STEVENS v. ZICKEFOOSE et al

Filing 139

OPINION (FOR PUBLIC). Signed by Judge Renee Marie Bumb on 5/10/2016. (tf, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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RAUL J. STEVENS,
Plaintiff,
v.
DONNA ZICKEFOOSE, et al.
Defendants.

Civ. Action No. 12-3011 (RMB)
OPINION (FOR PUBLIC)

APPEARANCES:
Deepa J. Zavatsky, Esq.
Reed Smith LLP
Princeton Forrestal Village
136 Main Street, Suite 250
Princeton, NJ 08540
Counsel for Plaintiff
Kristin L. Vassallo, Assistant U.S. Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Counsel for the Federal Defendants
BUMB, District Judge
Plaintiff Raul J. Stevens, a prisoner incarcerated in FCI
Fort

Dix,

in

Fort

Dix,

New

Jersey,

filed

his

Third

Amended

Complaint (“TAC”) in this action on November 9, 2015. (TAC, ECF.
No. 114.) Stevens alleged he made numerous, repeated requests for
medical attention to treat his severe conditions, and the medical

1

staff and Warden ignored his condition for several years, in
violation of the Eighth Amendment. (TAC, ¶10.)
This matter comes before this Court upon the motion for
summary judgment by Donna Zickefoose, Dr. Nicoletta Turner-Foster,
Dr. Abigal Lopez, and Dr. Samir Sulayman (the “Federal Defendants”)
(Fed. Defs’ Mot. for S.J., ECF No. 124). Defendants contend they
are entitled to summary judgment for four reasons (1) Plaintiff’s
Bivens claim against Dr. Sulayman is barred by the statute of
limitations; (2) Warden Zickefoose had no personal involvement in
Plaintiff’s medical care (3) Plaintiff cannot establish an Eighth
Amendment violation; and (4) the Federal Defendants are entitled
to qualified immunity. (Fed. Defs’ Brief, ECF No. 124-3.)
Plaintiff opposed the motion for summary judgment. (Pl’s Mem.
of Law in Opp. to Mot. for S.J. filed by Defs. Zickefoose, TurnerFoster, Lopez, and Sulayman. (“Pl’s brief,” ECF No. 131.) The
Federal Defendants filed a reply brief in support of their motion
for summary judgment (“Fed. Defs’ Reply”, ECF No. 134.)
This Court has considered the pleadings, motions, briefs and
supporting documents, and will decide the motion on the papers,
pursuant to Federal Rule of Civil Procedure 78(b). For the reasons
explained below, the Court will grant the Federal Defendants’
motion for summary judgment.

2

I.

Third Amended Complaint
Plaintiff alleged Warden Zickefoose was generally responsible

for the operations of FCI Fort Dix and:
Zickefoose
was
further
responsible
for
responding to the BP-9 complaints, and
addressing any deficiencies in the policies
and
procedures
leading
to
the
medical
treatment
provided
to
Plaintiff.
Ms.
Zickefoose’s intentional failure (and in fact,
willful inaction) to properly investigate,
audit and resolve Plaintiff’s complaints
created an environment in which there was an
unreasonable risk of medical injury to
Plaintiff.
(TAC, ¶19.)
Dr. Abigail Lopez is the Health Services Clinical Director at
FCI Fort Dix. (Id., ¶20.) She treated Plaintiff directly and
oversaw his treatment by other staff. (Id.) Plaintiff alleged, as
the Clinical Director, Dr. Lopez is responsible for his medical
treatment. (Id.)
Dr. Nicoletta Turner-Foster specializes in internal medicine
and is employed by the Federal Bureau of Prisons. (Id., ¶21.) She
treated Plaintiff at FCI Fort Dix in the relevant time period.
(Id.) Dr. Samir Sulayman is also a physician who was employed by
the Federal Bureau of Prisons, and he treated Plaintiff during the
relevant time period. (Id., ¶23.)
In

summary,

Defendants

based

Plaintiff
on

the

alleged

following:

liability
(1)

of

failure

the
to

Federal
transfer

plaintiff to a federal medical center (TAC, ¶¶26-34); (2) failure
3

to

identify

Dr.

Nugent’s

misdiagnosis

of

BPH

and

prostatic

obstruction (Id., ¶¶54-96); (3) failure to explore other options
after Dr. Nugent recommended a TUNA procedure (Id.); (4) failure
to pursue a parallel neurological workup while he was being seen
by Dr. Nugent (Id., ¶¶8, 54-96); (5) failure to obtain informed
consent before Dr. Nugent performed the TUNA procedure (Id., ¶4,
106); (6) failure to provide proper follow-up treatment after the
TUNA (Id., ¶¶117-144); (7) failure to treat or delay in treating
his back/leg-related symptoms (Id., ¶¶9, 157-189); (8) delay in
scheduling his visit with a neurologist (Id., ¶¶9, 134, 186, 190);
(9) failure to obtain an MRI sooner (Id., ¶¶9, 199); and (10)
failure to provide second medical opinions. (TAC, ¶¶238-239.)
Plaintiff alleged he knew and repeatedly stated he was on the wrong
course of evaluation and treatment, based on his symptoms. (Id.,
¶238.)
II.

Undisputed Material Facts
A. Plaintiff’s Designation to FCI Fort Dix
On August 30, 2005, Plaintiff was sentenced in the Southern

District of Texas to 274 months in prison, and the sentencing
minutes form showed that the district court recommended Plaintiff
be housed in a federal medical facility. (Statement of Undisputed
Material Facts, ECF No. 131-1, ¶11.) Upon his arrival at FCI Fort
Dix, Plaintiff was designated a Care Level 2 inmate. (ECF No. 1311 at ¶343.) Care Level 2 means the inmate is medically stable but
4

may

require

treatment

for

chronic

conditions

that

are

under

control. (Id., ¶7.) Care Level 3 means the inmate is medically
fragile and may require assistance with activities of daily living
or monthly clinical evaluations. (Id.) Medical Staff did not
recommend transfer to a Care Level 3 or 4 facility because they
believed Plaintiff did not qualify. (Id., ¶344.)
A. Exhaustion of Administrative Remedies
Plaintiff submitted a BP-8 informal resolution form (“BP-8”)
on April 5, 2011, alleging he developed pain and other symptoms
after a Transurethral Needle Ablation (“TUNA”) procedure, and he
received no response. (ECF No. 131-1, ¶345.) On May 9, 2011, a
counselor responded to the BP-8 by stating Plaintiff was seen by
medical staff and an urologist numerous times, and he was put on
medication. (BP-8 Response, ECF No. 124-14 at 5.)
Plaintiff submitted a BP-9 Request for Administrative Remedy
(“BP-9”), on May 9, 2011, complaining about his medical care. (BP9, ECF No. 124-14 at 1-2.) Plaintiff requested “proper medical
care”

