McBee v. Wilson
Filing
41
MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 9/1/17. (Mailed copy to Plaintiff).(jtho, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
RUSSELL LEE McBEE,
Plaintiff,
V.
Civil Action No. 3:16CV160
ERIC WILSON,
a/:,
Defendants.
MEMORANDUM OPINION
Russell Lee McBee, a federal inmate proceeding pro se and informa pauperis, filed this
Bivens^ action. In his Complaint, McBee raises the following claims for relief:
Claim One:
Defendants Layboum and Dicocco^ were deliberately indifferent to
McBee's medical condition, in violation of the Eighth Amendment,^ by
failing to ensure that McBee received a total knee replacement after a
specialist recommended that McBee receive one. (Compl. 5-7, ECF
No. 4; ECF No. 4-1, at 3-10.)^
Claim Two:
Defendants Wilson and Caraway^ violated McBee's rights under the
Eighth Amendment by overlooking McBee's need for a total knee
replacement when considering McBee's administrative remedy requests.
(ECF No. 4-1, at 6-7, 10-13.)
McBee seeks $247,544.00 in damages as well as injunctive relief. (Compl. at 8.)
' Bivens v. Six Unknown Named Agents ofFed. Bureau ofNarcotics, 403 U.S. 388 (1971).
^Dr. Katherine Layboume is the Medical Administrator at FCI Petersburg. (Compl. 2.) Dr.
Mark Diccoco is the Clinical Director at FCI Petersburg. {Id.)
^"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." U.S. Const, amend. VIII.
^ The Court employs the pagination assigned to the Complaint by the CM/ECF docketing
system.
^Eric Wilson is the Warden ofFCI Petersburg. (Compl. 1.) J.F. Caraway is a Regional Director
for the Bureau of Prisons ("BOP"). (Id. at 3.)
This matter is before the Court on Defendants' Motion to Dismiss (ECF No. 24) or in the
alternative Motion for Summary Judgment (ECF No. 25). McBee has responded. (ECF No. 29.)
Defendants have filed a Reply.
(ECF No. 30.)
For the reasons stated below. Defendants'
Motion for Summary Judgment will be GRANTED.
I.
STANDARD FOR SUMMARY JUDGMENT
Summary judgment must be rendered "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." Fed.
R. Civ. P. 56(a). The party seeking summary judgment bears the responsibility of informing the
Court of the basis for the motion and identifying the parts of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, All U.S. 317, 323
(1986). "[WJhere the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation
marks omitted). When the motion is properly supported, the nonmoving party must go beyond
the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id.
(quoting former Fed. R. Civ. P. 56(c), (e) (1986)). In reviewing a summary judgment motion,
the Court "must draw all justifiable inferences in favor of the nonmoving party." United States
V. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty
Lobby, Inc., All U.S. 242, 255 (1986)). However, a mere '''scintilla of evidence'" will not
preclude summary judgment. Anderson, All U.S. at 251 (quoting Improvement Co. v. Munson,
81 U.S. (14 Wall.) 442, 448 (1872)). "'[T]here is a preliminary question for the judge, not
whether there is literally no evidence, but whether there is any upon which a jury could properly
proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.'" Id.
(quoting Munson, 81 U.S. at 448). Additionally, '"Rule 56 does not impose upon the district
court a duty to sift through the record in search of evidence to support a party's opposition to
summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v.
Tenmco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The
court need consider only the cited materials
").
In support of their Motion for Summary Judgment, Defendants submitted:
(1) a
declaration from Chantay Stanley, a Paralegal Specialist for the BOP (Mem. Supp. Mot. Summ.
