Petition for Writ of Certiorari — Webb v. Rivera (No. 08-809)
Supreme Court brief2008
Ask Donna
What actually matters in this document.
Text
Supreme
ae No. | | ) on , ETc et US.
08-899 TC 28 2008
In The
Supreme Court of the Ghuted Statesx
WILLIAM EUGENE WEBB,
Petitioner,
MATTHEW B. HAMIDULLAH, WARDEN,
Z.R. VENDEL, M.D., MEDICAL DIRECTOR,
STEVE LABIER, UNIT MANAGER,
CHARLES GRUBBS, UNIT MANAGER,
UNITED STATES OF AMERICA,
Respondents.
On Petition for Writ of Certiorari
To The United States Court of Appeals
for the Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
E. Duncan Getchell, Jr.*
K. Lorraine Lord
McGUIREWOODS LLP
One James Center
901 E. Cary Street S.
Richmond, Virginia 23219 DURSLERIK
Telephone: (804) 775-4319
Facsimile: (804) 698-2061
*Counsel of Record for Petitioner
eee ieeenseiatiaeancatpaaieadindaenionmatetem
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
QUESTIONS PRESENTED
Whether the United States Court of Appeals
for the Fourth Circuit erred and opened a circuit
split in awarding summary judgment in favor of
Respondents when Petitioner presented a prima
facie case that Respondents were deliberately
indifferent to his serious medical condition in
violation of his rights under the Eighth Amendment
to the Constitution of the United States?
Whether the United States Court of Appeals
for the Fourth Circuit erred and opened a circuit
split in concluding that on the facts presented here —
Petitioner suffered a life threatening malady,
numerous physicians recommended surgical
intervention, and prison officials refused to order the
surgery for nearly five years — that the
reasonableness of the prison officials’ actions could
be determined as a matter of law?
PARTIES TO THE PROCEEDING
Petitioner
William Eugene Webb
Respondents
Matthew B. Hamidullah, Warden; Z. R. Vendel,
M.D., Medical Director; Steve LaBier, Unit Manager;
Charles Grubbs, Unit Director; United States of
America
i]
TABLE OF CONTENTS
QUESTIONS PREY dd cos ccccssserecessersssnvscsessccnsanes: l
PARTIES TO THE PROCEEDING ......................... il
TAT CO CAT BOE oes sscinensivensseestsanivoveserivoinons ill
ERs CP BT Ce BNO 0 6 i508 sinsticcrssocnionienmnavines v1
OPINIONS AND ORDERS BELOW... ]
Fe es EY is bi csesnsncemsuatanancedne pent veeeaae 2
CONSTITUTIONAL AND STATUTORY
Pe WIE ood cash gt ee tovapcaennne ieeerecoaeamaanee 2
STATEMENT OF THE CASK ... ............ccccceeeceeeeneeee 3
Eb. PPrecenrnd FRRGGOO Gy aiaiocnc ccc sdeccscesccvcaecsmrsces 4
Bhs) PB ccteiserccoactenicea eed eee 8
REASONS FOR GRANTING THE WRIT ............. 12
I. Webb Has Established Deliberate
Ray eR ERPS eo ERTL IR TER 3
II. The Panel’s Decision Conflicts With
an Unpublished Decision of the Fourth
Circuit and a Published Decision of
po | a Re NER ND HVE RET Rey 14
CAPRICE FRR EE vss ve rovinnscavinenwemsavnrens innxoeaapaau teen 15
1V
APPENDIX
The Unpublished Per Curium Opinion of the United
States Court of Appeals for the Fourth Circuit
Affirming the Decision of the United States District
Court for the District of South Carolina, Webb v.
Hamidullah, et al., No. 06-7381
SPR IIe SR avs diccns cscs pnccausvaialicnctadeseasibersasensusen A-1
The Judgment Order of the United States Court
of Appeals for the Fourth Circuit, Webd v.
Hamidullah, et al., No. 06-7381 (June 6, 2008)
stiaastabdsdeleecutdnd rinvdodatdiasdudieasnmrcmmmetaaetete A-29
The Memorandum Opinion of the United States
District Court for the District of South Carolina
Adopting the Report and Recommendation of the
Magistrate Judge, Webb v. Hamidullah, et al., Civil
Action No. 0:05-2546-HFF-BM (July 24, 2006)
The Order of the Clerk of Court of the United States
District Court for the District of South Carolina
Entering Summary Judgment for the Respondents,
Webb v. Hamidullah, et al., Civil Action No. 0:05-
2546-HFF-BM (July 25, 2006) .........ccccceceeee. A-35
The Report and Recommendation of Bristow
Marchant, United States Magistrate Judge, United
States District Court, District of South Carolina
(June 23, 2006)....... Se meet sr aisiaeeaaent ane teas A-37
The Order of the United States Court of Appeals for
the Fourth Circuit Denying Petitioner’s Petition for
Rehearing and Rehearing En Banc, Webb v.
Hamidullah, et al., No. 06-7381
(Am@uet 6, ZOUB)..........0<00.c000s- ‘aideucnreee eee
vil
TABLE OF AUTHORITIES
FEDERAL CASES
Clinkscales v. Pamlico Corr. Facility, 238 F.3d 411,
2000 WL 1726592 (4th Cir. 2000)........................2- 3,8, 14
Estelle v. Gamble, 429 U.S. 97 (1976)..................05- 12, 13, 14
Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978) ................ j2
Monmouth County Corr. Inst. Inmates v. Lanzaro,
Bee ee I Ce alc BIE ovis ctvevevcvsssvecncesiecerreeven 3,8, 14
Webb v. Hamidullah, 281 F. App’x 159, 2008 WL
2337608 (4th Cir., June 6, 2008) .........000000... SY S
Webb vy. Hamidullah, 2006 WL 2076942
Se a SN I cdg acscvicnacanesuaeviqiveicasaiantuabe 4
CONSTITUTIONAL PROVISIONS
ees Ae MMII, IN cscs secusenbasadsheanechinienccivdoteest passim
FEDERAL STATUTES
ri GSES ae OP SS } ene ES ScertN ceeds dancugh pasa oe 2
Ne UE IN resncckencsinkinrsineiicoustessia riwnnunasatesnab apenas p
Petitioner William Eugene Webb (“Webb”)
respectfully requests that this Court issue a writ of
certiorari to review the judgment entered in this
case by the United States Court of Appeals for the
Fourth Circuit.
OPINIONS AND ORDERS
BELOW
The unpublished per curium opinion of the
United States Court of Appeals for the Fourth
Circuit affirming the decision of the United States
District Court for the District of South Carolina,
Webb v. Hamidullah, et al., No. 06-7381, 281 F.
App’x 159, 2008 WL 2337608 (June 6, 2008), which
is contained in the Appendix at A-1.
The Judgment Order of the United States
Court of Appeals for the Fourth Circuit, Webb v.
Hamidullah, et al., No. 06-7381 (June 6, 2008),
which is contained in the Appendix at A-29.
The memorandum opinion of the United
States District Court for the District of South
Carolina adopting the report and recommendation of
the magistrate judge, Webb v. Hamidullah, et al.,
Civil Action No. 0:05-2546-HFF-BM (July 24, 2006),
which is contained in the Appendix at A-30.
The Order of the Clerk of Court of the United
States District Court for the District of South
Carolina entering summary judgment for the
Respondents, Webb v. Hamidullah, et al., Civil
Action No. 0:05-2546-HFF-BM (July 25, 2006), which
is contained in the Appendix at A-35.
i)
The Report and Recommendation of Bristow
Marchant, United States Magistrate Judge, United
States District Court, District of South Carolina,
Webb v. Hamidullah, et al., Civil Action No. 0:05-
2546-HFF-BM (June 23, 2006), which is contained in
the Appendix at A-37.
The order of the United States Court of
Appeals for the Fourth Circuit denying Petitioner’s
Petition for Rehearing and Rehearing En Banc,
Webb v. Hamidullah, et al., No. 06-7381 (August 8,
2008), which is contained in the Appendix at A-70.
JURISDICTION
This Court has jurisdiction to review the order
of the court of appeals on a writ of certiorari
pursuant to 28 U.S.C. § 1254 (1). The judgment of
the United States Court of Appeals for the Fourth
Circuit was entered on June 6, 2008. Webb’s timely
Petition for Rehearing and Rehearing En Banc was
denied on August 8, 2008. This petition for writ of
certiorari is timely filed within 90 days from that
date. Sup. Ct. R. 13.3. Jurisdiction in the trial court
was based on 28 U.S.C. § 1331, as this is an action
arising under the Eighth Amendment to the United
States Constitution.
CONSTITUTIONAL AND STATUTORY
PROVISIONS
The Eighth Amendment to the United States
Constitution provides: “Excessive bai’ shall not be
required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”
STATEMENT OF THE CASE
In a decision issued on June 6, 2008, a panel
of the United States Court of Appeals for the Fourth
Circuit held that as a matter of law prison medical
staff was not “deliberately indifferent” to Webb's
serious medical need to have surgery “absent some
resultant harm or worsened condition” despite that
Webb waited nearly five years to have a ventral
hernia surgically reduced. Webb v. Hamidullah, 281
}*, App’x 159, 2008 WL 2337608 (4th Cir., June 6,
2008): (Appendix at A-1 through 29) (quotation at A-
24; see also A-19 through A-20).
In a dissent, Judge Gregory stated that
irreparable harm need not be suffered in a claim for
deliberate indifference and concluded that Webb
stated an Eighth Amendment violation against
prison officials who denied his treatment. (Appendix
at A-24 through A-28). Webb timely moved for a
panel rehearing or rehearing en banc, which the
Fourth Circuit denied on August 8, 2008. (Appendix
at A-70).
The panel decision, as recognized by the
dissent, conflicts both with an unpublished decision
of the Fourth Circuit Court of Appeals, Clinkscales v.
Pamlico Corr. Facility, 238 F.3d 411, 2000 WL
1726592 (4th Cir. 2000), and with the published
opinion of the third circuit cited in the Clinkscales
case, Monmouth County Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987). Asa
consequence, review of the Fourth Circuit’s decision
is compelled because a United States court of
appeals has entered a decision in conflict with the \
decision of another United States court of appeals on
the same important matter. Sup. Ct. R. 10(a).
1. Procedural History
The Fourth Circuit Court of Appeals reviewed
an order of the United States District Court for the
District of South Carolina awarding summary
judgment to several officials of the Federal
Correctional Institute in Estill, South Carolina
(“FCI-Estill”) in a civil action filed by Webb. Webb v.
Hamidullah, 2006 WL 2076942 (D.S.C., July 24,
2006); (Appendix at A-30 through A-36; see also A-
37through A-69). Proceeding pro se, Webb sought
compensatory and punitive damages and injunctive
relief against these officials for violation of his rights
guaranteed him by the Eighth Amendment to the
Constitution of the United States because he had not
been provided medical care known to be necessary
while he was incarcerated in federal prison.
On September 12, 2005, Webb filed a pro se
Complaint in the District of South Carolina against
Matthew B. Hamidullah, Warden; Z. R. Vendel,
M.D., Medical Director; Steve LaBier, Unit Manager;
and Charles Grubbs, Unit Director. (Appendix at A-
4). Webb filed an amended pro se Complaint on
October 6, 2005. Specifically, Webb pled inter alia
that Respondents repeatedly denied him surgeries
medically necessary to repair an abdominal hernia
that, according to consulting physicians, required
surgical intervention. Ud.) Webb attached to his
Amended Complaint copies of his medical records
documenting his chronic pain and injuries. On
November 23, 2005, Webb moved the district court to
enter a preliminary injunction or temporary
restraining order, attaching additional
documentation in support of his allegations.
Webb’s complaint was referred to a magistrate
judge for pretrial proceedings and, on February 3,
2006, Respondents sought dismissal or,
alternatively, summary judgment. (Appendix at A-
4). Respondents also filed affidavits to “demonstrate
they have made sure Mr. Webb has received all
necessary medical treatment.”
In opposition to Respondents’ Motion to
Dismiss or for Summary Judgment, Webb filed
additional evidence, including a fifteen-page
affidavit, disputing material contentions set out in
the Respondents’ affidavits. Respondents did not
reply, leaving Webb’s opposition unrebutted.
On June 23, 2006, the magistrate judge issued
a Report and Recommendation. (Appendix at A-37
through A-69). The magistrate judge concluded that
Webb’s deliberate indifference claim failed for lack of
evidentiary support. (/d.)
In short, despite that this action had not
progressed beyond the pleading stage, discovery had
not commenced, Webb had presented genuine
disputed issues of material fact on the substance of
his claims, and the governing standard of review
dictated a denial, the magistrate judge recommended
that the district court grant Respondeats’ motion for
summary judgment against Webb and dismiss the
case.
6
Webb objected and, despite his pro se status,
advanced the argument to the district court that
summary judgment was improper, given that no
discovery had occurred and that it had to review all
facts, and reasonable inferences drawn therefrom, in
a light most favorable to him. Webb also correctly
contended that the district court could not resolve
factual disputes at this stage, but merely could
decide whether he had presented any triable claims
or claims that should proceed to discovery.
On July 24, 2006, the district court entered a
final order adopting the magistrate’s Report and
granting summary judgment to the Respondents on
Webb’s constitutional claims. (Appendix at A-30
through A-36). Webb timely noted an appeal.
(Appendix at A-5).
After considering oral argument and briefs of
the parties, a panel of the Fourth Circuit Couit of
Appeals affirmed the ruling of the district court in
an unpublished per curium decision. Webb v.
Hamidullah, 281 F. App’x 159, 2008 WL 2337608
(4th Cir., June 6, 2008) (Appendix at A-1 through A-
29). While it concluded that “certain issues
surrounding Webb’s hernia-related Eighth
Amendment claim are worthy of a more thorough
analysis,” the panel summarily rejected the majority
of Webb’s appellate contentions. (/d. at A-5).
In its de novo review of the district court
ruling, the panel found that (1) “Dr. Vendel’s
classification of Webb’s potential surgery as elective
— rather than as an emergency — does not implicate
Webb’s Eighth Amendment rights”; (2) Webb tailed
to establish that the “delay” in his surgery caused
him substantial harm; and (3) that the prison
medical director overseeing Webb’s care, Dr. Vendel,
“has not been shown to subjectively know that Webb
did not have a hernia belt,” which Dr. Vendel himself
had directed be ordered for Webb. (Appendix at A-17
through A-23).
