Opinion
3:22-cv-224
06-01-2023
KEITH ALEXANDER, Plaintiff, v. CASEY THORNLEY, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Plaintiff, Keith Alexander (“Alexander”), is a state prisoner who is currently housed at SCI Houtzdale. For the reasons that follow, it is respectfully recommended that the Court deny his motion for a preliminary injunction. (ECF No. 5.)
II. Report
A. Background
Alexander commenced this action pro se on December 1, 2022 by filing his complaint (ECF No. 4) and a motion for a preliminary injunction (ECF No. 5). He alleges that Defendants Casey Thornley,Patrick Nagle, Deanna Dellatore, Anne White, Muhammad Naji, and Wellpath LLC (together, the “Houtzdale Medical Defendants”), Defendant Terri Sechrengost, Defendant Stephen Schleicher,and John and Jane Doe Defendants failed to properly treat his rash-like condition, which began as early as 2017. (ECF No. 4.) Alexander alleges that the prolonged use of corticosteroid cream to treat his rash caused other severe issues including “itching, trouble breathing, dark urine, loss of memory and energy, a change in eyesight and balance, and a change in skin color.” (Id.) Alexander brings an Eighth Amendment denial of medical care claim (Count I), a negligence/medical malpractice claim (Count II), and a Monell claim as to Defendant Wellpath LLC (Count III). (Id.)
One paragraph in the Complaint indicates that Casey Thornley has changed her last name to “James” after getting married. (ECF No. 4 ¶ 23.) Because she is identified as Casey “Thornley” in the caption, the Court will identify her by that name.
Defendant Schleicher is incorrectly identified in the caption and the complaint as “Schleider.” (ECF No. 48 at 1.) The Court will refer to him in this opinion as “Schleicher.”
Alexander's Motion for Preliminary Injunction seeks the following injunctive relief from “Defendants WellPath LLC, Muhammad Naji, and Terri Sechrengost and their agents, servants, employees, attorneys and all persons acting in concert with Defendants WellPath, LLC, Muhammad Naji, and Terri Sechrengost”:
(a) [Enjoining Defendants from depriving Plaintiff of] his constitutional right to adequate medical care and;
(b) Allow[ing] or provid[ing] the Plaintiff an opportunity to consult a specialist locally to [p]rovide the Plaintiff with the proper tests, diagnosis, and consultation necessary to determine the cause of the Plaintiff's ongoing skin condition; and
(c) Provid[ing] the Plaintiff with an alternative treatment plan that does not rely on the prolonged use of corticoster[oi]d creams, which are known to cause [topical steroid withdrawal] syndrom[e]; and
(d) Provid[ing] the Plaintiff with a continued treatment plan for the [topical steroid withdrawal] syndrom[e] that has occurred due to the Medical Defendants['] prolonged p[re]scription and suggested use of the corticosteroid creams.(ECF No. 5 at 2-3.)
After all named Defendants were served, the Court ordered them to respond to Alexander's Motion for a Preliminary Injunction. (ECF No. 38.) The Houtzdale Medical Defendants, Defendant Sechrengost, and Defendant Schleicher, each filed a brief in opposition to Alexander's. Motion. (ECF Nos. 48, 50, & 51.) Thereafter, Alexander filed a brief in response. (ECF No. 52.) The motion is ripe for disposition.
Rule 65 of the Federal Rules of Civil Procedure “does not make a hearing a prerequisite for ruling on a preliminary injunction.” Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d Cir. 1990). “[A]n evidentiary hearing is not necessary when, ‘based on affidavits and other documentary evidence[,] ... the facts are undisputed and the relevant factual issues are resolved' or if ‘the movant has not presented a colorable factual basis to support the claim on the merits or the contention of irreparable harm.'” Pletcher v. Giant Eagle Inc., Civil Action No. 2:20-754, 2020 WL 6263916, at *2 (W.D. Pa. Oct. 23, 2020) (citing Bradley, 910 F.2d at 1178). Here, as discussed further below, Alexander's Motion for a Preliminary Injunction is not supported by any evidence, and the evidence attached to his Complaint is insufficient to meet the “particularly heavy” burden to show that a preliminary injunction is warranted.
