Opinion
Civil Action 3:20-cv-00963
01-24-2022
EDWARD NELLSON, #31408-007, Plaintiff, v. U.S. FEDERAL BUREAU OF PRISONS, et al., Defendants.
MARIANI, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge.
This federal civil rights case commenced on March 22, 2020, when the plaintiff, Edward Nellson, appearing through counsel, filed a fee-paid complaint in the United States District Court for the District of Columbia, where it was docketed as Case No. 1:20-cv-00788. (Doc. 1.) The case was subsequently transferred for lack of venue to the United States District Court for the Eastern District of Kentucky, where it was docketed as Case No. 7:20-cv-00065. (Doc. 34.) On the plaintiff's motion, various claims were severed and transferred to federal judicial districts where the scattered individual defendants could be found. (Doc. 43.) The plaintiff's Bivens and state-law medical malpractice claims against three defendants-Dr. Dianne Sommer, Dr. Philip J. Hlavac, and PA-C Heather Walters-concerning medical treatment provided (or not provided) while he was incarcerated at USP Canaan, which is located in Wayne County, Pennsylvania, were transferred here. (Id.)
We note that, although the Federal Bureau of Prisons, as the first-named defendant in the original complaint, is listed in the caption of this case, the plaintiff's claim for injunctive relief against the BOP was not transferred to this court. It remained a part of the action retained by the United States District Court for the Eastern District of Kentucky. On November 11, 2020, the plaintiff filed an amended complaint in that action, which omitted the BOP and effectively terminated that claim.
On January 14, 2022, the United States was substituted in place of Dr. Sommer and PA-C Walters with respect to the state-law medical malpractice claims against these defendants, pursuant to the Westfall Act, 28 U.S.C. § 2679(d). (Doc. 96; Doc. 97.) The plaintiff's Bivens claims, however, remained pending against all three individual defendants.
The amended complaint does not assert any state-law tort claims against Dr. Hlavac.
The defendants have filed motions for dismissal or summary judgment. (Doc. 69; Doc. 79.) These motions are fully briefed and are ripe for decision. (Doc. 70; Doc. 77; Doc. 78; Doc. 80; Doc. 81; Doc. 85; Doc. 86.)
I. Background
Edward Nellson is a federal prisoner in the custody of the Federal
Bureau of Prisons (“BOP”). His claims stem from an injury he suffered in March 2016 while incarcerated at the Oklahoma City Transfer Center. Over the next two years, Nellson was transferred to various BOP facilities around the country, repeatedly seeking medical care for his symptoms, which included headaches, seizures, and an inability to walk. In October 2017, an outside neurologist recommended that, because of his inability to walk, Nellson should receive a spinal MRI. That MRI, however, was not performed until March 2018. The MRI revealed what the amended complaint characterizes as “significant” damage to Nellson's spine.
Nellson was incarcerated at USP Canaan between November 2017 and June 2018. Dr. Sommer is the clinical director and a physician providing medical services at USP Canaan; she is a BOP employee. PA-C Walters is a physician assistant providing medical services at USP Canaan; she is a BOP employee. Dr. Hlavac is a neurosurgeon who provided medical services to Nellson under contract with the BOP.
During his in-processing at USP Canaan, the medical department flagged Nellson for a follow up. PA-C Walters reviewed his medical records, but despite his reports of pain and an inability to walk unassisted, she refused to prescribe a walker to Nellson. While at USP Canaan, however, Nellson began to receive physical therapy.
On February 12, 2018, Nellson was seen in medical by Dr. Sommer, who reviewed his medical records. She allegedly ignored “pages and pages” of medical records, including findings by outside physicians, pointing to untreated neurological issues, and she instead characterized Nellson as “a liar.”
On February 16, 2018, Nellson was seen at the door of his housing unit by PA-C Walters. Despite having reviewed Nellson's prior medical records, Walters characterized Nellson's complaints as a “self-reported injury to spinal cord/back that causes him to have difficulty walking.” Despite Nellson's complaints of pain, she declined to prescribe pain medication. Despite Nellson reporting that he had fallen due to his difficulty ambulating unassisted, and a resultant shoulder injury, Walters denied Nellson's request for a push walker, referring him instead for physical therapy, without any prescribed ambulatory assistive device.
