CREDICO v. BOKHARI et al

Filing 29

MEMORANDUM/OPINION THAT PLAINTIFF'S COMPLAINT IS DISMISSED WITH PREJUDICE AS TO DEFENDANTS BAKER-BARLETT AND MURPHY AND WITHOUT PREJUDICE AS TO DEFENDANT BOKHARI. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 7/6/17. 7/7/17 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JUSTIN CREDICO,
Plaintiff,

CIVIL ACTION
NO. 16-3726

v.
FDC PHILA MLP BOKHARI, FDC PHILA HHS
CMDR BAKER, and FDC PHILA CMDR
MURPHY,
Defendants.
MEMORANDUM OPINION
Schmehl, J.
I.

/s/ JLS

July 6, 2017

INTRODUCTION
On July 21, 2016, Plaintiff’s request to proceed in forma pauperis was granted by
this Court on his Eighth Amendment claim against Defendants Bokhari, Baker-Bartlett
and Murphy only, and his Complaint was filed. All other claims contained in Plaintiff’s
Complaint were dismissed. Bokhari, Baker-Bartlett and Murphy are all health care
providers at FDC-Philadelphia. In his Eighth Amendment claim, Plaintiff alleges that
shortly before December 15, 2015, while incarcerated at FDC-Philadelphia, he filed a
sick call with regard to bat bites that were causing him pain, itching, burning, numbness,
and resulting scarring. (Compl., ¶4, p. 4 and ¶ A.2, p. 11.) Plaintiff alleges that he did not
receive proper medical care for this condition. On March 20, 2017, Defendants filed a
Motion to Dismiss Plaintiff’s Complaint, or in the Alternative, for Summary Judgment, to
which Plaintiff responded. For the reasons that follow, I will grant Defendants’ Motion to
Dismiss.

II.

DEFENDANTS BAKER-BARTLETT AND MURPHY
Two of the defendants named in this complaint, Defendants Baker-Bartlett and

Murphy, are Public Health Service Officers. This fact is fatal to Plaintiff’s Bivens
constitutional claims against these defendants since, as public health service officers, they
are immune from personal liability pursuant to 42 U.S.C. § 233(a), which provides that
the Federal Tort Claims Act is the exclusive avenue for relief for claims arising out of
public health service employee conduct. As the United States Supreme Court has
observed: “the immunity provided by § 233(a) precludes Bivens actions against
individual PHS officers or employees for harms arising out of conduct described in that
section.” Hui v. Castaneda, 559 U.S. 799, 130 S.Ct. 1845 (2010). Therefore, Defendants
Baker-Bartlett and Murphy are statutorily immune from Bivens constitutional liability in
this case and should be dismissed.
III.

DEFENDANT BOKHARI
Defendant Bokhari should also be dismissed from this matter as he is entitled to

qualified immunity due to Plaintiff’s failure to plead a constitutional violation. Qualified
immunity protects federal defendants from personal liability for damages when their
conduct does not violate a clearly established constitutional right of which a reasonable
person would have known. Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012). To establish
a violation of his constitutional right to adequate medical care, an inmate is required to
point to evidence that demonstrates (1) a serious medical need, and (2) acts or omissions by
prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir.1999). Deliberate indifference to a serious medical need involves the
“unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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Such indifference may be evidenced by an intentional refusal to provide care, delayed
provision of medical treatment for non-medical reasons, denial of prescribed medical
treatment, denial of reasonable requests for treatment that results in suffering or risk of
injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir.1993), or “persistent conduct in the
face of resultant pain and risk of permanent injury,” White v. Napoleon, 897 F.2d 103, 109
(3d Cir.1990).
A medical need is serious if it is “one that has been diagnosed by a physician as
requiring treatment or one that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.” Ranieri v. Byrne, 2017 WL 57007, *5 (E.D. Pa. Jan. 4,
2017), quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994). “The serious medical need
element contemplates a condition of urgency, one that may produce death, degeneration or
extreme pain.” Miller v. Doe, 2016 WL 6780705, * 4 (M.D. Pa. Nov. 16, 2016) (citations
omitted).
Plaintiff’s Complaint alleges that he “has not received any medical care since the
only time that Bokhari tried to prescribe cream from commissary back in and around June
of 2015,” that allegedly “didn’t work.” (Compl., ¶ 10, p. 11.) Plaintiff claims that he
described to Bokhari the pain, redness, lesion and numbness from the bat bites, but that
Bokhari told him to “get lost” and that there was “nothing he [could] do.” (Compl., ¶A.3.)
Plaintiff’s Complaint states that he wanted treatment for his “post-exposure bat bites,” but
that a test for Lyme’s disease was ordered instead. (Compl., ¶¶ A.3, 8, 9.) This is the extent
of Plaintiff’s allegations regarding the allegedly inadequate medical care that he received.
Plaintiff has failed to plead facts that show that any federal defendant, including Bokhari,
actually knew of a serious medical need or believed such a condition existed. Plaintiff’s

