Opinion
1:19-cv-000164 (ERIE)
12-15-2021
LORENZO NICHOLS, Plaintiff v. JERI SMOCK, et al., Defendants
REPORT AND RECOMMENDATION
ECF NO. 69
HON. RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that the Defendants' Motion for Summary Judgment (ECF No. 69) be GRANTED.
II. Background and Procedural Posture
Plaintiff Lorenzo Nichols (“Nichols”), proceeding pro se, brings this civil rights action against Physician Assistant Daniel Stroup (“Stroup”) and Anthony Letizio, D.O. (“Letizio”) (collectively “Defendants”), two members of the medical staff at the State Correctional Institution at Albion (“SCI Albion”), where Nichols is incarcerated. See ECF No. 41 (Amended Complaint). Nichols claims both Defendants provided him with medical care in May of 2018 that was so deficient that it violated his Eighth Amendment right to be free from cruel and unusual punishment. Defendants have filed a Motion for Summary Judgment (ECF No. 69), a Concise Statement of Material Facts (ECF No. 70), and a supporting brief. (ECF No. 71). Nichols filed a brief in opposition to the motion (ECF No. 75) and a Statement of Material Facts. (ECF No. 76). Defendants filed a Reply Brief (ECF No. 78) and a Response to Nichols' Statement of Material Facts (ECF No. 79).
The claims against a third defendant, Health Care Administrator Jeri Smock, were previously dismissed by Order of this Court. ECF Nos. 54, 57.
Defendants argue that the factual record does not support the findings necessary to sustain Nichols' Eighth Amendment claim. In support of this position, Defendants have submitted 181 pages of medical records they say shows that Nichols was provided with constitutionally adequate medical care during his incarceration. (ECF. No. 70, Ex. 1). In response, Nichols argues that the Defendants ignored his symptoms of diabetes and diabetic ketoacidosis and denied him medical tests necessary to diagnose his condition. This inaction, he contends, allowed his condition to worsen to the point of requiring his hospitalization. The matter has been fully briefed and is ripe for disposition.
III. Material Facts
The record supports the following facts and reasonable inferences:
On May 8, 2018, Nichols was seen by the medical department at SCI Albion for a sick call visit. See ECF No. 41, ¶ IV.C. Nichols complained to Stroup of symptoms of fatigue, tiredness, dry mouth, frequent urination, and weight loss. See id. Nichols mentioned to Stroup that “numerous staff and inmates at SCI-Albion were informing him that he might have Diabetes.” Id. Stroup answered that he was a diabetic himself and that he would order lab work because Nichols had not had lab work or a physical since October of 2010. See id. In the meantime, Stroup diagnosed Nichols with an ear infection and prescribed amoxicillin. See id. The Progress Notes from the visit include the following narrative:
Subjective: Sick call c/o dizziness, dehydration ear fullness sore throat.
Assessment: H66.009 - Otitis media, acute - [STROUP, DANIEL] - 2016-03-07.
Plan: Amoxicillin 250mg capsule (Amoxil)(Medical) - [Take 2 capsule(s) orally twice daily] - (5/8/2018 - 5/14/2018].ECF No. 70, Ex. 1 at 135.
Stroup's medical notes do not include any notation that Nichols raised any concerns that he may have diabetes or that Stroup intended to order lab work to assess the same. The sick call request submitted by Nichols also does not mention diabetic symptoms or Nichols' concern that he might have diabetes. “From the moment I had awakened this morning, I've been experiencing severe dizzy spells.” [February 2, 2018 Sick Call request]. See ECF No. 70, Ex. 1 at 5.
All other sick call notes penned by Nichols and included in the record post-date his May 8, 2018 appointment with Stroup and his diagnosis of diabetes on May 17, 2018. See 70, Ex. 1.
