Opinion
Civil Action 20-cv-1737
03-01-2023
JONATHAN PERALTA, Plaintiff, v. LEE ESTOCK, Superintendent SCI Pine Grove, SUSAN BERGEY, Corrections Healthcare Administrator, CAPTAIN SHEEDER, Security Captain - SCI Pine Grove, C.O. Rhodes, C.O. Augustine, C.O. Diehl, C.O. Yount, C.O. Fouse, and Lt. Scalia Defendants.
William S. Stickman, District Judge
REPORT AND RECOMMENDATION
RE: ECF NO. 51
MAUREEN P. KELLY, MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Jonathan Peralta brings this pro se civil rights action alleging that during his incarceration at the State Correctional Institution at Pine Grove (“SCI - Pine Grove”), Defendant corrections officers, supervisors, and the assigned health care administrator violated his Eighth Amendment rights through their deliberate indifference to his serious medical needs. ECF No. 25 at 6-8. Presently before the Court is a Motion for Summary Judgment filed on behalf of Defendants Lee Estock, Susan Bergey, Captain Sheeder, C.O. Rhoades, C.O. Augustine, C.O. Diehl, C.O. Yount, C.O Foust, and Lt. Scalia (collectively, “Defendants”).ECF No. 51. Defendants assert that Plaintiff's claims are barred by his failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Defendants also contend that summary judgment is properly entered on the merits of Plaintiff's claims as a matter of law.
Defendants state that Plaintiff incorrectly identified C.O. Rhoades as “C.O. Rhodes” and C.O. Foust as “C.O. Fouse.” ECF No. 52. The Court refers to these Defendants using their corrected names.
For the following reasons, it is recommended that the Court grant Defendants' Motion for Summary Judgment.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
In the unverified Amended Complaint, Plaintiff alleges that on April 30, 2018, he fell and injured his right wrist. ECF No. 25 ¶ 22. He was seen by medical staff and provided ice and Naproxen. Id. ¶ 23. On May 14, 2018, Plaintiff was placed in SCI - Pine Grove's Restricted Housing Unit (“RHU”), where he remained until July 13, 2018. Plaintiff alleges that due to continued pain, an x-ray was taken on May 16, 2018, and revealed that his fracture was nondisplaced. Id. ¶¶ 24, 25. Plaintiff states he was prescribed a hard splint but Defendants Foust and Scalia would not permit him to use the splint because prison policy precludes the use of hard splints in the RHU. Id. ¶ 26-29.
Plaintiff alleges that during the remainder of his RHU confinement, he was repeatedly cuffed from behind whenever he left his cell to shower, go to the yard, or visit the medical unit. Id. ¶ 30. Plaintiff complained of increasing pain to Defendants Scalia, Foust, Yount, Rhoades, Augustine, and Diehl. He requested and received medical follow-up and a second x-ray was taken. Id. ¶¶ 31-32. This x-ray revealed that his non-displaced fracture became displaced. Plaintiff attributes the displacement to Defendants' refusal to permit him to use the hard splint and repeatedly handcuffing him behind his back. Id. ¶ 33. On June 28, 2018, Plaintiff learned he would need surgery to repair the displaced fracture. The surgery was performed on July 9, 2018, at which time pins were inserted to stabilize the bone. Id. ¶ 35. Unfortunately, surgery did not correct the fracture and Plaintiff required a second surgery, when a plate and pins were inserted. Id. ¶¶ 37-39. Plaintiff states that the second surgery was not successful and he was placed in a hard cast. Id. ¶ 40. Plaintiff states the cast did not correct the fracture and he is now facing a third operation to fuse the bone, which will “render the plaintiff's wrist motionless on his dominant hand.” Id. ¶ 41.
As a result of Defendants' alleged misconduct and RHU policies, Plaintiff alleges he suffers severe pain, scarring, limited movement, and carpal tunnel syndrome. Id. ¶ 42. Plaintiff seeks compensatory and punitive damages as well as a declaratory injunction that the Defendants violated his rights.
Discovery has been completed. Defendants have filed a Motion for Summary Judgment asserting: (1) the undisputed evidence establishes that Plaintiff received regular medical treatment, physical therapy, including a wrap and a brace, such that no Defendant was deliberately indifferent to his serious medical needs; (2) the undisputed evidence shows that Defendants were not notified of a medical need to refrain from cuffing Plaintiff from behind until October 5, 2018, and prior to that date Plaintiff did not express to any named Defendant that he was in pain as a result of handcuffs; (3) Plaintiff fails to provide evidence establishing the personal involvement of Defendants Sheeder, Bergey, or Estock upon which to establish liability; (4) the undisputed evidence establishes that the remaining Defendants were not aware that Plaintiff was in pain or that handcuffs caused him pain, or that he was denied a prescribed medical device; and (5) Plaintiff failed to exhaust available administrative remedies and therefore his claim is barred by the PLRA, 42 U.S.C. § 1997e(a).
