# Millhouse v. Federal Bureau of Prisons

> District Court, M.D. Pennsylvania · June 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10410174

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10410174

## How later opinions describe it (automated extraction)

- explaining that when dismissing a complaint pursuant to § 1915A, “a court employs the motion to dismiss standard set forth under Federal Rule of Civil Procedure 12(b)(6)”
- holding that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered through administrative procedures”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KAREEM MILLHOUSE, :
Plaintiff :
: No. 1:19-cv-00665
v. :
: (Judge Kane)
UNITED STATES OF AMERICA, et al., :
Defendants :

MEMORANDUM

Presently before the Court are: (1) the motion for summary judgment (Doc. No. 74) filed
by Defendants the United States of America, Andrew M. Edinger (“Edinger”), and Jessie Ayers
(“Ayers”); and (2) pro se Plaintiff Kareem Millhouse (“Plaintiff”)’s motion for summary
judgment (Doc. No. 95), motion for limited discovery (Doc. No. 97), motion for discovery (Doc.
No. 101), and motions to supplement (Doc. Nos. 107, 120). The motions are fully briefed and
ripe for disposition. The Court will also screen Plaintiff’s claims against Defendants John Does
1-10 pursuant to the Prison Litigation Reform Act (“PLRA”).1
I. BACKGROUND
Plaintiff is currently incarcerated at the Federal Correctional Complex in Coleman,
Florida (“FCC Coleman”). He initiated the above-captioned action on April 18, 2019, by filing a
complaint pursuant to the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), raising claims alleging that
he received inadequate medical care while incarcerated at the United States Penitentiary in
Lewisburg, Pennsylvania (“USP Lewisburg”). (Doc. No. 1.) Specifically, Plaintiff alleges that
in 2017 and 2018: (1) he never received follow-up care after he underwent a lumbar

1 See The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26,
1996).
laminectomy; (2) Defendants failed to evaluate him for medical shoes; and (3) Defendants failed
to provide adequate pain medication. (Id.) Plaintiff names as Defendants the United States of
America, Edinger, Ayers, and “John Does 1-10.” (Id.) In an Order dated May 17, 2019, the
Court granted Plaintiff leave to proceed in forma pauperis and directed service of his complaint

upon Defendants. (Doc. No. 6.) Plaintiff subsequently received several extensions of time to
file a certificate of merit in support of his claims of medical negligence pursuant to the FTCA.
Plaintiff, however, did not file a certificate of merit.
Defendants subsequently filed a motion to revoke Plaintiff’s in forma pauperis status,
asserting that Plaintiff had previously accrued three “strikes” pursuant to the Prison Litigation
Reform Act (“PLRA”) and, therefore, should not be permitted to proceed in forma pauperis in
the above-captioned case. (Doc. No. 65.) In an Order dated November 30, 2020, the Court
denied Defendants’ motion, concluding that although Plaintiff had previously accrued three
“strikes,” Plaintiff’s complaint satisfied the “imminent danger” requirement set forth in 28
U.S.C. § 1915(g). (Doc. No. 73.) The Court directed Defendants to file a response to Plaintiff’s

complaint within fourteen (14) days. (Id.) Defendants subsequently filed their motion for
summary judgment. (Doc. No. 74.) On January 22, 2021, observing that Defendants raised the
issue of whether Plaintiff properly exhausted his administrative remedies with respect to his
claims in accordance with the Prison Litigation Reform Act (“PLRA”), the Court issued a
Paladino Order informing the parties that it would consider the exhaustion issue in the context of
summary judgment and, by doing so, would consider matters outside the pleadings in its role as
factfinder.2 (Doc. No. 94.) The Court directed Plaintiff to file a brief in opposition addressing

2 See Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018).
the issue of administrative exhaustion and a statement of material facts responding to
Defendants’ statement within thirty (30) days. (Id.) Plaintiff filed his responsive materials (Doc.
Nos. 99, 100), as well as his motion for summary judgment (Doc. No. 95), two (2) discovery
motions (Doc. Nos. 97, 101), and a motion to supplement (Doc. No. 107).

II. PLAINTIFF’S MISCELLANEOUS MOTIONS
A. Motion for Limited Discovery
In his first motion for discovery, Plaintiff asserts that he lost certain legal documents
when he was transferred from USP Lewisburg, “particularly administrative remedy no. 953267-
F1, R1 and A1.” (Doc. No. 97 at 1.) Plaintiff also asserts that other legal documents were
destroyed in a flood at USP Coleman in September of 2019. (Id.) Plaintiff seeks: (1) non-drug
formulary requests from 2016, 2018, and 2019; (2) Administrative Remedy 953267-F1, R1, and
A1; (3) all administrative remedies about medical issues from May of 2017 through January of
2019; and (4) all administrative remedy informal resolutions regarding medical issues from
August of 2018 through January of 2019. (Id. at 1-2.) Plaintiff suggests that these documents

“would assist in the accurate judicial decision by supporting the claims in question that Plaintiff
exhausted.” (Doc. No. 98.) He claims that he “could have filed a 56(d) motion but since it’s not
unduly burdensome to retrieve this simple request he ask[s] this Court’s assistance.” (Id.)
Defendants argument that Plaintiff’s motion should be denied because he did not properly serve
them, his request does not meet the criteria set forth in Rule 26(b) of the Federal Rules of Civil
Procedure, and his motion does not meet the requirements of Rule 56(d). (Doc. No. 117 at 1.)
Rules 5(a) and (b) and 34(a) require that discovery requests be served upon opposing
parties. See Fed. R. Civ. P. 5(a)-(b), 34(a). Plaintiff does not dispute that he did not properly
serve these requests upon counsel for Defendants. For that reason alone, his motion for limited
discovery will be denied. Moreover, the Court agrees with Defendants that Plaintiff has not
demonstrated that the requested documents are “proportional to the needs of the case.” See Fed.
R. Civ. P. 26(b)(1). Plaintiff himself has provided copies of Administrative Remedy Nos.
953267-FI and 953267-R1. (Doc. No. 108.) Moreover, Defendants have provided a copy of

Plaintiff’s Administrative Remedy Generalized Retrieval record, which shows the 129
administrative remedies filed by Plaintiff during the relevant time. (Doc. No. 92 at 1-67.)
The Court also agrees with Defendants that Plaintiff’s motion fails to satisfy the
requirements of Rule 56(d) of the Federal Rules of Civil Procedure. Rule 56(d) “allows, in
certain circumstances, for supplemental discovery after a motion for summary judgment has
been filed.” See Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014) (citing Fed. R. Civ. P.
56(d)). “Rule 56(d) states that ‘[i]f a nonmovant shows by affidavit or declaration that, for
specific reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” Shelton v. Bledsoe, 775 F.3d 554, 565-66

(3d Cir. 2015) (quoting Fed. R. Civ. P. 56(d)).
Plaintiff has not submitted an affidavit or declaration pursuant to Rule 56(d). The Third
Circuit has noted that, even if an affidavit is not submitted, the party must “identify with
specificity ‘what particular information is sought; however, if uncovered, it would preclude
summary judgment; and why it has not previously been obtained.” See Lunderstadt v. Colafella,
885 F.2d 66, 71 (3d Cir. 1989) (quoting Dowling v. City of Philadelphia, 855 F.2d 136, 140 (3d
Cir. 1988)). Plaintiff’s motion, however, fails to provide this explanation. Accordingly, the
Court will deny Plaintiff’s motion for limited discovery. (Doc. No. 97.)
B. Plaintiff’s Motion for Discovery
In his second motion for discovery, Plaintiff seeks copies of various administrative
remedies as well as camera surveillance. (Doc. No. 101.) Defendants assert that Plaintiff’s
motion should be deemed withdrawn because he failed to file a brief in support thereof. (Doc.

