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FREEMAN v. INCH

May 16, 2005.

SHERWYN D. FREEMAN, Plaintiff,
v.
DIANE INCH, Physician Assistant-Lieutenant; CLEMENT FRIMPONG, Physician Assistant, Defendants.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

Presently before the Court for disposition is Magistrate Judge Thomas M. Blewitt's ("Magistrate Blewitt") Report and Recommendation, which proposes that we dismiss Plaintiff Sherwyn D. Freeman's ("Plaintiff") claims against Defendant Diane Inch ("Inch") and Defendant Clement Frimpong ("Frimpong"). Plaintiff has filed objections to the Report and Recommendation, making this matter ripe for disposition. For the reasons that follow, we will adopt Magistrate Blewitt's Report and Recommendation in part and reject it in part.

Background*fn1

  Plaintiff is an inmate at the United States Penitentiary at Allenwood, Allenwood Pennsylvania ("USP-Allenwood"). Plaintiff filed the instant pro se action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971)*fn2 advancing claims against Inch and Frimpong alleging that each denied him proper medical treatment, thus subjecting him to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. He avers that Inch and Frimpong, Physicians Assistants ("P.A.s") at USP-Allenwood, ignored his requests for medical attention for a painful ear infection, resulting in permanent hearing loss.

  Prior to filing suit, Plaintiff filed a grievance with the prison. Therein, he described in detail his complaint that Inch denied him medical treatment. In his grievance, the sole reference to prison medical personnel other than Inch stated, "Plaintiff also complained about his ear infection to the other P.A.s who delivered medication to the Special Housing Unit during the weekend of January 3 and 4, 2004, but was told by all of them that he would have to wait until Monday, January 5, 2004 for help." (Doc. 39, Pl. Ex. 4). Plaintiff included this reference in his initial grievance as well as in his appeals. Plaintiff fully exhausted the grievance process and all available appeals. (Doc. 35, Def. Ex. 1, Wallace Decl. at 3).

  The defendants filed a motion to dismiss, arguing that the claim against Inch should be dismissed because the Federal Torts Claims Act ("FTCA") is the exclusive remedy against her for personal injuries resulting from the performance of medical and related functions because she is a commissioned officer of the Public Health Service ("PHS"). The defendants did not advance the same argument with regards to Frimpong. Instead, they argued that the claim against Frimpong should be dismissed because Plaintiff failed to specifically name Frimpong in his grievances and his references to "other P.A.s" was insufficient to properly exhaust his remedies prior to filing suit.

  The Report and Recommendation suggests that we dismiss Plaintiff's claims for the reasons advanced by the defendants. Plaintiff has filed objections to Magistrate Blewitt's Report. Regarding his claim against Inch, Plaintiff argues: 1) that the Public Health Service Act does not exist; 2) the plain language of 42 U.S.C. § 233(a)-(b) does not require that the exclusive remedy against a PHS Employee is under the FTCA; and 3) a PHS employee is not immune from suit for constitutional violations. Regarding his claim against Frimpong, he argues: 1) the administrative grievance procedures do not require that he specifically name each defendant; and 2) his grievances were sufficient to place the prison officials on notice that he objected to Frimpong's conduct. For the reasons that follow, we will overrule Plaintiff's objections and dismiss his claim against Inch. We will sustain his objections regarding Frimpong, however, and remand this case for further consideration of this claim.

  Jurisdiction

  As this case is brought pursuant to Bivens, we have jurisdiction under 28 U.S.C. § 1331, which provides, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

  Standard

  In disposing of objections to a magistrate's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. Id.

  Discussion

  The Report and Recommendation proposes that we dismiss Plaintiff's against Inch and Frimpong for different reasons. Therefore, we ...


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