United States District Court, M.D. Pennsylvania
November 16, 2005.
JOHN OTIS BURNSIDE, Plaintiff,
M. WARNICK, P.A., O. OKUNDAYE, M.D., E. ROCES, P.A., and the MEDICAL STAFF UTILIZATION REVIEW COMMITTEE, Defendants.
The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On September 13, 2005, Plaintiff John Otis Burnside, an inmate
at the Federal Correctional Institution at Allenwood, in White
Deer, Pennsylvania, initiated this action by filing a civil
rights complaint pursuant to the holding of the United States
Supreme Court in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971).*fn1
According to the complaint, on September 1, 2004, Burnside fell
from the top bunk in his cell and broke his left hand.
Immediately after the incident his hand became swollen. The individual Defendants are identified as Physician's Assistant M.
Warnick, Physician's Assistant E. Roces, and Dr. O. Okundaye.
Each of them allegedly participated to some extent in providing
Burnside's treatment. The only other named Defendant is the
Medical Staff Utilization Review Committee. Burnside is
proceeding pro se and in forma pauperis.
The Clerk of Court assigned this case to us and referred it to
Magistrate Judge Thomas M. Blewitt for preliminary consideration.
The Magistrate Judge preliminarily screened the complaint
pursuant to 28 U.S.C. § 1915A.
On October 11, 2005, Magistrate Judge Blewitt issued a 17-page
report recommending that the complaint be dismissed for failure
to state a claim upon which relief may be granted. With respect
to Defendants Warnick, O. Okundaye, and Roces, the Magistrate
Judge concluded that even if all of the allegations in the
complaint are accepted as true Burnside is not entitled to any
relief because the alleged conduct of those Defendants fails to
establish deliberate indifference to any serious medical need.
The Magistrate Judge determined that the Medical Staff
Utilization Review Committee is not a proper party.
On October 19, 2005, Burnside timely filed objections to
Magistrate Judge Blewitt's Report and Recommendation. A
supporting brief was filed with the objections. Although the
Magistrate Judge issued the Report and Recommendation without requiring service of the complaint upon any Defendant, Burnside's
objections indicate that he may have served one or more of the
Defendants with copies of his objections.*fn2 Out of an
abundance of caution we withheld ruling on Burnside's objections
until the time allowed for an opposition brief expired, which was
November 7, 2005. To this date no such brief has been filed and
Burnside's objections are ripe for disposition.
Title 28 U.S.C. § 1915A, entitled "Screening," provides in part
that "[t]he court shall review . . . a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity."
Subsection (b) of that statute, entitled "Grounds for dismissal,"
states in relevant part that
[o]n review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of
the complaint, if the complaint . . . fails to state
a claim upon which relief may be granted.
28 U.S.C. § 1915A(b)(1).
Magistrate Judge Blewitt recommends that Burnside's complaint
be dismissed pursuant to that statute because the complaint fails
to state any claim upon which relief may be granted. That
recommendation requires us to consider whether the complaint
states a claim upon which relief may be granted. Under the circumstances, we will accept all material
allegations of the complaint as true and construe all inferences
in the light most favorable to the plaintiff. Scheuer v. Rhodes,
416 U.S. 232, 236 (1974); Colburn v. Upper Darby Township,
835 F.2d 663, 665-66 (3d Cir. 1988). We recognize that the complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiffs can prove no set of
facts in support of their claim which would entitle them to
relief. See Conley v. Gibson, 355 U.S. 41, 44-46 (1957).
All of Burnside's claims are based on his allegations that the
Defendants violated his Eighth Amendment rights when they were
deliberately indifferent to the medical needs stemming from his
hand injury. According to the complaint, the day after his fall
Burnside received medical treatment for all of the injuries
suffered in that incident. After subsequently complaining about
his hand, on October 19, 2004, his hand was x-rayed. Burnside
admits that "when the X-rays of the [his] Left-Hand finally did
come back, they showed no fracture or abnormality." (Complaint,
pp. 2-2A) Nonetheless, he contends that the named Defendants
are all liable to the Plaintiff, [sic] for not even
allowing an Orthopedic Specialist to look at the
Plaintiff's Left-Hand, as well as refusing to order a
"Motion M.R.I. Dynamic Kinematic M.R.I. Imaging
Exam, so that Plaintiff can be diagnosed properly,
and finally, for not ordering Corrective Orthopedic
Surgery, after the Plaintiff is diagnosed properly by
an Orthopedic Specialist. . . .
