GONZALEZ v. LOPEZ DE LASALLE et al

Filing 56

OPINION. Signed by Judge Noel L. Hillman on 2/26/2015. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Francisco Gonzalez,
Plaintiff,
v.
Donna Zickefoose,
Pradip Patel, M.D., and
Steven Ruff
Defendants.

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Civil Action No. 12-3711(NLH)

OPINION

APPEARANCES:
Francisco Gonzalez
Federal Correctional Institution, Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Plaintiff pro se
David Bober
Assistant United States Attorney
402 E. State Street, Room 430
Trenton, NJ 08608
Counsel for Defendants

HILLMAN, District Judge
This matter comes before this Court upon the motion for
summary judgment of Defendants Donna Zickefoose, Pradip Patel,
M.D., and Steven Ruff.

[Mot. for S.J., Doc. No. 35].

Plaintiff

Francisco Gonzalez (“Plaintiff”), a prisoner who is confined at
1

FCI Fort Dix, filed this action on June 19, 2012, under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), for alleged violations of his Eighth Amendment
Constitutional rights based on exposure to environmental
conditions that worsened his illnesses, failure to grant a
medical transfer, and inadequate medical care.

(Compl., Doc.

No. 1.)
The Court screened the complaint pursuant to 28 U.S.C. §
1915(e), ordered dismissal of Defendant Lopez de LaSalle without
prejudice; and ordered Defendants to file a responsive pleading.
(Order, Doc. No. 2.)

Plaintiff submitted a request for

reconsideration of the Court’s dismissal of Defendant Lopez de
LaSalle.

(Letter, Doc. No. 11.)

The Court denied the request

for reconsideration, noting Plaintiff had the option to seek
leave to file an amended complaint containing new allegations
against Defendant Lopez de LaSalle.

(Order, Doc. No. 25.)

Plaintiff never sought leave to file an amended complaint.
Defendants filed an Answer.

(Answer, Doc. No. 19.)

Subsequently, the Court denied, without prejudice, several
requests and motions by Plaintiff for appointment of pro bono
counsel.

(Orders, Doc. Nos. 5, 24, 37, 42.)

Discovery was

conducted, 1 and Defendants brought a motion for summary judgment

1

The Amended Scheduling Order postponed expert disclosures until
this dispositive motion is decided. (Order, Doc. No. 34.)
2

on July 11, 2014.

(Mot. for S.J., Doc. No. 35.)

On August 25,

2014, the Court ordered Plaintiff to respond to the summary
judgment motion.

(Order, Doc. No. 47.)

Plaintiff opposed the

motion for summary judgment [Doc. Nos. 52, 53], and later filed
an addendum to his opposition brief. [Doc. No. 55.]
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 Defendants’
motion for summary judgment as to all but one claim.

More

specifically, the Court will deny without prejudice Defendants’
motion for summary judgment on, and order further development
of, Plaintiff’s claim that Defendant Patel violated his Eighth
Amendment 2 rights by revoking his first floor pass in retaliation
against Plaintiff for refusing to “snitch” on inmates who were
smoking.
I.

BACKGROUND

Plaintiff alleged the following in his Complaint.

He is a

53-year-old inmate who suffers chronic obstructive pulmonary
disease (“COPD”) caused by emphysema. (Compl., p. 9.)

He was

diagnosed with COPD in 2005, and his expected release date is

2

The Court notes Plaintiff has not raised a First Amendment
retaliation claim; rather, he alleges Defendant Patel’s conduct
violated the Eighth Amendment.
3

August 5, 2021.

(Id.)

Plaintiff lived without serious

complications from COPD until he was transferred to Fort Dix.
(Id.)

Since April 2011, he has required five emergency

hospitalizations.

(Id.)

Plaintiff alleged his decline in

health is directly attributable to environmental factors at Fort
Dix, including exposure to environmental tobacco smoke (“ETS”),
exposure to asbestos and lead-based paint, extreme temperature
fluctuations, lack of air conditioning, and exposure to jet fuel
emissions from the adjoining Air Force Base.

(Id.)

Through the prison’s administrative remedy procedure,
Plaintiff sought a transfer to a medical facility to escape the
environmental conditions at Fort Dix, and for better access to
emergency medical staff.

(Id.)

Plaintiff alleged his transfer

request was denied with deliberate indifference to his serious
medical needs.

(Id.)

Plaintiff’s specific allegations against Defendant Donna
Zickefoose, Warden, are that she failed to provide a place of
imprisonment free of environmental conditions, especially
second-hand smoke, that worsen Plaintiff’s COPD.
¶ 4(c)).

(Compl., p. 5,

Zickefoose became aware of Plaintiff’s condition and

his request for a medical transfer when he submitted an "Inmate
Request to Staff” to her on September 11, 2011.
12.)

(Compl., p.

She acknowledged his complaints, and told him to identify

who was smoking, but he feared reprisal by other inmates.
4

(Id.)

Plaintiff’s allegations against Dr. Pradip Patel, one of
Plaintiff’s primary care physicians at Fort Dix, include failure
to treat Plaintiff’s COPD, failure to authorize Plaintiff’s
transfer to a medical facility, and cancellation of Plaintiff’s
first floor pass, leading to his hospitalization.
8.)

