Beckton v. Francis et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry) re 12 MOTION to Dismiss and, or in the alternative MOTION for Summary Judgment filed by Steve Brown, Fasciana Francis Signed by Honorable Malachy E Mannion on 3/21/17. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s))(bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
REGGIE ANDRE BECKTON,

:
:

Plaintiff

CIVIL ACTION NO. 3:16-0051
:

v
:

(JUDGE MANNION)

FASCIANA FRANCIS, et al.,
:
Defendants
MEMORANDUM
I.

Background
Plaintiff, Reggie Andre Beckton, an inmate confined in the United States

Penitentiary, Lewisburg, (“USP-Lewisburg”), Pennsylvania, filed the above
captioned Bivens1 action pursuant to 28 U.S.C. §1331. (See Doc. 1,
complaint). The named Defendants are Steve Brown, Assistant Health
Service Administrator, and Fasciana Francis, Housing Unit Physician. Id.
Plaintiff alleges that “he gave notice and/or disclosed to medical staff on
numerous occasions that he was experiencing the following conditions:
abdominal pains, abnormal and or irregular bowel movement, dark red blood
in stool, excessive mucus discharge from rectum in the absence of a bowel
movement, no bowel movement after consuming moderate doses of laxative,

1

Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403
U.S. 388, 397 (1971).

black colored stool(s), burning sensation and or pain in epidgastric area.” Id.
In response, Plaintiff claims that Defendants “provided [him] with stool
sample cards to corroborate this fact, and then directed him to return the
cards after completing any future bowel movements.” Id. “All (3) cards were
sent to the labs for testing, all (3) cards returned revealing positive indications
for blood being present in Plaintiff’s stool.” Id. Plaintiff claims that “Medical
Staff, having formal indication return from Plaintiff’s lab results corroborating
a finding that blood was indeed present in the Plaintiff’s stool, a request was
made by medical staff to have Plaintiff scheduled to undergo an outpatient
colonoscopy exam,” which was “approved by the Assistant Health Service
Administrator” as well as the institution’s warden. Id.
Plaintiff claims that “despite having been approved and scheduled to be
sent out to an outside hospital to undergo a colonoscopy examination, Plaintiff
continued to make several complaints to medical staff regarding his health
conditions, most notably Plaintiff complained of the following conditions:
abdominal pains, abnormal and or irregular bowel movement, dark red blood
in stool, excessive mucus discharge from rectum in absence of bowel
movement, no bowel movement(s) after consuming moderate doses of
laxative, black colored stool(s), burning sensation and or pains in epidgastric
area; medical staff however failed or refused to act on the Plaintiff’s health
2

concerns and essentially made efforts to justify such failure or refusal by
assuring the plaintiff that he would eventually be sent out to undergo his
colonoscopy exam”. Id. “Dissatisfied with medical failure to act and or make
a consistent and complete record of the Plaintiff’s medical concerns,
prompted Plaintiff to initiate the institution’s administrative remedy process
against medical staff.” Id.
On January 12, 2016, Plaintiff filed the instant action in which he
requests “the court to determine whether its constitutionally permissible for
health care providers in a prison institution to receive notice of a medical
complaint filed by a prisoner asserting the following conditions: abdominal
pains, abnormal and or irregular bowel movement, dark red blood in stool,
excessive mucus discharge from rectum in absence of bowel movement,
black tarry stools, no bowel movement(s) after consuming moderate doses of
laxative, black colored stool(s), burning sensation and or pains in epidgastric
area. . .and essentially fails in its capacity”. Id.
Presently before the Court is Defendants’ motion to dismiss and, or in
the alternative, motion for summary judgment. (Doc. 12). The motion has
been fully briefed and is ripe for disposition. For the reasons that follow,
Defendant’s motion for summary judgment will be granted

3

II.

Standards of Review
A. Bivens Standard
Plaintiff’s claims are filed pursuant to 28 U.S.C. §1331, in accordance

with Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388, (1971). Under Bivens, the District Court has federal question
jurisdiction pursuant to 28 U.S.C. §1331 to entertain an action brought to
redress alleged federal constitutional or statutory violations by a federal actor.
Bivens, supra. Pursuant to Bivens, “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). A Bivens-style civil rights claim is the federal equivalent
of an action brought pursuant to 42 U.S.C. §1983 and the same legal
principles have been held to apply. See, Paton v. LaPrade, 524 F.2d 862, 871
(3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D.Pa. 1992);
Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D.Pa. 1992). In order
to state an actionable Bivens claim, a plaintiff must allege that a person has
deprived him of a federal right, and that the person who caused the
deprivation acted under color of federal law. See West v. Atkins, 487 U.S. 42,
48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D.Pa. 1992).
4

