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Velentzas v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


August 31, 2010

SPYREDON VELENTZAS, PLAINTIFF
v.
UNITED STATES OF AMERICA, ET. AL., DEFENDANTS

The opinion of the court was delivered by: Judge Jones

(Magistrate Judge Blewitt)

REPORT AND RECOMMENDATION

I. Background

Plaintiff, Spyredon Velentzas*fn1 , while an inmate at the United States Penitentiary at Canaan ("USP-Canaan"), Waymart, Pennsylvania, originally filed, pro se, this Bivens*fn2 action, pursuant to 28 U.S.C. § 1331, on July 11, 2007. (Doc. 1). Plaintiff named as Defendants in his original Bivens Complaint two (2) individuals employed by the Federal Bureau of Prisons ("BOP") at USP-Canaan, namely Warden "Ronold" (sic) Holt, and unnamed U.S.P. Health Care Services Administrator ("HSA"). Plaintiff also named the United States of America ("USA") as well as the Director of the Bureau of Prisons ("BOP") as Defendants. (Doc. 1, pp. 1-3). Plaintiff paid the filing fee. (Doc. 4).

Plaintiff claimed that the Defendants violated his Eighth Amendment rights by depriving him of proper medical and dental care for his conditions, namely, ill-fitting dentures, hearing problems in both ears, and chest pain and dizziness. (Doc. 1, pp. 4-5).

On August 6, 2007, we preliminarily screened Plaintiff's original Complaint pursuant to 28 U.S.C. §1915A, and issued a Report and Recommendation. (Doc. 5). Plaintiff filed Objections to our Report and Recommendation. (Docs. 8 and 9). On November 6, 2007, the District Court issued a Memorandum and Order overruling Plaintiff's Objections, and adopting our Report and Recommendation in its entirety. The Court also directed Plaintiff to file an amended complaint within fifteen (15) days. (Doc. 10).

Plaintiff filed his Amended Complaint on December 3, 2007. (Doc. 13). On December 12, 2007, we screened Plaintiff's amended pleading and issued a Report and Recommendation wherein we recommended that Plaintiff's Bivens action be dismissed as against Defendants Ramos and John Doe Dentist, that Plaintiff's claims for monetary damages against Defendants in their official capacities be dismissed, and that Plaintiff's specific requests for monetary damages be stricken. We further recommended that Plaintiff be permitted to proceed on his Amended Complaint with respect to his Eighth Amendment denial of medical care and dental care claims as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. Additionally, we recommend that Plaintiff's ADA claim and Rehabilitation Act ("RA") claim be dismissed. (Doc. 14). Plaintiff filed Objections to our Report and Recommendation. (Docs. 15 and 16).

On April 11, 2008, the District Court entered an Order adopting in part our Report and Recommendation and remanding this case to the undersigned for further proceedings. (Doc. 18). The Court adopted our recommendation that Plaintiff be permitted to proceed on his Amended Complaint with respect to his Eighth Amendment denial of dental and medical care claims as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. The District Court's April 11, 2008 Order also granted Plaintiff leave to amend his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and also against the BOP. Further, the District Court directed Plaintiff to file his Second Amended Complaint within fifteen (15) days of the date of its Order.

Since Plaintiff failed to timely file his Second Amended Complaint, we issued a Report and Recommendation on May 8, 2008, wherein we recommended that Plaintiff's action be dismissed pursuant to Fed.R.Civ.P. 41(b). (Doc. 19).

While our May 2008 Report and Recommendation was pending with the District Court, on May 20, 2008, Plaintiff filed Motion for Extension of Time to file his Second Amended Complaint. (Doc. 20). On January 15, 2009, the District Court issued a Memorandum and Order rejecting our Doc. 19 Report and Recommendation and granting Plaintiff's Motion for Extension of Time to file his Second Amended Complaint. (Doc. 21). The District Court's Memorandum and Order directed Plaintiff to file his Second Amended Complaint within thirty (30) days. Plaintiff was notified that his failure to comply with the District Court's Order would result in an involuntary dismissal of his action pursuant to Fed.R.Civ.P. 41(b). (Doc. 21, p. 8).

A copy of the Doc. 21 Memorandum and Order was mailed to Plaintiff at his address of record, USP-Canaan. On January 27, 2009, the envelope addressed to Plaintiff, containing the District Court's Doc. 21 Memorandum and Order, was returned to the Court marked "Return to Sender; Not Deliverable as Addressed; Unable to Forward." (Doc. 22).

The time within which Plaintiff was to have filed his Second Amended Complaint expired. Plaintiff neither timely filed his Second Amended Complaint nor requested a further extension of time within which to do so. Further, Plaintiff failed to notify the Court of his change of address, as required.

Thus, on February 24, 2009, we issued an R&R and recommended that this action be dismissed on the basis of Plaintiff's failure to timely file his Second Amended Complaint, his failure to notify the Court of his whereabouts, and for failure to prosecute his action. (Doc. 23). Subsequently, the Clerk of Court's Office located Plaintiff at MCFP-Springfield, and our R&R was mailed to Plaintiff at this medical center prison.

On March 23, 2009, apparently in response to our February 24, 2009 R&R, Plaintiff filed his Second Amended Complaint. (Doc. 25). On September 28, 2009, the Court issued an Order and rejected our February 24, 2009 R&R, and it remanded this case to us for further pre-trial proceedings. (Doc. 26).

We then screened Plaintiff's latest pleading, i.e. Second Amended Complaint, Doc. 25. We found Plaintiff's Second Amended Complaint (Doc. 25) was deficient since it did not state who the Defendants were, what each Defendant allegedly did to violate Plaintiff's Eighth Amendment rights, and his rights under the ADA and RA, and it did not state where and when the alleged improper conduct of each Defendant occurred. See Saltzman v. Independence Blue Cross, 2009 WL 1606887, *4 (E.D. Pa.)("The Court in Iqbal explained that, although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted.").

In his Second Amended Complaint, Plaintiff simply listed the "United States, et al." as the Defendants in his caption, and he did not mention any Defendant by name in the body of his 3-typed page, 14-paragraph Second Amended Complaint. (Doc. 25). Further, the United States was dismissed as a Defendant from this Bivens action in November 2007 since it was not a proper party Defendant in a Bivens action. See Reynolds v. Federal BOP, 2010 WL 744127, * 3 (E.D. Pa.).

