IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN O. RICE, :

:

Plaintiff, : CIVIL ACTION

:

vs. : No. 05-cv-6075

:

GARY REYNOLDS, M.D.; :

P.A. ZORILLA; P.A. MARTINEZ; :

P.A. BOKHARI; TROY LEVI; :

and THE FEDERAL BUREAU OF PRISONS, :

:

Defendants. :

MEMORANDUM and ORDER

Joyner, J. March 26, 2009

Before this Court is Defendants’, Zorilla, Martinez, Bokhari

and Levi’s, Motion to Dismiss Plaintiff’s Second Amended

Complaint (Doc. No. 85), Plaintiff’s Response in Opposition (Doc.

No. 97), and Defendants’ Reply thereto (Doc. No. 98). For the

reasons set forth in the following memorandum, the motion is

granted.

Background1

Plaintiff, at the time in question, was a inmate with the

As this is a motion to dismiss, we will view the facts in the light most favorable to the non-moving party.

1

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Additionally, it should be noted that the Second

Amended Complaint incorporated all allegations from the Original Complaint. Hence, the facts alleged by plaintiff

are encompassed in the Original Complaint and the Second Amended Complaint. Plaintiff has also submitted a

document entitled “A Statement of Facts Not Believed to Be in Dispute.” As this is a motion to dismiss, and this

Court declines to convert it to a Motion for Summary Judgment, this Court looks only to the pleadings and

documents “integral to or explicitly relied upon in the Complaint.” In re Rockefeller Sec. Lit., 184 F.3d 280, 287

(3d Cir. 1999). Thus, the “Statement of Facts,” as well as documents submitted as exhibits with defendants’ Motion

to Dismiss, have not been considered in rendering judgment on the instant Motion to Dismiss.

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 1 of 20
Federal Bureau of Prisons, held at the Federal Detention Center

(“F.D.C.”) in Philadelphia, PA. Defendants Zorilla, Martinez,

Bokhari and Levi were employed by the BOP at the time of the

Plaintiff’s allegations. Plaintiff also alleged violations

against the Bureau of Prisons and Dr. Gary Reynolds; however, the

instant Motion to Dismiss has been brought only by Defendants

Zorilla, Martinez, Bokhari and Levi in their individual

capacities. In this Bivens action, plaintiff has alleged 2

violations of the First, Fifth and Eighth Amendments in

connection to the medical treatment he received at the F.D.C. 

3,4

In December of 2004, plaintiff fell while getting down from

the top bunk of his bed, injuring his leg and back and causing

him great pain. On that same day, he told a corrections officer

of his pain and put in a sick call slip. That night, the pain

worsened and Mr. Rice called the shift corrections officer who

informed him that he would have to wait until the next day to

receive medical care. The following day, Mr. Rice was not seen,

Claims against all defendants in their official capacities were dismissed. See Rice v. Reynolds, No. 05-

2

6075 (E.D. Pa. March 17, 2009) (Order dismissing claims against defendants in their official capacities). The

remaining defendants filed separate Motions to Dismiss.

While plaintiff alleges violations of 42 U.S.C. § 1983, this Court treats the violations as those under Bivens

3

v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as the defendants are not state, but

federal actors. See Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004).

In its statement of jurisdiction in the Second Amended Complaint, plaintiff mentions the Fourteenth

4

Amendment as a basis for this Court’s jurisdiction; however, the Fourteenth Amendment is not mentioned elsewhere

in the Complaint, is not mentioned in the original Complaint and no violations of the Fourteenth Amendment have

actually been alleged. As there has been no claim made in the Complaint under the Fourteenth Amendment, we will

not address it.

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 2 of 20
though he had placed his name on the call out sheet for sick

call. Several days went by and Mr. Rice told another corrections

officer of the injury and the pain, but was told that he could

not see anyone until after the holiday weekend. Later, when

walking back from the visitation area after a visit, his leg gave

out. A Unit Counselor and a Unit Manager saw him on the floor

and told him that they would call the hospital. Later that day,

he was seen by Dr. Reynolds for the first time. Dr. Reynolds

spent approximately five (5) minutes with him and told him he had

to get to a New Year’s Eve party. Dr. Reynolds told Mr. Rice

that he might have a pulled muscle and wrote out an idle slip and

a lower bunk slip. He also wrote Mr. Rice a prescription for 400

mg Ibuprofen. 