Nichols asserts that his symptoms of weight loss, thirst, and excessive urination had persisted and become more noticeable by the staff and inmates at SCI-Albion. See ECF No. 41, ¶ IV.C. On May 15, 2018, one week after his consultation with Stroup, Nichols was called to the SCI-Albion Medical Department by Letizio who said that “he received e-mails from staff members at SCI-Albion who were concerned about Plaintiff [sic] rapid weight loss.” Id. Nichols updated Letizio on his medical issues and his past visit with PA Stroup. See id. Letizio said no lab work was ordered but that he would do so. See id. Nichols said that he requested that Letizio perform a finger stick to check his blood glucose level during the visit but Letizio declined to perform the blood test. See id. Letizio's notes from the May 15, 2018 appointment read as follows:
Subjective: Seen and examined in medical due to weight loss. He has been in Albion since 2008. He states his usual weight is about 230. He was weighed at 194. Today he is 193. He states he is not eating three meals a day due to a feeling of pressure that has started in his stomach and now appears to be in his throat. All of this has happened in the last three to four weeks. Denies fevers, nausea, or vomiting. He does admit to chills. He tries at times to eat commissary soups. He states his mother is incarcerated with diabetes. His grandmother on his mother's side passed away from cancer. Bowel movements are reported to be once a day with blood on the paper when he cleans
himself. He states that he is urinating about every hour or two. Long history of nicotine addiction more than one pack per day.
Assessment: Rapid weight loss due to not eating secondary to feeling ill. Questionable Diabetes.
Plan: Will start with labs including an A1C level. Follow up after blood work.ECF 70, Ex. 1 at 132.
Two days later, on May 17, 2018, Nichols asked to return to medical because he felt his symptoms were worsening. See ECF No. 41, ¶ IV.C. He wanted to have his blood glucose level checked. Once there, Nichols spoke with Nurses Luba and Wofford about his symptoms. See id. The nurses took a urine sample and a blood glucose level. See id. Nichols' test results revealed a high number of ketones in his urine and a blood glucose level of over 552 mg/dl. See id. Nichols was transported to UPMC Hamot Hospital where “it was determined that Plaintiff's Blood Glucose Level was 700 mg/dl.” Id. “Plaintiff was told by doctors at the hospital that it was amazing that he was still standing, and that Plaintiff should be in a coma or even dead with a Blood Glucose Level of 700 mg/dl.” Id. Nichols remained in the hospital for treatment of diabetic ketoacidosis until May 21, 2018. See id. Afterwards Nichols returned to the infirmary at the prison for observation and was eventually returned to the general population.
Defendants describe a slightly different version of Nichols' medical visit on May 17, 2018. Defendants state that Nichols was seen by RN Katy Lock who performed the blood and urine tests. “Nurse Lock concluded that he was hypoglycemic and had him sent to University of Pittsburgh Medical Center Hamot for further treatment per Dr. Letizio's orders.” ECF 71 at 4; see also ECF 70 ¶ 7; Ex. A at 124-131.
IV. Standard and Scope of Review
Federal Rule of Civil Procedure 56(a) requires the court to enter 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). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. See Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. See Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
IV. Discussion and Analysis
Where prison officials respond to a prisoner's serious medical need with deliberate indifference, they violate the prisoner's Eighth Amendment right to be free from cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97 (1976) (stating that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment”) (internal quotation omitted). To establish such a violation, a plaintiff must demonstrate: (1) he has a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is “one that has been diagnosed as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” See Walker v. Brooks, 2009 WL 3183051 (W.D. Pa. Sept. 30, 2009) (citing Monmouth County Correction Institute Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)). In determining the seriousness of a medical condition, courts look to certain factors, including: (1) “whether ‘a reasonable doctor or patient would find [it] important and worthy of comment'”; (2) “whether the condition ‘significantly affects an individual's daily activities'”; and (3) “whether it causes ‘chronic and substantial pain.'” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (citations omitted).
