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Gifford v. Rathman

United States District Court, N.D. Alabama, Eastern Division

September 29, 2017

JAMES BRETT GIFFORD, Plaintiff,
v.
WARDEN JOHN RATHMAN; THE FEDERAL BUREAU OF PRISONS; THE UTILIZATION REVIEW COMMITTEE; GEORGE SMITH, M.D., Physician; NORTHEAST ALABAMA REGIONAL MEDICAL CENTER; R. HARDIN, Counselor; BOTT, Correctional Officer; S. PACO, MLP; M. MOURTADA, MLP; L. MARASIGAN, MLP; WILLIAMS, Correctional Officer; MRS. M. TIPPLE, RN; DR. M. HOLBROOK, M.D.; MS. GARDNER, Correctional Officer; UNITED STATES OF AMERICA, Defendants.

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE

         This case is presently pending before the court on defendants' Special Reports, (docs. 24, 25, 52, 60), [1] which the court has notified the parties it will construe as Motions for Summary Judgment, (doc. 61). Plaintiff, James Brett Gifford, was a prisoner in the custody of the United States Bureau of Prisons [BOP] and was housed at the Federal Correctional Institution at Talladega, Alabama, [FCI Talladega] at all times relevant to his claims. In his Amended Complaint, Gifford alleges claims against defendants pursuant to the Alabama Medical Liability Act [AMLA] and the Federal Tort Claims Act [FTCA], and pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for allegedly inadequate medical treatment of his back injury and for harassment. (See generally doc. 11.) Upon consideration of the record, the submissions of the parties, the Special Reports, and the relevant law, the court is of the opinion that Summary Judgment is due to be granted in favor of defendants.

         I. SUMMARY JUDGMENT STANDARD OF REVIEW

         Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state that the non-moving party cannot meet its burden at trial”).

         In deciding a motion for summary judgment, the court's function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.'” Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)).

         Nevertheless, the non-moving party “need not be given the benefit of every inference but only of every reasonable inference.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).

         II. STATEMENT OF FACTS

         According to Rule 56(e), “If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . (2) consider the fact undisputed for purposes of the motion [and] (3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it . . . .” Fed.R.Civ.P. 56(e)(2)-(3). Despite being warned of the consequences of failing to respond to defendants' Special Reports, which the court is treating as Motions for Summary Judgment, Gifford failed to address defendants' assertions of fact. Therefore, the court deems the following facts, which are supported by record evidence, to be undisputed.

         On Saturday, June 23, 2012, Gifford reported to the Health Services Unit at FCI-Talladega, complaining that he had “hurt [his] back playing ball.” (Doc. 54-1 at 79; 60-28 ¶ 4.) An examination revealed tenderness. (Doc. 54-1 at 79.) The nurse on duty gave Gifford 800 mg of Ibuprofen to be taken three times a day for seven days and told him to use ice compresses several times a day, and she told him to “make sick call on [M]onday if no improvement.” (Id.; doc. 60-3 ¶ 3; doc. 60-28 ¶ 4.)

         Gifford testified that he slept on the floor that night because he could not climb into his upper bunk. (Doc. 1-1 ¶ 8.) Defendants Michaela Tipple, RN, and Dennis Bott, Correctional Officer, responded to his cell the following morning when he could not get up. (Id. ¶ 10.) Gifford alleged that, when he could not get up, “Bott got down close to [his] face and said, ‘Get up or I am going to kick your ass.'” (Id. ¶ 11.) Gifford's Amended Complaint alleges that Stacie Gardner, Correction Officer, violated his constitutional rights by failing to report Bott's threat. (Doc. 11 ¶ 71.) Gifford does not allege that Bott followed through on his threat. Bott does not recall going to see Gifford with Tipple, and he denies ever threatening Gifford.[2] (Doc. 60-4 ¶¶ 5, 9.) Gardner testified she did not hear Bott tell Gifford he was going to kick his ass; if she had, she would have reported it. (Doc. 60-18 ¶ 5.)

         According to Gifford's medical records, on Sunday morning, June 24, 2012, Tipple saw Gifford sometime around 6:30 a.m. in his cell. (Doc. 54-1 at 76; doc. 60-3 ¶ 5; doc. 60-28 ¶ 5.) While there, Tipple spoke with Gifford and he told her that he had hurt his back playing softball; he denied any numbness or tingling. (Doc. 54-1 at 76; doc. 60-28 ¶ 5.) Tipple contacted defendant Mark Holbrook, M.D., FCI-Talladega's Clinical Director, who instructed her to give Gifford a 60 mg shot of Toradol. (Doc. 60-28 ¶ 5; doc. 54-1 at 76.) Toradol is a non-steroidal anti-inflammatory drug (NSAID), that is used for moderate to severe pain. (Doc. 60-3 ¶ 4.) Tipple testified that she and Bott had been very careful when they turned Gifford on his side for the shot. (Doc. 60-28 ¶ 5.)

