Cameron v. FCI Talladega Warden et al

Filing 39

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 10/18/16. (SAC )

FILED
2016 Oct-18 PM 03:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
THOMAS CAMERON,
Plaintiff,
v.
FCI TALLADEGA WARDEN, et al.,
Defendants.

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) Case No. 1:15-cv-1279-KOB-JEO
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MEMORANDUM OF OPINION
The magistrate judge filed a report and recommendation on August 31, 2016,
recommending that the defendants’ motions for summary judgment on the plaintiff’s
federal claims, filed pursuant to Bivens v. Six Unknown Names Agents, 403 U.S. 388
(1971), be granted. (Doc. 37). The magistrate judge further recommended that the
plaintiff’s state law claims be dismissed without prejudice pursuant to 28 U.S.C. §
1367(c)(3). (Id.). The plaintiff has filed timely objections to the report and
recommendation. (Doc. 38). Having considered said objections, the court finds as
follows:
Objections No. 1 and No 7:1 The plaintiff first objects to the magistrate
judge’s “mischaracterization of his constitutional claims by . . . rephrasing his claim

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The court has adopted the same numbering system used by the plaintiff in considering
the plaintiff’s objections.

and then addressing only part of the claim” and objects to the findings and
conclusions that summary judgment should be granted. (Doc. 38 at 1, 4). The
plaintiff does not explain the basis for his contention that the magistrate judge
addressed only part of his claim, and points to no specific claim left unaddressed by
the magistrate judge.
General objections need not be considered by the court. Rather, in filing
objections to a magistrate’s report and recommendation, a party must specifically
identify those findings to which he objects. U.S. v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983). In Macort v. Prem, Inc., the Eleventh Circuit reiterated:
“In order to challenge the findings and recommendations of the
magistrate [judge], a party must . . . file . . . written objections which
shall specifically identify the portions of the proposed findings and
recommendation to which objection is made and the specific basis for
objection. . . .” Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989).
Id., 208 Fed.App’x 781, 783-84 (11th Cir. 2006).
Because neither of these objections identifies any specific claim the plaintiff
made which was not addressed, nor takes issue with any particular factual finding the
plaintiff alleges to be in error and the court finds none, these objections are
OVERRULED.
Objection No. 2 and No. 6: The plaintiff objects to the magistrate judge
“agreeing with the defendants when the record conclusively shows that petitioner has
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presented genuine issues and material facts.” (Doc. 38 at 1-2). The plaintiff
continues that the Warden of FCI Talladega is in charge of the institution and Dr.
Holbrook was “under his watch” when he administered Actemra. (Id., at 2). He
further asserts that the “prison under the wardens watch intentionally and deliberately
denied and delayed access to medical attention.” (Id., at 3-4).
Bivens does not provide a basis for liability against supervisors, other than for
their individual actions. No claim based on vicarious liability exists under Bivens.
In Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), the Court held that “Government
officers may not be held liable for the unconstitutional conduct of their subordinates.
. . . Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”. Therefore, to the extent that the
plaintiff named “FCI Talladega Warden” as a defendant in his role as supervisor of
Dr. Holbrook, any such claim is barred. See id.; Dalrymple v. Reno, 334 F.3d 991,
995 (11th Cir. 2003) (“supervisory officials are not liable under [Bivens] for the
unconstitutional acts of their subordinates.”) (alterations in original), citing Hartley
v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (quoting Belcher v. City of Foley,
30 F.3d 1390, 1396 (11th Cir. 1994)).

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To the extent the plaintiff asserts the warden “intentionally and deliberately
denied and delayed access to medical attention” (doc. 38 at 3-4), the plaintiff fails to
provide even the merest hint of a factual basis for this claim and nothing in the record
supports such a finding. As previously stated, under Bivens, a plaintiff must
demonstrate that the supervisor either personally participated in the alleged
Constitutional violation or that the supervisor’s conduct was causally connected to
the Constitutional violation. Braddy v. Dept. of Labor & Employment Sec., 133 F.3d
797, 802 (11th Cir. 1998). Because the plaintiff alleges no specific actions by this
defendant, unconstitutional or otherwise, no personal liability can attach to the
warden. See Iqbal, 556 U.S. at 676.
Within this same set of objections, the plaintiff asserts that the magistrate judge
failed to consider whether Dr. Crawford2 was negligent in not conducting any testing
to see if the plaintiff was Hepatitis C positive. (Id., at 2). The evidence reflects that
Dr. Crawford prescribed Actemra because the plaintiff had Hepatitis C and had not
improved with other medication. (Doc. 33-1 at 5). Dr. Crawford specifically noted
“I chose to change to Actemra because Mr. Cameron had Hepatitis-C and could not
take a medicine that required methotrexate. Actemra did not require methotrexate.”