(Compl., p.

Dr. Patel allegedly canceled Plaintiff’s first floor pass

in September 2011, because Plaintiff refused to snitch on other
inmates who were smoking.

(Compl., p. 12.)

Plaintiff was thus

transferred to a second floor room, forcing him to climb
staircases several times a day.

(Id.)

This exertion allegedly

caused his twelve-day emergency hospitalization from October 6
through October 17, 2011.

(Id.)

According to Plaintiff, Dr.

Patel knew that canceling the floor pass posed an excessive risk
to Plaintiff’s health.

(Id., pp. 12-13.)

Plaintiff also alleged that Fort Dix medical staff were
repeatedly slow to refill his COPD medications, citing an
example where a prescribed inhaler, Advair, had not been
provided three weeks after it was prescribed by Dr. Steeger on
May 17, 2012.

(Id., p. 16.)

Plaintiff alleged Defendant S. Ruff, a “Health Information
Tech” at Fort Dix, ignored Plaintiff’s informal remedy request,
wherein he complained that environmental factors at Fort Dix
exacerbated his COPD, and caused him to be hospitalized for
COPD-related illnesses.

(Id., pp. 13-14.)
5

Ruff’s only response

was to deny Plaintiff’s request for a medical transfer and refer
him to his Unit Team to discuss exposure to conditions that
exacerbate COPD.

(Id.)

Plaintiff then reasserted his claims in a request to
Zickefoose, explaining to her that COPD was a fatal disease.
(Id., p. 14.)

Zickefoose denied his request for a medical

transfer and again suggested that he report any smokers to his
Unit Team. (Id.)

Plaintiff alleged Zickefoose’s response failed

to address his chronic care needs, in violation of his Eighth
Amendment rights.

(Id.)

Plaintiff then suffered a seizure

attributable to COPD, causing another hospitalization.

(Id., p.

15.)
In support of their motion for summary judgment, Defendants
asserted the following:

(1) Defendants Zickefoose and Ruff are

entitled to summary judgment because they were not personally
involved in Plaintiff’s medical care; (2) BOP medical staff were
not deliberately indifferent to Plaintiff’s serious medical
needs because they consistently treated his chronic conditions;
and (3) allegations of exposure to environmental hazards do not
rise to the level of an Eighth Amendment violation.

(Mem. of

Law in Supp. of Defs’ Mot. for S.J. (“Defs. Mem.”) Doc. No. 351.)

In support of their contentions, Defendants submitted the

Declaration of Anthony Boyce, Doc. No. 35-3; Declaration of Tara

6

Moran, Doc. No. 35-4; Declaration of Pradip Patel, Doc. No. 355; 3 and Declaration of Steven Ruff, Doc. No. 35-6.
Plaintiff opposed Defendants’ motion for summary judgment.
(Pl’s Response to Defs’ Mot. for S.J. (“Pl’s Resp.”), Doc. No.
52; 4 Pl’s Mem. of Law in Supp. Response to Defs’ Mot. for S.J.
((“Pl’s Mem.”), Doc. No. 53.)

Plaintiff asserted that when he

arrived at Fort Dix in January 2009, he immediately advised
medical staff that he had two lung collapses in 2005.

(Pl’s

Resp., p. 1.) Plaintiff, however, also asserted his COPD was
under control before he arrived at Fort Dix, and his subsequent
hospitalizations are evidence that environmental factors at Fort
Dix exacerbated his COPD.

(Pl’s Mem., pp. 1-2.)

Plaintiff

further contended there is evidence of medical staff’s refusal
to follow treatment recommendations of specialists.

(Id., p.

6.)

3

Paragraph 74 of Dr. Patel’s Declaration states that pertinent
medical records are attached as Exhibit 1, but the exhibit was
not attached. Plaintiff, however, submitted his medical records
as an attachment to his Memorandum of Factual Contentions, filed
on May 5, 2014. (Doc. No. 28.) Therefore, the Court relies upon
those medical records in ruling on the instant motion.
4

Exhibit 1 to Plaintiff’s Response contains Plaintiff’s
administrative remedy requests and responses regarding changes
made in his prescription medications in June 2014, long after
the complaint was filed. The records do not reflect any
personal involvement of any of the defendants in this action, as
is required to state a constitutional violation. Barkes v.
First Correctional Medical Inc., 766 F.3d 307, 337-38 (3d Cir.
2014).
7

Plaintiff asserted there was a period of seven months in
which he had to wait to see a pulmonologist, Dr. Steeger, and
during that time he was housed on a third floor, requiring
constant stair climbing in a building without air conditioning.
(Id., p. 3.)

According to Plaintiff, Dr. Patel reviewed Dr.

Steeger’s notes and should have known about Plaintiff’s
worsening condition.

(Id., pp. 3-4.) Dr. Patel also tried to

force Plaintiff to identify inmates who were smoking.
6.)

(Id., p.

