MALOUF v. TURNER et al

Filing 2

OPINION. Signed by Chief Judge Jerome B. Simandle on 1/17/2013. (nz, )n.m.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
:
:
v.
:
:
DR. NICOLETTA TURNER-FOSTER, :
et al.,
:
:
Defendants.
:
:
MICHAEL J. MALOUF,

Civil No. 12-2555 (JBS)
OPINION

APPEARANCES:
MICHAEL J. MALOUF, Plaintiff pro se
Reg. No. # 24857-038
FMC Devens
Ayers, Massachusetts 01432
SIMANDLE, Chief Judge
Plaintiff, Michael J. Malouf, a federal inmate confined at
the FMC Devens in Ayers, Massachusetts, at the time he submitted
the above-captioned Complaint for filing, seeks to bring this
action in forma pauperis.

Based on his affidavit of indigence,

the Court will grant plaintiff’s application to proceed in forma
pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (1998) and order
the Clerk of the Court to file the Complaint.
At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether it
should be dismissed as frivolous or malicious, for failure to
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 the Complaint may proceed in part.
I.

BACKGROUND

Plaintiff, Michael J. Malouf (“Plaintiff”), brings this
civil action against the following Defendants: the United States
of America; the Federal Bureau of Prisons (“BOP”); Warden Jeff
Grondolsky, Warden;1 Steven Spaulding, Heath Services
Administrator;2 Dr. Nicoletta Turner-Foster, staff physician at
FCI Fort Dix; and Dr. Abigal Lopez de Lasalle, Medical Director
at FCI Fort Dix. (Complaint, Caption, ¶¶ 8-13.)

The following

factual allegations by Plaintiff are taken from the Complaint,
and are accepted for purposes of this screening only.
Plaintiff alleges that he has been incarcerated in the
federal prison system since 2003.

Before his incarceration,

Plaintiff had two surgeries on his back as a result of two motor
vehicle accidents.

Plaintiff was on a course of pain management

for his back before his imprisonment.

(Compl., ¶¶ 14-16.)

January 2008, Plaintiff was transferred to FCI Fort Dix.

In
During

the nine hour transfer process, Plaintiff was handcuffed and

1

Plaintiff alleges that Grondolsky was the Warden at FCI
Fort Dix, where the incidents at issue occurred, but is now the
Warden at FMC Devens, where Plaintiff is now confined. (Compl.,
¶ 10.)
2

Plaintiff alleges that Spaulding was the Health Services
Administrator at FCI Fort Dix at the time the incidents at issue
occurred, and is the present Health Services Administrator at FMC
Devens, where Plaintiff is now confined. (Compl., ¶ 11.)
2

shackled, causing him to suffer “excruciating pain in his legs,
numbness, insomnia, and loss of concentration.”

(Compl., ¶ 18.)

After initially being evaluated at FCI Fort Dix, Plaintiff
was denied pain medication for his extreme pain.

He continued to

seek pain medication but was denied on repeated occasions.

Then

in October 2008, Plaintiff was given Oxycodone for pain “that
significantly relieved the pain in his back ... and Plaintiff was
able to resume normal functions.”

(Compl., ¶¶ 19, 20.)

Then, in

January 2009, Plaintiff slipped and fell on ice between the
medical facility and Building #5803 at FCI Fort Dix, further
aggravating Plaintiff’s prior back injury and causing
“significant additional pain.”

(Compl., ¶ 21.)

Plaintiff was medically treated for his slip and fall injury
and provided a wheelchair and an increased dosage of Oxycodone
for his pain.

However, in March 2009, Plaintiff was called to

meet with Defendants, Dr. Turner and Dr. Lopez de Lasalle, who
informed Plaintiff that the pain medication would not be renewed
without any examination or new MRI results.

Plaintiff’s pain

medication was terminated “instantly” and Dr. Turner refused to
renew the Oxycodone prescription.

(Compl., ¶¶ 22-25.)

Thereafter, in March 2009, Plaintiff allegedly “collapsed
during the middle of the night due to the extreme pain he was
enduring in his back and legs.”

(Id., ¶ 26.)

An unnamed

correction officer contacted Defendant Spaulding to obtain
authorization for Plaintiff’s transfer to the hospital for

3

evaluation.

Spaulding denied the request and Plaintiff was left

lying on the floor until morning because he could not move.
Plaintiff alleges that he suffered “significant and excruciating
pain” and urinated on himself in the night because he could not
move.

(Id., ¶¶ 27-30.)

When Spaulding reported for duty in the morning, Plaintiff
was picked up off the floor and was transferred to medical where
he waited for “a number of hours despite being in excruciating
pain.”