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The plaintiff’s objection to the magistrate judge’s finding that Dr. Monica Crawford is
not a federal actor (doc. 38 at 3), is discussed infra, at Objection No. 5.
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(Id.). Thus, the plaintiff’s argument that Dr. Crawford failed to conduct any testing
to see if he had Hepatitis C is wholly refuted by the evidence. To the extent the
plaintiff is trying to argue that Dr. Crawford negligently or maliciously prescribed
Actemra despite his having Hepatitis C, the plaintiff has provided no evidentiary
basis for such a claim.3 Even if the plaintiff had established that individuals who
have Hepatitis C should not be given Actemra, such a fact situation falls squarely
within the realm of medical malpractice, not Eighth Amendment deliberate
indifference. See e.g., Farmer v. Brennan, 511 U.S. 825, 835 (1994) (to show an
Eighth Amendment violation a prisoner must typically show that a defendant acted
not just negligently, but with “deliberate indifference”); Estelle v. Gamble, 429 U.S.
at 106 (facts alleged must do more than contend medical malpractice, misdiagnosis,
accidents, and poor exercise of medical judgment, because “medical malpractice does
not become a constitutional violation merely because the victim is a prisoner.”);
Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (mere negligence in medical
treatment does not amount to deliberate indifference under the Eighth Amendment).

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Similarly, to the extent that the plaintiff is asserting that Actemra is contraindicated in
individuals with Hepatitis C (doc. 38 at 2-3), the plaintiff has provided no evidence in support of
this contention. Rather, the evidence before the court is patients with Hepatitis B may be at risk
for side effects from Actemra. (Doc. 20-2 at 8; 33-1 at 5). Additionally, because patients with
hepatic impairment should not be given Actemra, the plaintiff’s liver function was tested and
found to be normal. (Doc. 20-2 at 9). In any event, even assuming that the plaintiff has an
allergic reaction to Actemra, he fails to show any connections between an allergic reaction and
Hepatitis C.
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Because the plaintiff’s allegations and evidence assert no more than at most
negligence against Dr. Crawford, Dr. Crawford is due summary judgment in her favor
on the plaintiff’s constitutional claims against her.

These objections are

OVERRULED.
Objection No. 3: The plaintiff objects to the finding that other medications
had not been successful in controlling his rheumatoid arthritis symptoms. (Doc. 38
at 2). He states “I was very functional with [Humira] and it was in fact the doctors
idea for me to try out another medication. I was literally fine with [Humira].”4 (Id.).
However, a doctor’s decision about the type of medicine that should be prescribed is
generally “a medical judgment” that is inappropriate for imposing § 1983 liability.
Adams v. Poag, 61 F.3d 1537, 1547 (11th Cir. 1995); Chatham v. Adcock, 334 F.
App’x 281, 288 (11th Cir. 2009). Negligence as to a diagnosis or treatment does not

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The plaintiff’s medical records do not support this allegation. In August 2013, the
plaintiff complained to MLP Marasigan that he thought his arthritis was progressing, that Enbrel
was not working and that his fingers were getting more deformed. (Doc. 20-3 at CAMERON
_1823). The plaintiff was referred to Dr. Elizabeth Perkins, an outside rheumatologist, who
concluded that the plaintiff had active synovitis despite Enbrel and recommended changing the
plaintiff’s prescription to Humira. (Id., at CAMERON_1821). Due to continued deterioration of
his right hip, the plaintiff received a hip replacement in May 2014. (Id., at CAMERON_1777).
The plaintiff was referred to Dr. Crawford in August 2014. Her records reflect that the plaintiff
“was treated with Enbrel for thirteen years, and then changed to Humira for the past six months.
He recently required increased prednisone dose due to persistent synovitis. He reports swelling
in his hands, wrists, and knees bilaterally.” (Id., at CAMERON_ 1551). A series of x-rays in
September 2014 noted the plaintiff had signs of rheumatoid arthritis in both knees, shoulder,
wrists, hands and elbows. (Id., at CAMERON_ 1557-1561).
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constitute deliberate indifference. Bingham v. Thomas, 654 F.3d 1171, 1176 (11th
Cir. 2011).
In a § 1983 action, the court must examine whether a prisoner received medical
care rather than the propriety or adequacy of that care. See e.g., Waldrop v. Evans,
871 F.2d 1030, 1033 (11th Cir. 1989); Hamm v. DeKalb Co., 774 F.2d 1567, 1575
(11th Cir. 1985). The mere fact of an injury alone cannot support a claim of
constitutional proportion.

Estelle, 429 U.S, at 105-06.

Attempting different

medications to slow the symptoms of the plaintiff’s progressive disease certainly is
not within the realm of deliberate indifference to medical needs, as that term has been
defined for purposes of constitutional law. See e.g., Fischer v. Federal Bureau of
Prisons, 349 F. App’x 372, 375 (11th Cir. 2009) (“The evidence in the record
indicates Dr. Tidwell exercised his medical judgment in treating and monitoring
Fischer’s prostate condition. Evidence of potential error in Dr. Tidwell’s medical
judgment, or a difference in medical opinion from another doctor, did not create a
genuine issue of material fact because it did not demonstrate action beyond gross
negligence.”); Spaulding v. Poitier, 548 F. App’x 587, 592 (11th Cir. 2013) (noting
that a doctor’s decision about a type of medicine to proscribe is a medical judgment
inappropriate for § 1983 liability). This objection is OVERRULED.

