Case No. 3:13-cv-272-KRG-KAP
Report and Recommendation
The pending motion for summary judgment at ECF no. 45 should be granted. The pending motion to dismiss at ECF no. 72 should be granted in part and denied in part.
Ronald Greenland, while an inmate at the Moshannon Valley Correctional Center, filed a pro se civil complaint in December 2013, ECF no. 2, Complaint, naming seven defendants: the United States, a Bureau of Prisons employee at the Moshannon Valley Correctional Center named Preston Benson, the Geo Group, the private contractor that operates the Moshannon Valley Correctional Center, and four Geo Group employees at the Moshannon Valley Correctional Center: former warden Lindsay, then current warden Wigen, former medical administrator Tavares (sometimes spelled Travares), and former medical administrator Dawson.
Greenland alleged that he had an inguinal hernia for which surgery was scheduled on November 30, 2009, but that he was arrested by New York law enforcement officers for possession of stolen property on November 25, 2009, and did not have surgery until February 2013, at a hospital to which the medical service at Moshannon Valley sent him. Between the date of his arrest and surgery plaintiff alleged that he was housed at several facilities, beginning with an unnamed state facility in New York. After his transfer to federal custody - plaintiff is an alien who entered the country illegally - on July 23, 2010, plaintiff was housed at a Geo Group facility in Queens, New York, until April 28, 2011, when plaintiff was transferred to a Bureau of Prisons facility, the Brooklyn Metropolitan Detention Center, where plaintiff stayed until his transfer to Moshannon Valley on July 1, 2011. Plaintiff was released in November 2014 at the expiration of his 60 months sentence and was removed from the country. He has since illegally re-entered the United States and again is incarcerated.
Plaintiff asserted that once at Moshannon Valley he began requesting surgical repair of his hernia from medical personnel there beginning on July 19, 2011. Plaintiff claimed that in response "he was examined personally by MVCC medical doctor," ¶25, and defendant Dawson decided that he did not have a medical need for surgery. At some later date defendant Tavares replaced defendant Dawson as the medical director at Moshannon Valley and after plaintiff renewed his request for surgery, plaintiff was again examined by a medical doctor, ¶31. Defendant Tavares, like defendant Dawson, decided that plaintiff did not have a present medical need for surgery. Plaintiff alleged that he told Tavares that a doctor in New York had already determined that surgery was necessary, to which Tavares replied that he formed his own opinions. Id.
Plaintiff alleged that he sought intervention from defendant Benson, a Bureau of Prisons liaison at Moshannon Valley. Allegedly Dawson's decision, Tavares's decision, and Benson's failure to intervene to overturn those decisions constituted "deliberate indifference and gross negligence" on the part of defendants Benson, Lindsay, Tavares, Wigen, and Dawson, along with the BOP, Complaint ¶42, and that the delay was due to a custom or policy of Geo Group, Complaint ¶39, ¶ 43, and the United States, Complaint ¶44, of spending as little money as possible on health care. Plaintiff did not allege any complication or residual injury from having surgery in 2013, and the only injury plaintiff has ever alleged is the higher level of pain he alleged he suffered during the time that the various prison medical services used nonsurgical means to treat his hernia.
I screened the matter as required by 28 U.S.C.§ 1915A and recommended that although the negligence claim under the Federal Tort Claims Act, see 28 U.S.C.§§ 1346(b), 2671-2680, against the United States was conclusory it could go forward, provided that plaintiff filed an amended complaint fleshing out some of plaintiff's conclusory assertions. I recommended that the attempted Bivens claims against the individual defendants other than the BOP employee Benson could not go forward because there are no Bivens claims against the employees of a private prison or against a private corporation operating a prison. I recommended that any pendent state law claims plaintiff might be able to state against any Geo Group defendant should be brought in state court.
Plaintiff filed objections, ECF no. 7, and an amended complaint, ECF no. 8, as I had told him he could do. The amended complaint added nothing to the original except a reference to 42 U.S.C.§ 1983 as a basis for "this civil action against the private defendants." Amended Complaint ¶9. I did not issue a new Report and Recommendation because plaintiff did not allege that the Geo Group or the Geo Group employees acted under color of state law and I thought it self-evident that private contractors of the federal government did not act under color of state law. See e.g. Varma v. Bureau of Prisons, 420 Fed.Appx. 183, 186 (3d Cir.2011)("Although not addressed by the Magistrate Judge, Varma fails to state a claim under § 1983 because none of the defendants are [sic] alleged to have acted under color of state law."); Doe v. United States, 831 F.3d 309, 316 (5th Cir.2016)("[T]he [private prison] defendants' relevant role on which we must focus is in detaining aliens pending a determination of their immigration status pursuant to ICE specifications. This is fundamentally a federal function.")