On March 22, 2018, Nellson finally received an MRI of his spine. In relevant part, the MRI revealed:
C4-C5: A 2-3 mm central disk extrusion extending 9 mm superiorly and inferiorly from the intervertebral disk space with mild cord compression . . . .
C5-C6: A 2-3 mm central/left paracentral disk herniation/osteophyte complex with mild compression of the anterolateral spinal cord resulting in moderate left neural foraminal stenosis. Mild right neural foraminal stenosis due to osteophyte/disk complex. Mild superimposed broad based disk bulge. Mild loss of disk height.
C6-C7: A 2 mm central disk herniation with mild effacement of ventral sac . . . .(Am. Compl. Ex. 2, Doc. 62-1 (sealed); see also Am. Compl. ¶ 62 (quoting Ex. 2), Doc. 55.)
On May 15, 2018, Nellson presented for a neurology consultation with Dr. Hlavac regarding his March 22, 2018, MRI results. Dr. Hlavac reviewed the MRI results as well as Nellson's previous medical records. Despite Nellson's reported symptoms and the spinal injuries described in the MRI report, Dr. Hlavac “failed to connect the MRI results to Mr. Nellson's symptoms.” Despite reviewing the MRI report and Nellson's other medical records, Dr. Hlavac did not address the injuries to his spine revealed by the MRI. Dr. Hlavac also failed to prescribe any pain medication for Nellson.
Nellson was transferred out of USP Canaan in June 2018. At one of the facilities where he was subsequently incarcerated, Nellson was prescribed pain medication for the first time. Ultimately, at another facility, Nellson was redesignated as a “Care Level 3” and then “Care Level 4” inmate, reflecting an apparent recognition by the BOP of Nellson's functional limitations and his need for significantly enhanced medical services. At the time when the amended complaint was filed, Nellson remained incarcerated at a “Care Level 2” institution, notwithstanding his “Care Level 4” inmate designation.
II. Legal Standards
A. Rule 12(b)(1) Dismissal Standard
The plaintiff bears the burden of establishing the existence of subject matter jurisdiction under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). A defendant may challenge the existence of subject matter jurisdiction in one of two fashions: it may attack the complaint on its face or it may attack the existence of subject matter jurisdiction in fact, relying on evidence beyond the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a complaint as deficient on its face, “the court must consider the allegations of the complaint as true.” Mortensen, 549 F.2d at 891. “In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and ‘undisputably authentic' documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss.” Medici v. Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010). However, when a motion to dismiss attacks the existence of subject matter jurisdiction in fact, “no presumptive truthfulness attaches to plaintiff's allegations, ” and “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Mortensen, 549 F.2d at 891. This case falls into the former category.
B. Rule 12(b)(6) Dismissal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed. App'x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
C. Rule 56 Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” only if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, ” and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that “the evidence presents a sufficient disagreement to require submission to the jury.” Anderson, 477 U.S. at 251-52.
In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.
Both parties may cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial.” Bender v. Norfolk S. Corp., 994 F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).
III. Discussion
The operative complaint in this action is Nellson's four-count amended complaint, in which he seeks monetary damages only. In Count I, Nellson has asserted Bivens claims against each of the three individual defendants-Dr. Sommer, PA-C Walters, and Dr. Hlavac- alleging that, in denying or delaying adequate medical treatment for his spinal injuries, each was deliberately indifferent to Nellson's serious medical needs, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. In Counts II, III, and IV, Nellson has asserted related state-law medical malpractice claims against the United States based on the conduct of Dr. Sommer and PA-C Walters.
Originally, these three counts were asserted against Dr. Sommer and PA-C Walters, but, as noted above, the United States has been substituted in their place under the Westfall Act. The three counts differ only in the degree of culpability alleged-negligence, gross negligence, and recklessness, respectively. We further note that the plaintiff's counseled amended complaint does not assert any state-law claims at all against Dr. Hlavac, and his brief in opposition expressly disclaims any state-law medical malpractice claims against Dr. Hlavac. (
A. FTCA Claims Against the United States
The federal defendants-Dr. Sommer, PA-C Walters, and the United States-have moved to dismiss the state-law tort claims against the United States for lack of subject matter jurisdiction, on the ground that it is entitled to sovereign immunity from suit.
