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Besser v. Sepanek

United States District Court, E.D. Kentucky, Northern Division, Ashland

July 23, 2015

GEORGE BESSER, Plaintiff,
v.
M. SEPANEK, et al., Defendants.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, Jr., District Judge.

Plaintiff George Terrance Besser is an individual confined in the Federal Correctional Institution in Pekin, Illinois. Proceeding without an attorney, Besser has filed a complaint asserting civil rights claims pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).[1] [D. E. No. 1] The Court has granted Besser's motion to pay the filing fee in installments by prior order. [D. E. No. 8]

The Court must conduct a preliminary review of Besser's complaint because he has been granted permission to pay the filing fee in installments and because he asserts claims against government officials. 28 U.S.C. ยงยง 1915(e)(2), 1915A. A district court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Besser's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the plaintiffs factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Background

On June 14, 2005, Besser and several co-defendants were convicted in federal court in Michigan of mail fraud, conspiracy to commit mail fraud, and money laundering in connection with a fraudulent investment scheme. On November 14, 2005, Besser was sentenced to a twenty-year term of incarceration and ordered to pay over $12 million in restitution. United States v. Besser, No. 1:04-CR-165-RHB-3 (W.D. Mich. 2004). Besser's conviction and sentence were affirmed on direct appeal. United States v. Flynn, 265 F.Appx. 434 (6th Cir. Feb. 14, 2008).

The facts described in Besser's complaint reach back to 2005. A number of the allegations relate primarily or entirely to Janet Marcusse, one of his codefendants at trial. Besser indicates that Marcusse, who remains incarcerated, "prepares his legal work for his approval and submission." [D. E. No. 4, p. 2] However, the Court considers such allegations solely to the extent that they are directly relevant to a claim Besser himself may assert in this action.

Besser alleges that federal agents kidnapped him from Mexico in 2005 to face the federal charges; he was assaulted while in pretrial custody because of a false rumour that he was a pedophile, and during his trial a prescription seizure medication was either denied entirely or its dosage altered. [D. E. No. 1, pp. 6-8] Besser also challenges both the evidence used to convict him and the calculation of his sentence and that of his co-defendants. [D. E. No.1, pp. 7-12] For instance, Besser alleges that United States Probation Officer Richard Griffis fabricated prior criminal offenses that he alleged Marcusse had committed in order to enhance Besser's own "proportional" sentence [D. E. No. 1, p. 8], and that presiding United States District Court Judge Robert Bell was biased and submitted improper instructions to the jury.[2] [D. E. No. 1, p. 9]

Prior to his incarceration, Besser suffered from a number of pre-existing medical conditions which required prescription medication, including for an overactive thyroid and for seizures. [D. E. No. 1, p. 6] Besser indicates that after his sentencing, he was transferred to the Federal Correctional Institution in Ashland, Kentucky ("FCI-Ashland") on March 4, 2006. [D. E. No. 1, p. 12] Besser alleges that shortly after his arrival, unidentified medical staff changed the dosage on his prescription for levothyroxine (a thyroid hormone replacement), but that after family members complained about his health to Health Services Administrator Amanda Waugaman, the dosage of his medication was returned to its prior level. [D. E. No. 1, p. 13]

Besser alleges that in Fall 2007, nurse Rena Walker required Besser to take a blood test after he had taken his medications that morning, which caused his results to be abnormally high. As a result, he contends, physician's assistant Daming reduced the dosage on his levothyroxine prescription, which by January 2008 caused him to have chest pains and a subsequent seizure on January 22, 2008. [D. E. No. 1, p. 14]

Besser was transferred to a federal medical center in Devens, Massachusetts in 2009. While incarcerated there, on January 20, 2010, he was examined by contract physician Nicholas Mercadante, who indicated that Besser appeared to be "doing well" from a cardiac standpoint, but recommended recurring testing and a "carotid duplex, " an ultrasound test used to evaluate blood flow in the carotid arteries. [D. E. No. 1-9] Besser was returned to FCI-Ashland on July 8, 2010. [D. E. No. 1, p. 14]