J. Ex. 1 ("Stanley Decl."), ECF No. 26-1); (2) copies of the BOP's records regarding the
computation of McBee's sentence {id. Attach. 1, ECF No. 26-1, at 5-9); (3) copies of McBee's
grievance material {id. Attachs. 2-5, ECF No. 26-1, at 10-18); (4) Defendant Dicocco's
declaration {id. Ex. 2 ("Dicocco Decl."), ECF No. 26-2); (5) Defendant Layboum's declaration
{id. Ex. 3 ("Layboum Decl."), ECF No. 26-3); (6) copies of McBee's medical records (Dicocco
Decl. Attachs. 1-9, ECF No. 26-2, at 7-38; Layboum Decl. Attachs. 1-6, ECF No. 26-3, at 6-
27); and (7) a copy of the BOP's Clinical Practice Guidelines, Evaluation and Management of
Osteoarthritis of the Hip and Knee ("BOP Clinical Guidelines," Mem. Supp. Mot. Summ. J. Ex.
4, ECF No. 26-4).
At this stage, the Court is tasked with assessing whether McBee "has proffered sufficient
proof, in the form of admissible evidence, that could carry the burden of proof of his claim at
trial." Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis added). As a
general rule, a non-movant must respond to a motion for summary judgment with affidavits or
other verified evidence. Ce/o/ex Corp., 477 U.S. at 324. In response, McBee submits: (1) his
own "Sworn Statement" (ECF No. 29); and, (2) his own "Sworn Affidavit" (ECF No. 32).
Furthermore, the facts offered by affidavit must be in the form of admissible evidence.
See Fed. R. Civ. P. 56(c). In this regard, the statement in the affidavit or sworn statement "must
be made on personal knowledge . . . and show that the affiant is competent to testify on the
matters stated." Fed. R. Civ. P. 56(c)(4). Summary judgment affidavits must also "set out facts
that would be admissible in evidence." Id Therefore, "summary judgment affidavits cannot be
conclusory or based upon hearsay." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962
(4th Cir. 1996) (citing Rohrbough v. Wyeih Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990); see
also Md. Highways Contractors Ass 'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)).
In his Sworn Statement and Sworn Affidavit, McBee makes a number of statements that
are of no value in assessing the propriety of summary judgment. The majority of McBee's
statements are either conclusory*^ or simply disagree with arguments made by Defendants.'
McBee's conclusory assertions will not be considered in evaluating the Motion for Summary
Judgment. Moreover, McBee failed to swear to the contents of his Complaint under penalty of
perjury. The Complaint thus fails to constitute admissible evidence. United States v. While, 366
F.3d 291, 300 (4th Cir. 2004). Furthermore, with respect to McBee's Sworn Statement, the
Court previously warned McBee that "the Court will not consider as evidence in opposition to
any motion for summary judgment a memorandum of law and facts that is sworn to under
penalty of perjury." (ECF No. 13, at 2.) Because McBee's Sworn Statement is essentially his
^ For example, McBee states that "[m]edical staff knew or should have known that the knee
condition was getting wors[e], and then informed [McBee] of the need for a future possibility of
a total knee surgery." (Sworn Statement 4, ECF No. 29.) Such a statement is a mere conclusion,
and McBee is not competent to testify about what medical staff knew or should have known.
' For example, in response to Defendants' Motion for Summary Judgment, McBee contends that
he has no other option to lose weight but to starve himself because "the ability to exercise at this
point is nearly impossible." (Sworn Statement 1, ECFNo. 29; see Sworn Aff 2, ECF No. 32.)
memorandum opposing the Motion for Summary Judgment, the Court will not consider it as
evidence.
In light of the foregoing principles and submissions, the following facts are established
for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in
favor of McBee.
II.
A.
RELEVANT FACTS
Facts Regarding the BOP's Guidelines for Surgical Procedures
Within the BOP, "[w]hen a medical provider submits a request for an inmate to see a
specialty medical provider outsider the correctional facility, such as an orthopedic surgeon, the
request generally goes before the institution's Utilization Review Committee ('URC') for
approval." (Dicocco Decl. ^ 7.) The URC is responsible for "review[ing] each consultation
request, and determin[ing] whether the consultation [is] appropriate and thus approved, or
whether the request should be reviewed at a later date, or denied." {Id.) The URC consists of
"several institution staff members including the Clinical Director, Health Services Administrator,
Assistant Health Services Administrator, Associate Warden, Physicians, and institution
scheduling staff." {Id.)
