The opinion of the court was delivered by: Judge Conner
Presently before the court is defendants' motion to dismiss plaintiff Jerome Arrington's ("Arrington") complaint, or in the alternative, for summary judgment. (Doc. 17). For the reasons that follow, the motion for summary judgment will be granted.
Arrington, a federal inmate, confined at the United States Penitentiary at Allenwood (USP-Allenwood), White Deer, Pennsylvania brings both a Bivens*fn1 action pursuant to 28 U.S.C. § 1331, and a Federal Tort Claims Act ("FTCA") pursuant to 28 U.S.C. § 2671, et seq. Named as defendants in the Bivens action are Health Services Administrator Ronald A. Laino ("Laino"), and Physician's Assistant Diane Inch ("Inch"). Laino has held the position of Health Services Administrator for the Federal Correctional Complex at Allenwood, Pennsylvania since April 1993. (Doc. 25-1, p. 3, ¶ 1). In October 2000, Inch joined the Public Health Service and holds the rank of lieutenant commander. (Doc. 24-2, p. 44. Appropriately, the United States has been substituted as the defendant in the FTCA matter.
Arrington arrived at USP-Allenwood in May 2001. Based on a history of asthma, he qualified for quarterly evaluations at the pulmonary and infectious disease clinic. (Doc. 25-1, pp. 4-5). In April 2002, he was evaluated in the clinic and informed that he had tested positive for Hepatitis C. He was also advised about the nature and consequences of the disease as well as treatment alternatives. (Doc. 25-1, p. 45). Arrington indicated that he wanted the Hepatitis C managed "conservatively." (Id.).
On August 23, 2002*fn2, Arrington was seen by Physician's Assistant ("P.A.") Inch for complaints of nausea and a temperature. He was instructed to increase his fluids, eat more sensibly and to get antacid tablets from the pill line, if necessary. (Doc. 25-1, p. 49). He was also advised to return to sick call if his symptoms persisted.
Arrington returned on September 13, 2002, complaining that he had been suffering from nausea and an upset stomach for two weeks. He indicated that the antacid tablets were ineffective. An examination revealed no outward signs of difficulty. He was diagnosed with dyspepsia, or indigestion, and prescribed Tagamet. He was also directed to elevate the head of his bed, increase his fluids and to minimize food intake prior to bedtime. (Doc. 25-1, p. 52).
He did not register another complaint related to his stomach until March 3, 2003. At that time, he complained of gas. His physical examination was normal, but he was given medication to treat the gas. (Doc. 25-1, p. 63).
On April 28, 2003, he complained of experiencing nausea and headache for one day. His temperature and blood pressure were normal. He was given a prescription for Pepto Bismol tablets. (Doc. 25-1, p. 62).
On May 14, 2003, he was seen in the medical department by a P.A. for complaints of fever and nausea. Even though his temperature was 98.1 degrees, he was given a prescription for Tylenol, as needed for fever. He was also prescribed twelve Pepto Bismol tablets for nausea. (Doc. 25-1, p. 13, ¶ 62, p. 65).
He was seen for continuing complaints of stomach problems on May 19, 2003. At that time, he was diagnosed with dyspepsia, or indigestion, and given a prescription for Tagamet to be taken twice daily for two weeks. (Doc. 25-1, p. 65). He was given two refills for the medication and informed that if the medication was not effective in two weeks, a stronger treatment would be prescribed and an X-ray series might be ordered. A Helicobacter pylori ("H. pylori") test was also ordered.*fn3
In July 2003, while being seen for complaints unrelated to his stomach, Arrington was advised that he tested positive for H. pylori.*fn4 He was instructed to increase his fluid intake and was prescribed the standard treatment regimen for H. pylori, which included two antibiotics and an acid blocker. (Doc. 25-1, p. 66; Doc. 25-2, p. 47).
Arrington was out of the facility on a writ to Washington D.C. from July 28, 2003, until October 22, 2003. (Doc. 25-1, p. 15, ¶ 71).
Arrington reported to the medical department on November 10, 2003, with complaints of bloating and gas in his abdomen. (Doc. 25-2, p. 12). He indicated that he ceased taking the prescribed acid blocker. (Doc. 25-1, p. 16, ¶ 73, Doc. 25-2, p. 12). He was diagnosed with gas and given a prescription for Mylanta liquid. He was also instructed to continue the "maintenance dose" of the acid blocker. (Id.)
On December 8, 2003, he came to the medical department seeking X-ray results of his ankle. At that time, he also indicated that he was still suffering from gas, but that the Mylanta was working well. (Doc. 25-2, p. 14).
Refills for Maalox and Mylanta prescriptions were provided to Arrington on January 2, 2004. (Doc. 25-2, p. 15). During two other January visits, complaints of headache, diarrhea, and nausea were treated with prescriptions for Pepto-Bismol, Motrin, and Maalox. (Doc. 25-2, p. 17). In addition, he was given Zantac, a new acid blocker; the original acid blocker was discontinued. (Id.)
In early February, he complained of side effects from the Zantac. At his request, the Zantac was discontinued and he was prescribed the original acid blocker and Pepto-Bismol. (Doc. 25-2, p. 16).
A few days later, he reported to the pulmonary and infectious disease clinic complaining of stomach discomfort and being under stress. Arrington admitted that he was smoking and was not exercising. (Id.) The physician further educated him on the cause of dyspepsia and the role H. pylori plays in ulcers and in acid production and ...