United States District Court, E.D. Virginia, Alexandria Division
John T. Marshall, Plaintiff,
United States of America, et al, Defendants.
ANTHONY J. TRENGA UNITED STATES DISTRICT JUDGE
Marshall, a federal inmate proceeding pro se, has filed a
civil rights action pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics. 403 U.S.
388 (1971), and the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 2671 et seg.
Defendants United States of America, Dr. Mark DiCocco, and
Commander Deborah Winbush have filed a Motion for Summary
Judgment as well as a memorandum of law with exhibits in
support thereof. Dkt. Nos. 19-20. Plaintiff received the
Notice required by Local Rule 7(K) and the opportunity to
file responsive materials pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). Dkt. No. 19-1.
He has submitted a verified declaration with exhibits and a
Response to the Motion for Summary Judgment. Dkt. Nos. 31-32.
Defendants thereafter submitted a Reply to Plaintiffs
Response, and plaintiff, having received leave to do so,
filed a Surreply in Opposition to Defendants' Motion for
Summary Judgment. Dkt. Nos. 36, 44. Defendants' Motion
for Summary Judgment is now ripe for adjudication. For the
reasons stated below, the motion will be granted, and
plaintiffs claims against these defendants will be dismissed.
record on summary judgment establishes the following.
Plaintiff is a federal inmate incarcerated at FCC Petersburg.
Compl. ¶ 5. A May 21, 2015, MRI of plaintiff s left knee
revealed that plaintiff had a torn meniscus and possible
damage to his anterior cruciate ligament ("ACL").
Pl.'s Decl. ¶¶ 26, 28; Defs\ MSJ, DEX 1 ¶
14. Plaintiffs injuries were classified as
"routine." Defs, MSJ, DEX 1 ¶ 15.
16, 2015, medical staff at FCC Petersburg submitted a
consultation request for an onsite evaluation by an outside
orthopedic surgeon regarding plaintiffs condition. Pl.'s
Decl. ¶ 29; Defs\ MSJ, DEX 1 ¶ 15. The orthopedic
surgeon saw plaintiff on October 10, 2015, and recommended
surgery, although he did not specify a timeframe for the
surgery. Pl.'s Decl. ¶ 31; Defs, MSJ, DEX 1 ¶
16. Employees at Petersburg filed an administrative request
for approval of plaintiff s surgery on October 20, 2015, and
the request was approved by BOP on November 13, 2015.
Defs' MSJ, DEX 1 ¶ 17.
January 8, 2016, plaintiff underwent surgery on his left
knee. Pl.'s Decl. ¶ 40; Defs' MSJ, DEX 1 ¶
19. The orthopedic surgeon stated that plaintiff should be
evaluated 10 to 14 days post-surgery, however, he did not
specify who should perform the evaluation. Pl.'s Decl.
¶ 41; Defs, MSJ, DEX 1 ¶ 25, Art. 17. Upon return
to Petersburg that day, medical staff evaluated plaintiff,
prescribed him oxycodone/acetaminophen for a period of three
days, and instructed him to return three days later, but he
did not. Defs, MS J, DEX 1 ¶ 19. Plaintiff was not
evaluated for physical therapy. Pl.'s Decl. ¶ 66.
Neither DiCocco nor the orthopedic surgeon recommended
physical therapy because the surgery was a "routine
procedure." Defs' MS J, DEXl ¶ 29.
received the oxycodone/acetaminophen three times on January 9
and 10, 2016, and twice on January 11, 2016, because he did
not show up for his third dose that day. Defs' Reply, DEX
11. Despite receiving the medication, plaintiff filed a
triage form on January 10, 2016, stating that he was in pain
and not receiving medication. Pl.'s Decl., Att. 4. On
January 11, 2016, medical staff placed plaintiff on four
weeks of medical convalescence, during which time he was not
allowed to work. Defs\ MS J, DEX 1 ¶ 20. On January 21,
2016, plaintiff was seen by medical staff for an unrelated
medical issue, but he did not complain of knee
pain. Id. ¶ 22, Att. 12. Thus,
although plaintiff was seen by medical staff 13 days after
his surgery, it appears as though his knee was not evaluated.
January 29, 2016, medical staff granted plaintiffs request
for a first-floor cell assignment. Id. ¶ 22.
Plaintiff returned to his regular work responsibilities on
February 9, 2016. Id. ¶ 23. On February 10,
2016, plaintiff submitted a triage form complaining of knee
pain. Pl.'s Decl., Att. 4.
was scheduled to see medical staff on March 18, 2016, but
left before being seen. Id. ¶ 46; Defs, MSJ,
DEX 1 ¶ 24. Plaintiff returned on March 23, 2016,
complaining of knee pain. Pl.'s Decl. ¶ 47; Defs,
MSJ, DEX 1 ¶ 25. That day, Winbush noted that
plaintiffs discharge instructions called for a post-surgical
follow-up 10-14 days after the procedure, prescribed
plaintiff ibuprofen, provided plaintiff with a knee brace,
and requested an outside consultation with an orthopedic
surgeon. Pl.'s Decl. ¶¶ 50-52; Defs, MSJ, DEX 1
was evaluated by DiCocco on April 14, 2016, for his
hypertension, however, after plaintiff complained of knee
pain, DiCocco performed a "Lachman's test" on
plaintiffs knee, which indicated potential injury to
plaintiffs ACL. Defs, MSJ, DEX 1 ¶ 26. However, because
"the results were weak at best," DiCocco
recommended plaintiff undergo another MRI. Id. The
next day, plaintiff was seen by the outside orthopedic
surgeon, who conducted x-rays and recommended a follow-up
evaluation one month later, but not surgery. Pl.'s Decl.