No. 117 at 11.) The Local Rules of this Court state:
Within fourteen (14) days after the filing of any motion, the party filing the motion
shall file a brief in support of the motion. If the motion seeks a protective order, a
supporting brief shall be filed with the motion. If a supporting brief is not filed
within the time provided in this rule the motion shall be deemed to be withdrawn.
A brief shall not be required: (a) In support of a motion for enlargement of time if
the reasons for the request are fully stated in the motion, (b) In support of any
motion which has concurrence of all parties, and the reasons for the motion and the
relief sought are fully stated therein, or (c) In support of a motion for appointment
of counsel.

M.D. Pa. L.R. 7.5. The Court agrees with Defendants that Plaintiff failed to file a brief in
support of his second motion for discovery. The Court, therefore, will deem this motion (Doc.
No. 101) withdrawn.
C. Motions to Supplement
In his first motion to supplement (Doc. No. 107), Plaintiff requests leave to supplement
his response to Defendants’ motion for summary judgment with copies of various administrative
remedies, and responses thereto (Doc. No. 108). Defendants have not opposed Plaintiff’s
motion. The Court, therefore, will grant Plaintiff’s motion to supplement (Doc. No. 107) and
consider the exhibits he proffers (Doc. No. 108) in its discussion of Defendants’ motion for
summary judgment. In his second motion to supplement (Doc. No. 120), Plaintiff requests leave
to supplement his statement of material facts and his response to Defendants’ statement of
material facts with citations to the record (Doc. Nos. 121, 122). The Court will also grant this
motion to supplement and consider Plaintiff’s statements therein below.
III. MOTIONS FOR SUMMARY JUDGMENT
A. Legal Standard
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.” See 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. See 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. See Anderson, 477 U.S. at
257; Brenner v. Local 514, United Bhd. of Carpenters & 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. See 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 Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). 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 that demonstrates the absence of a genuine issue of material fact, the
nonmoving party is required to go beyond his pleadings with affidavits, depositions, answers to
interrogatories, or the like in order to demonstrate specific material facts that give rise to a
genuine issue. See 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.” See Matsushita Elec. 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 that 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.” See Celotex, 477 U.S. at 323; see also
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. See White, 862 F.2d at 59. In
doing so, the Court must accept the nonmovant’s allegations as true and resolve any conflicts in
his favor. See 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.” See 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.
09-1384, 2010 WL 2853261, at *5 (M.D. Pa. July 20, 2010) (stating that pro se parties “are not
excused from complying with court orders and the local rules of court”); Thomas v. Norris, No.
02-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006) (explaining that pro se parties must
follow the Federal Rules of Civil Procedure).
“The rule is no different where there are cross-motions for summary judgment.”
Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). “Cross-motions are no
more than a claim by each side that it alone is entitled to summary judgment, and the making of
such inherently contradictory claims does not constitute an agreement that if one is rejected the

other is necessarily justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.” Muhammad v. Martin, No. 3:19-
cv-1316, 2021 WL 832645, at *2 (M.D. Pa. Mar. 4, 2021) (citing Rains v. Cascade Indus., Inc.,
402 F.2d 241, 245 (3d Cir. 1968)). “[E]ach movant must demonstrate that no genuine issue of
material fact exists; if both parties fail to carry their respective burdens, the court must deny
[both] motions.” See Quarles v. Palakovich, 736 F. Supp. 2d 941, 946 (M.D. Pa. 2010) (citing
Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008)).
B. Plaintiff’s Motion for Summary Judgment
As an initial matter, Defendants maintain that Plaintiff’s motion for summary judgment
should be dismissed because of Plaintiff’s failure to comply with Local Rule 56.1. (Doc. No.

118 at 9-11.) The Court agrees with Defendants. Local Rule 56.1 provides that all motions for
summary judgment must be “accompanied by a separate, short and concise statement of the
material facts, in numbered paragraphs, as to which the moving party contends there is no
genuine issue to be tried.” See M.D. Pa. L.R. 56.1. Moreover, “[s]tatements of material facts in
support of, or in opposition to, a motion shall include references to the parts of the record that
support the statements.” See id. In the instant case, although Plaintiff filed a statement of
material facts (Doc. No. 103) in support of his motion for summary judgment, his statement fails
to comply with Local Rule 56.1 because it does not include references to the parts of the record
that support the statements. Instead, Plaintiff’s statement consists of conclusory statements not
supported by citations to the record.
In light of his pro se status, Plaintiff was advised, at the outset of the above-captioned
action, of the requirements of Local Rule 56.1 by Standing Practice Order dated February 8,

2011. (Doc. No. 3.) Moreover, Defendants raised Plaintiff’s failure to comply with the
requirements of Local Rule 56.1 in their brief opposing Plaintiff’s motion for summary
judgment. (Doc. No. 118.) Plaintiff has attempted to address or correct this deficiency by filing
his second motion to supplement (Doc. No. 120) and his supplemental consolidated brief (Doc.
No. 122). Plaintiff indicates that the “substantive evidence that support[s] his exhaustion claims
are in [Doc. No.] 112 and Defendant[s’] administrative retrieval exhibit in their motion for
summary judgment.” (Doc. No. 122 at 1.) He also suggests that “the initial complaint and
exhibits attached to that complaint support his argument.” (Id. at 2.) Plaintiff asks that the Court
“look at all his exhibits and incorp[o]rate the exhibits by reference along with [Doc. No.] 112 as
citations to the record as a correction.” (Id. at 3.) Plaintiff’s references to the entire record are

insufficient to comply with Local Rule 56.1. See Ingram v. SCI Camp Hill, No. 3:08-cv-23,
2010 WL 4973302, at *5 (M.D. Pa. Dec. 1, 2010). The Court, therefore, will dismiss Plaintiff’s
motion for summary judgment (Doc. No. 95) because of Plaintiff’s failure to comply with Local
Rule 56.1. See Landmesser v. Hazelton Area School Dist., 982 F. Supp. 2d 408, 412-13 (M.D.
Pa. 2013) (dismissing pro se plaintiff’s motion for summary judgment for the same reason).
C. Defendants’ Motion for Summary Judgment
1. Statement of Material Facts3
a. Facts Regarding the Certificate of Merit
On July 1, 20219, the United States mailed Plaintiff a notice regarding the requirement

that he file a certificate of merit. (Doc. No. 91 ¶ 1.) There is no certificate of merit “filed on the
docket as of the date of filing the Defendants’ Motion for Summary Judgment or the filing of the
Brief in Support.” (Id. ¶ 2.)
b. Facts Regarding Administrative Exhaustion
The Bureau of Prisons (“BOP”) has “established an Administrative Remedy Program for
inmates to resolve concerns related to their confinement.” (Id. ¶ 3.) Inmates must first attempt

