United States District Court, E.D. Virginia, Alexandria Division
these consolidated lawsuits, Duane Joseph Johnson, a federal
inmate proceeding pro se, brings claims under the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
2671-2680, and Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Johnson alleges that the United States and medical staff at
Federal Correctional Institution Petersburg Medium (FCI
Petersburg) treated his spinal disorder in a manner that
violates Virginia tort law and the Eighth Amendment. The
United States and individual defendants move to dismiss and
for summary judgment. [Dkt. Nos. 54-55]. Johnson received the
notice required by Local Rule 7(K) and Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). [Dkt. No. 56].
Johnson opposes the defendants' motion and also moves for
appointment of counsel and an expert. [Dkt. Nos. 62-64]. For the
reasons that follow, the FTCA claims will be dismissed,
summary judgment will be granted to the individual
defendants, and Johnson's motions for appointment of
counsel and an expert will be denied.
complains of spine-related nerve pain, for which he has
sought medical treatment during his tenure at FCI Petersburg.
In these lawsuits, he brings four claims under the FTCA: two
for medical malpractice, one for negligence, and one for
intentional infliction of emotional distress. He also claims
that numerous members (or former members) of FCI Petersburg
medical staff are liable under Bivens for acting
with deliberate indifference to his serious medical need. He
filed these lawsuits on July 19, 2016 (Bivens and
FTCA claims) and January 14, 2017 (FTCA claim), and he
challenges conduct dating back to 2005. The following facts
are undisputed, except where noted, and outline Johnson's
medical care at FCI Petersburg as it pertains to his FTCA and
Bivens claims. The Court views the facts in the
light most favorable to Johnson as the nonmoving party, and
it draws all reasonable inferences in his favor. See
Bennett v. Garner, 913 F.3d 436, 438 (4th Cir. 2019).
says that since his arrival at FCI Petersburg in November
2005, he consistently complained to medical staff about his
spine-related pain, either in person or through written
sick-call requests. [Dkt. No. 1, Pl.'s Verified Compl.
¶¶ 21-23; Dkt. No. 64-2, Johnson Decl. ¶ 8].
In particular, Johnson attests that "over the
years" he would complain to Dr. Benjamin Rice, Physician
Assistant (PA-C) Ignatius Hall, and Mid-level Practitioner
(MLP) Bhagya Katta about his spine pain, but the physicians
would tell him only to stretch and drink water. [Dkt. No.
64-2, Johnson Decl. ¶¶ 23, 28-29]. He further
declares that, at some point, he asked Dr. Suhasini Shah for
a cane, walker, or wheelchair because the pain shooting into
his hands and feet made walking difficult. [Id.
defendants dispute Johnson's contention that he was
ignored for years, pointing to medical records from 2008
through 2016, which, in their view, demonstrate that Johnson
"visited with a virtually uncountable number of health
care professionals ... on nearly seventy (70) occasions in
order to receive treatment" for his spinal disorders.
[Doc. No. 55, Defs.' Mem. of Law ¶ 2]. First, they
point to medical records from May 11, 2009, showing that
Johnson complained to PA-C Hall about left shoulder pain
stemming from a 2002 exercise injury. [Dkt. No. 55-4, Def.
Ex. D at 13]. Hall ordered a shoulder x-ray, which was taken
and reviewed by August 6, 2009. [Id- at 7, 14]. The
reviewing physician, MLP Andarge Yirga (not named as a
defendant), saw no abnormality in the x-ray, noted that
Johnson reported chronic left shoulder pain radiating from
his neck down into his upper left arm, and instructed Johnson
to take over-the-counter pain medication. [Id. at
7-8]. By the end of September, as Johnson continued to
experience pain, MLP Katta ordered cervical spine x-rays.
[Id. at 3-4]. These x-rays revealed mild
degenerative disc disease at the C4-C5 vertebrae.
[Id. at 37].
continued to report pain, and in July 2010 MLP Yirga
recommended that Johnson see an outside orthopedist. [Dkt.
No. 55-5, Def. Ex. E at 20, 27-28]. Johnson was taken to see
Dr. Karanvir Prakash, who recommended that an MRI be taken of
Johnson's cervical spine. [Id. at 62]. An MRI
was approved and then performed on August 26, 2010.
[Id. at 61-62, 64]. The MRI revealed disc
degeneration from the C2-C7 vertebrae, C-spine stenosis, and
mild disc herniation to the left side of the C5-C6 vertebrae.
[Id. at 59; Dkt. No. 55-6, Def. Ex. F at 147]. After
a follow-up visit, Dr. Prakash recommended that Johnson see
another specialist, Dr. Kalluri. [Dkt. No. 55-5, Def. Ex. E
was permitted to see Dr. Kalluri, who, after examining
Johnson on November 15, 2010, recommended that Johnson
receive cervical facet injections and take over-the-counter
anti-inflammatory medication. [Id. at 50-51; Dkt.
No. 55-6, Def. Ex. F at 147-49]. The prison approved the
procedure. [Dkt. No. 55-5, Def. Ex. E at 47]. Dr. Nadeem Khan
performed the injections on February 10, 2011, and further
recommended that Johnson take three medications: Neurontin
(gabapentin), Lyrica (pregabalin), and naproxen (an
over-the-counter anti-inflammatory). [Dkt No. 55-6, Def. Ex. F at
142-45]. The prison gave Johnson gabapentin and naproxen, not
pregabalin, which is a non-formulary medication requiring
approval to receive. [Id. at 40; Dkt. No. 55-15,
Def. Ex. O at 5, 13].
