United States District Court, M.D. Pennsylvania
September 22, 2005.
KENNETH ANDERSON, Plaintiff,
BUREAU OF PRISONS, et al., Defendants.
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 might not be a good idea due to
his age and significant arthritic changes. (Id. at ¶¶ 45-47).
On October 27, 2003, an arthroscopic examination of Anderson's
left knee with lateral meniscectomy was performed. Loose body and
spurs of the medial femoral condyle were removed. (Id. at ¶
49). Anderson's ACL ligament was found to be intact. (Id. at ¶
50). Plaintiff's postoperative diagnosis was: (1) tear lateral
meniscus left knee; (2) loose body intercondylar area of the
tibia; and (3) osteophytes*fn2 of the medial femoral
condyle. (Id. at ¶ 48).
Plaintiff left USMCFP-Springfield on January 28, 2004, listed
as stable and having been diagnosed with: (1) "tear lateral
meniscus left knee with repair;" (2) osteophytes of the left
medial femoral condyle; and (3) hepatitis B&C positive. (Id. at
¶¶ 51-52). A transfer summary prepared by USMCFP-Springfield
medical staff recommended: (1) home exercises by the physical
therapy department; (2) no limitations on physical activity; (3)
diet as tolerated; (4) follow-up care as needed; (5) no
limitations on duty work status; and (6) no special appliances
needed during transfer. (Id. at ¶ 53). While temporarily housed at the Federal Transfer Center in
Oklahoma City, Anderson was a no-show for sick call on February
10, 2004, but complained of, and was treated for, low back pain
three days later. Plaintiff then failed to report for sick call
on February 19, 2004, but was treated for low back pain the
following day. Upon departing Oklahoma City, the diagnosis of low
back pain was added to Anderson's conditions. (Id. at ¶¶
Anderson returned to USP-Lewisburg on March 1, 2004. Three days
later he was prescribed medication after complaining of knee and
back pain. (Id. at ¶¶ 57-58). A request for a telemedicine
physical therapy evaluation was submitted by staff on March 18,
2004. The request was denied and conservative treatment, i.e., use
of a stationary bike, was ordered. It was noted that the issue
would be revisited in one month. (Id. at ¶ 59).
On March 22, 2004, Anderson was examined for his hepatitis C
and chronic low back pain radiating to his left calf. He was
educated on the need for back strengthening exercises and dietary
measures to reduce his cholesterol. He was prescribed medication
for his back pain and told to return in three months. (Id. at
¶¶ 60-61). Three days later Anderson was treated again for left knee pain
and swelling. (Id. at ¶ 62). On March 26, 2004, an x-ray of
Plaintiff's back revealed localized hypertrophic changes at L3
with anterolateral spurring and no evidence of fracture. (Id.
at ¶ 63).
On April 6, 2004, after complaining of low back pain and
difficulty walking up stairs and exercising, he was referred for
an MRI, told to continue his medication, and provided a
description of mild back exercises. (Id. at ¶ 64). On April 14,
2004, the clinical director denied the MRI request, directed
conservative treatment be followed, and "then re-evaluate."
(Id. at ¶ 65).
On April 16, 2004, Anderson was given a knee brace due to his
complaints of continued pain and swelling in his left knee. He
reported he was unable to do much physical therapy at
USMCFP-Springfield due to pain and that he was not doing
rehabilitation exercises provided at USP-Lewisburg because his
"balance ain't no good." (Id. at ¶¶ 66-67). Anderson also
complained of low back pain and indicated that he was "told" that
his knee problems were the result of his back. Anderson requested
back surgery. He was prescribed medication and a telemedicine
rehabilitation conference was scheduled so he could resume rehabilitation for his knee and learn range of motion and
strengthening exercises for his back. (Id. at ¶ 68).
On April 27, 2004, after Anderson reported his "left leg gave
way" the previous day, he was told to continue his medications.
Two days later he was seen for arthritic pain in his knee and
received pain medication. (Id. at ¶¶ 69-70).
On June 4, 2004, Plaintiff was seen by medical staff and
complained of chronic back and leg pain for 21 years. He was
prescribed pain medication. (Id. at ¶ 71).
On June 8, 2004, Anderson received a physical therapy
tele-health evaluation by a physical therapist at the Federal
Medical Center in Devens, Massachusetts. (Id. at ¶ 72). The
subjective portion of the examination notes Anderson as reporting
"I didn't have a cartilage tear, they just cleaned out me knee."
