1. Plaintiff is currently housed in the Schuylkill Federal Correctional Institution, in Minersville, Pennsylvania. 

2. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Bivens

stands for the proposition that "a citizen suffering a compensable injury to a constitutionally protected

interest could invoke the general federal question jurisdiction of the district court to obtain an award of

monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504 (1978).

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RAFAEL GUSMAN, :

:

Plaintiff : CIVIL NO. 4:CV-04-2339

:

v. : (Judge Jones)

:

BUREAU OF PRISONS, et al., :

:

Defendants :

ORDER

March 14, 2006

Background

Plaintiff, Rafael Gusman (“Plaintiff” or “Gusman”), an inmate formerly confined

in the Federal Correctional Institution, in Allenwood, (“FCI-Allenwood”), Pennsylvania1,

filed this Bivens2styled civil rights action pursuant to 28 U.S.C. § 1331. He claims that

Defendants at FCI-Allenwood were deliberately indifferent to his medical treatment for an

ear infection. Named as Defendants in the complaint are the Bureau of Prisons (“BOP”);

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2

the FCI-Allenwood Department of Medical Services; and the following current or former

FCI-Allenwood employees: S.A. Yates, former Warden, Francisco Feliz, Health Services

Administrator; Robert Migliorino, former Clinical Director; Francisca Terrero-Leibel,

former Physicians Assistant; and Ernesto Roces, Physicians Assistant. 

Presently pending before the Court is Defendants' Motion to Dismiss or, in the

alternative for Summary Judgment. (Rec. Doc. 22). The Motion has been fully briefed

and is ripe for disposition. For the reasons that follow, Defendants' Motion for Summary

Judgment will be granted. 

Standard of Review

Federal Rule of Civil Procedure 56(c) requires the court to render summary

judgment " . . . forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the 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]his standard provides that the mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of

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3

material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis

in original). 

A disputed fact is "material" if proof of its existence or nonexistence would affect

the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248;

Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material

fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United

Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir.

1991).

When determining whether there is a genuine issue of material fact, the court must

view the facts and all reasonable inferences in favor of the nonmoving party. Moore v.

Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d

599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d

Cir. 1988). In order to avoid summary judgment, however, the nonmoving party may not

rest on the unsubstantiated allegations of his or her pleadings. When the party seeking

summary judgment satisfies its burden under Rule 56(c) of identifying evidence which

demonstrates the absence of a genuine issue of material fact, the nonmoving party is

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3. Gusman was provided with copies of M..D. Pa. Local Rules 7.1 through 7.8, Local Rule 26.10, and

Federal Rule of Civil Procedure 56(e). In relevant part, Rule 56(e) states:

When a motion for summary judgment is made and supported as provided in this

rule, an adverse party may not rest upon the mere allegations or denials of the

adverse party's pleading, but the adverse party's response, by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial. If the adverse party does not so respond, summary

judgment, if appropriate, shall be entered against the adverse party. 

Local Rule 7.4 provides in relevant part:

All material facts set forth in the statement required to be served by the moving party will be

deemed to be admitted unless controverted by the statement required to be served by the

opposing party.

Rec. Doc. 3, Standing Practice Order.

4

required by Rule 56(e)3to go beyond the pleadings with affidavits, depositions, answers

to interrogatories or the like in order to demonstrate specific material facts which give rise

to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party

opposing the motion "must do more than simply show that there is some metaphysical

doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio, 475

U.S. 574, 586 (1986). When Rule 56(e) shifts the burden of production to the nonmoving

party, that party must produce evidence to show the existence of every element essential

to its case which it bears the burden of proving at trial, for "a complete failure of proof

concerning an essential element of the nonmoving party's case necessarily renders all other

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5

facts immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846,

851 (3d Cir. 1992). 

Statement of Facts

From the pleadings, declarations, and exhibits submitted therewith, the following

facts can be ascertained as undisputed.

