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United States v. Castro

November 15, 2010

UNITED STATES OF AMERICA ET AL., PLAINTIFF,
v.
MARIO OCHOA CASTRO, DEFENDANTS.



The opinion of the court was delivered by: Robert B. Kugler United States District Judge

MEMORANDUM OPINION AND ORDER

IT APPEARING THAT:

1. On October 8, 2010, the Clerk received Plaintiff's civil complaint ("Complaint"). See Docket Entry No. 1. The Complaint arrived unaccompanied by either Plaintiff's in forma pauperis ("IFP") application or by prepayment of his filing fee. See id. The Clerk, upon receipt of the Complaint, initiated the instant matter designating "Cause" as "42 [U.S.C. §] 1983" in light of Plaintiff's: (a) being a federal inmate; and (b) raising challenges to medical care he was provided during his incarceration.*fn1 See generally, Docket.

2. In light of Plaintiff's failure to submit his IFP application or to prepay his filing fee, this Court issued an order, dated October 20, 2010 ("October Order"), directing Plaintiff to submit his IFP application or his filing fee. See Docket Entry No. 2.

3. On November 1, 2010, the Clerk received Plaintiff's IFP application. See Docket Entry No. 3.

4. In addition, also on November 1, 2010, the Clerk received a letter from Plaintiff. See Docket Entry No. 4. In that letter, Plaintiff stressed, in no ambiguous terms, his complete lack of interest in instituting a Bivens action and requested this Court to construe his complaint as raising challenges solely under the Federal Tort Claim Act. See id. The Court, therefore, examines Plaintiff's Complaint accordingly.*fn2

5. Plaintiff's Complaint encompasses the actual body of the complaint and a number of attachments. See Docket Entry No. 1. The attachments include Plaintiff's administrative grievances and appeals, as well as responses he received from his warden, the Regional Office and the Central Office. See id. at 8-21.

6. The body of the complaint asserts that, in June 2009, Plaintiff underwent a cataract surgery on one eye, and then another cataract surgery on another eye. See id. at 2.

Plaintiff also asserts that, during the period between his second surgery and his first post-surgical evaluation (that took place on October 14, 2010), he began experiencing a "sandy sensation" in one eye. See id. at 2-3. Plaintiff maintains that, as a result of such sensation, he developed a higher sensitivity to wind and light.*fn3 See id. at 3. From the foregoing, Plaintiff deduces that his eye surgeries were negligently performed, see id. at 4-7, and "demands judgment against the defendant [presumably, the United States,] for $5,000,000.00 dollars, plus costs."*fn4 Id. at 7.

7. The exhibits attached to the body of Plaintiff's complaint provide more detail.

a. In his informal resolution form (submitted either in September or in October of 2010), Plaintiff asserted that "[t]he present [i]nexcusable violation in health care ethics is the consequence of [unspecified whose] failure to follow up medical supervision of the eye catara[c]t surgery during May 2009 on both eyes." Id. at 9. The response Plaintiff obtained as a result of his submission of that form read, "[a]ccording to Health [Care Services of FCI Fort Dix, that is, Plaintiff's place of confinement, Plaintiff was] scheduled to see the ophthalmologist on 10/13/09," that is, in a few days from the date of his filing of the form. Id.

b. Appealing this response to his warden, Plaintiff asserted that, if he had began experiencing the alleged "sandy sensation," that sensation must have meant that his surgery was performed negligently. See id. at 10. He concluded that appeal with the following remedy demand, "I, cordially, as of right, ask for the enforcement of the right to be meticulously examined by a specialized eye-doctor, in order to get the proper treatment due to a human being . . . . Your concern in addressing this matter [should] compl[y] with the standards of avoiding cruel and unusual punishment, as announced in the U.S. Constitution's 8th Amendment." Id. Plaintiff's warden responded by acknowledging being appraised of Plaintiff's September/October of 2009 demand for "examin[ation] by a specialized eye doctor," but pointing out that such examination of Plaintiff by an ophthalmologist did indeed took place on October 14, 2009, and the ophthalmologist "examined [Plaintiff's] eyes, and recommended . . . medicated eye drops and artificial tears [which, seemingly, were provided to Plaintiff by his correctional facility, and also] recommended to continue with the current course of treatment." Id. at 12.

c. In response, Plaintiff filed appeal with the Regional Office. See id. at 13. In that appeal he, again, asserted that he continued to feel the "sandy sensation," qualified the medical help he was received as "[t]his atrocity in medical ethics" because "the eye surgeon who performed the surgeries has not bother to come and revise whether his surgeries were effective even though [Plaintiff] continuously ask[ed] to be seen by him." Id. at 14. Plaintiff concluded his appeal with the "remedy demand" reading: "[t]he instant situation is a violation [of] the Eighth Amendment to the U.S. Constitution, for Cruel and Unusual Punishment, and [Plaintiff] demands prompt attention due to medical negligence by the Medical Staff at FCI Fort Dix." Id. (capitalization in original). The Regional Office responded to Plaintiff's appeal by the following statement:

In your appeal, you contend you are not receiving adequate medical care at FCI Fort Dix for eye pain upon exposure to light and wind. You allege no medical attention has been provided to you after your cataract surgery, which has caused vision related problems. You state this is a violation of your Eighth Amendments Rights and constitutes medical negligence. You request prompt follow-up from the physician who performed the cataract surgery. A review of your medical record reveals that you received cataract surgery on June 12, 2009, and had a post surgery follow- up appointment with you Primary Care Provider Team on June 30, 2009. As such, you were advised that a consultation would be generated to see the Optometrist, to correct refraction problems, and Ophthalmology for post surgery follow-up. Your Optometry encounter occurred on September 23, 2009, and you received an updated eyeglass prescription with amber lens to protect your eyes from sunlight, as well as post surgery follow-up with the Ophthalmologist on November 18, 2009. You will be scheduled for Ophthalmology again in six months. You have ...


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