Rhines v. Ball

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

GARY RHINES, :

Plaintiff : CIVIL ACTION NO. 3:18-1643

v. : (JUDGE MANNION)

DR. DAVID BALL, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Gary Rhines, an inmate formerly housed1 in the Allenwood

Federal Correctional Institution, White Deer, Pennsylvania, filed the above

captioned Bivens2 federal civil rights action pursuant to 28 U.S.C. §1331 and

Federal Tort Claims Action, pursuant to 28 U.S.C. §1346(b).3 (Doc. 1). The

named Defendants are the United States of America and the following

Bureau of Prisons (BOP) employees: National Inmate Appeals Administrator

1 Plaintiff was released from custody and currently resides at 412

Turnberry Ct., Bear, Delaware, 19701.

2 Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

3 Incorporated in the above captioned action is Rhines v. U.S., et al.,

Civil Action No. 3:20-cv-0825. This action raised the same allegations as the

complaint herein, as well as named the same Defendants. Id. Thus, by Order

dated November 5, 2020, the action was consolidated into the instant action.

Ian Conners, former Regional Director Michael Carvajal, Assistant Health

Services Administrator Ryan Parkyn, Warden Stephen Spaulding, Dr.

Thomas Cullen, and Physician Assistant Beth Zalno. Id. Also named as

Defendants are Dr. David Ball, an independent contractor and unknown John

and Jane Does. Id.

Plaintiff alleges that he “has been complaining of back pains and

shoulder problems on or about for two years.” (Doc. 1, complaint). He claims

that his “back pains are worse than the shoulder, so [he] stopped

complaining about the shoulder problems and kept reporting the more

serious problem which is the plaintiff’s back.” Id. Plaintiff “state[s] for the

record that the defendant has given the plaintiff medical treatment.” Id. He

has “followed all the requirement set out by his PA, Physical Therapist,

Orthopedic surgeon, Warden Captain S. Spaulding, Ian Connors,

Administrator National Inmate Appeals and M.D. Carvajal, Regional

Directory, in accordance with program statement 6031.04, Patient Care”. Id.

He alleges that “[his] issue is after completing all the requirements by the

above medical professionals, the plaintiff went back to sick-call explaining

that the medicine does not stop the pain, physical therapy does not stop the

pain, exercises for the back does not work” and he explained “that all the

treatment has failed and [he] requested an MRI to determine what is causing

the pain.” Id. He claims that he has “been denied at all levels for MRI, and

now every time [he] report[s] to sick-call PA Zalno says her hands are tied

and she can’t do anything for me, that she did all she could do and that

[Plaintiff] was denied an MRI for clinical reasons.” Id. PA Zalno stated that

she “had a follow up with in-house Dr. Cullen and she state[d] if Dr. Cullen

thought that [you] needed an MRI on [your] back he would of requested an

MRI.” Id.

Thus, the Plaintiff filed the instant action claiming Defendants’ denial

of an MRI “constitutes deliberate indifference to plaintiff serious medical

needs in violation of the Eighth Amendment to the United States Constitution

and defendants were negligent for intentional actions of prison officials;

injuries caused by unintentional (negligent) actions or omissions by prison

official[s]” and that “staff action also violate 28 U.S.C. §1346(b).” Id. For relief,

Plaintiff seeks compensatory and punitive damages, as well as declaratory

relief and injunctive relief, ordering Defendants “immediately arrange for the

Plaintiff to receive an MRI on his back by a qualified physician.” Id.

Presently before the Court is a motion to dismiss and for summary

judgment, filed on behalf of Defendants Conners, Carvajal, Parkin,

Spaulding, Cullen, Zalno and the United States of America, (Doc. 34);

Plaintiff’s motion for summary judgment, (Doc. 63); and a motion to dismiss

filed on behalf of Defendant Dr. David Ball. (Doc. 102). While the parties’

cross-motions for summary judgment have been fully briefed, Plaintiff, in

spite of being directed to do so, (Doc. 118), has never filed a brief in

opposition to Defendant, David Ball’s motion to dismiss.

For the reasons that follow, the Court will grant Defendant Ball’s motion

as unopposed, grant the remaining Defendants motion to dismiss and for

summary judgment and deny Plaintiff’s motion for summary judgment.4

II. Standards of Review

a. Summary Judgment

Federal Rule of Civil Procedure 56(a) requires the court to render

summary judgment “if the movant shows that there is no genuine dispute as

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

law.” Fed. R. Civ. P. 56(a). “[T]his standard provides that the mere existence

of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement

4 Because the John and Jane Doe Defendants have never been

identified in the above captioned action, which has been pending for more

than two years, the Court dismisses these Defendants pursuant to

Fed.R.Civ.P. 21, which provides that “on motion or on its own, the court may

at any time, on just terms, add or drop a party.” Fictitious names may be

used until reasonable discovery permits the actual defendants to assume

their places, but John and Jane Doe defendants must eventually be

dismissed if discovery yields no identities. See Parker v. United States, 197

Fed. Appx. 171, 173 n.1 (3d Cir. 2006).

is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence

would affect the outcome of the case under applicable substantive law. Id. at

248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An

issue of material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at

257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am.,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact,

the court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.

Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse

Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary

judgment, however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. When the party seeking

summary judgment satisfies its burden under Rule 56 of identifying evidence

which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with

affidavits, depositions, answers to interrogatories or the like in order to

demonstrate specific material facts which give rise to a genuine issue.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the

motion “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio,

475 U.S. 574, 586 (1986). When Rule 56 shifts the burden of production to

the nonmoving party, that party must produce evidence to show the

existence of every element essential to its case which it bears the burden of

proving at trial, for “a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d

846, 851 (3d Cir. 1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party.

White, 826 F.2d at 59. In doing so, the Court must accept the nonmovant’s

allegations as true and resolve any conflicts in his favor. Id. (citations

omitted). However, a party opposing a summary judgment motion must

comply with Local Rule 56.1, which specifically directs the oppositional party

to submit a “statement of the material facts, responding to the numbered

paragraphs set forth in the statement required [to be filed by the movant], as

to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement

required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard

simply by citing the fact that he is a pro se litigant. These rules apply with

equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL

2853261, at *5 (M.D. Pa. July 20, 2010) (pro se parties “are not excused

from complying with court orders and the local rules of court”); Thomas v.

Norris, No. 02-CV-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)

(pro se parties must follow the Federal Rules of Civil Procedure).

b. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure

12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes the Court to

dismiss an action for lack of subject matter jurisdiction. Motions brought

under Rule 12(b)(1) may present either a facial or factual challenge to the

Court’s subject matter jurisdiction. Gould Elecs., Inc. v. United States, 220

F.3d 169, 176 (3d Cir. 2000). In reviewing a facial challenge under Rule

12(b)(1), the standards associated with Rule 12(b)(6) are applicable. See id.

In this regard, the Court must accept all factual allegations in the complaint

as true, and the Court may consider only the complaint and documents

referenced in or attached to the complaint. In a factual challenge to the

Court’s subject matter jurisdiction, the Court’s analysis is not limited to the

allegations of the complaint, and the presumption of truthfulness does not

attach to the allegations. Mortensen v. First Fed. Sav. & Loan Ass’n, 549

F.2d 884, 891 (3d Cir. 1977). Instead, the Court may consider evidence

outside the pleadings, including affidavits, depositions, and testimony, to

resolve any factual issues bearing on jurisdiction. Gotha v. United States,

115 F.3d 176, 179 (3d Cir. 1997).

Once the Court’s subject matter jurisdiction over a complaint is

challenged, the plaintiff bears the burden of proving that jurisdiction exists.

Mortensen, 549 F.2d at 891. If a dispute of material fact exists, “the [C]ourt

must conduct a plenary hearing on the contested issues prior to determining

jurisdiction.” McCann v. Newman Irrevocable Tr., 458 F.3d 281, 290 (3d Cir.

2006); see also Berardi v. Swanson Mem’l Lodge No. 48, 920 F.2d 198, 200

(3d Cir. 1990) (stating that a district court must ensure that a plaintiff has

“had an opportunity to present facts by affidavit or by deposition, or in an

evidentiary hearing,” to support his claim of jurisdiction (citation omitted)).

c. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure

12(b)(6).

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to

state a claim upon which relief can be granted.” Under Rule 12(b)(6), we

must “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint

need only contain “a short and plain statement of the claim,” Fed.R.Civ.P.

8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Id. at 570. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels

and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is

not bound to accept as true a legal conclusion couched as a factual

allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim must

include at least a discernible factual basis to survive a Rule

12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588

F.3d 180, 184 (3d Cir. 2009) (per curiam).

In resolving the motion to dismiss, we thus “conduct a two-part

analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual

elements from the legal elements and disregard the legal conclusions. Id. at

210-11. Second, we “determine whether the facts alleged in the complaint

are sufficient to show that the plaintiff has a “plausible claim for relief”.” Id. at

211 (quoted case omitted).

III. Statement of Undisputed Facts

On November 4, 2011, while an inmate at the Canaan United States

Penitentiary, Waymart, Pennsylvania, Plaintiff filed Federal Tort Claim TRT-

NER-2012-0238, concerning undercooked chicken at USP-Canaan. (Doc.

51-1 at 9).

On April 11, 2013, Plaintiff was designated to FCI-Allenwood. (Id. at 6).

On August 21, 2014, Plaintiff filed Federal Tort Claim TRT-NER-2014-

06019, regarding the confiscation of a sweatshirt. (Id. at 8). Plaintiff filed no

other Federal Tort Claims while confined at FCI-Allenwood.

On September 16, 2016, Rhines reported to sick call requesting an

MRI of his neck, back and both shoulders. (Doc. 51-1 at 288-290). He was

seen by Defendant Zalno. Id. His weight was 262 pounds. Id. Rhines denied

fever, chills, headache, or any vision changes. Id. Rhines had full range of

motion. Id. Defendant Zalno noted that the March 2, 2016, x-ray of the spine

was negative. Id. Activity restrictions were ordered and Rhines was

instructed on neck pain exercises, to continue with prescribed medication,

and to apply warm compresses. Id.

On January 5, 2017, Rhines reported to sick call complaining of back

pain and was seen by Defendant Zalno. (Id. at 283-286, 327, 329, 335).

