Opinion
Civil Action 19-397
01-31-2022
MARCELLUS JONES, Plaintiff, v. ROBERT GILLMORE; ZAKEN; DIALESANDRO; SOKOL; TRACEY SHAWLEY; LEGGETT; CARO; WILLIAM NICHOLSON; DENISE SMITH; JAMES BRESHAHN; LORI RIDINGS; CHAMBERS; PAMELA LNU; KELLIE GETTY; TATE; JOHNSON; RAMIREZ; JON DOE; ADAMSON; HECHECAVARA in their individual capacities, Defendants.
ECF Nos. 113, 118, and 131
Robert J. Colville, Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Before the Court are Motions for Summary Judgment filed on behalf of administrators and employees of the Pennsylvania Department of Corrections (the “DOC Defendants”), ECF No. 113, and on behalf of DOC contracted health care providers (the “Medical Defendants”), ECF No. 118. Plaintiff has filed his response as a “Motion in Opposition to Defendants' Requests for Summary Judgment.” ECF No. 131.
For the following reasons, it is respectfully recommended that the Court grant in part and deny in part the Motion for Summary Judgment filed on behalf of the Medical Defendants, and grant in part and deny in part the Motion for Summary Judgment filed on behalf of the DOC Defendants. It is further recommended that the Court deny Plaintiff's Motion in Opposition. 1
II. REPORT
The factual background discussed herein is taken from the verified Amended Complaint, ECF No. 8, the DOC Defendants' concise statement of material facts, ECF No. 116, the Medical Defendants' concise statement of material facts, ECF No. 120, Jones's statement of facts in dispute, ECF No. 133, the DOC Defendants' response to Jones's statement, ECF No. 136, and the extensive exhibits in the summary judgment record, Disputed facts are noted where relevant.
This is an action brought by Marcellus Jones (“Jones”), a prisoner currently housed at the State Correctional Institution at Forest (“SCI - Forest”). Jones asserts that during his incarceration at the State Correctional Institution at Greene (“SCI-Greene”), he suffered a sexual and physical assault at the hands of corrections staff as well as ongoing deliberate indifference to his serious medical needs.
The record reflects that Jones has repeatedly engaged in self-harm through hunger strikes and by swallowing various objects, and thus has required ongoing medical and mental health treatment. The claims at issue arise out of three discrete incidents: (1) an alleged assault on March 21, 2017; (2) the alleged denial of medical treatment on July 9, 2017 for the consequences of a hunger strike; and (3) the alleged prolonged denial of medical care after he swallowed a plastic fork.
By Order dated August 8, 2020, the Court dismissed Jones's claims for Retaliation, Conspiracy, Access to Court, Equal Protection, Due Process, and state tort law claims against the DOC Defendants, and dismissed Defendant Austin as a party to this action. ECF No. 60. In addition, because Jones's access to court claim was dismissed, Stephanie Wood was terminated as a defendant on November 11, 2020. Jones was granted leave to file a second amended complaint to correct the deficiencies identified by the Court and two extensions of time to do so. Id., and see ECF Nos. 63, 72. Jones failed to exercise the leave granted him and thus the Amended Complaint at ECF No. 8 is the operative complaint, subject to the August 8, 2020 Order dismissing claims and parties.
1. March 21, 2017 Incident
On March 21, 2017, Defendants Ramirez, Adamson, and Hechecavara were assigned to transport Jones to Washington Hospital for an evaluation prompted by Jones's claim that he 2 ingested an inhaler. ECF No. 114-2 at 151-52; ECF No. 122-1 at 14-24. Jones alleges that the identified Defendants along with Defendant “Jon Doe” pistol whipped and sexually assaulted him in the transport van, and then conspired to cover up the assault. ECF No. 8 at 12-13.
This is not the first (or last) instance that Jones required medical attention for ingesting utensils or other objects. Jones required medical evaluation after stating he swallowed a razor blade on December 31, 2016, and again on March 3, 2017, when he stated that he “ate 3 spoons.” ECF No. 114-2 at 156-58. The record shows that x-rays were ordered on March 3, 2017, and again on March 6, 2017, revealing an item in Jones's abdomen “that may represent a plastic spoon.” ECF No. 114-2 at 112-14. Jones was taken to the hospital on March 8, 2017, for removal of a foreign object. Id.; ECF No. 122 at 645, 647. He was again seen for ingesting foreign objects on March 21, 2017 (inhaler or spoon), April 20, 2017 (pen tip), April 24, 2017 (follow-up for pen tip), April 27, 2017 (follow-up), May 9, 2017 (follow-up), October 9, 2017 (foreign body), November 17, 2017 (foreign body); March 19, 2018 and March 23, 2018. ECF No. 114-2 at 106-14.
The medical records from Washington Hospital reflect that six individuals were required to restrain him so that an abdominal x-ray could be performed. ECF No. 132-1 at 1. The x-ray did not confirm the presence of a foreign object, and Jones was returned to SCI - Greene. ECF No. 133 at 4. Jones was escorted to the medical unit and the nurse on duty noted that Jones “denies any injuries during transport.” ECF No. 114-2 at 153. Contrary to this record, Jones presents the unsworn declaration of inmate William Taylor to support his assault claim. ECF No. 132-1. Taylor states that on the evening of March 21, 2017, he observed Jones return to his cell bleeding from “a busted lip” and the left side of his head. According to Taylor, Jones requested the escort nurse to photograph his face and suture his wounds. Instead, the nurse instructed Jones to enter his cell and go to sleep. Id.
The following morning, Jones was assessed at his psychiatric observation cell by mental health personnel. ECF No. 114-5 at 160-62. Plaintiff remained under a blanket and “refused to respond” or otherwise cooperate. Id. On the morning of March 23, 2017, Jones requested a referral to the mental health Special Assessment Unit (“SAU”) and complained that he was being tortured. ECF No. 114-5 at 157. No. injuries were observed or noted, and his appearance was within normal limits. Id. Later that day, Jones reported to medical staff that two “officers fondled his penis and 3 performed oral sex on him while he was being transported back from the hospital ….” ECF No. 114-5 at 154-56. Jones did not report suffering any other injuries and none were observed by the examining nurse. Id. ECF No. 114-10 at 14; 114-5 at 154-56. The incident was reported to SCI-Greene security personnel and an investigation was initiated. ECF No. 114-10 at 2; 132-4 at 1-4. The assigned investigator sought to interview Jones in the days following the incident, but Jones declined to provide a written statement, declined outside support services, and declined referral to the Pennsylvania State Police. ECF No. 114-10. The transport officers were interviewed, and all denied Jones's allegations. The investigation was closed as unsubstantiated on June 26, 2017. Id.
