Opinion

PHILLIPS v. NAPHCARE, INC.

Court: District Court, M.D. North Carolina
Filed: Jan 10, 2020
Cited by: 0 cases
Authority: More cited than 24.7%

barring Bivens action against PHS officers and employees

How later courts described this case

barring Bivens action against PHS officers and employees
requiring that the official have ”actual knowledge of the risk of harm to the inmate” and “recogni[tion] that his actions were insufficient to mitigate the risk of harm to the inmate arising from his medical needs”
identifying a prison official’s intentional interference with prescribed treatment as among the ways in which deliberate indifference can manifest
explaining supervisor and policy-making liability for constitutional violations

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBIN DENISE PHILLIPS, as )

Administratrix of the ESTATE OF )

TAMARQUIS ASHANTI PHILLIPS, )

)

Plaintiff, )

v. )

)

UMASS CORRECTIONAL HEALTH, )

UNIVERSITY OF MASSACHUSETTS )

MEDICAL SCHOOL, JAMES C. )

HOLLAND, Complex Warden, FCC )

Butner, in his individual capacity, )

SARA M. REVELL, Warden, FCC )

Butner, in her individual capacity, )

JUSTIN F. ANDREWS, Warden, FCC )

Butner, in his individual capacity, )

STEPHANIE L. HOLLEMBAEK, )

Warden, FCC Butner, in her individual )

capacity, THOMAS B. SMITH, )

Warden, FCC Butner, in his individual ) 1:18CV974

capacity, DONNA M. SMITH, Warden, )

LSCI Butner, in her individual capacity, )

CYNTHIA SWAIN, Associate Warden, )

LSCI Butner, in her individual capacity, )

HENRY MCMILLAN, FCC Butner )

Health Services Administrator, in his )

individual capacity, SARA BEYER, )

Clinical Director of FCC Butner, in her )

individual capacity, IVY MANNING, )

Director of Nursing at FCC Butner, in )

her individual capacity, KELLIE )

HARDEN, Quality Manager at FCC )

Butner, in her individual capacity, )

GURINDER SANDHU, in his individual )

capacity, VANCEBORO INTERNAL )

MEDICINE, P.A., MICHAEL VAN )

SICKLE, in his individual capacity, )

TERI PERKINSON, in her individual )

capacity, AMY JO ROSENTHAL, in her )

individual capacity, ANDREW E. )

STOCK, in his individual capacity, )

MARY J. DENUZZIA, in her individual )

capacity, YVONNE LANE, in her )

individual capacity, CHRISTY BUNN, )

in her individual capacity, JOSEPH LEE )

HACKETT, in his individual capacity, )

ALNISSA SHAW, in her individual )

capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court on various motions. Defendants Michael Van

Sickle [Doc. #24] and Henry McMillan, Ivy Manning, Kellie Harden, Christy Bunn,

and Alnissa Shaw [Doc. #64] move to dismiss pursuant to Rule 12(b)(1) for lack of

subject matter jurisdiction and/or Rule 12(b)(6) for failure to state a claim upon

which relief can be granted. Defendants James C. Holland, Sara M. Revell, Justin

F. Andrews, Stephanie L. Hollembaek, Thomas B. Smith, Donna M. Smith, Cynthia

Swain, Sara Beyer, Amy Jo Rosenthal, Andrew E. Stock, Mary J. DeNuzzia,

Yvonne Lane, and Joseph Lee Hackett [Doc. #66] and Terri Perkinson [Doc. #70]

move to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which

relief can be granted. Although not initially a party, the United States of America

moves to substitute [Doc. #29] and to dismiss for lack of subject matter

jurisdiction [Doc. #30]. Plaintiff Robin Denise Phillips moves to strike Defendants

Gurinder Sandhu’s and Vanceboro Internal Medicine, P.A.’s motion to dismiss

included as part of their Answer. [Doc. #61.] For the reasons that follow,

Defendant Michael Van Sickle’s Motion to Dismiss [Doc. #24] as converted to a

motion for summary judgment is GRANTED; Defendants Henry McMillan’s, Ivy

Manning’s, Kellie Harden’s, Christy Bunn’s, and Alnissa Shaw’s Motion to Dismiss

[Doc. #64] as converted to a motion for summary judgment is GRANTED;

Defendants James C. Holland’s, Sara M. Revell’s, Justin F. Andrews’, Stephanie L.

Hollembaek’s, Thomas B. Smith’s, Donna M. Smith’s, Cynthia Swain’s, Sara

Beyer’s, Amy Jo Rosenthal’s, Andrew E. Stock’s, Mary J. DeNuzzia’s, Yvonne

Lane’s, and Joseph Lee Hackett’s Motion to Dismiss [Doc. #66] is GRANTED IN

PART WITHOUT PREJUDICE as to Holland, Revell, Andrews, Hollembaek, Thomas

Smith, Donna Smith, Swain, Beyer, Rosenthal, Stock, DeNuzzia, and Hackett and

is DENIED IN PART as to Lane; Defendant Terri Perkinson’s Motion to Dismiss

[Doc. #70] is GRANTED WITHOUT PREJUDICE; The United States of America’s

Motion to Substitute [Doc. #29] and Motion to Dismiss [Doc. #30] are DENIED AS

MOOT; and Plaintiff Robin Denise Phillips’s Motion to Strike Portions of Defendants

Sandhu and Vanceboro’s Answer [Doc. #61] is DENIED AS MOOT.

Except as noted in § II.A., the following factual allegations in the Amended

Complaint are accepted as true for purposes of the pending motions to dismiss.

On May 20, 2017, thirty-eight-year-old Tamarquis Ashanti Phillips died while in the

custody of the Bureau of Prisons. (E.g., Am. Compl. ¶ 1 [Doc. #9].) Years earlier,

after a car accident in September 2012, he began suffering from a severe seizure

disorder for which he regularly saw a neurologist. (Id. ¶¶ 40, 43.) As of October

2016, he was prescribed three Anti-Epileptic Drugs that he took properly and

regularly – (1) Depakote, 500mg, delayed release, two tablets twice a day, (2)

Keppra, 500mg, one tablet twice a day, and (3) Vimpat, 150mg, two tablets twice

a day. (Id. ¶¶ 43, 44.) Without these medications, Phillips was at a very high risk

for seizures and death. (Id. ¶ 45.) Even abruptly stopping any one of these

medications posed a danger. (Id.) Depakote’s label warned: “Do not stop taking

Depakote without first talking to your healthcare provider. Stopping Depakote

suddenly can cause serious problems.” (Id.) Vimpat’s warning label states the

same and further explains, “Stopping seizure medicine suddenly in a patient who

has epilepsy can cause seizures that will not stop (status epilepticus).” (Id.)

Keppra’s label instructs, “Antiepileptic drugs, including KEPPRA, should be

withdrawn gradually to minimize the potential of increased seizure frequently.” (Id.)

After pleading guilty in April 2017 in the Western District of North Carolina

to a drug offense, Phillips was sentenced to a term of imprisonment of 144 months

in the Bureau of Prisons (“BOP”). (Id. ¶ 46.) Among the sentencing judge’s

recommendations to the BOP was the recommendation that Phillips be “’placed in

a facility as close to Charlotte, NC, as possible, capable of providing him necessary

medical treatment required by his medical condition and indicated seizure issues,

consistent with the needs of the BOP.’” (Id. ¶ 48.) As of the time of his

incarceration, because of his proper and regular use of Depakote, Keppra, and

Vimpat, Phillips had not suffered a seizure in over a year. (Id. ¶ 43.)

After his sentencing, Phillips was temporarily incarcerated at the

Mecklenburg County Jail until he was transferred to the Low Security Correctional

Institute (“LSCI Butner”) at the Federal Correctional Complex in Butner, North

Carolina (“FCC Butner”). (Id. ¶¶ 49, 52, 53.) During his incarceration at the

Mecklenburg County Jail, Phillips was administered all three of his medications

regularly, and the medication orders record was provided to FCC Butner. (Id. ¶ 52.)