(Id., ¶¶ 30-31.)

Plaintiff also complains that he was

unable to ambulate without the assistance of a wheelchair and
became incontinent as a result of the refusal to provide
treatment.

He alleges that the “Defendant refused to provide

another MRI until March 25, 2009.”

(Id., ¶ 32.)

Plaintiff further alleges that Defendants Grondolsky and
Spaulding “engaged in a course of continuous conduct that
virtually ignored Plaintiff’s complaints.”

(Id., ¶ 33.)

Namely,

Plaintiff alleges that from March 2009 until May 2010 (when
Plaintiff was transferred to FMC Devens), Defendants prescribed
pain medications that “they knew” did not alleviate Plaintiff’s
pain.

These new medications also caused Plaintiff to have

headaches, nausea and other side effects. (Id., ¶¶ 34, 35.)
After Defendants Turner and Lopez de Lasalle terminated
Plaintiff’s Oxycodone, Plaintiff attended many sick calls for
medication to stop his severe back pain.

Plaintiff alleges that

his request to see a doctor was refused.

During this time,

4

Plaintiff also suffered “heart palpitations, irregular heartbeat,
tightness in his chest and extreme pain in his back and legs.”
(Id., ¶¶ 38-40.)
functions.

Plaintiff lost his appetite and bladder control

(Id., ¶ 41.)

In April 2010, Defendants finally scheduled a myelogram, and
Plaintiff was then designated a Care Level 3 inmate from a Care
Level 2 inmate.3

Once designated a Care Level 3 inmate,

Plaintiff was transferred to FMC Devens in Massachusetts.

At FMC

Devens, Plaintiff was designated a Care Level 4 inmate, who
requires 24-hour nursing care or assistance.

(Id., ¶¶ 42-48.)

Plaintiff contends that between the time that he was
designated a Care Level 3 inmate to a Care Level 4 inmate, he was
treated in a manner that was “palpably unreasonable to the wellbeing of Plaintiff.”

(Id., ¶ 50.)

For instance, Defendants

refused to evaluate Plaintiff for his severe back pain, refused
to see Plaintiff at sick call, and Defendant Lopez de Lasalle
removed Plaintiff’s wheelchair, which he needed to get around.
(Id., ¶¶ 51, 52.)

Plaintiff alleges that his sick call requests

were removed from the FCI Fort Dix computer tracking system.
(Id., ¶ 53.)

He refers to an incident when he had an open wound

3

Care Level 2 inmates are classified as stable outpatient
requiring quarterly evaluations, who can be managed through
routine, regularly scheduled clinical appointments for
monitoring. (Compl., ¶ 44.) Care Level 3 inmates, however, “are
fragile outpatients who require frequent clinical contacts to
prevent hospitalization for catastrophic events. They require
some assistance with daily living, but do not need daily nursing
care. Other inmates are assigned as “companions” to provide the
needed assistance.” (Id., ¶ 45.)
5

on his lower back, but was refused treatment for wound care, as
well as another occasion where medical staff slammed the door in
his face when he came to the medical area for treatment.

(Id.,

¶¶ 54, 55.)
After his transfer to FMC Devens, Plaintiff was prescribed
Oxycodone for pain, but the prescription eases his pain for only
three hours per dose.

Plaintiff further complains that he has

not been provided with a companion to assist him in daily
activities, nor has he been given a hospital mattress to
alleviate the pain in his back and legs.

He contends that other

inmates with similar medical problems at FMC Devens have been
provided with a companion and hospital mattress.
59.)

(Id., ¶¶ 56-

Plaintiff also alleges that his treating physician has

taken away his pain medication because Plaintiff continued to
complain about pain, and was told that if he complains to another
physician or medical director, all pain medications will be
removed.

(Id., ¶¶ 60, 61.)

Plaintiff asserts an Eighth Amendment denial of medical care
claim, a medical negligence claim, and a claim of retaliation.
(Id., Counts I, II and III.)
and punitive damages.

He seeks unspecified compensatory

(Id., p. 11.)

This Court takes judicial notice of Plaintiff’s earlier
civil rights action, Malouf v. Turner, et al., Civil No. 09-2117
(JBS), which raised similar prior claims of denial of medical
care, retaliation, and medical negligence, as well as a premises
6

liability claim not raised here.

In an Opinion and Order entered

on August 31, 2011, this Court found that Plaintiff had failed to
exhaust his administrative remedies, as required under 42 U.S.C.
§ 1997e(a), before bringing his Eighth Amendment denial of
medical care claim.

