Cardona-Sandoval v. Ledezma

JOAQUIN CARDONA-SANDOVAL, Plaintiff

v.MR. LEDEZMA, et al., Defendants

CIVIL NO. 07-1004 (JAG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Dated: June 15, 2011

OPINION AND ORDER

GARCIA-GREGORY, D.J.

Before the Court is Mr. Ledezma ("Ledezma"), Dr. Rivera, Dr. Medina ("Medina"), Mr. Rivera, Prison Guards and Prison Staff's (collectively, "Defendants") Motion to Dismiss. (Docket No. 43). For the reasons set forth below, the motion is hereby GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

On September 18, 2006, Plaintiff Joaquin Cardona Sandoval ("Plaintiff") filed the instant pro se complaint in the District Court for the Northern District of Ohio. (Docket No. 5-2). The complaint alleges that the U.S. Attorney General, the BOP Director, and the aforementioned federal officials and employees of the Bureau of Prisons ("BOP") Metropolitan Detention Center("MDC") in Guaynabo, Puerto Rico, acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment.

In the complaint, Plaintiff alleges that on March 22, 2005, he sent a "cop-out"¹ request to Dr. Rivera, asking for medical treatment for pain around his left pectoral. (Docket No. 5-2, Exhibit 1). He claims that he had previously submitted two similar requests that went unanswered. Plaintiff avers that on March 23, 2005, he received a response from Dr. Rivera stating that he had been scheduled for a medical appointment the following week. However, Plaintiff claims that he never saw his name on the "call out"² list for medical appointments. Plaintiff alleges that Prison Staff in his unit had the responsibility to inform Plaintiff of his appointment time, but failed to do so.

Plaintiff subsequently sought administrative remedies against the MDC medical department through a series of formal grievances and requests. (Docket No. 5-2, Exhibits A-H). On July 11, 2005, Plaintiff submitted a BOP form BP-9 "Request for Administrative Remedy," alleging that the "Medical Department [had] been deliberately indifferent towards [his] serious medical needs." (Docket No. 5-2, Exhibit A). On August 26, 2005,Plaintiff sent a request to his unit manager for an update on the status of the BP-9 grievance. On August 29, 2005, the unit manager issued a response stating that there was no record of Plaintiff's BP-9. (Docket No. 5-2, Exhibit B). Plaintiff alleges that the BP-9 form was not received because Mr. Rivera did not file it.

On August 29, 2005, Plaintiff submitted a second BP-9. (Docket No. 5-2, Exhibit C). On September 28, 2005, MDC Warden Ricardo E. Chávez ("Chávez") issued a response stating that Plaintiff had already received treatment for his condition on August 1, 2005. (Docket No. 5-2, Exhibit D). Plaintiff claims that on August 1, 2005 he received Ibuprofen, but that no x-ray or other medical examinations were performed.

On October 10, 2005, Plaintiff appealed Chávez's determination by submitting a BP-10 form to the Regional Director of the BOP. (Docket No. 5-2, Exhibit E). In his appeal, Plaintiff indicates that he has intensive pain around his left pectoral and that he fears that the condition may be cancer-related. On November 14, 2005, the Regional Director replied to the appeal and stated that Plaintiff had been scheduled for a medical evaluation on March 28, 2005, shortly after his cop-out request, but that he failed to report for the appointment. (Docket No. 5-2, Exhibit F). In this reply, the Regional Director reminded Plaintiff that he had received various medicalevaluations since the missed appointment and made no complaints related to his pectoral. Furthermore, the Regional Director stated that on November 2, 2005, Plaintiff underwent a medical evaluation of the area which did not yield any objective findings. The Regional Director determined that there was no evidence supporting Plaintiff's allegations. Finally, the Regional Director gave instructions as to how Plaintiff could appeal this determination to the BOP Office of General Counsel in Washington, D.C.

As stated above, Plaintiff attests that he left MDC Guaynabo on December 2, 2005, without receiving effective medical treatment for his still-painful condition. On February 23, 2006, Plaintiff submitted a final administrative appeal to the BOP. (Docket No. 5-2, Exhibit G). On April 3, 2006, the office of National Inmate Appeals issued a denial of Plaintiff's appeal. (Docket No. 5-2, Exhibit H).