When a medical provider requests that an inmate receive an elective procedure, such as
hip or knee replacement surgery, the request is not reviewed by the URC. {Id. t 8.) Rather, the
request goes to the regional office that oversees that institution. {Id.) "Such requests from FCC
Petersburg go to the Mid-Atlantic Region and are reviewed initially by regional medical staff,
typically regional nurses, to determine whether the necessary criteria are met." {Id.) Often,
these requests are then "forwarded for a secondary review by the Regional Medical Director."
{Id.) "Neither [Defendant Dicocco], any medical officer at FCC Petersburg, Warden Wilson, nor
Regional Director Caraway are in any way involved in this decision." {Id.)
The BOP has also established guidelines for the evaluation and management of
osteoarthritis in the hip and knee. {See BOP Clinical Guidelines, ECF No. 26-4.) Pursuant to
these guidelines, "[o]perative intervention (e.g., with total joint arthroplasty) is considered
elective in most cases and is reserved for end-stage disease that fails to respond to nonsurgical
Q
interventions." {Id. at 9.) To qualify for knee or hip replacement surgery, an inmate must meet
certain requirements. (Dicocco Decl. t 6.) "One such criterion is the patient's weight and body
mass index ('BMI'), which are considered to rule out a high risk of cardiovascularcomplications
that could adversely affect the procedure." {Id.-, see Layboum Decl. ^ 6.) The BOP's guidelines
state:
Weight loss should be recommended for patients with BMI > 25. Even
modest amounts of weight loss may slow progression of the disease, reduce pain,
and improve the functional status of the patient. In the case of surgical patients,
obesity increases the risk for post-operative infection and venous
thromboembolism/pulmonary embolism, as well as makes surgery technically
more difficult. Inmates with a BMI > 35 will be expected to lose sufficient
weight to reduce their BMI to < 35. Inmates with a BMI > 30, but still < 35, will
beexpected to demonstrate some weight loss and reasonable weight loss efforts—
including a reduction of the high-calorie, low-nutrition food items purchased at
the commissary.
Exceptions to these criteria may be made on a case-by-case basis, as
clinically indicated. When a BOP dietician is not available at the local institution,
tele-dietician consultation will be made available for inmates who need
specialized counseling in support of their weight loss efforts.
(BOP Clinical Guidelines, at 7 (capitalization corrected), ECF No. 26-4.)
A
The Court utilizes the pagination assigned to this document by the CM/ECF docketing system.
B.
Facts Regarding McBee's Medical Care
McBee arrived at FCI Petersburg on September 24, 2014. (Dicocco Decl. ^ 1.) At FCI
Petersburg, "McBee's medical care is coordinated by a primary medical team, and his primary
care provider is a Mid-Level Practitioner ('MLP')." {Id. ^ 4; see Layboum Decl. ^ 4.)
On October 30, 2014, MLP Luis Negron requested that McBee see an orthopedist for
chronic knee pain. (ECF No. 26-2, at 8.) MLP Negron noted that "injections and prednisone
have not help[ed]/x-rays show moderate [degenerative joint disease]." (Id.) MLP Negron also
noted that Plaintiff had been prescribed Amitriptyline, Amlodipine, Aspirin, Atenolol,
Benztropine,
Colestipol,
Doxycycline
Monohydrate,
Hydrocholorothiazide,
Lisinopril,
Metformin, Niacin, Oxcarbazepine, Prednisone, Pregabalin, Terazosin, and Ziprasidone for his
various medical conditions, including his knee pain. {Id.)
McBee saw MLP Negron again on November 6, 2014, to obtain refills of his medication.
{Id. at 11.) At that time, McBee weighed 270 pounds. {Id.) McBee noted that he experienced
some relief with Pregabalin. {Id.) MLP Negron provided counseling concerning, inter alia,
McBee's diet. {Id. at 12.)
