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Rafael Fontanez v. Abigail Lopez et al

March 1, 2012


The opinion of the court was delivered by: Renee Marie Bumb, United States District Judge

[Docket No. 4]


This matter comes before the Court upon a motion titled "Motion Under Federal Civil Rule 60(a), (b)(1)(4)(6) with 28 USC § 2201 and § 2202 Declaratory Remedy Showing the Judge Bumb Abuse of Discretion in the Order (Dckets 1,2, & 3) on July 12, 2011 which Dismissed with Prejudice the Original Complaint Allegation(s) that Caused Extreme Due Process Unconstitutional Opinion Violations and Prejudice in the Plaintiff's Mandated Preparation in the Ordered First Amended Complaint," Docket Entry No. 2, at 2 (citations, spelling, punctuation, parenthetical and capitalization in original). The motion is denied.

On May 5, 2011, the Clerk received a package submitted by Rafael Fontanez ("Plaintiff"), an inmate confined at the Federal Correctional Institution at Forth Dix, Fort Dix, New Jersey. See Docket Entry No. 1. The package indicated that Plaintiff was seeking to commence a civil 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 under the Federal Tort Claim Act ("FTCA"). See id. The submission included a nineteen-page, single-spaced civil complaint, see id., a 62-page compilation of exhibits, see Docket Entry No. 1-2, and Plaintiff's application to prosecute his challenges in forma pauperis. See Docket Entry No. 1-1.

The Court granted Plaintiff in forma pauperis status, see Docket Entries Nos. 2 and 3, and carefully examined 81 pages of Plaintiff's submission. See generally, Docket Entry No. 2. By an Order entered July 12, 2011, the Court dismissed Plaintiff's claims for the reasons set forth in an accompanying Opinion.

The Court, however, noted in its Opinion, however, that one of Plaintiff's claims amounted to a potentially plausible Bivens claim. Specifically, the Court observed: "the sole potentially viable claim that this Court can discern from the face of the Complaint is that Elias was allegedly made aware of Plaintiff's severe physical pain but declined to prescribe him any pain-reducing medications during the period from July 15, 2009, to October 15, 2009. Consequently, in the event Plaintiff elects not to amend his Complaint by asserting factual challenges other than those stated in the Complaint, but elects to proceed with his challenge based on such alleged denial of pain-reducing medications, Plaintiff can simply verify, in writing, his desire to so proceed." Id. at 20. The Court, however, accompanied that observation with the statement stressing that Plaintiff's complaint, while alleging that he exhausted only his personal tort claims with the DOJ, might be subject to dismissal for the purposes of the Bivens analysis on the grounds of failure to exhaust Plaintiff's Bivens challenges with the Bureau of Prisons ("BOP"). See id. at 20-21 (observing that Plaintiff's lengthy submission merely indicated that he filed a grievance with his warden but was silent as to any exhaustion with the Regional or Central Offices of the BOP). Correspondingly, the Court noted that Plaintiff's sole facially viable Bivens claim appeared subject to dismissal on that ground.

However, just as with the substance of Plaintiff's factual assertions made in the Complaint, the Court [did] not rule out the possibility that Plaintiff's 62-page compilation of exhibits and his discussion of administrative exhaustion of his tort claims before the DOJ inadvertently omitted to mention (or to include exhibits indicating) that Plaintiff also administratively exhausted his constitutional challenges before the BOP. Therefore, jointly with granting Plaintiff leave to amend his pleading by articulating facts other than those already discussed in this Opinion, the Court [also] allow[ed] Plaintiff an opportunity to clarify whether this Court [was] correct in its impression [as to] Plaintiff's failure to exhaust his Bivens challenges before the BOP. [The Court also explained that, i]n the event Plaintiff's constitutional challenges were duly exhausted, Plaintiff [did not have to] copy these administrative papers; it [was] sufficient for Plaintiff to merely clarify that he did so exhaust his Bivens claims based on the alleged denial of pain-reducing medication by Elias (or that he so exhausted those Bivens claims with regard to which Plaintiff will elect to articulate additional facts in his amended complaint).

Id. at 22 and n. 9 (footnote incorporated in the main text).

The Court also dismissed Plaintiff's allegations for the purposes of his FTCA claims. Yet, the Court noted:

However, same as with Plaintiff's Bivens challenges, the Court cannot rule out the possibility that Plaintiff may amend his Complaint by asserting: (a) sufficient facts showing that Lopez, Elias and Bourton were government employees within the meaning of the FTCA requirement; (b) Plaintiff's exhaustion of his tort claims before the DOJ that raised the same factual predicate and sought a particular sum certain; and (a) a specific sum Plaintiff is seeking, under the FTCA, in this action. The Court, therefore, will dismiss Plaintiff's . . . FTCA claims that might be cured by pleading without prejudice.

Id. at 32.

Armed with the extensive guidance as set forth in the Court's Opinion as to how to cure the shortcomings of his Bivens and FTCA challenges, Plaintiff was allowed forty-five days to file his amended complaint detailing his Bivens and FTCA claims. See Docket Entry No. 3 (clarifying, in great detail, what facts Plaintiff had to assert in order to cure his challenges and explaining that Plaintiff could pursue either Bivens or FTCA challenges, or both). The Court's order to that effect was issued on July 12, 2011.

In response, Plaintiff did not submit his amended pleading. Rather, he filed the instant motion, a twenty-page single-spaced document consisting of 94 paragraphs and a four-paragraph conclusion. See Docket Entry No. 4, at 2-21. The bulk of these 94 paragraphs presents various paraphrasings of Plaintiff's displeasure with this Court reduced to Plaintiff's opinions that this Court "abused [its] discretion," "changed the settled law standard," "unjust[ly] dismiss[ed]" Plaintiff's original complaint, issued an "unfair ruling," adopted "unjust methodology," etc. See, Docket No. 4 generally.

A few of Plaintiff's statements scattered among these 94 paragraphs suggests Plaintiff's confusion as to the gist of the Court's prior ruling. The Court, therefore, finds it warranted to re-summarize its prior findings. As the foregoing discussion illustrates, Plaintiff's Bivens claims were disposed of in the following fashion: (a) Plaintiff's claims against his current and former wardens, as well as those claims against Defendant Lopez that were based solely on her supervisory position, were dismissed with prejudice, since claims based solely on the doctrine of respondeat superior are not cognizable in a Bivens action; (b) Plaintiff's claims against Defendants Elias, Bourton and Lopez that asserted Plaintiff's disagreement with the medical treatment provided to Plaintiff, Plaintiff's displeasure with the decision not to x-ray Plaintiff's arm during the first visit and, instead, to treat him with ice and pain-killer, Plaintiff's displeasure with the decision to schedule his examination by a specialized doctor in two weeks, Plaintiff's displeasure with how a cast was applied to his arm, etc., were dismissed with prejudice, because none of these allegations stated a wrong of constitutional magnitude, but (c) Plaintiff's claims against Defendant Elias, based on Plaintiff's assertion that Defendant Elias outright refused to provide Plaintiff with pain-killers was dismissed without prejudice, with a directive to clarify whether Plaintiff exhausted that claim administratively ...

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