This Court also determined that Plaintiff

failed to present his medical negligence (tort) claim to the BOP,
as required under the Federal Tort Claims Act at 28 U.S.C. §
2675(a), before filing his complaint in Civil No. 09-2117 (JBS).
Accordingly, this Court dismissed Plaintiff’s medical negligence
claim for lack of jurisdiction, and granted Defendants’ motion
for summary judgment regarding the Eighth Amendment denial of
medical care claim and retaliation claim for failure to exhaust
administrative remedies.

The dismissal was without prejudice.

(Civil No. 09-2117 (JBS) at Docket Nos. 66 and 67.)
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104134, §§ 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.

7

28 U.S.C. §§

1915(e)(2)(B) and 1915A.

This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A.
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).
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 (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 now
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 (3d

Cir. 2009)(citing Iqbal, 556 U.S. at 676).
8

The Supreme Court’s

ruling in Iqbal emphasizes that a plaintiff must demonstrate that
the allegations of his complaint are plausible.

See id. at 678-

79; see also Twombly, 505 U.S. at 555, & n. 3; Warren Gen. Hosp.
v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).

“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).

See also Argueta v. U.S.

Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir.
2011); Bistrian v. Levi, 2012 WL 4335958, *8 (3d Cir. Sept. 24,
2012)(allegations that are no more than conclusions are not
entitled to the assumption of truth; a court should “look for
well-pled factual allegations, assume their veracity, and then
‘determine whether they plausibly give rise to an entitlement to
relief.’”)(quoting Iqbal, 556 U.S. at 679).
III.
A.

ANALYSIS

Denial of Medical Care Claim
The Eighth Amendment prohibits punishments of convicted

prisoners that are “cruel and unusual.”
F.3d 210, 216 (3d Cir. 2010).

Jackson v. Danberg, 594

An Eighth Amendment claim includes

an objective component, whether the deprivation of a basic human
need is sufficiently serious, and a subjective component, whether
the officials acted with a sufficiently culpable state of mind.
Wilson v. Seiter, 501 U.S. 294, 298 (1991).

The objective

component is “contextual and responsive to ‘contemporary
9

standards of decency.’”

Hudson v. McMillian, 503 U.S. 1, 8

(1992)(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).

The

subjective component “follows from the principle that ‘only the
unnecessary and wanton infliction of pain implicates the Eighth
Amendment.’”

Farmer v. Brennan, 511 U.S. 825, 834 (1994)

(quoting Wilson, 501 U.S. at 297).

“What is necessary to

establish an ‘unnecessary and wanton infliction of pain,’ ...
varies according to the nature of the alleged constitutional
violation.”

Hudson, 503 U.S. at 5 (quoting Whitley v. Albers,

475 U.S. 312, 320 (1986)).
Where the claim is one alleging the failure to provide
medical care, as alleged by Plaintiff here, the core inquiry is
whether the defendants’ actions constituted “deliberate
indifference” to an inmate’s serious medical needs.
U.S. at 104.

Estelle, 429

Deliberate indifference is shown if a defendant

“intentionally den[ies] or delay[s] access to medical care or
intentionally interfere[es] with the treatment once prescribed.”
Id. at 104–05.

Furthermore, deliberate indifference can be

manifested by “persistent conduct in the face of resultant pain
and risk of permanent injury.”
109 (3d Cir. 1990).

White v. Napoleon, 897 F.2d 103,

Moreover, “[s]hort of absolute denial, if

necessary medical treatment is ... delayed for non-medical
reasons, a case of deliberate indifference has been made out.”
Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987)(alterations in original)(internal
10

quotation marks and citation omitted).

A medical need is serious

if it “has been diagnosed by a physician as requiring treatment
or ... so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.”

Atkinson v. Taylor, 316

F.3d 257, 272–73 (3d Cir. 2003)(internal quotation marks and
citation omitted). However, “[a]llegations of medical malpractice
or mere disagreement as to the proper medical treatment are
insufficient to establish a constitutional violation.”

Szemple

v. Univ. of Med. & Dentistry, No. 11–1376, 2011 U.S.App. LEXIS
22914, at *8, 2011 WL 5562668 (3d Cir. Nov. 16, 2011)(citing
Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)).
This Court first finds that the Complaint fails to state a
claim of deliberate indifference necessary to support an Eighth
Amendment violation against the medical Defendants, Dr. Turner
and Dr. Lopez de Lasalle.

Plaintiff’s allegations against these

doctors relate to their discontinuation of Oxycodone to treat
Plaintiff’s chronic complaints of back pain from March 2009
through May 2010, when he was transferred to FMC Devens.