The serious nature of Nichols' diabetes and the symptoms and risks associated with the disease are not in dispute. See Medina-Claudio v. Pereira, 443 F.Supp.2d 208, 212 (D.P.R. 2006) (recognizing diabetes as a serious medical need). Nichols' diabetic condition had yet to be diagnosed when he was evaluated by Stroup on May 8, 2018 and when Letizio called him to the medical department a week later. Nevertheless, Nichols' rapid weight loss and other symptoms evidenced a need for medical attention, and, according to Nichols, he specifically told Stroup that he feared he might have diabetes when he met with him. In any case, while Stroup and Letizio may not have diagnosed Nichols' diabetic condition, they indisputably recognized that Nichols needed some care as evidenced by the fact that they prescribed medication and other treatment for his symptoms. Considered in its totality, the record reasonably supports a finding that Nichols had a serious medical need when he was examined by Stroup and Letizio in May of 2018.
The dispositive issue presented by the Defendants' motion is whether the record supports a finding that Stroup or Letizio exhibited deliberate indifference to Nichols' medical need. Deliberate indifference can manifest in an intentional refusal to provide care, in delaying medical treatment for non-medical reasons, in the denial of prescribed medical treatment, or reasonable requests for treatment that result in suffering or risk of injury. See Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993). Deliberate indifference can also be found where prison medical personnel continue with “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990). In any form, deliberate indifference exists only where “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 harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
As noted, Nichols does not dispute that Stroup and Letizio evaluated his condition and prescribed treatment. Instead, he asserts that they did not provide proper and appropriate treatment in response to his symptoms, his specific concern that he might have diabetes, and his request for specific tests. Ultimately, Nichols' concern that he might have diabetes proved correct, and the record could reasonably support findings that his condition was initially misdiagnosed and that his initial treatment was incorrect or incomplete. Such findings alone, however, would not establish an Eighth Amendment violation. First, it is well-established that “an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.” Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail to state constitutional claims because “the exercise by a doctor of his professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.”)). “Therefore, where a dispute in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as a constitutional claim under § 1983.” Tillery, 2018 WL 3521212, at *5 (citing Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009) (characterizing a dispute over pain medication as the type of “disagreement over the exact contours of [plaintiff's] medical treatment” that does not violate the constitution)).
Second, “the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice standing alone is not a constitutional violation.” Tillery, 2018 WL 3521212, at *5 (quoting Estelle, 429 U.S. at 106). “Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). Thus, “courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.” Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018) (quoting Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)). See also Wisniewski v. Frommer, 751 Fed.Appx. 192, 195-96 (3d Cir. Oct. 3, 2018) (noting that “there is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'”) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017)).
With the foregoing principles in mind, the Court will separately examine the treatment decisions and other conduct of Stroup and Letizio.
A. Stroup
Nichols' claim against PA Stroup focuses on their encounter in the medical department on May 8, 2018, following his request to be seen by medical. Nichols' medical records regarding that visit document that he complained of “dizziness, dehydration, ear fullness, sore throat” and that Stroup assessed his condition as acute otitis media-i.e., an ear infection. Nichols' medical records further report that Stroup prescribed an antibiotic, amoxicillin, with directions that Nichols take two 250mg-capsules twice daily. ECF No. 70, Ex. 1 at 135. Nichols asserts that he also related symptoms of fatigue, dry mouth, frequent urination, and weight loss to Stroup and advised him that he was concerned that he might have diabetes. Nichols attests that Stroup acknowledged his symptoms and advised him that he would order lab work.
The only sick call request in the record is dated February 2, 2018. This request reports a complaint of dizziness only. It is unknown whether this is the request that prompted the May 8, 2018 appointment with Stroup.
