MANNS v. SIMS et al
Filing
4
OPINION. Signed by Judge Jerome B. Simandle on 5/16/18. (jbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KENNETH A. MANNS,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 17-3815 (JBS-AMD)
v.
T. SIMS; T. HOEY; RAVI SOOD;
D. ALATARY; DR. AHMAR SHAKIR;
JEFF THOMAS; DR. NEWLAND; MR.
CHUDZINSKI; MS. DYNAN; MR. E.
WATSON; S. DONEPUDUDI; OFFICER
GRANT; VINCENT ELIAS; L.
DIMATTEO; PRADIP PATEL; S.
MARUSKA; TRANSPORT OFFICER 1;
ALLEN SKRENTA; SHERIFF SAAD;
MATHEW DENG; HARRY J. LAWAL,
OPINION
Defendants.
APPEARANCES:
Kenneth A. Manns, Plaintiff Pro Se
3900 Emmart Ave.
Baltimore, MD 21215
SIMANDLE, District Judge:
INTRODUCTION
Before the Court is Plaintiff Kenneth Manns’ (“Plaintiff”)
submission of a civil rights complaint pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). Docket Entry 1. At this time, the Court must review
the complaint to determine whether it should be dismissed as
frivolous or malicious, for failure to state a claim upon which
relief may be granted, or because it seeks monetary relief from
a defendant who is immune from such relief. For the reasons set
forth below, the Court concludes that the complaint will proceed
in part.
II. BACKGROUND
Plaintiff brings this civil rights action against several
officials at FCI Fort Dix, New Jersey, where he was previously
incarcerated. The following factual allegations are taken from
Plaintiff’s declaration in support of his complaint, Exhibit D,
and are accepted for purposes of this screening only. The Court
has made no findings as to the truth of Plaintiff’s allegations.
Plaintiff states that he tore his right Achilles tendon on
September 14, 2014. Exhibit D ¶ 1. A physician’s assistant gave
him Motrin, a bandage, and crutches and told Plaintiff that his
leg was fine aside from a “bad ankle sprain.” Id. Plaintiff
requested bottom-bunk and first-floor passes, but the assistant
denied the request stating that Plaintiff did not meet the
requirements for those passes. Id. The next day, Plaintiff went
to sick call to see a doctor about his injury. Id. ¶ 2. He
informed the physician’s assistant that he tore his Achilles
tendon and did not have an ankle injury. Id. The physician’s
assistant said Plaintiff was going to be put in for x-rays
because his chart said he had an ankle injury. Id. Plaintiff
told both the physician’s assistant and the x-ray technician
2
that he did not have an ankle injury, but both people told
Plaintiff that his chart indicated there was an ankle injury so
they were going to perform x-rays on the ankle. Id. Plaintiff
was told he would see an orthopedic doctor the next day. Id.
On September 16, 2014, Plaintiff spoke with another
physician’s assistant about his injury. Id. She told him that
his x-rays had not yet been read by the doctor and that
Plaintiff should come back later that afternoon. Id. Plaintiff
returned at 3:00pm as requested but was told the doctor had left
for the day. Id. Plaintiff returned the following day and asked
when he would be able to see the doctor. RN Jeff Thomas said if
“the Dr. didn’t call you yet it’s because your injury must not
be that serious.” Id. Plaintiff stated he had previously
ruptured his left Achilles tendon, making him familiar with the
symptoms, and again asked to see the doctor. Id. Thomas replied
the doctor would not be back until the next month as he only
came to the prison once a month. Id. Plaintiff spoke with
Assistant Warden Dynan and told her that he was not receiving
medical attention for his injury. Id. She told Plaintiff “she
would get on top of the situation and [he] should check the call
out list everyday for an appointment with the Dr.” Id.
Plaintiff brought his concerns to the attention of
Administrator Director of Health & Medical, Mr. Chudzinski, on
September 22, 2014. Id. ¶ 3. Plaintiff requested to see a doctor
3
immediately and to be given bottom-bunk and first-floor passes.
Id. Mr. Chudzinski then paged Dr. Newland and spoke with him
over the phone. Id. Dr. Newland came to Mr. Chudzinski’s office
and examined Plaintiff’s leg. Id. He told Plaintiff that it was
a very bad ankle sprain, not an Achilles tendon injury. Id.