         Tipple waited in Health Services to see “if the shot worked.” (Id. ¶ 6.) Less than an hour later, at approximately 7:15 a.m., inmates notified Bott that Gifford “could not move.” (Doc. 60-4 ¶ 5; see also doc. 54-1 at 76.) Bott does not recall this incident. (Doc. 60-4 ¶ 5.) However, according to the Camp Log Book, Bott called the Operations Lieutenant at 7:22 a.m. and reported that Gifford was having back pain and could not move. (Id.; doc. 60-5 at 4.) Tipple returned to Gifford's Unit and at that time he told her the shot had not worked at all. (Doc. 60-28 ¶ 6.) An officer attempted to take Gifford to Health Services for further evaluation; however, he “started yelling when the officer and [Tipple] attempted to log roll him [onto a stretcher].” (Doc. 54-1 at 76.) They “did not attempt to move him after that.” (Id.)

         She noted Gifford was cooperative, but irritable and agitated. (Doc. 54-1 at 76.) He “[a]ppear[ed] well” and showed no apparent distress. (Id.) Also, she noted that Gifford “denie[d] numbness or tingling” and that he was “[m]oving all extremities.” (Id.) Tipple telephoned Holbrook and Holbrook gave Tipple a verbal order to send Gifford to the emergency room [ER] at Northeast Alabama Regional Medical Center [the Hospital] for further evaluation and treatment. (Id.; doc. 60-3 ¶ 5; doc. 60-28 ¶ 6.) An ambulance arrived at 8:44 a.m. to take Gifford to the Hospital. (See doc. 60-5 at 4.)

         When Gifford arrived at the Hospital, he was seen by defendant George Smith, M.D. (Doc. 54-4 at 11-12; doc. 60-3 ¶ 6.) Dr. Smith is licensed to practice medicine in the State of Alabama. (Doc. 24-12 ¶ 4.) On June 24, 2012, he was working in the ER at the Hospital pursuant to an agreement between his employer, Emergency Room Services of Alabama [ERSA] and the Hospital. (See id.; doc. 63-1 ¶¶ 5-6, at 3-4.)

         The agreement between the Hospital and ERSA provided ER staffing. (Doc. 63-1 ¶ 6, at 3-4.) The terms of the agreement required ERSA to “provide Emergency Department Services (Department Services) . . . to the Hospital, ” and “Emergency Department Services” include the services of physicians in the ER. (Doc. 63-1 at 7-8.) “Emergency Department Services” specifically include “[e]valuation and treatment of acute medical needs of every patient submitting himself/herself to the [ER] for medical care . . . ., ” and “[t]reatment of all [ER] patients requiring medical care regardless of ability to pay . . . .” (Id. at 24, 25.) Doctors working in the Hospital's ER under this agreement are not employees or agents of the Hospital. (Id. at 19.)[3] “The Hospital [does] not have or exercise control or direction over the methods by which [ER doctors] perform [their] duties/responsibilities” to provide medical treatment to patients in the ER.” (Id.) Dr. Smith was not an employee or agent of the Hospital on June 24, 2012. (Doc. 24-1 ¶ 4; doc. 63-1 ¶ 5, at 3.)

         Also, Dr. Smith's freedom “to order any tests [he] determined to be medically necessary, ” was not cabined by Dr. Holbrook and/or FCI-Talladega. (Doc. 60-3 ¶ 34.) According to Dr. Holbrook, “Neither myself nor FCI-Talladega had any input on what tests should be ordered for any inmate in the care of the [H]ospital or any outside medical entity.” (Id.) The Hospital did not have an agreement with the BOP regarding the provision of medical services to Talladega inmates; however, they had an agreed Pricing Schedule.

         The x-rays of Gifford's back included five views of the lumbar spine, which were read by a radiologist. (Doc. 54-4 at 13; doc. 60-3 ¶ 6.) The x-rays showed “[n]o acute fracture, malalignment, or skeletal lesion.” (Doc. 54-4 at 13; Doc. 60-3 ¶ 6.) The resulting “impression” of the radiologist was “[n]o acute skeletal injury.” (Doc. 54-4 at 13.) Dr. Smith diagnosed Gifford “with a lumbosacral strain, ” which is consistent with Gifford's reported injury caused by swinging a bat. (Id. at 4; doc. 60-3 ¶ 6; doc. 1-1 ¶ 16.) Dr. Holbrook testified, “A lumbar strain results from stretching of the ligaments, tendons, or muscles, of the lower back. The stretching may cause microscopic tears in those muscles. The muscle normally heals on its[ ] own. If the pain lasts for more than three months it['s] considered chronic.” (Doc. 60-3 ¶ 6.) According to Dr. Smith:

