1

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).

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN OTIS BURNSIDE, :

:

Plaintiff, : No. 4:CV-05-1845

:

vs. : Complaint Filed 09/13/05

:

M. WARNICK, P.A., : (Judge Muir)

O. OKUNDAYE, M.D., :

E. ROCES, P.A., and the : (Magistrate Judge Blewitt)

MEDICAL STAFF UTILIZATION :

REVIEW COMMITTEE, :

:

Defendants :

ORDER

November 16, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On September 13, 2005, Plaintiff John Otis Burnside, an

inmate at the Federal Correctional Institution at Allenwood, in

White Deer, Pennsylvania, initiated this action by filing a civil

rights complaint pursuant to the holding of the United States

Supreme Court in Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971).1 

According to the complaint, on September 1, 2004, Burnside

fell from the top bunk in his cell and broke his left hand. 

Immediately after the incident his hand became swollen. The

Case 4:05-cv-01845-MM Document 16 Filed 11/16/05 Page 1 of 8
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individual Defendants are identified as Physician’s Assistant M.

Warnick, Physician’s Assistant E. Roces, and Dr. O. Okundaye. 

Each of them allegedly participated to some extent in providing

Burnside’s treatment. The only other named Defendant is the

Medical Staff Utilization Review Committee. Burnside is

proceeding pro se and in forma pauperis. 

The Clerk of Court assigned this case to us and referred it

to Magistrate Judge Thomas M. Blewitt for preliminary

consideration. The Magistrate Judge preliminarily screened the

complaint pursuant to 28 U.S.C. § 1915A. 

On October 11, 2005, Magistrate Judge Blewitt issued a 17-

page report recommending that the complaint be dismissed for

failure to state a claim upon which relief may be granted. With

respect to Defendants Warnick, O. Okundaye, and Roces, the

Magistrate Judge concluded that even if all of the allegations in

the complaint are accepted as true Burnside is not entitled to

any relief because the alleged conduct of those Defendants fails

to establish deliberate indifference to any serious medical need. 

The Magistrate Judge determined that the Medical Staff

Utilization Review Committee is not a proper party.

On October 19, 2005, Burnside timely filed objections to

Magistrate Judge Blewitt’s Report and Recommendation. A

supporting brief was filed with the objections. Although the

Magistrate Judge issued the Report and Recommendation without

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For instance, there is an ambiguous “Certificate of

Service” attached to Burnside’s brief in support of his

objections. 

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requiring service of the complaint upon any Defendant, Burnside’s

objections indicate that he may have served one or more of the

Defendants with copies of his objections.2 Out of an abundance

of caution we withheld ruling on Burnside’s objections until the

time allowed for an opposition brief expired, which was November

7, 2005. To this date no such brief has been filed and

Burnside’s objections are ripe for disposition.

Title 28 U.S.C. § 1915A, entitled “Screening,” provides in

part that “[t]he 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.” 

Subsection (b) of that statute, entitled “Grounds for dismissal,”

states in relevant part that

[o]n review, the court shall identify cognizable claims or

dismiss the complaint, or any portion of the complaint, if

the complaint ... fails to state a claim upon which relief

may be granted.

28 U.S.C. § 1915A(b)(1). 

Magistrate Judge Blewitt recommends that Burnside’s

complaint be dismissed pursuant to that statute because the

complaint fails to state any claim upon which relief may be

granted. That recommendation requires us to consider whether the

complaint states a claim upon which relief may be granted. 

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Under the circumstances, we will accept all material

allegations of the complaint as true and construe all inferences

in the light most favorable to the plaintiff. Scheuer v. Rhodes,

416 U.S. 232, 236 (1974); Colburn v. Upper Darby Township, 835

F.2d 663, 665-66 (3d Cir. 1988). We recognize that the complaint

should not be dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiffs can prove no set of

facts in support of their claim which would entitle them to

relief. See Conley v. Gibson, 355 U.S. 41, 44-46 (1957).

All of Burnside’s claims are based on his allegations that

the Defendants violated his Eighth Amendment rights when they

were deliberately indifferent to the medical needs stemming from

his hand injury. According to the complaint, the day after his

fall Burnside received medical treatment for all of the injuries

suffered in that incident. After subsequently complaining about

his hand, on October 19, 2004, his hand was x-rayed. Burnside

admits that “when the X-rays of the [his] Left-Hand finally did

come back, they showed no fracture or abnormality.” (Complaint,

pp. 2-2A) Nonetheless, he contends that the named Defendants

are all liable to the Plaintiff, [sic] for not even allowing

an Orthopedic Specialist to look at the Plaintiff’s LeftHand, as well as refusing to order a “Motion M.R.I. -

Dynamic Kinematic M.R.I. Imaging Exam, so that Plaintiff can

be diagnosed properly, and finally, for not ordering

Corrective Orthopedic Surgery, after the Plaintiff is

diagnosed properly by an Orthopedic Specialist ....

