NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

ALEJANDRO RIOS-SALINAS, :

 :

Plaintiff, :

 :

v. :

 :

DR. ABIGAIL LOPEZ DE LASALLE,: 

et al. , : 

 :

Defendants. :

 :

Civil No. 11-2036 (RMB)

OPINION

APPEARANCES:

ALEJANDRO RIOS-SALINAS, Plaintiff pro se

Reg. No. # 23961-009

FCI Fort Dix 

P.O. Box 2000

Fort Dix, New Jersey 08640

BUMB, District Judge

Plaintiff, Alejandro Rios-Salinas, a federal inmate confined

at the FCI Fort Dix in Fort Dix, New Jersey, at the time he

submitted the above-captioned Complaint for filing, seeks to

bring this action in forma pauperis. Based on his affidavit of

indigence, the Court will grant plaintiff’s application to

proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

(1998) and order the Clerk of the Court to file the Complaint.

 At this time, this Court must review the Complaint, pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether the

Complaint should be dismissed as frivolous or malicious, for

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 1 of 15 PageID: 42
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. For the reasons set forth below, the Court

concludes that the Complaint should be dismissed with prejudice.

I. BACKGROUND

Plaintiff brings this civil action pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), alleging a violation of his Eighth Amendment right

against cruel and unusual punishment. Plaintiff names the

following defendants: Dr. Abigail Lopez de Lasalle; Dr. Williams;

Lynn Johnson, ARNP; and Mr. Eichel, Acting Health Services

Administrator at the FCI Fort Dix (West) Health Services Unit

(“HSU”). (Complaint, Caption and ¶¶ 4(b) through (e)). The

following factual allegations are taken from the Complaint, and

are accepted for purposes of this screening only. The Court has

made no findings as to the veracity of plaintiff’s allegations.

Plaintiff alleges that, on February 11, 2010, he slipped and

fell on ice at FCI Fort Dix, shattering his patella. An

emergency medical technician (“EMT”), Andrew Ackley, responded to

the medical call where Plaintiff had fallen to provide emergency

assistance. Ackley observed that Plaintiff was in “very bad”

pain (“10 on a pain scale”), and that there was an “obvious

deformity to the left knee.” With assistance, Plaintiff was

lifted to a “leap” while traction was held on Plaintiff’s leg,

and Plaintiff was taken to the HSU for examination. (Plaintiff’s

2

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 2 of 15 PageID: 43
Attachment to Complaint, “Bureau of Prisons Health Services

Clinical Encounter” report, 3 pages, at Docket entry no. 1-3).

Plaintiff was examined by Dr. De Lasalle at the HSU urgent

care room. The patella was noted to “be dislocated approximately

2 inches onto the head of the femur.” There was swelling and

discoloration in the affected area. Plaintiff’s knee was

immobilized and ice was placed on the knee to reduce swelling. 

The on-call orthopedic surgeon was called, Dr. Williams, who

advised that he would examine Plaintiff the next day and that

Plaintiff’s knee should be immobilized in a straight position. 

Plaintiff was prescribed Tylenol with codeine for the pain. 

(Id.).

Plaintiff was examined by Dr. Williams the next day, on

February 12, 2010. An x-ray was performed showing a fracture of

the patella. Dr. Williams scheduled Plaintiff for surgery on

February 17, 2010. FCI Fort Dix Warden Donna Zickefoose

confirms, in her June 1, 2010 response to Plaintiff’s BP-9

Administrative Remedy, that surgery was performed without

complications on February 17, 2010, and Plaintiff was discharged

back to FCI Fort Dix. Follow-up care and re-evaluations were

performed by Dr. Williams on March 25, 2010 and April 29, 2010,

and it was noted that Plaintiff was healing well with continuing

strengthening exercises. (Plaintiff’s Exhibit # 7 to the

Complaint, at Docket entry no. 1-3 pg. 15).

3

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 3 of 15 PageID: 44
Plaintiff complains that the delay in medical treatment

(i.e., 6 days waiting for surgery while in severe pain with only

Tylenol w/ codeine prescribed) and the provision of a

“dilapidated” wheelchair constitutes a denial of medical care in

violation of his Eighth Amendment right against cruel and unusual

punishment. (Compl., ¶ 6 and Plaintiff’s attached statement at

Docket entry no. 1-3, pg. 2).

Plaintiff seeks compensatory and punitive damages in excess

of $ 1 million. (Compl., ¶ 7).

II. STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-

134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),

requires a district court to review a complaint in a civil action

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

any claim that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B) and 1915A. This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an 

§ 1915A.

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94

4

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 4 of 15 PageID: 45
(2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). See also United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

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). The Court

need not, however, credit a pro se plaintiff’s “bald assertions”

or “legal conclusions.” Id.

