Bushrod v. Stewart et al, No. 8:2016cv01879 - Document 16 (D. Md. 2017)

Court Description: MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/15/2017. (c/m 9/15/2017 tds, Deputy Clerk)

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Bushrod v. Stewart et al Doc. 16 ," "", . . 1'''' . . ,', \ I ., _I" .- IN TilE UNITEIl STATES IHSTlUCT COURT FOR TIlE IlISTRICT OF MARY:I}\9S1) \ 5 Southern Ili\'ision , "" r' \: \ b .- , ' * KEVIN M. BlJSHROIl, #5010-t-007, * Plaintiff, v. * TIMOTHY STEW ART, Warden, FCI-Cumberland, MOIIAMEIl MOUBAREK,I Clinical Ilireetol', FCI-Cumherland, I{N McCORMICK, Nurse, FCI Cumberland, Mil MCGANN-Medical Iloctor, FCI CUMBERLANIl, MA' AM SMITH, Unit Manager, MA 'AM ARVISO, Associate-Warden of Operations, DR. HERSHBERGER, Head Psychologist, * Case No.: G,lII- 1()-1 !l79 * * * * * * Defendants. * * * * * * * * * MEMORANDUM In his Complaint malpractiee * * * * OPINION betim~ this Court. Kevin M. Bushrod raises claims of medical pursuant to the Federal Tort Claims Aet ("'FTCA"). constitutionally * inadequate Federal Bureau oj'Narco/ics. medical care pursuant 28 U.S.c. ~ 2671. e/. self .. and 10 Bivens \'. Six Unkn()\1'11Nallled Age11ls or/he 403 U.S. 388 (1971)2 ECF No. I: ECF NO.4. Defendants tiled a Motion to Dismiss or. in the Alternative. Motion li)r Summary Judgment. have lOCI' No. 12. The docket will be corrected to reflect Defendants' names and titles shown in their dispositive Illotion. ECF No. 12 "'established that the victims ofa constitutional violation by a federal agent have a right 10 recover llumuges against the allicinl in federal COlll1 despite the absence of any statute conferring such a right:" !lartmaJ11', ,\Ioon'. 547 U.S. 250. 25~ n.2 (2006) (quoting ('''I'/soo \'. (JI'eell. 446 U.S. 14. 18 (1980)). "["jlJi\'el1S aclion is Ihe federal analog to suits broughl against state onici31s lIndt:!" ... 42 U.S.C. 1983:' /d. I ! Bi\'<'l1s * Dockets.Justia.com which is unopposed.3 In accordance with Rosehoro \". Garrisol1. 528 F.2d 309 (4th Cir. 1975). the Clerk sent notice to Bushrod to inform him that he may lile a response with affidavits and exhibits. ECF No. 24. The matter is ready for disposition. The Court finds that a hearing is unnecessary . .<;ee Loc. R. 105.6. (D. Md. 2016). For reasons to liJlIow. Defendants' Motion to Dismiss or in the Alternative for Summar~' Judgment. ECF No. 12. which the Court construes as a Motion for Summary Judgmcnt is grantcd. I. BACKGROUN[)4 Kevin M. Bushrod is a federal inmatc who is prescntly houscd in a halfway house as part of the federal Residential Reentry Program. He claims that during thc timc hc was incarcerated at the Federal Correctional Institution in Cumberland. Man'land ("FCI-Cumberland"). Defendants denied him physical therapy for his leli shoulder injury and appropriate medication I())" his mental health condition. ECF No. I. Bushrod was designated to FCI-Cumberland on May 26. 2015. ECF No. 13-1 at 2.; During his intake health screening. he stated that he suflers Ieli shoulder pain from a gunshot wound sustained in September 01'2014. for which he had been receiving physical therapy. lie was provided a sling to immobilize his shoulder and continucd on Amitriptyline. a mcdication to trcat mcntal health disorders. ECF No. 13-1 at 14-15. On May 27. 2015. Bushrod was secn at llealth Services I()r a medical history and physical examination. The physician assistant who examined Bushrod submitted a radiology Defendants arc sued as "severally and jointly" responsible. Ecr No. ~ at 3. l1ushrod docs not specifY whether he is suing Defendants in their oflicial or individual capacities or both. Service of process was accepted f{lr only Defendants in their ofticial capacities. ECF NO.8. For reasons to be dis(:usscd herein. the claims against Defendants in both their official and personal capacities are unpersuasive. J ~ The facts relied 011 herein are either undisputed Pin cites to documents by that system. 