for

symptoms

of

back

pain,

urinary,

sexual

and

bowel

symptoms. (Id.) Plaintiff stated, “I was only given pain medication
and no definitive treatment.” (Id. at 1.) Plaintiff theorized that
his prostate and bladder were normal before the TUNA procedure,
and his new symptoms were caused by the procedure. (Id. at 2.)
Warden Zickefoose responded to the BP-9 on June 20, 2011.
(BP-9 Response, ECF 124-14 at 3.) She stated in her response “[a]
5

review of your medical records reveals that you have been under
the care of the medical staff at FCI Fort Dix as well as a[n]
Urologist for your diagnosis of benign prostatic hyperplasia.”
(Id.) She also directed Plaintiff to raise any issues or side
effects at his chronic care visit in July 2011, or use sick call.
(Id.) At FCI Fort Dix, typically someone from health services or
a medical records technician prepares the response to a BP-9, for
the warden’s review. (Statement of Undisputed Material Facts, ECF
No. 131-1, ¶354.)
B. Urology Treatment
Plaintiff was 51-years-old when he arrived at FCI Fort Dix
on September 14, 2006. (ECF No. 131-1, ¶12.) Dr. Dennis Nugent,
who passed away in February 2015, was a private physician who
contracted with the BOP to provide urological care to inmates from
FCI Fort Dix. (Id., ¶¶34-36.) Dr. Nugent saw Plaintiff on September
12, 2007 to evaluate urinary symptoms and recommended diagnostic
tests, which were approved by the prison’s Utilization Review
Committee “URC.” (Id., ¶¶37-38) Dr. Nugent performed a cystoscopy
on Plaintiff on May 19, 2008, and the operative note states “the
only positive finding was prostatic obstruction. (Id., ¶¶49-50.)
The urethra was obstructed by a small amount of lateral lobe
tissue. (Id., ¶50.) Dr. Nugent said Plaintiff would be an ideal
candidate for a Transurethral Needle Ablation (“TUNA”). (Id.)

6

When Plaintiff continued to complain of urinary symptoms in
July

2008,

Dr.

Nugent

diagnosed

benign

prostatic

hyperplasia

(“BPH”) and lower urinary tract symptoms (“LUTS”), which include
frequency, urgency, poor stream, and painful urination. (Id.,
¶¶52-55.) Dr. Nugent prescribed Cardura (doxazosin). (Id., ¶54.)
On July 22, 2008, Dr. Samir Sulayman prepared a consultation
request for urology follow-up, based on Plaintiff’s visit with Dr.
Nugent. (Statement of Undisputed Material Facts, ECF No. 131-1,
¶¶57-58.)

Dr. Sulayman saw Plaintiff only this once. (Id., ¶63.)
His employment with FCI Fort Dix ended in January 2011. (Id., ¶65.)
Plaintiff saw Dr. Nugent

again

on October 8, 2008, and

reported continued urinary symptoms and intolerance for doxazosin.
(Id., ¶68.) Plaintiff agreed to the TUNA procedure. (Id.) Dr.
Sulayman prepared the necessary request to the prison’s URC for an
urology follow-up, based on Dr. Nugent’s recommendation for the
TUNA procedure. (Id., ¶70.)
Plaintiff saw Dr. Nicoletta Turner-Foster for the first time
on March 11, 2009, at the Chronic Care Clinic in FCI Fort Dix.
7

(Id.,

¶75)

Plaintiff

reported

chronic

symptoms

of

urinary

hesitancy and nocturia, and pain when urinating and defecating
(Id.,

¶76.)

Dr.

Turner-Foster

did

not

refer

Plaintiff

to

a

neurologist because she wanted to complete the urology work-up
first. (Id., ¶80.)
Plaintiff saw Dr. Turner-Foster again on September 2, 2009,
and reported urinary hesitancy, nocturia and pain in his joints
and entire back. (Statement of Undisputed Material Facts, ECF No.
131-1, ¶¶85-86.) Plaintiff’s neurological examination and gait
were normal. (Id.) Dr. Turner-Foster ordered bloodwork and renewed
Ibuprofen. (Id., ¶88.)
BOP medical providers do not obtain consent for procedures
performed by specialists and expect the specialist to obtain
consent. (Id., ¶94.) Dr. Nugent performed the TUNA procedure on
Plaintiff

in

his

office

on

September

22,

2009.

(Id.,

¶91.)

Plaintiff saw Dr. Nugent in follow-up on November 25, 2009,
and Dr. Nugent noted that Plaintiff reported slight improvement
since the TUNA. (Id., ¶¶99-100.) Plaintiff could not tolerate
doxazosin, and Dr. Nugent prescribed Flomax. (Id., ¶¶100-101.)
On January 14, 2010, Plaintiff told Dr. Turner-Foster that
his urinary symptoms persisted, and he had an adverse reaction to
Flomax

several

weeks

earlier.

(Id.,

¶¶111-13.)

Plaintiff’s

neurological examination and gait were normal. (Id., ¶114.) Dr.
Turner-Foster planned to have Dr. Nugent rule out possible scar
8

tissue

in

the

bladder

or

urethra

in

Plaintiff’s

follow-up

appointment in February. (ECF No. 131-1 at ¶115.) She renewed
Ibuprofen

and

discontinued

Flomax.

(Statement

of

Undisputed

Material Facts, ¶116.) In Plaintiff’s follow-up with Dr. Nugent,
his medications were changed, and Dr. Nugent recommended a urine
culture. (Id., ¶¶119-20.)
Plaintiff was seen in sick call on April 27, 2010 for chronic
constipation, and painful and difficult urination. (Id., ¶123.)
Urine and blood tests were within normal limits (Id., ¶¶125-26.)
An abdominal x-ray revealed no significant findings. (Id., ¶127.)
On May 5, 2010, Dr. Turner-Foster responded to an “Inmate
Request to Staff” from Plaintiff about the TUNA procedure. (Id.,
¶134.) Plaintiff wrote that the TUNA was a total failure, and he
could not have a normal bowel movement or urinate without pain.
(Id., ¶136.) He asked for an MRI, colonoscopy and stool culture.
(Id., ¶137.) Dr. Turner-Foster responded by noting Plaintiff had
just been hospitalized for bowel pain, and he was diagnosed with
diverticulosis,

after

having

a

colonoscopy.

