Cobler v. United States

          ORDER

          Honorable Rosemary Marquez United States District Judge

         On July 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 Order. (Id.)

         On October 28, 2019, Plaintiff filed a First Amended Complaint. (Doc. 9.) The Court will order the United States to answer the First Amended Complaint.

         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. Discussion of First Amended Complaint

         In his two-count First Amended Complaint, Plaintiff asserts claims of negligence and medical negligence under the FTCA against Defendant United States. Plaintiff seeks monetary relief.

         In Count One, Plaintiff alleges the following:

         On 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.

         Correctional 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 medical care.

         Lieutenant 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 ...