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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARITZA PUBILL RIVERA,
Plaintiff(s)
v.
ZOE LABOY ALVARADO et als.,
Defendant(s)
CIVIL NO. 97-2815 (JAG)
240 F. Supp. 2d 136
January 9, 2003, Decided
OPINION AND ORDER
Plaintiff Maritza Pubill
Rivera ("Pubill") brought suit pursuant to 42 U.S.C. § 1983, alleging
that defendants, several administrators in the Corrections Administration and
the Department of Health, as well as various doctors at the Bayamon Regional
Hospital and the Correctional Complex of Bayamon, violated her son, Amaury
Seise Pubill's ("Amaury") Eighth Amendment right to be free from
cruel and unusual punishment. The Court has before it two motions to dismiss
from co-defendants Jellytza Maldonado-Rondon ( "Maldonado") and Dr.
Ramon Rivera Schneider ("Rivera")(collectively
"co-defendants")(Docket Nos. 146 & 147). n1 Pubill filed an
opposition on September 11, 2002 (Docket No. 151). Maldonado filed a reply on
October 7, 2002 (Docket No. 155). For the reasons stated below, the Court
grants co-defendants' motions to dismiss. n2
FACTUAL BACKGROUND
Amaury was
first incarcerated in 1992 at the Bayamon Regional Jail, then in the Juvenile
Detention Center, and finally in Annex 1072 of the Bayamon Regional Jail. On
July 31, 1996, medical personnel at the Correctional Health Division diagnosed
Amaury with hepatitis C. On October 31, 1996, Amaury tested positive to the HIV
virus. He did not receive follow-up or special treatment following either
diagnosis. On November 30, 1996, Amaury again went to Correctional Health
complaining of pain in the ribs, diarrhea, vomiting and appetite loss. The
attending physician described Amaury as "acutely" sick and as having
AIDS. Amaury remained there until the next day, December 1, at 10:35 p.m., when
he was transferred to the Bayamon Regional Hospital. He arrived shortly after
midnight on December 2, 1996. Once at the hospital, medical personnel
administered medication and took x-rays of Amaury. He first received
antibiotics on December 2 at 3:30 p.m. Amaury died the next day at 9:40 a.m.
Pubill
alleges that defendants failed to adequately treat and provide medical care for
Amaury. She contends that their acts or omissions rose to the level of
deliberate indifference and violated his constitutional right to be free from
cruel and unusual punishment.[*140]
DISCUSSION
I. Motion to Dismiss
Standard
Pursuant to Fed.R.Civ.P. 12(b)(6), a complaint may not be
dismissed unless it appears beyond doubt that plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. See Brown v. Hot, Sexy, and Safer Prods., Inc.,
68 F.3d 525, 530 (1st Cir. 1995). The Court accepts all well-pleaded factual
allegations as true, and draws all reasonable inferences in favor of plaintiff.
See Correa-Martinez v.
Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir. 1990). The Court need not credit,
however, "bald assertions, unsupportable conclusions, periphrastic
circumlocutions, and the like" when evaluating the Complaint's
allegations. Aulson v. Blanchard, 83
F.3d 1, 3 (1st Cir. 1996). When opposing a Rule 12(b)(6) motion, "a
plaintiff cannot expect a trial court to do his homework for him." McCoy
v. Massachusetts Institute of Tech., 950 F.2d 13, 22 (1st Cir. 1991). Plaintiff
is responsible for putting his best foot forward in an effort to present a
legal theory that will support his claim.
Id., at 23 (citing Correa
Martinez, 903 F.2d at 52). Plaintiff must set forth "factual allegations,
either direct or inferential, regarding each material element necessary to
sustain recovery under some actionable theory." Gooley v. Mobil Oil Corp.,
851 F.2d 513, 514 (1st Cir. 1988).
II. Maldonado and Rivera's
Motion to Dismiss
Co-defendants make three arguments to support their motions to
dismiss: (1) that the claims against them are time-barred because Pubill
included them as defendants after the statute of limitations expired; (2) that
their conduct did not rise to the level of deliberate indifference; and (3)
that they are immune from tort liability under 26 L.P.R. A. § 4105. The Court
concludes that Pubill's claims are timely under Fed. R. Civ. P. 15(c)(1) and
the tolling provisions of Puerto Rico
law. Nonetheless, the Court finds that Pubill has failed to state a claim for
cruel and unusual punishment under the Eight Amendment because the record does
not demonstrate that co-defendants acted with deliberate indifference to
Amaury's medical condition. Because this finding is sufficient to dispose of
the case, the court need not address co-defendants' immunity arguments.