5 filed 011 or viewed the Court"s electronic filing 2 in the light most favorable system (Cl\1fECF) to the non-Illovant. refer to the page numbers generated rcqucst to cvaluatc rcvcalcd Bushrod's post-traumatic Icli shouldcr condition. dcformity ofthc ECF No. 13-1 at 30. Thc x-ray rcsults proximal humerus with multiple ballistic fragmcnts. ECF No. 13-1 '16: lOCI' No. 13-1 at 30. 33. At his psychology diagnoscs of Attcntion Disorder C'PTSD"). intakc scrccning Delidt Hyperactivity Anxiety. and Dcprcssion. J unc 30. 2015. Stephany decreased on May 28. 2015. Bushrod rcported prcvious McGann. Disorder ("ADHD"). Post-Traumatic lOCI' No. 13-1 ~ 11: ECF No. 13-1 at 83-92. On M.D" saw Bushrod fiJI' complaints of leli arm weakncss and a rangc of motion. ECF No. 13-1 at 35. Bushrod reportcd difliculty abovc his hcad and stated that as a basketball in his upper extremity. Septcmbcr of2014. which improved submittcd raising his Icli arm player he wantcd to obtain bettcr rangc of motion Ill. at 37. He reported that aner hc was shot in his Ieli shouldcr in he did not undergo surgery. Bushrod said he was providcd physical thcrapy his condition. Bushrod told McGann that hc had a good rangc of motion cxccpt for raising his ann above his hcad. Ill. at 35. Although cffectiveness Stress of additional a consultation McGann cxprcsscd rcscrvations about thc physical thcrapy. givcn that thc injury was ninc months old. shc request for physical thcrapy li)r Bushrod. ECF No. 13-1 at 2. No. 13-1 at 37. On July 29. 2015. the Utilization physical therapy to be mcdically unnccessary. Rcvicw Committec '1 7: ECF dcnicd the rcqucst. linding ECF No. 13-1 at 40. Bushrod was seen multiple timcs Irom August 28. 2015. through July II. 2016. fiJI' complaints of leli shouldcr was cxamined pain and wcakncss. !d at 2. and linmd to havc a slight dcereasc 'i 9. During his medical appointmcnts. he in the range of motion in the Icli shouldcr. but had passivc and active rangc of motion. !d at 2. '19: ECI' No. 13-1 at 42-44. Clinical Bushrod's Director at FCI. Dr. Mohamcd pm1icipation Moubarck. in daily activities 65-67. The notcd thc shoulder injury does not prevcnt or playing baskctball. 3 48-59. ECF No. 13-1 at 60-61 (indicating Bushrod injured his knee while playing basketball). FC[-Cumberland staff manages Bushrod's shoulder injury through "eonservative treatment" and "pain management:' ECF No. [3-1 at3. ~ 10. Dr. Moubarek made the decision not to order timher physical therapy beeause. in his medical opinion. Bushrod had attained the maximum therapeutie benetit he wou[d reeeive from physical therapy sessions. lei. Moubarek states that prior to entering into the custody of the Bureau of Prisons ("BOP"). Bushrod rcceived several months of aggressive physical therapy while in custody of the Central Detention Facility in Washington. D.C .. and once it was discontinued. he was directed to continue rangc of motion exercises on his own.ld. [n Moubarek's opinion. "due to the nature of his gunshot wound. which includes post-traumatic dcformity of the proximal humerus with multiple ballistic fhlgments still in place. he will not be able to regain the exact same [ever of range of motion that existed prior to his injury:' !d. FC[-Cumber[and's Chief Psychologist. Frank [[ershberger. who met with Bushrod six times between June 22. 2015. and March 21. 2016. diagnosed him with M,~ior Depressive Disorder. and prescribed cognitive behavioral therapy. Id. at 3. ~ 12: ECF No. 13-1 at 86-92. On August 31. 2015. Bushrod asked to be prescribed antidepressant medication. and was referred to Health Services for evaluation. Bushrod was prescribed Cit[opram. Fluoxctine. Sertaline and Paroxctinc" for his mental health condition. but did not fully comply with the prescribed medication regimens. ECF No. 13-1 at 3. ~ 12: ECF No. 13-1 at 70. 74. 76. 