United States District Court, District of Columbia
KAMAL K. PATEL, Plaintiff,
YVONNE PHILLIPS, et al., Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
KAMAL K. PATEL, Plaintiff, Pro se, BIG SPRING, TX.
For YVONNE PHILLIPS, Chief Medical Designator, WENDY POMEROY, UNITED STATES OF AMERICA, BUREAU OF PRISONS, HARLEY G. LAPPIN, Director- Bureau of Prisons, Defendants: Kenneth A. Adebonojo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
RICHARD W. ROBERTS, United States District Judge.
This matter is before the Court on Plaintiff's Motion for a Preliminary Injunction to Compel Mandatory Necessary Medical Care [ECF No. 17], Defendants' Motion to Dismiss [ECF No. 67], Plaintiff's Motion for a Continuance Under Fed.R.Civ.P. 56(f) to Enable Plaintiff to Conduct Discovery Prior to Responding to the Defendants' Arguments Concerning the Discretionary Function Exemption In Its Motion to Dismiss [ECF No. 77], Plaintiff's Motion to Strike Scandalous and Impertinent Materials from Defendants' Motion to Dismiss [ECF No. 81] and Plaintiff's Motion for an Order for the Marshals Service to Effect Proper Service Upon the Defendants in Compliance with the Federal Rules [ECF No. 82]. For the reasons discussed below, Plaintiff's Motion for an Order for the Marshals Service to Effect Proper Service Upon the Defendants in Compliance with the Federal Rules [ECF No. 82] will be granted, all the other motions will be denied, and Count One of the complaint will be transferred to the United States District Court for the Northern District of Texas.
Plaintiff, a federal prisoner, is serving his sentence in the custody of the Federal Bureau of Prisons (" BOP" ). See Compl. ¶ 1. He brings this action under the Federal Tort Claims Act (" FTCA" ), see 28 U.S.C. § 1346, against the United States and under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against three individuals: Harley Lappin, former Director of the BOP, Yvonne Phillips, former Medical Designator at the BOP's Office of Medical Designations and Transportation (" OMDT" ), and Wendy Pomeroy, the Medical Designations official who allegedly is responsible for plaintiff's transfer from the Federal Medical Center in Butner, North Carolina (" FMC Butner" ), to the Moshannon Valley Correctional Center (" MVCC" ) in Philipsburg,
Pennsylvania, in 2008. See Compl. ¶ ¶ 2-4.
Plaintiff's causes of action arise from this transfer from FMC Butner, where he was receiving medical treatment and therapy, to MVCC, a facility that he says was not equipped to address his medical needs. See Compl. at 2 (Introduction). The complaint alleges negligence (Count One), retaliatory transfer (Count Two), deliberate indifference to serious medical needs in violation of the Eighth Amendment (Count Three), and emotional distress (Count Four). See id. ¶ ¶ 76-83. He demands a declaratory judgment and injunctive relief against the BOP, and monetary damages against the United States. See Compl. ¶ ¶ 5-6, 77, 85, 87. In addition, he demands compensatory and punitive damages against the individual defendants in their individual capacities, and declaratory and injunctive relief against them in their official capacities. See id. ¶ ¶ 2-4, 80, 81, 83, 85.
A. Allegations of the Complaint
1. Plaintiff's Medical Conditions
a. Herniated Disc
Plaintiff was diagnosed with a herniated disc in his neck for which cervical traction was prescribed, " to be followed by surgery if the traction was unsuccessful." Id. ¶ 12. He did not receive the prescribed treatment, however, and instead " was transferred repeatedly between various BOP facilities," none of which could " provide the prescribed course of treatment" or complete a course of treatment before plaintiff's next transfer. Id. ¶ 13. " After years of such transfers and never fully completing the treatment," plaintiff allegedly has experienced " progressively worsening symptoms." Id.
The herniated discs in plaintiff's neck caused " atrophy, numbness, and loss of function." Id. ¶ 24. In August 2007, plaintiff underwent " surgery for disc replacement in his cervical spine," id., yet he " continued to experience further symptoms pertaining to other discs after the surgery," id. ¶ 25, the cause of which was " multiple disc protrusions," id. Although a referral was made " for further orthopedic evaluation," plaintiff " was transferred before treatment" could commence. Id. The transfer also interrupted physical therapy, id. ¶ 27, and he ceased to receive painkillers in the form of Lidocaine patches to alleviate the " chronic and severe pain" he continued to experience after surgery. Id. ¶ 28.
b. Ruptured Biceps Tendon
Plaintiff ruptured his biceps tendon " [i]n 2001, while incarcerated at FTC Oklahoma City." Patel v. United States, 398 F. App'x 22, 25 (5th Cir. 2010); see Compl. ¶ 21. An orthopedic surgeon deemed it a " chronic rupture," and " recommended an MRI to determine whether the rupture could be repaired surgically." Compl. ¶ 21. The MRI " confirmed the rupture," id., but further treatment was postponed
" for reasons not relevant here," id. ¶ 22, and " the prison doctor" turned his attention to plaintiff's " neck problems" instead, after which he was to " make a referral to [the orthopedic surgeon] for the biceps tendon." Id. Plaintiff was transferred before the referral could be made. Id. ¶ 23. Because of the transfer, the surgery allegedly " was delayed to the point where it was no longer possible to repair the ruptured tendon." Patel, 398 F. App'x at 25.
c. Ankle Ossicles and Bone Spurs
Plaintiff " underwent surgery for ankle ossicles and bone spurs," and after the procedure he experienced " complications resulting in the formation of a nerve mass" which in turn caused " numbness in the foot." Compl. ¶ 26. Treatment in the form of cortisone injections into the ankle nerve was unsuccessful. Id. Plaintiff was transferred before " scheduled . . . further evaluation and treatment" took place. Id.
2. Plaintiff's 2005 Lawsuit
According to plaintiff, his repeated transfers " between various BOP facilities [and] placement at prisons which could not provide the prescribed course of treatment" meant that he " never fully complet[ed] the treatment" he needed. Id. ¶ 13. He filed a lawsuit in the United States District Court for the Northern District of Texas " seeking court intervention." Id.; see Patel v. United States, No. 05-CV-083-A (N.D. Tex. filed Feb. 7, 2005). Following the court's ruling on non-dispositive motions filed by plaintiff, see Patel v. United States, No. 05-CV-083, 2006 WL 453241 (N.D. Tex. Feb. 24, 2006), plaintiff was transferred from the Federal Correctional Institution in Forrest City, Arkansas, to FMC Butner. Compl. ¶ 18.
3. Treatment at FMC Butner and Transfer to MVCC
Treatment for plaintiff's multiple medical conditions began in August 2006 upon his arrival at FMC Butner. Id. ¶ 20. The treatment included:
(a) Treatment and referrals to a specialist for multiple herniated discs and neuromuscular symptoms including numbness other than that for which he had surgery; (b) Treatment for the nerve mass and numbness arising from ankle surgery complications; (c) Deferred treatment for the ruptured biceps tendon pending the completion of the neck problems; (d) Physical therapy; and(e) Chronic pain treatment with Lidocaine patches.
Id. ¶ 30. Treatment ceased, however, upon plaintiff's transfer from FMC Butner to MVCC upon the conclusion of a disciplinary matter, see id. ¶ 29, which has been described as follows:
In 2008, while incarcerated at the [FMC] Butner . .., [plaintiff] was charged with possessing a cell phone in violation ...