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Velentzas v. United States

August 31, 2010

SPYREDON VELENTZAS, PLAINTIFF
v.
UNITED STATES OF AMERICA, ET. AL., DEFENDANTS



The opinion of the court was delivered by: Judge Jones

(Magistrate Judge Blewitt)

REPORT AND RECOMMENDATION

I. Background

Plaintiff, Spyredon Velentzas*fn1 , while an inmate at the United States Penitentiary at Canaan ("USP-Canaan"), Waymart, Pennsylvania, originally filed, pro se, this Bivens*fn2 action, pursuant to 28 U.S.C. § 1331, on July 11, 2007. (Doc. 1). Plaintiff named as Defendants in his original Bivens Complaint two (2) individuals employed by the Federal Bureau of Prisons ("BOP") at USP-Canaan, namely Warden "Ronold" (sic) Holt, and unnamed U.S.P. Health Care Services Administrator ("HSA"). Plaintiff also named the United States of America ("USA") as well as the Director of the Bureau of Prisons ("BOP") as Defendants. (Doc. 1, pp. 1-3). Plaintiff paid the filing fee. (Doc. 4).

Plaintiff claimed that the Defendants violated his Eighth Amendment rights by depriving him of proper medical and dental care for his conditions, namely, ill-fitting dentures, hearing problems in both ears, and chest pain and dizziness. (Doc. 1, pp. 4-5).

On August 6, 2007, we preliminarily screened Plaintiff's original Complaint pursuant to 28 U.S.C. §1915A, and issued a Report and Recommendation. (Doc. 5). Plaintiff filed Objections to our Report and Recommendation. (Docs. 8 and 9). On November 6, 2007, the District Court issued a Memorandum and Order overruling Plaintiff's Objections, and adopting our Report and Recommendation in its entirety. The Court also directed Plaintiff to file an amended complaint within fifteen (15) days. (Doc. 10).

Plaintiff filed his Amended Complaint on December 3, 2007. (Doc. 13). On December 12, 2007, we screened Plaintiff's amended pleading and issued a Report and Recommendation wherein we recommended that Plaintiff's Bivens action be dismissed as against Defendants Ramos and John Doe Dentist, that Plaintiff's claims for monetary damages against Defendants in their official capacities be dismissed, and that Plaintiff's specific requests for monetary damages be stricken. We further recommended that Plaintiff be permitted to proceed on his Amended Complaint with respect to his Eighth Amendment denial of medical care and dental care claims as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. Additionally, we recommend that Plaintiff's ADA claim and Rehabilitation Act ("RA") claim be dismissed. (Doc. 14). Plaintiff filed Objections to our Report and Recommendation. (Docs. 15 and 16).

On April 11, 2008, the District Court entered an Order adopting in part our Report and Recommendation and remanding this case to the undersigned for further proceedings. (Doc. 18). The Court adopted our recommendation that Plaintiff be permitted to proceed on his Amended Complaint with respect to his Eighth Amendment denial of dental and medical care claims as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. The District Court's April 11, 2008 Order also granted Plaintiff leave to amend his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and also against the BOP. Further, the District Court directed Plaintiff to file his Second Amended Complaint within fifteen (15) days of the date of its Order.

Since Plaintiff failed to timely file his Second Amended Complaint, we issued a Report and Recommendation on May 8, 2008, wherein we recommended that Plaintiff's action be dismissed pursuant to Fed.R.Civ.P. 41(b). (Doc. 19).

While our May 2008 Report and Recommendation was pending with the District Court, on May 20, 2008, Plaintiff filed Motion for Extension of Time to file his Second Amended Complaint. (Doc. 20). On January 15, 2009, the District Court issued a Memorandum and Order rejecting our Doc. 19 Report and Recommendation and granting Plaintiff's Motion for Extension of Time to file his Second Amended Complaint. (Doc. 21). The District Court's Memorandum and Order directed Plaintiff to file his Second Amended Complaint within thirty (30) days. Plaintiff was notified that his failure to comply with the District Court's Order would result in an involuntary dismissal of his action pursuant to Fed.R.Civ.P. 41(b). (Doc. 21, p. 8).

A copy of the Doc. 21 Memorandum and Order was mailed to Plaintiff at his address of record, USP-Canaan. On January 27, 2009, the envelope addressed to Plaintiff, containing the District Court's Doc. 21 Memorandum and Order, was returned to the Court marked "Return to Sender; Not Deliverable as Addressed; Unable to Forward." (Doc. 22).

