IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
September 15, 2000
ANTHONY CASAPINI, PLAINTIFF,
M.C. MCDOWELL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Simandle, District Judge
Not for Publication
HONORABLE JEROME B. SIMANDLE
Anthony Casapini ("Plaintiff" or "Casapini") is a federal prisoner currently confined at FCI Fairton. On March 18, 1992, Plaintiff was convicted under 18 U.S.C. § 1716, mailing injurious articles, and 18 U.S.C. § 844(d), interstate transportation of an explosive, in the United States District Court, Northern District of New York, and was sentenced to twenty-five years. This case arose on September 13, 1999, when Plaintiff filed a complaint in this Court alleging that the Bureau of Prisons, through its agents Mark C. McDowell, D.D.S. ("McDowell") and Wendy Roal ("Roal"), was denying his right to prophylactic dental care in violation of the Eighth Amendment and his civil rights under 42 U.S.C. § 1983. *fn1 In his complaint, Plaintiff demands relief in the form of a preliminary injunction mandating prophylactic dental examinations every six months, revision of the Health Service Manual, and $20,000.00 in punitive and compensatory damages, plus costs. Presently before this Court is the motion of Defendants McDowell and Roal for summary judgment of Plaintiff's Bivens and Eighth Amendment claims. On the grounds discussed below, this Court will grant the summary judgment motion with respect to both defendants and dismiss Plaintiff's suit.
Since his initial incarceration at FCI McKean on April 13, 1992, Mr. Casapini has received dental care fifteen times. Prior to his March 29, 1996 transfer from FCI McKean to FCI Fairton, Plaintiff received five prophylactic examinations (on February 11, 1993, May 9, 1994, December 24, 1994, March 2, 1995, and July 21, 1995) and two treatments for root hypersensitivity (on December 31, 1992 and March 8, 1993). Mr. Casapini's dental records from FCI Fairton reveal that he was seen a total of eight times between July, 1996 and November, 1999. Five of these visits (on July 15, 1996, March 10, 1997, March 13, 1997, July 15, 1997, and July 15, 1999) were for routine examinations and care, two visits (on November 12, 1998 and August 9, 1999) were emergency/sick call visits for pain and bleeding related to a partially erupted wisdom tooth, and the last visit (on November 29, 1999) was a consultation with an oral surgeon for wisdom tooth removal, which Mr. Casapini ultimately declined to undergo. (See Def. Br., Ex. 4, Casapini 11/30/99 Letter).
In his complaint, Plaintiff names only McDowell, the Chief Dental Officer at FCI Fairton, and Roal, the Administrator of the National Inmate Appeals in Washington, D.C. As Chief Dental Officer, Dr. McDowell is responsible for the dental care provided to all inmates at FCI Fairton in accordance with Bureau of Prisons Program Statement 6000.05, Health Services Manual, Chapter IV, Dental Services. The Federal Bureau of Prisons Health Services Manual requires that urgent dental care available to inmates on a 24-hour basis. (Health Service Manual, 9/15/96, Ch. 4 at 13, 27). Routine dental care is also made available to inmates "[a]s resources of staff, time, and materials are available." Id. at 27. Access to such care is controlled and regulated by use of a treatment list, monitored by dental care staff members. Id. In order to be placed on the treatment list for routine dental care, inmates must submit a written request to the dental staff. The Manual expressly provides that "[i]nmates on the routine treatment list should be called according to their chronological entry date unless there are health or administrative reasons to establish other priorities." Id. at 14.
Beginning in 1996, Plaintiff routinely filed Administrative Remedy Requests with the Warden and the Regional Director the Bureau of Prisons, all of which were denied. (See Def. Br., Ex. 5, Roberta Truman Declaration). Plaintiff requested that he be provided with dental check-ups and cleanings every six months, in accordance with the recommendations of the American Dental Association, and that the Bureau of Prison's Health Services Manual be revised to require all prisoners to receive dental check-ups and cleanings every six months. Plaintiff's final Administrative Remedy Appeal, dated January 23, 1999, was denied by Roal, *fn2 the Administrator of the National Inmate Appeals in Washington, D.C. In her denial of Plaintiff's appeal, Roal pointed out that the American Dental Association's recommendation for semiannual dental cleanings was a recommendation only, not a mandate that would require the Bureau of Prisons to alter its dental treatment policy.
