The opinion of the court was delivered by: Joyner, J.
Before this Court is Defendants', Zorilla, Martinez, Bokhari and Levi's, Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. No. 85), Plaintiff's Response in Opposition (Doc. No. 97), and Defendants' Reply thereto (Doc. No. 98). For the reasons set forth in the following memorandum, the motion is granted.
Plaintiff, at the time in question, was a inmate with the Federal Bureau of Prisons, held at the Federal Detention Center ("F.D.C.") in Philadelphia, PA. Defendants Zorilla, Martinez, Bokhari and Levi were employed by the BOP at the time of the Plaintiff's allegations. Plaintiff also alleged violations against the Bureau of Prisons and Dr. Gary Reynolds; however, the instant Motion to Dismiss has been brought only by Defendants Zorilla, Martinez, Bokhari and Levi in their individual capacities.*fn2 In this Bivens action, plaintiff has alleged violations of the First, Fifth and Eighth Amendments in connection to the medical treatment he received at the F.D.C.*fn3*fn4
In December of 2004, plaintiff fell while getting down from the top bunk of his bed, injuring his leg and back and causing him great pain. On that same day, he told a corrections officer of his pain and put in a sick call slip. That night, the pain worsened and Mr. Rice called the shift corrections officer who informed him that he would have to wait until the next day to receive medical care. The following day, Mr. Rice was not seen, though he had placed his name on the call out sheet for sick call. Several days went by and Mr. Rice told another corrections officer of the injury and the pain, but was told that he could not see anyone until after the holiday weekend. Later, when walking back from the visitation area after a visit, his leg gave out. A Unit Counselor and a Unit Manager saw him on the floor and told him that they would call the hospital. Later that day, he was seen by Dr. Reynolds for the first time. Dr. Reynolds spent approximately five (5) minutes with him and told him he had to get to a New Year's Eve party. Dr. Reynolds told Mr. Rice that he might have a pulled muscle and wrote out an idle slip and a lower bunk slip. He also wrote Mr. Rice a prescription for 400 mg Ibuprofen.
When Mr. Rice returned to his Unit, he could not receive a bottom bunk because the Unit Counselor was not there and could not receive the pain medication because the pharmacy was closed until the next week due to the holiday. Mr. Rice received a lower bunk three or four days later and his pain medication approximately one week later. Mr. Rice was also given the use of a wheelchair during this time. During the week after the exam, Mr. Rice was in severe pain and he asked his cell mate to press the emergency call button on a number of occasions. In early January 2005, while Mr. Rice was showering, his leg gave out and he was knocked to the floor. He was screaming in pain and a Physician Assistant ultimately called Dr. Reynolds at home who told the P.A. to inject Mr. Rice with 30 cc of cortisone. The shot helped for a brief period of time, but then wore off, leading Mr. Rice to again push the emergency call button.
The next day, P.A. Smith came to Mr. Rice's cell because Mr. Rice could not get out of bed. Mr. Rice informed P.A. Smith that he could not even get out of bed to use the toilet and was urinating into an empty milk container. Later that evening, P.A. Smith gave Mr. Rice 2 Tylenol codeine 3 for the pain. The following day, Mr. Rice was still experiencing pain and P.A. Smith visited again and gave Mr. Rice pain medication.
The next day, Mr. Rice was still experiencing a lot of pain and pressed the emergency button. Dr. Reynolds came to Mr. Rice's cell, along with Mr. Freeman, Unit Counselor. Once there, Dr. Reynolds took away the wheelchair and told Mr. Rice to get out of bed. When Mr. Rice told him that he could not due to the pain, Dr. Reynolds told him that he had to get out of bed or would receive an incident report and be placed in the special housing unit. When Mr. Freeman attempted to help Mr. Rice get out of bed, he was stopped by Dr. Reynolds. While Mr. Rice attempted to pull himself out of bed, he was crying and complaining of the pain. Dr. Reynolds then told Mr. Rice to put on his jumpsuit and when Mr. Rice told Dr. Reynolds that it would be too painful, Dr. Reynolds threatened again to put him in the special housing unit. Eventually, Mr. Rice was able to put on the jumpsuit and get into a wheelchair to go to the examination room. Once there, Dr. Reynold told Mr. Rice to get on the weigh scale and then pulled him out of the wheelchair onto the scale when Mr. Rice protested due to pain. Dr. Reynolds then asked for an x-ray of plaintiff's right leg. Ms. Macalusco performed the x-ray. Dr. Reynolds then took plaintiff's wheel chair, gave him crutches and kept him on the same medication despite plaintiff's request to change. For much of January 2005, plaintiff submitted sick call requests and, finally, wrote the "Acting Warden." A few days later he was brought to the exam room and was examined by P.A. Zorilla and P.A. Martinez. Zorilla changed his pain medication to Indomethacin 50 mg. For the next month, plaintiff continued to experience pain and submitted numerous sick call requests. In February 2005, plaintiff submitted an administrative remedy (BP 8) to his Unit Counselor concerning the pain and his lack of treatment. No changes were made.
