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Hemingway v. Gosa

United States District Court, M.D. Pennsylvania

August 16, 2019

BOBBY T. HEMINGWAY, Plaintiff
v.
S. GOSA, et al., Defendants

          MEMORANDUM

          KANE JUDGE

         Before the Court is pro se Plaintiff Bobby T. Hemingway (“Plaintiff”)'s amended complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Defendants S. Gosa (“Gosa”), Ryan Parkyn (“Parkyn”), J. Walker (“Walker”), E. Stahl-Santos (“Stahl-Santos”), S. White (“White”), Catricia Howard (“Howard”), J. Potope (“Potope”), M. D. Carvajal (“Carvajal”), Ian Connors (“Connors”), and Dr. Thomas Cullen (“Cullen”). (Doc. No. 12.) For the reasons set forth below, the Court will dismiss Plaintiff's claims against Defendants Carvajal and Conners and direct service of Plaintiff's amended complaint on the remaining Defendants.

         I. BACKGROUND

         On April 3, 2019, Plaintiff, who is currently incarcerated at the Federal Correctional Institution Allenwood in White Deer, Pennsylvania (“FCI Allenwood”), filed the instant Bivens action against Defendants Gosa, Parkyn, and Walker. (Doc. No. 1.) He also filed a motion for leave to proceed in forma pauperis. (Doc. No. 2.) In his complaint, Plaintiff alleged that Defendant Gosa had “[ignored] the fact that [his] illness and joint conditions prohibit[] him from climbing stairs, top bunks and long distances.” (Doc. No. 1 at 2.) Plaintiff further maintained that Defendant Gosa had prescribed pain medications that do not work. (Id. at 3.) As to Defendant Parkyn, Plaintiff alleged that he has ignored his complaints about “his pain and illness.” (Id.) Plaintiff contended that Defendant Parkyn has also ignored the conflict between him and Defendant Gosa, as Defendant Parkyn “continues to send . . . Plaintiff to [Defendant Gosa] without investigating.” (Id.) Finally, Plaintiff alleged that Defendant Walker has “disregarded the fact that [he has an] illness that causes joint swelling and stops [him] from walking.” (Id.) According to Plaintiff, Defendant Walker claimed that Plaintiff “refused to come to the [lieutenant's] office when in fact . . . [P]laintiff could not walk.” (Id.) He maintained that Defendant Walker “refused to listen and put [him] in [the] [Special Housing Unit (“SHU”)].” (Id.)

         In an Administrative Order dated April 8, 2019, the Court noted that Plaintiff had used an outdated form for his motion for leave to proceed in forma pauperis and directed him to either submit the full $400.00 filing fee or an updated motion for leave to proceed in forma pauperis within thirty (30) days. (Doc. No. 5.) Plaintiff did not comply. Accordingly, in an Order dated May 16, 2019, the Court dismissed this action without prejudice. (Doc. No. 6.) A month later, the Court received a renewed motion for leave to proceed in forma pauperis and prisoner trust fund account statement from Plaintiff. (Doc. Nos. 7, 8.) In a Memorandum and Order dated June 28, 2019, the Court reopened the above-captioned case, vacated its May 16, 2019 Order, granted Plaintiff leave to proceed in forma pauperis, and dismissed his complaint for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Doc. Nos. 10, 11.) Specifically, the Court noted that Plaintiff had not set forth plausible First Amendment retaliation and Fourteenth Amendment due process claims against Defendant Walker and had not set forth plausible Eighth Amendment claims regarding the denial of medical care against Defendants Gosa and Parkyn. (Doc. No. 10 at 5-9.) The Court granted Plaintiff leave to file an amended complaint within thirty (30) days. (Id. at 9-10.)

         The Court received Plaintiff's amended complaint on July 22, 2019. (Doc. No. 12.) In his amended complaint, he states that he was diagnosed with rheumatoid arthritis in 2013. (Doc. No. 12-1 at 1.) He arrived at FCI Allenwood on December 14, 2017. (Id.) Since then, Plaintiff has complained to Defendant Parkyn, a medical supervisor, about his medical issues. (Id. at 2.) In January of 2018, Plaintiff told Defendant Parkyn that he had not received his monthly infusions for five (5) weeks. (Id.) Defendant Parkyn told Plaintiff that “he would look into it.” (Id.) In June of 2018, Plaintiff told Defendant Parkyn that he was having trouble walking up and down steps and the hill, and that he had pain in his ankle and knee. (Id.) Plaintiff also complained of receiving nine (9) processed meals over a three (3)-day period, maintaining that he could not eat these meals due to bacteria in the meats. (Id.) Despite Defendant Parkyn telling Plaintiff that he would ensure that Plaintiff received a special diet, Plaintiff continued to receive the processed meats. (Id.) Plaintiff continued to complaint about trouble walking and told Defendant Parkyn that his unit counselor, Defendant White, was not honoring his bottom bunk pass. (Id.) Plaintiff also informed Defendant Parkyn that his ankle brace did not provide adequate support. (Id.) Defendant Parkyn told Plaintiff that he would ensure that he received another brace, but Plaintiff never did. (Id. at 2-3.) In June of 2019, Plaintiff told Defendant Parkyn that he had not received his medication for three (3) months. (Id. at 3.) Despite these complaints, Plaintiff maintains that Defendant Parkyn did nothing to ensure that Plaintiff received adequate medical care. (Id.)

