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Andreozzi v. Unknown Ricotta

United States District Court, D. Arizona

October 12, 2018

Armand Andreozzi, Plaintiff,
v.
Unknown Ricotta, et al., Defendants.

          ORDER

          David G. Campbell Senior United States District Judge.

         On July 30, 3018, Plaintiff Armand Andreozzi, who is confined in the United States Penitentiary (USP)-Marion in Marion, Illinois, filed a pro se civil rights Complaint (Doc. 1) and paid the filing fee. On August 24, 2018, Plaintiff filed a Motion for Service (Doc. 3). The Court will order Defendants Ricotta, Asberry, Smith 1, Briggs, Ackley, Tracy, Mitchell, and Connors to answer Count One of the Complaint, will order Defendants Ricotta, Asberry, Tracy, Mitchell, and Connors to answer Count Two, will dismiss the remaining claims and Defendants without prejudice, and will deny the Motion for Service as moot.[1]

         I. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

         A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.

         But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).

         II. Complaint

         In his six-count Complaint, Plaintiff asserts that the Court has jurisdiction pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); 28 U.S.C. § 1331; and the Administrative Procedures Act (5 U.S.C. § 701 et seq) (“the APA”). Plaintiff has named several Defendants, who work or worked at various federal correctional facilities, and numerous fictitiously identified Defendants, Jane/John Does 1-54.

         Plaintiff sues the following Defendants: Federal Correctional Institution (FCI)-Phoenix Health Services Clinical Director Doctor Ricotta; FCI-Phoenix Health Services Administrator Trainee Asberry; FCI-Phoenix Health Services Associate Warden Smith (“Smith 1”); FCI-Phoenix Health Services Nurse Practitioner Briggs; FCI-Phoenix Health Services Administrator Ackley; FCI-Phoenix Warden Kathryn Tracy; Western Regional Director Mary Mitchell; National Inmate Appeals Administrator Ian Connors; USP-Lewisburg E Unit Case Manager Giordani; USP-Lewisburg E Unit Manager Childress; USP-Lewisburg Warden Williamson; USP-Victorville Warden Norwood; Federal Medical Center (FMC)-Devens GA-Unit Manager Hutton; FMC-Devens Warden Grondolsky; FCI-McKean BB Unit Counselor Smith (“Smith 2”); FCI-McKean BB Unit Manager Wilson; FCI-McKean Warden Bobby Meeks; FCI-Big Spring Sunrise Unit Case Manager Jones; FCI-Big Spring Warden Batts; FCI-Mendota Warden Raphael Zuniga; FCI-Phoenix Navajo Unit Counselor Powell; FCI-Phoenix Navajo Unit Case Manager Jefferson; FCI-Phoenix Navajo Unit Manager Dosanj; FCI-Phoenix Case Manager Coordinator Wastell; FCI-Phoenix Associate Warden Jones; USP-Marion L Unit Counselor Dooley; USP-Marion L Unit Case Manager Clark; USP-Marion N Unit Counselor Basler; USP-Marion N Unit Case Manager Murphy (“Murphy 1”); USP-Marion L and N Unit Manager Byrum; USP-Marion Case Manager Coordinator Daun; USP-Marion Associate Warden Powers; USP-Marion Warden True; North Central Regional Director Sara M. Revell; the United States of America; the Federal Bureau of Prisons; FMC-Devens Discipline Hearing Officer Anthony Amico; FCI-McKean Discipline Hearing Officer Schnieder; Northeast Regional Director Norwood; FCI-McKean Special Investigations Officer Michael Murphy (“Murphy 2”); and National Inmate Appeals Administrator Rodgers.

