relief and submit findings and recommendations to a district judge. See 28 U.S.C. § 1915(e) and § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). After careful review of this case, and for the reasons below, the undersigned finds Plaintiff's claim is frivolous because this case is duplicative of a previous case filed by Plaintiff. It is therefore recommended that the district judge summarily dismiss the Complaint without prejudice and without issuance and service of process.

         BACKGROUND

         Plaintiff initiated this action by filing a Complaint in the United States District Court for the Western District of North Carolina. [Doc. 1.] That Court concluded jurisdiction and venue over Plaintiff's claims were proper in the District of South Carolina and therefore transferred the action to this Court. [Doc. 3.] By orders dated December 6, 2017, and January 9, 2018, the undersigned directed Plaintiff to bring the case into proper form for evaluation and possible service of process. [Docs. 10, 15.] Plaintiff has complied with those orders, and this case is now substantially in proper form. Nevertheless, as explained below, this case is subject to summary dismissal.

         When Plaintiff filed his Complaint, he was serving the remainder of his federal sentence while on home detention, and he had previously been living in a Federal Bureau of Prison (“BOP”) “halfway house” in Charlotte, North Carolina. [Docs. 1 ¶ 1 and 17 ¶¶ A, B.] On November 21, 2017, Plaintiff was released from the custody of the BOP and is now living in Charlotte, North Carolina. [Doc. 17 ¶ C.] However, the incident giving rise to Plaintiff's claims occurred while Plaintiff was incarcerated at FCI Bennettsville in South Carolina. [Doc. 1 ¶ 2.]

         Plaintiff makes the following allegations in his pro se Complaint. [Doc. 1.] In February 2002, while playing basketball at FCI Bennettsville, Plaintiff injured his right knee. [Id. ¶ 7.] He immediately stopped playing basketball and started treating his knee with ice packs to minimize the swelling. [Id. ¶ 7.] The morning following his injury, Plaintiff's knee was severely swollen and excruciatingly painful. [Id. ¶ 8.] Plaintiff went to the infirmary seeking treatment. [Id. ¶ 9.] The medical staff treated his injury with ice packs and anti-inflammatory medications; however, his injury did not respond favorably to this treatment. [Id. ¶ 9.] Approximately three months later, the medical staff ordered an MRI of Plaintiff's knee. [Id. ¶ 9.] The MRI revealed Plaintiff had sustained a “chronic and complete tear of the ACL in his right knee as result of the injury Plaintiff sustained playing basketball.” [Id. ¶ 10.] Plaintiff's treating physician, Dr. Rubin, (who is not named as a Defendant in this case) informed Plaintiff that he needed arthroscopic surgery to repair the substantial damage to his knee. [Id. ¶ 10.] After months of severe pain, Plaintiff told each of the Defendants that his “knee was not stable, ” that he had a complete tear of his ACL, and that he needed surgery. [Id. ¶ 11.] Despite Plaintiff's “continuous requests” to Defendants to schedule surgery, the Defendants “collectively chose to treat Plaintiff conservatively, ” only providing him with a hinged knee brace. [Id. ¶ 12.] Plaintiff's pain became unbearable and his knee continued to deteriorate. [Id. ¶¶ 13, 15.] For the next several years, Plaintiff continued to request surgery for his knee, but Defendants were deliberately indifferent to his pain and suffering. [Id. ¶ 15.] Now, Plaintiff has “bone grinding bone” within his knee, causing his knee to frequently “buckle.” [Id. ¶ 16.]

         Plaintiff alleges he has exhausted all of his administrative remedies, although he does not allege any facts to support that assertion. [Id. ¶ 17.] Plaintiff contends he is entitled to have arthroscopic surgery performed on his knee. [Id. ¶ 18.] Further, Plaintiff contends that, because Defendants have refused to provide him with the needed arthroscopic surgery, he has “suffered unnecessarily” and has been denied needed medical treatment. [Id. ¶ 19.] As such, Plaintiff asserts a claim for deliberate indifference to a serious medical need pursuant to Bivens. For his relief, Plaintiff seeks an order from the Court requiring the BOP to provide appropriate medical care, including arthroscopic surgery on Plaintiff's knee, as well as actual and compensatory damages in the amount of $250, 000, along with an award for punitive damages.

         APPLICABLE LAW

         Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § § 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

         Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Here, even under this less stringent standard, the Complaint filed in this case is subject to summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B).

         In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; however, federal officials cannot be sued under 42 U.S.C. § 1983 because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988). The Complaint is filed pursuant to Bivens, which, like actions filed under 42 U.S.C. § 1983, “‘is not itself a source of substantive rights, ' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A legal action under Bivens allows “a party who has been deprived of a federal right under the color of [federal] law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under Bivens, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of federal law. West v. Atkins, 487 U.S. 42, 48 (1988).

         “[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain” prohibited by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A serious medical need “is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). “A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate's pain.” Abraham v. McDonald, 493 F. App'x 465, 466 (4th Cir. 2012) (citations omitted).

         DISCUSSION

While Plaintiff asserts a violation of his constitutional rights by alleged federal actors, this case is subject to summary dismissal because it is a duplicate filing. See Goins v. Pearson, No. 4:13-cv-412-CMC-TER, 2013 WL 1567451, at *2 (D.S.C. Mar. 28, 2013), report and recommendation adopted, 2013 WL 1567447 (D.S.C. Apr. 15, 2013). Plaintiff previously filed a case in this Court, which involves the same facts and alleges the same claims against the same four Defendants.[*]See Sifford v. Drew, No. 8:11-cv-3019-JDA-RMG. Indeed, the instant Complaint provides, almost verbatim, the same factual allegations presented in Plaintiff's Amended Complaint in his prior case, presenting the same cause of action and seeking identical relief. [Case No. 8:11-cv-3019-JDA-RMG, Doc. 36.] However, Plaintiff may not re-litigate previously-adjudicated claims against Defendants. See Trawick v. M.U.S.C., No. 2:16-CV-730-DCN-MGB, 2016 WL 8650132, at *7 (D.S.C. June 28, 2016) (discussing application of res judicata to duplicate actions to support summary dismissal of claims). The Fourth Circuit Court of Appeals has repeatedly held that “district courts are not required to entertain duplicative or redundant lawsuits.” Cottle v. Bell, No. 00-6367, 2000 WL 1144623, *1 (4th Cir. Aug.14, 2000); se ...


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