Normal ambulation was noted. Anderson reported that the physical
therapist at Springfield told him that his knee problems were
coming from his back. Anderson believes the physical therapist
based this diagnosis "on everything he saw during treatment."
(Id. at ¶ 73). According to the physical therapist at Devens,
Anderson's subjective complaints did not match the objective
findings. (Id. at ¶ 74). Several exercises for Anderson's back
were demonstrated. A prescription for pain medication and an
exercise packet were forwarded, and given, to Anderson. (Id. at ¶¶ 75-76). On June 17, 2004, Anderson was seen for back pain and
education on medication compliance. (Id. at ¶ 77).
On June 18, 2004, Anderson received a electrophysiological
("EP") evaluation for his lumbar spine, lower extremity pain and
paresthesia.*fn3 All test results were within normal limits.
(Id. at ¶ 78).
On August 27, 2004, Anderson complained of lower back pain
radiating down into his left knee. The physician's assistant
examining Anderson indicated he would discuss Anderson's
complaint with the doctor. In response to the physician's
assistant's request for a recommendation, the clinical director
ordered staff to "continue conservative treatment." (Id. at ¶¶
Four days later Anderson was seen again for left knee and back
pain. No signs of acute distress or discomfort were noted. (Id.
at ¶ 81). The physician examining Anderson requested an
orthopedic consultation/evaluation of his left knee. The request
was denied by the clinical director on September 1, 2004, and
"continue conservative treatment" was ordered. (Id. at ¶¶
82-83). Anderson was seen on October 25, 2004, for weakness and pain in
his left leg and left side back pain. Anderson's 1981 gunshot
wound was noted, and he was precribed medication to relieve his
symptoms. X-rays of his left knee and hip were ordered. (Id. at
¶ 84). The October 28, 2004, x-rays revealed no evidence of
recent fracture or other significant abnormality. (Id. at ¶
On November 8, 2004, during his routine chronic care visit,
Anderson was treated for "several months of left lumbar pain
radiating to left gluteus to left calf muscle." (Id. at ¶ 86).
Staff suggested exercises to help with his lower back pain.
(Id. at ¶ 87).
Anderson was seen on February 11, 2005, for his quarterly
appointment and reported that his left knee and back pain
continued, but he showed no sign of acute distress or discomfort.
Anderson was again educated on the need to comply with his
medication. (Id. at ¶ 88). On February 22, 2005, it was noted
that Anderson complained of a history of chronic lower back pain
and that he was already under treatment for the same complaints
with the chronic care physician. He received a "one-day idle" due
to his history of back pain. (Id. at ¶ 89).
Defendant Jon Hemphill is a member of the United States Public
Health Service and is employed in the Health Services department at USP-Lewisburg. In his role as Health Services
Administrator he does not personally examine or provide medical
treatment to inmates. (Id. at ¶¶ 90-91).
Anderson argues that USP-Lewisburg medical officials
"misdiagnosed" his left knee condition. The misdiagnosis was
revealed by his October 27, 2003, arthroscopic surgery, performed
at USMCFP-Springfield, which found his ACL ligament to be intact,
contradicting USP-Lewisburg medical staff's impression based on
Anderson's subjective complaints, x-rays, physical findings by an
orthopedic consultant, and MRI testing indicating it was torn.
Anderson also argues that he continues to be misdiagnosed as he
is not receiving adequate treatment for his back resulting in
continued severe knee and back pain. He makes this conclusion of
inadequate treatment based on a statement by a USMCFP-Springfield
physical therapist's assessment that his problems were back
related. (Doc. 14). He alleges the conservative treatment he is
being provided by the USP-Lewisburg staff "is not working and
[he] is in dire need of an outside consultant evaluation and an
MRI of his back." (Doc. 1). He also claims he is not receiving
physical therapy at the facility as it does not have a licensed physical therapist on staff or a
physical therapy program in place. (Id.)
A. Anderson cannot Bring A Bivens Action Against
USP-Lewisburg's Health Service Administrator, J. Hemphill.
Defendants allege that Anderson may not bring a Bivens action
against J. Hemphill, in his position as USP-Lewisburg's Health
Services Administrator as he is a member of the United States
Public Health Service. (Doc. 21). We agree. See Cuoco v.
Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) (doctor and prison
medical director entitled to immunity under the Public Health
Service Act, 42 U.S.C. § 233(a), against plaintiff's Bivens-type
claim of deliberate indifference to a serious medical condition).
If Anderson seeks to bring an action "for personal injury,
including death, resulting from the performance of medical,
surgical, dental, or related functions, including the conduct of
clinical studies or investigation, by any commissioned officer or
employee of the Public Health Service while acting within the
scope of his office or employment," the Federal Tort Claim Act,
28 U.S.C. §§ 2671, et. seq., is the exclusive means by which to
do so. Cuoco, 222 F.3d at 107 (the FTCA is the exclusive remedy
for medical malpractice committed by Public Health Service
employees acting within the scope of their employment); see
also Whooten v. Bussanich, No. Civ. 4:CV-04-223, 2005 WL 2130016, *3
(M.D. Pa. Sept. 2, 2005) (same); Freeman v. Inch, No.
3:04-CV-1546, 2005 WL 1154407, *2 (M.D. Pa. May 16, 2005) (same).
Accordingly, we will dismiss Anderson's Bivens claim against
B. Failure to State An Eighth Amendment Claim.
A plaintiff, in order to state an actionable civil rights
claim, must allege, first, the deprivation of a constitutional or
federal right, and second, that the alleged deprivation was
committed by a person acting under color of law. Gibson v.
Superintendent of N.J. Dep't of Law & Pub. Safety-Division,
411 F.3d 427, 433 (3d Cir. 2005) (section 1983 claim). 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. Evancho v. Fisher,
___ F.3d ___, ___, 2005 WL 2179883, at *5 (3d Cir. 2005) (quoting Rode v.
Delarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
The Eighth Amendment "requires prison officials to provide
basic medical treatment to those whom it has incarcerated."
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976)). To establish a medical claim based on the
Eighth Amendment, an inmate must allege (1) acts or omissions by
prison officials sufficiently harmful (2) to evidence deliberate
indifference to a serious medical need. See Spruill v. Gillis,
372 F.3d 218, 235 (3d Cir. 2004); Natale v. Camden County Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003). The inmate must
satisfy this two-part, conjunctive test. Without the requisite
mental state, a prison official's conduct alone will not
constitute deliberate indifference. See Farmer v. Brennan,
511 U.S. 825, 837-38, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
In the context of prison medical care, the Eighth Amendment can
be violated by the deliberate indifference of: (1) prison doctors
in their response to the prisoner's needs; (2) prison guards
intentionally denying or delaying access to medical care; or (3)
prison staff intentionally interfering with medical treatment
once it is prescribed. Estelle v. Gamble, 429 U.S. 97, 104-105,
97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). However, if a prisoner
is under the care of a medical experts, a non-medical prison
official cannot be considered deliberately indifferent for
failing to respond to an inmate's medical complaints "absent a
reason to believe (or actual knowledge) that prison doctors or
their assistants are mistreating (or not treating) a
prisoner. . . ." Spruill, 372 F.3d at 236; Durmer v. O'Carroll, 991 F.2d 64,
69 (3d Cir. 1993) (prison personnel who are not physicians cannot
be considered deliberately indifferent for failing to respond to
an inmate's medical needs when the inmate is already receiving
treatment from the prison's medical staff).
To be deliberately indifferent, a prison official must know of,
and disregard, an excessive risk to inmate health or safety.
Farmer, supra, 511 U.S. at 837-38, 114 S.Ct. 1970,
128 L.Ed.2d 811 (1994). Thus, 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 v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251
Accordingly, 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." Id., 429 U.S. at 107,
97 S.Ct. at 293. "[A]s 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). Further, a doctor's disagreement with the
professional judgment of another doctor is not actionable under
the Eighth Amendment. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful
medical treatment, or medical malpractice do not give rise to a §
1983 cause of action, and an inmate's disagreement with medical
treatment is insufficient to establish deliberate indifference.
See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).
