Briggs v. Brockman

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SIMEON JOEL BRIGGS, :

Plaintiff : CIVIL ACTION NO. 3:19-0319

v. : (JUDGE MANNION)

A. BROCKMAN, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Simeon Joel Briggs, an inmate formerly housed1 in the United

States Penitentiary, Lewisburg, 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

1 Plaintiff was released from BOP custody on January 17, 2020.

https://www.bop.gov/inmateloc/. He is currently in the custody of the Rhode

Island Department of Corrections and is housed at the High Security Center,

P.O. Box 8200, Cranston, Rhode Island, 02920.

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 Briggs v. U.S., et al.,

Civil Action No. 3:19-cv-1499. This action raised the same allegations as the

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

dated January 5, 2021, the action was consolidated into the instant action.

Prisons (BOP) employees: Chief Psychologist Jennifer Enigk, Psychologist

Andrea Brockman and Psychology Staff Member Rachel Eigenbrode.

Plaintiff alleges that the Defendants violated his Eighth Amendment

rights by “neglecting to treat him for a mental health disorder, denying him

access to his meeting with a psychiatrist, and refusing him medication. (Doc.

1, complaint). For relief, he seeks compensatory and punitive damages, as

well as a Court ordered evaluation by a psychiatrist, as well as his

“disciplinary record and sanctions expunged from [his] record.” Id.

Presently before the Court is Defendants’ motion to dismiss and for

summary judgment. (Doc. 28); Plaintiff’s motion for summary judgment,

(Doc. 65). The motions have been fully briefed and are ripe for disposition.

For the reasons that follow, the Court will grant Defendants’ motion to

dismiss and for summary judgment and deny Plaintiff’s motion for summary

judgment.

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

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 Facts4

The Psychology Services department at USP-Lewisburg includes

treatment specialists and doctoral-level psychologists who are assigned a

caseload of inmates, although an inmate may be seen by any psychologist

or treatment specialist. (Doc. 37, Statement of Material Facts). Each

psychologist at USP-Lewisburg makes rounds on their assigned housing

units twice a week. Id.

4 The Local Rules of Court provide that in addition to filing a brief in

opposition to the moving party’s brief in support of its motion, “[t]he papers

opposing a motion for summary judgment shall include a separate, short and

concise statement of material facts responding to the numbered paragraphs

set forth in the statement [of material facts filed by the moving party]...as to

which it is contended that there exists a genuine issue to be tried.” M.D. Pa.

L.R. 56. 1. The Rule further requires the inclusion of references to the parts

of the record that support the statements. Id. Finally, the Rule states that the

statement of material facts required to be served by the moving party will be

deemed to be admitted unless controverted by the statement required to be

served by the opposing party. See id. Unless otherwise noted, the factual

background herein is taken from Defendants’ Rule 56.1 statement of material

facts. (Doc. 38). Plaintiff did not file a response to Defendants’ statement of

facts in compliance with M.D. Pa. L.R. 56.1 or a statement of material facts

to support his own motion for summary judgment. Thus, the Court deems the

facts set forth by Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed.

R. Civ. P. 56(e)(2).

When Briggs arrived at the Special Management Unit (“SMU”) at USP-

Lewisburg on February 26, 2018, Dr. Eigenbrode reviewed his BOP mental

health records and the Psychology Services Inmate Questionnaire (PSIQ),

which Briggs completed after arriving at the institution. Id. Briggs indicated

that he may need psychological services during his SMU placement and

reported feeling anxious while in transit to the institution. Id.

Information available from the state where Briggs was incarcerated

before entering BOP custody showed no psychosocial history, but while

incarcerated in the BOP, Briggs endorsed a history of mental health

treatment including being prescribed Ritalin during childhood and a

diagnosis of Bipolar Disorder while in state custody. Id.

During intake with the BOP, Briggs reported a history of depression

and psychosis, but his most recent Diagnosis & Care Level Formulation,

dated August 14, 2017, yielded no diagnosis, and reflected that Briggs had

not been prescribed any psychotropic medication during his federal

incarceration. Id.

Dr. Eigenbrode noted that Briggs did not display, evidence, or report a

need for frequent psychological intervention. Id. Briggs’ general stability

without medication did not require a psychology or psychiatry specialist for

management. Id. Dr. Eigenbrode determined that Briggs was psychiatrically

stable and advised him how to access Psychology Services as needed,

noting that Briggs would have the opportunity to speak with Psychology

Services during their routine rounds. Id.

A treatment specialist saw Briggs on March 2, 2018 and discussed the

requirements for completion of the SMU phases and provided him with the

initial Phase I programming material for Psychology Services. Id. The

materials regarded an autobiography, thinking errors (identifying and

discussing different thinking errors), values for responsible living (developing

and identifying one’s set of values), and a basic cognitive skills workbook

(focuses on developing and understanding and use of rational thinking). Id.

Briggs was informed that upon completion of the materials, his work would

be reviewed and discussed with him and he would be provided with the

remaining Phase I materials. Id.

