Lancellotti v. Bureau of Prisons
Filing
37
MEMORANDUM OPINION & ORDER: IT IS ORDERED (1) Dft's 28 MOTION to Dismiss for failure to state a claim/MOTION for Summary Judgment filed by Bureau of Prisons is GRANTED; Lancelotti's 2 Complaint and 11 Construed Amended Complaint are DISMISSED WITH PREJUDICE; (3) Court will enter appropriate judgment; (4) matter is STRICKEN from docket. Signed by Judge Joseph M. Hood on 08/30/2012.(DAK)cc: COR,Pro Se Pla(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 10-CV-344-JMH
MICHAEL STEPHEN LANCELLOTTI,
VS:
PLAINTIFF
MEMORANDUM OPINION AND ORDER
BUREAU OF PRISONS, et al.,
DEFENDANTS
**** **** **** ****
Plaintiff Michael Stephen Lancellotti is an individual in custody of the Federal Bureau of
Prisons (“BOP”). While incarcerated at the Federal Medical Center in Lexington, Kentucky (“FMCLexington”), Lancellotti, proceeding without counsel, filed this civil rights action pursuant to the
doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
claiming that prison officials have been deliberately indifferent to his serious medical needs in
violation of his Eighth Amendment rights.1 [R. 2]
On April 16, 2012, the Court screened the complaint and the construed amended complaint
[R. 2, 11], dismissed all defendants except Warden Deborah A. Hickey, and issued summons to
require Hickey to respond to Lancellotti’s allegations. [R. 21] Hickey has moved to dismiss the
complaint, or in the alternative, for summary judgment. [R. 28] The Court has entered an Order
directing Lancellotti to file a response to Hickey’s motion [R. 34], but he has not done so. This
matter is therefore ripe for decision. The Court has reviewed the record and the submissions of the
parties, and for the reasons stated below, will grant Hickey’s motion and dismiss the complaint.
1
On or about August 4, 2011, Lancellotti was transferred to the Federal Correctional
Institution in Terminal Island, California.
FACTUAL BACKGROUND
On January 13, 1995, Lancellotti was convicted of (1) Maintaining a Place for the Purpose
of Manufacturing and Distributing Methamphetamine, and (2) Use of a Firearm. He is serving a
sentence of 300 months imprisonment. His current projected good conduct release date is October
3, 2015. [R. 28-3]
On February 13, 2008, Lancellotti underwent cervical spine surgery (anterior cervical
vertebrectomy at C5) in Pomona, California, due to neurological symptoms associated with
degenerative cervical disc disease which apparently resulted from Lancellotti’s fall off of a roof in
1985. (BOP-0369)2 This surgery did not completely resolve Lancellotti’s cervical spine issues.
On or about June 30, 2009, Lancellotti was transferred from the Federal Correctional Center
in Lompoc, California, to FMC-Lexington. After his transfer, he was scheduled for an offsite
examination by a consultative neurosurgeon:
Reason for Request:
Please evaluate this 56 y/o man who was transferred from Lompoc, FCC. He had a
fall from a roof top 23 yrs ago and has had progressive worsening of neurological
symptoms. Had Anterior cervical vertebrectomy at C5 with failed hardwares on
02/13/2008. Recent X Rays revealed intervertebral body cage at C5 with forward
displacement. Was seen by Neurosurgery in 11/14/2008, when cervical CT revealed
that implant had been placed at C5 in incomplete vertebrectomy, partially filled with
bone; a follow up MRI did not show significant compression of foraminal stenosis.
The surgeon scheduled revision surgery, which was cancelled due to patient’s poor
cooperation and refusal of medications for his DM. Surgeon deemed this surgery as
necessary, due to the high risk of anterior herniation, compromising peripheral N.S.
or even life, for which he was rescheduled. The day of surgery, ths surgeon did not
do the surgery due to patient’s uncooperativeness towards him.
Provisional Diagnosis:
2
Hickey has submitted 37 exhibits, consisting of 1216 pages of Lancellotti’s BOP medical
records, under seal. These records are Bates-numbered “BOP-0001” through “BOP-1216.” [R. 29,
30]
2
S/P Anterior cervical vertebrectomy at C5 with failed hardwares, NIDDM, HTN,
Hyperlipidemia.