On January 17, 2003, Gusman was seen by PA Ernesto Roces for complaints of

left ear pain. PA Roces diagnosed him with otitis media, the presence of fluid in the

middle ear, and prescribed Bactrim DS, Tylenol, and Benadryl. (Rec. Doc. 24, Ex. 1,

Declaration of Russell Hendershot, Medical Director at FCI-Schuylkill). On January 24,

2003, Gusman was seen by PA Reid for ear pain. (Rec. Doc. 24, Medical Records at

13). Reid diagnosed Gusman with otitis serous, the presence of fluid in the middle ear

with effusion. Id. Reid advised Gusman to finish the previously prescribed antibiotics

and further prescribed Actifed. Id. 

On January 31, 2003, in response to Gusman's request to be seen, Gusman was

examined by PA Francisca Terrero-Leibel. (Rec. Doc. 24, Medical Records at 14). He

complained of pain and that he could not hear from his left ear. Id. He also complained

that his pain medication was not working. Id. PA Terrero-Leibel diagnosed Gusman with

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6

possible otitis externa, inflammation of the external auditory canal, and prescribed

Cortisporin ear drops. Id. 

On February 7, 2003, Gusman was seen by PA Terrero-Leibel for a follow-up on

his ear pain. (Rec. Doc. 24, Medical Records at 15). Gusman stated that he “still has

pain in AM.” Id. Terrero-Leibel diagnosed Gusman with possible otitis media, and

prescribed Amoxicillin and Motrin. Id. On February 21, 2003, Gusman was seen by

FCI-Allenwood Clinical Director, Dr. Migliorino, for a follow-up on his left ear. (Rec.

Doc. 24, Medical Records at 15). Dr. Migliorino determined that Gusman's left and right

ears were within normal limits, except for tenderness to the touch of the canal floor and

ostia. Id. Gusman admitted to Dr. Migliorino that he had inserted Q-tips into his ear. Id.

Dr. Migliorino diagnosed Gusman with otitis exteran, prescribed Cortisporin ear drops

and Motrin, and advised Gusman that he should not place foreign objects in his ears. Id.

On February 26, 2003, Gusman was seen by PA Terrero-Leibel for lower back

pain. (Rec. Doc. 24, Medical Records at 16). During this examination, Gusman stated

that his ears did not hurt, but that he heard “bubbling: noise and “his hearing is low.” Id.

PA Terrero-Leibel ordered an in-house audio examination. Id. 

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On April 9, 2003, Gusman was seen by PA Terrero-Leibel regarding continued

hearing problems. (Rec. Doc. 24, Medical Records at 16). PA Terrero-Leibel diagnosed

Gusman with fluid behind the tympanic membrane, and noted in the record that she would

consult with the Clinical Director about a follow-up examination with an ear, nose and

throat (“ENT”) doctor. Id.; see also Rec. Doc. 24 at 39, Consultation Sheet. Gusman's

baseline audio hearing test was also performed on April 9, 2003. (Rec. Doc. 24, Medical

Records at 17). It was determined that Gusman presented hearing loss and that the test

would be repeated again on April 11, 2003. Id. 

On April 11, 2003, a manual test of Gusman's hearing was conducted. Id. It was

determined that Gusman suffered from pronounced hearing loss and should be referred

to an ENT as soon as possible. Id. at 18. On April 30, 2003, Gusman was seen by PA

Terrero-Leibel for a follow-up to the hearing tested performed. Id. The results were

explained to him and he was informed that a request for a consultation with an ENT was

pending. Id.

On May 19, 2003, Gusman was seen by PA Terrero-Leibel for a complaint that

“his good ear is bothering him a lot”. (Rec. Doc. 24, Medical Records at 19). He stated

that it's like listening to “a bell from when you leave a door open from the car.” Id. PA

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Terrero-Leibel diagnosed Gusman with middle ear fluid, and prescribed chlorpheniramine

(“CTM”) and Motrin. Id. 

On May 29, 2003, Gusman was seen by PA Terrero-Leibel for a follow-up on his

ear pain. Terrero-Leibel diagnosed Gusman with possible allergies and prescribed

Benadryl. Id. On June 3, 2003, Gusman was seen by Dr. Frank, an outside ENT

specialist. (Rec. Doc. 24, Medical Records at 20). 

On June 10, 2003, Gusman was seen by PA Roces and “demand[ed] surgery.”

