Thomas v. Mace-Leibson et al

Filing 37

MEMORANDUM re Dfts' MOTION to Dismiss/summary jgmnt 22 and pltf's mtn for exttm 36 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 12/1/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALPHONSO THOMAS,
Plaintiff
vs.
ELLEN MACE-LEIBSON,
et al.,
Defendants

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CIVIL NO. 1:14-CV-02316

(Judge Rambo)

MEMORANDUM
Background
On December 5, 2014, Alphonso Thomas, an inmate
confined at the Federal Correctional Institution at
Schuylkill, Minersville, Pennsylvania (“FCI-Schuylkill”)
filed this Bivens-styled action pursuant to 28 U.S.C. §
1331.1

The named defendants are the following

individuals presently or formerly employed at the FCI28 U.S.C. § 1331 states as follows: “The district
court shall have original jurisdiction of all actions
arising under the Constitution, laws, or treaties of
the United States.”
Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1977), stands for
the proposition that "a citizen suffering a compensable
injury to a constitutionally protected interest could
invoke the general federal question jurisdiction of the
district court to obtain an award of monetary damages
against the responsible federal official." Butz v.
Economou, 438 U.S. 478, 504 (1978).
1.

Schuylkill: (1) Ellen Mace-Leibson, D.O., Clinical
Director; (2) Joseph Rush, a physician assistant; (3)
David Steffan, a physician assistant who was Thomas’
assigned mid-level practitioner; (4) Mark McDowell,
D.M.D., Chief Dental Officer; (5) Michelle Bedford, a
dental hygienist; (6) H. Song, D.D.S.; (7) Jeremy
Simonson, Health Services Administrator; (8) Douglas
McClintock,

Assistant Health Services Administrator;

(9) a “John Doe” health care provider; and (10) a “Jane
Doe” health care provider.

In the complaint Thomas

alleges that he received inadequate medical and dental
care in violation of his rights under the Eighth
Amendment to the United States Constitution. He contends
that the defendants were deliberately indifferent to his
serious medical and dental needs.

The named defendants

were served with the complaint and on June 22, 2015,
filed a motion to dismiss and/or for summary judgment.
Doc. 22.

The defendants filed a brief in support and a

statement of material facts along with evidentiary
materials on July 2, 2015. Docs. 25 & 26.

On November

3, 2015, Thomas filed a brief in opposition, a response
to Defendants’ statement of material facts and his own
2

declaration under penalty of perjury and other
evidentiary materials.

Defendants’ motion became ripe

for disposition when they filed a reply on November 17,
2015.
Defendants in support of the motion to dismiss
and/or for summary judgment make the following four
arguments:
(1) The Court lacks subject matter jurisdiction
over Thomas’ claims against Defendant, Dr.
McDowell, because he is statutorily immune from
suit as 42 U.S.C. § 233(a) “precludes Bivens
actions against Public Health Service personnel
for constitutional violations arising out of
their official duties.” Hui v. Castaneda, 559
U.S. 799 (2010);
(2) Defendants Simonson and McClintock should
be dismissed from this action because Thomas
failed to set forth any facts indicating that
they had any personal involvement in his
medical care:

3

(3) Thomas’ medical care, facial nerve pain
claims, are time-barred because there is a
statute of limitations of two years for the
Bivens-claims and the record establishes he
last complained of facial nerve pain in June,
2012; and
(4) Thomas’s remaining medical and dental
claims are without merit because the
Defendants provided him with medical and dental
care and they were not deliberately indifferent
to his medical and dental needs.2
Claims based upon the Cruel and Unusual Punishments
Clause have both objective and subjective components.
Wilson v. Seiter, 501 U.S. at 298. Serious hardship
to the prisoner is required to satisfy the Eighth
Amendment's objective component. Id. The subjective
component is met if the person or persons causing the
deprivation acted with "a sufficiently culpable state
of mind". Id.
The objective component of an Eighth Amendment
medical care claim, i.e., whether a plaintiff's medical
needs were serious, has its roots in contemporary
standards of decency. Hudson v. McMillian, 503 U.S. 1
(1992). A medical need is serious if it is one that
has been diagnosed by a physician as mandating
treatment or is one that is so obvious that even a lay
person would easily recognize the necessity for a
doctor's attention. Johnson v. Busby, 953 F.2d 349, 351
(8th Cir. 1991); Monmouth County Correctional
Institution Inmates v. Lanzaro, 834 F.2d 326, 347 (3d
2.

(continued...)

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2.

(...continued)

Cir. 1987); Ramos v. Lamm, 639 F.2d 559, 575 (10th
Cir. 1980), cert. denied, 450 U.S. 1041 (1981); West v.
Keve, 571 F.2d 158, 162-63 n.6 (3d Cir. 1978). The
serious medical need element contemplates a condition
of urgency, one that may produce death, degeneration,
or extreme pain. See Monmouth County Correctional
Institution Inmates v. Lanzaro, 834 F.2d at 347; Archer
v. Dutcher, 733 F.2d 14, 16-17 (2d Cir. 1984); Todaro
v. Ward, 565 F.2d 48, 52 (2d Cir. 1977).
Assuming, without deciding, that Thomas’
medical need was serious in the constitutional sense,
the evidentiary materials submitted in support of
Defendants’ motion and Thomas’ declaration illustrate
that Thomas received medical attention. At best,
Thomas’ averments demonstrates his disagreement with
the scope and extent of treatment by the attending
medical and dental professionals. Thomas’ disagreement
with the course of treatment, however, does not serve
as a predicate to liability under the Eighth Amendment.
See, White v. Napoleon, 897 F.2d at 108-110(No
deliberate indifference claim is stated when a doctor
disagrees with the professional judgment of another
doctor since “[t]here may, for example, be several
acceptable ways to treat an illness.”); Inmates of
Allegheny County Jail v. Pierce, 612 F.2d at 762(claim
for deliberate indifference does not arise just because
one doctor disagrees with the diagnosis of another).
Furthermore, a complaint that a physician or a medical
department was “negligent in diagnosing or treating a
medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Thomas’
averments and the evidentiary materials establish
meaningful efforts by the defendants to provide Thomas
with necessary medical and dental care, and an
attendant mental state that falls short of deliberate
indifference.
5

On November 27, 2015, Thomas filed a motion entitled
“Motion to Extend Time to File Reply Brief to
Defendants’ Reply Brief in Support of Motion to Dismiss
and Motion for Summary Judgment.”

