Opinion
Civil Action 20-1686
02-28-2023
CHRISTOPHER FERREIRAS, Plaintiff, v. CHCA NEDRA RICE-GREGO, et al., Defendants.
Christopher Ferreiras, Pro Se
Christopher Ferreiras, Pro Se
Marilyn J. Horan District Judge
REPORT AND RECOMMENDATION ECF NOS. 81 & 91
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons set forth below, it is respectfully recommended that the Motions for Summary Judgment filed by the Department of Corrections (“DOC”) Defendants (ECF No. 81) and by the Medical Defendants (ECF No. 91) be granted in part and denied in part. Specifically, it is respectfully recommended that the Motion for Summary Judgment filed by the DOC Defendants (ECF No. 81) be granted as to all DOC Defendants on Plaintiff's Equal Protection Clause and Americans with Disabilities Act claims. It is further recommended that the Motion be granted as to DOC Defendants Capozza, Wood, Randolph, Brian, Jenkins, Burrie, and John Does 1 through 4 on Plaintiff's Eighth Amendment deliberate indifference claim. It is finally recommended that the Motion be denied as to DOC Defendants Brent, Rice-Grego, Bobeck, Carter, and Sanner on Plaintiff's Eighth Amendment deliberate indifference claim.
It is recommended that the Motion for Summary Judgment filed by the Medical Defendants (ECF No. 91) be granted as to Plaintiff's Equal Protection Clause claim and denied as to Plaintiff's Eighth Amendment deliberate indifference claim.
II. REPORT
A. Factual and Procedural History
Plaintiff has filed this civil rights law suit against several employees of the Department of Corrections, who include CHCA Nedra Rice-Grego, CHCA Stephanie Wood, Superintendent Mark Capozza, CRN K. Randolph, RN Brian, RN Brent, RN Mark Jenkins, RN Bobeck, RN Carter, RN Sanner, and CO 1 Burrie (collectively, the “DOC Defendants”). Plaintiff has also sued Darla Cowden, PA-C and Rachel Medlock (collectively, the “Medical Defendants”), who are employed by a medical contractor to the DOC that provides medical services to inmates. Med. Defs. Stmt. of Facts at ¶ 5, ECF No. 92 at 2.
Plaintiff has also sued four John Doe Defendants at SCI-Fayette who remain unidentified and are not represented by counsel. Therefore, the DOC Defendants have not moved for summary judgment on behalf of the Doe Defendants.
The facts set forth below are material and undisputed except where otherwise noted, as gleaned from the parties' summary judgment submissions. See generally DOC Defs' Stmt. of Mat. Facts Not in Dispute (“DOC SMF”), ECF No. 83 (referencing Exhibits of Record, ECF Nos. 84 & 84-1); Pl's Stmt. of Facts in response to the DOC SMF, ECF No. 102 (attaching Exhibits in Support, ECF Nos. 102-1 to 102-10); Med. Defs.' Stmt. of Facts (“Med. Defs.' SOF”), ECF No. 92 (referencing Exhibits of Record, ECF Nos. 92-1 to 92-3); and Pl's Stmt. of Facts in response to the Med. Defs.' SOF, ECF No. 106 (attaching Exhibits in Support, ECF Nos. 106-1 to 106-10).
The Court finds that the Medical Defendants' Statement of Facts at paragraphs 74 through 76 are not material as they pertain to treatment provided after Plaintiff was transferred to SCI-Albion. ECF No. 92 at 23. Likewise, the Statements of Fact at paragraphs 79 through 86 are not material as they pertain to grievances for incidents occurring from December 2014 to August of 2018. Id. at 24-27. Also, the Statements of Fact outlining treatment Plaintiff received for illnesses or conditions other than UTIs or not involving issues with his catheter supplies are not material. Id. at 3-22, ¶¶ 8-11, 14, 19-25, 29-32, 35, 40-52, 55-56, 59, 61, 67-68, & 72. Accordingly, these immaterial statements will not be considered in deciding the Medical Defendants' pending motion for summary judgment. In addition, to the extent the DOC and Medical Defendants include conclusions of law in their respective Statements of Fact, those conclusions will not be considered “facts” let alone undisputed facts. See, e.g., ECF No. 83 at 6, ¶¶ 41, 43-44; ECF No. 92 at 27-28, ¶¶ 87-89. The same goes for any conclusions of law included in Plaintiff's counterstatements.