This

Court takes judicial notice of the administrative records and
declarations by these doctors submitted in Plaintiff’s previous
action, Civil No. 09-2117 (JBS), which raised these very same
claims.
In those records, Dr. Lopez de Lasalle states that she was
not Plaintiff’s treating physician, and saw him on one occasion
at issue.

On that occasion, Defendant medically determined that
11

Plaintiff’s prolonged use of narcotic Oxycodone for long term
pain management was not in his best interests.

(Declaration of

Abigail Lopez de Lasalle, M.D., Docket entry no. 53-4 in Civil
No. 09-2117 (JBS))(hereinafter “Lopez de Lasalle Decl.”)
Specifically, Dr. Lopez de Lasalle noted that Oxycodone is a
narcotic that is not typically used for chronic neuroleptic pain
management, and that, as a result, on March 10, 2009, she
“decided to taper [Plaintiff] off of the Oxycodone, and prescribe
him appropriate pain medication from the BOP National Formulary.
On that date, [she] reduced the Oxycodone from 80mg to 40mg.
Additionally, [she] prescribed MethylPrednisone, 10mg, and
Carbamaxepine, 200mg, for pain relief.”

(Id., ¶ 4.)

Dr. Lopez

de Lasalle did not treat Plaintiff at FCI Fort Dix after that one
incident.

(Id.)

Defendant, Dr. Turner, also provided a Declaration
pertaining to her treatment of Plaintiff at FCI Fort Dix.

In her

Declaration, Dr. Turner states that she was Plaintiff’s primary
care physician at FCI Fort Dix from March 2009 through December
2009.

During that time, Dr. Turner treated Plaintiff’s

complaints of chronic back pain with “a series of pain
medications from the Bureau of Prisons’ National Formulary.”
(Declaration of Nicoletta A. Turner-Foster, M.D., ¶¶ 4, 5, Docket
entry no. 53-3 in Civil No. 09-2117 (JBS))(hereinafter “Turner
Decl.”)

Dr. Turner states that she prescribed or authorized

about eight formulary pain medications for Plaintiff and approved
12

non-formulary additional pain medication when Plaintiff
complained that the formulary prescriptions were ineffective.

In

addition, Dr. Turner attested that Plaintiff’s prescription for
Oxycodone was tapered down and discontinued because such
narcotics are typically used for terminal or acute pain, for
short term relief, and not for chronic pain as experienced by
Plaintiff.
five months.

In March 2009, Plaintiff had been on Oxycodone for
Consequently, a medical decision was made to wean

Plaintiff from Oxycodone and place him on appropriate pain
medications.

(Id., ¶¶ 6, 7.)

Dr. Turner further states that during the nine months she
was his primary care physician, she met with or examined him on
at least 8 occasions, and he was seen by other medical personal
approximately 17 times during that same nine month period.

Dr.

Turner also recommended a CT scan of Plaintiff’s LS spine, an MRI
of his thoracic spine, and a consultation with a neurosurgeon,
all of which were approved.

(Id., ¶ 8.)

Based on these records, it is plain that Plaintiff was
extensively treated for his complaints of chronic back pain.
Rather, at best, Plaintiff’s denial of medical care claim appears
to be based on his disagreement with the treatment course set
forth by Drs. Turner and Lopez de Lasalle, who both determined
that continued and prolonged use of Oxycodone to manage his
chronic back pain was contraindicated, and therefore, prescribed
Plaintiff other pain medications more appropriate for management
13

of chronic pain.

As discussed above, such claims of

disagreement in treatment, or negligence, or medical malpractice,
do not rise to the level of an Eighth Amendment violation.

As

the Third Circuit has noted “mere disagreements over medical
judgment do not state Eighth Amendment claims” because there may
be “several acceptable ways to treat an illness.”

White, 897

F.2d at 110; see also Hodge v. United States Dep’t of Justice,
372 Fed. Appx. 264, 268 (3d Cir. 2010)(“disagreements ... among
physicians, concerning the course of medical treatment ... do not
support a claim for a violation of the Eighth Amendment.”); Ham
v. Greer, 269 Fed. Appx. 149, 151 (3d Cir. 2008)(“Ham’s primary
dispute, in essence, is that he did not receive the kind or
quality of treatment that he would have preferred.

This simply

does not rise to the level of a violation of a constitutionally
protected right.”).
Therefore, while this Court sympathizes with Plaintiff’s
severe chronic back pain, it is clear that Defendants, Dr. Turner
and Dr. Lopez de Lasalle, were not deliberately indifferent to
his medical needs to support an Eighth Amendment violation, and
Count I of the Complaint will be dismissed with prejudice as
against these two Defendants.
Next, Plaintiff alleges that the non-medical Defendants,
Spaulding and Grondolsky, “engaged in a course of continuous
conduct that virtually ignored Plaintiff’s complaints.”
¶ 33.)