As stated, Plaintiff was already permitted by the Court to proceed on his (first) Amended Complaint with respect to his Eighth Amendment denial of medical and dental care claims as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. Also, the Court allowed Plaintiff, if he so desired, to only amend, in a Second Amended Complaint, his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and against the BOP. Plaintiff did not state such claims in his Second Amended Complaint, and he did not even state the names and the personal involvement of the stated four remaining individual Defendants in this pleading. Rather, Plaintiff merely asserted, in a general fashion, an Eighth Amendment denial of proper medical and dental care claims by all medical and dental staff at each of the five federal prisons where he was incarcerated over the numerous years while serving his life sentence.

Specifically, in his Second Amended Complaint, Plaintiff simply averred that he was "repeatedly over the years, deprived of proper care by all medical and dental staff at the facilities where he has been incarcerated." (Doc. 25, p. 1, ¶ 4.) (emphasis added). Plaintiff also listed the five (5) federal prisons where he has been incarcerated, namely, USP-Terre Haute, FCI-Beckley, FCI-Allenwood, USP-Canaan, and MCFP-Springfield. Plaintiff's Eighth Amendment claims in this case only relate to his confinement at USP-Canaan and venue in this Court is clearly not proper with respect to any Eighth Amendment claims Plaintiff may have as against the medical and dental staff at USP-Terre Haute, FCI-Beckley, and MCFP-Springfield.*fn3

See Joyner v. BOP, 2005 WL 3088371 (M.D. Pa.); Michtavi v. Miner, Civil No. 07-0628, M.D. Pa.

Since this case was over two years old and, no pleading was yet served on any of the remaining Defendants, and since Plaintiff's Second Amended Complaint did not state the personal involvement of any Defendant, we issued an Order on September 30, 2009, and directed service of Plaintiff's (first) Amended Complaint (Doc. 13) on remaining Defendants Coleman, Tucker, Faschiana and Dr. Bhatti, and we directed these Defendants to respond to Plaintiff's Eighth Amendment denial of medical and dental care claims asserted against them during Plaintiff's (pre-December 2009) confinement at USP-Canaan. (Doc. 27). We found no need to further delay this case with respect to the Eighth Amendment denial of medical care and dental care claims asserted in Plaintiff's (first) Amended Complaint (Doc. 13) against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti since the Court had already allowed these claims to proceed.

In our September 30, 2009 Order, Plaintiff was also permitted to file a Third Amended Complaint consistent with the prior Orders of the Court, i.e. to only amend his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and against the BOP. Plaintiff was not directed to re-assert his Eighth Amendment denial of medical care and dental care claims as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti in his Third Amended Complaint since the Court had found that he sufficiently stated these constitutional claims against the remaining four Defendants in his (first) Amended Complaint, Doc. 13. (Doc. 18). Further, in our Order of September 30, 2009, we stated that if Plaintiff failed to file his Third Amended Complaint as specified therein in a timely fashion, his case would proceed solely on his (first) Amended Complaint with respect to only his Eighth Amendment denial of proper medical care and dental care claims, as against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. (Doc. 27).

Accordingly, as stated, Plaintiff was permitted to file a Third Amended Complaint only to amend his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and against the BOP.*fn4 Also, as stated, our September 30, 2009 Order directed that if Plaintiff failed, within the applicable time period, to file his Third Amended Complaint adhering to the standards set forth above and to the prior directives of the Court, his case would proceed only as to his (first) Amended Complaint with respect to his Eighth Amendment denial of proper medical care and dental care claims against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti. Plaintiff did not file a Third Amended Complaint.

The Summons was then issued as to Defendants Coleman, Tucker, Faschiana and Dr. Bhatti and sent to the U.S. Marshal for service along with Plaintiff's (first) Amended Complaint, Doc. 13. Defendants Coleman, Tucker, Faschiana and Dr. Bhatti were served with Plaintiff's (first) Amended Complaint, and after being granted an extension of time, on February 16, 2010, they jointly filed a Motion to Dismiss and for Summary Judgment. (Doc. 40).

On March 2, 2010, Defendants filed their Brief in support of their Motion to Dismiss and for Summary Judgment. (Doc. 45). Defendants also submitted Exhibits with their Brief. (Doc. 45-4). On March 3, 2010, Defendants filed their requisite Statement of Material Facts ("SMF"). (Doc. 46). On March 23, 2010, after we sua sponte gave Plaintiff more time, Plaintiff filed his Brief in opposition to Defendants' Motion to Dismiss and for Summary Judgment. (Doc. 48). Plaintiff also filed a response to Defendants' SMF. (Doc. 49). Plaintiff's denials of, i.e. objections to, Defendants' SMF failed to state a reason for denying them and failed to cite to any evidence in the record to support Plaintiff's denials. (Doc. 49).*fn5 Thus, Plaintiff failed to follow Local Rule 56.1, M.D. Pa.*fn6 Defendants, however, properly filed their SMF according to Local Rule 56.1. (Doc. 46). Defendants cited to evidence in the record with respect to all of their numerous SMF, ¶'s 1.-192., and their evidence is undisputed. Thus, we find Plaintiff has not properly responded to Defendants' SMF as required by LR 56.1 of M.D.Pa. See Cyrus v. Laino, Civil No. 08-1085, M.D. Pa.; Cyrus v. Freynik, Civil No. 08-2278, M.D. Pa.; Michatavi v. Martinez, 2009 WL 5172962 (M.D. Pa.); Accolla v. U.S., 2009 WL 3625383 (M.D. Pa.), affirmed 2010 WL 763550 (3d Cir.)(court found that since Plaintiff inmate in civil rights action did not properly respond to prison staff Defendants' statement of facts as required by L.R. 56.1, M.D. Pa., Defendants' statement of facts were undisputed). Regardless of Plaintiff's failure to properly deny Defendants' statement of facts, we accept all of Defendants' statement of facts since they are all supported by their evidence (Doc. 45-4) and since Plaintiff has not offered any evidence to controvert them.

