McGowan v. Resto, Admax Pharmacy

          ORDER RE: MOTION TO DISMISS

          Marcia S. Krieger Chief Judge

         THIS MATTER comes before the Court on Defendant Resto's Motion to Dismiss (#33) and Mr. McGowan's response (#36).

         I. Statement of Jurisdiction

         Mr. McGowan asserts a claim against Ms. Resto, in her individual capacity, for denial of adequate medical treatment in violation of his Eighth Amendment rights. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).^[1] The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.

         II. Relevant Facts

         According to Mr. McGowan's Second Amended Complaint (#14) ^[2], he is an inmate housed at the United States Penitentiary, Administrative Maximum (“ADX”) in Florence, Colorado. Mr. McGowan suffers from stomach pains that have been diagnosed as “irritated bowel syndrome” (#14, at p. 5). In August 2016, a doctor recommended that Mr. McGowan take a medication called Ranitidine. Mr. McGowan mentioned the doctor's recommendation to a medical provider at ADX, but the provider informed Mr. McGowan that he would have to purchase the medication from the canteen using his own funds. Mr. McGowan lacked the funds to purchase the medication and thus, went without. (Id.)

         In October 2016, another doctor formally prescribed Ranitidine. (Id.) The pharmacy, under the direction of Ms. Resto, refused to fill the prescription. When Mr. McGowan did not promptly receive the medicine, he wrote to the doctor to inquire as to why, and he was told that “[p]harmacy declined to fill the [ ] medication even through you could have recurrent symptoms.”. (#4, at p. 9.) However, a document from an unknown author, attached to Mr. McGowan's original Complaint explains the situation slightly differently:

Inmate was prescribed ranitidine for 30 days as recommended by GI doctor. . . The inmate was instructed to purchase ranitidine from commissary if not filled by pharmacy due to no established GI diagnosis.

The pharmacy did not fill the ranitidine prescription because his EGD results were completely normal, therefore the ranitidine prescription could not be filled per policy.

He was seen on 10/31/16 for his chronic care appointment. For some reason the doctor says the inmate is positive for h pylori when the EGD clearly states his test results are negative for h pylori. The doctor prescribed the h pylori medications and again the pharmacy could not fill the prescription because the GI documentation doesn't support the prescriptions ordered.

The inmate does not qualify for the Over the Counter Program because his money is encumbered. The inmate will have to sign up for sick call for his health issues to see if there is any medication that can be prescribed for him.

(Id. at p. 12.)

         Ms. Resto moves (#33) to dismiss Mr. McGowan's claim, arguing that pursuant to 42 U.S.C. § 233(a) she is immune from suit because the claim arises out of her performance of duties as a Public Health Service officer. Her declaration (#33-1) states that: 1) she is, and was, a commissioned officer in the Public Health Service (the “PHS”); 2) she worked as an Advanced Practice Pharmacist at the Federal Correctional Complex, Florence, Colorado (“FCC-Florence”) since August 7, 2016; 3) as an Advanced Practice Pharmacist, she was responsible for distributing, administering and dispensing various medications to inmates; and that 4) “at times relevant to this cause of action, ” her conduct with regard to Mr. McGowan was “within the course of [her] scope of employment”.^[3]

         III. ...