On October 19, 1999, this Court issued an order directing the United States Marshal to serve a summons and copies of plaintiff's complaint on Defendants Roal and McDowell. On November 15, 1999, Plaintiff received a Process Receipt and Return Form from the United States Marshals Service indicating that a summons and complaint were mailed via certified mail to Roal on November 3, 1999, and that a signed postal return receipt, dated November 15, 1999, was received. The Marshal did not certify that he personally served Roal or that he had legal evidence of such service, only that he had sent the complaint via certified mail and received the signed receipt card. (See Pla. Traverse., Ex. 3(b)). No waiver of service was received from Ms. Roal. In a signed declaration dated April 13, 2000, Ms. Roal stated that although she had been advised of this litigation, she had never received a copy of the summons and complaint, and that she does not reside, conduct business, or own real property in the State of New Jersey. On November 29, 1999, plaintiff received a signed waiver of service from Defendant Mark. C. McDowell, which was corroborated by a Process Receipt and Return form from the United States Marshals Service.
A. Summary Judgment Standard
A court may grant summary judgment when the materials of record "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." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods. , 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However,
the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial. Celotex, 477 U.S. at 322-23.
In such situations, "the burden on the moving party may be discharged by `showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-30 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").
The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed. R. Civ. P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non- movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
B. Defendant Wendy Roal:
Defendants argue that Wendy Roal should be dismissed and summary judgment granted with respect to her because she was not properly served with a copy of Plaintiff's summons and complaint. Unlike Defendant McDowell, discussed below in Section C, Defendant Roal never signed a waiver of service, and furthermore, signed a written declaration that she never received a copy of the summons or complaint.
1. Service of the Summons and Complaint
Defendants argue that summary judgment is proper because Wendy Roal was never properly served and never received a copy of plaintiff's summons and complaint. Plaintiff asserts that the summons and complaint were served on Ms. Roal via certified mail, return receipt requested, at the Federal Bureau of Prisons Central Office in Washington, D.C. Plaintiff has submitted a copy of a postal return receipt with an illegible signature and a process receipt and return notice from the United States Marshals Service as proof of service. (See Pla. Traverse, Ex. 3(a)-(b)).Rule 4(d) of the Federal Rules of Civil Procedure allows for a plaintiff to serve the summons and complaint on defendants by mail provided defendants return a waiver of formal service certification. *fn3 Rule 4(e) of the Federal Rules of Civil Procedure allows for service upon individuals from whom waivers are not obtained and filed to be effected in any judicial district of the United States as follows: (1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. Pro. 4(e).
As an individual within a judicial district of the United States (the District of Columbia), Ms. Roal is a defendant who is subject to service pursuant to Rule 4(e), and therefore plaintiff could have properly served her by mail and requested a waiver of service. There are, however, several problems with the Plaintiff's attempt to serve Roal by such a method. First, there is no evidence that plaintiff provided Defendant Roal with a notice of the suit or a waiver of service request when he mailed a copy of the summons and complaint via certified mail on November 3, 1999. (See Def. Traverse, Ex. 3(b)). The Process Receipt reveals that on that date the United States Marshals Service "mailed S&C, via certified mail #Z 694 133-448." Id. This description of the package mailed is different from the one written on the Process Receipt for defendant McDowell, which revealed that the same Marshal "mailed notice of suit, waiver of summons, 1 copy of complaint to FCI Fairton legal department supervisor" on November 3, 1999. (See McDowell Process Receipt 11/29/99). These facts, in addition to the fact that only Defendant McDowell returned a waiver of service, indicate that plaintiff failed to comply with the formal waiver of service protocol detailed in Rule 4(d)(2) when attempting to serve Roal.
Second, plaintiff's claim that service was properly effectuated, or properly waived, when someone at Defendant Roal's office signed the certified mail return receipt is incorrect. Execution of a certified mail receipt cannot serve as a substitute for a proper waiver of service. O'Keefe v. St. Lawrence & Atl. R.R. Co., 167 F.R.D. 30, 32 (D. Vt. 1996); see Friedman v. Estate of Presser, 929 F.2d 1151, 1155 (6th Cir. 1991)(citing Combs v. Nick Garin Trucking, 825 F.2d 437 (D.C. Cir. 1987)). Although Defendant Roal admits that she is aware of this litigation, plaintiff has presented no substantial evidence showing that she was properly served or that she ever even received a copy of plaintiff's summons and complaint. It is well established that federal service by mail fails unless the defendant returns an acknowledgment form. Stranahan Gear Co., Inc. v. NL Indus., Inc., 800 F.2d 53, 57-58 (3rd Cir. 1986); Friedman, 929 F2d at 1155; Worrell v. B.F. Goodrich, Co., 845 F.2d 840, 841 (9th Cir. 1988). Because Plaintiff made no attempt to effectuate service according to the New Jersey State rules of service, pursuant to Fed. R. Civ. Pro. 4(e)(1), or by personal service pursuant to Fed. R. Civ. Pro. 4(e)(2), this Court finds that plaintiff's attempted service by mail of Defendant Roal cannot succeed.