(Id.,

¶138.)

She

prescribed medication for constipation, naproxen for pain, and
discontinued Flomax. (ECF No. 131-1 at ¶¶141-42.)
Plaintiff saw Dr. Nugent in May 2010, for continuing urinary
symptoms. (Id., ¶¶147-48.) Dr. Nugent recommended a transurethral
resection of the prostate (“TURP”), but Plaintiff refused. (Id.,
¶149.) Dr. Nugent prescribed Hytrin, and recommended follow-up in
9

six months. (Id., ¶150.) Dr. Lopez believed it was appropriate to
continue Plaintiff in urology care, rather than pursue a neurology
work-up. (Statement of Undisputed Material Facts, ECF No. 131-1,
¶153.)

Several

months

later,

Dr.

Turner-Foster

continued

Plaintiff’s medications for urinary and stool symptoms. (Id.,
¶167.)
On November 17, 2010, Plaintiff told Dr. Nugent that he
suffered lower back pain, difficulty voiding, difficulty walking,
and a burning sensation in his legs. (Id., ¶¶177-78.) Dr. Nugent
recommended a neurology consultation to rule out lumbosacral disk
disease. (Id., ¶179.) Dr. Turner-Foster requested approval of the
neurology consultation on Plaintiff’s behalf. (Id., ¶185.) Dr.
Lopez denied the request on March 5, 2011, because Plaintiff selfreported that he engaged in an extensive workout routine without
difficulty. (Id., ¶186.)
In

the

next

follow-up

with

Dr.

Nugent

in

Plaintiff told Dr. Nugent about his spinal tumor.

August

2011,

(Id., ¶¶202-

04.) Dr. Nugent recommended a neurosurgical consultation to rule
out neurogenic bladder. (Id.) on October 18, 2011, Dr. Lopez
approved

the

MRI

request

and

the

request

for

neurosurgical

consultation. (Id., ¶209.)
Plaintiff continued to complain of urinary symptoms in April
2012, and he was scheduled for urodynamic testing and a CT scan to
rule out a pelvic mass. (Id., ¶¶238-40). Plaintiff was unable to
10

tolerate a catheter, which was required for urodynamic testing and
diagnosis

of

neurogenic

bladder.

(Id.,

¶247.)

Plaintiff’s

abdominal ultrasound showed diverticulosis and gall stones, but no
mass. (Statement of Undisputed Material Facts, ECF No. 131-1,
¶246.) Dr. Nugent prescribed new medications in August 2012. (Id.,
¶248.)

Dr.
Patel told Plaintiff he had to stop using ibuprofen because it
inflamed the colon and led to rectal bleeding. (Id., ¶309.)
In

May

2015,

Plaintiff

declined

catheterization

of

his

bladder to treat his urinary symptoms. (Id., ¶317.) Several months
later, he changed his mind. (Id., ¶333.)
FCI Fort Dix medical staff arranged for Plaintiff to be
examined on October 15, 2015, by Dr. Simon Hanft, Professor of
Neurosurgery and Director of Spinal Oncology at Rutgers-Robert
Wood Johnson Medical School. (Id., ¶336.)

11

Dr. Hanft would
only consider doing surgery if Plaintiff underwent urodynamic
testing

and

evidence

of

assessment
a

of

sphincter

neurological

cause.

tone,

providing

(Statement

of

strong

Undisputed

Material Facts, ECF No. 131-1, ¶338.) Dr. Hanft was unconvinced
that the tumor was the cause of Plaintiff urinary and fecal
problems, and he knew it was not the cause of Plaintiff’s back
pain. (Id., ¶339.) Plaintiff saw an urologist in December 2015,
Dr. Russell Fried, who recommended diagnostic tests for hypotonic
neurogenic bladder. (Id., ¶341.)
B.

Back Treatment

Upon his arrival at FCI Fort Dix, Plaintiff reported that he
had a history of arthritis in his back, and spinal cord tumor with
atrophy of the left leg. (Id., ¶¶12-13.) He was evaluated by xrays and blood tests, and prescribed pain medication. (Id., ¶¶1415.)

Dr. Chung believed the atrophy in Plaintiff’s calf was
likely

caused

by

his

bypass

surgery,

and

that

a

neurology

consultation was not appropriate because Plaintiff had no motor
function change or significant neurological symptoms. (Id., ¶48.)
12

Plaintiff saw Dr. Sulayman in the Chronic Care Clinic at FCI
Fort Dix on August 5, 2008, and reported back pain and a history
of spinal tumor, for which he had refused surgery in the 1990s.
(Statement of Undisputed Material Facts, ECF No. 131-1, ¶60.) Dr.
Sulayman prescribed Motrin for pain. (Id., ¶61.)
On March 11, 2009, Plaintiff told Dr. Turner-Foster that he
suffered pain in his joints and entire back. (Id., ¶76.) Dr.
Turner-Foster

noted

Plaintiff

had

hammertoes

but

otherwise

a

normal neurological exam, and normal gait. (Id., ¶77.) She renewed
Plaintiff’s prescription for Ibuprofen. (Id., ¶78.)
On August 7, 2009, Plaintiff was seen in sick call and
reported he had spinal tumor for which he refused treatment in the
past. (Id., ¶81.) X-rays were ordered to evaluate his back and
neck pain. (Id., ¶82.) The x-rays showed mild slippage in the lower
back, and degenerative joint disease in the neck and mid-back.
(Id.) Plaintiff was treated with ibuprofen. (Id.)
On December 24, 2009, Plaintiff was seen in Health Services
for dizziness, headache, and back pain radiating down his legs.
(Id., ¶105.)

On January 14, 2010, Plaintiff saw Dr. Turner-Foster, who
noted ibuprofen helped Plaintiff’s back and joint pain, although
he experienced aching every day. (Id., ¶112.)