In my professional opinion, Mr. Gifford received medical care for his symptoms that are within the applicable standard of care. My diagnosis of Mr. Gifford was correct and within the applicable standard of care. Furthermore, it is my professional opinion that not ordering an MRI on June 24, 2012[, ] for Mr. Gifford was appropriate and within the applicable standard of case as an MRI was not indicated on this date. At no time did my care and treatment of Mr. Gifford fall below the applicable standard of care.

(Id. ¶7.) Dr. Reginald Hall, an orthopedic surgeon with the BOP, agreed; he testified, “An MRI at the first emergency room visit was unnecessary because[, ] even if Gifford had been diagnosed [with a herniated disc] at that time, in the absence of significant neurologic deficits(s), he should have continued with non-operative treatment.” (Doc. 60-11 ¶¶ 1, 3.) The treatment of a lumbar strain “consists of rest and medication for pain and muscle spasm.” (Doc. 60-3 ¶ 6.)

         Dr. Smith prescribed Percocet and Robaxin for Gifford's pain and muscle spasms. (Doc. 54-4 at 3; doc. 60-3 ¶ 6.) In his discharge papers, Gifford was told that he may have pain and stiffness for a few days, but he “should watch for a significant change or worsening of [his] symptoms.” (Doc. 54-4 at 4.) His discharge papers specifically stated:

         YOU SHOULD SEEK MEDICAL ATTENTION IMMEDIATELY . . . IF ANY OF THE FOLLOWING OCCURS:

- Numbness (loss of sensation/feeling) or tingling in the legs.
- Weakness in the legs.
- Problems controlling your bowels or bladder (you soil or wet yourself).
- Severe increase in pain. [or]
- Your pain does not improve within 4 weeks or is severe enough to seriously limit your normal activities.

(Doc. 54-4 at 4-5.) Gifford was discharged from the ER and returned to the institution that day. (Doc. 60-3 ¶ 6.)

         When Gifford returned to FCI-Talladega, he was seen by Laureano Marasigan, a mid-level practitioner [MLP][4] in the Health Services Unit. (Doc. 54-1 at 74; doc. 60-7 ¶ 1.) Marasigan does not remember Gifford. (Doc. 60-7 ¶ 5.) However, according to Gifford's medical records, Marasigan reviewed the discharge instructions and noted that two of the drugs Gifford was prescribed - Percocet and Robaxin[5] - were “non-formulary” drugs, meaning they were not available from the pharmacy at FCI-Talladega;[6] therefore, he substituted Tylenol with Codeine. (Doc. 54-1 at 74; doc. 60-7 ¶ 5.) Gifford stated that Tylenol with codeine “never relieved the pain.” (Doc. 1-1 ¶ 19.) Noting the diagnosis of lumbosacral sprain/strain, Marasigan gave Gifford a three-day convalescence pass and told him to use warm compresses and to avoid heavy lifting. (Doc. 54-1 at 74; doc. 60-7 ¶ 5; doc. 60-8.) According to Gifford, Marasigan also instructed him “to walk the track.” (Doc. 1-1 ¶ 21.)

         Gifford alleges that he went two or three weeks before he was issued a lower-bunk pass, but the records shows he was given a lower-bunk pass two days after his ER visit. (Doc. 1-1 ¶¶ 21-22, 56; doc. 54-9 at 2; doc. 60-9 at 2.) Dr. Holbrook reviewed the ER records, and he gave Gifford a temporary single cell and lower-bunk pass effective June 26. (See doc. 54-1 at 74-75; doc. 60-9 at 2.) The lower-bunk pass was renewed on July 9, 2012, (doc. 60-9 at 3), and again on July 30, 2012, (id. at 4; see also doc. 60-3 ¶ 9, 14).

         Gifford contends that a week after he moved to a lower bunk, Bott told him he was in the wrong bed; Bott allegedly “raised his voice and threatened to lock [Gifford] up for switching beds.” (Doc. 1-1 ¶ 26.) Bott denies ever threatening Gifford. (Doc. 60-4 ¶ 9.) According to Gifford, Bott sent him to see defendant Harold “Reese” Hardin, Correctional Counselor, and Hardin allegedly “threatened to lock [Gifford] up or make [him] push a lawn mower for switching beds.” (Doc. 1-1 ¶¶ 26-27; see also doc. 60-17 ¶ 1.) Hardin denied he ever threatened Gifford with pushing a lawnmower. (Doc. 60-17 ¶ 3.) Regardless of the threats, Hardin told Gifford that he “would do the bed change.” (Doc. 1-1 ¶ 27.)

