United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE.
THE COURT is the Complaint filed pro se by James
Anthony McNally, a postconviction inmate in the custody of
the Federal Bureau of Prisons (BOP), who claims that
Defendants violated his Eighth Amendment rights by delaying
or failing to provide medically necessary treatment,
including shoulder surgery. McNally advances claims under
Bivens v. Six Unknown Fed. Narcotics Agents, 404
U.S. 388 (1971) against BOP Director Mark Inch; J.A. Keller,
Regional Director for BOP Southeast Region; Cheron Y. Nash,
Warden at Federal Correctional Complex, in Yazoo City,
Mississippi (FCC Yazoo); Dr. Anthony Chambers, Clinical
Director for the Health Services Department at FCC Yazoo; Dr.
Norma Natal, a primary care physician at FCC Yazoo; and Dr.
William Porter, an orthopedic surgeon. McNally seeks an
injunction to obtain a second shoulder surgery, compensatory
damages, and punitive damages. Director Inch, Regional
Director Keller, Dr. Chambers, Dr. Natal, and Warden Nash
have filed a Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment (ECF No. 30). McNally has filed a
Response. (ECF No. 40). Defendants filed no rebuttal.
considered the Motion, the record, and relevant law, the
undersigned United States Magistrate Judge concludes that
Defendants' Motion to Dismiss, or in the Alternative for
Summary Judgment should be GRANTED IN PART AND DENIED IN
PART. The Eighth Amendment claims against Director Inch and
Regional Director Inch should be dismissed without prejudice
for lack of personal jurisdiction. The Eighth Amendment
claims against Dr. Chambers must be dismissed with prejudice
because 42 U.S.C. § 233(a) bars a Bivens action
against a United States Public Health Services officer for
actions arising out of the performance of medical or related
functions within the scope of his office. The Eighth
Amendment claims against Warden Nash should be dismissed with
prejudice because Warden Nash lacked personal involvement in
McNally's medical care. The Eighth Amendment claims
against Dr. Natal should be dismissed with prejudice because
Dr. Natal is entitled to qualified immunity. McNally, a
pro se litigant, should be allowed an opportunity to
amend his Complaint to advance a claim against the United
States under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2672 et seq.
has been in BOP custody since 2000, serving a sentence for
bank robbery and related crimes. (ECF No. 30-1, at 1; ECF No.
40, at 9). At the time he filed this suit in October 2017,
McNally was housed at FCC Yazoo. He has since been
transferred to the Federal Correctional Complex in Pollock,
suffers from a torn rotator cuff in his right shoulder. In an
email attached to his Complaint, McNally states that he was
injured in a 1986 accident. (ECF No. 1-5, at 3). BOP medical
records indicate that, in 2001, McNally broke his humerus
while arm wrestling and had surgery to repair the fracture.
(ECF No. 30-2, at 27). Plaintiff's shoulder was x-rayed
in 2014, while he was housed at the Federal Correctional
Complex in Gilmer, West Virginia. (ECF No. 9).
November 2015, after being transferred to FCC Yazoo, McNally
was doing pushups when he heard a popping sound and
experienced pain in his shoulder. (ECF No. 30-2, at 32).
McNally's shoulder was x-rayed on December 16, 2015. (ECF
No. 44, at 4). At the suggestion of his initial primary care
physician at FCC Yazoo, Dr. Natal, McNally was evaluated by
Dr. Porter, an orthopedic surgeon, on January 20, 2016.
Id. at 3. Dr. Porter's exam showed that McNally
had “a positive impingement sign with decreased ROM of
the shoulder secondary to pain. Has large spurs on acromion
with impingement secondary to spur.” Id. at
26. Dr. Porter “[r]ecommended mini-open decompression
of the right shoulder with possible rotator cuff
repair.” (ECF No. 30-2, at 30).
BOP medical records indicate that surgery was delayed
“due to physical therapy documentation.”
(Id. at 39). They also state that surgery was
initially denied by BOP's regional office, with
“exercise recommended.” Id. at 43. Dr.
Natal prescribed shoulder exercises, and McNally complied,
but the exercises caused bruising and pain. Id. at
41. McNally maintains that a rabbi intervened on his behalf
and convinced BOP to reverse its decision to deny surgery.