(Compl.,

Plaintiff’s allegations again appear to be based on the
14

medical decision by Dr. Turner and Dr. Lopez de Lasalle to wean
Plaintiff from Oxycodone, and to prescribe pain medications that
“they knew” did not alleviate Plaintiff’s pain.

(Compl., ¶ 34.)

Plaintiff also alleges that, on one occasion, when Plaintiff
collapsed from back pain at night, Defendant Spaulding would not
authorize that Plaintiff be taken to medical for evaluation until
the next morning.

(Compl., ¶¶ 27-31.)

Finally, Plaintiff seems

to allege that he was not scheduled for an MRI until March 25,
2009, shortly after his “collapse” from pain on an unspecified
date in March 2009, and generally, that Defendants refused to
evaluate him for his severe back pain or see Plaintiff at sick
call.

(Compl., ¶¶ 51-55.)

None of these allegations on the part of non-medical
defendants rise to the level of an Eighth Amendment violation
denying medical care to Plaintiff because they do not show
deliberate indifference by the non-medical Defendants.

First,

the single incident involving Plaintiff’s overnight collapse and
transfer to the medical department in the morning for evaluation
does not suggest deliberate indifference by Defendant Spaulding.
When Spaulding reported to work in the morning, Plaintiff admits
that Spaulding ensured that Plaintiff was taken to medical for
evaluation.

This delay of overnight hours when Spaulding was not

on duty, as admitted by Plaintiff in his Complaint, does not show
a “persistent” or “intentional” delay or denial of medical care

15

by Spaulding that would constitute deliberate indifference on his
part.

See Estelle, 429 U.S. at 104-05; White, 897 F.2d at 109.

Moreover, prison officials cannot be held to be deliberately
indifferent merely because they did not respond to the medical
complaints of a prisoner who was already being treated by the
prison medical staff.
(3d Cir. 1993).

See Durmer v. O’Carroll, 991 F.2d 64, 69

“[A]bsent a reason to believe (or actual

knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner, a non-medical prison
official ... will not be chargeable with the Eighth Amendment
scienter requirement of deliberate indifference.”
Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

Spruill v.

See also Carter v.

Smith, 483 Fed. Appx. 705, 708 (3d Cir. May 23, 2012).
Here, as discussed above, it is plain that Plaintiff was
receiving continual and constant medical attention from the
prison medical staff.

Consequently, Defendants Spaulding and

Grondolsky cannot be held to be deliberately indifferent when it
was apparent that Plaintiff was receiving medical care for his
complaints of pain.

Again, Plaintiff’s allegations merely show

Plaintiff’s personal disagreement with the doctors’ medical
decision to manage Plaintiff’s pain with medications other than
that preferred by Plaintiff, which is nothing more than an
assertion of medical malpractice at best and insufficient to show
deliberate indifference.

16

Further, Defendant Grondolsky’s responses to Plaintiff’s
administrative remedy forms do not support deliberate
indifference necessary to state an Eighth Amendment denial of
medical care claim.

For instance, in Grondolsky’s May 4, 2009

administrative response to Plaintiff, he states:
A review of your medical records reveals you were evaluated
by a staff physician on March 27, 2009, for chronic back
pain. The treatment plan was to prescribe formulary pain
medication and increase the dosage as needed for pain.
Specifically, you were prescribed Levetiracetem. An MRI was
also ordered to rule out any pathology. On April 2, 2009,
an MRI was obtained that showed some narrowing of the lumbar
sacral spine; however, no nerve impingement was detected. A
recommendation was made for a CAT-scan to evaluate the
bones. On April 7, 2009, the results were discussed with
you as well as the future treatment plan. That plan
included ordering a CAT scan of the lumbar sacral spine and
increasing the dosage of Levetiracetam until pain is
controlled. On April 14, 2009, your pain medication was
changed to Topiramate in response to your verbalization that
Levetiracetam was ineffective. Once the cat scan results
have been obtained and reviewed by the Physician, your
treatment options will be discussed with you to include a
possible referral to an outside specialist.
(Moran Decl., Ex. 3, Civil No. 09-2117 (JBS) at Docket entry no.
53-2.)
On October 22, 2010, Defendant Grondolsky again responded to
Plaintiff’s administrative remedy request made at FMC Devens,
stating as follows:
This is in response to your Request for Administrative
Remedy received September 24, 2010, wherein you allege you
are being tortured and mentally abused by your primary care
physician. Specifically, you claim that on August 12, 2010
he “jerked (you) abruptly backwards out of his office” and
“pushed (you) to the therapy room,” demanding your
wheelchair back. You further allege he has failed to manage
your chronic pain adequately, threatened to reduce your pain
medication and disregarded the recommendations of an outside
17

