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WHOOTEN v. BUSSANICH

September 2, 2005.

PAUL WHOOTEN, Plaintiff
v.
ANTHONY BUSSANICH, ET AL., Defendants.



The opinion of the court was delivered by: JOHN E. JONES, District Judge

MEMORANDUM AND ORDER

Background

Paul Whooten ("Plaintiff" or "Whooten"), an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania ("USP-Lewisburg"), initiated this combined pro se civil rights/Federal Tort Claims Act ("FTCA") action. His amended complaint also sets forth claims under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act. Service of the complaint was previously ordered.

  Named as defendants are the United States of America and the following USP-Lewisburg officials: Associate Warden S. Hobart; Clinical Director A. Bussanich, M.D.; Health Services Administrator J. Hemphill and Assistant Health Services Administrator J. Zagame.

  Plaintiff has been confined at USP-Lewisburg since April 12, 2001. His complaint asserts that on February 24, 2003, Physician's Assistant ("PA") Kondrat prescribed him Prednisone for his chronic cluster headaches. After taking this medication for a short period, Whooten states that he began vomiting blood and experiencing severe stomach pain. As a result, PA Ritter discontinued his use of prednisone. In March 2003, PA Kondrat prescribed Imitrex for Whooten's cluster headaches. After taking this medication numerous times, it purportedly caused him to suffer high blood pressure, dizziness, headaches, blurred vision and tremors. Consequently, his use of Imitrex was stopped.

  Thereafter, Plaintiff was prescribed Verapamil for his headaches. This medication allegedly caused dizziness, fatigue, and blurred vision. As a result, Whooten stopped taking Verapamil. On December 17, 2003, Doctor Bussanich allegedly prescribed Toredol for the Plaintiff's condition. Two days later, Whooten allegedly suffered severe pain and coughed up some blood.

  Plaintiff contends that his prior medical history precluded his taking any of the above described medications.*fn1 Whooten adds that Doctor Bussanich was informed that neurologists who had previously treated him "had prescribed a combination of narcotic and prophylactic drugs that were effective." Rec. Doc. 1. ΒΆ 12. Whooten adds that the only presently available medication which is effective for his cluster headaches is Nalbuphine Hydrochloride. However, although Doctor Bussanich previously provided him with one (1) Nalbuphine injection each month, said Defendant will no longer prescribe that medication.

  Plaintiff adds that during March 2004 a neurologist, Doctor Rajjoub, recommended that he be provided Nalbuphine as needed for pain. The complaint contends that Bussanich subsequently informed Whooten that he disagreed and would not follow Doctor Rajjoub's recommendation. As a result of Doctor Bussanich's refusal, Whooten contends that he is stricken with daily debilitating headaches and depression. Plaintiff concludes that Defendants were deliberately indifferent and/or negligent for: (1) prescribing medications which were clearly improper based on his medical history; (2) delaying and/or denying a referral to a neurologist and (3) denying him effective medications based on an incorrect assessment that he was a drug seeker. His complaint seeks compensatory and punitive damages as well as injunctive relief.

  Defendants claim entitlement to an entry of dismissal/summary judgment on the grounds that: (1) Zagame and Hemphill are employees of the United States Public Health Service and thus cannot be sued in an action brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens action"); (2) there are no allegations asserted against Doctor Bussanich which rise to the level of an Eighth Amendment violation; (3) the claims against Defendant Hobart are improperly premised on a theory of respondeat superior; (4) Defendants are entitled to qualified immunity; (5) Plaintiff's FTCA claim is meritless; (6) neither a viable ADA nor a Rehabilitation Act claim is set forth in the complaint.

  Discussion

  A. Standard of Review

  Defendants' motion is accompanied by evidentiary materials outside the pleadings which are relevant for purposes of rendering a decision on their respective arguments. Rule 12(b) provides in part as follows:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed.R.Civ.P. 12(b). The Court will not exclude the evidentiary materials accompanying Defendants' motion. Thus, their motion will be treated as solely seeking summary judgment.

  Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

 
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. ...

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