II. Statute of Limitations
In their motions to dismiss, co-defendants allege that the
claims against them are time-barred because the Fourth Amended complaint that
included them as defendants does not relate back to the date of the filing of
the original complaint under Rule 15(c)(3). n3 Pubill filed her original
complaint on December 2, 1997, within the one-year statute of limitations for §
1983 [*141]actions. n4 That complaint, however, referred to unnamed defendants
Peter Roe, Charlie Roe, etc. It did not include Maldonado and Rivera by name.
Instead, Pubill added them more than three years later in the Fourth Amended
complaint filed on April 26, 2001 (Docket No. 104).
Pubill's argues that even if there is no relation back under
Rule 15(c)(3), she can take advantage of Puerto Rico law pursuant to Rule
15(c)(1) to toll the one-year statute of limitations and add co-defendants as
joint tortfeasors. (Docket No. 151 at 28-31; Docket No.155 at 9-11.) She
maintains that the timely filing of her original complaint including Doe
defendants tolled the statute of limitations against all joint-tortfeasors such
that Maldonado and Rivera could be included by name at any time, so long as the
cause of action against the originally named defendants remained alive.
Co-defendants, on the other hand, contend that even if tolling is applied,
Pubill's claims against Maldonado and Rivera are time-barred. They suggest that
although the one-year prescriptive period for § 1983 actions was interrupted by
Pubill's timely filing of the initial complaint, this only tolled the claim for
another year, rather than indefinitely. They argue that since Pubill filed her
Fourth Amended complaint after the one-year tolling period elapsed, the claims
against them are untimely.
Rule 15(c)(1) makes clear that if Puerto Rico law allows
relation back, that law should control to save the claim. Rivera-Ramos, 156 F.3d 276, 282(1st Cir.
1998) ("For section 1983 actions,
federal law governs the date on which the cause of action accrues while the
length of the period and tolling doctrine are taken from local law.") Article 1874 of the Puerto Rico Civil Code
provides that "the interruption of prescription against one defendant also
tolls the statute against any other defendants who are solidarily liable with
the first." 31 L.P.R.A. § 5304(1991) n5; see also Tokyo Marine & Fire
Ins. Co. v. Perez & Cia., de P.R., Inc., 142 F.3d 1, 4 (1st Cir. 1998). The
Supreme Court of Puerto Rico has ruled that the doctrine of solidarity allows a
plaintiff to amend a complaint to include joint torfeasors not originally
included in the complaint so long as the original complaint was timely filed
and the element of solidarity was well pled.
Arroyo v. Hospital La Concepcion, 130 D.P.R. 596, 1992 Juris P.R. 66,
1992 Juris P.R. No. 66 (1992). All that is required is that the newly added
tortfeasors are solidarily liable with the original defendants and that the
causes of action asserted against them are identical to those alleged against
the original defendants. See Rodriguez
Narvaez v. Nazario, 895 F.2d 38, 44 (1990); see also Tokyo Marine, 142 F.3d at 4.
The claims against Maldonado and Rivera meet both requirements.
They are solidarily liable with the originally named doctor defendants and the
causes of action asserted against them are identical to those alleged in the
original complaint. Physicians may be
held jointly and solidarily liable for their multiple acts, omissions [*142]
and events that combined to cause them, even when the actions are not
contemporary. See Riley v. Rodriguez
de Pacheco, 19 P.R. Offic. Trans. 806, 119 D.P.R. 762, 10 P.R. Offic. Trans.
806, 851-52 (1987); see also Cruz v.