Besser alleges that on March 1, 2012, nurse Rena Walker ordered Besser to perform three days of work duty, and that on those days officer Baugh directed Besser to clean paneling on a ladder, clean mop buckets and wringers, and when Besser refused to perform his assigned task on the third day, he was ordered to complete paperwork. [D. E. No. 1, p. 15]

On June 6, 2012, Clinical Director Kenneth Gomez advised Besser that the Utilization Review Committee ("URC") had approved his request for vascular surgery for coronary artery disease of bilateral carotids as a medically necessary non-emergency procedure. [D.E. No. 1-10] However, on July 2, 2012, Dr. Omran R. Abul-Khoudoud examined Besser and concluded that Besser should continue his prescription for aspirin, and recommended that a computed tomography angiogram ("CTA") be performed on the amiic arch and bilaterally on the carotid mieries. [D.E. No. 1-11] On August 1, 2012, the URC approved the request for a CTA. [D.E. No. 1-12] Besser alleges that he suffered strokes on August 9 and August 23, 2012. [D.E. No. 1, p. 16]

Besser alleges that in September 2012 his cellmate threatened to sexually assault and kill him because the cellmate believed Besser was a pedophile. Besser contends that Judge Bell arranged to have this inmate placed in Besser's cell to kill him in an effort to silence Besser's complaints about improprieties committed by Judge Bell during his criminal trial. [D. E. No. 1, pp. 17-18]

On March 18, 2013, Besser filed a form to seek informal resolution of his claim that his treatment, specifically vascular surgery to treat coronary artery disease of bilateral carotids, has been unreasonably delayed. [D. E. No. 1, p. 18; D. E. No. 1-16] Three days later Unit Manager B. Sparks responded that his medical care was being managed and that additional care was planned. Besser contends this assertion was "false and fraudulent" at the time because on June 5, 2014 - over one year and three months later - officer Sparks approved his transfer to another federal prison.

Besser filed an inmate grievance form BP-229 challenging the delay in his medical care to warden M. Sepanek on March 22, 2013. In his April 15, 2013, response, Sepanek indicated that medical records showed that on October 1, 2012, a vascular surgeon recommended that a left carotid duplex be repeated in six months, and that five months later on March 1, 2013, a bilateral carotid duplex was in fact performed. On March 8, 2013, the results were reviewed with Besser and he was advised that an appointment would be set up with a vascular surgeon when first available. Sepanek encouraged Besser to continue with follow-up care until the appointment was established. [D. E. No. 1-17] Besser contends that Sepanek's response is "false and fraudulent" because it did not accurately reflect Dr. Abul-Khoudoud's June 2012 determination that vascular surgery was medically necessary. [D. E. No. 1, p. 20]

On or about April 17, 2013, Besser appealed Sepanek's denial of his grievance to the Mid-Atlantic Regional Office, contending that medical staff were intentionally delaying the vascular surgery. [D. E. No. 1-22, p. 2] On May 2, 2013, Regional Director C. Eichenlaub denied Besser's appeal stating that Besser's medical care was appropriate and the need for vascular surgery would be determined at a future appointment with a surgeon. [D. E. No. 1-22, p. 1]

On May 10, 2013, Besser appealed to the BOP's Central Office, again contending that vascular surgery for bilateral carotids was approved in June 2012 but had yet to be performed. [D. E. No. 1-14] The Central Office did not address that appeal until October 21, 2014, nearly 18 months later. When the BOP denied Besser's appeal, it stated that:

[Y]our medical condition of occlusion and stenosis of the carotid artery has been continuously monitored, evaluated and treated according to recommendations made from the vascular surgeon since 2012.... Records reflect surgery has not been recommended by the vascular surgeon at this time. The consistent recommendation has ...

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