United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, United States Magistrate Judge
Plaintiff Shemtov Michtavi, a prisoner currently incarcerated at Ayalon Prison in Ramla, Israel, filed this Bivens action on June 22, 2012. (Doc. 1). At the time he filed the complaint, Plaintiff was incarcerated at the Allenwood Low Security Federal Correctional Institution located in White Deer, Pennsylvania (“FCI Allenwood Low”). This civil rights action was filed pursuant to 28 U.S.C. § 1331 and included claims against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq.
Pursuant to the Prison Litigation Reform Act, this Court screened both the original (Doc. 1) and amended complaint (Doc. 41) under 28 U.S.C. § 1915A. The remaining claim in this case is Plaintiff’s Eighth Amendment deliberate indifference to a serious medical need claim against the following Defendants in their individual capacities: William Scism, former Warden of FCI Allenwood Low; D. Spotts, former Assistant Health Services Administrator (AHSA) and medical supervisor at FCI Allenwood Low; Dr. J. Miller, supervising physician at FCI Allenwood Low; and K. Mutchler, Physician Assistant (PA) at FCI Allenwood Low. Pending before this Court is Defendants’ motion to dismiss and for summary judgment. (Doc. 58).
I. Procedural History
On June 22, 2012, Plaintiff initiated this action while an inmate at FCI Allenwood Low. (Doc. 1). Plaintiff was incarcerated at FCI Allenwood Low while serving a twenty (20) year sentence imposed in November 2004 by the United States District Court for the Southern District of Florida. See United States v. Michtavi, Case No. 1:02-CR-20030-CR-UUB (S.D. Fla. Nov. 23, 2004); (Doc. 41, p. 3). On October 9, 2012, this Court reviewed and screened Plaintiff’s original complaint pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and issued a Report and Recommendation. (Doc. 31). Per this Court’s January 30, 2013 Order (Doc. 38), several of the claims were dismissed and on February 28, 2013, Plaintiff filed an amended complaint. (Doc. 41). On March 28, 2013, this Court screened Plaintiff’s amended complaint and issued a Report and Recommendation. (Doc. 44). Per this Court’s May 16, 2013 Order (Doc. 46), the only remaining claim in this action is Plaintiff’s Eighth Amendment claim against Defendants Scism, Spotts, Miller, and Mutchler.
On November 8, 2013, Defendants filed a motion to dismiss and for summary judgment. (Doc. 58). On December 13, 2013, Defendants filed a brief in support (Doc. 62), a statement of material facts (Doc. 63), and a table of authorities and contents. (Doc. 64). On April 24, 2014, Plaintiff filed a brief in opposition to the motion (Doc. 71), and his agreement and oppositions to Defendants’ statement of material facts. (Doc. 72). On May 13, 2014, Defendants filed a reply brief. (Doc. 76). This matter is now ripe for disposition.
On January 20, 2010, Plaintiff received an operation on his prostate by an outside facility doctor, Dr. Chopra. (Doc. 41, p. 6). As a result of the operation, Plaintiff alleges that he suffered, and continues to suffer, from a condition called retrograde ejaculation.
Plaintiff states that in January 2011, he advised both Defendant Dr. Miller, the supervising physician at FCI Allenwood, and Dr. Chopra that he was suffering from retrograde ejaculation as a result of the January 20, 2010, surgery. On January 13, 2011, Dr. Chopra examined Plaintiff and prescribed him the medication Pseudoephedrine. (Doc. 41, p. 9; Doc. 1-2, p. 5). Plaintiff states that this was in response to his complaints of delayed and decreased ejaculation. (Doc. 41, p. 9; Doc. 1-2, p. 5). Plaintiff explains that Dr. Chopra told him that there was a hole in his prostate which was not closed, and the medication would help to close the hole and restore full sexual function. (Doc. 1-2, p. 9). According to Dr. Chopra’s examination notes, he did not document any clinical basis for his prescription recommendation of Pseudoephedrine. (Doc. 1-2, p. 10).
On January 26, 2011, Plaintiff met with Dr. Miller and discussed his ejaculation issue with him, and requested the Pseudoephedrine that was prescribed by Dr. Chopra. (Doc. 1-2, p. 10). A non-formulary request was submitted for Pseudoephedrine on January 26, 2011, and the request was denied on January 28, 2011 by the Clinical Director because the treatment of sexual dysfunction is not a medical necessity in the Federal Bureau of Prisons (BOP). (Doc. 1-2, pp. 5, 10). Plaintiff submitted an Inmate Request for Administrative Remedy on February 3, 2011, regarding this issue. (Doc. 1-2, pp. 2-4). On February 15, 2011, Defendant Scism responded to the Inmate Request and stated that: “It is the Bureau of Prison’s position that the treatment of a sexual dysfunction is not medically necessary, and based on current practice guidelines, medical providers are not to talk to inmates about ejaculation, since it is a prohibited sexual act.” (Doc. 1-2, p. 5). Plaintiff then filed an appeal of Defendant Scism’s response and the appeal was denied.
On March 8, 2011, Plaintiff states that he handed Defendant Spotts an “Inmate Request to Staff” form complaining of his injuries and his need for medical treatment. (Doc. 41, p.11). Plaintiff claims that Spotts failed to order treatment. (Doc. 41, p. 11).
On July 14, 2011, Plaintiff saw Dr. Chopra for a post-surgery follow-up, and they discussed Defendants’ failure to provide the Pseudoephedrine. Dr. Chopra then recommended a different medication for Plaintiff’s retrograde ejaculation. Plaintiff states that Defendants again refused to provide any medication prescribed by Dr. Chopra for his condition. (Doc. 41, p. 9). According to Dr. Miller’s affidavit, on July 14, 2011, Dr. Chopra recommended the medication Elavil to treat the decreased ejaculation. (Doc. 63-1, ¶ 11). This medication was never ordered. (Doc. 63-1, ¶ 11). Dr. Miller states that it was his clinical judgment that it was not necessary to treat the delayed ejaculation condition because sexual activity by inmates is prohibited. (Doc. 63-1, ¶ 11). Dr. Miller determined it was not clinically necessary to treat the decreased ejaculation because Plaintiff was incarcerated. (Doc. 63-1, ¶ 12).
Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs because they failed to provide him with medication for his retrograde ejaculation. (Doc. 41, pp. 6-14). Plaintiff further alleges that Defendants were aware of his post-surgery condition and that they deliberately refused to provide him with the prescription medications twice prescribed by Dr. Chopra. Plaintiff claims that these actions on the part of Defendants constitute deliberate indifference to a serious medical need and therefore Defendants violated his Eighth Amendment right.
A. Bivens Standard
Plaintiff’s instant case is a 28 U.S.C. § 1331 civil rights action under Bivens. A Bivens action is analogous to a civil rights action under 42 U.S.C. § 1983; in Naranjo v. Martinez, No. 08-1755, 2009 WL 4268598, at *6 (M.D. Pa Nov. 24, 2009), the Court stated:
Bivens creates no substantive rights, 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, 98 S.Ct. 2894, 57 L.Ed.2d 895 (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. Philip 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. Jan.9, 2007). To state a claim under Bivens, the ...