The opinion of the court was delivered by: Judge Jones
Plaintiff, Rafael Gusman ("Plaintiff" or "Gusman"), an inmate formerly confined in the Federal Correctional Institution, in Allenwood, ("FCI-Allenwood"), Pennsylvania*fn1 , filed this Bivens*fn2 styled civil rights action pursuant to 28 U.S.C. § 1331. He claims that Defendants at FCI-Allenwood were deliberately indifferent to his medical treatment for an ear infection. Named as Defendants in the complaint are the Bureau of Prisons ("BOP"); the FCI-Allenwood Department of Medical Services; and the following current or former FCI-Allenwood employees: S.A. Yates, former Warden, Francisco Feliz, Health Services Administrator; Robert Migliorino, former Clinical Director; Francisca Terrero-Leibel, former Physicians Assistant; and Ernesto Roces, Physicians Assistant.
Presently pending before the Court is Defendants' Motion to Dismiss or, in the alternative for Summary Judgment. (Rec. Doc. 22). The Motion has been fully briefed and is ripe for disposition. For the reasons that follow, Defendants' Motion for Summary Judgment will be granted.
Federal Rule of Civil Procedure 56(c) requires the court to render summary judgment " . . . forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56(c) of identifying evidence which demonstrates the absence of a genuine issue of material fact, the nonmoving party is required by Rule 56(e)*fn3 to go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56(e) shifts the burden of production to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
From the pleadings, declarations, and exhibits submitted therewith, the following facts can be ascertained as undisputed.
On January 17, 2003, Gusman was seen by PA Ernesto Roces for complaints of left ear pain. PA Roces diagnosed him with otitis media, the presence of fluid in the middle ear, and prescribed Bactrim DS, Tylenol, and Benadryl. (Rec. Doc. 24, Ex. 1, Declaration of Russell Hendershot, Medical Director at FCI-Schuylkill). On January 24, 2003, Gusman was seen by PA Reid for ear pain. (Rec. Doc. 24, Medical Records at 13). Reid diagnosed Gusman with otitis serous, the presence of fluid in the middle ear with effusion. Id. Reid advised Gusman to finish the previously prescribed antibiotics and further prescribed Actifed. Id.
On January 31, 2003, in response to Gusman's request to be seen, Gusman was examined by PA Francisca Terrero-Leibel. (Rec. Doc. 24, Medical Records at 14). He complained of pain and that he could not hear from his left ear. Id. He also complained that his pain medication was not working. Id. PA Terrero-Leibel diagnosed Gusman with possible otitis externa, inflammation of the external auditory canal, and prescribed Cortisporin ear drops. Id.
On February 7, 2003, Gusman was seen by PA Terrero-Leibel for a follow-up on his ear pain. (Rec. Doc. 24, Medical Records at 15). Gusman stated that he "still has pain in AM." Id. Terrero-Leibel diagnosed Gusman with possible otitis media, and prescribed Amoxicillin and Motrin. Id. On February 21, 2003, Gusman was seen by FCI-Allenwood Clinical Director, Dr. Migliorino, for a follow-up on his left ear. (Rec. Doc. 24, Medical Records at 15). Dr. Migliorino determined that Gusman's left and right ears were within normal limits, except for tenderness to the touch of the canal floor and ostia. Id. Gusman admitted to Dr. Migliorino that he had inserted Q-tips into his ear. Id. Dr. Migliorino diagnosed Gusman with otitis exteran, prescribed Cortisporin ear drops and Motrin, and advised Gusman that he should not place foreign objects in his ears. Id.
On February 26, 2003, Gusman was seen by PA Terrero-Leibel for lower back pain. (Rec. Doc. 24, Medical Records at 16). During this examination, Gusman stated that his ears did not hurt, but that he heard "bubbling: noise and "his hearing is low." Id. PA Terrero-Leibel ordered an in-house audio examination. Id.
On April 9, 2003, Gusman was seen by PA Terrero-Leibel regarding continued hearing problems. (Rec. Doc. 24, Medical Records at 16). PA Terrero-Leibel diagnosed Gusman with fluid behind the tympanic membrane, and noted in the record that she would consult with the Clinical Director about a follow-up examination with an ear, nose and throat ("ENT") doctor. Id.; see also Rec. Doc. 24 at 39, Consultation Sheet. Gusman's baseline audio hearing test was also performed on April 9, 2003. (Rec. Doc. 24, Medical Records at 17). It was determined that Gusman presented hearing loss and that the test would be repeated again on April 11, 2003. Id.
On April 11, 2003, a manual test of Gusman's hearing was conducted. Id. It was determined that Gusman suffered from pronounced hearing loss and should be referred to an ENT as soon as possible. Id. at 18. On April 30, 2003, Gusman was seen by PA Terrero-Leibel for a follow-up to the hearing tested performed. Id. The results were explained to him and he was informed that a request for a consultation with an ENT was pending. Id.
On May 19, 2003, Gusman was seen by PA Terrero-Leibel for a complaint that "his good ear is bothering him a lot". (Rec. Doc. 24, Medical Records at 19). He stated that it's like listening to "a bell from when you leave a door open from the car." Id. PA Terrero-Leibel diagnosed Gusman with middle ear fluid, and prescribed chlorpheniramine ("CTM") and Motrin. Id.
On May 29, 2003, Gusman was seen by PA Terrero-Leibel for a follow-up on his ear pain. Terrero-Leibel diagnosed Gusman with possible allergies and prescribed Benadryl. Id. On June 3, 2003, Gusman was seen by Dr. Frank, an outside ENT specialist. (Rec. Doc. 24, Medical Records at 20).
On June 10, 2003, Gusman was seen by PA Roces and "demand[ed] surgery." (Rec. Doc. 24, Medical Records at 20). PA Roces diagnosed Gusman with middle ear fluid and prescribed Benadryl. Id. He also noted that Gusman was "evaluated by ENT (outside); waiting for consult/note from outside ENT." Id.
On June 13, 2003, Dr. Frank's report was received by the medical department. (Rec. Doc. 24, Medical Records at 21). He found the following:
We saw Mr. Gusman in my office on 6/3/03. He complains of decreased hearing in both ears, worse in the left ear, since having an earache early this year. He has been on antibiotics and ear drops on several occasions. He does not have any ear discharge.
On examination, he shows a bilateral mixed hearing loss, which is worse for the left ear. Tympanograms were type B bilaterally. Otoscopic examination revealed air fluid levels in the right middle ear space clearly seen through a fairly translucent although retracted right tympanic membrane. The left tympanic membrane is dull and has a deep retraction pocket in the pars flaccida. The nasal exam revealed a left sided septal deviation and some nasal congestion. The pharynx was clear.
I believe that his hearing loss is secondary to a bilateral middle ear effusion, although it appears that this individual my have had middle ear problems for quite a long time. The hearing loss is mixed and even if the fluid problem resolves he will have a hearing loss since there is quite a significant sensorineural hearing loss component especially for the left ear. Also the conductive component for the left ear is significant so, besides the middle ear fluid there might be some degree of tympanosclerosis in the left ear. My recommendation is that we proceed with a left tympanoplasty and ventilation tube ...