Opinion
Civil Action 20-897
10-06-2022
JAMAR GASTON Plaintiff, v. NURSE LORY, NURSE KEVIN and NURSE LAVERN, Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that Plaintiff's Motion for Summary Judgment (ECF No. 56) be denied and Defendants' Motion for Summary Judgment (ECF No. 63) be granted.
II. Report
A. Relevant Procedural History
In this pro se civil rights lawsuit, Plaintiff Jamar Gaston (“Gaston”) filed a complaint alleging that he did not receive medical care during his pretrial detention at the Washington County Correctional Facility (“WCCF”). (ECF No. 7.) Named as Defendants in the Complaint are three WCCF nurses: Nurse Lory, Nurse Kevin, and Nurse Lavern. (Id.)
Gaston was released from WCCF a few weeks after he filed this suit. (ECF No. 14.)
For consistency, the undersigned will refer to Defendants as identified in the case caption but acknowledges that Defendants' Motion for Summary Judgment asserts that the correct Defendants are: Lori Fischer (incorrectly identified as “Nurse Lory”), Kevin Spragg (incorrectly identified as “Nurse Kevin”), and Lavern Rossi (incorrectly identified as “Nurse Lavern”). (ECF No. 63 at 1.)
All Defendants moved to dismiss for failure to state a claim. (ECF No. 28.) The undersigned recommended that the motion be denied. (ECF No. 38.) District Judge Christy Criswell Wiegand adopted the Report and Recommendation. (ECF No. 42.)
Thus, this matter proceeded through discovery, and a summary judgment briefing order was issued. Presently before the Court are two motions for summary judgment, one filed by Gaston (ECF No. 56) and another filed by Defendants (ECF No. 63).
Gaston filed a motion for summary judgment, supporting brief, and exhibits. (See ECF No. 56; ECF No. 57, ECF Nos. 57-1 to 57-31.) Although Gaston did not file a separate concise statement of material facts, his motion contained a list of “Undisputed Facts” with citations to the record. (ECF No. 56.) Defendants responded to these “Undisputed Facts” as if they were Gaston's concise statement of material facts. (ECF No. 72.)
Defendants filed their own motion for summary judgment, supporting brief, exhibits, and concise statement of material facts. (See ECF No. 63; ECF Nos. 63-1 to 63-22; ECF No. 64; ECF No. 65.) Gaston responded to Defendants' motion, concise statement of material facts and Defendants' supporting brief and filed additional exhibits (some of which are duplicative of other exhibits on the record). (ECF No. 69; ECF No. 70; ECF Nos. 71-1 to 71-47.) In responding, Gaston also filed his “Own Statements of Material Facts” to be considered with his motion for summary judgment; however, this document contains only legal conclusions. (ECF No. 71.)
To resolve the parties' cross-motions for summary judgment, the Court will consider Gaston's “Undisputed Facts” and Defendants' response thereto (ECF No. 56; ECF No. 72.) along with Defendants' concise statement of material facts and Gaston's response thereto. (ECF No. 65; ECF No. 69).
B. Relevant Factual Background
On October 26, 2019, Gaston was arrested and incarcerated at WCCF. (ECF No. 56 ¶¶ 1-2; ECF No. 72 ¶¶ 1-2.) Although Defendants dispute that Gaston sustained any injuries from arresting officers, the police report notes that officers used “tactical strikes” to his torso and face during the arrest. (ECF No. 56 ¶ 1; ECF No. 72 ¶ 1; ECF No. 57-26.) The same day, Gaston was placed in the WCCF medical clinical unit for intake processing. (ECF No. 56 ¶ 15; ECF No. 72 ¶ 15; ECF No. 65 ¶ 8; ECF No. 69 at 17 ¶ 8.)
Nurse Kevin could not complete the intake process on October 26, 2019, because Gaston did not answer questions after certain screening questions related to suicide risks were asked. (ECF No. 65 ¶ 8; ECF No. 69 at 17 ¶ 8; ECF No. 63-4; ECF No. 63-10 at 1 (“refused to answer any more questions”).) Gaston asserts, without citation to the record, that he could not speak during the evaluation because of a swollen jaw and instead wrote down a request for Tylenol and to go hospital for an evaluation of his ribs due to pain. (ECF No. 56 ¶ 18.) However, this assertion is not properly before the Court in the factual record at summary judgment in any document, affidavit, deposition, verified complaint, or other evidence. Further, this (unsupported) assertion by Gaston contradicts his documented grievance against Nurse Kevin (on an unrelated issue), in which he recounts that “during my intake check up from Nurse Kevin[,] I informed Nurse Kevin about the pain I was in from the injuries sustained on 10-26-19. He checked me and said ‘your injuries are not that bad you don't need to see a doctor[;] if your condition worsens sign up for a sick call.'” (ECF No. 71-24.)