         Dr. Holbrook testified:

On June 26, 2012, MLP Honoria Dela Cruz provided Gifford with a MDS for a temporary lower bunk, A.K.A. lower bunk pass. The MDS for a lower bunk was not provided immediately after Gifford's reported injury because he did not meet the criteria in accordance with the Lower Bunk Criteria Memorandum issued by RADM Newton E. Kendig, Assistant Director, Federal Bureau of Prisons on June 5, 2012. The lower bed bunk criteria denotes medical conditions that must be present in order for a pass to be issued, and whether the pass should be temporary or mandatory. When Gifford was seen on June 23, 2012, his exam revealed no significant findings . . . other than tenderness. Thus, he did not qualify for a lower bunk pass at that time.

(Doc. 60-3 ¶ 8.) Any member of the Unit Team - comprised of the Unit Manager, two Case Managers, two Counselors, and a Unit Secretary - can make a bed assignment. (Doc. 60-17

         ¶7.) Hardin testified:

Changing bed assignments at the Camp is routine and part of my job. Lower bed bunks are always preferred over upper bunks. Once a bed is assigned, I have no problems reassigning an inmate to a lower bunk as long as the inmate has appropriate documentation from the health services department. If an inmate approached me, and he did not have a lower bunk pass[, ] I would contact the health services department for verification. If no one in the health services department was available, I would advise the inmate I can't make the change without appropriate documentation.

(Doc. 60-17 ¶ 6.) According to Hardin, Gifford did not ask him for a lower-bunk assignment until July 5, 2012, and he assigned him a lower bunk that same day. (Doc. 60-17 ¶ 4.)

         Gifford did not respond to defendants' Special Reports; therefore, he has not presented any evidence to dispute the medical records and documents submitted by defendants that show he was issued a lower-bunk pass on June 26, 2012, and that he waited until July 5, 2012, to have Hardin reassign him to a lower bunk.

         Gifford alleges that the “medical staff refused [his] request for a stool to use in the shower, forcing [him] to stand up while showering causing [him] constant pain and fear of failing down every time [he] showered.” (Doc. 1-1 ¶ 52.) His medical records do not show that he ever requested a shower stool. (Doc. 60-3 ¶ 32; see also doc. 54-1 at 42-47, 56-79.) Gifford did not rebut this evidence.

         Gifford was next seen in Health Services on July 9, 2012, with complaints of recurrent back pain. (Doc. 60-3 ¶ 8; doc. 54-1 at 72.) He was seen by defendant Mounir Mourtada, MLP. (Doc. 54-1 at 72; doc. 60-3 12; doc. 60-10 ¶ 3.) Mourtada noted that Gifford reported his back pain was 6/10 on the pain scale. (Doc. 54-1 at 72.) Upon examination, Mourtada noted tenderness and decreased range of active motion; however, the examination was negative for a decreased range of passive motion, crepitus, clicking, popping, and locking. (Id.) Mourtada found that Gifford's symptoms were consistent with a back sprain and/or strain. (Doc. 60-10 ¶ 3.) He assessed Gifford's “[s]prain and strain of lumbosacral, ” from June 24, 2012, as “[i]mproved.” (Doc. 54-1 at 72-73) Mourtada ordered Gifford be given 500 mg of Naproxen twice daily for 10 days. (Id. at 73.) Gifford alleges that Mourtada told him he was going to start the paperwork to get him an MRI. (Doc. 1-1 ¶¶ 29-30.) The medical records do not indicate that an MRI was requested or ordered at this time. (See 54-1 at 72-73.)

         Gifford returned to Health Services on July 24, 2012, slightly more than two weeks later, when he saw Marasigan for renewal of his medication for his back pain. (Doc. 54-1 at 70; see doc. 60-7 ¶ 6.) At that time, Gifford reported his back pain was 4/10 and that his back was “tender.” (Doc. 54-1 at 70.) Marasigan assessed Gifford's back injury to be “[a]t treatment goal.” (Id.) He prescribed 25 mg of Indomethacin[7] three times a day for 14 days. (Id.; doc. 60-7 ¶ 6.)