Kahn performed another round of facet injections on August 5,
2011. [Dkt. No. 55-6, Def. Ex. F at 113-15]. The doctor's
treatment records show that he recommended that Johnson
discontinue taking gabapentin because it was causing him to
gain weight. [Id. at 115]. Johnson attests that he
also told Dr. Khan that the gabapentin caused him
"extreme illness." [Dkt. No. 64-2, Johnson Decl.
¶ 16]. After this visit with Dr. Khan, MLP Yirga
requested permission to prescribe pregabalin. [Dkt. No. 55-7,
Def. Ex. G]. The Central Office Physician denied the request
on the ground that Johnson had been only 50% compliant with
taking gabapentin. [Id.]. Johnson admits that he was
often noncompliant with taking his prescribed gabapentin,
explaining that pain made it difficult to walk to, and wait
in, the pill line three times a day and, when he did, the
medication caused him to gain weight and feel ill. [Dkt. No.
64, Pl.'s Mem. of Law ¶¶ 12-13; Doc. 64-2,
Johnson Decl. ¶ 15; Dkt. No. 55-6, Def. Ex. F at 3].
continued to seek treatment for his spine-related pain at FCI
Petersburg, all the while maintaining admittedly poor
compliance with his prescribed gabapentin regime. [Dkt. No.
54, Pl.'s Mem. of Law ¶¶ 13, 16; Dkt. No. 55-6,
Def. Ex. F at 3; Dkt. No. 55-9, Def. Ex. I at 4-5].
From 2011 through 2015, he visited MLP Yirga and a contract
physician, Dr. Salman Akbar, numerous times. [Dkt. No. 55-6,
Def. Ex. F at 9-10; Dkt. No. 55-8, Def. Ex. H at 2-3, 6-8,
10- 13; Dkt. No. 55-9, Def. Ex. I at 9-15, 18-19; Dkt. No.
55-10, Def. Ex. J at 4-9, 11-12; Dkt. No. 55-11, Def. Ex. K
at 1-6]. Johnson attests that he continuously complained to
the physicians about pain from his spine condition, but the
defendants have submitted medical records indicating that he
occasionally reported being less symptomatic.
[Compare Dkt. No. 64-2, Johnson Decl. ¶ 19,
with Dkt. No. 55-6, Def. Ex. F at 9-10, and Dkt. No. 55-9,
Def. Ex. I at 9-12]. Additionally, in early 2014, based on
Johnson's recurring complaints of tingling and numbness
in his fingers and decreased range of motion, MLP Yirga
recommended that Johnson see another outside specialist; Dr.
Katherine Laybourn approved the request, and the exam took
place on September 26, 2014. [Dkt. No. 55-10, Def. Ex. J at
7-9, 36, 44]. The specialist, Dr. Dawen Bu, recommended that
Johnson take gabapentin or pregabalin [Id. at 40].
2016, the prison's Clinical Director, Dr. Mark DiCocco,
examined Johnson. [Dkt. No. 55-12, Def. Ex. L at 46-51]. He
ordered that Johnson receive an updated MRI of his cervical
spine and also submitted a new non-formulary prescription
request for pregabalin. [Id. at 50; Dkt. No. 55-13,
Def. Ex. M]. This time the Central Office Physician approved
the request, overruling the recommendation of the
Institutional Chief Pharmacist, who had proposed that Johnson
try another formulary medication. [Dkt. No. 55-13, Def. Ex.
M], Johnson was transported to Federal Medical Center (FMC)
Butner in North Carolina twice for an MRI, in June and July
2016. [Dkt. No. 55-12, Def. Ex. L at 102-03, Dkt. No. 55-14,
Chatman Decl. ¶ 8; Dkt. No. 64-2, Johnson Decl. ¶
30]. The MRI revealed spinal canal stenosis from vertebrae
C5-C6 to C7-Tl, which the radiologist described as
"slightly worsened" since the last imaging.
[Id. at 103].
the rides to and from North Carolina, Johnson attests that he
asked Health Services Administrator (HSA) Allison Chatman to
ensure that he would receive his medication and walker before
departing. [Dkt. No. 64-2, Johnson Decl. ¶ 30]. He says
that she agreed to make arrangements for them, but he
ultimately received neither. [Id. ¶ 32].
Wearing shackles inside the transport bus, without the
benefit of pain medication, caused him great pain.
[Id. ¶ 33]. After the first trip, Johnson filed
the first of these two lawsuits on July 19, 2016.
Motion to Dismiss
FTCA claims fault the government for delaying treatment,
declining to prescribe medication recommended by a
specialist, denying his requests for movement-assistance
accessories (e.g., walker, wheelchair, cane), and, by
withholding his medication and walker, needlessly inflicting
pain during the vehicular transport to FMC Butner. The United
States has moved to dismiss these claims.
Standard of Review
United States moves to dismiss the FTCA claims for failing to
state a claim for relief under Federal Rule of Civil
Procedure 12(b)(6). However, because the viability of
Johnson's FTCA claims invoke the Court's
jurisdiction, this Court has an independent obligation to
consider whether the FTCA claims should be dismissed for lack
of subject matter jurisdiction under Rule 12(b)(1). See
Fed.R.Civ.P. 12(h)(3); Brickwood Contractors. Inc. v.
Datanet Ene'g. Inc., 369 F.3d 385, 390 (4th Cir.
2004) (en banc).
court's determination of subject matter jurisdiction
addresses whether the court has the authority to entertain a
particular kind of case." Upstate Forever v. Kinder
Morgan EnergyPartners,887 F.3d 637, 646 (4th
Cir. 2018). The ...