On October 30, 2019, Nurse Kevin completed Gaston's intake screening. (ECF No. 65 ¶ 9; ECF No. 69 at 18 ¶ 9.) Although the “trauma/injury” portion of the intake form states that there was “no prob[lem] medically” and that Gaston could sleep on a top bunk, Gaston disputes these findings based on the results of subsequent examinations by other medical practitioners on November 6, 2019. (ECF No. 57-9; ECF No. 69 at 18 ¶ 9.)
On November 4, 2019, Gaston reported that “[his] vision in [his] left eye is going blurry [and he] can barely see out of it.” (ECF No. 65 ¶ 10; ECF No. 69 at 19 ¶ 10; ECF No. 63-5.)
Around 7:30 a.m. on November 5, 2019, Gaston informed Nurse Lavern that he started feeling dizzy, was coughing up blood, and was having head pain that had been occurring for the past three to four days. (ECF No. 56 ¶¶ 30-32 (“approximately sometime in the morning” and “the incident at 7:30 a.m. with [] Nurse Lavern”); ECF No. 72 ¶¶ 30-32 (denying only the characterization of a serious medical need and deliberate indifference); ECF No. 71-27 (“[a]pproximately 7:40”); ECF No. 7 at 2 (verified complaint).) Gaston filed a grievance alleging Nurse Lavern did not take any action and that she stated that “they don't care if you['re] dying, there[']s nothing I can do[;] sign up for a sick call.” (ECF No. 71-27; ECF No. 7 at 2.) However, as Nurse Lavern points out in her affidavit, she scanned Gaston's sick call slip dated November 4, 2019 at 8:41 a.m. that same day. (See ECF No. 62-21 at 7; ECF No. 63-16 at 3-4.) Later that day at 12:30 p.m., an individual named Klobuchar sent Gaston a message saying “I spoke with the head nurse. You are scheduled to be seen tomorrow. Make sure you tell the doctor all your medical symptoms.” (ECF No. 5715; ECF No. 71-16.)
Although Defendants contend that there is nothing in the record referencing “any issues with coughing up blood” (ECF No. 72 ¶ 29), Gaston was diagnosed by Dr. Boehme with hemoptysis. (ECF No. 71-33 at 2.)
Other than coughing up blood, Defendants do not dispute that Gaston was experiencing such symptoms, rather they argue that such Gaston cannot demonstrate that such symptoms were serious medical needs or that Defendants were deliberately indifferent. (ECF No. 72 ¶¶ 30-32.)
The Court may consider the factual statements in the verified complaint if they are based on Gaston's personal knowledge. Fleming v. Pennsylvania Dept. of Corrections, 1:19-CV-00113-RAL, 2022 WL 1239875, at *2 (W.D. Pa. Apr. 27, 2022) (collecting cases).
On November 6, 2019, Gaston was seen by WCCF physician Dr. Kevin Boehme, who noted pain and swelling in the right occipital area, complaints of headache, blurred vision in the left eye, right lateral rib pain, and hemoptysis (coughing up blood). (ECF No. 65 ¶ 11; ECF No. 69 at 19 ¶ 11; see ECF No. 71-33 at 2 (“Assessment: Head trauma. Headaches. Blurred vision left visual field. [Right] rib pain, hemoptysis”); ECF No. 57-9.) Dr. Boehme ordered that Gaston be sent to the emergency room within 24 hours (but, preferably 8-12 hours) for evaluation, including a CT brain scan and chest x-ray. (ECF No. 65 ¶ 12; ECF No. 69 at 20 ¶ 12; ECF No. 57-19).
Discharge papers indicate that the Washington Hospital emergency room diagnosed Gaston with a head injury, blurred vision, and rib contusion. (ECF No. 63-6; ECF No. 7117.) Gaston was prescribed ten days of Naprosyn (500mg) (as needed) for mild pain and ordered to follow with an eye specialist. (ECF No. 65 ¶ 13; ECF No. 69 at 20 ¶ 13; ECF No. 63-6 at 6, 12.)
