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Mackey v. Bureau of Prisons

January 30, 2006

BERNARD MACKEY, PLAINTIFF
v.
BUREAU OF PRISONS, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Jones

ORDER

January 30, 2006

Plaintiff Bernard Mackey ("Plaintiff" or "Mackey"), an inmate confined in the United States Penitentiary, in Lewisburg, ("USP-Lewisburg"), Pennsylvania, filed this Bivens*fn1 styled civil rights action pursuant to 28 U.S.C. § 1331. The required filing fee has been paid. For the reasons outlined below, this action will be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915A.

The Prison Litigation Reform Act includes a new section that relates to screening complaints in prisoner actions where the inmate has not applied to proceed in forma pauperis. 28 U.S.C. § 1915A (added by § 805 of the Act). Section 1915A provides in pertinent part:

(a) Screening. -- The 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.

(b) Grounds for dismissal. -- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint --

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A..

The Defendants named in the complaint are as follows: the Bureau of Prisons; Joseph V. Smith, USP-Lewisburg Warden; Dave Moffat, USP-Lewisburg Camp Administrator; Joseph Brown, USP-Lewisburg Health Services Administrator; Paul Clemens, USP-Lewisburg Camp Commander; William A. Bogler and Samuel Gosa, USP-Lewisburg Camp Physician Assistants; Dr. Anthony Bussanich, USP-Lewisburg Physician; Dr. David J. Ball, Orthopedic Physician; Dr. Howard P. Schiele, Radiologist; Stacey Dreese, Health Services Secretary; and R. Parky, USP-Lewisburg Prison Camp paramedic.

Plaintiff alleges that in May 2005, while at the USP-Lewisburg Prison Camp, he broke his left ankle and fibula bone. He states that he "seek[s] to file his case based on the fact that the Bureau of Prisons was negligent in their care and handling of his person as a ward of the Attorney General's Office" and that the "Bureau of Prisons Medical care that was rendered failed to correct the injury to which he sustained approximately seven months ago and still exists at this present date and time, despite the fact that the Plaintiff has been seen by Lewisburg's medical department along with the outside contract orthopedic physician for the Bureau of Prisons at Lewisburg." (Rec. Doc. 1, at 2, ¶ 1). Thus, Plaintiff filed the instant action, in which he seeks to be "seen by an entirely new group of physicians, to include a different outside orthopedic doctor to correct the injury [he] sustained in May, 2005." Plaintiff also seeks compensatory and punitive damages, as well as to "hold all parties it deems responsible/ accountable for being negligible toward the Plaintiff's medical care." (Rec. Doc. 1, at 3 ¶¶ 1-3).

Discussion

A Bivens-type action is the federal counterpart to an action filed under 42 U.S.C. § 1983. See Paton v. LaPrade, 524 F.2d 82 (3d Cir. 1975); Farmer v. Carlson, 685 F. Supp. 1335, 1338 (M.D. Pa. 1988)(Nealon, J.).

In order to prevail on a claim made under § 1983, the plaintiff must satisfy two criteria: (1) that some person has deprived him or her of a federal right, and (2) that the person who caused the deprivation acted under color of state or territorial law. West v. Atkins, 487 ...


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