In support of the motion, Defendants provide a Statement of Material Facts Not in Dispute. ECF No. 51. Also, Defendants present Plaintiff's medical records and affidavits of each of the named Defendants. ECF No. 52; ECF Nos. 52-1 - 52-13. Plaintiff filed a Declaration Disputing Defendants' Material Facts, ECF No. 69; and, in opposition to the pending motion, he provides a copy of the initial response to his grievances, medical records revealing a displaced fracture, and Defendants' various affidavits, ECF Nos. 70-1 - 70-9. Plaintiff has not provided his own affidavit in opposition to the Motion for Summary Judgment or any other declarations signed under penalty of perjury.
As noted, Plaintiff's Amended Complaint is unverified and thus the Court cannot treat it as the equivalent of an affidavit. Wilson v. Phillips, No. 20-620, 2020 WL 3371403, at *2 n.3 (W.D. Pa. July 21, 2022) (citing Ziegler v. Eby, 77 Fed.Appx. 117, 120 (3d Cir. 2003); 11 MOORE'S FEDERAL PRACTICE-CIVIL § 56.94[2A], (“A verified pleading may serve as an affidavit or declaration for purposes of summary judgment to the extent that it meets the requirements for summary judgment affidavits and declarations.... However, an unverified pleading may not be used as summary judgment evidence.”). As a result, the evidentiary record is limited to the undisputed facts set forth in Defendants' Statement of Material Facts Not in Dispute, the attached exhibits, and the documents appended to Plaintiff's Brief in Response to Defendants' Motion for Summary Judgment. ECF Nos. 51, 55, 69, and 70.
The Motion for Summary Judgment has been fully briefed and is now ripe for consideration.
B. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, “[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). An issue of material fact is in genuine dispute if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof”). Thus, summary judgment is warranted when, “after adequate time for discovery and upon motion ... a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the court that no evidence supports the non-moving party's case. Celotex, 477 U.S. at 322; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). “[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. New Jesrsey Dep't of Mil. & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
The Court serves as “the finder of fact with respect to the defense that a plaintiff failed to exhaust available administrative remedies as required by PLRA.” Jackson v. O'Brien, No. 1:18-CV-00032, 2021 WL 5087922, at *2 (W.D. Pa. Nov. 2, 2021) (quoting Jackson v. Shouppe, No. 17-CV-1135, 2020 WL 3574645, at *2 (W.D. Pa. June 30, 2020)). See also Hardy v. Shaikh, 959 F.3d 578, 581 n.1 (3d Cir. 2020); Paladino v. Newsome, 885 F.3d 203, 210-11 (3d Cir. 2018); Small v. Camden Cnty., 728 F.3d 265, 269-71 (3d Cir. 2013). Therefore, the Court will examine the evidence to determine whether there are any material issues of fact related to Plaintiff's exhaustion of administrative remedies that were reasonably available to him.
Plaintiff is proceeding pro se, thus he is entitled to liberal reading of his pleadings and documents filed in opposition to the pending motion. Porter v. Pennsylvania Dep't of Corr., 974 F.3d 431, 440 (3d Cir. 2020) (quoting Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (“[t]he obligation to liberally construe a pro se litigant's pleadings is well-established.”). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Dep't. of Corr., 949 F.2d 360 (10th Cir. 1991).
Nonetheless, at the summary judgment stage of the proceedings, the Court need not credit bald assertions or legal conclusions unaccompanied by evidentiary support. Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). “[A] pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point to competent evidence in the record that is capable of refuting a defendant's motion for summary judgment.” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (citation omitted). See also Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000) (“merely because a non-moving party is proceeding pro se does not relieve him of the obligation under Rule 56(e) to produce evidence that raises a genuine issue of material fact”); Winfield v. Mazurkiewicz, No. 11-584, 2012 WL 4343176, at *1 (W.D. Pa. Sept. 21, 2012).
Accordingly, because Plaintiff is a pro se litigant, this Court will consider the facts and make inferences when appropriate.
C. DISCUSSION
1. Exhaustion of Grievance Process
Because Defendants raise exhaustion as a defense to this action, the Court must address it as a threshold matter before reaching the merits of the pending motion. Small v. Camden Cnty., 728 F.3d at 270.
a. PLRA requirements
The PLRA requires that a prisoner exhaust available administrative remedies before filing an action challenging prison conditions or experiences. 42 U.S.C. § 1997e(a). Under the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner, confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id.
“Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). “This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Id. Thus, the benefits of the exhaustion requirement “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Id. at 219.
As the United States Court of Appeals for the Third Circuit has explained:
The PLRA requires inmates to exhaust prison grievance procedures before suing in court. 42 U.S.C. § 1997e(a). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,' rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)).Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016).