The time within which Plaintiff was to have filed his Second Amended Complaint expired. Plaintiff neither timely filed his Second Amended Complaint nor requested a further extension of time within which to do so. Further, Plaintiff failed to notify the Court of his change of address, as required.

Thus, on February 24, 2009, we issued an R&R and recommended that this action be dismissed on the basis of Plaintiff's failure to timely file his Second Amended Complaint, his failure to notify the Court of his whereabouts, and for failure to prosecute his action. (Doc. 23). Subsequently, the Clerk of Court's Office located Plaintiff at MCFP-Springfield, and our R&R was mailed to Plaintiff at this medical center prison.

On March 23, 2009, apparently in response to our February 24, 2009 R&R, Plaintiff filed his Second Amended Complaint. (Doc. 25). On September 28, 2009, the Court issued an Order and rejected our February 24, 2009 R&R, and it remanded this case to us for further pre-trial proceedings. (Doc. 26).

We then screened Plaintiff's latest pleading, i.e. Second Amended Complaint, Doc. 25. We found Plaintiff's Second Amended Complaint (Doc. 25) was deficient since it did not state who the Defendants were, what each Defendant allegedly did to violate Plaintiff's Eighth Amendment rights, and his rights under the ADA and RA, and it did not state where and when the alleged improper conduct of each Defendant occurred. See Saltzman v. Independence Blue Cross, 2009 WL 1606887, *4 (E.D. Pa.)("The Court in Iqbal explained that, although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted.").

In his Second Amended Complaint, Plaintiff simply listed the "United States, et al." as the Defendants in his caption, and he did not mention any Defendant by name in the body of his 3-typed page, 14-paragraph Second Amended Complaint. (Doc. 25). Further, the United States was dismissed as a Defendant from this Bivens action in November 2007 since it was not a proper party Defendant in a Bivens action. See Reynolds v. Federal BOP, 2010 WL 744127, * 3 (E.D. Pa.).

As stated, Plaintiff was already permitted by the Court to proceed on his (first) Amended Complaint with respect to his Eighth Amendment denial of medical and dental care claims as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. Also, the Court allowed Plaintiff, if he so desired, to only amend, in a Second Amended Complaint, his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and against the BOP. Plaintiff did not state such claims in his Second Amended Complaint, and he did not even state the names and the personal involvement of the stated four remaining individual Defendants in this pleading. Rather, Plaintiff merely asserted, in a general fashion, an Eighth Amendment denial of proper medical and dental care claims by all medical and dental staff at each of the five federal prisons where he was incarcerated over the numerous years while serving his life sentence.

Specifically, in his Second Amended Complaint, Plaintiff simply averred that he was "repeatedly over the years, deprived of proper care by all medical and dental staff at the facilities where he has been incarcerated." (Doc. 25, p. 1, ¶ 4.) (emphasis added). Plaintiff also listed the five (5) federal prisons where he has been incarcerated, namely, USP-Terre Haute, FCI-Beckley, FCI-Allenwood, USP-Canaan, and MCFP-Springfield. Plaintiff's Eighth Amendment claims in this case only relate to his confinement at USP-Canaan and venue in this Court is clearly not proper with respect to any Eighth Amendment claims Plaintiff may have as against the medical and dental staff at USP-Terre Haute, FCI-Beckley, and MCFP-Springfield.*fn3

See Joyner v. BOP, 2005 WL 3088371 (M.D. Pa.); Michtavi v. Miner, Civil No. 07-0628, M.D. Pa.

Since this case was over two years old and, no pleading was yet served on any of the remaining Defendants, and since Plaintiff's Second Amended Complaint did not state the personal involvement of any Defendant, we issued an Order on September 30, 2009, and directed service of Plaintiff's (first) Amended Complaint (Doc. 13) on remaining Defendants Coleman, Tucker, Faschiana and Dr. Bhatti, and we directed these Defendants to respond to Plaintiff's Eighth Amendment denial of medical and dental care claims asserted against them during Plaintiff's (pre-December 2009) confinement at USP-Canaan. (Doc. 27). We found no need to further delay this case with respect to the Eighth Amendment denial of medical care and dental care claims asserted in Plaintiff's (first) Amended Complaint (Doc. 13) against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti since the Court had already allowed these claims to proceed.

