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