The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
Victor Perez ("Perez" or the "plaintiff"), proceeding pro se,
seeks monetary, declaratory, and injunctive relief for alleged
violations of his Fifth and Eighth Amendment rights that allegedly
occurred during the plaintiff's incarceration at the Low Security
Correctional Institution Allenwood ("LSCI Allenwood") and at the
Metropolitan Detention Center in Brooklyn, New York ("MDC Brooklyn").
Presently before the Court is a motion to dismiss by Kathleen Hawk
("Hawk"), Susan Gerlinski ("Gerlinski"), D. DeSantis ("DeSantis"), Dr.
Toa Chaw ("Dr. Chaw"), Physician's Assistant ("Kohler"), Unknown
Allenwood Lieutenant, Unknown Personnel at Allenhouse Powerhouse, Denis
W. Hasty ("Hasty"), Dr. Berecky, Physician's Assistant Smith ("PA
Smith"), Unknown Personnel at MDC Brooklyn Powerhouse (collectively, the
"Federal Defendants") for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P.)
or, in the alternative, for summary judgment.
The facts are taken from the complaint and taken as true for the
purposes of this motion. The plaintiff is a federal prisoner currently
incarcerated at FCI Fort Dix, New Jersey. On September 19, 2000, while
incarcerated at LSCI Allenwood the plaintiff was examined by Dr. Chaw at
LSCI Allenwood's Health Services Facility (the "Health Services
Facility"). The plaintiff complained of "itching, swelling and red rashes
on his body that expanded upon touching, and that these symptoms were
spreading all over the [p]laintiff's body. Compl. ¶ 5. Dr. Chaw
diagnosed the plaintiff as having an allergic reaction to something that
the plaintiff had earlier consumed or touched and prescribed
antihistamines for the Plaintiff.
Two days later, the plaintiff was examined by Physician's Assistant
Fascina ("PA Fascina") and Dr. Chaw at the Health Services Facility
because the plaintiff's feet "had swollen to the size of [a] football"
and the plaintiff was once again suffering from itching and swelling on
his entire body. PA Fascina gave the plaintiff a "shot of Benadryl,"
ordered an HIV test and asked the plaintiff to return to the Health
Services Facility several days later. Compl. ¶ 6. At the plaintiff's
return visit, the plaintiff was again examined by PA Fascina who
concluded that the plaintiff's rashes were attributable to something that
the plaintiff consumed or touched. PA Fascina told the plaintiff that
because the Bureau of Prisons (the
"BOP") would not pay for an allergist or dermatologist, the
plaintiff would have to determine the specific source of the irritation
himself. PA Fascina again prescribed antihistamines for the plaintiff.
On October 5, 2000, the plaintiff returned to the Health Services
Facility because of his ongoing chronic itching, swelling and rashes.
Although the plaintiff explained to PA Fascina that the previously
prescribed antihistamines "simply were not working," Compl. ¶ 8, the
same medications were prescribed to the plaintiff. On October 12, 2000,
the plaintiff reported to the Health Services Facility complaining of
swollen lips and unhealed rashes on his body "from head to foot." Compl.
¶ 9. The plaintiff suggested to Dr. Chaw and PA Fascina that LSCI
Allenwood's water supply was the source of his condition. Dr. Chaw
prescribed a different type of antihistamine for the Plaintiff.
Between October 12, 2000 and November 30, 2000, the plaintiff began to
experienced rapid heartbeats, a swollen tongue, shocks in the middle of
the night, swelling in all of his joints and, on occasion, numbness in
his entire body. The plaintiff's groin area became "grotesquely swollen"
and he saw a mucuous-like substance after using the bathroom. Compl.
¶ 10. The plaintiff claims that he was "brushed off" by the staff
members to whom he complained. PA Kohler indicated to the plaintiff that
the problems could be related to the HIV virus and ordered the plaintiff
to be tested again. Id. During this time, the plaintiff received
prescriptions for antihistamines.
