MEMORANDUM

MALACHY E. MANNION, District Judge.

I. Background

Plaintiff, Reggie Andre Beckton, an inmate confined in the United States Penitentiary, Lewisburg, ("USP-Lewisburg"), Pennsylvania, filed the above captioned Bivens1 action pursuant to 28 U.S.C. §1331. (See Doc. 1, complaint). The named Defendants are Steve Brown, Assistant Health Service Administrator, and Fasciana Francis, Housing Unit Physician. Id.

Plaintiff alleges that "he gave notice and/or disclosed to medical staff on numerous occasions that he was experiencing the following conditions: abdominal pains, abnormal and or irregular bowel movement, dark red blood in stool, excessive mucus discharge from rectum in the absence of a bowel movement, no bowel movement after consuming moderate doses of laxative, black colored stool(s), burning sensation and or pain in epidgastric area." Id.

In response, Plaintiff claims that Defendants "provided [him] with stool sample cards to corroborate this fact, and then directed him to return the cards after completing any future bowel movements." Id. "All (3) cards were sent to the labs for testing, all (3) cards returned revealing positive indications for blood being present in Plaintiff's stool." Id. Plaintiff claims that "Medical Staff, having formal indication return from Plaintiff's lab results corroborating a finding that blood was indeed present in the Plaintiff's stool, a request was made by medical staff to have Plaintiff scheduled to undergo an outpatient colonoscopy exam," which was "approved by the Assistant Health Service Administrator" as well as the institution's warden. Id.

Plaintiff claims that "despite having been approved and scheduled to be sent out to an outside hospital to undergo a colonoscopy examination, Plaintiff continued to make several complaints to medical staff regarding his health conditions, most notably Plaintiff complained of the following conditions: abdominal pains, abnormal and or irregular bowel movement, dark red blood in stool, excessive mucus discharge from rectum in absence of bowel movement, no bowel movement(s) after consuming moderate doses of laxative, black colored stool(s), burning sensation and or pains in epidgastric area; medical staff however failed or refused to act on the Plaintiff's health concerns and essentially made efforts to justify such failure or refusal by assuring the plaintiff that he would eventually be sent out to undergo his colonoscopy exam". Id. "Dissatisfied with medical failure to act and or make a consistent and complete record of the Plaintiff's medical concerns, prompted Plaintiff to initiate the institution's administrative remedy process against medical staff." Id.

On January 12, 2016, Plaintiff filed the instant action in which he requests "the court to determine whether its constitutionally permissible for health care providers in a prison institution to receive notice of a medical complaint filed by a prisoner asserting the following conditions: abdominal pains, abnormal and or irregular bowel movement, dark red blood in stool, excessive mucus discharge from rectum in absence of bowel movement, black tarry stools, no bowel movement(s) after consuming moderate doses of laxative, black colored stool(s), burning sensation and or pains in epidgastric area . . . and essentially fails in its capacity". Id.

Presently before the Court is Defendants' motion to dismiss and, or in the alternative, motion for summary judgment. (Doc. 12). The motion has been fully briefed and is ripe for disposition. For the reasons that follow, Defendant's motion for summary judgment will be granted

II. Standards of Review

A. Bivens Standard

Plaintiff's claims are filed pursuant to 28 U.S.C. §1331, in accordance with Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, (1971). Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. §1331 to entertain an action brought to redress alleged federal constitutional or statutory violations by a federal actor. Bivens, supra. Pursuant to Bivens, "a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent of an action brought pursuant to 42 U.S.C. §1983 and the same legal principles have been held to apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D.Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D.Pa. 1992). In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him of a federal right, and that the person who caused the deprivation acted under color of federal law. See West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D.Pa. 1992).

B. Motion to Dismiss

Defendant's pending dispositive motion is supported by evidentiary materials outside the pleadings. Federal Rule of Civil Procedure 12(d) provides in part as follows:

Fed.R.Civ.P. 12(b)(d).

This Court will not exclude the evidentiary materials accompanying the Defendant's motion. Thus, the motion will be treated as solely seeking summary judgment. See Latham v. United States, 306 Fed. Appx. 716, 718 (3d Cir. 2009) (when a motion to dismiss has been framed alternatively as a motion for summary judgment such as in the present case, the alternative filing "is sufficient to place the parties on notice that summary judgment might be entered.")

C. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(a) "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, parties may not rely on unsubstantiated allegations. Parties seeking to establish that a fact is or is not genuinely disputed must support such an assertion by "citing to particular parts of materials in the record," by showing that an adverse party's factual assertion lacks support from cited materials, or demonstrating that a factual assertion is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1); see Celotex, 477 U.S. at 324 (requiring evidentiary support for factual assertions made in response to summary judgment). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Parties must produce evidence to show the existence of every element essential to its case that they bear the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323; see Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). Failure to properly support or contest an assertion of fact may result in the fact being considered undisputed for the purpose of the motion, although a court may also give parties an opportunity to properly provide support or opposition. Fed.R.Civ.P. 56(e).

III. Statement of Facts2

On October 16, 2014, Plaintiff reported to sick call, stating his "hemorrhoids acting up" and "requests suppositories." (Doc. 17-1 at 113, Clinical Encounter). Defendant Fasciana ordered hydrocortisone Acetate Suppositories for Plaintiff to address his complaint, and advised him to seek out further medical assistance if his problem persisted. Id.

On December 30, 2014, Plaintiff was seen by Nurse Practitioner Zimmerman, who recorded the following:

(Doc. 17-1 at 108, Bureau of Prisons Health Services Clinical Encounter). In response to Plaintiff's complaints, a Comprehensive Metabolic Profile, CBC w/diff and Occult Blood x3 was ordered. Id.

On January 26, 2015, Plaintiff appeared for his blood work and a report was issued on January 27, 2016. (Doc. 17-1 at 106, Blood Work Results).

On February 23, 2016, an Administrative Note was added to Plaintiff's medical file, stating the following:

(Doc. 17-1 at 102). Plaintiff was counseled that a refusal of treatment could result in a "deterioration of your current health status which could cause undetectable illness, increased illness and also your own death." (Doc. 17-1 at 101, Medical Treatment Refusal).

On March 20, 2015, Plaintiff reported to sick call with the following complaint:

(Doc. 17-1 at 95, Clinical Encounter). Physician Assistant Seroski noted the following:

Id.

Plaintiff's repeat bloodwork was performed on April 9, 2015. (Doc. 17-1 at 92, Blood Work Results). An Administrative Note was entered into his file on April 10, 2015, indicating that "WBC abnormal however improved from previous lab, see lab reports." (Doc. 17-1 at 91, Administrative Note).

On May 4, 2015, an Administrative Note was added to Plaintiff's medical record, noting that "per K. Lindsey, needs new order for occult cards." (Doc. 17-1 at 89, Administrative Note). That same date, Plaintiff completed the occult cards and testing was performed. (Doc. 17-1 at 86, Administrative Note). The results showed positive for fecal occult blood. Id. Based on these findings, it was determined that a colonoscopy was needed to further evaluate the source of Plaintiff's bleeding. (Doc. 17-1 at 79, Administrative Note).

On May 6, 2015, the physician assistant located on Plaintiff's block was notified of the need for a colonoscopy, and a consult for a colonoscopy was put in place. (Doc. 17-1 at 72, Administrative Note). Also, on May 6, 2015, the Utilization Review Committee reviewed and approved Plaintiff's referral for a colonoscopy. (Doc. 17-1 at 71, Utilization Review Committee Action).

