1

 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

BERNARD MACKEY, :

:

Plaintiff : CIVIL NO. 4:CV-05-2607

:

v. : (Judge Jones)

:

BUREAU OF PRISONS, et al., :

:

Defendants :

ORDER

January 30, 2006

Plaintiff Bernard Mackey (“Plaintiff” or “Mackey”), an inmate confined in the

United States Penitentiary, in Lewisburg, (“USP-Lewisburg”), Pennsylvania, filed this

Bivens1styled civil rights action pursuant to 28 U.S.C. § 1331. The required filing

fee has been paid. For the reasons outlined below, this action will be dismissed as

legally frivolous pursuant to 28 U.S.C. § 1915A.

The Prison Litigation Reform Act includes a new section that relates to

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screening complaints in prisoner actions where the inmate has not applied to proceed

in forma pauperis. 28 U.S.C. § 1915A (added by § 805 of the Act). Section 1915A

provides in pertinent part:

(a) Screening. -- The court shall review . . . a complaint in a civil action

in which a prisoner seeks redress from a governmental entity or officer

or employee of a governmental entity.

(b) Grounds for dismissal. -- On review, the court shall identify

cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint --

(1) is frivolous, malicious, or fails to state a claim upon

which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune

from such relief.

28 U.S.C. § 1915A..

The Defendants named in the complaint are as follows: the Bureau of Prisons;

Joseph V. Smith, USP-Lewisburg Warden; Dave Moffat, USP-Lewisburg Camp

Administrator; Joseph Brown, USP-Lewisburg Health Services Administrator; Paul

Clemens, USP-Lewisburg Camp Commander; William A. Bogler and Samuel Gosa,

USP-Lewisburg Camp Physician Assistants; Dr. Anthony Bussanich, USP-Lewisburg

Physician; Dr. David J. Ball, Orthopedic Physician; Dr. Howard P. Schiele,

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Radiologist; Stacey Dreese, Health Services Secretary; and R. Parky, USP-Lewisburg

Prison Camp paramedic. 

Plaintiff alleges that in May 2005, while at the USP-Lewisburg Prison Camp,

he broke his left ankle and fibula bone. He states that he “seek[s] to file his case

based on the fact that the Bureau of Prisons was negligent in their care and handling

of his person as a ward of the Attorney General's Office” and that the “Bureau of

Prisons Medical care that was rendered failed to correct the injury to which he

sustained approximately seven months ago and still exists at this present date and

time, despite the fact that the Plaintiff has been seen by Lewisburg's medical

department along with the outside contract orthopedic physician for the Bureau of

Prisons at Lewisburg.” (Rec. Doc. 1, at 2, ¶ 1). Thus, Plaintiff filed the instant

action, in which he seeks to be “seen by an entirely new group of physicians, to

include a different outside orthopedic doctor to correct the injury [he] sustained in

May, 2005.” Plaintiff also seeks compensatory and punitive damages, as well as to

“hold all parties it deems responsible/ accountable for being negligible toward the

Plaintiff's medical care.” (Rec. Doc. 1, at 3 ¶¶ 1-3). 

Discussion

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A Bivens-type action is the federal counterpart to an action filed under 42

U.S.C. § 1983. See Paton v. LaPrade, 524 F.2d 82 (3d Cir. 1975); Farmer v.

Carlson, 685 F. Supp. 1335, 1338 (M.D. Pa. 1988)(Nealon, J.). 

In order to prevail on a claim made under § 1983, the plaintiff must satisfy two

criteria: (1) that some person has deprived him or her of a federal right, and (2) that

the person who caused the deprivation acted under color of state or territorial law.

West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

155 (1978). 

In order to establish a claim under § 1983 based on the Eighth Amendment, the

plaintiff must show “a prison official’s ‘deliberate indifference’ to a substantial risk

of serious harm.” Farmer v. Brennan, 511 U.S. 825, 827 (1994) (citing Helling v.

McKinney, 509 U.S. 25 (1993); Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v.

