Opinion
Civil No. 4:CV-03-1545.
December 16, 2005.
REPORT AND RECOMMENDATION
The plaintiff's sixty-five page pro se complaint is against defendants David G. Keenhold, Warden of the Monroe County Correctional Facility; Paul L. Jennings, Deputy Warden of the Monroe County Correctional Facility; Michael A. Tabery, Director of Treatment of the Monroe County Correctional Facility; Monroe County Correctional Facility prison officials Lieutenant Shannon, Sergeant Dougherty, Officer Kessler, Officer Kramer, Officer Donati, Officer Brill, Officer Cruz, and an undetermined number of John and Jane Doe prison officials; Prime Care Medical, Inc.; Monroe County Correctional Facility nurses: Nurse Joyce, Nurse Becky, Nurse Esther and John and Jane Doe nurses and doctors and health care providers; Psychiatrist Martha Turnburg; inmate administrator Gary McFarland; inmate Donnell James; County of Monroe; James E. Cadue, Monroe County Commissioner; and Attorneys Jeffrey G. Velander and Thomas P. Sundmaker.
The plaintiff's pro se complaint was filed on August 22, 2003. His application to proceed in forma pauperis was denied and his motion for the appointment of counsel was granted. The complaint contains Eighth Amendment claims under 42 U.S.C. § 1983 of deliberate indifference to serious medical needs and excessive use of force. The complaint also contains medical malpractice, "malicious process," "abuse of process," "wrongful use of proceedings" and infliction of emotional distress claims under state law.
At the time, he was a prisoner. His application to proceed in forma pauperis was denied because he had paid the filing fee. His motion for the appointment of counsel was granted in part because he was unable to retain counsel. In that we recommend, below, that the pending motions for summary judgment be granted, we do not address the issue of the continuing representation of the plaintiff by pro bono court-appointed counsel. He now is the sole owner of an eight-to-twelve employee corporation, according to his deposition. Doc. 192, Exh. E, p. 152.
The complaint states that the plaintiff went to jail on March 24, 2001 in the Monroe County Correctional Facility. He had medical and psychiatric conditions and impairments and disorders, and he was being treated prior to his confinement. He was using several prescribed medications. Upon his Monroe County Correctional Facility prison intake he was interviewed and evaluated medically. Within days of his confinement, medications were changed or eliminated by various defendants and "the proper monitoring" of his medical and mental conditions was denied and refused. The new and inadequate medical treatment that was provided to him caused panic attacks, depression, anxiety, paranoia, shakes, blurred vision and migraine headaches. Sick call requests by the plaintiff were denied. Needed psychotropic medications continued to be denied. Later, defendant Turnberg, a psychiatrist, restored some of the medications.
For a three week period in April of 2001, the plaintiff's prescribed and full medications were given to him during a three week stay at the Carbon County Jail, but he still suffered from the severe panic attacks, anxiety and depression. While at the Carbon County Jail, when playing basketball, he injured his right knee.
He was returned to Monroe County Correctional Facility on May 24, 2001. He told the Monroe County Correctional Facility medical staff that he had injured his right knee and should have an MRI exam. Monroe County Correctional Institution medical staff did not properly care for his right knee injury or provide for an MRI exam.
The plaintiff's complaint includes Eighth Amendment claims that he was subjected to excessive force and that he was denied needed medical and psychiatric care while he was incarcerated at the Monroe County Correctional Facility from March of 2001 to October of 2001. More specifically, the plaintiff claims that he was subjected to a number of assaults by the defendants and by inmates with the knowledge of the defendants. He alleges that he suffered serious injuries, including a broken nose, as a result of these assaults and that he did not receive appropriate medical treatment. He also alleges that he was not provided appropriate psychotropic medication and as a result he suffered from seizures, blurred vision, shakes, paranoia, altered thinking, migraine headaches, high blood pressure, etc. He further alleges that he reinjured his knee and did not receive appropriate medical treatment.
By Order of July 8, 2004, the complaint was dismissed in part. It was dismissed as to Binsack's claims of intentional infliction of emotional distress, Binsack's claims against all unserved defendants, and Binsack's claims regarding prison disciplinary charges and procedures in the MCCF. Summary judgment was granted in favor of defendants Velander and Sundmaker on November 2, 2004. Doc. 111.
