Zoukis v. Wilson et al
Filing
36
MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 07/02/2015. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Christopher H. Zoukis,
Plaintiff,
I:14cvl041 (LMB/IDD)
V.
Eric D. Wilson, ^
Defendants.
MEMORANDUM OPINION
Christopher Zoukis, a federal inmate confined in Virginia and proceeding pro
has filed
this action pursuant to Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics. 403
U.S. 388 (1971) and the Rehabilitation Act, 29 U.S.C. § 791
s^ In this action, he alleges that
the defendants, Eric D. Wilson, Warden ofFCI Petersburg ("Petersburg"); Charles E. Samuels, Jr.,
Director of the Federal Bureau of Prisons ("BOP"); Dr. Corine Hill, former Petersburg
psychologist;Dr. Amy Boncher,formerchief psychologistat Petersburg; Dr. Katherine Layboum,
medical director at Petersburg; Harrell Watts, BOP National Appeals Coordinator; and
Christopher Eichenlaub, BOP Mid-Atlantic Regional Director, have violated his rights by failing
to provide adequate treatment for his Attention Deficit and Hyperactivity Disorder ("ADHD").
Each defendant is sued in his or her official and individual capacity.
On February 13,2015, defendants filed a Motionto Dismissand for Summary Judgment,
accompanied by a supporting memorandum and exhibits. S^ Dkt. Nos. 22,23. After being
given the opportunity to file responsivematerials in accordancewith Roseboro v. Garrison. 528
F.2d309 (4th Cir. 1997) and Local Rule 7(K), plaintifffiled a response on May 15,2015. Dkt.
No. 31. Defendants filed a reply on May 28,2015. Dkt. No. 34. Plaintiff has also filed a
"Motion to Stay Ruling and for Order AllowingPrisonerto Prisoner Communication," in which he
appears to askfor an extension of time to file a sur-reply to thedefendant's reply. Forthe reasons
that follow, defendants' Motion to Dismiss and Motion for Summary Judgment will be granted,
and plaintiffs Motion will be denied.
I. Background
Plaintiffs complaint centers on the BOP's failure to prescribe him medication for his
ADHD. The BOP maintains a list of medications that medical practitioners can routinely
prescribe to inmates without further approval. This list is known as the '"National Formulary."
See Memorandum of Law in Support of Defendants' Motion to Dismiss and for Summary
Judgment ("Defs.' Mem.") [Dkt. 23], Ex. 4 (Lewis Decl.) 12. Inmates may be prescribed
medications that are not on the National Formulary after a medical practitioner obtains approval
from the institution's pharmacist, the facility's clinical director, the regional pharmacist, and
finally the BOP's chief psychiatrist or medical director. S^ 1413. The National Formulary
also provides a list of pre-requisites for each specific non-formulary drug. Id. K4. Drugs used
for treatment of ADHD, such asAdderall and Strattera,^ are non-formulary drugs due to their
highly addictive properties. Id f 5. As pre-requisites for obtaining approval of these drugs, a
medical practitioner must certify and submit written evidence that (1) a prisoner has attempted to
manage his symptoms with counseling and coping mechanisms for six months with no success,
and (2) a prisoner has tried "noradrenergic re-uptake inhibitor" medication for six weeks with no
success. S^ Defs.' Mem., Ex. 5, at unnumbered page 4.
Plaintiff is confined to Petersburg serving a 151-month sentence after being convicted in
2008 of possession of child pomography. ^
Am. Compl. [Dkt. No. 2]
11-12; United States
V. Zoukis> No. 1:07-cr-91, Dkt. No. 20 (W.D.N.C. Sept. 28,2008). While incarcerated at
Petersburg, plaintiff has written two books, completed his paralegal degree, and authored several
internet blogs. S^ Defs.' Mem., at 22. Before his incarceration, plaintiff suffered from
^Plaintiffstates that Adderall isa "sthnulant" and Strattera isa "non-stimulant." S^ Am.
Compl. H25.
ADHD and received various forms oftreatment, including medication and therapy, with varying
degrees of success. See Am. Compl.
documented his struggles and treatment.
14,19-25. His Pre-Sentence Report extensively
Plaintiffs Replyto Defendants' Motionto Dismiss
and for Summary Judgment ("PL's Reply") [Dkt. 31], Ex. 1 (Zoukis Aff.) HI 5-7.
