United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
a state inmate, filed this civil rights action pro
se pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). The
matter is before the court for frivolity review pursuant to
28 U.S.C. § 1915.
1915 provides that courts shall review complaints in which
prisoners seek relief from a governmental entity or officer
and dismiss such complaints when they are
“frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i). A
complaint may be found frivolous because of either legal or
factual deficiencies. First, a complaint is frivolous where
“it lacks an arguable basis . . . in law.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Legally frivolous claims are based on an “indisputably
meritless legal theory” and include “claims of
infringement of a legal interest which clearly does not
exist.” Adams v. Rice, 40 F.3d 72, 74 (4th
Cir. 1994) (quoting Neitzke, 490 U.S. at 327). Under
this standard, complaints may be dismissed for failure to
state a claim cognizable in law, although frivolity is a more
lenient standard than that for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Neitzke,
490 U.S. at 328. Second, a complaint may be frivolous where
it “lacks an arguable basis . . . in fact.”
Id. at 325. Section 1915 permits federal courts
“to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” See Denton v.
Hernandez, 504 U.S. 25, 32 (1992) (citing
Neitzke, 490 U.S. at 327).
cause of action relates to medical care he received while he
was incarcerated at the Federal Medical Center in Butner,
North Carolina (“Butner”). Plaintiff names as
defendants several physicians employed by the Granville
Medical Center which include: Dr. Zola, Dr. Albo, Dr.
Wegener, and Dr. Fahrner. Plaintiff also names as defendants
Brandon Wyche, Susan Brantley, John Mehanna, and Dr. C.
Duchesne. Plaintiff's complaint in its entirety states as
Prior to incarceration I was diagnosed with tumors
(Angiolipoma) in both kidneys. Because I was undergoing
treatment for chronic meloid leukemia, (CML) the tumors were
not removed but merely monitored for growth or any increase
in size utilizing CT scans. Then while I was incarcerated at
Butner FMC, I was examined again utilizing a CT Scan. The CT
Scan of course noted a very large tumor and two small tumors
in the left kidney with a small tumor in the right kidney.
There was also a test done to determine if my CML had
returned. I then reported to Medical with severe abdominal
pain, and groin pain. I was then transported to the local
Hospital, Granville Community Hospital, and not being aware
of my condition, and the fact that I had lived with the
tumors and had perfectly functioning kidneys, made a
determination that I should undergo a Nephrectomy or kidney
removal surgery. In an attempt to justify their actions in
removing my kidney, they stated that the tumors were NOT
removed earlier because I was undergoing treatment for CML. I
was transferred to Butner because I suffered from CML. I
assert that based upon my medical history, I should have been
examined for the recurrence of CML. Instead, I was examined
for the tumors in my kidneys which were NOT causing me
problems at all and were not interfering with my kidney
functions. It should be noted as well that two working,
functioning kidneys, is the suggestion of any Oncologist for
a patient undergoing treatment for Leukemia. On September 13,
2013 I was placed in Granville Community Hospital and my
kidney was erroneously removed. After my kidney was
erroneously removed, and Hospital protocol was violated, as
the kidney was not examined, I returned to Medical with the
same problems. Abdominal and groin pain. In other words, the
removal of my working kidney had no effect on the groin and
abdominal pain. This time . . . . I WAS examined for CML and
it had recurred and again I had to undergo treatment. This
time . . . without one of my kidneys. I assert that this is
malpractice, negligence, delay of proper medical care, denial
of proper medical care, deliberate indifference to my serious
medical needs and wanton infliction of cruel and unusual
punishment in violation of the 8th amendment. These all
occurred while I was in care, custody and control of the
Federal Bureau of Prisons. . . . .
¶ 5). Plaintiff attached to his complaint his
post-nephrectomy discharge summary from the Granville Medical
Center and several administrative remedy-related documents.
upon the above allegations, plaintiff contends that
defendants violated his rights pursuant to the Eighth
Amendment to the United States Constitution. The Eighth
Amendment “protects inmates from inhumane treatment and
conditions while imprisoned.” Williams v.
Benjamin, 77 F.3d 756, 761 (1996). “In order to
make out a prima facie case that prison conditions
violate the Eighth Amendment, a plaintiff must show both (1)
a serious deprivation of a basic human need; and (2)
deliberate indifference to prison conditions on the part of
prison officials.” Strickler v. Waters, 989
F.2d 1375, 1379 (4th Cir. 1993) (internal quotation omitted).
The Supreme Court has explained that the first prong is an
objective one-the prisoner must show that “the
deprivation of [a] basic human need was objectively
sufficiently serious ”-and the second prong is
subjective-the prisoner must show that “subjectively
the officials act[ed] with a sufficiently culpable state of
mind.” See Strickler, 989 F.2d at 1379
(internal quotations omitted).
indifference “sets a particularly high bar to
recovery.” Iko v. Shreve, 535 F.3d 225, 241
(4th Cir. 2008). “In order to establish a claim of
deliberate indifference to a medical need, the need must be
both apparent and serious, and the denial must be both
deliberate and without legitimate penological
objective.” Grayson v. Peed, 195 F.3d 692, 695
(4th Cir. 1999). “[D]eliberate indifference entails
something more than negligence, . . . [but] is satisfied by
something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.”
See Farmer v. Brennan, 511 U.S. 825, 835 (1994). It
requires that a prison official actually know of and
disregard an objectively serious condition, medical need, or
risk of harm. Id. at 837; Shakka v. Smith,
71 F.3d 162, 166 (4th Cir. 1995). An inmate is not entitled
to choose his course of treatment. See Russell v.
Sheffer, 528 F.2d 318, 318-19 (4th Cir. 1975) (per
curiam). Likewise, mere negligence or malpractice in
diagnosis or treatment does not state a constitutional claim.
Estelle v. Gamble, 429 U.S. 97, 105-106 (1976);
Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir.
complaint, plaintiff acknowledges that he received medical
treatment for his complaints of abdominal pain. In fact,
plaintiff was sent to Granville Medical Center Emergency
Department (“Granville”) in response to
complaints of “severe” abdominal pain. (Compl.
¶ V and Attach.). After a CT scan of plaintiff's
abdomen and pelvis revealed a large tumor in plaintiff's
left kidney, medical staff at Granville determined, with
consideration of plaintiff's medical history, that the
best course of treatment was removal of plaintiff's
kidney. (Id. Attach.). Plaintiff's disagreement
with the form of medical treatment he received is not
actionable pursuant to 42 U.S.C. § 1983. Wright v.
Collins, 766 F.2d 841, 849 (4th Cir. 1985). To the
extent plaintiff alleges a claim for negligence, such claim
also is not actionable pursuant to § 1983. See
Estelle, 429 U.S. at 105-106; Coleman v. Poff,
497 F. App'x 337, 338 (4th Cir. 2012)