The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court is Defendant Jerry C. Martinez's motion to dismiss, or in the alternative, motion for summary judgment (Doc. 21). Having been fully briefed, the matter is ripe for disposition.
This is a Bivens*fn1 civil rights action filed by Plaintiff Joseph Garvey alleging inadequate medical treatment while confined at the Low Security Correctional Institution -- Allenwood ("LSCI -- Allenwood"). (Compl. at 1 (Doc. 1)). Plaintiff alleges that he was denied adequate medical care by Defendant Warden Jerry C. Martinez. (Id.)
Plaintiff was incarcerated at the United States Penitentiary -- Canaan ("USP -- Canaan") from May 15, 2007 until March 6, 2008, when he was transferred to LSCI -- Allenwood. (Attach. 1 to Def.'s Ex. 1 (Doc. 25-2 at 6)). Plaintiff remained at LSCI -- Allenwood until May 4, 2009, when he was transferred to the Federal Correctional Institution in Elkton, Ohio ("FCI -- Elkton") for participation in a residential drug rehabilitation program. (Def.'s Ex. 1 at ¶3 (Doc. 25-2 at 4); Attach. 1 to Def.'s Ex. 1 (Doc. 25-2 at 6)). His projected release date is March 3, 2012, via good conduct time release. (Def.'s Statement of Material Facts at ¶8 (Doc. 26)).
On September 15, 2007, while at USP -- Canaan, plaintiff fell while jogging and injured his right knee. (Pl.'s Resp. to Def.'s Mot. to Dismiss at ¶¶ 11, 12 (Doc. 33)). He was examined that same day by medical services and diagnosed with a "right knee sprain." (Id. at ¶ 12; Pl.'s Ex. 8 (Doc. 33 at 14)). Follow-up examinations were performed on the following dates: September 24, 2007, October 12, 2007, and November 13, 2007. (Pl.'s Ex. 3 (Doc. 33 at 9); Pl.'s Ex. 9-A (Doc. 33 at 15); Pl.'s Ex. 9-C (Doc. 33 at 16)). An X-Ray report dated September 28, 2007 stated that there was "abnormal small suprapatellar joint effusion; mild narrowing of medial femorotibial joint; tiny calcification lateral to fibular head may represent a chip fracture." (Pl.'s Ex. 3 (Doc. 33 at 9)). A follow-up X-Ray report dated December 18, 2007 showed no findings. (Id.)
On February 16, 2008, plaintiff submitted a request for an informal resolution, pursuant to Federal Bureau of Prisons Program Statement § 1330.13, seeking further treatment for his knee injuries. (Pl.'s Ex. 1 (Doc. 33 at 7)). On February 20, 2008, plaintiff was re-examined. (Pl.'s Ex. 3 (Doc. 33 at 9)). He was told that his case would be presented to the Utilization Review Committee to obtain a referral for a magnetic resonance image ("MRI") of his knee. (Id.) On February 25, 2008, a response to plaintiff's request for an informal resolution was issued, stating that no resolution was reached and that plaintiff had already been examined by a medical professional. (Pl.'s Ex. 1 (Doc. 33 at 7)). On February 27, 2008, plaintiff submitted a request for an administrative remedy to the Warden of USP -- Canaan, Ronnie R. Holt. (Pl.'s Ex. 2 (Doc. 33 at 8)).
On March 6, 2008, plaintiff was transferred to LSCI -- Allenwood. (Pl.'s Ex. 3 (Doc. 33 at 9)). On March 12, 2008, Warden Holt issued a response for informational purposes, stating that plaintiff had been transferred before an MRI could be scheduled at USP -- Canaan. (Id.) On March 24, 2008, plaintiff appealed Warden Holt's decision to the Regional Director, D. Scott Dodrill. (Pl.'s Ex. 4 (Doc. 33 at 10)).
On April 15, 2008, plaintiff completed a Sick Call sign-up requesting an appointment and indicating on the sign-up sheet that he had previously requested an appointment by mail but had not yet been seen. (Pl.'s Ex. 9E (Doc. 33 at 17)). On April 23, 2008, Mr. Dodrill denied plaintiff's appeal because he believed that plaintiff had not yet requested to be seen at LSCI -- Allenwood. (Pl.'s Ex. 5 (Doc. 33 at 11)). He informed plaintiff that he must request to be seen by the medical staff at his current institution for any referrals or continuation of previous treatment plans. (Id.)
On May 16, 2008, plaintiff filed another appeal with the Administrator of National Inmate Appeals, Harrell Watts. (Pl.'s Ex. 6 (Doc. 33 at 12)). Plaintiff noted that, contrary to Mr. Dodrill's assessment of the situation, he had in fact been attempting to make a medical appointment at LSCI -- Allenwood. (Id.) Plaintiff also alleged that when he was eventually seen by a physician's assistant, he was told that knee surgery was elective surgery. (Id.)
On August 22, 2008, plaintiff was evaluated by an in-house orthopedist, Dr. Ball. (Pl.'s Ex. 10-B (Doc. 33 at 37)). Dr. Ball requested an MRI of plaintiff's right knee and a follow-up consult with an orthopedic surgeon to take place after the results of the MRI were available. (Pl.'s Ex. 10-A (Doc. 33 at 36)).
On September 12, 2008, Mr. Watts issued a response for informational purposes to plaintiff's final administrative appeal. (Pl.'s Ex. 7 (Doc. 33 at 13)). He noted that plaintiff was on a list to be seen by an orthopedic specialist and that once the appointment occurred, a determination would be made regarding a treatment plan. (Id.) On September 15, 2008, plaintiff was seen by a physician's assistant, Charles Craig. (Pl.'s Ex. 9-I (Doc. 33 at 21)). Mr. Craig's report noted that an MRI had been requested and that he would notify the staff to schedule it. (Id.)
On October 02, 2008, plaintiff was seen by Dr. James Brady. (Pl.'s Ex. 9-J (Doc. 33 at 22); Pl.'s Ex. 9-K (Doc. 33 at 23)). At the time of this appointment Dr. Brady had not yet seen any records from Dr. Ball. (Pl.'s Ex. 9-J (Doc. 33 at 22)). Dr. Brady noted that plaintiff was experiencing knee pain, but that a musculoskeletal exam yielded normal results. (Id.) Accordingly, Dr. Brady prescribed strengthening exercises and deferred the MRI. (Pl.'s Ex. 9-K (Doc. 33 at 23)). He directed plaintiff to follow up with Sick Call and the Chronic Care Clinic as needed. (Pl.'s Ex. 9-J (Doc. 33 at ...