A second investigation was begun at the request of the Pennsylvania Department of Corrections Office of General Counsel based on Jones's allegations in a “federal legal filing.” ECF No. 132-4 at 7-64. The investigator interviewed all identified individuals, reviewed contemporaneous medical records, and concluded that the abuse allegations were “unfounded.” He reported these findings to SCI-Greene officials, and the investigation was closed. Id. at 7-11.
2. July 9, 2017 Medical Intervention Claim
Jones's second claim is directed at Medical Defendant Dr. Smyth and DOC Defendant Nurse Tate. Jones alleges that both Defendants retaliated against him by failing to treat low blood sugar and that he suffered a loss of consciousness as a result. ECF No. 8 at 8. Jones asserts that Nurse Tate observed him unconscious during the morning of July 9, 2017, but failed to provide medical treatment. He claims treatment was delayed until that evening when corrections officers found him on his cell floor and rushed him to Washington Hospital. Id. Without citation to any 4 supporting evidence, Jones asserts that contradictory medical records have been fabricated by Dr. Smyth and Nurse Tate to cover up coordinated retaliation against him. Id.
Counsel for the Medical Defendants note that Defendant Denise Smyth, M.D. (identified by Jones in caption as “Denise Smith”) is now known as Denise Daniel, M.D. ECF No. 20. The Court refers to Dr. Daniel as Dr. Smyth for ease of identifying the relevant actor in referenced medical records.
Jones's detailed medical and prison records reveal a different story and confirm that neither Nurse Tate nor Dr. Smyth were directly involved in Jones's care on the day at issue. On July 7, 2017, Defendant William Nicholson completed an Inmate Hunger Strike Information Sheet reflecting that on July 3, Jones stopped eating meals and as of July 7, he had missed 14 meals. ECF No. 114-5 at 65-67. Jones continued to take fluids and did not display symptoms requiring medical attention. Jones stated to medical providers that he was engaging in the hunger strike because of “constant abuse.” Id. Behavioral health nurses and psychiatric providers were notified, as was Dr. Smyth. Id.
Progress notes show Jones was interviewed by Nurse Tate on the morning of July 8, 2017. Jones again refused meals, but his speech was clear, and he was breathing easily. ECF No. 114-2 at 144. Nurse Tate notified the physician on duty of his continued hunger strike and encourage Jones to eat. He was seen later that day by Nurse Mercier, and no change was noted. Id. On the morning of July 9, 2017, Nurse Grabowksi checked on Jones, and he again refused meals. Id. at 143-44. At 11:30 a.m., Physician Assistant George provided Jones with a detailed explanation of the serious physical effects of starvation and dehydration. Jones did not acknowledge his receipt of the information provided. ECF No. 114-2 at 102, 143. At 10:00 p.m., corrections officers notified Nurse Tomasky that Jones was unresponsive. Id. at 143. Upon arrival at Jones's cell, Tomasky found Jones to be confused and lethargic. Tomasky assessed his blood pressure and breathing and determined Jones could follow commands but was unable to focus and track. Tomasky notified Physician Assistant George and George provided orders, approved by Dr. Smyth, to have Jones transferred to an outside hospital. Nurse Tomasky later contacted the 5 hospital emergency department and learned that Jones suffered no apparent ill effects and was released to SCI - Greene's medical department at 1:00 a.m., three hours after the initial report. The hospital records reflect that Jones ate several meals and was provided intravenous fluids. ECF No. 122-1 at 7. On his return to SCI-Greene, Jones ambulated independently, requested “more food, ” and was escorted to his housing unit. ECF No. 114-2 at 143.
The detailed medical records of this incident reveal that Nurse Tate was not involved in Jones's care on the date at issue and Dr. Smyth's involvement was limited to approving both the issuance of a standard warning of the ill-effects of a hunger strike and his immediate transport to an outside hospital for evaluation and treatment. There is no evidence that she was otherwise responsible for his care or any alleged denial of care on the dates in question. Nor is there any evidence that the medical records fail to accurately depict the events as they occurred.
3. October - December 27, 2017
Through his Amended Complaint, Pretrial Statement, and brief in opposition to summary judgment, Jones alleges that despite his ongoing complaints of extreme pain caused by his ingestion of a plastic fork in early October 2017, Medical Defendants Bresnahan, Ridings, and Smyth, DOC Defendants Getty and Tate, and Defendants Chambers and Lnu knowingly delayed or denied medical treatment. Jones claims the denial of care led to the perforation of his intestines and emergency surgery in January 2018. ECF No. 8 at 10-13. Jones also broadly alleges that his eventual hospitalization was “an intention[al] act” by non-medical DOC Defendants Gilmore, Zaken, Delasandro, Sokol, Leggett, Nicholson, Shawley, and Caro. ECF No. 105 at 4. Jones states 6 that he submitted grievances and voiced verbal complaints to each of the non-medical DOC Defendants who were thus aware of his pain and need for emergency treatment, but refused to act.
The docket reflects that Defendants Chambers and Lnu have not been served with process and remain unrepresented. In addition, Defendant Doe remains unidentified and has not been served. On January 11, 2022, the Court entered an Order to Show Cause directing Jones to show cause why this action should not be dismissed as to each of these defendants for failure to prosecute. ECF No. 145. As of this date, no response has been filed by Jones.
