GONZALEZ v. LOPEZ DE LASALLE et al

Filing 93

OPINION. Signed by Judge Noel L. Hillman on 4/7/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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:
:
Plaintiff,
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v.
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DONNA ZICKEFOOSE, et al.,
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Defendants.
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___________________________________:
FRANCISCO GONZALEZ,

Civ. No. 12-3711 (NLH)
OPINION

APPEARANCES:
Francisco Gonzalez, # 49351-004
D. Ray James Correctional Facility
G-1 015L
HWY 252 East
Folkston, GA 31537
Plaintiff pro se
David Bober, Esq.
Assistant United States Attorney
402 E. State Street, Room 430
Trenton, NJ 08608
Counsel for Defendants
HILLMAN, District Judge
Pending before the Court is the motion for summary judgment
by Defendant, Pradip Patel, M.D., on the claims of Plaintiff,
Francisco Gonzalez, that Defendant violated his Eighth Amendment
rights when Defendant revoked Plaintiff’s first-floor housing
pass because Plaintiff would not reveal who was smoking in his
unit.

For the reasons that follow, Defendant’s motion for

summary judgment will be granted.

BACKGROUND
Plaintiff, an inmate previously confined at the Federal
Correction Institution in Fort Dix, New Jersey, filed this
action asserting claims pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971). 1

The Court screened the

complaint pursuant to 28 U.S.C. § 1915(e), and by way of several
motions, the remaining claim in Plaintiff’s complaint is his
Eighth Amendment violation claim against Patel.

On July 22,

2016, the Court denied without prejudice Patel’s previous motion
for summary judgment because there were unaddressed
discrepancies in the medical records that precluded judgment in
Patel’s favor.

Patel has again renewed his motion for summary

judgment, arguing that the record clearly shows that he did not
violate Plaintiff’s Eighth Amendment rights.

Plaintiff has

opposed Patel’s motion.
The Court incorporates the more detailed procedural history
and background facts from the Court’s prior Opinions (see Docket
No. 56, 67, 70, 77), and will not restate them again here, other
than to provide the facts relevant to the instant motion.
Plaintiff, who suffers from chronic obstructive pulmonary
disorder (COPD), was transferred to FCI Ft. Dix in January 2009.
In August 2009, after Plaintiff complained of difficulty walking

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Plaintiff is currently an inmate at the D. Ray James
Correctional Facility in Folkston, Georgia.
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upstairs, a BOP physicians’ assistant, Eric Gostkowski, issued
him a first-floor pass and a lower-bunk pass.
good for one year.

The passes were

Plaintiff was seen by Dr. Nicoletta Turner-

Foster, a BOP employee, who recommended that both passes be
renewed for another year, and on August 9, 2010, the passes were
renewed.
On January 11, 2011, during a chronic care clinic
appointment, Dr. Turner-Foster once again recommended that
Plaintiff’s first-floor pass be renewed, and the pass was
renewed on February 11, 2011, with an expiration date of August
11, 2011.

On July 15, 2011, Plaintiff was seen by mid-level

practitioner Vicente Elias, who extended the first-floor pass
until August 11, 2012.
On September 20, 2011, Plaintiff was transferred from a
first-floor room to a second-floor room.

Plaintiff was again

seen by Elias at Health Services on October 3, 2011, and on that
date Elias issued him a “medical convalescence,” which meant
that Plaintiff was permitted, for medical reasons, to stay in
his cell and be absent from his BOP work assignment.
On October 6, 2011, Plaintiff was seen by Patel for
complaints of difficulty breathing and shortness of breath.

The

record for that date reflects that Plaintiff complained about
other inmates smoking in his unit.

The note states: “He states

a lot of inmates are smoking in his unit but is afraid of being
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attaked [sic] if he tells anyone.”

Patel diagnosed Plaintiff

with pneumonia and Plaintiff was transferred to a hospital
outside of Ft. Dix.

Plaintiff spent more than a week in the

hospital and was discharged on October 17, 2011.
On October 19, 2011, Plaintiff once again saw Patel at Ft.
Dix Health Services, and requested to be transferred back to the
first floor.

Although a first-floor pass was already in effect,

Patel nonetheless completed an MDS form that “renewed” the pass
through April 30, 2012 (though previously it had been set to
expire in August 2012).

It appears that the pass did expire on

April 30, 2012, but Patel renewed it again when he saw Plaintiff
on May 23, 2012, and Plaintiff remained in a first floor room
for the remainder of 2012.
DISCUSSION
A.

Summary Judgment Standard

Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986) (citing
FED. R. CIV. P. 56).

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An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986).

A fact is

“material” if, under the governing substantive law, a dispute
about the fact might affect the outcome of the suit. Id.