(BOP-0369). Because Lancellotti’s first cervical spinal surgery had been unsuccessful, a second
surgery was scheduled after Lancellotti’s transfer to FMC-Lexington.
On November 16, 2010, Lancellotti underwent a second cervical spine surgery at the
University of Kentucky Medical Center (“UKMC”). [R. 28-4 at 4, ¶ 9] The surgical procedure
performed was a cervical discectomy and fusion surgery with hardware removal and replacement.
Id. Post-surgery, Lancellotti remained hospitalized at UKMC until November 22, 2010, when he
was returned to FMC-Lexington. He received multiple follow-up evaluations by the UKMC
neurosurgeon in 2010 and into 2011, and he experienced a normal, successful recovery from that
neck surgery. Id.
Lancellotti claims that prison officials at FMC-Lexington were deliberately indifferent to his
serious medical needs because his second surgery was performed at UKMC, and declined his request
to have it performed at the Mayo Clinic in Rochester, Minnesota. As explained by Dr. Michael
Growse, M.D., Clinical Director at FMC-Lexington, before Lancellotti was healthy enough to
withstand the surgery, a host of other medical issues that required testing, monitoring, and treatment
had to be resolved. In his declaration, Dr. Growse states:
1.
I am currently employed as the Clinical Director at the Federal Medical
Center in Lexington, Kentucky (hereinafter “FMC Lexington”). As Clinical
Director, I oversee all clinical medical care provided to inmate patients at FMC
Lexington. I have a Doctor of Medicine degree and I am a licensed physician. In
addition to my supervisory duties, I also see patients and provide clinical medical
care. I have reviewed the medical record of former FMC Lexington inmate Michael
Lancellotti (hereinafter “Plaintiff”), register number 07146-097, on repeated
occasions and I am familiar with his medical conditions and the treatment he
received at FMC Lexington.
3
2.
Plaintiff was incarcerated at FMC Lexington from June 2009, through August
2011, when he was transferred to FCI Terminal Island. While at FMC-Lexington,
he was diagnosed with a wide variety of serious medical problems, including aortic
and valve stenosis, Type II diabetes, hypertension, chronic pain syndrome,
hyperlipidemia, swallowing problems, obesity, mental health issues, and an
unsuccessful cervical spine decompression and instrumentation surgery performed
in 2008 before Plaintiff arrived at FMC Lexington. Plaintiff received extensive
medical care for all of his medical conditions while at FMC Lexington.
3.
After Plaintiff arrived at FMC Lexington in June 2009, he was given a presurgical assessment in preparation for a possible revision of his previous 2008
cervical spine surgery. Plaintiff had originally injured his neck during a preincarceration fall from a building in 1985. During this examination, a previously
undetected heart murmur was found, so Plaintiff was referred to a consultant
cardiologist for evaluation, and a diagnostic echocardiogram was ordered.
4.
On October 22, 2009, the echocardiogram was performed, and it revealed
severe valvular stenosis, mild valvular pulmomic stenosis, mild to moderate mitral
stenosis, and moderate ventricular hypertrophy. On October 30, 2009, Plaintiff’s
condition was reviewed by a consultant cardiologist. The results of the
echocardiogram were reviewed and discussed with Plaintiff. The cardiologist
cleared Plaintiff for neck surgery.
5.
Plaintiff was evaluated by a consultant neurosurgeon for his neck condition
on November 2, 2009. The neurosurgeon recommended Plaintiff receive a cervical
Computerized Tomography (CT) study and a cervical Magnetic Resonance Imaging
(MRI) study, in order to investigate possible instability of the neck. On November
24, 2009, the CT scan and MRI were conducted on Plaintiff, and a follow-up
appointment with the neurosurgeon was scheduled.
6.
On February 22, 2010, Plaintiff’s neck condition was re-evaluated by the
neurosurgeon, and the results of the CT scan and MRI were discussed with Plaintiff.
The physical examination revealed a relatively normal neurological examination.
