Bushrod v. Stewart et al

Filing 16

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/15/2017. (c/m 9/15/2017 tds, Deputy Clerk)

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IN TilE UNITEIl STATES IHSTlUCT COURT
FOR TIlE IlISTRICT OF MARY:I}\9S1) \ 5
Southern Ili\'ision

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KEVIN M. BlJSHROIl, #5010-t-007,

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Plaintiff,

v.

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TIMOTHY STEW ART, Warden,
FCI-Cumberland,
MOIIAMEIl MOUBAREK,I Clinical
Ilireetol', FCI-Cumherland,
I{N McCORMICK, Nurse,
FCI Cumberland,
Mil MCGANN-Medical Iloctor,
FCI CUMBERLANIl,
MA' AM SMITH, Unit Manager,
MA 'AM ARVISO, Associate-Warden of
Operations,
DR. HERSHBERGER,
Head Psychologist,

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Case No.: G,lII- 1()-1 !l79

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Defendants.

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MEMORANDUM
In his Complaint
malpractiee

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OPINION

betim~ this Court. Kevin M. Bushrod raises claims of medical

pursuant to the Federal Tort Claims Aet ("'FTCA").

constitutionally

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inadequate

Federal Bureau oj'Narco/ics.

medical care pursuant

28 U.S.c. ~ 2671. e/. self .. and

10 Bivens \'. Six Unkn()\1'11Nallled Age11ls or/he

403 U.S. 388 (1971)2 ECF No. I: ECF NO.4. Defendants

tiled a Motion to Dismiss or. in the Alternative.

Motion li)r Summary

Judgment.

have

lOCI' No. 12.

The docket will be corrected to reflect Defendants' names and titles shown in their dispositive Illotion. ECF No. 12
"'established that the victims ofa constitutional violation by a federal agent have a right 10 recover llumuges
against the allicinl in federal COlll1 despite the absence of any statute conferring such a right:" !lartmaJ11', ,\Ioon'.
547 U.S. 250. 25~ n.2 (2006) (quoting ('''I'/soo \'. (JI'eell. 446 U.S. 14. 18 (1980)). "["jlJi\'el1S aclion is Ihe federal
analog to suits broughl against state onici31s lIndt:!" ... 42 U.S.C.
1983:' /d.
I

! Bi\'<'l1s

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which is unopposed.3 In accordance with Rosehoro \". Garrisol1. 528 F.2d 309 (4th Cir. 1975).
the Clerk sent notice to Bushrod to inform him that he may lile a response with affidavits and
exhibits. ECF No. 24.
The matter is ready for disposition. The Court finds that a hearing is unnecessary . .<;ee
Loc. R. 105.6. (D. Md. 2016). For reasons to liJlIow. Defendants' Motion to Dismiss or in the
Alternative for Summar~' Judgment. ECF No. 12. which the Court construes as a Motion for
Summary Judgmcnt is grantcd.
I.

BACKGROUN[)4
Kevin M. Bushrod is a federal inmatc who is prescntly houscd in a halfway house as part

of the federal Residential Reentry Program. He claims that during thc timc hc was incarcerated at
the Federal Correctional Institution in Cumberland. Man'land ("FCI-Cumberland").

Defendants

denied him physical therapy for his leli shoulder injury and appropriate medication I())"
his
mental health condition. ECF No. I.
Bushrod was designated to FCI-Cumberland on May 26. 2015. ECF No. 13-1 at 2.;
During his intake health screening. he stated that he suflers Ieli shoulder pain from a gunshot
wound sustained in September 01'2014. for which he had been receiving physical therapy. lie
was provided a sling to immobilize his shoulder and continucd on Amitriptyline. a mcdication to
trcat mcntal health disorders. ECF No. 13-1 at 14-15.
On May 27. 2015. Bushrod was secn at llealth Services I()r a medical history and
physical examination. The physician assistant who examined Bushrod submitted a radiology

J Defendants arc sued as "severally and jointly" responsible.
Ecr No. ~ at 3. l1ushrod docs not specifY whether he is
suing Defendants in their oflicial or individual capacities or both. Service of process was accepted f{lr only
Defendants in their ofticial capacities. ECF NO.8. For reasons to be dis(:usscd herein. the claims against Defendants
in both their official and personal capacities are unpersuasive.