Plaintiff's responses to the DOC and Medical Defendants Statements of Fact will be referred to as Plaintiff's “counterstatement of facts” or “counterstatements”. The Medical Defendants filed a Response to Plaintiff's Counterstatement of Facts filed at ECF No. 106 (ECF No. 107) submitting that the corresponding paragraphs of Plaintiff's counterstatement of facts, paragraphs 1-34, are set forth without citation to the record as required by Local Rule 56.C.1. As such, the Medical Defendants argue that they must dispute and/or deny the facts set forth in corresponding paragraphs 1-34 as they are unsupported by citation to the record. The Court will take the Medical Defendants' response under advisement as some of Plaintiff's counterstatements are not in dispute and are well documented in the relevant grievances and documents attached thereto, as well as in the medical records submitted as exhibits by all of the parties.
Plaintiff Christopher Ferreiras is currently incarcerated at SCI-Albion. The events giving rise to this lawsuit occurred while he was incarcerated at SCI-Fayette. Am. Compl., ¶ 16 (ECF No. 38 at 13). Plaintiff is disabled and suffers from paraplegia due to a complete T-9 spinal cord injury. ECF No. 38 at 1. As such, he is confined to a wheelchair and must self-catheter several times a day to relieve his bladder. Id. at 15.
In order to self-catheter, Plaintiff has received a varying number of catheters and supplies since his incarceration at SCI-Fayette in 2014. The catheters and supplies were to be delivered on Mondays each week to Plaintiff who was housed in the RHU in September and October of 2018. ECF No. 102-2 at 2; ECF No. 102-7 at 6. Despite this prescription, Plaintiff alleges that from 2014 to 2018 while incarcerated at SCI-Fayette, he was repeatedly denied the properly sized catheters, and when his catheters were not delivered on time he was instructed to reuse catheters contrary to the manufacturer's instruction-single use only-which led to many urinary tract infections (“UTIs”). ECF No. 38 at 14-15; ECF No. 38-1 at 1. In light of these allegations, an examination of Plaintiff's medical treatment and records while housed at at SCI-Fayette is appropriate.
Although Plaintiff cannot recover damages for any alleged incidents involving Plaintiff's medical supplies occurring prior to September of 2018 because the statute of limitation has expired as to those incidents and the Court has already determined that the continuing violation doctrine does not apply, see ECF No. 50 at 8-14, adopted at ECF No. 56, the Court may consider Plaintiff's medical history in determining the Defendants' subjective knowledge and intent with regard to Plaintiff's Eighth Amendment claim for deliberate indifference to a serious medical need.
Plaintiff's medical records show that he has a history of UTI's dating back to August 2016, for which he was treated with antibiotics.
On August 1, 2016, Plaintiff was seen by CRNP Maksin requesting an increase in the number of catheters he was receiving daily due to frequent UTIs. ECF No. 92-1 at 28. CRNP Maksin determined that Plaintiff would now receive four catheters daily so he would not have to reuse any catheters due to frequent UTIs. Id. That same date, CRNP Maksin ordered 28 size 14 French catheters, 14 lubricant packets, 28 pairs of gloves, 21 briefs and 1 red bag. Id. at 5.
On September 12, 2016, PA Cowden ordered a urine sample for urinalysis and C&S due to Plaintiff's complaints of UTI. Id. at 5, 27. On September 16, 2016, the lab results returned positive for e. coli. and a 10 day treatment with the antibiotic Bactrim was ordered. Id. at 47-48.
