The opinion of the court was delivered by: JAMES MUNLEY, District Judge
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.
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
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
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.
The Report and Recommendation proposes that we dismiss
Plaintiff's against Inch and Frimpong for different reasons.
Therefore, we ...