On May 29, 2015, a medication reconciliation encounter was performed on Plaintiff at the Special Housing Unit. (Doc. 17-1 at 69, Administrative Note). Plaintiff's prescription for stool softeners was renewed. Id.

On June 9, 2015, PA Seroski reported to Plaintiff's SHU cell for a sick call and noted the following:

(Doc. 17-1 at 67, Clinical Encounter). PA Seroski was concluded that:

Id.

On June 15, 2016, a Sick Call Note Encounter performed at Plaintiff's SHU cell indicates the following:

(Doc. 17-1 at 63, Clinical Encounter). Plaintiff was examined at his cell door and it was determined that he had a "1cm benign nevus at midline, suprapubic area, along waistline of boxer shorts" which was "well rounded, no irregular borders, appears smooth" and "no other legions noted." Id. Plaintiff was assured it was a benign appearing mole, and to continue to observe, following up if any changes should occur. Id. No further treatment was indicated and it was noted that Plaintiff "made no mention of his chronic GI complaints." Id.

On June 29, 2015, a Sick Call Note Encounter performed at Plaintiff's SHU cell indicates the following:

(Doc. 17-1 at 61, Clinical Encounter). It was determined that Plaintiff had "multiple papules to bilateral with mild erythema" with "no abscess, pustules or vesicles noted" or "papules to feet or in between web spaces" and "no burrows noted." Id. Plaintiff was advised that no antibiotic was needed at this time, and that it should resolve on its own, but to return immediately if the conditions worsens. Id.

On June 30, 2015, a Sick Call Note Encounter performed at Plaintiff's SHU cell indicates the following:

(Doc. 17-1 at 59, Clinical Encounter). PA Seroski noted that Plaintiff's left thigh presented with "annular mild erythema the size of a quarter with central pinpoint pustule", with "no fluctuance noted" and no raised area or infection. Id. Plaintiff was advised to apply warm compresses, monitor it and return is it worsens. Id.

On July 2, 2015, a Sick Call Note Encounter performed at Plaintiff's SHU cell reveals the following:

(Doc. 17-1 at 57, Clinical Encounter). PA Jordan ordered a urine dipstick, and recommended Plaintiff follow-up at sick call and chronic care clinic as needed. Id. PA Jordan further noted the following: "will check UA, plan pending results" and that "inmate has numerous varied complaints on a frequent basis with poor history to detail" and "I am beginning to question the validity of his complaints." Id.

Plaintiff was seen again on July 7, 2015, with the Sick Call Note Encounter revealing:

(Doc. 17-1 at 54, Clinical Encounter). PA Seroski ordered bloodwork, encouraged Plaintiff to use Zantac daily, avoid late night eating, spicy foods, caffeine and citrus, as well as lay with head elevated at night instead of flat. Id. Plaintiff was told to follow-up at sick call and chronic care as needed and to immediately return to sick call if condition worsens. Id. Plaintiff's blood work was conducted on July 9, 2015. (Doc. 17-1 at 53, Lab Results).

On July 15, 2015, Plaintiff filed Administrative Remedy No. 828321, claiming that he needs immediate medical treatment for blood in his stool. (Doc. 17-1 at 12, Administrative Remedy Generalized Retrieval).

On July 22, 2015, Plaintiff was treated at Sick Call by PA Warnick, who recorded the following:

(Doc. 17-1 at 46, Clinical Encounter). PA Warnick assessed Plaintiff as a "person with feared complaint in whom no diag made", reporting his encounter as follows:

Id. On July 23, 2015, Plaintiff's Administrative Remedy, No. 828321, was denied. Id.

On July 28, 2015, Plaintiff requested a complete copy of his medical records. (Doc. 17-1 at 44, Medical Records Request). On August 3, 2015, Plaintiff's complete medical record, consisting of 250 pages, was provided to Plaintiff. Id.

On August 10, 2015, Plaintiff filed an appeal of Administrative Remedy No. 828321 to the Northeast Regional Director. (Doc. 17-1 at 12, Administrative Remedy Generalized Retrieval).

On August 13, 2015, Plaintiff underwent a colonoscopy at Evangelical Community Hospital, Lewisburg, Pennsylvania. (Doc. 17-1 at 36, Operative Report). The postoperative diagnosis was "some mild internal hemorrhoidal disease with hypertrophy of the anal papilla" with "no other abnormalities noted." Id.

On August 14, 2015, Administrative Remedy No. 828321 was rejected by the Regional Office for not being submitted in proper form, and Plaintiff was given ten (10) days to resubmit his appeal. Id. There is no record that Plaintiff filed any further appeal for Administrative Remedy No. 828321.

On August 25, 2015, Plaintiff requested a copy of his colonoscopy report, which was supplied to him on August 31, 2015. (Doc. 17-1 at 35, Request).

On October 23, 2015, during an evaluation encounter performed at the SHU, Plaintiff was seen by Defendant Fasciana, and reported the following:

(Doc. 17-1 at 24, Clinical Encounter). Plaintiff was provided with the requested information and the conversation was terminated. Id. Defendant Fasciana noted that Beckton was alert and oriented and did not appear in any distress during the visit. Id. Defendant Fasciana counseled Beckton on his plan of care, advised him to seek sick call if his symptoms reoccurred, but noted that there was "no evidence of learning" in Beckton. Id.

On November 10, 2015, Plaintiff filed Administrative Remedy No. 841802, claiming that he wants to be seen for bowel problems. (Doc. 17-1 at 13, Administrative Remedy Generalized Retrieval). On November 13, 2015, Plaintiff's grievance was denied. Id.

On December 10, 2015, Plaintiff was seen at sick call by Defendant Fasciana. (Doc. 17-1 at 20, Clinical Encounter). Plaintiff complained of "unable to generate regularity in my bowel movements." Id. Defendant Fasciana noted that Beckton was alert and oriented and did not appear in any distress, and that because a colonoscopy and gastrointestinal ("GI") workup had recently been completed on Beckton and the results were negative, "no further intervention was necessary." Id. Defendant Fasciana counseled Beckton on his plan of care, advised him to seek sick call if his symptoms reoccurred, but again noted that Beckton showed "no evidence of learning." Id.

On December 14, 2015, Plaintiff filed an appeal of Administrative Remedy No. 841802 to the Northeast Regional Director. (Doc. 17-1 at 13, Administrative Remedy Generalized Retrieval). On December 16, 2015, Administrative Remedy No. 841802 was rejected an untimely by the Regional Office. Id. There is no record that Plaintiff filed any further appeal for Administrative Remedy No. 841802.

IV. Discussion

A. Exhaustion

Defendants contend that Beckton's complaint should be dismissed for his failure to exhaust available administrative. In pertinent part, the Prison Litigation Reform Act provides:

42 U.S.C. §1997e(a).

Under the Prison Litigation Reform Act ("PLRA"), exhaustion of administrative remedies is required for all actions concerning prison conditions brought under federal law. See 42 U.S.C. §1997e(a); Woodford v. Ngo, 548 U.S. 81 (2006). The "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA "completely precludes a futility exception to its mandatory exhaustion requirement." Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). The PLRA also mandates that inmates "properly" exhaust administrative remedies before filing suit in federal court. Woodford, 548 at 92. "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. Failure to substantially comply with procedural requirements of the applicable prison's grievance system will result in a procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004).