Plaintiff responded that he knew what an Achilles tendon injury
felt like because he had had one before, and Dr. Newland
“responded in a sarcastic tone and manner, what if you’re lying
to us to get some type of special medical treatment you could be
telling us anything.” Id. Plaintiff responded that Dr. Newland
was not qualified to diagnose his injury as he was not an
orthopedist. Id. He requested an MRI and told Dr. Newland and
Mr. Chudzinski that he wanted bottom-bunk and first-floor
passes. Id. Plaintiff was given a walking boot and a 30-day
bottom bunk pass. Id. Dr. Newland said he would put in the
computer that Plaintiff was to be on the first floor. Id.
Plaintiff was finally examined by the orthopedist, Dr.
Shakir, on October 21, 2014. Id. ¶ 4. Dr. Shakir confirmed that
Plaintiff had ruptured his right Achilles tendon and that
Plaintiff needed to have surgery right away. Id. When Plaintiff
asked when the surgery would take place, Dr. Shakir responded
“it could take up to 6 months . . . you’re not the only person
who needs surgery in Fort Dix.” Id. (ellipses in original).
4
Plaintiff met with Mr. Chudzinski and Dr. Newland again on
October 28, 2014. Id. He inquired as to when his surgery would
take place, and Dr. Newland said it would be alright if
Plaintiff had to wait for 6 months. Id. Plaintiff objected to
waiting for that length of time, and Dr. Newland said it would
take place whenever the Utilization Review Committee approved
the procedure. Id. Plaintiff continued to request placement on
the first floor from several officials. Id.
Plaintiff’s surgery took place on November 14, 2014. Id. ¶
5. He was instructed to follow up with the orthopedic surgeon in
two weeks. Id. Upon returning to Fort Dix, Plaintiff was taken
back to the third floor even though his discharge instructions
required him to be on the first floor and bottom bunk and
prohibited him from using the stairs for four months. Id.
Plaintiff did not receive the Codeine or Percocet that he was
prescribed after surgery. Id. ¶ 6. He could not go to the
medication line, which was on the first floor, because he could
not make it down the stairs. Id.
As of January 15, 2015, Plaintiff still had not had his
two-week follow-up with Dr. Shakir to remove his cast and
sutures. Id. ¶ 7. Plaintiff asked CO Grant why he had not been
able to see Dr. Shakir, but CO Grant only told him to come back
the next morning at sick call. Id. Plaintiff was called down to
medical in the afternoon of January 15 to have his cast and
5
sutures removed. Id. When Plaintiff arrived at medical, Dr.
Shakir was not there. A physician’s assistant said the cast and
sutures were going to be removed and a new cast would be put on.
Id. The physician’s assistant removed the cast and sutures and
told Plaintiff that it looked like his leg was healing well. Id.
He told Plaintiff to wash the leg and return the next day. Id.
He gave Plaintiff a bandage and told Plaintiff to put his
walking boot back on. Id.
Plaintiff went back to medical the next day as instructed.
Id. When he arrived, the person on duty asked him why he was
there. Id. He told her that the other physician’s assistant had
instructed him to return; the on-duty assistant made a phone
call describing Plaintiff’s leg to someone, and then told
Plaintiff to keep his boot on for 8 weeks and to flex his foot
every day. Id.
Plaintiff saw Dr. Shakir again about a month later on
February 10, 2015. Id. ¶ 8. Dr. Shakir asked why Plaintiff was
wearing a walking boot, and Plaintiff responded that he had been
told by the physician’s assistant to wear it. Id. Dr. Shakir
responded that Plaintiff was supposed to be walking on his own.
Id. Plaintiff said that he could not walk on his own due to the
pain, and Dr. Shakir told Plaintiff to use the boot for another
three weeks. Id. Plaintiff requested a soft-shoe pass, and Dr.
Shakir said he did not issue those passes so Plaintiff would
6
have to speak to someone else. Id. Plaintiff also asked about
physical therapy, but Dr. Shakir said Plaintiff was not entitled
to physical therapy “because you are a prisoner in a federal
prison.” Id.