         In Count One, Plaintiff asserts a medical care claim and alleges that he was diagnosed with bilateral Morton's neuroma, [2] which is documented. (Doc. 1 at 9.)[3] On November 15, 2015, Plaintiff was transferred to FCI-Phoenix and had a Chronic Care appointment with Defendant Ricotta on November 19, 2015. (Id.) Plaintiff informed Ricotta that prior to his transfer from FCI-McKean to FCI-Phoenix, a new pair of orthotics had been ordered on his behalf. (Id.) On November 29, 2015, Plaintiff emailed Ricotta to inquire about the orthotics. (Id.) Plaintiff received a response to the email, but it did not address the orthotics. (Id.) On December 22, 2015, Plaintiff sent another email to Ricotta requesting new orthotics, but he did not receive a response. (Id.) On January 11, 2016, Plaintiff spoke to Defendant Asberry, and Asberry told Plaintiff that orthotics had not been ordered and to report to sick call because the orthopedic surgeon's recommendations from FCI-McKean “would not be accepted at [FCI-] Phoenix.” (Id.) Plaintiff was told that “an orthopedic referral was made, ” but he contends that “a referral was not made.” (Id.) On February 16, 2016, Plaintiff filed a “BP-8.” (Id.) On February 18, 2016, Plaintiff sent a third email requesting orthotics. Ricotta responded, but failed to address Plaintiff's request for orthotics. (Id.) On February 29, 2016, Plaintiff sent a fourth email outlining “the entire situation, ” but he did not receive a response. (Id.)

         On March 1, 2016, Defendant Asberry offered Plaintiff “Spenco arch supports, ” but Plaintiff told Asberry the supports would not suffice because the same supports had not alleviated his condition in 2011. (Id. at 10.) Plaintiff also demonstrated why the arch supports “were not the proper medical device.” (Id.) On March 2, 2016, Plaintiff showed Asberry his “Medical Duty Status sheet, ” which showed that Plaintiff had the arch supports in 2011. (Id.) Asberry threatened Plaintiff with “treatment refusal.” (Id.) On March 4, 2016, Asberry asked Plaintiff to try the supports, so Plaintiff accepted the arch supports “on a trial basis.” (Id.) Asberry did not tell Plaintiff that he would need to start at “square one” and return to sick call if the supports were again ineffective. (Id.)

         On March 11, 2016, Plaintiff received a response from Asberry to his BP-8, which incorrectly stated that the supports could be trimmed to the appropriate length. (Id.) Even when the supports are trimmed down “all the way, ” they were still too long for Plaintiff, and the “plastic plate puts pressure on the exact point of the inflamed nerve.” (Id.) Plaintiff claims that Asberry was aware of that issue on March 2, 2016. Asberry then encouraged Plaintiff to return to sick call “for further evaluation . . . .” (Id.)

         On March 14, 2016, Plaintiff spoke to Defendant Smith 1 and asked Smith 1 if Asberry “put together the packet of medical issues Asberry was ordered to do in January 2016.” (Id.) Smith 1 told Plaintiff that Asberry had not done so, and Plaintiff asserted the failure was a “violation of the Standards of Employee Conduct.” (Id.) Smith 1 summoned Asberry to discuss the issues, and when Plaintiff asked Asberry about his directive to Plaintiff to return to sick call for an orthopedic referral, Asberry stated that he “thought [Plaintiff] was talking about orthopedic boots.” (Id.) Plaintiff denied ever mentioning orthopedic boots and asserted that Asberry was intentionally lying to Smith 1. (Id.) Plaintiff also claims that Smith 1 was aware that Asberry had lied and “stood there staring at the sky with his hands in his pockets.” (Id.) Smith 1 then told Plaintiff to return to the sick call “as his and Asberry's way out.” (Id.)

         On March 31, 2016, Plaintiff filed another BP-8 complaining about Ricotta, Asberry, and Smith 1 and requested an investigation. (Id.) The BP-8 was directed to Special Investigation Agent Kline, but Plaintiff contends that Kline failed to investigate or process the BP-8 or to forward the complaint to the Federal Bureau of Prison's (BOP) Internal Affairs Division, as requested. (Id.) Plaintiff filed a complaint with the Internal Affairs Division, but he “did not receive so much as an acknowledgement letter.” (Id.)

         On March 15, 2016, Plaintiff returned to sick call. (Id.) Having received no status updates regarding his request for an orthopedic referral or orthotics, Plaintiff returned to sick call on April 11, 2016. (Id. at 11.) Plaintiff told Defendant Briggs that his condition had worsened, he had two numb toes, and he had severe pain in the ball of his foot. (Id.) Briggs told Plaintiff there was “nothing she could do.” (Id.) Plaintiff asked Briggs to document his worsened condition in his records. (Id.) Briggs “then became angry and refused [the] request for documentation.” (Id.) The same day, Plaintiff emailed Defendant Ackley, but he did not receive a response. (Id.)