B. Motion to Dismiss
Defendant’s pending dispositive motion is supported by evidentiary
materials outside the pleadings. Federal Rule of Civil Procedure 12(d)
provides in part as follows:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleading are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56. All parties must be given reasonable opportunity to present all
the material that is pertinent to the motion.
Fed.R.Civ.P. 12(b)(d).
This Court will not exclude the evidentiary materials accompanying the
Defendant’s motion. Thus, the motion will be treated as solely seeking
summary judgment. See Latham v. United States, 306 Fed. Appx. 716, 718
(3d Cir. 2009) (when a motion to dismiss has been framed alternatively as a
motion for summary judgment such as in the present case, the alternative
filing “is sufficient to place the parties on notice that summary judgment might
be entered.”)
C. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a) “[t]he court shall grant
summary judgment if 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.”

5

Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[T]his standard provides that the 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 (1986).
A disputed fact is “material” if proof of its existence or nonexistence
would affect the outcome of the case under applicable substantive law.
Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070,
1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.
Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of
Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the
court must view the facts and all reasonable inferences in favor of the
nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.
Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v.
Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to
avoid summary judgment, however, parties may not rely on unsubstantiated

6

allegations. Parties seeking to establish that a fact is or is not genuinely
disputed must support such an assertion by “citing to particular parts of
materials in the record,” by showing that an adverse party’s factual assertion
lacks support from cited materials, or demonstrating that a factual assertion
is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1); see Celotex,
477 U.S. at 324 (requiring evidentiary support for factual assertions made in
response to summary judgment). The party opposing the motion “must do
more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
586 (1986). Parties must produce evidence to show the existence of every
element essential to its case that they bear the burden of proving at trial, for
“a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex, 477 U .S.
at 323; see Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). Failure
to properly support or contest an assertion of fact may result in the fact being
considered undisputed for the purpose of the motion, although a court may
also give parties an opportunity to properly provide support or opposition.
Fed.R.Civ.P. 56(e).

7

III.

Statement of Facts2
On October 16, 2014, Plaintiff reported to sick call, stating his

“hemorrhoids acting up” and “requests suppositories.” (Doc. 17-1 at 113,
Clinical Encounter). Defendant Fasciana ordered hydrocortisone Acetate
Suppositories for Plaintiff to address his complaint, and advised him to seek
out further medical assistance if his problem persisted. Id.
On December 30, 2014, Plaintiff was seen by Nurse Practitioner
Zimmerman, who recorded the following:
Inmate presents to sick call stating that he has had abnormal
bowel movements for a “lengthy period of time”. States when he
defecates he gets traces of blood and excessive mucus in his
stool. Sometimes only gets mucus as a discharge. Inmate shows
me toilet paper with both blood and mucus on this. Has not had

2

Middle District of Pennsylvania Local Rules of Court provide that in
addition to filing a brief in response to the moving party’s brief in support,
“[t]he papers opposing a motion for summary judgment shall included a
separate, short and concise statement of material facts responding to the
numbered paragraphs set forth in the statement [of material facts filed by the
moving party] ..., as to which it is contended that there exists a genuine issue
to be tried.” See M.D. Pa. LR 56. 1. The rule further states that the statement
of material facts required to be served by the moving party will be deemed to
be admitted unless controverted by the statement required to be served by
the opposing party. See id. Because Plaintiff has failed to file a separate
statement of material facts controverting the statement filed by Defendant, all
material facts set forth in Defendant’s statement (Doc. 17) will be deemed
admitted.

8

recent bloodwork. Denies any abdominal pain/distention. Has a
history of external hemorrhoids.
(Doc. 17-1 at 108, Bureau of Prisons Health Services Clinical Encounter). In
response to Plaintiff’s complaints, a Comprehensive Metabolic Profile, CBC
w/diff and Occult Blood x3 was ordered. Id.
On January 26, 2015, Plaintiff appeared for his blood work and a report
was issued on January 27, 2016. (Doc. 17-1 at 106, Blood Work Results).
On February 23, 2016, an Administrative Note was added to Plaintiff’s
medical file, stating the following:
I/M Beckton #55374-056 was given FOB cards X3 on 1-26-15. I/M
was instructed to return the FOB cards within one week. I/M
refused to complete the cards and return them.
(Doc. 17-1 at 102). Plaintiff was counseled that a refusal of treatment could
result in a “deterioration of your current health status which could cause
undetectable illness, increased illness and also your own death.” (Doc. 17-1
at 101, Medical Treatment Refusal).
On March 20, 2015, Plaintiff reported to sick call with the following
complaint:
Inmate reports to sick call with c/o “a shortage of blood circulation
in my legs”. Also states he gets headaches, dizzy spells and light
headedness when he bends forward to pick up something and his
legs go numb at the same time and this comes and goes. Has
been going on for “a long time”. Thinks he may have a pinched
9

