Avila v. FCI Berlin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ernesto Avila
v. 	Case No. 19-cv-104-JL
FCI Berlin
REPORT AND RECOMMENDATION
Plaintiff, Ernesto Avila, formerly an inmate at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”), has filed a response (Doc. No. 8) to the April 7, 2020
Order (Doc. No. 6), which directed him to name the individuals
responsible for the incidents in his complaint relating to his
confinement in the FCI Berlin Special Housing Unit (“SHU”). 	The
court construes Mr. Avila’s response to that order as a
complaint addendum. 	The original complaint and complaint
addendum (Doc. Nos. 1, 8) are before the court for preliminary
review under LR 4.3(d)(1) and 28 U.S.C. § 1915A(a). 	The
standard applied in conducting this preliminary review is set
forth in the April 7, 2020 Report and Recommendation (“R&R”)
(Doc. No. 5). 	See also Aug. 4, 2020 Order (Doc. No. 9)
(approving April 7 R&R (Doc. No. 5)).
The court identifies the claims asserted in Doc. Nos. 1 and
8 as follows:
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1. 	FCI Berlin corrections officers and FCI Berlin medical
providers violated Mr. Avila’s Eighth Amendment right to
humane conditions of confinement, rendering them
individually liable for damages under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), in that:
a. 	Unnamed FCI Berlin corrections officers, aware
that plaintiff was a below-the-knee amputee, denied
him access to a shower with appropriate slip
protections prior to July 16, 2017, the date on which
he slipped and fell in the shower, bruising his knee,
and causing him severe pain that made walking
difficult and disrupted his sleep for ten days.
b. 	FCI Berlin officers and medical providers denied
plaintiff access to adequate medical care for the
injuries he suffered as a result of his July 16 slip-
and-fall, in that:
i. 	Corrections Officer (“C.O.”) Pieva, on July
16, took several minutes to respond after Mr.
Avila pushed the emergency button in his cell
shortly after the slip-and-fall;
ii. 	Nurse Bosen, on July 16, after hearing Mr.
Avila’s description of what happened and seeing
his bruised and swollen knee, checked Mr. Avila’s
blood pressure, but then provided no further
treatment;
iii. Nurse Ingersol, after hearing Mr. Avila’s
description of what happened and seeing his
bruised and swollen knee on July 16, gave him an
ice pack and promised to leave a note for Dr.
Pederson;
iv. 	Nurse Laflamme, after hearing Mr. Avila’s
description of what happened, and hearing his
complaint of severe pain in the morning, on July
17 and July 18, 2017, denied his request for an
ice pack and medical attention, telling him he
could see a doctor during the doctor’s next SHU
rounds on July 21, 2017; and
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v. 	FCI Berlin Health Services Administrator
Elmore, on July 20, after hearing Mr. Avila’s
description of what happened, hearing his
complaint of severe pain, and seeing his swollen
knee, arranged to have Nurse Bosen check Mr.
Avila’s blood pressure on July 20.
c. 	C.O. Warner, on July 27, 2017, in escorting
plaintiff, who was in handcuffs, from his cell, down a
flight of stairs, to a doctor’s appointment, and then
back up to his cell after the appointment, knowing
that walking caused Mr. Avila severe pain, offered to
let Mr. Avila lean against him, but denied his request
to use a wheelchair or the elevator to avoid the
stairs, saying, something to the effect of, “If you
want to see the doctor, you need to walk.”;
d. 	Corrections Officers and medical providers, aware
that plaintiff was a below-the-knee amputee who had
suffered injuries when he slipped in the shower on
July 16, 2017, denied him access to a shower with
appropriate slip protections, in that:
i. 	An unnamed C.O., on July 18, 2017, denied
Mr. Avila’s request to be moved to a cell with a
shower with slip protections, saying that there
was no cell like that in SHU;
ii. 	Nurse Bosen, on July 18, Nurse Laflamme on
July 19, and Nurse Ingersol on July 23, aware of
Mr. Avila’s request to be housed in a cell with
access to a shower with slip protections, and
aware he had not taken a shower since July 16,
each said they would look into whether he could
be moved to a “handicap cell,” but Mr. Avila did
not gain access to such a cell;
iii. On July 25, 2017, SHU Lt. Whittely denied
Mr. Avila’s request to be moved to a cell with a
shower with slip protections, explaining that
there were no such cells available, but then
provided plaintiff with a chair to use as a seat
while showering; and
iv. 	Dr. Pederson, after observing Mr. Avila’s
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expression of pain and his difficulty walking on
July 27, 2017, prescribed pain medication for
him, but told him she could not do anything about
moving him to a cell with a shower with slip
protections.
2. 	The United States is liable to plaintiff for the
tortious acts or omissions of federal employees, summarized
in Claims 1(a)-(d), including subparts.
Discussion
I. 	Eighth Amendment Claims
A. 	Elements
The Eighth Amendment prohibits prison officials from
denying inmates “the minimal civilized measure of life’s
necessities.” 	Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 	A
plaintiff asserting an Eighth Amendment prison conditions claim
must allege objectively “extreme” deprivations. 	Hudson v.
McMillian, 503 U.S. 1, 9 (1992). 	Further, the plaintiff must
show that the responsible defendants acted with deliberate
indifference to the plaintiff’s health or safety. 	See Farmer v.
Brennan, 511 U.S. 825, 834 (1994). 	“‘[A] prison official cannot
be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety.’”