On November 19, 2014, McBee saw MLP Negron for complaints of right knee
discomfort. {Id. at 15.) McBee stated that he had experienced such discomfort for several years,
but that it had gotten worse over the "past week." {Id.) McBee told MLP Negron that an
injection he had received "the other day help[ed]." (Id.) MLP Negron noted that X-rays taken
on October 20, 2014 showed moderate degenerative joint disease and that McBee had been
placed on the orthopedics list for a follow-up. {Id.) MLP Negron assessed chronic knee pain
and prescribed Acetaminophen. {Id. at 16.) He also gave McBee a Toradol injection and
provided further counseling regarding McBee's diet. {Id.)
In December of 2014, McBee "had a consuhation with a contractor for the Agency
regarding the pain he was experiencing in his right knee." (Dicocco Decl. 15 (citation omitted);
see Layboum Decl. ^5.) This contractor "recommended that Mr. McBee receive a total right
knee replacement due to degenerative joint disease." (Dicocco Decl. f 5; Layboum Decl. ^ 5;
see ECF No. 26-3, at 7.) McBee requested that the BOP conduct the total knee replacement.
(Dicocco Decl. ^ 9.) At the time of the request, McBee's BMl was over 35. {ld.\ Layboum
Decl. H7.)
McBee's request "was reviewed at the Regional level by a URC of regional nursing staff
members and then by the Regional Medical Director." (Dicocco Decl. f 9.) On December 23,
2014, McBee's request for a total right knee replacement was disapproved. {ld. \ ECF No. 26-2,
at 18.) The request was denied because of McBee's high BMI and "the cardiovascular risks
inherent to his weight." (Dicocco Decl. ^ 9.) Defendants were not involved in the denial of the
request. (Dicocco Decl. ^ 9: Layboum Decl. ^ 7.)
On Febmary 19, 2015, McBee saw Defendant Dicocco for complaints of right knee pain
"with evidence of moderate arthritis." (ECF No. 26-2, at 20.) At that time, McBee weighed
284.2 pounds. (Id at 21.) Defendant Dicocco stressed that McBee needed to lose weight, and
that he would not receive a "knee replacement or further radiologic evaluations unless he loses
weight to a BMI of less than or equal to 30 (around 230 pounds)." (Id. at 22.)
On June 17, 2015, MLP Negron requested that McBee seek an orthopedist for evaluation
concerning Synvisc injections. (ECF No. 26-3, at 11-12.) MLP Negron noted that McBee's
request for a total right knee replacement had not been approved because McBee did not meet
the BOP's criteria. (Id. at 11.) He further indicated that McBee had been advised to lose weight
and exercise. {Id.) MLP Negron noted that at that time, McBee had been prescribed sixteen
medications for his various medical conditions, including knee pain. {Id.)
McBee saw the orthopedist on August 7, 2015.
{Id. at 15-16.)
The orthopedist
concluded that McBee had severe degenerative joint disease in his right knee.
{Id. at 15.)
McBee was given a second Synvisc injection. {Id.) The orthopedist recommended that McBee
continue to use a wheelchair and receive another Synvisc injection. {Id.)
McBee saw the orthopedist again on October 2, 2015. {Id. at 16.) McBee indicated that
he had experienced no response to the Synvisc injection. {Id.) McBee was given another
Synvisc injection, and the orthopedist recommended a total right knee replacement. {Id.)
At some point in October of 2015, McBee submitted another request to undergo a total
knee replacement. (Dicocco Decl. ^11.) At the time of this request, McBee's BMl was
approximately 39. {Id.) Again, McBee's "request was sent to the Mid-Atlantic Region for
review and was reviewed by the regional URC of nursing staff and reviewed secondarily by the
Regional Medical Director." {Id.) On October 13, 2015, McBee's request was deferred, with a
note that his weight should be checked. (ECF No. 26—2, at 31.) Again, Defendants did not
review this request. (Dicocco Decl. H11.) McBee "was informed that weight loss was required
for the surgery to be safe given the high risk for negative side effects of surgery in obese
patients." (Layboum Decl. ^ 9 (citation omitted).) "He was counseled on the need to eat healthy
and exercise in order to lose weight and become eligible for the surgery, including that he
attempt to use a stationary bicycle." {Id. (citation omitted).)