Gaston saw an eye specialist on November 8, 2019, and a follow-up was scheduled for November 18, 2019. (ECF No. 65 ¶ 18.) The follow-up did not show signs of an afferent pupillary defect but determined that Gaston had 20/30 vision in his right eye and 20/250 vision in the left eye and referred Gaston to neuro-ophthalmology at UPMC. (ECF No. 65 ¶ 20; ECF No. 69 at 23 ¶ 20.)
Though the parties dispute certain facts related to Gaston's medical care after his visit to the emergency room on November 6, 2019, notably instances in which Nurse Lory and Nurse Kevin did not provide him with Tylenol (see ECF No. 56 ¶¶ 38-41; ECF No. ¶¶ 38-41), the details of such facts are omitted as they are not necessary to resolve the pending motions.
C. Legal Standard
As the Federal Rules of Civil Procedure provide, summary judgment must be granted if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of identifying evidence which shows the lack of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Id. (internal citation omitted). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court of Appeals has held that “where the movant bears the burden of proof at trial and the motion does not establish the absence of a genuine factual issue, the district court should deny summary judgment even if no opposing evidentiary matter is presented.” Nat'l State Bank v. Fed. Rsrv. Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992) (internal citation and quotation omitted).
In following this directive, a court must take the facts in the light most favorable to the non-moving party and must draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler Cty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005); Doe v. Cty. of Ctr., Pa., 242 F.3d 437, 446 (3d Cir. 2001).
Although courts must hold pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g., Barnett v. N.J. Transit Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014) (holding that pro se plaintiff was still “required to designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories . . . sufficient to convince a reasonable fact finder to find all the elements of her prima facie case”) (citation and quotation omitted); Siluk v. Beard, 395 Fed.Appx. 817, 820 (3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural law”).
Finally, “[w]here, as here, cross-motions for summary judgment are filed, ‘the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.'” Reynolds v. Chesapeake & Del. Brewing Holdings, LLC, Civil Action No. 19-2184, 2020 WL 2404904, at *3 (E.D. Pa. May 12, 2020) (quoting Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016)).
D. Discussion
Section 1983 provides a private citizen with the right to bring an action against any person who under color of state law deprives him of a right or privilege secured by the Constitution of the United States. 42 U.S.C. § 1983. This statute does not create substantive rights but instead “provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a viable § 1983 claim, a plaintiff “must establish that []he was deprived of a federal constitutional or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Neither party questions whether Defendants acted under color of state law, thus, the appropriate focus is on the alleged deprivation of Gaston's constitutional right.
As a threshold matter in any § 1983 suit, the Court must “identify the specific constitutional right at issue.” Manuel v. City of Joliet, Ill., 580 U.S. 357, 370 (2017) (internal citation and quotation marks omitted). Gaston's § 1983 claim is premised on Defendants' inadequate medical care during his detention at the WCCF. Specifically, Gaston asserts that after sustaining injuries from his arrest, Defendants violated his Fourteenth Amendment Rights by “depriv[ing him] of medical treatment and negligently den[ying him] over and over [again] his rights” when they ignored “multiple request[s] from the Plaintiff which in return force[d him] to suffer painfully and emotionally for 10 days.” (ECF No. 57 at 21-22.) Gaston also asserts that “[e]ven after [he] was diagnosed by a physician[,] Defendants continue to deny [him] adequate medical care.” (Id. at 24.)
Because Gaston was a pretrial detainee at the time of the alleged civil rights violation, his claim arises “under the Due Process Clause of the Fourteenth Amendment, as opposed to the Eighth Amendment.” Paulino v. Burlington Cty. Jail, 438 Fed.Appx. 106, 109 (3d Cir. 2011) (citing Bell v. Wolfish, 441 U.S. 520, 535-36 (1979)). The Third Circuit has explained that “[i]n assessing a pretrial detainee's claim that he was denied medical care, the relevant inquiry is whether the alleged denial was ‘imposed for the purpose of punishment or whether it [was] but an incident of some other legitimate governmental purpose.'” Mattern v. City of Sea Isle, 657 Fed.Appx. 134, 138 (3d Cir. 2016) (quoting Hubbard v. Taylor, 399 F.3d 150, 158 (3d Cir. 2005)).