neurosurgeon pertaining to your course of treatment. For
relief, you request to be evaluated by a Pain Management
Clinician, as recommended by the neurosurgeon. In addition,
you request a change in your primary care provider, a pass
for a double or medical mattress with double pillows and
that a companion be assigned to you.
A review of your complaint revealed the following. On July
27, 2010, you were evaluated by a neurosurgeon at the
University of Massachusetts Medical Center (UMMC). During
this visit, the neurosurgeon noted your MRIs and CT mylogram
were not available for review. As a result, you signed a
release form in order for UMMC to obtain those images from
St. Francis Medical Center in Trenton, New Jersey. Health
Services staff made routine inquiries to UMMC to determine
if they had received the requested films and each time staff
from that facility indicated they did not. Therefore,
medical staff from this institution intervened and were able
to obtain the requested films, which were forwarded to UMMC
on October 6, 2010. Regarding a consult for pain
management, we are currently awaiting direction from the
neurosurgeon. Once she has reviewed your diagnostic films,
a determination will be made regarding a possible referral
for pain management.
Based on clinical evaluations, physical examinations and the
neurosurgery report, your daily living skills are not
limited. Therefore, you do not meet the criteria for
assistance from an inmate companion. Companions are
assigned to help inmates who are in severe need of
assistance with tasks associated with daily living.
Additionally, medical mattresses are not used at this
facility. Hospital mattresses are used for the hospital
beds in certain medical units and you do not meet the
criteria for a hospital bed. Your issued mattress meets
your medical needs. Furthermore, you do not meet the
medical criteria for an extra pillow (e.g., congestive heart
failure).
No evidence has been presented or discovered to substantiate
your allegations of torture and mental abuse on the part of
your primary care physician. In addition, you provided a
signed affidavit to the Special Investigative Agent on
October 19, 2010, attesting that at no time were you
threatened by your primary care physician during your
appointment with him on August 12, 2010, nor were you ever
in fear for your personal safety and well being. Inmates
are assigned primary care teams based on their registration
numbers. Accordingly, your primary care physician will
18

remain the same. Records further indicate you are currently
housed in the Special Housing Unit (SHU) for disciplinary
sanctions, as you were issued an incident report and found
to have committed the prohibited act of Use of any
Narcotics, Marijuana, Drugs, or Related Paraphernalia not
Prescribed for the Individual by Medical Staff (Code 112).
You will be seen by your primary care physician to review
your pain medications once you are released from SHU.
(Moran Decl., Ex. 4, Civil No. 09-2117 (JBS) at Docket entry no.
53-2.)
Thus, the administrative record pertaining to Plaintiff’s
complaints of lack of medical care plainly demonstrate that
Defendants Grondolsky and Spaulding were not deliberately
indifferent to Plaintiff’s complaints of pain.

It is apparent

from the administrative record that Plaintiff was being treated
for his complaints, but that the medical treatment decisions were
not to Plaintiff’s satisfaction.

Accordingly, the Eighth

Amendment denial of medical care claim will be dismissed without
prejudice for failure to show deliberate indifference on the part
of the named defendants.4

4

To the extent that Plaintiff can allege facts sufficient
to support a claim of deliberate indifference, he may seek leave
to file an amended complaint. Plaintiff should note that when an
amended complaint is filed, the original complaint no longer
performs any function in the case and “cannot be utilized to cure
defects in the amended [complaint], unless the relevant portion
is specifically incorporated in the new [complaint].” 6 Wright,
Miller & Kane, Federal Practice and Procedure § 1476 (2d
ed.1990)(footnotes omitted). An amended complaint may adopt some
or all of the allegations in the original complaint, but the
identification of the particular allegations to be adopted must
be clear and explicit. Id. To avoid confusion, the safer course
is to file an amended complaint that is complete in itself. Id.
19

B.

Medical Malpractice Claim
In Count II of his Complaint, Plaintiff asserts a claim of

medical malpractice under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(B), 2671 et seq. (2006).

The FTCA is

recognized as a limited waiver of the sovereign’s immunity from
suit.

See White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456

(3d Cir. 2010); Fields v. United States, 2010 WL 715720, *2
(D.N.J. Feb.24, 2010)(citing Roma v. United States, 344 F.3d 352,
362 (3d Cir.2003)).

