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Cole v. United States

United States District Court, W.D. Tennessee, Eastern Division

November 7, 2017

GARRICK D. COLE, Plaintiff,
v.
UNITED STATES OF AMERICA, ET AL., Defendants.

          ORDER PARTIALLY DISMISSING COMPLAINT AND DIRECTING THAT PROCESS BE ISSUED FOR THE UNITED STATES

          JAMES D. TODD, UNITED STATES DISTRICT JUDGE.

         On May 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.)[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, [2] and the United States Marshals Service (“USMS”). Defendant Holt is sued in both his individual and official capacities.

         I. The Complaint

         Cole 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.[3] (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.)

         On the 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.)

         On 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.)

         During 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.)

         On October 9, 2013, Cole alleges that he self-surrendered to the USMS and was housed at the WTDF, [4] 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 duress.” (Id.)

         Plaintiff 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 catheter. (Id.)

         Cole 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.)

         II. Analysis

         The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which relief ...

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