According to Jones, as of October 3, 2017, Medical Defendants Smyth, Nicholson, and Bresnahan knew that he had ingested a plastic fork and spoon, but each failed to provide medical care despite the evident emergency. ECF No. 105 at 4. Jones presents the declaration of inmate Daaran Shears, who states that on October 25 and 26, he heard Jones complain to Defendant Ridings and another nurse that he was suffering from extreme abdominal pain, but “no one at SCI - Greene did anything to help.” ECF No. 132-5 at 7. Shears states that he overheard conversations between Jones and Bresnahan on November 7 and 9, and that Bresnahan responded to Jones's complaints with assurances that an ultrasound would be ordered. Id. Jones claims that despite this order, Defendants Nicholson, Smyth, Bresnahan, and Riddings “agree[d] to sabotage” prescribed medical treatment by failing to ensure he received a sonogram to determine the cause of his ongoing abdominal pain. ECF No. 132 at 4, 18. Jones points to prison grievances he submitted on November 24, 2017, and December 19, 2017, as a basis for their alleged retaliation. ECF No. 114-7. In addition, Jones asserts that the Medical Defendants retaliated against him because of a state court action he filed in the Court of Common Pleas of Greene County, Pennsylvania at A.D. No. 784-2017 in the fall of 2017. Jones contends that as a result of that lawsuit, his continued complaints were ignored, and his pain went unabated and untreated. Jones states that the pain rendered him unconscious on December 25 and December 27, but he remained untreated until December 28, when he was hospitalized for emergency surgical procedures to remove the fork and to treat an abscess. ECF No. 8; ECF No. 132 at 20. 7
Jones's Pre-Trial Narrative includes “Schultz” in this claim, but “Schultz” has not been named as a defendant. ECF No. 8.
Jones supplies portions of the state court record, including an order entered on November 3, 2017, detailing a litany of Jones's allegations against SCI-Greene staff, including the March 21, 2017 sexual assault; additional assaults on May 10, 2017 and June 9; 2017, meal deprivation on March 13, 2017, April 20, 2017, and the week of June 3, 2017; staff encouragement of prisoner reprisals calling Jones a “snitch”; and the denial of medical treatment causing hospitalization on July 9, 2017. ECF No. 132-5 at 2-4.
On October 17, 2017, Judge Louis Dayich of the Court of Common Pleas of Green County, Pennsylvania, received a handwritten communication from Jones setting forth various additional allegations that “prompted [this] Court to contact the Department of Corrections, SCI Greene, inquire into Plaintiff's well-being.” Id. at 1-2. Judge Dayich learned that Jones was eating and drinking and housed on a block with other inmates. Id. On October 25, 2017, Jones filed a second communication alleging torture, sexual abuse, and retaliatory conduct. Id. Judge Dayich determined that interim injunctive relief was not appropriate, and ordered the docketing of Jones's various communications. Id.
The docket of the state court action is publicly available, and portions have been provided to the Court in the course of discovery disputes between the parties. ECF No. 143. This Court's review of the docket in the state court case reveals that on December 6, 2017, Jones filed another declaration alleging the lack of medical care for ongoing severe abdominal pain. See Jones v. Gilmore, No. AD 784-2017 (CCP Greene County Dec. 6, 2017). On December 13, 2017, Judge Dayich ordered SCI-Greene representatives to appear at a video hearing with Jones to determine the veracity of Jones's claims and whether emergency relief was warranted. Jones v. Gilmore, No. AD 784-2017 (CCP Greene County Dec. 13, 2017). 8 Dr. Smyth, Lieutenant Morris, and Administrator Stephanie Wood appeared, and Judge Dayich “had the opportunity to observe” Jones. Jones v. Gilmore, No. AD 784-2017 (CCP Greene County Dec. 18, 2017). Based on the testimony and evidence presented and his observation of Jones, Judge Dayich determined that Jones was not in imminent danger. He ordered SCI-Greene officials to provide an update as to any alleged physical problems and treatment on February 15, 2018. Id.
See, Jones v. Gilmore, No. A.D. 784-2017 (CCP Greene County) https://www.co.greene.pa.us/CivilSearch/(S(p1qzhnaz231uatqrnj4xrfun))/Case.aspx.
Judge Dayich's conclusion that Jones was not suffering an untreated or emergent medical crisis finds support in Jones's medical records for the relevant period. The full record of Jones's medical care has been filed in support of the pending motions for summary judgment. ECF No. 114-5; ECF No. 122 (summarized at ECF No. 119 at 8-12, and ECF No. 120 at 4-22). The records reveal that on October 4, 2017, Jones was housed in a special management unit and reported to his mental health provider that he was suicidal and was eating the stuffing from his protective smock. ECF No. 114-5 at 71. Dr. Smyth ordered x-rays to rule out the presence of foreign objects in Jones's abdomen, and on October 10, 2017, she placed Jones on a “Finger Food” diet, to expire on December 10, 2017. ECF No. 114-5 at 48; ECF No. 122 at 594. On October 11, 2017, Dr. Smyth reviewed the x-ray report, which confirmed that no obstructions were noted, and no visible foreign objects were present. ECF No. 122 at 594. That same day, psychiatric staff met with Jones in his cell, where he was confined after “[r]ecent multiple staff assaults.” Id. at 47-48. Jones reported that he was angry and suicidal because of his behavioral plan. 9
While the records are accurately summarized, page citations in the Medical Defendants' Statement of Facts do not necessarily match the referenced documents. The Court cautions counsel that supporting a Motion for Summary Judgment with an unindexed and unorganized “document dump” of over 1000 pages renders review difficult. Going forward, exhibits produced in this manner will be rejected and accompanying motions will be summarily denied. See, e.g., Albrechtsen v. Bd. of Regents of Univ. of Wisconsin Sys., 309 F.3d 433, 436 (7th Cir. 2002) (“‘Judges are not like pigs, hunting for truffles buried in' the record.” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
On November 1, 2017, Jones requested a specific anti-psychotic medication, but his mental health provider determined that there was no medical indication for the requested prescription. ECF No. 114-5 at 44-45. Jones threatened to “write up” the provider. Id. Jones was seen by Physician Assistant Bresnahan on November 7, 2017, and reported that he had intermittent blood in his stool. He denied nausea, vomiting, and abdominal pain. Bresnahan concluded that the reported symptoms were consistent with hemorrhoids, and provided Jones with stool sample test cards. ECF No. 122 at 624. Two days later, Bresnahan again saw Jones, who again reported abdominal pain and constipation. Bresnahan ordered magnesium citrate and ordered a follow-up pending the results of the stool sample tests. Id. On November 10, 2017, the stool test was positive for bleeding, but a second test on November 11 was negative. Id. at 621. Psychiatric notes for this same period reflect that on November 8, 2017, Jones reported that he was “doing fine” and asked for a crayon to complete legal work as he was on a pen restriction. The crayon was approved, and he was noted to be well-oriented. ECF No. 114-5 at 43. Later that morning, Jones expressed anger about a banana he received in his dinner meal and his housing placement. Id. at 38-39. Staff agreed to meet with him to discuss his mental health symptoms and to update his profile. Id. at 35.