In addition to these problems, defendant Roal offers a signed declaration that she never received a copy of the summons and complaint, which raises due process considerations. The service rules and personal jurisdiction requirements are designed to protect the defendant's individual liberty interest arising from the due process clause. Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 702, 102 S. Ct. 2099, 2104, 72 L. Ed.2d 492, 501 (1982); James v. City of Jersey City, 187 F.R.D. 512, 516-17 (D.N.J. 1999). In James, the district court found that a technical defect in service, similar to the one in this case, did not prejudice defendant D'Agosta and therefore satisfied due process. James, 187 F.R.D. at 517. There is, however, an important difference between the defendant in James and Defendant Roal. Defendant D'Agosta in James, unlike Roal, admitted that he received the summons and complaint, albeit by improper service of process. This fact was crucial in the Court's decision to find no due process violation.
Because plaintiff failed to send the proper notice of action and waiver of service form to Ms. Roal, because no waiver of service form was ever returned to plaintiff from Ms. Roal, and because it appears that Ms. Roal never actually received a copy of the summons and complaint in this action, this Court finds that Ms. Roal was never properly served with a summons and complaint by Plaintiff and should be dismissed from this suit.
2. Bivens and Eighth Amendment Claims
Moreover, even if Ms. Roal had been properly served with process in this suit, she would still be entitled to summary judgment because she has violated no Eighth Amendment Right of Casapini. The Supreme Court has held that actions against federal officials may be brought directly under the Constitution for violations of the Eighth Amendment. Bivens v. Six Unknown Named Agents of the Federal Bureau of Investigation, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); see McCarthy v. Madigan, 503 U.S. 140, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992)(discussing Eighth Amendment suits under Bivens).
Insufficient or improper medical treatment can "constitute the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). In order "[t]o recover for denial of medical treatment, the prisoner must prove: 1) the prisoner suffered from a serious medical condition; and 2) the prison officials were `deliberately indifferent' to the prisoner's medical needs." Id. As discussed in greater detail below regarding Plaintiff's claim against Defendant McDowell, this court finds that plaintiff suffered from no serious medical condition and that there was no deliberate indifference by prison officials.
Because this Court finds that Ms. Roal was not properly served and, moreover, because Ms. Roal has violated no Eighth Amendment Right of Casapini, it is proper to dismiss her from this action. Even after extending all favorable inferences to the non-moving plaintiff, Defendant's motion for summary judgment with respect to Wendy Roal must be granted as a matter of law because Plaintiff has not presented evidence to show that there is a genuine issue to any material fact regarding claims left to be decided in this case.
C. Defendant Mark C. McDowell
With respect to Defendant Mark McDowell, this Court must decide whether any genuine issues of material fact exist as to the merits of Plaintiff's 42 U.S.C. § 1983 claims arising under the Eighth Amendment and also whether Defendant McDowell is entitled to judgment as a matter of law on the ground of qualified immunity. See Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). All ambiguities and reasonable inferences must be resolved in favor of the non-moving plaintiff. See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
1. Eighth Amendment and Bivens Claims
Plaintiff has alleged that, by failing to provide him with routine dental examinations and cleanings every six months, defendants acted under the color of state law to deprive him of his Eighth Amendment right to be free of cruel and unusual punishment, and thus violated 42 U.S.C. § 1983. As noted earlier, Section 1983 does not apply to this case, because § 1983 redresses conduct by persons acting under color of state law who deny persons of rights guaranteed by the federal constitution and laws. Because Plaintiff is a federal prisoner who has alleged that a federal prison dental officer has deprived him of adequate medical care, this complaint does not concern itself with a state action. This Court, rather than dismissing the complaint outright, will instead deem this claim as one alleging depravation of a constitutional right by a federal agent or employee, for which the judicially created remedy of Bivens v. Six Unnamed Federal Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), could be available. Bivens has been extended to actions regarding conditions of federal confinement in numerous cases, including Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). Under the Bivens analysis, therefore, we examine whether Plaintiff's claim of constitutionally inadequate medical care survives defendant's motion for summary judgment.