On January 6, 2017, Plaintiff was seen by CRNP Maksin complaining of a UTI and another medical issue not relevant here. Id. at 25. CRNP performed testing and diagnosed frequent UTIs. She ordered Macrobid with a repeat urinalysis to be performed after antibiotic treatment. Id.
On April 21, 2017, Plaintiff was seen by Dr. Jin complaining of a UTI. Dr. Jin ordered testing, and on April 25, 2017, lab results showed that Plaintiff's urine was positive for e. coli. Id. at 3, 24 and 42. On April 26, 2016, PA Druskin saw Plaintiff at sick call and noted the lab results were positive for e. coli which was sensitive to all antibiotics. PA Druskin's assessment was a UTI secondary to self-catherization and he ordered a 10 day treatment with the antibiotic Bactrim. Id. at 24.
On June 12, 2017, Plaintiff was seen by PA Cowden at sick call for several issues, including a suspected UTI. PA Cowden noted that Plaintiff was previously treated for a UTI on April 25th and January 6th and in September 2016, and if the UTIs continue occurring on a monthly basis Plaintiff may need to see urology or be put on Sulfa three times a week. She further noted that his C&S organism is always e. coli and he needs to be more careful washing his hands and cleaning himself before self-cathing. Id. at 21.
On June 15, 2017, Plaintiff was seen by Dr. Jin for a suspected UTI. Id. at 21. Dr. Jin's assessment was rule out UTI and he started Plaintiff on the antibiotic Bactrim. Id. On June 16, 2017, Plaintiff received 12 size 14 French catheters and 3 briefs. Id. at 20.
On July 13, 2017, Plaintiff was seen by CRNP Maksin for a possible UTI. Id. She noted that Plaintiff had recently been treated with Bactrim but the organism was resistant so his antibiotic was switched to Microbid. Maksin sent a urine sample for culture and placed Plaintiff on Cipro. Id.
On August 14, 2017, Plaintiff was seen by PA Cowden for another UTI. He also requested catheter supplies. Id. at 19. She told him that she would arrange for a container to be dropped off the next day for a urine sample. PA Cowden noted that the nursing staff had already delivered Plaintiff's supplies. Id. at 2, 19.
On October 3, 2017, Plaintiff was seen by CRNP Maksin complaining of a possible UTI among other things. A urine sample was obtained, and Plaintiff was started on Cipro for five days. Id. On October 26 and 27, 2017, RN Sherwood and RN Farris noted respectively that Plaintiff was given supplies for self-catheterization as ordered while on elimination watch. ECF No. 92-2 at 98-99.
On November 2, 2017, Plaintiff was seen by PA Cowden to request catheter supplies, which were delivered at the 9:30 pill line run. Id. at 92.
On December 5, 2017, Plaintiff was seen by CRNP Maksin complaining of being feverish for the last three days and requesting antibiotics and to have his urine checked. Id. at 47. She ordered Macrobid and sent the urine sample for a culture. Id. at 47-48. On December 15, 2017 the lab results returned positive for a UTI. Id. at 46. Maksin noted that Macrobid had already been ordered but Plaintiff is only 61% compliant in taking the ordered dose. Id.
On January 24, 2018, Plaintiff was seen by PA Cowden for multiple issues including a follow up urinalysis to make sure the UTI had cleared up. Id. at 43. She noted that Plaintiff's urine culture was done on January 5, 2018 as a follow up to December 5, 2017 and revealed he did not have a UTI. Id. On February 22, 2018, Plaintiff was again seen by Cowden for a possible UTI. Id. at 40. A urine sample and culture were negative for infection. Id. at 75-76.
On April 20, 2018, Plaintiff saw PA Cowden for an issue with his wheelchair cushion. Id. at 39. In her progress notes, PA Cowden noted that Plaintiff picks up his catheter supplies on Mondays, will ask the nurse line to collect information on what he actually needs. Her plan is to have him pick up his supplies on the nurse line on Mondays. Id. at 39.