As mentioned, Plaintiff did not file a Third Amended Complaint to amend his ADA and RA claims against Defendants Tucker, Bhatti, Coleman and Faschiana in their official capacities, and against the BOP. The time period in which Plaintiff was directed to file a Third Amended Complaint expired. Thus, Plaintiff is proceeding only as to his (first) Amended Complaint, Doc. 13, with respect to his Eighth Amendment denial of proper medical care and dental care claims against Defendants Coleman, Tucker, Faschiana and Dr. Bhatti.

II. Allegations of First Amended Complaint (Doc. 13)

Plaintiff essentially claims that during his first confinement at USP-Canaan, i.e., March 10, 2005 through September 17, 2008, Defendants Coleman, Tucker, Faschiana and Dr. Bhatti violated his Eighth Amendment rights by depriving him of proper medical care for his three medical conditions, namely, chest pain and dizziness, hearing problems in both ears, and ill-fitting dentures. Defendant Coleman was the Health Services Administrator ("HSA") at USP-Canaan, Defendant Dr. Bhatti was the Clinical Director at USP-Canaan, and Defendants Tucker and Fasciana were Physicians' Assistants ("PA") at USP-Canaan. As noted, Plaintiff Velentzas was first confined at USP-Canaan from March 10, 2005 through September 17, 2008. We find that this is the relevant time period with respect to the instant case. As noted, Plaintiff's medical care after his transfer back to USP-Canaan on December 16, 2009, is not at issue in this case.

In his December 3, 2007 Amended Complaint, Plaintiff states his entire Statement of Claims as follows:

STATEMENT OF THE CLAIMS

On April 2005, plaintiff was taken to a consultant Oral Surgeon, whose extracted him twelve (12) teeth and since the extraction of the above, he remained in pain and bleeding without medication and/or treatment for over two (2) weeks and regardless of his medical condition, the above defendants "Mr. Faschiana, Mr. Tucker, Mr. Bhatti, and Mr. Coleman," refused to treat and/or refers him to a dentist and also, the institution does not have any dentist at all. Consequently, plaintiff was totally disabled from April 2005, til May 2006, as he cannot eat and/or chew.

Finally, on April 2006, plaintiff was seeing (referred) by a John Doe dentist, whose on May 15, 2006, provided him with an ill-fitting full upper partial and lower dentures and since, he still partially disable as he cannot chew with the above. Thereof, at complaining of the ill-fitting dentures, he was seeing (referred) by John Doe dentist from May 22, June 9, September 28, October 20, December 8 and 15, 2006. However, John Doe (dentist) refused to fixed and/or replace the ill-fitting dentures. Thus plaintiff has been denied dental treatment by the above.

Since 2005, till this present-day, plaintiff has been disabled as he loss hearing in his right ear and has a permanent buzzing in his left ear and regardless of his hearing (impalement) deterioration, Mr. Faschiana, Mr. Tucker, Mr. Bhatti, and Mr. Coleman have been refused to give him (plaintiff) an audiologists test and/or refers him to any ear specialist(s) for diagnosis and treatment. Specifically, these defendants' told plaintiff that the Federal Bureau of Prisons won't give him a hearing aid. Since November 2005, till this present-day, plaintiff has been complaining of chest pain (shooting pain) and continuing dizziness and regardless of such symptoms, these defendants, specifically, Mr. Faschiana, Mr. Tucker, and Mr. Bhatti, cannot refers him to a cardiologist(s) for a diagnosis and treatment. Instead, the above have given him a run-around about his chest pain and so forth. (Doc. 13, pp. 6-7).

As relief in his Amended Complaint, Plaintiff seeks declaratory judgment that Defendants constitutionally violated his Eighth Amendment rights, and he seeks both compensatory and punitive damages. Plaintiff states that he sues each Defendant in his individual and official capacity.*fn7 (Doc. 13, p. 5).

This Court has jurisdiction over Plaintiff's instant Complaint under 28 U.S.C. § 1331 and § 1343(a).

Because we will consider the evidence submitted which is outside the pleadings, we will be treating Defendants' Doc. 40 Motion, in part, as one for summary judgment. See Mitchell v. Dodrill, 2010 WL 883720, * 5 (M.D. Pa.). We will consider Defendants' Doc. 40 Motion as one to dismiss with respect to their statute of limitations ("SOL") defense and their contention that Defendant HSA Coleman should be dismissed for lack of personal involvement. (Doc. 45, pp. 7-14).

III. Standards for Review.

1. Motion to Dismiss Standard

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008)). While a complaint need only contain "a short and plain statement of the claim," Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d 929. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.) "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court " 'is not bound to accept as true a legal conclusion couched as a factual allegation.' " Id., 127 S.Ct. at 1965 (quoted case omitted).

In resolving the motion to dismiss, we thus "conduct a two-part analysis."

Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a " 'plausible claim for relief.' " Id. at 211 (quoted case omitted). When appropriate, we may also rely on public records, such as court filings. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n. 5 (3d Cir.1999) (citing Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993)). The court may also consider "documents whose contents are alleged in the complaint and whose authenticity no party questions," even though they "are not physically attached to the pleading ..." Pryor v. National Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir.2002).

2. 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. Rules of Civ. Pro. 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. F.R.C.P. 56( c ). 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, 693-94 (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 admissions on file" designate "specific facts showing that there is no genuine issue for trial." F.R.C.P. 56(e).

In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id. quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976).

Moreover, the Third Circuit has recently indicated that, "although the party opposing summary judgment is entitled to the 'benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum, or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007) (Non-precedential)(citation omitted).

Further, parties filing Statements of Material Facts or answers to SMF must be in accordance with the Middle District of Pennsylvania's Local Rule 56.1, M.D. Pa. In McCoy v. Edwards, 2009 WL 1794749 (M.D. Pa. 2009), the Court stated as follows with respect to M.D. Pa. LR 56.1:

A motion for summary judgment filed pursuant to F.R.C.P. 56, shall be accompanied by a separate, short, and concise statement of material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph as to which it is contended that there exists a genuine issue to be tried. Statements of material facts in support of or in opposition to, a motion shall include references to the parts of the record that support the statements. (Emphasis added). All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.