On March 7, 2018, Dr. Eigenbrode saw Briggs in a holdover cell on his

assigned housing unit after Psychology Services received an inmate request

to staff (commonly known as a copout) in which Briggs asked to be seen

privately “before I do something stupid.” Id. Briggs denied experiencing self-

harm or suicidal ideation, intent, or plan and stated he was experiencing

increased stress because he believed he should not have been sent to the

SMU. Id. Dr. Eigenbrode encouraged Briggs to raise issues regarding his

SMU placement with his unit team. Id. Briggs expressed interest in self-help

programming in addition to the required programming that had been

provided to him shortly after his arrival in the SMU. Id.

Later that day, Dr. Eigenbrode sent Briggs materials titled Motivation

for Change – Part 1 and advised him that incentive programs are available

through his assigned treatment specialist. Id. On March 20, 2018, Dr.

Eigenbrode noted that Briggs had completed the Motivation for Change

Materials and was provided Part 2 of the materials. Id.

On March 23, 2018, a treatment specialist saw Briggs during routine

rounds, noting that he had successfully completed the initial Phase I

materials and he was provided with the remaining Phase I materials. Id.

Those materials included workbooks on anger (identifying and responding to

anger), living as if (discussing how beliefs impact daily interactions), coping

skills (stress reducing skills), and my change plan (promoting prosocial

change). Id. Briggs was informed that upon completion, Psychology Services

would review the remaining Phase I materials and discuss them with him, at

which time Phase I of his Psychology Services programming requirements

would be complete. Id.

On April 26, 2018, Dr. McCrea provided feedback to Briggs on the

completed materials he had returned to Psychology Services. Id. She

arranged to provide Briggs with the Distress Tolerance modules in response

to Briggs’ request for additional materials. Id.

A treatment specialist noted that Briggs had completed the Phase I

program materials for the SMU on April 27, 2018. Id. She offered Briggs an

opportunity to participate in incentive programming before his placement into

Phase II of the SMU program where Psychology Services provides out of

cell group treatment. Id.

On May 8, 2018, Briggs reported that he was “stressing” and did not

want to speak at the door, so Dr. McCrea saw him in a private holdover cell

on his assigned housing unit. Id. Briggs reported frustration with being

wrongly placed in the SMU and asked to be moved to a different housing

unit. Id. However, he reported no issues with his cellmate, stated he was

doing well with SMU programming materials and returned the completed first

module of the Distress Tolerance materials. Id. Dr. McCrea advised Briggs

to discuss his request to be moved to a different housing unit with a

lieutenant and provided Briggs additional Distress Tolerance modules on

May 24, 2018. Id.

During routine rounds on June 1, 2018, Briggs submitted a copout

requesting to be placed into Dr. Enigk’s “class” and asked to be seen

privately. Id. Dr. Enigk requested more specific information about the issues

Briggs was having so she could determine the appropriate interventions and

advised Briggs in the meantime to practice the coping skills outlined in the

SMU program materials on a daily basis. Id. Dr. Enigk also informed Briggs

that she was not then running any classes in the SMU, but that his treatment

specialist could assist him with any programming materials he wished to

complete. Id.

On June 11, 2018, Dr. Enigk noted that inmate Briggs had returned

Modules 2 and 3 of the Distress Tolerance protocol, which she reviewed his

work and returned it to him with feedback and Module 4 of the protocol. Id.

On June 22, 2018, Briggs submitted a copout to Psychology Services

stating he was trying to prevent himself from doing something he would

regret later. Id. However, the copout had been written two days before Briggs

submitted it to Psychology Services. Id. Dr. Brockman consulted with unit

staff and noted no significant changes in Briggs mood or behavior during the

two previous days. Id. Briggs denied having suicidal ideation, plan, intent, or

self-directed violence and claimed the reason for his copout was to express

his level of frustration and a desire to complete continued programming. Id.

On June 25, 2018 Dr. Enigk noted that Briggs had submitted Module 4

of the Distress Tolerance protocol, which she reviewed and sent it back to

Briggs with feedback, indicating that he had completed the protocol at that

time. Id.

Dr. Enigk issued Briggs a disciplinary incident report on July 28, 2018

because he submitted a copout addressed to a psychologist with personal

content and which contained a covert sexual proposal. Id. That same day,

Briggs submitted a copout to Psychology Services complaining that his

mental health needs were not being met and asking for additional

programming. Id. Dialectical Behavior Therapy (DBT) distress tolerance

worksheets were sent to him. Id.

On July 6, 2018, Dr. Brockman provided Briggs with the Crisis Survival

Skills handouts from Module 4 of the DBT Skills Training module. Id.

On July 17, 2018, Dr. Enigk sent Briggs a response to two copouts

submitted to Psychology and his Unit Manager stating he did not feel his

treatment needs were being met and he was suffering from “bi-pola[r],

depression, ADHD, paranoia, etc” and required medication. Id. Dr. Enigk

advised Briggs that at that time, he did not meet the criteria for any major

mood or psychotic disorder, thus medication and individual treatment

services were not warranted. Id. She explained the importance of practicing

the skills in the materials previously provided to him as well as those in the

SMU program materials, as those skills are specifically aimed at helping

inmates learn to manage all manner of stressors and avoid acting-out

behaviors. Id. Dr. Enigk also advised Briggs to discuss any additional

concerns with a psychologist or treatment specialist during routine rounds so

additional interventions which might be helpful could be determined. Id.

