United States District Court, M.D. Pennsylvania
September 2, 2005.
PAUL WHOOTEN, Plaintiff
ANTHONY BUSSANICH, ET AL., Defendants.
The opinion of the court was delivered by: JOHN E. JONES, District Judge
MEMORANDUM AND ORDER
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. ¶ 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.
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. "[T]he standard [for granting summary
judgment] mirrors the standard for a directed verdict
under Federal Rule of Civil Procedure 50(a). . . ."
Celotex Corp. v. Catrett, 477 U.S. 317
, 322-23 (1986).
The moving party bears the initial responsibility of stating
the basis for its motion and identifying those portions of the
record which demonstrate the absence of a genuine issue of material fact. The moving party can
discharge that burden by "`showing' . . . that there is an
absence of evidence to support the nonmoving party's case."
Celotex, supra, 106 S.Ct. at 2553-54. Once the moving party
has satisfied its burden, the nonmoving party must present
"affirmative evidence" to defeat the motion, consisting of
verified or documented materials. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only
if a reasonable jury, considering the evidence presented could
find for the nonmoving party." Childers v. Joseph,
842 F.2d 689, 693-94 (3d Cir. 1988). Only disputes over facts that might
affect the outcome of the suit will preclude the entry of summary
judgment. Id. In evaluating a motion for summary judgment, the
entire record must be examined in the light most favorable to the
B. Public Health Service
Defendants' initial argument maintains that Health Services
Administrator Hemphill and Assistant Health Services
Administrator Zagame enjoy absolute immunity with respect to
Plaintiff's Bivens claims because the undisputed record
establishes that they are employees of the United States
Department of Public Health Service.
In Cuoco v. Moritsugu, 222 F.3d 99, 107 (2nd Cir. 2000),
the Court of Appeals for the Second Circuit concluded that under
42 U.S.C. § 233(a), members of the Public Health Service were absolutely immune from suit in
a Bivens action if the injury for which compensation is sought
resulted from the performance of a medical or related function
while acting within the scope of their office or employment.
Section 233(a) adds that an FTCA claim is the exclusive remedy
for the performance of medically related functions by employees
of the Public Health Services.
Since the undisputed record establishes that Defendants Zagame
and Hemphill are employees of the Public Health Service, they are
entitled to entry of summary judgment with respect to the
Plaintiff's Bivens claims.
C. Deliberate Indifference
The moving Defendants next argue that summary judgment is
appropriate in favor of Doctor Bussanich because the undisputed
facts establish that there was no deliberate indifference to any
serious medical need of the Plaintiff. Rather, they contend that
this is simply a case where a prisoner is disagreeing with the
type of medication which he is being prescribed.
Pursuant to the Supreme Court's decision in Estelle v.
Gamble, 429 U.S. 97 (1976), an inmate plaintiff must demonstrate
that prison officials have breached the standard of medical
treatment to which he was entitled. The government has an
"obligation to provide medical care for those whom it is
punishing by incarceration." Id. at 103. However, a constitutional violation does not arise unless there
is "deliberate indifference to serious medical needs of
prisoners" which constitutes "unnecessary and wanton infliction
of pain." Id. at 104 (citation omitted). The Court of Appeals
for the Third Circuit has held that not every injury or illness
enjoys constitutional protection; only serious medical needs are
actionable. Colburn v. Upper Darby Township, 946 F.2d 1017,
1023 (3d Cir. 1991); West v. Keve, 571 F.2d 158, 161 (3d Cir.
1978). 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 [as] medical malpractice
does not become a constitutional violation merely because the
victim is a prisoner." Estelle, 429 U.S. at 106.
A later decision by the Supreme Court addressed the issue of
what standard should be applied in determining deliberate
indifference in Eighth Amendment cases. The Court established
that the proper analysis is whether a prison official "acted or
failed to act despite his knowledge of a substantial risk of
serious harm." Farmer v. Brennan, 511 U.S. 825, 841 (1994). The
Court of Appeals for the Third Circuit in Durmer v. O'Carroll,
991 F.2d 64, 69 (3d Cir. 1993), added that a non-physician
defendant cannot be considered deliberately indifferent for
failing to respond to an inmate's medical complaints when he is
already receiving treatment by the prison's medical staff.
However, where a failure or delay in providing prescribed treatment is deliberate and motivated by
non-medical factors, a constitutional claim may be presented.
Under Farmer, deliberate indifference is a subjective
standard in that the prison official must actually have known or
been aware of the excessive risk to inmate safety. Beers-Capitol
v. Whetzel, 256 F. 3d 120, 125 (3d Cir. 2001). This requirement
of actual knowledge means that "the 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." Farmer, 511 U.S. at 837. In Beers-Capitol it
was also recognized that a defendant's knowledge of a risk can be
proved indirectly by circumstantial evidence.
As previously noted, Whooten's Bivens claims are threefold.
First, he contends that he was prescribed medications which were
clearly inappropriate on the basis of his prior medical history.