Centro Medico de Puerto Rico, 113 D.P.R. 719, 744, 13 P.R. Offic. Trans. 931,
960-962 (1983).
The caselaw suggests that tolling operates differently when the prescriptive period is
tolled by filing a complaint versus when it is tolled by an extrajudicial
claim. See generally Serrano-Strubbe v.
Hernandez-Plana, No. 99-1056, 2002 U.S. Dist. Lexis 20468 at 14-17 (Magistrate
Delgado's Report & Recommendation)(D.P.R. March 21, 2002); also compare
Tokyo Marine, 142 F.3d at 4, with Arroyo, 130 D.P.R. 596, 1992 Juris P.R. 66,
official translation at 9 (1992). A
judicial claim, that is, the filing of a timely complaint, will toll the
statute of limitations for the entire duration of the case, regardless of its
outcome. In this case, Pubill's timely filing of her initial complaint tolled
the statute of limitations as to all joint tortfeasors, whether named or
unnamed. Any subsequent amendments to the complaint adding joint tortfeasors
and alleging the same claims filed against the original defendants are
consequently not time barred. Id. at. 9-10.
In conclusion, by timely filing her initial complaint on
December 2, 1997, Pubill tolled the statute of limitations as to the unnamed
co-defendant joint tortfeasors. Accordingly, her claims against co-defendants
Maldonado and Rivera are timely.
III. Deliberate Indifference
Co-defendants
alternatively move to dismiss on the basis that their actions did not rise to
the level of deliberate indifference required to establish that medical
mistreatment constitutes a violation of the Eight Amendment (Docket No. 146 at
13). Pubill contends that co-defendants recklessly and deliberately failed to
provide medical attention to Amaury in compliance with the standards accepted
by the medical community (Docket No. 151 at 37). For the reasons set forth
below, the Court concludes that co-defendants' actions did not rise to the
level of deliberate indifference and that the claims against them should be
dismissed.
The Supreme
Court has set forth the deliberate indifference inquiry in two seminal cases:
Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), and
Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994).
Estelle recognized that the
government's failure to provide medical care for those whom it is punishing by
incarceration could constitute a violation of the Eight Amendment's mandate
against cruel and unusual punishment. Estelle, 429 U.S. at 103; see also Helling v. McKinney, 509 U.S. 25, 125 L.
Ed. 2d 22, 113 S. Ct. 2475 (1993). In Farmer, the Court elaborated a two-prong
test to determine whether a deprivation, such as failing to attend to a prisoner's
medical needs, rose to the level of a constitutional violation: (1) the alleged
deprivation must be objectively sufficiently serious and, (2) the defendants
must have a culpable state of mind, meaning that the defendant was deliberately
indifferent to the inmate's health or safety. See Giroux v. Somerset County, 178 F.3d 28, 32 (1st Cir. 1999);
Dennison v. Prison Health Services, 2002 U.S. Dist. Lexis 10812, 2002 WL
31026529 (D. Me.)(citing Farmer, 511 U.S. at 834).
Amaury's
AIDS diagnosis and his condition constituted a serious medical need.
See Gaudreault v. Municipality of
Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990) (holding that a serious medical need is one that has been
diagnosed by a physician as mandating treatment, or one that is so obvious that
even a lay person would [*143] easily recognize the necessity for a doctor's
attention); see also Muniz-Souffront
v. Laboy Alvarado, 115 F. Supp.2d 237, 242 (D. P. R. 2000) ("A medical need is serious if it
causes extreme pain, results in death or degeneration."). To prevail on
this motion to dismiss, therefore, Pubill must allege enough facts to support
an inference that Maldonado and Rivera subjectively and intentionally
disregarded Amaury's need for medical care.
Deliberate
indifference exists when the "official knows of and disregard an excessive
risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference." Farmer, 511 U.S. at 837; see
also Giroux, 178 F.3d at 32. "A
prison official's failure to alleviate a significant risk that he should have
perceived but did not is insufficient to establish an Eighth Amendment
violation." Pubill-Rivera, 218 F Supp.2d 89, 94 (D.P.R. 2002). A wanton decision to deny or delay care may
constitute deliberate indifference only if the action is reckless in the sense
that it requires actual knowledge of impending harm that is easily preventable.