A prisoner does not have to allege in his complaint that he has exhausted administrative remedies. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). Failure to exhaust available administrative remedies is an affirmative defense. Id. As such, it must be pleaded and proven by the Defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). Defendants have properly raised the matter of exhaustion of administrative remedies made available to inmates confined within the Bureau of Prisons ("BOP").

"The Bureau of Prisons has established an Administrative Remedy Procedure through which an inmate may seek formal review of a complaint which relates to any aspect of his imprisonment if less formal procedures have not resolved the matter. This procedure applies to all inmates confined in Bureau of Prisons institutions. . . ." 28 C.F.R. §542.10. Inmates are to informally present their complaints to the staff and the staff is to attempt to resolve the matter. 28 C.F.R. §542.13(a). If informal resolution is unsuccessful, the inmate is then to execute the appropriate form to bring the matter to the attention of the warden. 28 C.F.R. §542.14(b). The warden is then to respond to the inmate's complaint within twenty (20) days. Id. at §542.18. If an inmate is dissatisfied with the warden's response, he may then appeal to the Regional Director. Id. at §542.15. If the response of the Regional Director is not satisfactory, the inmate may then appeal to the Central Office of the Federal Bureau of Prisons, which office is the final administrative appeal in the Bureau of Prisons. Id.

The record reveals that, although Plaintiff twice attempted to exhaust administrative remedies with respect to the claims raised within, he failed to appeal those remedies to final review. (See Doc. 17-1 at 9-14, Administrative Remedy Generalized Retrieval).

With respect to Plaintiff's Administrative Remedy No. 828321, although rejected by the Regional Office for not being submitted in proper form, Plaintiff was granted ten (10) days within which to correct the administrative deficiency and resubmit his appeal to the Regional Office. There is no record evidence demonstrating that Plaintiff corrected the deficiencies and resubmitted his appeal. (See Doc. 17-1 at 9-14, Administrative Remedy Generalized Retrieval). Thus, Plaintiff failed to complete the administrative remedy process with respect to Administrative Remedy No. 828321.

On November 10, 2015, Plaintiff again attempted to exhaust his administrative remedies with respect to his bowel issues, by filing Administrative Remedy No. 841802. Id. Plaintiff, however, failed to bring a timely appeal of the November 10, 2015 denial of Administrative Remedy No. 841802. Id. Thus, nothing in the record before this Court establishes that Beckton pursued any administrative remedy to the Regional Director, nor the Central Office. It is evident that Plaintiff failed to follow the procedural requirements of the BOP. Failure to employ the system of administrative remedies, even if the administrative process would be inadequate to grant full relief, procedurally defaults any federal claim. See Spruill v. Gillis, 372 F.3d 218, 222-26 (3d Cir. 2004). Plaintiff's failure to pursue the appropriate administrative process with respect to his claims precludes the litigation of such claims.

In Spruill, supra, our Court of Appeals held that congressional policy objectives were best served by interpreting the statutory "exhaustion requirement to include a procedural default component." The court further ruled that procedural default under §1997e(a) is governed by the applicable prison grievance system, provided that the "prison grievance system's procedural requirements [are] not imposed in a way that offends the Federal Constitution or the federal policy embodied in §1997e(a)." Id. at 231, 232.

In this case, the record clearly discloses that Beckton failed to exhaust his administrative remedies with respect to his medical claim. Thus, Beckton has sustained a procedural default with respect to these claims.

Spruill cited with approval the Seventh Circuit decision in Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Spruill, 372 F.3d at 231. In Pozo, the Seventh Circuit ruled that "to exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025 (emphasis added). Beckton offers no evidence to justify his failure comply with BOP requirements. Consequently, he is now foreclosed from litigating his remaining claims in this Court.

In Spruill, the Third Circuit found that a procedural default component to the exhaustion requirement served the following congressional objectives: "(1) to return control of the inmate grievance process to prison administrators; (2) to encourage development of administrative record, and perhaps settlements, within the inmate grievance process; and (3) to reduce the burden on the federal courts by erecting barriers to frivolous prisoner lawsuits." 372 F.3d at 230. In Pusey v. Belanger, No. Civ. 02-351, 2004 WL 2075472 at *2-3 (D. Del. Sept. 14, 2004), the court applied Spruill to dismiss an inmate's action for failure to timely pursue an administrative remedy over the inmate's objection that he did not believe the administrative remedy program operating in Delaware covered his grievance. In Berry v. Kerik, 366 F.3d 85, 86-88 (2d Cir. 2004), the court affirmed the dismissal of an inmate's action with prejudice where the inmate had failed to offer appropriate justification for the failure to timely pursue administrative grievances. In Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004), the court embraced the holding in Pozo, stating that "[a] prison procedure that is procedurally barred and thus is unavailable to a prisoner is not thereby considered exhausted." These precedents support this Court's decision to enter judgment in favor of Defendants.

B. Eighth Amendment Medical Claim

In order to establish an Eighth Amendment medical claim, a plaintiff must show "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, "if unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment." Id.

A prison official acts with deliberate indifference to an inmate's serious medical needs when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a complaint that a physician or a medical department "has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. . ." Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a "medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id., 429 U.S. at 107. "[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor's disagreement with the professional judgment of another doctor is not actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or medical malpractice does not give rise to a §1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

Further, a prison administrator cannot be found deliberately indifferent under the Eighth Amendment because he or she fails to respond to the medical complaints of an inmate being treated by a prison physician, or because, as non-physicians, they defer to the medical judgment of the inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical prison personnel had "a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner," liability may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison's medical staff and the inmate regarding the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment. Farmer v. Carlson, 685 F.Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received treatment, courts have consistently been reluctant to second guess the medical judgment of the attending physician. Little v. Lycoming County, 912 F.Supp. 809, 815 (M.D. Pa.), aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is whether the defendant has provided the plaintiff with some type of treatment, regardless of whether it is what the plaintiff desires. Farmer v. Carlson, 685 F. Supp. at 1339.

The record before this Court demonstrates that Plaintiff received medical attention, and that the attention Plaintiff received lacks the requisite deliberate indifference to support a Section 1983 claim. Although the court has concerns about the delay in time between the ordering of his colonoscopy and its occurrence, its results support the defendants' medical assessment for which this court should not be in a position to second guess. The facts remain that the plaintiff has been continually assessed, monitored and treated since his first sick call visit on October 16, 2014.

At best, the record demonstrates Plaintiff's disagreement with the type and timeliness of the treatment rendered. However, his mere disagreement with the course of action that the medical department took based on the symptoms he presented, is not enough to state a §1983 claim. Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989) (citing Estelle, 429 U.S. at 105-06 (in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind)). This is particularly so in light of the fact that there are no facts of record that demonstrate that any of the Defendants intentionally withheld medical treatment from Plaintiff in order to inflict pain or harm upon Plaintiff. Farmer; Rouse.