~ The facts relied

011

herein are either undisputed

Pin cites to documents
by that system.

5

filed

011

or viewed

the Court"s electronic

filing

2

in the light most favorable
system (Cl\1fECF)

to the non-Illovant.

refer to the page numbers

generated

rcqucst to cvaluatc
rcvcalcd

Bushrod's

post-traumatic

Icli shouldcr condition.

dcformity

ofthc

ECF No. 13-1 at 30. Thc x-ray rcsults

proximal humerus with multiple ballistic fragmcnts.

ECF No. 13-1 '16: lOCI' No. 13-1 at 30. 33.
At his psychology
diagnoscs

of Attcntion

Disorder C'PTSD").

intakc scrccning

Delidt

Hyperactivity

Anxiety. and Dcprcssion.

J unc 30. 2015. Stephany
decreased

on May 28. 2015. Bushrod rcported prcvious

McGann.

Disorder ("ADHD").

Post-Traumatic

lOCI' No. 13-1 ~ 11: ECF No. 13-1 at 83-92. On

M.D" saw Bushrod fiJI' complaints

of leli arm weakncss and a

rangc of motion. ECF No. 13-1 at 35. Bushrod reportcd difliculty

abovc his hcad and stated that as a basketball
in his upper extremity.
Septcmbcr

of2014.

which improved

submittcd

raising his Icli arm

player he wantcd to obtain bettcr rangc of motion

Ill. at 37. He reported that aner hc was shot in his Ieli shouldcr in

he did not undergo surgery. Bushrod said he was providcd physical thcrapy

his condition.

Bushrod told McGann that hc had a good rangc of motion cxccpt

for raising his ann above his hcad. Ill. at 35. Although
cffectiveness

Stress

of additional

a consultation

McGann cxprcsscd

rcscrvations

about thc

physical thcrapy. givcn that thc injury was ninc months old. shc
request for physical thcrapy li)r Bushrod. ECF No. 13-1 at 2.

No. 13-1 at 37. On July 29. 2015. the Utilization
physical therapy to be mcdically

unnccessary.

Rcvicw Committec

'1 7:

ECF

dcnicd the rcqucst. linding

ECF No. 13-1 at 40.

Bushrod was seen multiple timcs Irom August 28. 2015. through July II. 2016. fiJI'
complaints

of leli shouldcr

was cxamined

pain and wcakncss.

!d at 2.

and linmd to havc a slight dcereasc

'i 9.

During his medical appointmcnts.

he

in the range of motion in the Icli shouldcr.

but

had passivc and active rangc of motion. !d at 2. '19: ECI' No. 13-1 at 42-44.
Clinical
Bushrod's

Director at FCI. Dr. Mohamcd
pm1icipation

Moubarck.

in daily activities

65-67. The

notcd thc shoulder injury does not prevcnt

or playing baskctball.

3

48-59.

ECF No. 13-1 at 60-61

(indicating Bushrod injured his knee while playing basketball).
FC[-Cumberland staff manages Bushrod's shoulder injury through "eonservative
treatment" and "pain management:'

ECF No. [3-1 at3. ~ 10. Dr. Moubarek made the decision

not to order timher physical therapy beeause. in his medical opinion. Bushrod had attained the
maximum therapeutie benetit he wou[d reeeive from physical therapy sessions. lei. Moubarek
states that prior to entering into the custody of the Bureau of Prisons ("BOP"). Bushrod rcceived
several months of aggressive physical therapy while in custody of the Central Detention Facility
in Washington. D.C .. and once it was discontinued. he was directed to continue rangc of motion
exercises on his own.ld. [n Moubarek's opinion. "due to the nature of his gunshot wound. which
includes post-traumatic dcformity of the proximal humerus with multiple ballistic fhlgments still
in place. he will not be able to regain the exact same [ever of range of motion that existed prior to
his injury:' !d.
FC[-Cumber[and's