Giroux v. Somerset Cnty., 178 F.3d 28, 32 (1st Cir. 1999)
(citations omitted).
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B. 	Bivens
Under certain circumstances, a Bivens remedy for damages
may be available when federal officers or medical providers are
alleged to have violated an inmate’s Eighth Amendment rights.
See, e.g., Carlson v. Green, 446 U.S. 14, 20-23 (1980).
Deliberate indifference to the serious medical needs of
prisoners constitutes the “‘unnecessary and wanton infliction of
pain’ proscribed by the Eighth Amendment.” 	Abernathy v.
Anderson, 984 F.3d 1, 3 (1st Cir. 2020) (citations omitted).
To succeed on a deliberate indifference claim . . . a
plaintiff must satisfy a two-prong standard. 	First, a
plaintiff must show, as an objective matter, that he
has a “serious medical need[]” that received
inadequate care. 	A serious medical need is that which
“has been diagnosed by a physician as mandating
treatment, or one that is so obvious that even a lay
person would easily recognize the necessity for a
doctor’s attention.” 	“The ‘seriousness’ of an
inmate’s needs may also be determined by reference to
the effect of the delay of treatment.” . . .
Second, even if the plaintiff satisfies the
objective prong, “the Eighth Amendment is not violated
unless prison administrators also exhibit deliberate
indifference to the prisoner’s needs.” 	Deliberate
indifference under this subjective prong requires
evidence that the failure in providing treatment to
the plaintiff was purposeful. 	Thus, an “inadvertent
failure to provide adequate medical care” does not
give rise to a constitutional claim. 	This prong can
also be met by showing a “wanton disregard to a
prisoner’s needs . . . akin to criminal recklessness,
requiring consciousness of impending harm, easily
preventable.”
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Id. (citations omitted). 	This court previously found that in
the original complaint (Doc. No. 1), Mr. Avila had not pleaded
sufficient facts regarding his housing situation and the use of
the stairwell, his fall in the shower, and the denial of medical
care, to state an Eighth Amendment deliberate indifference claim
upon which relief can be granted.
In Document No. 8, Mr. Avila names individuals who he
alleges had knowledge regarding his condition and failed to take
sufficient steps to provide him with prompt, appropriate medical
care, and failed to grant him access to a shower with slip
protections. 	Claims 1(a), 1(b)(i), and 1(d)(i)-(iv), as
summarized above, are not supported by factual allegations
sufficient to show deliberate indifference to, or subjective
awareness of, a substantial risk of serious harm. 	Accordingly,
as to those claims, Mr. Warren has failed to state a claim upon
which relief can be granted against any defendant identified as
defendants to those claims.
Without precluding defendants’ ability to move to dismiss
Mr. Avila’s claims upon any appropriate ground, including
failure to state a claim upon which relief can be granted, the
court concludes that the allegations underlying Claims 1(b)(ii)-
(v) and 1(c) are sufficient to survive this court’s preliminary
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review. 	The court directs service of the Complaint and
Complaint Addendum (Doc. Nos. 1, 8) upon the defendants
identified in those claims (Nurses Bosen, Ingersol, and
Laflamme; Health Services Administrator Elmore; and C.O.
Warner). 	All other individual defendants should be dropped from
this case as defendants as Mr. Warren has failed to state any
claim against them upon which relief can be granted.
II. 	Federal Tort Claims Act (Claim 2)
The court has liberally construed the complaint as
intending to state claims that the wrongful conduct of unnamed
individual officers and medical providers caused him physical
injuries and pain. 	The Federal Tort Claims Act (“FTCA”)
provides this court with jurisdiction over certain claims for
damages asserted against the United States, arising from
allegations that federal employees caused personal injuries
through their tortious acts or omissions. 	See 28 U.S.C.
§§ 1346(b)(1), 2674. 	The court provided Mr. Avila an
opportunity to plead FTCA claims similar to those that the court
has identified as Claim 2, by directing him to name the “United
States” as the defendant, to demonstrate that he had exhausted
his administrative remedies by having already presented his tort
claims to the appropriate federal agency, and by having obtained
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a final agency decision on those claims. 	See 28 U.S.C. § 2675.
Although Mr. Avila has failed to name the United States as
a defendant to his claims, Mr. Avila’s original complaint states
that he exhausted his BOP administrative remedies on his claims
of deliberate indifference and inadequate medical care. 	In
fairness to a pro se party, the court concludes that Mr. Avila
has sufficiently pleaded FTCA claims arising out of each of the
incidents summarized above as Claims 1(a)-(d), including
subparts, in which the officers and medical providers identified
by name or job title are alleged to have acted negligently in
the course of their employment, causing Mr. Avila injuries.
Accordingly, in the Order issued this date, the court has
directed service of Claim 2 (the related FTCA claim) upon the
United States.
Conclusion
For the foregoing reasons, the district judge should
dismiss the Eighth Amendment claims asserted in Document Nos. 1
and 8 that are identified in this R&R as Claims 1(a), 1(b)(i),
and 1(d)(i)-(iv); and drop FCI Berlin, C.O. Pieva, Lt. Whittely,
and Dr. Pederson as defendants. 	Any objections to this Report
and Recommendation must be filed within fourteen days of receipt
of this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
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period may be extended upon motion. 	Failure to file objections
within the specified time waives the right to appeal the
district court’s order. 	See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
_________________________
Andrea K. Johnstone
United States Magistrate Judge
January 26, 2021
cc: 	Ernesto Avila, pro se
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