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May v. Cash

United States District Court, Western District of Pennsylvania

April 21, 2014

EDWARD MAY, Plaintiff,
MICHAEL CASH, D.O., et al., Defendants.

Kim R. Gibson United States District Judge




For the reasons that follow, it is respectfully recommended that the Motion to Dismiss or, in the alternative, Motion for Summary Judgment filed by Defendants Michael Cash, D.O., Steven Burk, P.A., Jason Kopera, R.N., Norman Weidlich, Jeannette Nagy, pharmacist, and Anthony Pazcoquin (collectively referred to as the “Federal Defendants”) be granted and that this case be dismissed with prejudice.


A.Relevant and Material Facts

Plaintiff, Edward May, is a federal prisoner incarcerated at the Federal Correctional Institution at Loretto (“FCI-Loretto) in Loretto, Pennsylvania. The instant case commenced with the receipt of the complaint on March 27, 2013. Plaintiff was granted leave to proceed in forma pauperis and the complaint was filed. On July 2, 2013, Plaintiff filed an Amended Complaint (ECF No. 16), which remains the operative complaint.

The Amended Complaint alleges violations of Plaintiff’s rights under the First, Fourth, Sixth, and Eighth Amendments to the Constitution pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Named as Defendants are Michael Cash, D.O., Steven Burk, P.A., Jason Kopera, R.N., Normal Weidlich, Jeannette Nagy, pharmacist, Anthony Pazcoquin (collectively referred to as the “Federal Defendants”), and John Shedlock, D.O, a non-Bureau of Prisons contract optometrist.[1]

Specifically, Plaintiff alleges that Defendants have subjected him to deliberately indifferent medical care with regard to his chronic glaucoma and chronic hypertension issues. He also alleges that Defendant Weidlich “intimidated” him and filed false reports in retaliation for Plaintiff’s complaints. As relief, Plaintiff requests the following damages against the Federal Defendants: $4.75 million against defendants Cash and Burk, jointly and severally; $2 million against defendant Weidlich; $250, 000 against defendant Kopera; and $1 million against defendants Nagy and Pazcoquin, jointly and severally. Plaintiff also seeks relief “as necessary to assure future such actions by the defendants or any other medical practitioners will carry a certain cost for impeding federal prisoners’ rights medical care.” Amended Complaint at Prayer.

B. Background Information

On April 29, 2011, Plaintiff pled guilty in the United States District Court for the Eastern District of Michigan to fifty-nine (59) counts of Mail Fraud, in violation of 18 U.S.C. § 1341. On October 4, 2011, Plaintiff was sentenced to a 192–month term of imprisonment, to be followed by a three-year term of supervised release. See Criminal Docket for Case No. 2:09-cr-20482 (E.D. Michigan). Assuming Plaintiff receives all good conduct time available to him, his projected release date is December 5, 2025. (ECF No. 47-2.)

C. Standard of Review

The Federal Defendants have filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment. They move to dismiss the amended complaint for lack of subject matter jurisdiction and for failure to state a claim. They also move for summary judgment because Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit.

1. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A motion to dismiss pursuant Rule 12(b)(1) challenges the existence of a federal court’s subject matter jurisdiction. “When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.” Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 191 n.4 (3d Cir. 2011) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). In considering a Rule 12(b)(1) motion, “the district court may not presume the truthfulness of plaintiff’s allegations, but rather must ‘evaluat[e] for itself the merits of [the] jurisdictional claims.’” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).

2. Motion to Dismiss For Failure to State a Claim

A motion to dismiss pursuant Rule 12(b)(6) challenges the legal sufficiently of the complaint. When reviewing a motion to dismiss, the Court must accept all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Burtch v. Milberg Factors, Inc., 62 F.3d 212, 220 (3d Cir. 2011), cert. denied, ___ U.S. ___, 131 S.Ct. 1861 (2012) (citing In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010)). However, as the Supreme Court of the United States made clear in Bell Atlantic Corp. v. Twombly, such “[f]actual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. 554, 555 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that, while the Complaint need not contain detailed factual allegations, it must contain more than a “formulaic recitation of the elements” of a constitutional claim and must state a claim that is plausible on its face) (quoting Twombly, and providing further guidance on the standard set forth therein).

To determine the legal sufficiency of a complaint after Twombly and Iqbal, the United States Court of Appeals for the Third Circuit instructs that a district court must make a three-step approach when presented with a motion to dismiss for failure to state a claim. Santiago v. Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir. 2010) (noting that although Iqbal describes the process as a “two-pronged approach, ” it views the case as outlining three steps) (citing Iqbal, 556 U.S. at 675). First, “the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.” Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the court “should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, ‘”where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.’” Id. (quoting Iqbal, 556 U.S. at 679).

Courts generally consider the allegations of the complaint, attached exhibits, and matters of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in the complaint also may be considered if the plaintiff’s claims are based upon those documents. Id. (citations omitted). In addition, a district court may consider indisputably authentic documents without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Lum v. Bank of America, 361 F.3d 217, 222 (3d Cir. 2004) (in resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider “the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.”).

Moreover, the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint -regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).

Finally, a court must employ less stringent standard when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dlunos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).

3. Motion for Summary Judgment

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the record indicates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element to that party's case and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence or the lack thereof that demonstrates the absence of a genuine issue of material fact.

National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The inquiry, then, involves determining “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251–52). If a court, having reviewed the evidence with this standard in mind, concludes that “the evidence is merely colorable . . . or is not significantly probative, ” then summary judgment may be granted. Anderson, 477 U.S. at 249–50. Finally, while any evidence used to support a motion for summary judgment must be admissible, it is not necessary for it to be in admissible form. See Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324; J.F. Feeser, Inc., v. Serv–A–Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990).

D. Discussion and Analysis[2]

Plaintiff's claims are brought pursuant to Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971), wherein the United States Supreme Court implied a right of action directly under the Fourth Amendment to the United States Constitution to allow a victim of an unconstitutional search to sue federal officials personally for damages. “ ‘Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.’ ” Hartman v. Moore, 547 U.S. 250, 255 n. 2 (2006) (quoting Carlson v. Green, 446 U.S. 14, 19, (1980)). The United States Supreme Court's “authority to imply a new constitutional tort, not expressly authorized by statute, is anchored in [its] general jurisdiction to decide all cases ‘arising under the Constitution, laws, or treaties of the United States.’ ” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (quoting 28 U.S.C. ยง 1331). In order ...

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