Rhines continued to request an MRI. Id. Rhines denies any numbness in

lower extremities, tingling, or loss of bowel/bladder, decrease in strength or

injury/trauma. Id. Rhines expressed concern with the activity restrictions and

requested that they be removed. Id. He claims he performs low back

exercises and stretches and had full range of motion. Id. Defendant Zalno

noted that results from Rhines’ February 19, 2015, x-ray of his lumbar spine

was negative with the exception of mild degenerative disc disease. Id.

On January 11, 2017, an x-ray of Rhines’ lumbar spine was conducted

due to ongoing low back pain. (Id. at 345). The x-ray was normal, showing

no evidence for acute compression fracture or malalignment. Id. The final x-

ray report indicated mild degenerative disease. Id. The results of the x-ray

were reviewed by Defendant Zalno on January 12, 2017. Id. The results of

the x-ray were reviewed and co-signed by Defendant Cullen on January 19,

2017. Id. at 346.

On January 23, 2017, Rhines reported to sick call, requesting the

results of his x-ray of his lower back, and was seen by Defendant Zalno. (Id.

at 278-281, 323-324, 327, 329). Rhines reported non-compliance with his

medication. Id. Rhines continued stretching and reported that his back pain

improves throughout the day and with movement. Id. Rhines denied any new

symptoms since the last visit. Id.

On March 29, 2017, at 11:59 a.m., Rhines was seen by Defendant

Cullen for chronic care clinic. (Id. at 418-420). Rhines complained of left knee

pain. Id. He did not complain of back pain to Defendant Cullen. Id. He

reported compliance with his meds. Id. His weight was 270 pounds. (Id. at

433). Diet, exercise, and weight loss were discussed, and specific

recommendations were made by Defendant Cullen. Id.

On March 29, 2017, at 2:05 p.m., Rhines reported to sick call

complaining of bilateral shoulder pain and was seen by Defendant Zalno. (Id.

at 415-417, 436, 439). Rhines denied weakness, shooting pain and tingling.

Id. He continued to have the ability to do push-ups and exercise. Id. He had

full range of motion and was able to remove his shirt with no difficulty. Id. X-

rays of Rhines shoulders was ordered. Id.

On April 5, 2017, Rhines had an x-ray of his shoulders. (Id. at 485).

The April 5, 2017, x-rays were unremarkable. Id.

On June 6, 2017, a bilateral uppers EMG was completed. (Id. at 406).

The EMG showed mild to moderate bilateral median neuropathy at the wrist

and borderline mild bilateral ulnar neuropathy across the elbow. Id. at 405-

407, 472-479). The EMG was suggestive of peripheral polyneuropathy with

prolongation of all sensory latencies. Id. No evidence of acute cervical

radiculopathy. The EMG results were reviewed by Defendants Cullen and

Zalno on June 7, 2017. (Id. at 407, 479). Rhines was referred back to

orthopedist by Defendant Zalno on June 7, 2017. (Id. at 405).

On July 10, 2017, Rhines was evaluated by Defendant Zalno during

sick call and complained about ongoing back pain for two years. (Id. at 400-

403, 432-433, 436, 439). Rhines was placed on activity restrictions and

medication. Id. Rhines denied any weakness, numbing, tingling, radiating

pain, loss of bowel/bladder control, and injury/trauma. Id. Defendant Zalno

noted the lumbar x-ray result from January 11, 2017, showed Rhines has

mild degenerative disc disease. Id. Rhines’ physical exam showed normal

muscle strength, full range of motion of the lower back, negative straight leg

raise, and normal patellar tendon reflex and gait. Id. Defendant Zalno

requested a one-time physical therapy clinic for low back pain. Id. Rhines

was advised to continue with his current treatment plan, which included anti-

inflammatory medication. Id.

On August 23, 2017, Rhines was seen by Defendant Ball, an outside

orthopedic physician for neuropathy in his wrists. (Id. at 398-399, 469-470).

His orthopedic report was reviewed upon receipt on September 28, 2017, by

Defendants Cullen and Zalno. (Id. at 386-389; 469-470). Defendant Zalno

requested carpal tunnel release surgery and an EMG. Id. at 469. Although

an MRI was recommended for the lumbar spine during the orthopedic

physician’s examination on August 23, 2017, Rhines was specifically being

evaluated for neuropathy in his wrists. Id.

On September 25, 2017, Rhines failed to show for his medical

appointment with Defendant Zalno. (Id. at 391).

On September 28, 2017, Rhines was seen by Defendant Zalno in the

chronic care clinic. (Id. at 386-390, 433, 438, 443-444, 449, 487). Rhines

reported lower back pain and tingling in his right lower extremity. Id. On

September 28, 2017, Rhines’ weight was 264 pounds. Id. Defendant Zalno

noted that the EMG of the lower extremities in November 2014 was within

normal limits. Id. Defendant Zalno requested an EMG of Rhines’ lower

extremities as recommended by the orthopedist on August 23, 2017. Id. A

recent trial of physical therapy was started for Rhines’ lower back pain. Id.

On October 5, 2017, the Utilization Review Committee (URC)5

disapproved of EMG of lower extremities, recommended weight loss

program and then re-evaluate. (Id. at 489).

