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FARMER v. CARLSON

February 29, 1988

Douglas C. Farmer
v.
Norman Carlson, et al.



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, CHIEF JUDGE, MIDDLE DISTRICT OF PENNSYLVANIA

 Currently before the court is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons that follow, the court will grant defendants' motion and dismiss this case.

 Background1

 Plaintiff was an inmate at U.S.P. - Lewisburg, PA from November 7, 1986 until March 17, 1987 when he was transferred to F.C.I. - Petersburg, VA. A twenty-one (21) year old diagnosed transsexual, plaintiff spent his entire stay in Lewisburg in administrative detention. Plaintiff filed the instant civil rights action *fn2" on February 11, 1987. See document 1 of record. In his amended complaint, see document 21 of record, plaintiff names the following individuals as defendants: Norman A. Carlson, Administrator of the Bureau of Prisons (BOP); David R. Essig, Regional Director of the Northeast Region of the BOP; C.R. Edwards and J.J. Clark, Wardens at U.S.P. - Lewisburg and F.C.I. - Petersburg, respectively; and four John Doe defendants, correctional staff and employees at the two prisons. See document 21 of record, Amended Complaint, paras. 4-8.

 As stated previously, plaintiff arrived at U.S.P. - Lewisburg on November 7, 1986. From the medical records submitted by the parties, it appears that plaintiff suffers from dysthymic disorder and transsexualism. See documents 25 of record, Attachments, Medical Summary; 44 of record, Exhibits A-10, A-13. Plaintiff's Lewisburg Medical Summary, for example, reads as follows:

 
Douglas Farmer arrived at the United States Penitentiary, Lewisburg, Pennsylvania on November 7, 1986. Review of the medical record provided during this time (November 7, 1986 through March 17, 1987), reveals three medical problems. These problems include the issue of estrogen treatment for transsexualism, the issue of psychiatric evaluation for the diagnosis of depression, and thirdly, his possible exposure to syphilis. Mr. Farmer was seen by Dr. Paolo DePetrillo, board certified in internal medicine, at the request of the Health System Administrator, Mr. Edward Gawrysiak, on November 12, 1986. During this interview, the inmate denied exposure to homosexual activity or intravenous drug abuse and had not experienced fever, chills or night sweats or other constitutional symptoms which would suggest an acute or chronic medical illness. Further, the history at that time revealed his last dose of Premarin, which is the conjugated estrogen, had been one month earlier.
 
The pertinent physical examination findings include some decrease in facial hair, rearrangement of body fat to a female distribution. It can be noted that there was no gynecomastia, which is an excessive development of male breast tissue. The second examination was prompted because the initial examination revealed an absent scrotal sac. The medical report from MCFP, Springfield did indicate that the inmate had testicles bilaterally. Dr. DePetrillo's second examination did reveal the testicles. It is documented in the medical record that future genitalia examinations should include careful assessment of the inguinal canal, should the testicles not be apparent.

 See document 25 of record, Attachments, Medical Summary.

 In the instant civil rights action, plaintiff asserts various claims regarding his four and one-half month stay in administrative segregation at Lewisburg. Plaintiff claims that: (1) defendants denied him the assistance of a "jailhouse lawyer" while he was in administrative segregation, thereby denying him his sixth amendment right of access to the courts; (2) defendants were deliberately indifferent to plaintiff's serious medical condition in that they did not afford him psychiatric treatment and refused to continue his estrogen treatment; and (3) he was subjected to cruel and unusual punishment, and his rights to due process and equal protection were violated, as a result of his placement in administrative segregation. These claims will be discussed in seriatim. Preliminarily, however, the court must address defendants' claim that venue is improper in this district as to any act or omission that occurred at F.C.I. - Petersburg, and that the complaint fails to allege that any of defendants Carlson, Essig, Edwards, and Clark personally participated or acquiesced in any alleged constitutional violation.

 Respondeat Superior and Venue.

 "Claims brought under Section 1331 and Bivens are the federal counterpart to Section 1983 civil rights complaints. As such, collateral issues developed under Section 1983 should apply to these claims by analogy." Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Rende v. Rizzo, 418 F. Supp. 96, 98 (E.D. Pa. 1976). One such collateral issue involves the doctrine of respondeat superior.

 The Third Circuit has rejected the theory of respondeat superior in actions under section 1983. Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976); Dyson v. Kocik, 564 F. Supp. 109, 120 (M.D. Pa. 1983) (Rambo, J.), aff'd, 740 F.2d 956 (3d Cir. 1984). Instead, there must be acquiescence or participation in the violation before liability attaches under section 1983. Rizzo v. Goode, 423 U.S. 362, 377, 96 S. Ct. 598, 607, 46 L. Ed. 2d 561 (1976). The same standard applies in a Bivens action involving a federal prisoner. Rende v. Rizzo, supra.

 Contrary to defendants' contention, plaintiff does not seek to hold defendants Carlson, Essig, Edwards, and Clark liable solely on the theory of respondeat superior. As stated by plaintiff,

 
[in] the case at bar the warden certainly knew of the plaintiff's alleged unconstitutional violations, well as acquiesced and participated in the denial. Specifically defendants had knowledge and participated in the denial of plaintiff's alleged constitutional violations. Defendants signed administrative remedies, denying plaintiff's constitutional rights. And with out [sic] their signature the alleged violations could not have continued.

 See document 44 of record. These facts are sufficient to satisfy the personal involvement requirement. See Dyson v. Kocik, 564 F. Supp. at 120 (conduct of superintendent of correctional institution in reviewing misconduct proceedings in which prisoner's due process rights were allegedly violated was sufficient to satisfy personal involvement requirement for civil rights action).

 As to venue regarding any act or omission that occurred at F.C.I. - Petersburg, VA, it is clearly improper in this district. When jurisdiction is not founded solely on diversity, venue is proper only in the district where all defendants reside, or in which the claim arose. See 28 U.S.C. section 1391(b). Here, all the defendants do not reside in this district, and any claims regarding plaintiff's incarceration at F.C.I. -- Petersburg arose in Virginia. *fn3" Thus, venue is improper in this district with respect to the claims or the defendants related to F.C.I. -- Petersburg. *fn4"

 Turning to plaintiff's substantive claims regarding his incarceration at U.S.P. -- Lewisburg, the court finds them to be meritless. Summary judgment will therefore be granted in favor of defendants.

 Discussion

 When examining a motion for summary judgment, the court must view all facts in the light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981). If there exists a genuine issue as to any material fact, summary judgment must be denied. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure section 2725, at pp. 93-95 (1983). In addition, summary judgment will not lie if the dispute about a material fact is "genuine," that is, "if evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In opposing a motion for summary judgment, a party must present evidentiary affidavits or risk having the undisputed statements contained in the movant's affidavits taken as true." See Fed.R.Civ.P. 56(c); see also Sierra v. Lehigh County Pennsylvania, 617 F. Supp. 427, 429 (E.D. Pa. 1985).

 Medical Care

 In order to state a cognizable claim for improper medical care, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend 'evolving standards of decency' in violation of the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). This standard thus requires both deliberate indifference on the part of prison officials and that the medical needs be serious. West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978). A "serious" medical need may fairly be regarded as one that is so obvious that a lay person would easily recognize the necessity ...


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