Judge Gregory dissented from the panel’s
findings, concluding that Webb presented evidence,
when viewed in a light most favorable to him,
sufficient to create a triable issue of material fact as
to whether the Respondents’ delay in providing
medical treatment to Webb constitutes deliberate
indifference. Judge Gregory stated:
Webb has waited over four years to
have an “extremely enlarged incisional
ventral hernia” removed — a surgery
prison medical staff determined could
“electively” be done within six months.
It is undisputed that the surgery is
necessary, and the only accepted
medical procedure for remedying
Webb's serious condition. However, as
Webb lingers, the majority . . . holds
that, as a matter of law, the prison
medical] staff has not been “deliberately
indifferent” to his serious medical need
to have surgery “absent some resultant
harm or a worsened condition.” (Maj.
Op. 17.) The Eighth Amendment does
not require a prisoner to be on the
precipice of death to receive the
necessary treatments that the prison
medical staff itself prescribed.
(Appendix at A-24).
In his dissent, Judge Gregory pointed out that
the Fourth Circuit has held, albeit in an unpublished
opinion, that where prison officials are aware of a
serious medical need and delay treatment, the
plaintiffs’ allegations are sufficient to establish
deliberate indifference. Jd., citing Clinkscales v.
Pamlico Corr. Facility, 238 F.3d 411, 2000 WL
1726592 (4th Cir. 2000) (citing Monmouth County
Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47
(3d Cir. 1987). (Appendix at A-26 through A-27).
Because the panel’s decision conflicts with
another Fourth Circuit decision (unpublished) and a
published Third Circuit decision cited therein, Webb
respectfully requests his petition for a writ of
certiorari be granted.
II. Facts
Webb is a fifty-year-old African-American
male serving his sentence at the Hazelton federal
penitentiary in West Virginia, where he was
involuntarily transferred during this litigation.
(Appendix at A-5 through A-6). This action relates
to claims of constitutional and statutory violations
that occurred while Webb was housed at a federal
institution in Estill, South Carolina.
In May 2001, Webb had emergency surgery
for a ventral hernia after suffering hernia
complications and kidney failure. (Appendix at A-
6). In September 2003, a surgical consultant
observed that scar tissue from Webb’s 2001 surgery
was infected and recommended surgical repair. (/d.)
In December 2003, a second surgical
consultation revealed that Webb had “an extremely
enlarged ventral incisional hernia” and required
“surgical intervention” to excise scar tissue that
“inhibited and hindered potential success for repair.”
(Id.)
On January 2, 2004, Webb was scheduled for
surgery at an off-site hospital. However, he refused
to be transported to the hospital by the officer
assigned to him. (Appendix at A-6 through A-7).
Because Webb had previously filed grievances
against the officer and because he knew that the
officer would be armed, Webb stated that he feared
being incapacitated in the presence of this guard.
Rather than reschedule Webb’s surgery,
prison officials asked Webb to sign a Medical
Treatment Refusal form providing that Webb had
rejected medicai treatment. The form, which became
part of Webb’s medical file, advised that failure to
undergo surgery could result in the worsening or
strangulation of his hernia, a bowel obstruction, or
death. (Appendix at A-6 through A-7). Webb would
not sign the form because he was not refusing
medical treatment, but, rather, wanted a different
escort to and from surgery.
On June 16, 2004, the Federal Bureau of
Prisons transferred Webb to FCI-Estill. (Appendix
10
at A-7). During a routine physical examination
shortly after his arrival, Webb notified prison
officials about his various medical conditions,
including his ventral hernia. ([d.) Webb requested
follow-up medical care and treatment for his hernia,
including a new abdominal! binder (or hernia belt) to
help control it.
In July 2004, a consulting general surgeon
recommended that Webb have laparoscopic surgery
to correct his ventral hernia. (Appendix at A-8).
Vendel did not schedule surgery, but rather, noted in
Webb’s medical charts that Webb demanded hernia
surgery; that he had refused surgery in January
2004; and that the consulting surgeon recommended
hernia repair but did not indicate that it was
“medically necessary.” (Appendix at A-9).
In September 2004, Webb complained about
abdominal pain that was “extreme at times” and
later noted that he was su‘fering from “severe”
abdominal pain due to his work assignment.
(Appendix at A-9, n.9). On September 29, 2004,
Webb was examined by another consulting surgeon
who observed a “new bulge on [Webb’s} abdomen”
that was “not painful” but had increased in size over
the prior two years. (Appendix at A-10). The
surgeon recommended a laparoscopic repair of the
hernia with “at least 3 to 4 days in the hospital.”
(Id.)
In October, 2004, Webb again complained to
Vendel of abdominal pain. (Appendix at A-10).
Vendel responded that Webb would be scheduled
electively at some unspecified future time for
1]
surgery. He noted in Webb’s file that “the surgery is
not urgent, [and) can be done electively within a
time frame of 6 [months].” (/d.)
On October 18, 2004, Webb requested a hernia
belt, stating that he was suffering “serious pain and
discomfort, due to the worn and old Binder I am
currently forced to wear.” (Appendix at A-10
through A-11). His complaint led only to Vendel
charting that elective surgery would be scheduled.
(Id.)
In May 2005, Webb filed an informal prison
complaint asserting hernia enlargement and
requesting to be relieved from his work assignment
until surgery was performed. (Appendix at A-11).
Webb’s request was denied.
In June 2005, Webb requested surgery “with
imminence.” (Appendix at A-11 through A-12).
On August 3, 2005, Vendel referred Webb,
after complaints of extreme pain, to an orthopedic
surgeon for a second opinion. (Appendix at A-26).
On March 10, 2006, another orthopedic surgeon
confirmed that Webb’s hernia had increased and
surgery was needed. (Jd.)
It was not until April 27, 2006, nearly three
years after surgery was first recommended and five
months after Webb filed suit that Vendel
recommended surgery be scheduled. (Jd.)
In April 2006, Vendel recommended the
proposed surgery be scheduled, and recently, nearly
12
_
five years after surgery first was recommended in
September 2003, Webb’s hernia was surgically
reduced.
REASONS FOR GRANTING THE WRIT
Webb Has Established Deliberate
indifference.
The Fourth Circuit determined as a matter of
law that the prison medical staff at FCI-Estill was
not “deliberately indifferent” to Webb’s serious
medical need to have surgery “absent some resultant
harm or a worsened condition.” However, as Judge
Gregory pointed out in his dissent, “[t]he Fighth
Amendment does not require a prisoner to be on the
precipice of death to receive the necessary
treatments that the prison medical staff itself
prescribed.” (Appendix at A- 24). (Emphasis added.)
According to this Court, to make out a claim
the prisoner must show that the prison officials
acted with deliberate indifference to his serious
medical needs, which requires proof of two elements:
(1) that the deprivation of medical care was
sufficiently serious (objective component); and (2)
that the prison officials were deliberately indifferent
to the serious medical needs (subjective component).
Estelle v. Gamble, 429 U.S. 97, 104 (1976). As Webb
argued to the Fourth Circuit, the fact that some sort
of medical treatment is provided does not insulate
defendants at the pleading stage from claims of
deliberate indifference. Loe v. Armistead, 582 F.2d
1291 (4th Cir. 1978).
It is undisputed that Webb’s hernia condition
13
is a serious medical need. (Appendix at A-16) (“it is
undisputed that Webb suffers from a ventral hernia
and that, in the proper circumstances, such a
condition might be recognized as serious”) (Maj. Op.);
(Appendix at A-25) (“[iJt is undisputed that Webb’s
hernia condition is a serious medical] need”) (in
dissent). The only question remaining is whether
there is material evidence in dispute that prison
officials were deliberately indifferent to Webb’s
medical needs. See Estelle, 429 U.S. at 104.
Here, a consulting general surgeon
recommended that Webb receive “laparoscopic
ventral hernia surgery” in September 2003.
(Appendix at A-6). A year later, based on the
allegedly reducible nature of the hernia, Vendel
deemed Webb’s surgery “elective,” z.e., “not urgent,”
and posited that surgery could be performed within
six months of September 24, 2004. However, only
five days after Vendel’s determination, a second
consulting physician observed “a new bulge on
[Webb’s] abdomen” that had increased in size and
recommended laparoscopic repair. (Appendix at A-
25 through A-26).
As the panel majority correctly noted, Webb
complained thirteen times of chronic abdominal
pain, and two different specialists recommended
surgery during the course of two years after the
initial recommendation. Yet, surgery still was
delayed and its scheduling was not even discussed
during the six months following Vendel’s assessment
that surgery could wait as long as six months. Years
later, the surgery still had not occurred. As Judge
Gregory concluded, “jijt is clear that Webb did not
14
receive the treatment that was prescribed year after
year by several surgeons despite his chronic pain
and medical infirmities.” (Appendix at A-26).
IT. The Panel’s Decision Conflicts With an
Unpublished Decision of The Fourth
Circuit and a Published Decision of
Another Circuit.
The Fourth Circuit Court of Appeals has held,
in an unpublished opinion, that where prison
officials are aware of a serious medical need and
delay treatment, the plaintiffs allegations are
sufficient to establish a submissible claim of
deliberate indifference. Clinkscales v. Pamlico Corr.
Facility, 238 F.3d 411, 2000 WL 1726592 (4th Cir.
2000) (citing Monmouth County Corr. Inst. Inmates
v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987)
(prison officials may not interminably delay medical
treatment or deny treatment based on arbitrary and
burdensome procedures).
Here, Webb has presented evidence, when
viewed in a light most favorable to him, more
compelling than that in Clinkscales and Lanzaro,
sufficient to create a triable issue of material fact
whether the delay of needed medical treatment for
nearly five years constitutes deliberate indifference.
Deliberate indifference does not turn on whether the
inmate’s condition worsened during the delay; it is
the delay, itself, that is deliberately indifferent. See
Estelle, 429 U.S. at 104-05.
Because Webb alleged facts sufficient to
support his claim under the law of the fourth and the
third circuits, the panel decision to affirm the
15
district court’s entry of summary judgment for the
Respondents should be reviewed.
CONCLUSION
This petition for a writ of certiorari should be
granted.
Respectfully submitted,
E. Duncan Getchell, Jr.*
K. Lorraine Lord
McGuireWoods LLP
One James Center
901 East Cary Street
Richmond, Virginia 23219
Telephone: (804) 775-4319
Facsimile: (804) 698-2061
*Counsel of Record for Petitioner
No.
In The
Supreme Court of the Gnited States
WILLIAM EUGENE WEBB,
Petitioner,
¥.
MATTHEW B. HAMIDULLAH, WARDEN,
Z.R. VENDEL, M.D., MEDICAL DIRECTOR,
STEVE LABIER, UNIT MANAGER,
CHARLES GRUBBS, UNIT MANAGER,
UNITED STATES OF AMERICA,
Respondents.
On Petition for Writ of Certiorari
To The United States Court of Appeals
for the Fourth Circuit
APPENDIX
E.. Duncan Getchell, Jr.*
K. Lorraine Lord
McGUIREWOODS LLP
One James Center
901 E. Cary Street
Richmond, Virginia 23219
Telephone: (804) 775-4319
Facsimile: (804) 698-2061
*Counsel of Record for Petitioner
LANTAGNE LEGAL PRINTING
80) East Main Street Suite 100 Richmond, Virginia 23219 (800) 847 0477
A-1
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7381
WILLIAM EUGENE WEBB,
Plaintiff - Appellant,
v.
MATTHEW B. HAMIDULLAH, Warden; Z. R.
VENDEL, M.D., Medical Director; STEVE LABIER,
Unit Manager; CHARLES GRUBBS, Unit Manager;
UNITED STATES OF AMERICA,
Defendants - Appellees.
Appeal from the United States District Court for the
District of South Carolina, at Rock Hill. Henry F.
Floyd, District Judge. (0:05-cv-02546-HFF)
Argued: February 1, 2008 Decided: June 6, 2008
Before MOTZ, KING, and GREGORY, Circuit
Judges.
A-2
Affirmed by unpublished per curiam opinion. Judge
Gregory wrote a dissenting opinion.
ARGUED: William Harrison Baxter, II,
MCGUIREWOODS, L.L.P., Richmond, Virginia, for
Appellant. Barbara Murcier Bowens, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellees. ON BRIEF:
Reginald I. Lloyd, United States Attorney, Columbia,
South Carolina, for Appellees.
Unpublished opinions are not binding precedent in
this circuit.
A-3
PER CURIAM:
William Eugene Webb, a federal inmate,
appeals from the district court’s order awarding
summary judgment to several officials of the Federal
Correctional Institute in Estill, South Carolina
(“FCI-Estill”), on Webb’s Eighth Amendment claims
of cruel and unusual punishment. See Webb v.
Hamidullah, No. 0:05-cv-02546 (D.S.C. July 24,
2006) (the “Order”).! Webb maintains that the
award of summary judgment was made erroneously,
because he had demonstrated that the Defendants
were deliberately indifferent to his medical needs,
and that they had retaliated against him.2 As
explained below, we reject Webb’s contentions and
affirm.
A
A.
| The Order is found at J.A. 651-54. (Citations
to “J.A. “ refer to the contents of the Joint Appendix
filed by the parties in this appeal.)
2 Webb’s constitutional claims are pursued
under the authority of Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), against four Defendants (all
FCI-Estill officials), mamely: Matthew B.
Hamidullah, Warden; Z. R. Vendel, M.D., Clinical
Director; Steven LaBier, Unit Manager; and Charles
Grubbs, Counselor. A separate tort claim being
pursued against the United States was dismissed by
the district court without prejudice, and that
dismissal is also challenged on appeal.
A-4
In September 2005, Webb filed a pro se
complaint against the Defendants in the District of
South Carolina, alleging that their deliberate
indifference to his medical needs and acts of
retaliation violated his Eighth Amendment rights.
In an amended pro se complaint filed on October 6,
2005, Webb restated his constitutional claims and
alleged an additional claim under the Federal Tort
Claims Act (the “FTCA claim”). His claims center on
alleged medical] care deficiencies related to (1)a
hernia condition, (2) left forearm problems, and (3) a
foot deformity, as well as retaliatory and medically
inappropriate prison work assignments. He sought
compensatory and punitive damages, as well as
injunctive relief, such as proper medical care.