On December 5, 2000, the plaintiff contacted his attorney and expressed
his strong fear of losing his life during his incarceration because of
his severe and worsening medical condition. The plaintiff's attorney
indicated that he would write a letter to Warden Susan Gerlinski
("Gerlinski"), the warden of LSCI Allenwood, to expedite a transfer. This
transfer was previously proved by the BOP's Northeast Regional Director.
On December 7, 2000, after he placed another call to his attorney, the
plaintiff claims he was threatened by an unnamed Lieutenant that if the
"plaintiff continued to `expose' the situation to anyone `outside or
inside' the Allenwood facility" he would be placed in solitary
confinement. Compl. ¶ 19. This Lieutenant also demanded that the
plaintiff formally accept a finding that bathing soap was the sole cause
of the plaintiff's illness. The plaintiff responded by showing the
Lieutenant his rashes who immediately sent the plaintiff to Dr. Chaw.
On December 7, 2000, the plaintiff complained to Dr. Chaw that his
symptoms were increasingly more severe and included swelling, different
types of irritating rashes, tightness of the chest, erratic heartbeats
and night shocks. Dr. Chaw declined to order that the plaintiff be
examined by an allergist or dermatologist. Rather, Dr. Chaw prescribed
antihistamines and calamine lotion. Dr. Chaw also dismissed the
plaintiff's notion that the water supply was the source of the
On December 18, 2000, DeSantis, the Health Service Administrator at
LSCI Allenwood, told the plaintiff that his transfer would be barred if
the plaintiff does not accept
the conclusion that the plaintiff's medical problems were caused by the
bathing soap. DeSantis also dismissed Dr. Chaw's written recommendation
that would allow the plaintiff to purchase extra bottles of water from
the commissary which forced the plaintiff to consume only the water at
LSCI Allenwood. DeSantis also stated that he would monitor the plaintiff
closely to make certain that the plaintiff purchased a different brand of
On or about December 21, 2000, Gerlinski told the plaintiff that no
transfer could be effectuated because the plaintiff's records contained
open medical problems. Gerlinski also informed the plaintiff that MDC
Brooklyn treats its water supply with chemicals pursuant to an order of
the Bureau of Prisons. Gerlinski also indicated to the plaintiff that she
directed DeSantis to tell the plaintiff that unless the plaintiff
accepted conclusion that the plaintiff's medical problems were caused by
the bathing soap, his transfer would be barred. At this meeting,
Gerlinski reiterated the position that the plaintiff had to formally
accept the conclusion that his medical problems were bring caused by the
brand of soap he was using. The plaintiff alleges that Gerlinski
acknowledged that she oversaw all of the acts complained of and
acknowledged the use of chemicals in the Allenwood water supply.
On December 25, 2000, the plaintiff submitted a form to LSCI Allenwood
Safety Manager Mudge requesting that an investigation be made of the
chemicals used in the treatment of the LSCI Allenwood water supply. Mudge
told the plaintiff to address his complaints to the Health Services
Thereafter, the plaintiff was transferred to MDC Brooklyn. On or
about December 26, 2000, the plaintiff visited MDC Brooklyn's Health
Services Facility to register his medical condition. The MDC Brooklyn
medical staff did nothing other than prescribe antihistamine medications
to the plaintiff.
On February 20, 2001, the plaintiff complained to the MDC Brooklyn
Health Services staff that in addition to his previous symptoms, the
plaintiff noticed that there was "highly-visible yellow gel-like
discharges mingled with blood in his waste." Compl. ¶ 14. The MDC
Brooklyn Health Services staff only made a "perfunctory examination" and
prescribed antihistamines. Compl. ¶ 14.
Toward the end of February and the beginning of March, 2001, the
plaintiff was examined by PA Smith at MDC Brooklyn Health Services
Facility. At this examination, the plaintiff complained of stomach pains,
yellow mucous in his stool, and irritating itching red-dots appearing on
the plaintiff's pores after he perspired. PA Smith promised the plaintiff
that he would speak to one of the doctors on staff to obtain a resolution
of the matter.
