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Kessler v. Vaughn

United States District Court, E.D. Virginia, Alexandria Division

July 18, 2016

Windsor W. Kessler, III, Plaintiff,
Mr. Vaughn, et al., Defendants.


          Gerald Bruce Lee United States District Judge.

         THIS MATTER comes before the Court upon review of plaintiffs amended complaint. Windsor W. Kessler, III, a federal inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging several violations of his constitutional rights. In deference to plaintiffs pro se status, this Court construes his complaint as a civil action seeking relief pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388(1971). Plaintiff has applied to proceed ]n forma pauperis in this action. Upon review of plaintiff s amended complaint, plaintiffs claim against the United States of America for a violation of Federal Tort Claims Act ("FTCA") will proceed, and plaintiffs claims against all other defendants must be dismissed, pursuant to 28 U.S.C. § 1915A(b)(l), for failure to state a claim.[1]


         Plaintiff names over twenty (20) individuals as defendants in his amended complaint. Plaintiff specifically alleges that on or about November 14, 2012, he broke his tibia and fibula while exercising in the recreation yard at a prison facility in New York. Dkt. No. 31, ¶ 1. Defendants employed by the New York prison arranged for plaintiff to be transported to a nearby hospital, at which point plaintiff was prescribed two, ten milligram Percocet pills to be taken every 4-6 hours and informed by hospital staff he would need surgery "within days." Id. ¶¶ 3-4. Plaintiff asserts that back at his New York prison, his prescription was changed to five milligram Percocet pills, and also that defendants negligently delayed his surgery date until November 23, 2012. Id. ¶¶ 5, 7. Plaintiff further alleges that he did not receive adequate post-surgical care at the New York prison, and that as a result of poor care, he needed "a second surgery." Id. ¶¶ 11-19. After his second surgery, plaintiff was transferred by bus to another facility, and he alleges that he was treated improperly in New York and Pennsylvania during the transfer. Id. ¶ 22.

         On March 20, 2013, plaintiff arrived at FCI Petersburg Medium in Virginia. Id. ¶ 23. Upon his arrival, plaintiff claims that defendants employed by FCI Petersburg improperly assigned him to a middle bunk bed and improperly denied him an appropriate ankle brace for his injured foot. Id. ¶¶ 25, 27. Plaintiff allegedly then reinjured his foot at FCI Petersburg, and he was again dissatisfied with the follow-up care and alleged lack of treatment for his foot injury. Id. ¶¶ 28-32. Plaintiff asserts that on January 10, 2014, he had another surgery to remove the screws and plates from his first surgery, and because of defendants' alleged negligence in the course of his post-surgical care and treatment, plaintiff developed MRSA. Id. ¶ 40.

         Additionally, plaintiff alleges that defendants falsified information on an incident report related to plaintiff allegedly fighting with an undisclosed person on February 5, 2014 at FCI Petersburg. Id. ¶ 38. Plaintiff contends that instead of reviewing the incident report within five days as policy requires, defendants delayed plaintiffs hearing until March 2014, and upon a guilty finding, plaintiff was transferred into the Special Housing Unit ("SHU"). Id. ¶¶ 38-39.

         Finally, plaintiff claims that between October 2014 and May 2015, he experienced serious joint and stomach pain, which defendants at FCI Petersburg repeatedly ignored. Id. ¶¶ 53-56. Then in September 2015, upon review of his medical records, plaintiff realized that his Bilirubin levels had been increasing over time. Id. ¶ 57. As a result of those rising levels, plaintiff alleges that he is in need of "immediate testing, " which defendants have allegedly denied him by postponing. Id. ¶ 59.

         Plaintiffs Amended Complaint consists of claims for cruel and unusual punishment in violation of Plaintiff s Eighth Amendment rights, violation of Plaintiff s right to due process under the Fourteenth Amendment, and violation of the Federal Tort Claims Act. Id. at Sec. V. He seeks monetary and injunctive relief. Id. at Sec. VI.


         Plaintiffs amended complaint consists of numerous allegations of negligence and constitutional violations that occurred in Brooklyn, New York and Philadelphia, Pennsylvania. Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, dismissal is proper when a district court is unable to exercise personal jurisdiction over a party. Fed. R. Civ. Pro. 12(b)(2). The modem approach for personal jurisdiction requires the Defendant to have established minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice. See Int'l Shoe Co. v. Washington. 326 U.S. 310, 316 (1945). Plaintiffs Amended Complaint alleges no facts relevant to establishing that the named defendants who allegedly violated his rights in New York or Pennsylvania had contacts with Virginia, nor that any of the alleged unlawful conduct of those defendants occurred within Virginia. Because this Court only maintains personal jurisdiction against defendants at FCI Petersburg, the Court is unable to hear all of plaintiff s claims against the New York and Pennsylvania defendants regarding the first surgery, the alleged inadequate medical treatment, and the transfer.


         To state a claim under § 1915A(b)(l), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." labal. 556 U.S. at 663. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to meet this standard, id at 678, and a plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative level-----" Twombly, 550 U.S. at 55.


         In his amended complaint, plaintiff appears to allege several employees at FCI Petersburg failed to provide him with adequate medical treatment. To state a claim of improper medical treatment that rises to a constitutional violation, a plaintiff "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v.Gamble, 429 U.S. 97, 105 (19761: see also Staples v. Va. Dep't of Corr., 904 F.Supp. 487, 492 (E.D. Va. 1995). Thus, a plaintiff must satisfy two distinct elements to show that he is entitled to relief. First, he must provide evidence to show that he suffered from a sufficiently serious medical need. A medical need is "serious" if it has been diagnosed by a physician as mandating medical treatment, or if a lay person would recognize the need for medical treatment. See Iko v. Shreve,535 F.3d 225, 241 (4th Cir. 2008) (quoting Henderson v. Sheahan. 196 F.3d 839, 846 (7th Cir. 1999)): see also Cooper v. Dyke, 814 F.2d 941, 945-46 (4th Cir. 1987) (determining that intense pain from an untreated bullet wound is sufficiently serious); Brown v. District of Columbia, 514 F.3d 1279, 1284 (D.C. Cir. ...

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