Webb’s complaint was referred to a magistrate
judge for pretrial proceedings and, on February 3,
2006, the Defendants sought dismissal or,
alternatively, summary judgment. After ordering
the Defendants to submit additional evidence, the
magistrate judge assessed the dispositive motion
and, on June 23, 2006, issued his Report and
Recommendation. See Webb _v. Hamidullah,
No. 0:05-cv-02546 (D.S.C. June 23, 2006) (the
“Report”).2 The Report recommended to the district
court that summary judgment be awarded to the
Defendants on Webb’s constitutional claims, and
that the FTCA claim be dismissed without prejudice.
On July 24, 2006, the district court entered
the Order giving rise to this appeal, first ruling that
Webb had failed to exhaust his administrative
3 The Report is found at J.A. 610-36.
remedies on the FTCA claim as it related to the
conduct of officials at FCI-Estill. The court thus
dismissed the FTCA claim without prejudice.4 The
Order also granted summary judgment to the
Defendants on Webb’s_ constitutional claims,
adopting the Report of the magistrate judge.
Webb timely noted an appeal from the district
court’s rulings, and we possess jurisdiction pursuant
to 28 U.S.C. § 1291. Although Webb initially
proceeded pro se, we subsequently appointed counsel
to represent him on appeal. Having carefully
considered all of Webb’s appellate contentions, we
summarily reject the majority of them. We conclude,
however, that certain issues surrounding Webb’s
hernia-related Eighth Amendment claim are worthy
of a more thorough analysis, and we therefore
dedicate the balance of this opinion to those issues.
Webb, who is fifty years old, is presently
serving a 355-month prison sentence, imposed on
him in March 2001 in the Middle District of North
4 The United States was not designated as a
defendant in the amended complaint, the Report, or
the Order. It was, however, named as a defendant in
the Judgment Order of July 25, 2006. The Judgment
Order correctly named the United States, the only
proper defendant in the FTCA claim. See 28 U.S.C.
§ 2674.
A-6
Carolina. His medical conditions, which include
what is known as a ventral hernia, stem from
several gunshot wounds.® While awaiting his initial
designation to a federal prison facility, Webb was
hospitalized for hernia complications and kidney
failure. He received emergency hernia surgery on
May 10, 2001, and was transferred soon thereafter to
the Springfield, Missouri, prison medical facility.
With the exception of a few weeks in early 2003,
Webb was at Springfield until January 2004.
In September 2003, a surgical consultant at
Springfield observed that scar tissue from Webb’s
2001 hernia surgery was infected, and recommended
surgical repair. A second surgical consultation in
December 2003 revealed that Webb had “an
extremely enlarged ventral incisional hernia,” and
required “surgical intervention” to excise scar tissue
that “inhibited and hindered potential success for
repair.” J.A. 308. Webb was scheduled for such
surgery on January 2, 2004, at an off-site hospital.
On the morning of surgery, however, he refused to be
transported to the hospital, apparently due to
animosity towards the correctional officer who was
to accompany him. Webb also refused to sign a
Medical Treatment Refusal form that alerted him to
the possible consequences of foregoing surgery,
5 In an affidavit of January 10, 2006, Dr.
Vendel defines a hernia as “the protrusion of an
organ or tissue through a weak area in the muscles
or tissue that surround and contain it.” J.A. 314. A
ventral hernia occurs “on the front wall of the
abdomen,” generally resulting from the breakdown
of muscles near an old incision. Id. at 315.
A-7
including “worsening of hernia, strangulation of
hernia, bowel obstruction, death.” Id. at 311. His
prison medical file simply reflects that Webb
“refused surgery.” Id. at 309.
2.
Webb was transferred from Springfield to
FCI-Estill on June 16, 2004. During a routine
physical examination soon thereafter, FCI-Estill
officials learned of Webb’s medical conditions,
including his ventral hernia. Prison records indicate
that Webb did not complain of chronic pain at the
intake screening. He was initially assigned to work
as a yard orderly -- an assignment that required him
to pick up or sweep trash around the facility,
occasionally mow and trim grass, and sweep
sidewalks. Dr. Vendel, the Clinical Director at FCI-
Estill, oversaw the treatment of Webb’s medical
problems.
Webb contends that, less than a week after his
arrival at FCI-Estill, he began requesting follow-up
medical care and treatment for his hernia problem,
including the provision of a new abdominal binder
(or hernia belt) to control it.6 The details of Webb’s
medical condition, as documented in the FCI-Estill
records, are
summarized as follows:
6 In Webb’s affidavit and in the medical
records, the terms “hernia belt” and “abdominal
binder” appear to be used interchangeably.
A-8
« On July 21, 2004, Webb was placed on
convalescent status for one week.’
e On July 30, 2004, a consulting general
surgeon recommended “laparoscopic
ventral hernia ([surgery].” J.A. 356.
According to notations in Webb’s medical
file dated August 2, 2004, Webb was
advised that he “needs surgery of ventral
hernia,” and apparently requested
“convalescence until surgery.” Id. at 43.
Webb was placed on idle status for two
weeks between August 20 and
September 3, 2004.8
e« On September 7, 2004, Webb was
reassigned to work as a unit orderly,
wiping down walls and handrails, with two
restrictions: “no lifting over 10 lbs” and
“no prolonged standing.” J.A. 165.
7 Convalescent status, as defined on FCI-Estill
work classification forms, refers to a “{rjecovery
period for operation, injury, or serious illness,”
during which convalescing inmates enjoy “full
institutional privileges and limited recreational
privileges, subject only to medical limitation.” J.A.
163.
8 Idle status, as defined by FCI-Estill, refers to
a “[tlemporary disability.” J.A. 163. Inmates on idle
status are “restricted to [their] room except for
meals, religious services, [and] sick call,” with no
recreational privileges. Id. at 65.
A-9
- At least twice in September 2004, Webb
complained of extreme abdominal pain.9
On September 24, 2004, Dr. Vendel noted
that Webb demanded hernia surgery; that
he had refused surgery in January 2004;
that his hernia condition was reducible;
that he had a hernia belt; and that “[o]ur
consultant [in July 2004] recommended
hernia repair but did not indicate that it
was medically necessary.” J.A. 330.10
Dr. Vendel sought a= second surgical
9 On September 18, 2004, Webb complained
that he was “experiencing abdominal pain” that was
“extreme at times.” J.A. 59. On September 20, 2004,
Webb added that his extreme pain had continued
“for months.” Id. at 60. On September 27, 2004,
Webb reported that he had injured himself while
working: “My Hernia is causing me severe pain and
my broken arm and dislocated wrist-joint, has
swollen and causes me severe pain.” Id. at 65.
10 “Dr. Vendel has explained that a reducible
hernia exists when the protruding organ, tissue, or
fat “can be pushed back into the abdominal cavity,”
causing the hernia to “flatten and disappear.” J.A.
315. By contrast, a non-reducible hernia cannot be
pushed back in; it “requires surgical repair, because
the protrusion can contail. intestine, which can lose
its blood supply and die if it become[s] tightly
trapped.” Id.
A-10
consultation “about timing the hernia
repair and probability of recurrence.” Id.}!!
On September 29, 2004, Webb was
examined by another consulting surgeon,
who observed a “new bulge on [Webb’s]}
abdomen,” that was “not painful” but had
increased in size over the prior two years.
J.A. 357. The surgeon recommended “a
laparoscopic repair” of the hernia, with “at
least 3 to 4 days in the hospital.” Id. at
358.
On October 1, 2004, Dr. Vendel examined
Webb again, noting complaints’ of
constipation and abdominal pain, but
concluding that he “appeared not [to be] in
acute distress.” J.A. 331.
On October 4, 2004, Dr. Vendel recorded a
treatment plan in Webb’s file: “I have
discussed this case [with] the gleneral]
surgeon. We agreed that the surgery is not
urgent, [and] can be done electively within
a time frame of 6 [months].” J.A. 332.
On October 13, 2004, Webb requested a
new abdominal binder “to replace the
extremely worn abdominal binder, to-
which [sic] I am currently forced to wear
daily.” J.A. 64. Webb complained that his
11 On September 24, 2004, Dr. Vendel noted
that Webb had “refused surgery” in January 2004;
Dr. Vendel also recommended performing
“herniotomy, electively.” J.A. 360.
A-11
old binder was “the only thing slowing the
enlargement of this hernia,” and that “the
hernia is currently causing me serious pain
and discomfort, due to the worn and old
{blinder I am currently forced to wear.” Id.
In responding, Dr. Vendel did not mention
Webb’s request for an abdominal binder,
but confirmed, “[yJou are going to be
scheduled for surgery, electively.” Id.
On December 21, 2004, the medical staff
examining Webb on a flu-related visit
noted that his hernia was reducible, and
that he did not complain of any pain. J.A.
336.
On March 8, 2005, Dr. Vendel noted that
Webb’s “reducible” hernia was causing
“mild pain,” and_ prescribed pain
medication. J.A. 340-41.
On April 28, 2005, Webb’s_ medical
restrictions of “light duty” and “no
prolonged standing” were renewed due to
his hernia condition. J.A. 342.
On May 25, 2005, Webb filed an informal
prison complaint, asserting hernia
enlargement and requesting to be relieved
from his work assignment until elective
hernia surgery was performed. J.A. 91.
Webb’s request was denied.
On June 21, 2005, Webb filed another
informal complaint, requesting that he be
provided with hernia surgery “with
imminence.” J.A. 90.
On June 23, 2005, Webb filed yet another
informal complaint, asserting that his
work assignment aggravated his
abdominal condition, and requesting
“convalescent [i]dle [s]tatus.” J.A. 218.
On August3, 2005, Dr. Vendel _re-
examined Webb. Although Webb
complained of extreme pain, Dr. Vendel
observed no objective signs of such pain —
“no tachycardia, no sweating, no facial
expression other than being angry” -- and
rated Webb’s pain level at 6 on a scale of 0
to 10. J.A. 345. Dr. Vendel noted that the
size of Webb’s hernia was “unchanged,”
and that the bulge was “easily reduced.”
Id. He acknowledged that Webb “may
need a new hernia belt,” and referred him
to an orthopedic surgeon for a second
opinion. Id.
Prison records dated August 10, 2005,
reflect that “one hernia belt [was]
provided” to Webb. J.A. 583.
On August 24, 2005, Dr. Vendel examined
Webb again, noting mild pain and no
change in the size of his reducible hernia.
Concerning treatment, Dr. Vendel wrote
that Webb “may have [an] abdominal
hernia belt.” J.A. 349.
A-13
In his January10, 2006 affidavit,
Dr. Vendel stated that Webb’s hernia was
“still reduceable [sic] and controlled with
the use of a hernia belt.” J.A. 316.
On February 9, 2006, Webb filed another
informal prison complaint, alleging that he
had requested an abdominal binder on
arriving at FCI-Estill; that on August 10,
2005, he was issued a “back-brace,” not a
hernia belt; and that the back brace
“doesn’t help at all.” J.A. 584. Webb
requested to be “promptly provided the
abdominal binder as ordered by Dr. Vendel
[] about July and/or August of 2005.” Id.
On March 2, 2006, FCI-Estill staff met
with Webb and confirmed that “a new
binder was ordered to replace your old
binder . . . and upon receipt will be issued
to you.” J.A. 584.
In his affidavit of March 28, 2005, Webb
stated that he “was never providea with a
hernia belt.” J.A. 398.
On March 30, 2006, Dr. Vendel examined
Webb again. On April 27, 2006, he noted
in Webb’s medical records that Webb’s
hernia was a “5 x 4 cm bulge, minimally
symptomatic,” and that “surgery can be
done as | approved it before[,] electively.”
J.A. 586. That same day, Dr. Vendel
recommended that the proposed elective
surgery be scheduled.
A-14
In his affidavit of May 8, 2006, Dr. Vendel
stated that Webb was issued a hernia belt
on August 10, 2005, and that “on March 2,
2006, a new hernia belt was ordered and
Mr. Webb was instructed that once it
arrived it would be issued to him.” J.A.
578. Vendel noted that he had requested
Webb’s hernia surgery be scheduled,
“although this surgery is an elective
procedure.” Id.
Addressing the hernia claim allegations in the
Report, the magistrate judge concluded that Webb
had presented no evidence suggesting that surgery
was medically required (rather than properly
deemed elective), or that surgery had been unduly
delayed. See Report 18-20. The magistrate judge
further determined that Webb’s assertion “that he
was never provided with a hernia belt is . .
contradicted by the medical records,” and that, “even
assuming there was a delay in [Webb’s] receipt of a
hernia belt, . . . the medical evidence before the
Court shows that [Webb’s] hernia remains reducible,
with no evidence having been presented that [Webb]
has suffered any injury as a result of the delay in
receiving a hernia belt.” Id. at 20. The Order
adopted this aspect of the Report without specific
comment.
II.
We review de novo a district court’s award of
summary judgment. See Wolfe v. Weisner, 488 F.3d
234, 238 (4th Cir. 2007). In so doing, we apply the
same standard as the district court: whether “the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
In conducting such a review, we are mindful that a
mere “scintilla of evidence in support of the
plaintiffs position will be insufficient; there must be
evidence on which the jury could reasonably find for
the plaintiff.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986). However, in determining
whether a genuine issue of material fact is in
dispute, “the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be
drawn in his favor.” Id. at 255.
ITT.
On appeal, Webb challenges the district
court's award of summary judgment to the
Defendants on his Eighth Amendment claim with
respect to his hernia problems -- asserting that his
medical care was so deficient as to constitute
deliberate indifference to his objectively serious
medical needs. See U.S. Const. amend VIII; Estelle
v. Gamble, 429 U.S. 97, 104 (1976). As a general
proposition, a medical need may be deemed
objectively serious if it is “one that has been
diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s
attention.” Ramos v. Lamm, 639 F.2d 559, 575 (10th
Cir. 1980); see also Loe v. Armistead, 582 F.2d 1291,
1292-93, 1295-96 (4th Cir. 1978). In order to act
with deliberate indifference, a public official must
have been personally aware of facts indicating a
substantial risk of serious harm, and the official
must have actually recognized the existence of such
A-16
arisk. Farmer v. Brennan, 511 U.S. 825, 838 (1994)
(“{An official’s failure to alleviate a significant risk
that he should have perceived but did not . cannot
under our cases be condemned as the infliction of
punishment.”); see also Miltier v. Beorn, 896 F.2d
848, 851 (4th Cir. 1990).