(Complaint, pp. 2A-2B) (Emphasis in original) In order to state an Eighth Amendment claim based on medical
treatment, a plaintiff is required to allege that a defendant
"acted or failed to act despite knowledge of a substantial risk
of serious harm." Farmer v. Brennan, 511 U.S. 825, 842,
114 S. Ct. 1970 (1994). The Court of Appeals for the Third Circuit has
[i]n order to establish a violation of [a prisoner's]
constitutional right to adequate medical care,
evidence must show (i) a serious medical need, and
(ii) acts or omissions by prison officials that
indicate deliberate indifference to that need.
Natale v. Camden County Corr. Facility, 318 F.3d 575
, 582 (3d
Cir. 2003). The United States Supreme Court has held that neither
"an inadvertent failure to provide adequate medical care" nor
"negligen[ce] in diagnosing or treating a medical condition"
satisfies the deliberate indifference standard. Estelle v.
Gamble, 429 U.S. 97
, 105-106, 97 S. Ct. 285, 50 L. Ed. 2d 251
(1976) (holding that plaintiff's allegation that prison doctors
should have performed certain diagnostic tests instead of tests
actually performed did not state claim under § 1983).
In this case the allegations in Burnside's complaint indicate
that 1) Dr. Okundaye has treated Burnside's hand injury, and 2)
the x-ray administered by the Defendants fails to reveal any
"fracture or abnormality." (Complaint, p. 2A) Burnside's claim is
based strictly on his contention that the constitution requires
the Defendants to provide further treatment in the form of either an M.R.I. or a consult with an orthopedic surgeon for
We agree with Magistrate Judge Blewitt's determination that
Burnside fails to state any Eighth Amendment claim against the
individual Defendants because Burnside's claims are based merely
on his disagreement with their course of treatment. See
Estelle, 429 U.S. at 107 ("A medical decision not to order an
X-ray, or like measures, does not represent cruel and unusual
punishment."); see also Young v. Quinlan, 960 F.2d 351, 358 n.
18 (3d Cir. 1992) (inmate's disagreement with prison personnel
over medical judgment does not state a claim for relief under
Bivens); Monmouth County Correctional Institute Inmates,
834 F.2d at 346 (mere disagreement about proper medical treatment
does not support an Eighth Amendment claim). In the face of an
x-ray showing no fracture or abnormality, the Defendants' refusal
to proceed with an M.R.I. or a referral to an orthopedic surgeon
does not constitute deliberate indifference.
Burnside's objections to the Report and Recommendation do not
directly challenge any of the Magistrate Judge's findings or
conclusions. In his objections Burnside simply provides the court
with a copy of a medical record dated September 1, 2005, which
was previously unavailable to him. We make two observations
concerning those document. First, as a threshold matter, we
question its relevance at this point because only the allegations in the complaint may be considered at this time.
Second, even if we were to consider the new document, it does not
cast the allegations in the complaint in a different light.
Nothing in those documents indicates that any individual
Defendant was deliberately indifferent to Burnside's medical
needs. In fact the document further undermines Burnside's claims
because in it the examining physician notes that Burnside
possesses "full ROM of fingers," which we interpret to mean full
range of motion. (Brief in Support of Objections, Exhibit #2)
The only other recommendation to consider is that pertaining to
the fourth Defendant, the Medical Staff Utilization Review
Committee. Numerous reported decisions support the Magistrate
Judge's conclusion that an entity such as the Medical Staff
Utilization Review Committee, in its capacity as a governmental
entity, is not a proper defendant in an action brought pursuant
to Bivens. See Umezurike v. Bureau of Prisons, 2005 WL
2100700, *2 (M.D. Pa. August 26, 2005) (Jones, J.) (citing Hindes
v. F.D.J.C., 137 F.3d 148, 159 (3d Cir. 1998); Figueroa-Garay v.
Municipality of Rio Grande, 364 F.Supp.2d 117, 128 (D.P.R. 2005);
Shannon v. U.S. Parole Commission, 1998 WL 557584 *3 (S.D.N.Y.
Sept. 2, 1998) (court stated that "Bivens claims may not be
maintained against federal agencies."); Duarte v. Bureau of
Prisons, 1995 WL 708427 *2 (D. An. Nov. 3, 1995) (the BOP "is not
a proper defendant in a Bivens action.")) We will overrule Burnside's objections and adopt Magistrate
Judge Blewitt's Report and Recommendation in its entirety.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Burnside's objections (Document 13) to Magistrate
Judge Blewitt's Report and Recommendation are
2. The Magistrate Judge's recommendations are adopted
3. Burnside's complaint (Document 1) is dismissed
without prejudice for failure to state a claim upon
which relief may be granted.
4. The Clerk of Court shall close this case.
5. Any appeal of this order shall be deemed
frivolous, without probable cause, and not taken in
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