United States District Court, E.D. Virginia, Richmond Division
FRED L. JOHNSON, Plaintiff,
PRISON MEDICAL PROVIDER, et al, Defendants.
A. Gibney, Jr., Judge
Johnson, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42U.S.C. § 1983
action. Johnson names as defendants: Niraj V.
Kelore, Orthopedic ("Dr. Kelore"); Vincent Gore,
Doctor ("Dr. Gore"); Mohammad Suddiqui, Doctor
("Dr. Suddiqui"); and, Prison Medical
Provider. 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.
STANDARD FOR MOTION TO DISMISS
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).
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).
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).
SUMMARY OF PERTINENT ALLEGATIONS
of 2014, Johnson was confined in Deerfield Correctional
Center. (Compl. 3, ECF No. I.) 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
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.)
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.)
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
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."
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.)
on the foregoing allegations, the Court construes Johnson to
raise the following Eighth Amendment 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 ...