Bransgaard v. United States Bureau of Prisons Health Serv. Staff

• Decision Date: 27 August 2012
• Docket Number: NO. 5:11-CT-3122-FL,5:11-CT-3122-FL
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: TROY ALLEN BRANSGAARD, Plaintiff, v. THE UNITED STATES BUREAU OF PRISONS HEALTH SERVICE STAFF; TANESHA NOBLES MCCULLEY; ALICE HOPPER; DR. JAMES S. WILSON; AND THE UNITED STATES, Defendants.

TROY ALLEN BRANSGAARD, Plaintiff, v. THE UNITED STATES BUREAU OF PRISONS HEALTH SERVICE STAFF; TANESHA NOBLES MCCULLEY;¹ ALICE HOPPER;² DR. JAMES S. WILSON; AND THE UNITED STATES, Defendants.

NO. 5:11-CT-3122-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

Dated: August 27, 2012

ORDER

The matter comes before the court on the motion to dismiss (DE # 17) pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendant Dr. James S. Wilson, to which plaintiff responded. Also before the court is the motion to dismiss, or in the alternative, motion for summary judgment³ (DE # 33) filed by defendants TaNesha Nobles McCulley ("McCulley"), Alice Hopper ("Hopper"), the United States Bureau of Prisons health service staff ("BOP Health Service Staff"), and the United States of America (the "United States"), to which plaintiff did not respond. In thisposture, the matters are ripe for adjudication. For the foregoing reasons, the court grants defendants' respective motions.

STATEMENT OF THE CASE

On June 1, 2011, plaintiff, a federal inmate, filed this action in the United States District Court for the Middle District of North Carolina pursuant to the Federal Torts Claim Act ("FTCA"), 28 U.S.C. § 2672, et seq., pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and pursuant to the Freedom of Information Act ("FOIA") against defendants. The action was transferred to this court on June 30, 2011.

On July 12, 2011, Magistrate Judge William A. Webb entered an order of deficiency informing plaintiff that his action was not filed on the proper form, that he provided an insufficient number of copies, and that he failed to provide an address for the defendants. In response, plaintiff filed a motion to amend his complaint and provided his complaint on the proper form. In his amended complaint, plaintiff alleges defendants acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. Plaintiff also alleges, pursuant to the FTCA, medical malpractice, negligent placement in the federal correctional institution at Butner's Special Housing Unit ("SHU"), and negligent sanction with the loss of good-time credit. Finally, plaintiff alleges a FOIA claim for denial of access to his medical records. The court allowed plaintiff to proceed with his amended complaint.

On November 22, 2011, Wilson filed a motion to dismiss, arguing that plaintiff failed to state a claim upon which relief may be granted, and the matter was fully briefed. On February 10, 2012, the remaining defendants filed their motion for summary judgment arguing that the court lacks subject matter jurisdiction over several of plaintiff's FTCA claims because plaintiff failed to exhausthis administrative remedies. McCulley and Hopper argue that plaintiff's remaining FTCA claims should be dismissed for failure to state a claim upon which relief may be granted. These defendants also argue that plaintiff's Bivens claims should be dismissed because they are entitled to absolute immunity. Finally, McCulley and Hopper argue that plaintiff's FOIA claim regarding his medical records should be dismissed for failure to state a claim upon which relief may be granted. Although he was notified of the motion for summary judgment, plaintiff did not file a response.

STATEMENT OF FACTS

The facts construed in the light most favorable to plaintiff are as follows:

On or about the month of July 2008, Plaintiff was seen by Health Services Staff (Mrs. Nobles, Mrs. Priest), for complications with an injury that Plaintiff acquired pre-incarceration. Plaintiff was receiving an I.V. drip medication and had been bed ridden for approximately fifteen months, which led to his appointment by the Physical Therapy Staff, (Mrs. Nobles, Mrs. Priest). During the appointment Mrs. Priest attempted to stretch Plaintiff's back muscles by pushing his legs (while bent at the knees) into his abdomen. During this process, Plaintiff felt a strong pop in his lower abdominal area [] immediately began experiencing severe pain. Note-the Plaintiff was in the Federal Medical Center area of the institution due to prior extensive surgeries to his abdominal area due to pre-incarcerated injuries. After the incident with Physical Therapy, over a period of the next few months, the injury to the abdomen became more infection: and soon began to tear and swell to the point of fecal matter was leaking constantly from the plaintiff's abdomen. At this point, Plaintiff began requesting that the bandage (sic) often as needed and medical staff would only agree to change the bandage twice per day even though the bandage was saturated with fecal matter to the point of soaking through the Plaintiff's shirt. At this point, Medical Staff informed Plaintiff that he would have to begin changing the bandage himself. Plaintiff was never given an opportunity to eat in a designated area of the building that would have been appropriate to his needs because of sanitation. He was having to eat in the dining area where all other Inmates were eating.

Plaintiff's abdomen would leak fecal matter constantly, causing an extreme odor, therefore creating an immediate problem with those that where attempting to eat around him.

Am. Compl. pp. 3, 4.

Plaintiff alleges that he was not provided the appropriate medical documentation to proceed with his claim and that he requested the information pursuant to FOIA. Plaintiff also alleges that when he became irritated about his condition, he was taken to the SHU, lost good-time credit, and lost other privileges. Finally, plaintiff alleges that he sought assistance from the mental health services department and "has been denied one and one services that exceed more than one month." Am. Compl. p. 4.

DISCUSSION

A. Wilson's Motion to Dismiss

1. Standard of Review

A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is stated if the complaint contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the [petitioner]," but does not consider "legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citationsomitted). In other words, this plausibility standard requires a petitioner to articulate facts, that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557).

2. Analysis

a. Bivens Claim

Plaintiff alleges Wilson acted with deliberate indifference to his serious medical needs. In order to establish a claim under the Eighth Amendment, a plaintiff must satisfy a two-pronged test consisting of an objective prong and a subjective prong. Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). To satisfy the objective prong, an inmate must show that "the deprivation of [a] basic human need was objectively sufficiently serious." Id. (alteration in original) (emphasis removed) (quotations omitted).

Assuming without deciding that plaintiff is able to satisfy the objective prong of the Eighth Amendment test, the court considers the second prong of the Eighth Amendment test-whether Wilson acted with deliberate indifference. "Deliberate indifference entails something more than mere negligence, . . . [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." See Farmer v. Brennan, 511 U.S. 825, 835 (1994). It requires that a prison official actually know of and disregard an objectively serious condition, medical need, or risk of harm. Id. at 837; Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995). A disagreement between an inmate and a physician regarding the appropriate form of treatment does not state a claim for deliberate indifference. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). Likewise, mere negligence or malpractice in diagnosis or treatment does not statea constitutional claim. Estelle , 429 U.S. 97, 105-106 (1976); Johnson, 145 F.3d at 168; Sosebee v. Murphy, 797 F.2d 179, 181-82 (4th Cir. 1986); Wester v. Jones, 554 F.2d 1285, 1286 (4th Cir. 1977).

Wilson argues that plaintiff failed to state an Eighth Amendment claim because the only allegations plaintiff made against him was identifying him as a surgeon at Durham Regional Hospital. In response, plaintiff makes the conclusory allegation that "all of the parties listed in the complaint, to [his] belief are responsible in their individual and professional capacities for being deliberately indifferent toward [his] need for medical care for a severe medical issue." Pl.'s Resp. p. 1. Plaintiff also states that Wilson "caused the current serious medical condition and as a result [he] has severe scarring and a protruding fistula that drains fecal matter constantly, which a fecal collection bag cannot be attached because of extreme scarring." Id. p. 3.

From plaintiff's allegations, it appears that he is dissatisfied with his abdominal surgery performed by Wilson. Although plaintiff alleges that Wilson's efforts in treating his medical needs were not effective, the fact that Wilson's treatment of plaintiff was not effective...