Even holding Plaintiff's complaint to the less stringent pleading standards of pro se plaintiffs, the allegations do not sufficiently allege deliberate indifference. Plaintiff does not suggest that the institution's medical staff were aware that there was an excessive risk to his health or safety but wantonly refused to provide him medical care. Spruill v. Gillis, 372 F.3d 218, 236 n. 12 (3d Cir. 2004) (stating that while a pro se complaint should be read liberally, an inmate plaintiff must still allege that defendant was aware of the risk and intentionally disregarded it). Thus, Plaintiff's complaint amount to nothing more than Plaintiff's subjective disagreement with the treatment decisions and medical judgment of the medical staff at the prison. At most, the allegations in the complaint only rise to the level of mere negligence. As simple negligence can not serve as a predicate to liability under §1983, Hudson v. Palmer, 468 U.S. 517 (1984), Plaintiff's civil rights complaint fails to articulate an arguable claim. See White, 897 F.2d at 108-110.

Moreover, to the extent that Plaintiff believes that he has been misdiagnosed, mere misdiagnosis or negligent treatment is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106. Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners. Durmer, 991 F.2d at 67. Once again, "mere disagreements over medical judgment" do not rise to the level of an Eighth Amendment violation. White, 897 F.2d at 110.

Thus, the Plaintiff has failed to present evidence from which a reasonable jury could conclude that the Defendants Francis and Brown possessed the culpable mental state necessary for Eighth Amendment liability to attach. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d at 346; West v. Keve, 571 F.2d at 161. Indeed, the extent and quality of medical attention that the was provided to Plaintiff precludes a finding of deliberate indifference.

C. Preliminary Injunction

Plaintiff seeks preliminary and declaratory injunctive relief, "declaring that [he] has a constitutional right to be free from assault" and that he has "declared that [his] safety is being threatened by staff deliberately housing [him] with inmates whom staff are aware have a violent history of inmate assaults, and that [he] no longer wishes to be housed with the inmate whom [he is] currently in the cell with nor under the conditions that [he] have to fight him in order to be rehoused with an inmate who is programing." (Doc. 11, brief in support).

Preliminary injunctive relief is extraordinary in nature and should issue in only limited circumstances. See American Tel. and Tel. Co. V. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994), cert. denied, 514 U.S. 1103 (1995). Moreover, issuance of such relief is at the discretion of the trial judge. Orson, Inc. v. Miramax Film, Corp., 836 F.Supp. 309, 311 (E.D. Pa. 1993). In determining whether to grant a motion seeking preliminary injunctive relief, courts in the Third Circuit consider the following four factors:

United States v. Bell, Civ. No. 1:CV-01-2159, 2003 WL 102610, *2 (M.D. Pa. January 10, 2003)(internal citations omitted). It is the moving party that bears the burden of satisfying these factors. Id.

Additionally, there must be "a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); see also Adams v. Freedom Forge Corp., 204 F.3d 475, 489-90 (3d Cir. 2000) (affirming denial of injunction where plaintiffs' harm was "insufficiently related to the complaint and [did] not deserve the benefits of protective measures that a preliminary injunction affords").

As the Third Circuit made clear in Ball v. Famiglio, 396 F. App'x. 836, 837-38 (3d. Cir. 2010), a plaintiff fails to meet the requirements for injunctive relief when the individuals whose conduct he hopes to enjoin are not named as defendants in the action and the relief sought is completely unrelated to the allegations in the complaint. Moreover, as this Court noted in. Kates v. Bledsoe, 2012 WL 6721069 at *2 (M.D. Pa. 2012), no preliminary injunction should ever be granted on grounds not raised in the complaint since there is — by the very absence of the issue in the complaint — no likelihood of success on the merits.

Based on Plaintiff's failure to prevail on the merits of the instant civil rights action and the fact that Plaintiff's motions for injunctive relief bear no relation to the complaint or the defendants named therein, Plaintiff's motion for preliminary injunction (Doc. 12) and motion for declaratory judgment (Doc. 23) will be denied.

V. Conclusion

Based upon the undisputed facts of record, Defendants Francis and Brown are entitled to summary judgment with respect to Plaintiff's Eighth Amendment medical claim and Plaintiff's motions for injunctive relief will be denied. An appropriate order shall issue.

Attorneys and Law Firms

*698 Martin C. Carlson, Anne K. Fiorenza, Assistant U.S. Attorney, Harrisburg, PA, Evan J. Davis, Donald N. Dowie, Washington, DC, for Plaintiff.

Thurston Paul Bell, Hanover, PA, Pro Se.

MEMORANDUM

CONNER, District Judge.

**1 Before the court1 is the United States' motion for preliminary injunction. (Doc. 34). The parties have fully briefed the issues, and the matter is ripe for disposition.

I. Factual Background

Defendant Thurston Bell ("Bell") has fashioned a career by devising and publicizing ways to avoid paying federal income tax. Bell acknowledges that he has "dealt with the issue of taxes for eight and a half years on the edge of what would be seen as legal. . . ." Transcript of November 4, 2002 preliminary injunction hearing ("N.T."), pg. 28. A brief explanation of Bell's career as a tax protester is appropriate to put the United States' motion for preliminary injunction in context.

In the 1980s, Bell worked for Save-A-Patriot, "fain organization that believes that American citizens are not liable for income tax." (Doc. 36, Exhibit J, pg. 13). (See also Doc. 36, Exhibit C, pg. 66). As a case worker at Save-A-Patriot, Bell helped clients "avoid paying taxes or any number of other things that could happen as a result of not paying taxes." (Doc. 36, Exhibit J, pg. 17).

When Bell left Save-A-Patriot, he co-founded Tax-gate and created the tax-gate.com website. (Doc. 36, Exhibit C, pp. 16-17). At Tax-gate, Bell drafted court pleadings and letters to the Internal Revenue Service ("IRS") and state taxing agencies on his clients' behalf. (Doc. 36, Exhibit J, pg. 25). See also id. at Exhibit 19 (letter dated January 27, 1998, outlining Bell's tax avoidance argument). Bell charged his clients for tax advice and for preparation of documents directed to taxing authorities. (Doc. 36, Exhibit J, pg. 32). (See also Doc. 36, Exhibit K, pg. 88) (deposition testimony that Bell charged a $1,000.00 retainer before discussing certain tax matters).

Between 1998 and 2000, Bell established the National Institute for Taxation Education ("NITE"). On the NITE website,2 Bell asserts, "The National Institute for Taxation Education (NITE) provides income tax help, solutions, and strategies that work for Citizens of the United States to legally declare their gross income to be *699 Zero." (Doc. 36, Exhibit C, pg. 16). Bell's tax avoidance argument is commonly referred to as the "Section 861 argument" or the "U.S. Sources argument."

The Internal Revenue Code defines "gross income" as "all income from whatever source derived. . . ." 26 U.S.C. § 61(a). Bell claims that the word "source" in section 61 is defined in the "Source Rules and Other General Rules Relating to Foreign Income." 26 U.S.C. §§ 861-865 (emphasis supplied). Section 861 states that certain "items of gross income shall be treated as income from sources within the United States. . . ." 26 U.S.C. § 861(a). According to the U.S. Sources argument, domestically earned wages of U.S. citizens are not taxable because such wages are not specifically mentioned in the list of items of gross income that "shall be treated as income from sources within the United States." See 26 U.S.C. § 861(a). Bell concedes that section 861 itself does not exempt domestically earned wages of U.S. citizens.3 Nevertheless, he argues that such wages are not taxable because certain regulations promulgated under section 861 (i.e. 26 C.F.R. §§ 1.861-8(a)(4), 1.861-8(f)(1), and 1.861-8T(d)(2)(ii)(A)) create an applicable exemption.

