Brizuela v. USP Hazelton

• Court: District Court, N.D. West Virginia
• Decided: September 20, 2022
• Docket: 1:22-cv-00093
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CLARKSBURG

FELIX BRIZUELA,

Plaintiff,

v. Civil Action No. 1:22-CV-93 (JUDGE KLEEH) USP HAZELTON,

Defendant. REPORT AND RECOMMENDATION, AFTER INITIAL SCREENING, RECOMMENDING THAT PLAINTIFF’S COMPLAINT [ECF NO. 1] BE DISMISSED WITHOUT PREJUDICE AND THAT MOTION TO PROCEED IN FORMA PAUPERIS [ECF NO. 2] BE DENIED On September 15, 2022, pro se Plaintiff Felix Brizuela (“Plaintiff”) filed a Complaint against Defendant by which Plaintiff alleges that Defendant did not provide proper care and living/working conditions during Plaintiff’s imprisonment, and in so doing, violated his civil rights. [ECF No. 1 at 1]. Having screened Plaintiff's Complaint in accordance with the provisions of 28 U.S.C. § 1915(e)(2), the undersigned now RECOMMENDS that the Complaint [ECF No. 1] be DISMISSED WITHOUT PREJUDICE for failure to state a claim on which relief may be granted. The undersigned further RECOMMENDS that Plaintiff’s related motion [ECF No. 2] to proceed in forma pauperis be DENIED. I. FACTUAL AND PROCEDURAL BACKGROUND1

1 Plaintiff, pro se, recently has filed 15 civil lawsuits in this Court, including the instant matter. The other civil matters are: (1) Brizuela v. Federation of State Medical Boards, 1:22-CV-66, (2) Brizuela v. Sarah Wagner, 1:22-CV-67, (3) Brizuela v. Douglas Sughrue, 1:22-CV-68, (4) Brizuela v. Michael DeRiso, 1:22- CV-69, (5) Brizuela v. WVU Medical Center, 1:22-CV-70, (6) Brizuela v. Tano O’Dell [sic], 1:22-CV-75, (7) Brizuela v. Mark Zogby, 1:22-CV-74, (8) Brizuela v. Highlands Hospital and Michelle Cunningham, 1:22-CV-76, (9) Brizuela v. Blue Cross Blue Shield, 1:22-CV-79, (10) Brizuela v. CPEP, 1:22-CV-82, (11) Brizuela v. KDKA TV, 1:22-CV-83, (12) Brizuela v. West Virginia Board of Pharmacy, 1:22-CV-84, (13) Brizuela v. Drug Enforcement Administration, 1:22-CV-87, and (14) Brizuela v. WPXI Pittsburgh, 1:22- CV-90. Although these are separate matters, they all stem from circumstances concerning Plaintiff’s career Plaintiff, a resident of the Commonwealth of Pennsylvania, brings this action against a federal penitentiary in this District at which Plaintiff was incarcerated. Plaintiff alleges that Defendant did not provide proper living and working conditions such that Plaintiff’s health issues were exacerbated. In so doing, according to Plaintiff, Defendant violated his civil rights. Plaintiff seeks damages in the amount of $50,000,000.00. [ECF No. 1, at 1].

Broadly speaking, and in synthesizing allegations from the filings in Plaintiff’s multiple pro se lawsuits pending in this Court, Plaintiff alleges that he was a physician practicing in this District. He had a specialty in neurology and pain management. In this District, Plaintiff was criminally prosecuted as reflected in Criminal Action No. 1:18-CR-1. Plaintiff was tried and convicted in Criminal Action No. 1:18-CR-1. As a result, he lost medical licenses which he held in West Virginia and Pennsylvania. Plaintiff appealed his conviction to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit reversed his conviction, and on remand, Plaintiff ultimately pled guilty to Distribution of Controlled Substances Outside the Bounds of Professional Medical Practice, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C),

as charged in Count Two in Criminal Action No. 1:18-CR-1.2 Plaintiff was sentenced to imprisonment for a term of time served, followed by three years of supervised release. Plaintiff complains that, because of the felony conviction resulting from the guilty plea, he is unable to regain his medical license or otherwise find gainful employment. In the pro se civil cases which