See Watson v. Caton, 984 F.2d 537, 540
(1st Cir. 1993) (citing Wilson v Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111
S. Ct. 2321 (1992)); see also DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.
1991). "The requisite
state of mind may be manifested by the official's response to an inmate's known
needs or by denial, delay or interference with prescribed health care."
Id. citing Estelle, 429 U.S. at 104-5. Nonetheless, "determining the
wantonness of the defendants conduct depends not upon its effects on the
inmate, but rather on the practical constraints facing prison officials and
doctors." Muniz-Souffront, 115 F. Supp.2d at 242. To establish deliberate
indifference, therefore Pubill must establish that Maldonado and Rivera knew
that Amaury was at risk and decided not to do anything to prevent that harm
from occurring even though they could have easily done so. Verser v. Elyea, 113 F. Supp. 2d 1211,1214
(1st-Cir. 2000)
Moreover,
"the courts have consistently refused to create constitutional claims out
of disagreement between prisoners and doctors about the proper course of a
prisoners medical treatment, or to conclude simple medical malpractice rises to
the level of cruel and unusual punishment." Watson, 984 F.2d at 539-40.
Without a sufficiently serious deprivation of medical care, there can be no
constitutional violation. A bad attitude by a medical provider or a doctor's
negligence in his choice of medications or treatment is not actionable under
the Eight Amendment. See Dennison at 7; see also Daniel v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct.
662 (1986).
Furthermore, even when a defendant knows of a substantial
risk to an inmate's health or safety and he fails to prevent the harm, he may
be found not liable if he responds reasonably to the risk. See Giroux, 178 F.3d at 32 citing Farmer, 511
U.S. at 844.
The
complaint simply does not support a conclusion that there was deliberate
indifference to Amaury's medical needs. The chosen course of action and
treatment does not demonstrate recklessness or intentional conduct to
constitute deliberate indifference. See
Verser, 113 F. Supp.2d at 1214-15); see also Calderon-Ortiz v.
Laboy-Alvarado, 300 F.3d 60, 65-66 (1st Cir. 2002); Miranda v. Munoz, 770 F.2d
255 (1st Cir. 1985). Once Amaury was admitted at the Bayamon Regional
Hospital, the medical staff took x-rays
and administered antibiotics. The fact that it [*144] took them several hours
to do so is insufficient to presume that Maldonado and Rivera had the recklessness
or the intentionality needed to surmise that they deliberately deprived Amaury
of the medical attention he deserved. See Verser, 113 F, Supp.2d at 1214-15
(citing Snipes v. De Tella, 95 F.3d 586, 591 (7th Cir. 1996) (a prisoner does not have a constitutional
right to choose his treatment, and a court will not second guess matters of
professional judgment)); see also
Navedo v. Malloney, 172 F. Supp. 2d 276, 285 (D. Mass. 2001). Pubill has
not established that the chosen course of conduct was unreasonable and nothing
suggests that the medical judgment in this case was misguided or that treatment
was recklessly and deliberately refused.
Watson, 984 F.2d at 540. The medical care that plaintiff establishes in her
complaint was provided to Amaury at the Bayamon Regional Hospital, does not appear
to be grossly inadequate to constitute a knowing denial of medical care
required to establish a constitutional violation. Des Rosiers, 949 F.2d at 20.
The complaint fails to specifically aver that co-defendants knowingly
disregarded a known harm and thus acted with deliberate indifference to
Amaury. Pubill, 218 F. Supp.2d at 94.
Proving that co-defendants could have done more in terms of treating Amaury is
insufficient to establish that they were deliberately indifferent to Amaury's
medical needs. See Navedo, 172 F.
Supp. 2d at 285.