“FCC Butner provides in-house, on-site medical coverage and nurse staffing

twenty-four hours [a] day, seven days a week.” (Id. ¶ 49.) Phillips entered LSCI

Butner at 3:41 p.m. on May 16, 2017 at which time Perkinson, an Emergency

Medical Technician and Paramedic, performed a health screen. (Id. ¶¶ 53, 54.)

She “noted a history of generalized absence seizures, greater than one per year,

with adult onset”, “his last seizure had been seven to twelve months before”, and

his “seizures had begun seven months after a car accident”, but she did not note

that Phillips was taking medications for those seizures. (Id. ¶¶ 53, 54.) He was

given a PPD test to screen for tuberculosis and was issued his eyeglasses later that

afternoon. (Id. ¶ 55.) The “screening tool indicated, ‘Instructed inmate how to

obtain medical, dental and mental health care.’” (Id.) Phillips was scheduled to

have a medication reconciliation at 3:50 p.m. by a physician, “presumably” Sandhu

or Rosenthal”, but that never occurred. (Id. ¶ 56.)

At 3:25 p.m. the following day, May 17, Van Sickle, a Board Certified Adult

Nurse Practitioner, met with Phillips and filled out a Health Problems form

“indicating an ICD-10 code of ‘G40909 – Epilepsy Seizure Disorder,’ a diagnosis

that was current.” (Id. ¶ 58.) Van Sickle wrote a new prescription for generic

Depakote, Divalproex ER, “24-hour tab 500mg, take two tablets, 1000mg by

mouth twice daily for seizures to start that day.” (Id. ¶ 59.) However, Van Sickle

never added the prescription to Phillips’s Medication Administration Record

(“MAR”), the prescription was never filled or dispensed, and Van Sickle neither

prescribed Keppra nor Vimpat nor documented any basis for this decision. (Id.

¶¶ 59, 60, 61.)

At 6:46 a.m. on May 18, DeNuzzia, a Registered Nurse, read Phillips’s PPD

test, at which time, upon Plaintiff’s information and belief, Phillips requested his

medication but did not receive it. (Id. ¶ 62.) Although there is a notation on May

18 that Phillips was to receive Divalproex ER 24-hour Tab 500 mg, Lane, a

Registered Nurse and the pharmacy provider, did not issue the medication to

Phillips and there is no record why the prescribed medication was not dispensed.

(Id. ¶ 63.) Yet, “the national formulary for the [BOP] provides the following

notation for Divalproex: ‘Warning, designated high risk Medication! Ensure

appropriate medication, frequency, indication and monitoring.’” (Id.)

On May 19, a friend and fellow inmate of Phillips told Phillips’s fiancée that

the two of them had gone to medical staff to request Phillips’s medications. (Id.

¶ 65.) Another inmate stated that Phillips was visibly and severely shaking and

informed the staff at LSCI Butner that he was not feeling well.1 (Id. ¶ 66.) Just

before 11:00 p.m., Phillips told his fiancée that he was very concerned about his

1 It is unclear who informed the staff – Phillips or his fellow inmate.

health because the medical staff would not give him his medications despite his

repeated requests. (Id. ¶ 68.)

Around 1:00 a.m. on May 20, Phillips was seen going to the bathroom. (Id.

¶ 69.) He was not seen alive again. (Id.) At 9:58 a.m., he was discovered face

down, unresponsive, pulseless, and cold, with locked muscles and blood on his

pillow. (Id. ¶ 70.) Perkinson, Bunn, and Hackett initiated CPR, but were

unsuccessful at resuscitating Phillips. (Id.) Within thirty minutes, Phillips was

declared dead by Sandhu, the responding hospitalist. (Id. ¶ 72.) An autopsy

concluded his cause of death was a seizure disorder. (Id. ¶ 74.)

At no time during his incarceration at LCSI Butner did Phillips see a

physician, including his assigned hospitalist Sandhu or his attending doctor

Rosenthal, who indicated on the Multi-Level Mortality Review (“MLMR”) that she

had never seen Phillips and was not notified of his presence at the facility. (Id.

¶ 71.) Furthermore, although Phillips’s MAR began on May 16, it is completely

blank and contains no indication that Phillips was ever given any medication while

at LSCI Butner. (Id. ¶ 56.)

The Medical Examiner was “apparently told” that Phillips “’was prescribed

Depakote, Vimpat, and Keppra while in prison for his seizure disorder’” and that he

“’reportedly missed all three medications on 5/19/17.’” (Id. ¶ 75.) Yet, the “MAR

contains no indication that Mr. Phillips was offered these medications and either

failed to appear to receive them or refused them” and “any such refusal . . . should

have been documented in his medical records, as required by the standard of care

and FCC Butner’s own policies.” (Id. ¶ 76.) Postmortem toxicological analysis

detected a subtherapeutic level of Lacosamide (Vimpat) and no Divalproex

(Depakote) or Levetiracetam (Keppra) on acidic, neutral, and basis screens. (Id.

¶ 77.)

Nearly a month after Phillips died, Perkinson wrote a memorandum dated

June 17 in which she stated that she performed Phillips’s intake screen on May 16

and that he brought his medication with him, but she could not give him the

medications “for self carry”. (Id. ¶ 79.) Because it was after 4:00 p.m. and staff

had left for the day, she placed the medication and paperwork in the medication

distribution room so he “’could receive his evening and morning dosage until his

provider was available to complete his medication reconciliation the next

morning’”. (Id.) Although she stated that she noted this in the 24-hour report and

sent the intake to the provider for signature, the note is nowhere in the records.

(Id.) She also wrote that Phillips came to the pill line that night and she

administered his evening dosages, but there is no record in any contemporaneous

document that he received his medication. (Id. ¶ 80.) Such a record is required for

a Schedule V controlled substance like Vimpat because it requires an accounting of

distribution. (Id.)

On June 28, Donna Smith, warden of LSCI Butner, submitted a Multi-Level

Mortality Review (“MLMR”) to the Office of Quality Management that reflected

Phillips’s admitting diagnosis of Epilepsy/Seizure Disorder, described his death as

natural, and indicated that he underwent medication reconciliation with Divalproex

500mg having been prescribed twice a day for his seizure disorder. (Id. ¶¶ 18, 81,

82.) The MLMR does not state that Phillips was actually given his medication

while at LSCI Butner nor does it explain why his other two medications were

discontinued. (Id. ¶ 82.) In addition, the MLMR notes that Phillips was scheduled

for a history and physical for May 24, eight days after his arrival. (Id. ¶ 85.)

Swain (Associate Warden of FCC Butner), Beyer (Medical Doctor and Clinical

Director of LSCI Butner), McMillan (Health Services Administrator at FCC Butner),

Harden (Registered Nurse and Quality Manager at FCC Butner), Manning

(Registered Nurse and Director of Nursing at FCC Butner), Shaw (Certified

Physician’s Assistant and Reviewing Clinician), and Rosenthal, signed the MLMR.

(Id. ¶¶ 19, 21-24, 36, 83.)

Plaintiff filed the instant action alleging negligence (Count I), wrongful death

(Count II), corporate negligence (Count III), deliberate indifference to serious

medical needs in violation of 42 U.S.C. § 19832 (Count IV), and gross negligence

(Count V). (See generally Am. Compl.) After the United States of America

submitted the Certification of the United States Attorney for the Middle District of

North Carolina in which he attested that all of the individual defendants (except

Sandhu) (the “Federal Defendants”) “were acting in their official capacity within

the scope of their employment as employees of the United States at the time of

the conduct alleged in the Complaint”, Plaintiff voluntarily dismissed Counts I, II,

2 Plaintiff has since acknowledged that she “mistakenly labeled Count IV” which

“should have been labeled as a Bivens action”, [Doc. #59 at 3 n.1].

and V of her Amended Complaint against the Federal Defendants. (Certification of

Matthew G.T. Martin (Apr. 10, 2019) [Doc. #29-1]); Pl.’s Notice of Voluntary

Dismissal of Counts I, II, and V at 1-2 [Doc. #58].) Accordingly, the United States

of America’s Motion to Substitute and Motion to Dismiss for Lack of Submit

Matter Jurisdiction are denied as moot.