In this situation, it is undisputed that Webb
suffers from a ventral hernia and that, in the proper
circumstances, such a condition might be recognized
as serious. See, e.g., Johnson v. Doughty, 433 F.3d
1001, 1014 (7th Cir. 2006) (holding that hernia can
be objectively serious medical problem); Jones v.
Johnson, 781 F.2d 769, 771-72 (9th Cir. 1986)
(same). In the context of his constitutional claim,
Webb contends that the Defendants’ were
deliberately indifferent to his medical needs in three
respects: (1)in prescribing hernia surgery on an
elective basis only; (2)in unduly delaying such
surgery; and, (3) in failing to provide him with the
hernia belt that he needed.!2 We review in turn
these aspects of Webb’s claim.
12 In his’ hernia-related claim, Webb’s
allegations of deliberate difference relate only to Dr.
Vendel. He does not allege that the other
Defendants bear any liability for Dr. Vendel’s acts or
omissions. In the absence of allegations of
supervisory liability, the district court properly
awarded summary judgment to the _ other
Defendants. See Boyce v. Alizaduh, 595 F.2d 948,
953 (4th Cir. 1979).
A.
Webb first maintains, in pursuing his Eighth
Amendment claim, that the Defendants were
deliberately indifferent to his need for surgery by
prescribing such surgery for him on an elective basis
only. Although the consequences of failing to
prescribe an essential surgical procedure can be
serious, any medica] malpractice committed with
respect thereto, or malpractice committed by
mischaracterizing an emergency surgical procedure
as an elective one, will not contravene the Eighth
Amendment. Put simply, negligent medical
diagnoses or treatment, without more, do not
constitute deliberate indifference. See Sosebee v.
Murphy, 797 F.2d 179, 181 (4th Cir. 1986).
And, in this case, Webb has failed to show any
deliberate indifference on the part of Dr. Vendel with
respect to the “elective surgery” classification of
Webb’s hernia problem. The record reflects that,
shortly after Webb’s transfer to FCI-Estill,
Dr. Vendel sought and obtained supporting medical
opinions classifying Webb’s surgery as elective.
Based on those consultations, Dr. Vendel himself
concluded, in October 2004, that Webb’s need for
hernia surgery was “not urgent, [and] can be done
electively within a time frame of 6 [months].” J.A.
339. After Webb filed informal prison complaints in
May and June 2005, requesting hernia surgery “with
imminence,” id. at 90, Dr. Vendel examined Webb
twice in August 2005, but found no objective signs of
pain and no change in the size of his hernia. In
March 2006, after examining Webb’s hernia and
finding it unchanged, Dr. Vendel renewed his
A-18
assessment that the “surgery can be done as |
approved it before, electively.” Id. at 586.
In summary, even if Dr. Vendel somehow
misdiagnosed Webb’s need for surgery, Dr. Vendel
made extensive efforts to diagnose, monitor, and
control Webb’s hernia symptoms, and that he did not
disregard any “risk of harm of which he was aware.”
See Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir.
1998) (holding that doctors are only deliberately
indifferent if they “subjectively ‘know[] of the serious
medical condition itself’ and consciously disregard a
substantial risk of serious harm implied by that
condition). The fact that Dr. Vendel consulted other
physicians further undermines any contention that
his diagnosis, even if incorrect, was somehow
deliberate or indifferent. See id. at 169 (concluding
prison physician’s consultation with outside experts
supported inference that misdiagnosis was not
deliberate indifference). Thus, the court properly
concluded in its Order that Dr. Vendel’s
classification of Webb’s potential surgery as elective
— rather than as an emergency — does not implicate
Webb’s Eighth Amendment rights.
B.
Turning next to the delay aspect of Webb’s
Eighth Amendment claim, he argues that the fact
that he was never scheduled for elective hernia
surgery while at FCI-Estill — despite Dr. Vendel’s
statement, in October 2004, that “surgery is not
urgent, [and] can be done electively within a time
frame of 6 [{months],” J.A. 332 — supports an
inference of deliberate indifference on the part of
Dr. Vendel. Under the applicable legal principles, a
A-19
significant delay in the treatment of a serious
medical condition may, in the proper circumstances,
indicate an Eighth Amendment violation. See
Estelle, 429 U.S. at 104-05 (holding that deliberate
indifference may be demonstrated by “intentionally
denying or delaying access to medical care”).
An Eighth Amendment violation only occurs,
however, if the delay results in some substantial
harm to the patient.1% Thus, in order to defeat
summary judgment on the delay issue, Webb was
obligated to establish that the delay in his surgery
caused him substantial harm — evidenced by, for
example, a marked increase in his hernia’s size,
frequent complaints of severe pain, or signs that his
hernia was becoming non-reducible or
incarcerated.14 Cf. Militier v. Beorn, 896 F.2d 848,
13 See, e.g., Sealock v. Colorado, 218 F.3d
1205, 1210 (10th Cir. 2000) (“Delay in medical care
only constitutes an Eighth Amendment violation
where the plaintiff can show that the delay resulted
in substantial harm.”); Mendoza v. Lynaugh, 989
F.2d 191, 195 (5th Cir. 1993) (same); Wood v.
Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990)
(same). But see Blackmore v. Kalamazoo County,
390 F.3d 890, 899 (6th Cir. 2004) (“This
[constitutional] violation is not premised upon the
‘detrimental effect’ of the delay, but rather that the
delay alone in providing medical care creates a
substantial risk of serious harm [of which prison
officials are aware].”)
14 In his affidavit of January 10, 2006, Dr.
Vendel explains that “[a] non-reducible hernia
requires surgical repair, because the protrusion can
A-20
852-53 (4th Cir. 1990) (concluding, where inmate
suffered heart attack and died, that jury could find
physicians were deliberately indifferent by failing to
follow up on recommendations for inmate’s cardiac
care).
Our unpublished decisions recognize that a
delay with respect to hernia surgery does not
necessarily constitute deliberate indifference, absent
some resultant harm or a worsened condition. For
example, in Price v. Carey, we deemed an eight-
month delay in providing elective herria surgery as
insufficient to constitute an Eighth Amendment
violation, because the prisoner “did not present any
information” to his physician during the intervening
period “to indicate that his situation was an
emergency mandating immediate’ treatment.”
No. 91-6643, 1992 WL 34208, at *4 (4th Cir._Feb. 26,
1992). On the other hand, in Garrett v. Elko, we
recognized an Eighth Amendment claim where the
prisoner’s hernia surgery was delayed for four years,
in the face of continual “complaints of intense pain,
anxiety, and limited mobility.” No. 95-7939, 1997
WL 457667, at *1 (4th Cir. Aug. 12, 1997).
After October 2004, Webb was prescribed pain
medication, and although he frequently complained
about hernia-related discomfort, his complaints
focused largely on work assignments. See, e.g., J.A.
91 (complaining of hernia enlargement on May 25,
contain intestine, which can lose its blood supply and
die if it becomes tightly trapped (called
‘strangulation’ or ‘incarceration’ of the hernia).” J.A.
315.
2005, but requesting reprieve from work assignment
until elective surgery is performed); id. at 90
(requesting, on June 21, 2005, being provided hernia
surgery “with imminence,” but failing to assert pain
or change in hernia’s size as basis therefor); id. at
218 (complaining of increasing pain on June 23,
2005, making work impossible). Moreover, when
Webb informed the prison medical personnel that he
was in pain, they did not ignore his complaints.
Rather, they monitored his condition, observed no
objective signs of pain or change in the size of his
hernia, provided pain medications, and concluded
that the hernia was yet reducible. See J.A. 331
(examining Webb on October 1, 2004, and noting
that, despite his complaints of constipation and
abdominal pain in September 2004, he “appeared not
[to be] in acute distress”); id. at 341 (prescribing pain
medication oi: March 8, 2005, for “mild pain” caused
by Webb’s hernia); id. at 345 (examining Webb on
August 3, 2005, and observing no objective signs of
pain or change in size of hernia); id. at 349
(examining Webb on August 24, 2005, and observing
no change); id. at 586 (noting that, based on
March 30, 2006, examination, Webb’s hernia was
“minimally symptomatic”). In such circumstances,
Webb’s allegation of improper delay fails to support
the proposition that summary judgment was
improperly awarded.
Finally, Webb focuses on the assertion that he
was never provided with a hernia belt at FCI-Estill.
In addressing this issue, Webb maintains that the
A-22
magistrate judge and the district court failed to
construe the evidence in the light most favorable to
him. In the Report (adopted by the Order), the
magistrate judge concluded that Webb’s assertion
that he was never provided with a replacement
hernia belt was “contradicted by the medical
records.” Report 20. On this point, the issue is
simply whether Webb has shown that Dr. Vendel
acted with deliberate indifference concerning the
hernia belt. In his affidavit of May8, 2006,
Dr. Vendel states that “on August 10, 2005, [Webb]
was issued a hernia belt by the Health Services
Administrator.” J.A. 578. By contrast, in an
informal prison complaint of February 9, 2006, Webb
alleged that, although he had requested a new belt
when he first arrived at FCIE still in July 2004, he
had been given a back brace only (on August 10,
2005).15 And, in his affidavit of March 28, 2006,
Webb asserted that he “was never provided with a
hernia belt.” Id. at 398.
This apparent dispute of fact on whether
Webb received a back brace or a hernia belt on
August 10, 2005, fails to establish an Eighth
Amendment claim. Put succinctly, Webb failed to
complain about the inadequacy of the back brace
until February 2006, six months after it was issued
15 There is no explanation of the differences, if
any, between a “back brace,” an “abdominal binder,”
and a “hernia belt.” For our purposes, we construe
these terms in the light most favorable to Webb, and
deem a back brace to be distinct from -- and less
effective than -- an abdominal binder or a hernia
belt.
A-23
to him (on August 10, 2005). In the interim,
Dr. Vendel believed that Web™ was provided with a
hernia belt on August 10, 2005. See J.A. 578 (“[OJn
August 10, 2005, [Webb] was issued a hernia belt by
the Health Services Administration.”). Whether
Dr. Vendel was incorrect in this perception could be
relevant in a malpractice claim, but it is not material
to Webb’s Eighth Amendment claim. As a matter of
law, Dr. Vendel cannot have consciously disregarded
a substantial risk of serious harm to Webb if he did
not know that Webb had been provided an
ineffectual back brace. See J»xhnson v. Quinones,
145 F.3d 164, 168 (4th Cir. 1998) (holding that, for
purposes of establishing deliberate indifference,
“t]he correct question is whether the doctor
subjectively ‘knows of the serious medical condition
itself’). On this evidence, Dr. Vendel has not been
shown to subjectively know that Webb did not have a
hernia belt, and thus could not be deliberately
indifferent to any of Webb’s hernia-related medical
needs. As a result, Dr. Vendel cannot be liable on
the Eighth Amendment claim. In such
circumstances, summary judgment was appropriate,
and the Order of the district court must be affirmed.
IV.
Pursuant to the foregoing, we affirm the
district court’s award of summary judgment on
Webb’s Eighth Amendment claims, and also its
dismissal without prejudice of his FTCA claim.
AFFIRMED
A-24
GREGORY, Circuit Judge, dissenting:
Webb has waited over four years to have an
“extremely enlarged incisional ventral hernia”
removed — a_ surgery prison medical staff
determined could “electively” be done within six
months. It is undisputed that the surgery is
necessary, and the only accepted medical procedure
for remedying Webb’s serious condition. However,
as Webb lingers, the majority, without pause or
hesitation, holds that, as a matter of law, the prison
medical staff has not been “deliberately indifferent”
to his serious medical need to have surgery “absent
some resultant harm or a worsened condition.” (Maj.
Op. 17.) The Eighth Amendment does not require a
prisoner to be on the precipice of death to receive the
necessary treatments that the prison medical staff
itself prescribed.
The Eighth Amendment expressly prohibits
the infliction of “cruel and unusual punishments.”
U.S. Const. amend. VIilI. In Estelle v. Gamble, 429
U.S. 97, 104 (1976), the Supreme Court established
the standard for Eighth Amendment cases involving
prisoner medical needs. In order to prove an Eighth
Amendment violation, the prisoner must show that
the defendant acted with deliberate indifference to
his serious medical needs, which requires proof of
two elements: (1) that the deprivation of medical
care was sufficiently serious (objective component);
and (2) that the prison officials were deliberately
indifferent to the serious medical needs (subjective
component). Id. “[DJeliberate indifference entails
something more than mere negligence,” Farmer v.
Brennan, 511 U.S. 825, 835 (1994), but indifference
A-25
can be manifested by prison doctors intentionally
denying or delaying access to medical care or
intentionally interfering with the treatment once
prescribed. Estelle, 429 U.S. at 104-05.
It is undisputed that Webb’s hernia condition
is a serious medical need. See Martin v. Bowman,
48 F.3d 1216 (4th Cir. 1995) (“A medical need is
serious if it is diagnosed by a physician as
mandating treatment or one that is so obvious that
even a lay person would recognize the necessity for a
doctor’s attention.”) The mayority’s “deliberate
indifference” analysis of Webb’s Eighth Amendment
claim is simple: rather than arguing that he received
no medical treatment, Webb only alleges that
Defendants conservative course of treatment violates
his Eighth Amendment rights and since he was seen
numerous times by prison medical staff and outside
medical specialists, defendants were not deliberately
indifferent. Simplicity notwithstanding, the majority
errs.
In September, 2003, a consulting general
surgeon recommended that Webb _ receive
“laparoscopic ventral hernia surgery.” (J.A. 356.)
Based on the alleged reducible nature of the hernia,
Dr. Vendel deemed Webb’s surgery “elective;” that is,
“not urgent” and he posited that surgery could be
performed within six months of September 24, 2004.