The United States has been substituted in place of defendants Sommer and Walters with respect to these claims, but it's motion to substitute had not yet been granted when this motion was filed and briefed. The federal defendants' briefs, however, expressly anticipated substitution under the Westfall Act, and we find the issue has been adequately raised and briefed in the papers before us.
As the Third Circuit has summarized:
Under the doctrine of sovereign immunity, the United States “is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” “A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.”Cooper v. Comm'r, 718 F.3d 216, 220 (3d Cir. 2013) (quoting Unitped States v. Testan, 424 U.S. 392, 399 (1976), and Lane v. Pena, 518 U.S. 187, 192 (1996)) (citations omitted). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994); see also Perez-Barron v. United States, 480 Fed. App'x 688, 691 (3d Cir. 2012) (per curiam) (addressing claims against the United States, the BOP, and BOP employees).
As noted above, it is the plaintiff's burden to establish the existence of subject matter jurisdiction. See Kehr Packages, 926 F.2d at 1409. Thus, it has been stated that a “party suing the United States must point to an unequivocal waiver of sovereign immunity.” McMillan v. Dep't of the Interior, 907 F.Supp. 322, 325 (D. Nev. 1995); see also Malone v. Bowdoin, 369 U.S. 643, 645 (1962) (claimant must plead source of waiver of sovereign immunity); St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009) (“Plaintiff bears the burden of showing Congress's unequivocal waiver of sovereign immunity.”); Cole v. United States, 657 F.2d 107, 109 (7th Cir. 1981) (“A party who sues the United States has the burden of pointing to a congressional act that gives consent.”); Hatten v. Bledsoe, Civil Action No. 1:13-CV-00209, 2014 WL 5473571, at *6 (M.D. Pa. Aug. 4, 2014) (citing Malone), report & recommendation adopted by 2014 WL 5474071 (M.D. Pa. Oct. 28, 2014). Nellson has failed to identify any statute that provides such a waiver, nor has he pleaded any facts to implicate such a statute. See Quality Mech. Contractors, Inc. v. Moreland Corp., 19 F.Supp.2d 1169, 1172-73 (D. Nev. 1998).
In their brief in support of dismissal, the federal defendants have addressed the potential application of the Federal Tort Claims Act (the “FTCA”). Subject to exceptions not at issue here, the FTCA waives the sovereign immunity of the United States with respect to a variety of state-law tort claims. See 28 U.S.C. § 1346(b)(1). The federal defendants contend that any state-law tort claims against the United States arising out of the time period when Nellson was incarcerated at USP Canaan are barred because he has failed to allege the exhaustion of administrative remedies. As the FTCA provides:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by
the agency in writing and sent by certified or registered mail.28 U.S.C. § 2675(a).
“Fulfillment of the administrative exhaustion requirement is essential to a court's subject matter jurisdiction over a claim under the FTCA. A complaint's failure to allege exhaustion of administrative remedies, therefore, requires dismissal of the complaint for lack of subject matter jurisdiction.” Biase v. Kaplan, 852 F.Supp. 268, 283 (D.N.J. 1994) (citations omitted); see also Gomez v. United States, No. 1:14-CV-01176, 2016 WL 826899, at *3 (M.D. Pa. Mar. 3, 2016) (“Although the exhaustion requirement under the Prison Litigation Reform Act of 1995 is an affirmative defense and can be waived, the exhaustion of administrative remedies under the FTCA is jurisdictional and cannot be waived.”). With respect to Nellson's state-law medical malpractice claims against the United States, arising out of the conduct of BOP employees Dr. Sommer and PA-C Walters, he has indeed failed to allege the exhaustion of administrative remedies, and thus these state-law tort claims against the United States are barred by federal sovereign immunity and we lack subject matter jurisdiction to grant any relief.
Moreover, we note that the federal defendants have filed a declaration by a BOP official confirming that their records reveal that the BOP has not received an administrative tort claim concerning the denial of medical care to Nellson while he was incarcerated at USP Canaan. Nellson has adduced no evidence to the contrary.