McCoy at *2.

IV. Statement of Material Facts

We find that Defendants' SMF are all supported by evidence and are not disputed by Plaintiff with the citation to contradictory evidence. We shall accept all of Defendants' SMF, not because Plaintiff, who was provided with the relevant Local Rules, failed to properly follow them regarding his denials of Defendants' SMF, but rather because Defendants followed LR 56.1 by citing to evidence in the record in support of all of their material facts and because Defendants' evidence is not disputed.

In Hodge v. United States, 2009 WL 2843332 (M.D. Pa.), the Court found that Defendants' SMF, which were in accordance with LR 56.1, were deemed admitted not only because the Plaintiff, an inmate proceeding pro se, failed to follow LR 56.1, but also because the Defendants properly cited to evidence on record and Defendants' evidence was not disputed by Plaintiff. See Hodge at *13. The Court stated:

Plaintiff received a copy and explanation of the Local Rules pursuant to the court's standing practice order for actions by pro se plaintiffs. Examinations of both plaintiff's Answer to Defendants' Statement of Facts and the exhibits plaintiff filed separately reveal that neither filing constitutes the paragraph-by-paragraph response to the moving party's statement of material facts that LR 56.1 plainly requires and of which Plaintiff Hodge had ample notice. As such, the court will adopt the magistrate judge's recommendation that Defendant's SMF should be deemed admitted under LR 56.1 and his reliance on those facts for the purpose of assessing Defendants' motion for summary judgment.

Id.*fn8

Further, we have reviewed Defendants' SMF and all of the facts stated therein are accurately supported by reference to the evidence on record. As stated, Plaintiff has not submitted any evidence to controvert any of Defendants' SMF or Defendants' evidence. Accordingly, we will accept all Defendants' SMF as undisputed.

Because there are one hundred ninety-two (192) material facts in Defendants' SMF and one hundred fifty-one of them are objected to by Plaintiff, we will not repeat herein all of the material facts. Rather, we shall reference the facts relevant to our discussion below.

V. Bivens and Eighth Amendment Standards

A. Bivens Standard

As mentioned, Plaintiff filed a Bivens action. The Third Circuit stated in Banks v. Roberts, 2007 WL 3096585, *1 n.1, 251 Fed. Appx. 774 (3d Cir. 10-19-07) (non-Precedential), "[a] Bivens action is a commonly used phrase for describing a judicially created remedy allowing individuals to seek damages for unconstitutional conduct by federal officials. This constitutional tort theory was set out in Bivens v. Six Unnamed Officials of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)."

In Naranjo v. Martinez, 2009 WL 4268598, *6 (M.D. Pa.), the Court stated:

Bivens creates no substantive right, but rather allows "a citizen suffering a compensable injury to a constitutionally protected interest [to] invoke the general federal-question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official."Butz v. Economou, 438 U.S. 478, 504 (1978). A civil rights claim brought under Bivens is the federal counterpart to an action brought under 42 U.S.C. §1983, and the same legal principles governing a §1983 claim apply to a Bivens claim. Brown v. Phillip Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001); Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Cyrus v. Hogsten, No. 06-2265, 2007 WL 88745, at *3 (M.D.Pa. 1-09-07). To state a claim under Bivens, the plaintiff must show that the defendant, acting under color of Federal law, deprived him of a right secured by the Constitution or laws of the United States. Brown, 250 F.3d at 800; Cyrus 2007 WL 88745 at *3.

Naranjo at *6

B. Eighth Amendment Standard

In Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999), the Third Circuit set forth the appropriate standard necessary to establish an Eighth Amendment claim of deliberate indifference to a prisoner's medical needs:

The Eighth Amendment prohibits the imposition of unnecessary and wanton infliction of pain contrary to contemporary standards of decency. In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment requires prison officials to provide basic medical treatment to those whom it has incarcerated. The Court articulated the standard to be used:

In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment. Id at 106.

Therefore, to succeed under these principles, plaintiffs must demonstrate (1) that the defendants were deliberately indifferent to their medical needs and (2) that those needs were serious... .

It is well-settled that claims of negligence or medical malpractice, without some culpable state of mind, do not constitute "deliberate indifference." As the Estelle Court noted: "[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute 'an unnecessary and wanton infliction of pain' or to be 'repugnant to the conscience of mankind." Id at 105. Deliberate indifference, therefore, requires obduracy and wantonness... which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk. (internal citations omitted)

The Third Circuit further defined deliberate indifference in Natale v. Camden City Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). The Court held:

A prison official acts with deliberate indifference to an inmate's serious medical needs when "he knows of an disregards an excessive risk to inmate health and safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a complaint that a physician or a medical department "has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment... ." Estelle, 429 U.S. 97. Accordingly, a "medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id at 107. "[A]s long as a physician exercises professional judgment, his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor's disagreement with the professional judgment of another doctor is not actionable under the Eighth Amendment. See White v. Napolean, 897 F.2d 103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or medical malpractice does not give rise to a civil rights cause of action, and an inmate's disagreement with medical treatment is insufficient to establish a "deliberate indifference." See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

VI. Discussion

1. Eighth Amendment Claim Regarding Denial of Proper Dental care and Ill-Fitting Dentures

Plaintiff'sEighth Amendment denial of proper dental care claim is that all four remaining Defendants refused to treat his dental condition and refused to refer him to a dentist outside the prison after 12 of his teeth were extracted by an oral surgeon in April 2005 which caused him pain and bleeding. Plaintiff alleges that as a result of Defendants' conduct, he was totally disabled from April 2005 through May 2006, and that he could not eat or chew during this time. (Doc. 13, p. 6). Plaintiff states that in April 2006, he was examined by an outside "John Doe" dentist and that on May 15, 2006, the dentist gave him ill-fitting dentures which resulted in his partial disability since he could not chew with the dentures. (Id.).*fn9 Plaintiff states that after he complained about the improperly fitted dentures, he was referred back to the "John Doe" dentist who saw him from May 2006 through December 2006, but refused to fix or replace the ill-fitting dentures. (Id.). Plaintiff concludes that, based on the alleged conduct, the four remaining Defendants denied him proper dental treatment.