nerve or clogged artery??
(Doc. 17-1 at 95, Clinical Encounter). Physician Assistant Seroski noted the
following:
Per chart review IM has hx of feigning an illness and non
compliance with medications as well as lab work, however he did
not refuse last lab work and WBC count was abnormal, therefore
I am ordering a repeat on CBC. If WBC still abnormal may
consider HIV testing or vitamin deficiency?? Exam normal today
which I discussed with him however he did not like that answer.
Encouraged OTC meds for headache. Will f/u after lab work if
abnormal otherwise RTC if worsens or changes.
Id.
Plaintiff’s repeat bloodwork was performed on April 9, 2015. (Doc. 17-1
at 92, Blood Work Results). An Administrative Note was entered into his file
on April 10, 2015, indicating that “WBC abnormal however improved from
previous lab, see lab reports.” (Doc. 17-1 at 91, Administrative Note).
On May 4, 2015, an Administrative Note was added to Plaintiff’s medical
record, noting that “per K. Lindsey, needs new order for occult cards.” (Doc.
17-1 at 89, Administrative Note). That same date, Plaintiff completed the
occult cards and testing was performed. (Doc. 17-1 at 86, Administrative
Note). The results showed positive for fecal occult blood. Id. Based on these
findings, it was determined that a colonoscopy was needed to further evaluate
the source of Plaintiff’s bleeding. (Doc. 17-1 at 79, Administrative Note).
10

On May 6, 2015, the physician assistant located on Plaintiff’s block was
notified of the need for a colonoscopy, and a consult for a colonoscopy was
put in place. (Doc. 17-1 at 72, Administrative Note). Also, on May 6, 2015, the
Utilization Review Committee reviewed and approved Plaintiff’s referral for a
colonoscopy. (Doc. 17-1 at 71, Utilization Review Committee Action).
On May 29, 2015, a medication reconciliation encounter was performed
on Plaintiff at the Special Housing Unit. (Doc. 17-1 at 69, Administrative
Note). Plaintiff’s prescription for stool softeners was renewed. Id.
On June 9, 2015, PA Seroski reported to Plaintiff’s SHU cell for a sick
call and noted the following:
Inmate reports to sick call on morning rounds. Hx of rectal
bleeding with BM. Stating “you people aren’t doing anything about
this – I care about my health – my people’s are going to call up
here if you don’t start doing something about this.”
(Doc. 17-1 at 67, Clinical Encounter). PA Seroski was concluded that:
Inmate has a positive OBT with approved colonoscopy ordered
and pending scheduling. When I try to reiterate this to him he
states, “You need to do something right now for this and medical
is not doing their job”. I once again verbalize that he needs to
await the colonoscopy and he becomes disruptive on the block by
screaming and yelling – at this time I terminated his sick call visit
and left the range.
Id.
On June 15, 2016, a Sick Call Note Encounter performed at Plaintiff’s
11

SHU cell indicates the following:
cop out given at sick call rounds, IM standing at cell door, NAD
reports “I noticed a growth forming around pelvis area, it looks like
a mole”
(Doc. 17-1 at 63, Clinical Encounter). Plaintiff was examined at his cell door
and it was determined that he had a “1cm benign nevus at midline,
suprapubic area, along waistline of boxer shorts” which was “well rounded, no
irregular borders, appears smooth” and “no other legions noted.” Id. Plaintiff
was assured it was a benign appearing mole, and to continue to observe,
following up if any changes should occur. Id. No further treatment was
indicated and it was noted that Plaintiff “made no mention of his chronic GI
complaints.” Id.
On June 29, 2015, a Sick Call Note Encounter performed at Plaintiff’s
SHU cell indicates the following:
Inmate reports to sick call c/o “rash”. Inmate can not tell me how
long it has been present just states, “I have been monitoring it
and I need to be seen.” When I try to collect hx he avoids my
question, however, does deny being itchy.
(Doc. 17-1 at 61, Clinical Encounter). It was determined that Plaintiff had
“multiple papules to bilateral with mild erythema” with “no abscess, pustules
or vesicles noted” or “papules to feet or in between web spaces” and “no
burrows noted.” Id. Plaintiff was advised that no antibiotic was needed at this
12