Accordingly, we recommend that the plaintiff's state-law medical malpractice claims, set forth in Counts II, III, and IV of the amended complaint, be dismissed for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
B. Bivens Claims Against Dr. Sommer and PA-C Walters
In his amended complaint, Nellson has asserted Bivens claims against Dr. Sommer and PA-C Walters, alleging that these two individual defendants were deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. In particular, Nellson alleges that, despite examining him and reviewing his prior medical records, Dr. Sommer and PA-C Walters ignored his complaints and failed to provide him with adequate medical treatment, including prescribing pain medication and authorizing the use of a walker to assist him in ambulating. He alleges that he was seen by Dr. Sommer in the medical department of USP Canaan on February 12, 2018, and by PA-C Walters at the door of his housing unit at USP Canaan on February 16, 2018.
These defendants have interposed an affirmative defense, asserting that Nellson failed to properly exhaust his administrative remedies before bringing this action. In particular, they note that the only two administrative remedy requests submitted by Nellson concerning the denial of adequate medical care described conduct by medical staff at two facilities where he had been previously incarcerated, USP Hazelton and USP Big Sandy; neither administrative remedy referenced conduct by medical staff at USP Canaan, the facility where he was incarcerated at the time. Nellson has argued in response that these requests were sufficient to exhaust his remedies with respect to the instant claims against Dr. Sommer and PA-C Walters because the BOP's administrative remedy process does not include a “name all defendants” requirement. It is undisputed that Nellson fully exhausted the administrative appeals process with respect to both of these administrative remedy requests; the dispute at hand is whether the instant claims against Dr. Sommer and PA-C Walters fall within the scope of one or both of these administrative remedy requests.
1. Undisputed Material Facts
In support of their motion for summary judgment, and in accordance with the local civil rules, the federal defendants have filed a statement of material facts, supported by references to supporting materials in the record. (Doc. 80.) The plaintiff has not filed any response whatsoever to the moving defendants' statement of material facts. See generally M.D. Pa. L.R. 56.1 (requiring a party opposing summary judgment to file “a separate, short and concise statement of the material facts, responding to the numbered paragraphs” in the movant's statement of material facts). Based on this, the federal defendants contend in their reply brief that their statement of material facts should be deemed admitted. (Doc. 86, at 3-4.) We agree.
Under Rule 56 of the Federal Rules of Civil Procedure,
[a] party asserting that a fact . . . is genuinely disputed must support that assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited [by the movant] do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Our local rules similarly provide that “[s]tatements of material facts . . . in opposition to[] a motion [for summary judgment] shall include references to the parts of the record that support the statements.” M.D. Pa. L.R. 56.1.
Here, the plaintiff has failed to respond at all to the moving defendants' statements of material facts. Accordingly, the court will deem the moving defendants' statement of material facts admitted, and we will consider the facts asserted therein to be undisputed for purposes of the motions for summary judgment before us. See Fed. R. Civ. P. 56(e)(2).
The plaintiff, Edward Nellson, was incarcerated at USP Canaan from November 13, 2017, through June 25, 2018. During this time period, Nellson filed only two administrative remedy requests concerning medical issues. On or about January 9, 2018, while incarcerated at USP Canaan, Nellson filed both of these administrative remedy requests, which were consecutively numbered upon receipt as Request No. 925154-F1 and Request No. 925155-F1.
The “F” code in the suffix of these numbers indicates that these particular requests were filed with the warden at the facility level. An appeal or sensitive remedy request filed with the regional director would be marked with an “R” code. An appeal to the BOP's central office would be marked with an “A” code.
In Administrative Remedy Request No. 928154-F1, Nellson stated that his constitutional rights had been violated because “staff at USP Hazelton and Big Sandy denied [him] medical care related to [a] crippling head injury sustained on 3-28-16. They also falsified [his] medical records . . . .” (Doc. 80-1, at 12.) He claimed that a 22-month delay or denial of medical care had caused him “permanent pain” and unspecified “medical issues.” (Id.) He requested medical treatment, transfer to a “medically appropriate facility, ” the investigation and discipline of staff, monetary damages, and correction of his medical records. (Id.) He further asserted that “USP Big Sandy & Hazelton [are] staffed with liars.” (Id.)
