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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PAUL WHOOTEN, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-04-223

:

ANTHONY BUSSANICH, ET AL., :

: (Judge Jones)

Defendants :

MEMORANDUM AND ORDER

September 2, 2005

Background

Paul Whooten (“Plaintiff” or “Whooten”), an inmate presently confined at

the United States Penitentiary, Lewisburg, Pennsylvania (“USP-Lewisburg”),

initiated this combined pro se civil rights/Federal Tort Claims Act (“FTCA”)

action. His amended complaint also sets forth claims under the Americans with

Disabilities Act (“ADA”) and the Rehabilitation Act. Service of the complaint

was previously ordered.

Named as defendants are the United States of America and the following

USP-Lewisburg officials: Associate Warden S. Hobart; Clinical Director A.

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Bussanich, M. D.; Health Services Administrator J. Hemphill and Assistant Health

Services Administrator J. Zagame. 

Plaintiff has been confined at USP-Lewisburg since April 12, 2001. 

His complaint asserts that on February 24, 2003, Physician’s Assistant (“PA”)

Kondrat prescribed him Prednisone for his chronic cluster headaches. After taking

this medication for a short period, Whooten states that he began vomiting blood

and experiencing severe stomach pain. As a result, PA Ritter discontinued his use

of prednisone. In March 2003, PA Kondrat prescribed Imitrex for Whooten’s

cluster headaches. After taking this medication numerous times, it purportedly

caused him to suffer high blood pressure, dizziness, headaches, blurred vision and

tremors. Consequently, his use of Imitrex was stopped.

Thereafter, Plaintiff was prescribed Verapamil for his headaches. This

medication allegedly caused dizziness, fatigue, and blurred vision. As a result,

Whooten stopped taking Verapamil. On December 17, 2003, Doctor Bussanich

allegedly prescribed Toredol for the Plaintiff’s condition. Two days later,

Whooten allegedly suffered severe pain and coughed up some blood.

Plaintiff contends that his prior medical history precluded his taking any of

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1 For example, Whooten indicates that he should not have been prescribed Imitrex because

of his history of hypertension.

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the above described medications.1 Whooten adds that Doctor Bussanich was

informed that neurologists who had previously treated him “had prescribed a

combination of narcotic and prophylactic drugs that were effective.” Rec. Doc. 1.

¶ 12. Whooten adds that the only presently available medication which is

effective for his cluster headaches is Nalbuphine Hydrochloride. However,

although Doctor Bussanich previously provided him with one (1) Nalbuphine

injection each month, said Defendant will no longer prescribe that medication.

Plaintiff adds that during March 2004 a neurologist, Doctor Rajjoub,

recommended that he be provided Nalbuphine as needed for pain. The complaint

contends that Bussanich subsequently informed Whooten that he disagreed and

would not follow Doctor Rajjoub’s recommendation. As a result of Doctor

Bussanich’s refusal, Whooten contends that he is stricken with daily debilitating

headaches and depression. Plaintiff concludes that Defendants were deliberately

indifferent and/or negligent for: (1) prescribing medications which were clearly

improper based on his medical history; (2) delaying and/or denying a referral to a

neurologist and (3) denying him effective medications based on an incorrect

assessment that he was a drug seeker. His complaint seeks compensatory and

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punitive damages as well as injunctive relief.

Defendants claim entitlement to an entry of dismissal/summary judgment on

the grounds that: (1) Zagame and Hemphill are employees of the United States

Public Health Service and thus cannot be sued in an action brought pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971) (“Bivens action”); (2) there are no allegations asserted against Doctor

Bussanich which rise to the level of an Eighth Amendment violation; (3) the

claims against Defendant Hobart are improperly premised on a theory of

respondeat superior; (4) Defendants are entitled to qualified immunity; (5)

Plaintiff’s FTCA claim is meritless; (6) neither a viable ADA nor a Rehabilitation

Act claim is set forth in the complaint.

Discussion

A. Standard of Review

Defendants’ motion is accompanied by evidentiary materials outside the

pleadings which are relevant for purposes of rendering a decision on their

respective arguments. Rule 12(b) provides in part as follows:

If, on a motion asserting the defense numbered (6) to

dismiss for failure of the pleading to state a claim upon

which relief can be granted, matters outside the pleading

are presented to and not excluded by the court, the

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motion shall be treated as one for summary judgment

and disposed of as provided in Rule 56, and all parties

shall be given reasonable opportunity to present all

material made pertinent to such a motion by Rule 56.