Additionally, it is noteworthy
that Maldonado and Rivera did not play a significant role in the decisions
regarding Amaury's treatment. See generally Pelletier v. Magnusson, 201 F. Supp.2d 148 (1st Cir. 2002) (Holding that
medical doctor was not liable for inmate's suicide because he did not have a
significant role in the mental health treatment of the inmate despite being
director of medical services and having personally treated inmate). Maldonado
was a first-year medical resident student from the Universidad Central del
Caribe. (Docket No. 46 at 12). Rivera was the attending physician in charge of
several residents at the Hospital. To
establish a constitutional violation, a plaintiff must establish that each
co-defendant's acts or omissions deprived the victim of his protected
rights. Muniz-Souffront, 115 F. Supp.2d
at 241. The facts alleged in the complaint simply do not meet this level of
specificity.
The allegations in the
complaint, even when viewed in the light most favorable to plaintiff, fail to
establish that co-defendants acted with deliberate indifference to trigger a
constitutional violation.
CONCLUSION
In light of the foregoing, the Court GRANTS defendant's motion
to dismiss (Docket Nos. 146 and 147) and dismisses all federal claims against
co-defendants Maldonado-Rondon and Rivera Schneider with prejudice.
IT IS SO ORDERED
In San Juan, Puerto Rico this 9th day of January, 2003.
JAY A. GARCIA-GREGORY
U.S. District Judge
FOOTNOTES:
n1 On
August 11, 1998, the Court granted Miguel Rivera's Motion for summary judgment
(Docket No. 15). On May 15, 1998, Pubill voluntarily dismissed all claims
against Zoe Laboy in her personal capacity (Docket No. 22). On March 5, 1999,
the Court isssued an Opinion and Order dismissing all claims against Carmen
Feliciano, Nydia Cotto-Vives and Joe Colon in their personal and official
capacities and the remaining claims against Zoe Laboy in her official capacity
(Docket No. 36). On June 7, 2002, the Clerk entered default against defendant
Amaury Hernandez (Docket No. 74), and subsequently enterered default judgment
against him on October 6, 2000 (Docket No. 80). On May 31, 2002, the Court
granted Jose O. Curet and Jose Madera's motion to dismiss and entered judgment
dismissing all claims against them (Docket Nos. 140 & 141). On April 12,
2002 the Court mooted Pubill's request for an extension of time to serve
summons upon Dr. Nessa Torres Reyes. The record does not show that Pubill ever
properly served summons on her. As a result, she never became a party to this
action.
n2
Following this order, the only remaining defendant in this case will be Nilma
Rosado-Villanueva. The court entered default against Rosado-Villanueva on
October 22, 2002 and subsequently mooted her motion to set aside default
(Docket No. 131). As to Rosado-Villanueva, the Court will schedule a default
hearing in a separate Order to assess damages.
n3 Rule
15(c) of the Federal Rules of Civil Procedure states in relevant part that:
An
amendment of a pleading relates back to the date of the original pleading when
(1)
relation back is permitted by the law that provides the statute of limitations
applicable to the action, or
(2) the
claim or defense asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the
original pleading, or
(3) the
amendment changes the party or the naming of the party against whom a claim is
asserted if the foregoing provision (2) is satisfied and, within the period
provided by Rule 4(m) for service of the summons and complaint, the party to be
brought in by amendment (A) has received such notice of the institution of the
action that the party will not be prejudiced in maintaining a defense on the
merits, and (B) knew or should have known that, but for a mistake concerning
the identity of the proper party, the action would have been brought against
the party.
n4 Because section 1983 lacks an accompanying
federal statute of limitations, the Supreme Court has held that Courts should
apply the forum state statute of limitations governing personal injury actions.
See Owens v. Okure, 488 U.S. 235, 236,
102 L. Ed. 2d 594, 109 S. Ct. 573(1989). The Puerto Rico Civil Code provides
for a one-year prescriptive period for such actions. See 31 L.P.R.A. § 5298(2);
see also Pagan Velez v. Laboy
Alvarado, 145 F. Supp.2d 146, 152 (1st Cir. 2001).
n5 A prescriptive period under Puerto Rico law
can be interrupted in one of three ways: "by the institution of an action
before the courts, by extrajudicial claim of the creditor, and by any act of
acknowledgment of the debt by the debtor." See 31 L.P.R.A. § 5303.
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