Defendants contend that all of Plaintiff's Eighth Amendment claims which occurred before November 28, 2005 (i.e. two years from the date Plaintiff signed his Doc. 13 First Amended Complaint), including part of his present denial of dental care allegations, are barred by the applicable 2-year Statute of Limitations "(SOL"). (Doc. 45, pp. 7-13).*fn10 Defendants also state that Plaintiff 's First Amended Complaint does not relate back, under Fed. R. Civ. P. 15(c), to the date he filed his original Complaint (Doc. 1), i.e. July 11, 2007, since "none of the individually-named Defendants is named in [Plaintiff's] original complaint, and the current Defendants were not served with [Plaintiff's] First Amended Complaint until October of 2009." (Doc. 45, p. 9).

We agree with Defendants that a 2-year SOL governs Plaintiff's present Bivens action. In Womack, 2009 WL 5214966, *2, the Court stated:

In a Bivens action, federal courts must apply the statute of limitations for analogous state actions. Napier v. Thirty or More Unidentified Federal Agents, Employees, or Officers, 855 F.2d 1080, 1088 n. 3 (3d Cir.1988). The governing law here is Pennsylvania's two-year statute of limitations. 42 Pa.C.S.A. § 5524. The statute begins to run when the plaintiff knew or should have known of the violation of his rights. Bougher v. Univ. of Pittsburgh,\ 882 f.2d 74, 80 (3d Cir.1989) (in the context of a 42 U.S.C. § 1983 action).

Federal Rule of Civil Procedure 15 allows amendments to a complaint to relate back to an original complaint.FN3 Rule 15(c) provides, in relevant part: FN3. In 2007, Rule 15 was amended as part of a general restyling of the Federal Rules of Civil Procedure. The amendments reconfigured the language and the designations of paragraphs and subsections. The original language of Rule 15(c)(2) can now be found in Rule 15(c)(1)(B).

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: ...

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

(2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.

Fed.R.Civ.P. 15(c). An amended complaint relates back to an original complaint subject to three conditions: "(1) the claims in the amended complaint must arise out of the same occurrences set forth in the original complaint, (2) the party to be brought in by the amendment must have received notice of the action within 120 days of its institution, and (3) the party to be brought in ... must have known, or should have known, that the action would have been brought against the party but for a mistake concerning its identity." Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir.2006) (citing Fed.R.Civ.P. 15(c)). All three conditions must 21 be met for an amendment to relate back for purposes of the applicable statute of limitations. Singletary v. Pennsylvania Dep't of Corrections, 266 F.3d 186, 194 (3d Cir.2001).

Defendants concede that Plaintiff's claims in his First Amended Complaint arise out of the same occurrences as the claims raised in his original Complaint, and we concur. (Doc. 45, p. 9). Defendants argue that no Defendant named in Plaintiff's First Amended Complaint was named in his original Complaint. However, Plaintiff's original Complaint did include as a Defendant the unnamed HSA at USP-Canaan. (Doc. 1, pp. 1-3). Plaintiff's First Amended Complaint also names the HSA of USP-Canaan as a Defendant but it states the name of this Defendant as Coleman. Thus, we find that Plaintiff's First Amended Complaint did not bring new claims against new parties, and we find that it named additional Defendants at USP-Canaan as also being involved with his Eighth Amendment denial of proper medical and dental care claims, i.e., PA Tucker, PA Faschiana and Dr. Bhatti. Therefore, as the Womack Court stated: we are concerned with three questions: (1) did [BOP Defendants] Vanyur, Thomas, Marioana and Oliver receive notice of the action before April 6, 2007; (2) was the notice sufficient to avoid prejudice to their defense on the merits; and (3) did they know (or should have known) by April 6, 2007 that, but for a mistake, Womack would have named them as parties in the original complaint? See Singletary, 266 F.3d at 194.

In the present case, neither the U.S. Attorney M.D. Pa. nor the U.S. Attorney General was ever served with Plaintiff's original Complaint. Further, no originally named Defendant, including unnamed HSA, was served with Plaintiff's original Complaint. As stated above, on November 6, 2007, after the Court screened Plaintiff's original Complaint, the Court issued a Memorandum and Order overruling Plaintiff's Objections, and adopting our Report and Recommendation in its entirety. The Court also directed Plaintiff to file an amended complaint within fifteen (15) days. (Doc. 10). Plaintiff then filed his Amended Complaint on December 3, 2007. (Doc. 13).

As Defendants state (Doc. 45,p. 9), the docket shows that they were not served with Plaintiff's First Amended Complaint until October 2009. Specifically, the U.S. Attorney, Middle District of Pennsylvania, was served on October 19, 2009 (Doc. 28), the U.S. Attorney General was served on October 21, 2009 (Doc. 29), and the individual Defendants waived service in early November 2009 (Docs. 30 and 31). Also, as Defendants state (Id., p. 10), "[t]his was approximately two years after the expiration of the 120-day limit." Thus, the four remaining Defendants in Plaintiff's Doc. 13 First Amended Complaint did not receive notice of his action within 120 days of its effective filing date on November 28, 2007. Since all three conditions are not met for Plaintiff's Doc. 13 First Amended Complaint to relate back to his original Complaint, we find, as Defendants contend, that any of his present Eighth Amendment claims which arose prior to November 28, 2005 (i.e. two years from the date Plaintiff signed his Doc. 13 First Amended Complaint ) are time-barred and should be dismissed.

As such, Defendants state that the following claims of Plaintiff are time-barred:

The time-barred claims include Velentzas' claims concerning the April, 2005 extraction of his teeth and medical treatment he received thereafter up until November 28, 2005. See First Amended Complaint (Doc. No. 13) at 6. Velentzas' claim that he experienced "shooting" chest pain is also time barred, as the record demonstrates that Velentzas first complained of and was treated for chest pain on November 10, 2005. See Sullivan Decl. (Att. A to Ex. 2) ¶ 19. To the extent Velentzas alleges he was not treated for tinnitis in 2005, those claims are barred in part. Velentzas states that he has had a history of hearing loss and a "permanent buzzing" in his left ear since 2005.

See First Am. Compl. (Doc. No. 13) at 6. The record demonstrates that Velentzas was treated for an ear infection on August 15, 2005.