While exhaustion of administrative remedies is mandatory under the PLRA, “[a] prisoner need not exhaust administrative remedies prior to filing a claim if the remedies are not ‘available'” to the inmate. Ross v. Blake, 578 U.S. 632, 636 (2016). “The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are ‘available.'” Id. at 648 (quoting § 1997e(a)). In other words, “the exhaustion requirement hinges on the ‘availability' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.” Id. at 642 (cleaned up). “[T]he ordinary meaning of the word ‘available' is ‘capable of use for the accomplishment of a purpose,' and that which ‘is accessible or may be obtained.'” Id. (quoting Booth v. Churner, 532 U.S. 731, 737-38 (2001)). “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. (quoting Booth, 532 U.S. at 738).
The United States Supreme Court has described three instances in which an administrative remedy is unavailable as a practical matter: “(1) ‘it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates'; (2) it is ‘so opaque that it becomes, practically speaking, incapable of use,' such as when no ordinary prisoner can discern or navigate it; or (3) ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” Shumanis v. Lehigh Cnty., 675 Fed.Appx. 145, 148 (3d Cir. 2017) (quoting Ross, 578 U.S. at 643-44).
“The burden to plead and prove failure to exhaust as an affirmative defense rests on the defendant.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)). “But once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him.” Id. (citing Tuckel v. Grover, 660 F.3d 1249, 1253-54 (10th Cir. 2011)).
b. DC-ADM 804
The Pennsylvania Department of Corrections' administrative remedies for inmate grievances are provided for in DOC Administrative Directive 804 (“DC-ADM 804”). See DOC Policies, DC-ADM 804, Inmate Grievance System Policy. DC-ADM 804 provides a three-step process through which inmates can seek to resolve issues relating to their incarceration. Id. The three steps are: (1) file an initial grievance; (2) appeal to the superintendent; and (3) final appeal to the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”). Redshaw v. Pillai, No. 12-190J, 2013 WL 3802464, at *3 (W.D. Pa. July 18, 2013). An inmate must follow each of the steps to properly exhaust his administrative remedies under the PLRA and uncontroverted evidence of the failure to do so warrants the entry of summary judgment in Defendants' favor. See Spearman v. Morris, 643 Fed.Appx. 82, 85 (3d Cir. 2016) (citing Booth v. Churner, 206 F.3d at 299) (holding that plaintiff did not take full advantage of the administrative procedures available to him in failing to perfect his appeal for final review and thus failed to exhaust administrative remedies).
https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx
If an inmate is dissatisfied with the response received from the Facility Grievance Coordinator, an appeal may be submitted in writing to the Facility Manager within fifteen working days. Id. at 20 (DC-ADM 804 §2.A.1.a). Failure to comply with the listed appeal requirements may result in the appeal being dismissed. Id. (DC-ADM 804 §2.A.1.e).
Once an appeal is filed, the Facility Manager “will determine whether the appeal in in accordance with the procedures manual.” Id. (DC-ADM 804 § 2.A.2). If the appeal is found to be in accordance with procedures, it will then be entered into the Inmate Grievance Tracking System. Id. Once entered in the system, the Facility Manager or designee must respond in writing within fifteen working days. Id. If the inmate remains dissatisfied following this second level appeal, the inmate must submit an Appeal for Final Review to the SOIGA within fifteen working days, and then the inmate will receive a final determination in writing within thirty days. Id. at 23-28 (DC-ADM 804 §2.B). The policy provides that an appeal to the Facility Manager must be received by the inmate before submitting a final appeal. In addition, the appeal must include the grievance number, and contain the reasons for appealing the Facility Manager's decision. Id.
The version of DC-ADM 804 that has been in effect since May 1, 2015 also provides that inmates “shall” identify individuals directly involved in the grievance. Victor v. Burns, No. 2:17-cv-984, 2018 WL 9617254, at *2 (W.D. Pa. May 23, 2018) (citing DC-ADM 804 § 1.A.11.b). “[A]lthough the exact language of DC-ADM 804 has varied over the years the uniform requirement that the inmate include a statement of ‘the facts relevant to the claim,' DC-ADM 804 § 1.A.11[] has been interpreted to require the inmate to identify in the initial grievance the persons he eventually names as defendant in his complaint.” Id. (citing Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004); Williams v. Pa., Dep't of Corr., 146 Fed.Appx. 554, 557 (3d Cir. 2005)) (“[plaintiff's] failure to identify defendants ... means that he failed to exhaust his administrative remedies in accordance with Pennsylvania's grievance process and the PLRA.”); Young v. Beard, No. 06-160, 2008 WL 2693860, at *4 (W.D. Pa. April 4, 2008), report & recommendation adopted as modified, 2008 WL 2693859 (W.D. Pa. June 30, 2008) (inmate failed to exhaust claims related to all defendants except the two named in the initial grievance).
