Opinion
Civil Action 21-146
08-17-2023
ZACHARY R. GRAHAM, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS and A. KULICK, Defendants.
REPORT AND RECOMMENDATION
RE: ECF NO. 67
Maureen P. Kelly, United States Magistrate Judge
I. RECOMMENDATION
Plaintiff Zachary R. Graham (“Plaintiff'), an inmate incarcerated at the State Correctional Institution at Phoenix (“SCI-Phoenix”), filed this action arising out of allegations that she engaged in self-harm after prison officials at her former institution, the State Correctional Institution at Greene (“SCI-Greene”), wrongfully refused to provide her hormone therapy treatment for gender dysphoria. ECF No. 13.
Presently before the Court is a Motion for Summary Judgment filed by Defendants A. Kulik (“Kulik”) and the Pennsylvania Department of Corrections (“DOC”) (collectively, “Defendants”). ECF No. 67. For the following reasons, it is respectfully recommended that the Motion for Summary Judgment be granted.
Plaintiff spells this defendant's last name “Kulick,” but Defendants' counsel has clarified that the correct spelling is “Kulik.”
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Plaintiff has been diagnosed with gender dysphoria and is a transgender female. ECF No. 69¶3. She has been prescribed hormone replacement therapy (“HRT”) medications. Id. ¶ 4. On March 18, 2020, a DC-499 Self-Medication Distribution Program Instructions form was completed, allowing Plaintiff to keep her HRT medication in her cell and to self-administer her medication. Id. ¶ 5.
Plaintiff did not file a response to Defendants' Concise Statement of Material Facts, ECF No. 69, pursuant to Local Civil Rule 56(C). Accordingly, the facts set forth in Defendants' Concise Statement of Material Facts are deemed admitted. See Gulley v. Haymaker, No. 06-131J, 2009 WL 763549, at *2 (W.D. Pa March 23,2009).
On June 29, 2020, Plaintiff was housed on Block I, Section A of the Restricted Housing Unit (“RHU”). Id. ¶ 6. Around 11:00 a.m., Corrections Officer Phillips observed that Plaintiff had covered her cell door window with a sheet and note that read, “I need psych.” Id. ¶ 7. C.O. Phillips and Defendant Kulik ordered Plaintiff to uncover her window, but she did not comply. Id. ¶8.
Plaintiff was removed from her cell and placed in a secure interview room to talk to a member of the psychiatric team. Id. ¶ 9. She also was issued a misconduct for using abusive language with staff, refusing to obey an order, possession of contraband, and threatening a staff member. Id. ¶ 10. Around 12:30 p.m., Dr. Joseph Scotti met with Plaintiff in response to her misconduct. Id. ¶ 11.
Afterwards, Plaintiff was moved to a different RHU cell located on Block F, Section C. Id. ¶ 12. Her property, including her HRT medication, was packed onto a cart and taken to a secure property room to await confirmation that the medication was prescribed to Plaintiff, and that she had a right to keep it in her cell. Id. ¶ 13. Her medication was secured during this time, and medical personnel had no access to it. Id. ¶ 14.
On June 30, 2020, Plaintiff spoke with Kulik and requested that her HRT medication be returned. Id. ¶ 15; ECF No. 70-6 ¶ 19. Kulik then returned her medication from the same cart it was initially packed on, after the medical department confirmed her prescriptions. ECF No. 69 ¶ 16.
On July 1, 2020, Plaintiff was seen by Psychological Services Specialist (“PSS”) Brittany Novak and reported no mental health issues, and no suicidal or homicidal ideation. There is no documentation that she complained about not having her HRT medication. Id. ¶ 17.
On July 8, 2020, Plaintiff was seen at her cell by PSS Jeffrey Bowden. She reported that she was struggling to get along with staff, and she did not report any issues with access to her HRT medication. Id. ¶¶ 18-19.
On July 9, 2022, Plaintiff was seen by PSS Novak and reported no mental health issues, and no suicidal or homicidal ideation. There is no documentation that Plaintiff complained about access to her HRT medication. Id. ¶ 20.
