United States District Court, S.D. Mississippi, Northern Division
January 21, 2015
DUSTIN STANTON, PLAINTIFF
MICHAELA CHANO and SANDRA SIURANO, DEFENDANTS
Dustin Stanton, Plaintiff, Pro se, Nashville, TN.
For Michaela Chano, Nurse, Defendant: Samuel Lynn Murray, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE - Jackson, Jackson, MS.
REPORT AND RECOMMENDATION
Michael T. Parker, United States Magistrate Judge.
THIS MATTER is before the Court on Defendant Michaela Chano's Motion to Dismiss or, in the alternative, for Summary Judgment  and sua sponte for case management purposes following Plaintiff's failure to comply with the Court's Order  regarding Defendant Sandra Siurano's address. Having considered Defendant Chano's Motion  and the applicable law, the undersigned recommends that the Motion  be denied. Additionally, the undersigned recommends that Defendant Sandra Siurano be dismissed from this action without prejudice.
Defendant Sandra Siurano
On November 13, 2013, the Court directed the clerk to issue process to Defendants, including Sandra Siurano. See Order . The United States Marshals Service, however, was unable to serve Siurano because she no longer works for the Federal Bureau of Prisons (" BOP"). See Summons Return . In order to complete service, the Court ordered BOP to produce the last known address of Siurano. See Order . BOP provided an address, but the Marshals Service again was unable to serve Siurano because she no longer lives at that address. See Summons Return .
On September 29, 2014, the Court directed Plaintiff to provide the Court with an address where Siurano may be served with process. See Order . The Court advised Plaintiff that if he failed to provide an address for Siurano by October 17, 2014, she would be dismissed from this action without prejudice. To date, Plaintiff has failed to provide an address where Siurano may be served with process or otherwise serve her with process. Accordingly, the undersigned recommends that Defendant Siurano be dismissed from the action without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
Defendant Michaela Chano's Motion to Dismiss or, in the alternative, for Summary Judgment
Plaintiff Dustin Stanton is a federal inmate currently incarcerated at the United States Penitentiary in Tucson, Arizona. Plaintiff, proceeding pro se and in forma pauperis, filed this Bivens  civil rights action on September 3, 2013, alleging that his Eighth Amendment right to be free from " cruel and unusual punishment" was violated during his incarceration at the Federal Correctional Complex in Yazoo City, Mississippi. Plaintiff alleges that on March 28, 2012, he had an operation to remove cysts from his sinuses. Upon returning to prison, Plaintiff alleges that he was not cared for properly by the medical staff, and that this resulted in a severe nose bleed and a subsequent surgery on his left carotid artery to remove a blood clot.
In regard to Defendant Michaela Chano, Plaintiff alleges:
After about [two and a half] hours after his return to the prison, Plaintiff began to bleed uncontrolably [sic] 'Choking' on his blood as the packing stopped the blood from flowing from his nose. Plaintiff went to the infirmary at the prison where Nurse Chano laid him on a medical bed. The blood and or bleeding slowed down but did not stop. R/N Chano failed to examine Plaintiff but after 10 minutes told him he would be okay and he needed to return to this housing unit. By the time Plaintiff returned to his housing unit he was once again bleeding profusely from his right side nose and mouth.
See Complaint  at 5.
On July 11, 2014, Defendant Chano filed her Motion to Dismiss or, in the alternative, for Summary Judgment  arguing that Plaintiff's claim should be dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), that Plaintiff's claim should be dismissed based upon qualified immunity for failure to establish a constitutional violation and for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and that Plaintiff's claim should be dismissed for failure to establish a genuine issue as to any material fact.
In considering a motion to dismiss under Rule 12(b)(6), the " court accepts 'all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). However, " the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
To overcome a Rule 12(b)(6) motion, a plaintiff must plead " enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. " Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations and footnote omitted). " 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. " This standard 'simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of' the necessary claims or elements." In re S. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556).