All served defendants have filed motions for summary judgment. The following motions for summary judgment are pending: the motion of Nurse Esther (Thomas) for summary judgment (Doc. 171), the motion of Prime Care Medical, Inc. and Dr. Shah for summary judgment (Doc. 173); the motion of Nurse Becky and Nurse Joyce for summary judgment (Doc. 178), the motion of psychiatrist Martha Turnberg for summary judgment (Doc. 179), the motion of Officer Kessler, Officer Kramer, Officer Donati, Officer Brill, Officer Cruz, Gary McFarland, County of Monroe, James E. Cadue, David Keenhold, Paul L. Jennings, Michael A. Tabery, Lieutenant Shannon and Sergeant Dougherty for summary judgment (Doc. 180); and the supplemental motion of Nurse Esther (Thomas) for summary judgment (Doc. 204). Briefs in support of and in opposition to these motions have been filed. Reply briefs have not been filed.
Dr. Shah appeared as a defendant on February 2, 2004 (Doc. 55) and filed an answer on February 26, 2004 (Doc. 62).
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may discharge that burden by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
An issue of fact is "`genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A material factual dispute is a dispute as to a factual issue that will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).
"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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." Celotex, supra, 477 U.S. at 322. "Under such circumstances, `there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Anderson v. CONRAIL, 297 F.3d 242, 247 (3d Cir. 2002) (quoting Celotex, supra, 477 U.S. at 323).
Local Rule 56.1, Rules of Court, M.D. Pa., provides:
A motion for summary judgment filed pursuant to Fed.R.Civ.P. 56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
LR 56.1 statements, and counter statements, have not been filed in support of and in opposition to the pending summary judgment motions.
In order for a plaintiff to prove an Eighth Amendment medical claim under 42 U.S.C. § 1983 he must prove that the defendants acted under color of state law and that they acted with "deliberate indifference to serious medical needs" of the plaintiff while a prisoner. Estelle v. Gamble, 429 U.S. 97 (1976). Mere medical malpractice does not give rise to a violation of the Eighth Amendment. White v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990). "While the distinction between deliberate indifference and malpractice can be subtle, it is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990).
The Third Circuit Court of Appeals explored the type of conduct on the part of prison officials that could amount to deliberate indifference in Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987). After noting that mere allegations of malpractice do not raise issues of constitutional import, the court stated:
Where prison authorities deny reasonable requests for medical treatment, however, and such denial exposes the inmate to undue suffering or the threat of tangible residual injury, deliberate indifference is manifest. Similarly, where knowledge of the need for medical care is accompanied by the intentional refusal to provide that care, the deliberate indifference standard has been met. Short of absolute denial, if necessary medical treatment is delayed for non-medical reasons, a case of deliberate indifference has been made out. Deliberate indifference is also evident where prison officials erect arbitrary and burdensome procedures that result in interminable delays and outright denials of medical care to suffering inmates. 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. Nor may they condition provision of needed medical services on the inmate's ability or willingness to pay. Finally, deliberate indifference is demonstrated when prison authorities prevent an inmate from receiving recommended treatment for serious medical needs or deny access to [a] physician capable of evaluating the need for such treatment.834 F.2d at 346-347 (citations and internal quotations omitted). A prison official is not deliberately indifferent simply because he of she failed to respond to a prisoner's medical complaint when the prisoner was already being treated by a prison doctor. Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).
The concept of a serious medical need has two components, one relating to the consequences of a failure to treat and the other relating to the obviousness of those consequences. Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). The condition must be such that a failure to treat can be expected to lead to substantial and unnecessary suffering, injury or death. Id. Also, the condition must be one that has been diagnosed by a doctor as requiring treatment or one that is so obvious that a lay person would easily recognize the need for a doctor's attention. Id.
The Third Circuit has "found `deliberate indifference' in a variety of circumstances, including where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). The Third Circuit has also "found `deliberate indifference' to exist when the prison official persists in a particular course of treatment `in the face of resultant pain and risk of permanent injury.'" Id. (quoting White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990)).
The LR 56.1 statement of facts of defendant Nurse Esther (Thomas) (Doc. 206) states that defendant Thomas did not refuse to provide appropriate medical care to Binsack while he was confined at MCCF. Binsack has testified in his deposition that Nurse Esther Thomas refused psychotropic medications and, later, when Binsack was injured, threw ice at him and said that she hoped that he would die.
The plaintiff filed a brief in opposition to the supplemental motion for summary judgment (Doc. 204) filed by defendant Nurse Esther Thomas. (Doc. 230). In opposing the initial motion of defendant Esther Thomas for summary judgment (Doc. 171), the plaintiff asserts without reference to any particular defendant, in ¶¶ 50-54 of his "Response to Moving Defendants' Statement of Undisputed Facts" (Doc. 230, pages 2-15), general and undocumented contentions of deliberate indifference on the part of Nurse Esther Thomas to his medical needs, and he refers to his complaint. In his complaint, (Doc. 1), he states that he described his medical history to defendant Thomas upon his intake medical interview at MCCF. Complaint, ¶ 42. Defendant Thomas told him that his blood pressure and overall condition would be monitored daily. Complaint, ¶ 43. The complaint states that psychotropic medicines were denied to Binsack and that his blood pressure was not properly monitored. ¶¶ 44-45. It states that his sick call requests were not honored, and that he was not seen by a mental health specialist for 30 days. It states that an unsuitable Ace bandage was used by defendant Thomas. ¶¶ 57-63.