86-92. Bushrod asserts that Dr. Moubarek denied him physical therapy and discontinucd "all medications" without having access to his medical records. ECF NO.4 at 3. He claims 6 These medications are in a class of medications called selective serotonin-rcuptake inhibitors used to treat depression and other conditions. Set! https:/lmedlincplus.gov/druginfo/mcds. (last visited Sept. 8. .:!OI7). Citlopram. Fluoxetinc. SCl1alinc. and Paroxetinc are also known rcspectivel,Y by their brand names eclc.xa. Prozac. Zolotl. and Pa~dl.Id. Moubarek's "oITthe culr medical care constitutes cruel and unusual punishment. Id. As relief. he seeks $750.000 in compensatory damages and $250.000 in punitive damages. restoration of medications prescribed for him before his incarceration at FCI.Cumberland. and I()r Defendants to cease and desist Irom denying him medical care. ECF No. I at 6: ECF NO.4 at 3.7 II. STANDARD OF REVIEW A. Motion to Dismiss To survive a motion to dismiss under Rule 12(b)(6). "a complaint must contain suflicient factual matter. accepted as true. to 'state a claim to relief that is plausible on its Illce.... Ashero!i \', II/hal, 556 U.S. 662. 678 (2009) (citing Bel! Allal1lie Corp. \'. 7iromhly. 550 U.S. 544, 570 (2007». "A claim has facial plausibility when the plaintilTpleads factual content that allows the court to draw the reasonable inference that the delCndant is liable I()r the misconduct alleged." II/hal. 556 U,S, at 678, "Threadbare recitals of the elements of a cause of action. supported by mere eonclusory statements, do not suflice." Id. (citing TIl'IJll1hly. 550 U.S. at 555) ("[AJ plaintiffs obligation to provide the 'grounds' of his 'entitle[mentJ to rcliefrequires more than labels and conclusions. and a formulaic recitation ofa cause of action's elements will not do."'). Fed. R, Civ, 1'. 12(b)(6)'s purpose "is to test the sufliciency ofa complaint and not to resolve contests surrounding the facts. the merits of a claim. or the applicability of defenses." Presley \'. Cily o{Charlolle.\"I'il!e. 464 FJd 480. 483 (4th Cir. 20(6) (citation and internal quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6). a court "must accept as true all of the factual allegations contained in the complaint." and must "draw all Bushrod claims that Defendants are in violation of the "Federal Disability Statutes:" the "Rehabilialion Act:" and the "Revitalization Act" without explanation. EeF NO.4 at 3. He alleges no facts to mise a claim under the Americans with Disabilities Act or the Rehabilitation Act. The Revitalization Act of 1997 was enacted by Congress 7 to transfer authority for pj]role matters to the United States Parole COlllmission. and abolished the District Columbia Board of Parole. "Revitalizal iOIl Act:' District of Columbia Sentencing Comm ission. https://scdc.dc.gov/pagc/revitalization.act. Bushrod is a D.C. parole viol.HOr. ECF No. 12-1 at 2. I hmcvcr. claim of a violation under the "Revitalization Act:' is irrelcvant to his medical claims. 5 or <lny reasonable inferences \" Kolon!n"lIs omitted). £.1. [from those facts] in favor of the plaintiff" .. Inc,. 637 F.3d 435. 440 (4th Cir. 2011) (citations The Court need not. however. accept unsupported "II Pont de Ne/1/ollrs & Co, and internal quotation legal allegations. marks see Rewne ,'. Charles COlll1fy CO/1//1/'rs. 882 F.2d 870. 873 (4th Cir. 1989). legal conclusions couched as factual allegations. factual allegations Papasan \'. A!lain. 478 U.S. 265. 286 (1986). or conclusory devoid of any reference to actual events. Unite" Black Firefighters Hirst. 604 F.2d 844. 847 (4th Cir. 1979). The claims against Defendants Arviso will be dismissed B. Motion Judgment. Stewart. Smith. and .Judgment motion is styled as a Motion to Dismiss. or in the Alternative. If the Court considers materials outside the pleadings. Fed. R. Civ. P. 12(d). When the Court treats a motion to dismiss as a motion f()r summary judgment. opportunity nonmoving Judgment:' to Dismiss. or in the Alternative. as is the case here. and attaches additional party is. of course. aware that materials ld Wa.I'!1.Airports All/h.. 149 F.3d 253. 