The opinion of the court was delivered by: Murphy, District Judge
This prisoner civil rights case came before the Court on October 27, 2008, for a hearing on Defendants' motion to dismiss and/or for summary judgment. For the reasons set forth below, the motion is granted.
Plaintiff, Eric Harley, is a prisoner in the custody of the Bureau of Prisons ("BOP"). Harley filed this pro se lawsuit claiming violation of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).*fn1 On preliminary review (see Doc. 7), his claims were construed as follows:
In this action, Plaintiff states that he suffers from serious back pain caused by a herniated disc that requires corrective surgery. He alleges that each of the named defendants has failed or refused to provide him with the proper treatment to alleviate his condition, in violation of his rights under the Eighth Amendment.
Harley's claim arises out of medical treatment (or the lack thereof) at FCI-Greenville concerning his chronic back pain. Harley was examined by Dr. Kenneth Smith in December 2005. Dr. Smith diagnosed a protruding disc at L5-S1 and recommended surgery. The surgery was not done, however, because a second neurosurgeon opined that surgery was not clearly indicated. Instead, Harley was treated conservatively. After this lawsuit was filed, additional testing was done, and Harley's back was operated on by a third neurosurgeon.
There are nine defendants. Three (BOP Director Harley Lappin, National Inmate Appeals Administrator Harrell Watts, and North Central Regional Director Michael K. Nalley) do not physically work at Greenville. All defendants have joined in a motion to dismiss and for summary judgment (see Doc. 13). Defendants served the notice required by Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982) (Doc. 15), and Harley filed a response in opposition to the motion (Doc. 20).
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must accept all factual allegations in the complaint as true and draw all reasonable inferences from those facts in favor of the plaintiff. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)); Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007). Notice pleading requires only that a plaintiff set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a)(2). In order to provide fair notice of the grounds for his claim, a plaintiff must allege sufficient facts "to raise a right to relief above the speculative level." Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965 (2007)) (internal quotations omitted).
The complaint must offer "more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 127 S.Ct. at 1965. A court is "not obliged to ignore any facts set forth in the complaint that undermine the plaintiff's claim." R.J.R. Services Inc. v. Aetna Casualty and Surety Co., 895 F.2d 279, 281 (7th Cir. 1989). However, "when a complaint adequately states a claim, it may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder." Twombly, 127 S.Ct. at 1969 n. 8. Pro se pleadings must be liberally construed. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996).
On the other hand, summary judgment is appropriate under Federal Rule of Civil Procedure 56 where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The evidence is construed in the light most favorable to the non-moving party and all justifiable inferences are drawn in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Once the moving party has produced evidence to show that he or she is entitled to summary judgment, the non-moving party must affirmatively demonstrate that a genuine issue of material fact remains for trial. Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). In responding to a summary judgment motion, the non-moving party may not simply reiterate the allegations contained in the pleadings; more substantial evidence must be presented at this stage. Moreover, a genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252.
The Eighth Amendment prohibits "deliberate indifference to serious medical needs." Oliver v. Deen, 77 F.3d 156, 159 (7th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 97 St. Ct. 285 (1976)). In order to prevail on his constitutional claim, Harley must satisfy the two-part test enunciated in Farmer v. Brennan, 511 U.S. 825, 834 (1994) meeting both an objective and subjective component. Specifically, Harley must show (1) his condition was objectively serious, and (2) a defendant acted with deliberate indifference, which is a subjective standard. Reed v. McBride, 178 F. 3d 849, 852 (7th Cir. 1999).
A condition is objectively serious if "failure to treat [it] could result in further significant injury or unnecessary and wanton infliction of pain." Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). Unnecessary pain and suffering, if sufficiently serious, may implicate the Eighth Amendment. See Estelle, 97 S.Ct. at 290.
Liability is personal -- there is no liability unless the defendant "caused or participated" in the deprivation of a constitutional right. Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). Thus, ...