B. Legal Standard
It is well established that temporary or preliminary injunctive relief is “an extraordinary remedy” and “should be granted only in limited circumstances.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (quoting American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). In evaluating a movant's request for a temporary restraining order or preliminary injunctive relief, courts employ the familiar four-factor balancing test. Reilly v. City of Harrisburg, 858 F.3d 173, 176-79 (3d Cir. 2017); (“(1) the plaintiff shows that it is likely to succeed on the merits; (2) the plaintiff establishes that it is likely to suffer irreparable harm absent issuance of the injunction; (3) the balance of equities does not disfavor granting an injunction; and (4) public interest concerns do not outweigh the interests advanced by issuance of the injunction.” (citing Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008)). A court should not grant relief “unless the movant, by a clear showing, carries the burden of persuasion.” Holland v. Rosen, 895 F.3d 272, 285 (3d Cir. 2018) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
“[A] movant for preliminary equitable relief must meet the threshold for the first two ‘most critical' factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief.” Reilly, 858 F.3d at 179. “Although the plaintiff need not prove their case with airtight certainty, the moving party nevertheless bears a heavy burden on a motion for a preliminary injunction of establishing a reasonable probability of success on the merits.” Burton v. Wetzel, 2017 WL 4284345, at *7 (M.D. Pa. Sep. 27, 2017) (internal quotations and citations omitted). “This burden is ‘particularly heavy' where[,]” as is the case here, “the requested injunction ‘is directed not merely at preserving the status quo but . . . at providing mandatory relief.'” Williams v. Lee, No. 1:19-cv-41, 2019 WL 2285776, at *2 (W.D. Pa. May 29, 2019) (quoting Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980)). “If these gateway factors are met, a court then considers the remaining two factors [the possibility of harm to other interested persons from the grant or denial of the injunction and the public interest] and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.” Reilly, 858 F.3d at 179.
In addition to the pending motion for a preliminary injunction, it is worth noting that three motions to dismiss (ECF Nos. 21, 29 & 56) are currently pending. In resolving Alexander's motion for a preliminary injunction, the Court does not take a position on the pending motions to dismiss except to note that there are “significant differences” between the two standards. Bruni v. City of Pittsburgh, 824 F.3d 353, 361 n.11 (3d Cir. 2016). “[A] plaintiff's failure to meet his burden on a motion for a preliminary injunction does not mean ipso facto that the complaint fails to state a claim.” Id. Here, on a motion for a preliminary injunction, the focus is on whether a plaintiff has met his “burden to show, among other things, that he is likely to succeed on the merits,” whereas at the motion to dismiss phase, “plaintiff need only demonstrate that he may be entitled to relief under any reasonable reading of the complaint, and [t]he defendant bears the burden of showing that no claim has been presented.” Id. (internal citations and quotations omitted).
C. Discussion
Based upon a review of the record evidence, Alexander has not met his “particularly heavy” burden to show that a preliminary injunction ordering Defendants to provide him with an opportunity to consult a local specialist, begin an alternative treatment plan for his rash, and treat his topical steroid withdrawal syndrome is warranted.
1. Alexander Has Not Demonstrated a Reasonable Probability of Eventual Success on the Merits
Alexander argues that there is a reasonable likelihood that he will prevail on the merits because he has been denied adequate medical care since late 2020 for a condition that has been undiagnosed for over five years. (ECF No. 5 ¶ 1.) Specifically, he alleges that Defendants have used a topical corticosteroid cream, which have caused him severe side effects, and he has not been able to consult a specialist for two years. (Id.) Despite making these allegations, Alexander has submitted no evidence in support of his motion for a preliminary injunction although he did attach certain materials to his Complaint. (ECF Nos. 4-1, 4-2, 4-3, & 4-4.) Even if the Court, in its liberal approach to pro se pleadings, considers the evidence he submitted with his verified Complaint, Alexander still has failed to demonstrate either a reasonable probability of eventual success on the merits or irreparable harm.
