United States District Court, W.D. Louisiana, Lake Charles Division
RICO TAYLOR REG. # 90834-071
UNITED STATES OF AMERICA, ET AL.
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.
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”).
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.
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.
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.
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.
Law & Analysis
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. §
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 ...