Chief Psychologist. Frank [[ershberger. who met with Bushrod six

times between June 22. 2015. and March 21. 2016. diagnosed him with M,~ior Depressive
Disorder. and prescribed cognitive behavioral therapy. Id. at 3. ~ 12: ECF No. 13-1 at 86-92. On
August 31. 2015. Bushrod asked to be prescribed antidepressant medication. and was referred to
Health Services for evaluation. Bushrod was prescribed Cit[opram. Fluoxctine. Sertaline and
Paroxctinc" for his mental health condition. but did not fully comply with the prescribed
medication regimens. ECF No. 13-1 at 3. ~ 12: ECF No. 13-1 at 70. 74. 76. 86-92.
Bushrod asserts that Dr. Moubarek denied him physical therapy and discontinucd "all
medications" without having access to his medical records. ECF NO.4 at 3. He claims

6

These medications are in a class of medications called selective serotonin-rcuptake

inhibitors used to treat

depression and other conditions. Set! https:/lmedlincplus.gov/druginfo/mcds. (last visited Sept. 8. .:!OI7).
Citlopram. Fluoxetinc. SCl1alinc. and Paroxetinc are also known rcspectivel,Y by their brand names eclc.xa.
Prozac. Zolotl. and Pa~dl.Id.

Moubarek's "oITthe culr medical care constitutes cruel and unusual punishment. Id. As relief.
he seeks $750.000 in compensatory damages and $250.000 in punitive damages. restoration of
medications prescribed for him before his incarceration at FCI.Cumberland. and I()r Defendants
to cease and desist Irom denying him medical care. ECF No. I at 6: ECF NO.4 at 3.7
II.

STANDARD

OF REVIEW

A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6). "a complaint must contain suflicient
factual matter. accepted as true. to 'state a claim to relief that is plausible on its Illce.... Ashero!i
\', II/hal, 556 U.S. 662. 678 (2009) (citing Bel! Allal1lie Corp. \'. 7iromhly.

550 U.S. 544, 570

(2007». "A claim has facial plausibility when the plaintilTpleads factual content that allows the
court to draw the reasonable inference that the delCndant is liable I()r the misconduct alleged."
II/hal. 556 U,S, at 678, "Threadbare recitals of the elements of a cause of action. supported by

mere eonclusory statements, do not suflice." Id. (citing TIl'IJll1hly. 550 U.S. at 555) ("[AJ
plaintiffs obligation to provide the 'grounds' of his 'entitle[mentJ to rcliefrequires more than
labels and conclusions. and a formulaic recitation ofa cause of action's elements will not do."').
Fed. R, Civ, 1'. 12(b)(6)'s purpose "is to test the sufliciency ofa complaint and not to
resolve contests surrounding the facts. the merits of a claim. or the applicability of defenses."
Presley \'. Cily o{Charlolle.\"I'il!e.

464 FJd 480. 483 (4th Cir. 20(6) (citation and internal

quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6). a court "must
accept as true all of the factual allegations contained in the complaint." and must "draw all
Bushrod claims that Defendants are in violation of the "Federal Disability Statutes:" the "Rehabilialion Act:" and
the "Revitalization
Act" without explanation. EeF NO.4 at 3. He alleges no facts to mise a claim under the
Americans with Disabilities Act or the Rehabilitation Act. The Revitalization Act of 1997 was enacted by Congress
7

to transfer authority for pj]role matters to the United States Parole COlllmission. and abolished the District
Columbia Board of Parole. "Revitalizal iOIl Act:' District of Columbia Sentencing Comm ission.
https://scdc.dc.gov/pagc/revitalization.act.
Bushrod is a D.C. parole viol.HOr. ECF No. 12-1 at 2. I hmcvcr.
claim of a violation under the "Revitalization Act:' is irrelcvant to his medical claims.

5

or
<lny

reasonable

inferences

\" Kolon!n"lIs
omitted).

£.1.

[from those facts] in favor of the plaintiff"

.. Inc,. 637 F.3d 435. 440 (4th Cir. 2011) (citations

The Court need not. however.

accept unsupported

"II

Pont de Ne/1/ollrs & Co,

and internal quotation

legal allegations.

marks

see Rewne

,'.

Charles COlll1fy CO/1//1/'rs. 882 F.2d 870. 873 (4th Cir. 1989). legal conclusions

couched as

factual allegations.

factual

allegations

Papasan

\'. A !lain. 478 U.S. 265. 286 (1986). or conclusory

devoid of any reference to actual events. Unite" Black Firefighters

Hirst. 604 F.2d 844. 847 (4th Cir. 1979). The claims against Defendants
Arviso will be dismissed
B. Motion

Judgment.

Stewart. Smith. and

.Judgment

motion is styled as a Motion to Dismiss. or in the Alternative.

If the Court considers

materials

outside the pleadings.

Fed. R. Civ. P. 12(d). When

the Court treats a motion to dismiss as a motion f()r summary judgment.
opportunity

nonmoving

Judgment:'

to Dismiss. or in the Alternative.

as is the case here. and attaches additional

party is. of course. aware that materials

ld

Wa.I'!1.Airports All/h.. 149 F.3d 253. 260-61
from granting a motion for sunullary judgment

materials to its motion. the

See Lallghlin \'. Metropolitan

(4th Cir. 1998). Further. the Court is not prohibited
before the commcncement

R. Civ. P. 56(a) (stating that the court "shall grant summary judgment
there is no genuine dispute as to any material
is appropriate

f()r

outsidc thc pleadings are bef()rc the Court.

and thc COlllt can treat the motion as one for summary judgment.

Summary judgment

"[alII parties must be

to present all the material that is pertinent to the motion."

When the moving party styles its motion as a "Motion
Summary

for Summary

as the Court docs here. the

Court must treat a motion to dismiss as one for summary judgment.

given a reasonable

\'.

under this standard.

for Summary

Defendants'

o(Norfillk

6

See Fed.

if the movant shows that

ftlct" without distinguishing

if"materials

of diseovery.

pre-or post-discovery).

in the record. including depositions.

documents.

electronically

stored inlonnation.

admissions.

intcrrogatory

answers. or other materials:'

"no genuine dispute as to any material

aflidavits

fiJr summary judgment

exists as to material

I'.

1(87). II' the moving party demonstrates

to support the nonmoving

U.S. at 322-23. A material fact is one that

of the suit under the governing

law:' Sl'ri~g.I'

Diall/olld A 1110Glass.

if suflicient

evidence

favoring the

party exists for the trier of fact to return a verdict for that party, Andersoll.
the nonmoving

mere speculation

or the building of one inference

movant is to be believed.

upon another:'

and all justifiable

inferences

477 U.S. at 255, The Court will dismiss l3ushrod's
McCormick.

477 U.S,

party "cannot create a genuine issue of material fact through
Beale \'. 1101'l(1'.769 F,2d 213.

214 (4th Cir. 1(86). When ruling on a motion lor summary judgment.

III.

I'.

\'. Uherly Lohhy. IIIC" 477 U.S, 242. 248

fact is only "genuine"

at 248. However.

Moubarek.

that no genuine dispute

party to identify specific lilctS showing that

242 F.3d 179. 183 (4th Cir. 2001) (quoting Anderson

nonmoving

Colrell. 477 U.S. 317. 322 (1986). The

that there is no evidence

there is a genuine issue lor trial. See Celolex. 477

A dispute of material

as a maller of

Co. \'. Call/eo Prol's .. 810 F.2d 1282. 1286 (4th Cir.

party's case. the burden shilis to the nonmoving

(1986»,

.. "

I'ed. R. Civ. P. 56(c). show that thcre is

bears the burden of demonstrating

facts. ['III/iall//II\'.

"might affect the outcome

stipulations

fact and the movant is entitled to judgment

law:' Fed. R. Civ. P. 56(a): see also Cetolex Corl'.
party moving

or declarations.

McGann. and llershberger

"[tJhe evidence of the non-

arc to be drawn in his favor:' ;1l7llersoll.

FTC A and Bh'ells claims against Defendants
on summary judgment.

DISCUSSION
Delendants

administrative

contend that l3ushrod's

remedies

FTC A claims are barred because he lililed to exhaust

prior to initiating this action. ECF No. 12-1 at 6. Defendants

are entitled to summary judgment

on the Bh'el7.l' claims on the grounds of statutory

7

assert they
immunity.

lack of personal

involvement.

and for failure to show the requisite deliberate

indifference.

ECF

No. 12-1 at 8-10.
A. FTCA Claims
The United States "is immune li'om suit save as it consents to be sued ...
of its consent to be sued in any court deline the court's jurisdiction
SIllIes \'. resllln. 424 U.S. 392.399
(1941

».

employees

the suit." Uniled

to entertain

(1976) (citing Uniled SIllIes \'. Shenl'Ood. 312 U.S. 584

"The Federal Tort Claims Act is a limited waiver of sovereign

Federal Government

and the terms

immunity.

making the

liable to the same extent as a private party fllr certain torts of federal
Uniled SIllIes \'. Orlellns. 425 U.S. 807.

acting within the scope of their employment,"

814 (1976). The Federal Tort Claims Act ("FTCA")

is to be narrowly construed

against waivers

of sovereign

immunity.

Id at 813-14.

of sovereign

immunity

lur claims brought against the United States bascd on the negligence

wrongful
U.S.C.

acts or omissions

**

By enacting the FTCA. Congress created a limited waiver

of its employecs

1346(b)( 1).2671-2680.

within the scopc of their cmployment.

Belurc a Court may cxercise jurisdiction

a plaintiff must submit proof of cxhaustion
appropriate

committed

fcderal agency. See 28 U.S.c.

of administrative

**

or
28

over a FTC A claim.

rcmcdics by liling a claim with thc

1346(b). 2675(a). This requirement

is jurisdictional

and cannot be waived. See Ahmed \'. United Slales. 30 F.3d 514. 516 (4th Cir. 1994).
On October
regarding

1.2015.

the treatment

he received

1301' Rcgional Counsellur
2. 2015./d.

Dccember
determined
SIllIes

I'.

Bushrod tiled an administrativc

'in accordance

lur his shoulder and mental hcalth. ECF No. 1-2 at \-5. Thc

the Mid-Atlantic

at 9. However.

claim lur medical malpractice

Region denied the administrativc

the FTC A also "requires

claim on

the governmcnt"s

liability to be

with thc law of the placc whcre the act or omission occurred .... Uniled

SI. LOllis Uni\'., 336 F.3d 294. 300 (4th Cir. 2003) (quoting 28 U.S.C.

8

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1346(b)( \ ).

Because the alleged medical malpractice
controls. The Maryland
& .Iud. Proc.

**

occurred

Health Care Malpractice

3-2A-0 I. el self.. "estahlishes

malpractice

claims."

malpractice

claims.

1'.

requires a putative plaintilTto

medical providers

Claims Act C'HCMCA").

a state administrative

present his claims to Maryland's

had departed

Where a medical malpractice

[\1(\'

Code Ann .. Cts.

claims procedure

statc courts'"

medical

eertilicate

that the defendant

lawsuit is tiled in state or fcdcral court without complying

and tiling an expert's

precedent

I(l!'

Irom the standard of carc. prior to filing suit in fcderal court. 1<1.

such a suit "shall be dismissed.

"condition[s]

rclating to

llealth Claims Alternative

and to tile an expert's

certiticate

*

3-2A-04(b)(

are not "mcrely

to bringing a medical malpractice

...

with

IVil/el'<'r. 775 F.

without prejudice

Supp. 2d at 777 (citing Md. Code Ann .. CIs. & .Iud. Proc.
to the HCADRO

law of Maryland

Uniled Slales. 775 F. Supp. 2d 771. 777 (D. Md. 20 II ). IICMCA

Omee ("IICADRO")

thcsc requirements.

the suhstantive

which must be followed by plaintiffs suing the United States
lViI/em'

Dispute Resolution

in Maryland.

I )(i»). Presenting

procedural

rulcls'"

the suit
but arc

lawsuit in this Court or the Maryland

Id.

Bushrod has not filed his claims with thc IICADRO.
ccrtiticatc

stating that Defendants

dcparted

from the standard of care. See ECF No. 12-5.

Bushrod docs not rclute his tailurc to tile with IICADRO
claim that any exception
requircment

B.

claims. the Court grants Defendant's

and does not

Summary Judgmcnt

FTC A claims.

Bil'ens Eighth Amendment

The Eighth Amendment
of its guarantee

or the rcquired ccrtitieate

to the law applies. Because Bushrod has Illiled to satisly this nccessary

t()r medical malpractice

Motion on Bushrod's

and has not filed an expert's

Claim

prohibits "unnecessary

against cruel and unusual punishment.

9

and wanton intlietion
Gregg

1'.

of pain" by virtue

Georgia. 428 U.S. 153. 173

(1976). In ordcr to statc an Eighth Amcndment claim lor denial of medical care. a plaintiff must
demonstrate that the actions of the defendants or their lailure to act amounted to "deliberate
indifference" to a serious medical need. See Estelle \'. Gail/hie. 429 U.S. 97. 106 (1976).
"Deliberate indifference is a very high standard - a showing of mere negligence will not meet it .
. . [1']he Constitution is designed to deal with deprivatio!ls of rights. not errors in judgmcnts.
evcn though such errors may have unlortunate consequences ... To lower this threshold would
thrust federal courts into the daily practices of local police departments:'

Grayso/1 \". Peed. 195

F.3d 692. 695-96 (4th Cir. 1999).
Deliberate indiffcrence to a serious medical need requires proof that. objectively. thc
prisoner-plaintiff was suffering Irom a serious medical need and that. subjectively. the prison
staff was aware of the need for mcdical attention but Itliled either to provide it or ensure the
needed care was available. See Farll/er \'. Bre/1/1a/1. 511 U.S. 825. 837 (1994). Objectively. the
medical condition at issue must be serious. See Hudl'O/1 \'. McMillia/1. 503 U.S. 1.9 (1992) (there
is no expectation that prisoners will be provided with unqualilied access to health care). Proof of
an objectively serious medical condition. however. does not end the inquiry.
The subjective component requires "subjective recklessness" by the prison staff in the
lace of the serious mcdical condition. See Farll/er. 511 U.S. at 839--40. "Truc subjecti\'e
recklessness requires knowledge both ofthc gcneral risk. and also that the conduct is
inappropriate in light of that risk:' Rich \". Bruce. 129 F.3d 336. 340 n.2 (4th Cir. 1997). "Actual
knowlcdge or awareness on the part of the alleged intlicter ... becomes esscntial to proofof
deliberate indifference .because prison ofticials who lacked knowledge of a risk cannot be said
to have intlicted punishment .... Brice \". Va. Beach Corr. Center. 58 F.3d 101. 105 (4th Cir.
1995) (quoting Farll/er. 51 I U.S. at 844). If the requisite subjective knowledge is established. an

10

oflicialmay

avoid liability "iffheJ

ultimately

aveI1ed:'

Bi!OI'll.

reasonably

to the risk. even if the harm was not

See Farmer. 511 U.S. at 844.

In essence. the treatment
excessive

responded

rendered must he "SO grossly incompetent.

as to shock the conscience

or to he intolerable

or

f~lirness:' Ali/tier

to fundamental

896 F.2d 848. 851 (4th Cir. 1990) (citation omitted) (overruled

inadequate.

1'.

in part on other grounds

by Farmer. 511 U.S. at 837: aWd in pertinent part by Shar!,e \'. S.C. De!,'/ oI'Corr .. 621
Fed.Appx.

732 (Mem). (4th Cir. 2015)). "Oeliberate

an excessive

risk to inmate health or sakty:

facts from which the inference

See S/wkka

1'.

a/so .IIi//ier \'. Bi!OI'll. 896 F. 2d at 854-55 (reasoning

indifferent

judgement

.

onlv throul!h intentional
~

t.

McCormick.

Public Ilcalth Service ("PHS")
McCormick.
exhibiting

McGann,
deliherate

interference

McGann.

K

under 42 U.S.c.

Smi/h. 71 F. 3d 162. 167 (4th Cir. 1996): .Iee
that supervisory

in the inmate's
McCormick,

and Hershberger

prison oflicials arc entitled

medical care).

McGann,

and Hershherl?;cr

arc employed

provided constitutionally

by the United States

inadcquate

medical care by

to his serious medical needs. See ECF NO.1. In response.

assert that they are entitled to ahsolute immunity
thcy provided

risk of serious harm exists and

and assigned to the BOP. ECF No. 12-4. Bushrod alleges

and Hershberger
indifference

hoth he aware of

of trained medical providers and may he found deliherately

Claims Al?;ainst Defendants

Defendants

by either

Farmer. 511 U.S. at 837. Generally. prison oflieials may rely

of medical providers.

to rely on the professional

the Idefendantlmust

could be dr3\\'Il that a substantial

he must also draw the inference."
on the expertise

may he demonstrated

Id. Reckless disregard occurs when a defendant "knows of

actual intent or reckless disregard:'
and disregards

indifference

they

fhllll all claims arising from the medical care

~ 233a." Section 233(a) con leI's ahsolute immunity

The statute provides in pertinent pan that:

11

to 1'1 IS

ollicers and employccs "for actions arising out of the pcrformance of medical or related
functions within the scopc of their employmcnt by barring all actions against thcm for such
conduct:' fiui \', Castal7eda. 559 U.S. 799. 806 (2010). "[T]he immunity provided by *233(a)
precludcs Bi\'el7s actions against individual PHS ofticcrs or cmployccs for harms arising out of
conduct describcd in that section." !d. at 812. Bushrod does not dispute that McCormick.
McGann. and Ilershberger's actions were within the scope of their cmploymcnt. As such. he
does not dispute that they are entitled to immunity, As there is no genuinc issue of material 1~lct
in dispute. summary judgment shall be entercd in favor of McCormick. McGann. and
Ilershberger as to all Bi,'el7s claims against them.
2,

Claims A~ainst Defendants Stewart, Smith, and Arviso

Liability in a Bi,'el7s action is premised on each defendant's personal conduct in carrying
out constitutional violations, 71'ldoek \'. Freeh. 275 F,3d 391. 401 (4th Cir. 2001). As such. a
Bi\'el7s action may not be premised upon a respol7deat superior
Iqhal. 556 U.S. 662. 676 (2009): Dal7ser \'. Stal7sherry,

theory." See, e.g. ... lsh('/'ofi

I'.

772 F,3d 340. 349 (4th Cir. 2014)

("[G]overnment ofticials cannot be held liable in a Bil'el7s case under a thcory of respondeat
supcrior for the actions of their subordinatcs."). Absent vicarious liability. each government
ofticial is liable li)r only his or her own misconduct. Asherofi \'. Itlhal. 556 U.S. 662. 677 (2009):
71'ldoek. 275 F.3d a1402. See Shall' \'. Stroud.

13 F3d 791. 799 (4th Cir. 1994) (imposing

The remedy against the United States provided by sections 1346(b) and 2672 of title 28 ... for
damage for personal injury. including death. resulting from the performance ofmcdica1. surgical.
dental. or related functions. including the conduct of clinical studies or investigation. by any
cOlllmissioned ollicer or employee oflhe Public Health Service while acting within the scope of
his oflice or employment. shall be exclusive of allY other civil action or proceeding by reason of
the same subject-matter against the onicer or employee (or his estate) whose act or omission gave
rise to the claim.