The failure to identify Defendants by name, however, does not conclusively establish noncompliance with DC-ADM 804. “Courts have found that inmates may adequately identify individuals in a grievance without using their names. For example, ‘[i]dentifying someone by position has been held to fulfill the DC-ADM 804's identification requirement.' Travillion v. Wetzel, 765 Fed.Appx. 785, 789 (3d Cir. Apr. 8, 2019) (citing Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir. 2004) (noting ‘a grievance can sufficiently identify a person even if it does not provide an actual name; functional descriptions and the like-e.g., a reference to ‘the guards in the shower room' on a certain date-would suffice')).” Baez v. Froelich, No. 1:20-CV-00148, 2023 WL 131432, at *8 (W.D. Pa. Jan. 9, 2023).
c. Plaintiff's failure to exhaust
In the instant Motion for Summary Judgment, Defendants contend that Plaintiff failed to properly exhaust his administrative remedies for two reasons: first, because he failed to identify any named Defendant in his grievance and, second, because he failed to timely complete the prison grievance process. ECF No. 53 at 13-14. In response to Defendants' Motion for Summary Judgment, Plaintiff completely ignores the substance of Defendants' arguments and summarily states that he filed Grievance No. 750353 on August 1, 2018, and that “the grievance was fully exhausted at all three levels.” ECF No. 70 at 2. Thus, Plaintiff fails to address whether his grievance properly identified any non-medical Defendant by name, function, or title, or that he complained that any non-medical Defendant improperly treated his injury. Plaintiff also presents no admissible evidence upon which the Court may infer that he did not receive the facility manager's denial of his grievance in September 2018, such that his appeal to final review in 2020 was timely.
(1) Failure to identify named Defendants in grievance
As to Plaintiff's failure to identify any Defendant, the undisputed evidence shows that Plaintiff submitted a single grievance, dated August 1, 2018. ECF No. 52-3 at 2-3. The grievance submission consists of a completed one-page Official Inmate Grievance form and an attached fullpage typed grievance. Id. In the grievance, Plaintiff states that he “writes in regards to an injury that was shown deliberate indifference by medical staff here at S.C.I. Pine Grove.” Id. (emphasis added). Plaintiff adds that despite a hard splint being ordered on May 8, 2018, a non-party physician assistant informed him that a hard splint was not permitted in the RHU. Plaintiff explained that his pain was “significantly getting worse as time progressed” and he “was being handcuffed behind his back” on the injury site but that instead of a hard splint, he was given a Soft Neoprene Sleeve that was insufficient. Id. After writing several Requests to Staff “explaining to the Medical Dept.” that he was in severe pain, he states he was told he was not receiving pain medication, only a “Muscle Relaxer.” Id. The “staff” ordered another x-ray and it was determined that surgery was required. Plaintiff states his worsened condition was “as a direct result of the deliberate indifference of the Medical Staff, after knowing how severe the injury was and failing to act, to prevent further injury.” Id. (emphasis added).
Based on the text of Plaintiff's grievance, it cannot be reasonably disputed that Plaintiff failed to identify by name, title, or function any non-medical Defendant. While Plaintiff asserted he was “being handcuffed from behind,” he identified the “deliberate indifference of Medical Staff” and their failure to provide a hard splint and pain medication as the cause of his worsening condition. Thus, a plain reading does not serve to place prison officials on notice that the conduct of the non-medical Defendants was the subject of his grievance. As noted above, Section 11(d) of DC-ADM 804 states that the inmate “shall identify individuals directly involved in the events.” See Green v. Maxa, 2020 WL 1249205, at *5 (W.D. Pa. Mar. 16, 2020); Jackson v. Carter, 813 F. App'x. 820, 823 (3d Cir. 2020). Because the identification requirement is mandatory, “in the absence of any justifiable excuse, a Pennsylvania inmate's failure to properly identify a defendant constitute a failure to properly exhaust his administrative remedies under the PLRA.” Williams, 146 F. App'x. at 557. In light of Plaintiff's clear failure to identify the non-medical Defendants in the grievance, summary judgment should be entered in favor of Defendants Estock, Captain Sheeder, C.O. Rhoades, C.O. Augustine, C.O. Diehl, C.O. Yount, C.O Foust, and Lt. Scalia.
(2) Failure to timely complete the grievance process
The remaining Defendant is Susan Bergey (“Bergey”). She is identified as the Corrections Health Care Administrator at SCI - Pine Grove.ECF No. 52-11. Plaintiff's allegations in the grievance against medical staff may be read broadly to include Defendant Bergey in her health care administrative capacity. However, Defendants assert that Plaintiff's failure to timely submit a final appeal of the grievance denial is fatal to his claims.