The warden of USP Canaan denied Nellson's Request No. 925154-F1 on February 26, 2018. (Id. at 13.) Nellson submitted an appeal to the BOP's Northeastern Regional Office on or about March 8, 2018, which was numbered upon receipt as Appeal No. 928154-R1. (Id. at 14.) This administrative appeal was likewise expressly limited to “the staff of USP[]s Big Sandy & Hazelton.” (Id.)
The BOP's regional director denied Nellson's Appeal No. 925154-R1 on April 11, 2018. (Id. at 15.) Nellson submitted an appeal to the BOP's Central Office on or about May 11, 2018, which was numbered upon receipt as Appeal No. 928154-A1. (Id. at 16.) This final administrative appeal to the Central Office, Appeal No. 925154-A1, was denied on June 18, 2018. (Id. at 17-18.)
In Administrative Remedy Request No. 928155-F1, Nellson stated that his constitutional rights had been violated because:
staff at USP Hazelton and Big Sandy retaliated against [him] for asking for medical care. This included denial of said care, halting [his] medical transfer, repeatedly locking [him] up on Admin[istrative] Detention in a medically fragile state, with no walker or wheel[]chair, forcing [him] to crawl on [his] hands and knees until[] they bled & leaked pus[], destroying [his] property, and at Hazelton, labeling [him] as “Hot” and getting [him], while handcuffed, ass[a]ulted at staff direction (C.O. Hunnell) in an effort to “prove [he] was faking.”(Id. at 20.) He claimed that, as a result, he had suffered “permanent pain, ” unspecified “medical issues, ” and “mental anguish/trauma.” (Id.) He requested medical treatment, transfer to a “medically appropriate facility, ” the investigation and discipline of staff, monetary damages, and correction of his medical records. (Id.) He once again asserted that “USP Hazelton & Big Sandy are staffed with liars.” (Id.)
The warden of USP Canaan denied Nellson's Request No. 925155- F1 on February 26, 2018. (Id. at 21.) Nellson submitted an appeal to the BOP's Northeastern Regional Office on or about March 21, 2018, which was numbered upon receipt as Appeal No. 928155-R3. (Id. at 22.) This administrative appeal was similarly limited to “[t]he liars that staff USP[]s Big Sandy & Hazelton.” (Id.)
This was Nellson's third attempt to appeal the warden's decision. Appeals No. 925155-R1 and No. 925155-R2 were apparently rejected on procedural grounds. Appeal No. 925155-R3 was accepted by the regional director as timely submitted.
The BOP's regional director denied Nellson's Appeal No. 925155-R3 on April 23, 2018. (Id. at 23.) Nellson submitted an appeal to the BOP's Central Office on or about May 11, 2018, which was numbered upon receipt as Appeal No. 928155-A2. (Id. at 24.) This final administrative appeal to the Central Office, Appeal No. 925155-A2, was denied on June 26, 2018. (Id. at 25.)
Nellson had previously submitted an appeal to the Central Office, numbered upon receipt as Appeal No. 925155-A1, but it was rejected because his regional director appeal, Appeal No. 925155-R3, was still pending at the time.
Neither of the two administrative remedy requests submitted by Nellson concerning allegedly inadequate medical treatment-Requests No. 925154 and No. 925155-referenced medical care or medical staff at USP Canaan, much less mentioned Dr. Sommer or PA-C Walters by name. Both of Nellson's fully exhausted administrative remedy requests made allegations specifically against staff at USP Hazelton and USP Big Sandy only. Moreover, neither of these requests mentions the primary issues that form the basis of Nellson's claims against Dr. Sommer and PA-C Walters: their alleged refusal to treat his pain or provide him with a walker or other ambulatory assistive device.
2. Discussion
Before bringing a Bivens action concerning prison conditions, a prisoner must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.”). “[I]t is beyond the power of this court . . . to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000). Moreover, § 1997e(a) requires “proper” exhaustion of administrative remedies, meaning strict compliance with BOP deadlines and other procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-95 (2006). “A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim.” McKinney v. Kelchner, No. 1:CV-05-0205, 2007 WL 2852373, at *3 (M.D. Pa. Sept. 27, 2007) (citing Spruill v. Gillis, 372 F.3d 218, 227- 32 (3d Cir. 2004)). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules'-rules that are defined not by [§ 1997e(a)], but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88) (citation omitted); see also Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) (“Section 1997e(a) does not delineate the procedures prisoners must follow.”).
