For the Seventh Circuit
Chicago, Illinois 60604
Court for the Southern District of Indiana,Terra Haute Division.
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 CorrectionalComplex in Terre Haute, Indiana (“FCC”), claims that prison officials and medical staffwere deliberately indifferent to his medical needs by refusing to surgically remove a bulletthat, 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.
deliberately indifferent to his dental needs when extracting a tooth. The district courtgranted 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. WhenBarrett arrived at the FCC, medical staff x-rayed his hip and examined bullet fragmentsbenignly resting over his right femur. Dr. Webster, clinical director at the FCC, and twooutside 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 thatthere was no clinical reason for surgery. Beyond the fragments, Barrett has chronicdermatitis, mainly on his shins and feet, which he says was caused by an allergy to thefragments. Barrett’s dermatitis was treated numerous times at the FCC’s general chroniccare clinic, and medical staff prescribed various anti-inflammatory, steroid skin creams. Onone occasion Barrett developed a bacterial skin infection unrelated to the dermatitis, whichmedical staff successfully treated with a battery of antibiotics. On another occasion, Barrettdeveloped on his arms a rash related to the dermatitis, and medical staff referred him to theFCC’s dermatology program for monitoring. He also has prostatitis and a benignhydrocoele in his right testicle, which medical staff and two outside urologists haveevaluated, treated, and medicated. Barrett also complained of stomach dyspepsia, somedical 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 tohis serious medical needs. Barrett charged Dr. Thomas Webster, Warden Helen Marberry,and Julie Beighley, a health services administrator, with deliberate indifference in refusingto remove the bullet fragments. Similarly Barrett alleged that Public Health Service DentalOfficer (PHS) Roderick Cooper extracted the wrong tooth, in deliberate indifference andretaliation for a grievance Barrett had filed. The district court screened Barrett’s suit, see 28U.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 Bivensactions against PHS Officers, such as Dr. Cooper, for acts within the scope of theiremployment and makes the Federal Tort Claims Act the exclusive remedy. Second, thedistrict court determined that none of the remaining defendants was liable for deliberateindifference: Dr. Webster could not have been deliberately indifferent to Barrett’s manymedical needs given the abundant medical care Barrett received, and Marberry andBeighley were not personally involved in Barrett’s medical treatment and could not be heldliable under a theory of respondeat superior. 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 thewrong tooth, in violation of the First Amendment. But Barrett misapprehends thesignificance of the district court’s rulings. The court had dismissed Barrett’s retaliationclaim at the screening stage, see § 1915A, effectively terminating the claim. In any event, thecourt correctly applied § 233(a) and concluded that, Dr. Cooper, as a PHS officer, could notbe personally subject to a Bivens action for harm arising out of his dental work. See Hui v.
, 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 hadbeen called into question by the recommendations of several dermatologists who said thatthe bullet fragments should be removed. But medical malpractice, negligence, and evengross negligence do not rise to the level of deliberate indifference. Sain v. Wood, 512 F.3d886, 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 deliberateindifference. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). Nor has Barrett shownthat Dr. Webster was deliberately indifferent in treating his sundry other afflictions: thedermatitis, prostatitis, benign hydrocoele, and stomach dyspepsia. Barrett is entitled only toadequate medical care, not to the specific treatment he prefers. See Johnson v. Doughty, 433F.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 wereinsufficient to meet prisoners’ demands. As the district court concluded, however, thesedefendants cannot be held liable based simply on their supervisory or administrative rolesunder 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 inhis various treatments.

Source: http://www.aele.org/law/2011all02/4P0M016O.pdf


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