REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
ARTHUR J. BOYLAN, Chief Magistrate Judge.
This matter is before the court, Chief Magistrate Judge Arthur J. Boylan, 300 South Fourth Street, Minneapolis, Minnesota 55415, on Motion to Dismiss [Docket No. 48] on behalf of all defendants. Plaintiff Elainaise Mervil is a federal prisoner incarcerated at the Federal Correctional Institution at Waseca, Minnesota. The prisoner has filed a pro se complaint under the Federal Tort Claims Act ("FTCA") and for violation of civil rights under Bivens v. Six Unnamed Federal Agents , 403 U.S. 388 (1971) [Docket No. 1], alleging claims of inadequate medical care in violation of the Eighth Amendment and further alleging medical malpractice and failure to provide appropriate accommodations. Specifically, Ms. Mervil asserts that she suffers from medical conditions, particularly knee, leg and foot pains,  which were caused and/or aggravated as result of her assignment to living quarters that were in a location that caused her to experience significant physical hardship and mental distress.
Defendant Nicole English was the warden at FCI-Waseca during times pertinent to this suit; defendant Sandra Lauring, M.D., is the Clinical Director at FCI-Waseca; defendant Donald Collins, M.D., was a contract physician and Clinical Director at FCI-Waseca during times pertinent to this action; defendant Matthew Levisay is a Correctional Counselor at FCI-Waseca; and defendant Mary Ellen Rivers-Graham was Health Services Administrator at FCI-Waseca during times pertinent to this case.
Defendants moved for dismissal of the action on grounds that the plaintiff failed to make proper service on individual defendants and the Attorney General of the United States; plaintiff did not exhaust administrative remedies with respect to left hand or shoulder pain, or claims against defendant Levisay; official capacity claims are barred by sovereign immunity; and individual defendants are protected by qualified immunity. Defendants further argue that plaintiff has failed to provide affidavits of expert review required to maintain a medical malpractice claim under the FTCA, and her Eighth Amendment civil rights claims cannot be brought under the FTCA.
This matter has been referred to the magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For reasons discussed below the magistrate judge concludes that defendants' motion to dismiss should be granted and the action be dismissed with prejudice.
Background and Claims
Plaintiff Elainaise Mervil's designation to FCI-Waseca commenced on March 7, 2009. She did not initially claim any painful medical conditions though she was prescribed medications for headaches, as well as esophageal reflux and benign essential hypertension. She experienced right knee pain on April 23, 2009, and was diagnosed with probable osteoarthritis. On May 6, 2009, plaintiff reported pain and swelling in both knees and in her left foot. X-rays indicated early degenerative osteoarthritis in both knees. On May 11, 2009, Ms. Mervil was examined by Dr. Willis who diagnosed a cyst on the left knee involving swelling from excess fluid on the knee and a like condition on the right knee. Sulfasalazine was prescribed. On June 3, 2009, plaintiff reported severe knee and leg pain and inability to use stairs. She was provided a one-year first floor cell and lower bunk permit. An orthopedic specialist examined plaintiff's knees on July 27, 2009, and recommended use of knee sleeves when walking, along with strengthening exercises, while surgery was not found to be necessary. Sleeves and exercise instructions/therapy were discussed on October 26, 2009, though plaintiff states she did not received the exercises in the mail or from staff at FCI-Waseca. The first floor cell restriction and lower bunk permit were subsequently extended to September 30, 2010.
On July 30, 2010, plaintiff Mervil's first floor restriction was removed and she was placed in basement living quarters, based at least in part upon Health Services Administrator Mary Ellen Rivers-Graham's receipt of reports of the plaintiff using stairs in the housing units to visit friends and watch television-an observation that plaintiff disputes. Plaintiff alleges that the basement living area is not handicapped-friendly, and requires use of stairs. She received the recommended knee sleeves on August 13, 2010, and a cane was provided to her on August 23, 2010. Ms. Mervil continued to experience and frequently report knee and leg pain through August, September, and October 2010. Meanwhile, plaintiff also suffered from dizziness, headaches, and neck pain, possibly related to hypertension. On November 21, 2010, Ms. Mervil was found unconscious in a basement rest room and was sent to a hospital, though no immediate needs were apparent on arrival. Ultrasounds done on both knees on November 5, 2010, did not show fluid or cysts on either knee.