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S.

at 93-94 (In a pro se prisoner civil rights complaint, the Court

reviewed whether the complaint complied with the pleading

requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard

for summary dismissal of a Complaint that fails to state a claim

5

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 5 of 15 PageID: 46
in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2).1 Citing its recent opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the

proposition that “[a] pleading that offers ‘labels and

conclusions' or ‘a formulaic recitation of the elements of a

cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

1 Rule 8(d)(1) provides that “[e]ach allegation must be

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

6

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 6 of 15 PageID: 47
reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

“show[n]”-“that the pleader is entitled to relief.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).

The Court further explained that

a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must

now allege “sufficient factual matter” to show that a claim is

facially plausible. This then “allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 1948. The Supreme Court’s ruling in

Iqbal emphasizes that a plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 1949-50; see

also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,

578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin for the ‘no set of facts’ standard”

7

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 7 of 15 PageID: 48
set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),2 that

applied to federal complaints before Twombly. Fowler, 578 F.3d

at 210. The Third Circuit now requires that a district court

must conduct the two-part analysis set forth in Iqbal when

presented with a motion to dismiss:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard

any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

the plaintiff has a “plausible claim for relief.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

“show” such an entitlement with its facts. See Phillips,

515 F.3d at 234-35. As the Supreme Court instructed in

Iqbal, “[w]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not ‘show [n]’-‘that

the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at

1949-50]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

Fowler, 578 F.3d at 210-211.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

2

 In Conley, as stated above, a district court was

permitted to summarily dismiss a complaint for failure to state a

claim only if “it appear[ed] beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief. Id., 355 U.S. at 45-46. Under this “no set of

facts” standard, a complaint could effectively survive a motion

to dismiss so long as it contained a bare recitation of the

claim’s legal elements.

8

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 8 of 15 PageID: 49
prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-

111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000).

III. BIVENS ACTIONS

Plaintiff asserts that his constitutional rights, namely his

right under the Eighth Amendment, have been violated, and

proceeds with this action under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In

Bivens, the Supreme Court held that one is entitled to recover

monetary damages for injuries suffered as a result of federal

officials’ violations of the Fourth Amendment. In doing so, the

Supreme Court created a new tort as it applied to federal

officers, and a federal counterpart to the remedy created by 42

U.S.C. § 1983. The Supreme Court has also implied Bivens damages

remedies directly under the Eighth Amendment, see Carlson v.

Green, 446 U.S. 14 (1980), and the Fifth Amendment, see Davis v.

Passman, 442 U.S. 228 (1979).

Bivens actions are simply the federal counterpart to 

§ 1983 actions brought against state officials who violate

federal constitutional or statutory rights. Egervary v. Young,

366 F.3d 238, 246 (3d Cir. 2004), cert. denied, 543 U.S. 1049

(2005). Both are designed to provide redress for constitutional

violations. Thus, while the two bodies of law are not “precisely

9

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 9 of 15 PageID: 50
parallel”, there is a “general trend” to incorporate § 1983 law

into Bivens suits. Chin v. Bowen, 833 F.2d 21, 24 (2d Cir.

1987)).

In order to state a claim under Bivens, a claimant must show

(1) a deprivation of a right secured by the Constitution and laws

of the United States; and (2) that the deprivation of the right

was caused by an official acting under color of federal law. See

Mahoney v. Nat’l Org. For Women, 681 F. Supp. 129, 132 (D. Conn.

1987)(citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56

(1978)).

The United States has sovereign immunity except where it

consents to be sued. United States v. Mitchell, 463 U.S. 206,

212 (1983). In the absence of such a waiver of immunity,

plaintiff cannot proceed in an action for damages against the

United States or an agency of the federal government for alleged

deprivation of a constitutional right, see FDIC v. Meyer, 510

U.S. 471, 484-87 (1994), or against any of the individual

defendants in their official capacities, see Kentucky v. Graham,

473 U.S. 159, 166 (1985) (a suit against a government officer in

his or her official capacity is a suit against the government). 

IV. ANALYSIS

Plaintiff generally asserts that defendants violated his

Eighth Amendment right to adequate medical care by denying and/or

delaying medical treatment. The Eighth Amendment proscription

against cruel and unusual punishment requires that prison

10

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 10 of 15 PageID: 51
officials provide inmates with adequate medical care. Estelle v.

Gamble, 429 U.S. 97, 103-04 (1976); Rouse v. Plantier, 182 F.3d

192 (3d Cir. 1999). In order to set forth a cognizable claim for

a violation of his right to adequate medical care, an inmate must

allege: (1) a serious medical need; and (2) behavior on the part

of prison officials that constitutes deliberate indifference to

that need. Estelle, 429 U.S. at 106; Natale v. Camden County

Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003).

To satisfy the first prong of the Estelle inquiry, the

inmate must demonstrate that his medical needs are serious. 