After Briggs completed and returned the Crisis Survival Skills

worksheets, Dr. Enigk reviewed them and returned them to him with

feedback on July 23, 2018. Id. On August 8, 2018, Dr. Brockman sent Briggs

the Reality Acceptance Skills handouts. Id.

Briggs expressed gratitude for the assignments he received when Dr.

Brockman next saw him during routine rounds on August 15, 2018. Id. Dr.

Brockman informed Briggs that additional material would be sent once he

completed the initial set. Id. However, on August 15, 2018, Dr. Brockman

issued Briggs an incident report because, after her contact with him that day,

the doctor observed him standing in the back of his cell engaging in sexually

inappropriate behavior as she spoke with his cellmate. Id.

Dr. Eigenbrode performed a Suicide Risk Assessment on August 15,

2018 after staff reported that Briggs attempted to hang himself. Id. He had

improvised a noose loosely around his neck while his cellmate was observed

holding him up and Briggs appeared to be using his arms to keep himself

elevated. Id. This incident occurred after Dr. Brockman issued him an

incident report that same day. Id. Although Briggs acknowledged Dr.

Eigenbrode by making eye contact, he would not respond to her inquiries.

Id. Staff reported that Briggs had been verbally communicating with him

before Dr. Eigenbrode’s arrival. Id. When Dr. Brockman saw Briggs earlier

that day, he evidenced no signs of distress or agitation and made no

indication of suicidality. Id. Collateral data suggested that Briggs’ August 15,

2018 suicide event was aimed at garnering the immediate attention of

Psychology staff in response to having been issued the incident report. Id.

However, Dr. Eigenbrode implemented suicide watch protocol until the next

day, when Briggs actively participated in an interview and denied suicidality.

Id. During the interview on August 16, 2018, Briggs was future and goal-

oriented, elaborated on his need for treatment and psychotropic medication.

Id. Dr. Ramirez, who is not a party to this lawsuit, conducted a Suicide Risk

Assessment three days later. Id.

On October 18, 2018, Briggs had tied a noose around his neck in front

of the housing unit during routine rounds but complied with the request of the

housing unit officer to remove the noose from his neck. Id. Staff placed

Briggs in a private area and observed him until Dr. Ramirez arrived. Id.

Briggs did not express suicidal ideation, intent, means or plans. Id. Dr.

Ramirez spent time educating Briggs about coping techniques he could use

in his cell to deal with his thoughts in a healthy manner. Id. Briggs agreed to

practice the skills over the next few days. Id. Dr. Ramirez determined that

Briggs was at a low risk for suicide that day and concluded that a suicide

watch was not warranted. Id.

On August 22, 2018, Dr. McCrea, who is not a defendant in this lawsuit,

performed a Suicide Risk Assessment after staff observed Briggs with a bed

sheet wrapped around his neck and the other end of the sheet tied to the

back of his cell. Id. Briggs complied with staff orders to remove the sheet and

submitted to hand restraints. Id. He was removed from his cell and placed in

a private holdover cell under staff observation until Dr. McCrea’s arrival. Id.

During the Suicide Risk Assessment on August 22, 2018, Briggs

reported that he had “been having really bad thoughts” and needed to “stay

busy at all times”. Id. Dr. McCrea reminded Briggs that he has been provided

with numerous materials and coping skills which require continued practice

and utilization. Id. When asked what skills or materials he found helpful;

Briggs stated his previous use of medications “helped big time”. Id.

Dr. McCrea advised Briggs to contact Health Services with questions

about medications and he agreed to receive materials on mindfulness and

grounding which were discussed at length with him during the assessment.

Id. Dr. McCrea concluded inmate Briggs was at low risk for suicide and a

suicide watch was not warranted at that time. Id.

On September 7, 2018, Dr. Brockman responded to a copout in which

Briggs requested to speak with specific psychologists and attached a packet

on grounding and a copy of a Rhode Island Department of Corrections note

which noted Briggs was “faithfully taking his medication[,]” but contained no

specific information about the medication being taken. Id. Dr. Brockman

noted that Briggs was continuing to request placement on medication but

was unable to provide details in relations to the symptomatology he was

experiencing; the packet was returned to inmate Briggs because it provided

guidance on grounding. Id.

Three days later, on September 10, 2018, Dr. Brockman performed a

Suicide Risk Assessment after the Operations Lieutenant received a copout

from Briggs requesting to speak with a specific psychologist and indicating

he would do “something” stupid if he was not seen. Id. Dr. Brockman noted

that Briggs refused to speak to her during the Suicide Risk Assessment but

spoke with other staff in a future-oriented manner. Id. Although Briggs did

not make statements specific to suicidal ideation, plan, intent, or related

behaviors, Dr. Brockman placed him on suicide watch by non-clinical staff

out of an abundance of caution until he could be assessed. Id.