(Rec. Doc. 24, Medical Records at 20). PA Roces diagnosed Gusman with middle ear

fluid and prescribed Benadryl. Id. He also noted that Gusman was “evaluated by ENT

(outside); waiting for consult/note from outside ENT.” Id. 

On June 13, 2003, Dr. Frank's report was received by the medical department. 

(Rec. Doc. 24, Medical Records at 21). He found the following: 

We saw Mr. Gusman in my office on 6/3/03. He complains of decreased

hearing in both ears, worse in the left ear, since having an earache early this

year. He has been on antibiotics and ear drops on several occasions. He

does not have any ear discharge. 

On examination, he shows a bilateral mixed hearing loss, which is worse for

the left ear. Tympanograms were type B bilaterally. Otoscopic examination

revealed air fluid levels in the right middle ear space clearly seen through a

fairly translucent although retracted right tympanic membrane. The left

tympanic membrane is dull and has a deep retraction pocket in the pars

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9

flaccida. The nasal exam revealed a left sided septal deviation and some

nasal congestion. The pharynx was clear. 

I believe that his hearing loss is secondary to a bilateral middle ear effusion,

although it appears that this individual my have had middle ear problems for

quite a long time. The hearing loss is mixed and even if the fluid problem

resolves he will have a hearing loss since there is quite a significant

sensorineural hearing loss component especially for the left ear. Also the

conductive component for the left ear is significant so, besides the middle

ear fluid there might be some degree of tympanosclerosis in the left ear. 

My recommendation is that we proceed with a left tympanoplasty and

ventilation tube insertion and a right ventilation tube insertion. Even after this

the patient's hearing may be impaired to the point he may subsequently

require a hearing aid. 

Rec. Doc. 24, at 47, June 3, 2003 letter of diagnosis from Dr. Frank. 

On June 15, 2003, Gusman was seen by PA Roces for ear pain. (Rec. Doc. 24,

Medical Records at 21). Roces noted that the Plaintiff was “very childish and forcing

himself to cry but no tears seen” and that Plaintiff was “very manipulative” and “wants to

go to an outside hospital.” Id. PA Roces diagnosed Plaintiff with possible otalgia (pain

in the ear) and prescribed Benadryl and Motrin. Id.

On June 17, 2003, Gusman's ENT surgery request was reviewed and approved by

the Utilization Review Committee. (Rec. Doc. 24, Medical Records at 22). On June 23,

2003, Gusman was seen by PA Reid, complaining that his “ear [was] going to explode.”

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(Rec. Doc. 24, Medical Records at 22). He was diagnosed with otalgia and prescribed

Motrin and Benadryl. Id. 

On June 24, 2003, Gusman was seen by PA Manenkoff for a follow-up visit. Id.

PA Manenkoff diagnosed Gusman with otitis media and prescribed Tylenol, Cipro and

Zantac. Id. On July 6 and 14, 2003, Gusman was seen by PA Roces and requested a

refill of his medications. (Doc. 24, Medical Records at p. 23). Roces prescribed Tylenol

and Benadryl. Id.

On July 18, 2003, Gusman was seen by PA Manenkoff for ear pain. (Rec. Doc.

24, Medical Record at 24). PA Manenkoff diagnosed Gusman with TMJ with referred

pain, and prescribed Indocin. Id. On July 24, 2003, Gusman was seen by PA Murphy

for ear pain. (Rec. Doc. 24, Medical Records at 25). PA Murphy diagnosed Gusman

with chronic otitis media and prescribed Motrin. Id. 

On July 28, 2003, Gusman was taken to Divine Providence Hospital, in

Williamsport, Pennsylvania, where Dr. Frank performed Gusman's recommended ear

surgery. (Rec. Doc. 24, Operative Report at 42-46). Upon his return to FCI-Allenwood

from surgery, Gusman was seen by Dr. Migliorino, who prescribed Augmentin, Tylenol

#3, and Tylenol for Gusman. (Rec. Doc. 24, Medical Records at 26). Dr. Migliorino

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also scheduled Gusman for a follow-up visit with Dr. Frank. Id. On July 29, 2003, the

Utilization Review Committee approved Gusman's follow-up visit with Dr. Frank. (Rec.

Doc. 24, Medical Records at 25). 

On August 3, 2003, Gusman was seen by PA Manenkoff for his surgery follow-up.

