Douglas v. Lanier et al
MEMORANDUM AND ORDER - AND NOW, this 11th day of September, 2013, it is ordered that: 1. The BOP Defendants Motion to Dismiss and for Summary Judgment 30 is GRANTED. The Clerk of Court shall enter judgment in favor of defendants Buschman, Craig, Du ttry, Holtzapple, Lanier and McDonald and against plaintiff Douglas on all claims. 2. Plaintiffs Motion for Extension of Time to Complete Discovery 33 is DENIED. 3. Plaintiffs Motion to Compel Discovery 34 is DENIED. 4. Within twenty-one (21) day s of the date of this order, Plaintiff shall file with the court sufficient information for theMarshal to effect service on defendant Dr. Chopra. If Plaintiff fails to do so, this action will be dismissed as against Dr. Chopra. (See memo for complete details.) Signed by Honorable William W. Caldwell on 9/11/13. (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NIGEL NICHOLAS DOUGLAS,
LANIER, et al.,
CIVIL NO. 1:12-CV-0340
Pro se plaintiff, Nigel Douglas, is a federal inmate formerly incarcerated at
Allenwood United States Penitentiary (USP Allenwood), in White Deer, Pennsylvania.1 On
February 15, 2012, he filed this Bivens-type civil-rights action2 alleging the denial of medical
care and deliberate indifference to his medical needs following a surgical procedure to treat
an enlarged prostate. Douglas also alleges Dr. Chopra, his urologist, “was not entirely
truthful” when he said the procedure was safe and that he would not suffer from any
“erectile or genital related difficulties” following it. (Doc. 1, Compl.). Since the procedure
Douglas suffers from erectile dysfunction. Named as defendants are the following Bureau
of Prisons (BOP) employees: Health Services Administrator (HSA) Lanier, Dr. Buschman,
Physicians Assistant (PA) Holtzapple, PA Craig, PA Duttry and PA McDonald.3 Dr. Chopra,
Douglas is presently housed at FCC Victorville, in Adelanto, California.
Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971). A Bivens action is the counterpart to 42 U.S.C. § § 1983 claims
brought against state officials. Egervary v. Young, 366 F.3d 238. 246 (3d Cir. 2004).
These defendants will be collectively referred to as the BOP defendants.
not employed by the BOP, is also a defendant.4
We are considering the following motions: (1) the BOP defendants’ motion for
summary judgment pursuant to Fed. R. Civ. P. 56; (2) Plaintiff’s motion for enlargement of
time to complete discovery; and (3) Plaintiff’s motion to compel (Doc. 34). We will grant the
BOP defendants’ motion for summary judgment and deny Plaintiff’s motions. We will also
direct Plaintiff to provide the court with an updated address for Dr. Chopra.
Standard of Review
Summary judgment is proper where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). In making this evaluation, all doubts as to the existence of a
genuine issue of material fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to the nonmoving party. MacFarlan v.
Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012).
“[T]he mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). “Material facts are
those ‘that could affect the outcome’ of the proceeding, and ‘a dispute about a material fact
is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for the
nonmoving party.’” Roth v. Norfalco, 651 F.3d 367, 373 (3d Cir. 2011) (citing Lamont v.
New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). "[S]ummary judgment is essentially ‘put up
Dr. Chopra’s Waiver of Service was returned unexecuted on August 22, 2012. (Doc. 15).
or shut up' time for the non-moving party: the non-moving party must rebut the motion with
facts in the record and cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument." Berckeley Inv. Group, Ltd. Colkitt, 455 F.3d 195, 201 (3d
Cir. 2006). The moving party has the burden of showing the absence of a genuine issue of
material fact, but the nonmoving party must present affirmative evidence from which a jury
might return a verdict in the nonmoving party's favor. Liberty Lobby, 477 U.S. at 256-57,
106 S.Ct. at 2514. "The non-moving party cannot rest on mere pleadings or allegations,"
El v. Southeastern Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but "must set forth
specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260
F.3d 228, 231 - 232 (3d Cir. 2001). Allegations made without evidentiary support may be
disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). "Conclusory, self-serving
affidavits are insufficient to withstand a motion for summary judgment." Blair v. Scott
Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002). The non-moving party must raise
"more than a mere scintilla of evidence in its favor" in order to overcome a summary
judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
In his Complaint, Douglas alleges that following his Prostiva procedure,
performed by Dr. Chopra, he suffered several extended bouts of painful urinary retention
prior to the BOP defendants’ providing him remedial treatment. He also claims that since
the procedure he suffers from retrograde ejaculation.5
Retrograde ejaculation occurs when semen enters the bladder instead of emerging
through the penis during orgasm. Although the male can still reach sexual climax, he may ejaculate
The summary judgment record is as follows. Douglas arrived at USP
Allenwood on March 20, 2008. (Doc. 32, BOP Def’s.’ Statement of Material Facts (DSMF),
¶ 1; Doc. 39, Plaintiff’s Counter Statement of Material Facts (PSMF), ¶ 1). On May 17,
2010, Douglas underwent a Prostiva procedure without complication at an outside facility.