**2 Bell's clients typically file zero income tax returns with an "asseveration of claimed income" attached, disputing the gross income indicated on the taxpayer's W-2 forms. (Doc. 36, Exhibit K, pg. 53). See also N.T. 59-60. When this method fails, Bell argues that the IRS has violated his clients' due process rights by not allowing them to cross-examine their employers regarding the gross income listed on their W-2 forms. (Doc. 36, Exhibit J, pg. 63). Bell's goal in seeking to cross-examine employers is to show an absence of gross income according to the fallacious U.S. Sources argument outlined above. (Doc. 36, Exhibit J, pg. 63). Bell's methods have secured erroneous tax refunds for numerous clients. (See, e.g., Doc. 36, Exhibit C, pg. 64-65).

On November 4, 2002, the court held a hearing on plaintiff's motion for a preliminary injunction. On November 19, 2002, Bell filed a response to plaintiffs supplemental memorandum of law (Doc. 85), exhibits in support thereof (Doc. 86), and an additional deposition transcript. (Doc. 87).

II. Legal Standard

Plaintiff seeks preliminary injunctive relief under 26 U.S.C. § 7402. The court is authorized to grant such relief "as may be necessary or appropriate for the enforcement of the internal revenue laws." 26 U.S.C. § 7402. A preliminary injunction under section 7402 is governed by the same standard as a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure. U.S. v. Rosile, 2002 WL 1760861 *1 (M.D.Fla.2002); U.S. v. Bosset, 2002 WL 1058105 *1 (M.D.Fla.2002). The court must evaluate four factors: (1) likelihood of success on the merits; (2) irreparable harm resulting from a denial of the relief; (3) the harm to the non-moving party if relief is granted; and (4) the public interest. Allegheny Energy, Inc. v. DOE, Inc., 171 F.3d 153, 158 (3d Cir.1999) (citing A.C.L.U. of New Jersey v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir.1996)) (en banc); Rosile, 2002 WL 1760861 *1. As the party seeking preliminary injunctive relief, the United States bears the burden of proof. Mettler-Toledo, Inc. v. Acker, 908 F.Supp. 240, 245 (M.D.Pa.1995). "The *700 injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief." Merchant & Evans, Inc. v. Roosevelt Bldg. Prods., 963 F.2d 628, 632-33 (3d Cir.1992).

III. Discussion

A. Likelihood of Success on the Merits

In order to prevail on the merits, the United States must establish that an injunction is "necessary or appropriate for the enforcement of the internal revenue laws." 26 U.S.C. § 7402. Plaintiff argues that it is likely to succeed on the merits because "the § 861 Argument is completely meritless" and because Bell blindly insists on the arguments validity, "despite overwhelming evidence to the contrary." (Doc. 35, pg.23). The court agrees with plaintiff.

**3 Section 61(a) of the Internal Revenue Code states in pertinent part:

26 U.S.C. § 61(a) (emphasis supplied).

The Supreme Court has "repeatedly emphasized the `sweeping scope' of [section 61(a)] and its statutory predecessors." C.I.R. v. Schleier, 515 U.S. 323, 327-28, 115 S.Ct. 2159, 132 L.Ed.2d 294 (1995) (citing C.I.R. v. Glenshaw Glass Co., 348 U.S. 426, 429, 75 S.Ct. 473, 99 L.Ed. 483 (1955); United States v. Burke, 504 U.S. 229, 233, 112 S.Ct. 1867, 119 L.Ed.2d 34 (1992); Helvering v. Clifford, 309 U.S. 331, 334, 60 S.Ct. 554, 84 L.Ed. 788 (1940)). When it defined gross income, Congress intended "to use the full measure of its taxing power." Glenshaw Glass, 348 U.S. at 429, 75 S.Ct. 473. Moreover, it is well-settled that wages or compensation for services constitute income and that individuals receiving income are subject to the federal income tax. See, e.g., 26 U.S.C. § 61(a)(1); Central Illinois Public Service Co. v. U.S., 435 U.S. 21, 25, 98 S.Ct. 917, 55 L.Ed.2d 82 (1978), U.S. v. Connor, 898 F.2d 942, 943-44 (3d Cir.1990); Coleman v. Commissioner, 791 F.2d 68, 70 (7th Cir.1986).

Bell's U.S. Sources argument is nonsensical. It rests purely on semantics and takes the regulations promulgated under section 861 out of context.4 As noted by the Tax Court in Christopher v. C.I.R., 2002 WL 71029 *3 (U.S. Tax Ct.2002):

The rules of sections 861-865 have significance in determining whether income is considered from sources within or without the United States. The source rules do not exclude from U.S. taxation income earned by U.S. citizens from sources within the United States.

See also Great-West Life Assur. Co. v. United States, 230 Ct.Cl. 477, 678 F.2d 180, 183 (1982) ("The determination of where income is derived or `sourced' is generally of no moment to either United States citizens or United States corporations, for such persons are subject to tax *701 under I.R.C. § 1 and I.R.C. § 11, respectively, on their worldwide income."). Other jurisdictions which have heard this U.S. Sources argument have uniformly found it unpersuasive. See, e.g., Loofbourrow v. C.I.R., 208 F.Supp.2d 698, 709-10 (S.D.Tex.2002) ("Loofbourrow's argument, however, is misplaced and takes the regulations out of context."); In re Clark, 2001 WL 1807509 (Bankr.E.D.N.Y.2001) (holding that 26 C.F.R. §§ 1.861-1 to 1.861-8, and 1.861-8T do not exempt U.S. citizens' domestic income from taxation); Madge v. C.I.R., 23 Fed.Appx. 604, 2001 WL 1414315 *1 (8th Cir.2001) ("[T]he Tax Court properly rejected Madge's contention that the income from his business was not `gross income' under 26 U.S.C. § 61(a)"); Williams v. Commissioner, 114 T.C. 136, 138-139, 2000 WL 230343 (2000) (rejecting claim that income is not subject to tax because it is not from any of the sources listed in 26 C.F.R. § 1.861-8(a)).

**4 The regulations cited by Bell-26 C.F.R. §§ 1.861-1 to—8 and 26 C.F.R. § 1.861-8T—were promulgated for the purpose of interpreting 26 U.S.C. § 861. Section 861 "does not define gross income; it provides which items of gross income shall be treated as income from sources within the United States, and also provides, at § 1.861-8, for the allocation and apportionment of deductions between statutory groupings of gross income for the purpose of calculating taxable income" for nonresident aliens and foreign corporations. In re Clark, 2001 WL 1807509 *6 (Bankr.E.D.N.Y.2001). See also Great—West Life, 678 F.2d at 183-84 n. 8 (describing bifurcated taxing pattern applicable to nonresident aliens and foreign corporations). To suggest that these regulations create an exemption for domestic wages of U.S. citizens is irresponsible and frivolous advocacy. See 26 C.F.R. § 1.861-4 (providing that gross income from sources within the United States includes compensation for labor or personal services performed in the United States).