260-61 from granting a motion for sunullary judgment materials to its motion. the See Lallghlin \'. Metropolitan (4th Cir. 1998). Further. the Court is not prohibited before the commcncement R. Civ. P. 56(a) (stating that the court "shall grant summary judgment there is no genuine dispute as to any material is appropriate f()r outsidc thc pleadings are bef()rc the Court. and thc COlllt can treat the motion as one for summary judgment. Summary judgment "[alII parties must be to present all the material that is pertinent to the motion." When the moving party styles its motion as a "Motion Summary for Summary as the Court docs here. the Court must treat a motion to dismiss as one for summary judgment. given a reasonable \'. under this standard. for Summary Defendants' o(Norfillk 6 See Fed. if the movant shows that ftlct" without distinguishing if"materials of diseovery. pre-or post-discovery). in the record. including depositions. documents. electronically stored inlonnation. admissions. intcrrogatory answers. or other materials:' "no genuine dispute as to any material aflidavits fiJr summary judgment exists as to material I'. 1(87). II' the moving party demonstrates to support the nonmoving U.S. at 322-23. A material fact is one that of the suit under the governing law:' Sl'ri~g.I' Diall/olld A1110Glass. if suflicient evidence favoring the party exists for the trier of fact to return a verdict for that party, Andersoll. the nonmoving mere speculation or the building of one inference movant is to be believed. upon another:' and all justifiable inferences 477 U.S. at 255, The Court will dismiss l3ushrod's McCormick. 477 U.S, party "cannot create a genuine issue of material fact through Beale \'. 1101'l(1'.769 F,2d 213. 214 (4th Cir. 1(86). When ruling on a motion lor summary judgment. III. I'. \'. Uherly Lohhy. IIIC" 477 U.S, 242. 248 fact is only "genuine" at 248. However. Moubarek. that no genuine dispute party to identify specific lilctS showing that 242 F.3d 179. 183 (4th Cir. 2001) (quoting Anderson nonmoving Colrell. 477 U.S. 317. 322 (1986). The that there is no evidence there is a genuine issue lor trial. See Celolex. 477 A dispute of material as a maller of Co. \'. Call/eo Prol's .. 810 F.2d 1282. 1286 (4th Cir. party's case. the burden shilis to the nonmoving (1986», .. " I'ed. R. Civ. P. 56(c). show that thcre is bears the burden of demonstrating facts. ['III/iall//II\'. "might affect the outcome stipulations fact and the movant is entitled to judgment law:' Fed. R. Civ. P. 56(a): see also Cetolex Corl'. party moving or declarations. McGann. and llershberger "[tJhe evidence of the non- arc to be drawn in his favor:' ;1l7llersoll. FTC A and Bh'ells claims against Defendants on summary judgment. DISCUSSION Delendants administrative contend that l3ushrod's remedies FTC A claims are barred because he lililed to exhaust prior to initiating this action. ECF No. 12-1 at 6. Defendants are entitled to summary judgment on the Bh'el7.l' claims on the grounds of statutory 7 assert they immunity. lack of personal involvement. and for failure to show the requisite deliberate indifference. ECF No. 12-1 at 8-10. A. FTCA Claims The United States "is immune li'om suit save as it consents to be sued ... of its consent to be sued in any court deline the court's jurisdiction SIllIes \'. resllln. 424 U.S. 392.399 (1941 ». employees the suit." Uniled to entertain (1976) (citing Uniled SIllIes \'. Shenl'Ood. 312 U.S. 584 "The Federal Tort Claims Act is a limited waiver of sovereign Federal Government and the terms immunity. making the liable to the same extent as a private party fllr certain torts of federal Uniled SIllIes \'. Orlellns. 425 U.S. 807. acting within the scope of their employment," 814 (1976). The Federal Tort Claims Act ("FTCA") is to be narrowly construed against waivers of sovereign immunity. Id at 813-14. of sovereign immunity lur claims brought against the United States bascd on the negligence wrongful U.S.C. acts or omissions ** By enacting the FTCA. Congress created a limited waiver of its employecs 1346(b)( 1).2671-2680. within the scopc of their cmployment. Belurc a Court may cxercise jurisdiction a plaintiff must submit proof of cxhaustion appropriate committed fcderal agency. See 28 U.S.c. of administrative ** or 28 over a FTC A claim. rcmcdics by liling a claim with thc 1346(b). 2675(a). This requirement is jurisdictional and cannot be waived. See Ahmed \'. United Slales. 