(Doc. 1, Compl., ECF P. p. 13; DSFM ¶ 2; Doc. 31-2 at ECF P. p. 16) Prostiva is a surgical
procedure to destroy excess prostate tissue which may improve urination. (DSMF ¶ 2). Dr.
Chopra, a local urologist, performed the Prostiva procedure.6 (DSMF ¶ 3; PSMF ¶ 3). Dr.
Chopra’s discharge instructions to BOP Health Services staff directed that Douglas’s
catheter be removed May 19, 2010, if his urine was clear, and to continue with his
antibiotics and Cardura,7 and to follow up with the urology clinic in two to three months.
(DSMF ¶ 3). A follow-up consultation was submitted so Douglas could attend the urology
clinic. (DSMF ¶ 4). PA Holtzapple reviewed the clinical encounter note for Douglas on May
18, 2010. (DSMF ¶ 5).
On May 19, 2010, Douglas reported to the Health Services Unit at 8:33 a.m.
to have his catheter removed. (DSMF ¶ 6; PSMF ¶ 6). He was seen by PA Craig. (DSMF
¶ 8; PSMF ¶ 8). PA Craig is a Lieutenant with the Public Health Service. (Doc. 31-2, Craig
Decl., ¶ 1.) At the time, Douglas’s urine was clear and he was not in pain. (DSMF ¶ 7;
very little or no semen. See http://www.mayoclinic.com/health/retrograde-ejaculation/DS00913.
The parties dispute whether Dr. Chopra is a constructive employee of the BOP based on
his role in operating on Douglas. (DSMF ¶ 3; PSMF ¶ 3). Counsel for the BOP defendants has not
entered an appearance for Dr. Chopra.
Doxazosin (Cardura) is used to treat the symptoms of an enlarged prostate which include
difficulty urinating (hesitation, dribbling, weak stream, and incomplete bladder emptying), painful
urination, and urinary frequency and urgency.
PSMF ¶ 7). PA Craig removed Douglas’s catheter without issue. (DSMF ¶ 8; PSMF ¶ 8).
PA Craig continued Douglas’s antibiotic and Cardura. (DSMF ¶ 9; PSMF ¶ 9). Douglas
was instructed to return to the Health Services Unit as needed. (DSMF ¶ 10; Doc. 31-2,
ECF P. p. 14).
Later that day, at approximately 6:37 p.m., Douglas returned to the medical
unit complaining of severe sharp abdominal pain and urinary retention. (DSMF ¶ 11; Doc.
31-2, ECF P. p. 11). Douglas reported that he had not been urinating since the catheter
was removed earlier that day. (DSMF ¶ 12; PSMF ¶ 12). Emergency Medical TechnicianParamedic (EMT-P) Lesher’s assessment of Douglas was “post operative urinary
retention/urethral swelling”. (DSMF 14; Doc. 31-2, ECF P. p.11). After a straight catheter
was inserted by EMT-P Lesher, Douglas felt immediate relief and voided approximately 400
cc of dark urine. (DSMF ¶¶ 15-16; PSMF ¶¶ 15-16). EMT-P Lesher contacted Dr.
Buschman, a Medical Officer who works at the facility, who concurred with the course of
treatment. (DSMF ¶ 18; PSMF ¶ 18; Doc. 31-1, ECF P. p. 3).
At approximately 8:18 p.m., Douglas reported to the Health Services Unit, for
the third time that day.8 (DSMF ¶ 19; Doc. 31-2, ECF P. p. 9). Douglas reported the
catheter had fallen out and that he was again suffering from distention and severe pain.
(DSMF ¶¶ 19-20; PSMF ¶¶ 19-20). EMT-P Lesher made two unsuccessful attempts to
catheterize Douglas. (Doc. 31-2, ECF P. p. 8). Douglas was given 2 tablets of
Acetaminophen/Codeine 300/30 mg. (Id.)
Plaintiff disputes the timing of his return to the medical unit. See PSMF ¶ 19. He avers
that he returned to the unit at approximately 5:30 p.m. as soon as he left the unit because his
catheter fell out. (Id.)
