Dulce Cuco v. Federal Medical Center, Lexington

Joe Booker, Jr., W arden; Dr. Michael Growse, FM C-Lexington Clinical Director; Rebecca Durbin,
1
Physician’s Assistant; Paulette Shirley, Registered Nurse; Quentin Moore, Nurse Practitioner; Dr. Linda De Hoyos;
Dr. Pam Schneider; Belinda Snead, Associate W arden; Ranulfo Mendoza, Physician’s Assistant; Robert W illiams,
Physician’s Assistant; Rosie Harless, Executive Assistant; Teri W ard, Unit Manager; Phillip LaFleur, Physician’s
Assistant; Matthew Zagula, Physician’s Assistant; and Dr. Susan W ilcox.
Dr. Pam Schneider is not a federal employee. Instead, she was a contract physician not directly employed
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0847n.06
Filed: December 13, 2007
Case No. 06-5849
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DULCE CUCO,
Plaintiff-Appellant,
v.
FEDERAL MEDICAL CENTER,
LEXINGTON; JOE BOOKER, JR., Warden;
MICHAEL GROWSE; REBECCA
DURBIN; PAULETTE SHIRLEY;
QUENTIN MOORE; LINDA DE HOYOS;
PAM SCHNEIDER; BELINDA SNEAD;
RANULFO MENDOZA; ROBERT
WILLIAMS; ROSIE HARLESS; TERI
WARD; PHILLIP LAFLEUR; MATTHEW
ZAGULA; SUSAN WILCOX, Individually
and in their Official Capacities,
Defendants-Appellees.
_______________________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
BEFORE: BATCHELDER, COLE and GRIFFIN, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Plaintiff Dulce Cuco appeals the district
court’s order granting summary judgment to the Federal Medical Center-Lexington (“FMC-
Lexington”) and numerous federal prison officials and healthcare providers , in both their individual1

-- 1 of 5 --

by the Bureau of Prisons. The district court, however, assumed without deciding that Dr. Schneider “may be
considered a federal actor subject to civil rights liability,” and therefore granted summary judgment in favor of Dr.
Schneider, along with the other federal Defendants. Cuco has not challenged this aspect of the district court’s
opinion. For the purposes of this opinion, we will likewise consider Dr. Schneider a federal actor subject to civil
rights liability.
2
and official capacities (collectively “Defendants”), on her claim that the Defendants violated, inter
alia, the Eighth Amendment’s prohibition on cruel and unusual punishment. Cuco also appeals the
district court’s denial of her motions to amend her complaint and to delay consideration of the
Defendants’ summary judgment motion pending further discovery.
Cuco entered the FMC-Lexington on November 11, 2003, to serve a 10-month prison term
following her conviction for conspiring to make a false alien employment application. Cuco, a
morbidly obese woman, suffers from anemia, and prior to entering the FMC-Lexington, she had
followed a treatment regimen of intravenous iron (“IV iron”) to combat her anemia. She used IV
iron because oral iron supplements upset her stomach, causing her significant pain. Upon entering
the FMC-Lexington, she apprised the medical staff of her anemia and IV iron therapy. She alleges
that the Defendants refused to treat her anemia with IV iron therapy and instead gave her oral iron
supplements, even though the oral iron was not as effective and caused her gastric upset. Cuco also
began to experience extremely heavy and long-lasting menstrual cycles. Throughout her
incarceration, Cuco complained of fatigue, dizziness, gastric pain and discomfort, and continued
heavy menstrual bleeding. She was released on August 11, 2004, to report to a half-way house in
New Jersey. Cuco alleges that she was instead admitted immediately to a nearby hospital where she
remained for a week and received several blood transfusions.
Cuco brought suit against the FMC-Lexington and members of its administrative and medical
staff. She alleged (1) an Eighth Amendment deliberate indifference claim, pursuant to 42 U.S.C. §

