Fliber Franco-Calzada v. United States of America

BLD-128 NOT PRECEDENTIAL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

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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

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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

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We need not reach the issue whether Maleska bars Bivens claims against the1
individual defendants in this case because we conclude that the appeal has no arguable
merit in any event.
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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 Court1
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.

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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,

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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

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

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