When Mr. Rice returned to his Unit, he could not receive a

bottom bunk because the Unit Counselor was not there and could

not receive the pain medication because the pharmacy was closed

until the next week due to the holiday. Mr. Rice received a

lower bunk three or four days later and his pain medication

approximately one week later. Mr. Rice was also given the use of

a wheelchair during this time. During the week after the exam,

Mr. Rice was in severe pain and he asked his cell mate to press

the emergency call button on a number of occasions. In early

January 2005, while Mr. Rice was showering, his leg gave out and

he was knocked to the floor. He was screaming in pain and a

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 3 of 20
Physician Assistant ultimately called Dr. Reynolds at home who

told the P.A. to inject Mr. Rice with 30 cc of cortisone. The

shot helped for a brief period of time, but then wore off,

leading Mr. Rice to again push the emergency call button. 

The next day, P.A. Smith came to Mr. Rice’s cell because Mr.

Rice could not get out of bed. Mr. Rice informed P.A. Smith that

he could not even get out of bed to use the toilet and was

urinating into an empty milk container. Later that evening, P.A.

Smith gave Mr. Rice 2 Tylenol codeine 3 for the pain. The

following day, Mr. Rice was still experiencing pain and P.A.

Smith visited again and gave Mr. Rice pain medication. 

The next day, Mr. Rice was still experiencing a lot of pain

and pressed the emergency button. Dr. Reynolds came to Mr.

Rice’s cell, along with Mr. Freeman, Unit Counselor. Once there,

Dr. Reynolds took away the wheelchair and told Mr. Rice to get

out of bed. When Mr. Rice told him that he could not due to the

pain, Dr. Reynolds told him that he had to get out of bed or

would receive an incident report and be placed in the special

housing unit. When Mr. Freeman attempted to help Mr. Rice get

out of bed, he was stopped by Dr. Reynolds. While Mr. Rice

attempted to pull himself out of bed, he was crying and

complaining of the pain. Dr. Reynolds then told Mr. Rice to put

on his jumpsuit and when Mr. Rice told Dr. Reynolds that it would

be too painful, Dr. Reynolds threatened again to put him in the

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 4 of 20
special housing unit. Eventually, Mr. Rice was able to put on

the jumpsuit and get into a wheelchair to go to the examination

room. Once there, Dr. Reynold told Mr. Rice to get on the weigh

scale and then pulled him out of the wheelchair onto the scale

when Mr. Rice protested due to pain. Dr. Reynolds then asked for

an x-ray of plaintiff’s right leg. Ms. Macalusco performed the

x-ray. Dr. Reynolds then took plaintiff’s wheel chair, gave him

crutches and kept him on the same medication despite plaintiff’s

request to change. For much of January 2005, plaintiff submitted

sick call requests and, finally, wrote the “Acting Warden.” A

few days later he was brought to the exam room and was examined

by P.A. Zorilla and P.A. Martinez. Zorilla changed his pain

medication to Indomethacin 50 mg. For the next month, plaintiff

continued to experience pain and submitted numerous sick call

requests. In February 2005, plaintiff submitted an

administrative remedy (BP 8) to his Unit Counselor concerning the

pain and his lack of treatment. No changes were made.

In March 2005, Mr. Rice saw a P.A. who changed his

medication to Naproxein 50 mg. In April 2005, plaintiff again

saw Dr. Reynolds and told him about the continued pain and

headaches that plaintiff had been having. Dr. Reynolds took

plaintiff’s blood pressure and, finding that it was high, changed

plaintiff’s medication to Acetaminophen 500 mg, explaining that

the Naproxein could be responsible for the high blood pressure. 