Defendant Bergey was employed by the DOC as the Corrections Health Care Administrator (“CHCA”) at SCI - Pine Grove in 2018 and 2019. ECF No. 52-11. As such, she is not a physician or health care provider. See Whitehead v. Thomas, No. 14-cv-51, 2017 WL 2664490, at *7 (W.D. Pa. May 23, 2017) (“Courts in the Third Circuit have recognized that CHCAs are ‘undisputedly administrators, not doctors'”) (quoting Thomas v. Dragovich, 142 F. App'x. 33, 39 (3d Cir. 2005); Fantone v. Herbik, 528 Fed.Appx. 123, 128 n. 6 (3d Cir. 2013); Roberts v. Tretnick, 2014 WL 4218249, at *3-4 (W.D. Pa. 2014); McEachin v. Wilson, 2009 WL 5206008, at *13 (W.D. Pa. 2009)).
The undisputed evidence reflects that despite Plaintiff's knowledge of the alleged exacerbation of his condition no later than June 28, 2018, or by the date of his surgery on July 9, 2018, he delayed until August 1, 2018 to submit his initial grievance. See ECF No. 52-3 (“On 629-2018 I was seen by the Surgeon. On 7-9-18 I had Surgery to correct the bone.”). The grievance was rejected as untimely on August 3, 2018, because it was not submitted within 15 days of the conduct giving rise to his claim. ECF No. 52-3 at 4.
Following the rejection of his grievance, Plaintiff submitted an Inmate Appeal to Facility Manager on August 12, 2018. Id. at 5. In the appeal, Plaintiff asserted that the date of the incident was the date of his surgical follow-up appointment on July 24, 2018, which is when he states he “complained of pain and the overall need of surgery and the misdiagnosis and negligence.” Id. The Facility Grievance Coordinator remanded the grievance to the grievance officer to determine the accuracy of Plaintiff's assertion. Id. at 6. On August 17, 2018, Defendant Bergey, as the Corrections Health Care Administrator, again denied Plaintiff's grievance - this time on the merits - because there was no evidence that medical staff impeded his recovery. Defendant Bergey responded as follows.
Mr. Peralta:
On 05/16/18 your x-ray results were non-displaced fracture. This type of fracture only required a wrist splint and activity restrictions.
On 05/14/18 you were in a fight and sent to the Restricted Housing Unit.
On 06/07/18 a second x-ray was completed following your continued complaints of pain. This x-ray revealed a displacement of the scaphold fracture. You state this was due to being cuffed behind your back; however, you were in a fight that could easily result in this type of fracture.
Your compensatory request is denied along with the denial of this grievance.ECF No. 52-3 at 7.
Plaintiff makes much of Defendant Bergey's error related to the timing of the initial x-ray as taking place on May 16, 2018, after the fight that resulted in Plaintiff's confinement in the RHU. However, his undisputed medical records establish that Plaintiff's first x-ray was taken on May 3, 2018, and reviewed by his prison physician on May 6, 2018 (not May 16, 2018). ECF No. 52-2 at 11-12. This x-ray showed a non-displaced fracture. Id. It is also undisputed that Plaintiff's medical records reflect that on May 14, 2018, Plaintiff was in a physical altercation with another inmate and placed in the RHU. Id. at 15-16. A second x-ray was ordered to check healing and was performed on June 5, 2018. Id. at 20-21. The x-ray revealed that the fracture was “better demonstrated” than in the first x-ray and was “displaced 1-2 mm.” Id. In response to Defendants' Statement of Material Facts Not in Dispute, Plaintiff admits that the first x-ray was taken on May 3, 2018 (not May 16, 2018) and that this x-ray showed a non-displaced fracture. ECF No. 52 ¶ 11; ECF No. 69 ¶ 3. Plaintiff also admits that a second x-ray was performed on June 5, 2018, and that this x-ray showed the fracture was displaced. ECF No. 52 ¶ 19; ECF No. 69 ¶ 5.
On August 21, 2018, Plaintiff timely submitted an appeal to the Facility Manager based on the apparent inconsistency in Bergey's recitation of the relevant dates, and he attributed the displacement of his fracture to “their negligence.” ECF No. 52-3 at 8. On September 20, 2018, six days after the time allowed for his response under DC-ADM 804, Defendant Superintendent Estock upheld the grievance denial based on the Plaintiff's failure to timely submit his initial grievance within 15 days of his surgery on July 9, 2018. Id. at 9. On the merits of the grievance, Defendant Estock stated that upon review of Plaintiff's medical records, he did not find a basis for Plaintiff's assertion of negligence or improper care. Id.
The grievance records reflect that Plaintiff waited over two years before submitting an appeal for final review to the SOIGA. On September 29, 2020, Plaintiff submitted an Inmate's Request to Staff Member to Defendant Estock stating that he never received a response to his August 21, 2018 Appeal to Facility Manager. Id. at 12. Plaintiff attributed the delay of two years to Estock's 2018 transition into the position of Superintendent and requested that Estock locate the prior grievance appeal, “look it over” and issue a response. Id. A staff member returned the request to Plaintiff on October 1, 2020, and informed plaintiff that the grievance was responded to “back in 2018.” Id. On October 7, 2020, Plaintiff submitted an Inmate Appeal to Final Review to SOIGA, asking that the delay be excused because he never received the Facility Manager's response to his second level appeal. Id. at 10-11. Plaintiff summarized his allegations of the cause of his displaced fracture, the unsatisfactory responses received from Defendants Bergey and Estock, as well as his continuing wrist pain and mobility issues. Id.