13

On May 24, 2010, Plaintiff wrote an Inmate Request to staff,
complaining about back pain down his legs to his feet, and he
requested an MRI and EMG. (Id., ¶154.) Dr. Turner-Foster responded
on June 23, 2010, and noted Plaintiff had been evaluated in the
clinic for these issues. (Id., ¶¶154-55.)
Plaintiff reported to sick call on July 15, 2010, complaining
of sharp pain radiating down his right leg. (Id., ¶156.) His
prescription for naproxen was renewed. (Id., ¶157.) Later that
month, Plaintiff said he wanted to know if his preexisting tumor
had increased in size. (Id., ¶160.) He was advised to continue
with naproxen, and x-rays of his mid-back were ordered but came
back normal. (Id., ¶161.)
On August 4, 2010, Plaintiff complained to Dr. Turner-Foster
of joint and back pain. (Id., ¶164.) The pain decreased somewhat
with naproxen. (Id.) Plaintiff described his work-out routine,
including

leg

extensions,

bench

press,

bicep

curls,

shoulder

extension, trapezius, and Nordic Track for 20 minutes, five times
a week. (Id., ¶165.) Plaintiff’s neurological exam was normal.
(Id.,

¶166.)

Dr.

Turner-Foster

prescribed

indomethacin

and

levetiarcetam for Plaintiff’s back pain. (Id., ¶167.)
On August 19, 2010, Plaintiff went to sick call for severe
neck, back and leg pain that started when he was mopping. (Id.
¶¶168-69.) He underwent x-rays of his neck and mid-back, which

14

showed only degenerative changes, and his pain was treated with a
Ketorolac injection. (Id., ¶170.)
On

October

23,

2010,

Dr.

Turner-Foster

responded

to

Plaintiff’s August 2010 Inmate Request to Staff, asking for an MRI
and removal of his spinal tumor because his back pain was severe.
(Statement of Undisputed Material Facts, ECF No. 131-1, ¶¶174-75.)
She told him to sign up for sick call to discuss this. (Id., ¶176.)
Plaintiff saw Dr. Turner-Foster again on January 28, 2011,
and she prescribed gabapentin for his nerve pain. (Id., ¶¶181-84.)
She also requested that Plaintiff have a consultation with a
neurologist, based on Dr. Nugent’s recommendation. (Id., ¶185.)
Dr. Abigail-Lopez denied the request on March 5, 2011, because she
felt it was unnecessary based on Plaintiff’s description of his
exercise routine. (Id., ¶186.)
Plaintiff was assigned a new primary care physician on July
13, 2011, Dr. Pradip Patel. (Id., ¶193.) Dr. Patel requested a
neurosurgical consultation and an MRI due to Plaintiff’s symptoms
of

left

leg

weakness,

atrophy,

radiculopathy

and

bladder

dysfunction. (Id., ¶196.) Dr. Lopez denied the request for an MRI
on July 30, 2011, because the request was not justified under the
Interqual criteria. (Id., ¶198.) However, she approved the request
in October. (Id., ¶209.)
Dr. Patel also requested a CT scan of Plaintiff’s lumbar spine
on October 21, 2011, and the procedure was performed on November
15

9, 2011. (Id., ¶¶214-15.) The scan showed moderate to marked
narrowing (stenosis) of the lumbar canal, disk bulges, herniations
and kidney stones. (Id., ¶216.)
Plaintiff underwent an x-ray for MRI clearance on December
20, 2011, and the x-ray showed a metallic density near his left
sinus. (Statement of Undisputed Material Facts, ECF No. 131-1,
¶217.) Therefore, St. Francis Medical Center, which performed MRIs
for FCI Fort Dix, refused because it could dislodge the metallic
object. (Id., ¶¶218-19.)
Plaintiff was evaluated by neurosurgeon Dr. Anthony Chiurco
the next day. (Id., ¶220.) Dr. Chiurco believed stenosis was
causing Plaintiff’s left leg symptoms, and he recommended lumbar
decompression (laminectomy). (Id., ¶223.) The request for the
procedure was approved on February 10, 2012. (Id., ¶225.) The
surgery was performed on March 26, 2012. (Id., ¶235.)
After his lumbar laminectomy, Plaintiff continued to receive
evaluation and treatment for his complaints of back, neck and leg
pain. (Id., ¶¶240, 250-51, 254, 158, 264, 266, 268, 270.) In
November

2013,

Plaintiff

said

he

did

not

want

to

take

any

medication for his bowel or back pain. (Id., ¶276.)
FCI Fort Dix arranged to have U.S. Mobile Imaging come to the
prison in March 2014, to perform MRIs on Plaintiff’s lumbar and
thoracic

spine.

(Id.,

¶¶280-81.)

The

thoracic

MRI

showed

a

cerebrospinal fluid mass, four centimeters in length. (Id., ¶281.)
16

A contrast MRI was ordered to rule out growth of the mass. (Id.,
¶282.) Additional MRIs of Plaintiff’s spine were performed. (Id.,
¶¶289, 294-96, 302-03.)
Plaintiff

underwent

a

neurosurgical

evaluation

with

Dr.

Chiurco in February 2015. (Statement of Undisputed Material Facts,
ECF No. 131-1, ¶305.) Dr. Chiurco told Plaintiff that his diffuse
symptoms were not related to the spinal mass shown on the MRI,
which had been present for twenty years. (Id.) In April 2015,
Plaintiff underwent repeated MRIs of the thoracic and lumbar spine.
(Id., ¶¶312-13.)
Plaintiff saw Dr. Chiurco again in May 2015. (Id., ¶¶321-25.)
Dr. Chiurco did not believe Plaintiff’s progressive symptoms could
be attributable to the tumor. (Id., ¶322.) However, Plaintiff could
have the tumor removed based on his increasing sphincter symptoms.
(Id., ¶323.) The surgery might result in permanent incontinence of
urine and stool. (Id., ¶325.) Plaintiff was willing to undergo
surgery because his bowel symptoms had not improved. (Id., ¶328.)
In October 2015, Dr. Simon Hanft, Professor of Neurosurgery
and Director of Spinal Oncology at Rutgers-Robert Wood Johnson
Medical

School,

would

only

consider

doing

surgery

to

remove

Plaintiff’s spinal tumor if Plaintiff underwent urodynamic testing
and assessment of sphincter tone, and the testing showed a strong
indication of a neurological cause. (Id., ¶338.) Dr. Hanft was
unconvinced that the lesion was the cause of Plaintiff’s urinary
17

and fecal problems, and he knew it was not the cause of Plaintiff’s
back pain. (Id., ¶339.)

