Opinion
CIVIL ACTION NO. 3:18-CV-1485
08-06-2019
DALMER LEE REYAN, Plaintiff v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants
(MARIANI, D.J.) () REPORT & RECOMMENDATION
Medical Defendants' Motion to Dismiss (Doc. 21)
On July 26, 2018, state prisoner Dalmer Lee Reyan ("Plaintiff") Plaintiff initiated this civil action against several employees of the Pennsylvania Department of Corrections and members of the prison medical staff employed by Correct Care Solutions alleging claims arising under 42 U.S.C. § 1983, the Americans with Disabilities Act (42 U.S.C. § 12132), and the Rehabilitation Act of 1973 (29 U.S.C. § 794). (Doc. 1).
On October 27, 2018, Plaintiff filed an Amended Complaint. (Doc. 16). In his Amended Complaint, Plaintiff names the following twelve Defendants:
(1) The Pennsylvania Department of Corrections
(2) Randy Evans (a Security Captain at SCI-Camp Hill)
(3) Richard Hibshman (a Sergeant at SCI-Camp Hill)
(4) Samuel Larty (a Corrections Officer at SCI-Camp Hill)
(5) Richard Kistler (a Corrections Officer at SCI-Camp Hill)
(6) Correct Care Solutions (a company that provides medical staff to the Department of Corrections)
(7) Dr. Vanitha Abraham (an employee of Defendant Correct Care Solutions, stationed at SCI Camp-Hill)
(8) Dr. Theodore Voorstad (an employee of Defendant Correct Care Solutions, stationed at SCI-Camp Hill)
(9) Dr. Jean Holdren (an employee of Defendant Correct Care Solutions, stationed at SCI-Mercer)
(10) Dr. Scott Morgan (an employee of Defendant Correct Care Solutions, stationed at SCI-Mercer)
(11) PA-C Nicole Odem (an employee of Defendant Correct Care Solutions, stationed at SCI-Mercer)
(12) PA-C Mark Hammer (an employee of Defendant Correct Care Solutions, stationed at SCI-Pittsburgh)
Currently pending before the Court is a Motion to Dismiss, or, in the alternative, Motion for Summary Judgment filed by Defendants Correct Care Solutions, Dr. Vanitha Abraham, Dr. Theodore Voorstad, Dr. Jean Holdren, Dr. Scott Morgan, PA-C Nicole Odem, and PA-C Mark Hammer (collectively, the "Medical Defendants"). (Doc. 22). Along with their Motion, the Medical Defendants filed a Brief in Support and ninety-seven pages of exhibits. (Doc. 22, et seq.). No separate statement of material facts was filed. See L.R. 56.1. On December 18, 2018, Plaintiff filed a brief in opposition. (Doc. 27). On January 3, 2019, the Medical Defendants filed a Reply. (Doc. 31).
For the reasons that follow, IT IS RECOMMENDED THAT:
(1) The Medical Defendants' Motion for Summary Judgment be DISMISSED without prejudice.I. FACTUAL ALLEGATIONS IN THE AMENDED COMPLAINT
(2) Plaintiff's § 1983 claim against Defendant Correct Care Solutions be DISMISSED.
(3) All other claims should be allowed to proceed.
Plaintiff has a long history of right knee problems, including severe arthritis resulting in instability of the joint, that pre-date his incarceration. (Doc. 16, ¶ 19). Compounding these pre-existing problems, Plaintiff dislocated his right knee while housed in Bedford County Jail in February 2016. (Doc. 16, ¶ 20).
Plaintiff contends that both the DOC staff and the medical staff at SCI-Camp Hill, SCI-Mercer, and SCI-Pittsburgh were aware of his health challenges. (Doc. 16, ¶ 49). While housed at SCI-Camp Hill, the medical staff issued a written restriction that Plaintiff should not leave the first floor due to his inability to walk up or down stairs. (Doc. 16, ¶ 23). Despite this limitation, on July 26, 2016, Defendant Captain Evans ordered that Plaintiff ascend two or three flights of stairs to take a urine test. (Doc. 16, ¶ 30). Defendant Captain Evans did not verify Plaintiff's medical restrictions until Plaintiff had already ascended these stairs. (Doc. 16, ¶ 32).