Fed. R. Civ. P. 12(b). The Court will not exclude the evidentiary materials

accompanying Defendants' motion. Thus, their motion will be treated as solely

seeking summary judgment. 

Summary judgment is appropriate if the "pleadings, depositions, answers to

interrogatories, admissions on file, together with affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law." Fed.R.Civ.P. 56(c).

[T]he plain language of Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial. In such a situation, there can be "no genuine issue as to

any material fact," since a complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial. The moving party is

"entitled to a judgment as a matter of law" because the

nonmoving party has failed to make a sufficient showing on an

essential element of her case with respect to which she has the

burden of proof. "[T]he standard [for granting summary

judgment] mirrors the standard for a directed verdict under

Federal Rule of Civil Procedure 50(a)...." 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial responsibility of stating the basis for its

motion and identifying those portions of the record which demonstrate the absence

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of a genuine issue of material fact. The moving party can discharge that burden

by "'showing' . . . that there is an absence of evidence to support the nonmoving

party's case." Celotex, supra, 106 S.Ct. at 2553-54. Once the moving party has

satisfied its burden, the nonmoving party must present "affirmative evidence" to

defeat the motion, consisting of verified or documented materials. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only if

a reasonable jury, considering the evidence presented could find for the

nonmoving party.” Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). 

Only disputes over facts that might affect the outcome of the suit will preclude the

entry of summary judgment. Id. In evaluating a motion for summary judgment,

the entire record must be examined in the light most favorable to the nonmoving

party.

B. Public Health Service

Defendants’ initial argument maintains that Health Services Administrator

Hemphill and Assistant Health Services Administrator Zagame enjoy absolute

immunity with respect to Plaintiff’s Bivens claims because the undisputed record

establishes that they are employees of the United States Department of Public

Health Service. 

 In Cuoco v. Moritsugu, 222 F.3d 99, 107 (2nd Cir. 2000), the Court of

Appeals for the Second Circuit concluded that under 42 U.S.C. § 233(a), members

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of the Public Health Service were absolutely immune from suit in a Bivens action

if the injury for which compensation is sought resulted from the performance of a

medical or related function while acting within the scope of their office or

employment. Section 233(a) adds that an FTCA claim is the exclusive remedy for

the performance of medically related functions by employees of the Public Health

Services.

Since the undisputed record establishes that Defendants Zagame and

Hemphill are employees of the Public Health Service, they are entitled to entry of

summary judgment with respect to the Plaintiff’s Bivens claims.

C. Deliberate Indifference

 The moving Defendants next argue that summary judgment is appropriate

in favor of Doctor Bussanich because the undisputed facts establish that there was

no deliberate indifference to any serious medical need of the Plaintiff. Rather,

they contend that this is simply a case where a prisoner is disagreeing with the

type of medication which he is being prescribed.

 Pursuant to the Supreme Court's decision in Estelle v. Gamble, 429 U.S. 97

(1976), an inmate plaintiff must demonstrate that prison officials have breached

the standard of medical treatment to which he was entitled. The government has

an "obligation to provide medical care for those whom it is punishing by

incarceration." Id. at 103. 

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 However, a constitutional violation does not arise unless there is

"deliberate indifference to serious medical needs of prisoners" which constitutes

"unnecessary and wanton infliction of pain." Id. at 104 (citation omitted). The

Court of Appeals for the Third Circuit has held that not every injury or illness

enjoys constitutional protection; only serious medical needs are actionable. 

Colburn v. Upper Darby Township, 946 F.2d 1017, 1023 (3d Cir. 1991); West v.

Keve, 571 F.2d 158, 161 (3d Cir. 1978). Furthermore, a complaint that a

physician or a medical department "has been negligent in diagnosing or treating a

medical condition does not state a valid claim of medical mistreatment under the

Eighth Amendment [as] medical malpractice does not become a constitutional

violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106.

