2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2010

Fliber Franco-Calzada v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4409

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Fliber Franco-Calzada v. USA" (2010). 2010 Decisions. Paper 1632.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1632
BLD-128 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4409

FLIBER FRANCO-CALZADA,

 Appellant

v.

UNITED STATES OF AMERICA; 

MOSHANNON VALLEY CORRECTIONAL CENTER; 

MICHAEL A. ZENK;

FEDERAL BUREAU OF PRISONS; DR. AGRA;

CORNELL COMPANIES, INC.

____________________________________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 09-cv-00245)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

February 19, 2010

Before: McKEE, RENDELL and CHAGARES, Circuit Judges.

(Filed: March 25, 2010 )

_________

OPINION OF THE COURT

_________

PER CURIAM

Fliber Franco-Calzada, a federal inmate, appeals from the order of the United
2

States District Court for the Western District of Pennsylvania dismissing sua sponte his

civil rights complaint for failure to state a claim under 28 U.S.C. § 1915A(b)(1)-(2). We

will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).

At all relevant times, Franco-Calzada was incarcerated at the Moshannon Valley

Correctional Center (“Moshannon”) in Phillipsburg, Pennsylvania, a private facility

operated by the Cornell Company under contract to the Bureau of Prisons (“BOP”).

Franco-Calzada’s Complaint raises two claims, both of which arise out of his slip

and fall from a ladder (attached to his top bunk) on January 2, 2009, in which he fractured

two fingers. First, he alleges that the ladder attached to his bunk bed is too small for an

adult and that the faulty ladder caused his fall and resulting injury to his fingers. He says

that, on information and belief, at least two other inmates have experienced falls because

of the ladder problem. He blames the defendants for failing to inspect the ladders and

rectify the problem.

Second, Franco-Calzada claims that the medical treatment he received for his

broken fingers was delayed unnecessarily in deliberate indifference to his serious medical

needs. He alleges that the defendants failed to send him to the local emergency room for

immediate treatment of his broken fingers on the night of the accident, they took no x-ray

until the following Monday, and they delayed his surgery (to fix the fractures) for two

weeks. Franco-Calzada also claims that after initially providing him with pain

medication, the prison is making him purchase it through the commissary. He asserts that
3

he suffers from permanent stiffness and pain in his fingers. He attached documentation

of his prison grievances and the BOP’s responses.

At the initial screening, the Magistrate Judge recommended that the Complaint be

dismissed sua sponte for failure to state a claim as to all defendants. The Magistrate

Judge first noted that a Bivens action is available for actions against corrections personnel

for their deliberate indifference to an inmate’s serious medical needs under the Eighth

Amendment. (See Report at 2.) He ultimately found, however, that Franco-Calzada had

no Bivens claim because the factual allegation of a thirteen-day delay in obtaining

surgery, alone, was “inadequate to allege deliberate indifference on the part of any

defendant.” (Id. at 3.) Next, treating the slip and fall allegations as a Bivens claim, the

Magistrate Judge found that Franco-Calzada “again fails to allege any facts that would

permit an inference of deliberate indifference.” (Id. at 4-5.) (noting that Franco-Calzada

failed to state a claim under the more lenient simple negligence standard under

Pennsylvania law.)

Because both of Franco-Calzada’s claims lacked merit, the Magistrate Judge found

it unnecessary to analyze the liability of individual defendants Cornell Companies,

Moshannon, Warden Zenk, and Doctor Agra. He noted, however, that the Supreme

Court, in Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 71-72, 74 (2001), declined to

extend the Bivens remedy to claims against private corporations operating under federal

contracts. Acknowledging that Malesko “left open an obvious question, whether a
 We need not reach the issue whether Maleska bars Bivens claims against the 1

individual defendants in this case because we conclude that the appeal has no arguable

merit in any event.

4

Bivens action can be alleged against a private individual,” the Magistrate Judge looked to

decisions of the Courts of Appeals that have held that no such actions should be implied

against private individual actors. (Id. at 6.) The Magistrate Judge found that “[i]n the

absence of persuasive authority to the contrary, even a complaint adequately alleging a

claim against any individual defendant should be dismissed.” (Id.) The District Court 1

overruled Franco-Calzada’s objections, adopted the Magistrate Judge’s Report, and

dismissed the Complaint for failure to state a claim. Franco-Calzada filed this timely

appeal.

We have jurisdiction pursuant to 28 U.S.C. § 1291. See Deutsch v. United States,

67 F.3d 1080, 1083 (3d Cir. 1995). Our review is plenary. See Tourscher v.

McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Franco-Calzada has been granted leave

to proceed in forma pauperis on appeal. Because his appeal from the dismissal of

Complaint lacks arguable merit, we will dismiss it pursuant to § 1915(e)(2)(B)(i). See

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

In order to survive dismissal, a complaint must contain sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). The plausibility standard “asks for more than a

sheer possibility that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, 129 S. Ct.
5

1937, 1949 (2009). Well-pleaded factual content is accepted as true for purposes of

determining whether the complaint states a plausible claim for relief. Id. at 1950. The

assumption of truth does not apply, however, to legal conclusions couched as factual

allegations or to “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements.” Id. at 1949. “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.

After reviewing the District Court pleadings and notice of appeal, we conclude as

a matter of law that Franco-Calzada’s Complaint was correctly dismissed for failure to

state a claim. There is nothing in the Complaint’s specific allegations from which we can

plausibly infer that the defendants were deliberately indifferent to Franco-Calzada’s

serious medical needs or to prison conditions pertaining to the use of an allegedly unsafe

ladder in his cell. The protections afforded prisoners by the Due Process Clause of the

Fourteenth Amendment are not triggered by the mere negligence of prison officials. See

Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Likewise, Eighth Amendment liability

requires “more than ordinary lack of due care for the prisoner’s interests or safety.” 

Whitley v. Albers, 475 U.S. 312, 319 (1986). Regarding medical mistreatment claims in

particular, “[i]t is well-settled that claims of negligence or medical malpractice, without

some more culpable state of mind, do not constitute ‘deliberate indifference.’” Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999); see also White v. Napoleon, 897 F.2d 103,
6

108 (3d Cir.1990) (concluding that mere medical malpractice cannot give rise to a

violation of the Eighth Amendment). Only “unnecessary and wanton infliction of pain”

or “deliberate indifference to the serious medical needs” of prisoners is sufficiently

egregious to rise to the level of a constitutional violation. White, 897 F.2d at 108-09

(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Here, the allegations contained in

the Complaint, taken as true, assert a simple negligence claim at most, and thus, do not

state a claim of a constitutional violation under the Eighth Amendment.

The District Court did not consider granting Franco-Calzada an opportunity to

amend the complaint in order to cure the stated defects. We see no need to remand the

matter, however, because we conclude that an amendment would have been futile. 

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, no additional

allegations would cure the defects in the Complaint as to the slip and fall claim. 

Moreover, the BOP’s grievance responses that Franco-Calzada attached to his Complaint,

lead to the plausible inference that the medical staff treated Franco-Calzada promptly and

without unnecessary delay. The medical defendants treated with him with first-aid and

started him on antibiotics on the day he was injured. The orthopedic specialist evaluated

Franco-Calzada’s injuries on January 6, 2009. After a pre-operative visit on January 12,

Franco-Calzada underwent surgery on January 15, 2009.

Our independent review reveals that there is no arguable basis to challenge the

District Court’s dismissal order on appeal. Accordingly, Franco-Calzada’s appeal will be
7

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).