Plaintiff went to renew his bottom bunk and first floor
pass on February 20, 2015, but he was told that they could not
be renewed because there was no record of him having those
passes. Id. ¶ 9. When Plaintiff objected, Dr. Newland said he
would only renew the passes for three months. Id. Plaintiff
removed his cam boot on March 1, 2015. Id. Since then his leg
has been in extreme pain. Id.
Plaintiff was expelled from the Residential Drug Abuse
Program (“RDAP”) on February 26, 2015 and was moved from the
first floor to the third floor. Id. ¶ 10. He spoke with
counselor T. Simms about his passes for the first floor and
bottom bunk, and Simms said “I don’t care what you have it’s
other guys in here that’s in worse shape than you so I don’t
care what pass you have.” Id. Simms then said there was nothing
in the computer system about Plaintiff having a first floor
pass. Id.
Plaintiff saw a different doctor, Dr. Patel, on April 13,
2015. Id. ¶ 11. He complained about being on the third floor and
requested soft shoes because of the pressure on his Achilles
tendon from the tennis shoes. Id. Dr. Patel said that only
7
diabetics or people with deformed feet could have soft shoes.
Id. Dr. Patel authorized the soft shoe after Plaintiff showed
Dr. Patel his swollen foot. Id. Dr. Patel said Dr. Newland
should have put Plaintiff in soft shoes back in September 2014.
Id. Plaintiff requested a transfer to a medical center, but Dr.
Patel said Plaintiff did not meet the criteria. Id. Plaintiff
said that he had checked the eligibility criteria and believed
he qualified, but Dr. Patel said “the bosses would be mad at me
because I moved you and I won’t be put in for a promotion
because the government would be mad.” Id. Dr. Patel gave
Plaintiff a physical therapy printout for Achilles tendonitis
and renewed Plaintiff’s prescription for Ibuprofen. Id.
On April 16, 2015, Plaintiff spoke with Mr. Chudzinski
about not yet receiving his soft shoes. Id. ¶ 12. Mr. Chudzinski
sent Plaintiff down to medical where he received a pair of size
10 shoes. Id. While Plaintiff was being fitted for his shoes, he
asked Mr. Chudzinski how he could be transferred to the medical
facility. Id. Mr. Chudzinski told Plaintiff to talk to Dr.
Patel. Id.
Plaintiff saw Dr. Shakir on May 5, 2015. Id. ¶ 13. He told
Dr. Shakir that his foot and Achilles tendon were in constant
pain and were always swollen. Id. He also stated that the soft
shoes hurt his feet. Id. Dr. Shakir told Plaintiff that he
needed hi-top boots. Id. A week later, Plaintiff saw Nurse
8
Maruska and was told to pick up his pain medication that
afternoon. Id. ¶ 14. When he arrived at pill call, he was told
that his prescription had been rejected. Id. Plaintiff saw a
doctor on July 28, 2015 and informed him he was having head and
neck pain, and the doctor said he would schedule an x-ray. Id.
Plaintiff said he needed an MRI. Id.
Plaintiff had x-rays taken
of his neck, back, Achilles tendon, and head on August 10, 2015.
Id. ¶ 15.
Plaintiff picked up his orthotic boots from Dr. Lawal on
October 16, 2015. Id. ¶ 16. Plaintiff told the doctor that the
boots were not helping with his pain. Id. Plaintiff spoke with
Mr. Wilkes in the medical department on October 23, telling him
that the boots were too big. Id. ¶ 17. Mr. Wilkes said he would
schedule Plaintiff another visit with Dr. Lawal for a refitting.
Id.
Plaintiff had a follow-up appointment with Dr. Shakir on
October 27, 2015. Id. ¶ 18. Plaintiff told him about his the
pain in his foot and Achilles tendon due to the boots. Id. Dr.
Shakir said Plaintiff had plantar fasciitis and tendonitis. Id.
Plaintiff asked if it was because he was not doing physical
therapy, and Dr. Shakir said Plaintiff was not entitled to
physical therapy because it was not a serious injury. He told
Plaintiff to stretch and exercise and to not wear the illfitting boots and to get arch support insoles. Id.