On October 17, 2017, Rhines was seen by the in-house physical

therapist, for right lower back pain. (Id. at 384, 463-467). The physical

therapist’s report was received and reviewed on October 31, 2017. (Id. at

382-383). The physical therapist noted that Rhines reported that the previous

requested MRI was denied due to his weight. Id. Rhines was given an activity

restriction for sports and weights and provided with illustrated exercises to

5 The URC is an open forum of clinical review, whose approval or

denial of a procedure is at the sole discretion of a clinical director after

reviewing a procedures necessity with clinicians. (Doc. 74 at 2).

follow. Id. A follow-up physical therapy visit for Rhines was scheduled for

November. Id.

On November 8, 2017, Rhines was seen by the in-house physical

therapist. (Id. at 461-462).

On November 29, 2017, an administrative note was made by

Defendant Zalno after Rhines was seen by the physical therapist on

November 8, 2017, for on-going lower back pain. (Id. at 373, 461-462). No

change in physical exam was noted since the last physical therapy clinic. Id.

An MRI of Rhines’ lower spine was recommended during his therapy clinic,

with a target date of March 2, 2018. Id. An MRI of Rhines’ lower spine was

requested by Defendant Zalno and sent to the URC for consideration. Id.

On December 7, 2017, the request for an MRI was denied by the URC

because it was not medically necessary. (Id. at 492).

On December 14, 2017, Rhines reported to sick call inquiring about

the denial of his MRI. (Id. at 372). Rhines was re-scheduled to see the mid-

level practitioner (MLP). Id.

On December 20, 2017, Rhines reported to sick call to discuss with

Defendant Zalno why his MRI was disapproved. (Id. at 371). Rhines was

informed that the MRI was not medically necessary at that time and that he

should continue with the current treatment plan. Id.

On March 5, 2018, Rhines requested to refuse surgery for carpal

tunnel and ulnar nerve issues, stating that “[he] don’t really need it.” Id. at

531, 545, 570. Defendant Zalno counseled Rhines on the consequences and

complications of refusing medical treatment. Id. Rhines continued to refuse

the surgery and signed the refusal form. Id.

On March 6, 2018, Rhines was evaluated by Defendant Cullen during

chronic care clinic. Id. at 527-530, 533-534, 545, 555-556. Rhines reported

feeling good and had no complaints. Id. On March 6, 2018, Rhines’ weight

was 263 pounds. Id.

On July 12, 2018, Rhines reported to sick call complaining of lower

back pain. (Id. at 526). Rhines was re-scheduled to see the mid-level

practitioner (MLP). Id.

On July 20, 2018, Rhines was evaluated by Defendant Zalno for back

pain during sick call. (Id. at 521-525, 533-534, 541, 545). Rhines reported

that his back pain is continuous. A physical exam of Rhines indicated right

lower back mild tenderness on palpation, lower extremities strength

symmetric, patellar tendon reflex is normal, normal gait, full range of motion

of the lower back, normal light touch. Id. Rhines claims he is able to exercise

without difficulty. Id. Rhines stated he only wants an MRI. Id. He was

encouraged to continue with his treatment plan. Id.

On August 20, 2018, Rhines filed the instant action, seeking

compensatory and punitive damages as well as to “immediately arrange for

Plaintiff to receive an MRI on his back by a qualified physician”. (Doc. 1).

IV. Discussion

A. Federal Tort Claims Act

1. Exhaustion

Defendants argue that Plaintiff’s Federal Tort Claim must be dismissed

pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction because Rhines failed to file an FTCA claim regarding

negligence, prior to filing the above captioned action. (Doc. 52). The FTCA

constitutes a statutory waiver of sovereign immunity for tort claims, Gotha v.

United States, 115 F.3d 176, 179 (3d Cir. 1997), and allows the government

to be sued “in the same manner and to the same extent as a private individual

under like circumstances.” See 28 U.S.C. §2674. However, because the

FTCA is an express waiver of sovereign immunity, strict compliance with its

provisions is required. Livera v. First Nat’l Bank, 879 F.2d 1186, 1194 (3d

Cir. 1989).

A prerequisite to suit under the FTCA is that a claim must first be

presented to the Federal agency and be denied by that agency. Specifically,

the FTCA provides:

An action shall not be instituted against the United States

for money damages for injury or loss of property or

personal injury ... unless the claimant shall have first

presented the claim to the appropriate Federal agency and

his claim shall have been finally denied by the agency in

writing and sent by certified or registered mail.

28 U.S.C. §2675(a). “The statutory language is clear that a court does not

have jurisdiction before administrative remedies have been exhausted, and

a court must dismiss any action that is initiated prematurely.” Wilder v.

Luzinski, 123 F. Supp. 2d 312, 313 (E.D. Pa. 2000) (citing McNeil v. United

States, 508 U.S. 106 (1993)).

Thus, prior to commencing an FTCA action against the United States

in federal court, a plaintiff must “first present [ ] the claim to the appropriate

[f]ederal agency” and receive a final denial “by the agency in writing and sent

by certified or registered mail.” 28 U.S.C. §2675(a). A claim is considered to

be presented when the federal agency receives written notification of the

alleged tortious incident and the alleged injuries, together with a claim for

money damages in a sum certain, in the form prescribed by the applicable

federal regulations. 28 C.F.R. §14.2(a). If the receiving federal agency fails

to make a final disposition of the claim within six months from the time it is

filed, that failure is “deemed a final denial of the claim” for purposes of

commencing suit under the FTCA. 28 U.S.C. §2675(a).