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allegations that he described his medical issue to Bokhari is insufficient to show that
Bokhari knew that his condition was urgent, or could produce death, degeneration or
extreme pain. In fact, Plaintiff actually concedes that his medical need was not serious, as
he states “even if they aren’t ‘serious’ the delay still meets the 8th amendment standard.”
(Compl., ¶B.2.) The facts, as currently pled by Plaintiff, do not give rise to a serious
medical need.
In addition, Plaintiff fails to specify how Bokhari was responsible, or what he
believes Bokhari should have done but failed to do. This is clearly insufficient to sustain a
Bivens claim, which requires factual specificity as to what specific acts a federal defendant
personally committed that violated Plaintiff’s constitutional rights. Plaintiff has failed to
plead that any defendant has violated his Eighth Amendment rights. The most that
Plaintiff’s Complaint contains are allegations that he disagreed with defendant’s diagnosis
and/or wanted some other treatment rather than the suggested “creams” and the Lyme’s
test. However, negligence, unsuccessful medical treatment, or medical malpractice does not
state a claim, and an inmate’s disagreement with treatment does not show deliberate
indifference. Douglas v. Lanier, 2013 WL 4876078, *8 (M.D. Pa. Sept. 11, 2013). Clearly,
Plaintiff has failed to plead a constitutional violation as he has failed to plead a serious
medical need or deliberate indifferent by Bokhari.
The complaint in its current form fails to state a claim against Defendants BakerBartlett, Murphy and Bokhari upon which relief may be granted. Although these three
defendants should be dismissed from this action, Plaintiff will be given one last final
opportunity to file an amended complaint as to Defendant Bokhari only. I permit this
amendment as to Bokhari only mindful of the fact that in civil rights cases pro se plaintiffs

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often should be afforded an opportunity to amend a complaint before the complaint is
dismissed in its entirety, see Fletcher–Hardee Corp. v. Pote Concrete Contractors, 482 F.3d
247, 253 (3d Cir.2007), unless granting further leave to amend is not necessary where
amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235
(3d Cir.2004). Accordingly, Plaintiff will be given one final opportunity to correct the
deficiencies in his complaint as to Defendant Bokhari only. I will dismiss this deficient
complaint as to Defendants Baker-Bartlett and Murphy with prejudice as they are immune
from suit in this matter, but without prejudice as to Defendant Bokhari. Plaintiff may file an
amended complaint as to Defendant Bokhari only if he can do so in compliance with the
Federal Rules of Civil Procedure.
IV.

CONCLUSION
Accordingly, Plaintiff’s Complaint is dismissed with prejudice as to Defendants

Baker-Bartlett and Murphy and without prejudice as to Defendant Bokhari. 1

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Plaintiff has filed a“ Cross-Motion for Summary Judgment,” but as I have granted Defendants’ Motion to
Dismiss and dismissed Plaintiff’s Complaint, I do not need to address Plaintiff’s summary judgment
motion. However, if I did address the motion, I would deny it for the reasons contained in this opinion.

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