On February 26, 2016, McBee had a follow-up appointment with Frank Koch for
nutrition education for weight management. (ECF No. 26-2, at 37.) Mr. Koch provided
education to McBee, "including recommendations for mainline and commissary" food selections
to help manage his diet. {Id.) He estimated McBee's nutritional needs to be "2025 kcals (25/kg),
and 65 gm protein (0.8 gm/kg)." {Id.) Mr. Koch noted that the "[m]ainline offerings [were]
appropriate [to meet McBee's] needs." {Id.) He reviewed "normal portion sizes and servings
suggested/day, choosing a healthy diet at mainline (for weight/DM/cardiac purposes), benefits of
exercise for weight control and the effect on metabolism" with McBee. {Id.)
He noted that
McBee's commissary records were "poor in quality with many items of concern noted
(sugar/carbohydrates and some high-[sodium] items)." {Id. at 38.) Mr. Koch "strongly urged
[McBee] to choose appropriately at mainline and make commissary changes (decrease amount
and change choices)." {Id.) McBee verbalized his understanding and stated that he would make
the suggested changes. {Id.) McBee also "[v]erbalize[d] desire to lose weight to improve [his]
knee problem." {Id.)
On April 27, 2016, Family Nurse Practitioner ("FNP") K. Crossley requested that McBee
see the orthopedist for an assessment and a Synvisc injection. (ECF No. 26-2, at 33-34.) FNP
Crossley noted that at that time, McBee had been prescribed sixteen medications for his various
medical conditions, including knee pain. {Id.)
McBee saw the orthopedist on May 13, 2016. {Id. at 34.) McBee told the orthopedist
thathe had difficulty walking and that he was unable to exercise because of the pain in his knees.
{Id.) The orthopedist discussed weight reduction with McBee. {Id.) The orthopedist also noted
that McBee would benefit from a total knee replacement. {Id. at 35.)
On October 13, 2016, McBee saw Defendant Layboum for his diabetes, mental health,
and complaints of pain in his right knee. (ECF No. 26-3, at 20.) Defendant Layboum discussed
weight loss with McBee and noted that McBee would need to lose 20 pounds to meet the BOP's
criteria for a total right knee replacement. {Id.) At that time, McBee weighed 290 pounds. {Id.
10
at 21.) Defendant Laybourn also renewed McBee's prescriptions. {Id. at 22-24.) She also
provided counseling concerning, inter alia, McBee's diet. {Id. at 25.)
"FCC Petersburg medical staff have continued to treat Mr. McBee through the present
time at FCC Petersburg." (Dicocco Decl. ^ 12.) McBee "has been treated continuously for his
knee pain, including, but not limited to, receiving Synvisc injections to his knee in order to
alleviate the pain and discomfort." {Id. : see Laybourn Decl. ^ 10.) "To date, Mr. McBee has not
reduced his weight such that he would be eligible for the [knee replacement] surgery." (Dicocco
Decl. ^ 12.) "If Mr. McBee were to lose weight and meet the BMI requirements of the Agency's
Clinical Practice Guidelines, his eligibility for the total knee replacement would be
reconsidered." (Laybourn Decl. H11.)
C.
Facts Regarding McBee's Use of the Grievance Procedure
On December 15, 2014, McBee submitted a Request for Administrative Remedy,
complaining that medical staff at FCI Petersburg had denied him a necessary total knee
replacement. (ECF No. 26-1, at 11-12.) On December 31, 2014, Defendant Wilson responded,
stating that McBee had "been provided medical care and treatment consistent with Bureau and
community standards." {Id. at 14.)
McBee appealed Defendant Wilson's response to the BOP's Mid-Atlantic Regional
Office. (Stanley Decl. f 6.) On February 9, 2015, Defendant Caraway responded, stating:
Your medical plan of care, developed and implemented by your primary
care provider team, is adequate and complete.