9
Plaintiff went for his appointment to Dr. Lawal to get his
boots adjusted, but he was not wearing his boots. Id. ¶ 19.
Plaintiff told Dr. Lawal about the problems he was having with
the boots, and Dr. Lawal measured Plaintiff’s feet. The
transportation officers put leg irons on Plaintiff even though
his medical file indicated flex cuffs should be used. Id.
Plaintiff went to sick call on November 30, 2015 to get his
medication renewed and to speak with the doctor about the issue
with the transportation officers. Id. ¶ 20. The physician’s
assistant said he would not renew Plaintiff’s Ibuprofen because
Plaintiff was not a chronic care patient, but Plaintiff could
buy medication over the counter. Id. He gave Plaintiff 24
Ibuprofen tablets. Id. Plaintiff renewed his prescription via
computer on January 4, 2016, but when he picked up his medicine
the next day there were only two tablets in the bottle. Id. ¶¶
21-22. Plaintiff received a letter from the Utilization Review
Committee indicating he would continue to receive “conservative
treatment” with “periodic evaluations.” Id. ¶ 23.
On January 27, 2016, Plaintiff was placed in the SHU in a
top bunk. Id. ¶ 24. Plaintiff complained to the officers about
being in the top bunk, saying he had a bottom bunk pass, and the
officer told him he could put his mattress on the floor if he
did not like the top bunk. Id. Plaintiff asked his counselor,
10
Mr. Watson, for a grievance form but did not receive one. Id. He
remained on the top bunk for 48 days. Id.
Plaintiff spoke with Mr. Chudzinski about the problem with
his boots. Id. ¶ 25. Two weeks later Plaintiff spoke with a
female physician’s assistant about visiting Dr. Lawal. Id. He
was told to wear his boot and insoles. Id.
When Plaintiff was released from the SHU on March 15,
2016, he was put on the second floor in spite of having a first
floor pass. Id. ¶ 27. He spoke to Mr. Simms about it, but Mr.
Simms refused to put Plaintiff on the first floor. Id.
Plaintiff’s new boots still were not ready on March 25,
2016 when he went to see Nurse Maruska. Id. ¶ 28. Plaintiff
asked Dr. Patel to renew his first floor pass, prescription, and
give him arch supports on April 1, 2016. Id. ¶ 29. Dr. Patel
said Plaintiff did not need to be on the first floor anymore and
that Plaintiff would have to purchase his own arch supports
because the medical department did not order those. Id.
Plaintiff said he was still in pain when he used the stairs and
that his medication had been cut from 30 tablets to 10. Id. Dr.
Patel said this was because inmates were storing medications in
their lockers. Id. Dr. Patel did not renew Plaintiff’s first
floor pass. Id. The next two times Plaintiff went to pick up his
medication he either did not receive it or it was less than the
prescribed amount. Id. ¶¶ 30, 32.
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III. STANDARD OF REVIEW
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e. The
PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§ 1915A
and 42 U.S.C. § 1997e because Plaintiff is a prisoner seeking
redress from government officials about the conditions of his
confinement.1
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
1
Although Plaintiff is no longer confined, the “prisoner” status
is determined from the date the complaint is filed.
12
screening for failure to state a claim,2 the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, they “still must allege
sufficient facts in their complaints to support a claim.”
Mala
v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted) (emphasis added).
IV. ANALYSIS
Plaintiff categorizes his complaint into three headings:
pre-surgery medical delay and abuse; immediate post-surgery
after care medical denial; and denial of proper medical devices,
accommodation, and needed after care physical therapy. Within
those headings are several subparts falling into five general
categories: deliberate indifference to his medical needs,
2
“[T]he legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915A is identical to the legal
standard employed in ruling on 12(b)(6) motions.” Courteau v.
United States, 287 F. App'x 159, 162 (3d Cir. 2008) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).
13
medical malpractice, violations of the Americans with
Disabilities Act, Privacy Act violations for false medical
records, and failure to supervise claims.3
A. Deliberate Indifference
The Eighth Amendment’s 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.
