BATTLE v. MCGANN et al
Filing
15
OPINION. Signed by Judge Robert B. Kugler on 10/17/2018. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
J.P. BATTLE,
Civil Action
No. 17-12041 (RBK-AMD)
Plaintiff,
v.
OPINION
DR. MCGANN, et al.,
Defendants.
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Plaintiff, J.P. Battle, is a federal prisoner currently incarcerated at FCI Fairton, in Fairton,
New Jersey. He is proceeding pro se with a civil complaint pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (See ECF No. 1-3). For
the purposes of this opinion, the Court will also consider Plaintiff’s “supplemental complaint”
(ECF No. 9), along with his initial complaint, as one pleading. For the reasons stated in this
Opinion, the Court will dismiss Plaintiff’s complaint, declines to exercise supplemental
jurisdiction over his claims arising under state law, and denies his motions for a temporary
restraining order and preliminary injunction and for appointment of counsel. Additionally, the
Court denies Plaintiff’s motions for a writ of mandamus as moot.
II.
BACKGROUND
The Court will construe the allegations of the complaint as true for the purpose of this
Opinion. Plaintiff names the following individuals and entities as Defendants: (1) Dr. McGann,
Clinical Medical Director at FCI Fairton; (2) Dr. Peter A. Sarkos, Orthopedic Specialist Contractor
for FCI Fairton; and (3) the United States of America. Although vague, the Court will interpret
the complaint as asserting claims against the individual Defendants in both their individual and
official capacities.1
This case arises from Plaintiff’s medical treatment while incarcerated at FCI Fairton, for
his shoulder injuries. (ECF No. 1-3). According to the complaint, Plaintiff reported experiencing
shoulder pain on June 10, 2016. (Id. at 2). Plaintiff received a cortisone injection on June 22, 2016,
an x-ray of his right shoulder on June 26, 2016, and a second steroid injection on July 22, 2016.
(Id.). Nearly eight months later, on June 5, 2017, Dr. Sarkos performed another evaluation,
diagnosed Plaintiff with a bilateral partial acute rotator cuff tear, and provided Plaintiff with
another cortisone injection. (Id.). On July 5, 2017, Plaintiff received another evaluation and
complained that the injections did not relieve his pain. (Id.). Finally, on August 15, 2017, Dr.
McGann provided Plaintiff with another cortisone injection. (Id.).
At unspecified times thereafter, Plaintiff “submitted repeated sick-call slip request[s]” and
grievances requesting a magnetic resonance imaging scan (“MRI”). (Id. at 3). Plaintiff “exhausted
all [of] his administrative remedies” (ECF No. 1-3, at 3; ECF No. 9, at 3) and alleges that Dr.
Sarkos, his orthopedist, and Dr. McGann, as the final medical decision maker at the prison, denied
his requests for an MRI “due to cost.” (ECF No. 1-3, at 3). Plaintiff also implies that the refusal
to provide him with an MRI is due to “racial discrimination and prejudice,” alleging that white
inmates at FCI Fairton, with similar injuries, “were taken to area hospitals.” (ECF No. 9, at 3).
Plaintiff contends that Drs. Sarkos and McGann have misdiagnosed him and that his
shoulder injury is getting worse and risks permanent disability. (Id.). Plaintiff now raises Eighth
1
In his description of the parties, Plaintiff specifies that he is suing Dr. McGann in her official
capacity but does not specify as to Dr. Sarkos. Plaintiff then states, a few lines later, that he is
suing all defendants, which appears to include the United States, in both capacities. (ECF No. 13, at 2).
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Amendment deliberate indifference claims against the Defendants, alleging that the Defendants
refused to perform an MRI, and as a result, have not properly treated his rotator cuff injury.
Additionally, Plaintiff raises state law claims for ordinary negligence and medical malpractice.
Plaintiff also seeks a temporary restraining order and preliminary injunction to order Defendants
to provide him with an MRI and proper treatment.
III.