III. DISCUSSION
A.

Summary Judgment Standard

Summary Judgment is proper where the moving party “shows
there is no genuine dispute as to any material fact,” and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999).
The moving party has the burden to show there is an absence of
evidence to support the nonmoving party’s case.

Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986).
A party asserting that a fact is genuinely disputed must
support the assertion by citing materials in the record, including
depositions,

documents,

affidavits

or

declarations

or

other

materials. Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration
used to support or oppose a motion must be based on personal
knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). “If a party fails to
properly support an assertion of fact . . . the court may . . .
grant summary judgment . . .” Fed. R. Civ. P. 56(e).
In determining whether there is a genuine dispute of a
material fact, the court must view the facts in the light most
18

favorable

to

the

non-moving

party

and

make

all

reasonable

inferences from those facts. Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact raises a
genuine issue “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
B.

Bivens Claims Against Dr. Sulayman

The

Federal

Defendants

contend

Plaintiff’s

Bivens

claim

against Dr. Sulayman, who treated Plaintiff once in 2008, is barred
by the two-year statute of limitations because Plaintiff filed
this action on May 16, 2012. (Fed. Defs’ Brief, ECF No. 124-3 at
42-43.) Plaintiff contends that he did not know or have reason to
know of his injury caused by Dr. Sulayman until 2011, therefore,
his claim is not barred by the statute of limitations. (Pl’s Brief,
ECF No. 131 at 14.)
Plaintiff contends he did not discover the basis for his
lawsuit until July 13, 2011, when Dr. Patel diagnosed Plaintiff as
having significant potential neurological issues which likely
contributed to his urological symptoms. (ECF No. 131 at 16.)
Plaintiff states “[t]his was the first time in approximately five
years of treatment that any of the Defendants had acknowledged any
potential treatment or cause of Plaintiff’s problems outside of
the singularly-focused course of urology.” (Id.) He asserts that
Dr.

Sulayman

perpetuated

Dr.

Nugent’s
19

misdiagnoses

by

not

independently verifying the diagnoses or exploring alternatives.
(Id. at 14.)
The Court need not determine when Plaintiff’s Bivens claim
against Dr. Sulayman accrued because Plaintiff has not stated an
Eighth Amendment claim of deliberate indifference to his serious
medical needs by Dr. Sulayman. “[D]eliberate indifference to a
substantial risk of serious harm to an inmate violates the Eighth
Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). Deliberate
indifference may be found when a prison official “knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837.
The deliberate indifference standard is met “when a doctor is
‘intentionally inflicting pain on [a] prisoner[].’” Spruill v.
Gillis,

372

Napoleon,

F.3d

897

218,

F.2d

235

103,

(3d

Cir.

2004)

109

(3d

Cir.

(quoting
1990)).

White

v.

Deliberate

indifference can also be shown where the denial or delay in
granting a reasonable request for medical treatment subjects the
prisoner to undue suffering or threat of tangible residual injury.
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834
F.2d 326, 346 (3d Cir. 1987). Medical malpractice, however, does
not satisfy the deliberate indifference standard. Id. at 835
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
20

No reasonable juror could find deliberate indifference to
Plaintiff’s

serious

medical

needs

based

on

Plaintiff’s

one

encounter with Dr. Sulayman in August 2008.

The fact that Plaintiff
told Dr. Sulayman he was diagnosed with a spinal tumor in the 1990s
is

insufficient

indifferent

by

evidence
not

that

Dr.

associating

Sulayman

Plaintiff’s

was

deliberately

present

symptoms,

almost twenty years later, to the tumor and take immediate action
on this basis. Dr. Sulayman’s only other involvement in Plaintiff’s
medical care was to make written requests for approval of tests
and treatment recommended by Dr. Nugent. (Statement of Undisputed
Material Facts, ECF No. 131-1, ¶¶57-58.)
Additionally, Dr. Sulayman was not deliberately indifferent
by failing to question whether Dr. Nugent, a specialist, had
correctly evaluated and treated Plaintiff’s urological symptoms.
Plaintiff’s claim that Dr. Sulayman failed to consider whether his
urological symptoms had a neurological cause sounds in negligence
rather than deliberate indifference. Negligent medical care by
prison medical staff is insufficient to support a constitutional
violation. Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993)
(citing Estelle, 429 U.S. 97, 104.) Having failed to assert facts
supporting deliberate indifference to his serious medical needs,

21

the Court will grant summary judgment to the Federal Defendants on
Plaintiff’s Eighth Amendment claim against Dr. Sulayman.
C.

Bivens Claims Against Warden Zickefoose

The Federal Defendants contend Plaintiff may not rely on the
warden’s supervisory position to hold her liable for an alleged
constitutional violation in which she had no personal involvement.
(Fed. Defs’ Brief, ECF No. 124-3 at 45.) Responding to or reviewing
an inmate grievance does not establish personal involvement in an
Eighth Amendment deliberate indifference claim. (Id., at 46.)
Plaintiff

also

alleged

Warden

Zickefoose

sent

a

medical

records Technician, Steven Ruff, to threaten Plaintiff that if he
did not sign and resolve his BP-9 Administrative Remedy Request,
he would not be allowed to see any doctors. (Id., at 47.) The
Federal

Defendants

assert

Zickefoose

is

entitled

to

summary

judgment on this claim because Plaintiff admitted that he only
believed Warden Zickefoose was behind this, but he had no way of
knowing this. (Id.)
In opposition to summary judgment, Plaintiff asserts personal
involvement in a constitutional violation can be shown through
allegations

of

personal

direction

or

actual

knowledge

and

acquiescence. (Pl’s Brief, ECF No. 131 at 19.) Plaintiff relies on
Zickefoose’s failure to respond to his remedy request, and his
allegation that Zickefoose sent Ruff to stop Plaintiff from filing
further

administrative

claims.
22

(Id.

at

20-21.)

Therefore,

Plaintiff asserts Zickefoose created an environment where his
injuries would be exacerbated by improper treatment. (Id. at 21.)
Plaintiff

also

asserts

Zickefoose

falsely

stated,

in

a

response to his BP-9 on June 20, 2011, that she had reviewed his
medical records and acknowledged his complaints. (Id. at 21-22.)
Plaintiff asserts Zickefoose did not personally review his medical
records or conduct any type of investigation into his complaints.
(Id. at 22.) Thus, he asserts she perpetuated his improper medical
treatment. (Id.)
There is no support in the record for Plaintiff’s claim that
Warden

Zickefoose

falsely

stated

she

personally

investigated

Plaintiff’s claims. In her BP-9 response, Zickefoose stated only
that a review of his medical records was performed and revealed
Plaintiff was receiving evaluation and treatment for his medical
concerns.