However, only five days after Dr. Vendel’s
determination that the surgery was “elective,” Webb
was examined by a consulting physician, who
observed “a new bulge on [Webb’s] abdomen,” that
had increased in size, and recommended
laparascopic repair. (J.A.358.) As the majority
A-26
correctly notes, Webb complained thirteen times of
chronic abdominal pain, and two different specialists
recommended surgery during the course of two years
after the initial recommendation. Yet, surgery was
still delayed and another six months passed without
any discussion of scheduling Webb for surgery.
While the majority makes much of Webb receiving
treatment throughout this time and Dr. Vendel
determining that the surgery was “elective,” it is
clear that Webb did not receive the treatment that
was prescribed year after year by several surgeons
despite his chronic pain and medical infirmities.
For instance, there is no evidence that
Dr. Vendel, after the first six-months passed,
determined that Webb could wait another six-
months for surgery. In fact, the record suggests
otherwise. On August 3, 2005, Dr. Vendel referred
Webb, after complaints of extreme pain, to an
orthopedic surgeon for a second opinion. It was not
until April 27, 2006, nearly three years after surgery
was first recommended and five months after Webb
filed suit, that Dr. Vendel recommended surgery be
scheduled. On March 10, 2006, another orthopedic
surgeon confirmed that Webb’s hernia had increased
and surgery was needed. (J.A. 585.) To be sure, even
if a procedure is “elective” - the term certainly should
not mean that Webb must wait almost four years for
a surgery that Dr. Vendel stated could be scheduled
at the very least within six months.
We have held, albeit in an unpublished
opinion, that where prison officials are aware of a
serious medical need and delay treatment, the
plaintiffs’ allegations are sufficient enough to satisfy
A-27
the objective component of a deliberate indifference
suit. See Clinkscales v. Pamlico Corr. Facility, 238
F.3d 411 (4th Cir. 2000) (inmate sufficiently alleged
deliberate indifference as a result of defendant’s
nine-month delay in providing a _ necessary
surgery) (citing Monmouth County Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir.
1987) (prison officials may not interminably delay
medical treatment or deny treatment based on
arbitrary and burdensome procedures.)) Here, Webb
presented evidence, when viewed in a light most
favorabie to him - as we must, sufficient to create a
triable issue of material fact as to whether the delay
constitutes deliberate indifference.
The majority’s rationale to the contrary rings
hollow in the face of the probability that further
delay of Webb’s hernia surgery could result in the
worsening or strangulation of his hernia, bowel
obstruction, or even Webb’s death. (J.A. 311.)
Deliberate indifference should not turn on whether
Webb’s condition worsened during the delay and nor
should Dr. Vendel’s decision to take an easier but
less efficacious course negate deliberate indifference.
It is the delay, itself, that is deliberately inaifferent.
As the Supreme Court stated in Estelle, an
unreasonable delay or withholding of treatment can
constitute deliberate indifference and, therefore,
offend the Eighth Amendment. Estelle, 429 U.S. at
104-05.
It is uncontroverted that Webb suffers from a
serious medical condition that requires surgery.
Merely providing a prisoner with some treatment is
not the Constitutional mandate of the Eighth
A-28
Amendment. Rather, it is providing a prisoner with
the care he or she needs. Prisoners are deprived of
freedom and stripped of most rights but the Eighth
Amendment guarantees that they not be treated less
than human. So I ask, is it humane for a prisoner,
who has suffered for four years with a serious
medical condition, to be waiting for a surgery that
everyone agrees is necessary? Based upon the
majority’s reasoning, it is uncertain how long Webb
must wait for medical treatment before he can make
out an Eighth Amendment claim that would at least
survive summary judgment. Because surely his
protection under the Eighth Amendment has not
deteriorated to such an anemic state, I dissent.
FILED: June 6, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 06-7381 (L)
(0:05-CV-02546-HFF)
WILLIAM EUGENE WEBB
Plaintiff - Appellant
v.
MATTHEW B. HAMIDULLAH, Warden; Z. R
VENDELL, M.D., Medical Director; STEVE
LABIER, Unit Manager; CHARLES GRUBBS, Unit
Manager; UNITED STATES Of AMERICA
Defendants - Appellees
JUDGMENT
In accordance with the decision of this Court,
the judgment of the District Court is affirmed.
This judgment shall take effect upon issuance
of this Court’s mandate in accordance with Fed. R.
App. P. 41.
/s/ PATRICIA S. CONNOR, CLERK
A-30
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
WILLIAM EUGENE WEBB,
Plaintiff,
vs.
MATTHEW B.
HAIVIIDULLAH, Warden;
Z.R. VENDEL, MD, Medical g§
Director, STEVE LABEIR, g
Unit Manager; CHARLES g
GRUBBS, Unit Counselor; §
‘
§
CIVIL ACTION
NO. 0:05-2546-
HFF-BM
MMMM Mm Mm MM
Defendants.
oo es
ORDER ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE
JUDGE, GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AS TO PLAINTIFF'S
BIVENS ACTION, DISMISSING PLAINTIFF'S FTCA
CLAIM WITHOUT PREJUDICE, AND DENYING
PLAINTIFF’S CLAIMS FOR INJUNCTIVE RELIEF
I. INTRODUCTION
This case was filed as a Bivens and a Federal
Tort Claims Act (FTCA) action. Plaintiff is
proceeding pro se. The matter is before the Court for
consideration of Plaintiffs requests for injunctive
relief and aé_ée review of the Report § and
Recommendation (Report) of the United States
A-31
Magistrate Judge suggesting that the Court grant
Defendants’ Motion for Summary Judgment as to
Plaintiffs Bivens action. The Magistrate Judge
further recommends that the Court dismiss
Plaintiffs FTCA claim, without prejudice. The
Report is made in accordance with 28 U.S.C. § 636,
and Local Rule 73.02 for the District of South
Carolina.
Il. INJUNCTIVE RELIEF
In considering a motion for injunctive relief,
the Court is constrained to follow the balancing of
hardship test as set forth in Blackwelder Furniture
Co. of Statesville, Inc. v. Seilig Manufacturing Co.,
Inc., 550 F.2d 189 (4th Cir. 1977). Simply stated,
Plaintiff has failed to demonstrate that, under this
standard, he is entitled to the extraordinary remedy
he seeks. Accordingly, Plaintiffs requests for
injunctive relief are DENIED.
Ill, THE REPORT
The Magistrate Judge makes only a
recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to
make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The
Court is charged with making a de _ novo
determination of those portions of the Report to
which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
636(b)(1).
A-32
The Magistrate Judge filed the Report on
June 23, 2006. Plaintiffs objections were received by
the Clerk of Court on July 14, 2006. The Court has
made a careful review of Plaintiff s submission, but
finds it to be unpersuasive.
Plaintiff contends that, contrary to the Report,
he did respond (in his Response to Defendants’
Motion to Dismiss) to Defendants’ argument that he
had failed to file a federal tort claim dealing with his
conditions of confinement at FCI-Estill.! (Obj. 9.)
The Court notes, however, that Plaintiffs response
was a_ general assertion that he “filed an
administrative tort claim regarding negligent
medical care while at FCI Estill.” (P1’ s Resp. to Mot.
Dism. 17 (citing Exhibit J).) Nevertheless, a review
of Exhibit J shows that the documents contained
therein are responding to Plaintiffs federal tort
claim form that was signed on June 30, 2004.
(Defts.’ Mot. to Dism., Exh. 10.)
Plaintiff was transferred to FCI-Estill on or
about June 16, 2004. The June 30, 2004, claim form
was filed approximately two (2) weeks after Plaintiff
arrived at FCI-Estill and prior to the dates on which
Plaintiff complains about FCI-Estill. Id.
Furthermore, in Section 8 of Plaintiffs claim form,
he specifically states “that prison officials at U.S.
Medical Center for Federal Prisoners at Springfield,
1 The references to FCI-Edgefield in the
Report are scrivener’s errors. Those portions of the
Report that refer to FCI-Edgefield are, in fact,
referring to FCI-Estill.
A-33
Missouri” were the ones that he was complaining of,
with no mention of FCI-Estill. Jd. Moreover, in
Section6 of the form, Plaintiff avers that the
incidents complained of occurred between January 8,
2003, and January 28, 2004. Jd. Since Plaintiff did
not arrive at FCI-Estill until on or about June 16,
2004, Plaintiff cannot reasonably argue that the
June 30, 2004, claim form covers any alleged claim
that he may have against Defendants at FCI-Estill.
In sum, the documents before the Court fail to
demonstrate that Plaintiff included a claim against
the officials at FCI-Estill on his June 30, 2004, claim
form. Moreover, there is no evidence in the record to
demonstrate that Plaintiff has exhausted his
administrative remedies as to his alleged FTCA
claim against the officials at FCI-Estill. Therefore,
Plaintiffs FTCA action will be dismissed, without
prejudice.
The Court has reviewed Plaintiffs remaining
objections, but finds them to be without merit. The
Court will enter judgment accordingly.
After a thorough review of the Report and the
record in this case pursuant te the standards set
forth above, the Court adopts the Report to the
extent that it does not contradict this order, and
incorporates it herein. Therefore, it is the judgment
of this Court that Defendants’ Motion for Summary
Judgment as to Plaintiffs Bivens action must be
GRANTED and Plaintiffs FTCA claim must be
DISMISSED without prejudice.
IT IS SO ORDERED.
A-34
Signed this 24th day of July, 2006, in
Spartanburg, South Carolina.
s/ Henry iF. Floyd
HENRY F. FLOYD
UNITED STATES
DISTRICT JUDGE
ok KK KEK
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to
appeal this Order within sixty (60) days from the
date hereof, pursuant to Rules 3 and 4 of the Federal
Rules of Appeliate Procedure.
A-35
A0450 - Judgment in a Civil Case
he
UNITED STAT®#S DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVisION
William Eugene Webb,
#19695-057
Plaintiff
vs. SUMMARY JUDGMENT
Matthew B. Hamidullah, [N A CIVIL CASE
Warden; Z R Venda, MD Case Number:
Medical Director; Steve 0:05-2546-HFF-BM
Labeir, Unit Manager,
Charles Grubbs, Unit
Manager; United States
of America;
Defendants
Decision on the Record. This action came before the
Court on the record, the Honorable Henry F. Floyd,
United States District Judge, presiding. The issues
have been reviewed by the Honorable Bristow
Marchant, United States Magistrate Judge, who
recommended in his Report and Recommendation
that the defendant’s motion for summary judgment
be granted,
IT IS ORDERED AND ADJUDGED that
summary judgment is hereby entered for Matthew
B. Hamidullah, Warden; Z R Vandella, MD Medical
Director; Steve Labor, Unit Manager; Charles
Grubbs, Unit Manager and United States of
A-36
America. The plaintiff William Eugene Webb, shall
take nothing of the defendants on his complaint filed
pursuant to Title 42 U.S.C. 1983 and this action is
dismissed with prejudice.
LARRY W. PROPES,
Clerk
By
Deputy Clerk
July 25, 2006
A-37
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
William Eugene Webb, 019695-057,
Plaintiff,
VS.
Matthew B. Hamidullah, Warden;
Z.R. Vendel, MD, Medical Director,
Steve Labeir, Unit Manager,
Charles Grubbs, Unit Counselor,
Defendants.
) C/A No. 0:05-2546-HHF-BM
REPORT AND RECOMMENDATION
A-38
This action has been filed by the Plaintiff, pro
se pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971), and the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 2671-2680. Plaintiff, an inmate with
the Federal Bureau of Prisons (BOP), alleges
violations of his constitutional rights as well as
violations of the FTCA.
The Defendants filed a motion for summary
judgment pursuant to Rule 56, Fed.R.Civ.P., on
February 3, 2006. As the Plaintiff is proceeding pro
se, a Roseboro order was entered by the Court on
February 6, 2006, advising Plaintiff of the
importance of a motion for summary judgment and
of the necessity for him to file an adequate response.
Plaintiff was specifically advised that if he failed to
respond adequately, the Defendants’ motion may be
granted, thereby ending his case. Plaintiff
thereafter filed a memorandum in opposition to the
Defendants’ motion, with attached exhibits, on
March 13, 2006.
By order filed April 21, 2006, Defendants were
ordered to provide additional evidence to the Court.
Defendants filed this material with the Court on
May 8, 2006, following which Plaintiff filed a reply
affidavit on May 18, 2006. Defendants’ motion is
now before the Court for disposition. !
This case was automatically referred to the
undersigned United States Magistrate Judge for all
pretrial proceedings pursuant to the provisions of 28
A-39
Background and Evidence
Plaintiff alleges in his first amended
Complaint? that the named Defendants have been
deliberately indifferent to his serious medical needs,
including compelling him to perform labor beyond
his physical capacity. Plaintiff also complains
generally that the Defendants violated his rights to
“due process” and “equal protection” when they
engaged in “retaliatory actions”. With respect to his
medical claims, Plaintiff alleges that the Defendants
were deliberately indifferent to his serious foot
deformity, and that they engaged in cruel and
unusual punishment “when they refused and failed
U.S.C. § 636(b)(1)(A) and (B) and Local Rule
73.02(B\(2)(d) and (e), D.S.C. The Defendants have
filed a motion for summary judgment. As this is a
dispositive motion, this Request and
Recommendation is entered for review by the Court.
this Report and Recommendation is entered for
review by the Court.
2 In this Circuit, verified complaints by pro se
prisoners are to be considered as affidavits and may,
standing alone, defeat a motion for summary
judgment when the allegations contained therein are
based on personal knowledge. Williams v. Griffin,
952 F.2d 820, 823 (4th Cir. 1991). However, even
though Plaintiffs original Complaint was verified, he
is now proceeding on an unverified amended
Complaint. Therefore, the undersigned has not
considered the factual allegations set forth in that
unverified Complaint as evidence in issuing a
recommendation in this case. The attached exhibits
to the Complaint have been considered.
A-40
to seek other outside medical treatment for
Plaintiffs serious left-fore-arm condition, when the
contracted physician refused to treat Plaintiffs
injury because the Plaintiff smoked tobacco.”
As part of the “background facts” section of his
Complaint, Plaintiff alleges that following a federal
conviction on or about December 2000, and while he
was awaiting designation to a federal housing
facility, he became extremely ill and was
hospitalized for an abdominal hernia complication
and kidney failure, for which he had surgery on May
10, 2001. Plaintiff alleges that following his surgery,
he was transferred to the U.S. Medical Center for
federal prisoners in Springfield, Missouri. Plaintiff
alleges that, while at this facility, he was seen by Dr.