Gamble, 429 U.S. 97 (1976)). An inadequate medical care claim, as is presented here,

requires allegations that the prison official acted with “deliberate indifference to

serious medical needs” of the plaintiff, while a prisoner. Estelle, 429 U.S. at 104

(1976); Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir.

2003). The official must know of and disregard an excessive risk to inmate health or

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safety. Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from

which the inference can be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Id. This standard “affords considerable latitude

to prison medical authorities in the diagnosis and treatment of the medical problems

of inmate patients. Courts will ‘disavow any attempt to second guess the propriety

or adequacy of a particular course of treatment. . . which remains a question of sound

professional judgment.’” Little v. Lycoming County, 912 F. Supp. 809, 815 (M.D.

Pa. ) aff’d, 103 F.3d 691 (1996) (citing Inmates of Allegheny County Jail v. Pierce,

612 F.2d 754, 762 (3d Cir. 1979), quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th

Cir. 1977)). 

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 . . .” Estelle v. Gamble, 429 U.S.

97, 106 (1976). More than a decade ago, the Third Circuit ruled that “while the

distinction between deliberate indifference and malpractice may be subtle, it is well

established that as long as a physician exercises professional judgment, his behavior

will not violate a prisoner’s constitutional rights.” Brown v. Borough of

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Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). “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.” Estelle v. Gamble, 429 U.S. at 107. 

Where an inmate is provided with medical care and the dispute is over the

adequacy of that care, an Eighth Amendment claim does not exist. White v.

Napoleon, 897 F.2d 103, 108-10 (3d Cir. 1990). A mere difference of opinion

between the inmate and the prison’s medical staff regarding the diagnosis or treatment

which the inmate receives does not support a claim of cruel and unusual punishment.

See McFadden v. Lehman, 968 F.Supp. 1001 (M.D. Pa. 1997); Young v. Quinlan,

960 F.2d 351, 358 n. 18 (3d Cir. 1992). 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). 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 v. Carlson, 685

F. Supp. at 1339. 

Assuming without reaching the issue of whether Plaintiff’s injury is serious in

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the constitutional sense, the allegations in the complaint clearly illustrate that Plaintiff

has received medical attention. Plaintiff himself admits to having been seen on six

separate occasions regarding his injury. (Rec. Doc. 1, at 2, ¶¶ 4-11). The allegations

in Plaintiff’s complaint amount to nothing more than Plaintiff's subjective

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

at the prison. At most, the allegations in the complaint only rise to the level of mere

negligence. As simple negligence cannot serve as a predicate to liability under § 1983,

Hudson v. Palmer, 468 U.S. 517 (1984), Plaintiff's civil rights complaint fails to

articulate an arguable claim under § 1983. See White, 897 F.2d at 108-110. Thus,

since Plaintiff's Complaint is "based on an indisputably meritless legal theory" (that

the negligence of Defendants violated his Eighth Amendment rights), it will be

dismissed without prejudice as legally frivolous. Wilson v. Rackmill, 878 F.2d 772,

774 (3d Cir. 1989).

Moreover, to the extent that Plaintiff names Superintendent Smith, USPLewisburg Camp Administrator, and Health Services Administrator Brown as

Defendants, claims brought under § 1983 cannot be premised on a theory of

respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

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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.

Based on a review of Plaintiff’s complaint, it is apparent that he is relying solely

upon a theory of respondeat superior as to such Defendants. Plaintiff fails to assert

that these Defendants had any personal involvement in actions which resulted in a

violation of his constitutional rights. Accordingly, these Defendants are entitled to

dismissal.

Under the circumstances, the court is confident that service of process is not

only unwarranted, but would waste the increasingly scarce judicial resources that §

1915(d) is designed to preserve. See Roman v. Jeffes, 904 F.2d 192, 195 n.3 (3d Cir.

1990).

NOW, THEREFORE, IT IS ORDERED THAT: 

1. Plaintiff's complaint (doc. 1) is DISMISSED without

prejudice as frivolous pursuant to 28 U.S.C. §

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1915A(b)(1).

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

3. Any appeal from this order will be deemed frivolous, not

taken in good faith and lacking probable cause. 

s/ John E. Jones III 

JOHN E. JONES III

United States District Judge

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