Dr. Brockman noted that there had been an increase in Suicide Risk

Assessments with Briggs since he had received an incident report to

engaging in a sexual act and it was possible, he was attempting to make

himself appear to be mentally ill. Id. Dr. Brockman reminded Briggs that

diagnoses wax and wane over a lifetime, and he did not have any current

symptoms consistent with a diagnosis. Id. Dr. Brockman determined Briggs

was at low risk for suicide and removed him from the suicide watch which

had been initiated by non-clinical staff because it was no longer warranted.

Id.

The next day, on September 11, 2018, Dr. Brockman performed

another Suicide Risk Assessment after Briggs tied a noose around his neck

and was observed holding himself up with his arms. Id. Non-clinical staff

placed Briggs on suicide watch until he could be assessed by Dr. Brockman.

Id. Dr. Brockman interviewed staff who indicated the noose was placed

around Briggs’ neck in a position in which it did not apply pressure and

additionally, Briggs’ cellmate was holding his feet up off the ground. Id.

Briggs complied with staff orders to remove the noose from his neck. Id. Dr.

Brockman attempted a clinical interview with Briggs, but he refused to

interact with her or the other available psychologist. Id.

Dr. Brockman again noted that Briggs’ behavior altered after he

received an incident report for engaging in sexual acts, that he had

responded inappropriately to in-cell treatment assignments by focusing on

his desire to receive medication and a perceived lack of treatment by

Psychology Services, and that Briggs had also submitted several copouts in

relation to his self-identified treatment needs. Id. Although Briggs refused to

speak with Dr. Brockman, he was speaking with other staff in a future-

oriented manner, he maintained an interest in gaining access to his state

records, requested to speak with specific psychologists, and had been

completing frequent copouts focused on receiving medication and

diagnoses. Id. Dr. Brockman concluded Briggs was a low risk for suicide and

was removed him from the suicide watch that was initiated by non-clinical

staff because it was no longer warranted.

Later on September 11, 2018, Dr. Brockman instituted a Suicide Risk

Management Plan (SRMP) for Briggs, noting that he had undergone five

suicide risk assessments and three placements on suicide watch (two by

non-clinical staff) within the last month. Id. The doctor noted that despite

attempts to engage Briggs in treatment activities, he had been unwilling to

participate in meaningful, active, and collaborative treatment and it appeared

the increased, crisis-driven contacts were reinforcing Briggs’ maladaptive

patterns of thought and behavior. Id. The goal of the SRMP was to attempt

to shape Briggs’ environment in ways which would discourage self-harm and

encourage healthy replacement behaviors. Id.

Dr. Eigenbrode saw Briggs on September 13, 2018 in accordance with

his SRMP. Id. Briggs acknowledged the doctor with brief eye contact but

refused to speak with her. Id. Dr. Eigenbrode reminded Briggs of the SRMP,

of his treatment goals and terminated the encounter. Id.

Dr. Brockman saw Briggs pursuant to his SRMP on September 13,

2018. Id. Briggs expressed regret for his prior actions and demonstrated an

increased level of motivation including expressing interest in treatment

material. Id. Therefore, Dr. Brockman removed Briggs from the SRMP

because Briggs had not engaged in the identified target behaviors and

expressed interest in and motivation for treatment. Id.

On December 4, 2018, Dr. Brockman completed a Diagnostic and

Care Level Formulation after Briggs received records, he requested from the

Rhode Island Department of Corrections. Id. A review of those records

revealed former diagnoses of Mood Disorder, Unspecified; Bipolar,

Unspecified; Adjustment Disorder with Disturbance of Emotions and

Conduct; and Anxiety Generalized, with treatment consisting primarily of the

use of psychotropic medication, clinical contacts and individual therapy in

which inmate Briggs discussed his grievances. Id. Dr. Brockman noted that

the records from the Rhode Island Department of Corrections revealed that

while on medication, Briggs would note side effects or indicate he was no

longer going to take the medication if he did not receive what he was seeking

(i.e., information regarding a transfer). Id. However, the records contained

no indication that evidence-based treatment protocols were implemented. Id.

Their records referenced ruling out a diagnosis of psychosis after auditory

hallucination, but after additional follow-up, it was determined that the

auditory hallucinations occurred when Briggs was under the influence of the

drug, Ecstasy. Id.

While in state custody, Briggs received a diagnosis of bipolar, NOS in

April 2011 after a masters-level clinician noted Briggs “appears to be doing

well. Possibly too well, his mood appears elevated, hypomanic.” Id. Dr.

Brockman noted that the records also revealed no additional information

describing symptomatology and documentation in July 2011 identified Briggs

as experiencing “irritable mood” and “expansive affect” with “loud speech”

noting “[he] does not appear manic or psychotic at this time.” Id.

