Smithv.Dr. Ostrum

United States District Court, D. DelawareJun 29, 2000
C.A. No. 97-689-SLR (D. Del. Jun. 29, 2000)

C.A. No. 97-689-SLR

June 29, 2000

James Smith Sr., pro se,

Christian J. Singewald, Esquire of White Williams, LLP Willmington, Delaware, Council for defendants.




Plaintiff James Smith, Sr. filed this suit pursuant to 42 U.S.C. § 1983 against defendants Dr. Ostrum of Prison Health Services, Inc., Dr. Ivens of Prison Health Services, Inc., and Prison Health Services, Inc. ("PHS"). Plaintiff is an inmate at Gander Hill Prison in Wilmington, Delaware. In his complaint, plaintiff alleges that defendants denied him adequate medical care in violation of the Eighth Amendment of the United States Constitution.

Currently before the court is Dr. Ivens' motion for summary judgment and PHS's motion to dismiss. Also before the court is plaintiff's motion for injunctive relief. (D.I. 5) Dr. Ostrum has not answered plaintiff's complaint and, consequently, the court has entered a default in appearance against him. (D.I. 22) The court has jurisdiction over this matter by virtue of 28 U.S.C. § 1331. For the following reasons, the court shall grant defendants' motions and deny plaintiff's motions.


The following facts are gleaned from plaintiff's complaint and from his medical records and are presented in a light most favorable to plaintiff. Plaintiff's claim arises out of medical treatment that was prescribed by defendants at the Gander Hill Prison. Although this memorandum opinion pertains only to the motions filed by PHS and Dr. Ivens, the court shall discuss plaintiff's allegations regarding Dr. Ostrum for purposes of clarity.

Plaintiff alleges, without supporting evidence, that in 1996 he suffered a heart attack and was advised that he needed a heart transplant. (D.I. 4; D.I. 5 at 4) Plaintiff further contends, without supporting evidence, that in 1997, Dr. Ostrum allegedly discontinued plaintiff's heart medication. Plaintiff also claims that Dr. Ostrum terminated his diabetic snack privileges. (D.I. 5 at 3) Plaintiff claims, as a result, that he suffered chest discomfort and numbness in the left side of his body. (D.I. 19, Ex. B at 100) Plaintiff complained about Dr. Ostrum's alleged misconduct by filing a medical grievance form with the prison on August 14, 1997. That grievance form reads, in pertinent part, as follows:

[I am a] diabetic, I have a heart condition. I also have asthma and arthritis. I also have a liver condition. I had a major heart attack on 6/21/96. [In] April, Dr. Ostrum refused to give me proper medical treatment, and discontinue[d] all of the medications that I need. Dr. Ostrum also stopped my evening diabetic snack. Now, I am having a lot of chest discomfort, numb[ness] on the left shoulder, arm, and side. Tightness and squeezing pain.

(D.I. 4 at 7) The prison records reveal that plaintiff had visited the mental health department and complained of anxiety over the modification of his medication. (D.I. 19, Ex. B at 100)

Plaintiff continued to complain about chest pains and recurring chest problems. He was referred for an echocardiogram, which was conducted on October 7, 1998. (D.I. 19, Ex. B at 11) The test results indicated that his body could tolerate reasonable exercise. (D.I. 19, Ex. B at 20-24) His medical records reflect that plaintiff visited the clinic on November 16, 1998 to address the results of his echocardiogram. While there, plaintiff denied any cardiovascular problems, became agitated, and departed the clinic without any explanation. (D.I. 19, Ex. B at 89)

With respect to codefendant Dr. Ivens, plaintiff asserts that Dr. Ivens changed his medication on October 23, 1998, which caused plaintiff pain and suffering. (D.I. 5 at 4) There is evidence to substantiate plaintiff's claim that Dr. Ivens modified plaintiff's medication. (D.I. 19, Ex. B at 54) However, the only evidence that supports plaintiff's argument that this modification caused plaintiff unnecessary suffering is that he filed a sick call slip which indicated that he wanted to speak to a doctor regarding his medication. (D.I. 19, Ex. B at 86, 90) This slip does not give any specific indication as to the nature of his question or of any symptoms.

Plaintiff alleges that, on October 29, 1998, prison personnel took him to the prison infirmary because he was suffering from chest pain due to the termination of his medication by Dr. Ivens six days earlier. (D.I. 5 at 5) There is no evidence to validate plaintiff's claim that he was taken to the infirmary or that he suffered from chest pain on that day.

Defendants contend that they acted in good, faith with the best interest of plaintiff in mind and that he received appropriate medical care.