When plaintiff arrived at Petersburg, he was receiving only 40 mg of fluoxetine (Prozac)
daily, Motrin, and vitamins. See Defs.' Mem., Ex. 1[Dkt. 23-1], atunnumbered page 1.^ In
response to a questionnaireregarding medical treatment, plaintiff listed "depression and anxiety"
as his only previous mental illnesses. Id at 4. BOP medical staffthus continued his fluoxetine
prescription, id at 7,11
Plaintiff contmued taking his fluoxetine until January 12,2009, when
he volxmtarily stopped taking the medication. Id at 29 (showing plaintiffs signature on a refusal
of medical treatment form).
On February 25,2009, plaintiff reported feeling "irritable" without any medication, so Dr.
Rice wrote plaintiffa prescription for 25 mg ofsertraline, a different anti-depressant. Id. at 31-33.
On April 8,2009, plaintiffreturned to Dr. Rice and requested a higher dosage ofthe sertraline. Id
at 34. After Rice doubled the dosage, plaintiffreported that the medication "was working well for
him," and that he was able to focus on his various activities, such as obtaining his paralegal degree.
Id at 38.
Plaintiff apparently discontinued his sertraline approximately six months later. Id. at 43.
On April 29,2010, he informed another medical staff member that he wanted to re-start taking
medication due to "occasional anxiety attack[s]." Id Plaintiffwas prescribed 5 mg ofbuspirone
twice daily. Id at 44. Plaintiff did not report any complaints with this medication. S^ Defs.'
^ Defendant's Exhibit 1consists ofplaintiff's medical records. The pages have not been
separatelynumbered. Accordingly, all pages cited refer to the unnumberedpage.
^ At Petersburg, psychologists are licensed to provide only behavioral therapy. They cannot
prescribe medication. ^
Defs.' Mem., Ex. 8 (Hill Aff) Ht 1, 8.
Mem., Ex. 1cont. [Dkt. 23-6], atECF page 3."^ He stopped taking this medication during June
and July of 2010. Id at 7. In response to questions from medical staff, plaintiff stated that he
understoodthe risks of stoppingthe medicationand agreed to start again in the future if he found it
necessary. Id. at 7-9.
Plaintiff voluntarily remained medication-free through at least May of 2012, and did not
report any problems to medical staff that would require medication. See id. at 14 (at a June 1,
2011 appointment, plaintiff was "not on any medications"); 18 ("not on any medications" at a
November 22,2011 appointment); 20 ("not taking medication about a year" on February 28,
2012); 25 (on May 21,2012, doctor notes "he used to take meds for depression and has stopped
meds for a long time."). Plaintiff met with psychology staff for various routine appointments
between 2008 and 2012, and also reported no problems. See, e.g.. Defs.' Mem., Ex. 2, at
unnumbered pages 6-8.^ Between February 22,2012 and June 26,2012, plaintiffreceived
monthly psychological assessments during his time in disciplinary segregation. During each
assessment, psychology staff reported him to be mentally healthy. Id. at 9-13.
In July of 2013, plaintiff requested to meet with a psychologist. On July 30,2013, he met
with Dr. Corine Hill, and indicated that, due to his ADHD, he was having trouble concentrating on
his studies in his housing unit. Id. at 14. At this appointment, he stated that "he had recently met
with Health Services and had been informed that he needed to meet with psychological services in
order to see about obtaining medication for ADHD." Id He requested medication to help him
with his previously-diagnosed ADHD symptoms.^ Id During her conversation with plaintiff.
^ Exhibit 1is presented in two parts. Citations to the second part are to the ECF pages.
^ Exhibit 2consists ofplaintiffs psychology records. This exhibit is also not separately
paginated, so all page numbers are to unnumbered pages.
^Dr. Hill's notes indicate that plaintiffasked for a"stimulant" medication. Plaintiffcontends
thathedidnotaskfor a stimulant specifically, butasked forany type ofmedication to help treat his
ADHD. See, e^, PL's Reply, Ex. 119. This dispute offact is immaterial, as the BOP treats all
ADHD medications identically for purposes of prescription.
however. Dr. Hill concluded that plaintiff did not seem to be suffering from acute ADHD at the
time. She came to this conclusion based on five factors: (1) plaintiff did not appear to have any
"difficulties with his thought process or motor activity;" (2) plaintiff had no trouble remembering
both recent and more remote events; (3) plaintiff had no difficulty concentrating or paying
attention during the session; (4) plaintiff did not indicate that he had trouble focusing on any
aspects ofdaily life other than studying; and (5) plaintiffhad written down everything he wanted to
discuss on a note pad. ^
Defs.' Mem., Ex. 8 ^ 5. Based on these observations, as well as the
fact that plaintiffs medical records contained no mention of recent struggles with ADHD, Hill
concluded that plaintiff "did not have ADHD, or... if he did have ADHD, he had developed
coping skills toeffectively manage it." Id H6.' Accordingly, she discussed additional coping
mechanisms with plaintiffto help him continue to effectively deal with his symptoms.^ Id. ^ 7:
Defs.' Mem., Ex. 2, at 14. Plaintiff was not receptive to these ideas, and "made clear that he felt
stimulant medications were the only thing that could help." Defs.' Mem., Ex. 8 f 8. Hill told
plaintiffthat, although she was unable to prescribe medication, he could return to her ifhe required
additional psychological counseling. Id
8-9.