Hugh Harris on or about August 13 2001, who
determined that he was in need of two corrective
surgeries, to repair his deformed left forearm, which
was broken, and his left wrist, which was dislocated.
Plaintiff complains that since this determination he
has not received “community standard” medical care
for his deformed forearm, or for an abdominal) hernia
which was diagnosed on or about September 25,
2003.
Plaintiff alleges that he was transferred to the
Federal Correctional Institution in Estill, South
Carolina on or about June 16, 2004, at which time he
“promptly informed the medical personnel of his
serious medical conditions, and the medically
documented need of surgeries.” Plaintiff further
alleges that, after being informed that his conditions
would receive little, if any, priority, he filed a formal
Federal Tort Claim on or about June 30, 2004.
Plaintiff has also attached numerous exhibits to his
A-41
Complaint, which he discusses under the “relevant
facts” portion of his Complaint.
One of these exhibits is a “sick call sign-up
sheet” dated June 21 (or 29), 2004, in which he
requests follow-up medical care and treatment for
several purported health problems. Amended
Complaint, Exhibit (A)Q). Plaintiff also alleges that
on or about July 21, 2004, he requested and received
“convalescent” medical classification status for a
seven day period. This classification required that
he be re-evaluated every seven days for an extension
of his convalescent status. Amended Complaint,
Exhibit (A)Q10). Plaintiff alleges that on or about
July 26, 2004, he again filed a “sick-call slip” seeking
treatment for his medical conditions. See Amended
Complaint, Exhibit (A)(11). Plaintiff alleges that he
was seen by a contract physician on or about July 30,
2004, who recommended that he receive surgery on
his hernia. See Amended Complaint, Exhibit
(A)(12). Plaintiff alleges that he was also seen by Dr.
John George on or about July 30, 2004, who
determined that Plaintiff required a fibular bone
graft. See Amended Complaint, Exhibits (A)(14).
However, Plaintiff alleges that he was told by Dr.
George that he would have to quit smoking for six
months and have a urine test before this procedure
could be performed. See Amended Complaint,
Exhibit (A)(15).
Plaintiff alleges that on or about September 3,
2004, he requested and_ received § another
convalescent classification status; Amended
Complaint, Exhibits (A)(16); (A)(17); but that on or
about September 7, 2004 Plaintiffs medical
classification was changed by a “S. Barron, MLP” to
A-42
“restricted duty” work status, with “no lifting over 10
pounds, and no prolonged standing”. See Amended
Complaint, Exhibit (A)(18). Plaintiff alleges that he
thereafter made an informal complaint regarding his
removal from the idle classification to the Defendant
Dr. Vendel, Clinical Director of the FCI Estill
Medical Department.
Plaintiff also alleges that on or about
September 10, 2004, he was seen by a podiatrist,
who determined that he should have _ special
orthopaedic footwear. See Amended Complaint,
Exhibit (A)(20). Plaintiff further alleges that on or
about September 18, 2004, he submitted a sick call
slip to medical because he was experiencing pain and
discomfort due, Plaintiff alleges, to his assigned
work duties as a housing unit orderly; Amended
Complaint, Exhibit (A)(21); (A)(22); and that he
submitted a second sick call slip to medical on
September 20, 2004. See Amended Complaint,
Exhibit (A)(23). Plaintiff alleges that he was
thereafter seen by Dr. Vendel on or about September
24, 2004, and was told that additional surgeries for
his complaints had not been approved. See
Amended Complaint, Exhibits (A)(23). However,
Plaintiff alleges that following his continued
complaints, Dr. Vendel did approve him for surgery
on or about November 22, 2004. See Amended
Complaint, Exhibits (A)(30).
Plaintiff also continued to complain about
pain as a result of his job assignment; Amended
Complaint Exhibit (A)(31); and on or about Aprii 28,
2005, he was assigned an updated restricted duty
work status pass from the medical department.
Plaintiff alleges that he was informed, however, that
A-43
this pass would not be considered an excuse to
reduce his job assignment performance. See
Amended Complaint. Exhibit (A)(32): (A)(33).3
Plaintiff alleges that on or about May 13,
2005, he was taken to a hospital for high blood
pressure and observation. Plaintiff thereafter filed
sick call slips with FCI Medical on or about July 5,
2005 complaining about the physical strain of his
assigned work duties, while his mother also
contacted prison officials about his medical condition
and care. Amended Complaint, Exhibit (B)(5).
Plaintiff also alleges that he also filed a formal
administrative remedy complaint on or about June
23, 2005 regarding the pain he was having to endure
as a result of his work assignment. See Amended
Complaint, Exhibit (B)(6).
Plaintiff alleges that on or about June 28,
2005, he was charged with, and found guilty of,
failure to perform his assigned job duties; see
Amended Complaint. Exhibit (B)(7); which Plaintiff
alleges was retaliation for his exercising his legal
rights. Plaintiff thereafter filed a complaint of
retaliation and race discrimination on or about July
7, 2005. See Amended Complaint, Exhibit (B)(8).
Plaintiff alleges he is continuing to be retaliated
against, and seeks monetary damages and injunctive
relief. See generally, Plaintiff's Amended Complaint
with Attached Exhibits.
In support of summary judgment in the case
the Defendants have submitted numerous exhibits
3 Due to poor print quality, these two (2)
exhibits are extremely hard to read.
A-44
setting forth the medical care Plaintiff has received
since his assignment to the BOP. The Defendant
Vendel has also submitted an affidavit wherein he
attests that he is the Clinical Director at FCI Estill,
and that his duties include ensuring that assigned
inmates receive proper and adequate medical
treatment. Vendel attests that from May 25, 2001
through January 15, 2003, and again from April 1,
2003 - January 28, 2004, Plaintiff was incarcerated
at the United States Medical Center for Prisoners
(USMCFP) in Springfield, Missouri for treatment of
a ventral hernia and repair to his left forearm which
had been injured by a gunshot. Vendel attests that
Plaintiff underwent plating and bone grafting to
repair his left forearm on August 19, 2002, which
was followed-up by further surgery and long term IV
therapy due to an infection of the graft placed in his
left forearm on May 12, 2003. Vendel attests that
Plaintiff was transported by USMCFP staff to a local
hospital on January 2, 2004 to have surgery
performed on his ventral hernia, but that upon
arriving at the hospital Plaintiff refused to have this
surgery performed. Vendel attests that Plaintiff
thereafter remained at the SUMCFP until January
28, 2004, at which time medical staff determined
that he had fully healed from his left forearm
surgery and could be housed in a mainline
institution.
Vendel attests that Plaintiff arrived at FCI
Estill on June 16, 2004, and that during a routine
physical examination it was noted that he had had
plating and bone grafting performed on his left
forearm, that he had a ventral hernia, and that he
claimed to have nerve damage to his right foot due to
a previous gunshot wound. It was also noted during
this examination that Plaintiff had been provided
with custom made soft shoes for his right foot and
neuropathy. Plaintiff was provided with medications
and consultations were initiated to the consultant
general surgeon and orthopaedic surgeon for follow-
up care for his medical conditions.
Vendel attests that on July 30, 2004, Plaintiff
was examined by a consultant general surgeon
concerning his ventral hernia, who noted that
Plaintiff was status post for a previous gunshot
wound to the abdomen for which a previous small
bowel resection had been performed, and that
Plaintiff had also had a previous ventral hernia
repair performed in 2000. Plaintiff indicated to the
general surgeon that his ventral hernia was not
painful, he did not have any nausea or vomiting, no
constipation, and no urinary obstructive symptoms.
The general surgeon recommended that a
Japaroscopic repair of the ventral hernia be
performed, which would require a three to four day
hospital stay. Vendel attests that he subsequently
consulted the general surgeon to ascertain whether
or not ventral hernia repair surgery was medically
necessary or was instead an elective procedure, at
which time the general surgeon stated that this was
an elective procedure (i.e., not medically necessary)
and that Plaintiffs hernia was reducible and
controlled with the use of a hernia belt. Vendel
attests that he was further advised to routinely
monitor Plaintiffs condition, and that if Plaintiff
experienced any further problems or symptoms arose
indicating his hernia was becoming strangulated,
then surgery would be necessary.
A-46
Vendel attests that surgery is not the only
treatment option for a hernia, and is not mandatory
for reducible hernias (the type of hernia Plaintiff
has) dependent on the size of the hernia. Vendel
attest that many people live for years without
complication with reducible hernias, electing not to
have surgical correction, and that unless a hernia is
non-reducible, surgical repair is considered elective
surgery. Vendel further notes that there are always
risk of complications with any kind of surgery, and
that the laparoscopic repair of a ventral hernia is not
an easy procedure.
Vendel attests that on August 17, 2004
Plaintiff was examined by a consultant orthopaedic
surgeon concerning his left forearm, who indicated
that Plaintiff had had one previous reconstruction
attempt that failed with an infection. This surgeon
further stated that it appeared Plaintiff had a
segmental defect of his left radius, and that what the
segmental loss was would-depend on whether or not
Plaintiff needed to have a vascularized fibular graft
or bone autograft. The surgeon further indicated
that this type of operation had a high risk of being
unsuccessful, and that before anyone in his office
would attempt such surgery Plaintiff would have to
quit smoking for six months and have a urine test.
Vendel attests that, following this consultation,
Plaintiff continually approached FCI Estill medical
staff insisting that he be provided with left forearm
surgery and that he knew such surgery did not
require extensive stop smoking requirements.
Vendel attests that it was explained to the Plaintiff
that the vesicles in that part of his arm are impacted
by smoking, and that quitting smoking would
increase the chances of a successful surgery, but that
Plaintiff continued to disagree and informed medical
staff he would have the courts approve the
procedure.
Vendel further attests that in April 2005, the
BOP initiated a total ban on the use of tobacco
products in its facilities, and that as a result of this
new policy he initiated another consultation with the
orthopaedic surgeon on August 3, 2005 to determine
if surgery could now be performed on the Plaintiff
since smoking should no longer be a factor. Vendel
attests that Plaintiff also continues to receive
routine follow-up care for his ventral hernia and his
left forearm, and that his ventral hernia is still
reducible and controlled with the use of a hernia
belt.
Vendel also attests that Plaintiff has not made
any complaints to FCI Estill medical staff concerning
his right foot neuropathy. Vendel attests that
Plaintiff was examined by a consultant podiatrist on
September 10, 2005, who indicated Plaintiff has
peripherai neuropathy and hammertoe in his right
foot, and recommended that Plaintiff be provided
with a new pair of custom soft shoes because the
shoes Plaintiff had been utilizing appeared to have a
break in the sole. Vendel attests that, in addition to
these conditions, Plaintiff also has a medical history
of gout, alcohol abuse, drug abuse, high blood
pressure, chronic renal failure, tobacco abuse,
chronic hepatitis C, and gastro esophageal reflux
disease, and that due to this medica] history Plaintiff
is considered a high risk patient. Vendel attests that
all of these diagnoses have been taken into
consideration when developing a treatment plan for
the Plaintiff, and that Plaintiff continues to receive
A-48
medical evaluations with alternatives for care and
necessary accommodations. Vendel attests,
however, that Plaintiff consistently fails to comply
with the recommendations given to him, fails to
comply with the reciprocal responsibility to comply
with medical treatments rendered and to apply life
style changes, that Plaintiff continuously disagrees
with the recommendations of consultant specialists
and institution medical staff regarding his medical
care, and that Plaintiff is argumentative and
attempts to intimidate medical staff into giving him
what he wants when he wants by constantly
threatening legal action.
Finally, Vendel attests that Plaintiff has been
provided with the medical restrictions of no
prolonged standing and no lifting over ten pounds,
that he is physically capable of performing work
assignments that are commensurate with these
medical restrictions, and that there is no medical
reason for Plaintiff to be placed on an indefinite
convalescent status or be permitted to be exempt
from a working assignment. See generally, Vendel
Affidavit.
The Defendant Steven Labeir has also
provided an affidavit wherein he attests that he is a
unit manager at FCI Estill, where he is responsible
for the oversight of the orderly and safe running of
an inmate housing unit. Labeir attests that he is
familiar with the Plaintiff, and that since Plaintiff's
arrival at FCI Estill on June 16, 2004 he has been a
disruptive and argumentative inmate who
constantly threatens staff members that he will sue
them if he does not get what he wants when he
wants it. Plaintiff also contends that he suffers from
medical problems that prohibit him from having to
do any work. Labeir attests that, upon Plaintiffs
arrival at FCI Estill, he was assigned to work as a
yard orderly, a job which required him to routinely
walk around the institution compound and pick up
or sweep trash and occasionally mow and trim grass
and sweep sidewalks. Labeir attests that this work
assignment lasted only eight days because Plaintiff
was provided with medical restrictions of no
prolonged standing and no lifting over ten pounds
because of his medical conditions. Labeir attests
that plaintiff was then assigned to work as a unit
orderly, where he is only required to wipe down
walls and handrails. Labeir further attests that,
keeping in mind Plaintiffs medical conditions and
restrict ions, he is not required to exert himself while
performing this detail and is permitted to sit or lie
down when he feels the need. However, Labeir
attests that Plaintiff still consistently refuses to
work. Labeir also attests that he and his staff
routinely consult with the medical department to
ensure that the Plaintiff has not been given any
additional restrictions that would prohibit him from
performing any type of work assignment.
Labeir attests that Plaintiff has received four
incident reports while at FCI Estill, and that he has
been found to have committed the prohibited acts of
failing to work as instructed, refusing to obey an
order, and twice has been sanctioned for being
unsanitary or untidy. Labeir attests that Plaintiff
has been sanctioned for failing to work because he
believes he should not be required to work at all, and
that he has received incident reports for refusing an
order and being unsanitary or untidy because he
refuses to keep his living quarters clean and
A-50
sanitary. Labeir also attests that he has never
denied Plaintiff access to the BOP internal grievance
procedure, and that, in fact, since Plaintiff's arrival
at FCI Estill, he has filed thirty-four (34) grievances
under the BOP’s administrative remedy program as
well as several documents with the federal courts.