STANDARD OF REVIEW
A. Standard for Sua Sponte Dismissal
District courts must review complaints in civil actions in which a plaintiff is proceeding in
forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). District courts may 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. See id. 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 screening for failure to state a claim,2 the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).” Schreane v. Seana, 506 Fed. App’x 120, 122 (3d Cir. 2012) (per curiam)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); see also Malcomb v. McKean, 535
Fed. App’x 184, 186 (3d Cir. 2013) (finding that the Rule 12(b)(6) standard applies to dismissal
of complaint pursuant to 28 U.S.C. § 1915A for failure to state a claim).
2
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liable for the [alleged] misconduct.” Iqbal, 556 U.S. at 678. Moreover, while courts liberally
construe pro se pleadings, “pro se litigants 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).
B. Bivens Actions
Section 1983 of Title 42 created a remedy for monetary damages when a person acting
under color of state law injures another, but “Congress did not create an analogous statute for
federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific
damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal
Government.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). The Supreme Court created an
implied cause of action in Bivens when federal officers violated a person’s Fourth Amendment
rights. Bivens, 403 U.S. at 397. The Court extended the Bivens remedy twice more in: Davis v.
Passman, 442 U.S. 228 (1979) (holding administrative assistant fired by Congressman had a
Bivens remedy for her Fifth Amendment gender discrimination claim), and Carlson v. Green, 446
U.S. 14 (1980) (holding that prisoner’s estate had a Bivens remedy against federal jailers for failure
to treat his asthma under the Eighth Amendment). “These three cases—Bivens, Davis, and
Carlson—represent the only instances in which the Court has approved of an implied damages
remedy under the Constitution itself.” Ziglar, 137 S. Ct. at 1855. As is relevant in the present case,
the Supreme Court has recognized an implied cause of action for Eighth Amendment inadequate
medical care claims against a federal actor who is personally involved in the deprivation. Carlson,
446 U.S. at 19.
In order to state a claim under Bivens, a plaintiff must allege: (1) a deprivation of a right
secured by the Constitution or laws of the United States; and (2) that the deprivation of the right
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was caused by a person acting under color of federal law. See Couden v. Duffy, 446 F.3d 483, 491
(3d Cir. 2006).
IV.
DISCUSSION
A. Sovereign Immunity
Plaintiff asserts claims against the United States and Drs. McGann and Sarkos in both their
official and individual capacities. To be liable under Bivens, a defendant must be a “person.” The
Third Circuit held in Jaffee v. United States, 592 F.2d 712, 717–18 (3d Cir. 1979), that sovereign
immunity bars Bivens claims against the United States and its agents unless the United States
explicitly waives its immunity, and accordingly, they are not “persons” amenable to suit under
Bivens. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001); Lewal v. Ali, 289 F. App’x
515, 516 (3d Cir. 2008) (“An action against government officials in their official capacities
constitutes an action against the United States; and Bivens claims against the United States are
barred by sovereign immunity, absent an explicit waiver.”).
Here, the United States is immune from suit under Bivens because it has not explicitly
waived sovereign immunity. Additionally, Dr. McGann is an employee of FCI Fairton or the
Bureau of Prisons, or both, which are federal entities and therefore, Dr. McGann is also immune
from suit under Bivens, at least in her official capacity. See Webb v. Desan, 250 F. App’x 468,
471 (3d Cir. 2007) (affirming the dismissal of a Bivens claim against the United States, BOP, and
seven named individuals in their official capacities). Assuming arguendo that Dr. Sarkos has an
official capacity,3 in that he is acting on behalf of the federal entities above, he is also immune
Plaintiff alleges that Dr. Sarkos is a “contractual vendor” and acts as FCI Fairton’s orthopedic
specialist. (ECF No. 1-3, at 2). Consequently, it is possible that Dr. Sarkos is a contractor rather
than an employee or agent of a federal agency. In any event, the Court would conclude that the
United States is also immune under that scenario, because “the United States may not be held
vicariously liable for . . . an independent contractor.” Gibson v. United States, 567 F.2d 1237, 1242
(3d Cir. 1977) (citing 28 U.S.C. § 2671).
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from suit for the same reasons as Dr. McGann. Accordingly, the Court will dismiss with prejudice
the claims against the United States and Drs. McGann and Sarkos in their official capacities.
