United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, District Judge.
Before the court is the report and recommendation of Judge Carlson, (Doc. 10), recommending that the latest complaint of pro se plaintiff, Melvin Turner, an inmate at the Federal Correction Complex, Coleman, Florida, be dismissed with prejudice for failure to state a claim. This case arises from a complaint, (Doc. 1), filed on March 18, 2015. On April 14, 2015, plaintiff filed an in forma pauperis motion. (Doc. 6). Plaintiff names two defendants, Dr. Rafael Lopez, a private urologist contracted by the Bureau of Prisons ("BOP"), who performed transurethral resection of the prostate ("TURP") surgery on plaintiff on June 21, 2011, when he was confined at the United States Penitentiary, Cannan, Pennsylvania, and the United States. Plaintiff alleges that "the procedure was incorrect" causing unwanted side effects, such as urinary incontinence and erectile dysfunction, and required two subsequent surgeries "to repair Dr. Lopez's incompetency." Plaintiff raises an Eighth Amendment "deliberate indifference" claim. As such, his case is a Bivens  civil rights action pursuant to 28 U.S.C. §1331. Plaintiff filed line-by-line objections to the report on June 5, 2015. (Doc. 11). Plaintiff attached a four-page proposed amended complaint dated February 24, 2015 to his objections, (Doc. 11, at 18-22), as well as a proposed three-sentence Certificate of Merit which plaintiff signed, (Doc. 11, at 22). On June 18, 2015, plaintiff filed the identical first page of his proposed amended complaint with over 80 pages of his medical records attached. (Doc. 12). As the original complaint is time-barred, the United States is not a proper defendant in a Bivens action, and no discernible Eighth Amendment claim is stated against Dr. Lopez, the court adopts the report of Judge Carlson and overrules plaintiff's objections.
I. STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) ( citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) ( citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining that judges should give some review to every report and recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, not accept, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.
As Judge Carlson's report indicates, the complaint relates to constitutional claims which occurred more than two years before it was filed and it is barred by the two year statute of limitations applicable to a Bivens action in Pennsylvania. See Napier v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080, 1087 n. 3 (3d Cir. 1988) ( Bivens actions governed by forum state's statute of limitations for personal injury actions); see also 42 Pa. Cons.Stat. Ann. §5524 (two-year statute of limitations for personal injury actions in Pennsylvania); Bullock v. Buck, ___ Fed.Appx. ____, 2015 WL 1951895, *2 (3d Cir. May 01, 2015). Also, as Judge Carlson indicates, "a district court may sua sponte dismiss a complaint under §1915(e) where the defense is obvious from the complaint and no development of the factual record is required." Smith v. Delaware County Court 260 F.Appx. 454, 455 (3d Cir. 2008) (citations omitted).
Plaintiff objects to the recommendation that his complaint should be dismissed as time barred and argues that the two surgeries required to correct the June 2011 surgery of Dr. Lopez, the first corrective surgery was over two years later and the second one was an additional seven months, renders his claim as timely under the continuing violations doctrine. Under Pennsylvania's discovery rule, the statute of limitations begins to run when the plaintiff has discovered his injury or, in the exercise of reasonable diligence, should have discovered his injury. Doe v. Kohn, Nast & Graf, P.C., 866 F.Supp. 190 (E.D.Pa. 1994). It is abundantly clear in the present case, and readily apparent from plaintiff's complaint, that he discovered, or should have discovered, his alleged constitutional claims regarding Dr. Lopez's surgery shortly after the surgery as he concedes he "did know damage had been caused every time [he] needed to use the restroom." (Doc. 11, at 8). Simply because plaintiff required two subsequent surgeries to correct the alleged damage caused by Dr. Lopez, does not show that plaintiff's constitutional claim against Dr. Lopez falls under the continuing violations doctrine.
The "continuing violation doctrine" is an "equitable exception to the timely filing requirement." Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001). The Court in Arneault v. O'Toole, 864 F.Supp.2d 361, 391-392 (W.D. Pa. 2012), stated:
Under the continuing violation doctrine, as applied by the Third Circuit Court of Appeals, "when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period." Id. ( quoting Brenner v. Local 514, United Broth. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)). The doctrine will apply only where the plaintiff can establish that the defendant's conduct is "more than the occurrence of isolated or sporadic acts." Id . ( quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995)).
This inquiry involves consideration of three factors, to wit: (1) subject matter- i.e., whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency- i.e., whether the acts are recurring or more in the nature of isolated incidents; and (3) the degree of permanence- i.e., whether the act had a degree of permanence such that it should have triggered the plaintiff's awareness of and duty to assert his rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. Cowell, supra, at 292 (citing West, 45 F.3d at 755 n. 9). Of these, the third factor is the most important. Id. (citing Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983)). The continuing violation doctrine recognizes that there may be situations where the illegality of a defendant's conduct becomes apparent only over a period of time and, in such cases, an otherwise diligent plaintiff should not be penalized for his or her delay in filing suit. See Foster v. Morris, 208 Fed.Appx. at 177-78 (recognizing the doctrine as "an equitable exception to a strict application of a statute of limitations where the conduct complained of consists of a pattern that has only become cognizable as illegal over time.").