Finally, with respect to Plaintiff's medical
care, Labeir attests that he does not provide
personal medical care for inmates, and that all
decisions regarding Plaintiff's medical care are made
by the FCI Estill Clinical Director and his medical
staff. Labeir further attests that, to his knowledge,
Plaintiff has never been diagnosed with a condition
that would totally exempt him from being placed in
an inmate job assignment. See generally, Labeir
Affidavit.
The Defendant Charles Grubbs has also
submitted an affidavit wherein he attests that he is
a counselor at FCI Estill, and that his
responsibilities include assisting inmates with
completion of their programming needs and assisting
with the orderly and safe operation of the housing
unit. Grubbs attests that he is familiar with the
Plaintiff, who alleges that he suffers from medical
problems that prohibit him from being assigned to a
work detail, and who consistently threatens that he
will sue Grubbs if he does not get what he wants.
Grubbs attests to the same work history and
incident report history for the Plaintiff as has been
attested to by Labeir in his affidavit. Grubbs also
attests that he has never denied Plaintiff access to
the BOP internal grievance procedure, and
reiterates Labeir’s statements in his affidavit with
respect to the number of grievances Plaintiff has
A-51
filed. Grubbs further attests that he has no
responsibility for providing medical care to the
Plaintiff, but that to his knowledge Plaintiff has
never been diagnosed with a condition that would
totally exempt him from being placed in an inmate
job assignment.
Finally, Grubbs attests that he has never
threatened the Plaintiff, nor has he taken any
actions that could be construed as retaliation against
the Plaintiff. Grubbs attests that he has
continuously attempted to resolve matters with the
Plaintiff in an amicable manner, but that Plaintiff
does not provide the same courtesy and simply tells
Grubbs that he will have the court settle his claims.
See generally, Grubbs Affidavit.
The Defendant Hamidullah has provided an
affidavit wherein he attests that he is the Warden at
FCI Estill. Hamidullah attests that, as Warden, he
does not provide personal medical care for any
inmate, that he has had no personal involvement in
the medical decisions that have been made regarding
Plaintiffs medical care, and that all medical
decisions are made by the Clinical Director and his
medical staff. Hamidullah attests that on July 20,
2005 he provided a response to a request for
administrative remedy in which Plaintiff asserted
that he was not receiving appropriate medical care,
and that in this response he informed Plaintiff that a
review of his medical file indicated he was receiving
appropriate medical care and had been provided
with medical restrictions commensurate with his
medical conditions. Hamidullah further attests that
inmate job assignments are assigned by the
Plaintiffs unit team staff and are dictated by the
A-52
needs of the institution, that he [Hamidullah] is not
aware of Plaintiffs job assignment or whether or not
he has any medical restrictions that prohibit certain
types of job assignments, and that he does not recall
Plaintiff ever personally informing him of any
problems with his inmate job assignments. See
generally, Hamidullah Affidavit.
As an attachment to his memorandum in
opposition to the Defendants’ motion for summary
judgment, Plaintiff has provided an affidavit in
which he repeats many of the allegations of his
Complaint, denies he has ever refused surgery, and
argues that when the podiatrist prescribed him
orthopaedic shoes, Vendel should have ensured that
he received them. Plaintiff also cites to one of his
medical records, attached to his affidavit as Exhibit
A, p. 00009, to argue that, while the surgeon agreed
with Vendel that surgery was not urgent and could
be done electively, it was supposed to have been done
within the time frame of six months. See Attached
Exhibit. Plaintiff also attests that he was never
provided with a hernia belt, but was instead
provided with a back brace by the health service
administrator, who stated his intention of ordering
him a hernia binder, which after six months he had
not received. Plaintiff attests that he has stopped
smoking, but that he has not received a urine test or
any presurgery examinations by an orthopaedic
doctor, even though Vendel knows that he does not
smoke. Plaintiff also asserts that the job he is
required to perform is not commensurate with his
medical restrictions, and that his chronic medical
conditions cause him considerable pain and daily
discomfort.
A-53
Plaintiff further denies that he has ever ber »
disruptive or disrespectful, and that both Grubbs
and Labeir have “unequivocally informed me that
they both have a strong dislike of black men, and
especially those that question their actions, in any
manner.” Plaintiff also disputes that, as a unit
orderly, he is only required to wipe down walls and
handrails. Plaintiff attests that he has often been
ordered to sweep and mop floors, scrub shoe
scuffmarks from walls of the entire housing unit,
strip and wax floors, paint walls, and other physical
work assignments. Plaintiff also states that, since
the filing of this civil action, he has “been totally
denied administrative remedy grievance due
process”, and that over five of his filed grievances
have not been responded to in over two months. See
generally, Plaintiffs Affidavit, with attached
Exhibits.
Plaintiff has also submitted an affidavit from
fellow inmate Dominique Green (Plaintiffs Exhibit
H), who attests that from March 2005 through July
2005 he was Plaintiffs cellmate at FCI Estill. In his
affidavit, Green contests the validity of incident
reports served on he and the Plaintiff on May 13,
2005 charging them with failure to follow safety or
sanitation regulations and with being unsanitary or
untidy. See generally, Green Affidavit. See also
Plaintiffs Exhibit (B)(3). Another affidavit has been
provided from fellow inmate Davin Lamont Smith
(Plaintiffs Exhibit I), wherein he attests that on or
about September 21, 2005 he and the Plaintiff were
written incident reports for being untidy, failing to
keep quarters in accordance with posted standards,
and unexcused absence from work. Smith attests
that these incident reports were written after he and
A-54
the Plaintiff had been cellmates for about a month,
that he had taken full responsibility for keeping the
cell clean, and that Plaintiff should not have been
convicted of this charge. See generally, Smith
Affidavit.
In response to the Court’s order of April 21,
2006, Vendel submitted a supplemental affidavit
(Court Document #27) responding to several specific
issues raised by the Plaintiff in his filings. First,
with respect to Plaintiff's assertion in his affidavit
(submitted with his memorandum opposing
summary judgment) that he has quit smoking, and
in fact quit smoking prior to the implementation of
the BOP’s tobacco ban in April 2005, but that he has
still never had a urine test and never been scheduled
for surgery, Vendel attests in his supplemental
affidavit that Plaintiff was in fact seen by a
consultant orthopaedic surgeon for his left arm
condition on March 1, 2006 (prior to the date of
Plaintiff's affidavit); see also Vendel Supplemental
Affidavit, Attachment 1 [Office Visit Notes];
following which the consultant orthopaedic surgeon
indicated he could not promise that surgery would
work and also indicated that, in addition to failure of
the procedure, the risks from surgery included
infection, bleeding, wound complications, nerve and
vessel injury, and the possible need for additional
procedures. Vendel attests that after he reviewed the
orthopaedic surgeon’s examination notes, he
[Vendel] did not recommend approving the surgery
and recommended continuing treatment of Plaintiffs
left arm with conservative therapy. See also Vendel
Supplemental Affidavit, Attachment 2. Vendel
further attests that the matter has been referred to
the Institution’s Utilization Review Committee for
A-55
consideration, and that if the Committee does not
agree with his recommendation to disapprove the
surgery, Plaintiff will be scheduled for surgery at the
direction of the orthopaedic surgeon, but that in any
event treating Plaintiffs condition conservatively
instead of with surgery in no way places Plaintiff in
any kind of danger or risk of harm.
With respect to Plaintiffs statement in his
affidavit that he has never been provided new shoes
notwithstanding the consultant _ podiatrist’s
recommendation of September 10, 2005 that he
receive a new pair of custom soft shoes because the
shoes Plaintiff had been utilizing appeared to have a
break in the sole, Vendel attests that the podiatrist
clearly indicated to the Plaintiff following his
September 10, 2005 examination that he [Plaintiff]
was to check with the Health Services Administrator
regarding orthopaedic shoes, and that there is
nothing in the medical record after September 10,
2005 to show that Plaintiff ever spoke with the
Health Services Administrator about orthopaedic
shoes. Vendel further attests that, although it is
clearly documented that Plaintiff has a_ foot
deformity due to sustaining a gunshot wound, he has
not reported during sick call or chronic care clinic
appointments any problems with his foot for
approximately one year, and that he [Vendel]
believes Plaintiff is fully capable of ambulating in
regular footwear without difficulty, and no longer
needs the continued use of custom orthopaedic shoes.
Finally, with respect to Plaintiff's statement
in his affidavit that he has never been provided with
a hernia belt and has instead only been provided
with a back brace, which is of no use in dealing with
A-56
his hernia condition, Vendel attests in his
supplemental affidavit that Plaintiff was issued a
hernia belt by the Health Services Administrator on
August 10, 2005. See also Vendel Supplemental
Affidavit, Attachment 3 [Hernia Belt Issuance
Certificate date August 10, 2005]. Vendel further
attests that on March 2, 2006, a new hernia belt was
ordered and Plaintiff was instructed that once it
arrived it would be issued. See also, Vendel
Supplemental Affidavit, Attachment 4. Vendel
attests that Plaintiff was also examined by the
consultant general surgeon regarding the status of
his ventral hernia on March 10, 2006, and that the
general surgeon has recommended operative repair
via laparoscopic surgery. See__also, Vendel
Supplemental Affidavit, Attachment 5. Vendel
attests that even though Plaintiff has refused
surgery for his ventral hernia on two previous
occasions, he reviewed the consultation notes
provided by the general surgeon on April 27, 2006,
and that even though this surgery is an elective
procedure, he has submitted the general surgeon's
recommendation to the Utilization Review
Committee. Vendel attests that if the Committee
approves the procedure, it will be scheduled. See
also, Vendel Supplemental Affidavit, Attachment 6.
In response to this evidence, Plaintiff attests
in his supplemental affidavit that Vendel has
continued to deny him surgery, even though he
“constantly complained of pain and discomfort....”
Plaintiff also attests that Vendel refuses to provide
him with new replacement orthopaedic shoes, even
though a podiatrist has recommended that he be
provided with new shoes. Plaintiff also attests that
he never received a replacement hernia belt, but was
A-57
only given a back brace, and complains about Vendel
refusing to schedule him for hernia surgery.
Plaintiff does concede that he was seen by a surgeon
on March 28, 2006, as attested to by Dr. Vendel in
his affidavit, but complains about having been
shackled during the ride to the surgeon’s office,
stating that the restraints caused him great pain
due to his wrist and arm problems. Plaintiff states
that this resulted in his arm being “swollen
considerably.” Finally, Plaintiff attests that he has
never refused surgery, and that Attachment 6 to
Vendel’s Supplemental Affidavit is a ‘fabrication’.
See generally, Plaintiffs Supplemental Affidavit.
Discussion
Summary judgment “shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.”
Rule 56(c), Fed.R.Civ.P. The moving party has the
burden of proving that judgment on the pleadings is
appropriate. Once the moving party makes this
showing, however, the opposing party must respond
to the motion with “specific facts showing there is a
genuine issue for trial” Rule 56(e), Fed.R.Civ.P
Further, while the Federal Court is charged with
liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially
meritorious case, see Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972), the
requirement of liberal construction does not mean
that the Court can ignore a clear failure in the
pleadings to allege facts which set forth a Federal
A-58
claim, nor can the Court assume the existence of a
genuine issue of material fact where none exists.
Weller v. Dep’t of Social Services, 901 F.2d 387 (4th
Cir. 1990).
I
(Bivens Claim)
Since Plaintiff is a federal prisoner, his
constitutional claims are evaluated under Bivens v.
Six Unknown Named Agents of the Federal Bureau
of Narcotics, supra, which established a direct cause
of action under the Constitution of the United States
against federal officials for the violation of federal
constitutional rights. Bivens, 403 U.S. at 397. A
Bivens claim is analogous to a claim brought against
state officials under 42 U.S.C. § 1983; therefore,
caselaw involving § 1983 claims is applicable in
Bivens actions, and vice versa. See Farmer v.
Brennen, 511 U.S. 825 (1994); Bolin v. Story, 225
F.3d 1234, 1241-1242 (11th Cir. 2000); Campbell v.
Civil Air Patrol, 131 F.Supp.2d 1303, 1310, n.
81(M.D.Ala. 2001).
1) Medical Claim. With respect to Plaintiffs
medical claim, in order to survive summary
judgment and proceed with this constitutional claim
in this Court, Plaintiff must present evidence
sufficient to create a material issue of fact as to
whether any named Defendant was deliberately
indifferent to his serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Farmer, 511 U.S.
at 837; Sosebee v. Murphy, 797 F.2d 179 (4th Cir
1986); Wester v. Jones, 554 F.2d 1285 (4th Cir.
1977); Russell v. Sheffer, 528 F.2d 318 (4th Cir.
1975); Belcher v. Oliver, 898 F.2d 32, 34 (1990).
A-59
However, a careful review of the affidavits and other
exhibits presented to this Court shows that,
whatever Plaintiff may think about the level of care
he is receiving, he has failed to submit evidence
sufficient to show that his constitutional rights are
being violated.
Indeed, Plaintiff's medical file is actually quite
extensive, and although he is correct that he has
received recommendations for surgical care,
Defendants note that there is no indication in the
medical evidence that these recommendations were
based on any surgical necessity. Rather, the surgery
discussed was elective. While Plaintiff makes
general and conclusory claims as a lay person that
he should have the surgery he is requesting, he has
provided no medical evidence to support his claim
that any surgery is medically required at this time,
and the Court is not required to simply accept as
true general or conclusory claims and allegations
absent any factual or evidentiary support. See
Papasan v. Allain, 478 U.S. 265, 286 (1986)[Courts
need not assume the truth of legal conclusions
couched as factual allegations.]; Bender v. Suburban
Hospital. Inc., 159 F.3d 186 (4th Cir. 1988); Morgan
v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.
1987)(“Even though pro se litigants are held to less
stringent pleading standards than attorneys the
court is not required to ‘accept as true legal
conclusions or unwarranted factual inferences.”’).
