United States District Court, N.D. Texas, Fort Worth Division
HODA SAMUEL, BOP No. 19252-097, Plaintiff,
SERGIO MERCADO, Et Al., Defendant.
OPINION AND ORDER OF DISMISSAL UNDER 28 U.S.C. §
T. PITTMAN UNITED STATES DISTRICT JUDGE
case was recently reassigned from the docket of Judge Reed
O'Connor to this the “P” docket of the
undersigned district judge. The case remains before the Court
for review of pro-se inmate/plaintiff Hoda Samuel's
pleadings in this civil suit filed against FMC-Carswell
officials Sergio Mercado, M.D. Maitee Serrano-Mercado, M.D.,
Charles Langham, M.D., and Wendy McManus, under the screening
provision of 28 U.S.C. Â§ 1915A(a). After conducting that
review, the Court finds that all claims against the named
defendants must be dismissed under the authority of Â§
Samuel, an inmate at the Bureau of Prisons FMC-Carswell
facility, filed an original complaint naming the four
defendants listed above arising from the medical care
provided to her over the course of several years. Compl. 1-8,
ECF No.1. The prior presiding judge, by order entered January
4, 2019, directed Samuel to file a more definite statement
about the facts in support of some of her claims. Order, ECF
No.6. After the case was dismissed without prejudice due to
Samuel's failure to timely file a more definite
statement, the case was then reopened and Samuel filed a more
definite statement. Orders, ECF Nos. 13, 14, 17; More
Definite Statement (“MDS”); ECF No. 18.
claims that the defendants violated her rights under the
Eighth Amendment by failing to provide adequate medical care
for her serious medical needs, and she separately lists a
claim under the Fourteenth Amendment. Complaint 7-10, ECF No.
1. She seeks declaratory relief from this Court that her
constitutional rights were violated, along with compensatory,
punitive and nominal monetary damages. Compl. 11, ECF No. 1.
to the Court's review of the complaint in this action is
the fact that Hoda Samuel previously filed a complaint
against two of the defendants in this action, Sergio Mercado,
M.D. and Maitee Serrano-Mercado, M.D. Samuel v.
Sanchez, No. 4:15-CV-803-O (N.D. Tex. April 15, 2019)
(Final Judgment). In that case, an original complaint was
filed against Mercado, Serrano-Mercado, and three other
defendants on October 26, 2015. Complaint, ECF No. 1,
Samuel v. Sanchez, No.4:15-CV-803-O. By order and
partial judgment entered on May 24, 2018, the prior court
dismissed Samuel's claims against Sergio Mercado, M.D.
and against Maitee Serrano-Mercado, M.D.. May 24, 2018 Order
and Judgment, ECF Nos. 24, 25, Samuel v. Sanchez,
LEGAL STANDARD OF REVIEW UNDER § 28 U.S.C. §
part of the Prison Litigation Reform Act
(“PLRA”), Congress enacted 28 U.S.C. §
1915A, which requires a district court to review a complaint
from a prisoner seeking relief from a governmental entity,
officer, or employee as soon as possible after docketing.
See 28 U.S.C.A. § 1915A(a) (West 2019). This
provision authorizing review of prisoner pleadings is
separate from the screening provision applicable to
in-forma-pauperis proceedings, and it provides that when the
Court makes the review required under § 1915A(a), the
Court shall dismiss the complaint or any portion thereof, if
it is frivolous, malicious, fails to state claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. See 28
U.S.C.A. § 1915A(b)(1) and (2)(West 2019). Consistent
with § 1915A is prior case law recognizing that a
district court is not required to await a responsive pleading
to conduct its § 1915 inquiry. See Schultea v.
Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (recognizing
that a district court is not required to await a responsive
pleading to conduct its § 1915 inquiry).
complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 327 (1989). A claim lack an
arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at
327. A claim lacks an arguable basis in fact when it
describes “fantastic or delusional scenarios.”
Id. at 327-28. A complaint fails to state a claim
upon which relief may be granted when it fails to plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). To avoid dismissal
for failure to state a claim, plaintiffs must allege facts
sufficient to “raise the right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Mere “labels and conclusions” nor “a
formulaic recitation of the elements of a cause of
action” suffice to state a claim upon which relief may
be granted. Id.
Duplicative Claims/Lawsuit Against Mercado and
noted above, Samuel previously asserted the same claims
against defendants Sergio Mercado, M.D. and Maitee
Serrano-Mercado, M.D. in case number 4:15-CV-803-O. A review
of the complaints filed in the two cases reveals that they
are very similar, and in fact, the bulk of the paragraphs are
worded exactly the same. Compare October 26, 2015
Complaint, ECF No.1, Samuel v. Sanchez,
No.4:15-CV-803-O and August 6, 2018 Complaint, ECF No. 1.
Indeed, a review of these two complaints shows that the title
and introduction sections of the complaints are identical,
and that 35 of the 44 enumerated paragraphs of the complaints
are identical. See id.
noted earlier, by order and partial judgment entered on May
24, 2018, Judge O'Connor dismissed Samuel's claims
against Sergio Mercado, M.D. and against Maitee
Serrano-Mercado, M.D.. May 24, 2018 Order and Judgment, ECF
Nos. 24, 25, Samuel v. Sanchez, No.4:15-CV-803-O.
After reciting Samuel's obligation to complete service of
summons under Rule 4(m) of the Rule of Civil Procedure, the
order of dismissal provided:
By order entered October 24, 2017 (ECF No. 19) the Court
implicitly allowed Plaintiff additional time to properly
effect service of process upon Defendants Mercado and
Serrano-Mercado by serving the United States. The Clerk of
Court completed the summons forms that contained instructions
for service of process on the United States and mailed them
to Plaintiff. It has been over six months since the summons
forms were provided to Plaintiff. The Court finds that
Plaintiff has been afforded proper notice and ample time in
which to effect service of process in compliance with Rule 4,
but has failed to exercise diligence in doing so. Even upon
receiving notice of the defect in service from the United
States on January 30, 2017 (ECF No. 12), over a year ago,
Plaintiff took no action to remedy the defect. The Court
finds that Plaintiff has failed to demonstrate diligence in
prosecuting her claims against Defendants Mercado and
Serrano-Mercado. In light of these facts and circumstances,
the Court finds that dismissal of Plaintiff's claims
against Defendants Mercado and Serrano-Mercado ...