United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
W. MARCHANT JUDGE
a civil action filed by the Plaintiff, Crescencio
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.
Kerner. 404 U.S. 519 f 1972): 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
1915 permits an indigent litigant to commence an action in
federal court 1 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 (1989). 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, asserts claims concerning his
medical care beginning in 1996, while he was incarcerated at
the Federal Correctional Institution in Estill, South
Carolina (FCI-Estill), part of the Federal Bureau of Prisons
(BOP). Plaintiff previously filed a case against many of the
same Defendants,  alleging essentially the same claims,
which was dismissed without prejudice. See Perez-Perez v.
Rav. No. 16-3574, 2017 WL 1135220 (D.S.C. Mar. 27,
2017). In a letter submitted with his Complaint, Plaintiff
states that "[t]his is the same case, but with more
evidence than the first case[.]" Complaint. ECF No. 1-2
claims are brought pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics. 403 U.S.
388.397 (1971). Although Plaintiff does not mention
Rivgns. he appears to allege that his constitutional rights
were violated pursuant to 42 U.S.C. § 1983. See ECF No.
1 at 5. However, he has not named any state or local
officials as Defendants, and, with the exception of Defendant
Rames who appears to have been employed at the Hampton
Medical Regional Medical Center (see ECF No. 1-1 at 22) and
Defendant Goulding, who appears to have been a physician in
private practice (see ECF No. 1-1 at 12), the Defendants
appear to have been employed by the Bureau of Prisons (either
at FCI-Estill or elsewhere) at the time of the alleged
incidents. Therefore, his constitutional claims are
considered under Bivens.
the section of his Complaint titled "Clearly Established
Law," Plaintiff alleges that Defendants violated his
Eighth, Fifth, and Fourteenth Amendment rights. ECF No. 1 at
5. His Eighth Amendment claims are discussed further below.
However, although Plaintiff also alleges that his due process
rights under the Fifth Amendment and his equal protection
rights under the Fourteenth Amendment were violated, he fails
to state a claim because he has alleged no facts to support
these conclusory allegations and has not alleged which
Defendants) allegedly violated these rights.
alleges that on January 28, 1996, he injured his penis after
he fell down on the FCI-Estill recreation yard. ECF No. 1 at
2, 5. He asserts that a serious medical need was diagnosed by
Dr. Stephen J. Gordin on December 16, 1996 and March 21,
1997, and that Dr. Gordin recommended urethroscopy to
visualize the posterior urethra and remainder of the urethra.
ECF No. 1 at 2, 5; ECF No. 1-1 at 18-19. On June 30, 1997, a
cystoscopy was performed at the Hampton Regional Medical
Center to visualize Plaintiffs urinary tract and bladder. ECF
No. 1 at 2, 5; ECF No. 1 -1 at 21 -22. After Plaintiff was
released from incarceration, a penile ultrasound was
performed in California on May 14, 2007. The conclusion of
the study was "[b]ilateral corpus cavernosa! arteries
identified with findings suggestive of increased density in
the arterial walls, raising the question of
calcification." ECF No. 1 at 5-6; ECF No. 1-1 at 30-31.
On February 5, 2018, a fluoroscopic voiding
cystourethrography and a fluoroscopic retrograde
urethrocystography were performed. ECF No. 1 at 7; ECF No.
1-1 at 34-36.
alleges that he was subjected to cruel and usual punishment
in violation of the Eighth Amendment because, while in
prison, he "never received medical treatment neither
[sic] painkiller for his pain." ECF No. 1 at 5. However,
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'Lontav.Angelone. 330 F.3d 630, 634 (4th Cir.
2OO3)[stating that deliberate indifference requires
"that a prison official actually know of and disregard
an objectively serious condition, medical need, or risk of
harm"]. Review of the Complaint and attachments
submitted by Plaintiff reveals that Plaintiff has failed to
state a claim for medical deliberate indifference. Although
Plaintiff alleges that he received "no treatment,"
he admits (and provides medical records) that establish just
the opposite; that he saw numerous medical providers at
FCI-Estill and underwent medical procedures and consultations
with specialists outside of FCI-Estill for his alleged injury
during the time he was incarcerated at FCI-Estill. See ECF
No. 1 at 2, 5; ECF No. 1-1 at 9-22.
to the extent Plaintiff disagrees with the treatment he
received, he has again failed to state a claim, as a prison
inmate "does not enjoy a constitutional right to the
treatment of his or her choice." De'Lonta v.
Johnson. 708 F.3d at 526. "Although the
Constitution does require that prisoners be provided with a
certain minimum level of medical treatment, it does not
guarantee to a prisoner the treatment of his choice."
Jackson v. Fair. 846 F.2d 811, 817 (1st Cir. 1988).
While the provision of medical care by prison officials is
not discretionary, the type and amount of medical care
provided is discretionary; see Brown v. Thompson.
868 F.Supp. 326 (S.D.Ga.1994); and a disagreement as to the
proper treatment to be received does not in and of itself
state a constitutional violation. See Smart v.
