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McNally v. Inch

United States District Court, S.D. Mississippi, Northern Division

February 7, 2019




         BEFORE 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.

         Having 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.


         McNally 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, Louisiana.

         McNally 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).

         In 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).

         McNally's 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).

         Dr. 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).

         Dr. 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 86.

         BOP 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).

         McNally 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.

         McNally 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).


         A. McNally Has Not Shown That the Court Has Personal Jurisdiction Over BOP Director Inch and BOP Regional Director Keller

         BOP 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 is ...

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