On the other hand, where the conduct consists of a discreet and actionable injury of which a reasonable plaintiff would have been aware, the doctrine has no application. See Seawright v. Greenberg, 233 Fed.Appx. 145, 149 (3d Cir. 2007) (continuing violations theory does not apply in cases where the plaintiff is aware of the injury at the time it occurred) (citation omitted); Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n. 6 (3d Cir. 2003) (same) ( citing Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986)). Thus, "causes of action that can be brought individually expire with the applicable statute of limitations period." O'Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006). In short, "if prior events should have alerted a reasonable person to act at that time the continuing violation theory will not overcome the relevant statute of limitations." King v. Township of East Lampeter, 17 F.Supp.2d 394, 416 (E.D.Pa. 1998), aff'd, 182 F.3d 903 (3d Cir. 1999) (TABLE, NO. 98-1806). See also MFS, Inc. v. Twp. of South Annville, Civil Action No. 1:05-CV-1371, 2006 WL 3254535 at *4 (M.D.Pa. Nov. 9, 2006) ( quoting King ).
Judge Carlson details why the court should dismiss, as time barred, plaintiff's constitutional claims regarding the events which occurred with respect to his June 2011 surgery and why the continuing violations theory does not apply. Specifically, Judge Carlson, (Doc. 10, at 11), states:
In this case, Turner complains about a June 2011 medical mishap. Turner has long attached a high degree of significance and permanence to the events set forth in this complaint as evidenced by his prior abortive filings in 2013 and 2014. Thus, Turner recites well-pleaded facts in his complaint which clearly reveal that, to the extent these events entailed violations of the plaintiff's constitutional rights, those violations were known and recognized by Turner when they first occurred, almost four years ago. Thus, these events plainly had the degree of significance and permanence which should have triggered the plaintiff's awareness of his duty to assert his rights. Therefore, in this case a straightforward application of the two-year statute of limitations also compels dismissal of this action as untimely.
Since plaintiff was clearly aware of his alleged injuries at the time they occurred after his June 2011 surgery, continuing violations theory does not apply in this case. The subsequent surgeries plaintiff had do not implicate the continuing violation theory since his condition after his June 2011 surgery should have alerted a reasonable person to act at that time.
Further, Judge Carlson explains that the United States is not a proper party defendant in a constitutional tort action bought under Bivens and such claims against it are barred by sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996 (1994); Ky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099 (1985). Plaintiff objects to this finding and he states that the United States should still be a defendant since "the scheduling of the correctional operations made a prolonged difference in the pain and suffering". (Doc. 11, at 10). Even if there was a delay in scheduling the two subsequent surgeries to correct the alleged damage caused by Dr. Lopez, this does not permit plaintiff's constitutional claims against the United States to proceed.
With respect to Dr. Lopez, Judge Carlson correctly states that "Turner has not recited sufficient well-pleaded facts which would give rise to an Eighth Amendment claim against Dr. Lopez. Turner's latest complaint simply alleges that Dr. Lopez's surgical technique was incorrect.'" (Doc. 10, at 17).
"To establish a claim for relief under Bivens, a plaintiff must show: (1) that the alleged misconduct was committed by a federal agent; and (2) that as a result, he was deprived of a right secured by the Constitution or laws of the United States." Davis v. Holder, 994 F.Supp.2d 719, 725 (W.D.Pa. 2014) (citation omitted). The Third Circuit has not yet decided if a Bivens action can be brought against a private individual such as Dr. Lopez who was contracted by a federal agency. See Franco-Calzada v. U.S., 375 Fed.Appx. 217, 219 (3d Cir. 2010); but see Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 71-72, 74, 122 S.Ct. 515 (2001) (the Supreme Court declined to extend the Bivens remedy to claims against private corporations operating under federal contracts); Minneci v. Pollard, ___ U.S. ____, 132 S.Ct. 617, 626 (2012) (The Supreme Court found that a Bivens action did not exist in a case in which "a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care at issue here)"); Bob v. Kuo, 387 Fed.Appx. 134, 136 (3d Cir. 2010) (the Third Circuit held that a plaintiff cannot bring a Bivens action against a private corporation). Thus, the Supreme Court held that a Bivens remedy does not lie against employees of a private prison with respect to an Eighth Amendment claim. See Davis v. Holder, 994 F.Supp.2d at 724. As such, plaintiff's attempt to infer a Bivens claim against Dr. Lopez, a private medical provider contracted by the BOP, is suspect especially since the doctor's conduct allegedly amounts to an Eighth Amendment violation and the conduct is within the scope of state tort law. See Minneci v. Pollard, ___ U.S., at ____, 132 S.Ct. at 626. Regardless, Judge Carlson correctly finds that plaintiff Turner fails to state a cognizable constitutional claim against Dr. Lopez.
In order to establish an Eighth Amendment medical claim, a plaintiff must show "(I) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, "if unnecessary and wanton infliction of ...