Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Weir v. R. Myers

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

November 13, 2018

JOSEPH A. WEIR REG. # 15526-032
v.
R. MYERS, ET AL.

          MEMORANDUM ORDER

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.

         Before the court is a civil rights complaint filed pursuant to Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999 (1971), by plaintiff Joseph A. Weir, who is proceeding pro se and in forma pauperis in this matter. Weir is an inmate in the custody of the Bureau of Prisons and is currently incarcerated at the Federal Correctional Institution at Oakdale, Louisiana (“FCIO”), where the events giving rise to his claims occurred. This matter has been referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of this court.

         I.

         Background

         Weir's complaint arises from an injury he sustained to his foot while at FCIO, and the medical care he received thereafter. Doc. 6, att. 1. He makes the following allegations: On the night of December 2, 2017, he slipped while attempting to climb a stationary desk in order to reach his top bunk. Id. at 3. He explained the injury to three corrections officers who came to his cell and asked for medical assistance, but was not taken to health services until the next morning. A nurse assured Weir that he would order X-rays for the following day, but when Weir followed up with Nurse Moody the following day, she only stated that she would “have to see about X-rays.” Id. at 4.

         Weir did not receive an X-ray until December 15. Id. at 3, 5. The X-ray showed a fracture to Weir's fifth metatarsal in his right foot, and he was given a medical boot and sent back to his cell. Id. at 3. Two weeks later, he saw an orthopedic surgeon who took X-rays and recommended surgery. Doc. 6, p. 3; doc. 6, att. 1, pp. 3-4. On January 5, 2018, however, Weir received another X-ray at FCIO and was then told by FCIO physician Joel Alexandre that surgery was not warranted and that the foot would “heal fine on [its] own.” Doc. 6, att. 1, p. 4. On January 24, however, a nurse told him that “some things have changed and we're now putting you in for surgery.” Id. The surgery was approved by the regional office on February 1, but then cancelled without explanation by medical staff shortly thereafter. Id. Weir returned to health services, telling Nurses Howard and Chano that he was in tremendous pain, but neither would examine him or put his surgery back on the schedule. Id.

         On April 24, Weir returned to the orthopedic surgeon. Id. After another X-ray, the surgeon told him that the foot had not healed properly and that surgery was the only option. Id. Weir asked about the cancelled first surgery and the orthopedic surgeon said that he was not the one who had cancelled it. Id. The surgery took place on August 23, 2018, and resulted in nine screws and a permanent rod being placed in Weir's foot.[1] Id. at 5. FCIO staff then forgot to schedule him to have his stitches removed, resulting in the procedure being done at 24 days after his operation rather than the recommended ten to twelve. Id. at 16. As a result, the wound was scabbed over by the time stitches were removed and the procedure was “extremely painful[].” Id. at 16. After the surgery, Weir complains, he is permanently disabled and struggles with chronic pain. Id. at 6-7.

         Weir now brings suit against FCIO medical personnel Dr. Joel Alexandre, Rashawda Moody, Heather Howard, and Nurse Chano, as well as the following FCIO and BOP administrative staff: Warden R. Myers, Warden J.S. Willis, and Regional Director J.F. Caraway. Finally, in the civil coversheet to his original deficient complaint, he names the United States as a party. He complains of the lack of ladder access to top bunks, as well as the delays in treatment at FCIO and the resulting complications of his injury and extension of his pain and suffering. As a result, he seeks compensatory damages and injunctive relief to have ladders remounted to all the bunk beds. Doc. 6, p. 4.

         II.

         Law & Analysis

         A. Frivolity Review

         Weir 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 allegations as true. Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995) (frivolity); Bradley v. Puckett, 157 F.3d at 1025 (failure to state a claim).

         B. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.