B. Eighth Amendment Claims
Having determined that Plaintiff cannot sue Drs. McGann and Sarkos in their official
capacities, the Court must still decide whether Plaintiff may proceed against Drs. McGann and
Sarkos in their individual capacities. Plaintiff contends that the Doctors’ refusal to schedule an
MRI and decision to conservatively treat his torn rotator cuff without an MRI for twelve months,
“constituted deliberate indifference in violation of the Eighth Amendment.” (ECF No. 1-3, at 4).
To establish a claim for an Eighth Amendment violation of the right to adequate medical
care or for failure to protect, a prisoner must demonstrate “(1) that defendants were deliberately
indifferent to [his] medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999). Deliberate indifference requires proof that the official “knows of
and disregards an excessive risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility,
318 F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Courts have found deliberate indifference where a prison official: “(1) knows of a
prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary
medical treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving needed
or recommended treatment.” Rouse, 182 F.3d at 197. The Third Circuit has also found deliberate
indifference “where the prison official persists in a course of treatment in the face of resultant pain
and risk of permanent injury.” See McCluskey v. Vincent, 505 F. App’x 199, 202 (3d Cir. 2012).
But it “is well-settled that claims of negligence or medical malpractice, without some more
culpable state of mind, do not constitute” deliberate indifference. Id.
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Courts give deference to prison medical authorities in the diagnosis and treatment of
patients and will not “second-guess the propriety or adequacy of a particular course of treatment
... [which] remains a question of sound professional judgment.” Inmates of Allegheny Cnty. Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979).
Allegations of negligent treatment or medical
malpractice do not trigger constitutional protections. Estelle v. Gamble, 429 U.S. 97, 105–06
(1976); Pierce v. Pitkins, 520 F. App’x 64, 66 (3d Cir. 2013) (per curiam).
With respect to Drs. McGann and Sarkos,4 Plaintiff admits that the doctors evaluated his
injured shoulder on a number of occasions and then, from June 22, 2016, through August 15, 2017,
received at least four cortisone and other steroid injections. (ECF No. 1-3, 2–3; ECF No. 9, at 2).
Although Plaintiff received an x-ray evaluation on June 26, 2016, he takes issue with his
“conservative treatment,” arguing that it was not effective and that it was negligent to treat him
conservatively without first performing an MRI. (ECF No. 9, at 2).
Plaintiff’s disagreement with Drs. McGann and Sarkos as to the proper course of treatment
and whether to schedule an MRI do not rise to the level of an Eighth Amendment violation. See,
e.g., Lenhart v. Pennsylvania, 528 F. App’x 111, 115 (3d Cir. 2013) (stating that allegations of
negligent diagnosing and treatment, and mere disagreement as to proper medical treatment do not
raise a constitutional claim); Smith v. O’Boyle, 251 Fed. App’x 87, 90 (3d Cir. 2007) (affirming
dismissal of a complaint, “[b]ecause a disagreement as to the proper medical treatment for a
prisoner is insufficient to establish an Eighth Amendment violation”).
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Plaintiff contends that Doctors McGann and Sarkos were responsible for his medical care, but
only occasionally identifies which of the two performed his treatments and evaluations.
Consequently, the Court will construe Plaintiff’s allegations liberally, as if the ambiguous
allegations applied to either doctor.
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In light of Plaintiff’s multiple treatments and evaluations, it is apparent that the complaint
shows only a difference in opinion over the course of proper medical treatment, rather than a
complete denial of medical care. Rhines v. Bledsoe, 388 F. App’x 225, 227 (3d Cir. 2010) (holding
that a disagreement over whether prison staff should have “immediately ordered” an MRI did not
constitute deliberate indifference). The Third Circuit has held that when a “prisoner has received
some medical attention and the dispute is over the adequacy of treatment” courts should not
“second guess medical judgments and . . . constitutionalize claims which sound in state tort law.”