“Thus, sentenced prisoners are protected from punishment that is ‘cruel and unusual,' while pretrial detainees are protected from any punishment.” Paulino, 438 Fed.Appx. at 109 (3d Cir. 2011) (citing Hubbard, 399 F.3d at 166-67).
As a practical matter however, this distinction makes little difference in this case.Traditionally, “[w]hile the Eighth Amendment itself ‘has no application' until there has been a ‘formal adjudication of guilt,'” Mattern, 657 Fed.Appx. at 138 n.5 (quoting City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983)), constitutional medical care claims brought by pretrial detainees are analyzed “under the standard used to evaluate similar claims brought under the Eighth Amendment.” Id. n.5 (quoting Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003)). Therefore, to establish a violation of Gaston's Fourteenth Amendment right to adequate medical care, Gaston must show “(i) a serious medical need, and (ii) acts or omissions by [Defendants] that indicate deliberate indifference to that need.” Natale, 318 F.3d at 582 (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999)).
Following the United States Supreme Court's decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015), a Circuit split has emerged as to whether the applicable standard for a pretrial detainee's Fourteenth Amendment claim is an objective standard rather than the deliberate indifference standard applied to a sentenced prisoner's Eighth Amendment claim. Here, since neither party addresses this issue and both parties apply the deliberate indifference standard to Gaston's Fourteenth Amendment claim, the Court will proceed to use this familiar standard in resolving the parties' cross-motions for summary judgment.
In their motion for summary judgment, Defendants argue that (1) Gaston did not suffer a serious medical need and Defendants did not act (or fail to act) with deliberate indifference to that need; (2) Gaston needs expert testimony to prove both the serious medical need and deliberate indifference elements; and (3) Defendants are entitled to qualified immunity. (See ECF No. 64.)
In his motion for summary judgment, Gaston argues that Defendants were deliberately indifferent to a serious medical need when (1) they ignored his multiple requests for medical attention from October 26, 2019 until November 6, 2019 and (2) continued to deny him medical care after he had seen a physician. (See ECF No. 57.)
1. Whether Expert Testimony is Needed to Prove Serious Medical Need or Deliberate Indifference
Defendants' argument Gaston did not suffer from a serious medical need and was not subject to deliberate indifference is linked to their second argument that Gaston requires expert testimony to demonstrate these elements. The Court first considers whether expert testimony is required and then analyzes Gaston's claims against each individual Defendant.
The Third Circuit has recognized that expert testimony may be necessary to create a genuine dispute that the prisoner's medical needs are serious. Pearson v. Prison Health Serv., 850 F.3d 526, 536 (3d Cir. 2017). Although “a district court may properly require expert medical opinions when, ‘[a]s laymen, the jury would not be in a position to decide whether any of the conditions described by plaintiffs could be classified as “serious,”'” id. (citing Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987), “expert testimony ‘is not necessarily required to establish the existence of a serious medical need'” and “‘[o]ther forms of extrinsic proof . . . may suffice in some cases.'” Brightwell v. Lehman, 637 F.3d 187, 194 n.8 (3d Cir. 2011).
The Third Circuit has explained that “a medical need is ‘serious' for purposes of a denial of medical care claim if it is either ‘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.'” Mattern, 657 Fed.Appx. at 139 (quoting Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).
Here, as an initial matter, the Court finds that the fact that Gaston has not provided expert testimony is not dispositive to the issue of whether he suffered from a serious medical need given the evidence of record. The record includes Dr. Boehme's findings and recommended diagnostic testing, the emergency room's findings and subsequent care recommendations, as well as followup appointments and findings-all of which go beyond Gaston's own characterization of his medical issues.
With respect to the deliberate indifference standard, the Third Circuit has noted a “critical distinction” between cases where there is complete denial of medical care as opposed to inadequate medical treatment. Pearson, 850 F.3d at 535. When medical treatment is delayed or denied for a non-medical reason, extrinsic evidence is not necessary for the jury to find deliberate indifference. (Id. at 567.) In contrast, where some medical care is provided, the Court presumes that the treatment “is proper absent evidence that it violates professional standards of care.” Pearson, 850 F.3d at 535. Thus, “medical expert testimony may be necessary to establish deliberate indifference in an adequacy of care claim where, as laymen, the jury would not be in a position to determine that the particular treatment or diagnosis fell below a professional standard of care.” Id. at 536. In those cases, a plaintiff must “offer extrinsic proof regarding the quality of medical care in adequacy of care cases” to defeat the presumption that the medical care provided to him was adequate and to show that “the medical official did not exercise professional judgment.” Id.
