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Champion v. Dicocco

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

February 5, 2018

DOCTOR M. DICOCCO, et al., Defendants.


          Robert E. Payne Senior United States District Judge

         Robert Champion, a federal inmate proceeding pro se and in forma pauperis, filed this action seeking relief under Bivens[1]and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671, et seq. The matter is before the Court on the Motion to Dismiss filed by Defendant Seven Corners, LLC ("Seven Corners"). (ECF No. 24.) For the reasons set forth below, the Motion (ECF No. 24) will be granted.


         "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of H.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)).

         In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level, " id. (citation omitted), stating a claim that is "plausible on its face, " rather than merely "conceivable." Id. at 570. "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." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)).

         Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).


         A. Champion's Allegations

         Champion is a federal prisoner, currently incarcerated at the Federal Correctional Complex, in Petersburg, Virginia ("FCC Petersburg"). (Compl. 1, ECF No. I.)[2] "In late 2013, Plaintiff's colon became infected while on house arrest under the custody of the Federal Government. On December 24, 2013, Plaintiff had surgery to remove the infection while on federal house arrest at Roanoke Valley Hospital . . . ." (Id. at 8.) The surgeon informed Champion that the surgery would have to be completed at a later date because of complications. (Id.) Due to the fact that the surgery was not completed, Champion was left with a colostomy bag. (Id.) The surgeon informed Champion that he would be able complete the surgery so that Champion could have "anatomically correct bowel movements once [Champion] healed and lost weight." (Id. at 8-9.)

         On April 28, 2014, Champion was moved to FCC Petersburg. (Id. at 9.) Despite the fact that Champion has healed and lost weight, doctors and officials at FCC Petersburg have not performed surgery to remove the colostomy bag. (Id. at 9-13.)

         With respect to Seven Corners, the sum of Champion's allegations are as follows:

On February 23, 2016 Doctor Piscatelli was notified by Seven Corners that Dr. Raydue want[ed] to do another evaluation tomorrow. Defendant Seven Corners, LLC is the appointment scheduling contractor [for FCC Petersburg].
On February 24, 2016, Dr. Raydue ordered a third CT scan and another colonoscopy due to the amount of time that had elapsed since the last CT scan ...

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