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Gilard v. United States

United States District Court, S.D. Illinois

October 12, 2016

MARLON O. GILARD, # 04420-025, Plaintiff,


          J. Phil Gilbert United States District Judge

         Plaintiff 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.

         Under § 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).

         An 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).

         Applying these standards, the Court finds that portions of Plaintiff's claim survive threshold review under § 1915A.

         The Complaint

         In the 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 Lexington.

         Plaintiff 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.

         In 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 Plaintiff's concerns.

         Several 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 vacation.

         Plaintiff 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.

         On 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.

         On 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. 10).

         Plaintiff 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 off.

         Plaintiff seeks monetary damages for the negligence of the medical staff at FCI-Memphis, FMC-Lexington, and the UK Hospital.

         In the 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.

         Merits Review Pursuant to 28 U.S.C. § 1915A

         Based 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 without prejudice.

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 ...

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