The opinion of the court was delivered by: Magistrate Judge Blewitt
REPORT AND RECOMMENDATION
On May 6, 2008, Plaintiff Raymond W. Accolla, formerly an inmate at the Federal Correctional Institution at Schuylkill, Minersville, Pennsylvania ("FCI-Schuylkill"),*fn1 filed, pro se, this Bivens*fn2 civil rights action pursuant to 28 U.S.C. § 1331. (Doc. 1, p. 1). Plaintiff also jointly filed with his civil rights action a tort claim against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680. (Id.). Plaintiff filed two in forma pauperis Motions. (Docs. 3 and 6). Plaintiff also filed a Memorandum of Law in support of this Complaint on May 6, 2008. (Doc. 2).
On June 5, 2008, the undersigned screened Plaintiff's Complaint pursuant to the Prison Litigation Reform Act ("PLRA"), and issued a Report and Recommendation ("R&R") wherein it was recommended that all of the Defendants, with the exception of Dr. Hendershot and P.A. Hubble, be dismissed with respect to Plaintiff's Eighth Amendment claims for denial of proper medical care. It was also recommended that Plaintiff's Eighth Amendment claims against Defendants Dr. Hendershot and P.A. Hubble be allowed to proceed. In addition, it was recommended that Plaintiff's tort claim under the FTCA be allowed to proceed against Defendant United States only with respect to his negligent medical care claims which arose at FCI-Schuylkill. (Doc. 10).
On December 12, 2008, the District Court adopted our R&R. (Doc. 18). Plaintiff was allowed to proceed with respect to his stated Bivens claims against Dr. Hendershot and P.A. Hubble and, with respect to his FTCA claim against the United States which arose during his incarceration at FCI-Schuylkill.
On December 8, 2008, Plaintiff filed a Motion for Default Judgment, pursuant to Fed. R. Civ. P. 55, as against the three remaining Defendants, Dr. Hendershot, P.A. Hubble, and the United States. Plaintiff attached a support Memorandum to his Motion. (Doc. 17). On December 17, 2008, the undersigned issued an R&R which recommended that Plaintiff's Motion for Default Judgment be denied as premature (Doc. 20) and the R&R was adopted by the District Court on April 28, 2009. (Doc. 51).
While the December 17, 2008 R&R was pending, Defendants Hendershot, Hubble and United States Government filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment*fn3 on March 16, 2009, with a Brief in Support and a Statement of Material Facts ("SMF"). (Docs. 26, 30, and 31). The Plaintiff filed an Opposition Brief on March 30, 2009. (Doc. 37). Defendants then filed a Reply Brief on April 10, 2009. (Doc. 41). On April 23, 2009, without leave of court, Plaintiff filed a second Opposition Brief and a Response. (Docs. 46-47).
Ripe for disposition today are Defendants' March 16, 2009 Motion (Doc. 26) and April 27, 2009 Motion for Protective Order. (Doc. 48). In their Motion for Protective Order, Defendants seek the Court to stay discovery in this case until the Court decides their dispositive motion. Also pending are Plaintiff's Motion for Final Decision on Exhaustion (Doc. 35), Motion to Compel Subpoena (Doc. 32), filed on March 23, 2009 , as well as his Motion to Compel Discovery (Doc. 43) and Motion to Subpoena Deponents (Doc. 44) filed on April 17, 2009.
We will discuss the dispositive motion first, and then address the other pending motions.
II. Allegations of Complaint
As stated, in relevant part, in our June 5, 2008 Report and Recommendation:
While an inmate in Westchester County Jail in 2004, Plaintiff [Accolla] claims he slipped and fell in the shower, causing a bruise to his shoulder, near the spine. (Doc. 1, p. 4). According to the Plaintiff, this bruise would begin to itch and become inflamed. (Id.). After a few days, Plaintiff alleges that his requests for treatment were all denied, and his wound became worse. (Id.). He claims that puss began to ooze and a burning pain started along with fever and nausea. (Id.). Finally, Plaintiff states, he received treatment after claiming to feel dizzy spells. (Id.). In the infirmary, Plaintiff states he was examined and was found to have a fever in the range of 105-107 degrees. (Doc. 1, p. 5). This allegedly prompted the Doctor on duty to notify Westchester Medical Center, who in turned prompted blood work analysis to be conducted on the Plaintiff. (Id.).