The United States and Benson, once served, filed a motion to dismiss the amended complaint, ECF no. 16, to which plaintiff replied, ECF no. 20. I recommended, in a Report and Recommendation at ECF no. 24, the dismissal of the amended complaint as to Benson because there were no allegations that Benson had the duty to oversee health care decisions, and as to the United States because plaintiff had only been in a federal facility for a couple of months in 2011 and apart from plaintiff's conclusory statement that since surgical treatment was eventually provided any nonsurgical care provided earlier was inadequate there were no allegations of fact that would allow a conclusion that any care plaintiff received in a federal facility was negligent. I did not repeat the recommendations as to the other defendants that were pending before the Court together with plaintiff's objections thereto.
In March 2 015 the Court agreed with both of my recommendations and dismissed the Amended Complaint. ECF no. 28. In October 2016, in ECF no. 32-2, a panel vacated the dismissal in a nonprecedential opinion. The author acknowledged that "Greenland conceded" that there was no Bivens claim against the "private actors" (Geo Group, Lindsay, Wigen, Dawson and Tavares), slip op. at 3, but eight pages later contradicted that by asserting that because "Greenland further alleged that the [Geo Group] defendants refused to provide the necessary care and gave him an easier less expensive and less efficacious treatment in part because of the nature of the detention facility ... the District Court should not have dismissed the claims." slip op. at 11. What claims, the author did not say, but the only claims that make sense in context are the Bivens claims, and as I have already written there are no Bivens claims against the Geo Group defendant. Whether this was an unintentional drafting error or the author of the nonprecedential opinion failed to appreciate that employees of a private federal contractor do not act under color of state law, see the references to Section 1983, slip op. at 3-4, there are no claims under Section 1983. The only viable legal basis for a claim against the Geo Group defendants is Pennsylvania professional negligence law.
On remand the plaintiff eventually filed a second amended complaint. ECF no. 38. The United States and defendant Benson filed a motion to dismiss or for summary judgment, ECF no. 45, to which plaintiff replied. ECF no. 47. The court then returned the matter to me. I noted that plaintiff had not yet provided instructions for service on the GEO Group or its employees and there was no reason to deal with the claims piecemeal, so under Fed.R.Civ.P. 56(f)(3) and Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986), I notified the plaintiff that I would consider the United States and Benson's defenses, including the underlying question whether there was any negligence in the provision of health care to plaintiff, under the standard for summary judgment and that the parties must come forward with all relevant evidence of negligence or damages. ECF no. 51. The United States responded by filing a supplemental affidavit explaining the administrative record in support of its defense that plaintiff had failed to exhaust his administrative remedies before filing suit. ECF no. 62. Its factual record as to the medical care provided while in federal custody had already been supplied at ECF no. 46.
Once Geo Group, Lindsay, Wigen, Dawson and Tavares were served those defendants filed a motion to dismiss, ECF no. 72, to which plaintiff responded with a motion to strike it as untimely, apparently on the theory that the Geo Group defendants were bound even before they were served by the deadlines in my Celotex order. ECF no. 74. Plaintiff also sent a letter to the Geo Group defendants advising he is willing to discuss settlement . ECF no. 75.
Plaintiff's reply to my Celotex order, ECF no. 51, directing him to come forward with any evidence that the United. States or any of its agents was in fact negligent and to address the affirmative defenses raised by the United States as raised in a motion for summary judgment was also contained in his filing at ECF no. 74. Plaintiff had attached several exhibits to his earlier reply to the United States' earlier motion to dismiss, see ECF no. 20, but provided no new evidence and repeated the allegations of the complaint and the amended complaint. For a sample of plaintiff's analysis of his claims against the United States and Benson, see ECF no. 74 at 3: "Plaintiff FTCA Claims and argument remains cognizable and meritorious, See; GREENLAND v. UNITED STATES, 0822216 FED#, 15-1846, supra."