5

Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 5 of 20
Dr. Reynolds then told the plaintiff that he had a really bad

pulled muscle or nerve damage and that he was recommending

“Electro-Diagnostic” testing. Plaintiff continued to have pain

after the visit and continued to submit sick call requests.

Plaintiff was seen by P.A. Bokhari in May 2005 and was told that

he would have to deal with the pain and that there was nothing he

could do. 

Finally, plaintiff saw Dr. Reynolds in July of 2005. At

this time, plaintiff’s crutches were taken away before the

examination. Plaintiff explained that he was still in pain and

could not get around without the supports. Plaintiff then told

Dr. Reynolds that he had never received the electro-diagnostic

testing that had been ordered. Dr. Reynolds told plaintiff that

he was malingering and that if he fell without the crutches that

he would get an incident report and be put in the special housing

unit. Mr. Freeman came into the room and was told that Mr. Rice

could not have the crutches and that if he fell, he was to go to

the special housing unit. Mr. Rice then left the examination

room by holding onto the walls for support. A few days later,

Mr. Rice’s leg gave out during lunch time at the Unit Open House

in front of staff members and the Assistant Warden. Mr. Rice was

told by P.A. Martinez that someone would look into his injury and

crutches situation, but has not heard back. Mr. Rice pursued

administrative remedies as to the lack of medical treatment

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 6 of 20
through July 2005, after first filing on February 22, 2005, and

has been told that the medical treatment was sufficient. 

On December 16, 2005, plaintiff filed his Complaint pro se

and then sought, and secured, appointment of counsel from the

Civil Rights Panel of the Eastern District of the United States. 

Counsel was appointed by Order on January 11, 2006. Plaintiff

was taken to Frankford Hospital on August 15, 2006, for electrodiagnostic testing where he was preliminarily found to be

suffering from a possible right S1 radiculpathy. The physician

there recommended further studies and tests which were not

immediately performed. Following an application from counsel and

Order from this Court, the plaintiff was examined on or about

August 8, 2007, by Dr. Marc Kahn, M.D., an orthopaedic specialist

in Cherry Hill, N.J. Dr. Kahn preliminary diagnosed plaintiff

with a chronic lumbar strain and sprain and an internal

derangement of his right knee. Dr. Kahn also recommended MRI and

EMG testing to properly diagnose his injury and determine a

course of treatment. The BOP was made aware of this report but

did not provide follow up testing. 

On October 4, 2007, this Court ordered that the MRI and EMG

tests be performed. The MRI was performed at Thomas Jefferson

University Hospital; however, the hospital would not release the

results of the MRI without an assurance of payment from the BOP. 

Similarly, the hospital would not perform the EMG test without

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 7 of 20
such assurance. The BOP has contested the necessity of a court

order to pay for such tests, asserting that it has adequate

facilities for such tests itself. The BOP has not, thus far,

performed such tests. 

The Second Amended Complaint was filed in this matter on

June 3, 2008. Defendants Zorilla, Martinez, Bokhari and Levi in

their individual capacities now move to dismiss the Second

Amended Complaint; the plaintiff has responded in opposition. 

This Court has jurisdiction over this action pursuant to 13

U.S.C. §§ 1331 and 1343 and claims under the First, Fifth and

Eighth Amendments to the U.S. Constitution.

Standard

In response to a pleading, under Federal Rule of Civil

Procedure 12(b)(6), a Defendant may assert by motion that the

Plaintiff's complaint "[fails] to state a claim upon which relief

can be granted." In analyzing a Rule 12(b)(6) motion to dismiss,

we "accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and

determine whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief." Phillips v. County of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citations omitted). 

“To survive a motion to dismiss, a civil plaintiff must allege

facts that ‘raise a right to relief above the speculative level .

8

Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 8 of 20
. . .’” Id. at 232 (quoting Bell Atl. Corp. v. Twombley, 127 S.