Even though Binsack has in his complaint presented a range of complaints about how he was treated by the medical staff at MCCF, he has not for purposes of a motion for summary judgment, filed after the completion of discovery, cited to evidence that supports an inference that defendant Thomas was deliberately indifferent to a serious medical need that Binsack had. In his deposition testimony, Binsack stated that Nurse Esther Thomas was nasty to him. Neither Binsack's perceptions nor a nurse's actual words and demeanor support an inference that there was cruel and unusual punishment in the form of deliberate indifference to a serious medical need. It will be recommended that summary judgment be granted in favor of defendant Thomas because the plaintiff has not shown that there is evidence to support a reasonable inference that this defendant was deliberately indifferent to a serious medical need of the plaintiff. See Doc. 204, 205, 206.
Defendants PrimeCare Medical and Dr. Shah filed a summary judgment motion (Doc. 173) on July 29, 2005. The LR 56.1 statement of material facts of defendants PrimeCare Medical, Inc. and Dr. Shah at Doc. 176 contains factual statements with record references and documentary support which if true fairly support the inference that Binsack received continuous medical care and examinations at the MCCF from his initial confinement there on March 15, 2001 through October of 2001.
Considering the statement of facts presented and documented by these defendants, in the light of the allegations made by the plaintiff in the complaint, Binsack received continuous medical care while he was at MCCF and was under the medical care responsibility of these defendants. While Binsack asserts that the care that he received was not as good as he should have received, and that it did not address his medical complaints and needs in the manner he thought most appropriate, the defendants' evidence reasonably supports an inference that there was not indifference to the plaintiff's medical conditions and needs. The plaintiff's evidence does not support a different inference. The plaintiff has filed an LR 56.1 statement in opposition to these defendants' motion which does not contain record references and which is not supported with any documentation or summary judgment evidence. Docs. 231, 230. The plaintiff's arguments are that his complaint does not fail to state actionable claims against those defendants. The issue whether there is a genuine issue of material fact in dispute as to these defendants in light of the summary judgment evidence is not meaningfully addressed by the plaintiff. On the basis of these defendants' summary judgment evidence, summary judgment should be granted in favor of defendants PrimeCare Medical, Inc. and Dr. Shah.
We next address the motion (Doc. 178) for summary judgment filed by defendants "Nurse Joyce" and "Nurse Becky," (Joyce Watson and Rebecca Keiper). The brief in support of the motion is docketed with the motion at Doc. 178. The motion is based upon the contention that the plaintiff has not produced evidence to demonstrate that either of these defendants was deliberately indifferent to a serious medical need of the plaintiff. These two defendants argue that, after a full opportunity for discovery, the plaintiff lacks proof of deliberate indifference by either defendant Watson or defendant Keiper.
In his complaint, the plaintiff alleges that the nurses at MCCF did not properly provide care for his medical needs, provided him with an Ace bandage that was too narrow in width to be suitable for his knee, did not provide him with the means to properly secure his Ace bandage and did not provide him with proper care on occasions where he was in altercations with other inmates and with guards.
The assertion of defendants Watson and Keiper that a reasonable inference of deliberate indifference to a serious medical need can not be drawn is correct. The plaintiff refers in his brief to his own deposition testimony, as follows: "However, a review of plaintiff's deposition recites the incidents at which time the particular medical personnel failed to timely provide medical relief or utilized the medical treatment inappropriately." See Doc. 233, p. 8. This general assertion, and those following it in the plaintiff's brief, fails to show that a genuine issue exists as to a material factual question; i.e., fails to show that the plaintiff has evidence to reasonably support an inference of deliberate indifference by a defendant to a serious medical need of the plaintiff.
Binsack suffered from various serious physical and mental conditions during the periods of his confinement at MCCF. The defendants have demonstrated, and Binsack has not disputed, that Binsack was continuously and regularly seen by MCCF and PrimeCare Medical, Inc. medical personnel and was administered treatments and medications for his various medical conditions. A 42 U.S.C. § 1983 claim of a violation of the Eighth Amendment in the form of a prison's medical staff's deliberate indifference to a prisoner's serious medical needs is not a legally appropriate vehicle for the litigation of a prisoner's contention that he did not receive the medical care that he believes would have been the most appropriate care for his condition(s). Binsack opposes the defendants' motions for summary judgment with contentions that the medical treatment that he received was "improper." See Doc. 231, p. 6; Doc. 230, p. 20. Binsack has not shown more than that he had a great number of conditions giving rise to a high number of requests for medical attention and that the attention that he received was not satisfactory to him.