On July 12, 2020, Plaintiff submitted a Sick Call Request form. Under the section stating, “problem,” she wrote that her HRT medication was supposed to be refilled on July 11, 2020, and that was seeking to have it re-ordered. Id. ¶ 22. That same day, she filed Grievance No. 877624 and stated that she was being denied her HRT medication. Id. ¶ 23.
On July 15, 2020, Plaintiff met with Dr. Scotti in a secure interview room. She said she was frustrated due to not having her HRT medication. Plaintiff was observed to have multiple superficial scratches from her wrist to her elbow, and she complained that she was suffering withdrawal symptoms from not having her HRT medication. Id. ¶ 26.
On July 17, 2023, Plaintiff spoke with PSS Bowden and expressed that she was doing ok, but she wanted her HRT medication. Id. ¶ 27. On July 23, 2020, Plaintiff met with PSS Novak, who documented that Plaintiff was feeling better now that she had a new prescription for HRT medication. Id. ¶ 28.
On July 28,2020, an initial review response to Plaintiffs Grievance No. 877624 was issued denying Plaintiffs grievance as frivolous after an investigation determined that Plaintiffs HRT medication was returned to her the same day that she was moved to a different cell. Id. ¶ 29.
Plaintiff appealed from the denial of her grievance to the facility manager. On August 18, 2020, a Facility Manager's Appeal Response was issued upholding the initial response because Plaintiffs grievance was found to be frivolous. Id. ¶ 30.
A Final Appeal Decision from the Secretary's Office of Inmate Grievances and Appeals was issued on September 22, 2020, upholding all previous responses to Plaintiffs Grievance No. 877624 based on the determination that Plaintiffs grievance was frivolous. Id. ¶ 31.
2. Procedural History
Plaintiff began this action on February 1, 2021 by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 1. After Plaintiff cured certain deficiencies with her filing, the Court granted Plaintiffs IFP Motion on May 18, 2021, and her original Complaint was filed on the same date. ECF Nos. 9 and 10.
On June 8,2021, Plaintiff filed the operative Amended Complaint naming Kulik, the DOC, and William Nicholson (“Nicholson”) as Defendants. ECF No. 13. She later voluntarily dismissed Nicholson, so that Kulik and the DOC are the only remaining Defendants. ECF No. 15. Plaintiff brings her claims against Kulik individually and in his official capacity. ECF No. 13 at 4.
On October 18, 2021, Defendants moved to dismiss Plaintiffs claims. EOF No. 27. The Court granted in part and denied in part the Motion to Dismiss. ECF No. 40. Based on this Order, the following legal claims remain: (1) Eighth Amendment claim for deliberate indifference to a serious medical need against Kulik (Count I); (2) ADA/Rehabilitation Claims (Count V) against the DOC and Kulik, in his official capacity; and (3) negligence claim (Count VIII) against Kulik. Id.
The Court then entered a Case Management Order, scheduling fact discovery to be completed by August 1,2022. ECF No. 46. Based on Defendants' requests for extensions of time to complete discovery, the Court extended the discovery deadline until December 30, 2022. ECF Nos. 48, 49,51,57, 59, 60.
3. Motion for Summary Judgment
After fact discovery concluded, Defendants filed this Motion for Summary Judgment, Brief in Support, Concise Statement of Material Facts and supporting Appendix on April 3, 2023. ECF Nos. 67, 68, 69, 70.
The Court ordered Plaintiff to file a response to the Motion for Summary Judgment by May 4,2023. ECF No. 71. But she failed to do so.
The Court then issued an Order to Show Cause, directing Plaintiff to show good cause in writing by June 1, 2023, why the Motion for Summary Judgment should not be granted based on Plaintiffs failure to respond thereto. ECF No. 72. To date, Plaintiff has not filed a response to the Order to Show Cause or to the Motion for Summary Judgment.
The Motion for Summary Judgment is now ripe for disposition.
B. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof'). Thus, summary judgment is warranted where, “after adequate time for discovery and upon motion ... a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp, v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the Court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). “[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts ... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Mil. & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Disk of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
C. DISCUSSION
1. Eighth Amendment Claim (Count I)
In Count I, Plaintiff asserts an Eighth Amendment claim against Kulik based on deliberate indifference to her serious medical need. “The Eighth Amendment prohibits prison officials from being deliberately indifferent to an inmate's serious medical needs.” Pakalovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017) (citing Estelle v. Gamble, 429 U.S. 97,104 (1976)).
In order to establish a violation of Plaintiff s constitutional right to adequate medical care, the evidence must show: (1) a serious medical need and (2) acts or omissions by Defendants that indicate a deliberate indifference to that need. Natale v. Camden Cnty. Corr. Fac., 318 F.3d 575, 582 (3d Cir. 2003).
A medical need is “serious” 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.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981)).
Deliberate indifference requires a showing that the official “knows of and disregards an excessive risk to inmate health or safety.” Natale, 318 F.3d at 582 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In the medical context, “[d]eliberate indifference may be manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, ... or ‘persistent conduct in the face of resultant pain and risk of permanent injury.'” Josey v. Beard, No. 06-265, 2009 WL 1858250, at *6 (W.D. Pa. June 29, 2009) (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990) (internal citations omitted)).
Non-medical prison officials are not “considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (quoting Durmer v. O'Carroll, 991 F.3d 64, 69 (3d Cir. 1993)). Rather, if an inmate is being cared for by medical experts, “a non-medical prison official will generally be justified in believing that the prisoner is in capable hands.” Id. Thus, “absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a nonmedical prison official... will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Id.
In support of the Motion for Summary Judgment, Defendants do not dispute that Plaintiff s gender dysphoria is a serious medical need. Defendants argue, however, that Kulik was not deliberately indifferent to that need. Defendants argue that when Plaintiff was moved to a different cell, Kulik packed her medication and took it to a secure location to be verified by the medical department, in accordance with DOC policy. The next day, Plaintiff spoke with Kulik and asked for her medication to be returned. Upon learning of the issue, Kulik verified the prescription with medical and returned Plaintiffs HRT medication and other personal property within the day. Defendants argue this is supported by Kulik's affidavit, the investigation into her grievance, and the fact that Plaintiff did not ask for or complain about not having access to her medication during mental health visits until she requested a refill on July 12, 2020. Because there is no evidence that Kulik intentionally delayed or denied access to Plaintiffs medication, and she was under the care of medical professionals, Defendants assert that Kulik was not deliberately indifferent to Plaintiff s serious medical need. ECF No. 68 at 3-8.
Upon review, the Court should grant the Motion for Summary Judgment as to Plaintiff s Eighth Amendment claim against Kulik. Based on the record at summary judgment, there is no evidence that Kulik intentionally delayed or denied access to Plaintiff s HRT medication. While Plaintiffs medication was briefly secured in accordance with DOC policy when she was transferred to a different cell, the record reflects that Kulik arranged to have Plaintiff s medication returned upon her request. Throughout the relevant time, Plaintiff was under the continued care of medical professionals. Because the record does not show that Kulik acted with deliberate indifference to Plaintiffs serious medical need, Defendants' Motion for Summary Judgment should be granted as to Plaintiffs Eighth Amendment claim.
2. ADA/Rehabilitation Act Claims (Count V)
In Count V, Plaintiff asserts a disability discrimination claim pursuant to Title II of the ADA, 42 U.S.C. § 12132. She also asserts a parallel claim underthe Rehabilitation Act, 29 U.S.C. § 794(a). These claims are pending against Kulik, in his official capacity, and the DOC.
Plaintiff does not specify under which Title of the ADA she is proceeding. Because the correctional facility where Plaintiff is incarcerated is a “public entity” subject to Title II of the ADA, the Court considers Plaintiffs claim under Title II. See Harris v. Lanigan, No. 11-1321, 2012 WL 983749, at *4 (D.N.J. March 22, 2022).