The Third Circuit has instructed that “[i]n light of the clear, mandatory

language of the statute, and [the] strict construction of the limited waiver of

sovereign immunity by the United States ... the requirement that the

appropriate federal agency act on a claim before suit can be brought is

jurisdictional and cannot be waived.” Roma v. United States, 344 F.3d 352,

362 (3d Cir. 2003) (citing Livera, 879 F.2d at 1194). The Supreme Court has

likewise explained that “[t]he FTCA bars claimants from bringing suit in

federal court until they have exhausted their administrative remedies.”

McNeil, 508 U.S. at 113 (holding that a court is without jurisdiction to rule on

a prematurely filed action even if an agency denies the related administrative

claim soon after the federal lawsuit is filed). As a result, a district court may

dismiss a claim brought under the FTCA for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1) where the plaintiff has not exhausted his

administrative remedies prior to filing suit. See, e.g., Abulkhair v. Bush, 413

F. App’x 502, 506 (3d Cir. 2011); Accolla v. United States Gov’t, 369 F. App’x

408, 409-10 (3d Cir. 2010) (finding the district court properly dismissed FTCA

claim where the plaintiff filed federal suit prior to exhausting administrative

remedies). Furthermore, the filing of an amended complaint after an

unexhausted claim is presented to the Court does not cure the infirmity. See

Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002).

Here, the evidence of record submitted by Defendants demonstrates

that Rhines filed two Federal Tort Claims while confined within the BOP.

(Doc. 51-1 at 8-12). However, neither of them concerns the medical

negligence raised by Plaintiff in the instant action. In fact, there is no record

evidence of any attempt to file a Federal Tort Claims act regarding the claims

raised herein. Thus, the Court concludes that Rhines’ FTCA claim has been

filed prematurely.

The statutory language set forth in the administrative tort claim

procedure specifically provides that “[a]n action shall not be instituted against

the United States ... unless the claimant shall have first presented the claim

to the appropriate [f]ederal agency and his claim shall have been finally

denied by the agency in writing and sent by certified or registered mail.” 28

U.S.C. §2675(a). “The statutory language is clear that a court does not have

jurisdiction before administrative remedies have been exhausted, and a

court must dismiss any action that is initiated prematurely.” Wilder, 123 F.

Supp. 2d at 313 (citation omitted). Accordingly, the Court is without

jurisdiction to hear Rhines’ FTCA claim as it has been filed prematurely.

2. Certificate of Merit

Rhines asserts that “medical staff acted negligently to serious medical

needs.” (Doc. 1 at 1). Rhines does concede he has been provided medical

treatment including medication, physical therapy, exercises, and

appointments with an orthopedic surgeon. Id. at 2-3. However, he complains

that, despite having fully complied with “all the requirements set out by his

[physician assistant],” the treatments have failed and yet prison officials are

denying him the MRI he needs to determine what is causing the pain. Id. The

United States argues that Rhines’ FTCA claim must be dismissed because

he failed to file a certificate of merit.

Pennsylvania Rule of Civil Procedure 1042.3 requires that a plaintiff

file a certificate of merit (“COM”) from a medical expert with respect to a

professional negligence claim against the United States. Rule 1042.3

provides as follows:

(a) In any action based upon an allegation that a licensed

professional deviated from an acceptable professional standard,

the attorney for the plaintiff, or the plaintiff if not represented,

shall file with the complaint or within sixty days after the filing of

the complaint, a certificate of merit signed by the attorney or party

that either

(1) an appropriate licensed professional has supplied a written

statement that there exists a reasonable probability that the care,

skill or knowledge exercised or exhibited in the treatment,

practice or work that is the subject of the complaint, fell outside

acceptable professional standards and that such conduct was a

cause in bringing about the harm, or

(2) the claim that the defendant deviated from an acceptable

professional standard is based solely on allegations that other

licensed professionals for whom this defendant is responsible

deviated from an acceptable professional standard, or

(3) expert testimony of an appropriate licensed professional is

unnecessary for prosecution of the claim.

PA. R. CIV. P. 1042.3(a).

If a plaintiff fails to file the required certificate within sixty (60) days of

filing the complaint, the proper procedure in federal practice is to file a motion

pursuant to Federal Rule of Civil 12(b)(6) to dismiss the professional

negligence claim without prejudice. Stroud v. Abington Mem’l Hosp., 546

F.Supp.2d 236, 250 (E.D. Pa. 2008). “[T]he sixty-day deadline for filing a

COM will be strictly construed and not lightly excused.” Id. The rule applies

to pro se as well as represented plaintiffs and constitutes a rule of

substantive state law with which plaintiffs in federal court must comply. See

Iwanejko v. Cohen & Grigsby, P.C., 249 Fed.Appx. 938, 944 (3d Cir. 2007);

Maruca v. Hynick, 2007 WL 675038, at *3 (M.D. Pa. 2007) (“[T]he language

of Rule 1042.3(a) – i.e., ‘or the plaintiff if not represented ... shall file ... a

certificate of merit’ expressly requires that a pro se plaintiff must file a

certificate of merit,”).

Failure to file a certificate of merit under Rule 1042.3(a), or a motion

for extension under Rule 1042.3(d), is fatal unless the plaintiff demonstrates

that his failure to comply is justified by a “reasonable excuse.” Perez v.