On November 16, 2017, Nurse Tomasky received a call from a corrections officer who reported that Jones claimed he swallowed a fork in October and hadn't received any treatment. An x-ray was ordered, and Dr. Smyth was contacted. ECF No. 122 at 621. On November 20, nursing staff were again contacted because Jones was complaining of abdominal pain. Id. at 622. Dr. Smyth reviewed the results of x-rays that were taken on November 17. ECF No. 122 at 593. The x-ray findings conveyed that no definite radiopaque foreign body was present. Id. That same day, Jones 10 reported to psychological staff that he was suffering abdominal pain, nausea, and back pain, and stated he had swallowed a fork. ECF No. 114-5 at 32-33. He was examined, found to be in no acute distress, with a soft abdomen and bowel sounds. Jones was informed that his x-rays revealed no foreign body and no bowel obstruction. Id.
The DOC Defendants brief and statement of facts state that Jones's x-ray revealed a foreign body. ECF No. 115 at 8, ECF No. 116 ¶ 16. However, the referenced medical records clearly state that no foreign body was observed or identified. ECF No. 114-2 at 106, 130; ECF No. 114-5 at 32-33.
Dr. Smyth saw Jones the next day, on November 22, and noted that Jones continued to experience pain. She explained that the x-ray showed no definite presence of a foreign object. She noted she would order an ultrasound and encouraged Jones to increase fluids and food. Id. Jones complained again of pain three days later and was seen by Physician Assistant Bresnahan, who prescribed Tylenol for pain and conveyed that the ultrasound was being scheduled. On November 28, Bresnahan saw Jones again for pain, and informed him that the ultrasound had been ordered but was not yet approved. ECF No. 122 at 619.
On December 7, 2017, Jones was seen by a mental health professional. He complained of anxiety and lack of sleep. He reported that he swallowed a fork and had pain in his stomach and that he had still not undergone an ultrasound to determine the source of his pain. ECF No. 114-5 at 24-25. He was prescribed psychotropic medication and educated on the need for compliance with the dosing regimen. Id. On December 12, 2017, Jones was seen by Physician Assistant Ridings. Jones reported that he “ate a fork months ago” but denied current abdominal pain. Id. at 23. Ridings noted he was scheduled for an ultrasound on December 6, but it was not completed. She discussed rescheduling the procedure with an unidentified staff member. Id. During a visit with a mental health provider on December 13, 2017, Jones informed staff that he received an x-ray that day, and that he would like medication for pain. ECF No. 114-5 at 201. The provider stated she would relay the request to medical providers. 11
On December 18, 2017, Jones was observed by Judge Dayich at a hearing attended by Dr. Smyth. By that date, Jones had filed a declaration about the lack of treatment for abdominal pain after ingesting a plastic fork. In an order summarizing the proceedings, Judge Dayich ruled that Jones was not in imminent danger. Jones v. Gilmore, No. AD 784-2017 (CCP Greene County Dec. 18, 2017).
On December 19, 2017, Jones was seen by Physician Assistant Bresnahan with a complaint of abdominal pain. Jones asked why he had not had an ultrasound of his abdomen. Bresnahan's notes reflect he informed Jones that the previous appointment “had to be rescheduled” and that the ultrasound would take place on January 3, 2018. ECF No. 114-5 at 19. A mental health provider saw Jones on December 21, and Jones reported that his new psychotropic medication was not helping him and made him very sleepy. No. changes were ordered, and no other physical complaints were reported. Id. at 16-18. On December 26, Jones was seen by Physician Assistant Austin. Jones requested an x-ray to see if the fork remained in his stomach. Id. at 15. He was observed moving without difficulty and his exam revealed normal bowel sounds. Austin discussed Jones's condition with the attending physician for the day, who stated that an ultrasound would be ordered. Id. On December 27, Nurse Tate was called by security staff on Jones's housing block to report that he “laid down on the floor after shower and after getting dressed” and complained about pain from a foreign object he swallowed months ago. Id. at 14. Tate examined Jones, who reported he could not eat. He was breathing easily, and his color was within normal limits. He was moved to a psychiatric observation cell and was seen briefly by “Dr. Jay.” Medical records reflect 12 that the physician was told that an ultrasound was scheduled for January 3, 2018, and no new orders were entered. Id.
Jones asserts that to the contrary, Physician Assistant Bresnahan told him that because of his state court litigation, an ultrasound would not be ordered. ECF No. 132 at 5, 20. Jones presents the declaration of inmate Faulkner, who states that Bresnahan told Jones his initial sonogram was cancelled and that because of his state court action, “we'll never forget about your constant snitching, so you can suffer for all we care.” ECF No. 132-5 at 5.
On December 28, 2017, Jones reported that he continued to experience severe abdominal pain and Dr. Smyth authorized his transfer to the Washington Hospital emergency room via ambulance. Id. On intake, Jones informed hospital staff that he had swallowed a plastic fork on October 3, 2017, and that he had suffered mild pain since, with sharp pain in the past three days. ECF No. 122 at 471. A CT scan confirmed the presence of a plastic fork in Jones's duodenum. The next day, Jones underwent a procedure to remove the fork. Both a plastic fork and a plastic spoon were located and removed. Removal of the fork led to a 7mm fistulous tract, which was repaired with three surgical clips. Id. at 471- 490. A post-operative CT scan revealed a possible abscess, but a surgical consult determined that Jones was not suffering a perforation and Jones was monitored for three more days. Id. at 485, 514. The suspected abscess decreased in size and an aspiration on January 2, 2018 drained 3 milliliters of fluid and was found to represent a hematoma rather than an abscess. No. infection was present, and no other procedures were required. Id. at 517. Jones was discharged with a ten-day prescription of the antibiotic Augmentin, and he suffered no other issues from the incident. Id. at 500.
