The opinion of the court was delivered by: Judge Jones
On September 24, 2007, Plaintiff Thomas Farmer ("Plaintiff" or "Farmer"), a former inmate, initiated this pro se civil rights action by filing a Complaint raising Bivens*fn1 claims under 28 U.S.C. § 1331 and the Federal Tort Claims Act ("FTCA"). Presently before the Court is a Motion to Dismiss, or in the Alternative, for Summary Judgment, filed on behalf of Defendants. (Doc. 17). For the reasons set forth below, the Motion will be granted.
At the time of filing, Plaintiff was confined at the Federal Correctional Institution - Schuylkill ("FCI-Schuykill") in Minersville, Pennsylvania. He makes the following allegations in his Complaint: (1) FCI-Schuylkill staff erroneously assigned him to a top bunk, which resulted in him hitting his head on the ceiling and falling from the top bunk on May 27, 2006; (2) staff failed to provide him with adequate medical care after he fell from the top bunk, including proper transportation to an outside hospital; (3) staff failed to provide him with adequate medical care for his sixty pound abdominal hernia; and (4) staff retaliated against him for complaining about the May 27, 2006 incident by filing a false incident report against him. (See Doc. 1 at 6-21). Named as Defendants are the United States of America, the Federal Bureau of Prisons ("BOP"), and the following employees of FCI-Schuylkill: Ronnie Holt, Warden; Kenton Hubble, Physician Assistant ("PA"); Michael Kabonick, Emergency Medical Technician ("EMT"); Russell Hendershot, M.D., Clinical Director; Tao Chaw, M.D., Clinical Director (retired); Edgardo Ong, Health Services Administrator; Gerardo Talamantes, Correctional Counselor; and Anthony Prantow, Unit Manager.
Service of the Complaint was directed by Order dated October 22, 2007. (Doc. 10). Following a request for an extension of time, which was granted (Doc. 15), on March 28, 2008, Defendants filed the instant Motion to Dismiss, or in the alternative, for Summary Judgment (Doc. 17). On April 9, 2008, Defendants filed a Motion for Leave to exceed the page limitation set forth in Middle District of Pennsylvania Local Rule 7.8 in their supporting brief (Doc. 18). By Order dated April 10, 2008 (Doc. 20), Defendants' Motion was granted. Following a request for an extension of time to file their supporting brief, which was granted on April 14, 2008 (Doc. 22), Defendants filed a Brief (Doc. 23) and Statement of Facts (Doc. 24) on April 21, 2008. Because Plaintiff did not file any opposition to the Motion, on May 14, 2008, this Court issued an Order granting Plaintiff an opportunity to file his opposition to Defendant's Motion within fifteen (15) days. (See Doc. 25). He was warned that his failure to do so would result in the Motion being deemed unopposed and addressed on the merits. The time period to submit opposition has long expired, and Plaintiff has failed to oppose the Motion.
Defendants seek dismissal of Farmer's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis that it fails to state a claim upon whichrelief can be granted. In the alternative, Defendants seek summary judgment and have submitted evidentiary documents outside the pleadings in support of their motion. Federal Rule of Civil Procedure 12(d) provides:
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Fed. R. Civ. P. 12(d). The Court will not exclude the evidentiary materials accompanying Defendants' Motion because Farmer was given a reasonable opportunity to present material relevant to the Motion. (See Doc. 25). Accordingly, the Court will treat Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment, solely as a motion seeking summary judgment.
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations or denials in its own pleadings; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non-moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "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, 477 U.S. at 247-48.
Farmer failed to file any opposition to Defendants' Motion for Summary Judgment, and therefore, the Motion is deemed unopposed. Farmer did not submit any evidence in response to the evidence submitted by Defendants. Moreover, because Farmer has failed to file a separate statement of material facts controverting the statement filed by Defendants, all material facts set forth in Defendants' Statement of Material Facts (Doc. 24) will be deemed admitted. See M.D. Pa. LR 56.1.*fn2 Despite these deficiencies, the Court still must analyze the merits of Defendants' Motion to determine whether summary judgment is appropriate. See Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174-75 (3d Cir. 1990).
Defendants' Statement of Material Facts (Doc. 24) and supporting materials*fn3 establish the following undisputed facts material to the instant Motion
1. Facts Relating to Medical History
On December 15, 2003, the BOP held Farmer on holdover status at the United States Penitentiary in Lewisburg, Pennsylvania ("USP Lewisburg"). (Doc. 24 ¶ 1). While Farmer was at USP Lewisburg, Paramedic D. McClintock issued him an Idle, Convalescent and Change in Work Classification Status form ("Convalescent Work Change form"). (Id. ¶ 2). The form, which had an expiration date of January 15, 2004, restricted Farmer to a bottom bunk because of his chronic abdominal problem. (Id.). Generally, after a medical restriction such as a bottom bunk designation is issued to an inmate, a Health Services staff member loads it into the SENTRY computer program, enabling staff to access the information by computer. (Id. ¶ 3). In addition, staff place a copy of the restriction in the inmate's medical record and provide the inmate with a copy of it. (Id. ¶ 4).
On December 22, 2003, the BOP designated Farmer to the Schuylkill Federal Prison Camp in Minersville, Pennsylvania ("FPC Schuylkill"). (Id. ¶ 5). After conducting an initial screening of Farmer, FPC Schuylkill Health Services staff placed him on restricted duty and assigned him a lower bunk pass. (Id. ¶ 6). These restrictions expired on December 22, 2004. (Id.).
