# BERRY v. UNITED STATES OF AMERICA

> District Court, D. New Jersey · December 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10274341

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
______________________________

GREGORY MAC DONALD :
BERRY, :
: Civ. No. 22-6113 (RMB-AMD)
Plaintiff. :
:
v. :
: OPINION
UNITED STATES OF AMERICA, :
et al., :
:
Defendants. :
______________________________ :

RENÉE MARIE BUMB, United States District Judge
Plaintiff Gregory Mac Donald Berry, a federal prisoner incarcerated in the
Federal Correctional Institution in Fairton, New Jersey ("FCI Fairton"), filed this
civil suit under 42 U.S.C. § 1983, alleging medical malpractice and deliberate
indifference to his serious medical needs while incarcerated in various federal
prisons, most recently in FCI Fairton. Plaintiff paid the filing fee but submitted an
IFP application (IFP App., Docket No. 1-1) under 28 U.S.C. § 1915(a), for the
purpose of obtaining service of the summons and complaint on the defendants by the
United States Marshals Service. Although Plaintiff submitted a statement of his
inmate trust account, it is not a certified statement signed by the appropriate prison
official, as required under 28 U.S.C. § 1915(a)(2). Therefore, his IFP application will
be denied without prejudice. For the reasons, discussed below, Plaintiff's complaint
may proceed in part and will be dismissed in part, with leave to file an amended
complaint, if he can allege additional facts supporting those claims that are dismissed

without prejudice.
I. SUA SPONTE DISMISSAL
When a prisoner files a complaint and brings claims against a governmental
entity or officer or employee of a governmental entity, 28 U.S.C. § 1915A(b) or

brings claims concerning prison conditions, 42 U.S.C. § 1997e(c)(1), courts must
review the complaint and sua sponte dismiss any claims that are: (1) frivolous or
malicious; (2) fail to state a claim on which relief may be granted; or (3) seek
monetary relief against a defendant who is immune from such relief. Courts,
however, must liberally construe pleadings that are filed pro se. Erickson v. Pardus,

551 U.S. 89, 94 (2007). The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for
dismissal under Federal Rule of Civil Procedure 12(b)(6). See, Schreane v. Seana, 506
F. App’x 120, 122 (3d Cir. 2012). “To survive a motion to dismiss, 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. (quoting Twombly, 550
U.S. at 556.) This Court will screen the complaint and will then consider, pursuant
to Federal Rule of Civil Procedure 21, whether the claims and defendants are
properly joined under Federal Rules of Civil Procedure 18 and 20.
II. THE COMPLAINT

Plaintiff asserts jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §
1346(b) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). The defendant to the FTCA claim is the United States of America,
and the defendants to the Bivens claims, in their individual and official capacities, are

RN C. Hansen, Dr. Abigail Lopez De LaSalle, D.O. Ellen Mace-Leibson, and
ARNP Camilla Hansen.
Plaintiff seeks damages and declaratory and injunctive relief against the
United States of America for medical malpractice under the Federal Tort Claims
Act, and also against the individual defendants under Bivens for deliberate

indifference to his serious medical needs. Plaintiff was incarcerated in various
correctional institutions within the Federal Bureau of Prisons from at least 2011 to
the present. He was transferred to FCI Fairton in October 2018.
After Plaintiff was diagnosed with Stage III kidney disease in 2014. He was
advised to avoid taking NSAIDS. However, he was prescribed NSAIDS to treat his

chronic pain for 61 out of 99 months during his incarceration within the Federal
Bureau of Prisons ("BOP") in Indiana, Arizona and New Jersey. He alleges medical
malpractice for prescribing him medication that worsened his kidney disease.
In August 2012, Plaintiff was diagnosed with reflux esophagitis ("GERD").
Over the next three years at USP Tuscon, his treatment with omeprazole controlled
his severe GERD symptoms. After he was transferred to Terre Haute, Indiana, he
was treated in the chronic care clinic with omeprazole. After he was transferred to
FCI Fairton, on October 10, 2018, Dr. Lopez discontinued his prescription for

omeprazole and removed him from the chronic care clinic, advising him instead to
purchase ranitidine from the commissary. One day later, and through May 19, 2021,
Plaintiff was placed back in the chronic care clinic and supplied with omeprazole,
but only when the medication was not available for his purchase in the commissary.
On December 23, 2020, a physician's assistant documented that omeprazole

was clinically indicated for Plaintiff's treatment. That same day, D.O. Mace-Leibson
signed a discontinuation of Plaintiff's prescription for omeprazole, based on the
pharmacist's note that he did not qualify for a prescription. He was advised to
purchase omeprazole at the commissary. After May 2021, when Plaintiff requested
omeprazole from RN C. Hansen when it out-of-stock in the commissary, she refused

and told him to buy Tums and Mylanta. Without omeprazole, Plaintiff suffers pain
from GERD. Further, he alleges his use of omeprazole requires monitoring in the
chronic care clinic because omeprazole has potential for kidney toxicity. In addition
to a medical malpractice claim, he alleges Dr. Lopez, D.O. Mace-Leibson, and RN
C. Hansen were deliberately indifferent to his serious medical needs, in violation of