In our September 30, 2009 Order, Plaintiff was also permitted to file a Third Amended Complaint consistent with the prior Orders of the Court, i.e. to only amend his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and against the BOP. Plaintiff was not directed to re-assert his Eighth Amendment denial of medical care and dental care claims as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti in his Third Amended Complaint since the Court had found that he sufficiently stated these constitutional claims against the remaining four Defendants in his (first) Amended Complaint, Doc. 13. (Doc. 18). Further, in our Order of September 30, 2009, we stated that if Plaintiff failed to file his Third Amended Complaint as specified therein in a timely fashion, his case would proceed solely on his (first) Amended Complaint with respect to only his Eighth Amendment denial of proper medical care and dental care claims, as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. (Doc. 27).

Accordingly, as stated, Plaintiff was permitted to file a Third Amended Complaint only to amend his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and against the BOP.*fn4 Also, as stated, our September 30, 2009 Order directed that if Plaintiff failed, within the applicable time period, to file his Third Amended Complaint adhering to the standards set forth above and to the prior directives of the Court, his case would proceed only as to his (first) Amended Complaint with respect to his Eighth Amendment denial of proper medical care and dental care claims against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. Plaintiff did not file a Third Amended Complaint.

The Summons was then issued as to Defendants Coleman, Tucker, Faschiana and Dr. Bhatti and sent to the U.S. Marshal for service along with Plaintiff's (first) Amended Complaint, Doc. 13. Defendants Coleman, Tucker, Faschiana and Dr. Bhatti were served with Plaintiff's (first) Amended Complaint, and after being granted an extension of time, on February 16, 2010, they jointly filed a Motion to Dismiss and for Summary Judgment. (Doc. 40).

On March 2, 2010, Defendants filed their Brief in support of their Motion to Dismiss and for Summary Judgment. (Doc. 45). Defendants also submitted Exhibits with their Brief. (Doc. 45-4). On March 3, 2010, Defendants filed their requisite Statement of Material Facts ("SMF"). (Doc. 46). On March 23, 2010, after we sua sponte gave Plaintiff more time, Plaintiff filed his Brief in opposition to Defendants' Motion to Dismiss and for Summary Judgment. (Doc. 48). Plaintiff also filed a response to Defendants' SMF. (Doc. 49). Plaintiff's denials of, i.e. objections to, Defendants' SMF failed to state a reason for denying them and failed to cite to any evidence in the record to support Plaintiff's denials. (Doc. 49).*fn5 Thus, Plaintiff failed to follow Local Rule 56.1, M.D. Pa.*fn6 Defendants, however, properly filed their SMF according to Local Rule 56.1. (Doc. 46). Defendants cited to evidence in the record with respect to all of their numerous SMF, ¶'s 1.-192., and their evidence is undisputed. Thus, we find Plaintiff has not properly responded to Defendants' SMF as required by LR 56.1 of M.D.Pa. See Cyrus v. Laino, Civil No. 08-1085, M.D. Pa.; Cyrus v. Freynik, Civil No. 08-2278, M.D. Pa.; Michatavi v. Martinez, 2009 WL 5172962 (M.D. Pa.); Accolla v. U.S., 2009 WL 3625383 (M.D. Pa.), affirmed 2010 WL 763550 (3d Cir.)(court found that since Plaintiff inmate in civil rights action did not properly respond to prison staff Defendants' statement of facts as required by L.R. 56.1, M.D. Pa., Defendants' statement of facts were undisputed). Regardless of Plaintiff's failure to properly deny Defendants' statement of facts, we accept all of Defendants' statement of facts since they are all supported by their evidence (Doc. 45-4) and since Plaintiff has not offered any evidence to controvert them.

As mentioned, Plaintiff did not file a Third Amended Complaint to amend his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and against the BOP. The time period in which Plaintiff was directed to file a Third Amended Complaint expired. Thus, Plaintiff is proceeding only as to his (first) Amended Complaint, Doc. 13, with respect to his Eighth Amendment denial of proper medical care and dental care claims against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti.

II. Allegations of First Amended Complaint (Doc. 13)

Plaintiff essentially claims that during his first confinement at USP-Canaan, i.e., March 10, 2005 through September 17, 2008, Defendants Coleman, Tucker, Faschiana and Dr. Bhatti violated his Eighth Amendment rights by depriving him of proper medical care for his three medical conditions, namely, chest pain and dizziness, hearing problems in both ears, and ill-fitting dentures. Defendant Coleman was the Health Services Administrator ("HSA") at USP-Canaan, Defendant Dr. Bhatti was the Clinical Director at USP-Canaan, and Defendants Tucker and Fasciana were Physicians' Assistants ("PA") at USP-Canaan. As noted, Plaintiff Velentzas was first confined at USP-Canaan from March 10, 2005 through September 17, 2008. We find that this is the relevant time period with respect to the instant case. As noted, Plaintiff's medical care after his transfer back to USP-Canaan on December 16, 2009, is not at issue in this case.

