United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Plaintiff's Amended
Tort Complaint, filed July 3, 2017. (Doc. 7). Plaintiff is
incarcerated, appears pro se, and is proceeding
in forma pauperis. Having reviewed the matter
sua sponte under 28 U.S.C. § 1915, the Court
will dismiss the Complaint without prejudice and grant leave
case, Plaintiff argues 24 medical officials committed
malpractice and violated his constitutional rights. (Doc. 7)
at 18. His medical issues started in 2006, when he was
incarcerated at the Los Lunas Correctional Facility (LLCF).
Id. at 2. Plaintiff experienced rectal bleeding on
seven occasions. Id. A physician's assistant
(PA) performed blood work and misdiagnosed Plaintiff with
cancer. Id. at 2-3. The next day, he was transferred
to the Penitentiary of New Mexico (PNM). Id. at 3.
continued to experience bleeding after he arrived at PNM.
(Doc. 7) at 3, 5. Prison physician Andrade prescribed
suppositories, which made his condition worse. Id.
at 5. In 2008, Plaintiff was scheduled to undergo a
colonoscopy at Presbyterian Hospital. Id. at 7.
Presbyterian physician Rafiq instead performed an esophageal
gastroduodenoscopy (EGD), a procedure used to detect damage
from heartburn. Id. at 7, 9. Plaintiff regained
consciousness during the procedure and clutched the scope,
which ruptured his esophagus. Id. at 7. Immediately
after the EGD, Dr. Rafiq performed the colonoscopy.
Id. at 8.
was not admitted to Presbyterian Hospital after the
esophageal rupture. (Doc. 7) at 8. He was transported back to
LLCF by car, a trip that took 10 hours. Id.
Plaintiff described the medical mistake to prison physician
Andrade, who was “very passive about the news.”
Id. at 10. Shortly thereafter, the esophageal
rupture caused Plaintiff's throat to swell. Id.
Prison doctors performed an ultrasound, and he was admitted
to Presbyterian Hospital for treatment. Id. He now
suffers from dysphagia, goiter, chronic coughing, eating
disorder, frequent regurgitation, and breathing difficulties.
also continues to experience rectal bleeding and esophageal
issues. (Doc. 7) at 11. Prison PA Harmon applied heat to
treat the bleeding, but it caused burning. Id. She
also recommended that he use feminine hygiene products to
stop the bleeding. Id. When Plaintiff requested
medical attention for his throat, the nurses, including
prison nurse Bradshaw, documented his request as relating to
“high blood pressure issues.” Id. At one
point prison physician Birnbaum told Plaintiff to stop
“whining” about his throat. Id. at 12.
filed an informal grievance in 2016. (Doc. 7) at 12. Prison
nurse Bradshaw handled the grievance, even though she had
“collaborated” against Plaintiff in the past.
Id. Bradshaw determined “no resolution of
Plaintiff's informal complaint was necessary.”
Id. at 13. The grievance process did not conform to
the “CD-Policy” issued by the New Mexico
Department of Corrections. Id. at 14.
filed the Amended Tort Complaint (Complaint) on July 3, 2017.
The Complaint names 24 individuals and eight corporate
defendants. (Doc. 7) at 18, 21. The individuals appear to
include supervisory prison officials, prison employees, and
every nurse, PA, or physician who saw Plaintiff between 2006
and 2017. Id. at 18. The entity defendants
include the New Mexico Department of Corrections; GEO Group,
Inc.; LLCF; PNM; CMS; Corizon Medical; Centurion Medical; and
Presbyterian Hospital. Id. at 21.
Complaint is styled as an action for medical malpractice. The
body of the Complaint also asserts claims for: violation of
the Eighth Amendment; deliberate indifference to medical
needs; conspiracy; fraud; intentional infliction of emotional
distress; and violations of the Prison Litigation Reform Act
(PLRA). Plaintiff filed a supplemental pleading on August 28,
2017, which clarifies the Complaint was intended as a
“tort complaint against the State of New Mexico.”
(Doc. 9) at 1. Notwithstanding his constitutional claims,
Plaintiff asserts he “never filed a 42 U.S.C. §
1983 lawsuit.” Id. Hence, the Court must
address jurisdiction as part of its screening function.
Standards Governing Sua Sponte Review
Court has discretion to dismiss an in forma pauperis
complaint sua sponte under § 1915(e)(2)
“at any time if … the action … is
frivolous or malicious; [or] fails to state a claim on which
relief may be granted.” The Court may also dismiss a
complaint sua sponte under Rule 12(b)(6) if
“it is patently obvious that the plaintiff could not
prevail on the facts alleged, and allowing [plaintiff] an
opportunity to amend [the] complaint would be futile.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (quotations omitted). The plaintiff must frame a
complaint that contains “sufficient factual matter,
accepted as true, to ‘state a claim for relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Id. “Threadbare
recitals” of a cause of action and conclusory
allegations, without more, do not suffice. Id.
Plaintiff is pro se, his “pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.”
Hall, 935 F.2d at 1110. If the court can
“reasonably read the pleadings to state a valid claim
on which the plaintiff could prevail, it should do so despite
the plaintiff's failure to cite proper legal authority,
… confusion of various legal theories, … poor
syntax and sentence construction, or … unfamiliarity
with pleading requirements.” Id. At the same
time, however, it is not “the proper function of the
district court to assume the role of advocate for the pro
se litigant.” Id.