Plaintiff alleged that Dr. Patel continually refused to

follow medical recommendations of specialists who treated
Plaintiff. (Id.; Ex. A.) 5

As to Defendant Ruff, Plaintiff

alleged Ruff smoked in his presence on the occasions when they
met.

(Id., p. 6.)
II.

PLAINTIFF’S MEDICAL RECORDS

Plaintiff’s medical treatment records, beginning when he
entered FCI Fort Dix in January 2009, show the following.
Plaintiff had his first medical health screen on January 15,
2009, and he was treated with an albuterol inhaler for asthma.
(Declaration of Pradip Patel (“Patel Decl.”), Doc. No. 35-5, ¶
3; see also 2009 medical records, Doc. No. 28-6.)

5

Later that

The exhibit Plaintiff offered in support of this contention is
a memo, which appears to have been created by Plaintiff,
summarizing his hospital visits in July and August 2014, well
after the complaint was filed. [Ex. A, Doc. No. 53, pp. 8-9.]
Nevertheless, the Court reviewed the exhibit for evidence
pertaining to the claims in Plaintiff’s complaint.
8

month, he had his first chronic care clinic appointment, and he
complained of a two-week productive cough, and reported a
history of emphysema and collapsed lung.

(Patel Decl., ¶ 4.)

He had difficulty breathing when climbing stairs and in cold
temperatures.

(Id.)

On examination, he had some signs of COPD

but he was diagnosed with asthma, and a pulmonary function test
was recommended.

(Id.)

He was also prescribed albuterol and an

antibiotic, and he was referred for a chest x-ray.

(Id.)

Plaintiff was seen in follow up just three days later, and
prescribed another inhaler for more aggressive treatment.

(Id.,

¶ 5.)
On June 30, 2009, Plaintiff was seen in “sick call,” and he
complained his inhalers were not working.

(Id., ¶ 8.)

He was

wheezing and could not walk up stairs, which he attributed to an
increase in humidity.

(Id.)

Medical staff submitted a request

for Plaintiff to see a pulmonologist.
approved on August 7, 2009.

(Id.)

(Id.)

The request was

Several days later,

Plaintiff’s lungs had diminished sounds, he was prescribed a new
inhaler, and an x-ray and chest CT scan were ordered based on
his history of emphysema and bullous disease.

(Id., ¶ 9.)

On August 11, 2009, Physician Assistant Edward Gostkowski
designated Plaintiff as a Care Level 2 inmate, defined as a
stable outpatient with chronic illness who was able to perform
activities of daily living.

(Id., and August 11, 2009 medical
9

record, Doc. No. 28-6, p. 14.)

Plaintiff was issued a first

floor housing pass and bottom bunk pass for one year.

(Id.)

Plaintiff saw a pulmonologist, Dr. Steeger, on August 20,
2009.

(Id., ¶ 11.)

Dr. Steeger diagnosed COPD and large bullae

of the right upper lung lobe.

(Id.)

Dr. Steeger recommended

two new inhalers and requested a pulmonary function test.

(Id.)

Plaintiff continued to receive evaluation and treatment for
breathing difficulties, cough and congestion.

(Id., ¶¶ 12-13.)

Plaintiff underwent a pulmonary function test on November
12, 2009, and he was evaluated by a pulmonologist again in
December.

(Id., ¶¶ 14, 15.)

The pulmonologist diagnosed

emphysema, obstructive lung disease, and decreased diffusing
capacity.

(Id.)

and Combivent.

He recommended treatment with Advair, Spiriva,

four days later.

(Id.) The medications were ordered at Fort Dix
(Id., ¶ 15.)

Plaintiff continued to receive

evaluation, including chest x-rays, chest CT scans, physical
examinations, and treatment for COPD and respiratory infections,
including inhalers and antibiotics, both in primary care and
from a pulmonologist.

(Id., ¶¶ 16-27.)

Plaintiff had another

pulmonary function test at an outside hospital on September 9,
2010.

(Id., ¶ 29.)

The findings were consistent with mild

obstructive lung disease, and mildly reduced diffusing capacity.
(Id.)

10

Dr. Patel was assigned as Plaintiff’s primary care
physician at Fort Dix in approximately April 2011.

(Id., ¶ 2.)

Plaintiff was hospitalized on April 18, 2011, with complaints of
swelling and pain in his left hand.
treated for cellulitis.

(Id.)

(Id., ¶ 35.)

He was

In the hospital, Plaintiff also

saw a pulmonologist who diagnosed Plaintiff with COPD and
bullous disease.
2011.

(Id.)

Plaintiff was discharged on April 25,

(Id., ¶ 36.)

Plaintiff was hospitalized again in June 2011, when he
complained of shortness of breath, fever and severe pain.
¶ 39.)

Pulmonary embolism was ruled out.

(Id.)

(Id.,

A CT scan

showed an increase in the right lower lobe lung nodule.

(Id.)

Plaintiff remained in the hospital until June 18, 2011, to be
followed by infectious disease specialists.

(Id., ¶ 44.)

Plaintiff began his formal administrative remedy procedure
over the denial of his medical transfer request in August 2011.
(Attachs. to Compl., pp. 22-28.)