EMT-P Lesher then contacted Dr. Buschman regarding transporting Douglas
to an outside hospital for further assistance/evaluation. (DSMF ¶ 22; PSMF ¶ 22). EMT-P
Lesher also contacted Health Services Administrator (HSA) Laino. HSA Laino (a nondefendant), arrived at USP Allenwood at 9:00 p.m. to evaluate Douglas.9 (DSMF ¶ 23).
HSA Laino also tried unsuccessfully to catheterize Douglas. (DSMF ¶ 24; PSMF ¶ 24). At
approximately 10:15 p.m., HSA Laino contacted Dr. Chopra to advise him of the situation.
(DSMF ¶ 26; PSMF ¶ 26; Doc. 31-2, ECF P. p. 6). Dr. Chopra advised that Douglas may
be having spasms which were preventing the insertion of the catheter. (DSMF ¶ 27; PSMF
¶ 27). Dr. Chopra advised HSA Laino to make a final attempt at inserting a catheter, and if
unsuccessful, to transfer Douglas to the local hospital for medical treatment. (DSMF ¶ 28;
PSMF ¶ 28). HSA Laino made one more attempt to insert a catheter as instructed, but was
unsuccessful. (DSMF ¶ 29; PSMF ¶ 29).
At approximately 11:25 p.m., Douglas was transported to a local hospital for
medical treatment. (DSMF ¶ 30; PSMF ¶ 30; Doc. 1, ECF P. p. 13). At the local hospital, a
catheter was inserted and Douglas was advised to follow-up with Dr. Chopra in two days.
(DSMF ¶ 31; PSMF ¶ 31). Douglas returned to the facility at approximately 1:30 a.m.
(DSMF ¶ 32; PSMF ¶ 32).
On May 20, 2010, Dr. Bushman reviewed Douglas’s condition with HSA Laino
and PA Holtzapple. (DSMF ¶ 33; PSMF ¶ 33). Dr. Bushman directed PA Holtzapple to
ensure Douglas’s catheter was still in place and to start him on 0.8 mg Flomax to reduce
Douglas avers that HSA Laino arrived at the institution at 11:50 p.m. See PSMF ¶ 23.
Although this is a dispute of fact, it is not material for reasons set forth infra.
his prostate spasms.10 (DSMF ¶¶ 34-36; Doc. 31-2; ECF P. p. 5). On May 20, 2010, PA
Holtzapple prescribed Douglas 0.8 mg of Tamsulosin,11 for twelve days. (DSMF ¶ 38;
PSMF ¶ 38; Doc. 31-2, ECF P. p. 3).
On May 24, 2010, PA Holtzapple spoke with Dr. Chopra’s office about
discontinuing Douglas’s catheter. (DSMF ¶ 39; PSMF ¶ 39). PA Holtzapple flushed
Douglas’s catheter as directed by Dr. Chopra. (DSMF ¶¶ 39-40; PSMF ¶¶ 39-40).
Douglas’s catheter was discontinued without complication. (DSMF ¶¶ 39-40; PSMF ¶¶ 3940). Douglas was told that if he had any problems urinating he was to report to the Health
Services Unit immediately. Douglas understood the plan of care. (DSMF ¶ 41; PSMF ¶ 41;
Doc. 31-2, ECF P. p. 1).
Following the removal of his catheter at 8:00 a.m. on May 24, 2010, Douglas
claims his urine flow gradually decreased until it stopped all together around 11:00 p.m. on
May 25, 2010. (Doc. 1, ECF P. ¶ 13). On May 26, 2010, Douglas reported to Health
Services Unit during insulin line. (DSMF ¶ 42; PSMF ¶ 42 ). He told EMT-P Duttry that he
has been unable to urinate since his catheter was removed two days before. (DSMF ¶ 43;
PSMF ¶ 43). He stated that when he forces himself to try and urinate, he only gets
dribbles; has had increasing abdominal discomfort; feels bloated; and has been unable to
sleep. (DSMF ¶ 43; PSMF ¶ 43). Douglas stated that he has been taking his medication
as prescribed as well as taking painkillers. (DSMF ¶ 44; PSMF ¶ 44; Doc. 31-1, ECF P. p.
41). Douglas argues that any pain medication he was given was “used up well before the
Douglas argues he never received Flomax prior to August 12, 2010, when Dr. Chopra
ordered it. See PSMF ¶ 34.
Tamsulosin is the generic form of Flomax. See
next encounter.” PSMF ¶ 44.