         On July 27, 2012, three days later and over a month after he had been diagnosed with a back strain or sprain, Marasigan saw Gifford again, this time in his Housing Unit. (Doc. 54-1 at 66; doc. 60-7 ¶ 7.) According to his medical records, Gifford told Marasigan that, “while he was taking a shower he felt tingling on both lower extremities. After he finished showering and was walking out of the shower, he felt numbness of lower extremities and he could not feel where he was stepping and he got scared. He was helped to his cubicle by other inmates.” (Doc. 54-1 at 66.) By the time Marasigan arrived, Gifford was able to stand and walk, but he had continuing numbness in his left foot, back pain of 5/10, and muscle spasms in his left buttock and thigh. (Id.; doc. 60-7 ¶ 7.) Marasigan performed a neurological exam on Gifford, which demonstrated that his lower extremities had “active movement against gravity and resistance” or “some resistance.”[8] (Id.) Gifford also had diminished sensation on the dorsal aspect of the left foot. (Id.) Gifford was diagnosed with peripheral neuropathy, unspecified, [9] and given a shot of Ketorolac, an anti-inflammatory drug. (Id. at 67.) He was told to “[f]ollow-up at Sick Call as [n]eeded.” (Id.)

         The following day, July 28, 2012, Marasigan was “called down to the [the Housing Unit] because Inmate Gifford was complaining of [numbness] and pain on both lower extremities and he could not stand up.” (Id. at 62; doc. 60-7 ¶ 8.) Gifford told Marasigan that his condition was “getting worse” and that he “could not feel his toes.” (Doc. 54-1 at 62; doc. 60-7 ¶ 8.) Marasigan examined Gifford and noted, “twitching and spasm of the muscles of both lower extremities on palpation and on weight bearing with tenderness on the [posterior] aspect.” (Doc. 54-1 at 62; doc. 60-7 ¶ 8.) The results of his neurologic examination were the same as the day before. (Doc. 54-1 at 62-63.) Marasigan assessed Gifford with peripheral neuropathy, unspecified, and noted that his condition had “Not Improved.” (Id. at 63.) Gifford was prescribed 60 mg of Ketorolac twice a day for three days. (Id.) Marasigan told Gifford “to follow up at sick call on Monday to be referred to Physician.” (Id.; see also doc. 1-1 ¶ 34 [Gifford alleges that Marasigan told him, “You need to see a specialist.”].) Marasigan testified that he “did not send Gifford to the emergency room because[, ] based on [his] experience, [he] did not consider the condition an emergency.” (Doc. 60-7 ¶ 8.) He did not see Gifford again until March 2014. (Id. ¶ 9.)

         On Sunday, July 29, 2012, Gifford was seen in Health Services by defendant Sofronio Paco, MLP/physician's assistant, complaining of low-back pain and numbness. (Doc. 54-1 at 58; doc. 60-12 ¶ 1.) Gifford alleges that defendant Anthony “Ace” Williams, a Senior Officer Specialist, “loaded [him] in a wheelchair and pushed [him] to [Health Services], but [he] was unable to get out of the wheelchair [and on] to the examination table, so Mr. Williams grabbed [him] in a bear hug and hefted [him] up on to the table causing sheer agony in [his] lower back.” (Doc. 1-1 ¶ 36; see doc. 60-16 ¶ 1.) Paco denies he instructed an officer to put Gifford in a bear hug. (Doc. 60-12 ¶ 5.) He testified that the officer had helped Gifford get on the examination table and he had tried not to hurt him. (Id.) Williams testified that he would never intentionally cause pain to an inmate and he had tried only to help. (Doc. 60-16 ¶ 4.)

         Upon examination, Paco noted “there is tenderness (6/10)[10] to palpation on the paravertebral muscles bilaterally;” the results of his neurologic examination of Gifford were identical to Marasigan's findings on July 27 and 28, 2012. (Id. at 59 [footnote added].) He also assessed Gifford with peripheral neuropathy, unspecified, and noted Gifford's condition had not improved; Paco added an “initial” diagnosis of “backache, unspecified.” (Id.) Paco contacted Dr. Holbrook, who ordered an x-ray because of Gifford's “complaint of low back pain for three days.” (Id. at 60; doc. 60-3 ¶ 13.) Even though Gifford's symptoms were consistent with the diagnosis of back strain or sprain made by Dr. Smith in the Hospital's ER, Dr. Holbrook sought to do another x-ray “to determine if his condition was becoming worse.” (Doc. 60-3 ¶ 13.) Gifford alleges that he asked to go to the Hospital, but Paco told him, “Tonight is my early night, why should I help you, I am supposed to go home early tonight.” (Doc. 1-1 ¶ 39.) Paco testified that he had waited to see Gifford until after his shift had already ended at 6:00 p.m. (Doc. 60-12 ¶ 6 [“I was scheduled to get off of work at 6:00 p.m. However, I waited for Gifford to come to Health Services and I stayed to assist him.”].) Gifford did not rebut this testimony.