On August 8, 2011, Plaintiff

saw a cardiologist to evaluate his shortness of breath, which
occurred even when walking short distances, especially in hot
weather.

(Id., ¶ 46.)

The cardiologist felt Plaintiff’s

shortness of breath was probably due to COPD, but he could not
rule out angina.

(Id.)

In October 2011, Plaintiff reported that medications had
not helped his cough, and smoking by other inmates was making it
11

worse, but he was afraid to report on them.

(Id., ¶ 48.)

Dr.

Patel diagnosed pneumonia, and Plaintiff was taken to an outside
hospital.

(Id.)

When Plaintiff was discharged on October 17,

2011, his diagnoses were bilateral pneumonia, post bronchoscopy,
COPD, and lung nodule.

(Id., ¶ 49.)

When Plaintiff returned to

prison, he was scheduled for twice daily nebulizer therapy, and
given Levaquin until his other prescriptions were filled.
¶ 50.)

(Id.,

Upon Plaintiff’s request on October 19, 2011, Dr. Patel

renewed Plaintiff’s first floor and lower bunk passes for six
months.

(Id.)

On November 18, 2011, Dr. Steeger noted Plaintiff’s
COPD/emphysema was much improved since his hospitalization.
(Id., ¶ 53.)

He recommended treatment with Spiriva, Advair,

Combivent, and Albuterol nebulizer therapy every twelve hours.
(Id.)
Plaintiff was sent to a hospital on December 6, 2011,
because his chest x-ray was suggestive of pneumonia.
56-57.)

(Id., ¶¶

He was hospitalized for five days for treatment of

bilateral pneumonia.

(Id.)

Plaintiff told Dr. Patel that he

felt much better on December 13, 2011, but he still complained
of shortness of breath on exertion and from smoking in his unit.
(Id., ¶ 58.) Plaintiff again requested transfer to a medical
institution or a facility closer to his home in Miami. (Id.) Dr.
Patel noted Gonzalez was a Care Level 2 inmate, which did not
12

make him eligible for a transfer to a Federal Medical Center.
(Id.)
After reviewing Plaintiff’s stress test results, the
cardiologist believed Plaintiff’s shortness of breath was due to
COPD, not coronary disease, but he recommended further
evaluation and continued treatment for COPD.

(Id., ¶ 59.)

Plaintiff received continued treatment and evaluation for COPD
and respiratory infections in primary care and from a
pulmonologist, and he also received continued cardiac
evaluation.

(Id., ¶¶ 60-72.)
III. DISCUSSION

A.

Summary Judgment Standard

Summary Judgment is proper where the moving party “shows
that 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 burden on the moving party may be satisfied by

showing there is an absence of evidence to support the nonmoving
party’s case.
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 325

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
13

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
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.

Eighth Amendment Standard

The Eighth Amendment’s prohibition against cruel and
unusual punishment requires that inmates are provided adequate
medical care.

Estelle v. Gamble, 429 U.S. 97, 103-04 (1976);

Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999).

To state a

claim of inadequate medical care in violation of the Eighth
Amendment, an inmate must set forth:

(1) a serious medical

need; and (2) a prison official’s deliberate indifference to
that serious medical need.

Estelle, 429 U.S. at 106.

A serious

medical need includes a need for which “denial of treatment
14

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, 273 (3d Cir. 2003)(internal quotations and
citations omitted).
The second, subjective element of the Estelle test requires
an inmate to show that a prison official acted with deliberate
indifference to a serious medical need.

Natale v. Camden County

Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003).
Conduct that constitutes malpractice or negligence does not rise
to the level of deliberate indifference; deliberate indifference
is a reckless disregard of a known risk of harm.
Brennan, 511 U.S. 825, 836 (1994).

Farmer v.

Courts will not second guess

“the adequacy a particular course of treatment” in the exercise
of sound professional judgment.

Inmates v. Allegheny County

Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)(quoting Bowring
v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
In the Third Circuit, when a plaintiff seeks to hold a
defendant liable under the Eighth Amendment in his or her role
as a supervisor, a four-part test applies. Barkes, 766 F.3d at
317.

Thus, a plaintiff must:
identify a supervisory policy or practice
that the supervisor failed to employ, and
then prove that: (1) the policy or practice
in effect at the time of the alleged injury
created an unreasonable risk of a
constitutional violation; (2) the defendantofficial was aware that the policy created
15

an unreasonable risk; (3) the defendant was
indifferent to that risk; and (4) the
constitutional injury was caused by the
failure to implement the supervisory
practice or procedure.
Id.(citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1999;
Brown v. Muhlenberg Twp, 269 F.3d 205 (3d Cir. 2001)).
A non-physician defendant is not deliberately indifferent
to a prisoner’s serious medical needs in violation of the Eighth
Amendment if she fails to respond to an inmate’s administrative
complaint regarding medical treatment while the inmate is
already receiving treatment by the prison doctor.
O’Caroll, 991 F.2d 64, 69 (3d Cir. 1993).

Durmer v.

Non-medical personnel

are entitled “to presume the competence of medical staff in
treating a prisoner. . .”

