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Gambino v. Hershberger

United States District Court, D. Maryland

March 20, 2019

DAVID A. GAMBINO, Plaintiff,
FRANK HERSHBERGER, et a!., Defendants.


          THEODORE D. CHUANG, United States District Judge.

         David A. Gambino, a self-represented prisoner at Federal Correctional Institution ("FCI") Schuylkill in Minersville, Pennsylvania, has filed two consolidated civil actions primarily alleging deliberate indifference to his medical and mental health conditions, excessive force, and retaliation suffered while he was incarcerated at FCI Cumberland in Cumberland, Maryland from March 3, 2015 to March 7, 2016. Pending before the Court is a Motion to Dismiss, or in the Alternative, for Summary Judgment ("Motion to Dismiss"), filed by the United States of America and the Federal Bureau of Prisons (collectively, "the Government''). Also pending are the Government's Motion to Seal and Gambino's two Motions to Appoint Counsel, two Motions for a Stay, and Motion for Leave to Amend Response. Having reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Government's Motion to Dismiss and Gambino's Motion for Leave to Amend Response will be granted, and the remainder of Gambino's Motions will be denied. The Government's Motion to Seal will be granted in part and denied in part. Because the Government's Motion to Dismiss does not address all claims against all Defendants, the remainder of Gambino's claims will proceed.


         Although Gambino's Complaints consist of a total of 290 pages, and both the Government and Gambino have attached multiple exhibits to the briefing on the Motion to Dismiss, the Court sets forth only those facts and allegations relevant to the disposition of the pending motions.

         I. The 1701 Complaint

         On July 21, 2017, Gambino filed his Complaint in Case No. TDC-17-1701 ("the 1701 Complaint"), which asserts claims against the Federal Bureau of Prisons ("BOP"), Warden Stewart of FCI Cumberland, eight other named correctional personnel or medical personnel at FCI Cumberland, and various unidentified John Doe Defendants. The named individual Defendants are: Frank Hershberger, Shane Sheetz, Kristi Crites, Dr. Moubarek, Brett Dodd, Lieutenant Eirich, Nurse Todd, and Counselor Smith. The 1701 Complaint asserts claims pursuant to Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983 for violations of constitutional rights; the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80 (2012); the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134 (2012); the Sarbanes-Oxley Act, 15 U.S.C. §§ 7201 et seq. (2012); and the Privacy Act of 1974 ("the Privacy Act"), 5 U.S.C. § 552a (2012). Because FCI Cumberland is a federal facility operated by the federal government, the Court will construe all § 1983 claims to be Bivens claims. Construing the 1701 Complaint liberally, the Court identifies the following claims.

         First, Gambino alleges that Defendants acted with deliberate indifference to his medical and mental health needs by failing to properly treat him for post-traumatic stress disorder, paranoid delusional disorder, and bipolar disorder. Among other things, he asserts that Defendants improperly prescribed him the medication Citropram for suicidal ideations in October 2015 and that in February 2, 2016, Defendants failed properly to respond to several suicide attempts by Gambino, used excessive force in handling him after such attempts, and falsified or destroyed records to cover up their violations. Based on these allegations, Gambino has alleged a Bivens claim that Defendants violated the Eighth Amendment to the United States Constitution based on deliberate indifference to his medical and mental health needs, as well as common law tort claims under the FTCA.

         Second, Gambino alleges that Defendants violated the First Amendment by retaliating against him for pursuing legal action against prison personnel, including by threatening rape and sexual assault, slapping him, and touching him in a sexual manner. In addition to a Bivens claim for the alleged constitutional violation, Gambino also asserts common law tort claims under the FTCA based on this conduct.

         Third, Gambino alleges certain claims relating to records. Specifically, he alleges that Defendants falsified records and destroyed emails relating to his mental health care, in violation of the Sarbanes-Oxley Act. Relatedly, he alleges that certain legal materials and evidence relating to claims against prison officials were destroyed, and certain of his personal records were released to the public, in retaliation for his filing of legal claims and in violation of his right to access the courts, in violation of the First Amendment. He alleges that the destruction of these materials also violated the Sarbanes-Oxley Act and the release of his personal records violated the Privacy Act.

         Fourth, Gambino alleges that Defendants failed to provide accommodations for his disability, such as a cane, special shoes, and adult diapers, in violation of the ADA.

         Finally, Gambino alleges Bivens claims against the Warden and other prison officials for failing to protect him from the various violations asserted, presumably by exhibiting deliberate indifference to inmate health and safety, in violation of the Eighth Amendment.

