United States District Court, E.D. Virginia, Alexandria Division
Windsor W. Kessler, III, Plaintiff,
Mr. Vaughn, et al., Defendants.
Bruce Lee United States District Judge.
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
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.
March 20, 2013, plaintiff arrived at FCI Petersburg Medium in
Virginia. Id. Â¶ 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.
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.
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.
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.
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
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.
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. ...