1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Glen Wilson, No. CV 19-08306-PCT-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Yuri M. Lewicky, et al., 13 Defendants.
14 15 Plaintiff Glen Wilson, who is confined in the Federal Correctional Institution in 16 Phoenix, Arizona, filed a pro se civil rights Complaint (Doc. 1) pursuant to 28 U.S.C. 17 § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 18 U.S. 388 (1971), and an Application to Proceed In Forma Pauperis (Doc. 4). The Court 19 granted the Application and dismissed the Complaint (Doc. 6).1 Plaintiff subsequently a 20 First Amended Complaint (Doc. 9), which the Court dismissed for failure to state a claim 21 with leave to amend (Doc. 11).2 Plaintiff has filed a Second Amended Complaint (Doc. 22 14). The Court will dismiss the Second Amended Complaint and this case for lack of 23
24 1 In the Order, the Court indicated that it was dismissing the Complaint with leave 25 to amend, but the final page of the Order dismissed the Complaint and this action and Judgment was entered by the Clerk of Court (Doc. 8). The Court will vacate entry of 26 Judgment and order this case reopened. 27 2 In the First Amended Complaint, Plaintiff cited 28 U.S.C. § 1331 and medical malpractice as the bases for subject matter jurisdiction. Plaintiff failed to allege facts to 28 support that the Court had federal question subject matter jurisdiction under 28 U.S.C. § 1331, but the Court concluded that he might be able to do so in a second amended complaint. 1 subject matter jurisdiction. 2 I. Statutory Screening of Prisoner Complaints 3 The Court is required to screen complaints brought by prisoners seeking relief 4 against a governmental entity or an officer or an employee of a governmental entity. 28 5 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 6 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 7 relief may be granted, or that seek monetary relief from a defendant who is immune from 8 such relief. 28 U.S.C. § 1915A(b)(1)-(2). 9 A pleading must contain a “short and plain statement of the claim showing that the 10 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 11 not demand detailed factual allegations, “it demands more than an unadorned, the- 12 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Id. 15 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 16 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 17 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 18 that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 20 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 21 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 22 allegations may be consistent with a constitutional claim, a court must assess whether there 23 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 24 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 25 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 26 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 27 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 28 U.S. 89, 94 (2007) (per curiam)). 1 II. Second Amended Complaint 2 In his one-count Second Amended Complaint, Plaintiff asserts a claim for medical 3 malpractice. Plaintiff sues Dr. Yuri Lewicky, an orthopedic surgeon, for surgery 4 performed when Plaintiff was not in custody. Plaintiff seeks $10 million in punitive relief. 5 A. Background 6 Plaintiff was convicted of federal offenses on April 26, 2006 and sentenced to prison 7 for five years followed by supervised release for five years. United States v. Wilson, 8 No.3:05cr00657-PCT-JAT (D. Ariz. Apr. 26, 2006), Doc. 43. Plaintiff was released on 9 supervised release after completing his prison term, which was revoked multiple times for 10 violations of the terms of supervised release. Id., Docs. 87, 103, 107 (amended order), 124, 11 and 140. At the time of the events at issue in the Second Amended Complaint, Plaintiff 12 was not imprisoned, but he was on supervised release. Subsequent to the events at issue in 13 the Second Amended Complaint, Plaintiff was again charged with violating the conditions 14 of supervised release, and, on August 24, 2018, the Court revoked supervised release and 15 sentenced Plaintiff to serve 36 months in prison. Id., Doc. 140. While in prison, Plaintiff 16 filed this action. 17 B. Plaintiff’s Allegations 18 Except as otherwise indicated, Plaintiff alleges3 the following: 19 On June 7, 2016, while on supervised release, Plaintiff injured his left knee and was 20 seen in the emergency room of the Indian Health Service4 in Fort Defiance, Arizona.5 Dr. 21 Oseni ordered an MRI of Plaintiff’s left knee, which was performed on June 16, 2016. 22 Plaintiff returned home with instructions to use crutches, to stay off his feet as much as 23 possible, and to elevate and ice his left knee. Plaintiff received a “referral from Dr. 24 25 3 The Court includes some of Plaintiff’s allegations from the First Amended Complaint for additional context. 26 4 The Indian Health Service is a division of the Public Health Service of the United States Department of Health and Human Services. Benavidez v. United States, 177 F.3d 27 927, 928 n.1 (10th Cir. 1999). 28 5 Plaintiff is Native American. See https://www.bop.gov/inmateloc/, search Register# 83048-008 (last accessed June 15, 2020). 1 Marshall L. Cook, to report to Northern Arizona Orthopedic Hospital” (“the Hospital”). 2 (See Doc. 9 at 2.) Plaintiff reported to the Hospital on August 22, 2016 for examination. 3 Dr. Bourck Cashmore referred Plaintiff to Defendant Dr. Lewicky. On August 25, 2016, 4 Plaintiff visited Dr. Lewicky, who recommended arthroscopic assisted ACL and PCL 5 reconstruction in addition to open MCL and posterior oblique ligament reconstruction and 6 removal of tibial hardware, which would require an overnight stay. On September 23, 7 2016, Dr. Lewicky performed arthroscopic surgery on Plaintiff’s left knee at the Hospital. 8 At some point after the surgery, Plaintiff discovered that the surgical wound had not 9 completely healed and was swollen and draining. Plaintiff is experiencing excruciating 10 pain in his left knee, and he claims that Dr. Lewicky failed to complete his left knee 11 reconstruction. Plaintiff claims that sutures remained in the wound, which caused the 12 wound to become infected and fail to close.