See Sullivan Decl. (Ex. 2) ¶¶ 44-46. To the extent that this event is related to his claim regarding hearing loss and tinnitis, this portion of the claim should be dismissed. (Doc. 45, pp. 10-11).

We must consider when Plaintiff's present Bivens claims accrued. In Ricketts v. AW of UNICOR, 2009 WL 2232467, *9 (M.D. Pa.), the Court stated:

In applying the statute of limitations to a Bivens-type civil rights action, a federal court must employ the appropriate state statute of limitations which governs personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 457 n. 9 (3d Cir.1996); King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir.2000) (noting that the statute of limitations for a § 1983 action and a Bivens action are both governed by the state statute of limitations for personal injury claims). The Wilson Court clarified that courts considering federal civil rights claims "should borrow the general or residual [state] statute for personal injury actions." Owens v. Okure, 488 U.S. 235, 250, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Little v. Lycoming County, 912 F.Supp. 809, 814 (M.D.Pa.1996). Pennsylvania's applicable personal injury statute of limitations is two years. See 42 Pa. Cons.Stat. Ann. § 5524(7); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir.1993).

However, the date when a cause of action accrues is still a question of federal law. Smith v. Wambaugh, 887 F.Supp. 752, 755 (M.D.Pa.1995). Under federal law, a civil rights cause of action accrues, and the statute of limitations begins to run, when the plaintiff "knew or should have known of the injury upon which [the] action is based." Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir.1998) (section 1983 action). The limitations period begins to run if a plaintiff has sufficient notice to place him on alert of the need to begin investigating. Gordon v. Lowell, 95 F.Supp.2d 264, 272 (E.D.Pa.2000). Under Gordon, a "claim accrues upon knowledge of the actual injury, not that the injury constitutes a legal wrong." Id.

See also Joyner v. BOP, 2005 WL 3088371(two-year SOL for Bivens claim in Pennsylvania).

Granting a Rule 12(b)(6) motion based on the statute of limitations grounds is proper if the complaint facially shows non-compliance with the limitations period." Hruska v. Vacation Charters, Ltd., 2009 WL 223865, *2 (M.D. Pa.)(citation omitted).

Plaintiff's First Amended Complaint in the present action was effectively filed on November 28, 2007. (Doc. 13). The SOL with respect to Plaintiff's instant constitutional claims that occurred prior to November 28, 2005 expired, and we will recommend that Plaintiff's pre-November 28, 2005 claims as against the four remaining Defendants, which are detailed above in our quote from Defendants' Brief (Doc. 45, pp. 10-11), be dismissed as time barred unless equitable tolling principles excuse Plaintiff's untimely Bivens claims.

In Ricketts v. AW of UNICOR, 2009 WL 2232467, *10, the Court stated:

A district court may apply any relevant state equitable tolling principles, unless they conflict with federal law and policy. Lake v. Arnold, 232 F.3d 360, 368-70 (3d Cir.2000). The Third Circuit has found that [e]quitable tolling is appropriate in three general scenarios:

(1) where a defendant actively misleads a plaintiff with respect to her cause of action; (2) where the plaintiff has been prevented from asserting her claim as a result of other extraordinary circumstances; or (3) where the plaintiff asserts her claims in a timely manner but has done so in the wrong forum.

Id. at 370 n. 9.

See also Emel v. Singleton, 2010 WL 1005264, *6 (M.D. Pa.).

We agree with Defendants (Doc. 45, pp.12-13) and find no extraordinary circumstances prevented Plaintiff from timely filing his instant Bivens claims. We find that equitable tolling principles do not apply in this case. We find that in the exercise of reasonable diligence, Plaintiff could have discovered essential information regarding his pre-November 28, 2005 Bivens claims and he could have timely filed his action regarding these claims within the two-year SOL. In fact, as noted above, Plaintiff Velentzas previously filed two actions with this Court, to wit: Civil Action No. 4:CV-04-0615, filed on March 23, 2004 and closed on March 17, 2005; and Civil Action No. 4:CV-05-1074 (§2241 habeas petition), filed May 26, 2005, and closed on October 4, 2005. In Civil Action No. 4:CV-04-0615, Plaintiff filed a prior Bivens action pursuant to 28 U.S.C. § 1331 on March 23, 2004, naming as Defendants six (6) individuals employed at FCI-Allenwood and two individuals employed by the Federal Bureau of Prisons ("BOP"). Plaintiff claimed that he did not receive proper dental care at the prison and he requested the Court to help him obtain proper dental care from an outside dentist and someone other than Defendant Dr. Thomas, the prison dentist. This case proceeded on Plaintiff's Eighth Amendment claims of denial of proper dental care against Defendant Dr. Thomas. On February 16, 2005, we issued an R&R in Plaintiff's 04-0615 case and recommended that the United States be substituted as the sole party Defendant in this action pursuant to the Notice of Substitution, and that Defendant Dr. Thomas be dismissed. We also recommended that Plaintiff's 04-0615 case be dismissed as to the remaining Defendant United States. Thus, we recommended that the Defendant's Motion to Dismiss be granted. The Court then closed Plaintiff's 04-0615 case on March 17, 2005.

Plaintiff argues that his pre-November 28, 2005 dental claim is not time barred since he alleges continuing violations of his Eighth Amendment rights with respect to this claim. Plaintiff does not contend there are continuing violations of his rights with respect to his denial of proper medical care claims regarding his other conditions. (Doc. 48, pp. 2-3). Specifically, Plaintiff states that his dental claim is continuing since "to date, the Plaintiff still does not have any proper fitting dentures and the Defendants have done nothing in their capacities to attempt to resolve this fact." (Id., p. 2). Plaintiff also argues that he is entitled to equitable tolling with respect to all of his pre-November 28, 2005 claims since he did not exhaust his BOP administrative remedies in this case until May 31, 2007, and thus could not raise them in a civil rights action until he completed the exhaustion process. (Id).