A later decision by the Supreme Court addressed the issue of what standard

should be applied in determining deliberate indifference in Eighth Amendment

cases. The Court established that the proper analysis is whether a prison official

"acted or failed to act despite his knowledge of a substantial risk of serious harm." 

Farmer v. Brennan, 511 U.S. 825, 841 (1994). The Court of Appeals for the

Third Circuit in Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993), added that a

non-physician defendant cannot be considered deliberately indifferent for failing

to respond to an inmate's medical complaints when he is already receiving

treatment by the prison's medical staff. However, where a failure or delay in

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providing prescribed treatment is deliberate and motivated by non-medical factors,

a constitutional claim may be presented. See id. 

Under Farmer, deliberate indifference is a subjective standard in that the

prison official must actually have known or been aware of the excessive risk to

inmate safety. Beers-Capitol v. Whetzel, 256 F. 3d 120, 125 (3d Cir. 2001). This

requirement of actual knowledge means that “the official must both be aware of

facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. In

Beers-Capitol it was also recognized that a defendant’s knowledge of a risk can be

proved indirectly by circumstantial evidence. 

As previously noted, Whooten’s Bivens claims are threefold. First, he

contends that he was prescribed medications which were clearly inappropriate on

the basis of his prior medical history. Second, he claims that there was an

unwarranted delay by Doctor Bussanich in referring him to a neurologist. His

remaining assertion is that Bussanich refused to provide him with needed

medication based on an incorrect assessment that the Plaintiff was a drug seeker. 

Based on a review of the complaint, Plaintiff acknowledges that Doctor

Bussanich and the USP-Lewisburg medical staff have provided him with

treatment for his cluster headaches since his arrival at that prison. By his own

admission, Whooten has been prescribed numerous medications. Plaintiff was

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also seen by a neurologist Doctor Rajjoub, and a third physician, Doctor Salam,

was also involved in his care. It is clear that the Plaintiff’s allegations against

Doctor Bussanich cannot support a claim of deliberate indifference. His

complaint acknowledges that he was provided with ongoing care and his claims

sound only in negligence, primarily that Doctor Bussanich made a negligent

assessment by labeling Whooten as a drug seeker and thereafter provided

ineffective treatment on the basis of the allegedly erroneous assessment. Thus,

under the standards established in Estelle, they cannot support a Bivens claim. The

Court will grant summary judgment in favor of Doctor Bussanich with respect to

the Bivens portion of this action.

D. Respondeat Superior

Defendant Hobart argues entitlement to summary judgment because there

are no claims set forth showing that he had any personal involvement in any

violation of the Plaintiff’s constitutional rights. See Rec. Doc. 39, at 16. 

Consequently, the moving Defendant maintains that Whooten is attempting to

establish liability against him solely on the basis of his supervisory duties as

Associate Warden.

A plaintiff, in order to state an actionable civil rights claim, must plead two

essential elements: (1) that the conduct complained of was committed by a person

acting under color of law, and (2) that said conduct deprived the plaintiff of a

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right, privilege, or immunity secured by the Constitution or laws of the United

States. Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995);

Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). 

Civil rights claims cannot be premised on a theory of respondeat superior. 

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named

defendant must be shown, via the complaint's allegations, to have been personally

involved in the events or occurrences which underlie a claim. See Rizzo v.

Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d

1077 (3d Cir. 1976). As explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs. . . . [P]ersonal involvement

can be shown through allegations of personal direction or of

actual knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity. 

Rode, 845 F.2d at 1207.

Plaintiff asserts that he informed Defendant Hobart of his dissatisfaction

with Doctor Bussanich’s treatment of his cluster headaches. See Rec. Doc. 1, ¶

15. Hobart subsequently informed Whooten that he had assigned Defendant

Zagame to “resolve the matter.” Id. Thereafter, Plaintiff alleges that he notified

Hobart that the matter was still unresolved and that the Defendant failed to take

needed action.

