United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.
November 28, 2016, the pro se Plaintiff, who was
then a federal prisoner incarcerated at USP McCreary in Pine
Knot, Kentucky, initiated this case by filing an action
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), against 21
individuals, only some of whom were federal employees or
agents, claiming a due process violation, and a violation of
his Eighth and Fourteenth Amendment rights. ECF No.
matter is pending before this Court for an initial review and
Report and Recommendation pursuant to Local Rule of Prisoner
Litigation Procedure (“LR PL P”) 2 and 28 U.S.C.
FACTUAL AND PROCEDURAL HISTORY
Underlying Criminal Conviction in the Southern District of
New York case number 1:02-CR-994.
April 28, 2010, Plaintiff was indicted in the Southern
District of New York. ECF No. 1. A superseding
indictment was filed on September 29, 2010. ECF No.
superseding indictment was filed on December 21, 2011. ECF
No. 78. On January 24, 2012, a jury returned a verdict of
guilty as to Counts 1 and 2 of the second superseding
indictment. On January 10, 2013, the Court sentenced
Plaintiff to ten years of imprisonment for each count, with
those terms to be served consecutively to one another but
concurrently with the term of imprisonment imposed on July
29, 2010 in New York County Supreme Court Case 00148N-2010,
followed by five years of supervised release ECF No. 133 at
3, 4. Plaintiff appealed his conviction to the Court of
Appeals for the Second Circuit, which on October 29, 2014,
affirmed the judgment of the District Court but remanded for
resentencing on Count Two. ECF No. 175 at 3 - 4.
April 30, 2015, the District Court entered an Amended
Judgment which sentenced Plaintiff to “a total term of
imprisonment of 217 months, which represents a sentence of
240 months minus the 23 months the defendant served in state
primary custody prior to the imposition of federal sentence.
. .” ECF No. 193 at 2.
10, 2016, Plaintiff filed a motion to vacate under 28 U.S.C.
§ 2255, which was assigned the civil case number
1:16-CV-3512. ECF No. 208. On November 8, 2017, the Court
held a hearing and amended the judgment in petitioner's
underlying case which rendered his habeas petition in
1:16-CV-3512 moot. The Court entered an to that effect on
November 9, 2017. ECF No. 254.
November 9, 2017, Amended Judgment re-sentenced Plaintiff to
“one hundred and twenty (120) months on count one to be
followed by ninety-seven (97) months on count two for a total
term of imprisonment of two hundred and seventeen (217)
months.” ECF No. 253 at 2. Thereafter, Plaintiff filed
a notice of appeal on November 13, 2017. ECF No. 255. That
appeal is currently pending before the United States Court of
Appeals for the Second Circuit in that court's case
the pendency of these proceedings, Plaintiff has been housed
in various federal institutions, including: (1) the
Metropolitan Detention Center in Brooklyn, New York
(“MDC Brooklyn”); (2) Metropolitan Correctional
Center in New York, New York (“MCC New York”);
(3) Federal Correctional Complex Allenwood in White Deer,
Pennsylvania (“FCC Allenwood”); and (4) Federal
Correctional Complex Hazelton in Bruceton Mills, West
Virginia (“FCC Hazelton”).
The Instant Complaint in 3:16-CV-161.
complaint filed November 28, 2016, Plaintiff named 21 people
as defendants. ECF No. 1. Five of those individuals, Diane
McLean (“McLean”), Michael Borecky
(“Borecky”), Brian Buschman
(“Buschman”), Victor Gonzales
(“Gonzales”) and N. Razavi
(“Razavi”), were identified as “MD”
or “DR”. ECF No. 1 at 2, 7, 8. The other sixteen
defendants named were identified by job descriptions. All of
the named defendants were associated with one of four
institutions where Plaintiff was incarcerated, MDC Brooklyn,
MCC New York, FCC Allenwood or FCC Hazelton. ECF No. 1.
essence of Plaintiff's claims is that while incarcerated
in these facilities he was prescribed various antipsychotic
medications to treat his bipolar disorder which caused him to
develop gynecomastia, a condition where males grow excess
breast tissue, which has caused him “extreme mental
anguish, embarrassment, shame and depression.” ECF No.
1 at 14. Plaintiff makes 29 claims in his complaint:
1. Claim 1 alleges that the defendants have deprived him of
his Eighth and Fourteenth Amendment rights by acting with
deliberate indifference to his serious medical needs, which
constitutes cruel and unusual punishment. Id. 1 at
2. Claim 2 alleges that in 2010, McLean prescribed him
various antipsychotic medications including risperidone and
olanzapine. Id. at 13.
3. Claim 3 alleges that on May 5, 2015, Borecky was aware
that Plaintiff was treated with antipsychotic medications
risperidone and olanzapine in 2013, but was in remission in
2015. Id. at 13.
4. Claim 4 alleges that in 2015, an unnamed endocrinologist
recommended cessation of all antipsychotics prescribed to
Plaintiff and the possibility of breast reduction surgery for
him. Id. at 13.
5. Claim 5 alleges that on July 17, 2015, Buschman decided
not to prescribe risperidone to Plaintiff because the
medication could exacerbate Plaintiff's gynecomastia.
Id. at 14.
6. Claim 6 alleges that on July 17, 2015, Buschman
“attempted to” prescribe the antipsychotic
risperidone to Plaintiff after an unnamed endocrinologist
recommended cessation of antipsychotics. Id. at 15
7. Claim 7 alleges that on July 22, 2015, Jody Bennett-Meehan
PA-C (Bennett-Meehan”) advised Buschman that Plaintiff
was hearing voices. Id.