In March 2005, Mr. Rice saw a P.A. who changed his medication to Naproxein 50 mg. In April 2005, plaintiff again saw Dr. Reynolds and told him about the continued pain and headaches that plaintiff had been having. Dr. Reynolds took plaintiff's blood pressure and, finding that it was high, changed plaintiff's medication to Acetaminophen 500 mg, explaining that the Naproxein could be responsible for the high blood pressure.
Dr. Reynolds then told the plaintiff that he had a really bad pulled muscle or nerve damage and that he was recommending "Electro-Diagnostic" testing. Plaintiff continued to have pain after the visit and continued to submit sick call requests. Plaintiff was seen by P.A. Bokhari in May 2005 and was told that he would have to deal with the pain and that there was nothing he could do.
Finally, plaintiff saw Dr. Reynolds in July of 2005. At this time, plaintiff's crutches were taken away before the examination. Plaintiff explained that he was still in pain and could not get around without the supports. Plaintiff then told Dr. Reynolds that he had never received the electro-diagnostic testing that had been ordered. Dr. Reynolds told plaintiff that he was malingering and that if he fell without the crutches that he would get an incident report and be put in the special housing unit. Mr. Freeman came into the room and was told that Mr. Rice could not have the crutches and that if he fell, he was to go to the special housing unit. Mr. Rice then left the examination room by holding onto the walls for support. A few days later, Mr. Rice's leg gave out during lunch time at the Unit Open House in front of staff members and the Assistant Warden. Mr. Rice was told by P.A. Martinez that someone would look into his injury and crutches situation, but has not heard back. Mr. Rice pursued administrative remedies as to the lack of medical treatment through July 2005, after first filing on February 22, 2005, and has been told that the medical treatment was sufficient.
On December 16, 2005, plaintiff filed his Complaint pro se and then sought, and secured, appointment of counsel from the Civil Rights Panel of the Eastern District of the United States. Counsel was appointed by Order on January 11, 2006. Plaintiff was taken to Frankford Hospital on August 15, 2006, for electro-diagnostic testing where he was preliminarily found to be suffering from a possible right S1 radiculpathy. The physician there recommended further studies and tests which were not immediately performed. Following an application from counsel and Order from this Court, the plaintiff was examined on or about August 8, 2007, by Dr. Marc Kahn, M.D., an orthopaedic specialist in Cherry Hill, N.J. Dr. Kahn preliminary diagnosed plaintiff with a chronic lumbar strain and sprain and an internal derangement of his right knee. Dr. Kahn also recommended MRI and EMG testing to properly diagnose his injury and determine a course of treatment. The BOP was made aware of this report but did not provide follow up testing.
On October 4, 2007, this Court ordered that the MRI and EMG tests be performed. The MRI was performed at Thomas Jefferson University Hospital; however, the hospital would not release the results of the MRI without an assurance of payment from the BOP. Similarly, the hospital would not perform the EMG test without such assurance. The BOP has contested the necessity of a court order to pay for such tests, asserting that it has adequate facilities for such tests itself. The BOP has not, thus far, performed such tests.
The Second Amended Complaint was filed in this matter on June 3, 2008. Defendants Zorilla, Martinez, Bokhari and Levi in their individual capacities now move to dismiss the Second Amended Complaint; the plaintiff has responded in opposition. This Court has jurisdiction over this action pursuant to 13 U.S.C. §§ 1331 and ...