The opinion of the court was delivered by: Judge McClure
This combined pro se Bivens*fn1 -typecivil rights/Federal Tort Claims Act ("FTCA") action was filed by Radames Lopez ("Plaintiff"), an inmate presently confined at the Northeast Ohio Correctional Center, Youngstown, Ohio.*fn2 By Memorandum and Order dated June 3, 2008, Defendant William Banks, M.D.'s motion to dismiss was granted. Presently pending is a motion to dismiss and for summary judgment filed by Remaining Defendants. See Record document no. 31. The motion is ripe for consideration.
Lopez's Complaint regards actions which purportedly transpired during his prior confinements at both the Allenwood Low Security Correctional Institution, White Deer, Pennsylvania ("LSCI-Allenwood") and the Allenwood Federal Correctional Institution, White Deer, Pennsylvania ("FCI-Allenwood"). Remaining Defendants are the United States Public Health Service; the Federal Bureau of Prisons ("BOP"); and the following BOP employees, Clinical Directors Doctor James Brady and Doctor Olatokunbo Okundaye; Physicians Assistants Leonard Weber, Joseph Freynik, Charles Craig, Ralph Roces, and Robert Manenkoff; Connie Woodhead; Disciplinary Hearing Officer ("DHO") Todd Cerney; Paramedic Gregory George; Correctional Officers Free and Kevin. Lopez also indicates that he is proceeding against numerous John Doe Defendants.*fn3
According to the Complaint, Lopez suffered facial injuries on September 18, 2004 while playing basketball in the FCI-Allenwood recreation yard. Specifically, Plaintiff was allegedly injured when he "collided with the steel pole" supporting the basket and fell to the ground. Record document no. 1, 18. Plaintiff initially claims that his injuries were "preventable" because the pole was not "protected by any padding."*fn4 Id. He filed an administrative tort claim with the BOP which in part claimed that the lack of padding constituted negligence. His administrative tort claim was denied on March 9, 2007.
Although bleeding from a laceration near his left eye, Lopez asserts that he was required to remain on the basketball court without medical attention being summoned for approximately one (1) hour. During this period, Plaintiff was watched by Correctional Officer Kevin while Correctional Officer Free went to the recreation office to view security videotape in an effort to verify Lopez's version of the underlying events. Officer Free eventually returned and directed Plaintiff to walk unescorted to the FCI-Allenwood Medical Department for treatment. His Complaint contends that the failure of Defendants Kevin and Free to immediately summon medical assistance or administer first aid constituted deliberate indifference to his injuries. See id. at 22.
Upon his arrival at the Medical Department, the laceration near Plaintiff's left eye was treated by Physician's Assistant ("PA") Freynik. However, PA Freynik purportedly acted improperly by neglecting to have Lopez transported to an outside hospital for an assessment of an obvious, more serious injury to the prisoner's right eye. See id. at 24. Three (3) days later, on September 21, 2004, x-rays were taken of his right eye injury by the Medical Department. According to the Complaint, a radiologist, Doctor Gould-Earley, reviewed those x-rays that same day and recommended via a fax to Doctor Okundaye that Lopez undergo a CT-scan. However, Doctor Okundaye purportedly did not review this recommendation until the following day.
Plaintiff acknowledges that after reviewing Doctor Gould-Earley's report, Doctor Okundaye faxed a request for a CT-scan to Tristan Associates, which is described as being an outside medical contractor for the BOP. However, this request allegedly did not indicate an urgent need for testing. See id. at 26.
On September 30, 2004, Plaintiff underwent a CT-scan at an outside facility operated by Tristan. Results from that test were reviewed by a Doctor Jozefiak who prepared a written recommendation that Lopez have an immediate consultation with an Ear, Nose, and Throat specialist ("ENT"). Doctor Jozefiak's report was allegedly faxed to Doctor Okundaye that same day. Once again, it is asserted that Doctor Okundaye allegedly did not review the report until the next day. The Complaint acknowledges that a consultation was arranged with an ENT, Doctor Banks. However, Doctor Banks did not examine Plaintiff until October 7, 2004, three (3) weeks after the prisoner sustained the injury to his right eye.*fn5
The Complaint recognizes that Doctor Banks performed surgery at Williamsport Hospital on October 14, 2004. However, because this surgery was allegedly delayed due to BOP budgetary concerns, Lopez concludes that he may have suffered continued pain and loss of vision and may require additional surgeries with limited chance of success.
Following surgery, Plaintiff states that he was prescribed Tylenol # 3 (with Codeine) and Motrin for pain. After returning to FCI-Allenwood, Lopez claims that he was kept on Tylenol despite suffering side effects from that medication. His side effects, including rapid heart beat, were "never addressed" by Defendants. Id. at 31.
On October 25, 2004, Lopez indicates that he had a post-surgical examination with Doctor Banks. Banks allegedly informed Plaintiff that "everything was healing normally" and another follow up appointment would be scheduled within eight (8) weeks from the date of surgery. Id. at 32. This recommendation was conveyed to Defendant PA Roces. Approximately one (1) hour later, Doctor Okundaye allegedly pressured Banks into agreeing that another follow up appointment was not necessary. Okundaye's action was purportedly motivated by budgetary concerns.
It is further alleged that no follow up visits were scheduled with FCIAllenwood medical staff during the ensuing two (2) months. Moreover, with the exception of a May 19, 2005 audiological examination which resulted in no further treatment, Plaintiff claims that he has not been provided with any further post-operative care by the FCI-Allenwood medical staff.