Davis v. Superintendent of Somerset

SCI, No. 14-3746, 2015 WL 75260, at *2 (3d Cir. Jan 7,
2015)(citing Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004)).

Eighth Amendment claims against non-medical personnel

based on an unmet need for medical care are limited to
circumstances where the non-medical personnel had “a reason to
believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner.”
Spruill, 372 F.3d at 236.

If non-medical staff were justified

in believing the prisoner was “in capable hands” with medical
experts, dismissal of the Eighth Amendment claim is proper.
Id.; Mines v. Levi, Civil Action No. 07-1739, 2009 WL 839011, at
16

*6 (E.D.Pa. March 26, 2009)(failing to respond to a grievance
sent by a prisoner is not sufficient to demonstrate personal
involvement of a prison supervisor)(citation omitted)).
An inmate can state a claim for violation of the Eighth
Amendment if prison conditions deprive the inmate of “the
minimal civilized measure of life's necessities.”
Chapman, 452 U.S. 337, 347 (1981).

Rhodes v.

Prison conditions violate

the Eighth Amendment when an inmate is “denied basic human
needs, such as food, clothing, shelter, sanitation, medical care
[or] personal safety.” Griffin v. Vaughn, 112 F.3d 703, 709 (3d
Cir. 1997).

Some conditions, in combination, may constitute a

violation if they deprive an inmate of “a single, identifiable”
human need.

Wilson v. Seiter, 501 U.S. 294, 304-05 (1991);

Hubbard v. Taylor, 399 F.3d 150, 164-65 (3d Cir. 2005).
To state a claim for an Eighth Amendment violation based on
exposure to environmental tobacco smoke (“ETS”), an inmate must
show that he is being exposed to unreasonably high levels of ETS
that pose an unreasonable risk of serious damage to his future
health.

Helling v. McKinney, 509 U.S. 25, 35 (1993).

objective factor:
requires more than a scientific and
statistical inquiry into the seriousness of
the potential harm and the likelihood that
such injury to health will actually be
caused by exposure to ETS. It also requires
a court to assess whether society considers
the risk that the prisoner complains of to
17

This

be so grave that it violates contemporary
standards of decency to expose anyone
unwillingly to such a risk.

Id. at 36 (emphasis in original).

The Third Circuit expanded

the objective factor to include proof of a present injury.
Atkinson, 316 F.3d at 266.
Second, a plaintiff must prove the subjective factor,
deliberate indifference to a serious risk of harm.
U.S. at 36.

Helling, 509

The prison authorities’ attitudes and conduct,

particularly with respect to smoking policy, bears heavily on
the inquiry into deliberate indifference.
C.

Id.

Medical Transfer Request

It is undisputed that Defendant Zickefoose, the warden, and
Defendant Ruff, a medical technician, are not physicians, and
Plaintiff was receiving medical evaluation and treatment at Fort
Dix beginning in January 2009, the month he was transferred
there.

(Compl., pp. 5-8, Exs. to Pl’s Mem. of Factual

Contentions, Doc. No. 28.)

It is also undisputed that through

Plaintiff’s administrative remedy requests Defendants Zickefoose
and Ruff knew that Plaintiff disagreed with Dr. Patel’s denial
of Plaintiff’s request for a medical transfer to another
facility.

(Attachs. to Compl., pp. 22-38.)

Plaintiff’s request

for a transfer was based on his belief that environmental
factors at Fort Dix were the cause of his hospitalizations for

18

COPD-related illnesses, and he wanted a facility with better
access to emergency care.

(Compl., ¶ 9.)

Defendants Zickefoose and Ruff were entitled to rely on Dr.
Patel because there is nothing in the record indicating they had
a reason to believe Dr. Patel was not exercising sound,
professional judgment in determining Plaintiff was a Care Level
2 inmate, defined as a stable outpatient with chronic illness
who was able to perform activities of daily living, thus not
qualified for a medical transfer. (Patel Decl., ¶¶ 9, 58, and
see generally medical records, Doc. Nos. 28-6 through 28-14.)
In fact, Dr. Patel was not alone in his opinion.

Plaintiff was

first determined to be a Care Level 2 inmate by Physician
Assistant Edward Gostkowski in August 2009.

(Medical record,

Doc. No. 28-6, p. 14.)
Although Plaintiff required several hospitalizations for
COPD-related illnesses, Fort Dix medical staff approved his
hospitalizations, and continued to medically monitor and treat
him when he was returned to prison in stable condition.

As

Plaintiff recognized, COPD is progressive and not curable, it
can only be managed.

(Compl., pp. 19-20.)

The medical records

overall support Dr. Patel’s judgment that Plaintiff’s chronic
illness could be adequately managed at Fort Dix, with outside
treatment when needed.

Therefore, Plaintiff’s claim that the

19

denial of his medical transfer request violated the Eighth
Amendment will be dismissed with prejudice as to all Defendants.
D.

Adequacy of Medical Care

Plaintiff’s specific allegations of inadequate medical care
are based on several incidents.

Plaintiff alleged inadequate

medical care because he was denied a first floor pass and a
lower bunk pass when he first entered FCI Fort Dix.