(Rec. Doc. 24, Medical Records at 26). PA Manenkoff noted that while the wound was

healing well and he could see the right ear tube clearly, he could not see the left ear

ventilation tube. Id. PA. Manenkoff removed sutures from above Gusman's left ear, and

referred Gusman to Dr. Migliorino to “ascertain proper placement of tube” and to

determine whether there was a need for a follow-up visit with an ENT sooner. Id. Also,

on August 3, 2003, Gusman was seen by PA Roces, requesting something for pain.

(Rec. Doc. 24, Medical Records at 27). He was prescribed Motrin. Id.

On August 4, 2005, Gusman was seen by Dr. Migliorino for the follow-up visit

noted by PA Manenkoff on August 3, 2003. (Rec. Doc. 24, Medical Records at 28). Dr.

Migliorino contacted Dr. Frank, and was told that the left ear tube was obscured by

Gelfoam which would disappear with time. Id. 

On August 24, 2003, Gusman was seen by PA Murphy, requesting pain medication

and something for congestion. Id. PA Murphy prescribed Actifed and Motrin. Id. 

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On August 25, 2003, Gusman was examined by Dr. Frank for his four week followup. (Rec. Doc. 24, Medical Records at 25). Dr. Frank noted the following: 

We saw Mr. Gusman on 8/25/03 he is status post bilateral ventilation tubes

insertion and left tympanoplasty. Today the patient complains of clear nasal

discharge, hollow feeling in his ears and persistent hearing loss. He has been

explained that prior to the operation the audiogram recorded a significant

sensorineural hearing loss bilaterally which is permanent. 

Today a repeat audiogram was performed which revealed slight

improvement in the hearing thresholds that indicates that the tubes are

maintaining the middle ears dry, and there has been a slight improvement in

the conductive component of the hearing loss. However, the sensorineural

hearing loss component will be permanent. We are recommending a hearing

aid evaluation for this patient hoping that the system may approve a hearing

aid for him. A hearing aid will definitely improve his communication skills.

I also advised that he maintains protection of his ears while exposed to

water. It would also be advisable that ear plugs are supplied to him. 

His examination today revealed his ventilation tubes to be in place, patent

and dry. All the operative sites have healed nicely. Nasal examination

revealed purplish mucosa, which is suggestive of allergic rhinitis. I am

recommending that Mr. Gusman is prescribed with an appropriate

antihistamine for this problem. 

I would like to reevaluate him in six months. 

Rec. Doc. 24, at 55, August 26, 2003 evaluation letter from Dr. Frank. 

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On September 10 and 21, 2003, Gusman was seen by PA Roces requesting

renewal of his CTM medication. (Rec. Doc. 24, Medical Records at 29-30). Both times

Gusman's prescriptions were renewed. Id. 

On October 7, 2003, Gusman was seen by PA Murphy for leg pain. Gusman did

not mention anything about his ears. (Rec. Doc. 24, Medical Records at 31). Also, on

October 7, 2003, the Utilization Review Committee approved Gusman for a follow-up

with an ENT for a hearing aid evaluation. Id. 

On October 10, 2003, Gusman was seen by PA Murphy, complaining about pain

in his hip. (Rec. Doc. 24, Medical Records at 32). He did not complain about his ears.

Id. PA Murphy prescribed Naprosyn. Id. 

On October 20, 2003, Gusman was seen by PA Powanda, complaining that the

Naprosyn was not helping the pain in his hip. Id. PA Powanda changed Gusman's pain

medication to Motrin. Id. There were no complaints about his ears. Id. 

On October 22, 2003, Gusman was evaluated for his hearing aid. (Rec. Doc. 24,

at 52, 53, Evaluation and Hearing Aid Order form). He returned to FCI-Allenwood with

an order form for his hearing aid. Id.

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14

On October 28, 2003, PA Powanda ordered refills for Gusman's CTM medication.

(Rec. Doc. 24, Medical Records at 33). On November 12, 2003, Gusman was ordered

a Motrin refill by PA Powanda. Id. Refills for Gusman's CTM medication were also

ordered on November 12 and 22, 2003. Id. at 34. 