Next, the Court turns to whether there is a genuine issue of material fact as to the issues of a serious medical need and deliberate indifference as to each Defendant.
2. Gaston Has Failed to Demonstrate a Serious Medical Need in His Claim against Nurse Kevin
Viewing the facts in the light most favorable to Gaston and drawing all reasonable inferences and resolving all doubts in his favor, the Court finds that no reasonable jury could find Gaston had a serious medical need when Nurse Kevin saw him on October 26, 2019 and again on October 30, 2019. Gaston has presented no evidence to detail his physical state in either of the two instances that Nurse Kevin interacted with him. Rather, the uncontroverted evidence is that Gaston stopped answering questions during the initial intake interview on October 26, 2019 and was found to have “no prob[lem] medically” during his subsequent intake on October 30, 2019.
Although Gaston alleges that his subsequent diagnoses on November 6, 2019 contradict Nurse Kevin's initial assessments, Gaston asserts in his own filings that many of the issues he was ultimately diagnosed with on November 6, 2019 began appearing after he interacted with Nurse Kevin on October 26 and 30, 2019. (See ECF No. 65 ¶ 10; ECF No. 69 at 19 ¶ 10; ECF No. 63-5 (November 4, 2019 - “my vision in my left eye is going blurry”); (ECF No. 56 ¶¶ 29-31; ECF No. 72 ¶¶ 29-31 (November 5, 2019 - “started feeling dizzy, coughing up blood, having pain” with a headache for the last three or four days.”)
Gaston separately asserts that he began coughing up blood during the night of November 3, 2019 (ECF No. 56 at 29), however the only record evidence he cites is a grievance report for an incident with Nurse Lavern dated November 5, 2019. (ECF No. 57-27.)
Thus, Gaston has failed to set forth “specific facts showing that there is a genuine issue for trial” as to whether he was suffering from a serious medical need during his interactions with Nurse Kevin on October 26 and 30, 2019.
Even assuming that he had a serious medical need at the time, Gaston cannot show that Nurse Kevin acted with deliberate indifference. With respect to the October 26, 2019 intake, Gaston's grievance states that Nurse Kevin “checked me and said ‘your injuries are not that bad you don't need to see a doctor[;] if your condition worsens sign up for a sick call.'” (ECF No. 71-24.) Having “checked” Gaston, determined that his injuries were not serious enough to see a doctor, and then indicated that Gaston should sign up for a sick call if his condition worsened, Nurse Kevin's assessment “is proper absent evidence that it violates professional standards of care.” Pearson, 850 F.3d at 535. Thus, Gaston must provide some extrinsic evidence that show that “the particular .. diagnosis fell below a professional standard of care.” Id. at 536. He has failed to do so.
Similarly, with respect to the October 30, 2019 subsequent intake, it is undisputed that Nurse Kevin completed the intake on that day and went through a series of intake questions. (ECF No. 63-10.) Again, Gaston has failed provide some extrinsic evidence to show that Nurse Spragg's subsequent intake process fell below a professional standard of care.
Finally, Gaston claims that Nurse Kevin denied him Tylenol for his headaches on several occasions after November 6, 2019 (ECF No. 56 ¶¶ 40-41). Defendants counter that he was given all proper medicine on multiple occasions. (ECF No. 64 at 10-11.)
It is undisputed that on November 6, 2019, Gaston left the emergency room with a diagnosis of a head injury, blurred vision, and rib contusion and was prescribed pain medication (as needed), and follow-up visit to an eye specialist. Courts in the Third Circuit have found similar combinations of symptoms to be insufficient to establish a serious medical need at the summary judgment stage. See Mesadieu v. Union Cnty., No. 17-9014 (JMV/JBC), 2019 WL 2004308, at *4 (D.N.J. May 6, 2019) (“bruised ribs and severe pain in [his] right leg” are not “sufficiently ‘serious'”); Royster v. Beard, No. 09-1150, at *16-19, 2013 WL 4786028, at *5 (W.D. Pa. Sept. 6, 2013) (holding that loss of consciousness, excessive bruising, bleeding, and swelling along with severe back pain, nerve damage to his wrist, hands and legs, and increased migraines did not constituted serious medical needs even assuming physician assistant told plaintiff that he was not going to treat him for non-medical reasons); Brown v. Rodarmel, No. 3:CV-10-293, 2013 WL 1249023, at *11 (M.D. Pa. Mar. 27, 2013) (exposure to chemical agents, minor lacerations, loosened tooth, and head and back pain constitute just temporary discomfort and do not amount to a serious medical need); Mohorcic v. Hogue, No. 11-575, 2013 WL 6118693, at *3-4 (W.D. Pa. Nov. 21, 2013) (finding that plaintiff failed to demonstrate an serious medical need where tripped, hit his head on a concrete wall, temporarily lost consciousness, and had blurry vision upon regaining consciousness).