Dr. Buschman was contacted by telephone and advised to have the physician
assistant on call come to the institution and attempt to insert a foley catheter. (DSMF ¶ 45;
PSMF ¶ 45). PA Bennett-Meehan was contacted and advised of the situation. (DSMF ¶
46; PSMF ¶ 46). Douglas was advised that PA Bennett-Meehan had been called and
would be arriving soon. (DSMF ¶¶ 46-47; PSMF ¶¶ 45-47; Doc 31-1, ECF P. p. 41). Once
PA Bennett-Meehan arrived at the facility, she spent approximately one hour attempting to
insert the catheter for Douglas. (DSMF ¶¶ 46 and 48; PSMF ¶ 46 and ¶ 48). The medics
were advised they may issue Douglas Tylenol as needed for pain. (Doc. 31-1, ECF P. p.
44). Dr. Buschman was then called to the institution and successfully placed the catheter
providing Douglas immediate relief. (DSMF ¶ 48; PSMF ¶ 48; Doc. 31-1, ECF P. p. 42).
On May 27, 2010, Dr. Buschman contacted Dr. Chopra who advised him to
leave Douglas’s catheter in until Monday before attempting another trial of voiding. He also
recommended increasing Douglas’s Flomax dosage and to add Ibuprofen for pain. (DSMF
¶ 49; PSMF ¶ 49; Doc. 31-1, ECF P. p. 40). On May 27, 2010, Dr. Buschman ordered
Douglas’s Tamsulosin dosage increased from 0.4 mg daily to 0.8 mg daily and prescribed
him 600 mg Ibuprofen three times daily for one week. (Doc. 31-1, ECF P. p. 40).
On June 2, 2010, Douglas was placed in the Special Housing Unit (SHU).
(Doc. 31-1, ECF P. p. 38). He denied any injuries or illnesses at that time. (Id.) On June
3, 2010, PA Craig saw Douglas in his SHU cell to remove his foley catheter. (DSMF ¶ 50;
Doc. 31-1, ECF P. pp. 34-36). The catheter was removed without incident. (Id.) Douglas
was given a new prescription to help with his urinary burning. (DSMF ¶ 52; PSMF ¶ 52).
PA Craig also renewed Douglas’s other chronic medications (Aspirin, Doxazin, Ibuprofen;
Niacin and Simvastatin). (DSMF ¶ 53; PSMF ¶ 53; Doc. 31-1, ECF P. p. 35). He was also
advised to follow up as needed with Health Services staff. (DSMF ¶ 53; PSMF ¶ 53; Doc.
31-1, ECF P. p. 35).
On July 20, 2010, PA Craig saw Douglas in the SHU for a Chronic Care Visit.
(DSMF ¶ 54; PSMF ¶ 54; Doc. 31-1, ECF P. pp. 29-32). Douglas related that his
symptoms were better after his prostate procedure but that he was having an increase in
the frequency of urination. (DSMF ¶ 54; PSMF ¶ 54). PA Craig treated Douglas for a
fungal rash and ordered lab work for other chronic conditions. (DSMF ¶ 55; PSMF ¶ 55).
PA Craig also renewed Douglas’s medications (Clotrimazole Cream; Aspirin; Doxazosin;
and Simvastin). (DSMF ¶ 55; PSMF 55; Doc. 31-1, pp. 30-31). Douglas was advised to
follow up with Health Services staff as needed. (DSMF ¶ 56; PSMF ¶ 56).
On August 12, 2010, Douglas had a follow-up appointment with Dr. Chopra
for his benign prostatic hypertrophy (non-cancerous enlarged prostate). (DSMF ¶ 57;
PSMF ¶ 57). At the appointment Douglas complained of frequency and marginal stream
(poor flow) of urine. (DSMF ¶ 58; PSMF ¶ 58; Doc. 31-1, ECF P. p. 26-27). Douglas was
restarted on Flomax and Ditropan12 to relax the bladder. (DSMF ¶ 59; Doc. 31-1, ECF P. p.
26). Douglas was scheduled to be seen at the next in-house urology clinic. (DSMF ¶ 60;
PSMF ¶ 60).
On August 24, 2010, PA Craig saw Douglas in the SHU after he complained
of difficulty urinating. (DSMF ¶ 61; PSMF ¶ 61; Doc. 31-1, ECF P. pp. 23-24). PA Craig
Ditropan is the brand name for Oxybutynin. Oxybutyin is used to control urgent, frequent,
or uncontrolled urination in people who have an overactive bladder.
