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Michael J. Malouf v. Dr. Turner

August 31, 2011


The opinion of the court was delivered by: Simandle, District Judge:



This matter comes before the Court on the motion to dismiss for lack of jurisdiction and for summary judgment by Defendants United States of America, Bureau of Prisons, Jeff Grondolsky, Steven Spaulding, Dr. Nicoletta Turner-Foster, and Dr. Abigail Lopez de Lasalle (collectively, "Defendants"). [Docket Item 53.] Plaintiff, a federal prisoner formerly incarcerated at FCI Fort Dix, alleges in his Amended Complaint that Defendants violated his Eighth Amendment rights due to deliberate indifference to his serious medical condition, rights under "both Federal and State Law" due to retaliation, and also alleges they injured him via negligence and medical malpractice during the time of his incarceration at FCI Fort Dix. Defendants argue mainly that the Court should grant summary judgment against Plaintiff's constitutional claims on the basis of Plaintiff's alleged failure to exhaust administrative remedies, and on the basis of various immunities. The Defendants also argue that the Court should dismiss Plaintiff's tort claims for lack of subject matter jurisdiction because Plaintiff did not present an administrative tort claim to Defendant Bureau of Prisons (hereafter "BOP") prior to filing his original Complaint. As explained below, the Court will grant in part and deny in part Defendants' motion. The Court will grant in part and deny in part Defendants' motion to dismiss Plaintiff's Federal Tort Claims (Counts II and III), and will grant Defendants' motion for summary judgment against Plaintiff's constitutional claims (Counts I and IV).


The following facts are stated in the parties' statements of material facts not in dispute, relevant to the present motion, supported in the record, and are not disputed through admissible evidence by the parties. Where facts are disputed, the Court will identify the dispute and determine whether it involves a genuine dispute of material fact defeating summary judgment.

Plaintiff suffered injuries to his back prior to his incarceration at FCI Fort Dix, leading him to take pain medication. Malouf Decl. ¶ 2, Docket Item 62. Plaintiff was transferred to FCI Fort Dix in January or February of 2008. Malouf Decl. ¶ 3; Turner Decl. ¶ 4, Docket Item 53. Plaintiff was assigned to at least two primary care physicians while at Fort Dix; his first primary physician was non-defendant Dr. Pradip Patel, serving from Plaintiff's arrival until March of 2009. Turner Decl. ¶¶ 4, 8. His second primary physician was Defendant Dr. Turner-Foster, who served as his physician from March 2009 until approximately December of 2009. Turner Decl. ¶ 4.

Beginning in October of 2008, Plaintiff was prescribed Oxycodone, which he took for approximately the next four or five months to treat pain in his back. Malouf Decl. ¶¶ 4, 6; Turner Decl. ¶ 7. At some point in January of 2009, Plaintiff alleges that he slipped and fell on some ice between buildings, which he claimed aggravated the pain in his lower back. Malouf Decl. ¶ 5. As a result of this alleged injury, he made use of a wheelchair and increased his dosage of Oxycodone. Id.

On March 10, 2009, Defendant Dr. Turner, along with Defendant Dr. Lopez de Lasalle, met with Plaintiff regarding his Oxycodone prescription. Malouf Decl. ¶ 6; Turner Decl. ¶ 7;

Lopez de Lasalle Decl. ¶ 4. The Defendants believed that Oxycodone was not appropriate for long-term use treating chronic pain like Plaintiff's. Turner Decl. ¶ 7; Lopez de Lasalle Decl. ¶ 4. Consequently, Defendants Turner and Lopez de Lasalle decided to reduce Plaintiff's use of Oxycodone and prescribe him different pain medicines. Id. Plaintiff declares that after this meeting, his access to Oxycodone was terminated immediately, whereas Dr. Lopez de Lasalle declares that she tapered his Oxycodone use during a transition period. Malouf Decl. ¶ 6; Lopez de Lasalle ¶ 4. Regardless, after this appointment, Plaintiff's pain was primarily treated through other pain medications. Turner Decl. ¶ 7. Specifically, Defendant Turner prescribed or authorized a prescription for approximately eight different pain medications from the BOP list of approved medications. Turner Decl. ¶¶ 5, 6. Plaintiff declares that these other medications were ineffective at treating his pain. Malouf Decl. ¶ 9.

The pain in Plaintiff's back caused him to collapse in his cell in the middle of the night later in March of 2009. Malouf Decl. ¶ 7. Plaintiff claims that Defendant Spaulding, the Health Services Administrator for Fort Dix, denied Plaintiff's request to transfer to the medical unit or to the hospital for evaluation. Id. Defendant Turner declares that a nurse was called to evaluate Plaintiff in his cell and found him lying on the floor of his housing unit, whereupon he was moved to health services for evaluation and treatment. Turner Decl. ¶ 17, Ex. 1 to Answer, Docket Item 22.

