United States District Court, M.D. Pennsylvania
June 17, 2005.
TERRY A. BOYD, Plaintiff
M.V. PUGH, ET AL., Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
MEMORANDUM AND ORDER
Plaintiff, Terry A. Boyd ("Boyd"), an inmate incarcerated at
the United States Penitentiary at Allenwood, White Deer,
Pennsylvania, filed this action on August 9, 2004, alleging
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 397 (1971) civil rights claims in the
form of denial of medical treatment, placement of erroneous
information in his medical records, and erroneous responses to
his administrative remedy requests. Also included is a denial of
medical treatment under the Federal Tort Claims Act ("FTCA"),
28 U.S.C. § 2671, et seq. Presently pending is Defendants' motion
to dismiss the complaint for failure to state a claim upon which
relief may be granted pursuant to FED.R.CIV.P. 12(b)(6), and for
summary judgment pursuant to FED.R.CIV.P 56. (Doc. 17). The
motion is presently ripe for disposition. For the reasons set
forth below, the motion to dismiss will be granted in part and
denied in part, and the summary judgment motion will be granted.
I. Motion to Dismiss.
A. Standard of Review.
When evaluating a motion to dismiss, the court must accept all
material allegations of the complaint as true and construe all
inferences in the light most favorable to the plaintiff.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court assumes the
truth of plaintiff's allegations, and draws all favorable
inferences therefrom. See, Rocks v. City of Philadelphia, 868
F.2d. 644, 645 (3d. Cir. 1989). A complaint should not be
dismissed for failure to state a claim unless it appears "beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 44-46 (1957); Ransom v. Marrazzo, 848 F.2d 398,
401 (3d Cir. 1988). A complaint that sets out facts which
affirmatively demonstrate that the plaintiff has no right to
recover is properly dismissed without leave to amend. Estelle v.
Gamble, 429 U.S. 97, 107-108 (1976).
To the extent that Plaintiff seeks to pursue denial of medical
treatment under the FTCA Defendants seek to dismiss the complaint
for failure to file the complaint within the applicable statute
of limitations. An action under the FTCA must be brought within
six months of the final denial of the claim. See
28 U.S.C. § 2401(b). Boyd filed an administrative tort claim which was
received by the BOP Regional Office on June 2, 2003. (Doc. 20-1,
p. 19). Boyd amended the claim on June 20, 2003. The claim was
denied on November 26, 2003. (Id.). The pertinent portion of
the denial of the claim is as follows:
After careful review of this claim, I have decided
not to offer a settlement. Investigation reveals you
have a history of several medical conditions,
including right leg trauma and reconstruction. On
February 25, 2003, you reported to medical staff you
injured your right leg when you slipped and fell on
the ice on February 17, 2003. The medication you
requested is not authorized by the national
formulary. You were, however, provided with adequate medication to provide
you pain relief. A review of the medical record
indicates you received appropriate treatment for the
symptoms you presented. The record does not reflect
you reported icy conditions or a slip and fall to any
staff member on February 17, 2003. You fail to show
you have experienced an injury as the result of the
negligence on the part of any Bureau of Prisons'
Accordingly, your claim is denied. If you are
dissatisfied with this decision, you may seek
reconsideration from this office or bring an action
against the United States in an appropriate District
Court within six (6) months of the date of this
(Doc. 20-1, p. 20). It was therefore necessary for Boyd to file
this action on or before May 26, 2004. Boyd did not file this
action until August 9, 2004. The Court is unconvinced by Boyd's
argument that his delay in filing was due to the fact that he did
not receive the denial letter until February 2004. As is clear
from the record, the memorandum denying the claim was marked as
received on December 1, 2003 at Allenwood. (Doc. 26, p. 2; see
also, id.). Also, as Defendants point out, even if Boyd did not
receive the notice until February 2004, that still afforded him
more than three months to file the action. Lastly, the language
contained in the memorandum denying the claim clearly states that
an action against the United States must be filed within six
months of the date of the memorandum, not within six months of
receipt of the memorandum. It is clear that this claim was
brought after the six-month limitations period expired. The FTCA
claim is therefore subject to dismissal.
2. Bivens claim.
The Defendants seek to dismiss Boyd's Bivens claims regarding
erroneous information noted in his medical records and erroneous
responses to his administrative remedy based upon his failure to exhaust available administrative remedies. The
Prison Litigation Reform Act (PLRA) requires prisoners to present
their claims through an administrative grievance process before
seeking redress in federal court. The act specifically provides
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until
such administrative remedies as are available are
42 U.S.C. § 1997e(a). Prisoners must exhaust administrative
remedies as to any claim that arises in the prison setting,
regardless of any limitations on the kind of relief that may be
gained through the grievance process. See Porter v. Nussle,
534 U.S. 516
, 532 (2002): Booth v. Churner, 532 U.S. 731
, 741 n. 6
(2001). "[I]t is beyond the power of [any] court . . . to excuse
compliance with the exhaustion requirement." Nyhuis v. Reno,
204 F.3d 65
, 73 (3d Cir. 2000) (quoting Beeson v. Fishkill Corr.
Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998).
The PLRA requires not only technical exhaustion of the
administrative remedies, but also substantial compliance with
procedural requirements. Spruill v. Gillis, 372 F.3d 218,
227-32 (3d Cir. 2004); see also Nyhuis, 204 F.3d at 77-78. A
procedural default by the prisoner, either through late or
improper filings, bars the prisoner from bringing a claim in
federal court unless equitable considerations warrant review of
the claim. Spruill, 372 F.3d at 227-32; see also Camp v.
Brennan, 219 F.3d 279 (3d Cir. 2000).
The BOP has established an administrative remedy procedure,
which is set forth at 28 C.F.R. §§ 542 et seq., whereby a
federal prisoner may seek formal review of any aspect of his
imprisonment. Inmates must first informally present their
complaints to staff, and staff shall attempt to informally resolve any issue before an inmate files a
request for administrative relief. 28 C.F.R. § 542.13(a). If
unsuccessful at informal resolution, the inmate may raise his
complaint with the warden of the institution where he is
confined. Id. at § 542.14(a). If dissatisfied with the
response, he may then appeal an adverse decision to the Regional
Office and the Central Office of the BOP. Id. at §§ 542.15(a)
and 542.18. "If the appeal is denied by the Bureau of Prisons's
Central Office, the inmate may then file a civil action." (Doc.
20-1, p. 4).
On March 18, 2003, Boyd filed an administrative remedy request
concerning the medical care that he was receiving for his legs,
which was assigned number 293764-FI. The Defendants concede that
through this request, Boyd successfully administratively
exhausted the issue of improper medical care in violation of the
Eighth Amendment. (Doc. 20-1, p. 4). However, there is no
indication in the record that Boyd has exhausted his
administrative remedies concerning any of the other claims he
raises in his complaint. (Id. at p. 6). Boyd does not dispute
this. Therefore, all claims with the exception of the claim
alleging denial of adequate medical care will be dismissed. The
adequate medical care claim will be considered on the
Defendants also seek to dismiss the Eighth Amendment claim
against Defendants Pugh and Laino based upon lack of personal involvement. "A defendant
in a civil rights action must have personal involvement in the
alleged wrongs. . . . Personal involvement may be shown through
allegations of personal direction or actual knowledge and
acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207-08
(3d Cir. 1988). Also, it is well established that claims brought
under § 1983 cannot be premised on a theory of respondeat
superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988). Rather, each named defendant must be shown, via the
complaint's allegations, to have been personally involved in the
events or occurrences which underlie a claim. See Rizzo v.
Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison
Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in Rode:
A defendant in a civil rights action must have
personal involvement in the alleged wrongs . . .
[P]ersonal involvement can be shown through
allegations of personal direction or of actual
knowledge and acquiescence. Allegations of
participation or actual knowledge and acquiescence,
however, must be made with appropriate particularity.
Rode, 845 F.2d at 1207. A review of the allegations contained
in the complaint lead the Court to conclude that Boyd has set
forth sufficient facts to state such an Eighth Amendment claim
against these Defendants. The motion to dismiss will therefore be
denied and the issue will be revisited infra in the context of
II. Motion for Summary Judgment.
A. Standard of Review.
"Summary judgment serves as a minimal but important hurdle for
litigants to overcome before presenting a claim to a jury."
Pappas v. City of Lebanon, 331 F.Supp.2d 311, 314 (M.D. Pa. 2004). Faced with such a motion, the adverse party must
produce affirmative evidence, beyond the disputed allegations of
the pleadings, in support of the claim. FED.R.CIV.P.56(e); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Corneal
v. Jackson Township, 313 F.Supp.2d 457, 464 (M.D. Pa. 2003),
aff'd, 94 Fed. Appx. 76 (3d Cir. 2004). "Such affirmative
evidence regardless of whether it is direct or circumstantial
must amount to more than a scintilla, but may amount to less (in
the evaluation of the court) than a preponderance." Saldana v.
Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001) (quoting
Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d
Cir. 1989). Only if this burden is met can the cause of action
proceed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57
(1986); Matsushita Elec. Indus. Co. V. Zenith Radio Corp.,
475 U.S. 574, 587-89 (1986); see FED. R. Civ. P. 56(c), (e).
B. Statement of Facts.
Boyd arrived at the USP Allenwood on August 21, 2002. Based
upon his medical history, which included a diagnosis of diabetes,
hypertension, depression, hiatal hernia, gastric reflux and
trauma to his right leg, sustained while in Viet Nam, with
reconstruction, he was designated as a candidate for the chronic
care clinic. (Doc. 20-4, p. 17). It was noted that he was in need
of ambulatory assistance and that he utilized a wheelchair. (Doc.