The plaintiff argues that "the credibility of the witnesses is not an issue capable of summary disposition" (Doc. 230, pages 21-22), and we agree. However, the plaintiff does not demonstrate that the resolution of the claims of deliberate indifference turns upon the resolution of a credibility issue. He has not shown there to be evidence of a failure to treat leading to substantial, unnecessary suffering.
The motion (Doc. 179) of defendant Turnberg argues that her substitution of medications for the plaintiff did not amount to indifference to his conditions.
The summary judgment evidence shows that Binsack was taking three medications when he began imprisonment at MCCF, Neurontin, Xanax and Paxil. The dispensation of Xanax, a treatment for anxiety, was stopped by defendant Turnberg. Neurontin, a treatment for facial pain, was stopped. The dispensation of Paxil continued. Klonopin was substituted for Xanax. Three other medications were started, including a medication for high blood pressure and an antibiotic to treat an infection. The combination of medications caused Binsack to have a body rash and bacterial infection, which was treated. When Binsack left MCCF, he experienced symptoms of withdrawal.
Binsack was transferred for a period of weeks from MCCF to the Carbon County Prison. He injured his knee at the Carbon County Prison. He acknowledges that no treatment was given to him at the Carbon County Prison. He does not believe his conditions to have been improperly treated at the Carbon County Prison. The MCCF medical staff examined him when he arrived back there from the Carbon County Prison. His Ace bandage was substituted with a more narrow wrap, and tape was substituted for metal clips. He considered the narrow wrap to have been improper.
There is not a basis in the record to support a reasonable inference that the substitution of medications by defendant Turnberg was done in indifference to the plaintiff's medical needs. There is not a showing of evidence from which an inference of deliberate indifference on the part of defendant Turnberg can be drawn. The fact that the plaintiff's medications were changed and that he suffered some adverse changes, especially when new medications for new conditions were also needed and given, does not support a finding of indifference. Although we construe the evidence in the light most favorable to the non-moving plaintiff, it would go well beyond that standard to hold a material issue to be presented as to whether there was deliberate indifference to a serious medical need when a medical doctor has changed a prisoner's treatment or medication and the prisoner has alleged a negative subjective reaction.
It will be recommended that summary judgment be granted in the medical defendants' favor. Since summary judgment in these defendants' favor should be entered as to the federal § 1983 medical care claims, the court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims. 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — . . . the district court has dismissed all claims over which it has original jurisdiction."); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (holding that when federal causes of action are dismissed, federal courts should not separately entertain pendent state claims).
Docs. 171, 173, 178, 179, 204.
The motion of defendants Officer Kessler, Officer Kramer, Officer Donati, Officer Brill, Officer Cruz, Gary McFarland, County of Monroe, James E. Cadue, David Keenhold, Paul L. Jennings, Michael A. Tabery, Lieutenant Shannon and Sergeant Dougherty for summary judgment (Doc. 180) is supported by an LR 56.1 statement of material facts as to which there is not a genuine dispute (Doc. 181). It states that no administrative grievances against Officers Bill Cruz, Donati, Dougherty, Shannon, Keenhold, Jennings, Kessler, Kramer, McFarland or Tabery relating to any matters raised in this complaint was filed by Binsack. It notes that the complaint contains no allegation relating to defendants Cadue or County of Monroe.
The defendants' assertion that no pertinent grievances were filed is based on a review and documentation of the 91 grievances filed at MCCF by Binsack during his MCCF incarceration. The plaintiff asserts that he did file grievances and that these were not properly processed by the defendants at MCCF. The plaintiff also asserts other justifications for not filing grievances. See Doc. 227, pages 22-23. The plaintiff does not meet the defendants' assertion that administrative remedies were not exhausted with any evidence-based showing that administrative remedies were exhausted. In the plaintiff's February 11, 2005 deposition, at pages 195-246, he acknowledges that he does not have knowledge that grievances were pursued through exhaustion against these defendants. Doc. 192, Exh. E.
42 U.S.C. § 1997e(a), provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
The exhaustion of available administrative remedies is mandatory. Booth v. Churner, 121 S.Ct. 1819, 1825 (2001).
The moving defendants (Doc. 180) are entitled to summary judgment as to the plaintiff's claims against them because the plaintiff did not present these claims under the MCCF grievance procedure. It is recommended that state law claims against these, non-medical, defendants be dismissed.
IT IS RECOMMENDED that the defendants' motions for summary judgment be granted, that the state law claims be dismissed and that the claim against defendant Jones, another prisoner, be dismissed because Jones did not act under color of state law.