“Because society does not expect that prisoners will have

unqualified access to health care, deliberate indifference to

medical needs amounts to an Eighth Amendment violation only if

those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9

(1992). The Third Circuit has defined a serious medical need as:

(1) “one that has been diagnosed by a physician as requiring

treatment;” (2) “one that is so obvious that a lay person would

recognize the necessity for a doctor’s attention;” or (3) one for

which “the denial of treatment would result in the unnecessary

and wanton infliction of pain” or “a life-long handicap or

permanent loss.” Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d

Cir. 2003)(internal quotations and citations omitted); see also

Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006

(1988).

11

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 11 of 15 PageID: 52
The second element of the Estelle test requires an inmate to

show that prison officials acted with deliberate indifference to

his serious medical need. See Natale, 318 F.3d at 582 (finding

deliberate indifference requires proof that the official knew of

and disregarded an excessive risk to inmate health or safety). 

“Deliberate indifference” is more than mere malpractice or

negligence; it is a state of mind equivalent to reckless

disregard of a known risk of harm. Farmer v. Brennan, 511 U.S.

825, 837-38 (1994). Furthermore, a prisoner’s subjective

dissatisfaction with his medical care does not in itself indicate

deliberate indifference. Andrews v. Camden County, 95 F. Supp.2d

217, 228 (D.N.J. 2000); Peterson v. Davis, 551 F. Supp. 137, 145

(D. Md. 1982), aff’d, 729 F.2d 1453 (4th Cir. 1984). Similarly,

“mere disagreements over medical judgment do not state Eighth

Amendment claims.” White v. Napoleon, 897 F.2d 103, 110 (3d Cir.

1990). “Courts will disavow any attempt to second-guess the

propriety or adequacy of a particular course of treatment ...

[which] remains a question of sound professional judgment.” 

Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d

Cir. 1979) (internal quotation and citation omitted). Even if a

doctor’s judgment concerning the proper course of a prisoner’s

treatment ultimately is shown to be mistaken, at most what would

be proved is medical malpractice and not an Eighth Amendment

violation. Estelle, 429 U.S. at 105-06; White, 897 F.3d at 110.

12

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 12 of 15 PageID: 53
The Third Circuit has found deliberate indifference where a

prison official: (1) knows of a prisoner’s need for medical

treatment but intentionally refuses to provide it; (2) delays

necessary medical treatment for non-medical reasons; or (3)

prevents a prisoner from receiving needed or recommended

treatment. See Rouse, 182 F.3d at 197. The court also has held

that needless suffering resulting from the denial of simple

medical care, which does not serve any penological purpose,

violates the Eighth Amendment. Atkinson, 316 F.3d at 266. See

also Monmouth County Correctional Institutional Inmates, 834 F.2d

at 346 (“deliberate indifference is demonstrated ‘[w]hen ...

prison authorities prevent an inmate from receiving recommended

treatment for serious medical needs or deny access to a physician

capable of evaluating the need for such treatment”); Durmer v.

O’Carroll, 991 F.2d 64 (3d Cir. 1993); White v. Napoleon, 897

F.2d 103 (3d Cir. 1990).

Here, Plaintiff’s injuries sustained on February 11, 2010,

namely, a fractured patella, would satisfy the first prong, the

objective prong (serious medical need), under Estelle to support

an Eighth Amendment violation. However, the allegations and the

medical records attached to the Complaint, fail to support the

second, subjective prong (deliberate indifference), necessary to

state an actionable Eighth Amendment claim. 

The record provided by Plaintiff shows that Plaintiff

received immediate medical treatment and that his recommended

13

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 13 of 15 PageID: 54
surgery was scheduled six days later. Rather, Plaintiff’s

allegations are premised on the fact that he was prescribed only

Tylenol with codeine for his pain, which Plaintiff contends was

not sufficient for the level of pain he was experiencing. He

also complains that he was given a “dilapidated” wheelchair

during this time, but the record shows that it was serviceable

for the short distances that Plaintiff had to travel. Further,

Plaintiff seems to argue that a six-day wait for surgery while he

was in pain was too long. 

Thus, at best, Plaintiff’s allegations show that he simply

disagreed with the level of medical care he received at the time,

and/or that he was dissatisfied with his medical treatment. As

stated above, “mere disagreements over medical judgment do not

state Eighth Amendment claims.” White, 897 F.2d at 110. Such

allegations sound in medical negligence, which is not actionable

under the Eighth Amendment as a claim of a constitutional

deprivation. See Farmer, 511 U.S. at 837-38. Accordingly, the

Complaint should be dismissed for failure to state a claim,

pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed with prejudice, in its entirety, as against all named

defendants, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

1915A(b)(1), for failure to state a claim upon which relief may

be granted. An appropriate order follows.

14

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 14 of 15 PageID: 55
s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: October 28, 2011 

15

Case 1:11-cv-02036-RMB -JS Document 2 Filed 10/28/11 Page 15 of 15 PageID: 56