30 F.3d 514. 516 (4th Cir. 1994). On October regarding 1.2015. the treatment he received 1301' Rcgional Counsellur 2. 2015./d. Dccember determined SIllIes I'. Bushrod tiled an administrativc 'in accordance lur his shoulder and mental hcalth. ECF No. 1-2 at \-5. Thc the Mid-Atlantic at 9. However. claim lur medical malpractice Region denied the administrativc the FTC A also "requires claim on the governmcnt"s liability to be with thc law of the placc whcre the act or omission occurred .... Uniled SI. LOllis Uni\'., 336 F.3d 294. 300 (4th Cir. 2003) (quoting 28 U.S.C. 8 * 1346(b)( \ ). Because the alleged medical malpractice controls. The Maryland & .Iud. Proc. ** occurred Health Care Malpractice 3-2A-0 I. el self.. "estahlishes malpractice claims." malpractice claims. 1'. requires a putative plaintilTto medical providers Claims Act C'HCMCA"). a state administrative present his claims to Maryland's had departed Where a medical malpractice [\1(\' Code Ann .. Cts. claims procedure statc courts'" medical eertilicate that the defendant lawsuit is tiled in state or fcdcral court without complying and tiling an expert's precedent I(l!' Irom the standard of carc. prior to filing suit in fcderal court. 1<1. such a suit "shall be dismissed. "condition[s] rclating to llealth Claims Alternative and to tile an expert's certiticate * 3-2A-04(b)( are not "mcrely to bringing a medical malpractice ... with IVil/el'<'r. 775 F. without prejudice Supp. 2d at 777 (citing Md. Code Ann .. CIs. & .Iud. Proc. to the HCADRO law of Maryland Uniled Slales. 775 F. Supp. 2d 771. 777 (D. Md. 20 II ). IICMCA Omee ("IICADRO") thcsc requirements. the suhstantive which must be followed by plaintiffs suing the United States lViI/em' Dispute Resolution in Maryland. I )(i»). Presenting procedural rulcls'" the suit but arc lawsuit in this Court or the Maryland Id. Bushrod has not filed his claims with thc IICADRO. ccrtiticatc stating that Defendants dcparted from the standard of care. See ECF No. 12-5. Bushrod docs not rclute his tailurc to tile with IICADRO claim that any exception requircment B. claims. the Court grants Defendant's and does not Summary Judgmcnt FTC A claims. Bil'ens Eighth Amendment The Eighth Amendment of its guarantee or the rcquired ccrtitieate to the law applies. Because Bushrod has Illiled to satisly this nccessary t()r medical malpractice Motion on Bushrod's and has not filed an expert's Claim prohibits "unnecessary against cruel and unusual punishment. 9 and wanton intlietion Gregg 1'. of pain" by virtue Georgia. 428 U.S. 153. 173 (1976). In ordcr to statc an Eighth Amcndment claim lor denial of medical care. a plaintiff must demonstrate that the actions of the defendants or their lailure to act amounted to "deliberate indifference" to a serious medical need. See Estelle \'. Gail/hie. 429 U.S. 97. 106 (1976). "Deliberate indifference is a very high standard - a showing of mere negligence will not meet it . . . [1']he Constitution is designed to deal with deprivatio!ls of rights. not errors in judgmcnts. evcn though such errors may have unlortunate consequences ... To lower this threshold would thrust federal courts into the daily practices of local police departments:' Grayso/1 \". Peed. 195 F.3d 692. 695-96 (4th Cir. 1999). Deliberate indiffcrence to a serious medical need requires proof that. objectively. thc prisoner-plaintiff was suffering Irom a serious medical need and that. subjectively. the prison staff was aware of the need for mcdical attention but Itliled either to provide it or ensure the needed care was available. See Farll/er \'. Bre/1/1a/1. 511 U.S. 825. 837 (1994). Objectively. the medical condition at issue must be serious. See Hudl'O/1 \'. McMillia/1. 503 U.S. 1.9 (1992) (there is no expectation that prisoners will be provided with unqualilied access to health care). Proof of an objectively serious medical condition. however. does not end the inquiry. The subjective component requires "subjective recklessness" by the prison staff in the lace of the serious mcdical condition. See Farll/er. 511 U.S. at 839--40. "Truc subjecti\'e recklessness requires knowledge both ofthc gcneral risk. and also that the conduct is inappropriate in light of that risk:' Rich \". Bruce. 