Ct. 1955, 1965 (2007)). In other words, the plaintiff must

provide "enough facts to raise a reasonable expectation that

discovery will reveal evidence of the necessary element[s]" of a

particular cause of action. Id. at 234. In ruling on a Rule

12(b)(6) motion to dismiss, the court may consider documents

"integral to or explicitly relied upon in the complaint." In re

Rockefeller Sec. Lit., 184 F.3d 280, 287 (3d Cir. 1999).

Discussion

I. Eighth Amendment Claim

Plaintiff claims a violation of the Eighth Amendment with

respect to each of the Defendants. The Eighth Amendment

"requires prison officials to provide basic medical treatment to

those [] incarcerated." Anderson v. Bureau of Prisons, 176 Fed.

Appx. 242, 243 (3d Cir. 2006) (quoting Rouse v. Plantier, 182

F.3d 192, 197 (3d Cir. 1999)). It is well-settled that, “[o]nly

‘unnecessary and wanton infliction of pain’ or ‘deliberate

indifference to the serious medical needs’ of prisoners are

sufficiently egregious to rise to the level of a constitutional

violation.” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004)

(quoting White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990)

(quoting Estelle v. Gamble, 429 U.S. 97, 103, 50 L. Ed. 2d 251,

97 S. Ct. 285 (1976))). A claim of medical malpractice is not

sufficient for a Constitutional violation and, thus, negligence

9

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on the part of a physician will not be considered a

Constitutional deprivation. Spruill, 372 F.3d at 235 (citing

White, 897 F.2d at 108-09; Estelle, 429 U.S. at 106; Monmouth

County Correctional Institutional Inmates v. Lanzaro, 834 F.2d

326, 346 (3d Cir. 1987). Finally, “‘mere disagreement as to the

proper treatment’ is also insufficient.” Spruill, 372 F.3d at

235 (quoting MCCII, 834 F.2d at 246 (citations omitted)). Hence,

the standard set out in Estelle to assess medical treatment

claims under the Eighth Amendment “requires deliberate

indifference on the part of the prison officials and it requires

the prisoner's medical needs to be serious.” Spruill, 372 F.3d

at 235-236 (quoting White, 897 F.2d at 109). 

Thus, to state a claim under the Eighth Amendment, plaintiff

must allege a “serious” medical need. Id. Plaintiff alleges

that his back injury is sufficiently serious to give rise to his

Eighth Amendment claim. He asserts that, in reaction to the

pain, he spent many days in his bed, used a milk container for

urination for multiple days because he could not get out of bed,

could not walk without the aid of a crutch, collapsed in the

hallway, the shower and the lunch room, and suffered immense,

untreated pain for months. He further alleges that this

condition has led to permanent injury. Additionally, he has been

preliminarily diagnosed by Dr. Kahn, following an Order from this

Court, with a chronic lumbar strain and sprain, as well as an

10

Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 10 of 20
internal derangement of his right knee. In Spruill, the 5

plaintiff suffered serious back pain similar to the condition

that plaintiff alleges in this case and was allowed to proceed

with his claim based on his allegations. 372 F.3d at 236. 

Based on Mr. Rice’s description of the pain, the numerous

emergency calls, the numerous sick call requests, Mr. Rice’s

inability to walk and get out of bed, the three falls, and the

accounts of screaming and crying, we find that, similar to the

plaintiff in Spruill, Mr. Rice has alleged a serious injury,

satisfying this prong of the standard. 

To state an Eighth Amendment claim, a plaintiff must also

allege deliberate indifference. As this is a subjective factor,

we will address the allegations against each defendant

separately. Additionally, the Third Circuit in Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988), stated that “a

defendant in a civil rights action must have personal involvement

in the alleged wrongs; liability cannot be predicated solely on

the operation of respondeat superior.” (quoting Parratt v.

Taylor, 451 U.S. 527, 537 n.3 (1981)). Hence, this Court will

address the alleged personal involvement of each defendant to

assess whether the facts alleged “raise a right to relief above

the speculative level.” Phillips v. County of Allegheny, 515

F.3d 224, 233 (3d Cir. 2008) (quoting Bell Atl. Corp. v.

Dr. Kahn also ordered MRI and EMG testing for diagnosis and treatment.