II.

The Federal Defendants challenge the sole claim remaining against them – a

Bivens action alleging deliberate indifference to Phillips’s serious medical needs in

violation of the Eighth Amendment.

Van Sickle, McMillan, Manning, Harden, Bunn, and Shaw (“PHS Defendants”

or “Defendants” for purposes of this section) move to dismiss Plaintiff’s deliberate

indifference claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of

Civil Procedure. They have attached their declarations in which each avers to have

been a United States Public Health Service (“PHS”) officer during Phillips’s

incarceration at LSCI Butner. [Docs. #24-1, 64-1, 64-2, 64-3, 64-4, 64-5.]

Relying on this fact and others, they argue they are immune under 42 U.S.C.

§ 233(a) from Plaintiff’s deliberate indifference claim. (E.g., Am. Mem. in Supp. of

Mot. to Dismiss [Doc. #32], Public Health Serv. Defs. McMillan, Manning, Harden,

Bunn and Shaw’s Mem. in Supp. of Mot. to Dismiss [Doc. #65].)

While these PHS Defendants have moved to dismiss, on the one hand,

pursuant to Rule 12(b)(1), they cite no law in support of analyzing their motions as

challenges to this Court’s subject matter jurisdiction over Plaintiff’s Bivens action

against them. Plaintiff appears to assume a subject matter jurisdiction challenge is

appropriate because she addresses which party bears the burden on such a

motion.3 (Pl.’s Opp’n to Def. Michael Van Sickle’s Mot. to Dismiss (“Pl.’s Opp’n to

Van Sickle”) at 4-5 [Doc. #59], Pl.’s Opp’n to Mot. to Dismiss of Defs. McMillan,

Manning, Harden, Bunn and Shaw (“Pl.’s Opp’n to Defs.”) at 4-5 [Doc. #74].)

Accordingly, neither the PHS Defendants nor Plaintiff addresses the consequence

of the Court’s consideration of Defendants’ declarations if their motions are

analyzed pursuant to Rule 12(b)(6), on the other hand.

It is determined that Defendants’ claims of immunity as PHS officers

are not subject matter jurisdiction challenges. Instead, their argument is

understood to be that because they are immune, Plaintiff has failed to state

a claim against them for which relief can be granted. However, to support

this argument, Defendants must rely on information in their declarations.

When “matters outside the pleadings are presented to and not excluded by

the court [on a motion under Rule 12(b)(6)], the motion must be treated as

one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). Summary

judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

3 Both Plaintiff’s argument and the cases she cites actually involve Eleventh

Amendment immunity, but these Defendants are federal employees asserting

immunity as PHS officers.

matter of law.” Fed. R. Civ. P. 56(a). “As a general rule, when one party

files a motion for summary judgment, the non-movant cannot merely rely on

matters pleaded in the complaint, but must, by factual affidavit or the like,

respond to the motion.” Carter v. Lassiter, No. 1:18-CV-275-FDW, 2019 WL

6048043, at *4 (W.D.N.C. Nov. 14, 2019). The court views the evidence

and inferences in the light most favorable to the non-moving party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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.” Id. at 247-

48. A dispute is genuine if a reasonable jury, based on the evidence, could

find in favor of the non-moving party. Id. at 248. The materiality of a fact

depends on whether the existence of the fact could cause a jury to reach

different outcomes. Id. The court cannot weigh the evidence, by failing to

credit contradictory evidence, or make credibility determinations. Variety

Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651 (4th Cir. 2018).

When a motion filed under Rule 12(b)(6) is converted to one for summary

judgment, “[a]ll parties must be given a reasonable opportunity to present all the

materials that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Although Plaintiff

did not contest the fact as stated in Defendants’ declarations that they were PHS

officers at the times relevant to the Amended Complaint, she was afforded an

opportunity to provide or point out facts that create material disputes from sources

that may be considered in determining a motion for summary judgment. (Order

[Doc. #82].) Plaintiff responded in agreement that Defendants’ submission of their

declarations converted their motions to summary judgment. (Pl.’s Notice at 1 [Doc.

#83].) However, “she does not currently have information that creates any

material factual dispute”. (Id.) She requests that Defendants’ motions be denied

“as premature, and without prejudice to reallege the arguments after discovery has

been conducted in this matter.” (Id. at 2.)

When “a nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or

declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R.

56(d) Civ. P. Here, Plaintiff admits that she has no facts to create a genuine

dispute of material fact as to the PHS Defendants’ immunity. Although she

requests that their motions be denied until discovery has been conducted, she does

not request immediate discovery on this discrete issue, nor is it apparent what

facts she could present that would create a genuine dispute of material fact on this

narrow issue. Defendants have proffered declarations under penalty of perjury

attesting that they were PHS officers at the time of Phillips’s incarceration and

their actions with respect to Phillips were taken within the scope of their duties as

PHS officers. Furthermore, as explained below, all of their alleged conduct with

respect to Phillips was medically related. Accordingly, under these circumstances,

it is appropriate to address Defendants’ motions and grant them immunity.

Title 42 U.S.C. § 233(a) “grants absolute immunity to PHS officers and

employees for actions arising out of the performance of medical or related

functions within the scope of their employment by barring all claims against them

for such conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010) (barring Bivens

action against PHS officers and employees).

The remedy against the United States provided by sections 1346(b)

and 2672 of Title 28, or by alternative benefits provided by the United

States where the availability of such benefits precludes a remedy

under section 1346(b) of Title 28, for damage for personal injury,

including death, resulting from the performance of medical, surgical,

dental, or related functions, including the conduct of clinical studies or

investigation, by any commissioned officer or employee of the Public

Health Service while acting within the scope of his office or

employment, shall be exclusive of any other civil action or proceeding

by reason of the same subject-matter against the officer or employee

(or his estate) whose act or omission gave rise to the claim.

42 U.S.C. § 233(a). “By its terms, § 233(a) limits recovery for such conduct to

suits against the United States.” Hui, 559 U.S. at 806.

Here, there is no dispute that the PHS Defendants were, at all times relevant

to the Amended Complaint, officers of the Public Health Service acting within the

scope of their offices or employment. Plaintiff instead (1) challenges the

constitutionality of § 233(a) and (2) argues that the PHS Defendants’ conduct falls

outside of that protected by the statute. First, Plaintiff argues that § 233(a)

unconstitutionally denies her due process and equal protection, the right to open

courts, and the right to a jury trial because its “practical impact” is to leave her

without a remedy. (E.g., Pl.’s Opp’n to Van Sickle at 6-9.) This is purportedly so

because “the United States commonly asserts that it is entitled to the

‘discretionary function’ exclusion for conduct of a medical professional in the

administration of medical care.” (Id. at 6-7.) As the Supreme Court stated in Hui,

the remedy for medically related tortious conduct by PHS officers is suit against

the United States. Furthermore, she cites no case law to support her position that

§ 233(a) unconstitutionally leaves her without a remedy. Respondents’ amici in

Hui “caution[ed] that providing special immunity for PHS personnel [was] contrary

to the public interest”, but the Court steadfastly interpreted the statute according

to its text to find that it “plainly precludes Bivens actions”. 559 U.S. at 812-13.

Furthermore, the Second Circuit Court of Appeals explained that § 233(a) does not

“deprive [a plaintiff] of her constitutional due-process rights.” Cuoco v. Moritsugu,

222 F.3d 99, 108 (2000). Instead, § 233(a) reflects that “[t]he United States . . .

in effect insures designated public health officials by standing in their place

financially when they are sued for the performance of their medical duties.” Id.