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1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Glen Wilson, No. CV 19-08306-PCT-JAT (DMF) 10 Plaintiff, 11 v. ORDER 12 Yuri M. Lewicky, et al., 13 Defendants.
14 15 Plaintiff Glen Wilson, who is confined in the Federal Correctional Institution in 16 Phoenix, Arizona, filed a pro se civil rights Complaint (Doc. 1) pursuant to 28 U.S.C. 17 § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 18 U.S. 388 (1971), and an Application to Proceed In Forma Pauperis (Doc. 4). The Court 19 granted the Application and dismissed the Complaint (Doc. 6).1 Plaintiff subsequently a 20 First Amended Complaint (Doc. 9), which the Court dismissed for failure to state a claim 21 with leave to amend (Doc. 11).2 Plaintiff has filed a Second Amended Complaint (Doc. 22 14). The Court will dismiss the Second Amended Complaint and this case for lack of 23
24 1 In the Order, the Court indicated that it was dismissing the Complaint with leave 25 to amend, but the final page of the Order dismissed the Complaint and this action and Judgment was entered by the Clerk of Court (Doc. 8). The Court will vacate entry of 26 Judgment and order this case reopened. 27 2 In the First Amended Complaint, Plaintiff cited 28 U.S.C. § 1331 and medical malpractice as the bases for subject matter jurisdiction. Plaintiff failed to allege facts to 28 support that the Court had federal question subject matter jurisdiction under 28 U.S.C. § 1331, but the Court concluded that he might be able to do so in a second amended complaint. 1 subject matter jurisdiction. 2 I. Statutory Screening of Prisoner Complaints 3 The Court is required to screen complaints brought by prisoners seeking relief 4 against a governmental entity or an officer or an employee of a governmental entity. 28 5 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 6 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 7 relief may be granted, or that seek monetary relief from a defendant who is immune from 8 such relief. 28 U.S.C. § 1915A(b)(1)-(2). 9 A pleading must contain a “short and plain statement of the claim showing that the 10 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 11 not demand detailed factual allegations, “it demands more than an unadorned, the- 12 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Id. 15 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 16 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 17 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 18 that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 20 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 21 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 22 allegations may be consistent with a constitutional claim, a court must assess whether there 23 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 24 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 25 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 26 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 27 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 28 U.S. 89, 94 (2007) (per curiam)). 1 II. Second Amended Complaint 2 In his one-count Second Amended Complaint, Plaintiff asserts a claim for medical 3 malpractice. Plaintiff sues Dr. Yuri Lewicky, an orthopedic surgeon, for surgery 4 performed when Plaintiff was not in custody. Plaintiff seeks $10 million in punitive relief. 5 A. Background 6 Plaintiff was convicted of federal offenses on April 26, 2006 and sentenced to prison 7 for five years followed by supervised release for five years. United States v. Wilson, 8 No.3:05cr00657-PCT-JAT (D. Ariz. Apr. 26, 2006), Doc. 43. Plaintiff was released on 9 supervised release after completing his prison term, which was revoked multiple times for 10 violations of the terms of supervised release. Id., Docs. 87, 103, 107 (amended order), 124, 11 and 140. At the time of the events at issue in the Second Amended Complaint, Plaintiff 12 was not imprisoned, but he was on supervised release. Subsequent to the events at issue in 13 the Second Amended Complaint, Plaintiff was again charged with violating the conditions 14 of supervised release, and, on August 24, 2018, the Court revoked supervised release and 15 sentenced Plaintiff to serve 36 months in prison. Id., Doc. 140. While in prison, Plaintiff 16 filed this action. 17 B. Plaintiff’s Allegations 18 Except as otherwise indicated, Plaintiff alleges3 the following: 19 On June 7, 2016, while on supervised release, Plaintiff injured his left knee and was 20 seen in the emergency room of the Indian Health Service4 in Fort Defiance, Arizona.5 Dr. 21 Oseni ordered an MRI of Plaintiff’s left knee, which was performed on June 16, 2016. 22 Plaintiff returned home with instructions to use crutches, to stay off his feet as much as 23 possible, and to elevate and ice his left knee. Plaintiff received a “referral from Dr. 24 25 3 The Court includes some of Plaintiff’s allegations from the First Amended Complaint for additional context. 26 4 The Indian Health Service is a division of the Public Health Service of the United States Department of Health and Human Services. Benavidez v. United States, 177 F.3d 27 927, 928 n.1 (10th Cir. 1999). 28 5 Plaintiff is Native American. See https://www.bop.gov/inmateloc/, search Register# 83048-008 (last accessed June 15, 2020). 