To properly state a claim under Bivens for depravation of medical treatment in violation of the Eighth Amendment, a plaintiff must show that the defendant acted with "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Taylor v. Plousis, 101 F. Supp. 2d 255, 262 (D.N.J. 2000). Construing the facts in the light most favorable to the non-moving party, this Court finds that Plaintiff raises no genuine issues of material fact concerning his serious medical need for dental examinations and cleanings every six months or defendant's deliberate indifference thereto.
a. Serious Medical Need
The Third Circuit has defined a serious medical need as one that "has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195 (1988). A medical need could also be deemed serious when a delay in treatment would result in the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 103.
Here, plaintiff claims that he is being denied necessary prophylactic dental treatment and, as a result, he is suffering from a receding gumline, bleeding gums, pain, and mental anguish associated with the potential future loss of his teeth. (See Pl. Compl. at 5). Plaintiff has received dental care fifteen times since his incarceration in 1992. A review of plaintiff's dental records from FCI Fairton and FCI McKean reveals that plaintiff's teeth and gums received regular treatment and care and that minor problems such as gum sensitivity, minimal bleeding and cavities were timely and appropriately treated. Furthermore, after complaining of wisdom tooth pain and being seen on an emergency basis by an oral surgeon, plaintiff opted not to have his wisdom teeth removed, and advised defendant McDowell that he declined the extraction despite the fact that "it is more likely that I will in fact have a problem later in life," and added that "I am hoping for the long shot scenario of no problem at all, or at the worst, if the tooth became [sic] infected, that I will not have serious complications." (Def. Motion, Ex. 4, 11/30/99 Casapini Letter). Additionally, a review of Plaintiff's Administrative Remedy Appeals reveals that plaintiff names no specific medical need or problem other than a desire to have regular dental examinations and cleanings every six months.
The mere fact that plaintiff may have had to wait more than six months for a dental cleaning, particularly when he was having no specific and serious dental problem, cannot be seen as a serious medical need. No reasonable jury could find that plaintiff was refused treatment for a condition that obviously required a doctor's attention or that any delay in treatment he received resulted in the unnecessary and wanton infliction of pain. On these facts, this Court finds that Plaintiff was not suffering from a sufficiently serious condition as defined by this Circuit.
b. Deliberate Indifference
To establish deliberate indifference, plaintiff must demonstrate that the official knew of and disregarded plaintiff's serious medical needs. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)(requiring a level of culpability between the extremes of mere negligence and actual malice); Rode v. Dellarciprete, 845 F.2d 1195 (3rd Cir. 1988)(holding that defendant must have some type of personal involvement in the incidents alleged to have violated plaintiff's rights). Essentially, "plaintiff must establish that each defendant knew of and disregarded an excessive risk to inmate safety." Taylor, 101 F. Supp. 2d at 263 (citing Farmer, 511 U.S. at 537, 114 S. Ct. at 1970).
Plaintiff has produced dental records which show that he did not receive dental examinations and cleanings every six months. The same records also reveal that plaintiff received treatment on fifteen separate occasions during a seven year period and that Defendant McDowell appropriately responded to patient complaints by recommending better oral care and usage of Sensodine toothpaste, by filling a cavity, and by arranging a consultation with an oral surgeon after discovering a potential problem with plaintiff's wisdom teeth.
Based on the evidence presented by Plaintiff, no reasonable jury could find that Defendant McDowell was deliberately indifferent to plaintiff's serious medical needs. The moving party has met their burden of showing that no genuine issue of material fact exists to be decided with respect to Defendant McDowell, and therefore this Court must grant the summary judgment motion in his favor as a matter of law.
2. Qualified Immunity
Defendants additionally argue that McDowell is entitled to a dismissal based on qualified immunity. A defendant will enjoy qualified immunity if his conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), and is entitled to summary judgment if it was objectively reasonable for the defendant to believe that his conduct did not violate an established right. Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000). As discussed above, plaintiff's claims do not demonstrate that Defendant McDowell's conduct violated an established constitutional or federally protected right, and Defendant McDowell would therefore also be dismissed from the suit as immune.
For the reasons stated above, the Defendants' motion for summary judgment is granted with respect to Defendants Roal and McDowell, and, because no other Defendants are named, Plaintiff's suit is dismissed.
JEROME B. SIMANDLE U.S. District Judge
This matter having come before the court upon the motion of defendants M.C. McDowell and Wendy Roal for Summary Judgment; and this Court having considered the parties' submissions; and for the reasons expressed in the Opinion of today's date;
IT IS this 15th day of September, 2000 hereby
ORDERED that defendants' motion for summary judgment be, and hereby is, GRANTED, and Plaintiff's claim is dismissed with prejudice.
JEROME B. SIMANDLE U.S. District Judge