(ECF No. 1-3, at 6; ECF No. 40, at 5, 11). McNally underwent
mini-open decompression surgery, performed by Dr. Porter, on
July 27, 2016. (ECF No. 41, at 3).
Chambers is a medical doctor who is the Clinical Director for
Health Services at FCC Yazoo. (ECF No. 30-2, at 1). According
to Dr. Chambers, McNally's surgery by Dr. Porter was
“conservative and surgical management of impingement of
the shoulder. The rotator cuff was mentioned, but was not
thought to be repairable prior to surgery. By the direct
inspection via arthroscopy, the orthopedic surgeon verified
this.” (ECF No. 30-2, at 3). McNally's request for
an MRI prior to surgery was denied, which McNally submits led
Dr. Porter to “botch” the surgery. (ECF No. 1-3,
at 1; ECF No. 40, at 7, 9; ECF No. 44-5, at 1).
Natal examined McNally after surgery on August 11, 2016. (ECF
No. 30-2, at 63). McNally complained that his pain was worse
than before surgery, and he lacked even more range of motion.
Id. at 63, 66. Dr. Natal ordered an MRI, which was
done on August 22, 2016. Id. at 71. Dr. Natal's
examination notes from October 6, 2016, indicate that McNally
was “still having limited range of motion with pain
radiated from shoulder to upper neck right side.”
Id. Based upon the MRI results, Dr. Natal requested
a second surgical consultation. Id. at 3, 75. Dr.
Natal examined McNally again on October 28, 2016, and again
requested a second surgical consultation. Id. at 75.
McNally was seen by Dr. Dare, an orthopedic surgeon, on
December 14, 2016. Id. at 83. Dr. Dare's
diagnosis was “[c]hronic severe rotator cuff tear
unrepairable, recommending arthroscopic right rotator repair
with allograft/xerograft augmentation.” Id. at
certification for a second surgical procedure to address
McNally's continued complaints of shoulder pain was
“deferred by regional officials with instructions to
attempt more conservative treatments prior to surgery . . .
.” (ECF No. 30-2, at 3, 91). McNally submits that this
occurred on April 4, 2017. (ECF No. 40, at 15). He has
provided an undated BOP administrative remedy response, which
provides that a second surgery was “disapproved until
conservative treatment can be completed since there was no
evidence of attempted conservative therapy of a joint
injection therapy trial.” (ECF No. 1-3, at 1).
was approved for corticosteroid injections. (ECF No. 40, at
15). Dr. Dare administered corticosteroid injections to
McNally on July 12, 2017. (ECF No. 44-7, at 2). On that date,
Dr. Dare continued to recommend surgery and advised that the
steroid would only temporarily relieve pain and would not
cause healing. (ECF No. 30-2, at 98). In his Declaration of
May 4, 2018, Dr. Chambers averred that “additional
surgical intervention remains under consideration.”
Id. at 4.
filed his Complaint on a form used by prisoners filing a
complaint under the Civil Rights Act, 42 U.S.C. § 1983.
(ECF No. 1). Because McNally's Complaint challenged the
conditions of confinement at a Federal Correctional Complex,
the Court issued an Order construing the civil action as a
Bivens action. (ECF No. 7). A Bivens action
is analogous to a civil rights action brought under 28 U.S.C.
§1983, the only difference being that Bivens
applies to alleged constitutional violations by federal
actors, rather than state officials. See Izen v.
Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). McNally
filed an Amended Complaint, confirming that he was advancing
Eighth Amendment claims pursuant to Bivens. (ECF No.
8-1, at 2). McNally seeks two million dollars in compensatory
damages and two million dollars in punitive damages. (ECF No.
1, at 4). McNally asserts that he “want[s] the surgery
that Dr. Dare recommended to repair what Dr. Porter has done
to me.” (ECF No. 44, at 6-7).
McNally Has Not Shown That the Court Has Personal
Jurisdiction Over BOP Director Inch and BOP Regional Director
Director Inch and BOP Regional Director Keller maintain that
the Court lacks personal jurisdiction over them. Director
Inch's official duty station is at BOP's Central
Office in Washington, D.C. (Decl. of Mark S. Inch, ECF No.
30-4). Regional Director Keller's official duty station