On November 28, 2003, Gusman was provided hearing aids by Health Services

Administrator Francisco Feliz. Id. On December 14, 2003, PA Powanda ordered a refill

of Motrin for Gusman. (Rec. Doc. 24, Medical Records at 35). On December 29, 2003,

PA Powanda diagnosed Gusman with nasal congestion and prescribed a CTM. Id. 

On January 14, 2004, PA Powanda ordered a refill of Motrin, at Gusman'srequest,

for his hip pain. (Rec. Doc. 24, Medical Records at 36). Gusman did not complain

about his ears. Id. On February 12, 2004, PA Powanda ordered a refill of Gusman's

CTM medication, at Gusman's request. Id. 

On February 24, 2004, Gusman was seen by Dr. Frank for his six month follow-up

visit. Id. Dr. Frank noted the following: 

We saw Mr. Gusman on follow up on 2/24/04. He complains of increased

humidity feeling in his ears, and he relates that to the fact that he is confined

in a humid and cold cell. He also refers that the earplugs that have been

provided do not fit properly and he worries about exposing his ears to

water. 

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15

On exam, both tubes are in place and patent and the surgical site is

completely healed in the left ear. Nasal passages, oral cavity and pharynx

were unremarkable. 

I feel Mr. Gusman should continue to avoid water in the ears and would be

advisable that he obtains earplugs that fit his ear canals properly to avoid

exposure to water. Also, he should be placed in a dehumidified environment

to prevent infection settling in the ear canal that could enter through the

ventilation tube and to the middle ear. He should be rechecked in six

months. I will not be available at that time since I will be leaving the area.

He can continue follow-up appointments with Dr. William Banks, who has

agreed to continue the care of my patients. 

Rec. Doc. 24, at 57, February 24, 2004, follow-up letter from Dr. Frank. 

On March 9, 2004, Gusman was transferred from FCI-Allenwood to SCISchuylkill. (Rec. Doc. 24, Medical Records at 37). 

Discussion

A. Eighth Amendment

The Eighth Amendment “requires prison officials to provide basic medical

treatment to those whom it has incarcerated.” Rouse v. Plantier, 182 F.3d 192, 197 (3d

Cir. 1999)(citing Estelle vs. Gamble, 429 U.S. 97 (1976)). In order to establish a claim

based on the Eighth Amendment, an inmate must allege acts or omissions by prison

officials sufficiently harmful to evidence deliberate indifference to a serious medical need.

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16

See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Natale v. Camden Cty.

Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). 

In the context of medical care, the relevant inquiry is whether the defendant was:

(1) deliberately indifferent (the subjective element) to (2) plaintiff's serious medical needs

(the objective element). Monmouth County Correctional Institution Inmates v. Lanzaro,

834 F.2d 326, 346 (3d Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).

Because only egregious acts or omissions can violate this standard, mere medical

malpractice can not result in an Eighth Amendment violation, nor can disagreements over

a prison physician's medical judgment. White v. Napoleon, 897 F.2d 103, 108-10 (3d Cir.

1990).

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 . . .” Estelle v. Gamble, 429 U.S. 97, 106,

(1976). “A medical decision not to order an X-ray, or like measures, does not represent

cruel and unusual punishment. At most it is medical malpractice[.]” Id. at 107.

“Allegations of medical malpractice are not sufficient to establish a Constitutional

violation.” Spruill, 372 F.3d at 235. “[A]s long as a physician exercises professional

judgment his behavior will not violate a prisoner’s constitutional rights.” Brown v.

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17

Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). In sum, negligence,

unsuccessful medical treatment, or medical malpractice do not give rise to a § 1983 cause

of action, and an inmate’s disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

A mere difference of opinion between the prison's medical staff and the inmate

regarding the diagnosis or treatment which the inmate receives does not support a claim

of cruel and unusual punishment. Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa.

1988); see McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547

F.2d 112, 113 (10th Cir. 1976), cert. denied, 450 U.S. 1041 (1981). 

Additionally, if there is a dispute over the adequacy of the received treatment,

courts have consistently been reluctant to second guess the medical judgment of the

attending physician. Little v. Lycoming County, 912 F. Supp. 809, 815 (M.D. Pa. 1996),

aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is whether the defendant has

provided the plaintiff with some type of treatment, regardless of whether it is what the

plaintiff desires. Farmer, 685 F. Supp. at 1339. 