On January 31, 2018, Jones again complained of abdominal pain. Dr. Smyth examined him and found mild tenderness but no other symptoms. ECF No. 122 at 374. She ordered lab tests to rule out infection and determined the results were not clinically significant. Two weeks later, Jones was transferred to SCI - Frackville.
B. PROCEDURAL HISTORY
Jones commenced this litigation on April 9, 2019. After he complied with various deficiency orders, his Amended Complaint was docketed. ECF Nos. 1, 8. The Court resolved the 13 parties' Motions to Dismiss and entered a Case Management Order to permit the parties to engage in fact discovery. ECF No. 73. During the course of discovery, Jones did not receive requested videos and repeatedly urged the Court to find spoliation related to recordings that he insists would support his various claims, but that DOC has withheld or improperly destroyed. ECF Nos. 109, 127, 142. The DOC Defendants filed responses to Jones's discovery motions, ECF Nos. 139, 143, and the Court entered two Orders concluding that based on the evidence presented, the requested videos either never existed or were not preserved in accordance with DOC procedures and the referenced state court orders, ECF Nos. 125, 144. The Court therefore denied Jones's spoliation motions. Id.
In accordance with the Case Management Order, Jones filed his Pre-Trial Narrative Statement, ECF No. 105, and Defendants filed the pending motions for summary judgment, ECF Nos. 113, 118. The DOC Defendants support their motion with a brief, a concise statement of material facts, and an Appendix of supporting exhibits. ECF Nos. 113 - 116. The Medical Defendants filed their brief, a concise statement of material facts, and over 1000 pages of detailed medical records. ECF Nos. 119, 120, 122. In response, Jones filed a consolidated “Motion in Opposition to Defendants' Motion for Summary Judgment, ” as well as a brief, a Statement of Facts in Dispute, and supporting exhibits. ECF Nos. 131 - 133. The DOC Defendants and Medical Defendants have filed replies, and the DOC Defendants filed a response to Plaintiff's Statement of Facts in Dispute. ECF Nos. 134 - 136.
The pending motions are ripe for consideration.
C. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that: “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material 14 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); see also 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; see also 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)) (internal quotations omitted).
Jones is proceeding pro se and thus his filings are to be construed liberally. If the Court can reasonably read the pleadings together with his summary judgment submissions to show an entitlement to relief, the Court should do so despite any failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 15 414 F.2d 552, 555 (3d Cir. 1969) (although a filing prepared by a prisoner may be inartfully drawn, it should be read “with a measure of tolerance”). In examining the record, and in consideration of Jones's status, the factual allegations set forth in his verified Complaint will be considered as evidence to the extent they are based on his personal knowledge. Jackson v. Armel, No. 17-1237, 2020 WL 2104748, at *5 (W.D. Pa. May 1, 2020) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary judgment motion)). See also Brooks v. Kyler, 204 F.3d 102, 108 n. 7 (3d Cir. 2000) (noting that an affidavit is “about the best that can be expected from [a pro se prisoner] at the summary judgment phase of the proceedings”).
Nonetheless, at the summary judgment stage of the proceedings, the Court need not credit any bald assertions or legal conclusions unaccompanied by evidentiary support. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). “[A] pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point to competent evidence in the record that is capable of refuting a defendant's motion for summary judgment.” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (citation omitted). See also Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000)); Winfield v. Mazurkiewicz, No. 11-584, 2012 WL 4343176, at *1 (W.D. Pa. Sept. 21, 2012).
D. DISCUSSION
1. DOC Defendants
a. Alleged Assault
The United States Court of Appeals for the Third Circuit has held that “prison sexual abuse can violate the Constitution.” Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018). Faced with such allegations, “[t]he Court's role is not to weigh the evidence or to determine the truth of the matter, 16 but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party.” Auker v. Jin, No. 2: 14-CV-0179, 2017 WL 3981180, at *5 (W.D. Pa. July 24, 2017), report and recommendation adopted sub nom., No. CV 14-179, 2017 WL 3970694 (W.D. Pa. Sept. 8, 2017) (citing Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010)).
In this case, the Court is presented with Jones's verified Amended Complaint alleging physical and sexual assault during transit to or from Washington Hospital and the declaration of an inmate eyewitness who corroborates Jones's allegations that he sustained facial injuries on the evening of March 21, 2017. In addition, Jones's mental health records in the weeks after the alleged incident suggest an exacerbation of his mental health condition and reflect that he repeated the allegations of abuse. The DOC Defendants counter with evidence that Jones's claims were investigated twice and found unsubstantiated based on interviews with each alleged participant and a review of medical records. Those records, both on the day of the alleged assault and in the days following the alleged incident, reflect that Jones had no visible injuries that would corroborate his claim that he was “pistol whipped” in the transport van or sexually assaulted. These inconsistencies, however, point to factual issues that “must be resolved by a jury, not a judge.” Drumgo v. Kuschel, 811 Fed.Appx. 115, 119 (3d Cir. 2020) (quoting Santini v. Fuentes, 795 F.3d 410, 420 (3d Cir. 2015)). Because a reasonable juror could believe Jones's account of the assault based on the record, summary judgment is not warranted. Drumgo, 811 Fed.Appx. at 119 (citing Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009) (noting the difficulty that an inmate proceeding pro se faces in seeking to “generate record evidence.”)). Thus, it is recommended that the Court deny the DOC Defendants' Motion for Summary Judgment as to Jones's Fourth Cause of Action relative to the March 21, 2017 alleged assault. 17
b. Eighth Amendment - Deliberate Indifference
Unlike the assault claim, summary judgment is appropriate as to Jones's claims against Nurse Tate for her alleged deliberate indifference to his medical needs on July 9, 2017, and against all DOC Defendants related to their alleged failure to intervene and deliberate indifference to his serious medical condition for the period October 25, 2017 through December 28, 2017.
