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Doe v. Torres

February 8, 2006

JOHN DOE, PLAINTIFF,
v.
HEALTH ADMINISTRATOR JORGE TORRES, DR. M. GLOVER, DR. PRADIP M. PATEL, DR. KAHANOWICZ, AND PHYSICIAN ASSISTANT PATEL, AND THE UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION

John Doe,*fn1 an inmate at a Bureau of Prisons ("BOP") facility proceeding pro se, seeks relief against various BOP employees and a doctor who worked under a contract with the BOP. Doe's claims are based on allegedly improper medical treatment he received. The defendants have moved to dismiss Doe's complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the following reasons, the motions should be granted in part and denied in part.

I. BACKGROUND

A. Factual History

The following facts are alleged by Doe in his complaint and are accepted as true for purpose of the current motions.

In late February 2004, while incarcerated at the Metropolitan Correctional Center in New York City ("MCC"), Doe injured his right knee playing basketball. See Redacted Complaint, dated Feb. 24, 2005 ("Compl.") (Docket #2), ¶ IV. He reported the injury to a "recreation specialist," and the next day to his counselor and his Unit Manager, who put him in touch with a physician's assistant, Gautam Patel. Id. Gautam Patel took him to see Dr. Glover, a staff physician at the MCC. Dr. Glover took an x-ray "which did not show anything," after which Doe told Dr. Glover that "it felt like I tore something." Id. On March 4, 2004, Dr. Glover filled out a diagnostic form and checked a box indicating that any further treatment requiring Doe's transportation outside the prison was "Medically Acceptable But Not Medically Necessary: for the convenience of the inmate." See Diagnostic Report of Dr. M. Glover, dated Mar. 4, 2004 ("3/4/04 Report") (reproduced as Ex. B to Compl.), at 1. On March 11, 2004, Dr. Glover examined Doe again, and this time checked a box indicating that further treatment was "Presently Medically Necessary: treatment that cannot reasonably be delayed without causing further serious deterioration, significant pain or discomfort." See Diagnostic Report of Dr. M. Glover, dated Mar. 11, 2004 ("3/11/04 Report") (reproduced as Ex. B to Compl.), at 2.

At some point following this second visit, Dr. Glover referred Doe to an orthopedist, Dr. Kahanowicz, see 3/11/04 Report at 2, who apparently is not a BOP employee. See Compl. ¶ IV; Professional Services Agreement, dated Dec. 15, 2003 ("Kahanowicz Contract") (reproduced as Ex. B to Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff's Complaint, dated July 8, 2005 ("Kahanowicz Mot. to Dismiss")). Dr. Kahanowicz examined Doe and told him to "just exercise" the knee and return in "a few weeks" for a follow-up. Compl. ¶ IV. After three follow-up visits to Dr. Kahanowicz, Doe's knee was still swollen, which led him to contact Dr. Pradip Patel. Dr. Patel told him to see Dr. Kahanowicz again, and that if he was still unsatisfied, Dr. Patel would give him a second opinion. See Compl ¶ IV. On March 25, 2004, Dr. Patel examined Doe and ordered a magnetic resonance imaging exam ("MRI") on Doe's right knee. See Diagnostic Report of Dr. P. Patel, dated Mar. 25, 2004 (reproduced as Ex. B to Compl.), at 3.

On April 8, 2004, Doe underwent the MRI on his right knee. Compl. ¶ IV-A. Doe states that this procedure revealed a "small subchondral cyst in the femoral condyles, and small cystic area in the inferior patellar attachment" of the right knee. Id. (capitalization omitted). Dr. Patel's own notes of the procedure, recorded on May 13, 2004, read as follows: "Reveal bone bruise, mild arthritis [changes], no meniscal abnormalities." See Diagnostic Report of Dr. P. Patel, dated May 13, 2004 (reproduced as Ex. B to Compl.), at 4.

On July 29, 2004, Doe was still experiencing pain and was referred to an orthopedic surgeon, Dr. Kaplan, who recommended arthroscopic surgery on his knee. See Compl. ¶ IV. Doe had the surgery on October 13, 2004. See id. After surgery, Doe was told he still had "loose chips" and that he might need more surgery. The surgeon also prescribed physical therapy, but did "not want to give to[o] much therapy." Id.

Doe characterizes his treatment prior to surgery as consisting of "X-ray MRI and Ace Bandage and 8 months and do exercise on weight machine which just irr[i]tate it more." Compl. ¶ IV-A.

B. Administrative Tort Claim

In August 2004, Doe submitted an Administrative Tort Claim to the Office of the Regional Counsel of the BOP, seeking $25,000. See Claim for Damage, Injury, or Death [TRTNER-2004-04547], dated Aug. 11, 2004 (reproduced as Ex. C to Declaration of Adam M. Johnson, dated Aug. 5, 2005 (Docket #18) ("Johnson Decl.")). On February 11, 2005, the Northeast Regional Office of the BOP informed Doe it was declining to offer him a settlement regarding this claim. See Memorandum, dated Feb. 11, 2005 (annexed to Compl.).

C. The Instant Claims and Motions

Doe brought this action using the form complaint for actions brought under 42 U.S.C. § 1983. He alleges that the defendants did not provide "proper medical treatment in the proper amount of time," and that there was "negligence" on the part of the BOP and its "employees." See Compl. ¶ V (capitalization omitted). He requests damages of $150,000. Id.

Defendants Torres, Dr. Glover, Dr. Patel, and Gautam Patel, who are federal employees represented by the United States Attorney's Office, have moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (6). See Notice of Motion, dated Aug. 8, 2005 (Docket #16). Dr. Kahanowicz, represented by private counsel, has moved to dismiss under Fed. R. Civ. P. 12(b)(6). See Notice of Motion, dated July 8, 2005 (Docket #13).

D. The December 2, 2005 Order and Doe's Response

Following review of the defendants' motions, it appeared to the Court that the complaint, liberally construed, sought to assert a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (the "FTCA"), inasmuch as Doe made claims of "negligence" and because he attached to his complaint the decision on his administrative claim under the FTCA. It was unclear, however, whether Doe intended to bring a complaint against the various federal employees in their individual capacities under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Accordingly, the Court issued an order on December 2, 2005, outlining the legal standards for a Bivens action based on "deliberate indifference," see, e.g., Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), and directing Doe to send a letter or affidavit to the Court stating:

(1) whether Plaintiff wishes to pursue a claim against any defendant in his individual capacity on the ground that such defendant acted with "deliberate indifference" to Plaintiff's medical needs and, if so, (2) against which defendants Plaintiff wishes to pursue such a claim.

Order, dated Dec. 2, 2005 (Docket #21), at 2. The Order added that Doe was "free to state any additional factual allegations he wishes with respect to this claim, though the Court is not ...


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