He then

alleged Dr. Patel violated his rights by revoking his first
floor pass and lower bunk pass in September 2011, because
Plaintiff refused to “snitch” on inmates who were smoking.
Plaintiff further alleged he was denied adequate medical care
because it was seven months before he was evaluated by a
pulmonologist after transferring to Fort Dix.

Finally,

Plaintiff alleged inadequate medical care because his
prescriptions were not timely filled and medications prescribed
by a specialist were substituted with other medications.
Defendants do not dispute that Plaintiff has a serious medical
need based on COPD and related illnesses.
1.

First Floor and Lower Bunk Passes

In Plaintiff’s response to the motion for summary judgment,
he stated that he began an administrative remedy request in
February 2009 because he was denied first floor housing and a

20

bottom bunk pass.

(Doc. No. 52, pp. 1-2.) 6

The warden denied

this request because there was no clinical evidence of
respiratory distress in Plaintiff’s February 9, 2009 medical
record. (Id., pp. 2-3.)

His first floor housing and lower bunk

passes were not approved until August 2009. (Id., p. 3.)
While Plaintiff may have suffered increased shortness of
breath due to COPD when climbing stairs or climbing into an
upper bunk, this does not rise to the level of unnecessary or
wanton infliction of pain that would give rise to supervisory
liability by a non-physician, especially because Plaintiff was
receiving medical treatment for these symptoms.
medical records, Doc. No. 28-6.)

(See 2009

Where a prisoner has received

evaluation and treatment for his serious medical need, and a
physician has not recommended a particular treatment, in this
case first floor housing and a lower bunk, a prison official
does not violate the Eighth Amendment for deliberate
indifference by denying the prisoner’s request.

See Monmouth

County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d
Cir. 1987)(deliberate indifference is demonstrated “when . . .
prison authorities prevent an inmate from receiving recommended
treatment for serious medical needs or deny access to a

6

Plaintiff submitted his 2009 administrative remedy requests and
responses with his Memorandum of Factual Contentions. (Doc. No.
28-2, pp. 15-26.)
21

physician capable of evaluating the need for such
treatment.”)(quoting Inmates of Allegheny County Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979).
Also in Plaintiff’s response to the motion for summary
judgment, Plaintiff repeated his allegation that Dr. Patel
revoked his first floor pass in September 2011, and moved him to
a second floor room, in retaliation for refusing to snitch on
other inmates who were smoking. (Doc. No. 52, pp. 19-20.)
Plaintiff alleged the revocation of his first floor pass was
“confirmed to me by my Correctional Officer Mr. Batiste.”
No. 52, p. 19.)

(Doc.

Plaintiff claimed that when he confronted Dr.

Patel about the revocation, Dr. Patel told Plaintiff that if he
wanted to keep his first floor room, he would have to inform on
the inmates who were smoking.

(Id.)

When Plaintiff refused, he

was moved to room 217 on the second floor, directly across the
hall from a restroom where most of the smoking by inmates
occurred.

(Id., p. 20.)

Plaintiff admits Dr. Patel gave him a first floor pass on
October 19, 2011, but he had to wait a month for a bed to open
up.

(Id., p. 21.)

Plaintiff blames his December 2011

hospitalization on exposure to smoke on the second floor, caused
by the delay in receiving a first floor pass.

(Id., p. 23

Plaintiff has not supported these allegations by affidavit
or declaration by a person with personal knowledge or any other
22

material that can be relied on to show a genuine dispute of
material fact in opposition to summary judgment.
Civ. P. 56(c).

See Fed. R.

It is unclear from the allegations and the

medical records exactly when Plaintiff’s first floor pass was
revoked, or how long Plaintiff was housed on the second floor
before he was hospitalized for pneumonia from October 6, 2011
through October 17, 2011.

(2011 medical records, Doc. No. 28-

10, pp. 17-33.)
Defendants offered evidence that Dr. Patel renewed
Plaintiff’s first floor and lower bunk passes at Plaintiff’s
request on October 19, 2011, two days after his return from
hospitalization.

(Patel Decl., ¶ 50; see also medical records,

Doc. No. 28-10, pp. 34-38.)

Defendants, however, did not

respond to Plaintiff’s allegation that Dr. Patel revoked his
first floor pass in September 2011 in retaliation for
Plaintiff’s refusal to snitch on other inmates who were smoking.
The Court cannot state as a matter of law that Plaintiff’s
Eighth Amendment claim against Dr. Patel would fail if Plaintiff
could establish Dr. Patel revoked his first floor pass, and the
pass was medically prescribed to alleviate Plaintiff’s COPD,
based solely on retaliation for refusing to snitch on other
inmates for smoking.
Where a party fails to support an assertion of fact or
fails to properly address another party’s assertion of fact, a
23

court may give a party the opportunity to properly support or
address the fact.

Fed. R. Civ. P. 56(e)(1).

Here, both parties

failed to address Plaintiff’s claim by proper citation to
materials in the record sufficient to establish the presence or
absence of a genuine dispute of material fact.