(BP-9

Response,

ECF

124-14

at

3.)

There

is

no

constitutional violation when a warden delegates to medical staff
the duty to review medical records in order to respond to an inmate
grievance. Non-medical prison

officials are not “deliberately

indifferent simply because they failed to respond directly to the
medical complaints of a prisoner who was already being treated by
the prison doctor.” Durmer, 991 F.2d at 69 (3d Cir. 1993). There
is no constitutional right to prison grievance procedures. Heleva
v. Kramer, 214 F. App’x 244, 247 (3d Cir. 2007).

23

Furthermore, based on Plaintiff’s deposition testimony, his
allegation that Zickefoose ordered Ruff to threaten him is purely
speculation on Plaintiff’s part. (Stevens Dep. 1, pp. 170-76, 18184, ECF No. 124-6 at 43-46; Stevens Dep. 2, pp. 113-15, ECF No.
124-7 at 29.) Plaintiff admitted there is no way he could know
this happened; he merely assumed it happened behind closed doors
between Ruff and the warden. (Id.) “[A]n inference based upon a
speculation or conjecture does not create a material factual
dispute

sufficient

to

defeat

summary

judgment.”

Robertson

v.

Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990) (citing
Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482
(11th Cir. 1985)).
Most importantly, the undisputed material facts concerning
Warden

Zickefoose’s

involvement

in

the

alleged

deliberate

indifference to Plaintiff’s serious medical needs are that (1)
Zickefoose became aware of Plaintiff’s concerns about his medical
care through his grievances; (2) Zickefoose did not personally
investigate Plaintiff’s grievances; and (3) she did not intercede
to provide Plaintiff with the treatment he felt he needed because
he was receiving treatment from the prison medical staff.
“Government

officials

may

not

be

held

liable

for

the

unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Plaintiff claims that Zickefoose acquiesced in mistreatment by
24

medical

staff

by

not

providing

a

remedy.

Non-medical

prison

officials are not deliberately indifferent “simply because they
failed to respond directly to the medical complaints of a prisoner
who was already being treated by the prison doctor.” Durmer, 991
F.2d at 69. Prison officials are entitled to give deference to
medical authorities in diagnosing and treating patients. Pierce v.
Pitkins, 520 F. App’x 64, 66 (3d Cir. 2013). “If an official’s
only involvement is the investigation or adjudication of an inmate
grievance

after

the

event

giving

rise

to

the

grievance

has

happened, that is not considered to be personal involvement.” Sims
v. Wexford Health Sources, No. 15-2739, 2015 WL 9267942 at *2 (3d
Cir. 2015) (citing Rode v. Dellaciprete, 824 F.2d 1195, 1207-08
(3d Cir. 1988)). For these reasons, the Court will grant summary
judgment to the Federal Defendants on Plaintiff’s Eighth Amendment
claim against Warden Zickefoose.
D.

Bivens Claims Against Dr. Turner-Foster and Dr. Lopez

The remaining Federal Defendants are Dr. Nicolleta TurnerFoster and Dr. Abigail Lopez. The Federal Defendants assert that
no

reasonable

jury

could

find

that

they

were

deliberately

indifferent to Plaintiff’s serious medical needs. (Fed. Defs’
Brief, ECF No. 124-3 at 49.) Plaintiff was provided extensive
medical treatment for his complaints, and disagreement with a
course of treatment does not rise to the level of a deliberate
indifference

claim.

(Id.,

at

49-52.)
25

Moreover,

the

Federal

Defendants are not responsible for the performance of the TUNA
procedure, which was performed by an outside specialist. (Id., at
54.)
The Federal Defendants contend that failure or delay in
referring an inmate to a specialist or obtaining a diagnostic test
cannot support a claim for deliberate indifference. (Id., at 5556.) They also argue that Plaintiff cannot establish an Eighth
Amendment claim based on failure to transfer him to a Federal
Medical Center, because the decision was based on professional
judgment that he was a Care Level 2 inmate who did not require
greater care. (Id. at 56.)
Finally,

the

Federal

Defendants

assert

Plaintiff

cannot

succeed on a claim that the BOP failed to provide a system to
address his complaints and to allow him to seek a second medical
opinion

because

Plaintiff

received

a

response

to

his

BP-9

grievance, and he was provided constitutionally adequate medical
treatment. (Id. at 56-57.)
Plaintiff responds that there is ample evidence the Federal
Defendants recklessly disregarded his serious medical needs by not
providing a neurological consultation earlier. (Pl’s Brief, ECF
No. 131 at 28-31.)

He failed to receive treatment for a known and

previously diagnosed spinal tumor, despite his repeated complaints
and requests for treatment. (Id. at 34-35.) Additionally, the
Federal

Defendants

denied

Dr.

Nugent’s

26

recommendation

for

a

neurology consultation, although they professed to rely on his
expertise. (Id. at 35-36.) Plaintiff contends that “a reasonable
juror could find deliberate indifference when the tests Defendants
conducted do not allow a physician to rule out certain possible
causes.” (Id. at 36.)
In reply, the Federal Defendants argue that Plaintiff is
attempting

to

create

a

constitutional

dimension

to

medical

malpractice claims by alleging they recklessly disregarded a risk
of harm by pursuing urological treatment. (Fed. Defs’ Reply, ECF
No. 134 at 12.) Disagreement with Dr. Turner-Foster’s professional
judgment of prioritizing the most likely cause of Plaintiff’s
symptoms, and ruling the most likely cause out before moving on to
the

next

likely

cause,

cannot

establish

an

Eighth

Amendment

violation. (Id. at 13.) The Federal Defendants were not required
to second guess Dr. Nugent’s diagnosis. (Id.)
The Federal Defendants further dispute Plaintiff’s contention
that a jury could find they were deliberately indifferent to
finding the real cause of Plaintiff’s symptoms, after it was
obvious that urology treatment was ineffective. (Id. at 14.) They
contend

this

argument

overlooks

undisputed

facts

that:

(1)

Plaintiff has received the neurological care he claims he should
have

received

earlier;

and

(2)

the

specialist

who

examined

Plaintiff in December 2015 was uncertain that Plaintiff’s spinal
mass was causing his urinary symptoms or back pain. (Id. at 14.)
27

Thus, if outside experts cannot pinpoint the cause of Plaintiff’s
symptoms, they cannot be liable under Bivens for failing to refer
Plaintiff to an expert for such evaluation sooner. (Id.)
There is no dispute that Plaintiff had serious medical needs.
In the Third Amended Complaint, Plaintiff alleged ten reasons the
Federal Defendants are liable for deliberate indifference to his
serious

medical

needs.