         Monday, July 30, 2012, Gifford arrived at Health Services “on a wheel chair” and screaming. (Doc. 54-1 at 46.) Mourtada, who was examining another inmate at the time, noted that, when he went to see what was happening, he saw Gifford “on the floor screaming of pain [and] he claimed that he [could not] feel his legs and wanted to go [to] the outside hospital.” (Id.; doc. 60-10 ¶ 4; see doc. 1-1 ¶ 40.) Gifford was able to walk into Mourtada's office. (Doc. 60-10 ¶ 4.) He told Mourtada that his pain was 10/10 and its onset was 1 to 5 hours before arriving in Health Services. (Doc. 54-1 at 46.) Gifford said that Mourtada asked him, “Why are you crying? Grown men don't act like this, ” (doc. 1-1 ¶ 41), which Mourtada denies, (doc. 60-10 ¶ 6). Mourtada examined Gifford and noted “Muscle Spasm, Tenderness, Decreased Range of Active Motion, Decreased Range of Passive Motion, ” positive “Straight Leg Raise Test, ” and a “Spastic Gait.” (Id. at 47.) “Gifford was diagnosed with temporary acute backache - unspecified, peripheral neuropathy - unspecified, and muscle spasm.” (Doc. 60-3 ¶ 14; see also doc. 54-1 at 47; doc. 60-10 ¶ 4.)

         Mourtada contacted Dr. Holbrook about Gifford's complaints and Dr. Holbrook “decided to order an MRI in order to rule out [a] herniated versus ruptured disc in [the] L-S spine.” (Doc. 60-3 ¶ 14; doc. 60-10 ¶ 4.) Dr. Holbrook found that the need for an MRI was not “emergent at the time as Gifford was displaying classic signs of peripheral neuropathy (a condition which cannot be cured).” (Doc. 60-3 ¶ 17.) Dr. Hall, defendant's expert, testified, “[W]hether to send Gifford to the emergency room on July 30, 2012, in my opinion, [was] a judgement call. In my opinion, it was appropriate to let objective findings, (or lack of findings) that supported the inmate's complaints[, ] direct BOP's care, and not more dramatic behavior that could be an attempt to get the staff to do something or send the inmate out of the institution.” (Doc. 60-11 ¶ 3.)

         A week later, on August 6, 2012, Gifford returned to the Health Services Unit for the purpose of refilling his psoriasis medication. (Doc. 54-1 at 42; doc. 60-3 ¶ 14; doc. 60-10 ¶ 5.) While there, he complained to Mourtada that he still had severe lower back pain and that “he [had] started losing urine without noticing 2 days ago and he [could not] control his urination.” (Doc. 54-1 at 42; doc. 60-10 ¶ 5.) Gifford also reported being unable to walk and unable to feel his legs and thighs. (Id.) Dr. Holbrook told Mourtada to send Gifford to the ER for “MRI of L-S spine, immediate medical attention and [diagnosis], ” to rule out a herniated disc and cauda equina syndrome. (Doc. 60-10 ¶ 5.) Dr. Holbrook testified in his declaration that Gifford's incontinence led him to deem Gifford's situation to require immediate medical attention outside Health Services. (See doc. 60-3 ¶ 16; see also doc. 60- 10 ¶ 5.) He testified, “Cauda equina [syndrome] is an impingement on the lower spinal cord which left untreated can result in permanent paralysis. This condition presented a possible emergency situation.” (Id.) Cauda equina syndrome [CES] -

is a rare syndrome described as a collection of signs and symptoms associated with compression of the cauda equina. Cauda equina is Latin for “horse's tail, ” and refers to the collection of nerve roots in the lower spinal canal. . . .
CES is a rapidly-evolving neurologic disorder related to spinal cord and spinal cord leash compression which causes a very specific constellation of symptoms, which are necessary in order to make the diagnosis. These symptoms are: (1) saddle anesthesia (i.e., no sensation in the legs, anus or accompanying regions), (2) rapidly progressing neurologic weakness progressing to paralysis and (3) bladder dysfunction. Indeed, . . . bladder dysfunction is the “hallmark” symptom of CES.

Blake v. United States, No. 10-CV-610S, 2017 WL 1371000, *2 (W.D.N.Y. Apr. 17, 2017)(quoting Jimerson v. United States, No. 99-CV-0954E(SR), 2003 WL 251950, *2 (W.D.N.Y. Jan. 13, 2003))(internal quotations and citations omitted).