The record thus confirms that Stroup rendered a diagnosis of Nichols' condition-albeit one that was incorrect or incomplete, and prescribed treatment-albeit treatment that did not address his yet-to-be diagnosed diabetes. The record also includes evidence that Stroup did not document certain other symptoms reported by Nichols and did not promptly order lab tests to assess whether a diagnosis of diabetes was indicated. Considered in the light most favorable to Nichols, this record reflects a difference in medical opinion, a misdiagnosis of Nichols' condition, and, possibly, medical negligence. But this record does not support a finding that Stroup acted with deliberate indifference to his medical needs. It is undisputed that Stroup examined and evaluated Nichols following his request for medical attention; that he recorded Nichols' vital signs and other objective information from his examination and documented at least some of Nichols' reported symptoms; and that he recorded his diagnosis of an ear infection in Nichols' records and prescribed an antibiotic to treat the infection. Although Stroup failed to diagnose Nichols' diabetes despite symptoms and complaints indicating such condition and failed to promptly order follow-up tests that likely would have confirmed diabetes, these omissions support only a potential finding of medical negligence. Medical negligence does not support a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106 (“a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment[; m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Whitley v. Albers, 475 U.S. 312, 319 (1986) (same); see also Starbeck v. Linn Cty. Jail, 871 F.Supp. 1129, 1144 (N.D. Iowa 1994) (the fact that prison doctor misdiagnosed the prisoner's condition and his method of physical examination and treatment may not have followed community standards does not amount to deliberate indifference) (citing DesRosiers v. Moran, 949 F.2d 15, 19-20 (1st Cir. 1991)). Furthermore, the record does not support a finding that Stroup engaged in a pattern of neglect towards Nichols. Instead, the record documents that Nichols regularly visited the medical department and consistently received attention and treatment from medical personnel, including Stroup. The examination and treatment Stroup provided to Nichols on May 8, 2018, as well as the medical attention he received before and after that date, belie any knowing disregard of his medical needs. The record does not include evidence to support a finding that Stroup's failure to promptly order follow-up lab work as he discussed with Nichols was the result of anything beyond inadvertence.
Decisions by the Court of Appeals for the Third Circuit affirming dismissals of analogous Eighth Amendment claims are instructive in this case and further support the entry of summary judgment in favor of Stroup. In McGinnis v. Hammer, the inmate-plaintiff complained of severe knee pain and was seen by a physician assistant who prescribed Ibuprofen but did not physically examine his knee. 2017 WL 4286420, at *1 (W.D. Pa. July 28, 2017), report and recommendation adopted, 2017 WL 4236063 (W.D. Pa. Sept. 25, 2017), affd, 751 Fed.Appx. 287 (3d Cir. 2018). The inmate later told the same physician assistant the Ibuprofen was not working, and the physician assistant “canceled the [prescription] without prescribing any other pain medication, ” allegedly in retaliation for the inmate's having filed a grievance against him based on his failure to examine his knee. Id. at 3. The inmate sued the physician assistant and asserted a retaliation claim and an Eighth Amendment claim based on his failing to conduct a physical examination of his knee. Id. The district court found the inmate's disagreements with the physician assistant's treatment decisions did not state a plausible claim for deliberate indifference. The court explained that “[e]ven if [the physician assistant] could be considered negligent in assessing ligament strain instead of tendonitis, in failing to conduct a physical examination of Plaintiff s knee, in declining to order diagnostic tests, or in failing to initially provide ameliorative measures such as a knee brace, an ace wrap, or crutches, such malfeasance would be insufficient to state an Eighth Amendment violation.” Id. at 9. The Court of Appeals affirmed the district court's order granting the defendant's motion to dismiss. 751 Fed.Appx. 287.