In the present case, none of the BOP defendants (Warden Smith,
Regional Director Dodrill, or Administrator Watts) are
physicians, physician assistants or nurses. Hence, Anderson fails
to state an Eighth Amendment claim of deliberate indifference
against them. See Durmer, supra. Additionally, none of the
defendants are alleged to have had any direct contact with
Anderson related to his medical-care concerns (aside from Warden
Smith responding to a letter inquiry from a Congresswoman). See
Doc. 1-2, p. 6. Thus, Anderson fails to allege that defendants
Watts, Dodrill, or Smith were personally involved in his medical
treatment, or had reason to believe that the medical staff at
USP-Lewisburg were mistreating, or not treating, his various
medical ailments. Anderson simply identifies the defendants by
their title in his complaint and does not mention them anywhere
in his statement of the claim. He does not allege any facts to
support a conclusion that these supervisory defendants had
personal involvement in the medical treatment he received at
USP-Lewisburg. Further, as there is no respondeat superior liability in a civil rights action, he cannot
hold these defendants responsible for the unknown acts of their
subordinates simply because of their supervisory position. See
Rode, supra; Evanko, supra. Thus, Anderson fails to state a
claim against Watts, Dodrill, or Smith.
As it stands, Anderson's complaint clearly fails to state a
claim upon which can be granted against any of the named
defendants. In such situations, District Courts must give
Plaintiff an opportunity to amend his complaint, or otherwise
determine that any amendment would be inequitable or futile. See
Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). In this
case, based upon the expansive summary judgment record before us,
any amendment to the complaint alleging an Eighth Amendment claim
against Anderson's treating physicians at USP-Lewisburg would be
futile. A review of the documentation submitted by Defendants,
specifically Anderson's medical record, reveals that he was seen
and treated numerous times for complaints of knee and back pain.
The medical chart reveals that his complaints of pain and
discomfort were not ignored. He was seen when requested and
prescribed various pain medications, creams, and braces to assist
him. He was provided with, and educated on the need for, physical
therapy for the purpose of strengthening his lower back muscles. He was provided a diagnostic MRI of his knee in the face
of his knee complaints, and later arthoscopic surgery to correct
a tear in the lateral meniscus and remove loose body and bone
spurs. The fact that his ACL was found to be intact when
originally thought to be torn does not demonstrate an actionable
"misdiagnosis" as suggested by Anderson. See, Durmer, supra. As
for his continued lower back pain, again, the medical chart
indicates he was seen on a regular basis for this complaint. He
was prescribed pain medications, had diagnostic testing (x-rays
and EP studies) to determine the existence of nerve impingement
in his lower lumbar region. All of this studies were
non-remarkable or within normal limits. Anderson was repeatedly
advised to do home exercises to strengthen his core muscles. He
apparently believes he should be performing these exercises under
the watchful eye of a physical therapist. However the record has
repeated instances of patient education given to Anderson on how
to perform these exercises. The record before the court
establishes meaningful efforts by the USP-Lewisburg medical staff
to provide Anderson with medical care for both his knee and back
complaints. Thus, the attendant requisite mental state for
asserting a claim of deliberate indifference is lacking, and any
opportunity to amend the complaint to assert an Eighth Amendment claim against members of the USP-Lewisburg medical staff would be
Anderson has failed to present any evidence from which a
reasonable jury could conclude that the treating physicians at
USP-Lewisburg possessed the culpable mental state necessary for
Eighth Amendment liability to attach. There is insufficient proof
in the record for a fair-minded jury to conclude that the
Defendants, or other USP-Lewisburg medical staff members, were
deliberately indifferent to his serious medical needs. See
Estelle, supra. The scope and quality of medical attention that
Anderson has received at USP-Lewisburg precludes a finding of
deliberate indifference. Anderson's disagreement with
unidentified medical personnel's decision to continue with
"conservative treatment" of his back pain is at best a subjective
disagreement with the treatment decisions and medical judgment of
the medical staff and/or negligence. However, as simple
negligence cannot serve as a predicate to liability in this
matter, Anderson's civil rights complaint, and any conceivable
amendment to it, fails to articulate an arguable Eighth Amendment
claim. See White, supra; Durmer, supra. We will issue an appropriate order. ORDER
AND NOW, this 22nd day of September, 2005, for the reasons set
forth in the accompanying memorandum, it is ordered that:
1. Defendants' motion to dismiss, or in the
alternative, motion for summary judgment (doc. 19) is
2. The Clerk of Court shall enter judgment in favor
of the defendants Dodrill, Watts, Smith and Hemphill,
and against Plaintiff, and close this file.
3. Based on our decision today, Plaintiff's motion
for preliminary injunction (doc. 14) is denied.
4. Any appeal of this order would not be in good
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