United States District Court, S.D. Mississippi, Northern Division
ORDER OF PARTIAL DISMISSAL
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
pro se prisoner case is before the Court, sua sponte, for
consideration of dismissal. Plaintiff Paul Anthony Bogan,
Jr., is incarcerated with the Bureau of Prisons. He brings
this action challenging the conditions of his confinement.
The Court has considered and liberally construed the
pleadings. As set forth below, Defendant Dr. Natal-Castro is
alleges that he is a resident of Alabama and is currently
incarcerated at the Federal Correctional Complex in Yazoo
City, Mississippi. Bogan contends that he worked in the
prison's kitchen. Defendants are employed at the prison:
Warden Cheron Y. Nash, Food Administrator Pacson, Safety
Coordinator S. White, Dr. Natal-Castro, and Nurse Anjanette
August 24, 2017, Bogan says he was working in the
prison's kitchen when a gas explosion injured him. The
explosion allegedly resulted from a gas leak and faulty
outlets that sparked. Bogan maintains that for at least seven
months he and others had complained to Pacson and White about
the smell of gas and “being shocked constantly”
by the outlets. Compl.  at 7. Bogan says the explosion
caused another inmate to be thrown into him resulting in ear
pain, tinnitus, headaches, and post-traumatic syndrome.
complains that it took over four months before he was
properly treated for his physical injuries, even though he
had requested treatment. In the meantime, Bogan alleges that
Nurse Baity had him use wax remover for his ears. On January
11, 2018, Bogan claims he “was finally properly
assessed” by Dr. Natal-Castro. Compl. Ex. [1-1] at 15.
Among other things, Natal-Castro allegedly indicated that
Nurse Baity should not have put wax remover in Bogan's
ears because they were injured.
brings this action for damages, specifically invoking 42
U.S.C. § 1983 and the Federal Tort Claims Act
(“FTCA”). Bogan appears to assert the FTCA
negligence claims against Warden Nash in her official
capacity. Bogan brings Eighth Amendment claims for deliberate
indifference against Pacson, White, Dr. Natal-Castro, and
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this Court. One of the
provisions reads, “the court shall dismiss the case at
any time if the court determines that . . . the action . . .
(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). The statute “accords
judges not only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Denton v.
Hernandez, 504 U.S. 25, 32 (1992). “[I]n an action
proceeding under [28 U.S.C. § 1915, a federal court] may
consider, sua sponte, affirmative defenses that are apparent
from the record even where they have not been addressed or
raised.” Ali v. Higgs, 892 F.2d 438, 440 (5th
Cir. 1990). “Significantly, the court is authorized to
test the proceeding for frivolousness or maliciousness even
before service of process or before the filing of the
answer.” Id. The Court has permitted Bogan to
proceed in forma pauperis in this action. The Complaint is
subject to sua sponte dismissal under § 1915.
others, Bogan sues Dr. Natal-Castro under § 1983 for
denial of medical treatment. Natal-Castro is a federal actor,
not a state actor. Therefore, this doctor may not be sued
under § 1983. Evans v. Ball, 168 F.3d 856, 863
n.10 (5th Cir. 1999). Rather, individual federal actors may
be liable for constitutional violations under Bivens v.
Six Unknown Federal Agents, 403 U.S. 388 (1971). The
Court therefore construes the constitutional claim as arising
prison official's ‘deliberate indifference' to
a substantial risk of serious harm to an inmate violates the
Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 828-29 (1994). Deliberate indifference occurs when the
official subjectively “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 837.
sues Dr. Natal-Castro for the way the doctor handled his
medical care, yet Bogan says this defendant treated him
properly. There is no suggestion Natal-Castro disregarded
Bogan's medical issues; therefore, the claim against her
IS THEREFORE ORDERED AND ADJUDGED that, for the
reasons stated above, the claim against Defendant Dr.
Natal-Castro should be, and is hereby, DISMISSED WITH