         On April 19, 2016, Plaintiff filed another BP-8 and attached four witness statements to corroborate his assertion that the April 11 sick call visit was “five minutes or less.” (Id.) Defendant Dosanj “ignored the issue and witness statements in her response.” (Id.) Dosanj stated that Briggs had submitted a request for Plaintiff to be seen by a specialist on April 11. (Id.) However, Defendant Tracy stated in a response to a BP-9 that the consult request was submitted on March 15. (Id.) Plaintiff claims that Tracy and Dosanj's responses were contradictory and that “staff stated anything in an attempt to cover their tracks . . . .” (Id.) Plaintiff claims that “862764-Fl response explains every issue regarding Health Services and is used as a smoke screen to ignore the refusal of treatment and sick call, failure to document [Plaintiff's] worsening condition, request for investigation, and the formal staff complaint.” (Id.)

         On June 13, 2016, Plaintiff filed a BP-10, appealing Tracy's denial of “862764-Fl.” (Id.) Defendant Mitchell responded, but failed to address the alleged “refusal to treat at sick call and/or the staff complaint.” (Id.) Plaintiff reported Ricotta's refusal to treat him during his Chronic Care visit, the ignored emails, the “mandated repeat visits to sick call, ” the threat of “treatment refusal, ” the refusal to accept the documentation of Plaintiff's diagnosed condition, and the mandated referral to another orthopedist. (Id. at 11-12.) Mitchell stated that Plaintiff's condition was “self-reported” and directed Plaintiff to report to sick call for further evaluation if he experienced new or worsening symptoms. (Id. at 12.) Plaintiff appealed Mitchell's denial to BOP's Central Office, but he did not receive a response. (Id.)

         On June 15, 2016, Plaintiff was evaluated by an orthotics technician and informed that it would take thirty days to receive an approval for the orthotics, and following approval, Plaintiff would be fitted for the orthotics. (Id.) Plaintiff was not seen by a doctor or specialist, and he did not receive any treatment for his numb toes or severe pain. (Id.) On June 28, 2016, Plaintiff received Mitchell's response to the BP-10, which allegedly misstated many facts regarding Plaintiff's medical history and again stated that Plaintiff's Morton's neuroma was self-reported, even though Plaintiff had attached his medical records contradicting that assertion. (Id.) Plaintiff contends that Mitchell and Tracy “ignored all issues” and concluded that no one had acted with deliberate indifference to Plaintiff's serious medical needs. (Id.)

         Fifty days after his June 15 appointment, Plaintiff emailed Defendant Ackley and “outlined the situation and requested status.” (Id.) On August 5, 2016, Plaintiff received a response from Ackley, which stated that the “shoes and inserts were ordered” and that Ackley had sent a request inquiring about the status of those items. (Id.) Plaintiff contends that Ackley's response “ignored the bulk of the e-mail.” (Id.) On August 17, 2016, Ackley emailed Plaintiff asking what size shoe he wore because the order for the custom orthotics was missing that information. (Id.) Plaintiff contends, therefore, that as of August 5, 2016, the shoes and inserts had not been ordered. (Id.) “They were not signed off and approved by [Defendant] Ricotta until 9/8/2016.” (Id.) Plaintiff claims that Ackley's assertion that he did not have Plaintiff's shoe size was “a bald-face[d] lie[, ]” as his shoe size was “clearly identified on the Consultation Care Form, ” which was delivered to Ackley and Ricotta on June 15, 2016. (Id.) Mitchell also had access to the form. (Id.)

         On August 15, 2016, Plaintiff again reported to sick call because his condition had worsened, and he had sciatica in his left side because of trying to keep weight off of his right foot. (Id. at 12-13.) Plaintiff requested treatment “for everything, ” but he did not receive any treatment. (Id. at 13.) On August 16 and 26, Plaintiff submitted a Request to Staff form requesting treatment for his numb toes, severe pain, and sciatica. Plaintiff did not receive a response or treatment. (Id.)

