Alexander v. Lewis et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kentrell Alexander
v. Case No. 16-cv-400-LM
K. Lewis, Hollaway McDaniel,
Christine Perrault, and the
United States of America
REPORT AND RECOMMENDATION
In a case that has been transferred from the District of
Massachusetts, pro se plaintiff Kentrell Alexander is suing four
defendants under several different theories, asserting claims
that arise from medical treatment he received while he was
incarcerated in the Federal Correctional Institution in Berlin,
New Hampshire (“FCI-Berlin”). Before this magistrate judge for
a report and recommendation is a motion to dismiss filed by all
four defendants. Plaintiff objects. For the reasons that
follow, defendants’ motion to dismiss should be granted in part
and denied in part.
Background
The facts in this section are drawn from plaintiff’s
complaint. See Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71
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(1st Cir. 2014).
When Alexander was transferred into FCI-Berlin, he was
suffering from stomach pain, joint pain and weakness, and blood
in his stool. At FCI-Berlin, he was: (1) given a hemmocoult
test in May of 2013; (2) sent to the hospital for a rectal
examination and blood work in July; (3) given a colonoscopy, an
endoscopic biopsy, and a prescription for sulfasalazine in
August; and (4) rushed to the hospital in September and given a
variety of diagnostic tests. During Alexander’s hospital visit
in September, a doctor told him that the diagnosis resulting
from his August colonoscopy was erroneous and that the
sulfasalazine he had been taking had killed off all of his
body’s germ-fighting bacteria. During that same visit,
emergency room personnel told Alexander and FCI-Berlin nurse
practitioner Kans Lewis to discontinue sulfasalazine, and
Alexander was given a prescription for Flagyl. Back at the
prison, Alexander was given Nidazole rather than Flagyl.
As for the individual defendants in this case, plaintiff
alleges that: (1) FCI-Berlin nurse Christine Perrault failed to
properly diagnose his condition after his colonoscopy, and
failed to provide him with the proper medication thereafter; (2)
Lewis gave him a misdiagnosis of Crohn’s disease after his
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colonoscopy, failed to provide him with the proper medication
thereafter, and was told by one or more health-care providers at
the hospital to discontinue sulfasalazine; and (3) FCI-Berlin’s
Dr. Holloway McDaniel lied to him about the results of his
colonoscopy and/or his endoscopic biopsy.
Based upon the foregoing, Alexander originally sued six
defendants, two of whom were dismissed for lack of personal
jurisdiction, before the case was transferred to this district.
While plaintiff’s complaint is not as clear as it might be, the
crux of his claims appears to be that the three individual
defendants misdiagnosed his condition after his colonoscopy,
erred by giving him sulfasalazine in the first instance, and
erred by giving him Nidazole after he had been given a
prescription for Flagyl at the hospital. Plaintiff is pursuing
his claims by means: (1) 42 U.S.C. § 1983; (2) the doctrine that
draws its name from Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971); and (3) the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680. More
specifically, and construing Alexander’s pro se complaint
liberally, as it must, see Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), the court identifies the following claims:
(1) claims against Lewis, McDaniel, and Perrault, asserted
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through 42 U.S.C. § 1983, charging those three defendants with
violating Alexander’s rights under the Fifth and Eighth
Amendments to the U.S. Constitution; (2) Bivens claims against
Lewis, McDaniel, and Perrault for violating Alexander’s rights
under the Fifth and Eighth Amendments; and (3) an FTCA claim
against the United States for medical negligence committed by
Lewis, McDaniel, and Perrault.
Discussion
Defendants move to dismiss plaintiff’s complaint. They
make separate arguments regarding each of his three theories of
recovery, and also argue that Lewis, as a commissioned officer
of the United States Public Health Service, has statutory
immunity from suit. In this section, the court considers each
of plaintiff’s three causes of action in turn.1
A. Plaintiff’s § 1983 Claims
To the extent that plaintiff is pursuing claims by means of
42 U.S.C. § 1983, defendants are entitled to dismissal.
It is well established that “[t]o plead a viable section
1 Because an immunity analysis would require the
consideration of materials outside the complaint, and because
all of plaintiff’s claims against Lewis should be dismissed on
the merits, the court declines to address the issue of immunity.
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1983 claim, a complaint must allege action under color of state
law.” McCloskey v. Mueller, 446 F.3d 262, 271 (2006) (citing
Redondo-Borges v. U.S. Dep’t of Housing & Urban Dev., 421 F.3d
1, 7 (1st Cir. 2005); Rogan v. City of Bos., 267 F.3d 24, 27
(1st Cir. 2001)). For that reason, “a section 1983 claim
ordinarily will not lie against a federal actor.” McCloskey,
446 F.3d at 271 (citing D.C. v. Carter, 409 U.S. 418, 424-25
(1973); Redondo-Borges, 421 F.3d at 6).