as a physician, including but not limited to his criminal prosecution and eventual guilty plea in this Court in Criminal Action No. 1:18-CR-1. The presiding District Judge, Hon. Thomas S. Kleeh, has referred all of these matters to the undersigned Magistrate Judge, for written Reports and Recommendations. Concurrently with the instant Report and Recommendation, the undersigned enters Reports and Recommendations as to some of the other matters. As such, given the commonality among the matters, there is some duplication in the citations to authority and analyses in the Reports and Recommendations. 2 Plaintiff also was prosecuted in another matter, Criminal Action No. 5:20-CR-22. It appears that Criminal Action 5:20-CR-22 resulted from the re-filing of charges after Criminal Action No. 1:18-CR-1 had been dismissed pursuant to a tolling agreement. The two matters ultimately were consolidated. [ECF No. 487 in Criminal Action No. 1:18-CR-1]. Plaintiff now seeks to bring here, he attempts to lodge grievances against a range of persons and entities who were involved in his criminal matters and/or other aspects of his defunct medical practice. As for the substance of Plaintiff’s claims in the instant matter, Plaintiff was incarcerated at the facility operated by Defendant in the course of his underlying criminal proceedings. He

complains of the conditions of imprisonment in the facility operated by Defendant, and the terms of his imprisonment there. Plaintiff states that he experienced issues with his heart and knee prior to his imprisonment. He alleges that, once imprisoned at the facility operated by Defendant, he was unable to engage in proper exercise and movement such that his heart and orthopedic functions were compromised. Plaintiff alleges that he was forced to engage in a work detail, which worsened his condition. He alleges some violation(s) of civil rights, although it is unclear which authorities establish the civil rights which he claims were violated. Plaintiff includes two brief, handwritten citations to statutory authority: Chapter 21 of Title 24, United States Code. Plaintiff gives no further detail about which of the scores of statutory provisions contained therein he relies upon in

making his claims. Plaintiff includes a single-spaced, two-page narrative [ECF No. 1, at 2-3] which appears to be correspondence addressed to Defendant itself. This narrative details his health issues prior to imprisonment. It also details the conditions of imprisonment summarized in the preceding paragraph here. He complains of an unknown person or persons encouraging other inmates to believe that he was faking his health issues and laughing at him. Plaintiff also complains that his underlying criminal prosecution was a “smear campaign” by which he was stripped of his professional licensure, such that he is relegated to seek service employment. Yet, Plaintiff complains that he cannot engage in such alternative work because of his health problems. Plaintiff explains that he was incarcerated at the facility at issue from December 2019 to June 2020. Finally, in conjunction with the Complaint, Plaintiff filed a pro se Motion for Leave to Proceed in forma pauperis including an Application to Proceed Without Prepayment of Fees and Affidavit. [ECF No. 2].

On September 15, 2022, this Court, by the Honorable Thomas S. Kleeh, Chief United States District Judge, entered an Order of Referral [ECF No. 3], referring this matter to the undersigned United States Magistrate Judge in order “to conduct a scheduling conference and issue a scheduling order, for written orders or reports and recommendations, as the case may be, regarding any motions filed, and to dispose of any other matters that may arise.” II. LEGAL STANDARDS Pursuant to 28 U.S.C. § 1915(e)(2)(B), where a plaintiff is seeking to proceed without the prepayment of fees and costs, the court is obliged to screen the case to determine if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Courts often perform this screening before ruling upon the corresponding Motion for Leave to Proceed in forma pauperis and Application to Proceed Without Prepayment of Fees and Costs, and before service of process is effectuated. See Portee v. United States Dep't of Agric., No. 2:15- CV-13928, 2016 WL 4962727, at *2 (S.D.W. Va. July 14, 2016) (Tinsley, J.), report and recommendation adopted, No. 2:15-CV-13928, 2016 WL 4942023 (S.D.W. Va. Sept. 15, 2016) (Johnston, J.). The purpose of this statute is “to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). “To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. See also Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 953 (4th Cir. 1995) (initial

screenings required because § 1915 removed the “economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.”) (internal citation omitted); Whitehead v. Paramount Pictures Corp., No. 1:08CV792, 2009 WL 1565639, at *4 (E.D. Va. May 28, 2009), aff'd in part sub nom. Whitehead v. Paramount Pictures, Inc., 366 F. App'x 457 (4th Cir. 2010) (upholding dismissal). Thus, while 28 U.S.C. § 1915(e)(2)(B) speaks specifically to review as to pro se litigants who are prisoners, the Court may conduct such a screening regardless of whether a pro se litigant is a prisoner. Relatedly, the undersigned of course is mindful of Plaintiff’s pro se status in this context. Because Plaintiff is proceeding pro se, the Court must liberally construe the pleadings. Estelle v.

Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A pro se complaint is subject to dismissal, however, if the Court cannot reasonably read the pleadings to state a valid claim on which a plaintiff could prevail. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff’s legal arguments for him, nor should it “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). III. ANALYSIS The Complaint [ECF No. 1] and accompanying narrative provide no factual allegations as a basis for the Plaintiff’s claims which would allow this Court to grant relief. Nor does Plaintiff set forth in the Complaint any necessary legal grounds which would entitle him to any sort of relief in this matter. The undersigned is mindful that Rule 8(a) of the Federal Rules of Civil Procedure does not generally require that claims be pled with great detail. Nonetheless, claims must be pled with sufficient detail such that a defendant has fair notice of the basis of a plaintiff’s claim. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007). More specifically: It is established that a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. We have recognized that facial plausibility is established once . . . the complaint’s factual allegations produce an inference . . . strong enough to nudge the plaintiff’s claims across the line from conceivable to plausible. In assessing the sufficiency of a complaint, we assume as true all its well-pleaded facts and draw all reasonable inferences in favor of the plaintiff. Thus, to satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual heft to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of that which is alleged.

Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal citations and quotations omitted). Necessarily implied in this analysis, of course, is that the legal claims asserted must have a basis in law. The principal issue here is that Plaintiff simply does not explain how Defendant wronged him in any way such that he can maintain cognizable causes of action. By the above-noted, accompanying narrative (which appears to be correspondence directed at Defendant, and not necessarily a component of a well-pleaded complaint), Plaintiff accuses Defendant of providing inadequate living conditions and medical care, and requiring Plaintiff to engage in physically harmful activity. Plaintiff explains how the conditions of imprisonment did not allow for the type of exercise he desired and involved work activity which he did not wish to undertake. Yet, in review of the narrative, one is left wondering how Plaintiff alleges that Defendant acted contrary to any provision at law – constitutional, statutory, regulatory, common law, etc. – or any policy or procedure otherwise. Plaintiff does not articulate facts in support of cognizable claims or cite to appropriate authority in support of such claims. More to the point, Plaintiff does not at all specify what cause of action he wishes to pursue, other than vaguely invoking a civil rights claim. As to the possible

civil rights claim, Plaintiff makes a passing citation to statutory authority, noted above – that being Chapter 21 of Title 24, United States Code. However, he does nothing to specify how this is an avenue for relief in this matter. This chapter of the United States Code contains scores of provisions concerning a vast array of civil rights-related sections and subsections. Plaintiff fails to explain which of the provision(s) therein he relies upon for authority in support of his civil rights claim, let alone how he should be permitted to maintain such a claim by dint of such provision(s). He fails to explain how Defendant’s action or inaction is in direct contravention of any provision therein, or how such action or inaction would allow him to maintain a private cause of action. At bottom, the undersigned finds that the Complaint and accompanying materials, by

which Plaintiff attempts to propound legal claims, simply do not contain sufficient factual allegations giving rise to cognizable claims. To summarize, the undersigned cannot discern a clear nexus between (a) the sets of factual allegations made and (b) the intended cause(s) of action which Plaintiff seeks to bring. Nor can the undersigned discern the assertion of permissible claims otherwise. Thus, even when construing the pro se Complaint most liberally, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), the undersigned respectfully FINDS that the Complaint (and citations to authority in related attachments), as currently written, are without foundation in fact and do not set forth cognizable claims at law. As such, the Complaint does not sufficiently state a claim for relief. Twombly, 550 U.S. 544. The Complaint is so insufficient that it does not provide Defendant with fair notice of the nature of the claims Plaintiff would lodge against it or the relief Plaintiff would have this Court order. Thus, Plaintiff’s Complaint here is not cognizable and fails as a matter of law, and the undersigned RECOMMENDS that it be dismissed without prejudice.

Relatedly, because of the lack of any factual allegations of acts, omissions, or wrongdoing by the Defendants giving rise to cognizable legal claims, the undersigned specifically FINDS that the Complaint fails to state a claim upon which relief may be granted. Thus, after performing an initial screening pursuant to 28 U.S.C. § 1915(e)(2), the undersigned concludes and RECOMMENDS that Plaintiff’s motion to proceed in forma pauperis [ECF No. 2] be denied. IV. RECOMMENDATION For the abovementioned reasons, the undersigned FINDS that the Complaint [ECF No. 1] fails to state a claim upon which relief may be granted. Accordingly, the undersigned

respectfully RECOMMENDS Plaintiff's Complaint, filed in forma pauperis [ECF No. 1], should be DISMISSED in its entirety WITHOUT PREJUDICE after review and screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Further, the undersigned RECOMMNEDS that Plaintiff’s motion to proceed in forma pauperis [ECF No. 2] be DENIED. Any party shall have fourteen (14) days (filing of objections) and then three days (mailing/service) from the date of the filing of this Report and Recommendation to file with the Clerk of the Court specific written objections identifying the portions of the Report and

Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Thomas S. Kleeh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12. Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). The Clerk of the Court is DIRECTED to send a copy of this Report and Recommendation to counsel of record as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia, and to the pro se Plaintiff by certified mail, return receipt requested. DATED: September 20, 2022.

MICHAEL JO UNITED STATES MAGISTRATE JUDGE