5

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 11 of 20
Twombley, 127 S. Ct. 1955, 1965, 167 L. Ed. 929, 940 (2007)). 

A. P.A. Zorilla

Plaintiff alleges that he saw P.A. Zorilla in January 2005,

after he had seen Dr. Reynolds for the second time. Plaintiff

was examined by P.A. Zorilla and, in response to plaintiff’s

request, P.A. Zorilla ultimately changed plaintiff’s pain

medication. Orig. Comp., 7. Plaintiff contends that this

medication was not strong enough for the pain. The claim made by

plaintiff against P.A. Zorilla does not rise to the level of

deliberate indifference; in fact, P.A. Zorilla changed

defendant’s medication at his request. Plaintiff has not stated

a claim for an Eighth Amendment violation against P.A. Zorilla

and, thus, the Eighth Amendment claim against P.A. Zorilla is

dismissed.

B. Health Services Administrator Martinez

Plaintiff alleges that in January 2005, Martinez was present

for an examination with P.A. Zorilla. Orig. Comp., 7. 6

Additionally, plaintiff alleges that in July 2005, Martinez saw

plaintiff fall in the lunch room and told him that “he would have

someone look into” the injury, but that he did not get a

response. Id. Plaintiff has not alleged that Administrator

Martinez was involved in plaintiff’s medical care in any way. 

Thus, as in Drumer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993),

Plaintiff alleges only that Martinez was present and does not allege that Martinez did or said anything.

6

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Martinez cannot be considered “deliberately indifferent simply

because [he] failed to respond directly to the medical

complaint[] of a prisoner who was already being treated by the

prison doctor.” As plaintiff has not pled that Martinez was

deliberately indifferent to his medical complaint, the Eighth

Amendment claim against Martinez is dismissed.

C. P.A. Bokhari

Plaintiff mentions P.A. Bokhari once in his Complaint. He

alleges that he saw, but was not examined, by P.A. Bokhari in

April of 2005. Plaintiff alleges that Bokhari was “arrogant

towards” him and that Bokhari told plaintiff that “there was

nothing he could do for him.” Orig. Comp., 8. In the previous

four months, plaintiff had been seen by Dr. Reynolds three times,

his pain medication had been changed four times, he had been

given a wheelchair and then crutches, and x-rays had been taken. 

At the specific time that plaintiff saw P.A. Bokhari, his

medicine had been changed approximately one month previously and

electro-diagnostic tests had been ordered. Plaintiff has not

alleged that P.A. Bokhari was deliberately indifferent to

plaintiff’s medical need by an “intentional refusal to provide

care, delayed medical treatment for non-medical reasons, denial

of prescribed medical treatment, and/or denial of reasonable

requests for treatment that results in suffering or risk of

injury.” Latham v. United States, 2009 U.S. App. LEXIS 836 (3d

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 13 of 20
Cir. Jan. 15, 2009) (citing Durmer v. O’Carroll, 991 F.2d 64, 68

(3d Cir. 1993); Monmouth County Correctional Institutional

Inmates (MMII) v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)). At

the time that plaintiff saw Bokhari, medical care was being

provided and a disagreement as to the course of treatment, in

this case the type of pain medication, does not rise to the level

of deliberate indifference. See Gerber v. Sweeney, 292 F.Supp.2d

700, 709 (E.D.Pa. 2003). Thus, plaintiff’s Eighth Amendment

claim against P.A. Bokhari is dismissed. 

D. Warden Troy Levi

Plaintiff’s Second Amended Complaint names Warden Troy Levi

as a defendant in this matter; however, plaintiff does not

mention Levi in his Second Amended Complaint outside of the

caption. Upon review of the original Complaint, which did not 7

name Levi as a Defendant in the action, it appears that Plaintiff

makes a possible reference to Levi when he asserts that he told a

visiting friend, RaeAngel Davis, about his fall and she told him

that she would call “the Warden” and “let him know.” Orig. 8

Comp., 5. Shortly after this visit, plaintiff’s leg gave out and

he was sent to see Dr. Reynolds for the first time. 

