The opinion of the court was delivered by: (Judge Caputo)
On October 12, 2010, Plaintiff Ronald L. Tsosie, a federal prisoner incarcerated at the Canaan United States Penitentiary (USP-Canaan), in Waymart, Pennsylvania, filed this Bivens*fn1 action pursuant to 28 U.S.C. § 1331. Named as Defendants are Bureau of Prisons (BOP) and the following BOP employees: Angela Dunbar, Associate Warden; Barbara Sullivan, Health Services Administrator (HSA); and David Mrad, Lieutenant of the Special Housing Unit (SHU).
Mr. Tsosie presents two Eighth Amendment claims. The first is a conditions of confinement claim, and the second sets forth a claim of deliberate indifference to his various medical ailments. Doc. 1, Compl. He names all Defendants in their individual and personal capacities, and seeks injunctive as well as monetary relief.
Presently before the Court is the BOP Defendants' Motion to Dismiss, or in the alternative, Motion for Summary Judgment. Doc. 15. Mr. Tsosie has filed a response to the motion, and Defendants have filed a reply brief.*fn2 Thus, the motion is ripe for disposition. Also pending before the Court is Plaintiff's Motion for Judicial Notice to include additional exhibits in support of his opposition to Defendants' motion. Doc. 37. For the reasons set forth below, the Defendants' motion for summary judgment will be granted and Plaintiff's Motion for Judicial notice will be denied.
A. Allegations of the Complaint.
At all times relevant to the Complaint, Mr. Tsosie was housed in USPCanaan's SHU. Doc. 1, Compl. Mr. Tsosie alleges that Lt. Mrad "has a personal unwritten policy in depriving inmates of all their property and mattress." Doc. 20, Defs.' Statement of Material Facts (DSMF) ¶1. Lt. Mrad allegedly ordered Mr. Tsosie's property and mattress removed from his cell and did not returned them for 14 hours. Id. ¶2. As a result, "Plaintiff had to lay on cold steel with only a T-shirt and boxers, socks this whole time." Doc. 1 at p. 3.*fn3 Plaintiff also claims he was denied pain medication during this period of time. DSMF ¶2. Lt. Mrad also had the custom of requiring inmates who damage clothes or bedding to "be put on paper (e.g. blanket, sheet and clothes) for a period of 4 days." Id. ¶5.
Mr. Tsosie also claims he was denied medical treatment for an injured left shoulder, Hepatitis C, and a glandular condition. Id. ¶6. "Since May 09," Mr. Tsosie has tried unsuccessfully to get proper treatment for his shoulder injury. Id. ¶7. Finally, when he received an MRI of his shoulder, it revealed an injury. Id. As for his Hepatitis C condition, Mr. Tsosie alleges that a physician told him in February 2010 that he needed a liver biopsy which has yet to be performed. Id. ¶8. With regard to his gland problem, Mr. Tsosie states that for almost two years, an Ear Nose and Throat (ENT) doctor told him that he needs an MRI in advance of having a gland removed. Id. ¶9. However, "Health Services" at USP-Canaan "took it upon themselves to change" the doctor's order. Id. When Mr. Tsosie sent a request slip to the medical department inquiring as to when he would receive his MRI, Assoc. Warden Dunbar responded that "it would be done" in December 2009. Id. However, as of the date of filing the Complaint, it was yet to be performed. Id.
HSA Sullivan is named as a defendant because whenever Mr. Tsosie inquired about his medical needs, she would act "annoyed" and "roll her eyes" at him and "just say anything that don't even happen." Id. ¶10. Finally, Mr. Tsosie alleges that on one occasion a non-defendant gave him the "wrong medication" and as a result, he suffered an adverse reaction. Id. ¶11.
B. Mr. Tsosie's Non-Medical Claims.
Mr. Tsosie arrived at USP-Canaan on December 22, 2008, and was assigned to the SHU pending the investigation of an incident that occurred at the transferring facility. DSMF ¶13 and ¶15. He remained in the SHU from December 22, 2008, until April 29, 2009. Id. ¶16. He returned to the SHU briefly on May 5, 2009, and then again from May 17, 2009, until March 23, 2010. Id. ¶17. He was again housed in the SHU from March 29, 2010, until November 10, 2010, when he was transferred to USP-Lewisburg.*fn4 Id. ¶¶17-18.
During his stay at USP-Canaan, Mr. Tsosie was released on authorized writ, or temporary absence from the facility, on at least three occasions: (1) October 13, 2009 - October 23, 2009; (2) March 23, 2010 - March 29, 2010; and (3) June 25, 2010 - July 6, 2010. See Doc. 21, Defs.' Exhs. pp. 6, 15, 61, 68, and 77; and Doc. 21-1, Defs.' Exhs. at p. 1.