Dr. Brockman also noted on December 4, 2018, that Briggs’ federal

records reveal he experienced difficulty overcoming increased stress during

periods of change; that Briggs was not currently presenting with symptoms

of hypomania, mania, depression or anxiety; and was using his former

diagnosis of Bipolar Disorder as a means to describe his frustration and

anger. Id. Since transferring to the BOP in 2012, Briggs had not presented

with symptoms consistent with a mood, anxiety or thought disorder. Id. Thus,

on December 4, 2018, Dr. Brockman diagnosed Briggs with Other Specified

Personality Disorder with Antisocial Traits with personality characteristics of:

failure to conform to social norms with respect to lawful behaviors;

deceitfulness; irritability; and reckless disregard for safety of others. Id.

During routine rounds on December 12, 2018, Briggs returned

programming materials to Dr. Brockman and requested to be seen but did

not provide a reason or identify symptoms consistent with a mental illness.

Id. Dr. Brockman advised Briggs that his assigned treatment specialist would

follow up. Id.

Dr. Brockman performed a Suicide Risk Assessment on Briggs on

December 14, 2018 after he made a statement suggestive of suicidal

ideation (e.g., “you won’t know if I kill myself”). Id. The doctor noted that

Briggs refused to speak with Psychology Services earlier that day, and

during her clinical interview, Briggs denied suicidal ideation, plan, and intent.

Id. Briggs asked if additional material could be provided to keep him “busy”.

Id. Dr. Brockman concluded that no suicide watch was necessary because

Briggs was at low risk for suicide. Id.

On January 7, 2019, Dr. Enigk briefly saw Briggs due to his continued

requests for medication to treat Bipolar Disorder. Id. She noted that since

entering BOP custody in February 2012, Briggs did not evidence or report

signs of a major mood or psychotic disorder and only sought help from

Psychology for problems dealing with anger and frustration. Id. She noted

that Briggs’ perception that he had a serious mental illness and needed

medication had persisted for several months and presented Briggs with the

option of participating in formal psychological testing to determine whether

symptoms were present that he was having difficulty articulating or if there

was any presence of mental illness beyond character pathology. Id. Briggs

was agreeable to the testing and requested materials to keep himself

productively occupied. Id.

Dr. Enigk completed a Mental Health Evaluation of Briggs on January

15, 2019, which consisted of notification of a clinical interview, Central File

review, review of BOP medical and psychology records, collateral

information and observations by staff, and psychological testing via the

Personality Assessment Inventory (PAI) Id. The profile resulting from the PAI

was deemed invalid and uninterpretable due to high elevations on the

infrequency (INF), inconsistency (INC), and negative impression (NIM)

scales, indicating that Briggs endorsed a number of items that are not

frequently endorsed even by individuals with severe mental illness in hospital

settings, that he was not consistent in his endorsement of symptoms, and

that he may have been attempting to malinger serious mental illness. Id.

Based on the totality of information gleaned from the Briggs’ evaluation, Dr.

Enigk maintained the diagnosis set forth in Briggs’ Diagnostic and Care Level

Formulation of December 4, 2018: Other Specified Personality Disorder with

Antisocial Traits. Id.

On January 17, 2019, Dr. Enigk received a copout from Briggs in which

he appeared to preemptively reject the results of his recent mental health

evaluation although he had not yet received the results; Briggs requested to

speak to Dr. Enigk privately and made vague threats to continue filing

grievances against Psychology. Id. The doctor concluded that the copout

and its contents supported the results of the mental health evaluation and

his diagnosis of Other Specified Personality Disorder. Id.

On January 22, 2019, Dr. Enigk met with Briggs along with USP

Lewisburg’s Clinical Director to discuss the results of his January 15, 2019

Mental Health Evaluation. Id. They talked at length with Briggs about the

nature of Bipolar Disorder and how his presentation and reported symptoms

differ from that diagnosis. Id.

Dr. Enigk noted that during the January 15, 2019 clinical contact,

Briggs asked appropriate questions about whether his past diagnosis may

have been inaccurate and what the effects of taking mood stabilizing

medication might be for someone who does not need it. Id. On January 15,

2019, Dr. Enigk addressed all of Briggs questions, discussed his diagnosis

and how personality disorders develop, and talked with Briggs about the

importance of using skills included in programming assignments daily to

address stressors. Id. She talked with him about changing the way he thinks

about stress and anger-inducing situations, encouraged him to take time to

process what they discussed and to talk with Psychology Services during

rounds about additional questions and next steps. Id.

Dr. Brockman saw Briggs during routine rounds on January 28, 2019,

when he identified feeling “confused” following his contact with Dr. Enigk and

the Clinical Director, stating, “I thought the test could not be manipulated but

they say I manipulated the test.” Id. She advised Briggs of the validity scales

on the test and informed him that due to his responses, his test was identified

as invalid and agreed to provide him a copy of the test report. Id. Dr.

Brockman reminded Briggs that Psychology Services programming material

is not designed to be completed quickly, but rather to be completed and

practiced. Id.

During an evaluation by Dr. Eigenbrode on February 11, 2019 in

accordance with hunger strike protocol, Briggs complained that he needed

psychotropic medication, but when asked about his symptoms, Briggs

vaguely asserted that he does not manage well. Id. However, Briggs

remained consistently future-oriented and did not endorse any indicator

suggestive of self-harm/suicidal ideation, intent, or plan and stated that his

disruptive behavior was related to his belief that he needs to be assessed by

telepsychiatry and ultimately prescribed psychotropic medication. Id.