On August 2,2013, after meeting with Hill, plaintiff filed a BP-8 administrative remedy
request challenging Petersburg's "refusal to treat [his] previously-diagnosed [ADHD] and
"anxiety disorder condition." He stated that these conditions had caused him "great distress and
hardship," leading to "days when [he] feel[s] as though [he] can barely function." Defs.' Mem.,
Ex. 3, at unnumbered page 2. On August 14,2013, plaintiffs unit counselor responded to
plaintiffs request. She informed plaintiff that she had spoken to Dr. Amy Boncher, the head of
^Indeed, the only reference to plaintiffs ADHD in his medical records from his time at
Petersburg is a February28,2012 note from a mid-level practitioner noting that plaintiff had a
history "ofADD without taking medication since he was 11 [years old]." Defs.' Mem, Ex. 1
cont, at 20.
^The use ofthese coping mechanisms, without success, is also apre-requisite to the
prescription of any medication for ADHD. See Defs.' Mem., Ex. 5, at unnumbered page 4.
Petersburg's psychology department. Bonchertold plaintiffs counselorthat she had reviewed
Hill's notes, that she agreed with Hill's findings, and that plaintiffneeded to meet many additional
criteria before being prescribed any ADHD medication. Id at unnumbered page 3; Defs. Mem.,
Ex. 7 (Boncher Aff.) 13. Plaintiff appealed his counselor's response to Warden Wilson on
August 15,2013. Wilson upheld the decision and encouraged plaintiff to speak with medical
staff regarding any request for medication. Defs.' Mem., Ex. 3 at unnumbered pages 4-6.
On September 17,2013, plaintiff appealed the Warden's response to the BOP's Regional
Office. Id. at unnumbered pages 7-8. Defendant Eichenlaub, BOP's Regional Director, denied
plaintiffs appeal on November 15,2013, finding that plaintiffs treatment had been adequate. Id
at unnumbered page 10. Eichenlaub informed plaintiff that, if he wished to "re-start medication
therapy," he should "send an electronic request to medical staff." Id After receiving this
message, plaintiff emailed Dr. Hill - not medical staff- requesting additional types of treatment
for his ADHD on November 20,2013. Defs.' Mem., Ex. 8110; Ex. B. Hill then decided that
"there could be some value in administering a series of tests to [plaintiff]... While these tests on
their own would not indicate the presence or absence of ADHD, they could indicate patterns to
confirm the findings that [Hill] had akeady made from [her] review of [plaintiffs] records and the
July 30 session." Id 111. Hill hoped that these tests, once completed,"might provide additional
evidence to persuade [plaintiff] that the typesof coping skills [shehad] earliersuggested were
worth employing, if only as a trial methodology." Id 112.
Hill emailed plaintiff on December 9, 2013, and told him that he would be scheduled for
testing.
id Ex. B. Forunknown reasons, this testing was nevercompleted. Plaintiffdid not
inquire again as to receiving medical tests, and did notcontact Hill again for any other reason.
See id.t115-17.
II. Motion to Dismiss
A. Standard of Review
6
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),a
court must presumethat all factual allegations in the complaint are true, and must draw all
reasonable inferences in the plaintiffs favor.
See, e.g.. Burbach BroadcastingCo. of Del, v.
Elkins Radio Corp.. 278 F.3d 401,406 (4th Cir. 2002). Therefore, a court may not dismiss a
complaint if the plaintiff pleads any plausible set of facts that would entitle him to relief See,
e.g.. Conlev v. Gibson. 355 U.S. 41,45-46 (1957). A claim has plausibility ifthe plaintiffalleges
sufficient facts by which a court could reasonably infer the defendant's liability. Ashcroft v.
labal. 556 U.S. 662,678 (2009 (citing Bell Atlantic v. Twomblv. 550 U.S. 544, 556 (2007)). To
meet this standard, however, the plaintiff must do more than simply allege "threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements
" Id (citing
Twomblv. 550 U.S. at 555)). Thus, the plaintiff must allege facts that show more than a "mere
possibility of misconduct" by the defendant. Id. at 679.