Your condition has been
sufficiently addressed and prescribed medication and treatment is appropriate.
You are encouraged to continue to work with your primary care provider team for
other health care related issues and concerns.
(ECF No. 26-1, at 16.)
11
McBee appealed Defendant Caraway's response to the BOP's Central Office. (Stanley
Decl. ^ 7.) On October 31, 2016, Ian Connors, the Administrator of National Inmate Appeals,
concurred with the previous responses, noting that McBee had "received medical care and
treatment in accordance with evidence based standard of care and within the scope of services of
the Federal Bureau of Prisons." (ECF No. 26-1, at 18.)
III.
ANALYSIS
To survive a motion for summary judgment on an Eighth Amendment claim, McBee
must demonstrate that Defendants acted with deliberate indifference to his serious medical
needs. See Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001). A medical need is '"serious" if it
"'has been diagnosed by a physician a& mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor's attention.'" Iko v. Shrew, 535
F.3d 225, 241 (4th Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.
1999)). For purposes of this matter, Defendants acknowledge that"McBee's knee condition may
be considered serious." (Mem. Supp. Mot. Summ. J. 9.)
The subjective prong of a deliberate indifference claim requires the plaintiff to
demonstrate that a particular defendant actually knew of and disregarded a substantial risk of
serious harm to his person. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). "Deliberate
indifference is a very high standard—a showing of mere negligence will not meet it." Grayson
V. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 105-06
(1976)).
[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official 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.
12
Farmer, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial
risk of harm is not enough. The prison official must also draw the inference between those
general facts and the specific risk of harm confronting the inmate." Johnson v. Quinones, 145
F.3d 164, 168 (4th Cir. 1998) (citing Farmer, 511 U.S. at 837). Thus, to survive a motion for
summary judgment under the deliberate indifference standard, a plaintiff "must show that the
official in question subjectively recognized a substantial risk of harm. . . . [and] that the official
in question subjectively recognized that his actions were 'inappropriate in light of that risk.'"
Parrish ex rel. Lee i'. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (quoting Rich v. Bruce, 129
F.3d 336, 340 n.2 (4th Cir. 1997)).
In evaluating a prisoner's complaint regarding medical care, the Court is mindful that,
"society does not expect that prisoners will have unqualified access to health care" or to the
medical treatment of their choosing. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Eslelle,
429 U.S. at 103-04). Absent exceptional circumstances, an inmate's disagreement with medical
personnel with respect to a course of treatment is insufficient to state a cognizable constitutional
claim. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (citing Gittlemacker v. Prasse,
428 F.2d 1,6 (3d Cir. 1970)).
A.
Claim One—Defendants Laybourn and Dicocco
In Claim One, McBee contends that Defendants Laybourn and Dicocco violated his
Eighth Amendment rights by failing toensure that McBee received a total knee replacement after
a specialist recommended that McBee receive one. (Compl. 5-7.) For example, McBee claims
that Defendant Laybourn "disregarded the findings and recommendations" of the specialist who
advised that McBee should undergo a total knee replacement. (ECF No. 4-1, at 3.) He argues
that Defendant Laybourn "[f]ail[ed] to provide treatment" and "should have conveyed to Bureau
13
of Prisons administrative staff that the BMI necessity should be waived as [McBee] could not
come into compliance." {Id. at 5.) McBee also suggests that Defendant Dicocco failed to carry
out the specialist's recommendation. {Id. at 8.) As discussed below, McBee fails to demonstrate
that Defendants subjectively recognized a serious risk of harm to McBee and chose to ignore that
risk.
At the outset, McBee's claim against Defendants Layboum and Dicocco fails for lack of
personal involvement. "Because vicarious liability is inapplicable to Bivens .. . suits, a plaintiff
must plead that each Government-official defendant, through the official's own individual
actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see Trulock
V. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (noting that liability in a civil rights case is
"personal, based upon each defendant's own constitutional violations"). "To survive summary
judgment, a plaintiff claiming a violation of [Bivens] must produce evidence that the defendant
knew of a deprivation and 'approved it, turned a blind eye to it, failed to remedy it, or in some
way personally participated.'" Oakley v. Cowan, 187 F. App'x 635, 638 (7th Cir. 2006) (some
internal quotation marks omitted) (quoting Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.