time, and that it should resolve on its own, but to return immediately if the
conditions worsens. Id.
On June 30, 2015, a Sick Call Note Encounter performed at Plaintiff’s
SHU cell indicates the following:
Inmate reports to sick call c/o “I got bit by a spider.” Tells me that
he notices a spot on his left thigh last night. Denies fever or
discharge. Hurts to touch.
(Doc. 17-1 at 59, Clinical Encounter). PA Seroski noted that Plaintiff’s left
thigh presented with “annular mild erythema the size of a quarter with central
pinpoint pustule”, with “no fluctuance noted” and no raised area or infection.
Id. Plaintiff was advised to apply warm compresses, monitor it and return is
it worsens. Id.
On July 2, 2015, a Sick Call Note Encounter performed at Plaintiff’s
SHU cell reveals the following:
IM standing at cell door during sick call rounds c/o “pissing blood”
does not offer any other description, denies flank pain or fever. No
N/V. Inmate has had various complaints over the last month. He
has pending colonoscopy for blood in the stool, he did not
mention any GI symptoms or symptoms of rash today. He also
says “can you check to see if pharmacy has something for me?,
for my stool?” – chart review revealed refill of stool softener which
was renewed via refill tab today.
(Doc. 17-1 at 57, Clinical Encounter). PA Jordan ordered a urine dipstick, and
recommended Plaintiff follow-up at sick call and chronic care clinic as needed.
13

Id. PA Jordan further noted the following: “will check UA, plan pending results”
and that “inmate has numerous varied complaints on a frequent basis with
poor history to detail” and “I am beginning to question the validity of his
complaints.” Id.
Plaintiff was seen again on July 7, 2015, with the Sick Call Note
Encounter revealing:
Inmate reports to sick call c/o “abdominal pain” which he states
has been going on for “a minute.” Tells me that he tried taking
Tums and Zantac years ago but that didn’t help so when his pain
started back up he didn’t bother trying either medication again.
Pain is located in the epigastric area and described as a burning
feeling which occurs right after eating. Tells me the only thing he
eats is fruits and vegetables and he never eats “unhealthy.” Per
commissary review he has purchased hot spicy ramen noodles,
snickers, and coffee. Denies vomiting or hematemesis. He has hx
of rectal bleeding with positive OBT and external hemorrhoids
currently being worked up with pending outside colonoscopy.
Denies family hx of colon cancer or weight loss.
(Doc. 17-1 at 54, Clinical Encounter). PA Seroski ordered bloodwork,
encouraged Plaintiff to use Zantac daily, avoid late night eating, spicy foods,
caffeine and citrus, as well as lay with head elevated at night instead of flat.
Id. Plaintiff was told to follow-up at sick call and chronic care as needed and
to immediately return to sick call if condition worsens. Id. Plaintiff’s blood work
was conducted on July 9, 2015. (Doc. 17-1 at 53, Lab Results).
On July 15, 2015, Plaintiff filed Administrative Remedy No. 828321,
14

claiming that he needs immediate medical treatment for blood in his stool.
(Doc. 17-1 at 12, Administrative Remedy Generalized Retrieval).
On July 22, 2015, Plaintiff was treated at Sick Call by PA Warnick, who
recorded the following:
Inmate stops me today to explain that he has had left chest pain
(points to epigastric area) for a long time and he tried ranitidine.
“They found out that didn’t work.” Now he is concerned that he
has to wait too long for a colonoscopy because he is bleeding in
the toilet and spits up blood sometimes. He states sometimes he
tries to have a bowel movement but only has mucous. He does
not admit to lower pain or cramping. He is concerned that he is
going to lose to much blood.
(Doc. 17-1 at 46, Clinical Encounter). PA Warnick assessed Plaintiff as a
“person with feared complaint in whom no diag made”, reporting his encounter
as follows:
I spent several minutes talking to the inmate at his cell. I let him
know he does not look anemic and when I stated that he probably
has had blood drawn, he got me the results which showed a slight
neutropenia, H/H perfect. I tried to make him feel better that he is
not losing so much blood that it reflects in his labs. He then turned
to the low WBC that he said he could have a serious infection in
his “ulcer”. I attempted to alleviate those fears to be met with the
MCHC. We were not making any positive progress, so I again let
him know that his H/H was not consistent with the degree of blood
loss he claims. He then stated he knows he will have to wait to
long to have the colonoscopy because he “is an inmate”. I
checked the EMR and he in fact has a pending colonoscopy.
Id.