Later that month, Defendant Turner recommended Plaintiff be given a CT scan and an MRI scan of his spine at different times, which were approved and provided. Turner Decl. ¶ 8. Defendant Turner additionally recommended Plaintiff see a neurosurgeon for consultation, which was also approved. Id. Plaintiff met with Defendant Turner at least eight more times over the nine month period she was treating him, and he was treated at least 17 other times by other medical personnel. Id. Plaintiff claims that he suffered extreme pain during this period, and all individual Defendants, including Defendant Spaulding and Defendant Grondolsky, the Warden at Fort Dix at the time, were aware of his pain but "engaged in a course of conduct that ignored [his] complaints and made them worse." Malouf Decl. ¶ 9. Plaintiff describes this course of conduct as including "ineffective modifications" to his pain medication. Id. He also declares that at some point, Defendant Lopez de Lasalle ordered that his wheelchair be taken away. Malouf Decl. ¶ 13. Plaintiff was ultimately transferred to FMC Devens, Massachusetts, in May of 2010. Plaintiff alleges that the medical treatment he received, which he believes to have been inadequate, was as a result of retaliation for his complaints and for filing the instant lawsuit. Malouf Decl. ¶ 28.

Plaintiff filed an administrative grievance ("Remedy 532854") with Defendant Warden Grondolsky in April of 2009, claiming that he was suffering extreme pain as a result of Defendant Turner's treatment, specifically, her decision to end his Oxycodone prescription, and requested that he be assigned a different doctor or be transferred immediately to a medical facility. Moran Decl. Ex. 3. Defendant Grondolsky denied this grievance on May 4, 2009, after reviewing the treatment Plaintiff was receiving. Id. Grondolsky explained that Plaintiff could appeal the grievance to the regional director within 20 days.


Plaintiff filed his original Complaint pro se in this matter on May 1, 2009, seeking injunctive relief and damages for various constitutional violations, including Eighth Amendment cruel and unusual punishment as a result of his medical care, retaliation by Defendant Turner, and medical negligence, and included an emergency motion for injunctive relief. [Docket Item 1.]

Despite having filed his Complaint in this Court, Plaintiff appealed his administrative grievance to the regional director on May 11, 2009. Moran Decl. Ex. 3. On June 12, 2009, the regional director responded, reviewing the warden's decision and the treatment Plaintiff had received since his appeal, and concluding that the additional treatment he had received amounted to a partial granting of Plaintiff's requests, but denying further relief. Id. The regional director explained that Plaintiff had 30 days to appeal the decision to the BOP General Counsel. Id. Plaintiff timely appealed to the central office in June or July of 2009. Marchetti Decl. Ex. B. Moran Decl. ¶ 4. This appeal was ultimately denied on March 30, 2010. Moran Decl. Ex. 3.

Plaintiff was appointed pro bono counsel in this matter on September 21, 2009. [Docket Item 27.] Plaintiff, through counsel, moved to file an amended complaint on June 17, 2010, proposing to add FTCA claims for premises liability and medical negligence. [Docket Item 42.] In July of 2010, Plaintiff filed an administrative tort claim with the BOP, which was received by the BOP on July 26, 2010. Moran Decl. ¶ 7 and Ex. 6. The tort claim alleged that Plaintiff slipped on ice at FCI Fort Dix due to unsafe conditions in January of 2009, and that the pain he experienced was "unconstitutionally treated" and that he had not been treated correctly or fairly. Moran Decl. Ex. 6. He sought damages for his injuries in the amount of $5 million. Id. The BOP denied Plaintiff's tort claim on September 8, 2010, on the grounds that it raised a constitutional claim. Moran Decl. Ex. 7.

Plaintiff's motion to file an amended complaint was granted on October 1, 2010. Plaintiff subsequently filed his Amended Complaint on October 8, adding FTCA claims for premises liability (Count III), medical negligence (Count II), and repeating his allegations of constitutional violations of his Eighth Amendment right to be free of cruel and unusual punishment due to his medical treatment (Count I), and retaliation (Count IV). [Docket Item 48.]

Defendants claim that, because Plaintiff had not exhausted his administrative grievance or filed his administrative tort claim prior to filing his original Complaint, the Court must dismiss Plaintiff's FTCA claims for lack of jurisdiction, and grant summary judgment against his constitutional claims. Additionally, Defendants Grondolsky and Spaulding seek summary judgment against Plaintiff's constitutional claims as a result of lack of personal involvement; Defendant Spaulding seeks summary judgment as a result of statutory immunity as an officer of the PHS pursuant to 42 U.S.C. § 233(a); and all four individual defendants seek summary judgment due to qualified immunity.


A. Standard of ...

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