United States District Court, W.D. Tennessee, Eastern Division
GARRICK D. COLE, Plaintiff,
UNITED STATES OF AMERICA, ET AL., Defendants.
ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING
THAT PROCESS BE ISSUED FOR THE UNITED STATES
D. TODD, UNITED STATES DISTRICT JUDGE.
4, 2015, Plaintiff Garrick D. Cole (“Cole”),
Bureau of Prisons (“BOP”) register number
25462-076, who is incarcerated at the United States Medical
Center for Federal Prisoners (“USMCFP”) in
Springfield, Missouri, filed a pro se civil
complaint pursuant to Bivens v. Six Unknown Named Agents
of Fed. Bur. Of Narcotics, 403 U.S. 388 (1971), and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671-2680. (ECF No. 1.) After Cole
submitted the necessary documentation, the Court granted
leave to proceed in forma pauperis and assessed the
civil filing pursuant to the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. §§ 1915(a)-(b).
(ECF No. 6.) The Clerk shall record the Defendants as the
United States of America (“United States”), U.S.
Marshal for the Western District of Tennessee Jeffrey Holt,
the United States Marshals Service (“USMS”).
Defendant Holt is sued in both his individual and official
and several co-defendants were indicted by a federal grand
jury in this district on October 15, 2012. (No. 12-10096-JDB,
Crim. ECF No. 3.) Cole was ordered detained in the custody of
the USMS from the time of his arrest on November 1, 2012,
until he was released on bond on March 5, 2013.
(Id., Crim. ECF Nos. 47, 53, 89, 99, 175, 306, 310
& 311.) In the present civil complaint, Cole alleges that
he suffers from severe kidney failure diagnosed as end stage
renal disease (“ESRD”) which, if the patient does
not receive a kidney transplant, must be treated with regular
dialysis by either hemodialysis or peritoneal
dialysis. (ECF No. 1 at 2.) Cole states that he
elected to receive peritoneal dialysis for its convenience
and the greater independence it would allow him because it is
self-administered. (Id. at 3.)
same day that he was released on bond, Cole was seen by a
surgeon at Jackson Surgical Associates for evaluation to
replace the right-side perma catheter used for his peritoneal
dialysis with a “more enduring dialysis option.”
(Id.) Thereafter, on March 14, 2013, Cole states
that he underwent a laparoscopic procedure to receive a
Tenckhoff catheter for peritoneal dialysis. (Id.)
September 5, 2013, while still on bond, Cole appeared before
U.S. District Judge J. Daniel Breen for sentencing, at which
time Judge Breen recommended that Cole be housed in the
nearest medical facility able to treat Cole's illnesses.
(Id. at 3-4; see also No. 12-10096, Crim.
ECF No. 568.) During the sentencing hearing, Judge Breen
allowed Cole's defense attorney, Dianne Smothers, and
Defendant Holt time to contact the West Tennessee Detention
Facility (“WTDF”) in Mason, Tennessee to
determine whether that facility could address Cole's
medical needs. (Id. at 4; see also No.
12-10096, Crim. ECF No. 568.) Judge Breen then heard
statements from both Ms. Smothers and Defendant Holt on that
issue. (No. 12-10096, Crim. ECF No. 568.) However, the
complaint does not set out the substance of either statement.
The termination of Cole's bond then was deferred to allow
him to consult with his primary care doctor, Dr. Sakar. (ECF
No. 1 at 4.)
the consultation with Dr. Sakar on September 9, 2013, at
which Ms. Smothers also was present, Ms. Smothers allegedly
informed Dr. Sakar that the federal system did not
accommodate peritoneal dialysis care, which Cole contends was
“misinformation”. (Id.) Dr. Sakar then
consulted Jackson Surgical Associates about removing the
Tenckhoff catheter that had been placed the previous March.
(Id.) Consequently, on October 3, 2013, Cole
underwent surgery to remove the Tenckhoff catheter; later the
same day another surgery was performed to put in place a
tunneled hemodialysis catheter. (Id.)
October 9, 2013, Cole alleges that he self-surrendered to the
USMS and was housed at the WTDF,  which was able to provide
him medical treatment after his surgeries. (Id.)
However, Cole alleges that following Judge Breen's
recommendation at sentencing would have resulted in his
immediate placement at the USMCFP, which he asserts is, in
fact, able to accommodate peritoneal dialysis. Therefore, the
Tenckhoff catheter would not have been removed and replaced
by a hemodialysis catheter. (Id.) Cole alleges that
the “needless surgeries . . . expose[d] his person to
unnecessary peril of injury and pain” and caused him
“excessive pain, suffering, and emotional
asserts that he was transferred to the USMCFP on or about
January 11, 2014. (Id.) In March 2014, Dr. Wade T.
Jordan, the USMCFP Clinical Director, consulted with a
surgeon and recommended that Cole undergo another
laparoscopic surgery to again place a catheter for peritoneal
dialysis, essentially the fourth surgery for the same
illness. (Id.) That surgery was performed on April
8, 2014. (Id. at 5.) Yet a fifth surgery was
performed on May 28, 2014, to remove the hemodialysis
alleges that Defendant Holt breached his duty as a federal
employee through negligence and that his acts and/or
omissions resulting in repetitious surgeries amounted to
cruel and unusual punishment under the Eighth Amendment.
(Id.) Cole seeks damages of $500, 000 under the
FTCA; compensatory damages of $30, 000 and punitive damages
of $15, 000 against Holt in his individual capacity; and
reimbursement of any fees or expenses associated with his
claims. (Id. at 5-6.)
Court is required to screen prisoner complaints and to
dismiss any complaint, or any portion thereof, if the
(1) is frivolous, malicious, or fails to state a claim upon
which relief ...