“In

considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the nonmoving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact.” (citation omitted); see
also Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n. 2
(3d Cir. 2001) (“Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of
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material fact, ‘the burden on the moving party may be discharged
by “showing” — that is, pointing out to the district court-that
there is an absence of evidence to support the nonmoving party's
case’ when the nonmoving party bears the ultimate burden of
proof.”) (citing Celotex, 477 U.S. at 325).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Celotex, 477
U.S. at 324.

A “party opposing summary judgment may not rest

upon the mere allegations or denials of the ... pleading[s.]”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001)
(internal quotations omitted).

For “the non-moving party[ ] to

prevail, [that party] must ‘make a showing sufficient to
establish the existence of [every] element essential to that
party's case, and on which that party will bear the burden of
proof at trial.’” Cooper v. Sniezek, 418 F. App'x 56, 58 (3d
Cir. 2011) (citing Celotex, 477 U.S. at 322).

Thus, to

withstand a properly supported motion for summary judgment, the
nonmoving party must identify specific facts and affirmative
evidence that contradict those offered by the moving party.
Anderson, 477 U.S. at 256–57.
B.

Bivens

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court
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held that a violation of the Fourth Amendment by a federal agent
acting under color of his authority gives rise to a cause of
action against that agent, individually, for damages.

The

Supreme Court has also implied damages remedies directly under
the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.
Ct. 1468, 64 L.Ed.2d 15 (1980), and the Fifth Amendment, see
Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L.Ed.2d 846
(1979).

But “the absence of statutory relief for a

constitutional violation does not necessarily mean that courts
should create a damages remedy against the officer responsible
for the violation.” Schreiber v. Mastrogiovanni, 214 F.3d 148,
152 (3d Cir. 2000) (citing Schweiker v. Chilicky, 487 U.S. 412,
108 S. Ct. 2460, 101 L.Ed.2d 370 (1988)).
Bivens actions are simply the federal counterpart to § 1983
actions brought against state officials who violate federal
constitutional or statutory rights. See Egervary v. Young, 366
F.3d 238, 246 (3d Cir. 2004), cert. denied, 543 U.S. 1049, 125
S. Ct. 868, 160 L.Ed.2d 769 (2005).

Both are designed to

provide redress for constitutional violations.

Thus, while the

two bodies of law are not “precisely parallel”, there is a
“general trend” to incorporate § 1983 law into Bivens suits.
See Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987).
C.

Eighth Amendment Deliberate Indifference Claim

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The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103–04
(1976).

In order to set forth a cognizable claim for a

violation of his right to adequate medical care, an inmate must
allege: (1) a serious medical need; and (2) behavior on the part
of prison officials that constitutes deliberate indifference to
that need. Id. at 106.
To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9,
112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992)
Serious medical needs include those that have been
diagnosed by a physician as requiring treatment or that are so
obvious that a lay person would recognize the necessity for a
doctor's attention, and those conditions which, if untreated,
would result in lifelong handicap or permanent loss. See Johnson
v. Stempler, 373 F. App'x 151, 153 n.1 (3d Cir. 2010) (citing
Monmouth County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U .S. 1006
(1988)).
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The second element of the Estelle test requires an inmate
to show that prison officials acted with deliberate indifference
to his serious medical need.

“Deliberate indifference” is more

than mere malpractice or negligence; it is a state of mind
equivalent to reckless disregard of a known risk of harm. Farmer
v. Brennan, 511 U.S. 825, 837–38, 114 S. Ct. 1970, 128 L. Ed. 2d
811 (1994).

Furthermore, a prisoner's subjective

dissatisfaction with his medical care does not in itself
indicate deliberate indifference. Andrews v. Camden County, 95
F. Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis, 551 F.
Supp. 137, 145 (D. Md. 1982), aff'd, 729 F.2d 1453 (4th Cir.
1984).

Similarly, “mere disagreements over medical judgment do

not state Eighth Amendment claims.” White v. Napoleon, 897 F.2d
103, 110 (3d Cir. 1990).
Rather, to establish deliberate indifference, a prisoner
must show that the defendant was subjectively aware of the unmet
serious medical need and failed to reasonably respond to that
need. See Farmer, 511 U.S. at 837; Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003).

Deliberate

indifference may be found where the prison official: (1) knows
of a prisoner's need for medical treatment but intentionally
refuses to provide it; (2) intentionally delays necessary
medical treatment based on a non-medical reason; or (3)
deliberately prevents a prisoner from receiving needed medical
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treatment. See Pierce v. Pitkins, 520 F. App'x 64, 66 (3d Cir.
2013) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999)).
“[A] party may establish liability for deprivation of a
constitutional right only through a showing of personal
involvement by each defendant.” Farrar v. McNesby, No. 15-2019,
2016 WL 759571, at *2 (3d Cir. Feb. 25, 2016) (citing Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).

“Personal

involvement may be shown through personal direction, actual
participation in the alleged misconduct, or knowledge of and
acquiescence in the alleged misconduct.” Id.; see also Tenon v.
Dreibelbis, 606 F. App'x 681, 688 (3d Cir. 2015).
D.

