Kenneth Barrett v. Helen Marberry , 402 F. App'x 143 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 23, 2010*
Decided December 1, 2010
Before
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10-1959
KENNETH E. BARRETT, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Terra Haute Division.
v.
No. 2:08-cv-0240-WTL-WGH
HELEN J. MARBERRY, et al.,
Defendants-Appellees. William T. Lawrence,
Judge.
ORDER
In this action under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), Kenneth Barrett, an inmate of the Federal Correctional
Complex in Terre Haute, Indiana (“FCC”), claims that prison officials and medical staff
were deliberately indifferent to his medical needs by refusing to surgically remove a bullet
that, he says, causes dermatitis (rashes). Barrett also claims that a prison dentist was
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 10-1959 Page 2
deliberately indifferent to his dental needs when extracting a tooth. The district court
granted summary judgment for all defendants, and Barrett appeals. We affirm.
Barrett has a bullet lodged in his hip, the result of a shot officers fired during his
arrest in 1999. He shot back, killing an officer, which lead to his death sentence. When
Barrett arrived at the FCC, medical staff x-rayed his hip and examined bullet fragments
benignly resting over his right femur. Dr. Webster, clinical director at the FCC, and two
outside orthopedic surgeons each opined that there was no irritation at the healed wound;
that the fragments were not infectious, caused no pain, restricted no movement; and that
there was no clinical reason for surgery. Beyond the fragments, Barrett has chronic
dermatitis, mainly on his shins and feet, which he says was caused by an allergy to the
fragments. Barrett’s dermatitis was treated numerous times at the FCC’s general chronic
care clinic, and medical staff prescribed various anti-inflammatory, steroid skin creams. On
one occasion Barrett developed a bacterial skin infection unrelated to the dermatitis, which
medical staff successfully treated with a battery of antibiotics. On another occasion, Barrett
developed on his arms a rash related to the dermatitis, and medical staff referred him to the
FCC’s dermatology program for monitoring. He also has prostatitis and a benign
hydrocoele in his right testicle, which medical staff and two outside urologists have
evaluated, treated, and medicated. Barrett also complained of stomach dyspepsia, so
medical staff evaluated him and prescribed Prilosec.
Barrett filed this prisoner’s civil rights action, claiming that the defendants deprived
him of a constitutionally required level of medical care by being deliberately indifferent to
his serious medical needs. Barrett charged Dr. Thomas Webster, Warden Helen Marberry,
and Julie Beighley, a health services administrator, with deliberate indifference in refusing
to remove the bullet fragments. Similarly Barrett alleged that Public Health Service Dental
Officer (PHS) Roderick Cooper extracted the wrong tooth, in deliberate indifference and
retaliation for a grievance Barrett had filed. The district court screened Barrett’s suit, see 28
U.S.C. § 1915A, dismissing all claims except those involving the Eighth Amendment.
After further proceedings, the district court ultimately granted defendants’ motion
for summary judgment. First, the court determined that 42 U.S.C. § 233(a) bars Bivens
actions against PHS Officers, such as Dr. Cooper, for acts within the scope of their
employment and makes the Federal Tort Claims Act the exclusive remedy. Second, the
district court determined that none of the remaining defendants was liable for deliberate
indifference: Dr. Webster could not have been deliberately indifferent to Barrett’s many
medical needs given the abundant medical care Barrett received, and Marberry and
Beighley were not personally involved in Barrett’s medical treatment and could not be held
liable under a theory of respondeat superior.
No. 10-1959 Page 3
On appeal Barrett first contends that, in granting summary judgment for Dr. Cooper,
the court failed to address his claim that Dr. Cooper retaliated against him by pulling the
wrong tooth, in violation of the First Amendment. But Barrett misapprehends the
significance of the district court’s rulings. The court had dismissed Barrett’s retaliation
claim at the screening stage, see § 1915A, effectively terminating the claim. In any event, the
court correctly applied § 233(a) and concluded that, Dr. Cooper, as a PHS officer, could not
be personally subject to a Bivens action for harm arising out of his dental work. See Hui v.
Castaneda, 130 S. Ct. 1845, 1848 (2010).
Barrett next contends that the district court wrongly granted summary judgment to
Dr. Webster, arguing that it failed to consider how Dr. Webster’s professional judgment had
been called into question by the recommendations of several dermatologists who said that
the bullet fragments should be removed. But medical malpractice, negligence, and even
gross negligence do not rise to the level of deliberate indifference. Sain v. Wood, 512 F.3d
886, 894-95 (7th Cir. 2007). Barrett’s disagreement with Dr. Webster’s professional judgment
(and the two orthopedic surgeons who treated him) does not suffice to show that Dr.
Webster exhibited a total absence of medical judgment tantamount to deliberate
indifference. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). Nor has Barrett shown
that Dr. Webster was deliberately indifferent in treating his sundry other afflictions: the
dermatitis, prostatitis, benign hydrocoele, and stomach dyspepsia. Barrett is entitled only to
adequate medical care, not to the specific treatment he prefers. See Johnson v. Doughty, 433
F.3d 1001, 1010 (7th Cir. 2006); Snipes v. De Tella, 95 F.3d 586, 591-92 (7th Cir. 1996).
Barrett next contends that the district court erroneously granted summary judgment
for Marberry and Beighley because they knew that the FCC’s dental services were
insufficient to meet prisoners’ demands. As the district court concluded, however, these
defendants cannot be held liable based simply on their supervisory or administrative roles
under a theory of respondeat superior. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
Barrett has not set forth evidence showing that the defendants were personally involved in
his various treatments.
AFFIRMED.