The Hui Court has also disposed of Plaintiff’s other bases for her contention

that she will be left with no remedy. See Hui, 559 U.S. at 806-07 (explaining that

its “reading of § 233(a)’s text is not undermined by the fact that the provision

preceded” Bivens), 807-08 (noting that the Carlson Court did not address the

question of official immunity).

Plaintiff also argues that § 233(a) is unconstitutional because the U.S.

District Court for the Northern District of Texas declared the Affordable Care Act

(“ACA”) unconstitutional, which necessarily included § 233(a). (E.g., Pl.’s Opp’n to

Van Sickle at 9-10.) The Fifth Circuit Court of Appeals recently affirmed in part

and vacated in part the district court’s opinion, remanding

to explain with more precision what provisions of the post-2017 ACA

are indeed severable from the individual mandate, and to consider the

federal defendants’ newly-suggested relief of enjoining the

enforcement only of those provisions that injure the plaintiffs or

declaring the Act unconstitutional only as to the plaintiff states and

the two individual plaintiffs.

Texas v. United States, ___ F.3d ___, 2019 WL 6888446, at *21 (Dec. 18, 2019).

However, neither court’s decision is of precedential value to this court, and as the

PHS Defendants note, “[w]hen Congress enacted the Affordable Care Act in 2010,

no amendments or additions were made to § 233(a)” while the “only change to 42

U.S.C. § 233 by the Affordable Care Act was to amend § 233(o)(1), which is not

germane to this case”. (E.g., Reply to Pl.’s Opp’n to Mot. to Dismiss at 4 [Doc.

#60].) There is no basis on which to find § 233(a) unconstitutional.

Plaintiff next contends that the PHS Defendants’ conduct is not the conduct

that § 233(a) protects – “the performance of medical, surgical, dental, or related

functions”. She argues that each of the PHS Defendants’ “role[s]” “was purely

administrative and ministerial” and, as such, “do[es] not constitute ‘medical care’

and, therefore, fall[s] outside the scope of immunity afforded by § 233(a).” (Pl.’s

Opp’n to Van Sickle at 11-12; Pl.’s Opp’n to Defs. at 11.) She contends that Van

Sickle’s role was ministerial because, according to his Declaration, he did not

personally meet Phillips or have any interaction with him and stated he acted

according to protocol. (Pl.’s Opp’n to Van Sickle at 11.) Similarly, Plaintiff argues

that because Harden, McMillan, Manning, and Shaw provided no medical care to

Phillips and Bunn only did so after Phillips coded, their actions were ministerial.

(Pl.’s Opp’n to Defs. at 11.) She contends their “intentionally ignoring Mr.

Phillips’s condition and failing to administer medication [] do not constitute

‘medical care’ and, therefore, fall outside the scope of immunity afforded by

§ 233(a).” (Id.)

Although courts do recognize a difference between discretionary and non-

discretionary acts in other contexts, none of the cases Plaintiff cites in support of

her argument concerned PHS officers or employees or 42 U.S.C. § 233(a).

Instead, the cases applying § 233(a) to the actions of PHS officers and employees

look strictly at whether the conduct involved “the performance of medical,

surgical, dental, or related functions.” See, e.g., Cuoco, 222 F.3d at 108-09

(contrasting “an allegation of intentional discrimination on the basis of race and sex

by a supervisor against an employee during a professional peer review process”

that has “nothing to do with the ‘performance of medical . . . or related functions”

with actions of immune PHS officials whose challenged medically-related conduct

either took place in the course of rendering medical treatment to Cuoco or “related

only to [the] decision[] [by] the principal medical official for the Bureau of Prisons[]

not to authorize a particular medical treatment for Cuoco”); Moses v. Stewart, No.

TDC-15-3875, 2017 WL 4326008, at *2, *4 (D. Md. Sept. 26, 2017) (finding a

PHS employee immune who served as the Health Services Administrator and was

alleged to have told Moses that a request for surgical consultation was pending

before the prison Utilization Review Committee); Marshall v. Stewart, No. TDC-16-

1645, 2017 WL 3671160, at *3, *4 (D. Md. Aug. 23, 2017) (finding a PHS

employee immune who served as the Health Services Administrator and was

alleged to have denied Marshall’s request for a transfer to a medical facility

because he had been receiving appropriate care); De La Cruz-Garcia v. Lucas, No.

1:16-05733, 2016 WL 11268303, at *4-*5 (S.D.W. Va. Nov. 15, 2016), adopted

2017 WL 944221 (finding a PHS employee immune who served as the Health

Services Administrator whose alleged role “was to administer and supervise the

prescribed treatment plan prescribed by the outside orthopedic surgeon”).

Plaintiff’s allegations about these PHS Defendants and their own

Declarations clearly support a finding that their challenged conduct was medically-

related. Van Sickle’s allegedly tortious conduct was prescribing only one of

Phillips’s anti-seizure medications, failing to ensure the prescription made it into

Phillips’s MAR, and discontinuing his other anti-seizure medications without

examining Phillips or documenting a basis for doing so – conduct which is

obviously medically-related. (See Am. Compl. ¶¶ 58-60; Decl. of Michael Van

Sickle ¶ 4 (May 22, 2019).)

Bunn, the Assistant Health Services Administrator and Institutional Duty

Officer, responded to the medical emergency when Phillips was found

unresponsive and performed CPR. (See Am. Compl. ¶ 70; Decl. of Christy Bunn

¶¶ 1, 2 (June 25, 2019).) McMillan, Manning, Harden, and Shaw provided no

direct patient care to Phillips but were involved with his mortality review. (See Am.

Compl. ¶¶ 22, 23, 24, 83; Decl. of Henry McMillan ¶¶ 4, 5 (June 24, 2019);

Decl. of Ivy Manning ¶¶ 3, 4 (June 17, 2019); Decl. of Kellie Harden ¶ 2 (June

27, 2019); Decl. of Alnissa Shaw ¶ 2 (June 18, 2019).) To the extent any of

Bunn’s, McMillan’s, Manning’s, Harden’s, or Shaw’s aforementioned conduct is

alleged to have injured Phillips, which it does not appear to be so alleged, their

conduct was medically-related. Furthermore, even assuming Plaintiff’s allegations

of supervisory liability or policy-based liability against McMillan, Manning, and

Harden were sufficiently alleged, see, e.g., Slakan v. Porter, 737 F.2d 368, 373

(4th Cir. 1984) (explaining supervisor and policy-making liability for constitutional

violations), such conduct would necessarily be medically-related. Therefore,

because Van Sickle, McMillan, Manning, Harden, Bunn, and Shaw were PHS

officers at the times relevant to Plaintiff’s Amended Complaint and their allegedly

deficient conduct was within the scope of their official duties and medically-

related, 42 U.S.C. § 233(a) bars the Bivens action against them.

Holland, Revell, Andrews, Hollembaek, Thomas Smith, Donna Smith, Swain,

Beyer, Rosenthal, Stock, DeNuzzia, Lane, and Hackett (referred to collectively as

“Defendants” for purposes of this section) move to dismiss Plaintiff’s deliberate

indifference claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

They argue that because Plaintiff has failed to allege sufficiently a constitutional

violation, they are entitled to qualified immunity. (Mem. of Law in Supp. of Mot. to

Dismiss at 5-6 [Doc. #67].) More specifically, they contend that Plaintiff’s

allegations of failure to supervise and failure to train against Holland, Revell,

Andrews, Hollembaek, Thomas Smith, Donna Smith, Beyer, Swain, and Stock

must be dismissed because “a civil rights action brought under Bivens is a direct

liability claim” and “may not be grounded upon a respondeat superior theory” and

that Plaintiff otherwise has failed to state a claim that any of Defendants were

deliberately indifferent to Phillips’s serious medical needs. (Mot. to Dismiss at 1-2.)