8. Claim 8 alleges that on July 20, 2015, Clinical Direction
Elizabeth Santos (“Santos”) prescribed
ziprasidone, which has the same side effects of risperidone.
9. Claim 9 alleges that in 2016, Plaintiff was taken to
Preston Memorial Hospital for an ultrasound and mammogram,
which found Plaintiff had “dense retroareolar
fibroglandular tissue.” Id.
10. Claim 10 alleges that on December 3, 2015, Amy Armel,
PA-C (“Armel”) reviewed Plaintiff's medical
records and noted that Plaintiff did not want to take any
antipsychotics because of his gynecomastia. Id.
11. Claim 11 alleges that on July 20, 2015, Bennett-Meehan
“tried to cover for” Buschman by incorrectly
noting in Plaintiff's medical records that Plaintiff did
not recall stating he wanted to discontinue risperidone
because of his gynecomastia. Id. at 16.
12. Claim 12 alleges that on July 17, 2015, Buschman
discontinued antipsychotic medication after Plaintiff advised
the medication caused his gynecomastia. Id.
13. Claim 13 alleges that on June 15, 2015, B. Wood
(“Wood”) noted Plaintiff was found in 2014 to
have benign breast tissue. Id.
14. Claim 14 alleges that on July 28, 2014, Plaintiff was
found to have moderate to advanced gynecomastia. Id.
15. Claims 15 through 28 alleges that on unnamed dates,
Plaintiff advised various defendants about his gynecomastia,
prescribed medications and surgery, including: MCC Clinical
Director Robert Beaudouin (“Beaudouin”) (Claim
15); A. Aboulfatch, MLP (“Aboulfatch”) (Claim
16); Y. Joaquin, (“Joaquin”) (Claim 17); Brian
Gerson, MS/NP-C (“Gerson”) (Claim 18); Gonzales
(Claim 19); Jennifer Holtzapple, PA
(“Holtzapple”) (Claim 20); Terry O'Brien,
Complex Warden (“O'Brien”) (Claim 21);
Charles Craig, PA (“Craig”) (Claim 22); B.
Friend, RN (“Friend”) (Claim 23); Thomas Duvall,
PhD, LMHC, NCC Psychologist (“Duvall”) (Claim
24); Razavi (Claim 25); Christopher Meyer
(“Meyer”) (Claim 26); John Pyles, FNP-BC
(“Pyles”) (Claim 27); and Leigh Bird, PA-C
(“Bird”) (Claim 28).
16. Claim 29 alleges that Buschman noted that an unnamed
endocrinologist advised that olanzapine and risperidone are
idiopathic. Id. At 18.
ECF No. 1 at 12 - 18. In support of his claims, Plaintiff
references various exhibits. Claims 3 through 14 reference
Exhibits A, B, C, D, E, F, G, H, I, J, K and N. Claims 28 and
29 reference Exhibits L and M. However, no such exhibits are
attached to the Complaint. The actual attachments to the
complaint are identified as: “Attachment.1A” [ECF
No. 1-1]; “Attachment.2A” [ECF No. 1-2];
“Attachment.3A” [ECF No. 1-3];
“Attachment.4A” [ECF No. 1-4];
“Attachment.5A” [ECF No. 1-5]; and
“Attachment.6A” [ECF No. 1-6]. Plaintiff seeks
ten million dollars in compensatory and fifteen million
dollars in punitive damages, as well as costs and fees. ECF
No. 1 at 14.
paid an initial partial filing fee of $20.00 on March 23,
2017. ECF No. 11. On July 12, 2017, the Court entered an
order directing Defendants to file an answer, motion or other
responsive pleading. ECF No. 14. Defendants were twice
granted an extension of time to file an answer by orders
entered on September 12, 2017 and October 25, 2017. ECF Nos.
October 13, 2017, Razavi filed a motion to dismiss for
failure to state a claim, and a memorandum of law in support
thereof. ECF Nos. 52, 53. On October 20, 2017, Defendants
Buschman, Gerson, Bennett-Meehan, Wood, Santos, Armel, Bird,
Beaudouin, Joaquin, Holtzapple, O'Brien, Duvall, Friend,
Meyer, Pyles, and Craig (“the Federal
Defendants”) filed a motion to dismiss, or in the
alternative for summary judgment, with an accompanying
memorandum and five attachments thereto. ECF Nos. 56, 56-1,
56-2, 56-3, 56-4, 56-5, 56-6. A corrected declaration for
Defendant Buschman (“Buschman”) was filed on
November 2, 2017. ECF No. 65. McLean, Santos, Borecky,
Aboulfatch and Gonzales were never served by Plaintiff. A
sealed summons for each of those five named defendants was
returned as “unexecuted” on July 19, 2017. ECF
Nos. 20, 21, 22, 23, 24.
Roseboro notice issued on October 24, 2017. ECF No.
59. On November 13, 2017, Plaintiff filed a motion to stay on
the ground that an evidentiary hearing was to be held in a
case filed pursuant to 28 U.S.C. § 2255 in the Southern
District of New York in case numbers 10-CR-367 and
16-CV-3512, and that until the evidentiary hearing was
completed, Plaintiff would “not be able to adequately
litigate his pending civil case[ ].” ECF No. 70. On
November 27, 2017, Razavi filed a response to Plaintiff's
motion to stay. ECF No. 72. On December 7, 2017, the Court
denied Plaintiff's motion as moot because at the ...