The Court will

deny summary judgment on this claim without prejudice, and give
the parties an opportunity to submit materials in support of or
opposition to the claim.
2.

Evaluation by a Pulmonologist

Plaintiff alleges violation of his Eighth Amendment right
to medical care because he was not evaluated by a pulmonologist
during the first seven months of his incarceration at Fort Dix
in 2009.

Presumably this claim is directed against the warden,

Defendant Zickefoose, because Dr. Patel did not begin treating
Plaintiff until April 2011.

While it is true that Plaintiff

reported a history of emphysema and showed signs of COPD before
he saw a pulmonologist, the records do not support a finding
that Defendant Zickefoose was deliberately indifferent to
Plaintiff’s need to see a pulmonologist sooner.

Plaintiff had a

serious medical need requiring evaluation and treatment, but he
received regular evaluation and treatment from primary care
providers from January 2009 until he began seeing a
pulmonologist at Fort Dix in August 2009. (2009 medical records,
Doc. No. 28-6.)
24

A non-physician prison official is not deliberately
indifferent when she fails to respond to an administrative
complaint regarding an inmate’s disagreement with the treatment
and evaluation he was provided by medical staff.
F.2d at 69.

Durmer, 991

Furthermore, there is no evidence that Plaintiff’s

medical treatment from January 2009 through August 2009 was so
inadequate that it caused Plaintiff permanent injury or wantonly
inflicted pain on him.

For this reason, this claim will be

denied.
3.

Substituted Prescription Medications and Delays
Filling Prescriptions

In his Complaint, Plaintiff alleged he had not received
prescriptions for Spiriva or Advair three weeks after the
Spiriva should have been renewed (May 15, 2012) and after Advair
was first prescribed (May 17, 2012).

(Compl., p. 16.)

Plaintiff’s medical record from May 24, 2012, indicates that Dr.
Steeger recommended Spiriva and Advair on May 17, 2012, and Fort
Dix medical staff believed Plaintiff was already on these
medications.

(Medical Record, Doc. No. 28-13, p. 27.)

The records also indicate that Plaintiff saw Dr. Patel in
Health Services on May 23, 2012, and Dr. Patel prescribed or
renewed an albuterol inhaler and Tiotroprium bromide [Spiriva],
and Fluticasone/Salmeterol [Advair] for COPD.
Doc. No. 28-13, pp. 16-23.)

(Medical Record,

Dr. Patel was not deliberately

25

indifferent to Plaintiff’s serious medical needs because he
ordered Plaintiff’s prescriptions one week after the
pulmonologist recommended them.

See Beckett v. Pennsylvania

Dept. of Corrections et al, ­­­ F. App’x ­­­, No. 14-3656, 2015
WL 75258, at *3 (3d Cir. Jan. 7, 2015)(granting summary judgment
where inmate offered no evidence from which a reasonable juror
could conclude that defendants intentionally refused to provide
needed treatment or delayed necessary treatment for a nonmedical reason).
In response to Defendants’ motion for summary judgment,
Plaintiff also asserted that in September 2012, Dr. Patel
refused to give him the medications a pulmonologist ordered in
July 2012, instead substituting other medications. (Doc. No. 52,
p. 26.)

Plaintiff further claimed that upon his discharge from

an outside hospital in July 2013, his active prescriptions did
not include Advair or Combivent, which a pulmonologist had
recommended in May 2013.

(Doc. No. 52, p. 29.) 7

There is no

viable claim for an Eighth Amendment violation where one doctor
disagrees with another doctor’s recommended prescription
medication, if a particular medication was not ordered
exclusively.

See White v. Napoleon, 897 F.2d 103, 110 (3d Cir.

7

The Court notes Plaintiff does not allege personal involvement
of any Defendant in failing to prescribe or fill prescriptions
for Advair or Combivent after his July 2013 hospitalization.
26

1990) (distinguishing Martinez v. Mancusi, 443 F.2d 921,924-25
(2nd Cir. 1970) where defiance of explicit medical instructions
from a surgeon resulted in serious and obvious injuries)).
There is no evidence that particular medications were
exclusively ordered and could not be substituted here.

For

these reasons, Defendants are entitled to summary judgment on
Plaintiff’s claims that substitution of his medications and
delayed filling of his prescriptions violated his Eighth
Amendment rights.
C.

Environmental Conditions

Plaintiff alleged Defendants violated his Eighth Amendment
rights by exposing him to second-hand smoke from cigarette
smoking by Defendant Ruff and other inmates.
6.)

(Pl’s Resp., p.

He further alleged Defendants failed to act on his

complaints that other environmental factors, including jet fuel
admissions, asbestos tile, lead paint, humidity, and lack of air
conditioning exacerbated his COPD, and led to his
hospitalizations.

(Compl., p. 9.)

Here, Plaintiff failed to meet the objective prong of the
Helling test because he failed to submit evidence that he was
exposed to unreasonably high levels of ETS.

Plaintiff alleged,

without citation to materials in the record, that Defendant Ruff
smoked in his presence, without quantifying how many cigarettes

27

he smoked, the number of occasions when this occurred, and the
duration of time he was exposed to Ruff smoking,
Plaintiff similarly failed to quantify the ETS he was
exposed to by other inmates who were violating the no-smoking
regulation.