Qualified immunity “shield[s] from liability [government officials performing

discretionary functions] insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[W]hen the defendant

. . . raises a qualified immunity defense, the court ordinarily assesses whether the

plaintiff’s complaint states sufficient factual allegations that, if true, show a

violation of clearly established constitutional rights.” Cloaninger ex rel. Estate of

Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009). “[T]he plaintiff’s

complaint must allege conduct a reasonable [prison official] would know to be

unlawful.” Id. “’Unless the plaintiff’s allegations state a claim of violation of

clearly established law, a defendant pleading qualified immunity is entitled to

dismissal before the commencement of discovery.’” Id. at 330 (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)).

A complaint “must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also

McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582,

585 (4th Cir. 2015) (noting that a complaint must “contain[] sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face in

the sense that the complaint’s factual allegations must allow a court to draw the

reasonable inference that the defendant is liable for the misconduct alleged”).

However, when a complaint states facts that are “’merely consistent with’ a

defendant’s liability, it ‘stops short of the line between possibility and plausibility

of ‘entitlement to relief.’’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

557). When evaluating whether the complaint states a claim that is plausible on

its face, the facts are construed in the light most favorable to the plaintiffs and all

reasonable inferences are drawn in their favor. U.S. ex rel. Oberg v. Pa. Higher

Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014). Nevertheless,

“labels and conclusions[,]” “a formulaic recitation of the elements of a cause of

action[,]” and “naked assertions . . . without some further factual enhancement”

are insufficient. Twombly, 550 U.S. at 557. In other words, “[f]actual allegations

must be enough to raise a right to relief above the speculative level”. Id. at 555.

“It is beyond debate that a ‘prison official’s deliberate indifference to an

inmate’s serious medical needs constitutes cruel and unusual punishment under the

Eighth Amendment.’” Gordon v. Schilling4, 937 F.3d 348, 356 (4th Cir. 2019)

(citing Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (citing Estelle v.

Gamble, 429 U.S. 97, 104 (1976))). To state a claim under the Eighth

Amendment, a prisoner must allege that “the deprivation suffered or injury inflicted

on [him] was sufficiently serious” and that “the prison official acted with a

sufficiently culpable state of mind”. Smith v. Smith, 589 F.3d 736, 738 (4th Cir.

2009) (quoting Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008)).

First, a sufficiently serious medical need is one that has “‘been diagnosed by

a physician as mandating treatment or is so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.’” Gordon, 937 F.3d at 356

(quoting Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) but omitting

alterations and internal quotation marks).

Second, a prison official acts with a sufficiently culpable state of mind when

he acts with deliberate indifference. Scinto, 841 F.3d at 225. “Deliberate

indifference is a very high standard”. Parrish ex rel. Lee v. Cleveland, 372 F.3d

294, 302 (4th Cir. 2004). It “entails something more than mere negligence”, but

“is satisfied by something less than acts or omissions for the very purpose of

causing harm or with knowledge that harm will result.” Farmer v. Brennan, 511

4 Gordon, along with several other cases cited in this Opinion, involve claims

against state prison officials pursuant to 42 U.S.C. § 1983. The Supreme Court

has described a Bivens action as the “federal analog to suits brought against state

officials under Rev. Stat. § 1979, 42 U.S.C. § 1983.” Iqbal, 556 U.S. at 675-76

(quoting Hartman v. Moore, 547 U.S. 250, 254, n.2 (2006)).

U.S. 825, 835 (1994). The prison official must have “’actual subjective

knowledge of both the inmate’s serious medical condition and the excessive risk

posed by [the official’s] action or inaction.’” Scinto, 841 F.3d at 226 (quoting

Jackson, 775 F.3d at 178); see also Iko, 535 F.3d at 241 (requiring that the

official have ”actual knowledge of the risk of harm to the inmate” and

“recogni[tion] that his actions were insufficient to mitigate the risk of harm to the

inmate arising from his medical needs”). The official needs to be aware of more

than the general risks associated with his conduct. Parrish, 372 F.3d at 304-05.

He must recognize the incremental risk to the prisoner that his conduct creates. Id.

at 304-05.

Furthermore, “it is not enough that the official should have recognized that

his actions were inappropriate; the official actually must have recognized that his

actions were insufficient.” Id. at 303; see also Farmer, 511 U.S. at 843 n.8 (“It is

not enough merely to find that a reasonable person would have known, or that the

defendant should have known” of the risk.). The prison 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 that inference.” Farmer, 511 U.S. at

837. Therefore, Eighth Amendment liability will not lie where “a prison official . . .

was unaware of a substantial risk of harm to an inmate . . . [that] was obvious and

a reasonable prison official would have noticed it.” Id. at 841-42 (refusing to adopt

the objective standard from Canton v. Harris, 489 U.S. 378 (1989) for use in

cases alleging prison officials are liable for Eight Amendment violations). However,

when “a substantial risk . . . was longstanding, pervasive, well-documented, or

expressly noted by prison officials in the past, and the circumstances suggest that

the defendant-official being sued had been exposed to information concerning the

risk and thus must have known about it”, it could be said that the prison official

had actual knowledge of the risk. Id. at 842-43; see also id. at 843 n.8 (noting

that a prison official “would not escape liability if the evidence showed that he

merely refused to verify underlying facts that he strongly suspected to be true, or

declined to confirm inferences of risk that he strongly suspected to exist”).

“Government officials may not be held liable for the unconstitutional conduct

of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at

676. However, a supervisor may be liable for his own conduct, such as under

circumstances when “prisoners face a pervasive and unreasonable risk of harm

from some specified source” and “the supervisor’s corrective inaction amounts to

deliberate indifference or ‘tacit authorization of the offensive [practices].’” Slakan,

737 F.2d at 373 (quoting Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.

1980)). However, “a single incident or isolated incidents” is not sufficient because

“a supervisor cannot be expected to promulgate rules and procedures covering

every conceivable occurrence within the area of his responsibilities[,] [n]or can he

reasonably be expected to guard against the deliberate criminal acts of his properly

trained employees when he has no basis upon which to anticipate misconduct.” Id.

“A supervisor’s continued inaction in the face of documented widespread abuses,

however, provides an independent basis for finding he either was deliberately

indifferent or acquiesced in the constitutionally offensive conduct of his

subordinates.” Id.

A supervisor’s failure to train constitutes deliberate indifference if

(1) the subordinates actually violated the [prisoner’s] constitutional or

statutory rights; (2) the supervisor failed to train properly the

subordinates thus illustrating a ‘deliberate indifference’ to the rights of

the persons with whom the subordinates come into contact; and (3)

this failure to train actually caused the subordinates to violate the

[prisoner’s] rights.

Brown v. Mitchell, 308 F. Supp. 2d 682, 701 (E.D. Va. 2004). As above, though,

even if the subordinate violated the prisoner’s constitutional rights, the supervisor

“must have had notice of the constitutional . . . violation, and thereafter must have

consciously chosen a particular course of action in response.” Id. at 703. “It is

generally acknowledged that, if the supervisory power is actually aware of the fact

that its subordinates are regularly violating constitutional . . . rights, and the

supervisory power fails to implement a training program to quell this pattern,

deliberate indifference exists.” Id.

Plaintiff alleges that Holland (Complex Warden of FCC Butner), Revell,

Andrews, Hollembaek, and Thomas Smith (all Wardens of FCC Butner), Donna

Smith (Warden of LSCI Butner), and Swain (Associate Warden of FCC Butner)

(collectively “Warden Defendants”), “are responsible for the day-to-day operations

of FCC and LSCI Butner” and “make the policies and practices of the BOP, FCC

Butner and LSCI Butner regarding medical treatment of inmates and, more

specifically, the administration of care and medication to inmates with known,

serious medical needs.” (Am. Compl. ¶¶ 13-20.) FCC Butner policies required

“physician coverage . . . by a hospitalist whenever staff physicians are not on-

site,” evaluation of inmates “for serious medical conditions as needed”, “medical

screening . . . to be ‘conducted promptly on all new arrivals’” to include “medical

staff interview and visual assessment to identify any ‘acute or chronic medical

problems and trauma’” and completion of a “medication reconciliation form”. (Id.