-- 2 of 5 --

3
1983; (2) claims arising under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
(“ADA”); and (3) pendent state law claims arising under Kentucky common law concerning
negligence, gross negligence, and intentional infliction of emotional distress. The government filed
a motion to dismiss, or, in the alternative, a motion for summary judgment, on the grounds of
sovereign and qualified immunity and the statute of limitations. In response, Cuco moved to delay
consideration of the Defendants’ motion for summary judgment pursuant to Rule 56(f) of the Federal
Rules of Civil Procedure; she also sought to amend her complaint to add a claim under the
Rehabilitation Act, 29 U.S.C. § 701, et seq., against the FMC-Lexington and tendered an amended
complaint adding the United States as a defendant and adding a claim under the Federal Tort Claims
Act, 28 U.S.C. §§ 2671-2680 (“FTCA”), against the United States.
The district court issued an exhaustive 89-page opinion dismissing all of Cuco’s claims.
After construing Cuco’s § 1983 claims as claims brought pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the district court concluded that (1)
sovereign immunity barred suit against the FMC-Lexington and the Defendants in their official
capacities; (2) the exclusivity provision in the FTCA barred the Bivens claims against the individual
defendants who were commissioned officers with the U.S. Public Health Services; (3) the Bivens
claims failed as against the administrative staff because they had no personal involvement in Cuco’s
medical care; (4) certain Bivens claims — including her inappropriate-treatment-of-anemia claim
— were barred by the statute of limitations as to the medical officials even though Cuco’s efforts to
exhaust her administrative remedies tolled the limitations period for a short time; (5) the “continuing
violations” doctrine did not further toll the statute of limitations; (6) even if the statute of limitations
did not bar all of Cuco’s Bivens claims, she failed to establish that the individual Defendants violated

-- 3 of 5 --

4
her constitutional rights; and (7) that even if Cuco demonstrated that her medical treatment violated
her rights under the Eighth Amendment, the individual Defendants were still entitled to qualified
immunity.
The district court dismissed Cuco’s ADA claim and denied Cuco’s motion to amend the
complaint to add a Rehabilitation Act claim, finding that, as a matter of law, such a claim could not
survive a motion to dismiss. The court found that Cuco’s pendent state law claims were barred by
the FMC-Lexington’s sovereign immunity and the individual Defendants’ absolute immunity. The
court also refused to accept Cuco’s tendered amended complaint, finding that Cuco did not timely
move to add the United States as a defendant and the amendment did not relate back to the original
complaint.
Cuco timely appealed, limiting her appeal to whether the district court erred (1) in finding
that she did not state an Eighth Amendment claim against the Defendants for their inappropriate
treatment of her anemia; (2) in denying her motion to amend her complaint and add (a) the
Rehabilitation Act claim and (b) the United States as a defendant with a corresponding FTCA claim
against the United States; (3) in its calculation of the tolling period for the statute of limitations and
in its finding that the “continuing violations” doctrine was inapplicable; and (4) in denying her the
opportunity to conduct further discovery under Rule 56(f) of the Federal Rules of Civil Procedure.
Having carefully considered the record on appeal, the briefs of the parties, and the applicable
law, and having had the benefit of oral argument, we are convinced that the district court did not err
in its conclusions, nor did it abuse its discretion in denying Cuco’s motions to amend and to conduct
further discovery. As the district court’s extensive opinion carefully and correctly sets out the law
governing Cuco’s claims and clearly articulates the reasons underlying its decision, the issuance of

-- 4 of 5 --

5
a full written opinion by this court would serve no useful purpose. Accordingly, for the reasons
stated in the district court’s opinion, we AFFIRM the judgment. However, because the district
court’s Memorandum Opinion and Order correctly holds that the claims in the complaint are to be
dismissed with prejudice, but the Judgment memorializing the Opinion and Order dismisses them
without prejudice, we REMAND with instructions that the district court dismiss this matter with
prejudice.

-- 5 of 5 --