20-4, p. 21).
He reported to the health services department on February 25,
2003, stating that he sustained further injury to his right leg
resulting a February 17, 2003 slip on the ice. (Doc. 20-4, p. 7).
A physical examination of Boyd revealed no bruising, swelling or
deformity. He requested a muscle relaxer, but was informed that
it was not an option because USP Allenwood does not have them. He was given aspirin for pain. (Id.)
He next reported to the clinic on March 18, 2003, with
complaints that he was having difficulty walking and holding his
institution job. (Doc. 20-4, p. 7). He was also experiencing
decreased sensation and weakness in his right leg as a result of
the trauma to his right leg suffered while in Viet Nam. Boyd was
given medically unassigned status and encouraged to monitor his
On May 10, 2003, he was evaluated for complaints of swelling
and pain in his left leg. (Doc. 20-4, p. 5). An ultrasound was
ordered. Although he was provided with a wheelchair pass, there
were no wheelchairs available. He was informed that he should
return to the clinic immediately if the pain in his calf
increased, if the calf became warm to the touch or if he
experienced any numbness or tingling. He was also "strongly
advised" to return to sick call on Monday for a full examination
of his leg.
On May 12, 2003, he reported complaints of pain in his left
leg. The physical examination revealed swelling and tenderness in
the left calf for which he was prescribed a compression stocking.
(Doc. 20-4, p. 1).
The ultrasound results dated May 16, 2003, found "[n]o evidence
of deep venous thrombosis of the left leg by ultrasound." (Doc.
20-4, p. 31). A follow-up examination was performed on that date,
and although the swelling had decreased in his left leg, there
was concern, based upon his difficulty in ambulating, that he may
have a muscle tear of the upper right leg. An MRI for the upper
right leg was to be considered. (Doc. 20-2, p. 100). He was given a wheelchair for a two week period and encouraged to
elevate his left leg to decrease the swelling. During a sick call
visit on May 23, 2003, the MRI was ordered.
On June 9, 2003, Boyd was examined for complaints of swelling
to his right ankle and numbness to both legs. Lab tests were
ordered and he was prescribed medication. He was advised to
continue to wear the compression stocking, and also, to continue
elevating his legs. The MRI results were normal.
On June 16, 2003, Boyd was evaluated for his chronic medical
needs. At that time, his medical condition had not improved. He
was advised that a request for a medical transfer was submitted
to further evaluate and treat his chronic medical needs. The
transfer was approved on July 7, 2003, and on July 30, 2003, Boyd
was transferred to the Federal Medical Center in Devens,
Massachusetts (FMC Devens). (Doc. 20-4, p. 23, and Doc. 20-2, pp.
On September 4, 2003, while at FMC Devens, Boyd had a pacemaker
implanted due to an irregular heartbeat. (Doc. 20-2, pp. 67-70).
With respect to the issues surrounding the complications with his
legs, "[m]edical evidence shows that the inability to activate
most muscles of the bilateral lower extremities was of unclear
etiology and was considered to be possibly due to the poor effort
on Boyd's part. From September through October 2003, while at FMC
Devens, Boyd was evaluated in physical therapy on five separate
occasions. During these visits, it was noted that he was
uncooperative and combative. It is the belief of the staff of the
Physical Therapy Department that Boyd can walk, but chooses not
to." (Doc. 20-1, p. 25).
Boyd was returned to USP Allenwood on September 23, 2004. He
was assessed by the doctor upon his return. It was noted that Boyd was in a
wheelchair but that he was comfortable, alert, oriented and he
had normal speech.
The only issue remaining before the Court is Boyd's contention
that the Defendants violated his Eighth Amendment rights in
failing to provide him with adequate medical care. "A prison
official's `deliberate indifference' to a substantial risk of
serious harm to an inmate violates the Eighth Amendment." Farmer
v. Brennan, 511 U.S. 825, 827 (1994) citing Helling v.
McKinney, 509 U.S. 25 (1993); Wilson v. Seiter, 501 U.S. 294
(1991); Estelle, 429 U.S. 97. An inadequate medical care claim,
as is presented here, requires allegations that the prison
official acted with "deliberate indifference to serious medical
needs" of the plaintiff, while a prisoner. Estelle,
429 U.S. at 104; Unterberg v. Correctional Medical Systems, Inc.,
799 F.Supp. 490, 494-95 (E.D. Pa. 1992). The official must know of
and disregard an excessive risk to inmate health or safety.