Based on the record, summary judgment must be entered in favor of the United States and Preston Benson.
Plaintiff failed to exhaust his administrative remedies against Benson. The Prison Litigation Reform Act (PLRA) of 1996 amended the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C.§ 1997e(a), to state: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. (my emphasis) This means that a complaint filed before administrative remedies are exhausted is premature and cannot be entertained, Booth v. Churner, 532 U.S. 731, 738 (2001), and also that failure to exhaust administrative remedies in accordance with the prison's grievance procedures constitutes procedural default. Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir.2004).
As the supplemental Barksdale declaration, ECF no. 62, explains, to exhaust administrative remedies against personnel at a private prison an inmate must follow the prison's remedial system but to exhaust remedies against a Bureau of Prisons employee like Benson the three-tier system set out in 28 C.F.R.§ 542.10 et seq. must be used. This was explained in the Geo Group Policy and Procedure Manual setting forth the remedy procedure at Moshannon Valley. ECF no. 46 Document 2a, at 2 and 7 (Describing matters that may be appealed to the BOP directly to include "Issues involving BOP staff.") Barksdale avers without contradiction that the records of the administrative remedy system show no appeals concerning Benson. Plaintiff does not challenge this, and in fact plaintiff admits that he did not complain about Benson to anyone before filing suit because he did not contemplate suing Benson and did not think he needed "to get his legal ducks in a row," ECF no. 20 at 17 to do so. Plaintiff attempted to bring his dissatisfaction with the Geo Group defendants' treatment of his hernia without surgery to the Bureau of Prisons' on three occasions and because it was a matter involving health care concerns they were not proper filings within the scope of the Bureau of Prisons remedial system. If plaintiff had been complaining about Benson's alleged role in inadequately supervising the medical department his grievances would arguably have been proper, but Benson was not mentioned in any of them.
Plaintiff's best argument on this point was that even though he did not name Benson in any grievance he did not need to because the instructions on the administrative remedy form used at Moshannon Valley permitted but did not require plaintiff to name names. See ECF no. 20 at 16. Quoting the form language: "Be concise as possible, but be sure to include enough identifying data to assist in a thorough investigations (e.g. dates, names, locations, times etc.)" Plaintiff is correct that failure to name a specific person is not a per se default of claims against that person, but he fails to appreciate that in the specific context of this suit - a claim against Benson for allegedly failing to override the Moshannon Valley medical personnel - Benson's role in the lack of provision of hernia surgery means that his identity is a necessary piece of data.
Since the Bureau of Prisons does not believe that Benson had any duty with respect to plaintiff's health care and its grievance procedure did not even allow handling of health care complaints simpliciter, not being made aware of plaintiff's position that Benson was delinquent for failing to ensure plaintiff's surgery prevented the Bureau of Prisons from ever considering the matter at a time when it could be remedied. Benson's identity is a necessary piece of data because the question of Benson's duty or lack thereof to supervise events at Moshannon Valley is distinct from the merits or lack thereof of plaintiff's claim to need surgery. If plaintiff intended to sue Benson for failing in what plaintiff asserts is his duty of oversight, it was incumbent on him to bring that to the attention through the administrative remedy procedure provided by the Bureau of Prisons. As far as I can see in this record plaintiff never even mentioned Benson in any of his communications to the trial judge, the Bureau of Prisons, or the Geo Group.
Before turning to the next distinct question necessary for Benson to be liable to plaintiff, namely what the record actually shows about Benson's duties, it is undisputed that Benson is not a doctor or other health care professional claimed to have some expertise in medical matters. In general a lay prison administrator is entitled to rely on the decisions made by a prison medical department and except in the case where all medical treatment is being refused does not have knowledge necessary for liability under a deliberate indifference standard. Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.2004). It is plaintiff's burden to produce evidence creating a genuine issue as to Benson's mental state. See id. Plaintiff does not discharge that burden merely by complaining to Benson and averring that Benson stated he would look into the matter, and there is nothing more in the record to support a claim that Benson was deliberately indifferent.