As stated above, we find no extraordinary circumstances prevented Plaintiff from timely filing his instant pre-November 28, 2005 Bivens claims. We find that in the exercise of reasonable diligence, Plaintiff could have discovered essential information regarding his pre-November 28, 2005 Bivens claims and that Plaintiff was required to file a BP-9 regarding his pre-November 28, 2005 Bivens claims within 20 of their occurrence. See Womack v. Smith, 310 Fed.Appx. 547, 550 (3d Cir. 2009) (inmate must file grievance under BOP procedures within 20 days of incident). Plaintiff has not stated a valid reason for the delay in filing a grievance request. Thus, we fail to see how Plaintiff could not have exhausted his pre-November 28, 2005 Bivens claims until May 31, 2007.

Therefore, we find that Plaintiff's pre-November 28, 2005 Bivens claims are time barred, and we will recommend that they be dismissed. Additionally, as discussed below, even if Plaintiff's pre-November 28, 2005 claims are not time barred, the undisputed evidence shows that Defendants did not violate his Eighth Amendment rights with respect to these claims.

Even if Plaintiff has alleged continuing violation of his Eighth Amendment rights with respect to his pre-November 28, 2005 dental claim, and even if his pre-November 28, 2005 medical claims should be equitably tolled, as discussed below, the undisputed evidence shows that Defendants did not violate Plaintiff's Eighth Amendment rights with respect to all of his claims. In fact, Plaintiff alleges in his First Amended Complaint the he "was totally disabled from April 2005, till May 2006, as he [could] not eat and/or chew." (Doc. 13, p. 6). However, Plaintiff's medical records, which are not disputed, show that in May 2005, Plaintiff weighed 191 pounds, in June 2005, he weighed 198 pounds, in September 2005, he weighed 208 pounds, in December 2005, he weighed 218 pounds, in March 2006, he weighed 215-216, pounds, and in September 2006, he weighed 212 pounds. (Doc. 45-4, Ex. 2, ¶'s 8.-31.). Thus, the undisputed evidence shows that Plaintiff gained weight during the relevant time and that his weight then remained relatively constant.

2. Defendant HSA Coleman

Defendants argue that Plaintiff fails to allege any personal involvement by Defendant HSA Coleman with respect to his Eighth Amendment claims and that Coleman should be dismissed. (Doc. 45, pp. 13-15).

In Saltzman v. Independence Blue Cross, 2009 WL 1606887, *4 (E.D. Pa.), the Court stated:

The Court in Iqbal explained that, although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted. Id. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555); see also Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.2008) ("We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." (citing Twombly, 550 U.S. at 556 n. 3)). Accordingly, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).

We find insufficient personal involvement of Defendant Coleman with respect to all of Plaintiff's claims. Also, as Defendants point out (Id.), Plaintiff cannot name Defendant Coleman as a Defendant in this § 1331 civil rights action based solely on respondeat superior, as he is attempting to do.*fn11

As mentioned, it is well established that personal liability in a civil rights action cannot be imposed upon a prison official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Sutton v. Rasheed, 323 F.3d 236, 249-250 (3d Cir. 2003); Mackey v. Strada, 2008 WL 4210468, * 5. We find that Plaintiff's First Amended Complaint lacks any specific allegations of liability under § 1331 as against Defendant Coleman since it fails to state the personal involvement of this Defendant with respect to a violation of any constitutional right.

In O'Connell v. Sobina, 2008 WL 144199, * 21 (W.D. Pa.), the Court stated:

Personal involvement by a defendant can be shown by alleging either personal direction or actual knowledge and acquiescence in a subordinate's actions. Rode, 845 F.2d at 1207. "Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Id. See also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Moreover, in order to maintain a claim for supervisory liability, a plaintiff must show: 1) that the supervising official personally participated in the activity; 2) that the supervising official directed others to violate a person's rights; or 3) that the supervising official had knowledge of and acquiesced in a subordinate's violations. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).

Based on the above quoted allegations in Plaintiff's First Amended Complaint, Defendant Coleman is not sufficiently stated to have been personally involved with any of Plaintiff's constitutional claims. (Doc. 13, pp. 6-7). Moreover, as Defendants state (Doc. 45, p. 14), their undisputed evidence shows that Defendant Coleman did not personally examine or treat Plaintiff at any time relevant to this case. (Doc. 46, ¶'s 15.-192. and Doc. 45-4, Ex. 2, Att. A).

Recently, the Supreme Court in Iqbal repeated the personal involvement necessary in a §1983 action. In Innis v. Wilson, 2009 WL 1608502, *2 (3d Cir. 2009), the Court, citing Iqbal, stated:

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, No. 07-1015, slip op. at 14 (May 18, 2009) [129 S.Ct. 1937 (2009)] (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Innis's allegation against Wilson also fail because Innis is attempting to establish liability based on supervisory liability. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (liability cannot be predicated solely on the operation of respondeat superior, as a defendant must have personal involvement in a civil rights action). Innis does not allege that Wilson had personal knowledge of his injury and subsequently acted with deliberate indifference. Spruill, 372 F .3d at 236. Accordingly, these claims were properly dismissed."

Plaintiff argues in his opposition Brief (Doc. 49, pp. 3-7) that he has sufficiently alleged the personal involvement of Defendant Coleman with respect to his Eighth Amendment claims. In his Brief, Plaintiff details incidents in his medical care for his conditions in which he now contends Defendant Coleman was personally involved. Initially, Plaintiff's contentions in his Brief are not alleged in his First Amended Compliant, and it is well-settled that Plaintiff cannot amend his pleading via his brief. See Matthews v. Villella, Civil No. 08-0964, M.D. Pa. (2-6-09 Memorandum, slip op. p. 16)..

Also, in reviewing Plaintiff's claims against Defendant Coleman stated in his First Amended Complaint (Doc. 13, pp. 6-7), along with Plaintiff's medical records, we find that Defendant Coleman was not sufficiently involved with Plaintiff's medical care and dental care to render him liable with respect to any of Plaintiff's Eighth Amendment claims. Plaintiff's medical records show that the medical staff as USP-Canaan were personally responsible for his care, and not Defendant Coleman, who as HSA had a supervisory position at the prison. We agree with Defendants that Plaintiff is attempting to hold Defendant Coleman liable based on respondeat superior.