         As to Defendant Walker, Plaintiff alleges that on December 14, 2018, he was ordered by a unit officer to immediately go to the lieutenant's office. (Id. at 4.) Plaintiff told the unit officer that he could not walk because of ankle swelling and pain. (Id.) Subsequently, three (3) officers came to Plaintiff's cell and told him to “move now.” (Id.) Plaintiff “limped” to the lieutenant's office, where Defendant Walker “yelled” at him about not coming immediately. (Id.) Plaintiff told Defendant Walker about his medical issues, but Defendant Walker told Plaintiff that he “[did] not care what was wrong.” (Id.) He placed Plaintiff in a holding cell and returned with a refusal form.[1] (Id.) Plaintiff told Defendant Walker that he would not sign the refusal form. (Id.) Defendant Walker informed Plaintiff that he would be sent to the Special Housing Unit (“SHU”) for failing to sign. (Id.) Plaintiff maintains that Defendant Walker cancelled his appointment to receive treatment at an outside hospital and kept him in the SHU for seven (7) days without any medication for pain. (Id. at 4-5.)

         Plaintiff raises several allegations against Defendant Gosa, a Physician's Assistant (“PA”) at FCI Allenwood. He maintains that during his first encounter with Defendant Gosa, he refused to look at Plaintiff's medical records. (Id. at 6.) During that visit, which Plaintiff states occurred on January 12, 2018, Defendant Gosa provided Plaintiff with a pass restricting him from working, prolonged standing, sports, and walking certain distances. (Id.) On February 16, 2018, Defendant Gosa gave Plaintiff a pass to have a cell on the bottom level of the housing unit. (Id.)

         On February 21, 2018, Plaintiff saw Defendant Gosa again and told him that he was still “walking up and down a hill and 2 flights of stairs on swollen joints.” (Id.) Plaintiff maintains that Defendant Gosa did nothing even after Plaintiff told him that Defendant White refused to move him to a new cell. (Id.) On March 23, 2018, Plaintiff went to an infusion center, and Defendant Gosa received the “health progress notes stating Plaintiff continues to have pain in all joint[s] such as knee, ankle and elbow.” (Id.) Also that month, Plaintiff told Defendant Gosa that he was unable to walk because of the lack of pain medication. (Id. at 7.)

         On June 7, 2018, Plaintiff and Defendant Gosa talked about the possibility of Plaintiff receiving surgery. (Id. at 8.) Plaintiff told Defendant Gosa that he was still having trouble walking distances and that he was still housed on a top tier. (Id.) Defendant Gosa “brushed [him] off.” (Id.) Subsequently, Defendant Gosa was away on leave. (Id.) During this time, Plaintiff saw an orthopedist and was scheduled to receive surgery. (Id.) Plaintiff saw Defedant Gosa again on January 23, 2019. (Id.) Plaintiff told Defendant Gosa that “the snowy sidewalks and ic[]y hill ha[d] h[i]ndered [him] from getting to his meals and other call outs.” (Id.) Defendant Gosa responded that “he ha[d] nothing to do with that.” (Id.) On May 22, 2019, Plaintiff had surgery on his left knee and was issued a wheelchair. (Id. at 7.) He maintains that he has not received medication since March 24, 2019 and that he did not receive infusions for over three (3) months. (Id.) Plaintiff continued to complain to Defendant Gosa and maintains that Defendant Gosa told him there was “nothing he can do.” (Id.)

         As to Defendant White, a counselor at FCI Allenwood, Plaintiff alleges that he told Defendant White that he had previously been issued a bottom bunk pass while incarcerated at MDC Brooklyn. (Id. at 9.) He maintains that Defendant White refused to move him from his assigned top bunk. (Id.) Plaintiff subsequently obtained a copy of the bottom bunk pass and gave it to Defendant White. (Id.) Defendant White told Plaintiff “to find a cell and he would move him.” (Id.) In April of 2018, Plaintiff “found someone to let him get the bottom bunk.” (Id.) He was not moved until nine (9) days later. (Id.)

         In June of 2018, Plaintiff told Defendant White that he now had a bottom floor pass. (Id.) Defendant White told Plaintiff that if Plaintiff showed him the pass, he would move him to a six- man cell. (Id.) Plaintiff told Defendant White how he had trouble walking up and down the stairs. (Id.) Defendant White told Plaintiff that he “doesn't care about medical.” (Id.) Plaintiff maintains that Defendant White continued to observe him walking up and down the stairs in pain and refused to move him to a bottom tier cell. (Id. at 9-10.)

         As to Defendant Howard, the Warden of FCI Allenwood, Plaintiff maintains that he had spoken to her “several times” about the lack of medical care as well as a possible transfer to a medical facility. (Id. at 11.) When Plaintiff was released from the SHU, he informed Defendant Howard that he had been put in the SHU “for not being able to walk due to his ankle being swollen and in serious pain.” (Id.) He also told her that he had been given medication that was not his and to which he was allergic. (Id.) On June 4, 2019, Plaintiff told Defendant Howard that he had not received medication for two (2) months; she responded that she could not do anything. (Id.) Plaintiff subsequently spoke to Defendant Howard about his complaints on two (2) separate occasions. (Id.) He maintains that Defendant Howard stated that she would “look into it” and also told him to speak to the medical staff about his issues. (Id.)

         As to Defendant Cullen, Plaintiff alleges that on December 19, 2017, he informed Defendant Cullen that he had not received his monthly infusion and that he had been assigned to a top bunk. (Id. at 14.) Defendant Cullen told Plaintiff that he would look into the infusion issue, updated Plaintiff's bottom bunk pass, and “sent [Plaintiff] on [his] way.” (Id.) In October of 2018, Plaintiff saw Defendant Cullen and told him that he needed to be seen because he was “having major issues.” (Id.) Defendant Cullen told Plaintiff to see his PA. (Id.) Plaintiff told Defendant Cullen that his PA had been absent; Defendant Cullen still told Plaintiff to go to sick call. (Id.) Plaintiff did not see Defendant Cullen again for an official visit until November 13, 2018. (Id.) He told Defendant Cullen that ...


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