On February 19, 2019, Dr. Eigenbrode saw Briggs and terminated a

contact during routine rounds because, although Briggs acknowledged her

via eye contact and maintained a constant gaze throughout the contact, he

refused to respond to her inquiries, including his request for a copy of his

recent mental health evaluation. Id. However, a few minutes later, Dr.

Eigenbrode overheard Briggs yelling for the officer in charge of the housing

unit to advise her that he needed to speak with Psychology. Id.

On February 20, 2019, Dr. Brockman provided Briggs with a copy of

the January 15, 2019 psychological evaluation and Dr. Eigenbrode spoke

with Briggs about completion of programs. Id. Dr. Eigenbrode advised Briggs

she would review his records and offer him additional programming, but

noted that although Briggs had participated in several self-help programs

aimed at improving his distress tolerance and coping skills, he would either

complete the assignments quickly and request additional programming or

complain that he was not being provided with proper treatment. Id. Dr.

Eigenbrode noted that due to Briggs’ ongoing complaints regarding mental

health treatment and behavior problems it appeared unlikely he was routinely

practicing the skills offered to him and/or had limited interest in non-medicinal

coping skills. Id. She therefore recommended that he complete the required

SMU programming and be advised of potentially beneficial self-help

programming during future rounds. Id.

Dr. Eigenbrode saw Briggs again on February 27, 2019, noting that he

was agreeable to participating in Motivation for Change, which he had

previously started, but not finished. Id. Later that day, she sent Briggs Part 1

of the Motivation for Change workbook series, which consists of three parts

to explore the concept of change, provide exercises to help review life

choices, identify goals for a more positive future, and evaluate confidence in

one’s ability to make positive life changes. Id. Briggs completed Motivation

for Change, Part 1, on March 4, 2019. Id. Dr. Eigenbrode reviewed the

materials, provided feedback, and gave Briggs Part 2 of the series. Id.

However, on March 8, 2019, Dr. Eigenbrode responded to two copouts

in which Briggs complained about other psychologists. Id. Briggs stated that

he believed his records and test results were fabricated, described feeling

chronically angry and rageful, and requested to be evaluated by a

psychiatrist. Id. Dr. Eigenbrode advised Briggs that he did not present with

symptoms indicative of a major mental illness to include Bipolar Disorder and

reminded him that Health Services (not Psychology Services) addresses

medication requests. Id. She informed Briggs that he did not have a

diagnosis or present with symptoms suggesting a referral to Health Services

or that telepsychiatry was warranted and urged him to increase the

effectiveness of his coping skills by proactively practicing them on a daily

basis for an enduring period of time. Id. Dr. Eigenbrode also provided Briggs

with feedback on Part 2 of the Motivation for Change series workbook. Id.

On March 20, 2019, Briggs submitted a copout to Dr. Brockman during

routine rounds in which he expressed distrust of Psychology Services and

noting that he felt as if information was not included in the January 15, 2019

Mental Health Evaluation. Id. Dr. Brockman clarified with Briggs that his state

records were reviewed and documented, and despite Briggs’ interest in

receiving a second opinion and to be seen by a psychiatrist, Briggs did not

present with symptoms consistent with a mood, anxiety, or thought disorder

and his behavior was better accounted for through his diagnosis of Other

Specified Personality Disorder with Antisocial Traits. Id. Briggs became

increasingly agitated, threw his test results on the ground, and began kicking

his cell door. Id.

On April 8, 2019, Dr. Enigk reviewed records submitted to her by Briggs

of an evaluation of him conducted at Bradley Hospital in 2001. Id. The

records indicated that while attending a training school substance abuse

program at the age of seventeen, Briggs was referred to the hospital on

February 7, 2001 for an evaluation after voicing homicidal ideation. Id. The

Bradley Hospital evaluation resulted in an order for medication as needed to

calm Briggs’ agitation, a recommendation that Briggs be assessed for

antidepressant medication, a diagnosis of Post-Traumatic Stress Disorder

(“PTSD”) related to his childhood abuse history, and Polysubstance Abuse

in remission. Id. Dr. Enigk noted the evaluating psychiatrist at Bradley

Hospital made recommendations for individual, group, and family therapy as

well as 24-hour supervision while at the training school. Id.

Dr. Enigk also noted on April 8, 2019, that during his time in BOP

custody, Briggs has not presented with symptoms indicative of PTSD or any

other mood or psychotic disorder, but Briggs has consistently sought

assistance from Psychology Services for problems managing anger. Id.

Despite the age of the records from Bradley Hospital, Dr. Enigk concluded

that records indicated a long-standing history of antisocial behavior that has

been an area of clinical concern and supports the diagnosis of Other

Specified Personality Disorder with Antisocial Traits and thus made no

changes to Briggs’ diagnosis. Id.

On May 15, 2019, Dr. Eigenbrode responded to a copout dated May

14, 2019, in which Briggs referenced a long-term problem of having “bad

violent thoughts” and claimed his requests for assistance “keep getting

denied”, further stating he has “too much anger/aggression built up inside

me that it gives me headaches” and “[I] grind my teeth till my gums bleed”.