1 Marshall L. Cook, to report to Northern Arizona Orthopedic Hospital” (“the Hospital”). 2 (See Doc. 9 at 2.) Plaintiff reported to the Hospital on August 22, 2016 for examination. 3 Dr. Bourck Cashmore referred Plaintiff to Defendant Dr. Lewicky. On August 25, 2016, 4 Plaintiff visited Dr. Lewicky, who recommended arthroscopic assisted ACL and PCL 5 reconstruction in addition to open MCL and posterior oblique ligament reconstruction and 6 removal of tibial hardware, which would require an overnight stay. On September 23, 7 2016, Dr. Lewicky performed arthroscopic surgery on Plaintiff’s left knee at the Hospital. 8 At some point after the surgery, Plaintiff discovered that the surgical wound had not 9 completely healed and was swollen and draining. Plaintiff is experiencing excruciating 10 pain in his left knee, and he claims that Dr. Lewicky failed to complete his left knee 11 reconstruction. Plaintiff claims that sutures remained in the wound, which caused the 12 wound to become infected and fail to close. Plaintiff claims that Dr. Lewicky “completely 13 ignored the removal of the old ACL retain hardware.” (Doc. 14-1 at 4.) 14 Attached to the Second Amended Complaint is an “Operative Report” dated July 15 25, 2019 and signed by Dr. Michael R. Hayman. (Doc. 14-1 at 6). Hayman states as both 16 his pre- and post-operative diagnoses, “Left tibial incision, status post anterior cruciate 17 ligament reconstruction in the remote past with persistent drainage and retained hardware.” 18 (Id.) Dr. Hayman states that he performed, “Left tibia irrigation and debridement with 19 removal of hardware; irrigation and debridement, arthroscopic, of the knee; bone grafting 20 of the retained hardware site, left tibia.” (Id.) Dr. Hayman states in part, “This is a 44- 21 year-old who has had multiple surgeries on his left knee. The last one was an ACL 22 reconstruction after what sounds like a possible failed prior reconstruction.” (Id.) The 23 report also indicates that aerobic, anaerobic, and fungus cultures were then-negative. (Id. 24 at 13-15.) Plaintiff has also attached a September 23, 2016 “FMC Operative Report.” (Id. 25 at 16-20.) In addition, Plaintiff has attached a May 9, 2019 report by Dr. Hayman in which 26 he noted drainage and treatment with antibiotics of infection. (Id. at 21-28.) 27 III. Subject Matter Jurisdiction 28 Federal courts are courts of limited jurisdiction and only have subject matter 1 jurisdiction over matters authorized by the Constitution and Congress. A federal district 2 court, like this one, may exercise subject matter jurisdiction based on federal question 3 subject matter jurisdiction under 28 U.S.C. § 1331 or based on diversity subject jurisdiction 4 under 28 U.S.C. § 1332. 5 A. Diversity Subject Matter Jurisdiction 6 District courts also have “original jurisdiction of all civil actions where the matter 7 in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is 8 between … citizens of different States ….” 28 U.S.C. § 1332(a)(1). For purposes of 9 diversity jurisdiction, the plaintiff(s) and defendant(s) must be completely diverse. See 10 Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (“we have 11 consistently interpreted § 1332 as requiring complete diversity: In a case with multiple 12 plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the 13 same State as a single defendant deprives the district court of original diversity jurisdiction 14 over the entire action.”); In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th 15 Cir. 2008). “Generally, the amount in controversy is determined from the face of the 16 pleadings.” Crum v. Circus Circus Enter., 231 F.3d 1129, 1131 (9th Cir. 2000). 17 Plaintiff does not purport to seek relief under § 1332, and he has alleged no facts to 18 support that the parties are diverse. Accordingly, the Court lacks diversity subject matter 19 jurisdiction. 20 B. Federal Question Subject Matter Jurisdiction 21 Section 1331 provides that “[t]he district courts shall have original jurisdiction of 22 all civil actions arising under the Constitution, laws, or treaties of the United States.” 23 Plaintiff asserts a claim for medical malpractice, but he fails to identify how a medical 24 malpractice claim arises under the Constitution, laws, or treaties of the United States. 25 As the Court noted in its last Order, Plaintiff did not allege facts to support that Dr. 26 Lewicky was a federal employee or acted under color of federal law. In his Second 27 Amended Complaint, Plaintiff again does not allege that Dr. Lewicky was a federal 28 employee or that he was in any affiliated with Indian Health Care Services. Consequently, 1| Plaintiff fails to allege facts to support that this Court has federal question subject matter jurisdiction. 3 C. Conclusion 4 As discussed herein, Plaintiff has failed to allege facts to support that this Court has 5 | subject matter jurisdiction over his claims. Accordingly, the Court will dismiss the Second Amended Complaint and this case. 7| ITIS ORDERED: 8 (1) |The Second Amended Complaint (Doc. 14) is dismissed for lack of subject 9 | matter jurisdiction. 10 (2) | The Clerk of Court must enter a judgment of dismissal of this action without 11 | prejudice for lack of subject matter jurisdiction. 12 Dated this 19th day of June, 2020. 13 14 a 15 16 _ James A. Teil Org Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28