On September 18, 2006, Plaintiff filed the instant action in the United States District Court for the Northern District of Ohio. On December 26, 2006, the Honorable James S. Gwin dismissed with prejudice the claims against the Attorney General and the BOP Director. (Docket No. 5-3). Judge Gwin then found that the Northern District of Ohio was not the proper venue for Plaintiff's remaining claims. Namely, Judge Gwin held that because all of the events giving rise to the claims took placein Puerto Rico, the District Court for the Northern District of Ohio could not exercise personal jurisdiction over Defendants. As a result, Judge Gwin transferred the present case to this Court. (Docket No. 5).

On May 8, 2007, the remaining Defendants filed the Motion to Dismiss now before the Court. Defendants' dismissal request is premised on the following grounds: (1) Plaintiff's claims are time-barred; (2) the claims against Ledemza and Dr. Rivera should be dismissed because respondeat superior liability does not apply in actions brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); (3) the claims against federal employees in their official capacities should be dismissed because they are barred by sovereign immunity; (4) all claims should be dismissed on the grounds that Plaintiff's complaint fails to state a Bivens claim because the allegations do not rise to the level of an Eighth Amendment violation; and, (5) all federal defendants are entitled to qualified immunity. (Docket No. 43). Plaintiff did not oppose the motion.

On June 29, 2009, the Court entered an Opinion and Order granting the Motion to Dismiss. (Docket No. 44). Plaintiff appealed the judgment because the motion was never notified to him. The First Circuit vacated the judgment and remanded the case for it found that, even though this Court had no way ofknowing about the notice problem before it disposed of the motion, there was no indication in the docket that Plaintiff had been properly notified and Defendants were unable to provide a copy of the certified mail receipt. (Docket No. 53).

After receiving the First Circuit's mandate on November 3, 2010, the Court granted Plaintiff until November 29, 2010 to amend his complaint and/or file his opposition to the Motion to Dismiss. (Docket No. 54). Plaintiff requested an extension of time to comply with the order and his request was granted. (Docket Nos. 55, 56). However, instead of amending his complaint or opposing the motion, Plaintiff filed a Motion Requesting the Appointment of Counsel. (Docket No. 57). The Court then ordered him to comply with Local Rule 83L in order to properly evaluate his request for an attorney. After receiving his request in accordance with the Local Rules, the Court ordered the Clerk to designate an attorney from the panel of pro bono attorneys. (Docket No. 63). Counsel was thus appointed on February 3, 2011. (Docket No. 64).

On April 20, 2011, the appointed attorney requested withdrawal from the case and the appointment of another pro bono counsel for Plaintiff. The Court granted the attorney leave to withdraw, but denied the appointment of a second pro bono attorney. (Docket No. 70).

Several days before the appointment of counsel took place, however, Plaintiff had filed a response to the Motion to Dismiss. (Docket No. 60). He argued that the Court must be less stringent in its application of the standards regarding motions to dismiss given that he is a pro se litigant and that, in any case, the allegations contained in the complaint are sufficient to survive Defendants' motion. He avers that he has suffered and continues to suffer irreparable harm due to Defendants' deliberate indifference to his constitutional rights.

STANDARD OF REVIEW

In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court held that to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege "a plausible entitlement to relief." Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95-96 (1st Cir. 2007) (quoting Twombly, 550 U.S. at 559). While Twombly does not require heightened fact pleading of specifics, it does require enough facts to "nudge [plaintiffs'] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Accordingly, in order to avoid dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555.

In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court upheld Twombly and clarified the principles that mustguide this Court's assessment of the adequacy of the plaintiff's pleadings when evaluating whether a complaint can survive a Rule 12(b)(6) motion. See Iqbal, 129 S.Ct. at 1949-50. The court must identify any conclusory allegations in the complaint as such allegations are not entitled to an assumption of truth. Id. at 1949. "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). A claim has facial plausibility when the pleaded facts allow the court to reasonably infer that the defendant is liable for the specific misconduct alleged. Id. at 1949, 1952. Such inferences must be more than a sheer possibility and at least as plausible as any obvious alternative explanation. Id. at 1949, 1951. Plausibility is a...