United States District Court, D. Arizona
Honorable Rosemary Marquez United States District Judge
10, 2019, Plaintiff James Robert Cobler, who is confined in
the United States Penitentiary-Tucson, filed a pro se civil
rights Complaint pursuant to the Federal Tort Claims Act
(“FTCA”) (Doc. 1) and an Application to Proceed
In Forma Pauperis (Doc. 2). In an October 16, 2019 Order, the
Court granted the Application to Proceed and dismissed the
Complaint because Plaintiff had failed to state a claim.
(Doc. 7.) The Court gave Plaintiff 30 days to file an amended
complaint that cured the deficiencies identified in the
October 28, 2019, Plaintiff filed a First Amended Complaint.
(Doc. 9.) The Court will order the United States to answer
the First Amended Complaint.
Statutory Screening of Prisoner Complaints
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. §
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,
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
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.
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)).
Discussion of First Amended Complaint
two-count First Amended Complaint, Plaintiff asserts claims
of negligence and medical negligence under the FTCA against
Defendant United States. Plaintiff seeks monetary relief.
Count One, Plaintiff alleges the following:
November 12, 2017, at about 5:00 a.m., Plaintiff woke up
because he had severe stomach pain. Plaintiff felt like he
was going to vomit, so he got out of bed and went to the
toilet, where he vomited blood within seconds. Within less
than one minute, Plaintiff vomited another two to three cups
of dark brown blood that looked like coffee grounds. He felt
extreme burning pain each time he vomited. Plaintiff began to
feel dizzy and weak, knelt in front of the toilet, and called
out to his cellmate, Whitehead, for help. Whitehead got out
of bed, immediately went to Plaintiff's side, and put his
arm around Plaintiff to prevent him from falling over.
Whitehead told Plaintiff that he was going to push the
emergency alarm button to get help for Plaintiff.
Officer B. Estillore and another unidentified officer came to
Plaintiff's cell. Whitehead showed both officers the
bloody vomit and told them that Plaintiff had been vomiting
blood. Plaintiff and Whitehead asked Estillore to get medical
help for Plaintiff. Estillore said he would call the
Lieutenant “right away.” After about ten minutes,
Plaintiff again vomited blood and told Whitehead he thought
he was going to die. Plaintiff continued to feel the burning
pain when he vomited, and Whitehead pushed the emergency
alarm button again. Estillore and the other officer came back
to Plaintiff's room, and Estillore told him that he had
called Lieutenant Doe and told him Plaintiff was vomiting
blood, but Lieutenant Doe had told Estillore to tell
Plaintiff there was nothing Lieutenant Doe could do for him
because there were no medical staff in the prison at that
time. Lieutenant Doe told Estillore that Plaintiff would have
to wait until medical staff arrived before he could receive
Doe did not contact the on-duty physician and inform him or
her that Plaintiff was vomiting blood and reporting severe,
burning pain, nor did Doe exercise his authority to send
Plaintiff during non-duty hours for an emergency, outpatient,
escorted offsite visit. Plaintiff claims Lieutenant Doe's
actions and inaction caused Plaintiff to be ...