Villar. 547 F.2d 112 (10th Cir.1976); Lamb v.
Maschner. 633 F.Supp. 351, 353 (D.Kan. 1986). Moreover,
mistakes of medical judgment are not subject to judicial
review in a § 1983 or Bivens action; Russell v.
Sheffer. 528 F.2d 318, 319 (4th Cir. 1975); as courts
are reluctant to "second-guess the propriety or adequacy
of a particular course of treatment." Bowring v.
Godwin, 551 F.2d 44, 48 (4th Cir. 1977). Insofar as
Plaintiff is instead attempting to assert claims for
malpractice or negligence, such claims are not actionable
under the Bivens doctrine. See Daniels v. Williams.
474 U.S. 327, 328~336 & n. 3 (1986); Estelle. 429 U.S. at
106 ["Medical malpractice does not become a
constitutional violation merely because the victim is a
prisoner."]; Davidson v. Cannon. 474 U.S. 344,
345-348 (1986); Rueflv v. Landon. 825 F.2d 792,
793-94 (4th Cir. 1987).
also noted that Plaintiff names various non-medical BOP
employees (including Warden Floyd, Regional Director
Rickards, and Regional Director Doe) as Defendants, but he
has not alleged any specific allegations against these
persons. Plaintiff has attached copies of his administrative
remedies to his Complaint, but to the extent that
Plaintiff alleges that Defendants Floyd, Rickards, Roald,
and/or Doe violated his constitutional rights as to the
handling of his grievances/administrative remedies, his
claims fail because Plaintiff does not have a constitutional
right to the grievance process and the denial of his
grievances does not in and of itself state a claim upon which
relief may be granted. See Adams v. Rice, 40 F.3d
72, 74 (4th Cir. 1994); DePaola v.Rav. No. 7:l2cvOOl39, 2013
WL 4451236, at *8 (W.D. Va. July 22, 2013). Further, any
allegations that BOP employees did not follow BOP policies or
procedures, standing alone, again do not amount to
constitutional violations. See United States v.
Caceres. 440 U.S. 741 (1978); see also Riccio v.
County of Fairfax. Virginia. 907 F.2d 1459, 1469 (4th
Cir. l99O)[if state law grants more procedural rights than
the Constitution requires, a state's failure to abide by
that law is not a federal due process issue]; Keeler v.
Pea. 782 F.Supp. 42, 44 (D.S.C. 1992)[violations of
prison policies which fail to reach the level of a
constitutional violation are not actionable under §
even if Plaintiff has stated a claim for medical deliberate
indifference, his claims are barred by the applicable statute
of limitations. State law concerning limitation of actions
applies in claims brought under Bivens. See Wilson v.
Garcia. 471 U.S. 261, 266 (1985), partially superseded
by statute as stated in Jones v. R .R. Donnelly &
Sons. Co. 541 U.S. 369, 377- 380 (2004); Reinbold v.
Evers. 187 F.3d 348, 359 n. 10 (4th Cir. l999)[noting
that because there is no statute of limitations for Bivens
actions, the district court correctly looked to state law];
Saucillo v. Samuels. No. 12-240, 2013 WL 360258, at
*8 (D.S.C. 2013) [Statute of limitations for a Bivens claim
is determined by the analogous state law statute of
limitation]; see also See Mitchell v. Forsvth. 472
U.S. 511, 530 (1985) [Case law involving § 1983 claims
is applicable in Bivens actions]. In South Carolina, the
applicable statute of limitations is generally three years;
see S.C. Code Ann. § 15-3-530; and the running of the
statute of limitations begins when a plaintiff knows or has
reason to know of his injury. See Wallace v. Kato.
549 U.S. 384, 387 (2007).
Plaintiff knew or had reason to know of his injury at the
time of his fall in 1996. He knew or had reason to know that
he was allegedly denied "painkillers" shortly
thereafter. It is also clear that Plaintiff knew in June 1997
(when he received a cystoscopy) that he did not receive a
urethroscopy, which appears to be a basis for his claim that
the Defendants were deliberately indifferent to his serious
medical need. Further, Plaintiff obviously knew of his
alleged injury when he filed his Request for Administrative
Remedy in September 1997. See ECF No. 1-1 at 24. Even if
Plaintiff did not know or did not have reason to know about
his claims until he allegedly exhausted the grievance
process, the response from the Central Office is dated July
1999, approximately twenty years before he filed this action.
Finally, Plaintiff clearly knew or had reason to know of his
alleged injury when he received medical care in May 2007, at
which time he was no longer imprisoned.
present action, Plaintiff now illogically alleges that he did
not know about his injury and claim until February 5, 2018.
See ECF No. 1 at 3, Para. 5. Such a contention is frivolous,
however, as Plaintiff previously filed a lawsuit in November
2016 (Case No. 16-3574) alleging essentially the same claims
raised here. Additionally, the "proof that Plaintiff
presents to indicate that he did not discover his lawsuit
until February 2018 are medical reports (the fluoroscopic
voiding cystourethrography and the fluoroscopic retrograde
urethrocystography) from the Northridge ...