The objective component of an Eighth Amendment claim, i.e., whether a plaintiff's

medical needs were serious, has its roots in contemporary standards of decency. Hudson

v. McMillian, 503 U.S. 1 (1992). A medical need is serious if it is one that has been

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18

diagnosed by a physician as mandating treatment or is one that is so obvious that even a

lay person would easily recognize the necessity for a doctor's attention. Johnson v.

Busby, 953 F.2d 349, 351 (8th Cir. 1991); Monmouth County Correctional Institution

Inmates, 834 F.2d at 347; Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert.

denied, 450 U.S. 1041 (1981); West v. Keve, 571 F.2d 158, 162-63 n.6 (3d Cir. 1978).

The serious medical need element contemplates a condition of urgency, one that may

produce death, degeneration, or extreme pain. See Monmouth County Correctional

Institution Inmates v. Lanzaro, 834 F.2d at 347; Archer v. Dutcher, 733 F.2d 14, 16-17

(2d Cir. 1984); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977). Not every injury or

illness invokes constitutional protection -- only those that are serious have that effect.

Additionally, a non-physician defendant cannot be considered deliberately indifferent for

failing to respond to an inmate’s medical complaints when the inmate is already receiving

treatment from the prison’s medical staff. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d

Cir. 1993).

A review of the documentation submitted by Defendants reveals that Plaintiff was

seen and treated in excess of thirty times between January 17, 2003, the date he first

starting complaining of ear pain, and March 9, 2004, the date Plaintiff was transferred.

Plaintiff's medical records show that he was prescribed several different anti-inflammatory

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19

and pain medications, prescribed various dosages of those medications, referred to, and

was seen by a specialist on several occasions, received an operation for his ear pain,

received hearing aids and continual follow-up treatment. (Rec. Doc. 24, Medical

Records, Consultation Records, and Physician's Notes). Indeed, the record establishes

meaningful efforts by Defendants to provide Plaintiff with necessary medical care, and an

attendant mental state that falls woefully short of deliberate indifference. 

Plaintiff has failed to present evidence from which a reasonable jury could conclude

that Defendants possessed the culpable mental state necessary for Eighth Amendment

liability to attach. There is insufficient proof in the record for a fair-minded jury to

conclude that Defendants were deliberately indifferent to Plaintiff's medical needs. See

Estelle, 429 U.S. at 97, 106; Monmouth County CorrectionalInstitution Inmates, 834 F.2d

at 346; West, 571 F.2d at 161. Indeed, the extent and quality of medical attention that

Defendants provided Plaintiff precludes a finding of deliberate indifference. 

Plaintiff admits that he was seen and treated by medical personnel throughout his

incarceration at the FCI-Allenwood. At no time does Plaintiff allege that he was refused

treatment. He admits that “there were antibiotics, pain medications and antihistamines

dispensed” as treatment for his ear infection and pain. (Rec. Doc. 27). He also states that

originally, he was “only given stop-gap undefined & inappropriately unspecific

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4. Since a Bivens action is the federal counterpart to actions filed under 42 U.S.C. § 1983, Paton v.

LaPrade, 524 F.2d 82 (3d Cir. 1975), we may properly look to § 1983 cases in considering Bivens

actions. Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976). 

20

Amoxicillin as a systemic remedy to his then ear infection. . . .Otherwise, [he] was only

treated for 'allergy' and 'pain'.” Id. Such allegations, however, at best, amount to a

subjective disagreement with the treatment decisions and medical judgment of the medical

staff at the prison. However, as simple negligence cannot serve as a predicate to liability

under the Eighth Amendment, Hudson v. Palmer, 468 U.S. 517 (1984), Plaintiff's civil

rights complaint fails to articulate an arguable claim, and Defendants are entitled to

judgment as a matter of law. See White, 897 F.2d at 108-110.

B. Respondeat Superior

Claims brought under § 19834 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

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21

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.

An application of the above standards to Gusman's complaint clearly shows that

he has failed to set forth a cognizable claim against Defendants Warden Yates and Health

Services Administrator Feliz. Aside from naming these Defendants in the caption of the

complaint, Gusman sets forth no allegations of personal involvement by these Defendants.

