Patterson v. Potope, 4:11-cv-497

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
PartiesDAVID PATTERSON, Plaintiff v. J. POTOPE, et al., Defendants
Docket NumberNo. 4:11-cv-497,4:11-cv-497
Decision Date28 March 2013

J. POTOPE, et al., Defendants

No. 4:11-cv-497


Date: March 28, 2013

(Judge Nealon)


On March 16, 2011, Plaintiff, David Patterson, an inmate formerly confined1 in the Allenwood United States Penitentiary ("USP-Allenwood") in White Deer, Pennsylvania, filed the above-captioned action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)2 , alleging that Defendants were deliberately indifferent to a pre-existing medical condition he suffered regarding his foot and violated his rights under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. (Doc. 1). On March 12, 2012, with permission of this Court, Plaintiff filed an amended complaint adding a claim under the Federal Tort Claims Act ("FTCA"). (Doc. 49). Presently pending is Defendants' motion to dismiss and for summary judgment. (Doc. 57). For the reasons set forth below, the motion will be granted.


The original complaint named the following Defendants: James Potope, Assistant Health Services Administrator; Julie A. Nicklin, Associate Warden; Jay K. Miller, Medical Doctor; Jennifer Holtzapple, Charles P. Craig, and Jody Bennett-Meehan, Physician's Assistants; Bruce

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Buschman, Medical Officer; Harley Lappin, Former Bureau of Prisons Director; Elizabete M. Santos, Medical Doctor; and the United States of America. (Doc. 1). Plaintiff alleged that Defendants refused to provide him with proper treatment and recommended surgery for a pre-existing foot injury. (Id. at pp. 3-17). He claimed violations of the ADA and Eighth Amendment. (Id.). Specifically, Plaintiff alleged the deliberate indifference of Defendant Buschman by failing to intervene in the treatment provided by the other medical defendants 'in the face of resulting pain and risk of permanent injury' and of Defendants Potope, Holtzapple, Bennett-Meehan, Craig, and Buschman by depriving him of an examination by an orthopedic surgeon. (Id. at pp. 17-18). Plaintiff complained that his job assignment in the Food Services department amounted to cruel and unusual punishment and violated the ADA because his medical condition should have precluded him from working in such conditions and because he was denied safety boots. (Id. at pp. 18-20). The original complaint claimed that Plaintiff was retaliated against, for filing a grievance regarding his injury while on his job assignment, by being fired from his job instead of being provided a safer work environment. (Id. at pp. 21-23). Plaintiff also alleged that he was issued retaliatory incident reports, which were later thrown out, and was given other inappropriate job assignments for filing grievance complaints about his medical care. (Id.).

On August 18, 2011, Plaintiff filed a motion for leave to amend his complaint to raise an FTC A claim. (Doc. 21). On September 6, 2011, Defendants filed a motion to dismiss and motion for summary judgment. (Doc. 23). Plaintiff filed a motion to supplement his complaint on November 3, 2011. (Doc. 39). On February 24, 2012, this Court conditionally granted Plaintiff's motions and directed him to file an amended complaint. (Doc. 47). On March 12,

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2012, Plaintiff filed an amended complaint. (Doc. 49). Defendants' first motion to dismiss and for summary judgment was thereafter dismissed as moot. (Doc. 51).

The amended complaint renames the original Defendants and adds two (2) parties: the United States Public Health Service Physicians ("PHSP"), a corporation contracted with the Department of Corrections to provide medical care to inmates, and James Schaffer, Assistant Food Services Administrator. (Doc. 49). First, Plaintiff alleges deliberate indifference to his medical needs by Defendants Buschman and Potope for refusing to allow him to see a specialist even though the treatment he had been receiving for two (2) years was inadequate. (Doc. 49, pp. 31-36). Plaintiff alleges that Defendants insisted that he wear a leg brace despite the fact that it had no benefit and only increased his pain. (Id.). Plaintiff alleges that Defendant Craig concealed prior consultations with orthopedic surgeons. (Id. at p. 36). The amended complaint alleges that PHSP has a policy of denying surgical treatment if it is expensive. (Id. at p. 32).