A. PHS's Motion to Dismiss

PHS moves to dismiss on the grounds that plaintiff has failed to state a claim for which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss, a court primarily must consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case as well as exhibits attached to the complaint may also be taken into account. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). In ruling on a 12(b)(6) motion, the factual allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam). Moreover, a court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from those allegations. See Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746 (1963); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991) Accordingly, the court must resolve any ambiguities concerning the sufficiency of the claims in favor of the plaintiff. See Hughes v. Rowe, 449 U.S. 5, 10 (1980) (per curiam). Thus, the "court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Hishon v. King Spalding, 467 U.S. 69, 73 (1984); accord Ransom v. Mazzaro, 848 F.2d 398, 401 (3d Cir. 1988). The court must construe handwritten pro se complaints (such as the one at bar) liberally and must hold them to "less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Courts may dismiss such complaints for failure to state a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (citation and internal quotations omitted)

In order to state an Eighth Amendment claim for inadequate medical care, plaintiff must show that PHS employees violated a two part test. Plaintiff must show that PHS acted with deliberate indifference towards him and that he had serious medical needs. Estelle, 429 U.S. at 104. As with all § 1983 claims, plaintiff must show that a state actor deprived him of a constitutionally protected right. Parratt v. Taylor, 451 U.S. 527, 535 (1981)

PHS does not dispute that it is a state actor for § 1983 purposes. Accordingly, the court shall treat it as such.

At the outset, the court notes that plaintiff premises his claim against PHS on the doctrine of respondeat superior. Section 1983 liability claims cannot be premised on a theory of respondeat superior.Durmer v. O'Carroll, 991 F.2d 64, 69 n. 14 (3d Cir. 1993). In order to hold PHS liable, plaintiff would have to show that PHS had an established "policy" or "custom" that resulted in a deliberate indifference to plaintiff's serious medical needs. Lawson v. Correctional Officer Burns, No. Civ.A.94-0780, 1994 WL 583264, at *2 (E.D. Pa. Oct. 24, 1994) Plaintiff's complaint lacks any allegations concerning a PHS policy or custom that resulted in a deliberate indifference to his alleged serious medical needs. See Estelle, 429 U.S. at 106. Plaintiff instead alleges that PHS personnel modified his medication (D.I. 4 at 7) and that PHS employees did not use proper "professional judgment." (D.I. 5 at 4) Mere disagreement with a course of treatment establishes neither a policy nor a custom. Indeed, courts grant prison authorities a significant amount of "latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67. Moreover, plaintiff's allegations do not constitute an assertion that PHS intentionally, knowingly, or recklessly modified his medication in order to cause him pain or suffering. Therefore, plaintiff's claim against PHS must be dismissed.

B. Dr. Ivens' Motion for Summary Judgment

Dr. Ivens moves for summary judgment on the grounds that plaintiff has failed to prove that he deliberately denied plaintiff adequate medical care.

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

To with stand summary judgment on an Eighth Amendment claim, plaintiff must show that Dr. Ivens acted with deliberate indifference towards plaintiff's serious medical needs. Estelle, 429 U.S. at 106; see also West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978) ("This standard is two-pronged. It requires deliberate indifference on the part of prison officials and it requires the prisoner s medical needs to be serious.") Deliberate indifference is demonstrated when "prison authorities prevent an inmate from receiving recommended treatment for serious medical needs or deny access to a physician capable of evaluating the need for such treatment." Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). A prison official can be found to have violated an inmate's Eighth Amendment rights only if the official "knows 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, 511 U.S. at 837. A medical need is "serious," in satisfaction of the second prong of the Estelle test, if it is "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981)

In the case at bar, the evidence does not show that Dr. Ivens acted with deliberate indifference towards plaintiff's serious medical needs. It is evident that his claim is based solely on the fact that Dr. Ivens modified his medication. (D.I. 5 at 4) Plaintiff alleges that Dr. Ivens changed his medication on October 23, 1998. (D.I. 5 at 4) The medical records indicate that Dr. Ivens modified plaintiff's medication with a communication, stating in part, "chronic care f[ollow] u[p] please in less than one month." (D.I. 19, Ex. B at 54) Dr. Ivens' actions do not indicate deliberate indifference towards plaintiff. Plaintiff would have to prove that Dr. Ivens conduct was "obdurate and wanton." Jones, 1994 WL 197176, at *3. Far from meeting this standard, the facts indicate that Dr. Ivens treated plaintiff's needs with appropriate medical care. The court is not in a position to second guess Dr. Ivens' diagnosis and treatment of plaintiff.

For purposes of this motion only, plaintiff has established that he has a serious medical condition. Specifically, it appears that he suffers from coronary artery disease. (D.I. 19, Ex. B at 21)

Plaintiff also asserts that he was taken to the "prison infirmary because of chest pain" caused by Dr. Ivens' modification of his medication. (D.I. 5 at 5) However, there is no indication in the medical records that plaintiff visited the infirmary on or around that date. There is, however, a substantial amount of proof that plaintiff visited the infirmary and received medical care, including prescription medication, during the period of the alleged constitutional violations. (D.I. 19, Ex. B at 49-209) Mere disagreement with Dr. Ivens' medical judgment does not give rise to a § 1983 claim.

In sum, the facts (even when construed in a light most favorable to plaintiff) do not support a § 1983 claim against Dr. Ivens. For this reason, the court shall grant Dr. Ivens' motion for summary judgment. Because plaintiff has not submitted evidence of irreparable harm, the court shall deny his motion for injunctive relief. Plaintiff's motion for appointment of counsel is denied.


For the aforementioned reasons, the court shall grant defendant PHS's motion to dismiss and Dr. Ivens' motion for summary judgment. An appropriate order shall issue.