3 The Local Rules provide that in addition to the requirement that a party file 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.” See
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. See 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 background herein is derived from Defendants’ Rule 56.1 statement of facts.
(Doc. No. 91.)
Plaintiff’s responsive statement of facts (Doc. No. 100) does not fully comply with Local
Rule 56.1 because many of his denials of Defendants’ allegations contain no references to the
record. As discussed above, Plaintiff’s second motion to supplement and supplemental
consolidated brief (Doc. Nos. 120, 122) do not correct this deficiency by their general references
to the entire record. The Court, therefore, will only consider those facts presented by Plaintiff
that are properly supported by record citations. See Coit v. Fisher, No. 1:18-cv-2439, 2020 WL
4260762, at *2 n.3 (M.D. Pa. July 24, 2020) (citing Lynch v. Ducasse, No. 3:18-cv-2044, 2020
WL 3547375, at *2 (M.D. Pa. June 30, 2020)). Accordingly, unless otherwise noted, the Court
deems the facts set forth by Defendants to be undisputed. See Fed. R. Civ. P. 56(e)(2); M.D. Pa.
L.R. 56.1; United States v. Alberto, No. 3:18-cv-1014, 2020 WL 730316, at *2 (M.D. Pa. Feb.
13, 2020) (concluding that the “[f]ailure to file this [responsive statement of material facts]
results in admission of the moving party’s statement of facts”).
to resolve matters informally by presenting complaints “to staff on an Informal Resolution
Attempt form commonly referred to as a BP-8.” (Id. ¶ 4.) If informal resolution is not
successful, “the inmate may then seek relief from the warden with the submission of a Request
for Administrative Remedy, commonly referred to as a BP-9.” (Id. ¶ 5.) The BP-9 must be

submitted within twenty (20) calendar days “from the date of the event which is the subject of
the remedy.” (Id. ¶ 6.) The Warden has twenty (20) calendar days to respond. (Id. ¶ 7.)
If an inmate is not satisfied with the Warden’s response, he may file a Regional
Administrative Remedy Appeal, or BP-10, with the Regional Director within twenty (20) days
from the date of the response. (Id. ¶ 8.) The Regional Director has thirty (30) days to respond.
(Id. ¶ 9.) The inmate may appeal the Regional Director’s response by filing “a Central Office
Administrative Remedy Appeal, or BP-11, with the BOP’s Central Office within thirty days of
the Regional Director’s response.” (Id. ¶ 10.) The Central Office has forty (40) days to respond.
(Id. ¶ 11.) The appeal to the Central Office “is the final administrative level of appeal in the
BOP,” and no appeal is considered to “have been fully exhausted until it is decided on its merits

by the BOP’s Central Office.” (Id. ¶¶ 12-13.) “If, at any level, the inmate does not receive a
response within the allotted time for a reply, the absence of a response is considered a denial at
that level.” (Id. ¶ 14.)
Plaintiff filed 129 administrative remedies “from April 19, 2017, the date he alleges
Defendant Edinger improperly lifted his medical hold, and April 18, 2019,” the date he filed the
instant complaint. (Id. ¶ 15.) On April 3, 2019, Plaintiff “filed Administrative Remedy Number
973121 at USP Lewisburg requesting a soft shoe pass.” (Id. ¶ 16.) The remedy was denied on
April 8, 2019. (Id. ¶ 17.) On April 18, 2019, Plaintiff “filed the instant complaint prior to
properly pursuing the remedy request through the additional two levels of the Administrative
Remedy Program.” (Id.¶ 18.) Plaintiff exhausted administrative remedies regarding his medical
denial claim, medical treatment denial claim, a request for pain relief, and a claim that sick call
requests were not being responded to. (Id. ¶ 19 n.4.)4
c. Facts Regarding Plaintiff’s Medical Care

Defendant Edinger is the Clinical Director at USP Lewisburg, and is “responsible for
overseeing the clinical care of inmates designated” there. (Id.¶¶ 20-21.) On March 8, 2017,
Plaintiff “underwent a L5-S1 (Lumbosacral Joint) Maximum Access Surgery Posterior [Lumbar]
Interbody Fusion (MAS PLIF) at UPMC Susquehanna Health Hospital in Williamsport,
Pennsylvania.” (Id. ¶ 22.) He was discharged and transported back to USP Lewisburg on March
9, 2017. (Id. ¶ 23.) Discharge instructions “included staple removal in ten days, a lumbar x-ray
before the postoperative appointment, and for [Plaintiff] to wear the back brace ‘if told to do
so.’” (Id. ¶ 24.)
After Plaintiff returned to USP Lewisburg, Defendant Edinger evaluated him “and
prescribed Acetaminophen/Codeine, Ibuprofen, and Gabapentin for back pain, noted the six-

week postoperative appointment request, associated x-ray, and scheduled him for daily wound
care and dressing changes.” (Id. ¶ 25.) On March 10, 2017, Defendant Edinger evaluated
Plaintiff during a wound check. (Id. ¶ 26.) He noted that the “incision was clean, dry, with mild
serosanguineous drainage present on the dressing, staples intact and wound edges clean and well
approximated.” (Id. ¶ 27.) On March 13, 2017, during a dressing change, Plaintiff “was
ambulating under his own power and was assisted in reapplying his back brace.” (Id. ¶ 28.)
Plaintiff’s staples were removed on March 17, 2017. (Id. ¶ 29.) On March 21, 2017, Plaintiff

4 Defendants aver that “[n]ot a single remedy filing pertains to [Plaintiff’s] transfer, the removal
of the medical hold, or alleged resultant suspension of medical care caused by it.” (Doc. No. 91
¶ 19.) Plaintiff disagrees. (Doc. No. 100 ¶ 19.)
was “again prescribed Amitriptyline after reports of increased back pain at night.” (Id. ¶ 30.) On
March 25, 2017, Plaintiff refused the Amitriptyline, stating that it “made him ‘fall asleep too
quick.’” (Id. ¶ 31.)
Plaintiff’s scheduled postoperative x-ray on March 31, 2017 “revealed successful

posterior spinal fusion at the lumbosacral joint and intervertebral fusion device with hardware
intact.” (Id.¶ 32.) On April 17, 2017, Plaintiff “had his postoperative neurosurgery evaluation at
an outside contract hospital.” (Id. ¶ 33.) The neurosurgeon found that Plaintiff “was ‘doing well
post-op’ and [that he was] to ‘keep using back brace.’” (Id. ¶ 34.) On April 19, 2017, Defendant
Edinger contacted the surgeon’s office “to discuss the remaining plan of care, as [Plaintiff] was
pending transfer to a non-Special Management Unit (SMU) facility.” (Id. ¶ 35.) The
neurosurgeon responded that “he was satisfied with [Plaintiff’s] recovery progress and his lone
remaining recommendation was an additional six-month x-ray to evaluate hardware stability.”
(Id. ¶ 36.) Therefore, “with no medical indication or further follow-up care requested, Defendant
Edinger lifted his medical hold and submitted the radiology request for an additional x-ray at the