Complaint. Plaintiff Elainaise Mervil filed an initial pleading entitled "Complaint filed pursuant to FTCA and Bivens" in which she alleges that the defendant United States, through its agents and employees, committed acts of medical negligence, denial of medical treatment, and deliberate indifference resulting in pain and deterioration of her physical condition with respect to her knees, legs, back; and left arm, hand, elbow and shoulder. The complaint further cites the history of events and circumstances in which the plaintiff experienced medical issues involving a need for treatment and/or accommodations for pain as referenced above. Finally, Ms. Mervil alleges each individual defendant's deliberate indifference to a serious medical need.
Plaintiff Elainaise Mervil's constitutional claim in this matter is that individual defendants violated her civil rights with respect to the loss of her first-floor restriction, her placement in basement living quarters, and failure to assist in getting her first-floor restriction returned. The complaint describes defendants' alleged conduct as being deliberately indifferent such that defendant Rivers-Graham showed deliberately indifference to a serious medical need by refusing plaintiff's request for assistance in getting her first-floor restriction returned and a prescription for a walker to replace a cane which aggravated her arm and shoulder pain. Defendant Levisay was likewise deliberately indifferent by refusing plaintiff's multiple requests to be moved to the first-floor; defendant Warden Nicole English was deliberately indifferent by failing to intervene and order first-floor quarters, as well as handicap accessible restrooms and showers; and defendant Dr. Sandra Lauring was also deliberately indifferent in her failure to reinstate the first-floor restriction and access to handicap suitable restrooms and showers. The complaint does not contain a claim that the prisoner was denied specific medical care, though it does assert that she suffered increased physical pain and emotional distress as a result of her placement in basement living quarters.
To establish an Eighth Amendment claim the plaintiff must show a serious deprivation of "the minimal civilized measure of life's necessities" and "offending conduct [that is] wanton." Key v. McKinney , 176 F.3d 1083, 1086 (8th Cir. 1999) (quoting Wilson v. Seiter , 501 U.S. 294, 298, 302, 111 S.Ct. 2321 (1991)). Indeed, a plaintiff must establish that she was forced to endure conditions which amounted to "unnecessary and wanton infliction of pain." Weekly v. Cahalin, 2006 WL 2331186 (W.D. Mo., Aug. 8, 2006) (citing Gregg v. Georgia , 428 U.S. 153 (1976)). Conditions are not cruel and unusual simply because they are harsh or uncomfortable. Id. at *1 (citing Farmer v. Brennan , 511 U.S. 825, 832 (1994). An Eighth Amendment action challenging conditions of confinement requires a showing that jail officials have been deliberately indifferent to an inmate's health or safety. Key v. McKinney , 176 F.3d at 1086.
The complaint in this case does not contain allegations sufficient to establish a cause of action for an Eighth Amendment violation. In particular, plaintiff fails to allege any conduct that can be construed as wanton. Although she has certainly alleged deprivation of living quarters that would better accommodate her medical conditions, the assertion of a civil rights violation is essentially based wholly upon the plaintiff's contention that her medical circumstances compel the inference that failure to accommodate her desire for a first-floor placement constituted an unnecessary and wanton infliction of pain. There are no direct facts that support a claim that any individual defendant intended or acted to deprive Ms. Mervil of "the minimal civilized measure of life's necessities" or acted in a manner evidencing wanton conduct, and the inference suggested by the plaintiff is not warranted.
Qualified Immunity. The individual defendants in this action have also moved for dismissal of claims against them on qualified immunity grounds and that is the context in which the parties argue the matter of liability for civil rights violations. The doctrine of qualified immunity protects a defendant from liability for alleged misconduct which was reasonably believed to be lawful or which was not clearly established as unlawful at the time the conduct occurred. The Supreme Court has long held that a government official sued in his or her individual capacity "may assert personal immunity defenses, such as objectively reasonable reliance on existing law." Hafer v. Melo , 502 U.S. 21, 25; 112 S.Ct. 358, 362 (1991). Thus, government officials "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, " are shielded from liability for civil damages. Hartley v. Fine , 780 F.2d 1383, 1387 (8th Cir. 1985)(citing Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). The qualified immunity standard "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Wiegand v. Spadt , 317 F.Supp.2d 1129, 1137 (D. Neb. 2004)(quoting Hunter v. Bryant , 502 U.S. 224, 229, 112 S.Ct. 534, 537 (1991)). Qualified immunity is immunity from suit rather than a mere defense and should be decided by the court long before trial, though the plaintiff is given the benefit of all relevant inferences on summary judgment, and a party is not entitled to judgment on qualified immunity grounds where genuine dispute exists concerning predicate facts material to the issue. Wiegand v. Spadt , 317 F.Supp.2d at 1137 (citing Pace v. City of Des Moines , 201 F.3d 1050, 1056 (8th Cir. 2000)). "Predicate facts" consist of only the relevant circumstances and the acts of the ...