During all times relevant to this action, David Mrad was assigned as the Lieutenant in the SHU. DSMF ¶14. At least once a week, routine cell searches were completed in the SHU. Id. ¶18. The searches included putting the inmate's mattress through the institution's scanner in search of any metals or weapons. Id.
¶20. On November 25, 2009, Mr. Tsosie became agitated when his mattress was removed for scanning during a routine cell search. Id. ¶21. After his mattress was scanned, it was returned to him. Id. ¶22.
There is a dispute of fact as to when Mr. Tsosie's mattress was returned to him. According to Lt. Mrad, and CO Stuffle (non-defendant), Plaintiff's mattress was returned to him within a few hours but he opted not to use it, and elected to sleep on the metal portion of the bed.*fn5 Id. ¶¶22-23; Doc. 34-1, Pl.'s Exhs. at p. 65. Mr. Tsosie counters that he was without his property and mattress from 8 a.m. until 10 p.m. Doc. 36, Tsosie Decl. at p. 5. He denies refusing to use his mattress or voluntarily laying on the steel frame. Id. He suggest he would not do this because it would be painful as he suffers from degenerative joint disease, disc disease, and a bone spur and labral tear in his left shoulder. Id. *fn6
Mr. Tsosie was never placed on the alternative paper clothing program. DSMF ¶ 28.
C. Mr. Tsosie's Medical Claims
1. Mr. Tsosie's Painful Left Shoulder.
On May 17, 2009, Mr. Tsosie, in concert with two other inmates, participated in the assault of another inmate. Doc. 34-1 at p. 28. He was seen by medical staff the same day and reported that he "fell down the steps." Doc. 21-1 at p. 51. He was treated for a small superficial abrasion of his left index finger. Id.
On June 1, 2009, while in the SHU, Mr. Tsosie complained of a bruised and swollen leg, and an inability to lift his arm over his head. DSMF ¶29. He was prescribed Naproxen, a pain medication, three times a day for seven days. Id. ¶31; Doc. 21-1 at p. 49. On June 10, 2009, Mr. Tsosie was seen again in the SHU for complaints of left shoulder and left leg pain. DSMF ¶32. X-rays were ordered. Id.
¶33. On June 29, 2009, and July 13, 2009, it was noted that Mr. Tsosie's x-rays were pending. Id.
¶34. Although no x-rays were taken yet, on both dates Mr. Tsosie's script for Naproxen was renewed. Doc. 21-1 at pp. 42-43. His script was refilled again on July 20, 2009. Id. at p. 41.
On July 22, 2009, Mr. Tsosie's leg and shoulder were x-rayed, with negative results. DSMF
¶35. On August 10, 2009, although Mr. Tsosie's x-rays were negative, and a recent CT scan of his neck and spine showed no significant findings, an MRI of his shoulder was ordered due to his continued complaints of pain. Id.
¶¶36-37. On August 14, 2009, Mr. Tsosie's Naproxen prescription was again renewed. Doc. 21-1 at p. 38. On August 21, 2009, during an infections disease clinic visit, Mr. Tsosie voiced a complaint of shoulder discomfort. DSMF
¶38. The MRI of his shoulder was pending. Id.
¶39. On September 24, 2009, Mr. Tsosie's Naproxen script was refilled and it was noted that the MRI of his shoulder was pending. DSMF
¶40; Doc. 21-1 at p. 34. From October 13, 2009, through October 23, 2009, Mr. Tsosie was released from USP-Canaan on a Federal Writ. DSMF
¶41. On October 27, 2009, and November 20, 2009, and December 16, 2009, Mr. Tsosie's Naproxen script was renewed. Doc. 21-1 at pp. 17, 22-24.
On January 21, 2010, during a chronic care visit in the SHU, Mr. Tsosie complained of right shoulder pain. DSMF
¶42. At that time he was given medication renewals of his two psychotropic medications and Naproxen. Doc. 21-1 at p. 14. His Naproxen was renewed again on the following dates: March 19, 2010; April 9, 2010; April 19, 2010; and May 26, 2010. Id. at p. 3; Doc. 21 at pp. 72, 74 and 76. On May 27, 2010, an MRI of Mr. Tsosie' left shoulder revealed acromioclavicular joint degeneration change,*fn7 posterior paralabral cyst and possible labral tear with no evidence of rotator cuff tear. DSMF
¶43. Mr. Tsosie was released again on writ from June 25, 2010, until July 6, 2010. Doc. 21-1 at p. 1.
On November 10, 2010, Mr. Tsosie was transferred from USP-Canaan to USP-Lewisburg. DSMF
¶44. From the time Mr. Tsosie complained of
shoulder pain, he was provided with anti-inflammatories,*fn8
x-rays, and an MRI. Id.
¶45. The possible labral tear indicated on his MRI may indicate a need for surgery in the future; however, there was no indication for immediate surgery ...