The only proper defendant in an action

brought under it is the United States itself, and not a federal
agency or federal official.

28 U.S.C. §§ 1346(b)(1), 2674,

2679(a); see also CNA v. United States, 535 F.3d 132, 138 n. 2
(3d Cir. 2008); Doughty v. United States Postal Service, 359 F.
Supp.2d 361, 363 n. 1 (D.N.J.2005).

In addition, pursuant to the

express requirements of 28 U.S.C. § 2675(a),
An action shall not be instituted upon a claim against the
United States for money damages for ... for personal injury
... unless the claimant shall have first presented the claim
to the appropriate Federal agency and the claim shall have
been finally denied in writing .... The failure of an agency
to make final disposition of a claim within six months after
it is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for
purposes of this section....
Id. (emphasis supplied); see also White-Squire, 592 F.3d at 457.
Under this provision, an FTCA claimant must file an
administrative claim with the responsible federal agency before
instituting suit.

The provisions of § 2675(a) are deemed

jurisdictional and not subject to waiver.

20

Lightfoot v. U.S., 564

F.3d 625, 626–27 (3d Cir. 2009); Deutsch v. United States, 67
F.3d 1080, 1091 (3d Cir. 1995).
In addition, the FTCA requires the commission of a tort to
impose liability.

More specifically, federal constitutional

violations are not cognizable under the FTCA; state law provides
the source of substantive liability under the FTCA.

See F.D.I.C.

v. Meyer, 510 U.S. 471, 477–78 (1994); Webb v. Desan, 250 Fed.
Appx. 468, 2007 WL 2962604 (3d Cir., Oct. 11, 2007).
Furthermore, a plaintiff’s claim under the FTCA must comply
with the applicable statute of limitations.

Under federal law,

tort actions against the United States must be:
[P]resented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action
is begun within six months after the date of mailing, by
certified or registered mail, of notice of final denial of
the claim by the agency to which it was presented.
28 U.S.C. § 2401(b). “The requirements that a claimant timely
present a claim, do so in writing, and request a sum certain are
jurisdictional prerequisites to suit under the FTCA.”

Deutsch,

67 F.3d at 1091.
As a sovereign, the United States is immune from suit save
as it consents to be sued. The terms of its consent to be
sued in any court define the court's jurisdiction to
entertain the suit. United States v. Sherwood, 312 U.S.
584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Although the
Federal Tort Claims Act allows suits against the Government
for torts committed by its employees while in the scope of
their employment, it specifically requires an initial
presentation of the claim to the appropriate federal agency
and a final denial by that agency as a prerequisite to suit
under the Act. This requirement is jurisdictional and
cannot be waived.

21

Bialowas v. United States, 443 F.2d 1047, 1048–49 (3d Cir. 1971);
accord, Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003),
cert. denied, 543 U.S. 874 (2004).
As noted above, this Court has taken judicial notice of
Plaintiff’s earlier action, Civil No. 09-2117 (JBS).

In that

action, Plaintiff’s same claim of medical negligence cognizable
under the FTCA was dismissed without prejudice for lack of
subject matter jurisdiction because Plaintiff had filed his
complaint in Civil No. 09-2117 (JBS) before exhausting his
administrative tort claim.

It was shown in the earlier case,

however, that after Plaintiff had filed his original complaint,
on or about July 2010, Plaintiff did file an administrative tort
claim with the BOP, which was received by the BOP on July 26,
2010.

Plaintiff’s tort claim alleged that, after he slipped and

fell on ice at FCI Fort Dix in January 2009, he was
“unconstitutionally treated” and had “not been treated correctly
or fairly.”

(August 31, 2011 Opinion, Civil No. 09-2117 (JBS) at

Docket Item 66, p. 7.)

Plaintiff sought damages for his injuries

in the amount of $5 million.

The BOP denied Plaintiff’s tort

claim on September 8, 2010, on the grounds that it raised a
constitutional claim.

(Id.)

Thus, because it appears that Plaintiff may have satisfied
the jurisdictional requirements to bring his medical negligence
claim under the FTCA, having filed and exhausted his
administrative tort claim before bringing this action, and the

22

allegations having identified the tort of medical malpractice
sufficient to give rise to liability under the FTCA, the Court
will allow Plaintiff’s Count II, asserting medical malpractice
under the FTCA, to proceed at this time, but only as to the
proper named defendant, the United States.

See CNA v. United

States, 535 F.3d at 138 n. 2 (the United States “is the only
proper defendant in a case brought under the FTCA”).