15

On July 23, 2015, Plaintiff’s Administrative Remedy, No. 828321, was
denied. Id.
On July 28, 2015, Plaintiff requested a complete copy of his medical
records. (Doc. 17-1 at 44, Medical Records Request). On August 3, 2015,
Plaintiff’s complete medical record, consisting of 250 pages, was provided to
Plaintiff. Id.
On August 10, 2015, Plaintiff filed an appeal of Administrative Remedy
No. 828321 to the Northeast Regional Director. (Doc. 17-1 at 12,
Administrative Remedy Generalized Retrieval).
On August 13, 2015, Plaintiff underwent a colonoscopy at Evangelical
Community Hospital, Lewisburg, Pennsylvania. (Doc. 17-1 at 36, Operative
Report). The postoperative diagnosis was “some mild internal hemorrhoidal
disease with hypertrophy of the anal papilla” with “no other abnormalities
noted.” Id.
On August 14, 2015, Administrative Remedy No. 828321 was rejected
by the Regional Office for not being submitted in proper form, and Plaintiff
was given ten (10) days to resubmit his appeal. Id. There is no record that
Plaintiff filed any further appeal for Administrative Remedy No. 828321.
On August 25, 2015, Plaintiff requested a copy of his colonoscopy

16

report, which was supplied to him on August 31, 2015. (Doc. 17-1 at 35,
Request).
On October 23, 2015, during an evaluation encounter performed at the
SHU, Plaintiff was seen by Defendant Fasciana, and reported the following:
Routine sick call rounds at cell window. Asked if everything was
alright. Advised inmate that his recent colonoscopy revealed
internal hemorrhoids. Reference 06/09/2015 encounter. Inmate
then went on to state, “you are telling me that I have hemorrhoids.
I have the report. What’s today’s date? What time is it now? Who
sent you here?” Inmate voiced no medical concerns.
(Doc. 17-1 at 24, Clinical Encounter). Plaintiff was provided with the requested
information and the conversation was terminated. Id. Defendant Fasciana
noted that Beckton was alert and oriented and did not appear in any distress
during the visit. Id. Defendant Fasciana counseled Beckton on his plan of
care, advised him to seek sick call if his symptoms reoccurred, but noted that
there was “no evidence of learning” in Beckton. Id.
On November 10, 2015, Plaintiff filed Administrative Remedy No.
841802, claiming that he wants to be seen for bowel problems. (Doc. 17-1 at
13, Administrative Remedy Generalized Retrieval). On November 13, 2015,
Plaintiff’s grievance was denied. Id.
On December 10, 2015, Plaintiff was seen at sick call by Defendant
Fasciana. (Doc. 17-1 at 20, Clinical Encounter). Plaintiff complained of
17

“unable to generate regularity in my bowel movements.” Id. Defendant
Fasciana noted that Beckton was alert and oriented and did not appear in any
distress, and that because a colonoscopy and gastrointestinal (“GI”) workup
had recently been completed on Beckton and the results were negative, “no
further intervention was necessary.” Id. Defendant Fasciana counseled
Beckton on his plan of care, advised him to seek sick call if his symptoms
reoccurred, but again noted that Beckton showed “no evidence of learning.”
Id.
On December 14, 2015, Plaintiff filed an appeal of Administrative
Remedy No. 841802 to the Northeast Regional Director. (Doc. 17-1 at 13,
Administrative Remedy Generalized Retrieval). On December 16, 2015,
Administrative Remedy No. 841802 was rejected an untimely by the Regional
Office. Id. There is no record that Plaintiff filed any further appeal for
Administrative Remedy No. 841802.

IV.

Discussion
A. Exhaustion
Defendants contend that Beckton’s complaint should be dismissed for

his failure to exhaust available administrative. In pertinent part, the Prison

18

Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. §1997e(a).
Under the Prison Litigation Reform Act (“PLRA”), exhaustion of
administrative remedies is required for all actions concerning prison
conditions brought under federal law. See 42 U.S.C. §1997e(a); Woodford v.
Ngo, 548 U.S. 81 (2006). The “exhaustion requirement applies to all inmate
suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA “completely
precludes a futility exception to its mandatory exhaustion requirement.”
Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). The PLRA also mandates
that inmates “properly” exhaust administrative remedies before filing suit in
federal court. Woodford, 548 at 92. “Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.” Id. Failure to substantially comply
with procedural requirements of the applicable prison’s grievance system will
19