noted Douglas underwent a Prostiva procedure in May 2010 which required him to undergo
several catheter placements. (DSMF ¶ 62; PSMF ¶ 62). PA Craig recorded Douglas’s
Pain Scale as “0" that day, but did note that Douglas had suprapubic distention with
tenderness on palpation but no guarding or rigidity. (Doc. 31-1, ECF P. p. 23). PA Craig
made two unsuccessful attempts to catheterize Douglas. (DSMF ¶ 63; PSMF ¶ 63). PA
Craig then contacted Dr. Chopra’s office and was advised to take Douglas to Bloomsburg
Hospital. (DSMF ¶ 64; PSMF ¶ 64). Douglas was sent to Bloomsburg Hospital at
approximately 11:47 a.m., and returned to the institution at 3: 56 p.m. (DSMF ¶¶ 64-65;
PSMF ¶¶ 64-65; Doc. 1, ECF P. p. 13). Douglas returned from the outside hospital with a
foley catheter in place and a prescription for Ciprofloxacin (an antibiotic) and
Phenazopyridine (a pain medication). (DSMF ¶ 66; PSMF ¶ 66; Doc. 31-1, ECF P. p. 21).
Douglas’s diagnosis was urinary retention. (DSMF ¶ 67; PSMF ¶ 67; Doc. 31-1, ECF P. p.
On September 1, 2010, Douglas was seen by Dr. Chopra where a voiding
trial was completed. (DSMF ¶ 68; PSMF ¶ 68). Dr. Chopra discontinued Douglas’s
Ditropan (for bladder spasms) but continued his Flomax and Ciprofloxacin medications.
(DSMF ¶ 69; PSMF ¶ 69). Douglas was directed to follow-up at the next urology clinic.
(DSMF ¶ 70; PSMF ¶ 70. He was given a straight catheter to use if he could not urinate.
(DSMF ¶ 71; PSMF ¶ 71). Dr. Chopra recommended Douglas have a cystoscopy. (DSMF
¶ 72; PSMF ¶ 72). PA Craig submitted the necessary consultation request so Douglas
could get a cystoscopy. (DSMF ¶ 73; PSMF ¶ 73; Doc. 31-1, ECF P. p. 18).
On September 20, 2010, Douglas was transferred from USP Allenwood.
(DSMF ¶ 74; PSMF ¶ 74; Doc. 1, ECF P. p. 13).
The BOP defendants argue summary judgment should be granted in their
favor because: (1) they are entitled to sovereign immunity to the extent they are being sued
in their official capacities; (2) PA Craig is entitled to statutory immunity as a Public Health
Service Official; and (3) Douglas has failed to state an Eighth Amendment claim for
deliberate indifference to his serious medical needs.
Under the doctrine of sovereign immunity, the United States is immune from
suit unless Congress has expressly waived the defense of sovereign immunity by statute.
United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983).
A suit against a government officer in his or her official capacity is, in essence, a suit
against the government. Kentucky v. Graham, 473 U.S. 159, 165-55, 105 S.Ct. 3099,
3105, 87 L.Ed.2d 114 (1985). The United States has not consented to be sued for
monetary damages based on a constitutional violation or, in other words, for a “Bivens-type
cause of action directly against a federal agency.” F.D.I.C. v. Meyer, 510 U.S. 471, 486,
114 S.Ct. 996, 1005, 127 L.Ed.2d 308 (1994).
The BOP defendants correctly point out that Douglas fails to specify in his
Complaint whether he is suing them in their official and/or personal capacities. (Doc. 31,
BOP Def’s.’ Br. in Supp. Mot. Summ. J., ECF P. p. 4.) In his Complaint, Douglas simply
avers that the BOP defendants “are all employed as Health Services providers at USP
Allenwood.” (Doc. 1, Compl., ECF P. p. 2). Thus, to the extent that Douglas is suing the
BOP defendants for monetary damages in their official capacities, his claim is barred, and
summary judgment will be granted in favor of the BOP defendants, in their official
capacities.13 See Webb v. Desan, 250 F. App’x 468, 471 (3d Cir.
2007)(nonprecedential)(affirming dismissal of prisoner’s Bivens claim for damages against
BOP employees in their official capacities).
PA Craig Has Statutory Immunity under the Public Health
The Public Health Service Act, 42 U.S.C. § 233(a), provides that an action
against the United States under the Federal Tort Claims Act (FTCA) is the exclusive
remedy “for personal injury, including death, resulting from the performance of medical,
surgical, dental, or related functions, including the conduct of clinical studies or
investigation, by any commissioned officer or employee of the Public Health Service while
acting within the scope of his office or employment.” See 42 U.S.C. § 233(a). As such, the
Public Health Service Act grants absolute immunity to Public Health Service officers from
Bivens actions “arising out of the performance of medical or related functions within the
scope of their employment.” Hui v. Castaneda,559 U.S. 799, 806, 130 S.Ct. 1845, 1851,
176 L.Ed.2d 703 (2010); see also Etkins v. Glenn,
, 2013 WL
2392872, at *2 (3d Cir. 2013)(nonprecedential)(affirming district court’s denial of a motion
to add Public Health Service employee as additional defendant because she is entitled to
absolute immunity from Bivens claims).
