Opinion
CIVIL NO: 3:19-CV-0092
04-21-2021
SEAN M. FRYER, Plaintiff, v. MICHELLE OLSHEFSKI, et al., Defendants.
(Judge Mariani) () REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff claims that a psychiatrist at the Lackawanna County Prison violated his constitutional right to privacy by disclosing confidential psychiatric information to an Assistant United States Attorney who then used that information against the plaintiff in court. The psychiatrist, who is the only remaining defendant, filed a motion for summary judgment. Because the plaintiff has not presented evidence from which a reasonable trier of fact could conclude that the psychiatrist disclosed confidential psychiatric information to the Assistant United States Attorney, we recommend that the court grant the motion for summary judgment.
II. Background and Procedural History.
Plaintiff Sean M. Fryer, who is representing himself, began this action by filing a complaint. After screening the complaint, we concluded that it failed to state a claim upon which relief can granted, and we granted Fryer leave to file an amended complaint. Fryer then filed an amended complaint naming three defendants: (1) Michelle Olshefski, an Assistant United States Attorney, (2) Satish Mallik, M.D.; and (3) Sargent Hebron. The court dismissed the claims against defendants Olshefski and Hebron; the only remaining defendant is Dr. Mallik.
At the time he filed the complaint and amended complaint, Fryer was a pretrial detainee at the Lackawanna County Prison. He claims that Dr. Mallik, his psychiatrist at the Lackawanna County Prison, violated his constitutional right to privacy by disclosing his confidential psychiatric information to Olshefski, who then used that information during a detention hearing in connection with federal criminal charges then pending against him.
The court may take judicial notice of adjudicative facts that are not subject to reasonable dispute because they are "generally known within the trial court's territorial jurisdiction" or because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). The docket and documents in Fryer's criminal case—United States v. Fryer, 3:18-cr-00414 (M.D. Pa.)—are public records of which we can take judicial notice. See Wilson v. McVey, 579 F. Supp. 2d 685, 688 (M.D. Pa. 2008) (taking judicial notice of court docket); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (stating that court "may take judicial notice of another court's opinion—not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity"). Here, the docket sheet from Fryer's criminal case shows that Fryer pleaded guilty to online enticement in violation of 18 U.S.C. § 2422(b), and in January 2021, Judge Mariani sentenced him to144 months imprisonment followed by five years of supervised release. Fryer is currently incarcerated at the United States Penitentiary at Lewisburg. See doc. 32 (notice of change of address) in the instant case. --------
We entered case management orders setting forth discovery and dispositive motions deadlines. After the discovery deadline passed, but within the extended deadline for filing dispositive motions, Dr. Mallik filed a motion for summary judgment. See doc. 26. That motion has been briefed, see docs. 27, 30, 31, and for the reasons that follow, we recommend that the court grant the motion.
III. Summary Judgment Standards.
Dr. Mallik moves 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 a sufficient evidentiary basis that would 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. Consol. Rail Corp., 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).
IV. Material Facts.
Local Rule 56.1 requires a party moving for summary judgment to file "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." M.D. Pa. L.R. 56.1. The Rule, in turn, requires the non-moving party to file "a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required [by the moving party], as to which it is contended that there exists a genuine issue to be tried." Id. The "[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 "[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." Id.
Here, Dr. Mallik filed a statement of material facts in support of his motion for summary judgment. Fryer has not, however, filed a response to Dr. Mallik's statement of material facts. Thus, in accordance with Local Rule 56.1, we deem Fryer to have admitted the following facts set forth by Dr. Mallik.
On or about September 2018, Fryer was arrested on federal charges pending against him in the United States District Court for the Middle District of Pennsylvania. Doc. 26-3 (Dr. Mallik's statement of material facts) ¶ 1. Fryer was incarcerated at the Lackawanna County Prison pending the disposition of his criminal case. Id. ¶ 3. As part of its prosecution of Fryer, the United States Attorney's Office forwarded a subpoena to the Lackawanna County Prison requesting copies of Fryer's medical records. Id. ¶ 7. The subpoena was directed to the attention of the "Medical Records Department/Dr. Zaloga." Id. As a result of the subpoena, the United States Attorney's Office received certain medical records from the Lackawanna County Prison concerning Fryer. Id. ¶ 8.
Assistant United States Attorney Michelle Olshefski was in charge of Fryer's prosecution. Doc. 26-3 ¶ 2. In December 2018, Fryer was brought before the court for a detention hearing. Id. ¶4. At this hearing, according to Fryer, Olshefski used his confidential psychiatric information from the Lackawanna County Prison. Doc. 12 at 3. But neither Olshefski nor anyone from the United States Attorney's Office spoke with or contacted Dr. Mallik regarding Fryer, his mental-health status, or his medical records. Id. ¶ 9. Fryer is not aware of how the United States Attorney's Office received his mental health information or his medical records, and he does not have evidence that Dr. Mallik provided the United States Attorney's Office with this information. Id. ¶¶ 10, 11.
V. Discussion.
Fryer claims that Dr. Mallik violated his constitutional right to privacy by disclosing his confidential psychiatric information to the United States Attorney's Office. Dr. Mallik contends that there is no genuine factual dispute that he did not, in fact, disclose Fryer's mental health or medical information. Thus, he asserts that he is entitled to summary judgment. We agree.
Fryer's claim against Dr. Mallik 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). Section 1983 "does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right." Id. To establish a claim under § 1983, the 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 42 U.S.C. § 1983 action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. Thus, respondeat superior cannot form the basis of liability. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 290 (3d Cir. 2018). In other words, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). And so, a constitutional deprivation cannot be premised merely on the fact that the defendant was a supervisor when the incidents set forth in the complaint occurred. See Alexander v. Forr, 297 F. App'x 102, 104-05 (3d Cir. 2008). Rather, "[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must [show] that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.
Here, it is undisputed that the United States Attorney's Office received Fryer's medical records as a result of a subpoena for those records directed to the Lackawanna County Prison. That subpoena was not directed to the attention of Dr. Mallik, and Fryer has not pointed to any evidence that Dr. Mallik was involved in responding to that subpoena. Thus, Fryer has not presented evidence from which a reasonable trier of fact could conclude that Dr. Mallik was personally involved in the alleged violation of Fryer's right to privacy by disclosing his confidential psychiatric information to the prosecution.
Although in his brief Fryer seeks to hold Dr. Mallik liable because he was the head psychiatrist at the Lackawanna County Prison, respondeat superior cannot form the basis of liability under § 1983. Fryer also contends in his brief that he was not made aware of the subpoena for his medical records, and he suggests that the subpoena was improper and that the Lackawanna County Prison's response to subpoena was mishandled. Whether the subpoena was proper, whether Fryer should have been made of aware of the subpoena, and whether the prison mishandled the response to the subpoena are not relevant to the issue of whether Dr. Mallik was personally involved in disclosing Fryer's confidential information.
In sum, because Fryer has not presented evidence from which a reasonable trier of fact could conclude that Dr. Mallik was personally involved in disclosing his confidential psychiatric information, Dr. Mallik is entitled to summary judgment.
VI. Recommendation.
Based on the foregoing, we recommend that the court grant Dr. Mallik's motion (doc. 26) for summary judgment and enter summary judgment in favor of Dr. Mallik and against Fryer.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
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.
Submitted this 21st day of April, 2021.
S/Susan E . Schwab
Susan E. Schwab
United States Magistrate Judge