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Rafael Fontanez v. Abigail Lopez et al

July 12, 2011


The opinion of the court was delivered by: Bumb, District Judge:



Plaintiff Rafael Fontanez ("Plaintiff"), an inmate confined at the Federal Correctional Institution at Forth Dix, Fort Dix, New Jersey, seeks to bring this action in forma pauperis, alleging violations of his constitutional rights, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and also asserting wrongdoings subject to the reach of the Federal Tort Claim Act ("FTCA"). Based on his affidavit of indigence and the absence of three qualifying dismissals within 28 U.S.C. § 1915(g), the Court will grant Plaintiff's application to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a), and order the Clerk to file the Complaint.

At this time, the Court must review the Complaint to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief.


A. Facts Suggested by Plaintiff's Exhibit

Here, Plaintiff asserts that he duly exhausted his FTCA tort claims before the Department of Justice ("DOJ"), see Docket Entry No. 1, at 15, although his voluminous (62-page-long) compilation of exhibits exhibit no tort claim filed by Plaintiff with the DOJ, no response by the DOJ, no tort claim or administrative grievances filed by Plaintiff with the Bureau of Prisons ("BOP"), and no response by the BOP's Regional or Central Offices. The only document pertinent to his administrative exhaustion efforts, which this Court could glean from the submissions in the record, is a response Plaintiff received from his current warden as to his administrative grievance.*fn1 See Docket Entry No. 1-2, at 62.

That response, in pertinent part, reads as follows: This is in response to your Request for Administrative Remedy in which you state you have been denied the mandatory community medical standards of care for your broken right arm. You make no specific request for relief.

A review of your medical records reveals on July 12, 2009, you were evaluated by medical staff for an injury to your right forearm from being hit by a softball. You were given Motrin for the pain and instructed to apply ice and elevate your arm. You were instructed to return to Health Services in the morning if symptoms did not improve. On July 15, 2009, you returned to Health Services requesting to be re-evaluated for the injury. An x-ray was taken revealing a non-displaced distal fracture of the ulna. A full cast was applied. On August 11, 2009, another x-ray was taken revealing the same non-displaced distal fracture. On August 20, 2009, you reported to Health Services without your cast. You stated you removed the cast a few days earlier because it itched and you were able to move you fingers without pain. An x-ray was taken revealing a non-healing mildly displaced fracture, therefore, a splint was applied. On August 27, 2009, you were evaluated by the Orthopedic Surgeon who diagnosed you with a healing fracture of the right ulna with malunion. He recommended corrective surgery, which was performed on October 15, 2009. You were placed in a splint and instructed to keep it in place until further evaluation. On October 29, 2009, you were evaluated by the Orthopedic Surgeon. He ordered x-rays and another follow-up examination in four weeks. On November 19, 2009, the Orthopedic Surgeon's examination revealed the incision was well-healed with the x-ray revealing early callus. You were instructed to remain in the splint and to continue with range of motion exercises. On January 28, 2010, the Orthopedic Surgeon reviewed new x-rays which showed good healing. The physical exam revealed full pronation and decreased supination. You were instructed to discontinue using the splint, perform home exercises to improve supination, and avoid push-ups and resistance exercises with your right wrist. This response is for informational purposes only. Id.

B. Facts Asserted in the Complaint

Plaintiff's Complaint, see Docket Entry No. 1, does not allege that the statement of facts provided in the above-quoted warden's response was erroneous, see, generally, id.; however, Plaintiff asserts his own chain of events (which, in part, corresponds with those asserted in the warden's letter, and -- in part -- provides additional facts, omits certain facts referred-to by the warden, and introduces Plaintiff's own perceptions of all facts).*fn2 See id. at 4-11. Specifically, Plaintiff states that:

1. Allegedly, on July 12, 2009, Plaintiff was examined by Defendant Bourton ("Bourton"),*fn3 during which examination he showed Bourton his swollen arm, and Bourton: (a) spent 10 minutes examining Plaintiff's arm; (b) found that an x-ray of Plaintiff's arm was not yet necessary; and (c) prescribed Plaintiff Motrin. See id. at 4-6. On the basis of these facts, Plaintiff concludes that Bourton violated his rights by not spending longer time examining Plaintiff's arm and by not conducting an immediate x-ray. See id. at 5-6.

