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Hernandez-Perez v. Prince

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

August 1, 2019

FRANCISCO HERNANDEZ-PEREZ, Plaintiff,
v.
DR. PRINCE, Defendant.

          ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

          JAMES D. TODD UNITED STATES DISTRICT JUDGE.

         On January 18, 2017, Plaintiff Francisco Hernandez-Perez, who at the time was incarcerated at the Federal Correctional Institution in Memphis, Tennessee (FCI Memphis), filed a pro se complaint under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1974). (ECF No. 1.) After Hernandez-Perez filed a properly supported in forma pauperis application, the Court issued an order on February 7, 2017, granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) The Clerk shall record the Defendant as the FCI Memphis Medical Director, Dr. First Name Unknown Prince.

         Hernandez-Perez alleges that on March 18, 2016, while performing his duties in the food services department, he slipped and fell. (ECF No. 1 at PageID 6.) Hernandez-Perez believes he slipped on water left on the floor from a spill or from mopping. (Id. at PageID 6-7.) There were no wet floor signs in the area. (Id. at PageID 7.) As a result of his fall, Hernandez-Perez injured his back. (Id.) Hernandez-Perez contacted his supervisor, Mrs. Garrison, who took Hernandez-Perez to the medical department. (Id.) Mrs. Garrison, who is not a party to this action, did not inform the medical staff that Hernandez-Perez did not speak English and needed an interpreter. (Id.) Therefore, Hernandez-Perez used gestures in an attempt to explain the injury to his back, “by using his hand pointing to his lower back and signaling to the floor that he had fallen.” (Id.) The medical provider, without contacting an interpreter, dispensed ibuprofen and told Hernandez-Perez that he had only injured his hand. (Id.)

         Hernandez-Perez continued to experience extreme pain in his back despite taking the ibuprofen and returned to the medical unit on April 13, 2016, taking with him an interpreter who was able to explain the slip and fall and Hernandez-Perez's recurring back pain. (Id.)[1] Medical personnel prescribed new medication and took x-rays. (Id.) Hernandez-Perez also underwent an MRI on July 13, 2016, which did not show any vertebral cracks or fractures but did reveal a protrusion at the L4 vertebra in the lumbar region of Hernandez-Perez's back. (Id. at PageID 7-8.) Hernandez-Perez alleges he saw a neurologist on September 15, 2016, who recommended that Hernandez-Perez schedule an appointment with a neurosurgeon. (Id. at PageID 8.) At the time of filing, the Institution Utilization Review Committee, which is chaired by Dr. Prince and approves such treatment, had not yet given approval for Hernandez-Perez to see a neurosurgeon. (Id.)

         Hernandez-Perez alleges that he filed an administrative remedy over the delay in additional treatment. (Id. at PageID 9.) Warden Batts and the Bureau of Prisons (BOP) Central Office responded that Hernandez-Perez was receiving medical care in accordance with BOP policy and that the Institution Review Committee had his case under consideration. (Id. at PageID 11, see also ECF 1-1 at PageID 18-19, 21.) Hernandez-Perez alleges that because of Dr. Prince's deliberate indifference in delaying treatment, he was not seen by a neurosurgeon in the ten months after his injury. (ECF No. 1 at PageID 11-14.) Hernandez-Perez now seeks compensatory damages in an unspecified amount. (Id. at PageID 5.)

         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 may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

         In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Fed.R.Civ.P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts the complaint's “well-pleaded” factual allegations as true and then determines whether the allegations “plausibly suggest an entitlement to relief.'” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations “are not entitled to the assumption of truth, ” and legal conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,' rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.

         “Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 Fed.Appx. 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements” and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading'” (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

         Hernandez-Perez filed his complaint pursuant to Bivens, which provides a right of action against federal employees who violate an individual's rights under the United States Constitution. “Under the Bivens line of cases, the Supreme Court has recognized a cause of action against federal officials for certain constitutional violations when there are no alternative processes to protect the interests of the plaintiff and no special factors counseling against recognizing the cause of action.” Koubriti v. Convertino, 593 F.3d 459, 466 (6th Cir. 2010).

         The gravamen of Hernandez-Perez's complaint is that Dr. Prince has been deliberately indifferent to Hernandez-Perez's serious medical need for back surgery. According to the complaint, Dr. Prince oversees the prison's medical review committee, and the medical review committee has failed to take any action on a neurologist's recommendation that Hernandez-Perez consult a neurosurgeon about his back. The Eighth Amendment's prohibition on cruel and unusual punishment governs Hernandez-Perez's claim. The Eighth Amendment deliberate indifference standard consists of both objective and subjective elements. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective element requires that the deprivation be “sufficiently serious.” Id. In the context of the denial of medical care, the objective element under Farmer requires that a prisoner have a serious medical need. Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004). “[A] medical need is objectively serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would readily recognize the necessity for a doctor's attention.” Id. at 897 (internal quotation marks omitted).

         To establish the subjective element of the claim, a prisoner must show that a prison official acted with “deliberate indifference” to a substantial risk that the prisoner would suffer serious harm. Farmer, 511 U.S. at 834. “[D]eliberate indifference describes a state of mind more blameworthy than negligence.” Id. at 835. A prison official cannot be found liable under the Eighth Amendment unless he subjectively knows of an excessive risk of harm to an inmate's health or safety and disregards the risk. Id. at 837. “[A]n official's ...


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