First,

Plaintiff

asserted

that

his

sentencing court recommended his designation to a federal medical
facility,

and

the

Federal

Defendants

ignored

the

sentencing

court’s order. (TAC, §§26-38.)
By statute,
Prisons,

not

a

18 U.S.C. § 3621(b), the

Federal

prison’s

makes the

medical

staff,

Bureau of
initial

determination of where a prisoner is housed upon sentencing. See
Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 239 (3d Cir.
2005) (quoting 18 U.S.C. § 3621(b)). Thus, Dr. Turner-Foster and
Dr. Lopez, the remaining Federal Defendants, are not liable for
failing to designate Plaintiff to a federal medical facility.
Moreover,

Dr.

Turner-Foster

and

Dr.

Lopez

were

not

deliberately indifferent to Plaintiff’s serious medical needs by
failing to transfer Plaintiff to a higher level of care facility.
Although Plaintiff disagreed, they exercised their professional
judgment in concluding Plaintiff was a Care Level 2 inmate whose
chronic conditions could be managed at FCI Fort Dix. (Statement of
Undisputed Material Facts, ECF No. 131-1 at ¶¶343-44.) “[A]s long
28

as a physician exercises professional judgment his behavior will
not violate a prisoner’s constitutional rights.” Brown v. Borough
of

Chambersburg,

903

F.2d

274,

278

(3d

Cir.

1990)

(quoting

Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982)).
The

second

example

Plaintiff

put

forward

as

deliberate

indifference of the Federal Defendants is their failure to identify
Dr. Nugent’s misdiagnosis of BPH and prostatic obstruction. Even
assuming

Dr.

misdiagnosis

Nugent’s
sounds

in

diagnosis

was

negligence

incorrect,

and

does

a

not

claim

of

constitute

deliberate indifference. Weigher v. Prison Health Services, 402 F.
Appx. 668, 670 (3d Cir. 2010).
The third basis Plaintiff asserted as deliberate indifference
by the Federal Defendants was their failure to explore other
treatment options after Dr. Nugent recommended a TUNA procedure to
treat his urological symptoms. This argument fails for two reasons.
Plaintiff’s argument is inaccurate because Plaintiff was in fact
treated with medication for his symptoms for months before he
decided to undergo the TUNA procedure. (Statement of Undisputed
Material Facts, ECF No. 131-1, ¶54.) Plaintiff’s argument fails
for another reason. The Eighth Amendment does not guarantee an
inmate

the

medical

treatment

of

his

choice.

See

Santos

v.

Byunchack, 549 F. App’x 59, 60 (3d Cir. 2014) (citing Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)). A plaintiff’s
disagreement with a particular course of treatment does not give
29

rise to a constitutional claim. Spruill v. Gillis, 372 F.3d 218,
235 (3d Cir. 2004).
Plaintiff’s fourth grounds for deliberate indifference by the
Federal

Defendants

is

their

failure

to

pursue

a

parallel

neurological workup while he was being seen by Dr. Nugent. This
argument also falls short. Dr. Turner-Foster did not find any
neurological deficits when she examined Plaintiff. (Statement of
Undisputed Material Facts, ECF No. 131-1, ¶¶77, 66.) She exercised
her professional judgment to rule out the most likely cause of
Plaintiff’s urological symptoms before pursuing another avenue.
(Turner-Foster Dep., pp. 217-20, ECF No. 124-10 at 55-56.)

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) (citations omitted).
“Certainly, no claim is presented when a doctor disagrees with the
professional judgment of another doctor. There may, for example,
be several ways to treat an illness.” White v. Napoleon, 897 F.2d
103, 110 (3d Cir. 1990).
Plaintiff’s fifth basis to impose liability on the Federal
Defendants for a constitutional violation is failure to obtain
informed consent for the TUNA procedure. In her deposition, Dr.
Turner-Foster stated the prison medical staff did not typically
obtain informed consent for procedures performed by an outside
30

specialist. (Turner-Foster Dep., pp. 156-57, ECF No. 124-10 at
40.) Dr. Turner-Foster and Dr. Lopez were not personally involved
in the alleged misconduct because they did not perform the TUNA
procedure, nor are there any facts suggesting they knew Dr. Nugent
performed with procedure without informed consent.
Plaintiff next alleged deliberate indifference due to the
Federal Defendants’ failure to provide proper follow-up treatment
after the TUNA. (TAC, ¶¶117-144). Dr. Turner-Foster regularly
provided Plaintiff follow-up care when he complained of symptoms
after the TUNA procedure, often prescribing medications for his
symptoms

and

referring

him

for

further

care

by

Dr.

Nugent.

(Statement of Undisputed Material Facts, ECF No. 131-1, ¶¶114-16,
118-20,

141-42.)

“No claim of deliberate indifference is made out
where a significant level of care has been provided, and all that
is shown is that the prisoner disagrees with the professional
judgment of a physician. . . .” Hairston v. Director of Bureau of
Prisons, 563 F. Appx 893, 895 (3d Cir. 2014.)
Plaintiff

also

advanced

three

closely

related

bases

for

deliberate indifference by Dr. Turner-Foster and Dr. Lopez: (1)
they delayed treating his back and leg pain symptoms; (2) delayed
scheduling his visit with a neurologist; and (3) failed to obtain
31

an MRI sooner. The undisputed material facts reveal that Dr.
Turner-Foster evaluated and treated Plaintiff’s back pain on every
visit when he complained of back and leg symptoms. (See supra
Section III.B.) Again, “where a significant level of care has been
provided, and all that is shown is that the prisoner disagrees
with

the

professional

judgment

of

a

physician,”

deliberate

indifference has not been shown. Hairston, 563 F. Appx at 895.
It

is

true

that

Dr.