Once the blood work analysis was completed, Plaintiff claims that the staff at the Westchester Medical Center informed him he had a "Fungal Bacterial Infection" and also tested positive for diabetes. (Id.). Plaintiff claims the diabetes was found to have been triggered from pancreatic shock caused by the bacterial infection. (Id.). Plaintiff blames the lack of timely treatment as the cause for this shock. (Id.). It was at this time that the Plaintiff claims he grew worried that he may have contracted Methicillin-Resistant Staphylococcus Aureus ("MRSA"). (Doc. 1, pp. 5-6).
Sometime later, Plaintiff was transferred to FCI-Schuylkill. (Doc. 1, p. 6). He claims he was not cured of MRSA at this time, nor was he treated for it, however there is also nothing in the Complaint to indicate the Plaintiff had contracted MRSA at this time. (Id.).
In September of 2005, while an inmate at FCI-Schuylkill, Plaintiff again claims he developed a "Fungal Bacterial Infection," this time effecting his right foot and leg. (Id.). The symptoms he alleges were the same as above for the infection to his shoulder, except this time he also claims to have had trouble walking since the trauma was to his foot and leg. (Id.). Once again, Plaintiff claims he attempted to receive treatment from Dr. Hendershot and P.A. Hubble at the prison, but was denied proper treatment since both medical staff members said the infection was not "all that bad!" (Doc. 1, pp. 6-7). Plaintiff does state he was treated with antibiotics at the time, yet he claims his health got progressively worse. (Id.). He also states he does not know why either Dr. Hendershot or P.A. Hubble failed to recognize his MRSA infection. (Id.). After his temperature allegedly shot to 105 degrees, Plaintiff avers he was transferred to Good Samaritan Hospital in Pottsville, Pennsylvania, for treatment, at which point he claims his infection improved. (Id.).
A few months later, Plaintiff claims he again was inflicted with the same symptoms, this time in his left foot. (Id.). Plaintiff avers that after several weeks of hassling the medical staff, he was transferred out for medical treatment again, at which point Plaintiff alleges he was told by Dr. Hendershot and P.A. Hubble "that all this medical treatment and trips to the hospital is getting out of hand!" (Doc. 1, p. 8). Plaintiff again states that after all this time, noone recognized that Plaintiff had MRSA. (Id.).
In 2006, Plaintiff claims the infection grew so intense that veins in his eyes began to rupture, causing severe bleeding from the eye socket. (Doc. 1, p. 9). This injury, it is claimed, caused Plaintiff to seek laser eye surgery to repair his vision. (Doc. 1, p. 10). He claims this eye trouble to be "a direct result from a misdiagnosis and delay from the very beginning." (Doc. 1, p. 9).
Finally, Plaintiff states that in February 2008, he received antibiotics for his infection. However these antibiotics are claimed to have made him ill. (Doc. 1, p. 11). Despite his complaints, Plaintiff alleges that he was threatened with having a disciplinary report written up for a refusal of medical services if he did not take his prescribed medicine. (Id.). This was after Plaintiff claims his legs, upper chest, arms, sides and rib cage all became covered in "blood spots," along with high fever and chills. (Doc. 1, p. 12). Plaintiff avers that at some point around this time, a paramedic gave him "two tylenols" and an antibiotic for his fever. (Id.). On January 2, 2008, Plaintiff alleges that he sought medical treatment, but no one was on call to examine him or give him the proper treatment. (Id.).
Plaintiff states claims of "deliberate indifference to serious medical needs" in violation of his Eighth Amendment rights against all named parties. (Doc. 2, p. 4-7). He also states a tort claim (negligence, malpractice) against the United States under the Federal Torts Claim Act ("FTCA") in response to his alleged mistreatment while incarcerated in Westchester County Jail and, later, FCI-Schuylkill. (Doc. 1, p. 14). Plaintiff requests injunctive relief as well as $50 million in punitive damages and $25,000 in compensatory damages for each month he was sick. (Doc. 13, pp. 5-6). (Doc. 10, pp. 2-5).
III. Motion for Summary Judgment Standard
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56. An issue of fact is "`genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and ...