In the motion Thomas

basically concedes that Defendants’ motion to dismiss
and/or for summary judgment has merit and requests that
he be granted leave and an extension of time to file an
amended complaint under the Federal Tort Claims Act
naming the United States as the only Defendant.3
The present action as stated above was filed on
December 5, 2014.

The record reveals and Defendants

admit that Thomas exhausted his FTCA administrative
remedies on July 20, 2015, when the Northeast Regional
Office of the Federal Bureau of Prison denied his
administrative appeal.

The denial letter from Michael

The FTCA provides a remedy in damages for the simple
negligence of employees of the United States to protect
federal inmates. United States v. Muniz, 374 U.S. 150,
150 (1963). In presenting a FTCA claim, a plaintiff
must show: (1) that a duty was owed to him by a
defendant; (2) a negligent breach of said duty; and (3)
that the negligent breach was the proximate cause of
the plaintiff's injury/loss. Mahler v. United States,
196 F. Supp. 362, 364 (W.D. Pa. 1961), aff'd 306 F.2d
713 (3d Cir. 1962), cert. denied, 371 U.S. 923 (1962).
3.

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D. Tafelski, Regional Counsel, dated July 20, 2015,
which is attached as an exhibit to Thomas’ response to
Defendants’ statement of material facts states in toto
as follows:
Your Administrative Claim No. TRT-NER-20151931, properly received on January 22, 2015,
has been considered for settlement as provided
by the Federal Tort Claims Act (FTCA), 28
U.S.C. § 2672, under authority delegated to
me by 28 C.F.R. § 543.30. Damages are sought
in the amount of $4,000,000 based on a personal
injury claim. Specifically, you allege FCI
Schuylkill staff has not provided you with
adequate medical and dental care in relation
to trigeminal neuralgia4 and dental care
resulting in continuous pain and unnecessary
teeth extractions.
An investigation, including review of your
medical records, shows FCI Schuylkill staff
evaluated your dental health on numerous
occasions. After initially refusing, you
eventually consented to having your teeth
removed due to poor oral hygiene and decay.
“Trigeminal neuralgia is a chronic pain condition
that affects the trigeminal nerve, which carries
sensation from your face to your brain. If you have
trigeminal neuralgia, even mild stimulation of your
face - such as from brushing your teeth or putting on
makeup - may trigger a jolt of excruciating pain. You
may initially experience short, mild attacks. But
trigeminal neuralgia can progress and cause longer,
more-frequent bouts of searing pain.” Trigeminal
neuralgia, Definition, Mayo Clinic Staff,
http://www.mayoclinic.org/diseases-conditions/trigemina
l-neuralgia/basics/definition/CON-20043802 (Last
accessed November 30, 2015).

4.

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After extraction, your Patient Care Provider
team at FCI Schuylkill saw you several times
and you did not complain about dental pain.
Your Bureau of Prison medical records do not
show that you have been diagnosed with
trigeminal neuralgia.5 There is no evidence
that you experience a compensable loss as the
result of negligence on the part of any Bureau
of Prisons employee. Accordingly, your claim
is denied.
If you are dissatisfied with this decision,
you may bring an action against the United
States in an appropriate Unites States District
Court within six (6) months of the date of this
memorandum.
Doc. 34-1, at 4.

The Defendants only argument against

allowing Thomas to file an amended complaint under the
FTCA is that the present action was filed prior to his
exhausting his FTCA administrative remedies and rely on
the cases of McNeil v. United States, 508 U.S. 106, 11112 (1993) and Accolla v. United States, 369 Fed. Appx.
408, 409-410 (3d Cir. 2010).

However, reliance on those

case is misplaced because the McNeil case dealt with the
situation where the original complaint filed raised a
claim only under the FTCA and the Accolla case under
The record reveals a declaration from Dr. MaceLeibson in which she states that she diagnosed Thomas
on January 9, 2012, as suffering from trigeminal
neuralgia. Doc. 25-1, at 7.

5.

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both the FTCA and Bivens.

The cases did not deal with

the situation where a court dismissed the original
complaint raising only a Bivens claim with leave to file
an amended complaint raising an FTCA claim after the
exhaustion of administrative remedies.

Consequently,

the court will grant defendants motion to dismiss and/or
for summary judgment but grant Thomas leave to file an
amended complaint setting forth a claim under the FTCA.6
An appropriate order will be entered.

s/Sylvia H. Rambo
United States District Judge

Dated: December 1, 2015

Defendants have also noted that if the court grants
Thomas leave to amend, Thomas is required to file a
certificate of merit pursuant to Pennsylvania Rule of
Civil Procedure 1042.3 for any medical malpractice
action against the United States. That requirement,
however, does not prevent the court from granting
Thomas leave to file an amended complaint raising an
FTCA medical malpractice claim. Under Rule 1042.3
Thomas has sixty days from the filing of the
malpractice claim to file the certificate of merit.

6.

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