six-month mark.” (Id. ¶ 37.)
On April 24, 2017, Plaintiff was transferred to USP McCreary in Pine Knot, Kentucky.
(Id. ¶ 38.) On May 9, 2017, USP McCreary “submitted a consultation request for a neurosurgery
evaluation.” (Id. ¶ 39.) On May 24, 2017, an x-ray of Plaintiff’s left spine “revealed intact
hardware with no evidence of failure and no acute findings.” (Id. ¶ 40.) On November 2, 2017,
Plaintiff “had another spine x-ray that revealed stable posterior spinal fusion hardware at the
lumbosacral joint an[d] no change in the radiographic appearance of the lumbar spine compared
to the May 24, 2017, x-ray.” (Id. ¶ 41.) On December 28, 2017, Plaintiff “refused formulary
pain medications for his chronic back pain and spondylolisthesis.” (Id. ¶ 42.) On April 5, 2018,
Plaintiff’s prior care provider medically cleared him for transfer back to the USP Lewisburg
SMU, finding “there was no medical reason to exclude him from SMU placement.” (Id. ¶ 43.)
In the medical summary associated with the clearance, “the Physician Assistant noted
[Plaintiff’s] Spine, T-Spine, and L-Spine were normal with no palpable signs of present scoliosis,

no tenderness with palpitation[,] and no deformity present.” (Id. ¶ 44.)
On August 6, 2018, Plaintiff was “evaluated upon his return to USP Lewisburg during his
intake screening and his medications were reconciled with no new health problems identified.”
(Id.¶ 45.) On August 17, 2018, Defendant Edinger evaluated Plaintiff “and noted his medical
history of hypertension, asthma, vitamin D deficiency, and chronic lower back pain.” (Id. ¶ 46.)
Plaintiff “indicated he was experiencing dysesthesia/paresthesia down his right leg combined
with pain and would be filing an additional lawsuit against [Defendant Edinger] for ‘allowing’
him to be transferred from the SMU.” (Id. ¶ 47.) Defendant Edinger submitted a consultation
request for Plaintiff to receive an electromyography (“EMG”) of his right lower extremity. (Id.
¶ 48.)

Plaintiff underwent the EMG on October 4, 2018. (Id.¶ 49.) Defendant Edinger
explained to Plaintiff “that back surgery does not fix back pain but is instead performed to
relieve neurologic impingement.” (Id. ¶ 50.) On October 23, 2018, Defendant Edinger
“reviewed the EMG results, which revealed a mild distal sural nerve injury.” (Id. ¶ 51.)
Defendant Edinger noted that this was not the cause of Plaintiff’s back pain, “but placed a
neurology consultation request to evaluate his persistent pain with a radicular pattern and
prescribed him Naproxen for lower back pain, after previous unsuccessful trials of gabapentin
(which [Plaintiff] was improperly diverting to another inmate in September 2017), Duloxetine
(which [Plaintiff] elected to discontinue), Amitriptyline, and Carbamazepine.” (Id. ¶ 52.)
On October 24, 2018, Defendant Ayers evaluated Plaintiff “for reported headaches,
nosebleeds, and dizziness.” (Id.¶ 53.) Defendant Ayers educated Plaintiff “on the importance of
medication compliance and instructed him to purchase allergy medication from the commissary
for allergic rhinitis and sinus headache relief.” (Id. ¶ 54.) On November 2, 2018, Plaintiff asked

Defendant Ayers “about his ‘soft shoe pass’ and was informed he did not currently meet the
criteria for medical shoes and does not suffer from severe foot neuropathy or deformity.” (Id.
¶ 55.) Plaintiff responded that he would “just fall down the stairs then.” (Id. ¶ 56.) On
November 8, 2018, Plaintiff requested that his Naproxen prescription be discontinued. (Id. ¶ 57.)
On January 29, 2019, Plaintiff “refused the scheduled neurology evaluation, thereby
inhibiting further assessment of any new mild distal sural nerve injury.” (Id. ¶ 58.) On February
4, 2019, Defendant Ayers evaluated Plaintiff “for complaints of left knee pain after a supposed
February 1, 2019, fall from an upper bunk.” (Id. ¶ 59.) Defendant Ayers noted that Plaintiff
“had a bottom bunk pass due to back issues and was always on the bottom bunk when observed
by officers and medical staff.” (Id. ¶ 60.) Her evaluation revealed no signs of trauma, and

Plaintiff “was ambulating without issue.” (Id. ¶ 61.) Plaintiff “was educated on the need to
immediately notify staff in the event he believes he suffered an injury so a timely evaluation
could be performed, to rest the knee, apply cold compresses, and take over the counter
ibuprofen.” (Id. ¶ 62.) On February 14, 2019, Defendant Ayers “ordered a left knee x-ray to
rule out any abnormality.” (Id. ¶ 63.) The x-ray was performed on March 7, 2019, and was
“unremarkable with no fracture or malalignment.” (Id. ¶ 64.)
On March 18, 2019, Defendant Edinger “entered an Administrative Note memorializing
that [Plaintiff] does not have a current, symptomatic foot condition requiring a medical or
orthotic shoe.” (Id. ¶ 65.) Plaintiff’s “chronic low back pain and radiculopathy would not be
ameliorated by sneakers or medical shoes.” (Id. ¶ 66.) On March 20, 2019, Plaintiff “agreed to,
and was prescribed, Carbamazepine to treat his lower back pain.” (Id. ¶ 67.) On May 9, 2019,
Plaintiff’s Carbamazepine dosage was increased from 200mg to 400 mg during a chronic care
visit. (Id. ¶ 68.) On June 10, 2019, Plaintiff “requested the Carbamazepine be discontinued[,]

and the refusal was memorialized on a medical treatment refusal form and the possible
consequences, to include worsening of pain, were carefully explained to him by medical staff.”
(Id. ¶ 69.)
2. Discussion
a. FTCA Claims
The FTCA “provides a mechanism for bringing a state law tort action against the federal
government in federal court,” and the “extent of the United States’ liability under the FTCA is
generally determined by reference to state law.” See In re Orthopedic Bone Screw Prod. Liab.
Litig., 264 F.3d 344, 362 (3d Cir. 2001) (quoting Molzof v. United States, 502 U.S. 301, 305
(1992)). In the instant case, Plaintiff asserts claims of medical negligence under the FTCA.