The Eighth Amendment prohibits prison officials from being deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To succeed on an Eighth Amendment medical needs claim, “a plaintiff must make (1) a subjective showing that ‘the defendants were deliberately indifferent to [his or her] medical needs' and (2) an objective showing that ‘those needs were serious.'” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (alteration in original) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). The United States Supreme Court has described the state of mind that deliberate indifference requires:
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official 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) (emphasis added). When a claim is based on non-medical defendants' alleged failure to act, the United States Court of Appeals for the Third Circuit has explained that summary judgment is properly entered when the evidence establishes the prisoner was under the active care of prison medical staff:
If a prisoner is under the care of medical experts ..., a non-medical prison official will generally be justified in believing that the prisoner is in capable hands. This follows naturally from the division of labor within a prison. Inmate health and safety is promoted by dividing responsibility for various aspects of inmate life among guards, administrators, physicians, and so on. Holding a non-medical prison official liable in a case where a prisoner was under a physician's care would strain this division of labor. Moreover, under such a regime, non-medical officials could18
even have a perverse incentive not to delegate treatment responsibility to the very physicians most likely to be able to help prisoners, for fear of vicarious liability.
Accordingly, we conclude that, absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official … will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
In this case, Jones brings Eighth Amendment claims against non-medical DOC Defendants Gilmore (SCI - Greene Superintendent); Zaken (Deputy Superintendent); Dalesandro (Deputy Superintendent); Sokol (Corrections Program Manager); Shawley (Superintendent Assistant); Leggett (Corrections Officer - Major); Caro (Corrections Officer - Major); and Nicholson (healthcare administrator). He alleges that he repeatedly told these administrative and supervisory Defendants that he “needed medical attention, ” and that each knew that his “emergency medical condition” was untreated. ECF No. 8 at 12; ECF No. 105 at 4-5; ECF No. 133 at 8.
The Court has thoroughly reviewed the record and finds no direct or circumstantial evidence on which a reasonable juror could conclude that any DOC Defendant possessed the requisite scienter of deliberate indifference to a serious medical need during the period at issue. Jones does not direct the Court to evidence that any DOC Defendant failed to act because he or she was intentionally trying to deny medical care. Nor is there evidence that any DOC Defendant should have inferred that Jones faced an excessive risk of harm or that medical providers were not investigating the cause of his pain. See ECF No. 114-7 (responses to grievances by Gilmore and Nicholson relate that Jones's condition and complaints of pain were under active medical treatment and care).
Based on the foregoing, the DOC Defendants have met their burden to show that each is entitled to judgment in his or her favor as matter of law with respect to Jones's Eighth Amendment 19 claims of deliberate indifference to his serious medical needs from October 25, 2017 to January 3, 2018.
Similarly, Jones presents no evidence that Nurse Tate acted with deliberate indifference to the effects of his July 9, 2017 hunger strike. Rather, the evidence shows that in the days before Jones suffered altered consciousness, Tate had no direct involvement in Jones's care beyond one visit to encourage him to eat and to check on him, and she found him well. ECF No. 114 at 142. Given the undisputed evidence of the limits of Nurse Tate's involvement in this incident, Jones cannot sustain his Eighth Amendment deliberate indifference claim against her.
Accordingly, it is recommended that the Court grant the motion for summary judgment in favor of Defendant Tate as to Jones's First Cause of Action and in favor of all DOC Defendants as to Jones's Third Cause of Action. To the extent Jones asserts a claim against the DOC Defendants for failure to intervene in his medical treatment, it is also recommended that the Motion for Summary Judgment be granted in favor of each DOC Defendant.
c. PLRA - Grievance Procedures
The DOC Defendants alternatively argue that summary judgment is appropriate as to all claims arising out of medical treatment on July 9, 2017 and October 25, 2017 - December 28, 2017 because Jones failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act. ECF No. 115 at 13 (citing 42 U.S.C. § 1997e(a)). In light of the recommended disposition on the merits of Jones's claims against the DOC Defendants, the Court need not reach the contested issue of proper exhaustion. 20
2. Medical Defendants
a. Eighth Amendment - Deliberate Indifference
The Medical Defendants move for summary judgment as to Jones's First and Third Causes of Action related to medical treatment on July 9, 2017, and for the period October 3, 2017 - December 28, 2017. The Medical Defendants contend that as a matter of law, the record fails to support a finding that any medical provider acted with deliberate indifference to Jones's serious medical conditions. ECF No. 119 at 5.
The Court agrees that the Medical Defendants' motion for summary judgment properly is granted as to the Jones's First Cause of Action against Defendant Smyth arising out of the July 9, 2017 incident and as to Jones's Third Cause of action against Defendant Ridings. However, because of the existence of issues of material fact, summary judgment is not warranted as to Jones's Third Cause of Action against Defendants Smyth and Bresnahan. Thus, it is recommended that the Court deny the Medical Defendants' motion for summary judgment as to these Defendants.
“The Eighth Amendment, through its prohibition on cruel and unusual punishment, prohibits the imposition of ‘unnecessary and wanton infliction of pain contrary to contemporary standards of decency.'” Pearson, 850 F.3d at 534 (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)). In Estelle, 429 U.S. at 103-04, the United States Supreme Court held that this principle “establish[es] the government's obligation to provide medical care for those whom it is punishing by incarceration[, ]” and that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of a pain' ... proscribed by the Eighth Amendment.”
To establish his Eighth Amendment claims against the Medical Defendants, Jones must prove two things. First, he must make an objective showing that his medical needs were serious. 21 See, e.g., Rouse, 182 F.3d at 197. This is not disputed by any party. Second, Jones must make a subjective showing that each named defendant was deliberately indifferent to his serious medical needs. Id. at 197.
“[D]eliberate indifference is a subjective state of mind that can, like any other form of scienter, be proven through circumstantial evidence and witness testimony.” Pearson, 850 F.3d at 535. It has been found “in a variety of circumstances, ” Rouse, 182 F.3d at 197, including where a prison official “knows of a prisoner's need for medical treatment but intentionally refuses to provide it[, ]” or “prevents a prisoner from receiving needed or recommended medical treatment.” Id. (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993)). Since a defendant's state of mind, like other facts, can be proved by circumstantial evidence, the Farmer standard does not require a defendant to admit his consciousness of the risk of serious harm before liability can be imposed.