B. Individual Caoacitv Claims Against Wilson. Samuels. Watts. Eichenlaub. Watts
To state a Bivens claim against a defendant, a plaintiff must show that "each
government-official defendant, through [his] own actions, has violated the Constitution." Iqbal.
556 U.S. at 676. Thus, to be liable, a defendant must have played a personal role in the
complained-ofaction. See, e.g.. Danser v. Stansberrv. 772 F.3d 340,349 (4th Cir. 2014) (internal
citations omitted). A supervisory official cannot be held liable on the basis ofrespondeat superior
or the mere denial of an administrative grievance; he must also play a personal role in the
complained-of action. S^ id (citing Iqbal. 556 U.S. at 676).
On its face, plaintiffs complaint establishes that Samuels, Wilson, Watts, Layboum, and
Eichenlaub had no personal involvement in the complained-of actions. Plamtiff makes no
specific allegations againstSamuels, Watts, or Layboum. Noneof these three individuals played
any role in plaintiffs medical or psychological treatment. Accordingly, plaintiff has failed to
state a claim against these defendants, and theclaims against them must bedismissed. Similarly,
7
plaintiffallegesonly that Wilsonand Eichenlaub responded to his grievances regarding his ADHD
treatment. As this Court has repeatedly held, a defendant's response to an administrative
grievance is insufficientto hold that defendantpersonally liable.
Arnold v. Wilson. No.
1:13cv900,2014 WL 7345755, at *8 (E. D. Va. Dec. 23,2014) (citing Alder v. Corr.Med. Servs..
73 F. App'x 839, 841 (6th Cir. 2003)). Accordingly, the claims against Wilson and Eichenlaub
must also be dismissed, leaving Drs. Hill and Boncher as the only remaining defendants in this
civil action.
III. Summary Judgment
A. Standard of Review
Summary judgment shall be granted ifthe evidence on file "shows that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). The moving party bears the burden ofproving that judgment on the pleadings is
appropriate.
Celotex Corp. v. Catrett. 477 U.S. 317,323 (1986) (movmg party bears the
burden ofpersuasion on all relevant issues). To meet that burden, the moving party must
demonstrate that no genuine issues ofmaterial fact are present for resolution. Id at 322. Once a
moving party has met its burden to show that it is entitled to judgment as a matter of law, the
burden shifts to the nonmoving party to point out the specific facts which create disputed factual
issues. S^ Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248 (1986).
In evaluating a motion for summary judgment, a district court should consider the evidence
in the light most favorable to the nonmoving party, and draw all reasonable inferences from the
facts in favor of that party. United States v. Diebold. Inc.. 369 U.S. 654,655 (1962). Material
facts are those facts for which the movingparty bears the burden ofproof. "[T]he substantivelaw
will identify which facts are material. Only disputes over facts which might affect the outcomeof
the suit under the governing law will properlyprecludethe entry of summary judgment."
Anderson. 477 U.S. at 248. Disputes over facts that do not ultimately affect a party's burdenof
8
proof on an element of a claim will not defeat a motion for summaryjudgment. An issue of
material fact is genuine when, "the evidence ... create[s] [a] fair doubt; wholly speculative
assertions will not suffice." Ross v. Commc'ns Satellite Corp.. 759 F.2d 355,364 (4th Cir. 1985).
Thus, summaryjudgment is appropriate only where no material facts are genuinely disputed and
the evidence as a whole could not lead a rational fact finder to rule for the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574,587 (1986).
The nonmovmgparty may not defeat a properly-supported summaryjudgment motion by
simply substituting the "conclusory allegations ofthe complaint or answer with conclusory
allegations of an affidavit."
Luian v. Nat'l Wildlife Fed'n. 497 U.S. 871, 888 (1990).
Even
where the nonmoving party is a pro se prisoner whose pleadings are entitled to liberal
construction, a "declaration under oath... is not enough to defeat a motion for summary
judgment.
[The plaintiff] has to provide a basis for his statement. To hold otherwise would
render motions for summary judgment a nullity."
Campbell-El v. Dist. of Columbia. 874 F.
Supp. 403,406-07 (D.D.C. 1994).
B. Official Capacity Eighth Amendment Claims
1. Lesal Standard
To prove that a deprivation of medical care violates the Eighth Amendment's prohibition
of cruel and unusual punishment, a plaintiff "must allege acts or omissions sufficiently harmful
to evidence deliberate indifference to serious medical needs."