Additionally, plaintiff alleges that he sent a letter to the

Plaintiff’s Second Amended Complaint alleges only broadly that

7

“Defendants” have engaged in actions that violated plaintiff’s constitutional

rights, but does not allege personal involvement of any of the defendants by

name.

Plaintiff does not allege that Ms. Davis made this call.

8

14

Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 14 of 20
“Acting Warden” in January 2005. However, he then alleges that 9

a few days after he sent the letter, he was seen by a P.A. and

his medication was changed. Hence, Plaintiff has made no

allegations specifically against Warden Levi in terms of the

medical treatment that he received or did not receive. 

Additionally, any references to the Warden in his Complaint are

followed with plaintiff receiving some form of medical care. The

Third Circuit has stated that “[i]f a prisoner is under the care

of medical experts . . . , a non-medical prison official will

generally be justified in believing that the prisoner is in

capable hands. Spruill, 372 at 236 (citing Durmer, 991 F.2d at

69). Plaintiff was under the care of Dr. Reynolds and other

medical staff throughout the period described in his Complaint. 

Warden Levi’s action, as alleged by plaintiff, do not rise to the

level of deliberate indifference and the Eighth Amendment claim

against him is dismissed. 

II. Fifth Amendment Claim

Plaintiff alleges Fifth Amendment Substantive Due Process

claims specifically in relation to the medical treatment

addressed by his Eighth Amendment claim. Defendants argue that

this claim is duplicative of his Eighth Amendment claim. Pursuant

to Albright v. Oliver, 510 U.S. 266 (1994), substantive due

It is unclear from plaintiff’s Complaint whether the Acting Warden was Warden Levi.

9

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 15 of 20
process claims are not proper when “a particular provision of the

Bill of Rights is directly applicable to the claim.” Goldhaber

v. Higgins, 2007 U.S. Dist. LEXIS 72892, at *99-100 (W.D.Pa.

September 28, 2007). “[I]f a constitutional claim is covered by

a specific constitutional provision, such as the Fourth or Eighth

Amendment, the claim must be analyzed under the standard

appropriate to that specific provision, not under the rubric of

substantive due process." Cooleen v. Lamanna, 248 Fed. Appx.

357, 362 (3d Cir. 2007) (quoting County of Sacramento v. Lewis,

523 U.S. 833, 843 (1998)). Plaintiff’s claim under the Fifth

Amendment appear to concern only his medical care, the same

issues that are addressed specifically in his Eighth Amendment

claim. Thus, defendants’ motion to dismiss as to plaintiff’s

Fifth Amendment claim is granted and the claim is dismissed.

III. First Amendment Claim

Plaintiff’s only First Amendment claim, as stated in the

Second Amended Complaint, is an allegation that prison officials

transferred him to BOP facilities in Oklahoma and West Virginia

in retaliation for his complaints concerning his medical care. 

Defendants argue first that plaintiff has not exhausted his

administrative remedies as to his First Amendment claim because

he has not pursued administrative remedies in compliance with the

Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 16 of 20
Supreme Court has clearly stated that PLRA exhaustion is

mandatory before an inmate may file an action in this Court. 

Booth v. Churner, 532 U.S. 731, 738-39 (2001). However,

exhaustion has been held to be an affirmative defense and

“inmates are not required to specifically plead or demonstrate

exhaustion in their complaints.” Jones v. Block, 549 U.S. 199,

127 S.Ct. 910, 919-20 (2007). Additionally, the Third Circuit

had stated, “[w]e . . . join the many other circuits that have

held that failure to exhaust is an affirmative defense to be

pleaded by the defendant.” Ray v. Kertes, 285 F.3d 287, 295 (3d

Cir. 2002). Hence, based on the allegations in the Complaint, it

would be inappropriate to dismiss for failure to exhaust at this

motion to dismiss stage. 

Defendants also argue that plaintiff has failed to allege

facts that show the defendants’ personal involvement in the

constitutional torts raised. See Rode, 845 F.2d at 1207. 