129 F.3d 336. 340 n.2 (4th Cir. 1997). "Actual knowlcdge or awareness on the part of the alleged intlicter ... becomes esscntial to proofof deliberate indifference .because prison ofticials who lacked knowledge of a risk cannot be said to have intlicted punishment .... Brice \". Va. Beach Corr. Center. 58 F.3d 101. 105 (4th Cir. 1995) (quoting Farll/er. 51 I U.S. at 844). If the requisite subjective knowledge is established. an 10 oflicialmay avoid liability "iffheJ ultimately aveI1ed:' Bi!OI'll. reasonably to the risk. even if the harm was not See Farmer. 511 U.S. at 844. In essence. the treatment excessive responded rendered must he "SO grossly incompetent. as to shock the conscience or to he intolerable or f~lirness:' Ali/tier to fundamental 896 F.2d 848. 851 (4th Cir. 1990) (citation omitted) (overruled inadequate. 1'. in part on other grounds by Farmer. 511 U.S. at 837: aWd in pertinent part by Shar!,e \'. S.C. De!,'/ oI'Corr .. 621 Fed.Appx. 732 (Mem). (4th Cir. 2015)). "Oeliberate an excessive risk to inmate health or sakty: facts from which the inference See S/wkka 1'. a/so .IIi//ier \'. Bi!OI'll. 896 F. 2d at 854-55 (reasoning indifferent judgement . onlv throul!h intentional ~ t. McCormick. Public Ilcalth Service ("PHS") McCormick. exhibiting McGann, deliherate interference McGann. K under 42 U.S.c. Smi/h. 71 F. 3d 162. 167 (4th Cir. 1996): .Iee that supervisory in the inmate's McCormick, and Hershberger prison oflicials arc entitled medical care). McGann, and Hershherl?;cr arc employed provided constitutionally by the United States inadcquate medical care by to his serious medical needs. See ECF NO.1. In response. assert that they are entitled to ahsolute immunity thcy provided risk of serious harm exists and and assigned to the BOP. ECF No. 12-4. Bushrod alleges and Hershberger indifference hoth he aware of of trained medical providers and may he found deliherately Claims Al?;ainst Defendants Defendants by either Farmer. 511 U.S. at 837. Generally. prison oflieials may rely of medical providers. to rely on the professional the Idefendantlmust could be dr3\\'Il that a substantial he must also draw the inference." on the expertise may he demonstrated Id. Reckless disregard occurs when a defendant "knows of actual intent or reckless disregard:' and disregards indifference they fhllll all claims arising from the medical care ~ 233a." Section 233(a) con leI's ahsolute immunity The statute provides in pertinent pan that: 11 to 1'1 IS ollicers and employccs "for actions arising out of the pcrformance of medical or related functions within the scopc of their employmcnt by barring all actions against thcm for such conduct:' fiui \', Castal7eda. 559 U.S. 799. 806 (2010). "[T]he immunity provided by *233(a) precludcs Bi\'el7s actions against individual PHS ofticcrs or cmployccs for harms arising out of conduct describcd in that section." !d. at 812. Bushrod does not dispute that McCormick. McGann. and Ilershberger's actions were within the scope of their cmploymcnt. As such. he does not dispute that they are entitled to immunity, As there is no genuinc issue of material 1~lct in dispute. summary judgment shall be entercd in favor of McCormick. McGann. and Ilershberger as to all Bi,'el7s claims against them. 2, Claims A~ainst Defendants Stewart, Smith, and Arviso Liability in a Bi,'el7s action is premised on each defendant's personal conduct in carrying out constitutional violations, 71'ldoek \'. Freeh. 275 F,3d 391. 401 (4th Cir. 2001). As such. a Bi\'el7s action may not be premised upon a respol7deat superior Iqhal. 556 U.S. 662. 676 (2009): Dal7ser \'. Stal7sherry, theory." See, e.g. ... lsh('/'ofi I'. 772 F,3d 340. 349 (4th Cir. 2014) ("[G]overnment ofticials cannot be held liable in a Bil'el7s case under a thcory of respondeat supcrior for the actions of their subordinatcs."). Absent vicarious liability. each government ofticial is liable li)r only his or her own misconduct. Asherofi \'. Itlhal. 