the Eighth Amendment.
Plaintiff also suffered from a lactose intolerance, which was noted in his
medical records on January 19, 2011. He was approved for a lactose-free diet, but he
allowed this to lapse. Years later, in 2017, he requested an evaluation for a wheat
allergy, reporting that when he eliminated wheat from his diet his bowel symptoms
disappeared. Staff in Health Services advised him that his test results did not support
a food allergy, but he could continue to self-select gluten-free food if it alleviated his

symptoms. After complaining of bowel symptoms in February 20, 2020, Plaintiff's
medical records indicated that he may have irritable bowel syndrome or
gastroenteritis. On June 14, 2021, Plaintiff told RN C. Hansen that his bowel
symptoms arose after eating gluten. She told Plaintiff to continue to self-select
gluten-free food, and she diagnosed irritable bowel syndrome.

In August 2021, Plaintiff complained of a lack of gluten-free items in the
commissary and "chowhall." His gluten test result was "out of range." In September
2021, NP Camilla Hansen told Plaintiff that his lab tests indicated a gluten
intolerance, not an allergy. Therefore, a gluten-free diet was not indicated, but he
could self-select gluten-free food. Plaintiff alleges that due to the lack of sufficient

gluten-free products available to him, he must choose between malnutrition or
suffering gastrointestinal symptoms. He asserts claims of medical malpractice and
deliberate indifference to his serious medical need by NP Camilla Hansen, who
denied his request for a gluten-free, lactose-free special diet.
Plaintiff also suffered from chronic pain. He was first treated for upper back

pain in 2011. In 2016 and 2017, he was treated with steroid injections and physical
therapy for shoulder pain. From January 2018 through January 2019, he was
prescribed pain medications, to no avail. In January 2019, his x-ray showed mild
degenerative disc disease. In February 2019, he was prescribed Meloxicam. In July
2019, he reported Meloxicam was ineffective. In September 2020 through June 2021,
Plaintiff reported extreme pain in his shoulder and neck, with frequent headaches.
Plaintiff had an x-ray in June 2021, resulting in his diagnosis with osteoarthritis. A

physician's assistant prescribed twice-daily acetaminophen, and placed Plaintiff in
the rheumatology chronic care clinic. One month later, D.O. Mace-Leibson
discontinued the acetaminophen prescription and rheumatology chronic care clinic.
She referred Plaintiff to the commissary to purchase over-the-counter medications.
In August 2021, and again in April 2022, Plaintiff reported that the over-the-

counter medications were not relieving his shoulder and neck pain. Dr. Lopez
recommended exercises. Plaintiff continued to complain of constant neck and
shoulder pain and frequent headaches. Dr. Lopez told him that she would not
provide any additional treatment because he is a prisoner and not entitled to the
same treatment as someone who did not commit a crime. Plaintiff asserts Dr. Lopez

and D.O. Mace-Leibson were deliberately indifferent to his serious medical needs, in
violation of the Eighth Amendment.
III. DISCUSSION

A. Federal Tort Claims Act

Plaintiff brings medical malpractice claims against the United States of
America based on alleged negligence in providing his medical care while
incarcerated within the BOP. The Court will liberally construe Plaintiff's allegation
that he exhausted all administrative remedies and assume exhaustion of remedies
required under the Federal Tort Claims Act, 28 U.S.C. § 2675(a). "This exhaustion
requirement 'is jurisdictional and cannot be waived.'" Priovolos v. Fed. Bureau of
Investigation, 686 F. App'x 150, 152 (3d Cir. 2017) (quoting Roma v. United States, 344

F.3d 352, 362 (3d Cir. 2003) (citation omitted).
There is a two-year statute of limitations, from the date of accrual, for filing a
tort claim notice against the Government with the appropriate agency. 28 U.S.C. §
2401(b). Some of Plaintiff's FTCA claims appear to have accrued more than two
years before he filed this action. However, "the FTCA's statute of limitations is not

jurisdictional" and it is the "defendant's burden to establish the date when the
plaintiff knew, or reasonably should have known, of the cause of his injury." Hughes
v. United States, 263 F.3d 272, 278 (3d Cir. 2001) (citations omitted). Therefore,
Plaintiff's FTCA claims may proceed past screening for sua sponte dismissal.

B. Bivens Claims

The Eighth Amendment prohibits deliberate indifference to a prisoner's
serious medical need. Greenland v. United States, 661 F. App'x 210, 215 (3d Cir. 2016)
(citing Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)). Federal prisoners can bring
such claims for damages in a Bivens action. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855
(2017) (citing Carlson v. Green, 446 U.S. 14, 19 (1980). A medical need is "serious"
under circumstances where: 1) it has been diagnosed by a physician as requiring
treatment or is so obvious that a lay person would recognize the need for treatment;
or (2) denial or delay in providing medical care results in unnecessary or wanton
infliction of pain. Greenland, 661 F. App'x at 215 (citing Monmouth Cnty. Corr.
Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).
Deliberate indifference involves the denial of reasonable
requests for medical treatment that exposes the inmate to
suffering or the threat of residual injury, or the intentional
refusal to provide care when the need for that care is
known, or the opting for “ ‘an easier and less efficacious
treatment’ ” under some circumstances, or the deliberate
prevention of the recommended treatment.