2006)). "Absent direct participation, there must at least be a showing that the defendants
'acquiesced in some demonstrable way' in the alleged violation." Id. (quoting Palmer v. Marion
Cty., 327 F.3d 588, 594 (7th Cir. 2003)).
Here, the record before the Court establishes that Defendants Layboum and Dicocco had
no involvement in the denial and deferral of McBee's requests for a total knee replacement.
Both of McBee's requests were reviewed at the regional level by a URC and then by the
Regional Medical Director. (Dicocco Decl. H9; ECF No. 26-2, at 31; ECF No. 26-3, at 9.)
14
Neither Defendant Layboum nor Defendant Dicocco was involved in these decisions.^ (Dicocco
Decl.
9, 11; Layboum Decl. ^ 7.) For this reason alone, McBee's claim against Defendants
Layboum and Dicocco lacks merit. See Ward v. Deboo, No. 1:11CV68, 2012 WL 2359440, at
*4 (N.D. W. Va. Jan. 18, 2012) (concluding that plaintiff had not provided any evidence that
defendant warden was involved in the denials of his requests for medical or surgical procedures),
R&R adopted by 2012 WL 2359435 (N.D. W. Va. June 20, 2012), affd, 482 F. App'x 852 (4th
Cir. 2012); Smdly v. Wilson, No. 08-cv-506-slc, 2009 WL 1587221, at *1 (W.D. Wis. June 5,
2009) (determining that certain defendants were entitled to summary judgment because they had
no involvement in deciding whetherplaintiffshould receive surgery for his finger).
Moreover, the record refutes any claim that McBee may make that Defendants Layboum
and Dicocco failed to provide him care for his knee issues.
On the contrary, the record
establishes that McBee received a great deal of medical care for his knee issues. As noted above,
on October 30, 2014, MLP Negron requested that McBee see an orthopedist for his chronic knee
pain. (ECF No. 26-2, at 8.) On November 19, 2014, MLP Negron prescribed Acetaminophen
and gave McBee a Toradol injection for his knee pain. {Id. at 16.) In December of 2014, the
orthopedist "recommended that Mr. McBee receive a total right knee replacement due to
degenerative joint disease." (Dicocco Decl. ^ 5; see Layboum Decl. H5; ECF No. 26-3, at 7.)
McBee's request for a right knee replacement was denied by the regional URC, however,
because of McBee's high BMI and "the cardiovascular risks inherent to his weight." (Dicocco
Decl. H9; jee ECF No. 26-4, at 7.)
Subsequently, both Defendants Dicocco and Layboum counseled McBee about the need
for him to lose weight in order to meet the BOP's criteria for a total right knee replacement.
Indeed, none of the Defendants determined whether McBee would receive knee replacement
surgery.
15
(ECF No. 26-2, at 22, 24; ECF No. 26-3, at 20; Layboum Decl. \ 9.) Instead of losing weight,
however, McBee continued to gain weight. {Compare ECF No. 26-2, at 11 (noting that McBee
weighed 270 pounds on November 6, 2014), with id. at 25 (noting that McBee weighed 290
pounds on October 13, 2016). Because of this, McBee's second request for a total right knee
replacement was deferred by the regional URC. (ECF No. 26-2, at 31.) McBee was again
informed that he needed to lose weight "for the surgery to be safe given the high risk for negative
side effects of surgery in obese patients." (Layboum Decl. ^ 9.) Throughout this time, McBee
was "treated continuously for his knee pain, including, but not limited to, receiving Synvisc
injections to his knee in order to alleviate the pain and discomfort." (Dicocco Decl. %12; see
Layboum Decl. ^ 10.) McBee also received nutritional counseling for weight management so
that he could attempt to lose weight in order to meet the BOP's criteria for the knee replacement.