556 U.S. 662. 677 (2009): 71'ldoek. 275 F.3d a1402. See Shall' \'. Stroud. 13 F3d 791. 799 (4th Cir. 1994) (imposing The remedy against the United States provided by sections 1346(b) and 2672 of title 28 ... for damage for personal injury. including death. resulting from the performance ofmcdica1. surgical. dental. or related functions. including the conduct of clinical studies or investigation. by any cOlllmissioned ollicer or employee oflhe Public Health Service while acting within the scope of his oflice or employment. shall be exclusive of allY other civil action or proceeding by reason of the same subject-matter against the onicer or employee (or his estate) whose act or omission gave rise to the claim. * 42 U.S.C 233(a). Respondeat Superior, is a Latin phrase meaning meaning "let the superior answer:' This doctrine provides that an employer is liable in certain cases for the wrongful acts of his employee, and a principal for those of his agent. .<.,'ee Blacks Law Dictionary (Rth ed. 2004). l) 12 liability on a supcrvisor subordinatc was cngagcd constitutional of actual or constructivc in conduct that poscd a pervasive injury, (2) thc supervisor's show delibcrate affirmativc requires evidcncc knowlcdgc and unreasonable responsc to thc knowledgc indifTcrcncc to or tacit authorization causal link betwcen the supervisor's ofthc practiecs, that ( I ) a risk of was so inadcquatc as to and (3) thcrc was an inaction and the particular constitutional injury suffered). Bushrod does not allege that Dcfendants involvcd in his mcdieal treatmcnt. Stewart Smith. or An'iso wcre pcrsonally Rather. Bushrod allegcs Smith had a duty to "Iook out" for his weltare. but failed to do so. ECF NO.4 at 5. Bushrod claims Arviso. Associatc Operations at FCL did littlc to ensure subordinates fiJlfillcd their "duty" to him. ECF No. I at 3. Bushrod appears to fault Warden Stewart in his supervisory As nonmedical corrcctions on the medicaljudgmcnt has not sufficicntly complaints rcqucsts Shakka, 71 F.3d at 167. As such. Bushrod on the part of Defcndants Stewart. Smith, or thc claims against Stcwart, Smith. Arviso will bc dismissed. bcforc thc Court demonstratc that during thc timc Bushrod was houscd at medical and mental hcalth providers rcgarding mct with Bushrod conccrning his his leli shouldcr and mental health. See. e.g, ECF No. 1-2 at 4. Ilis for physical thcrapy and lor antidepressants antideprcssants lei. at 3. Claims Al(ainst Mouharck The doeumcnts FCI-Cumbcrland, capacity. Stcwart. Smith, and Arviso wcrc cntitlcd to rely of prison medical providers. allcgcd pcrsonal misconduct Arviso. Consequently, 3, supcrvisors. Wardcn of and cognitive behavioral wcre considered. Hc was provided thcrapy. ECF No. 13.1 at 3. Alier reviewing Bushrml's medical history, his level of activc and passive range of motion, and his ability to participate sports and daily activities, Dr. Moubarek detcrmined 13 that additional physiealthcrapy in would not provide additional with Moubarek dcliberate ..therapeutic bcnefit:' ECF No. 13-1 at 3. To the extent Bushrod disagrees about thc coursc of his medical carc. such disagrecmcnts indifference necessary to support an Eighth Amendment Lightsey. 775 F.3d 170. 178 (4th Cir. 2014) (reasoning medical malpractice deliberate indifference Accordingly. IV. Moubarek claim); Wrig!lI\'. claim. See Jacksol1\'. that allegations. claim. which amount to a disagreemcnt fail to amount to which may support a with the doctor do not support a Collins. 766 F.2d 841. 849 (4th Cir. 1985).111 is entitled to summary judgment. CONCLUSION For these reasons, Defendants' Judgment. is granted without prejudice. Dated: September Motion to Dismiss or. in the Alternative I(l[ Summary A separate Order lollows. ddf- /5.2017 GEORGE J. HAZEL United States District .Judge 10 Having concluded there \\'35 no Eighth Amendment violation. the Court need not reach Defendants' affirmative defense of qualified imll1unity. 14

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