Plaintiff claims that his Eighth Amendments rights were violated by Defendant Chano. " Prison officials violate the constitutional proscription against cruel and unusual punishment when they are deliberately indifferent to a prisoner's serious medical needs, as doing so constitutes unnecessary and wanton infliction of pain." Davidson v. Texas Dep't of Criminal Justice, 91 Fed.App'x 963, 964 (5th Cir. 2004) (citing Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The test for establishing deliberate indifference is " one of subjective recklessness as used in the criminal law." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
A prison official may be held liable under this standard if the official " knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference." Id. at 838. A plaintiff may established this by " evidence that prison officials 'refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any other similar conduct that would clearly evince a wanton disregard for any serious medical needs." Davidson, 91 Fed.App'x at 965 (quoting Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)).
Defendant's Motion to Dismiss, brought before any discovery was conducted, has the purpose of testing the sufficiency of the pleadings. At this stage in the case, the Court must take Plaintiff's allegations as true. Plaintiff alleges that when he first encountered Defendant Chano in the infirmary, his nose was bleeding uncontrollably and he was choking on the blood. According to Plaintiff, Defendant Chano laid him on a medical bed but failed to treat the bleed or even examine Plaintiff. After only ten minutes, Defendant Chano allegedly sent Plaintiff out of the infirmary before the bleeding had stopped. Thereafter, Plaintiff allegedly began to bleed profusely and nearly died.
Accepting Plaintiff's allegations as true and viewing them in the light most favorable to Plaintiff, Defendant Chano knew Plaintiff was bleeding profusely but refused to examine him or treat the bleed. These allegations allow the Court to draw the reasonable inference that Defendant Chano was deliberately indifferent to Plaintiff's serious medical needs. Thus, Plaintiff has alleged sufficient facts to state a plausible Eighth Amendment claim against Defendant Chano.
Defendant also argues that Plaintiff's claims should be dismiss because she is protected by qualified immunity. Qualified immunity shields a government official from civil liability for damages based on the performance of discretionary functions if the official's acts were objectively reasonable in light of clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity protects " all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). The burden is on the Plaintiff to show that immunity does not bar recovery. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992).
To overcome a motion to dismiss based on qualified immunity, a plaintiff must allege facts which show that a defendant violated the plaintiff's constitutional rights and that the violation was objectively unreasonable. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). It has been clearly established that deliberate indifference to a prisoner's serious medical needs constitutes a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) . As previously discussed, Plaintiff's allegations state a claim for inadequate medical care under the Eighth Amendment. As for the reasonableness of Defendant Chano's action, Plaintiff alleges that Defendant Chano knew of and refused to treat a major bleed that nearly resulted in Plaintiff's death.
Defendant disputes these allegations, but at this stage " it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness." McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (quotation and citation omitted). Based on Plaintiff's allegation, it is plausible that Defendant acted objectively unreasonable in her treatment of Plaintiff. Accordingly, Plaintiff has asserted facts which, if true, are sufficient to overcome the immunity defense.
In her Motion , Defendant also moves for summary judgment arguing that Plaintiff has failed to establish a genuine issue as to any material fact. In response, Plaintiff argues that the Motion for Summary Judgment is premature because discovery has not been conducted. See Motion . Discovery is not necessarily required before a summary judgment can be granted, but Plaintiff argues that certain discovery would allow him to rebut Defendant's assertion that there is no genuine issue of material fact. Plaintiff asserts that there are medical records which will demonstrate the considerable loss of blood he suffered. Plaintiff asserts that there are individuals who witnessed his condition and the treatment provided. Also, Plaintiff claims that certain prison officials submitted complaints regarding Plaintiff's treatment. Plaintiff has provided the Court with specific facts that suggest that further factual development would possibly enable him to locate information that may successfully rebut Defendant's Motion. Accordingly, the undersigned finds that the Motion for Summary Judgment should be denied without prejudice to their right to re-file it after factual development.
As discussed above, the undersigned recommends that Defendant Siurano be DISMISSED from the action without prejudice pursuant to Federal Rule of Civil Procedure 4(m) and that Defendant Michaela Chano's Motion to Dismiss or, in the alternative, for Summary Judgment  be DENIED.
NOTICE OF RIGHT TO OBJECT
In accordance with the rules and 28 U.S.C. § 636(b)(1), any party within fourteen days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the judge, the magistrate judge and the opposing party. The District Judge at the time may accept, reject or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).