United States District Court, W.D. Tennessee, Western Division
ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO
D. TODD UNITED STATES DISTRICT JUDGE.
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.
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.)
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.) 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.)
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.)
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 may be granted; or
(2) seeks monetary relief from a defendant who is immune from
28 U.S.C. § 1915A(b); see also 28 U.S.C. §
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.
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))).
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).
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
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