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Objection No. 4: The plaintiff asserts that the magistrate judge misstated what
happened to the plaintiff after receiving the Actemra injection. (Doc. 38 at 3). For
the first time in his objections, the plaintiff asserts he complained the same night he
received the injection. He continues, “the staff did not even consider the fact that I
was having an allergic reaction until the next day when I was almost dead and had to
be rushed out to the emergency room. . . . It was 2 days before I was taken to the
emergency room.” (Id.). He asserts that Dr. Holbrook waited two days to send him
to the emergency room and that Dr. Crawford was deliberately indifferent under this
set of facts. (Id.).
The evidence reflects that the plaintiff received his first and only shot of
Actemra on September 29, 2014.5 (Doc. 20-2 at 10). The plaintiff was seen on
October 2, 2014, complaining of hand pain. (Doc. 20-3 at CAMERON_1105). No
other complaints were noted. (Id.). On October 3, 2014, Dr. Holbrook saw the
plaintiff, who complained that he had a rash that had begun the night before, his joints
hurt and he was lethargic and pale. (Doc. 20-2 at 10; doc. 8 at 3). Dr. Holbrook
noted that the plaintiff “had first shot of Actemra on Monday and started feeling
poorly on Wednesday. He developed a rash on his legs yesterday and has not been
able to get up since yesterday . . . . He was seen for pain in his hand yesterday and

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The court takes judicial notice of the fact that September 29, 2014, was a Monday.
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treated with Toradol. . . .” (Doc. 20-3 at CAMERON_1102-1103). At that point, Dr.
Holbrook determined the plaintiff was having an allergic reaction, likely to Actemra,
and sent him to the local emergency room by ambulance.6 (Doc. 20-2 at 10; doc. 20-3
at CAMERON_1103). Thus, the plaintiff’s objection as to the findings of fact
concerning the sequence of relevant events is not borne out by the medical evidence
before the court. This objection is OVERRULED.
Objection No. 5: The plaintiff objects to the finding that Dr. Monica Crawford
is not a federal actor. (Doc. 38 at 3). He states she agreed to treat federal prisoners
and is paid by the federal government to treat federal prisoners and, therefore, should
be treated as a federal employee.7 (Id.). The plaintiff may not pursue a claim against
Dr. Crawford under Bivens because she was a privately employed doctor, not a
federal actor acting under color of state law. See Minneci, 132 S. Ct. at 626; see e.g.,
Minneci v. Pollard, – U.S. –, 132 S.Ct. 617, 623 (2012) (“in the case of a privately
employed defendant, state tort law provides an ‘alternative, existing process’ capable
6

No definitive statement that the plaintiff had an allergic reaction to Actemra appears
anywhere in his medical records. (Doc. 37 at 14 n. 5). Rather, the records reflect the plaintiff
was found to be septic upon his transfer to Princeton Baptist Medical Center and those medical
providers though his condition was the result of staph sepsis. (Doc. 20-3 at CAMERON 10941095, 1097). Another medical record reflects that during his hospitalization, “methicilin
susceptible Staphylococcus aureus was isolated from both knees and the blood stream....” (Id., at
CAMERON_1460). Since the events that form the basis for the plaintiff’s claims, the plaintiff
was hospitalized again specifically due to sepsis. (Doc. 20-3 at CAMERON_0071, 0105).
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In prior pleadings, the plaintiff did not allege that Dr. Crawford was a federal employee.
Rather, he described her as an “Rhuematologist at Outside clinic.” (Doc. 8 at 3).
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of protecting the constitutional interests at stake.”); Alba v. Montford, 517 F.3d 1249,
1254 (11th Cir. 2008) (refusing to extend Bivens to include employees of a privately
operated prison) (citing Corr. Svs Corp. v. Malesko, 534 U.S. 61, 70 (2001)); Katorie
v. Dunham, 108 F. App’x 694, 698-699 (3d Cir. 2004) (no § 1983 liability against a
private doctor not under contract with the state). The plaintiff’s objection is therefore
OVERRULED.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections thereto, the court
is of the opinion that the magistrate judge’s report is due to be and is hereby is
ADOPTED and the recommendation is ACCEPTED. Accordingly, the defendants’
motions for summary judgment on the plaintiff’s federal claims (docs. 20 and 24) are
due to be granted, the court finding no genuine issues of material fact exist. The
plaintiff’s state law claims are due to be dismissed without prejudice pursuant to 28
U.S.C. § 1367(c).
The court will enter a separate Final Judgment.
DONE and ORDERED this 18th day of October, 2016.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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