Second, he claims that there was an unwarranted delay by Doctor
Bussanich in referring him to a neurologist. His remaining
assertion is that Bussanich refused to provide him with needed
medication based on an incorrect assessment that the Plaintiff
was a drug seeker.
Based on a review of the complaint, Plaintiff acknowledges that
Doctor Bussanich and the USP-Lewisburg medical staff have
provided him with treatment for his cluster headaches since his
arrival at that prison. By his own admission, Whooten has been
prescribed numerous medications. Plaintiff was also seen by a neurologist Doctor Rajjoub, and a third physician,
Doctor Salam, was also involved in his care. It is clear that the
Plaintiff's allegations against Doctor Bussanich cannot support a
claim of deliberate indifference. His complaint acknowledges that
he was provided with ongoing care and his claims sound only in
negligence, primarily that Doctor Bussanich made a negligent
assessment by labeling Whooten as a drug seeker and thereafter
provided ineffective treatment on the basis of the allegedly
erroneous assessment. Thus, under the standards established in
Estelle, they cannot support a Bivens claim. The Court will
grant summary judgment in favor of Doctor Bussanich with respect
to the Bivens portion of this action.
D. Respondeat Superior
Defendant Hobart argues entitlement to summary judgment because
there are no claims set forth showing that he had any personal
involvement in any violation of the Plaintiff's constitutional
rights. See Rec. Doc. 39, at 16. Consequently, the moving
Defendant maintains that Whooten is attempting to establish
liability against him solely on the basis of his supervisory
duties as Associate Warden.
A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements: (1) that the conduct
complained of was committed by a person acting under color of
law, and (2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws
of the United States. Groman v. Township of Manalapan,
47 F.3d 628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse,
920 F.2d 1135, 1141-42 (3d Cir. 1990).
Civil rights claims 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.
Plaintiff asserts that he informed Defendant Hobart of his
dissatisfaction with Doctor Bussanich's treatment of his cluster
headaches. See Rec. Doc. 1, ¶ 15. Hobart subsequently informed
Whooten that he had assigned Defendant Zagame to "resolve the
matter." Id. Thereafter, Plaintiff alleges that he notified
Hobart that the matter was still unresolved and that the
Defendant failed to take needed action.
Under the standards developed in Rode, 845 F.2d 1195 (3d Cir.
1988), such an assertion is insufficient for establishing liability under
Bivens. Hobart is not identified as being a member of the
prison's medical staff and there are no allegations that the
Associate Warden had direct involvement or acquiescence with
respect to any decisions made regarding Whooten's medical
treatment. As noted by the Defendants, Plaintiff acknowledges
that Hobart did exactly what he should have done, namely, refer
the prisoner's complaints to a qualified, supervisory member of
the prison's medical department. Since Whooten admits that
Defendant Hobart, a non-healthcare professional, took appropriate
action when advised of the prisoner's disagreement with his
medical treatment, under the standards announced in Durmer,
there is no basis for a claim of deliberate indifference. Whooten
is also precluded under Rode and Hampton from establishing
liability against Hobart solely on the basis of his supervisory
capacity within the prison. In conclusion, Associate Warden
Hobart is likewise entitled to an entry of summary judgment.
E. Qualified Immunity
Qualified immunity is an affirmative defense which must be
pleaded by the defendant official. Id.; Verney v. Pennsylvania
Turnpike Comm'n, 881 F. Supp. 145, 149 (M.D. Pa. 1995). In
Harlow v. Fitzgerald, 457 U.S. 800 (1982), the United States
Supreme Court held "that government officials performing
discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known." Id. at 818; Sherwood v. Mulvihill,
113 F.3d 396, 398-99 (3d Cir. 1997); Showers v. Spangler,
957 F. Supp. 584, 589 (M.D. Pa. 1997). It has also been held that
"qualified immunity is coextensive for suits brought against
state officials under 42 U.S.C. § 1983 (1982), and for suits
brought directly under the Constitution against federal
officials." People of Three Mile Island v. Nuclear Regulatory
Commissioners, 747 F.2d 139, 144 n. 9 (3d Cir. 1984) (citing
Butz v. Economou, 438 U.S. 478, 504 (1978)).
The United States Supreme Court in Saucier v. Katz,
533 U.S. 194 (2001), established a two part test for analyzing qualified
immunity claims. See also Curley v. Klem, 298 F.3d 271 (3d
Cir. 2002); Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002). The
initial inquiry in a qualified immunity examination is whether
"the facts taken in the light most favorable to the plaintiff
show a constitutional violation." Bennett, 274 F.3d at 136.
This Court has already concluded that Plaintiff's allegations
do not set forth a viable Bivens claim. Consequently, the first
prong of Saucier has not been satisfied. Further discussion of
the Defendants' qualified immunity argument is not required.
F. FTCA Defendants next argue that they are also entitled to summary
judgment with respect to the FTCA portion of the complaint
because Plaintiff cannot satisfy his burden of proof. The FTCA
provides a remedy in damages for the simple negligence of
employees of the United States to protect federal inmates.