Where a federal court is presented with a claim brought under the FTCA, it applies the law of the
state in which the alleged tortious conduct occurred. See 28 U.S.C. § 1346(b). In this case, the
allegedly tortious conduct occurred in Pennsylvania, and, therefore, the Court refers to
Pennsylvania tort law to assess the extent of the United States’ potential liability for Plaintiff’s
medical negligence claims.
Defendants seek summary judgment as to Plaintiff’s medical negligence claims due to his
failure to file a certificate of merit. (Doc. No. 93 at 16-22.) Under Rule 1042.3 of the
Pennsylvania Rules of Civil Procedure, plaintiffs seeking to raise medical negligence claims
must file a valid certificate of merit. That rule states in pertinent part:
(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. The requirements of Rule 1042.3 are substantive in nature and, therefore,
federal courts in Pennsylvania must apply these prerequisites of Pennsylvania law when
assessing the merits of a medical malpractice claim. See Liggon-Redding v. Estate of Sugarman,
659 F.3d 258, 262-65 (3d Cir. 2011); Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938,
944 (3d Cir. 2007). This requirement applies with equal force to counseled complaints and to
pro se medical malpractice actions asserted under state law. See Hodge v. Dep’t of Justice, 372
F. App’x 264, 267 (3d Cir. 2010) (affirming district court’s dismissal of medical negligence
claim for failure to file a certificate of merit); Levi v. Lappin, No. 07-1839, 2009 WL 1770146,
at *1 (M.D. Pa. June 22, 2009).
Plaintiff concedes that Pennsylvania rules require a certificate of merit but asserts that the
requirement should be waived “because [he] assert[s] ordinary negligence such that the layman
can understand.” (Doc. No. 99 at 6.) This Court has recognized that “prison staff preventing a
prisoner from receiving prescribed medication and preventing a prisoner access to outside
medical care can also be based upon theories of ordinary negligence.” See Dorsey v. Peter, No.
3:19-cv-113, 2020 WL 881134, at *10 (M.D. Pa. Feb. 21, 2020). “To determine whether a
plaintiff’s claim is one of ordinary or professional negligence, courts must look to the substance,
rather than the form, of the complaint.” See Baiter v. United States, No. 3:09-cv-1409, 2014 WL
1365905, at *25 (M.D. Pa. Apr. 7, 2014). Whether a negligence claim concerns “professional

versus ordinary negligence deals primarily with the breach of a professional standard of care.”
See Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d 502, 507 (Pa. 2009). The
Pennsylvania courts have distinguished medical malpractice from ordinary negligence as
follows:
A medical malpractice claim is distinguished by two defining characteristics. First,
medical malpractice can occur only within the course of a professional relationship.
Second, claims of medical malpractice necessarily raise questions involving
medical judgment. Claims of ordinary negligence, by contrast, raise issues that are
within the common knowledge and experience of the [fact-finder]. Therefore, 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. If both these questions are answered in the
affirmative, the action is subject to the procedural and substantive requirements that
govern medical malpractice actions.

Ditch v. Waynesboro Hosp., 917 A.2d 317, 322 (Pa. Super Ct. 2007). In sum, “a complaint
‘sounds in malpractice’ where ‘the conduct at issue constituted an integral part of the process of
rendering medical treatment.’” See Iwanejko, 249 F. App’x at 944 (quoting Ditch, 917 A.2d at
323).
In the instant case, the conduct giving rise to Plaintiff’s claims clearly arose within the
course of a professional relationship and constituted an “integral part of the process of rendering
medical treatment.” See id. Plaintiff, therefore, was required to file a certificate of merit, which
he failed to do. The usual consequence for failing to file a certificate of merit is dismissal of the
claim without prejudice. See Booker v. United States, 366 F. App’x 425, 427 (3d Cir. 2010).
However, dismissal with prejudice is proper when the statute of limitations has run on the claim.
See Smith v. Bolava, No. 14-cv-5753, 2015 WL 2399134, at *3 (E.D. Pa. May 20, 2015)
(quoting Booker, 366 F. App’x at 427). Pennsylvania’s statute of limitations for medical
malpractice claims is two years. See 42 Pa. Cons. Stat. § 5524(7). Usually, the statute of

limitations for a claim arising under Pennsylvania law begins to run at “the occurrence of the
final significant event necessary to make the claim suable.” See Barns v. Am. Tobacco Co., 161
F.3d 127, 152 (3d Cir. 1998). In some cases, however, the application of the discovery rule will
toll the limitations period until “the plaintiff knows or reasonably should know (1) that he has
been injured, and (2) that his injury has been caused by another party’s conduct.” See Romah v.
Hygienic Sanitation Co., 705 A.2d 841, 858 (Pa. Super. 1997). The commencement of the
limitations period may be determined as a matter of law only “where the facts are so clear that
reasonable minds cannot differ.” See Crouse v. Cyclops Indus., 745 A. 2d 606, 611 (Pa. 2000).
As noted supra in the statement of material facts, Plaintiff’s medical negligence claims involve
conduct that occurred from 2017 through June of 2019. The Court, therefore, cannot definitively

conclude that the statute of limitations has run on Plaintiff’s medical negligence claims.
Accordingly, the Court will grant summary judgment to Defendants on Plaintiff’s FTCA claims
and dismiss such claims without prejudice.
b. Bivens Claims
Defendants assert that they are entitled to summary judgment because: (1) Plaintiff failed
to exhaust his claims concerning the lifting of the medical hold and subsequent transfer, delay in
care caused by the transfer, and soft shoe pass; and (2) they are entitled to qualified immunity.
(Doc. No. 93 at 2-3.) The Court considers Defendants’ arguments below.
i. Exhaustion of Administrative Remedies
Pursuant to the PLRA, a prisoner must pursue all available avenues of relief through the
applicable grievance system before initiating a federal civil rights action. See 42 U.S.C.
§ 1997e(a); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust

irrespective of the forms of relief sought and offered through administrative avenues.”). Section
1997e provides, in relevant part, that “[n]o action shall be brought with respect to prison
conditions under [S]ection 1983 of this title, or any other [f]ederal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies as are available
are exhausted.” See 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory. See
Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth, 532 U.S. at 742 (holding
that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the
relief offered through administrative procedures”).
The Third Circuit has further provided that there is no futility exception to Section
1997e’s exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000).

Courts have typically required across-the-board exhaustion by inmates seeking to pursue claims
in federal court. See id. Additionally, courts have interpreted this exhaustion requirement as
including a procedural default component, holding that inmates must fully satisfy the
administrative requirements of the inmate grievance process before proceeding with a claim in
federal court. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); see also Oriakhi v. United
States, 165 F. App’x 991, 993 (3d Cir. 2006) (providing that “there appears to be unanimous
circuit court consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement by
exhausting administrative remedies after the filing of the complaint in federal court”). Courts
have also concluded that inmates who fail to complete the prison grievance process in a full and
timely manner are barred from subsequently litigating claims in federal court. See, e.g., Booth v.
Churner, 206 F.3d 289 (3d Cir. 2000); Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008).
This broad rule favoring full exhaustion allows for a narrowly-defined exception; if the
actions of prison officials directly caused the inmate’s procedural default as to a grievance, the