After Plaintiff submitted his urine sample, Defendant Corrections Officers Larty and Kistler were instructed to aid Plaintiff as he descended the stairs. (Doc. 16, ¶ 32). Defendant Evans instructed that one officer should walk in front of Plaintiff and one should walk behind him. (Doc. 16, ¶ 33). Despite the order to do so, neither officer walked in front of Plaintiff. (Doc. 16, ¶ 34).
While descending the stairs, Plaintiff's right knee gave out. (Doc. 16, ¶ 35). With no one positioned in front of him, Plaintiff tumbled down approximately two flights of stairs, hitting his head, neck, hip, lower back, and right knee. Id.
After his fall, Plaintiff was taken to the prison infirmary, and then was transported by ambulance to a local emergency room where he was treated for head, back and knee pain. (Doc. 16, ¶ 36). Plaintiff was given a cervical collar, fluid was aspirated from Plaintiff's knee, and a knee brace was recommended. (Doc. 16, ¶ 37). It was also recommended that Plaintiff follow up with Dr. Sumas—a neurosurgeon from outside the prison—on September 7, 2016. Id.
When Plaintiff returned to the prison, he was placed in the infirmary overnight. (Doc. 16, ¶ 38).
On August 19, 2016, Plaintiff was seen by an orthopedist outside the prison. (Doc. 16, ¶ 39). The orthopedist unsuccessfully attempted to drain fluid from Plaintiff's knee, and recommended that Plaintiff get a surgical consultation, physical therapy, and use a knee brace or assistive device. Id.
Between the date of his injury and his release date, Plaintiff received care from Medical Defendants Abramham, Morgan, Holdren, Voorstad, Odem, and Hammer. (Doc. 16, ¶ 49).
Plaintiff never received a surgical consultation or physical therapy, despite numerous requests. (Doc. 16, ¶¶ 40, 46). On June 26, 2018, Defendant Holdren told Plaintiff that he did not qualify to see a specialist. (Doc. 16, ¶¶ 47-48).
Plaintiff was, at some point, prescribed a knee brace, knee sleeve, knee wrap, and a cane by the medical staff. (Doc. 16, ¶ 43). However, at various times between the date he received these items and the date he filed his complaint, Plaintiff was denied access to these items. (Doc. 16, ¶ 44).
Plaintiff asserts two claims against the Medical Defendants. First, Plaintiff alleges that the Medical Defendants violated his Eighth Amendment rights by failing to provide adequate medical care (Count II). Second, Plaintiff alleges that the Medical Defendants, and Defendant Correct Care Solutions were negligent (Count V).
As relief, Plaintiff requests compensatory and punitive damages, and reasonable attorney's fees. (Doc. 16, ¶ 81). II. LEGAL STANDARDS
A. STANDARD FOR EVALUATING A MOTION TO DISMISS
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the court "must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to "assume that [the plaintiff] can prove facts that [he] has not alleged . . . ." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following the rule announced in Ashcroft v. Iqbal, "a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite enough factual allegations to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the court of appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing "more than a sheer
possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.'" Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.") However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. STANDARD FOR EVALUATING A MOTION FOR SUMMARY JUDGMENT
In the alternative, the Medical Defendants move for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure, which provides that "[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). "Through summary adjudication the court may dispose of those claims that do not present a 'genuine dispute as to any material fact' and for which a jury trial would be an empty and unnecessary formality." Goudy-Bachman v. U.S. Dept. of Health & Human Services, 811 F. Supp. 2d 1086, 1091 (M.D. Pa. 2011) (quoting Fed.R.Civ.P. 56(a)).
The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to an issue on which the nonmoving party bears the burden of proof, the moving party may discharge that burden by "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must show a genuine dispute by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" or "showing that the materials cited do not establish the absence . . . of a genuine dispute." Fed.R.Civ.P. 56(c). If the nonmoving 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 at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the nonmoving party provides merely colorable, conclusory, or speculative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A dispute about a material fact is genuine only if there is enough evidence to allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49. When "faced with a summary judgment motion, the court must view the facts 'in the light most favorable to the nonmoving party.'" N.A.A.C.P. v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
At the summary judgment stage, the judge's function is not to weigh the evidence or to determine the truth of the matter; rather it is to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The proper inquiry of the court "is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.