¶¶ 49, 50.) In addition, Holland, Andrews, Hollembaek, and Thomas Smith

created the “Complex Supplement” “’to establish the procedures by which inmates

may obtain medical or dental treatments with a minimum of time lost from their

jobs, and simultaneously provide security safeguards and effective treatment’”

including “an interview by medical staff, assessment for chronic medical problems

and a medication reconciliation” to “’be conducted promptly on all new arrivals’”.

(Id. ¶ 91.) General population inmates “’without immediate medical needs” were

to “be scheduled for physical exam within 14 days of arrival”, but no deadline is

specified for those with immediate medical needs. (Id. ¶ 92.)

The Warden Defendants and Beyer, the Clinical Director of LSCI Butner, are

alleged to be among the Policymaking Defendants. (Id. ¶ 57.) They allegedly

“wholly failed to create a system or method by which . . . high-risk inmates were

treated on admission to the facility.” (Id. ¶ 67.) They also failed

to ensure that proper controls and/or protocols were in place to

document and reconcile necessary medications, ensure the prompt

medical assessment for serious medical conditions upon admission to

FCC Butner, administer critical medications to inmates, monitor

inmates with serious medical needs and provide inmates with

appropriate treatment for medical conditions while housed at the FCC

Butner.

(Id. ¶ 118; see also ¶¶ 84, 89.)

The Policymaking Defendants are also alleged to have provided no training to

Perkinson who “did nothing to flag or otherwise elevate Mr. Phillips’s medical care

for his serious condition.” (Id. ¶ 57.) Furthermore, their training of medical staff

more broadly at LSCI Butner “was woefully inadequate.” (Id. ¶ 87.)

These failures to train include, but are not limited to: (1) appropriate

identification of serious medical needs upon intake; (2) prompt, full

examination of inmates with serious medical needs; (3) proper

reconciliation of medications; (4) determination of when and how to

elevate an inmate’s medical needs to a physician; (5) responsiveness

to requests for medication by an inmate; and (6) documentation of

essential medical information, such as prescriptions, medication

administration, and medical conditions.

(Id.) In addition to the Policymaking Defendants, Stock, the medical doctor who

supervises Van Sickle, allegedly failed to oversee and train Van Sickle with respect

to, among other things, “his administration of medication.” (Id. ¶ 61.)

The Policymaking Defendants argue that these allegations are insufficient to

“support a policy-based deliberate indifference claim.” (Mem. in Supp. of Mot. to

Dismiss at 8.) They contend that Plaintiff did not identify specific policies that

were inadequate, did not plead that each of these Defendants “individually knew

that the facility lacked adequate policies or that the existing policies caused serious

injuries or the denial of medical care”, and, despite generally alleging that “’this

conduct is widespread’”, did not allege how each of these Defendants would have

been on notice of the inadequacy of the policies. (Id. (quoting Am. Compl. ¶ 127).)

Together with Stock they contend that Plaintiff’s allegations of failure to

supervise and to train also fall short. Stock is not alleged to have known anything

about Van Sickle’s conduct, and Beyer is not alleged to have known anything

about Phillips. (Id. at 15, 16.) There are no allegations of the Wardens’ specific

assignments or times of service to show they were responsible for training

Perkinson, and there is no allegation that any of them had any knowledge of her

care of Phillips. (Id. 16-17.)

Plaintiff responds that she has sufficiently stated a claim against these

Defendants.5 She argues that the policies of the Policymaking Defendants have

“gaping deficiencies” that put them on notice and cites Canton v. Harris, 489 U.S.

378, 288 (1989), for the proposition that “a defendant may . . . be on notice

where a policy deficiency is so glaring that it puts any reasonable person on notice

of the need for better policies and training.” (Pl.’s Opp’n to Defs.’ Mot. to Dismiss

at 17-18 (citing Am. Compl. ¶ 118).)6 She also contends that she “specifically

5 Plaintiff cites Bowens v. Cannon, 175 F. App’x 635, 636 (4th Cir. 2006), as an

example of a sufficiently pled claim of deliberate indifference to serious medical

needs. (Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 6 [Doc. #75].) Not only do those

facts allege failings of medical providers, not supervisors, but the court used the

“[now-]retired” “‘no-set-of-facts”’ pleading standard from Conley v. Gibson, 355

U.S. 41 (1957), Iqbal, 556 U.S. at 670.

6 As part of her argument, though, she also relies on facts not alleged in her

Amended Complaint, including Defendants’ awareness of Joint Commission

policies and standards. (Id. at 18-19.)

pled that the Warden Defendants wholly failed to train and supervise their medical

staff to handle the care of inmates with serious needs”. (Id. at 19.)7

Plaintiff contends that North Carolina statutes provide “an independent onus

on supervising physicians [like Stock] pursuant to licensure requirements” that

distinguishes her allegations against Stock from those sounding in respondeat

superior liability. (Id. at 13, 13 n.1.) These statutes authorize nurse practitioners

like Van Sickle to prescribe medications where supervising physicians have

provided written instructions about doing so and have provided a written policy for

periodic review of the drugs prescribed. (Id. at 13-14 (citing N.C. Gen. Stat.

§§ 90-18.2(b)(4), 90-18.2(d)(3), 90-18.2(e)).) Those statutes deem the

supervising physician responsible for authorizing such prescriptions. (Id. at 13-14.)

She argues that these statutes show Stock’s “actual knowledge” and, therefore,

“liability due to his legal duty as Defendant Van Sickle’s supervising physician.”

(Id. at 13, 13 n.1.)

Here, Plaintiff has not sufficiently alleged facts to support supervisor liability

under Bivens against any of the Warden Defendants, Beyer, or Stock. While there

can be no doubt that Plaintiff plausibly alleged that Phillips suffered from a

sufficiently serious medical need – a diagnosed epileptic seizure disorder, she has

not plausibly alleged that any of these Defendants acted with a sufficiently

7 Plaintiff quotes Shadrick v. Hopkins Cty. Ky., 805 F.3d 724 (6th Cir. 2015), in

support of her failure to train claims. (Id. at 19.) The Shadrick court was assessing

the propriety of summary judgment, not the sufficiency of pleadings.

culpable state of mind. Plaintiff alleges that the Warden Defendants are

responsible for the day-to-day operations at LSCI Butner and its policies regarding

medical treatment. Yet, even assuming she sufficiently alleged inadequate

policies, she has not plausibly alleged how any of these Warden Defendants or

Beyer, another Policymaking Defendant, had actual knowledge that any of these

policies were allegedly deficient or that the policies were harming “high-risk

inmates” like Phillips. There are no plausible allegations of “continued inaction in

the face of documented widespread” problems that would have put these

Defendants on notice. To the contrary, Plaintiff alleged that Holland, Andrews,

Hollembaek, and Thomas Smith developed the Complex Supplement so that

inmates could obtain medical treatment efficiently, securely, and effectively.

Pursuant to these policies, medical screening with medical staff interviewing and

assessing the inmate and reconciling his medications was to take place promptly

on all new arrivals. The fact that the policy requires inmates without immediate

medical needs to receive a physical examination within fourteen days of arrival

cannot plausibly be read to imply that inmates with serious medical needs would

not be expected to receive a physical examination more quickly.

As for the North Carolina statutes governing Van Sickle and Stock, Plaintiff

cites no law that these statutes support an allegation that Stock had actual

knowledge of a substantial risk to Phillips for purposes of an Eighth Amendment

claim. This is understandable because even if it were reasonable to infer from the

allegations that Stock did not give Van Sickle a written policy about prescribing

medications or a written policy about periodic reviews of the drugs being

prescribed, these actions do not plausibly suggest responsibility under the Eighth

Amendment. Even if Stock were statutorily responsible for Van Sickle’s

prescription of Divalproex, that was the one anti-epileptic medication that was

prescribed. None of this plausibly alleges Stock’s actual knowledge of a

substantial risk to Phillips due to Van Sickle’s conduct, nor do any other facts8.

