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September 22, 2005.

BUREAU OF PRISONS, et al., Defendants.

The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge


I. Introduction.

Plaintiff, Kenneth Anderson, an inmate at USP-Lewisburg, initiated this Bivens-type action,*fn1 alleging Eighth Amendment claims of deliberate indifference to his serious medical needs — an ongoing knee and lower back condition. Plaintiff asserts that defendants' misdiagnosed his knee problem as the source of his constant loss of equilibrium and severe pain. After undergoing arthroscopic surgery on his knee he learned from a Chief Physical Therapist at FMC-Springfield that his knee was not the cause of his problems "but a nerve in [his] back's lower spine was causing his equilibrium being off center." (Doc. 1-2, p. 4). Plaintiff claims his painful back condition continues to exist and is not responding to defendants' conservative form of treatment (Capsaicin cream). He claims he has never received physical therapy, or other proper treatment or diagnostic testing, for his lower back condition. Plaintiff seeks an independent medical evaluation and MRI of his back and monetary damages. He names the Bureau of Prisons ("BOP") and the following employees as defendants: National Inmate Appeals Administrator Harrell Watts; Regional Director D. Scott Dodrill; Warden Joseph Smith; and Health Services Administrator J. Hemphill. (Doc. 1).

  Presently before the Court is Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (Doc. 19). We will consider the motion under the well established summary-judgment standard. See Anderson v. Consolidated Rail Corp., 297 F.3d 242, 246-47 (3d Cir. 2002). The motion is based on: (1) the doctrine of respondeat superior; (2) Anderson's inability to bring a Bivens claim against Defendant Hemphill; (3) failure to state a claim; and (4) qualified immunity. In support, defendants have submitted the declaration of Jon Hemphill, the Health Services Administrator at USP-Lewisburg, and portions of Plaintiff's medical record. Anderson filed his opposition brief after receiving defendants' motion, but before they had to file their supporting brief and exhibits. (Doc. 20). After defendants filed their supporting materials, Plaintiff did not file additional opposition materials, or seek an enlargement of time to do so.

  Also pending before the court is Plaintiff's motion for a preliminary injunction. (See Doc. 14). Therefore, the Court will consider Anderson's submissions in connection with that motion when addressing defendants' motion for summary judgment as the core issue (Plaintiff's health care) is identical and central to both motions.

  II. Background.

  Anderson arrived at USP-Lewisburg on June 17, 2002, with a history of hepatitis and degenerative joint disease ("DJD") of his left knee. (Doc. 22-1, Defendants' Statement of Undisputed Material Facts ("SMF"), SMF at ¶ 1). In July 2002, he was seen and treated for arthritic pain in the left knee on several occassions. An x-ray of his knee at the time revealed evidence of mild DJD. (Id. at ¶¶ 2-5). At that time he indicated that the pain was mild and aching and that his abilities to ambulate, eat, and conduct personal hygiene tasks were unimpared. (Id. at ¶ 6). On September 3, 2002, after complaining of severe pain and stiffness in his left knee, Anderson was placed on athletic restriction, prescribed medication and an x-ray of his knee was ordered. (Id. at ¶¶ 7-9). Ten days later, Capsaicin cream was added to Anderson's treatment plan. (Id. at ¶ 10). On September 23, 2002, after complaining of left knee pain and swelling, and indicating he had been shot in the same knee in 1982, an orthopedic consultation was requested. An exercise regimen was also explained to Anderson, his cream prescription was refilled, his medication changed, and his sport restrictions and knee brace were continued. (Id. at ¶¶ 11-13).

  For the next three months, Anderson was treated at the institution's chronic care clinic on at least a monthly basis for complaints of continued difficulties with his left knee. (Id. at ¶¶ 14-16). On January 13, 2003, an MRI of Plaintiff's knee was ordered after he presented at the chronic care clinic with a painful and swollen knee. (Id. at ¶ 18). He was seen on January 23, 2003, and again on February 18, 2003, for chronic joint pain in his knee. (Id. at ¶ 19).

  On March 1, 2003, Anderson was seen for complaints of continued daily pain and swelling in his left knee. Anderson indicated he had a history of arthritis in the knee and that he further injured it last year playing sports. He stated that his knee gives out several times per week, and that he walks with a limp. Anderson was given pain medication and Capsaicin cream. (Id. at ¶¶ 20-21). Shortly thereafter USP-Lewisburg received Anderson's MRI results which revealed mild to moderate amount of joint effusion in the knee joint, a bone contusion, a tear in the lateral meniscus, and a rupture of the anterior cruciate ligament ("ACL"). (Id. at ¶ 22).

  On March 3, 2003, Anderson was seen at the medical unit complaining of back pain. (Id. at ¶ 23). A week later his cream was refilled and he "appear[ed] to be well." (Id. at ¶ 24). He was counseled on the use of his neoprene brace, cream, and pain medications. (Id. at ¶ 25). On March 31, 2003, Anderson reported "having increasing difficulty" and pain in his left knee. (Id. at ¶ 26). He reported losing his balance when attempting to exercise. (Id. at ¶ 27). Anderson's medications were refilled and he continued to await an orthopedic consultation. (Id. at ¶ 28).

  On April 10, 2003, Anderson again complained of low back pain. His examination revealed no gross abnormalities. (Id. at ¶ 29). He was seen again on April 29, 2003, for mild and aching left knee pain. It was noted that he was still awaiting an orthopedic visit on his torn meniscus. (Id. at ¶ 31). He was next seen at the chronic care clinic on June 16, 2003. No signs of acute distress or discomfort were noted. His medication for dermatitis and low back pain were refilled. (Id. at ¶¶ 32-33).

  On July 9, 2003, Anderson was seen by an orthopedic consultant who diagnosed him with DJD, and a torn medial meniscus and ACL of the left knee. (Id. at ¶ 35). His knee was injected with medication and arthoscopic surgery with ACL reconstruction was recommended. (Id. at ¶ 36). On August 27, 2003, Anderson was referred to the United States Medical Center for Federal Prisoners in Springfield, Missouri ("USMCFP-Springfield"), for ACL reconstruction. (Id. at ¶ 37).

  Anderson departed USP-Lewisburg on September 25, 2003. (Id. at ¶ 39). During a physical examination at USMCFP-Springfield on September 29, 2003, Anderson stated he was in good health and that "[h]e just wants his knee repaired." (Id. at ¶ 41). He did not complain of back pain and it was noted as "nontender to percussion" upon examination. (Id. at ¶ 42). An x-ray of Anderson's knee taken the following day indicated early degenerative changes of the medial compartment of the left knee. (Id. at ¶ 43).

  He was scheduled for an orthopedic surgery consultation on October 10, 2003. (Id. at ¶ 44). The surgeon's impression was of a chronic tear of the ACL, a tear of the lateral meniscus, and degenerative osteoarthritis of the left knee. The surgeon recommended Anderson undergo only the arthroscopic surgery, suggesting the ACL reconstruction ...

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