Farmer, 511 U.S. at 837. "[T]he official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference." Id. "The question . . . is whether prison
officials, acting with deliberate indifference, exposed a
prisoner to a sufficiently substantial `risk of serious damage to
his future health."' Farmer, 511 U.S. at 843. This test
"affords considerable latitude to prison medical authorities in
the diagnosis and treatment of the medical problems of inmate
patients. Courts will `disavow any attempt to second guess the
propriety or adequacy of a particular course of treatment . . .
which remains a question of sound professional judgment.'"
Little v. Lycoming County, 912 F.Supp. 809, 815 (M.D. Pa) aff'd,
103 F.3d 691 (1996) citing Inmates of Allegheny County Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979), quoting Bowring v.
Godwin, 551 F.2d 44, 48 (4th Cir. 1977).
Furthermore, a complaint that a physician or a medical
department "has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment . . ." Estelle,
429 U.S. at 106. More than a decade ago, the Third Circuit ruled that
"while the distinction between deliberate indifference and
malpractice can be subtle, it is well established that as long as
a physician exercises professional judgment his behavior will not
violate a prisoner's constitutional rights." Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). "A medical
decision not to order an X-ray, or like measures, does not
represent cruel and unusual punishment. At most it is medical
malpractice." Estelle, 429 U.S. at 107.
Where an inmate is provided with medical care and the dispute
is over the adequacy of that care, an Eighth Amendment claim does
not exist. Nottingham v. Peoria, 709 F.Supp. 542, 547 (M.D.Pa.
1988). Disagreement among individuals as to the proper medical
treatment does not support an Eighth Amendment claim. Monmouth
County Correctional Inst. Inmates v. Lensario, 834 F.2d 326, 346
(3d Cir. 1987). Only flagrantly egregious acts or omissions can
violate the standard. Mere medical malpractice cannot result in
an Eighth Amendment violation, nor can any disagreements over the
professional judgment of a health care provider. White v.
Napoleon, 897 F.2d 103, 108-10. Throughout the time period in question, it is clear from the
record that Boyd was seen on numerous occasions in the health
services department. He was prescribed pain medication when he
complained of pain. He was excused from his assigned work detail
when he expressed difficulty in performing his institution job.
He was provided a wheelchair to assist him with ambulation.
Diagnostic tests were ordered, and performed, to facilitate
treatment. When it was realized that Boyd was in need of more
chronic care, he was transferred to an adequate medical facility.
Despite all this medical intervention, Defendants have not been
able to conclusively diagnose Boyd's condition. Nevertheless,
this is clearly a case where Boyd has been given medical
attention and is simply dissatisfied with the results. An
inmate's disagreement with medical treatment is insufficient to
establish deliberate indifference. Durmer v. O'Carroll,
991 F.2d 64, 69 (3d Cir. 1993); Spruill, 372 F.3d at 235.
Additionally, courts will not second guess whether a particular
course of treatment is adequate or proper. Parham v. Johnson,
126 F.3d 454, 458 n. 7 (3d Cir. 1997). Summary Judgment will
therefore be granted in favor of the medical defendants, Laino,
Holzapple and Bennett.
Further, as concerns the non-medical defendant, Warden Pugh, if
a prisoner is under the care of medical experts, as is the case
here, a non-medical prison official cannot be considered
deliberately indifferent for failing to respond to an inmate's
medical complaints, "absent a reason to belief (or actual
knowledge) that prison doctors or their assistants are misleading
(or not treating) a prisoner. . . ." Spruill, 372 F.3d at 236;
Durmer, 991 F.2d at 67. Summary judgment will also be granted
in favor of this defendant. An appropriate order will issue. ORDER
AND NOW, to wit, this 17th day of June 2005, upon
consideration of the Defendants' motion to dismiss and for
summary judgment (Doc. 17), and in accordance with the
accompanying memorandum, IT IS HEREBY ORDERED:
1. Defendants' motion to dismiss (Doc. 17) is GRANTED IN PART
AND DENIED IN PART. The motion is GRANTED with respect to the
FTCA claim and the Bivens claim concerning erroneous
information noted in his medical records and erroneous responses
to his administrative remedy based upon his failure to exhaust
his available administrative remedies;
2. The motion is DENIED with respect to the Bivens claim
concerning inadequate medical care;
3. The motion for summary judgment (Doc. 17) on the remaining
issue of denial of adequate medical treatment in violation of the
Eighth Amendment is GRANTED.
4. The Clerk of Court is directed to ENTER JUDGMENT in favor of
the Defendants and against Plaintiff;
5. The Clerk of Court is further directed to CLOSE this case;
6. Any appeal from this order is DEEMED frivolous and not taken
in good faith. See 28 U.S.C. § 1915(a)(3).