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Stone v. Geo Group, Inc.

United States District Court, D. New Mexico

May 11, 2018

BAYWARD STONE, Plaintiff,
v.
GEO GROUP, INC., et al Defendants.

          MEMORANDUM OPINION AND ORDER

         This 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 to amend.

         I. Background[1]

         In this 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.

         Plaintiff 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.

         Plaintiff 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. Id.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.[2] 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.

         The 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.

         II. Standards Governing Sua Sponte Review

         The 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.

         Because 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.

         III. Discussion

         A. Federa ...


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