Under the standards developed in Rode, 845 F.2d 1195 (3d Cir. 1988), such

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an assertion is insufficient for establishing liability under Bivens. Hobart is not

identified as being a member of the prison’s medical staff and there are no

allegations that the Associate Warden had direct involvement or acquiescence

with respect to any decisions made regarding Whooten’s medical treatment. As

noted by the Defendants, Plaintiff acknowledges that Hobart did exactly what he

should have done, namely, refer the prisoner’s complaints to a qualified,

supervisory member of the prison’s medical department. Since Whooten admits

that Defendant Hobart, a non-healthcare professional, took appropriate action

when advised of the prisoner’s disagreement with his medical treatment, under the

standards announced in Durmer, there is no basis for a claim of deliberate

indifference. Whooten is also precluded under Rode and Hampton from

establishing liability against Hobart solely on the basis of his supervisory capacity

within the prison. In conclusion, Associate Warden Hobart is likewise entitled to

an entry of summary judgment.

E. Qualified Immunity

Qualified immunity is an affirmative defense which must be pleaded by the

defendant official. Id.; Verney v. Pennsylvania Turnpike Comm'n, 881 F. Supp.

145, 149 (M.D. Pa. 1995). In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the

United States Supreme Court held "that government officials performing

discretionary functions generally are shielded from liability for civil damages

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insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known." Id. at 818;

Sherwood v. Mulvihill, 113 F.3d 396, 398-99 (3d Cir. 1997); Showers v.

Spangler, 957 F. Supp. 584, 589 (M.D. Pa. 1997). It has also been held that

"qualified immunity is coextensive for suits brought against state officials under

42 U.S.C. § 1983 (1982), and for suits brought directly under the Constitution

against federal officials." People of Three Mile Island v. Nuclear Regulatory

Commissioners, 747 F.2d 139, 144 n.9 (3d Cir. 1984) (citing Butz v. Economou,

438 U.S. 478, 504 (1978)). 

The United States Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001),

established a two part test for analyzing qualified immunity claims. See also

Curley v. Klem, 298 F.3d 271 (3d Cir. 2002); Bennett v. Murphy, 274 F.3d 133

(3d Cir. 2002). The initial inquiry in a qualified immunity examination is whether

“the facts taken in the light most favorable to the plaintiff show a constitutional

violation.” Bennett, 274 F.3d at 136. 

This Court has already concluded that Plaintiff’s allegations do not set forth

a viable Bivens claim. Consequently, the first prong of Saucier has not been

satisfied. Further discussion of the Defendants’ qualified immunity argument is

not required. 

F. FTCA

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Defendants next argue that they are also entitled to summary judgment with

respect to the FTCA portion of the complaint because Plaintiff cannot satisfy his

burden of proof. The FTCA provides a remedy in damages for the simple

negligence of employees of the United States to protect federal inmates. United

States v. Muniz, 374 U.S. 150, 150 (1963). A plaintiff pursuing an FTCA claim

must show: (1) that a duty was owed to him by a defendant; (2) a negligent breach

of said duty; and (3) that the negligent breach was the proximate cause of the

plaintiff's injury/loss. Mahler v. United States, 196 F. Supp. 362, 364 (W.D. Pa.

1961), aff'd, 306 F.2d 713 (3d Cir.), cert. denied, 371 U.S. 923 (1962).

It is well-settled that a federal district court addressing an FTCA action

must apply the law of the state, in this case Pennsylvania, in which the alleged

tortious conduct occurred. 28 U.S.C. § 1346(b) (1996); Toole v. United States,

588 F.2d 403, 406 (3d Cir. 1978); O'Neal v. Department of Army, 852 F. Supp.

327, 334-35 (M.D. Pa. 1994); Turner v. Miller, 679 F. Supp. 441, 443 (M.D. Pa.

1987). However, in cases such as this which involve federal prisoners, it has been

recognized that the government's duty of care is one of ordinary diligence. See 18

U.S.C. § 4042; Turner, 679 F. Supp. at 443. The applicable law with respect to

the burden and quantum of proof under the FTCA remains that of the state in

which the alleged tortious conduct occurred. Hossic v. United States, 682 F.

Supp. 23, 25 (M.D. Pa. 1987). 

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Under Pennsylvania law, a plaintiff is required to show that the defendant's

negligence was the proximate cause of his injury by a preponderance of the

evidence. Baum v. United States, 541 F. Supp. 1349, 1351 (M.D. Pa. 1982). 

Furthermore, Pennsylvania law defines proximate cause as causation which was a

substantial factor in bringing about the injury. Hamil v. Bashline, 392 A.2d 1280,

1284 (Pa. 1978).