         Subsequently, Plaintiff filed a BP-11 appealing Mitchell's denial of the BP-10. (Id.) Defendant Connors “ignored the issues” and stated that the final fitting of the orthotics would be scheduled, that there was no evidence to suggest that anyone had acted with deliberate indifference to Plaintiff's serious medical needs, that Plaintiff had received adequate medical care, and that Plaintiff should comply with the treatment plan. (Id.) Plaintiff claims that Connors was aware that the request for orthotics was signed and approved only five days prior to his response. (Id.)

         As his injury, Plaintiff alleges he suffered two numb toes, severe pain, and psychological trauma. (Id. at 9.)

         In Count Two, Plaintiff alleges that he was diagnosed with reflux esophagitis in 2002, which is documented. (Id. at 16.) Previously, Plaintiff was prescribed ranitidine aciphex and omeprazole. (Id.) On November 19, 2015, Plaintiff had a Chronic Care appointment with Defendant Ricotta. Plaintiff told Ricotta that his reflux esophagitis had been diagnosed thirteen years prior and that he was properly enrolled in Gastrointestinal Chronic Care (“GI CC”). (Id.) Ricotta stated that he would only write a 30-day prescription for omeprazole, and when that prescription expired, Ricotta refused to renew the prescription. (Id.) On January 13, 2016, Plaintiff reported to sick call because his condition had worsened, and he was experiencing severe pain. (Id.) Plaintiff requested a new prescription, further treatment, and referral to a gastrointestinal specialist. (Id.) Plaintiff contends that “[n]o action was taken on any of those requests.” (Id.)

         On January 19, 2016, Plaintiff filed a BP-8 based on a denial of medication. (Id.) On January 21, 2016, Defendant Asberry responded that Defendant Ricotta had discontinued Plaintiff's GI CC because “acid reflux as the lone diagnosis does not meet the criteria for a GI CC.” (Id.) Plaintiff claims that Asberry failed to thoroughly review Plaintiff's medical records and “used the fall-back-crutch, ” by telling Plaintiff to return to sick call if he needed further evaluation or if his conditions worsened. (Id.) Plaintiff claims that Asberry's response “conceded [Plaintiff] was enrolled in the proper CC for GI and arbitrarily removed.” (Id. at 17.)

         Plaintiff then filed a BP-9, and Defendant Tracy responded on February 21, 2016. (Id.) The response “regurgitated Asberry's BP-8 response” and stated that Plaintiff “had not been diagnosed with any of the conditions listed by Asberry.” (Id.) Tracy further stated that Ricotta told Plaintiff that indigent prisoners could request over-the-counter medications from the pharmacy. (Id.) Tracy then outlined the procedure for requesting over-the-counter medications and directed Plaintiff to report to sick call if his conditions worsened. (Id.) Plaintiff claims that Ricotta did not tell Plaintiff that he could request over-the-counter medications from the pharmacy because “that subject matter was not at issue . . . .” (Id.) Plaintiff further claims that Defendants Tracy, Ricotta, and Asberry would have known that he had not been diagnosed with acid reflux if they had reviewed his medical records. (Id.) Plaintiff also contends that medical staff failed to document his complaints about his condition worsening after his sick call visit on January 13, 2016. (Id.)

         On February 21, 2016, Plaintiff filed a BP-10, appealing Tracy's denial of the BP-9. Plaintiff claimed that Tracy ignored “the issues” and made false statements. (Id.) Plaintiff also noted the January 13 sick call in which he reported his worsening condition. (Id.) On May 2, 2016, Defendant Mitchell responded and focused on Plaintiff's trust fund account balance, indigency status, and over-the-counter-medications and failed to address “the medical issue.” (Id.) Mitchell also stated that “there was an ‘examination' for GI CC” scheduled on November 19, 2015, but the appointment had been cancelled “due to criteria not being met.” (Id.) Plaintiff claims that Mitchell then contradicted this statement in a subsequent response by stating that Plaintiff was enrolled in GI CC.[4] (Id.) Mitchell also stated that Plaintiff had gone to sick call twice, but did not report worsening GI issues. (Id.) Plaintiff appears to assert that he had complained of worsening GI issues, but medical staff failed to document those complaints. (Id.) Plaintiff contends that Defendants Mitchell, Tracy, Ricotta, and Asberry would have known that Plaintiff met the criteria for enrollment in GI CC if they had thoroughly reviewed his records, as they claimed. (Id.)

