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McBee v. Wilson

United States District Court, E.D. Virginia, Richmond Division

September 1, 2017

ERIC WILSON, et al, Defendants.


          Roderick C. Young, United States Magistrate Judge

         Russell Lee McBee, a federal inmate proceeding pro se and in forma pauperis, filed this Bivens[1]action. In his Complaint, McBee raises the following claims for relief:

Claim One: Defendants Laybourn and Dicocco[2] were deliberately indifferent to McBee's medical condition, in violation of the Eighth Amendment, [3] by failing to ensure that McBee received a total knee replacement after a specialist recommended that McBee receive one. (Compl. 5-7, ECF No. 4; ECF No. 4-1, at 3-10.)[4]
Claim Two: Defendants Wilson and Caraway[5] violated McBee's rights under the Eighth Amendment by overlooking McBee's need for a total knee replacement when considering McBee's administrative remedy requests. (ECF No. 4-1, at 6-7, 10-13.)

McBee seeks $247, 544.00 in damages as well as injunctive relief. (Compl. at 8.)

         This matter is before the Court on Defendants' Motion to Dismiss (ECF No. 24) or in the alternative Motion for Summary Judgment (ECF No. 25). McBee has responded. (ECF No. 29.) Defendants have filed a Reply. (ECF No. 30.) For the reasons stated below, Defendants' Motion for Summary Judgment will be GRANTED.


         Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the responsibility of informing the Court of the basis for the motion and identifying the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial."' Id. (quoting former Fed.R.Civ.P. 56(c), (e) (1986)). In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere "'scintilla of evidence'" will not preclude summary judgment. Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "'[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Additionally, '"Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials ....").

         In support of their Motion for Summary Judgment, Defendants submitted: (1) a declaration from Chantay Stanley, a Paralegal Specialist for the BOP (Mem. Supp. Mot. Summ. J. Ex. 1 ("Stanley Decl."), ECF No. 26-1); (2) copies of the BOP's records regarding the computation of McBee's sentence (id. Attach. 1, ECF No. 26-1, at 5-9); (3) copies of McBee's grievance material (id Attachs. 2-5, ECF No. 26-1, at 10-18); (4) Defendant Dicocco's declaration (id. Ex. 2 ("Dicocco Decl."), ECF No. 26-2); (5) Defendant Laybourn's declaration (id. Ex. 3 ("Laybourn Decl."), ECF No. 26-3); (6) copies of McBee's medical records (Dicocco Decl. Attachs. 1-9, ECF No. 26-2, at 7-38; Laybourn Decl. Attachs. 1-6, ECF No. 26-3, at 6-27); and (7) a copy of the BOP's Clinical Practice Guidelines, Evaluation and Management of Osteoarthritis of the Hip and Knee ("BOP Clinical Guidelines, " Mem. Supp. Mot. Summ. J. Ex. 4, ECF No. 26-4).

         At this stage, the Court is tasked with assessing whether McBee "has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial." Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis added). As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. In response, McBee submits: (1) his own "Sworn Statement" (ECF No. 29); and, (2) his own "Sworn Affidavit" (ECF No. 32).

         Furthermore, the facts offered by affidavit must be in the form of admissible evidence. See Fed. R. Civ. P. 56(c). In this regard, the statement in the affidavit or sworn statement "must be made on personal knowledge . . . and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). Summary judgment affidavits must also "set out facts that would be admissible in evidence." Id. Therefore, "summary judgment affidavits cannot be conclusory or based upon hearsay." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990); see also Md. Highways Contractors Ass n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)).

         In his Sworn Statement and Sworn Affidavit, McBee makes a number of statements that are of no value in assessing the propriety of summary judgment. The majority of McBee's statements are either conclusory[6] or simply disagree with arguments made by Defendants.[7]McBee's conclusory assertions will not be considered in evaluating the Motion for Summary Judgment. Moreover, McBee failed to swear to the contents of his Complaint under penalty of perjury. The Complaint thus fails to constitute admissible evidence. United States v. White, 366 F.3d 291, 300 (4th Cir. 2004). Furthermore, with respect to McBee's Sworn Statement, the Court previously warned McBee that "the Court will not consider as evidence in opposition to any motion for summary judgment a memorandum of law and facts that is sworn to under penalty of perjury." (ECF No. 13, at 2.) Because McBee's Sworn Statement is essentially his memorandum opposing the Motion for Summary Judgment, the Court will not consider it as evidence.

         In light of the foregoing principles and submissions, the following facts are established for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in favor of McBee.


         A. Facts Regarding the BOP's Guidelines for Surgical Procedures

         Within the BOP, "[w]hen a medical provider submits a request for an inmate to see a specialty medical provider outsider the correctional facility, such as an orthopedic surgeon, the request generally goes before the institution's Utilization Review Committee ('URC') for approval." (Dicocco Decl. ¶ 7.) The URC is responsible for "reviewing] each consultation request, and determining] whether the consultation [is] appropriate and thus approved, or whether the request should be reviewed at a later date, or denied." (Id.) The URC consists of "several institution staff members including the Clinical Director, Health Services Administrator, Assistant Health Services Administrator, Associate Warden, Physicians, and institution scheduling staff." (Id.)

         When a medical provider requests that an inmate receive an elective procedure, such as hip or knee replacement surgery, the request is not reviewed by the URC. (Id. ¶ 8.) Rather, the request goes to the regional office that oversees that institution. (Id.) "Such requests from FCC Petersburg go to the Mid-Atlantic Region and are reviewed initially by regional medical staff, typically regional nurses, to determine whether the necessary criteria are met." (Id.) Often, these requests are then "forwarded for a secondary review by the Regional Medical Director." (Id.) "Neither [Defendant Dicocco], any medical officer at FCC Petersburg, Warden Wilson, nor Regional Director Caraway are in any way involved in this decision." (Id.)

         The BOP has also established guidelines for the evaluation and management of osteoarthritis in the hip and knee. (See BOP Clinical Guidelines, ECF No. 26-4.) Pursuant to these guidelines, "[o]perative intervention (e.g., with total joint arthroplasty) is considered elective in most cases and is reserved for end-stage disease that fails to respond to nonsurgical interventions." (Id. at 9.)[8] To qualify for knee or hip replacement surgery, an inmate must meet certain requirements. (Dicocco Decl. ¶ 6.) "One such criterion is the patient's weight and body mass index ('BMI'), which are considered to rule out a high risk of cardiovascular complications that could adversely affect the procedure." (Id.; see Laybourn Decl. ¶ 6.) The BOP's guidelines state:

Weight loss should be recommended for patients with BMI > 25. Even modest amounts of weight loss may slow progression of the disease, reduce pain, and improve the functional status of the patient. In the case of surgical patients, obesity increases the risk for post-operative infection and venous thromboembolism/pulmonary embolism, as well as makes surgery technically more difficult. Inmates with a BMI > 35 will be expected to lose sufficient weight to reduce their BMI to < 35. Inmates with a BMI > 30, but still < 35, will be expected to demonstrate some weight loss and reasonable weight loss efforts- including a reduction of the high-calorie, low-nutrition food items purchased at the commissary.
Exceptions to these criteria may be made on a case-by-case basis, as clinically indicated. When a BOP dietician is not available at the local institution, tele-dietician consultation will be made available for inmates who need specialized counseling in support of their weight loss efforts.

(BOP Clinical Guidelines, at 7 (capitalization corrected), ECF No. 26-4.)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;B. Facts Regarding ...

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