United States District Court, D. Colorado
ORDER RE: MOTION TO DISMISS
S. Krieger Chief Judge
MATTER comes before the Court on Defendant
Resto's Motion to Dismiss (#33) and Mr.
McGowan's response (#36).
Statement of Jurisdiction
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). The Court exercises jurisdiction pursuant
to 28 U.S.C. § 1331.
to Mr. McGowan's Second Amended Complaint
(#14) , 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.)
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
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.)
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