On November 2, 2020, the SOIGA Chief Grievance Officer issued a Final Appeal Decision Dismissal finding that Plaintiff's final appeal was untimely. Id. at 1. She stated that “[p]er the DC ADM 804 Section 2, B., an appeal to final review must be submitted within 15 working days from the date of the Facility Manager/designee's decision. Your appeal was due to this office by 10/12/2018.” Id.
Plaintiff presents no admissible evidence upon which the Court can reasonably infer that he did not receive the response in 2018.
(3) Application of Shifflett
An additional issue relative to exhaustion was identified by the Court and is not addressed by Plaintiff or Defendants in the summary judgment filings. The Third Circuit has held that prisons must also “comply with the demands of the system they created. Hence ... as soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits prescribed by its own policies, it has made its administrative remedies unavailable and the prisoner has fully discharged the PLRA's exhaustion requirement.” Shifflett v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019). In this case, Plaintiff received the Initial Review Response on the remanded grievance on August 17, 2018, and on August 21, 2018, Plaintiff timely submitted an Inmate Appeal to Facility Manager. ECF No. 52-3 at 7-8. DC-ADM 804 § 2.A.2.d(1) provides that the Facility Manager shall “notify the inmate using the Facility Manager's Appeal Response (Attachment 2-b) of his/her decision within 15 working days of receiving the appeal.” Thus, after accounting for weekends and Labor Day, Estock's response was due no later than September 12, 2018. Because the response was not issued until September 20, 2018, Shifflet requires the Court to find that Plaintiff's grievance was fully exhausted as to “Medical Staff” as of September 12, 2018.
Under these circumstances, to the extent Plaintiff has not otherwise failed to exhaust available administrative remedies by failing to identify Defendants in his grievance, it is recommended that the Court deny Defendants' Motion for Summary Judgment as to Defendant Bergey on the basis of timeliness.
2. Eighth Amendment Deliberate Indifference Claim
Even if Plaintiff had properly exhausted his claims against all named Defendants, summary judgment would still be appropriate.
The United States Court of Appeals for the Third Circuit has held that “[p]rison officials ‘violate the Eighth Amendment when they act deliberately indifferent to a prisoner's serious medical needs by intentionally denying or delaying access to medical care or interfering with the treatment once prescribed.'” Coleman v. Stanford, No. 22-1529, 2022 WL 2802403, at *2 (3d Cir. July 18, 2022) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)). See also Durmer v. O'Carroll, 991 F.2d 64, 68 & n.11 (3d Cir. 1993); Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (same). Deliberate indifference to serious medical needs is an exacting standard, requiring a showing of “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). Claims sounding in mere medical negligence will not suffice. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
In assessing claims of deliberate indifference, “courts in this Circuit distinguish between non-medical prison officials - typically corrections officers - and medical prison officials -doctors and nurses providing medical care.” Carter v. Baumcratz, No. 18-96, 2021 WL 4443767, at *9 (W.D. Pa. Sept. 28, 2021) (citing Williams v. Doe, 2017 WL 4680636, at *3 (E.D. Pa. Oct. 18, 2017) and citing Spruill v. Gillis, 372 F.3d at 236). Thus,
[i]f a prisoner is under the care of medical experts ... a non-medical prison official will generally be justified in believing that the prisoner is in capable hands. This follows naturally from the division of labor within a prison. Inmate health and safety is promoted by dividing responsibility for various aspects of inmate life among guards, administrators, physicians, and so on. Holding a non-medical prison official liable in a case where a prisoner was under a physician's care would strain this division of labor. Moreover, under such a regime, non-medical officials could even have a perverse incentive not to delegate treatment responsibility to the very physicians most likely to be able to help prisoners, for fear of vicarious liability.Id. Here, Defendants, including Defendant Begley, are prison administrators and corrections officers who are not alleged to have provided medical care. “Thus, to state an Eighth Amendment claim of deliberate indifference, [Plaintiff] must point to evidence demonstrating that they possessed actual knowledge or a reason to believe that prison doctors or their assistants were mistreating (or not treating) him.” Carter, 2021 WL 4443767, at *9 (internal quotation marks omitted) (citing Trainor v. Wellpath, 2021 WL 3913970, at *10 (W.D. Pa. Sept. 1, 2021) (quoting Spruill, 372 F.3d at 236)).
