No Suit for Inmate's Flubbed Penis Surgery

     (CN) - A doctor dodged claims that he botched a Pennsylvania prisoner's prostate surgery, which supposedly caused the prisoner to urinate uncontrollably and wet his clothes constantly, a federal judge ruled.
     Melvin Turner, an inmate at the State Correctional Institution in Waymart, Pa., mailed a handwritten federal complaint against his urologist, Dr. Rafel Lopez, earlier this year.
     The dispute stems from a prostate gland operation Lopez allegedly performed on Turner at Wayne Memorial Hospital in Honesdale, Pa. on July 21, 2011.
     Lopez "cut underneath my penis," Turner said, calling this "the wrong procedure."
     As a result, "my penis is enlarged with a hole causing me to urinate on the floor, wet my body, clothes, and smell like urine," the prisoner wrote.
     At an after-care visit, Lopez allegedly admitted his error and said that he could correct it, according to Turner. But the doctor's contract with the Board of Prisons was terminated before he could do so.
     "I must sit down to urinate, I must stand for it to come completely out," Turner claimed, later adding that "Dr. Lopez cut my production sperm-core."
     Turner sought $25,000 to compensate for his "pain, humiliation, the two years of embarrassment" and asked the court to order the board to reschedule his surgery as soon as possible.
     "BOP has swept this matter under the rug, but I will not!" Turner wrote. He asserted violations of his Eighth Amendment rights and other state law tort claims against the doctor and hospital, though the latter was dismissed.
     Lopez moved to dismiss, and Turner did not file a brief in opposition.
     U.S. Magistrate Judge Martin Carlson refused to appoint Turner counsel on July 29, and recommended that the constitutional claim be dismissed the next day.
     Turner later objected, asking the district court to allow the case to proceed.
     But U.S. District Judge Malachy Mannion dismissed the case Monday, comparing it to the 2006 Gillespie v. Hogan, in which the 3rd Circuit held that a dentist who left part of a tooth in a prisoner's gums for over a year was not deliberately indifferent.
     "Here, the plaintiff's allegations do not rise to the level of 'deliberate indifference' necessary for his civil rights action to proceed to the merits," Mannion wrote. "The court acknowledges the plaintiff has alleged a significant hardship in his uncontrolled urination, his enlarged penis, and the hole left from the surgery. However, the plaintiff's surgery and follow-up exams, even liberally construed, amounts to no more than negligent treatment. Without more, 'mere allegations of malpractice do not raise issues of constitutional import,' and the plaintiff's claim must fail."
     The judge refused to hear Turner's state law tort claims and dismissed those as well.
     "Beyond this determination, the court agrees with Judge Carlson that dismissal is further appropriate given the plaintiff's failure to oppose the motion to dismiss, his failure to prosecute the case, and his failure to follow the Pennsylvania Rules of Civil procedure in filing a certificate of merit to support his negligence claims," Mannion wrote.
     The plaintiff may not amend his claims, according to the ruling.