It is undisputed that the Federal Bureau of Prisons owed Whooten a duty to

provide him with timely and appropriate medical care. Along with an opposing

brief, Plaintiff has submitted various medical records establishing his prior history

of cluster headaches, the treatment/medications provided and evidence that he

previously suffered side effects, including intestinal bleeding, from the use of

certain medication. See Rec. Doc. 47. Based on the Plaintiff’s submissions, the

Court finds that the Defendants’ wholly conclusory argument that he has not plead

a case of prima facie negligence and failed to offer any supporting expert medical

testimony lacks persuasion. Plaintiff’s FTCA claims of negligent medical care

while confined at USP-Lewisburg will be allowed to proceed. 

G. ADA

Title II of the ADA provides that "no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be

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2 The regulations implementing the ADA define a "qualified individual with a disability"

as:

"An individual with a disability who, with or without reasonable

modifications to rules, policies or practices, . . . meets the essential

eligibility requirements for the . . . participation in programs or

activities provided by a public entity."

28 C.F.R. § 35.104 (1993).

3

 The "evenhanded treatment" requirement does not, however, impose an affirmative

obligation on public entities to expand existing programs but only that disabled individuals receive

the same treatment as those who are not disabled.

4

 “Congress has not waived sovereign immunity for damages claims for constitutional

violations.” Germosen v. Reno, Civil No. 99-1268, slip op. at 13 (M.D. Pa. Sept. 20,

2000)(Vanaskie, C.J.).

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subjected to discrimination by such entity." 42 U.S.C. § 12132.2 The ADA seeks

"to assure even handed treatment and the opportunity for [disabled] individuals to

participate in and benefit from programs [receiving financial assistance].”

Southeastern Community College v. Davis, 442 U.S. 397 (1979);3

 P.C. v.

McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990).

It has been recognized that the provisions of the ADA are applicable to

prisoners confined in state correctional institutions. See Pa. Dept. of Corrections

v. Yeskey, 524 U.S. 206 (1998). However, absent an explicit waiver of sovereign

immunity, the United States is generally immune from suit.4

 United States v.

Mitchell, 445 U.S. 535, 538 (1980). This “immunity is jurisdictional in nature,” 

FDIC v. Meyer, 510 U.S. 471, 475 (1994), and extends to government agencies

and employees. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). 

Federal detention centers are not protected by the ADA. Hurtado v. Reno,

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34 F. Supp.2d 1261, 1264 (D. Col 1999). The ADA does not contain a waiver of

sovereign immunity and thus, does not apply to the federal government. Crowder

v. True, 845 F. Supp. 1250 (N.D. Ill 1994). Consequently, the amended complaint

to the extent that it seeks to assert an ADA claim regarding Whooten’s federal

incarceration is subject to dismissal.

H. Rehabilitation Act

The Rehabilitation Act (“RA”) , 29 U.S.C. § 794, prohibits exclusion of a

disabled person from a program that receives federal financial assistance solely by

reason of his or her disability. In Yeskey v. Commonwealth of Pennsylvania, 118

F. 3d 168 (3d Cir. 1997), aff’d 534 U.S. 206 (1998), the Court of Appeals for the

Third Circuit indicated that claims relating to the alleged exclusions of disabled

persons from prison employment could be properly raised under the RA.

Based on this Court’s review of the undisputed record, the Plaintiff has not

satisfied his burden of showing that he is a disabled person who was excluded

from a program or activity on the basis of a disability. His claim of being denied

proper medical care does not set forth a viable RA claim. Consequently,

Defendants’ request for summary judgment with respect to Whooten’s RA claim

will be granted. 

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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendants’ Motion to Dismiss or in the Alternative for Summary

Judgment is construed as solely seeking summary judgment.

2. The Defendants’ Summary Judgment Motion (doc. 36) is

GRANTED with the exception of Plaintiff’s FTCA claims.

3. Summary judgment is entered in favor of Defendants Hobart,

Bussanich, Zagame and Hemphill. 

4. The FTCA claims against Defendant United States of America will be

allowed to proceed.

s/ John E. Jones III

JOHN E. JONES III

United States District Judge

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