Plaintiff has not alleged that any of the defendants to the

instant motion have made attempts to initiate transfers in

retribution for Mr. Rice’s claims of medical care. Plaintiff

states in his Second Amended Complaint that “[t]he Defendants

have further moved Plaintiff from facility to facility within the

BOP . . . .” Sec. Amend. Comp., 7. Plaintiff later alleges

broadly in relation to his First Amendment claim that “[d]uring

the pending of the proceedings leading to the filing of the

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instant Amended Complaint, Plaintiff was further moved in such a

manner to a BOP facility in Oklahoma and thence to West Virginia. 

Such movement was not undertaken for provisions of the required

or appropriate medical care, but is believed to have been

accomplished purely as punishment or retribution for Plaintiff’s

assertions . . . .” Sec. Amend. Compl., 8. No defendant is

alleged to have undertaken the transfers or had any control over

transfers from one facility to another. Additionally, other than

this broad assertion, no factual allegation as to a causal link

between the transfers and Mr. Rice’s Complaint. See Sharpe v.

Costello, 289 Fed. Appx. 475, 476 n.1 (3d Cir. 2008). As

plaintiff has not alleged the personal involvement of any of the

defendants in the transfers and liability cannot be predicated on

respondeat superior, the First Amendment claim against Defendants

Zorilla, Martinez, Bokhari and Levi is dismissed. 

Because we have concluded that Mr. Rice has not alleged a

constitutional violation against Defendant Zorilla, Martinez,

Bokhari or Levi, we do not proceed in a qualified immunity

inquiry. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.

2006) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151

(2001)).

IV. Allegations of Untimeliness

Finally, plaintiff argues that the instant motion to dismiss

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should be denied as untimely because defendants have not

responded to discovery requests presented by plaintiffs. 

However, the cases that plaintiff points to in support of this

proposition, Contractors Assoc. of Eastern Penn. v. City of

Philadelphia, 945 F.2d 1260, 1267 (3d Cir. 199), and Sames v.

Gable, 732 F.2d 49, 51 (3d Cir. 1984), involve summary judgment

motions, not motions to dismiss. As this Court is ruling on this

motion as a motion to dismiss and relying only on the pleadings

and documents "integral to or explicitly relied upon in the

Complaint," we will not dismiss the motion to dismiss as

untimely. In re Rockefeller Sec. Lit., 184 F.3d 280, 287 (3d

Cir. 1999). 

10

Similarly, this Court has ruled on the two parallel motions to dismiss, by the Defendants in their Official

10

Capacities and by Defendant Dr. Reynolds in his individual capacity, and has not relied on documents outside of the

pleadings and the documents relied upon in the Complaint. As plaintiff has incorporated his responses to each

motion to dismiss into the present response to the instant motion to dismiss, it should be noted that this Court has not

considered exhibits or supplements filed by either party in rendering its decisions on any of the motions to dismiss in

this action.

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Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 19 of 20
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN O. RICE, :

:

Plaintiff, : CIVIL ACTION

:

vs. : No. 05-cv-6075

:

GARY REYNOLDS, M.D.; :

P.A. ZORILLA; P.A. MARTINEZ; :

P.A. BOKHARI; TROY LEVI; :

and THE FEDERAL BUREAU OF PRISONS, :

:

Defendants. :

ORDER

AND NOW, this 26th day of March, 2009, upon consideration

of Defendant Dr. Gary Reynold’s Motion to Dismiss (Doc. No. 85),

Plaintiff’s Response in Opposition (Doc. No. 97), and Defendant’s

Reply thereto (Doc. No. 98), for the reasons set forth in the

attached memorandum, it is hereby ORDERED that the Motion is

GRANTED. It is further ORDERED that the Second Amended Complaint

as to Defendants Zorilla, Martinez, Bokhari and Levi is hereby

DISMISSED.

BY THE COURT:

S/J. CURTIS JOYNER 

J. CURTIS JOYNER, J

Case 2:05-cv-06075-JCJ Document 103 Filed 03/27/09 Page 20 of 20