106 (1976).
Estelle v. Gamble. 429 U.S. 97,
Because "[t]he Constitution... does not mandate comfortable prisons," "only
those deprivations denying the minimal civilized measures of life's necessities are sufficiently
grave to form the basis of an Eighth Amendment violation."
Wilson v. Seiter. 501 U.S. 294,
298 (1991) (internal citations and quotation marks omitted). Therefore, to prove that prison
officials acted with deliberate indifference to a serious medical need, a plaintiffmustprove both
that officials deprived[him] of an objectively serious medical need, and that the officials acted
9
with a subjectively culpable stateof mind. See, e.g.. De'Lontav. Angelone, 330 F.3d 630,634
(4th Cir. 2003). Officialsonly act with a sufficiently culpablestate of mind if they display
"deliberate indifference ... by either actual intent or reckless disregard." Miltier v. Beom. 896
F.2d 848,851 (4th Cir. 1990), overruled in part on other groundsbv Farmer v. Brennan. 511
U.S. 825 (1994).
In other words, a plaintiff must show that defendant's actions were "[s]o
grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness." Miltier. 896 F.2d at 851 (citations omitted). To act with deliberate
indifference, a defendant must have actual knowledge ofthe potential risk of harm to an inmate;
the mere fact that the defendant should have known of the risk is not sufficient to constitute
deliberate indifference. See, e.g.. Young v. Citv of Mt. Ranier. 238 F.3d 567, 575-76 (4th Cir.
2001); Gravson v. Peed. 195 F.3d 692,695 (4th Cir. 1999) ("Deliberate mdifference is a very high
standard - a showing of mere negligence will not meet it."). Accordingly, neither a claim of
medical malpractice nor a disagreement between the inmate and the prison about the proper way
to treat a medical condition amounts to a violation of the Eighth Amendment.
See, e.g.. Wright
V. Collins. 766 F.2d 841, 849 (4th Cir. 1985).
2. Analysis
The evidence shows that the defendants did not show deliberate indifference to plaintiffs
serious medical needs. Assuming without deciding that plaintiffs ADHD constitutes a serious
medical need, the evidence shows that Drs. Hill and Boncher provided adequate treatment for
that need.
Plaintiff states that the defendants contest his assertion that he suffers from a serious
medical need. This conclusion is incorrect. The defendants do not deny that, before being
incarcerated at Petersburg, plaintiff suffered fi-om ADHD. Defendants have shown, however,
there is no evidence that, before plaintiffs 2012 visit with Dr. Hill, any of the defendants had
any knowledge that plaintiffs ADHD sjonptoms were causing him distress. From 2006
10
throughhis visit with Dr. Hill, plaintiffaskedonly for medication to treat his anxiety and
depression; he did not alert anyone at Petersburg that he was suffering from ADHD symptoms.
To act with deliberate indifference, a defendant must intentionally disregard a known risk of
serious harm. Medical officials are deliberately indifferent only if they "actually... recognize[]
that [their] actions [are] msufficient" to protect plaintifffrom a risk ofharm. Parrish ex rel. Lee v.
Cleveland. 372 F.3d 294, 303 (4th Cir. 2004) (citing Brown v. Harris. 240 F.3d 383, 390-91 (4th
Cir. 2001)). Absent such actual knowledge that a plaintiff is at risk of serious harm, there is no
Eighth Amendment violation. See, e.g.. Rich v. Bruce. 129 F.3d 336, 340 (4th Cir. 1997).
In addition, it is clear that, even assuming that plaintiff suffered from a serious medical
need, Petersburg officials provided plaintiff with sufficient medical treatment based on the
information available to them at the time. Multiple medical professionals provided plaintiff with
several different types of antidepressants, including fluoxetine, sertraline, and busiprone, during
his time at Petersburg. Plaintiff met with mental health staff on a regular basis, and Dr. Hill
attempted to provide him with treatment for his ADHD when he raised his concerns.
Specifically, she educated him about coping skills and methods oftreatment other than
medication. When plaintiff continued to complain of his ADHD symptoms, she even offered to
schedule plaintiff for testing. Despite plaintiffs statements to the contrary, the fact that he never
received this testing is not evidence of deliberate indifference. Dr. Hill believed that the testing
was not necessary to his treatment; indeed, she believed that he was already coping well with his
ADHD and that any testing would have been an additional treatment option, beyond what she
believed plaintiffrequired. As this decision was motivated by her professional judgment, it is not
appropriate for the Court to second guess her decision. See, e.g.. Neal v. Stanford. No.