         II. The 2311 Complaint

         On August 7, 2017, Gambino filed Case No. TDC-17-2311 with a 138-page Complaint ("the 2311 Complaint"), accompanied by more than 200 pages of exhibits, against Warden Stewart and the following medical providers and correctional personnel: Moubarek, Carol Miller, Crites, Tom Gera, Todd, Jody Amerzua, P. Boch, Denise Vanmeter, Tequilla McGahee, Smith, and Carrie Hanscom. The 2311 Complaint includes allegations of improper medical and dental care, failure to protect, excessive force, creation of false records, destruction of property, and retaliation. His claims are brought pursuant to the Eighth and First Amendments through a Bivens action, the FTCA, the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb-l to 2000bb-4, the ADA, the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-3733 (2012), and the Privacy Act. The Complaint seeks $80 million in compensatory and punitive damages, as well as injunctive relief. Construing the 2311 Complaint liberally, the Court identifies the following claims.

         First, Gambino alleges several instances of alleged deliberate indifference to his medical needs. He asserts that beginning on March 3, 2015, he was provided inadequate medical care for a skin infection and for spinal and stomach conditions, including by discontinuing his prescription for Prilosec. He also alleges that FCI Cumberland medical personnel failed to properly treat his severe back pain and a severe fungal infection, and that he received inadequate dental care that resulted in an infected wisdom tooth. Gambino also alleges that Defendants turned off the water in his cell in July 2015 while he was on a hunger strike, which endangered his health and safety. Based on these allegations, Gambino asserts, under Bivens, that Defendants violated the Eighth Amendment by acting with deliberate indifference to his medical and dental needs. He also alleges retaliation in violation of the First Amendment for his filing of grievances relating to his inadequate medical care, as well as common law tort claims under the FTCA based on the same allegations.

         Second, Gambino asserts a RFRA claim arising from his dental care because a dentist recommended the extraction of his wisdom tooth. According to Gambino, extraction of a tooth would violate his religious beliefs.

         Third, Gambino asserts a violation of the ADA based on his allegation that Defendants withheld from him accommodations for his disabilities, such as walking aids, bathroom bars, foot lifts, work restrictions, and certain bunk locations.

         Fourth, Gambino asserts a claim under the FCA based on his allegations that certain Defendants falsified or altered medical records to avoid documentation of his serious medical needs and the failure to address them, and that as a result, Defendants were reimbursed for medical services that were never performed on him. He also alleges common law torts under the FTCA based on these same allegations.

         III. RFRA

         Specific to his RFRA claim, Gambino alleges that because of inadequate dental care, including the lack of regular cleanings, one of his wisdom teeth became infected, and a dentist recommended that it be extracted. However, according to Gambino, his religious beliefs include a belief that all body parts are necessary and that amputation of any body part is prohibited. He states that he was left to choose between preservation of his tooth as required by his religious beliefs and the substantial risk of a deadly infection. He further alleges that he was forced to sign a form accepting responsibility for the consequences of failing to consent to the extraction of his tooth, in violation of RFRA. Although he criticizes the level of dental care that led to his condition, Gambino also claims that the tooth does not need to be extracted and that the only purpose of removing it would be to allow the oral surgeon to profit at the expense of his religious beliefs.

         According to a declaration and records submitted by Dr. Tequilla McGahee, the dentist, on April 21, 2015 she recommended that the tooth be extracted to avoid the risk of a severe infection. When Gambino declined to agree to the extraction for religious reasons, Dr. McGahee had him sign the form acknowledging that he understood the risks of not proceeding with the extraction. No extraction occurred. Although Dr. McGahee declined Gambino's request for a regular schedule of multiple cleanings per year as not feasible and not medically necessary, she informed him that he could receive irrigation and cleaning of his tooth through sick call requests.

         IV. Exhaustion of Administrative Remedies

         In support of its claim that Gambino did not exhaust administrative remedies on any Rehabilitation Act claim, the Government has submitted a declaration from Steven B. Cason, a Senior Equal Employment Opportunity Specialist at the BOP, asserting that as of August 15, 2018, Gambino had not filed any complaints with his office relating to alleged violations of the Rehabilitation Act or any discrimination on the basis of handicap.

         V. Procedural History

         The United States Attorney's Office for the District of Maryland has accepted service for the Government and for the individual Defendants in both cases only in their official capacities. On August 1, 2018, the Court consolidated the two cases and granted Gambino's Motion to Effectuate Service on Defendants Stewart, Hershberger, Sheetz, Crites, Moubarek, Dodd, Eirich, Todd, and Smith in Case No. TDC-17-1701 and Defendants Stewart, Moubarek, Miller, Crites, Gera, Todd, Amerzua, Boch, Vanmeter, McGahee, ...

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