Summary judgment is warranted, after adequate time for discovery, against a party who 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. Celotex, 477 U.S. at 322. "Under such circumstances, 'there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Anderson v. CONRAIL, 297 F.3d 242, 247 (3d Cir. 2002) (quoting Celotex, 477 U.S. at 323). "[S]ummary judgment is essentially 'put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).
The Federal Rules of Civil Procedure and the Local Rules of this Court contain specific provisions addressing how parties should present the facts in support of or in opposition to a summary judgment motion. In that regard, Fed.R.Civ.P. 56(c)(1) provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by" either "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact." Local Rule 56.1, in turn, provides that a motion for summary judgment "shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." And Rule 56.1 provides that the party opposing a motion for summary judgment shall file a statement of facts in response to the moving party's statement. Further, Local Rule 56.1 provides that "[s]tatements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements" and that "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party." III. ANALYSIS
The Medical Defendants also argue that Plaintiff's request for punitive damages should be dismissed. I have recommended that Plaintiff's § 1983 claim for denial of medical care be permitted to proceed as to all Medical Defendants except Defendant Correct Care Solutions. Punitive damages may be available this claim. Therefore, I decline to address the Medical Defendants' argument in any further detail at this time. --------
A. TO THE EXTENT THE MEDICAL DEFENDANTS SEEK SUMMARY JUDGMENT BASED ON PLAINTIFF'S FAILURE TO EXHAUST, THEIR MOTION SHOULD BE DISMISSED WITHOUT PREJUDICE
This Court's Local Rule 56.1 provides that:
A motion for summary judgment . . . shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.This Rule also provides that the statement of material facts "shall include references to the parts of the record that support the statements." L.R. 56.1. This Court has observed that "[t]he purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions . . . by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposed to prove a disputed fact with admissible evidence." Kramer v. Peerless Indem. Ins. Co., No. 3:08-cv-2096, 2010 WL 11553711, at *1 (M.D. Pa. Apr. 21, 2010) (quoting Ziller v. Emerald Art Glass, No. 05-82, 2006 WL 2853976, at *1 (W.D. Pa. Oct. 4, 2006)). The Court in Kramer also observed that the moving party's failure to comply with Local Rule 56.1 "frustrates the Court's ability to decide a motion for summary judgment in an efficient and orderly manner." Id. Where, as here, the moving party fails to comply with Local Rule 56.1, the proper course of action is to dismiss its motion for summary judgment without prejudice. Id. (citing Magruda v. Belle Vernon Area Sch. Dist., No. 06-cv-00995, 2007 WL 2746719, at *1 (W.D. Pa. Sept. 17, 2007); Ziller, 2006 WL 2853976, at *2)).
The Medical Defendants argue that they are entitled to summary judgment because Plaintiff failed to exhaust his administrative remedies. However, their Motion is not accompanied by a separate statement of material facts. Accordingly, to the extent the Medical Defendants seek summary judgment, their Motion should be dismissed without prejudice to refile.
B. THE PARTIES AGREE THAT PLAINTIFF'S § 1983 CLAIMS AGAINST DEFENDANT CORRECT CARE SOLUTIONS SHOULD BE DISMISSED
In their Motion, the Medical Defendants argue that the § 1983 claims against Defendant Correct Care Solutions should be dismissed because Plaintiff has failed to plead enough facts to show that Defendant Correct Care Solutions was responsible for the allegedly unconstitutional acts of the other Medical Defendants. (Doc. 22, pp. 18-21). In his Brief in Opposition, Plaintiff "agrees to the dismissal of the section 1983 claims against defendant Correct Care Solutions . . ." (Doc. 27, p. 4). Accordingly, it is recommended that Plaintiff's § 1983 claim against Defendant Correct Care Solutions be dismissed.
C. WHETHER THE § 1983 CLAIMS AGAINST DEFENDANTS ABRAHAM, VOORSTAD, MORGAN, ODEM, AND HAMMER SHOULD BE DISMISSED DUE TO LACK OF PERSONAL INVOLVEMENT
The Medical Defendants argue that the Eighth Amendment medical care claims asserted against Defendants Abraham, Voorstad, Morgan, Odem, and Hammer should be dismissed because Plaintiff failed to plead enough facts to show the personal involvement of these Defendants. (Doc. 22, pp. 13-14).