7:10cvl63, 2010 WL 1727464, at *2 (W.D. Va. Apr. 28,2010) (internal citations omitted) ("The
nurse, based on her medical expertise or on consultation with someone else in the medical unit,
decided that missing one dose did not present any significant risk to Neal's health. The court
11
cannot second guess such medicaljudgments."). And, as Hill's treatment had already exceeded
that which was constitutionally necessary, plaintiffnot receiving the specific tests ordered does not
violate the Eighth Amendment.
Plaintiffs argument essentially consists of a disagreement with Petersburg officials about
his preferred method of ADHD treatment. Such an argument does not implicate the Eighth
Amendment. ^
Wright. 766 F.2d at 849. Although plaintiff alleges that the defendants
provided him with "no treatment," PL's Reply, at 6, the evidence shows that the defendants did, in
fact, provide him with adequate treatment. The mere fact that he was unable to receive the
treatment of his choice does not render the defendants' conduct unconstitutional.
Hudson v.
McMillian. 503 U.S. 1, 9 (1992)
Plaintiffs own submissions support this conclusion. In response to the defendants'
Motion for Summary Judgment, plaintiff has provided only conclusory statements that the
defendants provided inadequate treatment for his long-standing ADHD, supported only by
quotations from his Pre-Sentence Report. These statements are insufficient to survive a Motion
for Sunmiary Judgment, as the defendantsdo not dispute that plaintiff had, prior to his
incarceration, a diagnosis of ADHD. When plaintiff presented his diagnosis to defendants,
however. Dr. Hill concluded that he was coping well with his condition. Indeed, plaintiff was
able to write two books while incarcerated, earned his paralegal degree, and kept a prolific prison
blog on the Internet. These accomplishments belie his contentionthat his ADHD is debilitating
and unbearable. Although he has legal experience and legal knowledge, plaintiff has not
provided any evidence to dispute the defendants' evidence; therefore, he has not met his burden of
showing that his claimsamount to something more than a mere disagreement over his medical
care. Defendants' Motionfor Summary Judgment musttherefore be granted.
C. Qualified Immunitv on Individual Caoacitv Claims
12
Defendants Hill and Boncher, to the extent that they can be held liable in their personal
capacity, also argue that, even ifthey did violate plaintiffs Eighth Amendmentrights, they are
entitled to qualified immunity. Under the qualified immunity doctrine, defendants performing
discretionary functions and sued in their individual capacity "are shielded from liability for civil
damages insofar as their conduct does not violate clearly established constitutional rights ofwhich
a reasonable person would have known." Harlow v. Fitzgerald. 457 U.S. 800, 818 (1982). A
court considering a qualified immunity defense must make two inquiries: (1) whether the facts,
when viewed in the light most favorable to the plaintiff, establish that the defendants committed a
constitutional violation; and (2) whether such a right was clearly established at the time of the
defendant's conduct. Saucier v. Katz. 533 U.S. 194,201 (2001). A court does not need to
address these inquiries in any particular order, and a defendant is entitled to qualified immunity if
the court resolves either element in favor ofthe defendant. Pearson v. Callahan. 555 U.S. 223,
225 (2009).
The evidence shows that the defendants did not violate plaintiffs Eighth Amendment
rights. Even ifthey had, however, it is clear that they did not violate any of plaintiff's "clearly
established" rights. The threshold inquiry for determining whether a right was clearly established
at the time ofthe defendants' conduct is whether "the contours ofthe right [were] sufficiently clear
that a reasonable official would understand that what he is doing violates that right." Anderson v.
Creighton. 483 U.S. 635,640 (1987). Specifically,ifindividuals could reasonably disagree about
whether a particular action was unconstitutional, a defendant is entitled to qualified immunity.
See, e.g.. Mallev v. Briggs. 475 U.S. 225, 341 (1986). This is so because qualified immunity
"ensures that [defendants] are liable only for transgressing bright lines," not for making "bad
guesses in grayareas." Maciariello v. Sunmer. 973 F.2d295,298 (4th Cir. 1992) (citing
Anderson. 483U.S. at635). Determining whether a particular right is clearly established requires
a contextual andparticularized examination of the application of the constitutional provision to the
13
specificfactsin issue. See,e.g.. Brosseauv. Haugen. 543 U.S. 194,200 (2004); Saucier. 533 U.S.
at 202.