2. Allegedly, Plaintiff returned to Fort Dix medical services on July 15*fn4 and was examined by Defendant Elias ("Elias"), during which examination Elias: (a) conducted an x-ray of Plaintiff's arm; (b) concluded that a bone within Plaintiff's arm was fractured; (c) scheduled Plaintiff's examination by an orthopedic surgeon for July 31, 2009; and, apparently (d) placed a cast on Plaintiff's arm. See id. at 6-9. Defendant Lopez ("Lopez"), being Elias' supervisor, allegedly concurred with Elias' decision that Plaintiff's arm should be examined by an orthopedic surgeon and, allegedly, approved of the date of such scheduled examination. See id. On the basis of these facts, Plaintiff concludes that Elias and Lopez violated his rights by not having Plaintiff examined by an orthopedic surgeon immediately, and that Elias violated Plaintiff's rights by placing a cast on his arm (since Plaintiff, seemingly, believes that the cast, somehow, exacerbated Plaintiff's injury). See id.

3. Plaintiff's arm was examined by an orthopedic surgeon on August 27, 2010.*fn5 See id. at 8-9. Allegedly, from July 15, 2009, to October 15, 2009, Plaintiff met with Elias on numerous occasions requesting pain-reducing medication, but his requests were denied by Elias. See id. at 10. On the basis of this fact, Plaintiff concludes that Elias violated his rights by not giving Plaintiff any form of pain relief. See id.

From these allegations, Plaintiff deduces that Bourton, Elias and Lopez violated his constitutional rights by being deliberately indifferent to Plaintiff's medical needs (for the purposes of his Bivens challenges) and committed wrongs subject to the reach of the FTCA. See id. at 8-16. Plaintiff also asserts that the current and prior wardens of Fort Dix are liable to him under the respondeat superior theory. See id. at 15-17 (making these allegations, seemingly, with the main goal to allege that these wardens are liable to Plaintiff under the FTCA, although without naming these wardens as Defendants in this matter in the caption of the Complaint and without listing these wardens as Defendants in the "Introduction" section of the Complaint, that named Lopez, Bourton and Elias as Defendants).

The Complaint closes with Plaintiff's request for relief seeking unspecified damages under the FTCA and damages for the alleged constitutional violations. See id. at 17.


In determining the sufficiency of a complaint, the Court must be mindful to construe the facts stated in the complaint liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89 (2007); Haines v. Kerner, 404 U.S. 519 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Indeed, it is long established that a court should "accept as true all of the [factual] allegations in the complaint and reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). However, while a court will accept well-pled allegations as true, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See id.

Addressing the clarifications as to the litigant's pleading requirement stated in the United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court of Appeals for the Third Circuit provided the courts in this Circuit with detailed and careful guidance as to what kind of allegations qualify as pleadings sufficient to pass muster under the Rule 8 standard. See Phillips v. County of Allegheny, 515 F.3d 224, 230-34 (3d Cir. 2008). Specifically, the Court of Appeals observed as follows:

"While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation [is] to provide the 'grounds' of his 'entitle[ment] to relief' [by stating] more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . ." Twombly, 127 S. Ct. at 1964-65 . . . Rule 8 "requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Id. at 1965 n.3. . . . "[T]he threshold requirement of Rule 8(a)(2) [is] that the 'plain statement [must] possess enough heft to 'sho[w] that the pleader is entitled to relief.'" Id. at 1966. [Hence] "factual allegations must be enough to raise a right to relief above the speculative level." Id. ...

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