That said, “a non-medical defendant's refusal to follow a medical directive can, in some circumstances, constitute deliberate indifference.” Id. “For a corrections officer to be liable, the inmate-plaintiff must show that the officer knew of and disregarded an excessive risk to the prisoner's health.” Id. (citing Perkins v. Schwappach, 399 Fed.Appx. 759, 761 (3d Cir. 2010) and Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Even if the corrections officer knows of a risk to the prisoner's health, he must still personally draw the inference that the prisoner faced a substantial risk of injury.” Id. In this case, Plaintiff does not proffer any evidence that would permit a reasonable factfinder to conclude that any Defendant knew of and was deliberately indifferent to Plaintiff's medical needs during the period he was housed in the RHU.
a. Plaintiff's medical records
As this Court has noted, the admissible evidence reflects certain fundamental misrepresentations in Plaintiff's timeline regarding his injury and care. Plaintiff's medical records establish that an x-ray was initially performed on May 3, 2018 (not May 16 as represented by Plaintiff). ECF No. 52-2 at 11; see also, ECF No. 52 ¶ 11; ECF No. 69 ¶ 3. The x-ray showed a nondisplaced fracture of Plaintiff's right wrist. Id. Plaintiff was seen by Dr. Rashida and was provided an Ace wrap and activity restrictions. Id. at 13. A medium wrist and thumb split were ordered. Id. at 14. On May 14, 2018, Plaintiff was in a fight with another inmate that required a planned use of force. ECF No. 52-4 at 1. Plaintiff pleaded guilty to the fighting charge on May 17, 2018. Id. at 2. Two days later, Plaintiff requested a wrist splint. He was told a splint was ordered but had not yet arrived. Id. at 17. On May 20, 2018, Plaintiff complained that his medical condition was not being treated properly. Plaintiff again was told that the wrist splint had been ordered and that until it arrived, he would continue to receive an Ace wrap. Id. at 18. On June 1, 2018, Plaintiff complained of increased pain and the lack of support for his wrist. He requested pain relief and asked whether his splint arrived. Id. at 19. After the visit, a nurse issued a wrist brace, and Plaintiff was provided Relefen 750 mg. for pain. In addition, an x-ray was ordered to “check for healing process.” Id. at 19-20. Plaintiff complained that the brace was not what he had been fitted for and while it felt the same, it was not supportive. Id. at 22. A second x-ray was completed on June 5, 2018, and revealed that the fracture “is better demonstrated” with a 1-2mm displacement. Id. at 21. A physician assistant requested that Plaintiff be scheduled for an orthopedic visit and approval was granted on June 13, 2018. Id. at 22-26.
On June 14, 2018, Plaintiff requested and was granted a medication change for pain relief, and an office visit with an orthopedic surgeon was scheduled for June 26, 2018. Id. at 27-29. His pain medication was increased on June 25, 2018. Id. at 30. On June 27, 2018, SCI - Pine Grove medical staff learned that the outside surgeon recommended surgery and a preoperative CT scan. Id. at 33. Plaintiff was transported to West Penn Hospital for the scan on July 6, 2018, and surgery was performed on July 9, 2018. Id. at 36 - 53. Plaintiff was released on pain medication and was next seen on July 24, 2018 for follow up. Id. at 54-60.
As relevant to the pending Motion for Summary Judgment, Plaintiff filed a grievance complaining about his medical care on August 1, 2018. Plaintiff continued to be seen for follow up care throughout August, September, and October, and underwent a CT scan to check healing progress on November 20, 2018. Id. at 61-82. The scan revealed that the fracture had not healed. Plaintiff underwent a second surgery on December 31, 2018. Id. at 86-97. Plaintiff was followed by medical staff and an outside surgeon for three months and was prescribed physical therapy to increase wrist range of motion and strength. Id. at 83-117. A CT scan performed on April 22, 2019, showed that while some healing had occurred, the fracture was “still appreciated.” Id. at 119-20. Plaintiff continued physical therapy through June 2019, and as of June 26, 2020, he continued to receive treatment and guidance that symptoms of his hand “locking up” without numbness or tingling “may be from arthritis due to previous injury of scaphold bone.” Id. at 121-29, 132-133.
In sum, through the unverified Amended Complaint, Plaintiff alleges that during his stay in the RHU in the period May 14, 2018, through July 13, 2018, Defendants refused to provide a hard splint for security reasons and placed him in handcuffs behind his back whenever he was taken from his cell. ECF No. 24 ¶¶ 13-31. But there is no evidence upon which a factfinder could conclude that the documented three-week delay in providing a splint was because of security reasons. Rather, Plaintiff's medical records reflect that a splint was ordered on May 8, 2018, but was not delivered to SCI - Pine Grove until June 1, 2018, and was provided to Plaintiff upon delivery. ECF No. 52 ¶ 18; ECF No. 69 ¶ 5. Plaintiff was also issued a “wristlet mitten” on June 2, 2018, for additional support. ECF No. 52 ¶ 20; ECF No. 69 ¶ 5. In the interim, Plaintiff's fracture was treated with Ace bandages to stabilize his wrist.