That said, even gross errors of judgment are not constitutional violations: liability requires subjective, not objective, culpability. Farmer, 511 U.S. at 843 n.8. The subjective inquiry that must be made in determining whether deliberate indifference exists is meant to prevent the constitutionalization of medical malpractice or negligence claims. “[T]hus, a plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of an ailment.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).
It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute “deliberate indifference.” As the Estelle Court noted: “[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain' or to be ‘repugnant to the conscience of mankind.'” Id. at 105; see also Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (“[T]he law is clear that simple medical malpractice is insufficient to present a constitutional violation.”); White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) (“[C]ertainly no claim is stated when a doctor disagrees with the professional judgment of another doctor. There may, for example, be several acceptable ways to treat an illness.”) (emphasis omitted). “Deliberate indifference, ” therefore, requires “obduracy and wantonness, ” Whitley v. Albers, 475 U.S. 312, 319 (1986), which has been likened22
to conduct that includes recklessness or a conscious disregard of a serious risk. See Farmer v. Brennan, 511 U.S. 825, 842 (1994) (stating that “it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm”).Rouse, 182 F.3d at 197; see also Spruill, 372 F.3d at 235 (“[a]llegations of medical malpractice are not sufficient to establish a Constitutional violation.”).
Because “mere disagreement as to the proper medical treatment” does not “support a claim of an eighth amendment violation, ” Monmouth Cty. Corr. Inst. v. Lanzaro, 834 F.2d 326, 346 (3d. Cir. 1987), when medical care is provided, we presume that the treatment of a prisoner is proper absent evidence that it violates professional standards of care. See Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[I]t is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights”).Pearson, at 850 F.3d at 535.
As relevant to Jones's claims against the Medical Defendants, when it comes to claims of deliberate indifference, there is a “critical distinction” between allegations of a delay or denial of a recognized need for medical care and allegations of inadequate medical treatment. Id. (citation omitted). Thus, the mere fact that prison medical personnel have provided some medical care to an inmate does not preclude a finding of deliberate indifference:
[T]here are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements. For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for “an easier and less efficacious treatment” of the inmate's condition. West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978) (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)). Nor may “prison authorities deny reasonable requests for medical treatment ... [when] such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury.'” Monmouth County Corr. Inst. Inmates, 834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)). And, “knowledge of the need for medical care [may not be accompanied by the] ... intentional refusal to provide that care.” Id. (alterations in original) (quoting Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985)).23 Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017). The court “must examine the totality of an inmate's medical care when considering whether that care evidences deliberate indifference to his serious medical needs.” Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997).
As to the July 9, 2017 incident, Jones presents no evidence that Dr. Smyth acted with deliberate indifference to the effects of his hunger strike. Rather, the evidence shows that in the days before he suffered altered consciousness, Dr. Smyth provided instructions that Jones be informed of the serious medical risks of continuing his hunger strike. Once the effect of his behavior led to a medical emergency, she authorized his immediate transfer to the hospital. Under these circumstances, no reasonable juror would conclude that Dr. Smyth acted with the requisite deliberate indifference to support an Eighth Amendment claim.
In contrast, the evidence as to Jones's medical treatment for the period October 2017 through December 2017 raises genuine issues of material fact as to whether Defendants Dr. Smyth and Physician Assistant Bresnahan acted with deliberate indifference to Jones's medical condition related to ingesting a plastic fork. Jones contends that Smyth and Bresnahan made statements that he would not be provided an ultrasound to diagnose the cause of his abdominal pain because of his grievances and state court litigation. He supports these allegations with copies of grievances and the declaration of an inmate witness, and asserts that these Medical Defendants vocalized retaliatory reasons to ignore his persistent severe pain. See infra n.8.
The United States Court of Appeals for the Third Circuit, in a case involving similar allegations of a retaliatory prolonged denial of medical care, reversed the grant of summary judgment in favor of a prison medical provider because the allegations in the complaint and evidence of grievances were sufficient to present a triable issue of fact. Romero v. Ahsan, 827 Fed.Appx. 222, 226 (3d Cir. 2020) (nonprecedential) (“‘[a]ll that is needed is for the surrounding 24 circumstances to be sufficient to permit a reasonable jury to find that the delay or denial was motivated by non-medical factors.' That standard has been met here. Romero alleged in his complaint that “defendants deliberate[ly] delayed in providing a hinged knee brace to prolong plaintiff's pain and suffering ... because plaintiff filed grievances against them.”) (quoting Pearson, 850 F.3d at 537).
In this case, there is undisputed evidence that an ultrasound was scheduled for December 6, 2017, then cancelled, and despite several complaints by Jones of abdominal pain, it was not rescheduled to take place until January 3, 2018. ECF No. 114-5 at 19. The Medical Defendants do not explain the initial cancellation, or the ongoing and lengthy delay in rescheduling the ultrasound (which would have shown the presence of a fork or other foreign object), but point to treatment offered. To that end, the evidence includes the several attempts by Dr. Smyth and Physician Assistant Bresnahan to determine the cause of Jones's pain with physical exams, two sets of x-rays, stool testing, laxatives, and pain-relieving medication. Medical records establish that Jones's pain was intermittent and that once he displayed symptoms of severe pain unabated by prior treatment, Dr. Smyth directed his transfer to the hospital for emergency care surgery.
Jones presents evidence to the contrary, including his verified Amended Complaint, his grievances, his declaration that Dr. Smyth refused treatment in retaliation for litigation and grievances, and a witness statement that Physician Assistant Bresnahan also refused to treat Jones for retaliatory reasons. In light of conflicting evidence that must be viewed in the light most favorable to Jones as the non-moving party, it cannot be said as a matter of law that neither was deliberately indifferent to his serious medical condition. The evidence presents issues of material fact that a jury must decide. 25
That said, the summary judgment record lacks evidence that Defendant Ridings acted with the requisite deliberate indifference to support an Eighth Amendment claim, and Jones does not point to any. While Ridings is sporadically named throughout the record, Jones does not present evidence that she denied him care or was otherwise deliberately indifferent to his needs.
In sum, it is recommended that the Court grant the Medical Defendants' Motion for Summary Judgment as to Jones's First Cause of Action (July 9, 2017), and grant the Motion for Summary Judgment as the Third Cause of Action (October 21, 2017 - December 28, 2017) as to Defendant Ridings only. However, as to Jones's Third Cause of Action, it is recommended that the Court deny the Motion for Summary Judgment relative to Dr. Smyth and Physician Assistant. Bresnahan.