The next point to be made is that Benson had no duty - and on this record, no power - to override medical decisions at Moshannon Valley. As a contractual matter the role of the Secure Oversight Manager would be expected to be spelled out in the contract between the government and the Geo Group. See Statement of Work, Document 2b attached to ECF no. 46. The contractor's duties with respect to health care are set out at pp. 40-45 and do not authorize review by the SOM. To the contrary, the contract calls for Geo Group to "designate a health services Point of Contact (POC) for the facility who shall be responsible for the delivery of health services under the contract. The POC shall have full authority to act on behalf of the contractor on all matters relating to the operation of the health services portion of the contract." Id. at 41. The Bureau of Prisons' Secure Oversight Manager is mentioned only as part of a generic group of Bureau of Prisons "various staff on site to monitor contract performance." Id. at 8. Monitoring is not controlling.
Of course, during the performance of a contract there can be a course of dealing that modifies the original terms of the contract. Plaintiff, however, points to no evidence of an instance in which Benson or any other SOM actually overrode heath care decisions made at Moshannon Valley or any other Geo Group facility. Plaintiff's entire claim is based on incessant repetition of two invalid premises: 1) that the Bureau of Prisons had a nondelegable duty to ensure his surgery at Moshannon Valley; and 2) that Benson, as the Bureau of Prisons employee on site, must be personally responsible for discharging that duty. Plaintiff's best response to the government's motion on this particular point actually came at ECF no. 20, where he argued that Benson must have had a duty to supervise health care because Benson apparently wielded power over the food served at Moshannon Valley (because the menu fell to pieces after Benson left and before a new. SOM was in place and post hoc ergo propter hoc it must have been Benson's absence that allowed that) and because the SOM who replaced Benson was believed to have something to do with the placement of corrections officers during inmate movements. ECF no. 20 at 14-15. Some evidence that Benson had some influence in areas other than health care is not evidence that creates a genuine dispute of fact that Benson had influence over, much less a legal duty to supervise, plaintiff's health care.
As for the FTCA claim attacking the quality of the medical care provided to plaintiff by the United States during the two months from April 28, 2011 to July 1, 2011, when plaintiff was in Bureau of Prisons custody at the MDC Brooklyn, the records submitted by defendants at ECF no. 46, Document 3, Fisher Declaration, Exhibits attached as Document 3a, do not show any emergency condition that would call for immediate or further treatment of plaintiff's hernia. Plaintiff was examined on May 2, 2010 by Physician Assistant John Bernard. Document 3a at 7-10, and the notes of that examination reflect that plaintiff had non-insulin dependent diabetes and a hernia of "unspecified site." Id. at 7 and 10. He denied any current painful condition. Id. at 9.
Plaintiff had another physical examination by Bernard on May 10, 2011. Id. at 12-23. At this physical examination plaintiff reported chronic lower back pain (post-laminectomy, see id. at 1) and pain in his teeth or mouth possibly secondary to infection, id. at 13, and no abdominal pain. Id. at 17. Plaintiff had already been examined by a dentist. He was also prescribed lower bunk status. Plaintiff's hernia was recorded as being a left direct inguinal hernia that was "reproducible." Id. at 21. Since that term makes no sense in this context I conjecture that it is a typo for the commonly used term "reducible," which means that the hernia can be pushed back into the abdomen by pressure. Plaintiff was scheduled for follow-up of this and other medical issues, including diabetes, his dental hygiene, mental health issues (depression), and an optometry examination.
On May 24, 2011, plaintiff had another physical examination, this one by R. Newland, M.D. Id. at 1-5. This examination appears to have been motivated by plaintiff's report of mental health issues, but Doctor Newland's note of plaintiff's subjective report of his physical symptoms described an unincarcerated hernia and a pain scale of 0. Id. at 1, 2. Newland ordered several blood tests as well as an EKG, and noted that plaintiff should follow up at sick call as needed. Id. at 4. There is no evidence over the next month that there were any complaints, follow up or otherwise, by plaintiff about plaintiff's hernia.
In opposition to this plaintiff offers nothing more than the allegation that he was scheduled for surgery on his hernia in 2009, and he deduces from that scheduling that any delay or denial in providing that surgery is negligence. It is a curious lacuna in plaintiff's argument that he was in state custody from his arrest in November 2009 until July 2010, and yet he has no complaints about that period of time. Plaintiff complains in wholly conclusory fashion about not having surgery provided in New York when he was in a Geo Group facility between July 2010 and April 2011. And the medical records from his period in a Bureau of Prisons facility from April until July 2011 do not on their face show any complaint about any need for surgery.