Griffin, 304 Fed.Appx. 72 (3d Cir. 2008) (per curiam) (nonprecedential); see

also Womer v. Hilliker, 908 A.2d 269, 279-80 (Pa. 2006) (holding that a court

may reconsider judgment entered for failure to comply with Rule 1042.3 if

the plaintiff demonstrates a “reasonable excuse” for the noncompliance); PA.

R. CIV. P. 1042.6 (authorizing entry of non pros judgment if a malpractice

plaintiff fails to comply with Rule 1042.3).

In the instant case, Rhines was required to file a COM producing expert

testimony that the requested MRI was medically necessary. Rhines filed his

complaint on August 20, 2018. Thus, he was required to file a COM on or

before October 19, 2018. Instead, record reflects that on August 20, 2018,

Rhines filed a document titled “Certificate of Merit”, that merely “request[ed]

an appropriate licensed professional to supply a written statement that there

exists a reasonable probability that [Defendant] conduct was a cause in

bringing about the harm or deliberate indifference or conduct caused

negligence to Plaintiff.” (Doc. 3). Subsequently, almost a year later, on April

15, 2019, relying on language contained in this Court’s October 11, 2018

denial of Plaintiff’s motion for appointment of counsel, in which this Court

based its denial on its “initial determination” that, inter alia, “the legal issues

are relatively simple and will not require expert testimony,” (Doc. 20), Plaintiff

filed a response to Defendants’ Notice of Intention to move for dismissal for

Plaintiff’s failure to file a COM, stating that expert testimony is not needed.

(Doc. 33).

To the extent that Rhines suggests that his medical claims are of

ordinary negligence, rather than professional negligence, i.e., that even a lay

person would have recognized the need for an MRI, this claim fails. In

Grundowski v. United States, 2012 WL 1721781 (M.D. Pa. 2012), the Court

set forth the proper inquiry courts should make when determining whether a

claim is one of ordinary negligence, rather than medical malpractice, as

follows:

In conducting this inquiry, “a court must ask two fundamental

questions in determining whether a claim sounds in ordinary

negligence or medical malpractice: (1) whether the claim

pertains to an action that occurred within the course of a

professional relationship; and (2) whether the claim raises

questions of medical judgment beyond the realm of common

knowledge and experience.”.... When evidence is predicated

“upon facts constituting medical treatment ... involv[ing]

diagnosis, care, and treatment by licensed professionals,” the

evidence “must be characterized as [evidence of] professional

negligence.”... As noted by the Third Circuit, “a complaint ‘sounds

in malpractice’ where ‘the conduct at issue constituted an integral

part of the process of rendering medical treatment.’ ”

Id. at *6 (citations omitted). Applying this inquiry to the instant case, Rhines’

claim is that Defendants prevented him from receiving an MRI for his alleged

back pain. This claim involves decisions regarding the rendering of medical

treatment, which involves professional medical judgment beyond the realm

of the lay person. It cannot be said that a decision of whether, when or what

type of medical treatment should be provided “is so simple or the lack of skill

or care is so obvious as to be within the range of experience and

comprehension of even non-professional persons.” Hightower-Warren v.

Silk, 698 A.2d 52, 54 n.1 (Pa. 1997). Accordingly, a certificate of merit is

required for this professional negligence FTCA claim. See Paige v.

Holtzapple, 2009 WL 2588849, at *10-11 (M.D. Pa. 2009) (“Where the

conduct at issue constituted an integral part of rendering medical treatment,

and involved diagnosis, care, and treatment by a licensed professional, ...

the action is one that is characterized as a professional negligence action

requiring expert testimony.”). Consequently, Rhines’ FTCA claim against the

United States will also be dismissed for failure to file a COM.

B. The Bivens Action

Plaintiff’s constitutional claims are filed pursuant to 28 U.S.C. §1331,

in accordance with Bivens v. Six Unknown Named Agents of the Fed. Bureau

of Narcotics, 403 U.S. 388. (1971). Under Bivens, the District Court has

federal question jurisdiction pursuant to 28 U.S.C. §1331 to entertain an

action brought to redress alleged federal constitutional or statutory violations

by a federal actor. Bivens, supra. Pursuant to Bivens, “a citizen suffering a

compensable injury to a constitutionally protected interest could invoke the

general federal question jurisdiction of the district court to obtain an award of

monetary damages against the responsible federal official.” Butz v.

Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the

federal equivalent of an action brought pursuant to 42 U.S.C. §1983 and the

same legal principles have been held to apply. See Paton v. LaPrade, 524

F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D.

Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa.

1992). In order to state an actionable Bivens claim, a plaintiff must allege

that a person has deprived him of a federal right, and that the person who

caused the deprivation acted under color of federal law. See West v. Atkins,

487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D.

Pa. 1992).

1. Personal Involvement

“A defendant in a civil rights action must have personal involvement in

the alleged wrongs; liability cannot be predicated solely on the operation of

respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.

1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (citing

Rode). “Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207.

Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir.

1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995). As

explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs.... [P]ersonal involvement can

be shown through allegations of personal direction or of actual

knowledge and acquiescence. Allegations of participation or

actual knowledge and acquiescence, however, must be made

with appropriate particularity.

Rode, 845 F.2d at 1207.