(Complaint, pp. 2A-2B)(Emphasis in original) 

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In order to state an Eighth Amendment claim based on medical

treatment, a plaintiff is required to allege that a defendant

“acted or failed to act despite knowledge of a substantial risk

of serious harm.” Farmer v. Brennan, 511 U.S. 825, 842, 114 S.

Ct. 1970 (1994). The Court of Appeals for the Third Circuit has

held that

[i]n order to establish a violation of [a prisoner's]

constitutional right to adequate medical care, evidence must

show (i) a serious medical need, and (ii) acts or omissions

by prison officials that indicate deliberate indifference to

that need.

Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d

Cir. 2003). The United States Supreme Court has held that

neither "an inadvertent failure to provide adequate medical care"

nor "negligen[ce] in diagnosing or treating a medical condition"

satisfies the deliberate indifference standard. Estelle v.

Gamble, 429 U.S. 97, 105-106, 97 S. Ct. 285, 50 L. Ed. 2d 251

(1976)(holding that plaintiff's allegation that prison doctors

should have performed certain diagnostic tests instead of tests

actually performed did not state claim under § 1983).

In this case the allegations in Burnside’s complaint

indicate that 1) Dr. Okundaye has treated Burnside’s hand injury,

and 2) the x-ray administered by the Defendants fails to reveal

any “fracture or abnormality.” (Complaint, p. 2A) Burnside’s

claim is based strictly on his contention that the constitution

requires the Defendants to provide further treatment in the form

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of either an M.R.I. or a consult with an orthopedic surgeon for

corrective surgery.

We agree with Magistrate Judge Blewitt’s determination that

Burnside fails to state any Eighth Amendment claim against the

individual Defendants because Burnside’s claims are based merely

on his disagreement with their course of treatment. See Estelle,

429 U.S. at 107 ("A medical decision not to order an X-ray, or

like measures, does not represent cruel and unusual

punishment."); see also Young v. Quinlan, 960 F .2d 351, 358 n.

18 (3d Cir.1992)(inmate's disagreement with prison personnel over

medical judgment does not state a claim for relief under Bivens);

Monmouth County Correctional Institute Inmates, 834 F.2d at 346

(mere disagreement about proper medical treatment does not

support an Eighth Amendment claim). In the face of an x-ray

showing no fracture or abnormality, the Defendants’ refusal to 

proceed with an M.R.I. or a referral to an orthopedic surgeon

does not constitute deliberate indifference.

Burnside’s objections to the Report and Recommendation do

not directly challenge any of the Magistrate Judge’s findings or

conclusions. In his objections Burnside simply provides the

court with a copy of a medical record dated September 1, 2005,

which was previously unavailable to him. We make two

observations concerning those document. First, as a threshold

matter, we question its relevance at this point because only the

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allegations in the complaint may be considered at this time. 

Second, even if we were to consider the new document, it does not

cast the allegations in the complaint in a different light. 

Nothing in those documents indicates that any individual

Defendant was deliberately indifferent to Burnside’s medical

needs. In fact the document further undermines Burnside’s claims

because in it the examining physician notes that Burnside

possesses “full ROM of fingers,” which we interpret to mean full

range of motion. (Brief in Support of Objections, Exhibit #2)

The only other recommendation to consider is that pertaining

to the fourth Defendant, the Medical Staff Utilization Review

Committee. Numerous reported decisions support the Magistrate

Judge’s conclusion that an entity such as the Medical Staff

Utilization Review Committee, in its capacity as a governmental

entity, is not a proper defendant in an action brought pursuant

to Bivens. See Umezurike v. Bureau of Prisons, 2005 WL 2100700,

*2 (M.D. Pa. August 26, 2005)(Jones, J.)(citing Hindes v.

F.D.J.C., 137 F.3d 148, 159 (3d Cir.1998); Figueroa-Garay v.

Municipality of Rio Grande, 364 F.Supp.2d 117, 128 (D.P.R. 2005);

Shannon v. U.S. Parole Commission, 1998 WL 557584 *3 (S.D.N.Y.

Sept. 2, 1998)(court stated that "Bivens claims may not be

maintained against federal agencies."); Duarte v. Bureau of

Prisons, 1995 WL 708427 *2 (D. An. Nov. 3, 1995)(the BOP "is not

a proper defendant in a Bivens action."))

Case 4:05-cv-01845-MM Document 16 Filed 11/16/05 Page 7 of 8
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We will overrule Burnside’s objections and adopt Magistrate

Judge Blewitt’s Report and Recommendation in its entirety.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Burnside’s objections (Document 13) to Magistrate Judge

Blewitt’s Report and Recommendation are overruled.

2. The Magistrate Judge’s recommendations are adopted in

toto.

3. Burnside’s complaint (Document 1) is dismissed without

prejudice for failure to state a claim upon which

relief may be granted.

4. The Clerk of Court shall close this case.

5. Any appeal of this order shall be deemed frivolous,

without probable cause, and not taken in good faith.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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