United States v. Muniz, 374 U.S. 150, 150 (1963). A plaintiff
pursuing an FTCA claim must show: (1) that a duty was owed to him
by a defendant; (2) a negligent breach of said duty; and (3) that
the negligent breach was the proximate cause of the plaintiff's
injury/loss. Mahler v. United States, 196 F. Supp. 362, 364
(W.D. Pa. 1961), aff'd, 306 F.2d 713 (3d Cir.), cert.
denied, 371 U.S. 923 (1962).
It is well-settled that a federal district court addressing an
FTCA action must apply the law of the state, in this case
Pennsylvania, in which the alleged tortious conduct occurred.
28 U.S.C. § 1346(b) (1996); Toole v. United States, 588 F.2d 403,
406 (3d Cir. 1978); O'Neal v. Department of Army,
852 F. Supp. 327, 334-35 (M.D. Pa. 1994); Turner v. Miller,
679 F. Supp. 441, 443 (M.D. Pa. 1987). However, in cases such as this which
involve federal prisoners, it has been recognized that the
government's duty of care is one of ordinary diligence. See
18 U.S.C. § 4042; Turner, 679 F. Supp. at 443. The applicable law
with respect to the burden and quantum of proof under the FTCA
remains that of the state in which the alleged tortious conduct
occurred. Hossic v. United States, 682 F. Supp. 23, 25 (M.D.
Pa. 1987). Under Pennsylvania law, a plaintiff is required to show that
the defendant's negligence was the proximate cause of his injury
by a preponderance of the evidence. Baum v. United States,
541 F. Supp. 1349, 1351 (M.D. Pa. 1982). Furthermore, Pennsylvania
law defines proximate cause as causation which was a substantial
factor in bringing about the injury. Hamil v. Bashline,
392 A.2d 1280, 1284 (Pa. 1978).
It is undisputed that the Federal Bureau of Prisons owed
Whooten a duty to provide him with timely and appropriate medical
care. Along with an opposing brief, Plaintiff has submitted
various medical records establishing his prior history of cluster
headaches, the treatment/medications provided and evidence that
he previously suffered side effects, including intestinal
bleeding, from the use of certain medication. See Rec. Doc. 47.
Based on the Plaintiff's submissions, the Court finds that the
Defendants' wholly conclusory argument that he has not plead a
case of prima facie negligence and failed to offer any
supporting expert medical testimony lacks persuasion. Plaintiff's
FTCA claims of negligent medical care while confined at
USP-Lewisburg will be allowed to proceed.
Title II of the ADA provides that "no qualified individual with
a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by such entity."
42 U.S.C. § 12132.*fn2 The ADA seeks "to assure even handed treatment
and the opportunity for [disabled] individuals to participate in
and benefit from programs [receiving financial assistance]."
Southeastern Community College v. Davis, 442 U.S. 397
(1979);*fn3 P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d
It has been recognized that the provisions of the ADA are
applicable to prisoners confined in state correctional
institutions. See Pa. Dept. of Corrections v. Yeskey,
524 U.S. 206 (1998). However, absent an explicit waiver of sovereign
immunity, the United States is generally immune from
suit.*fn4 United States v. Mitchell, 445 U.S. 535, 538
(1980). This "immunity is jurisdictional in nature," FDIC v.
Meyer, 510 U.S. 471, 475 (1994), and extends to government
agencies and employees. Antol v. Perry, 82 F.3d 1291, 1296 (3d
Federal detention centers are not protected by the ADA.
Hurtado v. Reno, 34 F. Supp.2d 1261, 1264 (D. Col 1999). The ADA does not contain
a waiver of sovereign immunity and thus, does not apply to the
federal government. Crowder v. True, 845 F. Supp. 1250 (N.D.
Ill 1994). Consequently, the amended complaint to the extent that
it seeks to assert an ADA claim regarding Whooten's federal
incarceration is subject to dismissal.
H. Rehabilitation Act
The Rehabilitation Act ("RA"), 29 U.S.C. § 794, prohibits
exclusion of a disabled person from a program that receives
federal financial assistance solely by reason of his or her
disability. In Yeskey v. Commonwealth of Pennsylvania,
118 F. 3d 168 (3d Cir. 1997), aff'd 534 U.S. 206 (1998), the Court of
Appeals for the Third Circuit indicated that claims relating to
the alleged exclusions of disabled persons from prison employment
could be properly raised under the RA.
Based on this Court's review of the undisputed record, the
Plaintiff has not satisfied his burden of showing that he is a
disabled person who was excluded from a program or activity on
the basis of a disability. His claim of being denied proper
medical care does not set forth a viable RA claim. Consequently,
Defendants' request for summary judgment with respect to
Whooten's RA claim will be granted. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Defendants' Motion to Dismiss or in the
Alternative for Summary Judgment is construed as
solely seeking summary judgment.
2. The Defendants' Summary Judgment Motion (doc. 36)
is GRANTED with the exception of Plaintiff's FTCA
3. Summary judgment is entered in favor of Defendants
Hobart, Bussanich, Zagame and Hemphill.
4. The FTCA claims against Defendant United States of
America will be allowed to proceed.
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