On August 24, 2005, Plaintiff was transferred to LSCI-Allenwood. Following his arrival, Lopez claims that he was not provided with a complete medical examination as mandated by BOP policy. See id. at 41. On September 22, 2005, Plaintiff states that he was seen by Defendant PA Weber for pain in his right eye. Weber merely prescribed Motrin and no follow up visits were scheduled. Plaintiff was examined by Defendant Thomas on December 2, 2005 for "continued pain by the right eye." Id. at 43. Thomas likewise prescribed Motrin despite Plaintiff's complaints that said medication was ineffective. Lopez adds that Thomas also recommended that the prisoner be seen by LSCIAllenwood Clinical Director, Doctor Brady.
On December 6, 2005, Doctor Brady issued Plaintiff a prescription for Amtriptyline, which is described in the Complaint as being an anti-depressant. This action was allegedly taken by Doctor Brady without benefit of any examination of Lopez. By December 12, 2005, Plaintiff indicates that he began suffering side effects from taking Amtriptyline. On said date, Lopez purportedly sent a written complaint to Dr. Brady which went unanswered. Plaintiff claims that he refused to continue taking Amtriptyline on December 20, 2005 and no substitute medication was provided.
The Complaint next asserts that Defendant Weber treated Plaintiff for severe pain on February 15, 2006. PA Weber prescribed Naproxen-Sodium, a pain medication. However, Weber purportedly erred by not warning Plaintiff that he should not take Motrin with his new medication. An unidentified contract optometrist examined Lopez on February 28, 2006 and "prescription glasses were ordered." Id. at 49. His Complaint notes that his vison was steadily deteriorating since his mishap. On March 27, 2006, Lopez was given an antibiotic and Motrin for an ear infection.
Despite his continued protests that Motrin was not relieving his pain, Plaintiff was again prescribed Motrin by Defendant Factora on April 8, 2006 and by Weber on August 14, 2006 and September 19, 2006. In addition, Defendant George saw Plaintiff on September 10, 2006 and refused to take any action with respect to Plaintiff's claim that Motrin was not providing him with any relief.
The Complaint next asserts that x-rays taken on September 19, 2006 confirmed that Plaintiff had suffered "permanent injuries," however, no further treatment was recommended. Id. at 58. On November 15, 2006, it is alleged that PA Weber refused to treat Lopez. Defendant Woodhead, a Health Information Technician, was also present and ordered Plaintiff to leave the Medical Department after the inmate demanded to be provided with proper medical care. Lieutenant Scampone was called and had Lopez taken to the prison's Special Housing Unit ("SHU"). See id. at 60. A misconduct charge was filed against Plaintiff as a consequence of the incident. Discipline Hearing Officer (DHO) Cerney conducted a hearing on the charge on December 5, 2006. Cerney found Plaintiff guilty of the charge and allegedly denied him due process by refusing to consider the inmate's argument that he had been in continuous pain since his accident.
On December 13, 2006, Defendant Weber again prescribed Motrin for treatment of Plaintiff's pain along with Trazadone, an anti-depressant. Thereafter, on January 26, 2007, Defendant Craig failed to prescribe any pain medication. In conclusion, Lopez contends that he has been denied adequate treatment, especially post-operative pain medication, for the injuries and pain resulting from his accident. He asserts that Defendants have both committed medical malpractice and displayed deliberate indifference to his serious medical needs.
Remaining Defendants seek entry of dismissal or summary judgment on the grounds that: (1) Remaining Defendants are entitled to sovereign immunity with respect to the Bivens claims asserted against them in their official capacities; (2) the Bivens allegations are barred by the statute of limitations; (3) Defendants Woodhead and Cerney were not personally involved in the alleged constitutional misconduct; (4) Plaintiff failed to exhaust his administrative remedies with respect to his Bivens claims; (5) Lopez fails to set forth a viable claim of deliberate indifference; (6) a viable FTCA claim of medical malpractice has not been asserted; (7) Plaintiff's claim of negligence for failing to install padding on the basketball pole is barred by the discretionary function exception; and (8) Remaining Defendants are entitled to qualified immunity.
Prior to the filing of Remaining Defendants' supporting brief. Plaintiff filed two responses, both of which generally requested that the motion to dismiss and for summary judgment be denied because he has been denied adequate care for chronic pain. See Record documents 35 & 36.
After submission of Remaining Defendants' supporting brief, Plaintiff requested and was granted two separate enlargements of time in which to file an opposing brief. However, Lopez has failed to submit an opposing brief which addresses Remaining Defendants' pending arguments.
Remaining Defendants' motion is accompanied by evidentiary materials [documents] outside the pleadings which are relevant for purposes of both determining the issues of non-exhaustion as well as their alternative arguments. Rule 12(b) provides in part as follows:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed. R. Civ. P. 12(b). The Court will not exclude the evidentiary materials accompanying Remaining Defendants' motion. Thus, their motion will be treated as solely seeking summary judgment.
Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c); See also, Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "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 at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
Remaining Defendants' first argument contends that the Bivens claims against them in their official capacities should be dismissed for lack of subject matter jurisdiction. They argue that those claims are barred by the doctrine of sovereign immunity. See Record document no. 40, p. 21.
The United States is generally immune from suit absent an explicit waiver of sovereign immunity, United States v. Mitchell, 445 U.S. 535, 538 (1980). This "immunity is jurisdictional in nature," FDIC v. Meyer, 510 U.S. 471, 475 (1994), and extends to government agencies and employees sued in their official capacities. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996); Chinchello v. Fenton, 805 F. 2d 126, 130, n. 4 (3d Cir. 1986).
"Congress has not waived sovereign immunity for damages claims for constitutional violations." Germosen v. Reno, Civil No. 99-1268, slip op. at 13 (M.D. Pa. Sept. 20, 2000)(Vanaskie, C.J.).Therefore, entry of summary judgment in favor of the Remaining Defendants is appropriate to the extent that the ...