Plaintiff's Eighth Amendment claim is brought under 42 U.S.C. § 1983. "Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States." Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). "It is well settled that § 1983 does not confer any substantive rights, but merely 'provides a method for vindicating federal rights elsewhere conferred.'" Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Cty., 757 F.3d 99, 104 (3d Cir. 2014)). To establish a claim under § 1983, Plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). Liability in a § 1983 action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct.
In Count II of his Amended Complaint, Plaintiff alleges:
60. Defendants Abraham , Voorstad, Morgan and Holdren all hold or held positions of medical director and/or physician at the medical departments at SCI Camp Hill and SCI Mercer and are/were employed by the Pennsylvania DOC.
. . . .
62. Defendant Hammer held the position of Physician Assistant at SCI Pittsburgh in or about 2016; defendants Hammer and Odem currently hold the positions of Physician Assistant at SCI Mercer; and both defendants are employed by the Pennsylvania DOC
63. Defendant Abraham , who was medical director at SCI Camp Hill in or about 2016, saw plaintiff in 2016 and failed to ensure that plaintiff was sent out for a surgical evaluation and treatment by a knee specialist outside the prison and that plaintiff have access to an assistive device to support his knee.
64. Defendant Voorstad , who, upon information and belief, was a medical director at SCI Camp Hill in or about 2016, saw plaintiff in 2016 and failed to ensure that plaintiff was sent out for a surgical evaluation and treatment by a knee specialist outside the prison and that plaintiff have access to an assistive device to support his knee.
65. Defendant Morgan , who as medical director at SCI Mercer in or about 2016 through 2018, saw plaintiff on numerous occasions in 2016 through 2018 and failed to ensure that plaintiff was sent out for a surgical evaluation and treatment by a knee specialist outside the prison and that plaintiff have access to an assistive device to support his knee.
66. Defendant Odem , who was a physician assistant at SCI Mercer in or about 2016 through 2018, saw plaintiff on numerous
occasions and failed to follow through on a recommendation that client be sent out for a surgical evaluation and treatment by a knee specialist and that plaintiff have access to an assistive device to support his knee.(Doc. 16, ¶¶ 60-67) (emphasis added).
67. Defendant Hammer , who was a physician assistant at SCI Pittsburgh in or about 2016 and currently at SCI Mercer, saw plaintiff in 2016 and in 2017 and 2018 and failed to follow through on a recommendation that plaintiff be sent out for a surgical evaluation and treatment by a knee specialist and that plaintiff have access to an assistive device to support his knee.
Plaintiff argues that the above-quoted allegations are enough to show that Defendants Abraham, Voorstad, Morgan, Odem, and Hammer were personally involved in the conduct underlying his Eighth Amendment medical care claim. (Doc. 27, p. 13). I agree. Plaintiff alleges he was not provided with adequate medical care for his right knee, and that the lack of appropriate care violated his rights under the Eighth Amendment to the United States Constitution. Without addressing whether this conduct arises to the level of a constitutional violation, the above-quoted allegations show that each Defendant was involved in providing medical care for Plaintiff's right knee impairment and therefore was personally involved in the alleged unconstitutional conduct.