All Defendants contend that Alexander cannot show a reasonable likelihood that he will succeed on the merits. The Houtzdale Medical Defendants argue that Alexander's skin condition does not rise to the level of a “serious medical need” and that mere disagreement with medical treatment is not an Eighth Amendment violation. (ECF No. 50 at 16-17.) In support of their position, the Houtzdale Medical Defendants attach Alexander's available medical records from approximately March 2022 until January 2023 as an exhibit (ECF No. 50-1) to outline the care he has received for his conditions. (See ECF No. 50 at 5-15.) In her response, Defendant Sechrengost references the arguments in her pending motion to dismiss and argues that she should be dismissed because “she is a non-medical prison administrator and Plaintiff is under the care of other medical professionals.” (ECF No. 51 ¶ 11 (citing ECF No. 30).) Finally, Defendant Schleicher argues that Alexander cannot show a likelihood success on the merits on his negligence claim because Alexander has not filed the required Certificate of Merit and that his constitutional claim fails because this is a case of mere disagreement with medical judgment that does not rise to the level of an Eighth Amendment deliberate indifference claim. (ECF No. 48 at 3-4.)
Alexander's response to Defendants' briefs in opposition does not attach any supplemental evidence but further expands on his arguments in favor of a preliminary injunction and references Defendants' evidence. Alexander argues that the fact that Defendants only provide evidence of his medical records for the past year ignores his medical history of the past five years that will show he has had more than six different assessments for the same symptoms without a proper diagnosis or treatment plan. (ECF No. 52 at 1-2.) Alexander asserts that courts have found that the fact that a prison medical staff provides some care does not precluding a finding of deliberate indifference. (Id. at 2 -3.) Finally, Alexander uses the Houtzdale Medical Defendants' exhibit to argue that his condition constitutes a serious medical need. (Id. at 3-4.)
With respect to Count I (Eight Amendment) and Count III (Monell Liability), Alexander has not shown that he has a reasonable probability of success on the merits with respect to his claims. To prevail on an Eighth Amendment inadequate medical care claim, a plaintiff must prove (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Count III is a Monell liability claim against Defendant Wellpath LLC. Monell liability requires that the plaintiff “show a predicate constitution violation of [his] rights.” Young v. City of Chester, 764 Fed.Appx. 262, 265 (3d Cir. 2019) (citing Startzell v. City of Phila., 533 F.3d 183 (3d Cir. 2008).) Because Alexander has not met his burden to show that there is an underlying constitutional violation, he has also not met his burden as to his Monell claim.
Even assuming for purposes of Alexander's pending motion that he has a serious medical need, Alexander has failed to show that prison officials acted deliberate indifference to any such serious medical need. Because deliberate indifference is a “‘subjective standard of liability[,]'. . . a defendant cannot be held liable unless he or she' ‘knows of and disregards an excessive risk to [a complainant's] health or safety.'” Mattern v. City of Sea Isle, 657 Fed.Appx. 134, 140 (3d Cir. 2016) (quoting Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003)). To be sure, the relevant inquiry “is whether prison officials, acting with deliberate indifference, exposed [the inmate] to a sufficiently ‘substantial risk of serious damage to his future health . . . '” Farmer v. Brennan, 511 U.S. 825, 843 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993).)
