United States District Court, W.D. Louisiana, Lake Charles Division
JOSEPH A. WEIR REG. # 15526-032
R. MYERS, ET AL.
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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. 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
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.
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 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).