Cervical spine surgery was deemed to be elective and non-urgent in nature, because
there was no evidence of any marked nerve impingement. The neurosurgeon noted
that Plaintiff had concerns regarding difficulty in swallowing and talking. The
neurosurgeon recommended Plaintiff receive a swallowing study and laryngeal
examination be conducted prior to any cervical spine surgery being performed.
Plaintiff’s FMC Lexington primary care physician reviewed and approved the
treatment recommendation of the neurosurgeon for the swallowing study and
laryngeal examination.
7.
Plaintiff received care for his swallowing problems from FMC Lexington
medical staff, including a licensed staff dietician who placed Plaintiff on a special
4
diet. Plaintiff subsequently received multiple swallowing studies and laryngeal
examination.
8.
Plaintiff’s planned cervical spine surgery was further delayed because of
serious concerns about his severe aortic stenosis, which had to be addressed by the
cardiothoracic surgeon before Plaintiff could have the cervical spine surgery. On
September 29, 2010, Plaintiff was seen by the consultant cardiothoracic surgeon for
his severe aortic stenosis and related cardiovascular issues. The surgeon cleared
Plaintiff for the cervical spine surgery, and recommended Plaintiff be reassessed for
elective aortic valve surgery after his neck surgery.
9.
With the clearance to proceed with the neck surgery, FMC Lexington staff
scheduled Plaintiff’s surgery. On November 16, 2010, Plaintiff received a successful
cervical discectomy and fusion surgery with hardware removal and replacement on
November 16, 2010, at the University of Kentucky (“UK”) Medical Center. Plaintiff
received multiple follow-up evaluations by the neurosurgeon in 2010 and into 2011,
and recovered normally from the neck surgery.
10.
In December 2010, Plaintiff was hospitalized and treated after failing a
barium swallowing study. A cervical osteophytectomy (removal of bone spurs) was
performed at UK Medical Center due to concerns about cervical bone spurs
interfering with Plaintiff’s swallowing. Plaintiff passed a modified barium swallow
study in February 2011, and he was also under the care of a contract speech therapist.
11.
During this period of time, Plaintiff refused surgery for his aortic valve
condition. Plaintiff also voiced a desire to transfer to another institution. During his
entire time at FMC Lexington, Plaintiff presented as a highly difficult patient who
was often non-compliant with the treatment plans for his many medical problems,
and often engaged in manipulative behavior to attempt to obtain his desired goals.
His primary physician at FMC Lexington noted that Plaintiff had feelings of being
persecuted and at times even voiced irrational beliefs that staff was trying
“experiment[s]” on him for profit. Despite having many serious medical issues,
including his aortic and valvular heart problems and swallowing issues which
required further medical investigation and legitimately delayed his neck surgery,
Plaintiff had difficulty accepting these facts.
12.
Plaintiff was cleared for transfer to FCI Terminal Island, which is a medical
facility with a medical mission to care for inmates who require specialized or longterm medical care. On August 4, 2001 [sic], Plaintiff left FMC Lexington en route
to FCI Terminal Island.
[R. 28-4 at 1-5]
APPLICABLE LAW
5
Standards for Dismissal/Summary Judgment
Fed. R. Civ. P. 12(b) provides for the dismissal of claims and parties for seven listed reasons.
Subsection (b)(6) provides for dismissal for failure to state a claim upon which relief can be granted.
Thereafter, Rule 12 continues, in subsection (d), as follows:
(d)
Result of Presenting Matters Outside the Pleadings. If, on a
motion under Rule 12(b) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56. All parties shall
be given reasonable opportunity to present all material made
pertinent to the motion.
Id. Thus, the plain language of Rule 12(d) requires a Rule 12(b)(6) motion to be converted into a
motion for summary judgment where the moving party invites consideration of materials extrinsic
to the complaint as grounds for dismissal. Because Warden Hickey has submitted her own
declaration and that of Dr. Growse, as well as 1200 pages of Lancellotti’s medical records, in
support of her motion, the Court will apply the standard applicable to motions for summary
judgment under Rule 56.