“It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.'” Rouse, 182 F.3d at 197; Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). Because “courts give prison medical personnel wide latitude in the diagnosis and treatment of inmates,” they should “‘disavow any attempt to second guess the propriety or adequacy of a particular course of treatment. . . which remains a question of sound professional judgment.'” Kennedy v. S.C.I. Rockview Emples., No. 3:10-CV-1764, 2010 WL 4853959, at *4 (M.D. Pa. Nov. 22, 2010) (citing Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). Thus, mere allegations of malpractice or mere disagreement as to the proper medical treatment do not support an Eighth Amendment claim. Id. (citing Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) and White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
The Third Circuit has “explained that deliberate indifference is ‘evident' in certain circumstances, including: (i) the denial of reasonable requests for medical treatment that expose the complainant to undue suffering; (ii) knowledge of the need for medical care and the intentional refusal to provide such care; or (iii) the delay of necessary medical treatment for non-medical reasons.” Mattern, 657 Fed.Appx. at 140 (citing Monmouth, 834 F.2d at 346-47 (3d Cir. 1987)). The Third Circuit has also found “‘deliberate indifference' where prison officials ... continue a course of treatment they know is painful, ineffective, or entails a substantial risk of serious harm.” Williams v. Kort, 223 Fed.Appx. 95, 100 (3d Cir. 2007) (citing Rouse, 182 F.3d at 197 and White, 897 F.2d at 109).
The Court has considered the record evidence in light of the Third Circuit's case law outlining instances of deliberate indifference. Although Alexander alleges that Defendants only focus on the last year of his medical history and ignore the fact that they have failed over five years to discover the cause of his condition, his verified Complaint describes how he had seen an outside dermatologist for continuing care on his skin rash from 2017 to July 2020 and was also treated during this time period by the Houtzdale medical staff. (ECF No. 4 ¶¶ 15-20.) After that time, he was still seen by the medical team at Houtzdale and was “quite recently” seen by an outside dermatologist prior to filing his Complaint.(Id. ¶¶ 20, 23, 24, 27.) The medical records provided by the Houtzdale Medical Defendants show that Alexander has received medical care from March 2022 to January 2023, such as lab tests, including biopsies; various prescription and nonprescription creams; different diagnoses based on observation of his then-current symptoms; and visits with and referrals to physicians within and outside of SCI Houtzdale (ECF No. 50 at 5-15 (summarizing treatment history); ECF No. 50-1).
It appears that the reference to the Complaint to “quite recently” is October 2022. (ECF No. 4 ¶ 23.) Alexander's Complaint was filed on December 2, 2022, and it alleges that between 2020 and October 2022, he was denied any opportunity to consult with a dermatologist. (Id. ¶ 25.)
Further, Alexander's conclusion that he is not being properly treated for his rash nor properly monitored for adverse reactions, including topical steroid withdrawal syndrome, stems from his own reading of the instructions for one of his creams and articles on topical steroid withdrawal syndrome from Prison Health News, whereas the medical records provided by the Houtzdale Medical Defendants show a history of continuing care for a variety of conditions.
Considering all the record evidence, Alexander has not met his “heavy burden on a motion for a preliminary injunction of establishing a reasonable probability of success on the merits,” Williams, 2019 WL 2285776, at *2, specifically, he has not shown that the Defendants were deliberately indifferent to a serious medical need.
Additionally, Alexander has also not his met his burden with respect to Count II- Alexander's negligence or medical malpractice claim. Pennsylvania Rule of Civil Procedure Rule 1042.3(a) provides that “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, ... the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit..” See Pa. R. Civ. P. 1042.3(a). “[Rule 1042.3(a)] constitutes substantive law that must be applied by federal courts in professional liability cases arising under Pennsylvania common law.” Nuyannes v. Thompson, 11-2029, 2011 WL 5428720, at *2 (E.D. Pa. Nov. 8, 2011) (collecting cases and noting that “failure to submit a certificate of merit is a possible ground for dismissal under Rule 12(b)(6)”); Young v. Halligan, 789 Fed.Appx. 928, 931 (3d Cir. 2019).
Here, the Court has granted Alexander two extensions for filing his Certificate of Merit, which is now due by June 24, 2023 (ECF Nos. 19 & 43). Although the deadline for producing a Certificate of Merit has not yet expired, Plaintiff has also not yet provided one, such that Alexander-at this time-has also failed to show a reasonable likelihood of success on the merits as to his negligence or medical malpractice claim (Count II).