There is no evidence of record that such Defendants were personally involved in any of

the alleged incidents of deliberate indifference. Thus, it is apparent that Plaintiff is

attempting to impose liability on the basis of respondeat superior. In fact, Plaintiff

acknowledges that he is suing these two Defendants in their supervisory capacities as

Warden and Health Services Administrator. (Rec. Doc. 27 at 18-21). Moreover, these

Defendants, both non-medical personnel, cannot be considered deliberately indifferent for

failing to respond to an inmate’s medical complaints when the inmate is already receiving

treatment from the prison’s medical staff. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.

2004); Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993). Thus, Defendants Warden

Yates and Health Services Administrator Feliz are entitled to judgment as a matter of law.

Case 4:04-cv-02339-JEJ-DB Document 34 Filed 03/14/06 Page 21 of 24
22

Moreover, with respect to any claim Plaintiff makes for injunctive relief, the

adjudicatory power of a federal court depends upon "the continuing existence of a live

and acute controversy." Steffel v. Thompson, 415 U.S. 452, 459 (1974) (emphasis in

original). "The rule in federal cases is that an actual controversy must be extant at all

stages of review, not merely at the time the complaint is filed." Id. at n.10 (citations

omitted). "Past exposure to illegal conduct is insufficient to sustain a present case or

controversy regarding injunctive relief if unaccompanied by continuing, present adverse

effects." Rosenberg v. Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y. 1985) (citing O'Shea

v. Littleton, 414 U.S. 488, 495-96 (1974)).

Furthermore, "[a]bsent class certification, an inmate's claim for injunctive and

declaratory relief in a section 1983 action fails to present a case or controversy once the

inmate has been transferred." Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985)

(citation omitted); see also Carter v. Thompson, 808 F. Supp. 1548, 1555 (M.D. Fla.

1992). The instant Plaintiff is no longer confined in FCI-Allenwood, and there is no

reasonable probability that he will be returned to that correctional facility in the foreseeable

future. Consequently, since Plaintiff is not suffering any apparent continuing adverse

effects as a result of his prior confinement at the FCI-Allenwood, his requests for

injunctive relief are moot under the standards set forth in Rosenberg and Wahl.

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Finally, to the extent that Plaintiff seeks to bring this action as one under the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., the filing of an administrative tort

claim with the appropriate federal agency is a jurisdictional prerequisite to bringing a civil

action against the United State for damages for the negligence or wrongful act of any

employee of the United States. See 28 U.S.C. § 2675(a). The record reveals that

Gusman has not filed any administrative tort claim with the Northeast Regional Office of

the Bureau of Prisons. (Rec. Doc. 24, Ex. 2, Declaration of Patricia M. Gotts,

Supervisory Paralegal of the Northeast Regional Counsel's Office, Philadelphia,

Pennsylvania). An administrative claim must be presented to the appropriate Federal

agency employing the person whose act or omission caused the injury, and have been

finally denied by the agency in writing. If the claim is not presented before commencing

suit, the suit must be dismissed even if the claim is subsequently presented. See McNeil

v. United States, 508 U.S. 106 (1993). Thus, despite Gusman's repeated references to

allegations of gross medical negligence and improper medical care, Plaintiff's failure to file

an administrative tort claim bars any claim for relief under the FTCA. 

Case 4:04-cv-02339-JEJ-DB Document 34 Filed 03/14/06 Page 23 of 24
NOW, THEREFORE, IT IS ORDERED THAT:

1. Defendants' Motion for Summary Judgment (doc. 22) is

GRANTED. Judgment is hereby entered in favor of the

Defendants and against Plaintiff.

2. Plaintiff's Motion for Appointment of Counsel (doc. 26) is

DISMISSED as moot.

3. The Clerk of Court is directed to CLOSE this case. 

4. Any appeal taken from this order will be deemed frivolous,

without probable cause, and not taken in good faith.

s/ John E. Jones III 

JOHN E. JONES III

United States District Judge

Case 4:04-cv-02339-JEJ-DB Document 34 Filed 03/14/06 Page 24 of 24