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Taylor v. United States

United States District Court, W.D. Louisiana, Lake Charles Division

March 9, 2018

RICO TAYLOR REG. # 90834-071
v.
UNITED STATES OF AMERICA, ET AL.

         SECTION P

          TRIMBLE JUDGE.

          AMEND ORDER

          KAY MAGISTRATE JUDGE.

         Before the court is a complaint [doc. 6] filed pursuant to Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999 (1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., by Rico Taylor, who is proceeding pro se and in forma pauperis in this matter.

         Taylor is an inmate in the custody of the Bureau of Prisons (“BOP”) and is currently incarcerated at the Federal Correctional Institute in Butner, North Carolina (“FCI-Butner”). His complaint relates to events that allegedly occurred at the Federal Correctional Institute in Oakdale, Louisiana (“FCIO”).

         I. Background

         Taylor alleges that various FCIO staff members failed to properly evaluate and treat raised areas in his groin from October 2013 until December 2014, delaying biopsy of that area over the course of several months, preventing him from consulting him with an oncologist, and instead subjecting him to painful excisions which he maintains caused a cancer to spread across his pelvic area and invade the bone. Specifically, he asserts that medical practitioners at FCIO failed to treat his pain and discomfort, and delayed surgical intervention until August 26, 2014, despite a general surgeon's recommendation on June 9, 2014 that removal/biopsy be done “ASAP.” Doc. 6, pp. 5- 7; see doc. 6, att. 1, pp. 5, 7. He alleges that the physician who made this recommendation advised that his growth was “highly cancerous” and contends that his medical records are “replete with subjective knowledge of family history diagnosis of cancer.” Doc. 6, p. 5. However, he complains that the August 2014 surgical intervention involved only excision and not biopsy. Doc. 6, pp. 6- 7. He alleges that a wider excision was made on September 4, 2014, and that he was then recommended for an oncology consult. Id. at 7-8. He states that he was told by some unidentified person that he should have seen an oncologist before any incision was made. Id. at 8. He also maintains that he received no treatment for his pain until a mid-level practitioner prescribed ibuprofen in July 2014, nine months after he first began to complain of the condition and after repeated sick calls. Id. at 3-6. He continued to complain of pain and eventually received a prescription for Tylenol 3 in August 2014. Id. at 6.

         Taylor states that in October 2014, FCIO Health Services Administrator C. Sonnier and Clinical Director J. Alexander took him behind the recreational building at FCIO and told him that “he really needed no treatment from an oncologist, ” that they had “the right to not respect a contractor's recommendation, ” and that he should “keep his mouth shut.” Id. at 8. Taylor states that he tried to tell them about new lesions but was again told to keep his mouth shut. Id. He then began filing requests for administrative remedy based on his medical care. Id.; see doc. 6, att. 1, pp. 61-65. He states that he met with Assistant Health Services Administrator H. Howard at the end of October and was promised a consult with an oncologist if he would rescind his grievances. Id. at 8-9. Taylor states that he agreed to these terms. Id. at 9.

         Taylor alleges that he received two consults with an oncologist in November 2014 and that this physician recommended six weeks radiation therapy, which was scheduled to begin on December 26, 2014. Id. However, he maintains, an attorney contacted FCIO on his behalf on December 23, 2014, and Taylor was then urgently transferred to another institution. Id. at 9-10. Taylor states that his radiation treatments were denied at the new institution, and that he continues to suffer pain and disability as a result of the lesions and delays/deficiencies in treatment at FCIO. Id. at 9-10. His allegations in his administrative tort claim reflect that he continued to see providers at and near FCI-Butner throughout 2015 and 2016 and that he underwent another excision in July 2016, after which he was diagnosed with a dermatofibrosarcoma. Doc. 6, att. 1, pp. 9-10.

         Taylor has provided proof of his presentment of the claim under the FTCA's requirements, infra, through the rejection on January 18, 2017, of an administrative tort claim filed in August 2016, and a final denial after request for reconsideration on July 31, 2017. See doc. 6, att. 1, pp. 2-3. He has also provided requests for administrative remedies filed between October 2014 and September 2015. Id. at 12-65. Taylor now seeks relief through the instant suit, filed on or about January 29, 2018. Doc. 1.

         II. Law & Analysis

         A. Frivolity Review

         Taylor has been granted leave to proceed in forma pauperis in this matter. Accordingly, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2), which provides for sua sponte dismissal of the complaint or any portion thereof if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

         A complaint is frivolous if it lacks an arguable basis in law or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). A complaint fails to state a claim upon which relief may be granted if it is clear the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). When determining whether a complaint is frivolous or fails to state a claim upon which relief may be granted, the court must accept plaintiff's ...


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