Id. The doctor noted that Briggs made no report of such a problem when she

saw him just two days prior, referenced the copious materials provided to

him concerning anger management and provided him an anger management

workbook with her response. Id. Dr. Eigenbrode reminded Briggs that he

must routinely practice adaptive skills to manage his anger in order to

increase their effectiveness. Id. She encouraged him to submit a copout or

speak with Psychology Services staff during rounds if he was interested in

participating in an anger management program available through his housing

unit’s assigned treatment specialist. Id.

IV. Discussion

Defendants argue that they are entitled to judgment in their favor on

the following grounds: (1) Briggs’ official-capacity claims are barred by

sovereign immunity; (2) Briggs fails to satisfy the physical injury requirement

of 28 U.S.C. §1346(b)(2) and 42 U.S.C. §1997e(e); (3) Briggs’ fails to state

an Eighth Amendment Constitutional claim; (4) Briggs’ requires a

psychological expert to establish his FTCA claim and his Certificate of Merit

(COM) does not satisfy the requirements of Pa. R. Civ. P. 1042.3; and (5)

Defendant Enigk is entitled to statutory immunity as an officer in the Public

Health Service.

A. Federal Tort Claims Act

1. Administrative Tort Claim Number TRT-NER-2019-01354

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).

On November 14, 2018, Plaintiff filed Administrative Tort Number TRT-

NER-2019-01354, with the BOP Northeast Regional Office requesting a sum

certain of five-hundred thousand ($500,000.00) alleging he was being denied

medication for a mood disorder. (Briggs v. U.S., Civil No. 3:19-cv-1499 at

Doc. 41-1).

On May 13, 2019, the Regional Office denied Briggs’ claim, finding no

evidence he experienced a compensable loss, and noted that evaluations

revealed he had not reported or exhibited symptoms consistent with the need

for psychotropic medication. Id. Plaintiff was informed he had six months

from the May 13, 2019, denial to file suit in federal district court. Id. Plaintiff

timely filed Briggs v. U.S., Civil No. 3:19-cv-1499, on August 29, 2019.

2. Certificate of Merit

Briggs asserts that Defendants were negligent in denying him access

to a psychiatrist and medication for bipolar disorder. (Doc. 1). The United

States argues that Briggs’ 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, Briggs was required to file a COM producing expert

testimony that the requested psychiatric care and psychotropic medication

was medically necessary. Briggs filed his complaint on August 29, 2019.

Thus, he was required to file a COM on or before October 28, 2019.

By Order dated January 22, 2020, this Court, without addressing its

content, granted Plaintiff’s November 29, 2019 motion to present his

Certificate of Merit, and deemed it timely filed. (Doc. 31).

Defendants now move to dismiss Plaintiff’s Certificate of Merit as it fails

to substantially comply with the requirements of Rule 1042.3. The Court

agrees.

Plaintiff’s November 29, 2019 purported Certificate of Merit is a

seventy-three-page document, which consists of six pages of argument and

sixty-seven pages of medical record exhibits. (Doc. 22). While Briggs

acknowledges that a COM is required when a complaint “involves diagnosis,

care and treatment by licensed professionals,” Id, his COM merely contains

alleged facts, as supported by attached records, which pertain to treatment

he received for a diagnosis of bipolar disorder in 2011 and 2012, the

psychological treatment he received at USP-Lewisburg, responses to the

grievances he submitted to complain about his psychological treatment at

USP-Lewisburg, and his stated belief that psychology staff violated BOP

policy. Id. Briggs disputes his psychological diagnosis at USP-Lewisburg,

whether psychiatrist is required to treat him as opposed to a psychologist,

and whether he requires psychotropic medications. Id.

To the extent that Briggs 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 him to have been seen by a

psychiatrist and prescribed psychotropic medication 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, Briggs’

claim is that Defendants prevented him from receiving psychiatric treatment

and psychotropic medication for his alleged mental issues. These claims

involve 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,

Briggs’ FTCA claim against the United States will be dismissed for failure to

file a COM that substantially complies with the requirements of Pa.R.Civ.P.

1042.3.

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. Defendant Enigk 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).

Briggs asserts that Defendant Enigk violated his constitutional rights

under the Eighth Amendment when she ignored his requests for psychiatric

treatment and psychotropic medication. However, it is undisputed that

Defendant Enigk is a commissioned officer with the Public Health Service,

(see Doc. 37-1 at 3) and was acting within the scope of her official duties

when she was dealing with Briggs. Thus, Briggs cannot maintain a Bivens

action against Defendant Jennifer Enigk, a Public Health Service employee,

for harm arising out of alleged constitutional violations committed while

acting within the scope of her employment. Accordingly, Defendant Enigk is

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

2. Official Capacity Claims

Defendants argue that any claims seeking monetary damages against

them in their official capacities are barred by the Eleventh Amendment.

