United States District Court, S.D. Indiana, Terre Haute Division
JANE MAGNTTS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT.
Discussing Motion for Summary Judgment
Mark Brock (“Mr. Brock”), a federal prisoner
incarcerated at the Gilmer Federal Correctional Facility, in
Glenville, West Virginia, brings this action pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), and the Federal Tort Claim Act (“FTCA”).
He alleges that the defendants were deliberately indifferent
to his serious medical condition of aggressive fibromatosis
in violation of the Eighth Amendment and were negligent when
they delayed treating his condition, which constituted
medical malpractice. Defendants Dr. William Wilson, Dr. Roger
Jones, Alex Jastillano, Dr. Allen, and the United States of
America moved for summary judgment. The plaintiff filed a
response in opposition and the defendants have replied. For
the following reasons, the motions for summary judgment [Dkt.
136, 138] are granted. 
Summary Judgment Standard
Rule of Civil Procedure 56(a) provides that 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.” In ruling on
a motion for summary judgment, the admissible evidence
presented by the non-moving party must be believed and all
reasonable inferences must be drawn in the non-movant's
favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th
Cir. 2009) (“We view the record in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor.”). “When a
motion for summary judgment is properly made and supported,
an opposing party may not rely merely on allegations or
denials in its own pleading; rather, its response must-by
affidavits or as otherwise provided in this rule-set out
specific facts showing a genuine issue for trial. If the
opposing party does not so respond, summary judgment should,
if appropriate, be entered against that party.”
Fed. R. Civ. P. 56(e)(2). The nonmoving party bears
the burden of demonstrating that such a genuine issue of
material fact exists. Harney v. Speedway Super America,
LLC., 526 F.3d 1099, 1104 (7th Cir. 2008). The
non-moving party bears the burden of specifically identifying
the relevant evidence of record, and “the court is not
required to scour the record in search of evidence to defeat
a motion for summary judgment.” Ritchie v. Glidden
Co., 242 F.3d 713, 723 (7th Cir. 2001).
Statement of Material Facts Not in
Brock was incarcerated at the Federal Correctional
Institution - Terre Haute, Indiana, (“FCI-Terre
Haute”) from August 30, 2007, until November 11, 2014.
Mr. Brock alleges in his amended complaint that, beginning in
2007, he was treated for recurrences of aggressive
fibromatosis. [Dkt. 89]. Fibromatosis (also known as desmoid
tumors) is a rare condition that occurs when fibroblasts, the
cells that provide structural support to, and protection of,
the body's vital organs, undergo mutations and begin to
grow uncontrollably. [Dkt. 136-5, ¶ 4]. They can be slow
growing or extremely aggressive. [Dkt. 151-2, at p. 13]. The
tumors associated with fibromatosis, however, do not
metastasize (move from one part of the body to another).
[Dkt. 136-5, ¶ 4]. Aggressive fibromatosis does not
respond well to radiation or chemotherapy and is generally
treated surgically. [Dkt. 151-2, at p. 3]. General surgeons
do not like to operate on desmoid tumors and more specialized
surgeons are often required. [Dkt. 136-5; 138-5; 151-2, at p.
3]. Genetics often determine whether a desmoid tumor is slow
growing or aggressive in its growth. Initial treatment for a
desmoid slow growing tumor is to monitor and observe. [Dkt.
151-2, at p. 4]. However, when a desmoid tumor causes pain or
the tumor grows enough, surgery is necessary. [Dkt. 151-2, at
Terre Haute Medical Facility
March of 2011, Mr. Brock underwent surgery to remove a cyst
on the left side of his rib cage. [Dkt. 151-2, at p. 17].
Defendant Dr. William Wilson is the clinical director at
FCI-Terre Haute. As the clinical director, his job is half
administrative and half clinical. [Dkt. 151-1, at p. 12]. The
medical facility has approximately 5 physician assistants and
Dr. Wilson must cosign their notes. If an inmate needs an
outside referral, the process is conducted through the
utilization review committee. [Dkt. 151-1, at p. 28].