Analysis

Plaintiff’s claim is that Patel violated his Eighth
Amendment rights by revoking Plaintiff’s first-floor pass on
September 20, 2011 because Plaintiff refused to “snitch” on
inmates who were smoking.

In the Court’s July 22, 2016 Opinion,

the Court observed that discrepancies in the medical records,
which were not sufficiently addressed by Patel, precluded the
entry of summary judgment in Patel’s favor.

Patel’s renewed

motion for summary judgment has explained those discrepancies,
and the record is clear that no material disputed facts remain
to send to a jury on Plaintiff’s Eighth Amendment violation
claim.
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The evidence shows:
(1) Patel did not see Plaintiff on September 20, 2011.

BOP

records indicate that 54 inmates were seen at Health Services
“sick call” on September 20, 2011 for a variety of ailments, but
Plaintiff was not one of them.
(2) The October 3, 2011 “medical duty status” or “MDS” form
does not contain any indication regarding a first-floor pass, as
the sole reason the MDS form was created on this date was to
provide Plaintiff with a medical convalescence, and it did not
reflect a change in Plaintiff’s first-floor pass.
(3) The record for Plaintiff’s clinical encounter with MLP
Elias on October 3, 2011 does not indicate that Plaintiff
complained about his room location.
(4) On October 6, 2011, Plaintiff was seen by Patel for
complaints of difficulty breathing and shortness of breath.

The

record for that date reflects that Plaintiff, for the first
time, complained about other inmates smoking in his unit.
(5) When Plaintiff saw Patel again on October 19, 2011, and
Plaintiff asked to be transferred back to the first floor, a
first-floor pass was already in effect and valid until August
2012.

Despite the active first-floor pass, Patel filed an MDS

that “renewed” the pass through April 30, 2012, and again
renewed it again in May 2013.

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The record evidence also explains the logistics of firstfloor passes and why Plaintiff was temporarily reassigned to a
second floor room:
(1) On September 11, 2011, BOP correctional staff member,
Leander Batiste, reassigned Plaintiff due to bed-space
constraints.
(2) On the East Compound of FCI Ft. Dix where Plaintiff was
housed, there are beds for approximately 1,850 inmates, but only
112 are on the first floor.

In Plaintiff’s unit, Unit 5702,

there were 368 total beds, but only 16, or 4%, were on the first
floor.
(3)

BOP Health Services staff is responsible for

determining whether an inmate requires a first-floor pass for
medical reasons, but medical personnel do not work in the
housing units, and, when they issue a first-floor pass, they do
not generally have any way of knowing how many other inmates in
that unit already have first-floor passes, or whether there are
any first-floor beds available in that inmate’s unit.

Thus, on

occasion, due to a large number of inmates requesting firstfloor passes and the relatively small number of beds available,
there are times when the number of inmates with first-floor
passes exceeds the number of available beds.
Based on the foregoing, the unrefuted evidence reveals that
Patel could not have revoked Plaintiff’s first floor pass on
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September 20, 2011 because Plaintiff did not see Patel that day.
When Plaintiff saw Patel on October 6, 2011, that was the first
notation about Plaintiff’s complaint about smoking in his unit,
and Plaintiff was immediately sent to the hospital.

When

Plaintiff returned from the hospital, Patel granted Plaintiff’s
request for a first-floor pass, which was extended through the
end of 2012.

Thus, Patel could not have revoked Plaintiff’s

first floor pass on September 20, 2011 as Plaintiff claims, and
the medical records clearly show that Patel granted, rather than
revoked, Plaintiff’s multiple requests for a first-floor pass.
Moreover, the space constraints of the unit, the very small
number of first-floor rooms available, and the independent
actions of BOP officials in making room assignments are facts
that are unrefuted.
There is no doubt that Plaintiff suffers from a serious
health condition and that tobacco smoke in the correctional
facility would exacerbate that condition.

There is also no

doubt that Patel was aware of Plaintiff’s serious health
condition and the detrimental effect tobacco smoke would have on
Plaintiff.

The undisputed evidence does not show, however, that

Patel revoked Plaintiff’s first-floor pass in order to
deliberately harm Plaintiff by making him use stairs to go to
the second floor or to expose him to tobacco smoke because
Plaintiff would not reveal which inmates were smoking.
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When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.

Scott v. Harris, 550 U.S. 372, 381 (2007).

That is exactly the case here.

The unrefuted evidence

demonstrates that Patel was not deliberately indifferent to
Plaintiff’s serious medical need in violation of his Eighth
Amendment rights.
CONCLUSION
For the foregoing reasons, the Court will grant Defendant’s
motion for summary judgment.

An appropriate Order follows.

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Date: April 7, 2017
At Camden, New Jersey

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