In determining a motion for summary judgment, the Court must determine whether there are
“no genuine issues as to any material fact and the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The Supreme Court has directed that a court must look beyond the
pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The significant question
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-53, (1986). The moving party has the burden of showing there is an
absence of evidence to support a claim. Celotex, 477 U.S. at 324-25. After a moving party carries
6
its burden, the non-moving party must go beyond the pleadings to designate by affidavits,
depositions, answers to interrogatories, and admissions on file, specific facts showing that there is
a genuine issue of material fact for trial. Id. With these standards in mind, the Court examines the
defendant’s motion.
Eighth Amendment Standards
The Supreme Court has held that “[i]n order to state a cognizable claim [under the Eighth
Amendment with regard to medical care] a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to the plaintiff’s serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). Therefore, a prisoner must show both “deliberate indifference”
and “serious medical needs.” Id. “Deliberate indifference” means that prison medical staff knew
of the inmate’s serious medical needs, but intentionally disregarded an excessive risk of harm to the
inmate, or that prison guards or medical staff intentionally prevented the inmate from receiving
prescribed treatment or intentionally delayed or denied him access to medical care. Estelle, 429 U.S.
at 104-105; Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Thus, the Eighth Amendment contains both an objective and a subjective component. Wilson
v. Seiter, 501 U.S. 294 (1991). The objective component requires the existence of a “sufficiently
serious medical need.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004). A
serious medical need is “one that has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Id. at 897. The subjective component requires a plaintiff to show that “the official [knew]
of and disregard[ed] an excessive risk to inmate health or safety, which is to say the official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
7
harm exists, and he must also draw the inference.” Clark-Murphy v. Foreback, 439 F.3d 280, 286
(6th Cir. 2006). Deliberate indifference may be “manifested by prison doctors in their response to
a prisoner’s needs or by prison [staff] in intentionally denying or delaying access to medical care
or intentionally interfering with treatment once prescribed.” Estelle, 429 U.S. at 104.
However, no claim of a constitutional dimension is stated where a prisoner challenges only
matters of medical judgment or otherwise expresses a mere difference of opinion concerning an
appropriate course of treatment. Sharpe v. Patton, No. 08-cv-58-HRW, 2010 WL 227702, at *10-11
(E.D. Ky. Jan. 19, 2010). When the cause of action is based on an allegation that the prescribed
treatment was inadequate in some way, rather than on an allegation that the prison official failed to
provide the plaintiff with any treatment, courts traditionally have been reluctant to second guess the
medical official. Rodriguez v. Lappin, No. 08-cv-347-GFVT, 2009 WL 2969510, at *5-6 (E.D. Ky.
Sept. 11, 2009). Simply put, differences of opinion as to matters of medical judgment, negligent
treatment, or even medical malpractice are insufficient to establish that one has received inadequate
medical care in violation of the Eighth Amendment. See, e.g., Greer v. Daley, No. 01-C-586-C,
2001 WL 34377922, at *3 (W.D. Wis. Dec. 27, 2001). In Greer, some of the inmate’s physicians
requested surgery to correct a deviated septum, but that request was denied by other physicians,
including the Medical Director, based on their medical opinion that surgery was unnecessary. The
court in Greer held that the dispute among medical professionals concerning the inmate’s need for
the surgery in question does not rise to the level of an Eighth Amendment claim for inadequate
medical care.
Further, the law is clear that a prisoner fails to state a claim when he disagrees with the
exhaustive testing, consultations, and treatment he received while incarcerated. Lyons v. Brandly,
8
430 F. App’x 377, 379-81 (6th Cir. 2011). It is well-settled that “[w]here a prisoner has received
some medical attention and the dispute is over the adequacy of the treatment, federal courts are
generally reluctant to second guess medical judgments and to constitutionalize claims that sound in
state tort law.” Graham ex rel. Estate of Graham v. Cnty. of Washtenaw, 358 F.3d 377, 385 (6th Cir.
2004) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). The Eighth Amendment
does not require that every request for medical care by an inmate or specific type of care be honored.
Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972); Forbes v. Edgar, 112 F.3d 262, 267 (7th
Cir. 1997). “Because the plaintiff received medical attention, and his dispute is over the timing and
adequacy of that treatment, the Court will not second-guess medical judgments or constitutionalize
these state tort claims.” Dotson v. Wilkinson, 477 F. Supp. 2d 838, 849 (N.D. Ohio 2007) (delay in
placing plaintiff in Hepatitis C program did not rise to deliberate indifference when plaintiff’s high
blood pressure and creatinine levels excluded him from candidacy). See also Westlake, 537 F.2d
at 860; Shofner v. Comacho, 230 F.3d 1359 (6th Cir. 2000).
ANALYSIS
The voluminous medical records provided by the BOP establish that prison medical staff
have provided Lancellotti with an abundance of medical care to treat his numerous medical
conditions, the antithesis of deliberate indifference to his medical needs. Upon arriving at FMCLexington in June 2009, Health Services staff performed an initial health screening, and Dr. Morales
conducted a physical examination. As a result, Lancellotti was given a provisional diagnosis of “S/P
Anterior cervical vertebrectomy at C5 with failed hardwares, NIDDM, HTN, Hyperlipidemia.”
(BOP-0369). Dr. Morales noted that before he arrived at FMC-Lexington, Lancellotti had been
scheduled for revision surgery to correct the problems associated with the 2008 cervical spine
9
surgery, but that the surgery had been cancelled. Dr. Morales therefore requested an offsite
neurosurgery consultation for Lancellotti. Id.
Dr. Growse indicates that Lancellotti underwent a pre-surgical assessment shortly after his
arrival at FMC-Lexington. [R. 28-4 at 2; BOP 0219-28; BOP 0241-55] During this assessment,
staff detected a previously unknown heart murmur, necessitating a cardiology consult,
echocardiogram, and clearance before surgery could proceed. [R. 28-4 at 2 ¶ 3; BOP 0146; BOP
0180-85; BOP 0187-89; BOP 352-54, BOP 0370; BOP 0564-65; BOP 0583-90; BOP 0848; BOP
0849] Lancellotti also had severe difficulty swallowing, which required further medical intervention
prior to his neck surgery. [R. 28-4 at 2-3, ¶¶5-7; BOP 0130-33; BOP 0336-37; BOP 0737-38; BOP
0873-74] Lancellotti’s surgery was also delayed because of serious concerns about his severe aortic
stenosis, which required consultation by the cardiothoracic surgeon. [R. 28-4 at 3-4, ¶8; BOP 0564;
BOP 0849].
While physicians were working to address these medical concerns so that he could undergo
surgery safely, Lancellotti continued to complain of his treatment and demand that he either have
the surgery at once or be transferred immediately. [BOP 0542] However, on October 26, 2010, the
same date Lancellotti requested a transfer “if I am not going to get the surgery,” BOP medical
records reflect that his surgery had already been scheduled and that transfer was not indicated at that
time. [BOP 0541-42] Dr. Carr noted: “Patient very frustrated by the delay,…the date is set.” Id.
Approximately two weeks later, Lancellotti underwent a successful cervical surgery. [R. 28-4 at
4 ¶9; BOP 0778-83; BOP 0813-16] He also underwent a second surgery to remove bone spurs in
December 2010 to correct swallowing problems. [R. 28-4 at 4 ¶10; BOP 0457-58; BOP 0758-63]
10
During this period, Lancellotti refused surgery for his aortic valve condition. [R. 28-4 at 4-5 ¶11;
BOP 0731-32]
Lancellotti’s medical records establish that the medical staff at FMC-Lexington provided
Lancellotti with extensive and adequate medical care not only with respect to his cervical spine
surgery, but also for numerous related medical conditions. [R. 28-4 at 1-5, ¶¶ 2-11] Lancellotti’s
neck surgery was legitimately delayed because serious aortic and valvular heart problems were
discovered and needed further medical investigation, along with his swallowing issues. [R. 28-4 at
2-4, ¶¶ 3-9; BOP 0564; BOP 0583; BOP 0590] Medical staff performed the neck surgery Lancellotti
needed promptly after he cleared medical conditions, and the surgery was successful. [R. 28-4 at
4 ¶ 9; BOP 0778-83] Lancellotti refused surgery for his aortic condition. [R. 28-4 at 4-5, ¶¶ 11-12;
BOP 0731-32; BOP 1211] The foregoing facts clearly establish that medical staff, both those
employed directly FMC-Lexington and outside medical consultants, provided Lancellotti with
extensive and competent medical care which was appropriate and fully consistent with constitutional
standards.