For all of the foregoing reasons, the court finds a substantial likelihood that the United States will prevail on the merits. Accord U.S. v. Rosile, 2002 WL 1760861 *1; U.S. v. Bosset, 2002 WL 1058105 *1. The court also finds that enjoining Bell from selling this frivolous tax argument is "necessary [and] appropriate for the enforcement of the internal revenue laws." 26 U.S.C. § 7402. Bell testified that he intends to continue to promote the U.S. Sources argument. N.T. at 47. On the NITE website, Bell boasts that the U.S. Sources argument has resulted in eight "Employer IRS Refunds," three "IRS Abatements," and thirteen "Individual IRS Refunds/Credits" for his clients. (Doc. 36, Exhibit C, pg. 65). Every time Bell convinces another individual to file false tax returns under the U.S. Sources argument, the internal revenue laws are thwarted. The court will not countenance such impropriety.

B. Irreparable Harm

The United States argues that it will suffer irreparable harm if an injunction is not issued because processing, investigating, and correcting the false tax returns filed by Bell's clients "requires substantial IRS resources." (Doc. 35, pg.23). Plaintiff also argues that, while future harm is certain unless the court enjoins Bell, the timing and magnitude of such harm would be impossible to ascertain.

The Third Circuit has stated that:

*702 Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir.1992) (citations omitted) (emphasis in original). See also Novartis Consumer Health, Inc. v. Johnson & Johnson—Merck Consumer Pharmaceuticals Co., 290 F.3d 578, 595 (3d Cir.2002) (defining irreparable harm as "potential harm that cannot be redressed following trial").

Absent injunctive relief, Bell will likely cause the government and law abiding taxpayers great harm. Due to the nature of Bell's conduct, i.e. providing harmful tax advice, it is impossible to determine the degree to which this conduct will injure the United States in the future; one cannot estimate with any precision the government resources potentially lost in tracking down the maze of erroneous returns filed by Bell's clients or the amount of refunds improperly paid to Bell's clients. The court notes with interest that Bell "ghostwrites" his clients' returns—his name never appears on the individual 1040 forms or on his clients' correspondence to the IRS. (Doc. 35, pg. 23 & Doc. 36, Exhibit J, Exhibits 9, 19 & 29).

**5 For all of the foregoing reasons, the court finds that plaintiff has met its burden to demonstrate irreparable harm. Accord U.S. v. Rosile, 2002 WL 1760861 *1; U.S. v. Bosset, 2002 WL 1058105 *1.

C. Balance of Harms

Plaintiff argues that the threatened injury to the United States outweighs any injury an injunction will cause defendant, because an injunction would merely require Bell to comply with the law. Bell, on the other hand, argues that an injunction would violate his First Amendment right to freedom of speech. Bell supports his argument with a miscellaneous collection of Supreme Court and Third Circuit quotes taken out of context. For example, Bell quotes Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) and American Library Ass'n, Inc. v. U.S., 201 F.Supp.2d 401, 479 (E.D.Pa.2002), stating that "[t]he separation of legitimate from illegitimate speech calls for sensitive tools.5 The First Amendment demands the precision of a scalpel, not the sledgehammer."6 See N.T. at 25. However, both of these cases deal with regulation of obscenity and neither stands for the proposition that the First Amendment protects the sale or advocacy of false tax advice. See Bantam Books, 372 U.S. at 66, 83 S.Ct. 631 ("[T]he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression. . . ."); American Library, 201 F.Supp.2d at 490 (finding the Children's Internet Protection Act facially invalid).

Despite the inapplicability of the case law argued by Bell, an injunction prohibiting him from engaging in false speech concerning the U.S. Sources argument would amount to a prior restraint. See Alexander v. U.S., 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) ("Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints."). Prior restraints are generally presumed unconstitutional. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) ("Any system *703 of prior restraint, however, `comes to this Court bearing a heavy presumption against its constitutional validity.'"). However, not all prior restraints are prohibited. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

i. Bell's False Commercial Speech

Bell contends that the majority of his speech is political speech, as opposed to commercial speech. The court disagrees. Commercial speech is "broadly defined as expression related to the economic interests of the speaker and its audience, generally in the form of a commercial advertisement for the sale of goods and services." In re Orthopedic Bone Screw Products Liability Litigation, 193 F.3d 781, 793 (3d Cir.1999) (quoting U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 933 (3d. Cir.1990)).

To determine whether speech is "commercial speech" the court must evaluate whether:

**6 (1) the speech is an advertisement;

Orthopedic Bone Screw, 193 F.3d at 793 (citations omitted). "An affirmative answer to all three questions provides `strong support' for the conclusion that the speech is commercial." Id.

Applying this test to the instant case, the court finds that Bell is engaged in commercial speech. The NITE website (http://www.nite.org) serves as an advertisement. Indeed, it is an internet version of a television "infomercial." (See Doc. 36, Exhibit C). The website attempts to entice the reader to join NITE and to pay Bell for tax advice. (See, e.g., Doc. 36, Exhibit C, pg. 1) ("Unlike others who peddle arguments that may sound similar on the surface, our strategies have proven success, as the Internal Revenue Service (IRS) itself (as well as U.S. Attorneys and Federal Judges) has accepted NITE's arguments as valid. . . ."). Nearly every page of Bell's NITE web site contains some element of self-promotion.

A basic member of NITE gets "access to the Members Half7 for $195.00 . . . renewable yearly for $75." (Doc. 36, Exhibit C, pg. 108) (ellipses in original). To become a Senior Fellow a member must pay an additional $3,500.00. (Doc. 36, Exhibit C, pg. 109). The website refers to certain products for sale (seminars on tape, for example) along with Bell's fee for each product. (See Doc. 36, Exhibit C, pp. 53-61; Exhibit K, Exhibit 16).

Clearly, Bell has an economic motive in posting the NITE website. He admitted at the preliminary injunction hearing that he receives remuneration from NITE members for the services he provides. N.T. at 46. Moreover, undisputed record evidence establishes that Bell received $68,179.50 via internet payments between May 18, 2000, and February 8, 2002. (Doc. 36, Exhibit L). Therefore, the court concludes that Bell's conduct falls squarely within the definition of commercial speech.

Although the First Amendment protects commercial speech generally, it does not protect false commercial *704 speech. Castrol, Inc. v. Pennzoil Co., 987 F.2d 939, 949 (3d Cir.1993) ("[I]t is well settled that false commercial speech is not protected by the First Amendment and may be banned entirely.") (citing Bates v. State Bar of Ariz., 433 U.S. 350, 383, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977)); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of IV. Y., 447 U.S. 557, 562-63, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) ("[T]here can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it. . . ."); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72 n. 24, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). "[T]he First Amendment does not protect commercial speech about unlawful activities." Orthopedic Bone Screw, 193 F.3d at 792 (quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 497 n. 7, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996)). Moreover, the prior restraint doctrine does not apply where there has been "an adequate determination that [the expression] is unprotected by the First Amendment." Castrol, 987 F.2d at 949 (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973)).

**7 Accordingly, Bell's false commercial speech is not protected by the First Amendment. Therefore, an injunction prohibiting Bell from producing or disseminating false commercial speech would not violate his First Amendment rights.

ii. Incitement to Imminent Lawless Action

Bell also argues that an injunction would infringe on his freedom to engage in political speech, which is non-commercial in nature. The United States counters that enjoining Bell's non-commercial advocacy of the U.S. Sources argument would not violate the First Amendment if tailored to prohibit only incitement to lawless action.