A medical need is serious where it “has been diagnosed by a
physician as requiring treatment or is . . . so obvious that a
lay person would easily recognize the necessity for a doctor's
attention.” Monmouth County Correctional Institution Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citations omitted).
The Court presumes for screening purposes only that Plaintiff
has alleged a serious medical need.
3
The claims are dismissed with prejudice to the extent Plaintiff
is seeking damages from defendants in their official capacities
as they are entitled to sovereign immunity. See Hairston v.
Miller, 646 F. App'x 184, 187 (3d Cir. 2016) (citing Treasurer
of N.J. v. U.S. Dep’t of the Treasury, 684 382, 295 (3d Cir.
2012)).
14
The second element of the Estelle test requires an inmate
show that prison officials acted with deliberate indifference to
his serious medical need. “The hallmark of an Eighth Amendment
violation arises when such medical treatment, or the withholding
of medical treatment, is accompanied by knowing indifference to
the pain or risk of serious injury this will cause, such as by
‘persistent conduct in the face of resultant pain and risk of
permanent injury.’” Andrews v. Camden Cnty., 95 F. Supp. 2d 217,
228 (D.N.J. 2000) (quoting White v. Napoleon, 897 F.2d 103, 109
(3d Cir. 1990)). 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 nonmedical reason; or (3) deliberately prevents a prisoner from
receiving needed medical 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)).
“[P]rison authorities are accorded considerable latitude in
the diagnosis and treatment of prisoners.” Durmer v. O'Carroll,
991 F.2d 64, 67 (3d Cir. 1993). “[T]here is a critical
distinction ‘between cases where the complaint alleges a
complete denial of medical care and those alleging inadequate
medical treatment.’” Pearson v. Prison Health Serv., 850 F.3d
526, 535 (3d Cir. 2017) (quoting United States ex. rel. Walker
15
v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). “[W]hen
medical care is provided, we presume that the treatment of a
prisoner is proper absent evidence that it violates professional
standards of care.” Id.
Plaintiff has not sufficiently alleged an Eighth Amendment
claim for the period of time prior to being diagnosed with a
torn Achilles tendon. A plaintiff cannot succeed on a medicalneeds claim where he merely disagrees with the medical treatment
provided or where his allegedly inadequate treatment was “a
result of an error in medical judgment.” Parkell v. Danburg, 833
F.3d 313, 337 (3d Cir. 2016) (discussing Spruill v. Gillis, 372
F.3d 218, 235 (3d Cir. 2004)). There is nothing in the complaint
or exhibits that would plausibly support Plaintiff’s conjecture
that he was purposefully misdiagnosed and that defendants
conspired to conceal the true nature of his injury. “As the
Supreme Court has held, ‘a complaint that a physician has been
negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth
Amendment.’” Pearson, 850 F.3d at 538 (quoting Estelle, 429 U.S.
at 106).
The Court will permit the deliberate indifference claim to
proceed for delay in care once Plaintiff’s had been diagnosed
with an Achilles tendon tear on October 21, 2014. Based on the
16
allegations in the complaint and declaration, this applies to
defendants Shakir, Sood, Watson, Chudzinksi, Newland, and Hoey.
Plaintiff has also stated an Eighth Amendment claim based
on his immediate post-surgery care against Shakir, Elias, Gibb,
Watson, Donepududi, DiMatteo, Newland, and Dee.4 Specifically,
Plaintiff alleges defendants denied him his prescribed pain
medication, refused to honor his first-floor and bottom-bunk
passes, and ignored his complaints of constant pain. He has not
sufficiently alleged a claim against Officer Grant. Plaintiff
alleged he asked Officer Grant why he had not been able to see
Dr. Shakir on a certain date, but was told to come back the next
morning at sick call. Declaration ¶ 7. This is not enough to
state a deliberate indifference claim.
Plaintiff’s final deliberate indifference claim is based on
the failure to provide physical therapy, proper medical devices,
and accommodations. Plaintiff has stated a claim based on the
failure to provide physical therapy only against Dr. Shakir as
he alleges that Dr. Shakir refused to provide physical therapy
for a non-medical reason, i.e., Plaintiff’s status as a federal
prisoner.