In Edwards v. Northampton County, a pretrial detainee asserted claims against prison medical personnel based on inadequate treatment of an infection in his leg that he alleged he contracted due to unsanitary cell conditions. 2016 WL 7654661, at *1 (E.D. Pa. Apr. 29, 2016), affd, 663 Fed.Appx. 132 (3d Cir. 2016). The district court granted summary judgment for the prison officials and the plaintiff appealed. Affirming the district court's rejection of the plaintiff s deliberate indifference claim, the Court of Appeals emphasized that the detainee received “some medical treatment” and “the undisputed medical record shows ... the medical defendants tailored [his] treatment to the symptoms he was displaying at the time, pursuant to their professional judgment.” Edwards v. Northampton County, 663 Fed.Appx. 132, 137 (3d Cir. 2016). The Court of Appeals further emphasized that the detainee's mere disagreement over the adequacy of treatment did not support a deliberate indifference claim, as the inmate “offered no evidence from which a reasonable juror could conclude ... the defendants intentionally refused to provide needed treatment, delayed necessary treatment for a non-medical reason, prevented [him] from receiving needed or recommended treatment, or persisted in a particular course of treatment ‘in the face of resultant pain and risk of permanent injury.'” Id. (quoting Rouse, 182 F.3d at 197).
Similarly, in Bryant v. Kaskie, the Court of Appeals affirmed the dismissal of an inmate's claim that a nurse practitioner violated the Eighth Amendment when she prescribed Risperidone without informing him about its known side effects and he developed gynecomastia, one of those side effects. 744 Fed.Appx. 39, 42 (3d Cir. 2018). The Court of Appeals held that the nurse practitioner's “alleged failure to inform [the inmate] of the potential side effects of Risperidone is insufficient to demonstrate deliberate indifference, ” because “[e]ven if this allegation could rise to the level of negligence, simple negligence cannot support an Eighth Amendment claim.” Id.
As the foregoing cases illustrate, medical errors and omissions will not support a deliberate indifference claim where medical personnel provided some medical treatment to the plaintiff based on his symptoms. Examined in the context of the entire record, Stroup's medical errors and omissions do not rise to the level of deliberate indifference necessary to sustain an Eighth Amendment claim. Accordingly, it is recommended that Defendants' motion for summary judgment be granted as to the Eighth Amendment claim against PA Stroup.
B. Letizio
Letizio saw Nichols on May 15, 2018, after prison staff emailed him and advised that Nichols looked unwell. Upon examining Nichols, Letizio acknowledged that his symptoms and family history indicated possible diabetes, and he ordered lab work to confirm or exclude this diagnosis. However, Letizio did not perform a blood glucose test at the time of the appointment despite Nichols' request for the test. Two days later, on May 17, 2018, Nichols returned to the medical department and reported that he was not feeling well and was experiencing the same symptoms he had when he last saw Letizio. On this occasion, nurses performed a blood test that revealed a very high blood glucose level. Nichols was transported to UPMC Hamot Medical Center, where he was admitted and treated for diabetes and ketoacidosis. Nichols asserts that Letizio's denial of the blood glucose test on May 15th constituted deliberate indifference to his serious medical need in violation of his Eighth Amendment rights.
The record in this case might support a reasonable jury's finding that Letizio erred in failing to order an immediate blood glucose test in response to Nichols' symptoms and complaints on May 15. But, as discussed above, this is not the dispositive issue. The same precedent that supports dismissal of the claim against Stroup requires dismissal of the claim against Letizio. Letizio examined Nichols and ordered tests to assess him for diabetes. His failure to order the blood glucose test that Nichols requested represented Nichols' disagreement with Letizio's medical judgment and, potentially, medical negligence on the part of Letizio. Nevertheless, that Letizio provided treatment intended to address his medical condition negates a finding of deliberate indifference. See Bruton v. Gillis, 2008 WL 4453367, at *12 (M.D. Pa. Sept. 30, 2008) (stating that “the Eighth Amendment does not require that a prisoner receive every medical treatment that he requests or that is available elsewhere”). Because no genuine issue of material fact remains for trial and Letizio has demonstrated his entitlement to judgment as a matter of law, judgment should be entered in his favor on Nichols' Eighth Amendment claim.
V. Conclusion
For the foregoing reasons, it is respectfully recommended that Defendants' Motion for Summary Judgment (ECF. No 69) be GRANTED.
VI. Notice to the Parties Concerning Objections
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, the Parties have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto.
The failure to file timely objections will constitute a waiver of their appellate rights.