United States District Court, S.D. Illinois
MARLON O. GILARD, # 04420-025, Plaintiff,
UNITED STATES of AMERICA, Defendant.
MEMORANDUM AND ORDER
Phil Gilbert United States District Judge
is a federal inmate currently incarcerated at the United
States Penitentiary in Marion. In this pro se
action, he seeks relief under the Federal Tort Claims Act for
medical malpractice of prison medical providers who failed to
properly treat him while he was incarcerated at the
FCI-Memphis, Tennessee. The complaint further indicates that
Plaintiff was treated negligently in the state of Kentucky
while in federal custody. He also invokes Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), as a basis
for his claim. This case is now before the Court for a
preliminary review of the complaint pursuant to 28 U.S.C.
§ 1915A, the Court is required to screen prisoner
complaints to filter out non-meritorious claims. See
28 U.S.C. § 1915A(a). The Court must dismiss any portion
of the complaint that is legally frivolous, malicious, fails
to state a claim upon which relief may be granted, or asks
for money damages from a defendant who by law is immune from
such relief. 28 U.S.C. § 1915A(b).
action or claim is frivolous if “it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an
objective standard that refers to a claim that “no
reasonable person could suppose to have any merit.”
Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir.
2000). An action fails to state a claim upon which relief can
be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The claim of entitlement to relief must cross
“the line between possibility and plausibility.”
Id. at 557. Conversely, a complaint is plausible on
its face “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).
Although the Court is obligated to accept factual allegations
as true, see Smith v. Peters, 631 F.3d 418, 419 (7th
Cir. 2011), some factual allegations may be so sketchy or
implausible that they fail to provide sufficient notice of a
plaintiff's claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Additionally, Courts “should not
accept as adequate abstract recitations of the elements of a
cause of action or conclusory legal statements.”
Id. At the same time, however, the factual
allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
these standards, the Court finds that portions of
Plaintiff's claim survive threshold review under §
introduction to his complaint, Plaintiff asserts that Dr.
Edna Prince, a physician at the FCI-Memphis, neglected his
medical care. As a result, he required skin grafts on his
left hand and suffered disfiguration of the hand, severe
pain, and blood clots. These problems were still ongoing as
of the date he filed this action (May 9, 2016) (Doc. 1, p.
1). In the body of his narrative, Plaintiff mentions several
other prison medical providers who also failed to properly
treat him during his confinement at the Federal Medical
Center in Lexington, Kentucky, and describes alleged
malpractice that occurred during surgery conducted at the
University of Kentucky (“UK”) Hospital in
states that in January 2007, he had surgery on his leg to
replace a femoral artery (Doc. 1, p. 3). He had previously
suffered a gunshot wound. In March 2009, while Plaintiff was
incarcerated at FCI-Memphis, he began having numbness,
swelling, and itching in his foot. Between March 2009 and
September 2013, Dr. Prince treated Plaintiff as if he had a
back problem, and failed to address the issues with poor
circulation in his leg.
approximately February 2013, Plaintiff was transferred to the
Federal Medical Center in Lexington, Kentucky (Doc. 1, p. 4).
He told doctors there about the numbness in his foot, as well
as swelling, itching, and problems from standing for long
periods of time. Dr. Carey did not check further into these
problems, but gave Plaintiff a pass for soft shoes and no
prolonged standing. Plaintiff continued to request medical
attention from other practitioners while his leg pain spread
from his foot to his calf and quadriceps. He became unable to
walk more than a few minutes without severe pain. Plaintiff
alerted DPT Brenner that he had been warned by his original
surgeon to report the symptoms he was having, as they could
indicate blood clots. However, DPT Brenner dismissed
weeks went by, during which P.A. Kirby and Dr. Tavakoli
examined Plaintiff for blood clots, but took no action. DPT
Brenner saw Plaintiff again, whereupon he notified other
staff that Plaintiff had a vascular problem. However, DPT
Brenner deferred action on the matter until he returned from
was eventually referred to the UK Hospital, and was told that
he had a problem with the artery that had been replaced in
his right leg (Doc. 1, p. 7). A scan on September 23, 2013,
confirmed that Plaintiff had a blood clot in his knee.
September 24, 2013, Plaintiff underwent surgery on his leg at
the UK Hospital (Doc. 1, p. 3). When he awoke from the
surgery, he told doctors that he had severe pain in his left
hand, where an arterial line had been put in (Doc. 1, p. 8).
Plaintiff's left arm and hand swelled to three times its
normal size. He made several attempts to alert medical staff
to the severity of his pain, but doctors responded that it
was normal, and failed to examine him. When the doctors did
not respond to the nurses' calls for attention, two
nurses removed the line from his arm in order to save the
limb. Plaintiff was returned to surgery, where staff
“cut a huge gash” in Plaintiff's arm to
reduce the swelling.
October 10 or 11, 2013, Plaintiff had another surgery to
place a skin graft on his left arm (Doc. 1, p. 9). At the
time he filed the complaint, Plaintiff stated he does not
have any feeling in the fingertips of his left hand, and
cannot fully straighten that arm. He also has scarring on his
left leg where the skin was removed for the graft (Doc. 1, p.
claims that he still has blood clots in his leg, despite the
surgery (Doc. 1, p. 12). On May 9, 2016, he saw a doctor at
the Heartland Regional Hospital in Marion. He was told that
the blood clot in his right knee is spreading or branching
seeks monetary damages for the negligence of the medical
staff at FCI-Memphis, FMC-Lexington, and the UK Hospital.
complaint, Plaintiff asserts that “It would be futile
to, exhaust administrative remedies, because this is a matter
for, the United States District Court to resolve” (Doc.
1, p. 2). He attaches 384 pages of exhibits to the complaint,
nearly all of which consist of medical records (Docs. 1-1,
1-2, 1-3, 1-4). Nowhere among the exhibits does Plaintiff
include a copy of any administrative grievance or tort claim
filed with the Bureau of Prisons.
Review Pursuant to 28 U.S.C. § 1915A
on the allegations of the complaint, the Court finds it
convenient to divide the pro se action into the following
counts. The parties and the Court will use these designations
in all future pleadings and orders, unless otherwise directed
by a judicial officer of this Court. The designation of these
counts does not constitute an opinion as to their merit. Any
other claim that is mentioned in the complaint but not
addressed in this Order should be considered dismissed
Count 1: Medical negligence and malpractice
claims against Defendant United States of America under the
Federal Tort Claims Act, for the actions of its employee(s)
at the FCI-Memphis, Tennessee, who delayed and/or failed to
render treatment of Plaintiff's foot and leg ...