Second, the amended complaint raises a negligence claim. (Doc. 49, p. 37). Plaintiff alleges that Defendant United States has a policy at USP-Allenwood requiring Food Services workers to wear safety-toed shoes unless an inmate has medically approved soft shoes. (Id.). Plaintiff alleges that Defendant PHSP wrongfully cleared Plaintiff for Food Services work without clearance from the chief medical officer. (Id.). The amended complaint alleges that Defendants United States and Schaffer, along with two other non-defendant kitchen supervisors3 ,

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failed to protect Plaintiff by allowing him to work without medical soft shoes which resulted in injury. (Id. at pp. 37-38).

Repeating many of his deliberate indifference allegations, Plaintiff claims that Defendant PHSP and the URC Committee4 were negligent by failing to provide proper medical care and/or failing to correct harmful treatment. (Doc. 49, p. 38). Plaintiff claims that the negligence of Defendant PHSP amounted to medical malpractice and the only remedy against it is through the FTCA. (Id. at p. 39). The amended complaint alleges that Defendant Buschman should not have been making treatment decisions requiring a specialist's attention. (Id.). Plaintiff asks the Court to allow the recommendation of orthopedic surgeon Dr. Ball to act as a Certificate of Merit ("COM") because Plaintiff's confinement precludes him from obtaining a COM from an outside doctor. (Id. at pp. 39-40).

Next, Plaintiff claims that in retaliation for filing a grievance for the injury he suffered while working in the kitchen, he was fired from this job. (Doc. 49, pp. 40-41) (alleging that, instead, the unsafe conditions should have been corrected). Liberally construed, the amended complaint seeks to hold Defendants Schaffer, Potope, and Craig liable for this conduct. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se complaints should be liberally construed); see also (Doc. 70, pp. 4-5). After Plaintiff filed this grievance, and other grievances for improper medical care, Defendant Potope allegedly threatened Plaintiff and filed a false incident report against him, which was dismissed. (Id. at p. 42). The amended complaint alleges that Defendant Holtzapple retaliated by "cussing out" Plaintiff and telling Plaintiff he could

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suffer until he gets out of prison. (Id.). Plaintiff alleges that the prison's refusal, on behalf of Defendant United States, to protect him resulted in systematic retaliation in violation of the First Amendment. (Id. at p. 43).

Lastly, the amended complaint alleges a claim for breach of duty to protect by Defendants Buschman, Potope, and Craig based on the same conduct giving rise to Plaintiff's deliberate indifference claim. (Doc. 49, p. 43). Plaintiff alleges that Defendant PHSP and the URC Committee breached their duty to protect by denying him access to a physician capable of properly diagnosing and treating his condition. (Id. at p. 44). Plaintiff claims that Defendant Schaffer failed in his duty to protect by not enforcing prison policy regarding safety shoes in the kitchen. (Id.).

Plaintiff requests declaratory and injunctive relief, as well as compensatory damages. (Doc. 49, p. 46).

On May 29, 2012, Defendants filed a motion to dismiss and for summary judgment. (Doc. 57). On June 21, 2012, Defendants filed a brief in support of their motion and a statement of facts. (Docs. 66-67). Defendants argue: (1) Defendants Miller, Santos, Nicklin, Lappin, Holtzapple, Craig, Bennett-Meehan, and Schaffer are entitled to sovereign immunity to the extent they are sued in their official capacities; (2) Plaintiff failed to exhaust his retaliation claim against Defendant Potope; (3) Defendant Buschman was not deliberately indifferent to Plaintiff's serious medical needs; (4) Defendants Bennett-Meehan and Craig are entitled to statutory immunity; (5) Plaintiff's retaliation claim against Defendant Potope fails to state a claim upon which relief may be granted; (6) Defendants are entitled to qualified immunity; (7) Plaintiff failed to exhaust his administrative tort remedies against the United States; and (8) Plaintiff did not file the requisite

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COM. (Doc. 67, pp. 10-11). Plaintiff filed a brief in opposition on July 2, 2012. (Doc. 70). A reply brief was filed by Defendants on July 16, 2012. (Doc. 74).

Standards of Review

In rendering a decision on a motion to dismiss, a court should not inquire "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The court must accept as true the factual allegations in the complaint and draw all reasonable inferences from them in the light most favorable to the plaintiff. Innis v. Wilson, 2009 U.S. App. LEXIS 12424, *4-5 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515...

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