D. WHETHER PLAINTIFF HAS PLEADED ENOUGH FACTS TO SHOW THAT DEFENDANTS ABRAHAM, VOORSTAD, MORGAN, ODEM, AND HAMMER WERE DELIBERATELY INDIFFERENT TO PLAINTIFF'S MEDICAL NEEDS
Next, the Medical Defendants argue that Plaintiff's allegations, taken as true, do not rise to the level of a constitutional violation. (Doc. 22, pp. 14-18). Specifically, the Medical Defendants argue that:
Plaintiff has failed to appropriately plead that Doctors Abraham, Voorstad, and Morgan, and Physician's Assistants Odem and Hammer were (1) ever aware of his serious medical need relative to his right knee; and (2) personally involved in depriving him reasonable healthcare or treatment. Additionally, Plaintiff has not alleged any facts showing how these Defendants perpetrated such an Eighth Amendment deprivation. Plaintiff utterly fails to even mention Doctors Abraham, Voorstad, and Morgan, and Physician's Assistants Odem and Hammer in the fact section of his First Amended Complaint, other than to very generally state, "Plaintiff saw defendants Abraham, Morgan, Holdren, Voorstad, Odem and Hammer at SCI Camp Hill, SCI Pittsburgh and MCI Mercer from 2016 to the present time for diagnosis and treatment of severe pain in his right knee and to request a referral to an outside specialist for a surgical consultation," and that the "medical defendants have denied, delayed and/or put plaintiff on a waitlist for the past 26 months to see a specialist for a surgical consultation, evaluation and/or treatment to repair the major damage to his knee." (ECF No. 16 at ¶¶ 49-50). While Plaintiff's allegations against Dr. Holdren are set forth with some level of specificity, they still fall short of rising to the level of deliberate indifference as they indicate that Plaintiff was not qualified to see a specialist and/or that he remained on the waitlist to see a specialist. Id. at ¶ 48. Plaintiff also contends that Dr. Holdren did not follow-up with him, however, in reviewing the remaining allegations of his First Amended Complaint in conjunction with his grievance records, it does not appear that such follow-up measures were medically necessary.(Doc. 22, p. 16).
In response, Plaintiff argues:
The Amended Complaint sufficiently alleges that plaintiff's knee injury is a serious medical need: the injury has caused him severe and
continuing pain for the past almost two and a half years. (Amended Complaint ¶¶ 41-43); he was without assistive devices for his knee on many occasions from 2016 to present time; he suffered with increased pain to both knees. (Amended Complaint ¶ 45); and plaintiff has suffered severe pain, swelling, discomfort, difficulty with mobility, difficulty sleeping and psychological pain as a result of the knee injury and the medical defendants' failure to provide adequate treatment. (Amended Complaint ¶¶ 51-52).(Doc. 27, pp. 16-17) (internal footnotes omitted).
The Amended Complaint also sufficiently alleges that each of the medical defendants was deliberately indifferent to plaintiff's severe knee condition. Plaintiff saw an outside orthopedic specialist approximately one month after the injury occurred and not again until November 2018, twenty-seven months later, after the Amended Complaint was filed. (Amended Complaint ¶ 37). Despite the fact that the orthopedic specialists instructed plaintiff to follow up with surgical consultations (and the most recent specialist in November 2018 recommended a consultation for an immediate knee replacement), physical therapy and that he should have a knee brace at all times, none of these have occurred. (Amended Complaint ¶ 40). Plaintiff notified the medical defendants orally and in writing numerous times about his severe knee pain and his request for help and they failed to do anything to give him relief, with the exception of a knee sleeve and/or brace on sporadic occasions. (Amended Complaint ¶¶ 46-50).
The Eighth Amendment protects prisoners from the infliction of cruel and unusual punishment. U.S. Const. amend. VIII. To prevail on any Eighth Amendment claim, an inmate must show: (1) a deprivation that is objectively, "sufficiently serious;" and (2) "a sufficiently culpable state of mind" of the defendant official. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Beyond this general standard, there are different types of Eighth Amendment claims, and different criteria apply depending upon the type of violation alleged. See Hudson v. McMillian, 503 U.S. 1, 8 (1992).
As this Court has previously explained:
Deliberate indifference to a serious medical need involves the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104, 97 S.Ct. 285. Such indifference may be evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or "persistent conduct in the face of resultant pain and risk of permanent injury," White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).Bennett v. PrimeCare Med. Inc., No. 3:18-CV-517, 2018 WL 6072126, at *4 (M.D. Pa. Sept. 14, 2018), report and recommendation adopted, 2018 WL 6062306 (M.D. Pa. Nov. 20, 2018). A prison official acts with deliberate indifference to an inmate's serious medical need 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).
However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106, 97 S.Ct. 285. "Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Thus, such complaints fail as constitutional claims under § 1983 since "the exercise by a doctor of his professional judgment is never deliberate indifference. See e.g. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) ('[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.')". Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997).