All other

named defendants will be dismissed with prejudice as to this
claim.
Further, as to any claims of medical malpractice allegedly
occurring after July 2010, regarding medical treatment at FMC
Devens, Plaintiff’s previously-filed notice of tort claim
concerning medical negligence at FCI Fort Dix does not operate as
the jurisdictional exhaustion requirement for post-July 2010
alleged torts, and such claims accordingly will be dismissed
without prejudice at this time.
C.

Retaliation
Finally, in Count III of his Complaint, Plaintiff asserts a

First Amendment retaliation claim, generally alleging that
Defendants took away his pain medications or did not treat him
for pain in retaliation against him for filing grievances.
(Compl., ¶¶ 33, 60, 61.)
“Retaliating against a prisoner for the exercise of his
constitutional rights is unconstitutional.”

Bistrian v. Levi,

696 F.3d 352, 2012 WL 4335958 at *19 (3d Cir. Sept. 24, 2012).

23

“Official reprisal for protected speech ‘offends the Constitution
[because] it threatens to inhibit exercise of the protected
right.’”

Hartman v. Moore, 547 U.S. 250, 256 (2006) (quoting

Crawford–El v. Britton, 523 U.S. 574, 588 n. 10 (1998)).

A

prisoner alleging retaliation must show (1) constitutionally
protected conduct, (2) an adverse action by prison officials
sufficient to deter a person of ordinary firmness from exercising
his First Amendment rights, and (3) a causal link between the
protected conduct and the adverse action taken.

See Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003).
Whether the allegedly adverse action was “‘sufficient to
deter a person of ordinary firmness from exercising his
constitutional rights’ is an objective inquiry and ultimately a
question of fact.”

Bistrian, 2012 WL 4335958 at *19 (quoting

Rauser, 241 F.3d at 333).

To establish a causal link, the

prisoner must show that the “constitutionally protected conduct
was a ‘substantial or motivating factor’” in the decision to take
adverse action.5

Rauser v. Horn, 241 F.3d 330, 333–34 (3d Cir.

5

However, “once a prisoner has demonstrated that his
exercise of a constitutional right was a substantial or
motivating factor in the challenged decision, the prison
officials may still prevail by proving that they would have made
the same decision absent the protected conduct for reasons
reasonably related to legitimate penological interest.” Rauser,
241 F.3d at 334; see also Carter v. McGrady, 292 F.3d 152, 154
(3d Cir. 2002) (retaliation claim fails where prison officials
would have disciplined inmate for policy violations
notwithstanding his protected activity).
24

2001)(quoting Mount Healthy City School Dist. B. of Ed. v. Doyle,
429 U.S. 274, 287 (1977)).
Plaintiff's allegations ostensibly satisfy the first
element, as he alleges that he engaged in conduct protected by
the First Amendment, i.e., he submitted administrative remedy
requests in an attempt to obtain medications and treatment for
his complaints of pain.

However, Plaintiff’s allegations do not

satisfy the third factor, showing a causal link between the
protected activity and adverse action.

Namely, in this case, the

decision to discontinue Oxycodone was based on a medical
determination that such medication was inappropriate for long
term use in chronic pain management.

In short, there was no

adverse action taken against Plaintiff because he filed
grievances, as alleged by Plaintiff.

Further, the medical

decision to discontinue Oxycodone did not serve to deter
Plaintiff from filing administrative remedies or vigorously
litigating this lawsuit.

Thus, Plaintiff’s retaliation claim in

Count III of this Complaint does not allege facts sufficient to
show that Defendants had a retaliatory motive and Plaintiff’s
allegations do not demonstrate that Defendants’ actions were
purposeful retaliation against him for having filed
administrative grievances.

Accordingly, Plaintiff’s retaliation

claim will be dismissed without prejudice as against all named
defendants for failure to state a claim at this time.
IV.

CONCLUSION

25

For the reasons set forth above, Plaintiff’s Eighth
Amendment claim alleging denial of medical care, Count I of the
Complaint, will be dismissed without prejudice, in its entirety,
as against all named defendants, pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim
at this time.

Likewise, Plaintiff’s First Amendment retaliation

claim, Count III of the Complaint, will be dismissed without
prejudice, in its entirety, as against all named defendants,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for
failure to state a claim at this time.

Finally, Plaintiff’s FTCA

claim of medical malpractice will be allowed to proceed at this
time as against the United States only, and limited to those
allegations pertaining to claims of medical negligence
purportedly occurring while Plaintiff was confined at FCI Fort
Dix.

An appropriate order follows.

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

January 17, 2013

26