result in a procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 22732 (3d Cir. 2004).
A prisoner does not have to allege in his complaint that he has
exhausted administrative remedies. Ray v. Kertes, 285 F.3d 287 (3d Cir.
2002). Failure to exhaust available administrative remedies is an affirmative
defense. Id. As such, it must be pleaded and proven by the Defendants.
Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). Defendants have properly
raised the matter of exhaustion of administrative remedies made available to
inmates confined within the Bureau of Prisons (“BOP”).
“The Bureau of Prisons has established an Administrative Remedy
Procedure through which an inmate may seek formal review of a complaint
which relates to any aspect of his imprisonment if less formal procedures
have not resolved the matter. This procedure applies to all inmates confined
in Bureau of Prisons institutions. . . .” 28 C.F.R. §542.10. Inmates are to
informally present their complaints to the staff and the staff is to attempt to
resolve the matter. 28 C.F.R. §542.13(a). If informal resolution is
unsuccessful, the inmate is then to execute the appropriate form to bring the
matter to the attention of the warden. 28 C.F.R. §542.14(b). The warden is
then to respond to the inmate’s complaint within twenty (20) days. Id. at

20

§542.18. If an inmate is dissatisfied with the warden’s response, he may then
appeal to the Regional Director. Id. at §542.15. If the response of the
Regional Director is not satisfactory, the inmate may then appeal to the
Central Office of the Federal Bureau of Prisons, which office is the final
administrative appeal in the Bureau of Prisons. Id.
The record reveals that, although Plaintiff twice attempted to exhaust
administrative remedies with respect to the claims raised within, he failed to
appeal those remedies to final review. (See Doc. 17-1 at 9-14, Administrative
Remedy Generalized Retrieval).
With respect to Plaintiff’s Administrative Remedy No. 828321, although
rejected by the Regional Office for not being submitted in proper form, Plaintiff
was granted ten (10) days within which to correct the administrative deficiency
and resubmit his appeal to the Regional Office. There is no record evidence
demonstrating that Plaintiff corrected the deficiencies and resubmitted his
appeal. (See Doc. 17-1 at 9-14, Administrative Remedy Generalized
Retrieval). Thus, Plaintiff failed to complete the administrative remedy process
with respect to Administrative Remedy No. 828321.
On November 10, 2015, Plaintiff again attempted to exhaust his
administrative remedies with respect to his bowel issues, by filing

21

Administrative Remedy No. 841802. Id. Plaintiff, however, failed to bring a
timely appeal of the November 10, 2015 denial of Administrative Remedy No.
841802. Id. Thus, nothing in the record before this Court establishes that
Beckton pursued any administrative remedy to the Regional Director, nor the
Central Office. It is evident that Plaintiff failed to follow the procedural
requirements of the BOP. Failure to employ the system of administrative
remedies, even if the administrative process would be inadequate to grant full
relief, procedurally defaults any federal claim. See Spruill v. Gillis, 372 F.3d
218, 222-26 (3d Cir. 2004). Plaintiff’s failure to pursue the appropriate
administrative process with respect to his claims precludes the litigation of
such claims.
In Spruill, supra, our Court of Appeals held that congressional policy
objectives were best served by interpreting the statutory “exhaustion
requirement to include a procedural default component.” The court further
ruled that procedural default under §1997e(a) is governed by the applicable
prison grievance system, provided that the “prison grievance system’s
procedural requirements [are] not imposed in a way that offends the Federal
Constitution or the federal policy embodied in §1997e(a).” Id. at 231, 232.
In this case, the record clearly discloses that Beckton failed to exhaust

22

his administrative remedies with respect to his medical claim. Thus, Beckton
has sustained a procedural default with respect to these claims.
Spruill cited with approval the Seventh Circuit decision in Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Spruill, 372 F.3d at 231.
In Pozo, the Seventh Circuit ruled that “to exhaust remedies, a prisoner must
file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo, 286 F.3d at 1025 (emphasis added).
Beckton offers no evidence to justify his failure comply with BOP
requirements. Consequently, he is now foreclosed from litigating his
remaining claims in this Court.
In Spruill, the Third Circuit found that a procedural default component
to the exhaustion requirement served the following congressional objectives:
“(1) to return control of the inmate grievance process to prison administrators;
(2) to encourage development of administrative record, and perhaps
settlements, within the inmate grievance process; and (3) to reduce the
burden on the federal courts by erecting barriers to frivolous prisoner
lawsuits.” 372 F.3d at 230. In Pusey v. Belanger, No. Civ. 02-351, 2004 WL
2075472 at *2-3 (D. Del. Sept. 14, 2004), the court applied Spruill to dismiss
an inmate’s action for failure to timely pursue an administrative remedy over