To the extent the Medical Defendants argue that the Amended Complaint fails to show that Defendants Abraham, Voorstad, Morgan, Odem and Hammer were not aware of the seriousness of Plaintiff's knee impairment, or that the lack of a timely consultation with a specialist, lack of physical therapy, and lack of consistent access to a knee brace and assistive device would result in an excessive risk to Plaintiff's health, I disagree. Plaintiff alleges that each of these Defendants "saw" him to evaluate his knee impairment. Thus, it can reasonably be inferred from Plaintiff's allegations that the Medical Defendants were aware of Plaintiff's knee impairment and the potential health risks that could result from a lack of treatment.
To the extent the Medical Defendants argue that Plaintiff did not allege enough facts to show that the Medical Defendants were "personally involved in depriving him reasonable healthcare or treatment," I am not persuaded. Plaintiff alleged that the Medical Defendants provided treatment for his knee impairment. It can reasonably be inferred that, since the Medical Defendants were the ones who examined Plaintiff for his knee pain, they had some manner of control over the care he received. Thus, I find that Plaintiff has sufficiently alleged that the Medical Defendants were personably involved in depriving Plaintiff of reasonable healthcare treatment.
Last, the Medical Defendants argue:
Neither Plaintiff's grievance records nor his recitation of the facts within his First Amended Complaint suggest a violation of the Eighth Amendment's Cruel and Unusual Punishment clause by the individual Medical Defendants. Rather, Plaintiff's First Amended Complaint and grievance records demonstrate that these Defendants provided adequate and reasonable medical care in treating Plaintiff's right knee. See generally, ECF No. 16, and Exhibit A. Upon being transferred to SCI-Camp Hill, the Medical Defendants issued a restriction that Plaintiff was to be housed on a bottom bunk due to his chronic knee condition. (ECF No. 16 at ¶ 22). Additionally, in April of 2016, the medical department issued a written physician's order stating that Plaintiff would be restricted to the ground floor and a lower bunk due to his chronic right knee condition. Id. at ¶ 23. After his fall on July 26, 2016, Plaintiff was taken to the prison infirmary where a decision was made to transfer him via ambulance to the local emergency room. Id. at ¶ 36. He was also placed in the infirmary for twenty-four (24) hours upon his return from the hospital. Id. at ¶ 38. He was sent to see an outside orthopedic physician on August 29, 2016, at which time surgical intervention was not recommended. See Exhibit A, p. 20. He made numerous sick call visits for which he was seen and was prescribed ibuprofen, a knee brace, a knee sleeve, a cane, and a wheelchair. (ECF No. 16 at ¶ 43). See also, Exhibit A, p. 39. The only time Plaintiff was "denied" anything relative to his right knee condition was when his brace(s) were confiscated per DOC security protocol which was explained to him by the medical department. See, Exhibit A, p. 51).(Doc. 22, p. 17). I am not persuaded by this argument. To the extent the Medical Defendants argue that Plaintiff's allegations, as pleaded, cannot show that the Medical Defendants acted with deliberate indifference because surgery was not recommended in August 2016, Plaintiff's Amended Complaint states that "Plaintiff saw an orthopedic physician outside the prison on one occasion on August 19, 2016, at which time the doctor attempted without success to drain fluid from plaintiff's knee and recommended a follow-up surgical consultation, physical therapy and a knee brace and/or assistive device." (Doc. 16, ¶ 39). Plaintiff also alleges that he did not have consistent access to a cane or to a knee brace. (Doc, 16, ¶ 44). Although the Medical Defendants argue otherwise, their arguments are based on documents submitted outside the pleadings. These dueling allegations appear to suggest that there is a dispute of fact as to what this outside orthopedist recommended and whether the Medical Defendants denied Plaintiff access to his assistive devices. However, as noted above, when evaluating a Motion to Dismiss the Court must accept all of Plaintiff's allegations as true. Accordingly, accepting the allegations in Plaintiff's Amended Complaint as true, I am not persuaded by the Medical Defendants' argument that Plaintiff's Eighth Amendment claim should be dismissed because a surgical consultation was not recommended in 2016. Furthermore, the issue of whether or not a surgical consultation was recommended in 2016 would be better addressed during the evaluation of a properly filed motion for summary judgment.