Douglas asserts that PA Craig violated his constitutional rights under the
As for Douglas’s request for injunctive or declaratory relief from the defendants named in
this action, those claims are now moot given his transfer from USP Allenwood to another facility.
See Fortes v. Harding, 19 F. Supp. 2d 323, 326 (M.D. Pa. 1998) (“Fortes' transfer to another
institution moots any claims for injunctive or declaratory relief.”).
Eighth Amendment when he ignored, denied, delayed and interfered with his repeated
requests for medical care while housed in the SHU between August 18, 2010, and August
24, 2010. (Doc. 1, Compl., ¶¶ 23-27; Doc. 37, Pl.’s Br. in Opp’n Def.’s’ Mot. Summ. J.,
ECF P. p. 9). Douglas argues that at all times relevant to this action PA Craig worked
jointly with the BOP to provide him medical care and therefore is not entitled to immunity.
(Id.) Nonetheless, it is not disputed that PA Craig is a Lieutenant with the Public Health
Service, and was acting within the scope of his official duties when he was dealing with
Douglas. Thus, Douglas cannot maintain a Bivens action against PA Craig, a Public Health
Service employee, for harm arising out of alleged constitutional violations committed while
acting within the scope of his employment. Accordingly, PA Craig is entitled to summary
judgment in his favor as to Douglas’s Bivens claims against him.
Douglas Fails to State An Eighth Amendment Claim of
Deliberate Indifference Against the Remaining BOP Defendants
The Eighth Amendment “requires prison officials to provide basic medical
treatment” for those “incarcerated.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999)(citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). To
establish an Eighth Amendment medical claim, a plaintiff must show "(I) a serious medical
need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to
that need." Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
A finding of deliberate indifference must be based on what an official actually
knew, rather than what a reasonable person should have known. See Beers–Capitol v.
Whetzel, 256 F.3d 120, 131 (3d Cir. 2001). A prison official acts with deliberate
indifference to an inmate's serious medical needs when he "knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979,
128 L.Ed.2d 811 (1994).
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 Cnty. Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987) (citations omitted). Deliberate indifference to a serious
medical need involves the “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at
103, 97 S.Ct. at 290. 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). “Needless suffering resulting from the denial of simple
medical care, which does not serve any penological purpose . . . violates the Eighth
Amendment.” Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003).
An inmate’s mere disagreement with medical professionals “as to the proper
medical treatment” of his medical complaint does not support an Eighth Amendment
violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). A claim that a doctor or
medical department was negligent does not rise to the level of an Eighth Amendment
violation simply because the patient is a prisoner. Estelle, 429 U.S. at 106, 97 S.Ct. at 292;
see also Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2002)(claims of
medical malpractice, absent evidence of a culpable state of mind, do not constitute
deliberate indifference under the Eighth Amendment). Accordingly, a "medical decision not
to order an X-ray, or like measures, does not represent cruel and unusual punishment. At
most it is medical malpractice." Id. at 107, 97 S.Ct. at 293. "[A]s long as a physician
exercises professional judgment his behavior will not violate a prisoner's constitutional
rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990).
In sum, negligence, unsuccessful medical treatment, or medical malpractice
do not give rise to a § 1983 cause of action, and an inmate's disagreement with medical
treatment is insufficient to establish deliberate indifference. See Spruill, 372 F.3d at 235;
Durmer, 991 F.2d at 69; Winslow v. Prison Health Servs., Inc., 406 F. App’x 671, 675 (3d
Cir. 2011)(nonprecedential)(conservative hernia treatment of non-strangulated or
incarcerated hernia rather than surgery, although not the preferred treatment by the
prisoner, did not rise to a constitutional claim).
Here, Douglas suggests that on three occasions (5-19-10, 5-26-10 and 8-21
through 8-24-10) his serious medical need, urinary retention, “was not addressed for hours
while he waited in excruciating pain for treatment.” (Doc. 37, ECF P. pp. 14-15).