¶ 53; Defs., MSJ, DEX l ¶ 27.
April 17, 2016, plaintiff submitted a triage form complaining
of knee pain. Pl.'s Decl, Att. 4. Plaintiff was seen by
Winbush on April 21, 2016, and she submitted a consultation
request for an MRI and a follow-up appointment with the
orthopedic surgeon, provided plaintiff with a compression
garment, informed plaintiff of knee exercises, confirmed that
plaintiff was taking anti-inflammatory drugs which are used
to treat pain, and renewed plaintiffs first-floor cell
assignment for six months. Id. ¶ 54; Defs, MSJ,
DEX 1 ¶ 28. Plaintiffs injuries were classified as
non-emergent. Defs. MSJ, DEX 1 ¶ 28.
14, 2016, plaintiff received an MRI on his left knee, the
results of which indicated the presence of a routine,
non-emergent injury. Pl.'s Decl. ¶ 56; Defs\ MS J,
DEX 1 ¶ 31. On July 22, 2016, plaintiff was once again
seen by the outside orthopedic surgeon who, based on the
results of the MRI, recommended plaintiff undergo a second
surgery, although he did not indicate a timeframe for the
surgery. Pl.'s Decl. ¶ 57; Defs, MSJ, DEX 1 ¶
response to a July 31, 2016 triage form, plaintiff was
scheduled for an appointment on August 3, 2016, but he did
not appear because he was not informed of the appointment.
Pl.'s Decl. ¶ 58; Defs\ MSJ, DEX 1 ¶ 33. After
receiving another triage form filed by plaintiff on August 5,
2016, plaintiff was seen on August 19, 2016, and prescribed a
seven-day course of naproxen, a pain reliever. Pl.'s
Decl. ¶¶ 59-60; Defs\ MSJ, DEX 1 ¶ 34. On
September 7, 2016, plaintiff was approved for a second knee
surgery that was classified as routine. Defs\ MSJ DEX
response to a triage form complaining of continued knee pain,
plaintiff was seen on September 9, 2016, at which time
Winbush prescribed a 60-day supply of indomethacin, a pain
reliever, and renewed plaintiffs "lower bunk pass"
through April 2017. Pl.'s Decl. ¶¶ 62-63; Defs\
MSJ, DEX 1 ¶ 36. Plaintiff was also advised that his
surgery was pending. Defs\ MSJ, DEX l ¶ 36.
October 19, 2016, in response to a work-related knee injury,
Winbush renewed plaintiffs prescription for pain medication
for 90 days, issued plaintiff crutches, placed him on
"work idle," and instructed him on recovering from
his injury. Pl.'s Decl. ¶ 64; Defs' MSJ, DEX 1
¶ 37. Two days later, plaintiff sent an electronic
request to DiCocco to expedite his surgery. Pl.'s Decl.
¶ 65. On December 14, 2016, plaintiff was prescribed a
new pain relief medication, meloxicam, for a period of 180
days. Defs' MSJ, DEX 1 ¶ 38. On December 15, 2016,
January 23, 2017, January 26, 2017, January 27, 2017,
February 16, 2017, and February 25, 2017, plaintiff submitted
triage forms and electronic requests to be seen to the
medical staff, complaining of knee pain and inquiring about
his second knee surgery. Pl.'s DecL, Atts. 4-6.
March 2, 2017, the medical staff submitted a request for
plaintiff to be seen by an orthopedic surgeon. Defs\ MS J,
DEX 1 ¶ 39. The surgeon saw plaintiff the following day,
conducted x-rays, and once more concluded that plaintiff
should have knee surgery but did not specify a time frame for
the surgery. Id. DiCocco evaluated plaintiff at the
chronic care clinic on March 7, 2017. Defs' Reply, DEX 10
¶ 3. He examined plaintiffs knee and renewed plaintiffs
prescriptions, including one for aspirin. Id.
March 14, 2017, March 31, 2017, April 14, 2017, April 19,
2017, and May 5, 2017, plaintiff submitted triage forms and
electronic requests to be seen to the medical staff,
complaining of knee pain and inquiring about his second knee
surgery. Pl.'s Decl., Atts. 4-6. On May 8, 2017,
plaintiff was prescribed indomethacin and his lower bunk pass
was once more renewed. Defs' MS J, DEX 1 ¶ 40. On
May 15, 2017, plaintiff underwent his second knee
surgery. Pl.'s Decl. ¶ 72; Defs' MSJ,
DEX 1 ¶ 42.
Standard of Review
court shall grant summary judgment 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). "A dispute is genuine if a
reasonable jury could return a verdict for the nonmoving
party," and "[a] fact is material if it might
affect the outcome of the suit under the governing law."
Variety Stores v. Wal-Mart Stores. Inc.. 888 F.3d
651, 659 (4th Cir. 2018). Once the moving party has met its
burden to show that it is entitled to judgment as a matter of
law, the nonmoving party "must show that there is a
genuine dispute of material fact for trial... by offering
sufficient proof in the form of admissible evidence."
Id. (quoting Guessous v. Fairview Prop. Invs..
LLC.828 F.3d 208, 216 (4th Cir. 2016)). In evaluating a
motion for summary judgment, a district court should consider