E. WHETHER PLAINTIFF HAS PLEADED ENOUGH FACTS TO SHOW THAT DEFENDANTS CORRECT CARE SOLUTIONS, ABRAHAM, VOORSTAD, MORGAN, ODEM, AND HAMMER WERE NEGLIGENT
Last, the Medical Defendants argue that Plaintiff has failed to plead a viable medical malpractice claim against Plaintiff. The Medical Defendants' argument is two-fold. First the Medical Defendants argue that, despite Plaintiff's allegations, it is DOC Security, and not the Medical Defendants who can make decisions about what types of braces and assistive devices may be used in the institution. Second, the Medical Defendants allege that Plaintiff has failed to plead a breach of duty by the Medical Defendants, because Plaintiff failed to allege any personal involvement by the Medical Defendants.
With respect to their first argument, the Medical Defendants assert:
To the extent that Plaintiff is asserting that the Medical Defendants are somehow negligent for not giving Plaintiff his knee brace(s) or other assistive decides per DOC policy, such a claim fails. As set forth above, it is clear that the decision on whether or not to give Plaintiff his knee brace(s) while he was in the RHU was not the Medical Defendants' decision. This is much akin to the situation where an insurance company (i.e. the DOC) refuses to authorize payment for a particular treatment. While there is substantial law which suggests that the insurance company can be liable to the patient for refusing to pay for treatment that the patient needs there is no law which suggests that the physician is liable for the insurance company's refusal. Applying that rationale to the instant matter and considering the relationships and limitations that exist due to the Plaintiff's status as an inmate, it is clear that Plaintiff has not sufficiently plead a cause of action for medical malpractice. Plaintiff had no pled a single fact which suggests that the Medical Defendants had the ability to override the DOC security policy. To the contrary, Plaintiff has specifically stated that
he was advised by medical staff that "its up to security to approve the brace, I have to suffer till security approves it." See Exhibit A, p. 51.(Doc. 22, pp. 23).
To the extent the Medical Defendants argue that they were not negligent because they were not responsible for the confiscation of his knee brace and assistive device, I am not persuaded. First, in supporting their argument the Medical Defendants rely on materials outside of the pleadings. Second, Plaintiff's Amended Complaint attributes the responsibility to the Medical Defendants. Accepting Plaintiff's allegations as true, I find that Plaintiff has alleged enough facts for his negligence claim to proceed. Furthermore, the Medical Defendants' argument that it was DOC Security, and not the Medical Defendants, who confiscated Plaintiff's assistive devices would be better addressed in a properly filed motion for summary judgment.
With respect to their second argument, the Medical Defendants assert:
Furthermore, when looking at the actual standard for traditional medical malpractice cases, Plaintiff has plead no facts which would support his claim. The elements of a claim of medical malpractice are: 1) a duty owed by the physician to the patient; 2) a breach of that duty by the physician; 3) the breach proximately caused the harm suffered; and 4) damages suffered were a direct result of the harm. Grossman v. Barke, 2005 Pa. Super. 45, (Pa. Super. 2005). As set forth in great detail supra, Plaintiff does not plead sufficient personal involvement of any of the Medical Defendants—in fact, some of the individual Medical Defendants are only generally mentioned once in the fact section of Plaintiff's First Amended Complaint as having seen Plaintiff in a DOC Facility from 2016 to the present time—no specific dates, times or details of the purported encounters are set forth. (ECF
No. 16 at ¶¶ 48-49). This mere mentioning of the individual Medical Defendants does not satisfy federal pleading standards, much less, establish the requisite elements for a medical malpractice claim. Accordingly, and without reference to the other elements, the Plaintiff has failed to plead any breach for which the Medical Defendants can be liable.(Doc. 22, pp. 23-24).
For the reasons stated in Section III. C. I am not persuaded by the Medical Defendants' argument that they could not have breached a duty of care owed to Plaintiff due to a lack of personal involvement in his care. At the Motion to Dismiss stage these allegations are sufficient. IV. RECOMMENDATION
It is RECOMMENDED that the Medical Defendants' Motion for Summary Judgment, or in the alternative, to Dismiss (Doc. 21) be GRANTED IN PART and DENIED IN PART as follows:
(1) The Medical Defendants' Motion for Summary Judgment should be DISMISSED without prejudice.Date: August 6, 2019
(2) Plaintiff's § 1983 claim against Defendant Correct Care Solutions be DISMISSED.
(3) All other claims should be allowed to proceed.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.Date: August 6, 2019
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge