MATTHEWS v. WARDEN JOHN DOE #1 et al

Filing 3

OPINION. Signed by Chief Judge Jerome B. Simandle on 1/18/2013. (nz, )n.m.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BARRY LEWIS MATTHEWS,
Plaintiff,

Civil No. 12-2517 (JBS)

v.
OPINION
WARDEN JOHN DOE, et al.,
Defendants.

APPEARANCES:
Barry Lewis Matthews, Pro Se
04484-084
FCI Loretto
P.O. Box 1000
Loretto, PA 15940
SIMANDLE, Chief Judge
Plaintiff, Barry Lewis Matthews, currently incarcerated at
the Federal Correctional Institution, Loretto, Pennsylvania seeks
to bring this action in forma pauperis (“IFP”).1 Based on his
affidavit of indigence, the Court will grant Plaintiff's
application to proceed IFP pursuant to 28 U.S.C. § 1915(a) and
order the Clerk of the Court to file the Complaint.
The Court must now review the Complaint pursuant to 28
U.S.C. § 1915(e)(2)(B) and § 1915A(b), to determine whether it
should be dismissed as frivolous or malicious, for failure to

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At the time he submitted his Complaint, Plaintiff was housed at
FCI Talladega, in Talladega, Alabama.

state a claim upon which relief may be granted, or because it
seeks monetary relief from a defendant who is immune from such
relief. For the reasons set forth below, the Court concludes that
Plaintiff's Complaint should be dismissed.
BACKGROUND
The following facts are taken from Plaintiff’s Complaint,
Section IV, “General Medical History,” pp. 4-5.
Plaintiff states that he was taken into federal custody in
1994.

Prior to his arrest, he had been examined by an eye

specialist and scheduled for surgery to correct a detached retina
in his right eye.

He also suffers from glaucoma in his left eye.

While housed at FCI Allenwood, Plaintiff was seen by
attending physicians, but then was placed in the Special Housing
Unit for approximately one year, during which no outside
physicians were consulted.

During that time, Plaintiff alleges

he suffered irreparable damage to his eye.
Plaintiff was transferred to Lewisburg USP, and was examined
again by doctors, who noted that his eye condition had
deteriorated.

Plaintiff notes that Bureau of Prisons (“BOP”)

officials repeatedly

took him off of his “prescribed non-generic

form of eye drops” for the glaucoma condition.

He states that

the specialist recommended that only name brand drops be used.
(Compl., p. 4).

Physician Assistants at the BOP have told
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Plaintiff that it is the policy to use generic brands, not the
name brand prescriptions.

Plaintiff alleges that his glaucoma

became worse because of the “inconsistencies with eye drop
treatment.”

(Compl., p. 5).

Plaintiff states that after years of “delayed treatment,” he
was taken to MDC Brooklyn and was seen by an optometrist.

The

doctor noted on June 30, 2010, that Plaintiff was legally blind,
suffered from severe myopia, and needed a glaucoma workup.

On

July 22, 2010, a specialist and physicians noted a cataract, end
stage glaucoma, and recommended low vision refraction, a retinal
consult, and a visual fields consult.

Again, in September of

2010, another physician noted that Plaintiff’s vision was
deteriorating, that he was only being treated with topical agents
and a medication.
Plaintiff contends that:

“This goes to show that the

physicians treating Matthews subjectively knew that surgery was
the only appropriate and medically indicated remedy.
to provide it.”

They failed

(Compl., p. 5).

Plaintiff asserts that prison officials were deliberately
indifferent to his medical needs by delaying adequate medical
care, by refusing to prescribe him the name brand eye drops, and
by failing to provide special eyeglasses.

(Compl., p. 6).

He

asks for monetary relief and names as defendants five wardens
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(Allenwood, Lewisburg, Raybrook, Schuylkill, and Fort Dix), as
well as Dr. J. Chung, Dr. Stephen Hoey, Dr. Michael Borecky, Dr.
Nicolette Turner-Foster, Dr. Odeida Dalmassi, MLP Estelle
Richardson, and John and Jane Doe defendants.
DISCUSSION
1. Standards for a Sua Sponte Dismissal
The Prison Litigation Reform Act, Pub. L. No. 104-134, §§
801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires
a district court to review a complaint in a civil action in which
a prisoner is proceeding in forma pauperis or seeks redress
against a governmental employee or entity.

The Court is required

to identify cognizable claims and to sua sponte dismiss any claim
that is frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.

See 28 U.S.C. § 1915(e)(2)(B).