He established by submitting his administrative

remedy requests that he complained to staff that inmates smoked
in the bathroom, and the smoke entered his room.

In his brief

in opposition to summary judgment, Plaintiff alleged there was
more than one or two smokers, and the smoking was constant at
times when a particular officer was not stationed on a
particular floor.

Even with the additional allegations in

Plaintiff’s brief, this falls short of the high threshold
required to state the objective element of an Eighth Amendment
claim.

See Griffin v. DeRosa, 153 F. App’x 851, 853 (3d Cir.

2005)(twenty-month exposure to ETS from eight to ten smokers
every time inmate used restroom was insufficient to allege
Eighth Amendment violation).

Plaintiff also asked the Court to

take judicial notice of cases describing the amount of
contraband found in Fort Dix, including tobacco. 8

8

Even if the

(Doc. No. 52, p. 5, citing Velasquez v. Zickefoose, Civ. No.
11-2459(RMB), 2011 WL 6339187 (D.N.J. Dec. 19, 2011)(noting an
investigative report at Fort Dix in December 2009 put inmates on
notice that unit-wide restrictions would be enforced when the
large amounts of contraband, including cell phones and tobacco,
were recovered); Walden v. Longley, Civ. No. 11-111 Erie, 2012
WL 4971885(W.D.Pa. Sept. 13, 2012)(inmate disciplined in 2010
for possession of numerous packets of tobacco); and Alamo v.
28

Court acknowledges that the tobacco described in these cases was
found in Fort Dix, the evidence does not objectively establish
the level of Plaintiff’s exposure to tobacco smoke during the
relevant time period.
Assuming for a moment that Plaintiff could establish the
objective element of the claim, the record does not support
deliberate indifference to second-hand smoke by Defendants.
Defendants offered evidence that FCI Fort Dix prohibits smoking
in its facilities, the BOP enforces the regulation against
inmates, with potentially harsh sanctions imposed on violators,
and the BOP at Fort Dix has sanctioned sixty inmates for
tobacco-related violations since January 2010.
Anthony Boyce, Doc. No. 35-3.)

(Declaration of

Prison officials’ attitudes

about smoking is a significant factor in whether they were
deliberately indifferent to the effect of second-hand smoke in
the environment.

Helling, 509 U.S. at 36.

Plaintiff complains that Defendants wanted him to report
who was smoking, but he did not because he feared retaliation.
It was reasonable for Defendants to ask Plaintiff who was
smoking so they could stop it.

This also suggests prison

officials were not indifferent, they wanted to enforce the ban

Zickefoose, Civ. No. 11-5416(JBS), 2013 WL 1007676 (D.N.J. Mar.
12, 2013)(inmate disciplined for introducing contraband,
including tobacco, into Fort Dix).
29

on smoking by punishing specific violators.

Thus, the evidence

does not support the objective or subjective prongs of the
Eighth Amendment test for exposure to ETS, and Defendants will
be granted summary judgment on this claim.
The same test applies to Plaintiff’s Eighth Amendment
claims based on exposure to asbestos tile, jet fuel emissions
from a nearby Air Force Base, humidity, lack of air
conditioning, and lead paint exposure or the combination of
environmental factors.

Again, an inmate must prove objective

and subjective elements to establish an Eighth Amendment
violation based on prison conditions.

Wilson v. Seiter, 501

U.S. 294, 299 (1991).
Plaintiff has provided nothing beyond the fact that he
complained of exposure to asbestos tile, lead paint, jet fuel
emissions, and uncomfortable temperatures.

Without any concrete

evidence of the level of exposure to these hazards, let alone
any medical evidence that the environmental conditions
constituted a serious risk to his health, Defendants are
entitled to summary judgment on this claim.

See Belland v.

Matachiski, Civ. Action No. 1:05-CV-1595, 2009 WL 1585811, at *7
(M.D.Pa. June 3, 2009)(unsupported allegations are inadequate
for a reasonable jury to conclude “without pure speculation”
that an Eighth Amendment violation occurred).

30

IV.

CONCLUSION

Plaintiff has failed to set forth evidence sufficient to
survive summary judgment on his claims that Defendants violated
his Eighth Amendment rights by denying his medical transfer
request, that Defendants provided inadequate medical care for
his illnesses, or that they were deliberately indifferent to
prison conditions, particularly second-hand smoke, that posed a
serious risk to his health.
The parties, however, failed to properly address, with
citation to materials in the record, Plaintiff’s claim that Dr.
Patel violated his Eighth Amendment rights by revoking his first
floor pass in September 2011, in retaliation for Plaintiff’s
refusal to snitch on other inmates who were smoking.

The Court

will deny summary judgment on this particular claim without
prejudice, and the parties will be given an opportunity to
further address the claim, pursuant to Federal Rule of Civil
Procedure 56(e)(1).

At Camden, New Jersey

Dated:

s/ Noel L. Hillman
Noel L. Hillman
United States District Judge

February 26, 2015

31