Defendants argue that the evidence does not show deliberate indifference. Rather, they
suggest that on each occasion Douglas was constantly evaluated, catheters were inserted
or he was sent to an outside hospital, and he was prescribed medication.14
The court’s review of the record demonstrates that the BOP defendants were
not deliberately indifferent to Douglas’s serious medical needs in their responses to his May
As for Douglas’s denial that he received Flomax when prescribed, the record before the
court clearly demonstrated that when prescribed, he received the generic equivalent to Flomax.
and August requests for medical attention due to urinary retention. Although Douglas
complains that he was required to wait extended periods of time, in pain, until medical staff
treated and/or attempted to resolve his medical issue, the record before us reflects that on
all occasions, BOP medical staff were attentive to his needs, did not deny or delay his
medical treatment for non-medical reasons, or ignore Douglas’s complaints of pain. While
in all of these situations, ultimate relief was only attained by his successful catheterization,
and may not have occurred as quickly as he would have liked, on each occasion
defendants attempted to relieve his pain with medication, contacting others who had
additional medical expertise than they for assistance, or transported him to an outside
hospital to relieve his discomfort.
To the extent Douglas complained of pain, he was prescribed medication (see
Doc. 31-2, ECF P. p. 8; Doc. 31-1, ECF P. pp. 40, 41, and 44). If as Douglas says his pain
medication ran out at any time, he does not suggest that he requested additional supplies,
or that he was denied the same by the BOP defendants. Douglas was advised by all
medical providers to return to the Health Services Unit immediately if he experienced
difficulties urinating. As evidenced by his three trips to the medical unit on May 19, 2010,
he did not have difficulty accessing medical care that day. While he disputes how long it
took for defendants to ultimately transfer him to an outside facility where he was
successfully catheterized, he does not dispute that EMT-P Lesher and PA Laino both
attempted to relieve his discomfort by trying to catheterize him and by discussing his
situation with Dr. Chopra, his urologist.15
To the extent Douglas suggests that PA Laino arrived at the facility closer to 11:50 p.m.
Douglas concedes that he was repeatedly advised to contact the medical unit
if he had difficulty urinating. He also admits that he waited almost two days to present to
the medical unit on May 26, 2010, even though he was experiencing problems urinating.
(Doc. 31-1, p. 41). Again, while Douglas was dissatisfied with treatment EMT-P Duttry
provided, his concerns were not ignored. EMT-P Duttry noted that Douglas was taking his
medications, including his pain killers, and that he consulted Dr. Buschman as to a course
of action to treat Douglas. (Id.) PA Bennett-Meehan arrived at the facility and attempted to
assist him by inserting a catheter. Unfortunately, her efforts were unsuccessful. Tylenol
was administered and Dr. Buschman was contacted. (Id., ECF P. pp. 43-44). Dr.
Buschman arrived at the facility and successfully catheterized Douglas, providing
immediate relief. (Id., ECF P. p. 42). There is no indication that any BOP defendant
delayed providing Douglas medical care for non-medical reasons, or for the purpose of
causing him harm.
Once Douglas was placed in the SHU, he again was seen regularly by
medical staff for his chronic care and urinary issues. (Doc. 31-1, ECF P. pp. 25-38). On
Tuesday, August 24, 2010, Douglas reported experiencing “difficulty with urination staring
rather than 9:00 p.m. as set forth in the medical record, and allowed him to languish in pain during
this time, he offers no evidence to support his assertion. (PSMF ¶ 23). Moreover, the record before
the court suggests the contrary. Douglas’s medical record includes a notation that PA Laino arrived
at the facility at approximately 9:00 p.m., and that he too made several attempts to catheterize
Douglas. Once unable to do so, he contacted Dr. Chopra. (Doc. 31-2, ECF P. p. 6). Douglas does
not dispute these events. He also does not dispute that he was taken out of the facility to the local
hospital at approximately 11:25 p.m. (Doc. 1, ECF P. P. p. 13). These events contradict Douglas’s
time line because if PA Laino arrived at the facility at 11:50 p.m., he would not have encountered
Douglas as he had already left for the outside hospital, and PA Laino would not have had sufficient
time to attempt repeated catheterizations or contact Dr. Chopra prior to his transport, all events that
Douglas agrees took place.
over weekend.”16 (Doc. 31-1, ECF P. p. 24). His “Pain Scale” was noted to be “O”. (Id.,
ECF P. p. 23). After PA Craig unsuccessfully attempted to insert a catheter on two
occasions, PA Craig contacted Dr. Chopra’s office. Within an hour and a half of presenting
his issue to medical staff, Douglas was transported to an outside hospital for treatment.
The undisputed record before the court, which includes portions of Douglas’
medical records, reveals that BOP medical staff addressed Douglas’s medical concerns.
