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Whooten v. Bussanich

January 29, 2007


The opinion of the court was delivered by: Judge Jones



On January 30, 2004, Paul Whooten ("Plaintiff" or "Whooten"), an inmate presently confined at the United States Penitentiary, Lewisburg, Pennsylvania ("USP-Lewisburg"), initiated this combined pro se civil rights/Federal Tort Claims Act ("FTCA") action. (Rec. Doc. 1). Plaintiff also set forth claims under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA"). Named as Defendants were the United States of America and the following USPLewisburg officials: Associate Warden S. Hobart; Clinical Director A. Bussanich, M. D.; Health Services Administrator J. Hemphill; and Assistant Health Services Administrator J. Zagame.

By Memorandum and Order dated September 2, 2005 (doc. 52), Defendants' Motion to Dismiss or in the Alternative for Summary Judgment (doc. 36) was construed as solely seeking summary judgment. The Motion (doc. 36) was granted with the exception of Plaintiff's FTCA claims against the United States, regarding the medical treatment he received at USP-Lewisburg.*fn1

According to the Complaint (doc. 1), on February 24, 2003, USPLewisburg Physician's Assistant ("PA") Kondrat prescribed Prednisone to Plaintiff for his chronic cluster headaches. After taking the medication for a short period, Whooten states that he began vomiting blood and experiencing severe stomach pain. As a result, PA Ritter discontinued Plaintiff's use of Prednisone.

PA Kondrat then prescribed Imitrex for Whooten's cluster headaches. However, the Imitrex was stopped after the inmate began suffering high blood pressure, dizziness, headaches, blurred vision, and tremors. Plaintiff was next prescribed Verapamil for his headaches. Whooten stopped taking the Verapamil because it allegedly caused dizziness, fatigue, and blurred vision. On December 17, 2003, Doctor Bussanich prescribed Toredol for Plaintiff's condition. Two days later, Whooten purportedly suffered severe pain and coughed up some blood.

Plaintiff contends that his prior medical history precluded his taking any of the above described medications.*fn2 Whooten adds that Doctor Bussanich was informed that neurologists who had previously treated him "had prescribed a combination of narcotic and prophylactic drugs that were effective." (Rec. Doc. 1, ¶ 12). Whooten adds that the only presently available medication that is effective for his cluster headaches is Nalbuphine Hydrochloride. However, although Doctor Bussanich previously provided him with one (1) Nalbuphine injection each month, said Doctor will no longer prescribe that medication.

Plaintiff adds that in March 2004 a neurologist, Doctor Rajjoub, recommended that Plaintiff be provided Nalbuphine as needed for pain. The Complaint (doc. 1) contends that Doctor Bussanich subsequently informed Whooten that he disagreed and would not follow Doctor Rajjoub's recommendation. As a result of Doctor Bussanich's refusal, Whooten claims that he is stricken with daily debilitating headaches and depression. Plaintiff seeks relief under the FTCA on the basis that the USP-Lewisburg Medical Staff were negligent in: (1) prescribing medications that were clearly improper based on his prior medical history; (2) delaying and/or denying a referral to a neurologist; and (3) denying him effective medications based on an incorrect assessment that he was a drug seeker.

The Remaining Defendant, the United States, initially claims entitlement to summary judgment on the grounds that Plaintiff has failed to produce a medical expert to support his surviving FTCA claim.


A. Standard of Review

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with 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]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with ...

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