In this case, Rhines is suing Defendants Conners, Carvajal, and

Spaulding because of their respective positions as National Inmate Appeals

Administrator, Regional Director, and Warden, and for their involvement in

responding to his administrative remedies at the Central Office, Regional

Office, and institutional office levels, respectively. (Doc. 1 at 2, 7). He is suing

Assistant Health Services Administrator Ryan Parkyn because he believes

him to be “the overseer of all [physician assistants] in health services.” (Id.

at 2). While it is clear that all four defendants have been sued because of

their supervisory positions, “liability cannot be predicated solely on the

operation of respondeat superior.” Rode, 845 F.2d at 1207; see also

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citing Rode, 845 F.2d

at 1207). “[V]icarious liability is inapplicable to Bivens and §1983 suits;”

therefore, “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). A defendant’s contemporaneous

personal knowledge and acquiescence is required in order to establish

personal knowledge. Rode, 845 F.2d at 1207-08.

Additionally, after-the-fact knowledge will not suffice. “Participation in

the after-the-fact review of a grievance or appeal is not enough to establish

personal involvement.” Rode, 845 F.2d at 1208 (finding the filing of a

grievance is not enough to show the actual knowledge necessary for

personal involvement)); see also Brooks v. Beard, No. 05-3196, 2006 WL

332547, 167 F. App’x 923, 925 (3d Cir. Feb. 14, 2006) (holding that a state

prisoner’s allegation that prison officials and administrators responded

inappropriately, or failed to respond to a prison grievance, did not establish

that the officials and administrators were involved in the underlying allegedly

unconstitutional conduct.

Moreover, non-medical personnel such as Defendants Conners,

Carvajal, Spaulding, and Parkyn, cannot be considered deliberately

indifferent for failing to respond to an inmate’s medical complaints when the

inmate is already receiving treatment from the prison’s medical staff. See

Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (quoting Durmer v.

O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993)). The undisputed evidence clearly

shows that Rhines was being treated for his complaints. Thus, Defendants

Conners, Carvajal, Spaulding, and Parkyn are entitled to judgment as a

matter of law.

2. Defendant Zalno entitled to Statutory Immunity

The Public Health Service Act, 42 U.S.C. §233(a), provides that an

action against the United States under the FTCA is the exclusive remedy “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.” 42

U.S.C. §233(a). As such, the Public Health Service Act grants absolute

immunity to Public Health Service officers from Bivens actions “arising out of

the performance of medical or related functions within the scope of their

employment.” Hui v. Castaneda, 559 U.S. 799, 806 (2010); see also Etkins

v. Glenn, 519 F. App’x 111 (3d Cir. 2013) (nonprecedential) (affirming district

court’s denial of a motion to add Public Health Service employee as

additional defendant because she is entitled to absolute immunity from

Bivens claims).

Rhines asserts that PA Zalno violated his constitutional rights under

the Eighth Amendment when she ignored his requests for an MRI. However,

it is undisputed that PA Zalno is a commissioned officer with the Public

Health Service, (see Doc. 51-1 at 571) and was acting within the scope of

her official duties when she was dealing with Rhines. Thus, Rhines cannot

maintain a Bivens action against PA Zalno, a Public Health Service

employee, for harm arising out of alleged constitutional violations committed

while acting within the scope of her employment. Accordingly, PA Zalno is

entitled to judgment in her favor as to Rhines’ Bivens claim against her.

3 Eighth Amendment Medical Claim

In order to establish an Eighth Amendment medical claim, a plaintiff

must show “(i) a serious medical need, and (ii) acts or omissions by prison

officials that indicate deliberate indifference to that need.” Natale v. Camden

Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one

that has been diagnosed by a physician as requiring treatment, or one that

is so obvious that a layperson would recognize the need for a doctor's

attention. Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton

infliction of pain results as a consequence of denial or delay in the provision

of adequate medical care, the medical need is of the serious nature

contemplated by the eighth amendment.” Id.

A prison official acts with deliberate indifference to an inmate’s serious

medical needs when he “knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). Thus, a complaint that a physician or a medical department “has

been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment ...”

Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision

not to order an X-ray, or like measures, does not represent cruel and unusual

punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s

long as a physician exercises professional judgment his behavior will not

violate a prisoner's constitutional rights.” Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor’s

disagreement with the professional judgment of another doctor is not

actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment,

or medical malpractice does not give rise to a §1983 cause of action, and an

inmate's disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.

1993).

Further, a prison administrator cannot be found deliberately indifferent

under the Eighth Amendment because he or she fails to respond to the

medical complaints of an inmate being treated by a prison physician, or

because, as non-physicians, they defer to the medical judgment of the

inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical

prison personnel had “a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner,” liability

may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison’s medical staff and

the inmate regarding the diagnosis or treatment which the inmate receives

does not support a claim of cruel and unusual punishment. Farmer v.

Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v.

Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113

(10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received

treatment, courts have consistently been reluctant to second guess the

medical judgment of the attending physician. Little v. Lycoming County, 912

F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key

question is whether the defendant has provided the plaintiff with some type

of treatment, regardless of whether it is what the plaintiff desires. Farmer v.

Carlson, 685 F. Supp. at 1339.