Plaintiff's argument the United States and Benson had a nondelegable duty to provide him with a hernia operation as soon as he came into federal custody or to ensure that the Geo Group defendants scheduled an operation earlier than 2013 once he was at Moshannon Valley is based on two things: 1) plaintiff was scheduled for surgery in 2009, indicating the belief by at least one doctor that surgery was appropriate; and 2) plaintiff's personal belief that the only way his medical needs could be met was by surgery. As to the first proposition, "appropriate" does not mean "necessary." As to the second proposition, it is valueless both legally and factually.
Except in the simplest of matters it is not possible for a lay person to deliver an expert opinion about medical needs or treatment thereof. No one disputes that hernias are a serious medical condition, but it is also indisputable that surgery is not the only treatment, and that surgery has risks of its own. Does plaintiff's diabetes, poor oral hygiene, or depression properly influence a decision about how to treat his hernia? I do not know, and neither does plaintiff, and there is no competent evidence in the record on this point. The decision whether to treat a hernia surgically is a medical decision to be made based on the condition of the patient and the hernia. The evidence here is that plaintiff was examined at both MDC Brooklyn and at Moshannon Valley, and over the course of his time at Moshannon Valley the same doctor (Tavares) who after ordering a consult in February 2012 told plaintiff he did not need surgery was the same doctor who recommended surgery in November 2012. Since this is all the evidence the record contains the only legitimate conclusion a properly instructed jury could reach is that some change in plaintiff's condition caused Tavares to change his mind.
To find for the plaintiff, a jury would have to make the mental leap that Tavares denied surgery in early 2012 (according to plaintiff in order to save money) but with no change in plaintiff's condition and no other external influence, capriciously changed his mind (thus approving the expenditure of the same money for surgery) in November 2012. To be technical, since plaintiff offers nothing but an ipse dixit about a financial motive and no evidence as to the costs of plaintiff's care before or after surgery, this would fail even if it were a valid piece of reasoning. But it is not valid even logically: plaintiff's position that Tavares' approval in late 2012 of surgery "shows" that he needed surgery earlier is recognized as invalid in every other context - the textbook term for the argument is the fallacy of affirming the consequent - and plaintiff's status as a pro se litigant does not permit him to give an expert opinion that his medical care prior to surgery was inadequate.
Plaintiff was prescribed a hernia belt at MDC Brooklyn, and he hated it because, as he wrote to defendant Dawson in February 2012, ECF no. 20 Attachment F at 1-2, he was in pain and the other inmates at Moshannon Valley taunted him about wearing a "gurgle" (girdle). Plaintiff intimated that he would get into a fight soon if, nothing were done. Plaintiff was seen on a regular basis and indeed was seen shortly after this letter was written. Plaintiff necessarily argues that whatever they learned as a result of his medical examination defendants were required to make their treatment decisions on the basis of plaintiff's complaints of pain. That is no more true than holding defendants liable for not making their decisions based on plaintiff's threats to respond to taunts with violence.
Turning to the motion to dismiss by the Geo Group defendants, for the reasons already stated the only claims plaintiff can state are common law negligence claims about his care by the Geo Group defendants at Moshannon Valley since everything at the Geo Group facility in New York took place beyond the limitations period. Everything else should be dismissed.
To maintain a negligence claim plaintiff must comply with the certificate of merit requirement of Pa.R.C.P. No. 1042.3, see Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265 (3d Cir.2011), and plaintiff has not done that. But at this stage the Geo Group defendants' two paragraph argument, ECF no. 73 at 10-11, that plaintiff has failed to allege the elements of a negligence claim must be rejected. The author of the nonprecedential opinion reasoned that plaintiff had stated a claim that it was "error" for this court to reject. Whether plaintiff has evidence to support that claim must be determined at the summary judgment stage or at trial. Plaintiff shall comply with the certificate of merit requirement within thirty days. If plaintiff does not, the remainder of the complaint should be dismissed without further action. If plaintiff does, I will issue a Celotex order requiring submission of all evidence relevant to the question whether any of the remaining defendants is liable for negligence.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. DATE: August 10, 2018
Keith A. Pesto,
United States Magistrate Judge Notice to counsel of record by ECF and by U.S. Mail to:
Ronald Greenland 18-A-0969
Downstate Correctional Facility
P.O. Box F
Fishkill, NY 12524-0445