b. Absence of evidence of denial of medical care by named Defendants
The parties have submitted the affidavits of Defendants Rhoades, Augustine, Diehl, Yount, and Foust in support and in opposition to the pending Motion for Summary Judgment. ECF No. 52-6; 52-7; 52-9; 52-10; 52-12; 52-13; ECF No. 70-5 - 70-9. These Defendants assert that during Plaintiff's confinement in the RHU he was handcuffed with his hands in front of him or, if handcuffed from behind, Plaintiff never expressed that the placement of handcuffs caused him pain. See, e.g., ECF No. 52-7. Defendants further state that medical staff did not convey that RHU handcuff protocol should be altered and no Defendant was aware that Plaintiff's medical treatment was inappropriate. Finally, no Defendant withheld a splint for security reasons. ECF No. 52-6; 527; 52-9; 52-10; 52-12; 52-13; ECF No. 70-5 - 70-9. In the absence of any admissible evidence to the contrary, Plaintiff has failed to establish that these Defendants had a reason to know that his medical treatment was inadequate or that their own conduct was unreasonable. Under these circumstances, summary judgment is properly entered in Defendants' favor as to Plaintiff's Eighth Amendment claim for deliberate indifference to his medical needs.
3. Section 1983 - Personal Involvement
Section 1983 provides a cause of action against “every person who,” under color of state law, “subjects, or causes to be subjected,” another person to a deprivation of a federally protected right. 42 U.S.C. § 1983. Thus, individual liability can be imposed under section 1983 only if the state actor played an “affirmative part” in the alleged misconduct and “cannot be predicated solely on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). “A defendant in a civil rights action must have personal involvement in the alleged wrongs....Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207-08; see also Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003).
Defendants assert that summary judgment is properly entered in their favor because Plaintiff presents no evidence establishing the personal involvement of any named Defendant in the violation of his civil rights. ECF No. 53 at 10-13. Plaintiff concedes that as to Defendants Estock and Sheeder, his complaint “does not fully indicate how supervisory officials had personal involvement in this matter.” ECF No. 70 at 6. Yet, Plaintiff believes that his allegations are sufficient to establish their supervisory responsibility for the violation of his Eighth Amendment rights. Id. at 6-7. As to the remaining Defendants, Plaintiff points to their affidavits and argues that there are material facts in dispute regarding whether he has alleged and established an adequate factual basis to support a finding that each was deliberately indifferent to his medical needs. Id.
Upon review, the Court agrees that the record lacks any evidence of Defendants' involvement in the alleged violation of Plaintiff's civil rights.
As to Defendants Estock and Sheeder, the Third Circuit has “identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), judgment rev'd sub nom. Taylor v. Barkes, 575 U.S. 822, (2015). “First, liability may attach if a supervisor, ‘with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'” Id. (alteration in original) (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). Alternatively, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in [the] subordinate's violations.” A.M. ex rel. J.M.K., 372 F.3d at 586 (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
Plaintiff alleges that Estock “indirectly” encouraged and allowed a policy precluding the use of a hard splint in the RHU, and that Estock and Sheeder “ordered” Plaintiff to be handcuffed behind his back “after gaining knowledge that the plaintiff's wrist was fractured.” ECF No. 25 ¶¶ 13, 15. But, Plaintiff presents no evidence that such a policy existed. Similarly, there is no evidence that Defendants Estock, Sheedy, or Bergey knew that Plaintiff required a splint and refused to provide one because of security reasons. Plaintiff also fails to point to any evidence that these Defendants knew that Plaintiff was handcuffed behind his back or that this measure, if it occurred, was contraindicated based on his medical condition. Thus, summary judgment is properly entered in favor of Defendants Sheeder, Bergey, and Estock.
Defendants also contend that the record evidence is insufficient to establish that any remaining Defendant was personally involved in the denial of medical care, or in causing an exacerbation of Plaintiff's injury through the placement of handcuffs on Plaintiff's wrist.
Plaintiffs medical records contain no documented complainant arising out of the use of handcuffs during the relevant period, and plaintiff's points to no eviendence that would permit a factfinder to conclude that my defendants was deleberately indefferent to his injury. Thus, in the absence of any genuine issue of material fact, summary judement is properly entered in favor of defendants Rhoades, Augustine, Diehl, Yount, Foust, and Scalia.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the motion for summary Judgment, ECF No. 51, be granted.
In accordance with the Magistrate Judge Act, 28 U.S.C § 636(b)(1), Local Rule 72.D.2, the parties may file written Objection within fourteen days, or seventeen days for unregistered ECF Users.Objection are to be submitted to the clerk of courts, United Staes District Court, 700 Grants Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objection will waive the right appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.3(3d Cir. 2011). Any party opposings objection may respond to the objection within fourteen (14) days tereafter in accordance with Local Civil Rule 72.D.2.