Even when the court construes Alexander’s complaint
liberally, see Erickson, 551 U.S. at 94, it cannot discern any
basis for § 1983 liability against Lewis, McDaniel, or Perrault;
nowhere does Alexander come close to alleging that any of those
three defendants was a state actor or otherwise acting under
color of state law. Moreover, given Alexander’s incarceration
in a federal correctional facility, there is no basis for
reasonably inferring the state action necessary to state a §
1983 claim. Accordingly, to the extent that Alexander asserts
claims through the vehicle of 42 U.S.C. § 1983, those claims
should be dismissed.
B. Plaintiff’s Bivens Claims
While § 1983 provides no basis for bringing claims against
Lewis, McDaniel, and Perrault, there remains the possibility of
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a Bivens action. “A Bivens action is a civil action brought
against agents of the United States . . . . ‘This implied cause
of action is the federal analog to § 1983 suits against state
officials.’” Hernandez–Cuevas v. Taylor, 836 F.3d 116, 118 n.1
(1st Cir. 2016) (quoting Hernandez–Cuevas v. Taylor, 723 F.3d
91, 93 n.1 (1st Cir. 2013); citing Soto–Torres v. Fraticelli,
654 F.3d 153, 158 (1st Cir. 2011)). Thus, in a Bivens action,
“federal courts may address claims asserting violations of the
United States Constitution by federal actors when they are
brought against individual officers.” Paret-Ruiz v. United
States, 827 F.3d 167, 177 n.17 (1st Cir. 2016) (citing Bivens,
403 U.S. at 388)). In his complaint, Alexander asserts his
Bivens claims this way: “I have since exhausted all B.O.P.
Remedies . . . [and] bring this ‘cause of action’, for violation
of my constitutional rights (5th and 8th Amends).” Compl. (doc.
no. 1) 3.
1. Plaintiff’s Fifth Amendment Claims
Plaintiff’s complaint says nothing about his Fifth
Amendment claims beyond the parenthetical reference quoted
above. And, while plaintiff did discuss his Eighth Amendment
claims in his objection to defendants’ motion to dismiss, his
objection says nothing about his Fifth Amendment claims.
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Defendants argue that plaintiff’s Fifth Amendment Bivens claims
should be dismissed because: (1) plaintiff does not make factual
allegations in support of those claims that satisfy Rule 8(a) of
the Federal Rules of Civil Procedure (“Federal Rules”); (2)
there is no Fifth Amendment Bivens action applicable to the
facts of this case, and plaintiff has provided no basis for
recognizing a new Bivens action; and (3) plaintiff has failed to
identify specific conduct by specific defendants. As noted,
plaintiff’s objection does not address defendants’ arguments.
In any event, their second argument is persuasive, and
dispositive.
In Davis v. Passman, the Supreme Court held that violations
of the equal protection component of the Fifth Amendment’s due
process clause could be addressed in a Bivens action. See 442
U.S. 228, 248-49 (1979). Here, however, even when construed
most liberally, see Erickson, 551 U.S. at 94, Alexander’s
complaint alleges no facts that come anywhere close to
supporting a legal claim of the sort the plaintiff made in
Davis. The court is aware of no other component of the Fifth
Amendment that has been held to support a Bivens claim and, for
his part, plaintiff does not identify any Fifth Amendment right
that was violated by defendants’ conduct. Accordingly, to the
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extent that Alexander asserts Fifth Amendment Bivens claims,
those claims should be dismissed.
2. Plaintiff’s Eighth Amendment Claims
Plaintiff’s Eighth Amendment Bivens claims are better
developed than his Fifth Amendment claims. He asserts that the
medical care he received while he was an FCI-Berlin inmate
amounted to cruel and unusual punishment in violation of the
Eighth Amendment. Defendants argue that plaintiff’s Eighth
Amendment Bivens claims should be dismissed because: (1) they
were not pled in compliance with Rule 8(a) of the Federal Rules;
(2) the conduct plaintiff alleges falls short of violating the
Eighth Amendment; and (3) plaintiff has failed to adequately
allege specific conduct by specific defendants. Even if
plaintiff’s complaint does satisfy Rule 8(a), and even if the
court presumes that Lewis, McDaniel, and Perrault are each fully
liable for all the conduct alleged as the basis of plaintiff’s
Eighth Amendment Bivens claims, defendants’ second argument
entitles them to dismissal of those claims.
The Eighth Amendment prohibits the infliction of cruel and
unusual punishments. “Prison officials . . . violate [that]
prohibition . . . when they exhibit ‘deliberate indifference’ to
a detainee’s serious medical needs.” Perry v. Roy, 782 F.3d 73,
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78 (1st Cir. 2015) (quoting Feeney v. Corr. Med. Servs., 464
F.3d 158, 163 (1st Cir. 2006); citing Estelle v. Gamble, 429
U.S. 97, 105-06 (1976)). Here, the court assumes that plaintiff
has adequately alleged a serious medical need. He has not,
however, made allegations that satisfy the “subjective prong [of
an Eighth Amendment claim which] mandates a showing of prison
administrators’ deliberate indifference to [the detainee’s
serious medical] need.” Perry, 782 F.3d at 78 (quoting Kosilek
v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014)).