*

42 U.S.C 233(a).
Respondeat Superior, is a Latin phrase meaning meaning "let the superior answer:' This doctrine provides that an
employer is liable in certain cases for the wrongful acts of his employee, and a principal for those of his agent. .<.,'ee
Blacks Law Dictionary (Rth ed. 2004).
l)

12

liability on a supcrvisor
subordinatc

was cngagcd

constitutional

of actual or constructivc

in conduct that poscd a pervasive

injury, (2) thc supervisor's

show delibcrate
affirmativc

requires evidcncc

knowlcdgc

and unreasonable

responsc to thc knowledgc

indifTcrcncc to or tacit authorization

causal link betwcen the supervisor's

ofthc

practiecs,

that ( I ) a
risk of

was so inadcquatc

as to

and (3) thcrc was an

inaction and the particular

constitutional

injury

suffered).
Bushrod does not allege that Dcfendants
involvcd in his mcdieal treatmcnt.

Stewart

Smith. or An'iso wcre pcrsonally

Rather. Bushrod allegcs Smith had a duty to "Iook out" for his

weltare. but failed to do so. ECF NO.4 at 5. Bushrod claims Arviso. Associatc
Operations

at FCL did littlc to ensure subordinates

fiJlfillcd their "duty" to him. ECF No. I at 3.

Bushrod appears to fault Warden Stewart in his supervisory
As nonmedical

corrcctions

on the medicaljudgmcnt
has not sufficicntly

complaints
rcqucsts

Shakka, 71 F.3d at 167. As such. Bushrod

on the part of Defcndants

Stewart. Smith, or

thc claims against Stcwart, Smith. Arviso will bc dismissed.

bcforc thc Court demonstratc

that during thc timc Bushrod was houscd at

medical and mental hcalth providers

rcgarding

mct with Bushrod conccrning

his

his leli shouldcr and mental health. See. e.g, ECF No. 1-2 at 4. Ilis

for physical thcrapy and lor antidepressants

antideprcssants

lei. at 3.

Claims Al(ainst Mouharck

The doeumcnts
FCI-Cumbcrland,

capacity.

Stcwart. Smith, and Arviso wcrc cntitlcd to rely

of prison medical providers.

allcgcd pcrsonal misconduct

Arviso. Consequently,

3,

supcrvisors.

Wardcn of

and cognitive

behavioral

wcre considered.

Hc was provided

thcrapy. ECF No. 13.1 at 3. Alier reviewing

Bushrml's

medical history, his level of activc and passive range of motion, and his ability to participate
sports and daily activities,

Dr. Moubarek

detcrmined

13

that additional

physiealthcrapy

in

would not

provide additional
with Moubarek
dcliberate

..therapeutic

bcnefit:'

ECF No. 13-1 at 3. To the extent Bushrod disagrees

about thc coursc of his medical carc. such disagrecmcnts

indifference

necessary

to support an Eighth Amendment

Lightsey. 775 F.3d 170. 178 (4th Cir. 2014) (reasoning
medical malpractice
deliberate

indifference

Accordingly.

IV.

Moubarek

claim); Wrig!lI\'.

claim. See Jacksol1\'.

that allegations.

claim. which amount to a disagreemcnt

fail to amount to

which may support a

with the doctor do not support a

Collins. 766 F.2d 841. 849 (4th Cir. 1985).111

is entitled to summary judgment.

CONCLUSION
For these reasons, Defendants'

Judgment.

is granted without prejudice.

Dated: September

Motion to Dismiss or. in the Alternative

I(l[

Summary

A separate Order lollows.

ddf-

/5.2017

GEORGE J. HAZEL

United States District .Judge

10 Having concluded there \\'35 no Eighth Amendment violation. the Court need not reach Defendants' affirmative
defense of qualified imll1unity.

14