Gaston has failed to offer any plausible evidence that he was suffering from a serious medical need upon his return from the emergency room on November 6, 2019. Viewing the facts in the light most favorable to Gaston and drawing all reasonable inferences and resolving all doubts in his favor, Gaston's sporadic allegations that he experienced headaches after November 6, 2019 fail to support his claim that he had a serious medical need. Thus, Gaston has failed to create a material issue of fact that supports his claim that he was suffering from a serious medical need at any time after November 6, 2019.
Therefore, Defendants' motion for summary judgment as to Nurse Kevin should be granted.
3. Gaston Has Failed to Provide Any Extrinsic Evidence that Nurse Lavern Acted with Deliberate Indifference
Gaston alleges that in response to him informing Nurse Lavern that he started feeling dizzy, was coughing up blood, and was having head pain that had been occurring for the past three to four days, she stated that “they don't care if you['re] dying, there[']s nothing I can do[;] sign up for a sick call.” (ECF No. 56 ¶¶ 30-31; ECF No. 72 ¶¶ 30-31; ECF No. 71-27; ECF No. 7 at 2 (verified complaint)).
Even assuming for the sake of argument that Gaston had a serious medical need at the time he interacted with Nurse Lavern, the Court finds that, viewing the facts in the light most favorable to Gaston and drawing all reasonable inferences and resolving all doubts in his favor, Gaston has failed to provide any extrinsic evidence that Nurse Lavern's actions fell below a professional standard of care when she instructed him to sign up for a sick call. Notably, approximately one hour after her interaction with Gaston, Nurse Lavern scanned his sick call slip into the system. (See ECF No. 62-21 at 7; ECF No. 63-16 at 3-4.) And while it is unclear what prompted Klobuchar to speak with the head nurse, it is undisputed that by a couple hours later on the same day, Klobuchar confirmed that he would been seen by a doctor for sick call the next day. (ECF No. 57-15; ECF No. 71-16.)
Although Nurse Lavern's words that “they don't care if you['re] dying” may have been ill-chosen, Gaston has failed to elicit any material issue of fact that her instructions to sign up for a sick call and scanning his sick call request in the system approximately one hour, later fell below a professional standard of care, particularly when he was seen by Dr. Boehme the next day. Indeed, regardless of her statement to him, when Nurse Lavern was told by Gaston of his symptoms, she immediately told him to sign up for sick call and then placed his request in the system. Without any further extrinsic evidence, this does not overcome the presumption that Nurse Lavern's care was adequate; Gaston has not met his burden to proffer facts that support a claim of deliberate indifference.
Therefore, Defendants' motion for summary judgment as to Nurse Lavern should be granted.
4. Gaston Has Failed to Demonstrate a Serious Medical Need with Respect to His Claim against Nurse Lory
Gaston contends that on November 6, 2019 Nurse Lory confiscated his emergency room discharge papers without providing him with copies and refused to give him Tylenol and an icepack. ECF No. 56 ¶¶ 38-39. As discussed with respect to Gaston's claims against Nurse Kevin after November 6, 2019, no reasonable jury could find that Gaston had a serious medical need when he interacted with Nurse Lory after his emergency room visit on November 6, 2019.
Thus, Nurse Lory's denial of Tylenol and an icepack, even if accepted as true, does not represent deliberate indifference to a serious medical need. As such, Defendants' motion for summary judgment as to Nurse Lory should be granted.
E. Conclusion
For these reasons, it is respectfully recommended that Defendants' Motion for Summary Judgment (ECF No. 63) be granted and that Gaston's Motion for Summary Judgment (ECF No. 56) be denied.
F. Notice
In accordance with the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), and Fed. R. Civ.P. 72(b)(2), the parties are allowed fourteen (14) days from the date of this Report and Recommendation to file written objections thereto. Objections by any unregistered ECF user are due seventeen (17) days from the date of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).