Deliberate indifference is a “culpable state of mind,”
Perry, 782 F.3d at 78 (quoting Leavitt v. Corr. Med. Servs., 645
F.3d 484, 497 (1st Cir. 2011)), proof of which requires
“evidence that the absence or inadequacy of treatment is
intentional,” id. at 78 (citation omitted). “The typical
example of a case of [deliberate] indifference would be one in
which treatment is denied ‘in order to punish the inmate.’” Id.
at 79 (quoting Watson v. Caton, 985 F.2d 537, 540 (1st Cir.
1993)). “[D]eliberate indifference may also reside in ‘wanton’
decisions to deny or delay care.” Watson, 984 F.2d at 540
(quoting Wilson v. Seitler, 501 U.S. 294, 302 (1992)). On the
other hand:
[A]n inadvertent failure to provide adequate medical
care cannot be said to constitute “an unnecessary and
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wanton infliction of pain” or to be “repugnant to the
conscience of mankind.” Thus, a complaint that a
physician has been negligent in diagnosing or treating
a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.
Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.
Estelle, 429 U.S. at 105–06; see also Perry, 782 F.3d at 79.
Here, Alexander does not allege that Lewis, McDaniel, or
Perrault ever denied or delayed his medical care. Indeed, his
complaint includes allegations that his health problems were
addressed in a relatively timely manner. Rather, his Eighth
Amendment claim rests upon allegations that he was misdiagnosed
after his colonoscopy and that he suffered various deleterious
side effects induced by sulfasalazine and Nidazole. While
plaintiff argues in his objection to defendants’ motion to
dismiss that the facts he alleges “are evidence that the
defendants were acting ‘maliciously and sadistically to cause
physical harm,’” doc. no. 51, at 3, his complaint alleges no
such facts, and alleges no facts from which an intent to harm
him could reasonably be inferred. Even when the complaint is
construed liberally, see Erickson, 551 U.S. at 94, and all
reasonable inferences are drawn in plaintiff’s favor, see Foley,
772 F.3d at 68, his Eighth Amendment claim amounts to nothing
more than a claim for medical negligence. Medical negligence,
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however, is not enough to establish an Eighth Amendment
violation. See Estelle, 429 U.S. at 105–06. Accordingly,
plaintiff’s Eighth Amendment Bivens claims should be dismissed.
C. Plaintiff’s FTCA Claim
Plaintiff’s final claim is that the United States is liable
to him, under the FTCA, for medical negligence committed by
Lewis, McDaniel, and Perrault. Defendants argue that
plaintiff’s FTCA claim should be dismissed because he does not
assert that claim in compliance with Rule 8(a) and, as a
consequence, has failed to state a claim upon which relief can
be granted under the FTCA.
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Foley, 772
F.3d at 71 (citation and internal quotation marks omitted). A
claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “[a] suit
will be dismissed if the complaint does not set forth ‘factual
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allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some
actionable legal theory.” United States ex rel. Hutcheson v.
Blackstone Med., Inc., 647 F.3d 377, 384 (1st Cir. 2011)
(quoting Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.
2008); citing Centro Medico del Turabo, Inc. v. Feliciano de
Melecio, 406 F.3d 1, 6, 1st Cir. 2005)).
Plaintiff’s claim under the FTCA is that United States is
liable to him because Lewis, McDaniel, and Perrault negligently
diagnosed his condition and negligently treated him by
prescribing sulfasalazine and Nidazole. Under New Hampshire
law, a “plaintiff [asserting a negligence claim] has the ‘burden
to prove facts upon which the law imposes a duty of care, breach
of that duty, and so-called proximate causation of harm.’”
Yager v. Clauson, 169 N.H. 1, 5 (2016) (quoting N. Bay Council,
Inc. v. Bruckner, 131 N.H. 538, 542 (1989)).
While plaintiff’s complaint does not recite the elements of
negligence, or explicitly match facts to elements, the court
must construe the complaint liberally, see Erickson, 551 U.S. at
94, and apply the plaintiff-friendly Rule 12(b)(6) standard.
When viewing the complaint through those two lenses, the court
cannot say that plaintiff has failed to state a claim upon which
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relief can be granted when he alleges that medical professionals
misdiagnosed his condition and thereafter prescribed medication
that had various painful side effects. In other words,
plaintiff’s complaint is reasonably construed as alleging that
Lewis, McDaniel, and Perrault had a duty to adhere to the
applicable standards of care when diagnosing and treating him,
that they breached those duties, and that by so doing, they
caused him injury. Accordingly, as to plaintiff’s FTCA claim,
defendants’ motion to dismiss should be denied.
Conclusion
For the reasons described above, defendants’ motion to
dismiss, document no. 48, should be granted as to plaintiff’s §
1983 claims and his Bivens claims, but should be denied as to
his FTCA claim.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See United States v. De Jesús-Viera, 655 F.3d 52, 57
(1st Cir. 2011), cert. denied, 132 S. Ct. 1045 (2012); Sch.
Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st
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Cir. 2010) (only issues fairly raised by objections to
magistrate judge’s report are subject to review by district
court; issues not preserved by such objection are precluded on
appeal).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 12, 2017
cc: Kentrell Alexander, pro se
T. David Plourde, Esq.
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