Assuming, without deciding, that Plaintiff’s medical needs were serious

in the constitutional sense, the record evidence more than amply

demonstrates that Plaintiff received medical attention, and that the attention

Plaintiff received lacks the requisite deliberate indifference to support a

Section 1983 claim. Plaintiff, himself, admits that he has been provided

medical treatment, including medication, physical therapy, exercises, and

appointments with an orthopedic surgeon. (Doc. 1 at 2-3).

At best, Plaintiff’s complaint demonstrates his disagreement with the

type of treatment rendered, specifically, not being approved for an MRI.

Though he may have disagreed with Utilization Review Committee’s

assessment that an MRI was not medically necessary, his disagreement with

the course of action that was taken is not enough to state a §1983 claim.

Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989) (citing Estelle, 429

U.S. at 105-06 (in the medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute an unnecessary and

wanton infliction of pain or to be repugnant to the conscience of mankind)).

This is particularly so in light of the fact that there are no allegations in the

complaint that any of the Defendants intentionally withheld medical treatment

from Plaintiff in order to inflict pain or harm upon Plaintiff. Farmer; Rouse. To

that extent, the record demonstrates that Plaintiff has been referred to an

outside orthopedic practice for further treatment and care of his neck and

back pain, shows that Defendants continue to be attentive to Plaintiff’s

situation.

Thus, the Plaintiff’s complaint amounts to nothing more than Plaintiff’s

subjective disagreement with the treatment decisions and medical judgment

of the Utilization Review Committee at the prison. Where, as here, an inmate

is provided with medical care and the dispute is over the adequacy of that

care, an Eighth Amendment claim does not exist. Nottingham v. Peoria, 709

F. Supp. 542, 547 (M.D. Pa. 1988). Defendants’ motion for summary

judgment and Defendant, Dr. Ball’s motions to dismiss will be granted.

V. Preliminary Injunction

An injunction is an “extraordinary remedy” that is never awarded as of

right. Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).

The United States Court of Appeals for the Third Circuit has delineated

four (4) factors that a district court must consider when ruling on a motion for

a preliminary injunction: (1) whether the movant has shown a reasonable

probability of success on the merits; (2) whether the movant will be

irreparably injured if the court denies the requested relief; (3) whether

granting the requested relief will result in even greater harm to the

nonmoving party; and (4) whether granting the relief will be in the public

interest. See Gerardi v. Pellulo, 16 F.3d 1363, 1373 (3d Cir. 1994); Hoxworth

v. Blinder, Robinson & Co., 903 F.2d 186, 1970–98 (3d Cir. 1990). These

same factors are used in considering a motion for temporary restraining

order. Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D. Pa. 1994). The moving

party has the burden of satisfying these factors. Adams v. Freedom Forge

Corp., 204 F.3d 475, 486 (3d Cir. 2000). While each factor need not be

established beyond a reasonable doubt, they must combine to show the

immediate necessity of injunctive relief. Stilp v. Contino, 629 F.Supp.2d 449,

457 (M.D. Pa. 2009) (citing Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d

Cir. 2002) ). In addition, “[a]s these elements suggest, there must be a

‘relationship between the injury claimed in the party’s motion and the conduct

asserted in the complaint’.” Ball v. Famiglio, 396 Fed. App’x 836, 837 (3d Cir.

2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) ).

Moreover, the power of a court to issue injunctive relief is also limited

and circumscribed by the mootness doctrine. The mootness doctrine

recognizes a fundamental truth in litigation: “[i]f developments occur during

the course of adjudication that eliminate a plaintiff's personal stake in the

outcome of a suit or prevent a court from being able to grant the requested

relief, the case must be dismissed as moot.” Blanciak v. Allegheny Ludlum

Corp., 77 F.3d 690, 698–99 (3d Cir. 1996).

In the instant case, Rhines seeks injunctive relief in the form of a Court

ordered MRI. (Doc. 36). However, Rhines is no longer confined at FCI–

Allenwood. Subsequent to the filing of the above captioned action, Plaintiff

was released from federal custody.

The Third Circuit Court of Appeals has observed that, when addressing

inmate requests for injunctive relief:

As a preliminary matter, we must determine whether the inmates’

claims are moot because “a federal court has neither the power

to render advisory opinions nor to decide questions that cannot

affect the rights of litigants in the case before them.” Preiser v.

Newkirk, 422 U.S. 395, 401 (1975) (quotations omitted); see

also, Abdul–Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993). An

inmate’s transfer from the facility complained of generally moots

the equitable and declaratory claims. Abdul–Akbar, 4 F.3d at 197

(former inmate’s claim that the prison library’s legal resources

were constitutionally inadequate was moot because plaintiff was

released five months before trial.)

Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). This Court has

previously held, in a case such as the present, where an inmate seeks

injunctive relief against his jailers but is no longer housed at the prison where

those injunctive claims arose, his transfer to another institution moots any

claims for injunctive or declaratory relief. Fortes v. Harding, 19 F.Supp.2d

323, 326 (M.D. Pa. 1998). For these reasons, Plaintiff’s pending motion for

preliminary injunctive relief must be denied as moot since he is no longer

confined at FCI–Allenwood, and there is no indication that he will be housed

at that facility in the foreseeable future.

VI. Conclusion

Based upon the undisputed facts of record, Defendants motion to

dismiss and for summary judgment will be granted. Defendant, Dr. Ball’s

motion to dismiss will be granted. Plaintiff’s motion for summary judgment

will be denied.

An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: March 9, 2021

18-1643-01