This action is subject to sua sponte screening for dismissal
under 28 U.S.C. § 1915(e)(2)(B) and § 1915A because Plaintiff is
proceeding as an indigent and is a prisoner.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
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The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009).

The

Court examined Rule 8(a)(2) of the Federal Rules of Civil
Procedure which provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Citing its

opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
for the proposition that “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the elements of a
cause of action will not do,’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555), the Supreme Court held that, to
prevent a summary dismissal, a civil complaint must allege
“sufficient factual matter” to show that the claim is facially
plausible.

This then “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct
alleged.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009)(citing Iqbal, supra).
The Supreme Court's ruling in Iqbal emphasizes that a
plaintiff must demonstrate that the allegations of his complaint
are plausible.

See Iqbal, 556 U.S. 677-679.

See also Twombly,

505 U.S. at 555, & n.3; Warren Gen. Hosp. v. Amgen Inc., 643 F.3d
77, 84 (3d Cir. 2011); Bistrian v. Levi, 696 F.3d 352 (3d Cir.
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2012).

“A complaint must do more than allege the plaintiff's

entitlement to relief.

A complaint has to ‘show’ such an

entitlement with its facts.”

Fowler, 578 F.3d at 211 (citing

Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir.
2008)).
2.

Bivens Actions
Plaintiff brings this action pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), alleging violations of his civil rights guaranteed under
the United States Constitution. In Bivens, the Supreme Court held
that one is entitled to recover monetary damages for injuries
suffered as a result of federal officials' violations of the
Fourth Amendment. In doing so, the Supreme Court created a new
tort as it applied to federal officers, and a federal counterpart
to the remedy created by 42 U.S.C. § 1983. Both are designed to
provide redress for constitutional violations. Thus, while the
two bodies of law are not “precisely parallel”, there is a
“general trend” to incorporate § 1983 law into Bivens suits. See
Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987).
In order to state a claim under Bivens, a claimant must show
(1) a deprivation of a right secured by the Constitution and laws
of the United States; and (2) that the deprivation of the right
was caused by an official acting under color of federal law. See
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Mahoney v. Nat'l Org. For Women, 681 F. Supp. 129, 132 (D. Conn.
1987) (citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149,
155–56 (1978)).

3.

Named Defendants
A defendant in a civil rights action “must have personal

involvement in the alleged wrongs” and “can be shown through
allegations of personal direction or of actual knowledge and
acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988). In order to sustain a Bivens action, a plaintiff must
establish “that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
In this case, Plaintiff names no specific individuals within
the body of his complaint, except to mention a Dr. Mukkamala (not
listed as a defendant), and Dr. Hoey who noted that Plaintiff was
having extreme vision problems.

Plaintiff shows no involvement

by the Wardens, or the other doctors listed as defendants, and
does not assert constitutional violations against Dr. Hoey.
Thus, his complaint does not pass the Iqbal requirement of
plausibility, and does not “allow[] the court to draw the
reasonable inference that the defendant is liable for the

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misconduct alleged.” Fowler, 578 F.3d at 210 (citing Iqbal,
supra).
4.

As such, the Complaint must be dismissed.

Medical Care Claim
Examining the merits of Plaintiff’s Complaint, this Court

also finds that the claims, as pled, cannot pass sua sponte
screening.
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 103–04
(1976); Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999). In order
to set forth a cognizable claim for a violation of his right to
adequate medical care, an inmate must allege: (1) a serious
medical need; and (2) behavior on the part of prison officials
that constitutes deliberate indifference to that need.

See

Estelle, 429 U.S. at 106; Natale v. Camden County Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9
(1992). The Third Circuit has defined a serious medical need as:
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(1) “one that has been diagnosed by a physician as requiring
treatment;” (2) “one that is so obvious that a lay person would
recognize the necessity for a doctor's attention;” or (3) one for
which “the denial of treatment would result in the unnecessary
and wanton infliction of pain” or “a life-long handicap or
permanent loss.” Atkinson v. Taylor, 316 F.3d 257, 272–73 (3d
Cir. 2003) (internal quotations and citations omitted); see also
Monmouth County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006
(1988).
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to
his serious medical need. See Natale, 318 F.3d at 582 (finding
deliberate indifference requires proof that the official knew of
and disregarded an excessive risk to inmate health or safety).
“Deliberate indifference” is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless
disregard of a known risk of harm. Farmer v. Brennan, 511 U.S.
825, 837–38 (1994). Furthermore, a prisoner's subjective
dissatisfaction with his medical care does not in itself indicate
deliberate indifference.