Construing the complaint liberally and giving the Plaintiff
the benefit of all reasonable inferences, he has otherwise
4
Mrs. Dee and James Gibb do not appear in the caption. The Court
will instruct the Clerk to add them.
17
sufficiently alleged an Eighth Amendment claim in his third
claim as it relates to his care for his Achilles tendon injury.
Plaintiff also makes vague allegations about failure to care for
an existing brain injury, but these allegations are not
supported by any facts in Plaintiff’s declaration or exhibits.
B. Medical Malpractice and Negligence
The complaint also seeks to bring medical malpractice and
negligence claims against defendants. These claims may only be
brought against the United States under the Federal Tort Claims
Act (“FTCA”). 28 U.S.C. §§ 1346(b), 2671–2680. See 28 U.S.C. §
2679(b)(1); Osborn v. Haley, 549 U.S. 225, 229 (2007) (“The
Federal Employees Liability Reform and Tort Compensation Act of
1988, commonly known as the Westfall Act, accords federal
employees absolute immunity from common-law tort claims arising
out of acts they undertake in the course of their official
duties.”); Lomando v. United States, 667 F.3d 363, 378 (3d Cir.
2011) (citing H.R. Rep. No. 100–700, at 6, 1988 U.S.C.C.A.N.
5945 at 5950). The Court therefore construes the medical
malpractice and negligence claims as being brought against the
United States.5
5
Plaintiff provided the Court with a copy of a notice of claim
filed on November 3, 2016 and denied by the United States on
April 19, 2017. See Complaint Exhibits 33 & 34.
18
The Court shall instruct the Clerk to add the United States
as a defendant. Plaintiff’s FTCA claims shall proceed against
the United States.
C. Privacy Act.
Plaintiff also raises claims under the Privacy Act, 5
U.S.C. § 552a, for inaccurate and/or falsified medical records.
“Such claims are exclusively ‘within the remedial scheme of the
Privacy Act [5 U.S.C. § 552a],’ which authorizes a cause of
action to be brought against federal agencies only.” Lynn v.
Lappin, 593 F. Supp. 2d 104, 106 (D.D.C. 2009) (alteration in
original) (quoting Chung v. U.S. Dep't of Justice, 333 F.3d 273,
274 (D.C. Cir. 2003)). See also Kates v. King, 487 F. App'x 704,
706 (3d Cir. 2012) (“The Act does not authorize suit against
individual employees of an agency.’). Even if the Court were to
construe the claims as being brought against the Bureau of
Prisons (“BOP”), the claims would still have to be dismissed.
“The Privacy Act ‘governs the government's collection and
dissemination of information and maintenance of its records
[and] generally allows individuals to gain access to government
records on them and to request correction of inaccurate
records.’” Id. (quoting Perry v. Bureau of Prisons, 371 F.3d
1304, 1304–05 (11th Cir. 2004)) (alteration in original). An
individual may bring a lawsuit under the Privacy Act “when an
agency intentionally or willfully fails to comply with the
19
requirements in such a way as to have an adverse effect on an
individual.” Lynn, 593 F. Supp. 2d at 106–07 (citing 5 U.S.C. §
552a (g)(1)(C)(D), (g)(4)). However, the BOP’s central record
system, including the Inmate Physical and Mental Health Record
System, is entirely exempt from the access and amendment
requirements and the civil remedies provision of the Privacy
Act. 28 C.F.R. § 16.97(a)(5); see also Brown v. Bureau of
Prisons, 498 F. Supp. 2d 298, 302 (D.D.C. 2007) (“Plaintiff
effectively is barred from obtaining any remedy, including
damages, for BOP's alleged failure to maintain records
pertaining to him with the requisite level of accuracy.”). The
Privacy Act claims are therefore dismissed with prejudice.
D. Americans with Disabilities Act
Plaintiff also raises claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. Under
Title II of the ADA, “no qualified individual with a disability
shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. To
establish a violation of Title II, Plaintiff must allege: “(1)
that he is a qualified individual; (2) with a disability; (3)
who was excluded from participation in or denied the benefits of
the services, programs, or activities of a public entity, or was
20
subjected to discrimination by any such entity; (4) by reason of
his disability.” Dahl v. Johnston, 598 F. App'x 818, 819-20 (3d
Cir. 2015) (citing 42 U.S.C. § 12132); see also Bowers v. Nat'l
Collegiate Athletic Ass'n, 475 F.3d 524, 553 n.32 (3d Cir.