The BOP has established a multi-stage administrative remedy process through which an inmate may seek formal review of an issue related to any aspect of confinement. See 28 C.F.R. § 542.10 et seq.; see also Nyhuis, 204 F.3d at 77 n.12 (describing the administrative remedy process). At the first stage, the inmate is required to present an issue of concern informally to staff in an attempt to informally resolve the issue without a formal request for an administrative remedy. 28 C.F.R. § 542.13(a). If unable to satisfactorily resolve the issue informally, the inmate must file a formal written administrative remedy request on BOP Form BP-9. Id. § 542.14(a). Ordinarily, the inmate's BP-9 must be submitted to the Warden within 20 calendar days following the date on which the basis for the administrative remedy occurred. Id. If dissatisfied with the Warden's response, the inmate may submit a written appeal to the appropriate Regional Director on BOP Form BP-10. Id. § 542.15(a). Ordinarily, the inmate's BP-10 must be submitted within 20 calendar days of the date the Warden signed his or her response. Id. If dissatisfied with the Regional Director's response, the inmate may submit a written appeal to the BOP's General Counsel on BOP Form BP-11. Id. The inmate's BP-11 must be submitted within 30 calendar days of the date when the Regional Director signed his or her response. Id. This review by the BOP's General Counsel is the final administrative appeal for administrative remedy requests by federal prisoners. Id. The BOP regulations expressly provide for extension of these deadlines in a variety of circumstances. See Id. § 542.14(b); 28 C.F.R. § 542.15(a).
As the plaintiff notes, the PLRA itself does not impose a “name all defendants” requirement. See Jones v. Bock, 549 U.S. 199, 217 (2007).
Nor do the BOP regulations governing the administrative remedy process. See Jenkins v. Fed. Bureau of Prisons, C/A No. 3:10-1968-CMC-JRM, 2011 WL 4482074, at *8 (D.S.C. Sept. 26, 2011); Lombardi v. Pugh, Civil No. 4:CV-05-0300, 2009 WL 1649908, at *7 (M.D. Pa. June 9, 2009). Thus, the plaintiff argues, he was not required to mention Dr. Sommer and PA-C Walters by name in the two administrative remedy requests described above, and his exhaustion of the administrative remedy process for these two requests satisfies the PLRA's requirement that he exhaust all available administrative remedies before bringing suit.
But the plaintiff's argument misses the mark. The issue here is not that he failed to specifically identify Dr. Sommer and PA-C Walters by name. It is that these two administrative remedy requests-the only requests he filed or exhausted-do not address the conduct alleged in this suit at all. Both requests expressly direct the attention of prison officials to the conduct of medical staff at USP Hazelton and USP Big Sandy, where he had been incarcerated previously. There is no mention whatsoever of Dr. Sommer, PA-C Walters, USP Canaan or its staff, or any events that occurred after his transfer to USP Canaan in November 2017. There is no mention of the denial of pain medications or the denial of a walker or other ambulatory assistive device.
The two administrative remedy requests that Nellson did submit and exhaust simply “did not fairly put the BOP and its employees on notice” of the issues raised in this Bivens action against Dr. Sommer and PA-C Walters. Olivares v. United States, 447 Fed. App'x 347, 351 (3d Cir. 2011) (per curiam). “The PLRA's exhaustion requirement was intended to allow ‘correction officials time and opportunity to address complaints internally before allowing the initiation of a federal case,' as internal prison remedies might succeed in ‘satisfying the inmate, thereby obviating the need for litigation.'” Id. (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)) (internal brackets omitted). While Nellson's two administrative remedy requests did indeed serve to “notify the prison of a problem, ” they isolated the concerns expressed to those involving the conduct of medical staff at USP Hazelton and USP Big Sandy only. See Id. at 352. The relevant BOP regulations provide that an inmate “place a single complaint or a reasonable number of closely related issues” on a single BP-9 form. 28 C.F.R. § 542.14(c)(2); see also Olivares, 447 Fed. App'x at 352. “The BOP expects ‘unrelated' issues to be grieved separately. One way or another, then, [Nellson] was expected to place his unresolved medical complaints about [Dr. Sommer, PA-C Walters, or any other USP Canaan medical staff] before prison officials. He did not do so.” Olivares, 447 Fed. App'x at 352 (citation omitted). Nellson failed to comply with the BOP grievance process with respect to the allegedly constitutionally inadequate medical care he received from these two defendants at USP Canaan. Thus, these claims are both unexhausted and procedurally defaulted. See id.