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the inmate’s objection that he did not believe the administrative remedy
program operating in Delaware covered his grievance. In Berry v. Kerik, 366
F.3d 85, 86-88 (2d Cir. 2004), the court affirmed the dismissal of an inmate’s
action with prejudice where the inmate had failed to offer appropriate
justification for the failure to timely pursue administrative grievances. In Ross
v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004), the court
embraced the holding in Pozo, stating that “[a] prison procedure that is
procedurally barred and thus is unavailable to a prisoner is not thereby
considered exhausted.” These precedents support this Court’s decision to
enter judgment in favor of Defendants.
B. Eighth Amendment Medical Claim
In order 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
Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse
v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one
that has been diagnosed by a physician as requiring treatment, or one that is
so obvious that a layperson would recognize the need for a doctor’s attention.
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d

24

326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton infliction of
pain results as a consequence of denial or delay in the provision of adequate
medical care, the medical need is of the serious nature contemplated by the
eighth amendment.” Id.
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
(1994). Thus, a complaint that a physician or a medical department “has been
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). For instance, 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., 429 U.S. at 107. “[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). Further, a doctor’s disagreement with the
professional judgment of another doctor is not actionable under the Eighth

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Amendment. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). In
sum, negligence, unsuccessful medical treatment, or medical malpractice
does not give rise to a §1983 cause of action, and an inmate’s disagreement
with medical treatment is insufficient to establish deliberate indifference. See
Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993).
Further, a prison administrator cannot be found deliberately indifferent
under the Eighth Amendment because he or she fails to respond to the
medical complaints of an inmate being treated by a prison physician, or
because, as non-physicians, they defer to the medical judgment of the
inmate’s treating physicians. Id., 991 F.2d at 69. If, however, non-medical
prison personnel had “a reason to believe (or actual knowledge) that prison
doctors or their assistants are mistreating (or not treating) a prisoner,” liability
may be imposed. Spruill, 372 F.3d 236.
A mere difference of opinion between the prison’s medical staff and the
inmate regarding the diagnosis or treatment which the inmate receives does
not support a claim of cruel and unusual punishment. Farmer v. Carlson, 685
F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v. Jones, 562 F.2d 22,
24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (10th Cir. 1976).
Additionally, if there is a dispute over the adequacy of the received

26

treatment, courts have consistently been reluctant to second guess the
medical judgment of the attending physician. Little v. Lycoming County, 912
F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key
question is whether the defendant has provided the plaintiff with some type
of treatment, regardless of whether it is what the plaintiff desires. Farmer v.
Carlson, 685 F. Supp. at 1339.
The record before this Court demonstrates that Plaintiff received
medical attention, and that the attention Plaintiff received lacks the requisite
deliberate indifference to support a Section 1983 claim. Although the court
has concerns about the delay in time between the ordering of his colonoscopy
and its occurrence, its results support the defendants’ medical assessment
for which this court should not be in a position to second guess. The facts
remain that the plaintiff has been continually assessed, monitored and treated
since his first sick call visit on October 16, 2014.
At best, the record demonstrates Plaintiff’s disagreement with the type
and timeliness of the treatment rendered. However, his mere disagreement
with the course of action that the medical department took based on the
symptoms he presented, is not enough to state a §1983 claim. Sample v.
Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989) (citing Estelle, 429 U.S. at

27

105–06 (in the medical context, an inadvertent failure to provide adequate
medical care cannot be said to constitute an unnecessary and wanton
infliction of pain or to be repugnant to the conscience of mankind)). This is
particularly so in light of the fact that there are no facts of record that
demonstrate that any of the Defendants intentionally withheld medical
treatment from Plaintiff in order to inflict pain or harm upon Plaintiff. Farmer;
Rouse.
Even holding Plaintiff’s complaint to the less stringent pleading
standards of pro se plaintiffs, the allegations do not sufficiently allege
deliberate indifference. Plaintiff does not suggest that the institution’s medical
staff were aware that there was an excessive risk to his health or safety but
wantonly refused to provide him medical care. Spruill v. Gillis, 372 F.3d 218,
236 n. 12 (3d Cir. 2004) (stating that while a pro se complaint should be read
liberally, an inmate plaintiff must still allege that defendant was aware of the
risk and intentionally disregarded it). Thus, Plaintiff’s complaint amount to
nothing more than Plaintiff’s subjective disagreement with the treatment
decisions and medical judgment of the medical staff at the prison. At most,
the allegations in the complaint only rise to the level of mere negligence. As
simple negligence can not serve as a predicate to liability under §1983,