An injunction prohibiting non-commercial speech can pass constitutional muster if it is narrowly drawn to prohibit only unprotected speech. See U.S. v. Kaun, 827 F.2d 1144, 1150 (7th Cir.1987) ("the injunctive order does not impermissibly infringe upon Kaun's freedom of expression and freedom of association, because it constrains only unprotected speech").

Non-commercial advocacy of lawless action is not per se unprotected speech. However, advocacy of law violation can be proscribed "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (emphasis supplied). Injunctions prohibiting non-commercial advocacy of tax schemes similar to Bell's have been upheld to the extent that they comply with Brandenburg. See U.S. v. Raymond, 228 F.3d 804 (7th Cir.2000); Kaun, 827 F.2d at 1150-52.

At the hearing on this motion, counsel for plaintiff stated that "[t]he government is not trying to shut down Bell's website. The government is asking the court to simply enter an injunction that stops his false commercial speech, stops incitement to imminent lawless action, and stops his course of illegal conduct, helping others to evade their taxes." N.T. at 8. In light of the preceding discussion, the court believes that such an injunction would pose no threat to Bell's constitutional rights.

Therefore, the court finds that the balance of harms counsels in favor of enjoining Bell's improper conduct. Accord U.S. *705 v. Rosile, 2002 WL 1760861 *1; U.S. v. Bosset, 2002 WL 1058105 *1.

D. Public Interest

Plaintiff argues that a preliminary injunction would be in the public interest because it will slow the spread of the frivolous U.S. Sources argument, thus saving government resources needed to track down refunds improperly paid to Bell's clients. Furthermore, an injunction will help protect Bell's clients from tax penalties resulting from using the U.S. Sources argument on their tax return forms. (Doc. 35, pg.24) (citing U.S. v. Mathewson, 1993 WL 113434 *2 (S.D.Fla.1993) ("the collection of taxes certainly serves the public interest. . . .")). The court agrees.

Proper administration of the laws is in the public interest. U.S. v. Knudson, 959 F.Supp. 1180, 1187 (D.Neb.1997) ("[T]here is a strong public interest in assuring the proper and efficient functioning of the government. This includes the fair administration of federal tax laws. . . ."). Furthermore, Bell is harming his clients (who often become the target of IRS sanctions) and all law-abiding taxpayers. See U.S. v. Venie, 691 F.Supp. 834, 839 (M.D.Pa.1988) (finding that an injunction is in the public interest when necessary to stop a person from "placing literally hundreds of taxpayers in financial difficulty"). Clearly, the public interest is served by enjoining Bell from further providing harmful tax advice. Therefore, the court finds that the United States has met its burden for a preliminary injunction under section 7402.8

IV. Conclusion

**8 For the foregoing reasons, the court will grant the plaintiffs motion for preliminary injunction. An appropriate order will issue.

ORDER

AND NOW, this 10th day of January, 2003, in accordance with the accompanying memorandum, it is hereby ORDERED that plaintiffs motion for preliminary injunction (Doc. 34) is GRANTED. It is further ORDERED that:

1. Thurston Bell and his representatives, agents, servants, employees, attorneys, and those persons in active concert or participation with him, are preliminarily enjoined from directly or indirectly, by means of false, deceptive, or misleading commercial speech:

2. Bell shall forthwith send a letter to:

and inform those persons of the entry of the courts findings concerning the falsity of Bell's representations, the falsity of the tax returns based in whole or in part on the U.S. Sources argument, the possibility of the imposition of frivolous-return penalties against them, the possibility that the United States may seek to recover any erroneous refund they may have received, and the fact that a preliminary injunction has been entered against Bell (and attach a copy of this Order to the letter); and Bell shall simultaneously serve copies of all such letters (without attachment) to counsel for the United States at the address listed on the docket of this matter; and

3. Bell shall maintain the NITE web site (www.nite.org) during the pendency of this preliminary injunction Order, remove from the aforementioned website all abusive-tax-shelter-promotional materials, false commercial speech, and materials designed to incite others to violate the law (including tax laws), and display prominently on the first page of the website an attachment of this preliminary injunction Memorandum and Order.

**9 4. Bell shall mail to counsel for the United States, at the address listed on the docket of this matter, one copy of every federal tax return, amended return, or other document intended for the IRS that he prepares, or assists in the preparation of, on behalf of any other person or entity during the pendency of this preliminary injunction Order. The mailing shall be made on the same date the document is mailed to or filed with the IRS.

5. If Bell requires access to any file in the courts possession in order to comply with this order (e.g. paragraph 2), Bell shall promptly contact the court's deputy clerk, Ms. Kimberly McKinney, at 221-3920 to schedule an appointment for document access.

6. The parties shall file a request for a permanent injunction hearing within thirty (30) days. If no such request is filed, the Court will issue an order converting this *707 preliminary injunction to a permanent injunction.

All Citations

238 F.Supp.2d 696, 2003 WL 102610, 91 A.F.T.R.2d 2003-491, 2003-1 USTC P 50,501

Attorneys and Law Firms

David E. Kates, Lewisburg, PA, pro se.

Michael Butler, United States Attorneys Office, Harrisburg, PA, for Defendant.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

*1 Presently before the Court is the Magistrate Judge's Report and Recommendation (Doc. 136) recommending that Plaintiff David E. Kates' Motion for a Preliminary Injunction and a Temporary Restraining Order (Doc. 111) be denied. Because the motion addresses matters unrelated to the claims in this case, Plaintiffs motion will be denied.

I. Background

Plaintiff, a federal prisoner proceeding pro se, commenced this Bivens action on March 1, 2011. The Complaint names B.A. Bledsoe, the Warden of the United States Penitentiary at Lewisburg ("USP Lewisburg"), and Harley G. Lappin, the Director of the Federal Bureau of Prisons, as the Defendants in this action.

The Complaint raises claims regarding the conditions of Plaintiffs confinement at USP Lewisburg. (Compl.) Specifically, Plaintiff alleges that he is kept in his cell twenty-three (23) to twenty-four (24) hours per day, the cell can reach 120 degrees due to improper ventilation, the cell is rat and roach infested, and the cell has rust around the toilet, chipped lead paint, and traces of asbestos. (Id.) Due to these conditions, Plaintiffs health has deteriorated, as he has lost weight and suffered from insomnia and respiratory problems. (Id.)

On July 2, 2012, Plaintiff filed the instant motion seeking a temporary restraining order and preliminary injunctive relief. (Doc. 111.) According to Plaintiff, he was brutally beaten and denied timely medical care in May 2012. As a result, Plaintiff seeks an order enjoining officers from retaliating, harassing, assaulting, poisoning, or otherwise harming him in any manner.

II. Discussion

The Magistrate Judge recommends the motion be denied. Specifically, the Magistrate Judge noted that the Complaint raises claims for the alleged intolerable living conditions in Plaintiffs cell, while the instant motion raises unrelated claims regarding abuse and denial of medical care. And, because a court may not grant preliminary injunctive relief when the issues raised are entirely different from those raised in the complaint, the Magistrate Judge recommends Plaintiff's motion be denied.

Plaintiff filed timely objections to the Report and Recommendation. Plaintiff argues that he was assaulted and denied medical care because he commenced this legal proceeding and also because he has filed administrative grievances against various prison officials. Thus, he asserts that the assault and denial of medical care are related to the claims in this action contrary to the Magistrate Judge's Report and Recommendation.

Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.1984) (emphasis added). In conducting a de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F.Supp. 736, 738 (M.D.Pa.1993). Although the review is de novo, the law permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F.Supp. 328, 330 (M.D.Pa.1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Am, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Goney, 749 F.2d at 7. At the least, uncontested portions should be reviewed for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. 375, 376-77 (M.D.Pa.1998).

*2 The Magistrate Judge's recommendation will be adopted and Plaintiffs motion will be denied. "[I]t is well established that a court may not grant a preliminary injunction when the issues raised in the motion for a preliminary injunction are entirely different from those raised in the complaint." Lee v. Lindsay, No. 06-1824, 2007 WL 1120562, at *1 (M.D.Pa. Apr.13, 2007) (citing Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198-199 (2d Cir.1985)); see also First Health Grp. Corp. v. Nat'l Prescription Adm'rs, Inc., 155 F.Supp.2d 194, 233 n. 10 (M.D.Pa.2001) ("This Court will not award a preliminary injunction on grounds not raised in the complaint, as there is, by virtue of the absence of the issue from the complaint, no likelihood of success on the merits."). Here, as noted by the Magistrate Judge, the Complaint is predicated on the allegedly unconstitutional conditions in Plaintiffs prison cell. The request for preliminary injunctive relief, however, implicates incidents of assaults and delays in medical treatment unconnected to the conditions in Plaintiffs cell. As such, Plaintiffs Motion for a Preliminary Injunction and a Temporary Restraining Order (Doc. 111) will be denied.

III. Conclusion

For the above stated reasons, the Report and Recommendation will be adopted and the motion will be denied.

An appropriate order follows.

Attorneys and Law Firms

Melvin Pusey, Smyrna, Delaware, pro se.

Susan D. Mack, Deputy Attorney General, Wilmington, Delaware, for Defendants.

MEMORANDUM OPINION

ROBINSON, Chief J.

I. INTRODUCTION

*1 Plaintiff Melvin Pusey filed a complaint on May 9, 2002, charging several correctional officers with various constitutional violations arising out of the alleged use of excessive force on October 16, 2001. On May 28, 2002, plaintiff amended his complaint to include another defendant. (D.I.7) On January 7, 2003, this court dismissed as frivolous plaintiffs Fourteenth Amendment retaliation claims. (D.I. 15) The court found that the Eighth Amendment claims of excessive force, denial of medical care and conditions of confinement were not frivolous. (Id.) Before this court is defendants' motion for summary judgment.1 (D.I.41) For the reasons stated, defendants' motion is granted.

II. BACKGROUND

The defendants were all employees of the Delaware Department of Correction at all relevant times. (D.I. 42 at 1) Plaintiff is an inmate at the Delaware Correctional Center ("DCC") in Smyrna, Delaware. (Id.) Plaintiffs claims center around defendants' actions on October 16, 2001. Plaintiff did not file a grievance pertaining to defendants' conduct; however, he did appeal the disciplinary decisions made on October 16 to the disciplinary appeals board. (D.I. 1 at 1, 6)

In his complaint, plaintiff alleges that on October 16, 2001, he was refused commissary because defendant Holcomb believed he was on "sanction status." (Id. at 4-5) Plaintiff advised defendant Gardel that he was able to receive commissary because he was not on "sanction status." (Id.) Officer Gardel asked plaintiff to return to his cell, but plaintiff refused and asked to speak with a lieutenant. (Id.) The lieutenant, not a defendant in this case, told plaintiff to return to his cell, despite plaintiffs argument that he was not on "sanction status." (Id.) Defendants Holcomb and Gardel escorted him back to his cell.

Upon reaching the cell, plaintiff further alleges that he was "roughly pushed inside." (Id. at 6) As the plaintiff fell forward into the cell, Gardel shut the cell door, which caught plaintiffs leg. (Id.) Plaintiff turned and reached for his leg and one defendant sprayed mace on him while the other officers pushed him into the cell. (Id.) On his way into the cell, plaintiff tripped and fell. (Id.) The officers turned him on his stomach grabbing him by the hair and slamming his face into the concrete several times. (Id.) At this point, another officer kicked plaintiff in the ribs several times. (Id.)

In his complaint, plaintiff alleges that he was escorted from his cell to see defendants Belanger, McGuigan and Cunningham. (Id. at 7) Plaintiff informed the escorting officer that he needed medical attention for a broken rib and facial injuries. (Id.) Before being placed in a Segregation Behavioral Unit ("SBU"), plaintiff informed defendant Belanger that he needed medical attention. (Id.) Once in the SBU, plaintiff was told to strip and was placed in a cell with feces on the door and window. Plaintiff never received medical attention. (Id.) For eight days during his stay in the SBU, he was naked and was refused a clean cell, a mattress to sleep on, sheets, blanket, toilet paper, soap, toothpaste and a toothbrush. In addition, the cell was so cold that he had to jog to stay warm. 9(Id. at 9)

*2 Defendants argue that they are entitled to summary judgment because the plaintiff failed to exhaust his administrative remedies, namely the DCC's grievance procedure, and because they are entitled to 11th Amendment immunity.

III. STANDARD OF REVIEW

A court shall grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 (1986). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir.1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e)). The court will "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Pa. Coal Assn v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

IV. DISCUSSION

Defendants argue that plaintiff did not exhaust his administrative remedies prior to filing this action pursuant to the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).2 Before filing a civil action, a plaintiff-inmate must exhaust his administrative remedies, even if the ultimate relief sought is not available through the administrative process. See Booth v. Churner, 206 F.3d 289, 300 (3d Cir.2000), cert. granted, 531 U.S. 956 (2000), aff'd, 121 S.Ct. 1819 (2001). See also Ahmed v. Sromovski, 103 F.Supp.2d 838, 843 (E.D.Pa.2000) (quoting Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.2000) (stating that § 1997e(a) "specifically mandates that inmate-plaintiffs exhaust their available administrative remedies").

Recently, the Third Circuit adopted a procedural default interpretation of § 1997 e(a). In Spruill v. Gillis, 372 F.3d 218 (3d Cir.2004), the court decided that a prisoner's failure to exhaust any administrative remedies could bar a suit in federal court. This includes instances where a prisoner's opportunity to file a grievance has expired. For example, the DCC grievance procedure at issue requires that a prisoner file a grievance within seven days of an event. (D.I. 42 at Ex. 1) If a prisoner at DCC failed to bring a claim within seven days, he would be precluded from bringing a federal claim because he had failed to exhaust his administrative remedies. See Spruill, 372 F.3d at 230.

*3 In his complaint, plaintiff conceded that he did not file a grievance, based on his understanding that the "DCC Grievance Committee does not review `custody' matters. . . ." (D.I. 1 at 2) The DCC grievance procedure manual provides to the contrary, that the committee can review anything affecting an inmate, except policies that have another appeal process. (D.I. 42 at Ex. 1) There is no evidence that plaintiff filed a grievance with any committee after the alleged incident on October 16, 2001, or thereafter concerning the correctional officers' conduct, his medical treatment, or the conditions of his cell. Consequently, the court cannot entertain plaintiffs action due to plaintiffs failure to exhaust his administrative remedies.

V. CONCLUSION

For the reasons stated above, defendants' motion for summary judgment is granted. An order consistent with this memorandum opinion shall issue.