In further support of this conclusion, we note that the amended complaint alleges only two encounters with these defendant medical providers-one with Dr. Sommer on February 12, 2018, and another with PA-C Walters on February 16, 2018-both of which occurred more than a month after Nellson filed his two administrative remedy requests. No other encounters between the plaintiff and the defendants are alleged. Thus, it is clear that any claims arising out of these two encounters plainly were not administratively exhausted by the two administrative remedy requests Nellson filed more than a month earlier. See Ball v. Oden, Civil No. 1:09-CV-847, 2012 WL 7162069, at *14 (M.D. Pa. Dec. 6, 2012), report & recommendation adopted by 2013 WL 634024 (M.D. Pa. Feb. 20, 2013).
Accordingly, it is recommended that the federal defendants' motion for summary judgment be granted with respect to the plaintiff's Bivens claims against Dr. Sommer and PA-C Walters, set forth in Count I of the amended complaint.
C. Bivens Claims Against Dr. Hlavac
In his amended complaint, Nellson has also asserted a Bivens claim against Dr. Hlavac, alleging that the neurosurgeon was deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. In particular, Nellson alleges that, despite examining him and reviewing his medical records, including a recent MRI report describing spinal injuries observed by a radiologist, Dr. Hlavac “failed to connect the MRI results to Mr. Nellson's symptoms, ” failed to address the spinal injuries revealed in the MRI report, and failed to prescribe any pain medication. Notably, the amended complaint expressly alleges that “Dr. Hlavac was negligent in his treatment and care of Mr. Nellson.”
It is well-established that “negligence is not the basis of a constitutional claim.”
Dr. Hlavac is a private-practice neurosurgeon who allegedly performed a consultative examination of Nellson. The amended complaint alleges, in conclusory fashion, that Dr. Hlavac did so pursuant to a contract with the BOP. But this alone is not sufficient to support a plausible inference that this one-time examination of a federal inmate by a private physician constituted “federal action” sufficient to expose that private party to liability under Bivens. See Butler v. Rajjoub, Civil No. 3:15-cv-2395, 2017 WL 515119, at *3 (M.D. Pa. Feb. 7, 2017) (“Following Malesko and Minneci, this Court has held that a private physician employed at a private hospital is not subject to federal civil rights liability under Bivens.”); Michtavi v. Scism, No. 1:12-cv-1196, 2013 WL 371643, at *3 (M.D. Pa. Jan. 30, 2013) (dismissing Bivens claims against private physician employed at a private hospital when he performed surgery on a federal prisoner); Michtavi v. Scism, Civil Action No. 1:CV-12-1196, 2012 WL 6964327, at *7 (M.D. Pa. Oct. 9, 2012) (recommending dismissal of Bivens claims against private physician who was contracted by the BOP to perform surgery on a federal prisoner and provide post-surgical treatment), adopted in relevant part by 2013 WL 371643 (M.D. Pa. Jan. 30, 2013); cf. Minneci v. Pollard, 565 U.S. 118, 125-28 (2012) (holding that no implied damages action exists under Bivens against privately employed individuals working at a privately operated federal prison because state tort law provided an adequate alternative damages remedy). The plaintiff has failed to allege any other facts to support a plausible inference that Dr. Hlavac's limited interaction with Nellson constituted federal action. See generally Ferguson v. United States, 178 F.Supp.3d 282, 289-90 (E.D. Pa. 2016) (outlining the three theories recognized by the Third Circuit in which a private party's conduct may be considered federal action).