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Hudson v. Palmer, 468 U.S. 517 (1984), Plaintiff’s civil rights complaint fails
to articulate an arguable claim. See White, 897 F.2d at 108-110.
Moreover, to the extent that Plaintiff believes that he has been
misdiagnosed, mere misdiagnosis or negligent treatment is not actionable as
an Eighth Amendment claim because medical malpractice is not a
constitutional violation. Estelle, 429 U.S. at 106. Indeed, prison authorities are
accorded considerable latitude in the diagnosis and treatment of prisoners.
Durmer, 991 F.2d at 67. Once again, “mere disagreements over medical
judgment” do not rise to the level of an Eighth Amendment violation. White,
897 F.2d at 110.
Thus, the Plaintiff has failed to present evidence from which a
reasonable jury could conclude that the Defendants Francis and Brown
possessed the culpable mental state necessary for Eighth Amendment liability
to attach. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Monmouth County
Correctional Institution Inmates v. Lanzaro, 834 F.2d at 346; West v. Keve,
571 F.2d at 161. Indeed, the extent and quality of medical attention that the
was provided to Plaintiff precludes a finding of deliberate indifference.
C. Preliminary Injunction
Plaintiff seeks preliminary and declaratory injunctive relief, “declaring

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that [he] has a constitutional right to be free from assault” and that he has
“declared that [his] safety is being threatened by staff deliberately housing
[him] with inmates whom staff are aware have a violent history of inmate
assaults, and that [he] no longer wishes to be housed with the inmate whom
[he is] currently in the cell with nor under the conditions that [he] have to fight
him in order to be rehoused with an inmate who is programing.” (Doc. 11, brief
in support).
Preliminary injunctive relief is extraordinary in nature and should issue
in only limited circumstances. See American Tel. and Tel. Co. V. Winback and
Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994), cert. denied,
514 US. 1103 (1995). Moreover, issuance of such relief is at the discretion of
the trial judge. Orson, Inc. v. Miramax Film, Corp., 836 F. Supp. 309, 311
(E.D. Pa. 1993). In determining whether to grant a motion seeking preliminary
injunctive relief, courts in the Third Circuit consider the following four factors:
(1)
(2)
(3)
(4)

likelihood of success on the merits;
irreparable harm resulting from a denial of relief;
the harm to the non-moving party if relief is granted;
and
the public interest.

United States v. Bell, Civ. No. 1:CV-01-2159, 2003 WL 102610, *2 (M.D. Pa.
January 10, 2003)(internal citations omitted). It is the moving party that bears

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the burden of satisfying these factors. Id.
Additionally, there must be “a relationship between the injury claimed in
the party’s motion and the conduct asserted in the complaint.” Little v. Jones
, 607 F.3d 1245, 1251 (10th Cir. 2010); see also Adams v. Freedom Forge
Corp., 204 F.3d 475, 489-90 (3d Cir. 2000) (affirming denial of injunction
where plaintiffs’ harm was “insufficiently related to the complaint and [did] not
deserve the benefits of protective measures that a preliminary injunction
affords”).
As the Third Circuit made clear in Ball v. Famiglio, 396 F. App’x. 836,
837-38 (3d. Cir. 2010), a plaintiff fails to meet the requirements for injunctive
relief when the individuals whose conduct he hopes to enjoin are not named
as defendants in the action and the relief sought is completely unrelated to
the allegations in the complaint. Moreover, as this Court noted in . Kates v.
Bledsoe, 2012 WL 6721069 at *2 (M.D. Pa. 2012), no preliminary injunction
should ever be granted on grounds not raised in the complaint since there is
– by the very absence of the issue in the complaint – no likelihood of success
on the merits.
Based on Plaintiff’s failure to prevail on the merits of the instant civil
rights action and the fact that Plaintiff’s motions for injunctive relief bear no

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relation to the complaint or the defendants named therein, Plaintiff’s motion
for preliminary injunction (Doc. 12) and motion for declaratory judgment (Doc.
23) will be denied.

V.

Conclusion
Based upon the undisputed facts of record, Defendants Francis and

Brown are entitled to summary judgment with respect to Plaintiff’s Eighth
Amendment medical claim and Plaintiff’s motions for injunctive relief will be
denied. An appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: March 21, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0051-01.wpd

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