Similarly, Plaintiff has not plausibly alleged that any of the Policymaking

Defendants who were allegedly responsible for training Perkinson had notice that

she was violating inmates’ constitutional rights and consciously chose not to

remedy the situation with appropriate training. The same is true for Stock who

was alleged to have failed to train Van Sickle. Moreover, it is not reasonable to

infer from Plaintiff’s allegations that “circumstances suggest that” any of these

Defendants “had been exposed to information concerning” a “longstanding,

pervasive, well-documented, or expressly noted” “substantial risk” such that any

of them “must have known” about the “substantial risk” to Phillips, Farmer, 511

U.S. at 842-43. In sum, Plaintiff has not plausibly alleged “continued inaction” by

any of these Defendants “in the face of documented widespread abuse”, Slakan,

8 In her response in opposition, Plaintiff included Stock among the Clinical

Defendants. (Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 7-15.) To the extent that her

opening general arguments about the Clinical Defendants’ deliberate indifference

apply to Stock, (see id. at 7-10), they are even more unpersuasive. Plaintiff argues

these Clinical Defendants “came into contact with Mr. Phillips” and “were all privy

to [his] records”, (id. at 8), yet she never alleges these facts against Stock, (see

Am. Compl. ¶¶ 31, 61), and it is not reasonable to infer them.

737 F.2d at 373, or that any of them were aware that subordinates were violating

inmates’ constitutional rights in the face of inadequate policies or training.

Because Plaintiff’s Bivens action is dismissed against Defendants for failure to

state a violation of the Eighth Amendment, it is unnecessary to determine if

qualified immunity protects these Defendants.

Anticipating the possibility that her allegations against the Warden

Defendants may be insufficient, Plaintiff requests in her response in opposition to

their motion “that, instead of dismissing these claims, Plaintiff be given leave to

amend her complaint to remedy the deficiency.” (Pl.’s Opp’n to Defs.’ Mot. to

Dismiss at 19.) A motion for leave to amend is required under these

circumstances, because it does not appear the Warden Defendants consent to

such amendment. See Fed. R. Civ. P. 15(a)(2). Rule 7(b) of the Federal Rules of

Civil Procedure provides that “[a] request for a court order must be made by

motion”, and Local Rule 7.3(a) states that “[e]ach motion shall be set out in a

separate pleading.” Furthermore, Local Rule 15.1 requires the moving party to

“attach the proposed amended pleading to the motion.” Plaintiff has followed

none of these procedures despite being represented by counsel who previously

amended the complaint upon the action’s removal to this Court. Instead, Plaintiff

has tucked away her request in a lengthy response brief. As a result, the parties

have not briefed the propriety of granting Plaintiff leave to amend as they

necessarily would have done had Plaintiff properly sought leave to amend.

Plaintiff’s request is denied.

Beyer, Rosenthall, DeNuzzia, Lane, and Hackett (collectively “Clinical

Defendants”) argue that Plaintiff has failed to state a claim of deliberate

indifference against them. Beyer and Rosenthal contend that there are no facts

alleging that their participation in Phillips’s MLMR was deliberately indifferent to his

serious medical needs or injured him. (Mem. of Law in Supp. of Mot. to Dismiss at

9-10.) Although Plaintiff alleges that DeNuzzia did have contact with Phillips prior

to his death when she read his PPD test on May 18 and he requested his

medications from her but did not receive them, DeNuzzia argues that Plaintiff fails

to allege she knew of Phillips’s medication regime or had the authority,

responsibility, or ability to provide the medication to Phillips. (Id. at 10-11.) Lane,

the pharmacy provider, contends that the allegation that “there is no record of

why” Divalproex was not dispensed reveals that Plaintiff has no basis to assume

that Lane was the reason why it was not dispensed. (Id. at 11.) She argues that

Plaintiff also fails to allege that she read the alleged notation that Phillips was to

receive Divalproex, knew the medication was not dispensed, knew of Phillips’s

medication regime, or would have been the one to dispense those medications. (Id.

at 11-12.) Hackett argues that he is merely alleged to have participated in

resuscitation efforts after Phillips’s death, which contravenes a claim of deliberate

indifference. (Id. at 12.)

Plaintiff responds9 that the Clinical Defendants “came into contact with Mr.

Phillips”, they “were all privy to [his] records”, and “one of the first things [a

medical professional] does is review the patient’s medical records.” (Pl.’s Opp’n to

Defs.’ Mot. to Dismiss at 7-8.) She contends that she “specicifally pled” that

“each” of the Clinical Defendants was “actually aware of Mr. Phillips’s serious

seizure disorder” when she alleged

Each of the Defendants knew at the time of his or her acts and

omissions that Mr. Phillips: (1) suffered from a serious medical

condition – a severe seizure disorder; (b) required high, twice-daily

doses of three different medications (Vimpat, Depakote, and Keppra),

which were necessary to control his seizure disorder and prevent

seizures; (c) would be at great risk of suffering from sudden tonic-

clonic seizures if not given the medication; (d) had repeatedly

requested the medications; (e) was feeling physically ill and

experiencing declining health as a result of not receiving his

medications; and (f) was at risk of death if he did not receive proper

medication attention, including administration of his medications.

(Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 8, 9 (citing Am. Compl. ¶ 115).) In

addition, Plaintiff contends that the Clinical Defendants’ knowledge can be inferred

because Phillips’s “condition was ‘longstanding, pervasive, well-documented, or

expressly noted by prison officials in the past, and the circumstances suggest that

the defendant-official being sued had been exposed to information concerning the

9 Plaintiff has requested oral argument in response to Defendants’ motion to

dismiss. Because the parties have thoroughly briefed the issues and Plaintiff has

not brought to the Court’s attention special considerations she believes warrant

oral argument, see L. Civ. R. 7.3(c)(1), oral argument is determined to be

unnecessary.

risk and thus must have known about it”. (Id. at 10 (quoting Parrish, 372 F.3d at

303).)

Specifically, Plaintiff argues that because Beyer was alleged to be

“’responsible for all health care delivered at FCC Butner’ including ‘reviewing

applications and credentials for membership to the medical staff, interviewing

prospective physicians and mid-level providers, implementing and monitoring in-

house Continuing Professional Education (CPE) training, maintaining the quality of

health records, supervising Medical Officers, and evaluating patient care” that it is

reasonable to infer that Beyer “had knowledge of Judge Conrad’s

recommendation”, “was made aware of Mr. Phillips’s presence at FCC Butner”,

and that she “oversaw and was directly involved in the assignment of inmates with

serious medical needs to her staff.” (Id. at 10-11 (quoting Am. Compl. ¶ 21).)

Plaintiff also argues that Beyer’s alleged10 lack of awareness of Phillips’s presence

at LSCI Butner “alone” is “evidence of her failures as LSCI Clinical Director and her

deliberate indifference to Mr. Phillips’s serious seizure disorder.” (Id. at 11-12.)

According to Plaintiff, because Rosenthal was Phillips’s attending physician

at FCC Butner, her lack of awareness of his presence and her failure to review his

medical records support deliberate indifference. (Id. at 11.)

10 Plaintiff describes this allegation as Beyer’s argument. Although Beyer refers in

her brief to her alleged lack of knowledge of Phillips’s presence, it is Plaintiff who

alleged this against Beyer in the first place. (See Am. Compl. ¶ 90.)

Plaintiff next asserts that because DeNuzzia read Phillips’s PPD test that “it

is reasonable to infer that [she] reviewed Mr. Phillips’s medical records”, “a cursory

review of [which] would have revealed his serious and life-threatening seizure

disorder.” (Id. at 14.) Her alleged denial of Phillips’s request for his medications “is

clear deliberate indifference”. (Id. at 15.)