The Eighth Amendment requires defendants to provide adequate medical care to
incarcerated plaintiffs. See, e.g.. Wilson. 501 U.S. at 106. The Eighth Amendment does not
require defendants to provide prisoners with the medical care of their choice, nor does it require
officials to give inmates "unqualified access to health care". Hudson. 503 U.S. at 9. As
described above, the evidence shows that, faced with plaintiffs specific symptoms, as well as BOP
policy limiting the prescription of ADHD medication, Dr. Hill provided plamtiff with
constitutionally adequate medical care. She examined plaintiff, spoke with him, and even offered
to provide him with testing. As these activities went beyond the minimum required by the
Constitution and were consistent with BOP policy, they did not violate any clearly established
right. Hill is therefore entitled to qualified immunity.
To the extent that Boncher can be found to have played any personal role in plaintiffs
treatment, she is also entitled to qualified immunity. When considering plaintiffs BP-8, she
reviewed Hill's treatment ofplaintiff, examined plaintiffs medical records, and concluded that he
had received adequate treatment. These actions were consistent with her role as a supervisor, and
were well within the bounds of the Constitution. Accordingly, she did not violate any "clearly
established" right, and she is also entitled to qualified immunity.
IV. Rehabilitatioii Act
Plaintiff also alleges that the defendants discriminated against him on the basis of his
disability, in violation ofthe Rehabilitation Act, Pub. L. No. 93-112,87 Stat. 355,29 U.S.C. § 791
^
The Rehabilitation Act provides that "[n]o otherwise qualified individual with a
disability... shall, solely by reason of his or her disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under anyprogram or activity receiving
Federal financial assistance or anyprogram or activity conducted by any Executive Agency
14
"
29 U.S.C. § 794(a). Becauseplaintiffhas failed to exhausthis admmistrative remedies for this
claim, it must be dismissed.
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought
with respectto prison conditions... or any other Federal law, by a prisoner confinedin any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997e(a). The U.S. Supreme Court has explicitly stated that 'the
[§ 1997e(a)] exhaustion requirement requires proper exhaustion." Woodford v. Ngo. 548 U.S.
81,93 (2006). "Proper" exhaustion requires "'using all the steps that the agency holds out and
doing so ... so that the agency addresses the issues on the merits.'" Id at 90 (quoting Pozo v.
McCaughtrv. 286 F.3d 1022,1024 (7th Cir. 2002X cert, denied. 537 U.S. 949 (2002)).
Exhaustion of administrative remedies before filing any action challenging prison conditions is
therefore mandatory, even if the exhaustion process cannot provide prisoner with the relief he
seeks. See, e.g.. Booth v. Chumer. 532 U.S. 731,741 n.6 (2001); Woodford. 548 U.S. at 86.
Lawsuits subject to this requirement involve actions challenging any aspect ofprison life,
"whether they involve general circumstances or particular episodes," and thus include actions
raising Rehabilitation Act claims. Porter v. Nussle. 534 U.S. 516, 532 (2002); see also Halev v.
Havnes. No. CV210-122,2012 WL 112946, at *1 (S.D. Ga. Jan. 12,2012) ("[T]he very language
of 42 U.S.C. § 1997e(a)requires a prisoner to exhaust all available administrative remedies before
he can bring a cause of action pursuant to... [any Federal law], which would include the
[Rehabilitation Act].").
Additionally, courts have foimd that, before filing any action challenging prison
conditions, an inmate must exhaust all remedies, even those "external" to the prison system.
William G. v. Pataki. No, 03 Civ. 8331 (RCC), 2005 WL1949509, at *4 (S.D.N.Y Aug. 12,2005).
"External" remedies include internal DOJ administrative processes, even ifthe administrative
remedy process would not be mandated for non-incarcerated individuals. S^ Trevino v.
15
WoodburvCntv. Jail. No. C14-4051-MWB, 2015 WL 2254931, at *6 n.5, appealed. No. 15-2179
(8th Cir. May 29,2015) (internal citations omitted) ("While exhaustion ofthe DOJ remedy is not a
prerequisite to a private right of action for non-prisoners under the [Americans With Disabilities
Act], the PLRA imposes such an exhaustion requirement on prisoners.")