In his December 3, 2007 Amended Complaint, Plaintiff states his entire Statement of Claims as follows:

STATEMENT OF THE CLAIMS

On April 2005, plaintiff was taken to a consultant Oral Surgeon, whose extracted him twelve (12) teeth and since the extraction of the above, he remained in pain and bleeding without medication and/or treatment for over two (2) weeks and regardless of his medical condition, the above defendants "Mr. Faschiana, Mr. Tucker, Mr. Bhatti, and Mr. Coleman," refused to treat and/or refers him to a dentist and also, the institution does not have any dentist at all. Consequently, plaintiff was totally disabled from April 2005, til May 2006, as he cannot eat and/or chew.

Finally, on April 2006, plaintiff was seeing (referred) by a John Doe dentist, whose on May 15, 2006, provided him with an ill-fitting full upper partial and lower dentures and since, he still partially disable as he cannot chew with the above. Thereof, at complaining of the ill-fitting dentures, he was seeing (referred) by John Doe dentist from May 22, June 9, September 28, October 20, December 8 and 15, 2006. However, John Doe (dentist) refused to fixed and/or replace the ill-fitting dentures. Thus plaintiff has been denied dental treatment by the above.

Since 2005, till this present-day, plaintiff has been disabled as he loss hearing in his right ear and has a permanent buzzing in his left ear and regardless of his hearing (impalement) deterioration, Mr. Faschiana, Mr. Tucker, Mr. Bhatti, and Mr. Coleman have been refused to give him (plaintiff) an audiologists test and/or refers him to any ear specialist(s) for diagnosis and treatment. Specifically, these defendants' told plaintiff that the Federal Bureau of Prisons won't give him a hearing aid. Since November 2005, till this present-day, plaintiff has been complaining of chest pain (shooting pain) and continuing dizziness and regardless of such symptoms, these defendants, specifically, Mr. Faschiana, Mr. Tucker, and Mr. Bhatti, cannot refers him to a cardiologist(s) for a diagnosis and treatment. Instead, the above have given him a run-around about his chest pain and so forth. (Doc. 13, pp. 6-7).

As relief in his Amended Complaint, Plaintiff seeks declaratory judgment that Defendants constitutionally violated his Eighth Amendment rights, and he seeks both compensatory and punitive damages. Plaintiff states that he sues each Defendant in his individual and official capacity.*fn7 (Doc. 13, p. 5).

This Court has jurisdiction over Plaintiff's instant Complaint under 28 U.S.C. § 1331 and § 1343(a).

Because we will consider the evidence submitted which is outside the pleadings, we will be treating Defendants' Doc. 40 Motion, in part, as one for summary judgment. See Mitchell v. Dodrill, 2010 WL 883720, * 5 (M.D. Pa.). We will consider Defendants' Doc. 40 Motion as one to dismiss with respect to their statute of limitations ("SOL") defense and their contention that Defendant HSA Coleman should be dismissed for lack of personal involvement. (Doc. 45, pp. 7-14).

III. Standards for Review.

1. Motion to Dismiss Standard

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008)). While a complaint need only contain "a short and plain statement of the claim," Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d 929. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.) "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court " 'is not bound to accept as true a legal conclusion couched as a factual allegation.' " Id., 127 S.Ct. at 1965 (quoted case omitted).

In resolving the motion to dismiss, we thus "conduct a two-part analysis."

Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a " 'plausible claim for relief.' " Id. at 211 (quoted case omitted). When appropriate, we may also rely on public records, such as court filings. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n. 5 (3d Cir.1999) (citing Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993)). The court may also consider "documents whose contents are alleged in the complaint and whose authenticity no party questions," even though they "are not physically attached to the pleading ..." Pryor v. National Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir.2002).

2. Summary Judgment Standard

A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed. Rules of Civ. Pro. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. F.R.C.P. 56( c ). An issue of fact is "genuine" only if a reasonable jury, considering the evidence presented, could find for the nonmoving ...


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