inmate will not be required to comply strictly with this exhaustion requirement. See Camp v.
Brennan, 219 F.3d 279 (3d Cir. 2000). However, courts also recognize a clear “reluctance to
invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the statute requires.” See
Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust will
be excused only “under certain limited circumstances,” see Harris v. Armstrong, 149 F. App’x
58, 59 (3d Cir. 2005), and an inmate may defeat a claim of failure to exhaust only by showing
“he was misled or that there was some extraordinary reason he was prevented from complying
with the statutory mandate.” See Warman, 49 F. App’x at 368.
In the absence of competent proof that an inmate was misled by corrections officials, or
some other extraordinary circumstances warranting a departure from strict compliance with the

exhaustion requirement, courts frequently reject inmate requests for their failure to exhaust to be
excused. An inmate, therefore, may not excuse a failure to comply with these grievance
procedures in a timely manner by simply claiming that his efforts constituted “substantial
compliance” with this statutory exhaustion requirement. See Harris, 149 F. App’x at 59.
Furthermore, an inmate may not avoid this exhaustion requirement by merely alleging that the
administrative policies were not clearly explained to him. See Warman, 49 F. App’x at 368.
Consequently, an inmate’s confusion regarding these grievances procedures does not, alone,
excuse a failure to exhaust. See Casey v. Smith, 71 F. App’x 916 (3d Cir. 2003); see also Marsh
v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that ‘ignorance of the
law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.’”
(citations omitted)).
Recently, the Supreme Court considered what renders administrative remedies
unavailable to an inmate such that a failure to exhaust may be excused. See Ross v. Blake, 136

S. Ct. 1850 (2016). The Court noted “three kinds of circumstances in which an administrative
remedy, although officially on the books, is not capable of use to obtain relief.” See id. at 1859.
First, an administrative procedure is not available “when (despite what regulations or guidance
materials may promise) it operates as a simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates.” See id. Second, a procedure is not
available when it is “so opaque that it becomes, practically speaking, incapable of use.” See id.
Finally, a procedure is unavailable when “prison administrators thwart inmates from taking
advantage of a grievance process through machination, misinterpretation, or intimidation.” See
id. at 1860. However, “once the defendant has established that the inmate failed to resort to
administrative remedies, the onus falls on the inmate to show that such remedies were

unavailable to him.” See Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018). The Third
Circuit recently established that:
to defeat a failure-to-exhaust defense based on a misrepresentation by prison staff,
an inmate must show (1) that the misrepresentation is one which a reasonable
inmate would be entitled to rely on and sufficiently misleading to interfere with a
reasonable inmate’s use of the grievance process, and (2) that the inmate was
actually misled by the misrepresentation.

See Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020).
Defendants maintain that Plaintiff failed to exhaust his claims concerning the lifting of
the medical hold, his transfer, any delay in care caused by the transfer, and the failure to provide
soft shoes. (Doc. No. 93 at 26.) Specifically, Defendants aver that although Plaintiff filed 129
administrative remedies between April 19, 2017, and April 18, 2019, not a single one “pertains
to lifting the medical hold, permitting [Plaintiff] to be transferred[,] and any delay in care caused
by the transfer.” (Id.) They further assert that although Plaintiff filed administrative remedy
973121 requesting a soft shoe pass, he did not appeal the denial of that remedy “through the

remaining two levels of the Administrative Remedy Program.” (Id.)
In response, Plaintiff avers that he was transferred to USP McCreary and was unable to
file his remedies. (Doc. No. 119 at 1.) He asserts that he “attempted to file a BP-8 [but] there
was no response.” (Id.) The documents received from Plaintiff indicate that on August 28,
2018, Plaintiff filed a BP-8 asserting that he has a soft shoe pass and that his sick call requests
were being ignored. (Doc. No. 108-2 at 5-6.) Plaintiff claimed that Defendant Edinger
conspired with other officials to have him transferred in “order to deprive [him] of medical care.”
(Id. at 6.) The BP-8 indicates that a response was prepared by S. Brown on August 30, 2018, but
there is no indication of when the response was provided to Plaintiff. (Id. at 7.)
The Third Circuit has recently concluded that an inmate fully discharges the exhaustion

requirement when prison officials refuse to respond to his requests for informal resolution. See
Millhouse v. Heath, 815 F. App’x 628, 631 (3d Cir. 2020). “Nor does the regulatory
presumption that a non-response acts as a denial, see 28 C.F.R. § 542.18, apply to informal
resolution.” See id. On this record, the Court cannot conclude that the failure to provide the
response to the BP-8 to Plaintiff was a “denial of an informal request that would trigger
additional exhaustion requirements.” See id.
Plaintiff also suggests that he exhausted the claims at issue, particularly his claim
regarding soft shoes, in administrative remedy 953267. (Doc. No. 99 at 2-3.) Plaintiff has
submitted copies of these remedies. (Doc. No. 108-2.) In this remedy, Plaintiff averred that his
sick call requests had not been addressed, and he requested appropriate treatment, soft shoes, a
back brace, pain medication, and a lower bunk authorization. (Id.) While Plaintiff has only
provided copies of the first two levels of this administrative remedy (id.), the exhibits submitted
by Defendants suggest that he appealed administrative remedy 953267 to the final level of appeal

(Doc. No. 92-1 at 46).
Given the state of the record, the Court concludes that a genuine issue of fact exists as to
whether the grievance process was rendered unavailable to Plaintiff such that his failure to
exhaust his claims regarding the medical hold, his transfer, and any delay in care caused by the
transfer could be excused. Moreover, the record suggests that Plaintiff may have exhausted his
claim regarding the failure to provide soft shoes. Thus, the Court declines to grant summary
judgment on the basis that Plaintiff failed to exhaust properly these claims. Accordingly, the
Court considers the merits of Plaintiff’s claims below.
ii. Qualified Immunity
“Qualified immunity shields federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-
Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To
determine whether a right was clearly established, the Court must ask “whether it would be clear
to a reasonable officer that his conduct was unlawful in the situation he confronted.” See
Schmidt v. Creedon, 639 F.3d 587, 598 (3d Cir. 2011). “If it would not have been clear to a
reasonable officer what the law required under the facts alleged, then he is entitled to qualified
immunity.” Id. Stated differently, for a right to be clearly established, “existing precedent must
have placed the statutory or constitutional question beyond debate.” See al-Kidd, 563 U.S. at
741. As the Supreme Court recently noted, “[t]his demanding standard protects ‘all but the
plainly incompetent or those who knowingly violate the law.’” See District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Accordingly, “there must be sufficient precedent at the time of action, factually similar to the

plaintiff’s allegations, to put [the] defendant on notice that his or her conduct is constitutionally
prohibited.” See Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d
Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)).
The United States Supreme Court’s decision in White v. Pauly, 137 S. Ct. 548 (2017),
clarifies the Court’s inquiry in this regard. In that case, the Supreme Court reaffirmed that its
case law “do[es] not require a case directly on point” for a right to be clearly established, but
“existing precedent must have placed the statutory or constitutional question beyond debate.”5
See id. at 551 (internal quotation marks omitted) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015)). The Supreme Court reiterated that the clearly-established law “must be ‘particularized’
to the facts of the case,” and cautioned that the fact that a case presents a unique set of facts and

circumstances is an “important indication” that a defendant’s conduct at issue did not violate a
“clearly established” right. See id. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
In the instant case, Plaintiff alleges that Defendants Edinger and Ayers violated his
Eighth Amendment rights by failing to provide adequate medical care. The Eighth Amendment
prohibits the infliction of cruel and unusual punishment of prisoners. See Farmer v. Brennan,
511 U.S. 825, 834 (1994) (noting that “[t]o violate the Cruel and Unusual Punishment Clause, a