NaphCare is a third-party entity that schedules outside
consultations for the facility and is present during the
utilization review committee meetings. NaphCare then sets up
the outside consultations for the inmates. Dr. Wilson relies
on NaphCare to make the outside appointments [Dkt. 150-1, at
pp. 28, 30, 42].
November 9, 2011, Mr. Brock saw Bureau of Prison
(“BOP”) physician Dr. Roger Jones at the Chronic
Care Clinic- FCI-Terre Haute. Dr. Jones summarized Mr.
Brock's history of fibromatosis and noted that Mr. Brock
had a chest wall mass and two ribs removed in March of 2011.
Dr. Jones observed that Mr. Brock had a “new 2-3 cm
nodule on [the] left anterior chest wall.” He submitted
a request for Mr. Brock to see an oncologist. [Dkt. 136-6;
136-7, pp. 1, 6].
Brock saw contract oncologist Dr. Ryan Gonzales on December
22, 2011. Dr. Gonzales ordered CT scans of Mr. Brock's
chest, abdomen, and pelvis, and stated that Mr. Brock needed
to follow up with Dr. Daniel Meldrum, the cardiothoracic
surgeon at Methodist Hospital in Indianapolis who performed
Mr. Brock's surgery in March of 2011. [Dkt. 136-6, ¶
9; 136-8]. The CT scans ordered by Dr. Gonzales were
performed five days later, on December 27, 2011. [Dkt. 136-6,
¶ 10; 136-9]. The CT scan revealed a deformity of the
left upper anterior chest wall affecting the left second
anterior rib. [Dkt. 136-8].
January 17, 2012, Mr. Brock had a follow up appointment for a
recurrent soft tissue mass with Dr. Meldrum. [Dkt. 136-6,
¶ 11; 136-10].
February 10, 2012, Mr. Brock saw PA Alex Jastillano at the
Chronic Care Clinic. Mr. Brock complained of a
“recurring hard mass in his left chest area which he
said had grown bigger.” PA Jastillano noted that Mr.
Brock had recently been seen by Dr. Meldrum but the results
of that consultation were not yet in the system. Mr. Brock
stated that Dr. Meldrum told him that he would “need
another surgery in the near future.” Because Dr.
Meldrum was moving out of state, PA Jastillano placed a
request for Mr. Brock to see a different cardiothoracic
surgeon. [Dkt. 136-6, ¶ 12; 136-11]. PA Jastillano noted
the mass measured approximately 1.5 centimeters in diameter.
April 16, 2012, Mr. Brock saw cardiothoracic surgeon Dr.
David Hormuth at Methodist Hospital in Indianapolis. After
reviewing Mr. Brock's December of 2011, CT scan, Dr.
Hormuth concluded that “there did not appear to be any
significant masses” and the “soft tissue
firmness” that Dr. Hormuth observed during his
examination “may be related to radiation changes”
or postsurgical scar tissue. Accordingly, Dr. Hormuth ordered
additional CT scans and stated that after he reviewed the CT
scans, if he felt that Mr. Brock needed further follow up, he
would “contact [the prison] directly.” [Dkt.
136-6, ¶ 13; 136-12].
8, 2012, Mr. Brock saw BOP physician Dr. Klint Stander at the
Chronic Care Clinic. Dr. Stander noted that Mr. Brock's
chief complaint was “pain of the left rib cage, left
shoulder, and left arm and hand.” Mr. Brock also
complained about a 3 centimeter lump in the upper outer
quadrant of the left breast area. Dr. Stander scheduled Mr.
Brock for a chest CT. [Dkt. 136-6, ¶ 14; 136-13].
Brock had the CT scan ordered by Drs. Hormuth and Stander on
June 5, 2012. The CT scan revealed “enlargement of the
left breast with a mass lesion” and the radiologist
recommended “appropriate additional evaluation.”
[Dkt. 136-6, ¶ 15; 136-14].
Jastillano reviewed the report from the June 5, 2012, CT scan
on June 22, 2012, and noted that there was “an
enlargement of the left breast mass with a mass
lesion.” Accordingly, PA Jastillano referred Mr. Brock
to Dr. Nabil Mnayarji, a cardiothoracic surgeon in Terre
Haute, for evaluation and a biopsy. [Dkt. 136-6, ¶ 16;
August 8, 2012, BOP physician Dr. Tom Bailey saw Mr. Brock to
evaluate his chest mass. Dr. Bailey noted that “over .