Claims against individual defendant in their official capacity are barred by the

doctrine of sovereign immunity. See Chinchello v. Fenton, 805 F.2d 126, 130

n.4 (3d Cir. 1986) (“The district court properly ruled that sovereign immunity

barred Chinchello’s claim against Scott in his official capacity . . . “); Perez-

Barron v. United States, 480 Fed. Appx. 688, 691 (3d Cir. 2012) (stating,

“The United States, FBOP, and the individual FBOP employees in their

official capacity, however, are barred from suit by the doctrine of sovereign

immunity.”) (citing FDIC v. Meyer, 510 U.S. 471, 486 (1994); Chinchello, 805

F.2d at 130 n.4)). Hence, Briggs’ claims for money damages against the

Defendants in their official capacities are barred by sovereign immunity, and

summary judgment will be granted in favor of Defendants on this ground.

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.

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

type of treatment rendered, specifically, his disagreement with psychology

and medical professionals at USP-Lewisburg with respect to his need for

psychiatric care and medications. Though he may have disagreed with the

Psychology Department’s assessment that psychiatric care and

psychotropic medication 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 psychologically

assessed on numerous occasions by several different treating psychologists,

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 Psychology Department 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

will be granted.

4. No physical injury as required by 28 U.S. §1346(b)(2) and 42

U.S.C. §1997e.

Congress has adopted a number of requirements and exceptions to

the FTCA’s waiver of sovereign immunity. CNA v. U.S., 535 F.3d 132, 138

(3d Cir. 2008). The United States is not liable under the FTCA for money

damages for suits arising out of constitutional violations. Smith v. U.S., No.

12–1800, 2012 WL 3245347, *2 (3d Cir. Aug.10, 2012) (citing Couden v.

Duffy, 446 F.3d 483, 499 (3d Cir. 2006)). Likewise, 28 U.S.C. §1346(b)(2),

provides that:

No person convicted of a felony ... while serving a sentence may

bring a civil action against the United States ... for mental or

emotional injury suffered while in custody without a prior showing

of physical injury.

28 U.S.C. §1346(b)(2).

Similarly worded, and equally applicable to Briggs’ claim, is the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. §1997, which also restricts a

prisoner’s ability to recover compensatory damages for solely mental and

emotional injuries. “No Federal civil action may be brought by a prisoner ...

for mental or emotional injury suffered while in custody without a prior

showing of physical injury.” 42 U.S.C. §1997e(e). The Third Circuit Court of

Appeals in Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir. 2003), held that in

order to satisfy §1997e(e)’s physical injury requirement, a plaintiff must

demonstrate a less than significant, but more than de minimis physical injury.

Id. at 536. The physical injury requirement in 28 U.S.C. §1346(b)(2) is similar

to that of 42 U.S.C. §1997e(e). See Michtavi v. United States, No. 4:07–CV–

0628, 2009 WL 578535, *5 n. 2 (M.D.Pa. Mar.4, 2009) (“Given the similarities

between §1346(b)(2) and §1997e(e), and given that the PLRA also applies

to Michtavi’s claims, the Court will rely upon cases interpreting either

statute.”) (citing Perez v. United States, 271 F. App’x 240, 242 (3d Cir.

2008)). Thus, both the FTCA and the PLRA preclude a convicted felon’s

action for mental and emotional injuries without a showing of a prior physical

injury.

Outside of Plaintiff’s allegation in his complaint that he lost weight

during a hunger strike in an attempt to manipulate treatment, (Doc. 1 at 5),

the record before this Court is devoid of any physical injury whatsoever.

Thus, Plaintiff’s Bivens action and FTCA are both entitled to dismissal for

Plaintiff’s failure to allege a “less-than-significant-but-more-than-de minimis

physical injury” as a predicate to allegations of emotional injury. Mitchell, 318

F.3d at 536.

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, Briggs seeks injunctive relief in the form of a Court

ordered psychiatric evaluation by a “psychiatrist”, in addition to having his

“disciplinary record and sanctions expunged.”5 (Doc. 1). However, Briggs is

no longer in BOP custody. Subsequent to the filing of the above captioned

action, Plaintiff was released from federal custody to the custody of the

Rhode Island Department of Corrections.

5 Additionally, the Court notes that Plaintiff’s claim to have his

disciplinary record and sanctions expunged is barred by Edwards v. Balisok,

520 U.S. 641 (1997). In Edwards, the Supreme Court extended the rationale

in Heck v. Humphrey, 512 U.S. 477 (1994) to disciplinary proceedings,

holding that the expungement of the inmate disciplinary proceeding would

imply the invalidity of the underlying disciplinary action. Edwards, 520 U.S.

641. The Court stated, “[t]he principal procedural defect complained of by

respondent would, if established, necessarily imply the invalidity of the

deprivation of his good-time credits.” Edwards, 520 U.S. at 646. Accordingly,

an inmate may not bring a civil rights action for declaratory and injunctive

relief related to an inmate disciplinary proceeding without first challenging

and overturning, via appropriate proceedings, the disciplinary hearing in

question. Edwards, 520 U.S. at 646-47.

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 claim for preliminary

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

USP-Lewisburg, 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. 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 31, 2021

19-0319-01