5 There may be the rare “obvious case,” however, where “a body of case law” is not necessary.
See Brosseau v. Haugen, 543 U.S. 194, 199 (2004).
prison official must have a sufficiently culpable state of mind. . . . In prison-conditions cases
that state of mind is one of ‘deliberate indifference’ to inmate health or safety.”). An Eighth
Amendment claim includes both objective and subjective components. See Wilson v. Seiter, 501
U.S. 294, 298 (1991). Serious hardship to the prisoner is required to satisfy the Eighth

Amendment’s objective component. See id. The subjective component is met if the person or
persons causing the deprivation acted with “a sufficiently culpable state of mind.” See id. In the
context of medical care, the Eighth Amendment “requires prison officials to provide basic
medical treatment to those whom it has incarcerated.” See Rouse v. Plantier, 182 F.3d 192, 197
(3d Cir. 1999). In order to establish an Eighth Amendment deliberate indifference claim, a
claimant must demonstrate “(i) a serious medical need, and (ii) acts or omissions by prison
officials that indicate deliberate indifference to that need.” See Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003).
Deliberate indifference has been found “where the prison official (1) knows of a
prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary

medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment.” See Rouse, 182 F.3d at 197. The “deliberate
indifference” prong of the Eighth Amendment test requires that the defendant actually know of
and disregard “an excessive risk to inmate health or safety.” See Farmer, 511 U.S. at 837.
Circumstantial evidence may establish subjective knowledge if it shows that the excessive risk
was so obvious that the official must have known about it. See Beers-Capitol v. Whetzel, 256
F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 842). Moreover, “[i]f a prisoner is
under the care of medical experts . . . a non-medical prison official will generally be justified in
believing that the prisoner is in capable hands.” See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004). Accordingly, “absent a reason to believe (or actual knowledge) that prison doctors or
their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will
not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.”
See id.

The second prong of the Eighth Amendment inquiry is whether the plaintiff’s medical
needs were serious. A serious medical need is “one that has been diagnosed by a physician as
requiring treatment or one that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.” See Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987). Not every condition is a serious medical need; instead, the serious
medical need element contemplates a condition of urgency, namely, one that may produce death,
degeneration, or extreme pain. See id. Moreover, because only egregious acts or omissions
violate this standard, mere medical malpractice cannot result in an Eighth Amendment violation.
See White v. Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990); see also Estelle v. Gamble, 429
U.S. 97, 106 (1976) (noting that “medical malpractice does not become a constitutional violation

merely because the victim is a prisoner.”).
Additionally, prison medical authorities are given considerable latitude in the diagnosis
and treatment of inmate patients, see Young v. Kazmerski, 266 F. App’x 191, 194 (3d Cir.
2008), and a doctor’s disagreement with the professional judgment of another doctor is not
actionable under the Eighth Amendment. See White, 897 F.2d at 108-10. Furthermore, it is well
settled that an inmate’s dissatisfaction with a course of medical treatment, standing alone, does
not give rise to a viable Eighth Amendment claim. See Taylor v. Norris, 36 F. App’x 228, 229
(8th Cir. 2002); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-25 (7th Cir. 1996); Sherrer v.
Stephens, 50 F.3d 496, 497 (8th Cir.1994); Brown v. Borough of Chambersburg, 903 F.2d 274,
278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will
not violate a prisoner’s constitutional rights.”); see also Pearson v. Prison Health Servs., 850
F.3d 528, 535 (3d Cir. 2017) (“[W]hen medical care is provided, we presume that the treatment
of a prisoner is proper absent evidence that it violates professional standards of care.”).

Plaintiff suggests that Defendant Edinger failed to provide follow-up care after his
lumbar laminectomy and failed to provide adequate pain medication. (Doc. No. 1.) He suggests
further that Defendant Edinger delayed his receipt of medical care by lifting his medical hold,
which caused Plaintiff to be transferred to USP McCreary. (Id.) The record before the Court,
however, demonstrates that Defendant Edinger was not deliberately indifferent to Plaintiff’s
serious medical needs. The record establishes after Plaintiff returned to USP Lewisburg
following his surgery on March 8, 2017, Defendant Edinger evaluated him, prescribed pain
medication, noted his follow-up appointment with the neurosurgeon, and scheduled him for
wound care. (Doc. No. 91 ¶ 25.) Defendant Edinger provided wound care and staple removal,
and also prescribed additional pain medication. (Id. ¶¶ 27, 29-30.) Moreover, Plaintiff was seen

by the neurosurgeon on April 17, 2017, who noted that Plaintiff was “doing well post-op” and
should “keep using back brace.” (Id. ¶ 34.) Following a consultation with the neurosurgeon two
(2) days later, Defendant Edinger lifted the medical hold. (Id. ¶ 35.) The record reflects that
Plaintiff received medical care during his incarceration at USP McCreary. (Id. ¶¶ 38-41.)
Contrary to Plaintiff’s allegations, there is no evidence before the Court that Defendant Edinger’s
actions caused a delay or withholding of Plaintiff’s medical care after his transfer.
The record further establishes that Defendant Edinger provided care to Plaintiff upon his
return to USP Lewisburg in August of 2018. (Id. ¶ 45-52.) Plaintiff continued to complain
about back pain, so Defendant Edinger sent him for an EMG and also prescribed pain
medication, but Plaintiff was found to be diverting that medication to another inmate. (Id. ¶¶ 49,
52.) Defendant Edinger advised Plaintiff that the EMG revealed a mild distal sural nerve injury,
and that his surgery had been performed to relieve neurological impingement and was not
intended to completely erase his pain. (Id. ¶¶ 50-52.)

In response, Plaintiff makes conclusory statements that Defendant Edinger forced him to
sign a medical refusal form so that he could be transferred, knew that he would not have a July
2017 follow-up appointment and that his X-rays would not be performed, and that he had the
opportunity to prescribe other pain medications. (Doc. No. 99 at 3-5.) Plaintiff, however, has
provided no supporting evidence for his allegations. Upon review of the record, the Court agrees
with Defendants that Plaintiff’s Eighth Amendment claims against Defendant Edinger amount to
no more than disagreement with his professional judgment, which is insufficient to maintain an
Eighth Amendment claim. See Pearson, 850 F.3d at 535; Taylor, 36 F. App’x at 229.
Plaintiff also suggests that Defendants violated his Eighth Amendment rights by failing to
evaluate him for medical shoes “and/or ensure that [he] had approved medical shoes.” (Doc. No.