2. Alexander Has Not Demonstrated Irreparable Harm
Alexander also fails to demonstrate that absent injunctive relief, he will suffer irreparable harm. “‘[T]o demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.'” Siemens USA Holdings Ing v. Geisenberger, 17 F.4th 393, 407-08 (3d Cir. 2021) (quoting Campbell Soup v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992)). Plaintiff must “produce affirmative evidence indicating that he or she will be irreparably harmed should that relief be denied,” Marxe v. Jackson, 833 F.2d 1121, 1127 (3d Cir. 1987) (citations omitted), and the threatened harm “must not be speculative,” Adams v. Freedom Forge Corp., 204 F.3d 475, 487-88 & n.13 (3d Cir. 2000). “Thus, even though the preliminary injunction inquiry is forward looking, the court can and must determine whether the moving party has established ‘that it specifically and personally risks irreparable harm' to succeed on this factor.” ADP, Inc. v. Levin, No. 21-2187, 2022 WL 1184202, at *2 (3d Cir. Apr. 21, 2022) (citing Adams, 204 F.3d at 487).
The Houtzdale Medical Defendants argue Alexander's allegations show that his condition is not a new condition that threatens imminent irreparable harm and that Alexander's request to see a dermatologist is moot because he was seen by one on October 20, 2022. (ECF No. 50 at 2, 16.) Defendant Sechrengost also argues that Alexander fails to show any immediate harm, albeit with no concrete example. (ECF No. 51 ¶ 12.) Finally, Defendant Schleicher argues that Alexander has failed to demonstrate that he will suffer irreparable harm, because Alexander's examples of “permanent discoloration of his skin” and “risk of imminent harm due to the potential effects of' topical steroid withdrawal syndrome both represent speculative, future harm. (Id. at 45.)
Alexander argues that he has met his burden of showing irreparable harm because he has suffered significant scarring on the vast majority of his skin that has gotten progressively worse over the past five years and is characterized by both hypopigmentation and hyperpigmentation. (ECF No. 52 at 7.) He also argues that his prolonged use of corticosteroid cream, along with Defendants' refusal to let him a specialist and monitor and test for side effects, will cause him to suffer “serious physical and mental injuries, such as the permanent discoloration of the skin,' impair his health, and cause pain. (ECF No. 5 ¶ 2; ECF No. 52 at 8.) Finally, he asserts that Defendants place him in “a risk of imminent harm due to the potential effects of Topical Steroid Withdraw[a]l Syndrom[e] (TSW), which can cause depression, disability, and permanent disfigurement.' (ECF No. 5 ¶ 2.)
Other than reference to articles on the topical steroid withdrawal syndrome and instructions accompanying one of the creams he was prescribed that he, as a layperson, has read, and reference to some of the observations in his medical record provided by the Houtzdale Medical Defendants, Alexander has not produced any affirmative evidence (for example, from a medical expert) to show that he actually suffers from the conditions for which he seeks relief and that such conditions (or complications thereof) would irreparably harm him should his preliminary injunction be denied. Further, the Houtzdale Medical Defendants medical records show that Alexander has been treated as recently as January 2023 for various skin conditions. (ECF No. 501.) Because Alexander relies on only his own self-diagnosis and does not present any affirmative evidence, he has failed to show any irreparable harm if his request for injunctive relief is denied.
D. Conclusion
Finally, Alexander's Motion for Preliminary Injunction seeks “largely the same injunctive relief sought in his initial complaint” (compare ECF No. 4 at 11-12 with ECF No. 5 at 2-3), such that granting his “requests at this stage in the proceedings would, in effect, fail to ‘preserve the relative positions of the parties' until the merits of the case are considered and would instead amount to a ‘final judgment on the merits.'” Martinez v. Rivello, No. 22-2518, 2023 WL 3376545, at *2 (3d Cir. May 11, 2023) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).
Therefore, for the above reasons, it is respectfully recommended that Alexander's Motion for Preliminary Injunction (ECF No. 5) be denied. Holland, 895 F.3d at 285 (noting that “[courts] do not issue [a preliminary injunction] ‘unless the movant, by a clear showing, carries the burden of persuasion'” (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997))).
E. Notice
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).