         FCI-Talladega does not have a MRI on site. (Doc. 60-3 ¶ 17.) Therefore, when an MRI is ordered . . . a certain amount of logistical planning [is involved, ] including coordinating with an outside medical facility and correctional services to transport the inmate. (Id.) Correctional services also determines the level of security needed for the inmate's transportation. (Id.) Dr. Holbrook testified:

When I ordered the MRI on July 30, 2012, I did not deem the need for the MRI as emergent at the time as Gifford was displaying classic signs of peripheral neuropathy (a condition which cannot be cured). Thus, the request for the MRI was being processed through normal channels. However, on August 6, 2012, when Gifford's symptoms changed, I determined the need for the MRI was emergent, and I had him sent immediately to the emergency room at an outside hospital.

(Id. [emphasis added].) Also, he stated:

Although it would be easy to look back, and think Gifford should have been sent to the emergency room earlier, it is when the symptoms changed to those associated with Cauda Equina syndrome, that emergent evaluation was required. Although Gifford had been complaining of pain and numbness, he was being treated for what was felt to be spasm and neuropathy. Many of his complaints were subjective, and did not seem to fit the objective findings at the time. Although the neuropathy, similar to what is seen with sciatic nerve pain and impingement, can be caused by herniation or a disc bulge it did not rise to the emergent level until he had the incontinence which can be associated with Cauda Equina Syndrome. Cauda Equina [syndrome] often presents with saddle numbness, or incontinence, and left untreated, can result in permanent paralysis. At the point this was suspected, the patient was sent to the ER immediately.

(Id. ¶ 35 [emphasis added].)

         Gifford testified that “[m]edical refused to provide [him] with adult diapers” prior to August 6, 2012. (Doc. 1-1 ¶ 55.) However, the record shows that Gifford did not complain about incontinence to anyone in Health Services before August 6, 2012. Moreover, on that day, August 6, 2012, he was sent out from FCI-Talladega and did not return until a year later. Therefore, Gifford did not ask for adult diapers and no one “refused” to provide them after Health Services was aware of his incontinence issues.

         Once Gifford arrived at the ER, he had an MRI that “showed a significant disc bulge at ¶ 4, L5, and S1.” (Doc. 54-1 at 41; doc. 60-3 ¶ 18.) The ER physician told Dr. Holbrook that Gifford also had “lost [sphincter] tone in the rectum and [had] some foot drop.” (Doc. 54-1 at 41.) Due to the ER physician's concern about [CES], the Hospital transferred Gifford to Princeton Hospital in Birmingham for treatment by R. Cem Cezayirli, M.D., a neurosurgeon. (Id.; see also id. at 215-16.)

         At Princeton, Dr. Cezayirli ordered a myelogram and told Dr. Holbrook that he planned to operate on Gifford the following day. (Id. at 37.) Dr. Cezayirli diagnosed Gifford with a “large herniated disk L4-5 with complete block, ” and “cauda equina syndrome.” (Id. at 182.) As planned, Dr. Cezayirli performed a lumbar discectomy and decompressive laminectomy on August 8, 2012. (Doc. 60-3 ¶ 19; doc. 54-1 at 182-83.) The surgery went well and thereafter Gifford was able to ambulate with a walker. (Doc. 60-3 ¶¶ 20-21; doc. 54-1 at 29, 32, 182-83.) After surgery, however, Gifford continued to have bowel and bladder continence issues during his stay at Princeton. (Doc. 60-3 ¶ 22; see doc. 54-1 at 25, 28, 118, 126.)

         Dr. Dr. Holbrook was told that Gifford would need physical therapy, so he requested to transfer Gifford to a Federal Medical Center to receive the appropriate care. (Doc. 60-3 ¶23.) On August 27, 2012, Gifford was transferred to transitional care at Coosa Valley Medical Center to continue physical therapy. (Id. ¶ 24.) While there, Gifford's condition continued to improve and he was able to walk with a quad cane. (Id.) On November 14, 2012, Gifford was transferred to the Federal Medical Center in Lexington, Kentucky. (Id. ¶ 25.)

         Gifford remained in Lexington until he was “independent with all Activities of Daily Living” and he felt he no longer needed physical therapy. (Id. ¶ 26.) He was transferred back to FCI-Talladega on August 26, 2013, (id. ¶ 27), where he remained until he was released in May 2016, (doc. 60-1 at 4).