On March 12, 2001, while the plaintiff was working at his assigned
duties at MDC Brooklyn's food service facility, he suddenly experienced
excruciating stomach pain and later noticed that there were substantial
amounts of blood in his stool. Later that day, PA Smith told the
plaintiff that he had contracted either a severe strain of the herpes
virus or gonorrhea. PA Smith prescribed a combination of antibiotics for
Three months later, the plaintiff once again visited MDC Brooklyn's
Health Services Facility, where he was once again examined by PA Smith.
The plaintiff advised PA Smith that other inmates in the plaintiff's
housing unit had been complaining about similar symptoms and that he
believed that the problems were related to the water supply at MDC
Brooklyn. PA Smith informed the plaintiff that he spoke with other
members of the facility's health services staff about the plaintiff's
concerns regarding the water supply and that Dr. Berecky, a doctor at MDC
Brooklyn, dismissed the plaintiff as being "psychotic." Compl. ¶ 17.
On June 29, 2001, the plaintiff met with Dr. Berecky. The plaintiff
explained that he uncovered "conclusive evidence" that the MDC Brooklyn
Powerhouse was treating the water supply and causing illness among the
prison population. Compl. ¶ 18. The plaintiff asked to be examined by
an allergist or dermatologist but instead Dr. Berecky ordered the
plaintiff to see the staff psychologist.
On March 27, 2002, Perez visited MDC Brooklyn's Health Services Unit.
The attached medical record for this visit indicates that Perez "states
he feels fine . . .[and that his] rash is under control." Medical
Record dated March 27, 2002.
At some point, the plaintiff approached Mr. Butler ("Butler"), the MDC
Brooklyn Safety Manager inquiring why potentially unsafe chemicals were
being added to the Institution's water supply. The plaintiff claims that
Mr. Butler has never accepted responsibility for determining the level
and safety of the chemicals being used in the water
supply. The plaintiff claims that the chemicals are distributed by
the defendant The Metro Group, Inc. and these chemicals contain compounds
that can have serious adverse effects on the inmate population. The staff
at MDC Brooklyn deny that chemicals are being added to the MDC Brooklyn
On September 12, 2002, the plaintiff filed this complaint alleging that
the Federal Defendants: (1) failed to provide the plaintiff with
appropriate medical care and provide measures to secure the plaintiff's
health; (2) threatened, coerced and intimidated the plaintiff because of
his complaints; (3) as a result of the Federal Defendants' "policies,
practices, procedures, acts and omissions, the plaintiff has suffered,
does suffer and will continue to suffer immediate and irreparable injury,
including physical, psychological and emotional injury." Compl. p. 12.;
and (4) the conditions at LSCI Allenwood and MDC Brooklyn are
incompatible with contemporary standards of decency and have caused
unnecessary and wanton infliction of pain and suffering. In addition, the
plaintiff claims that the Federal Defendants at MDC Brooklyn gave
misleading diagnoses of the plaintiff's serious health problems, acted
negligently, and failed to inform the inmate population of actions taken
at the MDC Brooklyn Powerhouse which a llegedly endangered the inmates'
health and safety. The plaintiff claims that the water supply in both
LSCI Allenwood and MDC Brooklyn contains harmful chemicals that are
distributed by defendant The Metro Group, Inc. and these chemicals
contain compounds that can have serious adverse effects on the inmate
Presently before the Court is the Federal Defendants' motion to dismiss
or, in the alternative, for summary judgment. In particular the Federal
Defendants argue that: (1) there is no personal jurisdiction over several
of the federal defendants because they were not properly served; (2)
Perez's allegations concerning his incarceration at LSCI Allenwood should
be dismissed or, in the alternative, transferred to the Middle District
of Pennsylvania; (3) the complaint must be dismissed to the extent that
the plaintiff sues the Federal Defendants in their official capacities;
(4) the plaintiff has failed to state a claim under 42 U.S.C. § 1983
("Section 1983"); and (5) the plaintiff's allegations concerning
inadequate medical care do not rise to the level of a constitutional