Id. (quoting Lanzaro, 834 F.2d at 346-47.) However, "[m]ere negligence or mere
disagreement about a course of treatment does not state a claim of cruel and unusual
punishment." Id. (citing Lanzaro, 834 F.2d at 346).
1. Bivens Claims Against Dr. Lopez
Plaintiff asserts two Bivens claims against Dr. Lopez. First, that she removed
him from the gastrointestinal chronic care clinic so the prison would not have to pay
for his omeprazole. This claim presents a disagreement with Dr. Lopez's professional
judgment that Plaintiff did not require chronic care monitoring for his use of
omeprazole, and that he could treat his GERD symptoms by purchasing over-the-
counter medication as needed. "As long as a physician exercises professional
judgment his behavior will not violate a prisoner's constitutional rights. Brown v.
Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). This Bivens claim will be
dismissed without prejudice for failure to state a claim.
Plaintiff's second Bivens claim against Dr. Lopez is that she ignored his
complaints of headache and pain from osteoarthritis because an inmate is not
entitled to the same medical treatment as someone who has not committed a crime.
This claim may proceed against Dr. Lopez, not because she made this statement,
but rather because Plaintiff alleges she refused to provide any further treatment after

he reported the prescribed exercises were not helpful, and he continued to suffer
pain.
2. Bivens Claims Against D.O. Mace-Leibson
Plaintiff asserts two Bivens claims against D.O. Mace-Leibson. First, he alleges

she violated the Eighth Amendment by discontinuing his participation in the chronic
care clinic to monitor his kidney disease while taking omeprazole, a medication he
alleges can damage the kidneys. This claim presents a disagreement with D.O.
Mace-Leibson's professional judgment that close monitoring of Plaintiff's use of
omeprazole was unnecessary. See Brown, 903 F.2d at 278. Therefore, this claim will

be dismissed without prejudice.
Plaintiff's second claim against D.O. Mace-Leibson is for removing him from
the rheumatology clinic and discontinuing his prescription for acetaminophen after
another medical provider prescribed such treatment. The allegations in the
complaint demonstrate that acetaminophen was available to Plaintiff to purchase

from the commissary, and that Plaintiff continued to receive treatment for
osteoarthritis until Dr. Lopez allegedly refused to provide any further treatment after
prescribed exercises failed. Plaintiff's disagreement with D.O. Mace-Leibson's
medical judgment concerning his participation in the rheumatology chronic care
clinic and prescription for acetaminophen to treat his osteoarthritis do not rise to the
level of deliberate indifference. This claim will be dismissed without prejudice.
3. Bivens Claim Against RN C. Hansen

Plaintiff alleges RN C. Hansen was deliberately indifferent to his need for
omeprazole to treat GERD, by refusing to provide it to him when it was out-of-stock
in the commissary. She told him to buy Mylanta and Tums instead. In the absence of
a medical finding that Plaintiff must exclusively be treated with omeprazole, his

assertion that Mylanta and Tums were inappropriate treatment on the occasions
when omeprazole was out-of-stock does not rise to the level of deliberate
indifference. This Eighth Amendment claim will be dismissed without prejudice.
4. Bivens Claim Against NP Camilla Hansen
Plaintiff alleges NP Camilla Hansen was deliberately indifferent to his serious

medical need for a gluten-free, lactose-free diet because he suffered from IBS caused
by intolerance to foods containing dairy and wheat. According to the allegations in
the complaint, NP Camilla Hansen explained to Plaintiff that a gluten-free diet was
not indicated because his lab tests did not show a gluten allergy. His gluten
intolerance could be managed by self-selecting gluten-free foods. Plaintiff complained

there were not enough gluten-free foods available to him. There is little about his
lactose intolerance in the complaint, only that he was prescribed a lactose-free diet
years earlier but allowed it to lapse. Because NP Camilla Hansen exercised her
professional judgment after testing Plaintiff for food allergies, the complaint fails to
state her deliberate indifference to a serious medical need. This claim will be
dismissed without prejudice.
C. Motion for Preliminary Injunctive Relief Withdrawn

After filing his original complaint, Plaintiff filed a motion for preliminary
injunctive relief (Docket No. 2), raising a new medical claim not included in his
original complaint. Shortly thereafter, however, Plaintiff filed a motion to withdraw
his motion for preliminary injunctive relief. (Docket No. 3.) The Court will grant his

motion to withdraw his prior motion.
IV. CONCLUSION
For the reasons discussed above, Plaintiff's complaint may proceed in part and
is dismissed in part without prejudice.

Date: December 7, 2022
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274341. Public record. Not legal advice.