To establish a claim under the ADA or Rehabilitation Act, a plaintiff must establish that she “is a qualified individual with a disability, who was precluded from participating in a program, service, or activity, or otherwise was subject to discrimination, by reason of [her] disability.” Furgess v. Pa. Dep't of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019). “Access to prescription medications is part of a prison's medical services and thus is one of the ‘services, programs, or activities' covered by the ADA.” Kiman v. New Hampshire Dep't of Corr., 451 F.3d 274, 287 (1st Cir. 2006) (citing United States v. Georgia, 546 U.S. 151, 157 (2006)).
Both statutes “have the same standard for determination of liability” and are “to be interpreted consistently.” Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012) (citing McDonald v. Pa. Dep't of Pub. Welfare, Polk Ctr., 6 F.3d 92, 95 (3d Cir. 1995); Donahue v. Consol. Rail Corp., 224 F.3d 226 (3d Cir. 2000)).
In support of the Motion for Summary Judgment, Defendants do not dispute that Plaintiff s diagnosis of gender dysphoria is a qualifying disability. Based on the record, however, Defendants contend there is no evidence Plaintiff was denied access to any of her prescriptions because of her disability. ECF No. 68 at 10-11.
Upon review, the Court should grant the Motion for Summary Judgment as to Plaintiff s ADA and Rehabilitation Act claims. In her Amended Complaint, Plaintiff has alleged that Defendants failed to return her HRT medication after she was transferred to a different cell. Based on the undisputed evidence at summary judgment, however, this claim is not supported. Instead, the record reflects that Plaintiffs medication was secured for a short time following her transfer, and it was returned to her upon request. Because Plaintiff does not proffer evidence to show that she was denied access to her medication because of her disability, the Motion for Summary Judgment should be granted as to Plaintiffs ADA and Rehabilitation Act Claims.
3. Negligence Claim (Count VIII)
Finally, Plaintiff asserts a claim for negligence against Kulik. In support of the Motion for Summary Judgment, Defendants argue that Plaintiff fails to state a claim for negligence, and that Kulik is entitled to the protection of state sovereign immunity relative to any such claim. ECF No. 68 at 11-12.
Under Pennsylvania law, the Commonwealth, and its employees have broad immunity from most state-law tort claims. Fennell v. Wetzel, No. 4:17-cv-1520, 2019 WL 1264898, at *10 (M.D. Pa. Jan. 18, 2019) (citing 1 Pa. Const. Stat. § 2310) (“the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity”); see also Moore v. Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988) (“In other words, if the Commonwealth is entitled to sovereign immunity under Act 152, then its officials and employees acting within the scope of their duties are likewise immune”). This immunity “applies to Commonwealth employees in both their official and individual capacities, so long as the employees are ‘acting within the scope of their duties.'” Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008). “Conduct of an employee is within the scope of employment if ‘it is of a kind and nature that the employee is employed to perform; [and] it occurs substantially within the authorized time and space limits[.]” Fennell, 2019 WL 1264898, at *10 (quoting Brautigan v, Fraley, 684 F.Supp.2d 589, 593-94 (M.D. Pa. 2010)) (internal quotations omitted).
For negligence claims, there are ten specifically delineated exceptions to this general rule of sovereign immunity. They are: (1) vehicle liability; (2) medical-professional liability; (3) care, custody, or control of personal property; (4) Commonwealth real estate, highways, and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National guard activities; (9) toxoid and vaccines; and (10) sexual abuse. 42 Pa. C.S. § 8522(b).
Upon review, Plaintiffs negligence claim against Kulik is barred by sovereign immunity. Kulik was acting with the scope of his employment, and none of the ten recognized statutory exceptions apply. Accordingly, the Motion for Summary Judgment should be granted as to Plaintiffs negligence claim against Kulik.
The exception related to “care, custody, or control of personal property” does not apply in this case because it only relates to claims for property losses suffered with respect to the personal property in control of the local agency. 42 Pa. C.S. § 8522(b)(2).
D. CONCLUSION
For the reasons discussed, it is respectfully recommended that the Court should grant Defendants' Motion for Summary Judgment, ECF No. 67.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187,193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Honorable Arthur J. Schwab, United States District Judge