Turner-Foster

declined

Plaintiff’s

initial requests for an MRI. (Statement of Undisputed Material
Facts, ECF No. 131-1, ¶¶137-38, 154-55, 175-76.) The failure to
order additional diagnostic tests does not constitute deliberate
indifference, but is at most medical malpractice. Johnson v. Cash,
557 F. App’x 102, 104 (3d Cir. 2013) (citing Estelle, 429 U.S. at
107.)) In any event, Dr. Turner-Foster requested approval of a
neurological evaluation on Plaintiff’s behalf on January 28, 2011,
after Dr. Nugent recommended it. (ECF No. 131-1, ¶¶181-85.)
Dr. Lopez, the Health Services Clinical Director, is not
liable

under

a

doctrine

of

respondeat

superior

for

alleged

constitutional violations by prison medical staff. “A plaintiff
must plead that each government official-defendant, through his or
her own actions, has violation the Constitution.” Ashcroft v.
Iqbal,

556

U.S.

662,

676

(2009).

She

had

limited

involvement in Plaintiff’s medical care at FCI Fort Dix.

32

personal

Dr. Lopez rejected the first requests to schedule Plaintiff
for an MRI because she felt there was insufficient evidence of
medical necessity. (Statement of Undisputed Material Facts, ECF
No. 131-1, ¶¶186, 198.) Providing an MRI upon a prisoner’s request
is not constitutionally required. Rhines v. Bledsoe, 388 F. App’x
225, 228 (3d Cir. 2010) (finding failure to immediately order an
MRI

upon

prisoner’s

request

does

not

demonstrate

deliberate

indifference.) However, when Dr. Patel submitted a second request
for Plaintiff to have an MRI of his spine, Dr. Lopez approved it.
(ECF No. 131-1, ¶209.)
The additional delay in scheduling the MRI occurred because
the provider with whom the prison contracted to perform MRIs
refused because Plaintiff had metal fragments in his face, which
could dislodge during an MRI. (Id., ¶¶218-29.) While waiting for
approval of an MRI, Plaintiff had CT scans. (Id., ¶¶214-15. 23840.) Ultimately, FCI Fort Dix arranged for another provider to
bring MRI equipment to the prison, and Plaintiff underwent multiple
MRIs.

The

Federal

Defendants

did

not

exhibit

deliberate

indifference where the delay in providing the MRI was based on a
medical reason. See Monmouth County Corr. Inst. Inmates, 834 F.2d
at 346 (deliberate indifference may exist where necessary medical
treatment is delayed for non-medical reasons) (citation omitted).
Plaintiff

also

alleged

the

Federal

Defendants

were

deliberately indifferent for failing to refer him to a neurologist
33

sooner.

As

previously

discussed,

Dr.

Turner-Foster

exercised

professional medical judgment in treating Plaintiff’s urological
symptoms based on the recommendations of an urologist. When Dr.
Nugent recommended that Plaintiff see a neurologist, Dr. TurnerFoster agreed.
Regarding Plaintiff’s back pain, Dr. Turner-Foster provided
pain management and other diagnostic means, such as x-rays, before
resorting to a neurological evaluation. A doctor’s failure to
conduct an MRI upon the inmate’s repeated requests does not support
a claim of deliberate indifference. Dykeman v. Ahsan, 560 F. App’x
129, 131-32 (3d Cir. 2014.)

At most, Plaintiff might allege

malpractice against Dr. Turner-Foster and Dr. Lopez for delay in
his evaluation by MRI and neurosurgical consultation.
Finally, Plaintiff alleged liability based on the failure to
provide second medical opinions. Here, the core of his complaint
is that he believed his spinal tumor may have been the cause of
his many chronic symptoms, and this should have been investigated
before pursuing other treatment options. Where a prisoner is
provided continual medical care upon each visit, a plaintiff cannot
show

the

requisite

mental

state

for

deliberate

indifference.

Rhines v. Bledsoe, 388 F. App’x 225, 227 (3d Cir. July 2010).
After providing and/or approving treatment and evaluation
they felt was proper, and Plaintiff continued to have symptoms,
Dr. Turner-Foster and Dr. Lopez ultimately sought neurological and
34

other evaluations by specialists. Plaintiff had a laminectomy of
the lumbar spine, but many of his symptoms persisted. A prisoner’s
complaint that more could have been done to evaluate and treat his
back

pain

does

not

constitute

deliberate

indifference

where

Plaintiff was diagnosed and treated with pain medication for his
complaints. Estelle v. Gamble, 429 U.S. 97, 207 (1976). The failure
to find the cause of an inmate’s pain through x-rays and CT scans,
while attempting to mitigate the symptoms, is not evidence of
deliberate indifference. See e.g. Davis v. Corr. Med. Sys., 334 F.
App’x 519. 521 (3d Cir. 2009).
In 2015, Plaintiff had the work-up he wanted to evaluate his
pre-existing spinal tumor. Plaintiff alleged in his complaint that
he knew his medical providers were pursuing the wrong course all
along.

(TAC,

¶238.)

However,

when

he

had

a

neurosurgical

consultation, after multiple MRIs, to discuss removing his spinal
tumor, Dr. Hanft would not schedule the surgery. (Statement of
Undisputed Material Facts, ECF No. 131-1, ¶338.) Dr. Hanft opined
that the spinal tumor was not the cause of Plaintiff’s back
symptoms. (Id., ¶339.) He also doubted the spinal tumor was the
cause of Plaintiff’s urological and bowel symptoms, and he would
not do surgery unless other urological testing could convince him
the surgery might be effective. (Id.)
In fact, Dr. Nugent had ordered urodynamic testing to rule
out neurogenic bladder in April 2012. (Id., ¶¶238-20.) The testing
35

could not be completed because Plaintiff could not tolerate the
catheter

that

was

necessary

for

the

testing.

(Id.,

¶247.)

Plaintiff’s allegation that delay in providing him neurosurgical
evaluation

for

his

spinal

tumor

constituted

deliberate

indifference and caused him unnecessary pain or risk of permanent
injury

is

supported

only

by

Plaintiff’s

conjecture.

This

is

insufficient to oppose the Federal Defendants’ summary judgment
motion.
IV.

CONCLUSION
For the reasons discussed above, the Court will grant the

Federal

Defendants’

motion

for

summary

judgment

in

the

accompanying Order filed herewith.

Dated:

s/Renee Marie Bumb

May 10, 2016

Renée Marie Bumb
United States District Judge

36