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Perez Perez v. Floyd

United States District Court, D. South Carolina

December 4, 2019

Crescencio Perez-Perez, Plaintiff,
v.
C.E. Floyd, Warden of FCIEstill, S.C.; E. Rain Water, A.H.S.A.; Dr. Jose Hernandez, Medical officer; Parina B., M.D., Medical officer, Carolyn V. Rickards, Regional Director, John Doe, Regional Director; Wendy J. Roald, Administrator National Inmate Appeals; Frederick J. Goulding, M.D.; Ross Rames, M.D., all in their personal capacities, Defendants.

          REPORT AND RECOMMENDATION

          BRISTO W. MARCHANT JUDGE

         This is 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 Cir. 1983).

         Section 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 case here.

         Discussion

         Plaintiff, 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, [1] 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 at 1.

         Plaintiffs claims are brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388.397 (1971).[2] 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.

         Under 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.[3]

         Plaintiff 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.

         Plaintiff 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.

         Further, 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).

         It is 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[4] 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 § 1983].

         Additionally, even if Plaintiff has stated a claim for medical deliberate indifference, his claims are barred by the applicable statute of limitations.[5] 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).

         Here, 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.

         In the 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 ...


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