See Andrews v. Camden County, 95 F.

Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis, 551 F. Supp.
137, 145 (D. Md. 1982), aff'd, 729 F.2d 1453 (4th Cir. 1984).
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Similarly, “mere disagreements over medical judgment do not state
Eighth Amendment claims.” White v. Napoleon, 897 F.2d 103, 110
(3d Cir. 1990). “Courts will disavow any attempt to second-guess
the propriety or adequacy of a particular course of treatment ...
[which] remains a question of sound professional judgment.”
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir. 1979) (internal quotation and citation omitted). Even if a
doctor's judgment concerning the proper course of a prisoner's
treatment ultimately is shown to be mistaken, at most what would
be proved is medical malpractice and not an Eighth Amendment
violation.

See Estelle, 429 U.S. at 105–06; White, 897 F.3d at

110.
The Third Circuit has found deliberate indifference where a
prison official: (1) knows of a prisoner's need for medical
treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment for non-medical reasons; or (3)
prevents a prisoner from receiving needed or recommended
treatment. See Rouse, 182 F.3d at 197. The court also has held
that needless suffering resulting from the denial of simple
medical care, which does not serve any penological purpose,
violates the Eighth Amendment.

See Atkinson, 316 F.3d at 266.

See also Monmouth County Correctional Institutional Inmates, 834
F.2d at 346 (“deliberate indifference is demonstrated ‘[w]hen ...
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prison authorities prevent an inmate from receiving recommended
treatment for serious medical needs or deny access to a physician
capable of evaluating the need for such treatment”); Durmer v.
O'Carroll, 991 F.2d 64 (3d Cir. 1993); White v. Napoleon, 897
F.2d 103 (3d Cir. 1990).
Here, Plaintiff’s eye condition appears to satisfy the
objective prong, showing a serious medical need.

However,

Plaintiff's allegations do not satisfy the subjective element
showing deliberate indifference necessary to support an Eighth
Amendment denial of medical care claim. He admits that he
received treatment — he was taken to the medical department and
was given drops and medication.
was examined by physicians.

He was seen by specialists.

He

Plaintiff attaches to his Complaint

his Administrative Remedies and Appeals.

In Exhibit B to the

Complaint, Plaintiff notes that he is “vehemently dissatisfied”
that the warden stated that the ophthalmologist has not
recommended surgery.

Plaintiff argues that “the only adequate

treatment in [his] case to restore [his] vision is ‘cataract
removal surgery.’”

(Compl., Ex. B).

It is clear that Plaintiff

is dissatisfied with the conclusions of the medical department.
However, it is also clear that he was treated for his condition
in accordance with Eighth Amendment standards.

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After his appeal to the Central Office, the Administrator of
the National Inmate Appeals noted on August 27, 2009:
Relevant portions of your medical record have been
reviewed which reveal you have been diagnosed with advanced
glaucoma, end stage glaucoma, cataract, and decreased visual
acuity. You have been evaluated by a consultant optometrist
and ophthalmologist who both indicate surgery will not
improve your acuity. As such, surgery is not clinically
indicated. You have been issued glasses which provide a
20/60 distant vision and 20/20 near vision. The record
reflects you are receiving medical care and treatment in
accordance with Bureau policy.

(Compl., Ex. C).
At best, Plaintiff states a claim of medical malpractice or
medical negligence, which is not actionable under a § 1983 or
Bivens action. See Estelle, 429 U.S. at 105–06; White, 897 F.3d
at 110 (even if a doctor's judgment concerning the proper course
of a prisoner's treatment ultimately is shown to be mistaken, at
most what would be proved is medical malpractice and not an
Eighth Amendment violation). Therefore, this Court will dismiss
this denial of medical care claim, without prejudice, for failure
to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B) and §
1915A(b)(1).
Again, this Court notes that even if Plaintiff’s claims were
sufficient to withstand sua sponte dismissal, Plaintiff has not
alleged facts against particular defendants, making it impossible

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for this Court to determine if venue is proper in this District,
and which defendants are responsible for which claims.
CONCLUSION
For the reasons stated above, Plaintiff’s Complaint must be
dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and §
1915A(b)(1), for failure to state a claim upon which relief may
be granted.

The dismissal is without prejudice to Plaintiff

filing a motion to reopen and an Amended Complaint to address the
deficiencies, as set forth in this Opinion.
An appropriate Order follows.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:

January 18, 2013

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