U. S. ex rel. Walker v. Fayette Cnty., Pa., 599 F.2d 573, 575 n.2 (3d Cir. 1979).
The question of whether “additional diagnostic techniques or forms of treatment . . . [are
necessary] is a classic example of a matter for medical judgment . . . and does not represent cruel
and unusual punishment” under the Eighth Amendment. McCluskey, 505 F. App’x at 203 (internal
quotation marks omitted). Consequently, at most, Plaintiff’s allegations that he should have
received an MRI, i.e., an “additional diagnostic technique[],” and other forms of treatment only
rise to the level of medical malpractice, which is insufficient to state an Eighth Amendment claim.
See id.; Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (“Allegations of medical malpractice
are not sufficient to establish a constitutional violation.”). Accordingly, the Court will dismiss
without prejudice the federal claims against Drs. McGann and Sarkos, in their individual capacity.
Plaintiff does raise ordinary medical malpractice and negligence claims against the
Defendants (ECF No. 1-3, at 4), but since there are no remaining federal claims against any of the
Defendants, any potential basis for this Court to consider Plaintiff’s state law claims lies within
the Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367. However, when a court has
dismissed all claims over which it had federal question jurisdiction, it has the discretion to decline
to exercise supplemental jurisdiction over the remaining state law claims. See id. at § 1367(c)(3).
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As the Court will dismiss Plaintiff’s federal claims for failure to state a claim upon which relief
may be granted, the Court will exercise is discretion to decline supplemental jurisdiction over
Plaintiff’s state law claims. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
As a result, with no active claims, Plaintiff cannot demonstrate that he is likely to prevail
on the merits. Accordingly, the Court also denies his motion for a temporary restraining order and
preliminary injunction. See, e.g., Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994) (holding
that in deciding motion for preliminary injunction, a district court must first determine whether
movant has shown reasonable probability of success on the merits); Fink v. Supreme Court of
Pennsylvania, 646 F. Supp. 569, 570 (M.D. Pa. 1986) (stating that preliminary injunctions and
temporary restraining orders have the same requirements).
Plaintiff has also filed a motion requesting the appointment of pro bono counsel. (See ECF
No. 11). He requests the appointment of counsel due to the “legal complexities” of this case and
his status as an inmate. (See id. at 2). Our jurisprudence provides the Court with broad discretion
in determining whether to request representation for an indigent civil litigant notwithstanding the
fact that indigent civil litigants “have no statutory right to appointed counsel.” Tabron v. Grace,
6 F.3d 147, 153 (3d Cir. 1993), cert. denied, 510 U.S. 1196 (1994). In evaluating a motion seeking
appointment of counsel, the court must preliminarily determine whether the plaintiff's claims have
arguable merit. Id. at 155.
If the court finds that the plaintiff's claims have merit, the court should consider the
following non-exclusive factors: 1) The plaintiff's ability to present his or her own case; 2) The
complexity of the legal issues; 3) The degree to which factual investigation will be necessary and
the ability of the plaintiff to pursue such investigation; 4) The amount a case is likely to turn on
credibility determinations; 5) Whether the case will require the testimony of expert witnesses; and
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6) Whether the plaintiff can attain and afford counsel on his own behalf. See id. at 155–57. As
discussed above, Plaintiff's complaint does not state any federal claims demonstrating entitlement
to relief, and the Court declines to exercise supplemental jurisdiction. As such, the Court must
deny his motion for the appointment of pro bono counsel.
Finally, Plaintiff filed two motions for a writ of mandamus (ECF Nos. 12, 14), seeking to
accelerate a decision on his motion for appointment of counsel (ECF No. 11) and whether the
Court would re-open and allow his case to proceed. Because the Court will dismiss his federal
claims, decline to exercise supplemental jurisdiction, and deny Plaintiff’s motion for appointment
of counsel, the Court denies his motions for a writ of mandamus as moot.
V.
CONCLUSION
For the reasons set forth above, the Court will dismiss Plaintiff’s complaint, declines to
exercise supplemental jurisdiction over his claims arising under state law, and denies his motions
for a temporary restraining order and preliminary injunction and for appointment of counsel.
Accordingly, the Court also denies Plaintiff’s motions for a writ of mandamus as moot. The Court
shall give Plaintiff thirty days to file an amended complaint to cure the deficiencies discussed
above. An appropriate Order follows.
Dated: October 17, 2018
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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