1 at 3.) Defendants assert that they are entitled to qualified immunity because the undisputed
medical evidence does not demonstrate that Plaintiff had a serious medical need for medical
shoes. (Doc. No. 93 at 33-34.) Plaintiff, however, has presented medical records indicating that
on May 9, 2017, during his incarceration at USP McCreary, a medical provider noted that
Plaintiff had “significant left foot neuropathy.” (Doc. No. 112 at 7.) That same provider
indicated that Plaintiff was approved for medical shoes. (Id. at 11.)
Although the record suggests that Plaintiff had a serious medical need, the Court
concludes that Plaintiff has not presented evidence suggesting that Defendants were deliberately
indifferent to that need. On November 2, 2018, Plaintiff asked Defendant Ayers about his “soft
shoe pass,” and she noted that Plaintiff “currently does not meet criteria for medical shoes at this
time. He does not have severe neuropathy of feet or foot deformity.” (Doc. No. 92-2 at 310.)
On March 18, 2019, Defendant Edinger noted that although Plaintiff had a “history of pes
planus,” he “was not prescribed an orthotic for this condition. He was not prescribed medical

shoes. Rather, he was given permission to utilize sneakers for comfort.” (Id. at 294.) Defendant
Edinger indicated that Plaintiff did “not have a current, symptomatic foot condition” and that his
chronic low back pain and radiculopathy would not be “ameliorated by sneakers.” (Id.)
Upon review of the record, the Court agrees with Defendants that Plaintiff’s claim
regarding medical shoes amounts to no more than disagreement with their professional
judgment, which is insufficient to maintain an Eighth Amendment claim. See Pearson, 850 F.3d
at 535; Taylor, 36 F. App’x at 229. Moreover, the fact that Defendants Ayers and Edinger
disagreed with providers at USP McCreary regarding Plaintiff’s need for medical shoes is not
actionable under the Eighth Amendment. See White, 897 F.2d at 108-10. Although Plaintiff’s
medical records indicate that he was issued medical shoes by another provider on June 17, 2019

(Doc. No. 92-2 at 358), this is insufficient to establish that Defendants were deliberately
indifferent to his medical needs. The Court, therefore, will grant summary judgment to
Defendants as to Plaintiff’s Eighth Amendment claims against Defendants Edinger and Ayers.
IV. PLAINTIFF’S CLAIMS AGAINST JOHN DOES 1-10
Under 28 U.S.C. § 1915A, federal district courts must “review . . . a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” See 28 U.S.C. § 1915A(a). If a complaint fails to state a claim upon
which relief may be granted, the Court must dismiss the complaint. See id. § 1915A(b)(1).
District courts have a similar screening obligation with respect to actions filed by prisoners
proceeding in forma pauperis and prisoners challenging prison conditions. See id.
§ 1915(e)(2)(B)(ii) (“[T]he [C]ourt shall dismiss the case at any time if the [C]ourt determines
that . . . the action or appeal . . . fails to state a claim on which relief may be granted . . . .”); 42
U.S.C. § 1997e(c)(1) (“The [C]ourt shall on its own motion or on the motion of a party dismiss

any action brought with respect to prison conditions under section 1983 of this title . . . by a
prisoner confined in any jail, prison, or other correctional facility if the [C]ourt is satisfied that
the action . . . fails to state a claim upon which relief can be granted.”).
In dismissing claims under §§ 1915(e), 1915A, and 1997e, district courts apply the
standard governing motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. See, e.g., Smithson v. Koons, No. 15-01757, 2017 WL 3016165, at *3 (M.D.
Pa. June 26, 2017) (“The legal standard for dismissing a complaint for failure to state a claim
under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c)(1) is the same as that for dismissing a
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.”); Mitchell v.
Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010) (explaining that when dismissing a complaint

pursuant to § 1915A, “a court employs the motion to dismiss standard set forth under Federal
Rule of Civil Procedure 12(b)(6)”). To avoid dismissal under Rule 12(b)(6), a civil complaint
must set out “sufficient factual matter” to show that its claims are facially plausible. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009). The plausibility standard requires more than a mere possibility that the defendant is
liable for the alleged misconduct. “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged – but it has not
‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P.
8(a)(2)). When evaluating the plausibility of a complaint, the Court accepts as true all factual
allegations and all reasonable inferences that can be drawn from those allegations, viewed in the
light most favorable to the plaintiff. See id. at 679; In re Ins. Brokerage Antitrust Litig., 618
F.3d 300, 314 (3d Cir. 2010). However, the Court must not accept legal conclusions as true, and
“a formulaic recitation of the elements of a cause of action” will not survive a motion to dismiss.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Based on this standard, the United States Court of Appeals for the Third Circuit has
identified the following steps that a district court must take when reviewing a Rule 12(b)(6)
motion: (1) identify the elements that a plaintiff must plead to state a claim; (2) identify any
conclusory allegations contained in the complaint that are “not entitled” to the assumption of
truth; and (3) determine whether any “well-pleaded factual allegations” contained in the
complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp.,
629 F.3d 121, 130 (3d Cir. 2010). In addition, in the specific context of pro se prisoner
litigation, a district court must be mindful that a document filed pro se is “to be liberally
construed.” See Estelle 429 U.S. at 106. A pro se complaint, “however inartfully pleaded,” must

be held to “less stringent standards than formal pleadings drafted by lawyers.” See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted) (quoting Estelle, 429 U.S. at
106).
In his complaint, Plaintiff notes that Defendants John Does 1-10 “are adult individuals at
all times relevant to this action, they were employed by, or agents of[,] the Federal Bureau of
Prisons.” (Doc. No. 1 at 2-3.) Plaintiff has not identified these John Does, and he provides no
further facts suggesting how they violated his constitutional rights or demonstrated negligence.
For that reason alone, Plaintiff’s claims against John Does 1-10 will be dismissed. See Robinson
v. Wheary, No. 1:16-cv-2222, 2017 WL 2152365, at *2-3 (M.D. Pa. May 17, 2017) (concluding
that dismissal of the inmate-plaintiff’s complaint was appropriate because “while the caption of
the complaint name[d] numerous individual defendants, it contain[ed] no well-pleaded factual
averments relating to these specific defendants in the body of the complaint”). Moreover, for the
reasons set forth above, Plaintiff cannot maintain his Eighth Amendment and negligence claims.

Accordingly, the Court will not permit Plaintiff to amend his complaint with respect to his claims
against John Does 1-10.
V. CONCLUSION
For the foregoing reasons, the Court will: (1) grant Defendants’ motion for summary
judgment (Doc. No. 74); (2) dismiss Plaintiff’s motion for summary judgment (Doc. No. 95) for
Plaintiff’s failure to comply with Local Rule 56.1; (3) deny Plaintiff’s motion for limited
discovery (Doc. No. 97); (4) deem Plaintiff’s motion for discovery (Doc. No. 101) withdrawn for
failure to file a brief in support thereof as required by Local Rule 7.5; and (5) grant Plaintiff’s
motions to supplement (Doc. Nos. 107, 120). The Court will also dismiss Plaintiff’s claims
against John Does 1-10 pursuant to 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B)(ii). An

appropriate Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410174. Public record. Not legal advice.