Here, it is undisputed that plaintiff exhausted his remedies within the BOP; however, he
did not exhaust his administrative remedies under the Department of Justice's ("DOJ's")
regulations pertaining to claims of discrimination, 28 C.F.R. § 39.170. These regulations govern
the administrative process surrounding "allegations of discrimination on the basis of handicap in
programs or activities conducted by the agency." 28 C.F.R. § 39.170(a). The process involves a
multi-layered review of a plaintiffs initial complaint, including an attempt at informal resolution
and an administrative hearing, if necessary. Sqq id. §§ 39.170(d)-(k). Although the process
itself is not mandatory under DOJ policy, s^ id § 39.170(d)(1) (any person aggrieved "may file a
complaint"), it "give[s] corrections officials the opportunity to address claims that they are not
complying with the... Rehabilitation Act before being forced to litigate the matter in federal
court," William G.. 2005 WL 1949509, at *5. As the PLRA was passed for this very purpose - to
give prison officials a chance to review clauns before the filing of a lawsuit - the process is
mandatory for prisoners under the PLRA. Porter. 534 U.S. at 523.
Because plaintiff did not exhaust his remedies under DOJ's administrative process, he has
not exhausted his Rehabilitation Act claim. This claim accordingly must be dismissed.
V. Motion to Stay
On June 29,2015, plaintiff filed a "Motion to Stay Ruling and for Order Allowing Prisoner
to Prisoner Communication." Dkt. No. 35. In this motion, plaintiff states that he intends to file a
sur-replyto the defendant's recently-filed reply memorandum, disputing the defendants' "clahn
that Plaintiffhas notdemonstrated that hesuffers from a *
Serious Medical Need.'" Mot. to Stay If
2. This request must be denied, for severalreasons. First, as discussed above, the defendants
16
have not disputed that plaintiffs ADHD constitutesa serious medical need. Defendants also do
not dispute that, at some point in the past, plaintiff suffered from ADHD. The defendants have
shown only that, to the extent that plaintiff currently suffers from ADHD, they had no knowledge
of his current symptoms. Any attempt to present evidence ofplaintiffs past ADHD is therefore
irrelevant to this action.^ Second, to the extent that plaintiff requests an extension oftime to
submit a sur-reply, he is not entitled to such an extension. Local Rule 7(F)(1) states that, after
service of a moving party's brief, the opposition's response, and the moving party's rebuttal, "no
ftirther briefs or written communications may be filed without first obtaining leave of court."
Accordingly, plaintiffis not entitled to file a reply to the defendants' response. He is therefore not
entitled to an extension of time to do so.
Plaintiff states that, in his sur-reply, he "intends to supply the supplemental affidavit of...
a former BOP official in order to clarify the importance ofthe Pre-Sentence Report in all aspects of
BOP dealing with inmates
" Mot. to Stay
3. He states that he has been delayed in filing
his sur-reply due to his inability to communicate with another federal inmate at another federal
facility. Id. K4. Although he does not explain why communication with this inmate is
necessary, he states that he "has attempted to obtain the permission of BOP administration in order
to communicate with [the inmate]," but has been denied. Id. T[ 4. He now requests that the Court
"issue an order requiring the Defendantsto allow communication between Plaintiff and [the
inmate] for the purposes of obtaining the supplemental affidavit." Id Plaintiffalso requests that
this Court enter an Order stayingthis case until he is able to complete his reply.
To the extent plaintiff wishes this Court to order the BOP to take a specific action, his
request is denied. The BOP has the right to exerciseits discretion in the day-to-day maintenance
^ Even ifthe defendants had contested the fact that plaintiffsuffers from aserious medical
need, the evidence shows that they did not act with deliberate indifference to that need.
Accordingly, plaintiffs contention is not relevant to the outcome of this action.
17
of its facilities, and this Court will not interfere with that discretion, absent extraordinary
circumstances. In addition, as discussed above, plaintiff's request to include additional
information regarding his Pre-Sentence Report would be irrelevant to this action. Therefore, his
request for an extension of time to obtain an affidavit from a former BOP official must be denied.
Plaintiff last states that he "is currently drafting discovery relevant to the disputed issues of
material fact. The discoverable issues that Plaintiff intends to probe include... the Defendants
[sic] use of the Pre-Sentence Report..., the communication between Psychological Services and
Health Services relating to the Plaintiffs ADHD diagnosis and treatment (or lack thereof), and the
Defendants' continual referral to a statement never made by Plaintiff- that he was seeking
'stimulant medication.'" Mot. to Stay f 5. For reasons stated in this Opinion, none of these
issues are relevant to the issues remaining in this action. Accordingly, plaintiffs Motion must be
denied.
VI. Conclusion
For the foregoing reasons, plaintiffs Motion to Stay Ruling and for Order Allowing
Prisoner to Prisoner Communication is denied. Defendants' Motion for Summary Judgment vsdll
be granted. An appropriate Judgment and Order shall issue.
Entered this
A
day of
2015.
fsf
Leonie M. Brinkema
United States District Judge
Alexandria, Virginia
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