2007).
The ADA does not create private causes of action against
individuals, see Boggi v. Med. Review and Accrediting Council,
415 F. App'x 411, 415 (3d Cir. 2011) (individual defendants
cannot be sued in their individual capacities under the ADA);
Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)
(holding there was no individual liability under Titles I, II,
or III of the ADA); Garcia v. S.U.N.Y. Health Sciences Ctr., 280
F.3d 98, 107 (2d Cir. 2001) (holding Title II does not allow
suits against individuals). To the extent the suit could be
interpreted as being against the BOP the claims must be
dismissed because “[f]ederal detention centers are not protected
by the ADA. The ADA does not contain a waiver of sovereign
immunity and thus, does not apply to the federal government.”
Whooten v. Bussanich, No. 4:CV-04-223, 2005 WL 2130016, at *7
(M.D. Pa. Sept. 2, 2005) (citing Hurtado v. Reno, 34 F. Supp. 2d
1261, 1264 (D. Col. 1999); Crowder v. True, 845 F. Supp. 1250
(N.D. Ill. 1994)). See also Smith v. Pallman, 420 F. App'x 208,
214 (3d Cir. 2011) (citing 42 U.S.C. § 12132; 42 U.S.C. §
12111(5)(B)).
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Plaintiff’s ADA claims are dismissed in their entirety.
E. Failure to Supervise
Plaintiff alleges Assistant Warden Dynan failed to
supervise her subordinates. He has failed to sufficiently allege
this claim, and the Court will dismiss it without prejudice.
Failure-to-supervise claims “are generally considered a
subcategory of policy or practice liability.” Barkes v. First
Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on
other grounds sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015).
To state a failure-to-supervise claim, Plaintiff must identify a
supervisory policy or practice that Dynan failed to employ, and
provide sufficient facts that, if true, would show: “(1) the
policy or procedures in effect at the time of the alleged injury
created an unreasonable risk of a constitutional violation; (2)
the defendant-official was aware that the policy created 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.
at 317 (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.
1989)). “Normally, an unreasonable risk in a supervisory
liability case will be shown by evidence that such harm has in
fact occurred on numerous occasions. Similarly, deliberate
indifference to a known risk will ordinarily be demonstrated by
evidence that the supervisory official failed to respond
22
appropriately in the face of an awareness of a pattern of such
injuries.” Sample, 885 F.2d at 1118. “[T]he level of intent
necessary to establish supervisory liability will vary with the
underlying constitutional tort alleged.” Barkes, 766 F.3d at
319. Here, the level of intent is deliberate indifference.
The only facts alleged against the assistant warden are
that Plaintiff spoke with her on September 17, 2014 and told her
he was not receiving care for his ankle. Declaration ¶ 2. Five
days later Plaintiff met with Mr. Chudzinksi and Dr. Newland,
who examined Plaintiff’s ankle. Id. ¶ 3. There are no grounds
supporting a claim against Assistant Wardan Dynan for failure to
supervise, which claim will be dismissed.
V.
CONCLUSION
For the reasons stated above, all claims against Assistant
Warden Dynan, Jeff Thomas, Matthew Deng, D. Alatary, Sheriff
Saad, and Officer Grant are dismissed without prejudice for
failure to state a claim. All Privacy Act and Americans with
Disabilities Act claims are dismissed with prejudice for failure
to state a claim. The First Claim of Eighth Amendment denial of
medical care may proceed against defendants Shakir, Sood,
Watson, Chudzinksi, Newland, and Hoey. The Second Claim of
Eighth Amendment denial of medical care may proceed against
defendants Shakir, Elias, Gibb, Watson, Donepududi, DiMatteo,
Newland, and Dee. Plaintiff’s Third Claim may proceed only on
23
the claims relating to the care for Plaintiff’s Achilles tendon
injury. The Federal Tort Claims Act claims against the United
States shall proceed.
An appropriate order follows.
May 16, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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