(ECF No. 26-2, at 37-38; ECF No. 26-3, at 18-19.)
Overall, the uncontroverted evidence establishes that Defendants Dicocco and Layboum
were not deliberately indifferent to McBee's knee condition. On the contrary, medical staff at
FCI Petersburg, including Defendants Dicocco and Layboum, provided continuous nonsurgical
care to McBee for his condition. Because a total knee replacement posed a high risk of negative
side effects due to McBee's weight, such nonsurgical care was "adequate [and] reasonable."
Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir. 2006) (citations omitted); see Ward v. Dehoo,
No. 1:11CV68, 2012 WL 2359435, at *1-3 (N.D. W. Va. June 20, 2012) (rejecting inmate's
Eighth Amendment claim regarding denial of knee replacement surgery because defendants
provided continuous nonsurgical treatment and cautioned that inmate's weight would likely
preclude successful surgery). At most, McBee has alleged a disagreement with the course of
treatment provided to him, which is insufficient to maintain his Eighth Amendment claim. See
16
Wright, 766 F.2d at 849 (citing Gittlemacker, 428 F.2d at 6). Accordingly, Claim One will be
DISMISSED.
B.
Claim Two—Defendants Wilson and Caraway
In Claim Two, McBee asserts that Defendants Wilson and Caraway violated his rights
under the Eighth Amendment by overlooking McBee's need for a total knee replacement when
considering McBee's administrative remedy requests. (ECF No. 4-1, at 6-7, 10-13.) McBee,
however, demonstrates no deliberate indifference to his medical needs by Defendants Wilson
and Caraway. The record conclusively demonstrates that Defendants Wilson and Caraway
reasonably responded to McBee's administrative remedy requests regarding his medical care. In
their responses, Defendants Wilson and Caraway noted that McBee was under the care of his
primary care provider team at FCl Petersburg and that McBee had been provided care and
treatment consistent with BOP and community standards. See Iko, 535 F.3d at 242 (omission in
original) ("If a prisoner is under the care of medical experts . . . , a nonmedical prison official
will generally bejustified in believing that the prisoner is in capable hands." (quoting Spruill v.
Gillis, 372 F.3d 218, 236 (3d Cir. 2004))).'® To the extent that McBee disagrees with his
provider team's assessment and the proper course of action for treating his knee pain, McBee's
disagreement fails to demonstrate deliberate indifference by Defendants Wilson and Caraway,
who had no medical training and could only rely upon McBee's provider team's medical
judgment. See id Moreover, because Defendants Wilson and Caraway responded reasonably to
McBee's administrative remedy requests regarding his medical care, they cannot be found to
have acted with a sufficiently culpable state of mind to establish deliberate indifference. See
To the extent that McBee contends that Defendants Wilson and Caraway violated his rights by
providing unsatisfactory answers to his grievances, McBee has no constitutional right to
grievance procedures. Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Furthermore, "there is no
liability under [Bivens] for a prisoner administrator's response to a grievance or appeal." Brown
V. Va. Dep'/ ofCorr., No. 6:07CV00033, 2009 WL 87459, at *13 (W.D. Va. Jan. 9, 2009).
17
Brown, 240 F.3d at 389 (alteration in original) (internal quotation marks omitted) (holding that
"an official who responds reasonably to a known risk has not disregard[ed] an excessive risk to
inmate health or safety . . . and has therefore not acted with deliberate indifference"). McBee
fails to demonstrate that Defendants Wilson and Caraway acted with deliberate indifference to
McBee's medical needs. Accordingly, Claim Two will be DISMISSED.
IV.
CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment (ECF No. 25)
will be GRANTED. Defendants' Motion to Dismiss (ECF No. 24) will be DENIED AS MOOT.
McBee's claims and the action will be DISMISSED.
An appropriate Order will accompany this Memorandum Opinion.
/s/
y
Roderick C. Young
Date: September I , 2017
United States Magistrate Judge
Richmond, Virginia
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?