Conversely, Dr. Vendel, a physician, attests in
his affidavit and supplemental affidavit that
Plaintiffs ventral hernia remains reducible and
controlled, and that continuing to treat both
A-60
Plaintiffs hernia and left arm _ condition
conservatively instead of with surgery in no way
places Plaintiff in any kind of harm. For purposes of
a constitutional claim, whether or not Plaintiff was
provided with the care he desires or has requested is
immaterial. Jackson v. Fair, 846 F.2d 811, 817 (1st
Cir. 1988) [the Constitution "does not guarantee to a
prisoner the treatment of his choice."]; see also
Brown v. Thompson, 868 F.Supp. 326, 329-330, n. 2
(S.D.Ga. 1994); Miltier v. Beorn, 896 F.2d 848, 851
(4th Cir. 1990) [A physician’s actions only rise to the
level of deliberate indifference when the treatment
provided is “so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be
intolerable to fundamental fairness.”]; Casey _v.
Lewis, 834 F.Supp. 1569, 1583 (D.Ariz. Apr. 5, 1993).
Further, the medical records provided to the
Court, in addition to detailing the frequent and
ongoing medical care and evaluations received by the
Plaintiff; also directly contradict many of the
statements Plaintiff makes in his affidavit. For
example, Plaintiff states that the general surgeon
indicated his hernia surgery needed to be done
within a six month time frame. However, the cited
entry from Dr. Vendel actually reads: “I have
discussed this case [with] the [general] surgeon. We
agreed that the surgery is not urgent, can be done
electively within a time frame of 6 mos.”. See
Amended Complaint, Exhibit (A)(9). This statement
does not constitute a requirement that any surgery
be done within six months, as Plaintiff would have
this Court believe, nor has Plaintiff offered any
evidence to show that this was required surgery
during the relevant time period.
Plaintiffs complaint that he was never
provided with a hernia belt is also contradicted by
the medical records. Vendel Supplemental Affidavit,
Attachment 3; see Morgan, 829 F.2d at 12 [court not
required to accept as true unwarranted factual
inferences]. While obtaining a belt for the Plaintiff
may have taken some time, even assuming there
was a delay in Plaintiffs receipt of a hernia belt, the
fact remains that the medical evidence before the
Court shows that Plaintiffs hernia remains
reducible, with no evidence having been presented
that Plaintiff has suffered any injury as a result of a
delay in receiving a hernia belt. Cf. Casey, 834
F.Supp. at 1583 [“[A] mere delay in medical care,
without more, is insufficient to state a claim against
prison officials for deliberate indifference.”).
Plaintiff also takes issue in his supplemental
affidavit with the Defendant’s contention that he has
refused surgery on several occasions, stating that he
has never refused surgery. Plaintiff also accuses Dr.
Vendel of falsely stating that he had refused surgery
in January 2004, noting that he was not even at
FCI-Edgefield in January 2004. However, Plaintiffs
medical records again directly contradict his
statements. While it is true Plaintiff was not at FCI-
Edgefield in January 2004, his medical records show
that he was evaluated at FCI-Springfield on January
5, 2004, with the medical record showing that
“{Plaintiff] was scheduled downtown for repair, but
the patient refused surgery and [was] transferred
back to the institution.” See Defendants’ Exhibit 3
(Transfer Summary dated January 5, 2004].
As for Plaintiffs complaints about his shoes,
while his medical record does show that a podiatrist
A-62
has recommended that he receive new shoes because
his old shoes had worn out, Dr. Vendel attests in his
affidavit that Plaintiff has not reported any
problems with his foot during sick call or chronic
care clinic appointments for approximately one year,
and that he does not believe Plaintiff needs the
continued use of custom orthopaedic shoes and is
fully capable of ambulating in regular footwear
without difficulty. The fact that two physicians may
dispute the necessity for Plaintiff to wear
orthopaedic shoes does not amount to evidence that
Plaintiffs constitutional rights are being violated, or
that any Defendant has shown a _ deliberate
indifference to Plaintiffs serious medical needs.
White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990)
(“If a plaintiffs disagreement with a _ doctor’s
professional judgment does not state a violation of
the Eighth Amendment, then certainly no claim is
stated when a doctor disagrees with the professional
judgment of another doctor.”]; cf. Buckner v.
Warden, No. 92-6228, 1993 WL 62065 at **2 (4th
Cir. Mar. 9, 1993) [“Regardless of whether there
might be another doctor who might agree with
[plaintiff] on this point, this is not a record on which
a claim for deliberate indifference by the state
officials is shown to any degree”], cert. denied, 510
U.S. 842 (1993).
In sum, even if the Court were to find that the
evidence presented was sufficient to create a genuine
issue of fact as to whether Dr. Vendel or any other
named Defendant acted inappropriately or with out
sufficient care in dealing with Plaintiffs medical
complaints, for the reasons stated such conduct
would not be sufficient to maintain a Bivens claim
for deliberate indifference to a serious medical need.
A-63
Rather, Plaintiff would have to pursue these claims
in tort under the Federal Tort Claims Act. Cf.
Estelle, 429 U.S. at 106 [“medial malpractice does
not become a constitutional violation merely because
the victim is a prisoner.”]. See Section II, infra.
Therefore, as there is no evidence before the Court to
show that during the relevant time period the
Defendants were deliberately indifferent to any
serious medical condition from which the Plaintiff
was suffering as that term is defined in the
applicable caselaw, this claim should be dismissed.
Estelle 429 U.S. at 105; Harris v. Thigpen, 941 F.2d
1495, 1505-1507 (11th Cir. 1991); see Levy v. State
of Ill. Dept. of Corrections, No. 96-4705, 1997 WL
112833 (N.D.Ill. March 11, 1997) [“A defendant acts
with deliberate indifference only if he or she ‘knows
of and disregards’ an excessive risk to inmate health
or safety.”], quoting Farmer, 511 U.S. at 837.
2) Retaliation Claim. With respect to
Plaintiffs retaliation claim, Plaintiff generally cites
to the disciplinary infractions he was charged with
and then argues they were only filed out of
retaliation for Plaintiff pursuing his claims.
However, Plaintiff has provided no _ evidence
whatsoever to support such a finding in this case.
Rather, he has provided only general and conclusory
allegations that the Defendants’ actions constituted
unlawful retaliation. This is not “evidence”
sufficient to survive summary judgment. See
Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996)
(per curiam) [speculative and conclusory allegations
cannot support retaliation claim]; Wright v. Vitall,
No. 91-7539, 1991 WL 127597 at**1 (4th Cir. July
16, 1991) [Retaliation claim based on mere
conclusory statements cannot withstand defendants’
A-64
summary judgment motion]; LaCroix v. Williams,
No. 97-0790, 2000 WL 1375737 at *4 (W.D.N.Y.
Sept. 21, 2000) [“Plaintiffs conclusory allegations
aside, there is simply nothing in the record to
support his version of the facts and plaintiffs claim
for retaliation fails”]; see Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274,
287 (1977) [in order to be actionable, an alleged
retaliatory act must violate some constitutional right
of an inmate or constitute punishment for the
exercise of a constitutional right]; Woods v. Edwards,
51 F.3d 577, 580-581 (5th Cir. 1995) [summary
judgment affirmed where inmate offered no evidence
other than his personal belief that the alleged
retaliatory actions were based on his exercise of his
rights].
Defendants correctly note that claims of
retaliation are generally treated with skepticism by
the Courts, because “[e]very act of discipline by
prison officials is by definition ‘retaliatory’ in the
sense that it responds directly to prisoner
misconduct.” Cochran v. Morris, 73 F.3d 1310, 1317
(4th Cir. 1996), (citing Adams v. Rice, 40 F.3d 72, 74
(4th Cir. 1994)). Here, Plaintiff complains about
disciplinary action taken against him as a result of
his own misconduct, and then generally ascribes
retaliatory motives to explain these disciplinary
charges. However, as noted, none of the exhibits
provided to the Court, either by the Defendants or by
the Plaintiff, constitute evidence to support
Plaintiff's claim that he -s being retaliated against.
The affidavit Plaintiff provided from
Dominique Green simply reiterates Plaintiffs
assertions that the charges for failure to follow
A-65
safety or sanitation regulations and for being
unsanitary or untidy were without merit. It is not
evidence that any named Defendant engaged in any
unlawful conduct. Inmate David Smith’s affidavit
also does not help the Plaintiff. Smith attests that,
after he and the Plaintiff (roommates) were charged
with being untidy and failing to keep quarters in
accordance with pasted standards, he [Smith] had
taken full responsibility for keeping the cell clean
and that the Plaintiff should therefore not have been
convicted of this charge. However, while it may have
been nobler for Smith to take the total blame for the
cell he shared with the Plaintiff being untidy, it
nevertheless remains a fact that both inmates
occupied that cell, and there is nothing in the
evidence before the Court to show that a conviction
of both cellmates on a charge that their cell was
unsanitary constituted retaliation against the
Plaintiff. Such general and conclusory claims of
retaliatory animus are simply not sufficient to
maintain a retaliation claim in a Bivens action. See
Harris v. Ostrout, 65 F. 3d 912, 916 (11th Cir.
1995)[case dismissed where Plaintiff produced
nothing beyond his own conclusory allegations
suggesting that prison official’s actions were
motivated by a retaliatory animus]; Adams, 40 F.3d
at 74-75, cert. denied 514 U. S. 1022 (1995);
Southmark Prime Plus, L.P. v. Faizone, 776 F.Supp.
888, 891 (D.Del. 1991); see Nasim v. Warden. Md.
House of Correction, 42 F.3d 1472, 1475 (4th Cir.
1995), reh’g 64 F.3d 951 (4th Cir. 1995), cert. denied,
516 U.S. 1177 (1996); see also Papasan, 478 U.S. at
286 [courts need not assume the truth of legal
conclusions couched as factual allegations]; Morgan,
829 F.2d at 12 [“even though pro se litigants are held
A-66
to less stringent pleading standards then attorneys,
the court is not required to ‘accept as true legal
conclusions or unwarranted factual inferences.”).
Therefore, this claim is without merit and should be
dismissed.
3) Job Assignment. Plaintiffs claim
concerning his job assignment is also without merit.
To the extent Plaintiff is arguing that his job
assignment is based on _ retaliation by the
Defendants, he has failed to set forth sufficient
evidence to proceed with that claim for the reasons
already discussed, supra. Otherwise, Plaintiff has
set forth no medical evidence to counter the evidence
submitted by the Defendants to show that he is
capable of performing prison jobs with the medical
restrictions of no prolonged standing and no lifting
over ten pounds, and that there is no medical reason
for Plaintiff to be placed on an_ indefinite
convalescent status or be permitted to be exempt
from a working assignment. Plaintiffs own opinion
that he should not have to work because he is not
physically able, without any supporting medical or
other evidence, is simply not evidence sufficient to
survive summary judgment.4 House v. New Castle
County, 824 F.Supp. 477, 485 (D.Md. 1993) [plaintiff
concluscry allegations insufficient to maintain
claim]. This claim should be dismissed.
4 However, even though Plaintiff has been
medically approved for work, Defendants are
cautioned that Plaintiff cannot be required to
perform work while on his job that is inconsistent
with his medical restrictions. Cf Jaladian v.
Hughes, No. 04-1304, 2006 WL 1629114 (E.D. Cal.
June 9, 2006).
A-67
II.
(Federal Tort Claim)
Plaintiff also asserts that he is presenting his
claims under the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 2671-2680. The FTCA waives sovereign
immunity and allows suits against the United States
for personal injuries caused by governmental
employees acting within the scope of their
employment.® Under this act a plaintiff may
recover monetary awards from the United States for
damages “caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope...of...employment.” 28 U.S.C.
§ 1346(b). Whether any government employee was
negligent is to be determined “in accordance with the
law of the place where the act or omission occurred.”
Id.
However, the FTCA waives the sovereign
immunity of the United States only in certain
situations, and in order to obtain relief under this
Act, litigants must strictly comply with the FTCA’s
requirements. See 28 U.S.C. § 2675; Johnson v.
Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999)
(“In order to state a claim under the FTCA, the
person attempting to assert it must comply with
several strictly construed prerequisites.”] United
States v. Kubrick, 444 U.S. 111, 117-118 (1979).
Among these requirements is that an administrative
claim must first be filed with the appropriate federal
5 Although the United States has not been
named as a party Defendant, Defendants do not seek
dismissal of Plaintiffs FTCA claim on that ground.
A-68
agency before commencement of a civil action in a
district court. See 28 U.S.C. § 2675; McNeil v.
United States, 508 U.S. 106, 113 (1993) [“The FTCA
bars claimants from bringing suit in federal court
until they have exhausted their administrative
remedies.”]. Defendants assert in their motion for
summary judgment that Plaintiff has filed no federal
tort claim dealing with the conditions of his
confinement at FCI-Edgefield. While Defendants
concede that Plaintiff has filed an administrative
claim, a review of that filing shows that it relates to
conditions of Plaintiffs confinement while he was
confined at the Federal Correctional Institution in
Springfield, Missouri, not at FCI Edgefield. See
Defendants’ Exhibit 10.
Plaintiff did not respond to this argument in
his memorandum or affidavits opposing summary
judgment, and has presented no evidence to show
that he has exhausted his administrative remedies
with respect to any tort claims at FCI-Edgefield.
Hence, as there is no evidence before the Court to
show that Plaintiff has filed an administrative claim
concerning the allegations set forth in his amended
Complaint, or to demonstrate that he has properly
exhausted his administrative remedies prior to filing
this lawsuit, his claims under the FTCA should be
dismissed, without prejudice.
Conclusion
Based on the foregoing, it is recommended
that the Defendants’ motion for summary judgment
be granted, and that this case be dismissed. To
the extent Plaintiff has asserted an FTCA claim,
that claim should be dismissed, without prejudice.
A-69
The parties are referred to the Notice Page
attached hereto.
Bristow Marchant
United States Magistrate Judge
Columbia, South Carolina
June 23, 2006
A-70
FILED: August 8, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 06-7381 (L)
(0:05-CV-02546-HFF)
WILLIAM EUGENE WEBB
Plaintiff - Appellant
V.
MATTHEW B. HAMIDULLAH, Warden; Z. R.
VENDELL, M.D., Medical Director; STEVE
LABIER, Unit Manager; CHARLES GRUBBS, Unit
Manager; UNITED STATES OF AMERICA
Defendants - Appellees
ORDER
The Court denies the petition for rehearing
and rehearing en banc. No poll was requested on the
petition for rehearing en banc.
Entered at the direction of the panel: Judge
Motz, Judge King, and Judge Gregory.
For the Court
/s/ Patricia S. Connor, Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.