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Johnson v. Prison Medical Provider

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

August 8, 2019

FRED L. JOHNSON, Plaintiff,


          John A. Gibney, Jr., Judge

         Fred L. Johnson, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42U.S.C. § 1983 action.[1] Johnson names as defendants: Niraj V. Kelore, Orthopedic ("Dr. Kelore"); Vincent Gore, Doctor ("Dr. Gore"); Mohammad Suddiqui, Doctor ("Dr. Suddiqui"); and, Prison Medical Provider.[2] The matter is before the Court on the Motions to Dismiss filed by Dr. Kelore, Dr. Suddiqui, and Dr. Gore, the Court's own review under 28 U.S.C. § 1915(e)(2), and Johnson's Motions for Declaratory Judgment. For the reasons stated below, the Motions to Dismiss (ECF Nos. 32, 36, 41) will be GRANTED, and Johnson's Motions for Declaratory Judgment (ECF Nos. 45, 46, 47) will be DENIED.


         Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon "an indisputably meritless legal theory," or claims where the "factual contentions are clearly baseless." Clay v. Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)), affd, 36 F.3d 1091 (4th Cir. 1994). The second standard is the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6).

         "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 N.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 plaintiffs 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," id. at 570, rather than merely "conceivable." Id. "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 Ad. Corp., 550 U.S. at 556). 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 will not act as the inmate's advocate and develop, sua sponte, statutory and constitutional claims that 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).


         In July of 2014, Johnson was confined in Deerfield Correctional Center. (Compl. 3, ECF No. I.)[3] During that month, Johnson "fell in the kitchen at Deerfield Correctional Center and informed the officer that was working in the kitchen of the fall, and at that time, he alerted medical what had happened." (Id.) Johnson "land[ed] on his shoulder," and "his collar bone and his rotary cuff gave away." (Id.) The doctors at Deerfield Correctional Center did not do "anything to fix the problem, not until almost (2) two years later."[4] (Id.)

         Johnson has "more problem[s] with it now [than] [he] had before they [did] the surgery, because now when [he] feel[s] the pain all they want [him] to do is [to] put in another request form and come to sick call." (Id.) "By the [in]adequacy of later treatment, [Johnson's] condition was damaged further," and there was a "delay for 19 months providing surgery." (Id. at 4.) Additionally, "[d]octors familiar with [Johnson's] painful condition... fail[ed] to inquire into and treat [Johnson's] pain, except by injection," and "[took] an 'easier but less efficacious' course of treatment." (Id.)

         Defendant Prison Medical Provider is "under (Anthem) which has been at all times, under contract with [the] Virginia Department of Corrections." (Id. at 2.) "Prison Medical Provider violated [Johnson's] Eighth Amendment right to medical care." (Id. at 4.)

         Defendants Dr. Kelore and Dr. Suddiqui are "doctor[s] employed by Deerfield Correctional Center." (Id. at 2.) Johnson "went to [Dr. Kelore] more than (6) six times and nothing was done to fix the problem, and by his action, [he] left [Johnson] with more problems now [than] before they work[ed] on it." (Id.) Johnson contends that Dr. Kelore "prolong[ed] the medical treatment, [which] has given [Johnson] more damage and now the use of his shoulder is weak and with no strength to hold something for a long period of time [and] instead [he] keep[s] dropping things." (Id.)

         Dr. Suddiqui did "treatment before he knew what the problem was and sent [Johnson] to physical therapy, and [Johnson] informed them that there was more pain [than] what was the actual complaint." (Id.) Additionally, "[o]nce [Johnson] informed the medical staff, they explain[ed] that it wasn't a medical emergency and that [Johnson] would have to put in for sick call to see the doctor. . . . [T]he doctor answer[ed] that [Johnson] had a frozen shoulder, but knew all the time what was wrong." (Id.)

         Defendant Dr. Gore is a "doctor employed by Greensville Correctional Center." (Id. at 2-3.) Dr. Gore "order[ed] shots to [Johnson's] shoulder instead of trying to fix the problem [and] all they [did] was to cover it up ...." (Id.)

         Based on the foregoing allegations, the Court construes Johnson to raise the following Eighth Amendment[5] claims for relief:

Claim One: Dr. Kelore "prolong[ed] [Johnson's] medical treatment" by providing medical care to Johnson at more than six appointments, "[which] has given [Johnson] more damage and now the use of his shoulder is weak." (Id. at 2.)
Claim Two: Dr. Suddiqui provided medical treatment to Johnson "before [Dr. Suddiqui] knew what the problem was," and Dr. Suddiqui "knew all the time" that Johnson "had a frozen shoulder." (Id.)
Claim Three: Dr. Gore "order[ed] shots to [Johnson's] shoulder instead of trying to fix the problem." (Id. at 3.)
Claim Four: Prison Medical Provider violated Johnson's "right to medical care." (I ...

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