         On May 28, 2013, Gifford filed an “Emergency BP-9.”[11] (Doc. 60-15 at 10.) In the Grievance, he states in part:

In June 2012[, ] I suffered an injury playing Softball at [Talladega] FPC. I swung the bat and somehow twisted my back. I went to the Officers and Sick-Call and nothing was done except I was given Ibuprofen. I stayed on the floor the remainder of the day and night and half the next day, (even during Counts). After a couple of weeks, I got up for the 10:00 count and felt the same pain as before shoot through my back and legs. The PA who saw me stated I needed to see a Specialist. I had gone back to sick-call upon experiencing the same pain as before. The PA gave me a shot and sent me on my way. This went on for a month UNTIL I lost control of my bladder and my bowels. By the time I got [an] MRI, the Hospital had to admit me for EMERGENCY SURGERY. . . . It has been six (6) months since the surgery and I still have no movement in my right foot and several “dead spots” in BOTH legs. The Doctors who helped me in Birmingham have said this could have been totally avoided. Now, I continue to suffer and struggle because as Mr. Paco (one of the PA's I saw in Talladega) said to me, I am supposed to go home early tonight, I am NOT going to help you. This is clearly a violation of my 8th Amendment right, this is a violation of the duty to treat, delay in medical care and deliberate indifference to my serious medical need. . . .

(Doc. 60-15 at 10.)

         Defendant John Rathman, then-Warden of FCI Talladega, denied the grievance on June 12, 2013. (Doc. 60-15 at 8-9.) He stated:

This is in response to your Request for Administrative Remedy (BP-9) receipted on June 6, 2013, in which you state you suffered an injury in June of 2012 at FPC Talladega while playing softball. You allege you have been subjected to negligence and deliberate indifference by not having your medical needs met in a timely manner.
After consulting with medical staff, it was revealed that an injury report was completed on June 23, 2012, in which you complained you hurt your back while playing softball. You were given a prescription of Ibuprofen 800 mg and instructed to follow up with sick call as needed. On June 24, 2012, you continued to complain of pain. After review, the physician ordered a pain injection and you were transferred to the local emergency room via ambulance for further evaluation. You returned back [to] the institution the same day with reports/X-rays of your lumbar region reflecting negative findings. You were given a diagnosis of Lumbosacral Sprain/Strain and were given a convalescence pass for 3 days and [instructed] to use warm compresses. You were also prescribed Tylenol with Codeine at that time. You made sick call July 9, 2012, for continuation of back pain, Naproxen was added to your pain regimen and a lower bunk pass was assigned. You made sick call several more times complaining of back pain which was addressed based on your medical needs. You had an emergent episode on July 27, 2012, where you experienced back pain, numbness and tingling of lower extremities while getting out of the shower. You were given an injection for your discomfort and instructed to notify medical if symptoms worsened or did not improve. Again on July 28, 2012, you had an emergent episode where you were experiencing pain, numbness and tingling and you were given another injection for your discomfort. On July 29, 2012, you were evaluated at sick call and additional X-rays were ordered. On August 6, 2012, you reported to the MLP that you had experienced a loss of bladder and bowel control over the last 2 days. You also reported you had numbness in your legs and were unable to walk. At this time, a decision was made to transport you to the local Emergency Room via ambulance for stat MRI. After arriving in the ER and reviewing the MRI results, a decision was made to transfer you to Princeton Hospital in Birmingham, Alabama, for back surgery. On August 28, 2012, you were transferred to Coosa Valley Hospital for long term care. You remained at Coosa Valley Hospital until you were transferred to FMC Lexington on November 14, 2012.
Therefore, you were evaluated and treated by the proper medical providers, and at no time, was there a delay of medical care or a deliberate indifference in regard to your medical needs. Additionally, your request for monetary compensation needs to be addressed via the Federal Tort Claims Act.
Your Request for Administrative Remedy is for informational purposes only.
Medical staff will continue to provide you medical care according to Program Statement 6031.01, Patient Care and medical standard of care. If you have any further question or concern, you may address them with the Health Services Administrator.

(Id.)

         On June 25, 2013, Gifford appealed Rathman's decision to the Mid-Atlantic Regional Office. (Doc. 60-15 at 7.) This appeal was denied on the ground that, “There is no evidence to suggest deliberate indifference to your medical needs.” (Doc. 60-15 at 6.)

         Gifford filed an appeal of the Regional Decision on August 11, 2013, in which he stated:

I am appealing the “for informational purposes only” response of the Region for the same reasons. While providing an eloquent chronology of what has happened to me, not one time has anyone taken responsibility for what has happened to me as a DIRECT result of the delay in treatment by the BOP, the denial of treatment by the BOP, and the fact that the Medical Staff were so incompetent they didn't readily recognize that I had damaged two discs in my back. It was NOT UNTIL I LOST CONTROL OF MY BLADDER AND BOWELS that I was finally sent to a Hospital where I was FINALLY seen by competent Medical Staff. Not one of the Staff at the Hospital said, “it's time for me to go home and I am not going to do anything for you, ” as did Mr. Paco. This is not an isolated incident. Inmates are treated like fourth class human beings when it comes to Medical Care. I have had my L4-L5 disc removed, and I now have a condition called foot drop. . . . ...

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