Thus, we will recommend that Defendant HSA Coleman be dismissed with prejudice from this case.*fn12

3. Eighth Amendment Claims against Defendants PA Fasciana, PA Tucker and Dr. Bhatti

We find that the undisputed evidence shows that the remaining three Defendants, PA Fasciana, PA Tucker and Dr. Bhatti, were not deliberately indifferent to Plaintiff's serious medical and dental needs. Based on their evidence, Defendants state as follows:

In the instant case, Velentzas fails to show that his Eight

Amendment rights were violated. His first term of imprisonment at USP Canaan lasted about 45 months - - from March 10, 2005 through September 17, 2008. The record shows that during that time, Velentzas was examined, monitored, and treated on a regular basis for numerous physical ailments. He was sent to outside consulting doctors on several occasions. He received two eye surgeries, multiple EKG's, blood tests, an MRI, a hearing test, oral surgery and dentures, a full evaluation for removal of benign lipoma, a colonoscopy, and all the medicine he needed to treat the ravages of old age. Health Services staff even clipped his toenails for him. During this time, Velentzas' body weight remained at or near 200 pounds, demonstrating that he clearly remained well-nourished during the period fo years when he claims he could not eat or chew. The only time he failed to receive needed medical care was when he failed to appear for scheduled appointments or when he chose not to take his prescribed medications as directed.

In essence, the remaining claims appear to express Velentzas' disagreement with a portion of the treatment he did receive, i.e., that medical staff should have provided him with partial dentures at an earlier date; that the dentures he did receive should be fixed or replaced; that he should have hearing aids and specific hearing tests; and that he should be treated by an outside cardiologist. (Doc. 45, pp. 16-17).

The complete and voluminous history of Plaintiff's medical and dental care during the relevant times of this case while Plaintiff was confined at USP-Canaan is detailed in HSA Sullivan's Declaration submitted by Defendants. (Doc. 45-4, Ex. 2. ¶'s 4.-74.). All of HSA Sullivan's averments are supported by citation to Plaintiff's medical records, which are attached to her Declaration. (Id., Att. A). Plaintiff has not submitted any evidence to contradict either Sullivan's Declaration or his medical records. Plaintiff merely objects to certain statement of facts contained in Defendants' SMF without offering any evidence to support his objections. (Doc. 49). As stated, we accept Defendants' SMF and their evidence as undisputed.

A review of HSA Sullivan's Declaration clearly shows that the remaining three Defendants, PA Fasciana, PA Tucker and Dr. Bhatti, were not deliberately indifferent to Plaintiff's serious medical and dental needs.

In Moran v. Donate, 2009 WL 1290601, *4 (M.D. Pa.), the Court stated:

To demonstrate a prima facie case of Eighth Amendment cruel and unusual punishment based on the denial of medical care, as is alleged here, a plaintiff must establish that defendants acted "with deliberate indifference to his or her serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir.1993). There are two components to this standard: First, a plaintiff must make an "objective" showing that the deprivation was "sufficiently serious," or that the result of the defendant's denial was sufficiently serious. Additionally, the plaintiff must make a "subjective" showing that defendant acted with "a sufficiently culpable state of mind." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir.2002). The "deliberate indifference to serious medical needs" standard is obviously met when pain is intentionally inflicted on a prisoner, when the denial of reasonable requests for medical treatment exposes the inmate to undue suffering or the threat of tangible residual injury, or when, despite a clear need for medical care, there is an intentional refusal to provide that care.

See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004) (quoting White v. Napoleon, 897 F.2d 103, 109 (1990)); Monmouth County Corr. Inst. Inmates v. Lensario, 834 F.2d 326, 346 (3d Cir.1987).

Accordingly,"[a]s long as a physician exercises professional judgment this behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990). Further, a doctor's disagreement with the professional judgment of another doctor is not actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir.1990). In sum, negligence, unsuccessful medical treatment, or medical malpractice do not give rise to a § 1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.1993). Rather, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners. Durmer, 991 F.2d at 67.

The record in this case, which is undisputed and detailed by HSA Sullivan (Doc. 45-4, Ex. 2, pp. 2-23), shows that Plaintiff was treated extensively by the medical staff at USP-Canaan, including Defendants PA Fasciana, PA Tucker and Dr. Bhatti, with respect to his pre-November 28, 2005, claims and his claims thereafter for his dental conditions and his medical conditions, namely, chest pain and dizziness, and hearing problems in both ears. The record shows that Defendants PA Fasciana, PA Tucker and Dr. Bhatti were not deliberately indifferent to any of Plaintiff's serious medical needs. (Id.). As stated, Plaintiff has not submitted any evidence to show that Defendants denied him medical treatment which caused him undue suffering. Nor has Plaintiff offered any evidence to create a disputed issue of fact as to whether Defendants were deliberately indifferent to an excessive risk to his health.

Plaintiff states that if the Court finds he "has not set forth specific evidence to substantiate his claims," then he requests the Court, pursuant to Rule 56(f), "to allow full discovery." (Doc. 48, pp. 11-12). At the outset, as stated, Plaintiff has not offered any evidence to support his claims and to dispute Defendants' evidence. Also, we find that Plaintiff has had ample time to submit any evidence he wanted to submit to support his claims. Plaintiff 's case was initially filed in July 2007. Defendants' dispositive motion was filed on February 16, 2010. Plaintiff's case has now been pending for over three years and he was free to conduct any discovery he desired during this time. Simply because Plaintiff failed to engage in discovery for over three years does not entitle him to delay a decision on Defendants' dispositive motion filed over six months ago. Plaintiff's dilatory conduct does not entitle him to relief under Rule 56(f) in this case.

Therefore, we will recommend that Defendants' Summary Judgment Motion be granted with respect to Defendants PA Fasciana, PA Tucker and Dr. Bhatti.

VII. Recommendation.

Based on the foregoing, it is respectfully recommended that Defendants' Motion to Dismiss and for Summary Judgment (Doc. 40) be granted with respect to all of Plaintiff's Eighth Amendment claims against them.*fn13 Also, it is recommended that this case be closed.

THOMAS M. BLEWITT United States Magistrate Judge

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 31 , 2010.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

THOMAS M. BLEWITT United States Magistrate Judge


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