In making this recommendation, the Court understands the difficulties presented in treating a patient who repeatedly presents a security risk, rejects care, fails to comply with medication, and engages in self-harm, all well documented in Jones's medical records. In this instance and despite the care given, Jones presents the minimum quantum of evidence that precludes the entry of summary judgment to permit credibility determinations properly within the province of a jury.
b. First Amendment - Retaliation
The Medical Defendants next move for summary judgment as to Jones's First Amendment claims of retaliation. Jones alleges two broad First Amendment claims: (1) against Dr. Smyth and Nurse Tate arising out of the July 9, 2017 incident, and (2) against Dr. Smyth and Physician Assistant Bresnahan, arising out of his treatment for ingesting a plastic fork.
In order to establish illegal retaliation for engaging in protected conduct, [a prisoner] “must prove that: (1) his conduct was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to discipline him. Because motivation is almost never subject to proof by direct evidence, [the prisoner] must rely on circumstantial evidence to prove a26
retaliatory motive. He can satisfy his burden with evidence of either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing that suggests a causal link.Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser, 241 F.3d at 333; Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000); Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
As with Jones's Eighth Amendment claim arising out of the July 9, 2017 incident, summary judgment is appropriate as to Jones's First Amendment claim because the evidence reflects that his medical needs were timely and properly met, any alleged retaliation is not supported by the record and, in any event, did not cause the denial of care. At the same time, as discussed above, the record would permit a reasonable juror to conclude that Dr. Smyth and Physician Assistant Bresnahan deliberately disregarded Jones's need for further treatment and testing because he filed litigation and grievances against them. The timing of Jones's grievances and litigation generally coincided with the period Smyth and Bresnahan failed to timely order or reschedule diagnostic ultrasound testing to determine the cause of Jones's alleged severe pain. See Watson, 834 F.3d at 424 (stating that an inmate “can establish the third element of a prima facie case of retaliation with evidence of ... an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action”). The record also contains the declarations of an inmate witness and Jones, each setting forth the contents of statements allegedly made by both Smyth and Bresnahan directly attributing the failure or delay in treating his pain to his grievances and litigation.
Viewing the facts in the record in the light most favorable to Jones as the non-moving party, it cannot be said as a matter of law that Jones fails to present a viable retaliation claim against Dr. Smyth or Physician Assistant Bresnahan. See, e.g., Romero v. Ahsan, 827 Fed.Appx. at 228. 27 Accordingly, it is recommended that the Court grant the Medical Defendants' Motion for Summary as to Jones' First Amendment claim arising out of the July 9, 2017 incident, but deny the Motion for Summary Judgment as to his First Amendment claim arising out of the October 21, 2017 - December 28, 2017 incident as to Smyth and Bresnahan.
c. Fourteenth Amendment - Substantive Due Process
In his Amended Complaint, Jones broadly alleges that the conduct of all Defendants subjected him to the “denial of due process of law.” ECF No. 8 ¶ 66. This claim was previously dismissed as to the DOC Defendants under the “explicit source rule.” ECF No. 60 This long-recognized rule precludes pursuit of a claim under the Fourteenth Amendment where the claim is covered by a specific constitutional provision. ECF No. 60, ECF No. 56 at 13 (citing Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260-61 (3d Cir. 2010)).
The Medical Defendants seek the entry of summary judgment in their favor on identical grounds. ECF No. 119 at 4 n.1. Because Jones fails to present claims against the Medical Defendants not otherwise resolved under the First or Eighth Amendments, it is recommended that the Motion for Summary Judgment be granted as to Jones's Fourteenth Amendment substantive due process claims.
d. Fourteenth Amendment - Equal Protection
The Medical Defendants also seek entry of summary judgment in their favor as to Jones's claim that they treated Jones “in a way worse than other prisoners less deserving & similarly situated ….” ECF No. 8 ¶ 60. Construing this allegation as a claim for the violation of Jones's rights under the Equal Protection Clause of the Fourteenth Amendment, the Court granted the DOC Defendants' Motion to Dismiss, finding no facts showing “the existence of purposeful discrimination” or facts showing he was treated differently than any similarly situated prisoner. 28 ECF No. 60, ECF No. 56 (citing Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990) (citation omitted), superseded in part by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072)). The Medical Defendants urge the Court to enter judgment in their favor on identical grounds. ECF No. 119 at 20-21. Because Jones has not provided a factual basis or evidentiary support for his equal protection claim against any Medical Defendant, it is recommended that the Court grant the Motion for Summary Judgment.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended as follows:
1. The Court should grant the Motion for Summary Judgment filed on behalf of the Medical Defendants as to Jones's First Cause of Action, including his First and Eighth Amendment claims, arising out of alleged retaliation and the denial of medical care on July 9, 2017.
2. The Court should grant the Motion for Summary Judgment filed on behalf of the Medical Defendants as to Jones's Third Cause of Action, including his First and Eighth Amendment claims arising out alleged retaliation and the denial of medical care during the period October 21, 2017 through December 28, 2017, as to Medical Defendant Ridings only; however, the Court should deny the Motion for Summary Judgment as to Dr. Smyth and Physician Assistant Bresnahan.
3. The Court should grant the Motion for Summary Judgment filed on behalf of the Medical Defendants as to Jones's due process and equal protection claims arising under the Fourteenth Amendment.29
4. The Court should deny the Motion for Summary Judgment filed on behalf of the DOC Defendants as to Jones's Fourth Cause of Action alleging the violation of his Eighth Amendment rights by Defendants Adamson, Hechavarria, and Ramirez.
5. The Court should grant the Motion for Summary Judgment filed on behalf of the DOC Defendants as to all claims arising out of Jones's First and Third causes of action, including the violation of his First Amendment rights, the violation of his Eighth Amendment rights for deliberate indifference to his serious medical needs, and the violation of his Eighth Amendment rights for the alleged failure to intervene to provide medical treatment.
6. For the reasons explained throughout this Report and Recommendation, the Court should deny Jones's “Motion in Opposition to Defendants' Requests for Summary Judgment.”
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 30 file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2. 31