. . the last 5 months [Mr. Brock] has developed another mass
which has rapidly grown in size just below the site of the
last tumor.” Dr. Bailey noted the mass will require
excision and should be removed as soon as practicable and it
caused Mr. Brock pain. Dr. Bailey noted the mass had grown to
a size of approximately 4 x 10 centimeters. [Dkt. 136-6,
¶ 18; 136-17].
August 29, 2012, Mr. Brock saw cardiothoracic surgeon, Dr.
Nabil Mnayarji. Dr. Mnayarji requested another CT scan to
“evaluate the mass and location” and requested to
review the “pathology report from the 2nd procedure
which was done at Indiana University Medical Center.”
Dr. Mnayarji stated that once the imaging was completed and
the pathology report was reviewed, he would
“re-evaluate the condition and recommend the
appropriate treatment for [Mr. Brock].” [Dkt. 136-6,
¶ 19; 136-18].
September 14, 2012, Mr. Brock saw PA Jastillano at the
Chronic Care Clinic. Mr. Brock was “anxious, with poor
behavioral control” and PA Jastillano speculated that
Mr. Brock was upset because his Gabapentin and Percocet had
been discontinued in July after Mr. Brock was caught passing
the medications to another inmate.
October 31, 2012, Mr. Brock asked BOP nurse Danna Dobbins
whether he was scheduled for surgery. Nurse Dobbins reviewed
Dr. Mnayarji's report which “suggested [a] CT of
chest then follow up.” Nurse Dobbins ordered a chest CT
and placed a request for Mr. Brock to see Dr. Mnayarji after
the chest CT was completed. [Dkt. 136-6, ¶ 21; 136-20].
November 16, 2012, Mr. Brock saw Clinical Director Dr.
William Wilson at the Chronic Care Clinic. Mr. Brock's
primary issue that day was “a recurrence of [his] chest
mass lesion left breast.” Although Mr. Brock had seen
Dr. Mnayarji less than 2 months earlier, Mr. Brock insisted
that he “need[ed]” to see Dr. Hormuth, the
cardiovascular surgeon in Indianapolis. Initially, Dr. Wilson
ordered a repeat chest CT and made a note to “get [Mr.
Brock] to [cardiovascular] surgeon possibly who performed his
last procedure in Indianapolis as soon as possible.”
However, upon further review of the records, Dr. Wilson
discovered that Mr. Brock already had an appointment
scheduled with Dr. Mnayarji, so Dr. Wilson instructed the
schedulers to keep that appointment and to schedule Mr. Brock
for follow up with Dr. Wilson. [Dkt. 136-6, ¶ 22;
days later, on November 20, 2012, Mr. Brock had a chest CT
which revealed a “new 3.5-4.3 cm soft tissue
mass” in Mr. Brock's left breast. [Dkt. 136-22]. On
or about December 18, 2012, Mr. Brock had another appointment
with cardiothoracic surgeon Dr. Mnayarji. [Dkt. 136-6, ¶
24]. After the appointment with Dr. Mnayarji, PA Jastillano
noted that Dr. Mnayarji wanted Mr. Brock “followed up
in house by the general surgeon.” [Dkt. 136-23].
December 21, 2012, Mr. Brock and Dr. Wilson discussed Dr.
Mnayarji's recommendation that Mr. Brock follow up with
the “general surgeon who comes inside the
prison.” Dr. Wilson explained that he had placed a
request for Mr. Brock to see someone in the Indianapolis
surgical group that had performed Mr. Brock's March of
2011 surgery because “no local surgeons appear willing
or able to perform further surgery.” [Dkt. 136-24].
February 27, 2013, Mr. Brock saw BOP Regional Medical
Director Dr. Paul Harvey at the Chronic Care Clinic. Dr.
Harvey concluded that Mr. Brock should be transferred to a
BOP medical facility because no surgeons in ...