Although in the plaintiff's brief, counsel assumes that this examination took place within the prison, rather than at a private facility, the amended complaint does not actually allege the location of Nellson's encounter with Dr. Hlavac. Indeed, it alleges very few facts at all about this encounter.
Accordingly, we recommend that the plaintiff's Bivens claim against Dr. Hlavac, set forth in Count I of the amended complaint, be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
We further note that the Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction applies equally to pro se plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, based on the facts alleged in the complaint and the additional evidence proffered in connection with the federal defendants' summary judgment motion, it is clear that amendment would be futile. See Jones v. SCO Family of Servs., 202 F.Supp.3d 345, 350 n.4 (S.D.N.Y. 2016) (considering evidence outside the pleadings for limited purpose of whether to grant leave to amend); Lauter v. Anoufrieva, 642 F.Supp.2d 1060, 1078 (C.D. Cal. 2009) (“A court may consider factual allegations outside of the complaint in determining whether to grant leave to amend.”); U.S. Fire Ins. Co. v. United Limousine Serv., Inc., 303 F.Supp.2d 432, 445 (S.D.N.Y. 2004). It is therefore recommended that the plaintiff's Bivens claim against Dr. Hlavac be dismissed without leave to amend.
The evidence proffered by the federal defendants on summary judgment includes a comprehensive copy of all records of Nellson's administrative remedy requests concerning medical care. As we have previously noted, Nellson did not submit any administrative remedy requests concerning the medical care he received (or did not receive) while incarcerated at USP Canaan. Nor did he submit any requests concerning the conduct of Dr. Hlavac in particular. Thus, it is clear that any amendment to Nellson's
IV. Recommendation
For the foregoing reasons, it is recommended that:
1. Dr. Hlavac's motion to dismiss (Doc. 69) be GRANTED;
2. The plaintiff's Bivens claim against Dr. Hlavac, set forth in Count I of the amended complaint, be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure;
3. The federal defendants' motion to dismiss or for summary judgment (Doc. 79) be GRANTED;
4. The plaintiff's state-law tort claims against the United States, set forth in Counts II, III, and IV of the amended complaint, be DISMISSED for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure;
5. The Clerk be directed to enter JUDGMENT in favor of defendants Dr. Sommer and PA-C Walters and against the plaintiff with respect to the plaintiff's Bivens claims against Dr. Sommer and PA-C Walters, set forth in Count I of the amended complaint; and
6. The Clerk be directed to mark this case as CLOSED.
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD NELLSON, #31408-007, Plaintiff, v.
U.S. FEDERAL BUREAU OF PRISONS, et al., Defendants.
CIVIL ACTION NO. 3:20-cv-00963
(MARIANI, J.) (SAPORITO, M.J.)
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 24, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
Dated: January 24, 2022 s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR. United States Magistrate Judge See Nellson v. U.S. Fed. Bureau of Prisons, Case No. 7:20-cv-00065 (E.D. Ky. filed May 11, 2020), ECF No. 52. Nellson v. U.S. Fed. Bureau of Prisons, Civil Action No. 3:20-cv-00963, 2022 WL 141535 (M.D. Pa. Jan. 14, 2022). Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). See Doc. 77, at 19.) Banks v. Roberts, 251 Fed. App'x 774, 777 n.4 (3d Cir. 2007) (per curiam); Thomas v. United States, 558 F.Supp.2d 553, 556 n.7 (M.D. Pa. 2008) (quoting Banks). Bivens claim against Dr. Hlavac would be futile. Even if Nellson were able to plead sufficient facts to support a plausible inference that Dr. Hlavac was a “federal actor” subject to Bivens liability, the PLRA's exhaustion requirement would bar Nellson from obtaining any relief in this action. See Roles v. Maddox, 439 F.3d 1016, 1017-18 (9th Cir. 2006) (holding that the PLRA exhaustion requirement applied to a prison-condition suit against the operator of a privately operated prison facility); Banks v. York, 515 F.Supp.2d 89, 117-18 (D.D.C. 2007) (applying the PLRA exhaustion requirement to an action alleging the denial of adequate dental care to an inmate incarcerated at a privately operated prison facility).