         On May 25, 2016, Plaintiff filed a BP-11, appealing Mitchell's denial of the BP-10. (Id.) In the appeal, Plaintiff complained of Mitchell “ignoring the issues”; Mitchell “targeting [his] account balance, ” over-the-counter medications, and indigency; the examination on November 19, 2015; and medical staff's failure to document Plaintiff's conditions during sick calls. (Id.) Plaintiff also attached a May 25, 2012 medical record showing that he had been diagnosed with reflux esophagitis. (Id.) On July 18, 2016, Defendant Connors responded to the BP-11 and stated that “there was no evidence to suggest [Plaintiff] was not receiving appropriate treatment for the condition” and that “there was ‘insufficient diagnostic data' to make a clinical determination of the need for re-enrollment into GI CC.” (Id. at 17-18.) Plaintiff claims that Connors made these statements despite admitting that “there [was] a condition, ” that Plaintiff was not receiving any treatment for the condition, and that the medical records clearly showed “sufficient diagnostic data.” (Id. at 18.) Connors “gave the ‘form letter' conclusion, ” stating that the record reflected that Plaintiff had received medical care and encouraged Plaintiff to comply with the proposed medical treatment plan. (Id.) However, Plaintiff contends that “[a]ll treatment had been denied, ” so there was no treatment plan with which to comply. (Id.)

         As his injury, Plaintiff alleges that he suffered “constant and consistent severe pain in the GI and esophagus[, ]” psychological trauma, and possible permanent damage and was later forced to undergo an unnecessary medical procedure. (Id. at 16.)

         In Count Three, Plaintiff asserts a violation of his due process rights and 10 U.S.C. § 812, i.e., Article 12.[5] Plaintiff, a “military prisoner in the ‘legal' custody of the U.S. Army, ”[6] was transferred to Defendant BOP's physical custody in January 2006 pursuant to a May 27, 1994 Memorandum of Agreement between the United States Army and BOP.[7] (Id. at 20.) Since January 2006, Plaintiff claims that he has been housed with “foreign nationals” in violation of Article 12, 10 U.S.C. § 812, at USP-Lewisburg, USP-Victorville, USP-Lompoc, FMC-Devens, FCI-McKean, FCI-Big Spring, FCI-Mendota, FCI-Phoenix, and FCI-Marion. (Id.)

         On November 23, 2016, Plaintiff filed a BP-8, apparently claiming that he was being housed with foreign nationals. (Id.) Plaintiff received a response from a unit manager stating that Plaintiff was appropriately housed under Program Statement (PS) 5110.16, entitled Administration of Sentence for Military Inmates.[8] (Id. at 21.) On December 30, 2016, Plaintiff filed a BP-9, and received a response from Defendant True on January 18, 2016. (Id.) In the response, True discussed Plaintiff's convictions and sentences and cited statutes, but “ignored[] and refused to respond to the issue.” (Id.) Subsequently, Plaintiff filed a BP-10 appealing True's denial and stating that “accepting [Plaintiff] as a military prisoner does not give the authority to violate a congressional mandate and break the law.” (Id.) Defendant Revell responded on February 17, 2017, stating the length of Plaintiff's sentence and “the congressional mandate of 10 U.S.C.[§] 812 [wa]s an issue between [Plaintiff] and the U.S. Army.” (Id.) Plaintiff contends that the Memorandum of Understanding only gave BOP physical custody of Plaintiff and that Article 12, 10 U.S.C. § 812, applies to military prisoners held in military or federal prisons. (Id.) On March 6, 2017, Plaintiff filed a BP-11, “re-establishing all the issues ignored by the Def.” Plaintiff maintains that because the timeframe for a response passed without a response, the lack of response constituted a denial. (Id.) Plaintiff names several Defendants as responsible for approving Plaintiff's transfer to BOP custody, his housing ...


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