Following a medical exam on December 24, 2003, staff noted the following conditions of Farmer's restricted duty status: no prolonged walking or standing, and no pushing or pulling anything over fifteen (15) pounds. (Id. ¶ 7). Staff noted in the medical report that a medical doctor would evaluate Farmer and that he should be provided with additional abdominal support. (Id. ¶ 8). He was provided with elastic bandages to wrap around his midsection until he could see the medical doctor. (Id.).
On January 14, 2004, Dr. Hendershot evaluated Farmer pursuant to his request to be placed on medically unassigned status. (Id. ¶ 12). Farmer informed Dr. Hendershot that, after suffering from gun shot wounds to his mid-section around 1998, he had a skin graft to his midsection. (Id. ¶ 13). As a result, he suffered from an abdominal hernia. (Id.). Due to the loss of muscle to his midsection, Farmer said that his midsection was unable to keep its normal shape, and a protrusion was visible. (Id. ¶ 14). In addition, Farmer informed Dr. Hendershot that Washington General Hospital had refused to perform an abdominal hernia repair. (Id.). Dr. Hendershot determined that Farmer should become medically unassigned for the next year and provided him with an abdominal binder*fn4 to provide additional support for his midsection. (Id. ¶ 15). Dr. Hendershot also issued Farmer a Convalescent Work Change form indicating that Farmer was medically unassigned and short line appropriate, meaning that the amount of time Farmer had to stand in line should be reduced. (Id. ¶ 17).
On March 24, 2004, Dr. Hendershot evaluated Farmer in the Chronic Care Clinic to follow up on his abdominal hernia. (Id. ¶ 18). Dr. Hendershot advised Farmer to wear his abdominal binder twenty-four hours a day, seven days a week. (Id. ¶ 19). He also gave Farmer fiber tablets, mineral oil, and Maalox to help alleviate his complained of constipation and abdominal pain. (Id.). In addition, Dr. Hendershot issued Farmer a Convalescent Work Change form excusing Farmer from school and instructing him to sit and lie in the supine position as tolerated. (Id. ¶ 20).
On March 30, 2004, Dr. Steven J. Perlin of HSR Teleradiology Solutions took and evaluated supine and erect x-rays of Farmer's abdomen. (Id. ¶ 21; Doc 23-10 at 94, 3/30/04 Radiology Report). The x-rays revealed no dilated loops or small bowel to suggest an obstruction; an unusual density on the supine study extending from the upper abdomen into the deep pelvis in the midline having a longitudinal extent of approximately 34 centimeters and transverse dimension of approximately 23 centimeters, which presumably represented a large midline hernia; surgical staples in the midline upper abdomen; and no evidence of mass, organomegaly, or ascites. (Doc. 24 ¶ 22; Doc. 23-10 at 94). Dr. Perlin indicated on his report that he believed Farmer suffered from a large midline hernia that it was either an incisional hernia or diastasis recti. (Doc. 24 ¶ 23; Doc. 23-10 at 94). The report also indicated that an additional computed tomography (CT) scan of the area would be helpful for further dilineation. (Doc. 24 ¶ 23; Doc. 23-10 at 94).
On June 14, 2004, Dr. Chaw evaluated Farmer to follow-up on his abdominal hernia. (Id. ¶ 24). Dr. Chaw educated Farmer on his condition and advised him to continue application of his abdominal binder. (Id.).
On June 21, 2004, Dr. Chaw provided Farmer with a second abdominal binder to wear while Farmer's other binder was being cleaned. (Id. ¶ 25).
On July 3, 2004, PA Hubble saw Farmer after he allegedly fell down the stairs. (Id. ¶ 26). Hubble noted no signs of trauma, that Farmer's abdomen was tender, and that Farmer had a small contusion on his thigh. (Id.). Hubble prescribed Motrin to help alleviate Farmer's pain. (Id.). On a follow-up visit on July 6, 2004, Dr. Chaw saw Farmer, who reported pain in his right lateral thigh and lower back. (Id. ¶ 27). Dr. Chaw noted no bruising or swelling on Farmer's back, and an evaluation of Farmer's right leg revealed some mild tenderness to his right thigh. (Id.). Dr. Chaw provided Farmer with Motrin and a muscle rub ointment for his back and thigh. (Id. ¶ 28). He also advised Farmer to apply heat to the area; recommended bed rest; and ordered x-rays of Farmer's spine. (Id.).
On July 8, 2004, an x-ray of Farmer's lumbosacral spine revealed no evidence of acute fracture or spondylolisthesis, some mild degenerative changes seen with osteophytes at L2-3, and smaller osteophytes noted at other levels. (Id. ¶ 29; Doc. 23-10 at 100, 7/8/04 Radiology Report). The x-ray showed a mild degenerative change, which, in Dr. Hendershot's opinion, would not have rendered Farmer disabled in that he would have been able to function and have a normal life. (Doc. 23-10 at 100, 30 ¶ 27, Hendershot Decl).
On July 13, 2004, Dr. Chaw saw Farmer for another follow-up after the July 3, 2004 incident, and noted that Farmer's right thigh remained stable and x-rays of his back still were pending. (Doc. 24 ¶ 31). Dr. Chaw prescribed additional Motrin and muscle rub ointment and instructed Farmer on how each medication was to be used. (Id.).
On July 20, 2004, the BOP transferred Farmer to a Community Confinement Center (now known as a Residential Re-entry ...