                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2007

Whooten v. Bussanich
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1441




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Recommended Citation
"Whooten v. Bussanich" (2007). 2007 Decisions. Paper 445.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/445


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BLD-353                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 07-1441
                               ________________

                                PAUL WHOOTEN,

                                        Appellant


                                         v.

                  DR. ANTHONY BUSSANICH; A. W. HOBART;
                    ASST. H.S. ADMINISTRATOR ZAGAME,
                        are sued in their official capacities;
                UNITED STATES OF AMERICA; HEMPHILL, H.S.A.

                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civ. No. 04-cv-00223)
                    District Judge: Honorable John E. Jones III
                  _______________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  August 23, 2007

   Before:   MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES.

                           (Filed: September 12, 2007)
                           _______________________

                                   OPINION
                           _______________________

PER CURIAM
       Paul Whooten filed a civil rights action against the United States and USP-

Lewisburg officials asserting constitutional and statutory violations related to the medical

treatment he received for “chronic cluster headaches.” Whooten appeals following entry

of orders by the United States District Court for the Middle District of Pennsylvania

granting the defendants’ motions for summary judgment and denying Whooten’s motions

requesting that the court appoint counsel and an expert witness. We will affirm the

judgment of the District Court.

                                             I.

       Whooten suffers from cluster headaches which (when acute) are debilitating and

cause him extreme pain. According to his complaint, from February 2003 to December

2003, Whooten was treated with Prednisone, Imitrex, Verapamil, and Toredol, all of

which are contraindicated given his history of gastrointestinal bleeding and high blood

pressure. Whooten alleges that, as a result of taking these medications, he vomited

blood, and experienced high blood pressure, dizziness, (continuing) headaches, blurred

vision, severe stomach pain, and fatigue. According to Whooten, the only effective

available medication is Nalbuphine Hydrochloride (or Nubain), a narcotic which Clinical

Director Bussanich previously provided to Whooten once a month, but no longer

prescribes. Whooten contends that although he was referred to a neurologist while at

USP-Lewisburg, Dr. Bussanich refused to follow the neurologist’s recommendation that

Whooten be provided Nubain as needed for cluster headache pain, and that, as a result, he

is stricken with daily debilitating cluster headaches and depression.

                                             2
       Whooten’s amended complaint claims that the defendants acted with deliberate

indifference to his serious medical needs in violation of the Eighth Amendment.

Whooten also alleges Federal Tort Claims Act (FTCA) claims against the United States,

and violations of the Americans with Disabilities Act and the Rehabilitation Act. The

defendants filed a motion to dismiss or, in the alternative, for summary judgment.

       The District Court construed the motion as one for summary judgment, and

granted it with regard to Whooten’s ADA and Rehabilitation Act claims. As to the

constitutional claims, the District Court found defendants Hemphill and Zagame to be

immune from suit,1 and granted summary judgment with respect to defendants Hobart and

Bussanich. The District Court allowed the FTCA claims to move forward. The parties

conducted discovery,2 and the government again moved for summary judgment. The

District Court agreed with the defendants that because Whooten did not produce medical

expert testimony of negligence as required by Pennsylvania law, he could not make out a

prima facie claim under the FTCA. The District Court granted summary judgment, and

Whooten now appeals.




   1
   Hemphill and Zagame are immune to Bivens actions because of their status as
employees of the United States Public Health Service.
   2
   During this period, the District Court also denied Whooten’s motions to appoint an
expert witness and to appoint counsel.
                                            3
                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review,

and must determine whether the record, when viewed in the light most favorable to

Whooten, shows that there is no genuine issue of material fact and that the defendants

were entitled to judgment as a matter of law. See Torres v. Fauver, 292 F.3d 141, 145 (3d

Cir. 2002).

       While we agree substantially with the District Court’s analysis, its evaluation of

Whooten’s Eighth Amendment claim against Dr. Bussanich merits discussion here. In

order for Whooten to prevail, he must show that prison officials were deliberately

indifferent to his serious medical need. See Estelle v. Gamble, 429 U.S. 97 (1976).

Allegations of negligent treatment are medical malpractice claims, and do not trigger

constitutional protections. Id. at 105-06. Deliberate indifference requires a sufficiently

culpable state of mind, such as “reckless[] disregard[]” to a substantial risk of serious

harm to a prisoner. See Farmer v. Brennan, 511 U.S. 825, 834, 836 (1994). This Court

has concluded that the standard is met when prison officials 1) deny reasonable requests

for medical treatment, and the denial exposes the inmate to undue suffering or the threat

of tangible residual injury, 2) delay necessary medical treatment for non-medical reasons,

or 3) prevent an inmate from receiving recommended treatment for serious medical

needs, or deny access to a physician capable of evaluating the need for treatment. See

Monmouth v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987); see also Durmer v.

O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993). We have also held that prison officials who

                                              4
continue a course of treatment they know is painful, ineffective, or entails a substantial

risk of serious harm act with deliberate indifference. See Rouse v. Plantier, 182 F.3d 192,

197 (3d Cir. 1999); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

       Among Whooten’s claims regarding Dr. Bussanich, he asserts that 1) there was an

unwarranted delay by Bussanich in referring him to a neurologist, 2) Bussanich refused to

follow the treatment plan recommended by that neurologist, and 3) that Bussanich’s

refusal to prescribe effective medications was improperly based on the suspicion that

Whooten was “drug seeking.” In its analysis of Whooten’s Eighth Amendment claim

against Dr. Bussanich, the District Court noted that prison medical staff had “provided

him with treatment for his cluster headaches since his arrival” at the prison, that Whooten

had been “prescribed numerous medications,” and concluded that Whooten’s allegations

could not support a claim of deliberate indifference. While we agree that Whooten was

treated for his cluster headaches, the District Court did not adequately address Whooten’s

allegations concerning the denials of (or delay in) a necessary referral and denial of

effective treatment, resulting in pain.

       However, the record does support the District Court’s conclusion. In the past,

Whooten has sought treatment for an addiction to prescription narcotics. The neurologist

apparently recommended treatment with Nubain without knowing this. After Dr.

Bussanich made the neurologist aware of Whooten’s prior addiction, the neurologist

indicated that Nubain could be used for acute attacks at the discretion of prison medical

officials. It appears that Dr. Bussanich and other prisoner officials have followed this

                                              5
treatment plan, as Whooten’s medical records indicate that he now occasionally receives

Nubain and other medications for acute headaches.

       Turning to the delay before Whooten was referred to a specialist, the main conflict

during this period of time was that whereas Whooten desired treatment with Nubain to

relieve his headache pain, Dr. Bussanich and other prison officials often refused Nubain

and sought to treat with another medication. This conflict does not support an argument

that Dr. Bussanich and other prison officials were not capable of evaluating Whooten’s

treatment needs, or that necessary medical treatment was delayed for non-medical

reasons. See Monmouth, 834 F.2d at 347.

       Finally, with regard to the headache pain, and the negative effects that Whooten

experienced from other medications during the period in which Bussanich and other

prison officials refused to treat him with Nubain, the record is clear that prison officials

denied Whooten the treatment he wished for reasons related to his past drug addiction.

Whether those reasons justify that medical decision is a question of negligence, not

deliberate indifference.

       Accordingly, we agree with the District Court that the government is entitled to

judgment as a matter of law and will affirm the judgment of the District Court.




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