Lancellotti has also failed to demonstrate that Warden Hickey was in any way personally
involved in decisions regarding his health care. Hickey indicates that she served as the Chief
Executive Officer of FMC-Lexington and the custodian of inmates incarcerated there, including
Lancellotti, from July 2009 through May 2012. [R. 28-5 at 1 ¶1] As warden, Hickey was the head
of numerous departments at the institution, including the Health Services Department, which
provided medical services to Lancellotti and other FMC-Lexington inmates. [R. 28-5 at 1-2, ¶2]
However, Hickey delegated all responsibility for the clinical medical care of Lancellotti to her staff
11
in the Health Services Department, and she had no direct involvement with any medical decisions
or care for Lancellotti. [R. 28-5 at 2, ¶3]
These facts establish that Lancellotti cannot state a viable Eighth Amendment claim against
Warden Hickey arising out of his medical care. A plaintiff must demonstrate that the defendant
“possessed a sufficiently culpable state of mind in denying the medical care.” Estate of Carter v.
City of Detroit, 408 F.3d 305, 311 (6th Cir. 2005) (quoting Blackmore v. Kalamazoo County, 390
F.3d 890, 895 (6th Cir. 2004)). Liability for violating a person’s civil rights must be predicated
upon a defendant’s personal actions. Hicks v. Dewalt, No. 07-CV-335-KSF, 2008 WL 2859031, at
*4 (E.D. Ky. July 24, 2008). The plaintiff must describe how each individual defendant acted
personally to deprive the plaintiff of his constitutional rights. Rizzo v. Goode, 423 U.S. 362 (1976).
Bare-boned, conclusory allegations that a defendant personally deprived plaintiff of constitutional
or statutory rights are insufficient. Hall v. United States, 704 F.2d 246, 251 (6th Cir. 1983).
In this case, Lancellotti has failed to articulate how Defendant Hickey was personally
involved in his medical care. In fact, Warden Hickey indicates that she had no direct involvement
with any medical care or decisions related to Lancellotti. [R. 28-5 at 2, ¶3] Moreover, non-medical
personnel are not “deliberately indifferent” simply because they did not personally respond to
medical complaints from a prisoner who was already under the care of the medical professionals.
Harrison v. Ash, 539 F.3d 510, 518-20 (6th Cir. 2008); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004). Warden Hickey’s position as the prison administrator simply does not “justify any inference
of personal involvement in the alleged deprivation of medical care.” Williams v. Faulkner, 837 F.2d
304, 308 (7th Cir. 1988).
12
Nor can Warden Hickey be held legally accountable for constitutional torts committed by
others merely because she has supervisory responsibility over them. Polk County v. Dodson, 454
U.S. 312 (1981). Instead, liability must be premised on direct or personal involvement of the named
defendant. Winkelman v. Doe, No. 07-cv-98-GFVT, 2007 WL 2251893, at *3 (E.D. Ky. Aug. 7,
2007) (citing Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir.1989) and Hays v.
Jefferson County, Ky., 668 F.2d 869, 872 (6th Cir. 1982)). Here, Lancellotti has failed to allege facts
indicating that Warden Hickey was somehow personally involved in making medical decisions
regarding his care, an involvement negatived by both Hickey’s own declaration and the extensive
medical records filed by the BOP. Because Hickey was neither personally involved in Lancellotti’s
care nor vicariously liable for the care provided by others, the Eighth Amendment claims against
her fail as a matter of law. Rizzo, 423 U.S. 362.
Accordingly, IT IS ORDERED that:
1.
The Defendant’s motion for summary judgment [R. 28] is GRANTED.
2.
Lancellotti’s complaint and construed amended complaint [R. 2, 11] are
DISMISSED WITH PREJUDICE.
3.
The Court will enter an appropriate judgment.
4.
This matter is STRICKEN from the active docket.
This the 30th day of August, 2012
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