Plaintiff contends that “[i]t is wholly reasonable to infer that [] Lane, as one

of the registered nurses responsible for administering inmates’ prescriptions, was

aware of the warnings associated with stopping seizure medications abruptly.” (Id.

at 15.) Therefore, Lane’s alleged failure to dispense Divalproex “deliberately and

indifferently” ignored “the ‘substantial risk of serious harm’ to Mr. Phillips.” (Id. at

15-16.)

Plaintiff “presume[s]” that Hackett, who is alleged to have initiated CPR on

Phillips, was a nurse on Phillips’s unit, “was thus involved in and aware of Mr.

Phillips’s clinical care during his four days there”, and “would have accessed Mr.

Phillips’s medical records” revealing his seizure disorder. (Id. at 16.) Plaintiff also

argues that it is reasonable to infer that Hackett was one of Phillips’s “care

providers” from whom Phillips requested, but was denied, his medication,

demonstrating Hackett’s deliberate indifference. (Id.)

As to Beyer, Rosenthal, DeNuzzia, and Hackett, Plaintiff has failed to state a

claim of deliberate of indifference. As above, because she has not sufficiently

alleged a constitutional violation, it is unnecessary to determine whether qualified

immunity protects these Clinical Defendants. Most of Plaintiff’s allegations and

arguments against Beyer sound in supervisor liability, as addressed above. (See,

e.g., Am. Compl. ¶ 21 (alleging that as Clinical Director of LSCU Butner, Beyer is

“responsible for clinical care provided there” and “provides clinical oversight and is

responsible for all health care delivered at FCC Butner”).) Beyer’s participation in

Phillips’s MLMR is not alleged nor argued to have been deliberately indifferent.

Furthermore, not only does Plaintiff allege that Beyer was not aware of Phillips’s

presence, (Am. Compl. ¶ 90), but it is not reasonable to infer from the broad fact

that Beyer was allegedly responsible for all health care delivered at FCC Butner that

she would have directly assigned Phillips to her staff. Even if it were reasonable to

do so, such an inference does not sufficiently support Beyer’s deliberate

indifference towards Phillips. Furthermore, despite Plaintiff’s argument, “that

[Beyer] never saw or was even aware of Mr. Phillips during his incarceration” is

insufficient, even coupled with the other allegations in which she is referenced and

their reasonable inferences, to support a claim of deliberate indifference. The facts

alleged do not paint a picture of Beyer comparable to that of the prison official in

Brice v. Virginia Beach Correctional Center, 58 F.3d 101 (4th Cir. 1995) cited in

Pl.’s Opp’n to Defs.’ Mot. to Dismiss at 11, because no facts plausibly allege that,

for example, she failed “to verify underlying facts that [s]he strongly suspected to

be true, or declined to confirm inferences of risk that [s]he strongly suspected to

exist”, Farmer, 511 U.S. at 843 n.8.

Similarly, Rosenthal’s participation in Phillips’s MLMR is not alleged to have

been deliberately indifferent. And, like Plaintiff’s argument against Beyer, “that

[Rosenthal] did not know [Phillips] was at the prison”, (Am. Compl. ¶ 30), even

coupled with other allegations in which she is referenced and their reasonable

inferences, is insufficient to show that, for example, she, too, failed to confirm

underlying facts or inferences of risk she strongly suspected to exist.

DeNuzzia’s failure to give Phillips “his medications” that he requested of her

when she read his PPD test at 6:46 a.m. on May 18 was also not deliberately

indifferent, even if it is reasonable to infer that DeNuzzia reviewed Phillips’s

records that documented his serious seizure disorder. Also among the records was

a prescription for Divalproex written around 3:25 p.m. on May 17. Although

Phillips’s MAR was blank at the time, there are no allegations from which it is

reasonable to infer that DeNuzzia, a Registered Nurse present at 6:46 a.m. to read

Phillips’s PPD test, had knowledge that the prescription written the previous

afternoon would not be filled or that the medication would not be dispensed.

Likewise there are no allegations that she strongly suspected as much but failed to

investigate. In sum, Plaintiff has not plausibly alleged that DeNuzzia was actually

aware of the substantial risk to Phillips when she denied his request for his

medications.

Hackett is merely alleged to be a Registered Nurse employed at FCC Butner

who, along with Perkinson and Bunn, initiated CPR, conduct which is not alleged

to have been deliberately indifferent. Despite Plaintiff’s arguments, it is not

reasonable to infer from these very limited allegations any of what Plaintiff

proposes: that Hackett must have been a nurse working on Granville B, the unit to

which Phillips was assigned (which is not alleged in the Amended Complaint), that

Hackett would have accessed Phillips’s records during his incarceration prior to this

death, or that Hackett was among the unnamed medical staff who denied Phillips’s

requests for medications.

On the other hand, Plaintiff has stated a claim of deliberate indifference

against Lane. Lane, a Registered Nurse, is alleged to have been “the pharmacy

provider” during Phillips’s incarceration at LSCI Butner. Although Van Sickle

prescribed Divalproex for Phillips on May 17, that prescription was never filled or

dispensed. On May 18, “a notation” “indicated Mr. Phillips was to receive

Divalproex”, but Lane allegedly “did not issue that medication to Mr. Phillips” nor is

there a record of why the medication was not dispensed as ordered. It is

reasonable to infer that, as both a Registered Nurse and the pharmacy provider,

Lane would have been aware of the BOP formulary for Divalproex and the dangers

posed to inmates suffering from epileptic seizure disorders when they do not

receive their anti-epileptic medications. Accordingly, Plaintiff has sufficiently

alleged that Lane’s failure to fill and dispense the Divalproex prescription was

deliberately indifferent to Phillips’s serious medical needs. See Smith, 589 F.3d at

738-39 (identifying a prison official’s intentional interference with prescribed

treatment as among the ways in which deliberate indifference can manifest)

(quoting Estelle v. Gamble, 429 U.S. 91 (1976)). And, because Phillips’s right to

have a prison official not intentionally interfere with his prescribed treatment has

been clearly established for decades, see Estelle, 429 U.S. at 104-05, qualified

immunity does not protect Lane at this stage of the litigation.

Although Plaintiff’s request for leave to amend as to the Warden Defendants

has been denied under these circumstances and she asks that Defendants’ motion

to dismiss be denied without prejudice to their reasserting the same arguments

after discovery, the motion to dismiss is granted without prejudice in part as to

Holland, Revell, Andrews, Hollembaek, Thomas Smith, Donna Smith, Swain, Beyer,

Rosenthal, Stock, DeNuzzia, and Hackett. The motion is denied in part as to Lane.

Perkinson separately moves to dismiss on the basis of qualified immunity

and argues that Plaintiff has failed to plead sufficiently that Perkinson “knowingly

violated a constitutional right, what those rights might have been to determine if

they were clearly established at the time of the incidents, or . . . that [Perkinson]

knew and understood that her respective conduct was violating a constitutional

right.” (Perkinson’s Br. in Supp. of Mot. to Dismiss at 5-6 [Doc. #71].) She relies

almost entirely on Quintana v. Santa Fe County Board of Commissioners, No. CIV

18-0043 JB/LF, 2019 WL 452755 (D.N.M. Feb. 5, 2019), an unpublished district

court case whose appeal is pending before the Tenth Circuit Court of Appeals,

because of the factual similarities. (See Perkinson’s Br. in Supp. of Mot. to Dismiss

at 7-14.)

Plaintiff responds that she has sufficiently alleged that Perkinson violated

Phillips’s Eighth Amendment right, that right was clearly established at the time,

and any reasonable officer would have known her conduct was unconstitutional.

(Pl.’s Opp’n to Def.’s Mot. to Dismiss at 5-18 [Doc. #76].) More specifically,

Plaintiff advances the same arguments as she did in response to the Clinical

Defendants’ motion to dismiss. She argues that she “specifically pled” that