They gave him pain medication, anti-spasmodic medication for his bladder, catheters, and
an outside hospital visit when he had problems urinating. He was repeatedly evaluated and
monitored by BOP staff for his chronic care needs and his bladder issues. Douglas’s
dissatisfaction with the treatment rendered, or the order in which it was rendered, does not
state an Eighth Amendment claim. Any perceived delay in medical care was not prolonged
and was accompanied by Douglas’s receipt of pain medication and further efforts to assist
him void his bladder. Nothing within the record suggests that the BOP defendants were
indifferent to Douglas’s urinary retention and associated pain.17
Douglas’ s Discovery Motions Will Be Denied
Also pending before the court are Douglas’s motions for an extension of time
to complete discovery18 (Doc. 33) and a motion to compel the BOP defendants to respond
Although Douglas suggests he attempted to obtain medical treatment prior to this date,
he does not offer any evidence to support this assertion.
While Douglas also complains that Dr. Chopra failed to inform him that the potential side
effects of the Prostiva procedure include difficulty in obtaining an erection or retrograde ejaculation,
this claim does not involve the BOP defendants and is lodged solely against Dr. Chopra.
Douglas did not file a brief in support of this motion as required by Pa. M.D. Local Rule
to previously posed discovery (Doc. 34).
Both motions request that the BOP defendants produce Douglas’s medical
records. On September 15, 2012, Douglas served the BOP defendants with a discovery
request which requested the disclosure of his medical records. On October 5, 2012, the
BOP defendants sought a protective order staying their obligation to respond to Douglas’s
discovery request. In doing so, they noted that relevant portions of Douglas’s medical
record would be provided to Douglas in connection with their shortly anticipated motion for
summary judgment. (Docs. 18-19). On October 16, 2012, the court granted the BOP’s
motion for a protective order. (Doc. 24).
On November 21, 2012, the BOP defendants filed their motion for summary
judgment. On December 5, 2012, they filed their statement of undisputed facts, supporting
brief and exhibits, which included relevant portions of Douglas’s medical records. (Docs.
30-32). Douglas also had the opportunity to review his medical record upon request by
contacting the appropriate official at his institution. Douglas does not suggest that any
relevant portion of his medical record necessary for him to oppose the BOP defendants’
motion for summary judgement is missing from the court’s record. Likewise, he does not
suggest what discovery, if any, he would pursue that would affect the outcome of the
pending motion for summary judgment.
For these reasons, Douglas’s motion for extension of time to complete
discovery (Doc. 33) and motion to compel (Doc. 34) will be denied.
7.5. Thus the defendants had no obligation to respond to it, and it is deemed withdrawn.
Updated Service Information for Dr. Chopra
By an order dated June 18, 2012, the court directed service of Douglas’s
Complaint on the named defendants, including Dr. Chopra. (Doc. 11, Order). On August
23, 2012, Dr. Chopra’s Waiver of Service was returned unexecuted with the notation
“Unable to serve, mail returned by USP Allenwood - Dr. Chopra is not employed with
Federal Bureau of Prisons -Plaintiff must provide U.S. MS with address for defendant to
execute service.” (Doc. 15). Douglas received a copy of this correspondence. To date,
service of process has not been made on Dr. Chopra.
Fed. R. Civ. P. 4(m) provides:
If a defendant is not served within 120 days after the complaint
is filed, the court - on a motion or on its own after notice to the
plaintiff - must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period. This
subdivision (m) does not apply to service in a foreign country
under Rule 4(f) or 4(j)(1).
More than twelve months have passed since the filing of the Complaint and
Douglas has not provided the court or the Marshal sufficient information for the Marshal to
effect service on Dr. Chopra. When advised of a problem in accomplishing service, a pro
se litigant proceeding in forma pauperis must “attempt to remedy any apparent service
defects of which [he] has knowledge.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.
1987). The court will direct Douglas to provide sufficient information to enable the Marshal
to serve Dr. Chopra. His failure to do so will result in the dismissal of Dr. Chopra from the
action pursuant to Fed. R. Civ. P. 4(m).
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: September 11, 2013
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NIGEL NICHOLAS DOUGLAS,
LANIER, et al.,
CIVIL NO. 1:12-CV-340
AND NOW, this 11th day of September, 2013, it is ordered that:
1. The BOP Defendants’ Motion to Dismiss and for Summary
Judgment (Doc. 30) is GRANTED. The Clerk of Court shall
enter judgment in favor of defendants Buschman, Craig, Duttry,
Holtzapple, Lanier and McDonald and against plaintiff Douglas
on all claims.
2. Plaintiff’s Motion for Extension of Time to Complete
Discovery (Doc. 33) is DENIED.
3. Plaintiff’s Motion to Compel Discovery (Doc. 34) is
4. Within twenty-one (21) days of the date of this order,
Plaintiff shall file with the court sufficient information for the
Marshal to effect service on defendant Dr. Chopra. If Plaintiff
fails to do so, this action will be dismissed as against Dr.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
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