On May 29, 2018, Plaintiff was seen by CRNP Maksin, requesting size 14 French catheters and complaining of a possible UTI. She noted that HSA had been notified about the supply issue by RN Rimel, and that a urine sample would be collected on the 2-10 shift. Her plan was to order antibiotics as Plaintiff is usually right about having a UTI. Id. at 38. On June 5, 2018, the lab work showed no growth at 48 hours. Id. at 73.
On June 8, 2018, Plaintiff was seen by PA Cowden at which time he reported that he was short on his supply of catheters. She noted that he needed four size 14 French or size 12 French catheters, and that supplies are delivered on Mondays each week. She indicated that Plaintiff's supplies would be delivered on the 2-10 shift. Id.at 34.
On June 11, 2018, Plaintiff was seen by CRNP Maksin, requesting an increase in the amount of his catheters and corresponding supplies as he was self-cathing five times a day. Id. at 33. She noted that she discussed this with HAS and CHCA and will change his supply order. Id. Plaintiff's supply order was changed effective June 18, 2018 to 35 size 14 French catheters, 35 lubricant packets, 35 pairs of gloves, 21 briefs and BZK towelettes per week. Id. at 123.
On June 25, 2018, Plaintiff was seen by PA Druskin for a possible UTI. A urinalysis was ordered, and treatment was started pending results. Id. at 30-32. On June 29, 2018, a urine specimen was collected by PA Cowden but results would not be available until the following week. Id. at 29. She noted that the last time he was in the RHU he complained of a UTI and they treated it prophylactically with the resulting culture being negative. Id. The lab results were reviewed on July 5, 2018 and were positive for e. coli. A five day treatment of the antibiotic Levaquin was ordered and RN Sanner was instructed to deliver the first dose later that day. Id. at 28.
September - October 2018
On September 12, 2018, Plaintiff was seen by PA Cowden and complained that he received the wrong sized catheters and no gloves. ECF No. 92-2 at 22. PA Cowden informed him that she spoke with CCS-HAS and was advised that they did not have size 14 catheters and he must use size 12 until the 14's come in. Id. She also advised Plaintiff that, pursuant to new instructions from the institution, inmates are not allowed to receive gloves so he must make sure to wash his hands well, then cathe, then wash his hands after cathing. Id. Plaintiff stressed to PA Cowden that he is trying to keep down the UTI's and this is not going to help. Id. She informed him that the directive came down from the state level to which Plaintiff responded by asking for the BZC wipes to clean with. Id. Nine BZC wipes were delivered on the next pill line. Id. at 22-23.
On September 25, 2018, Plaintiff was seen by Dr. Jin for a suspected UTI and medical supplies. ECF No. 84-1 at 89; ECF No. 92-2 at 21. Dr. Jin noted that Plaintiff had a history of recurrent UTIs and ordered a repeat urinalysis, urine culture and sensitivity test. ECF No. 84-1 at 88-89; ECF No. 92-2 at 20.-21. On October 1, 2018, the results returned positive for UTI with e. coli. Plaintiff started on a ten-day course of the antibiotic Nitrofur. ECF No. 92-2 at 18 and 130.
On October 15, 2018, Plaintiff was seen by PA Cowden. Plaintiff asked PA Cowden to inform the CO's that they could give him gloves but he has to return them after he has used them. Plaintiff also requested about 35 BZK towelettes each week. ECF No. 92-2 at 15. PA Cowden advised the lieutenant about the gloves and he wanted the email that CHCA sent out as back-up since Plaintiff was in the RHU. Id. PA Cowden noted that she would send the email from the CHCA with instructions about the gloves and how to use them. Id. at 16.
The pharmacy records show that on September 3rd, 10th and 17th of 2018, and on October 8, 2018, the regular delivery of Plaintiff's catheters and other supplies was missed. ECF No. 841 at 92; ECF No. 102-6 at 15, 17. The pharmacy records further show that delivery of Plaintiff's supplies was completed on September 24th by Mark Jenkins, on October 1st by Mary Klink, and on October 15th by Linda Riffle. ECF No. 102-6 at 15, 17.
The pharmacy records show the letter “M” in the boxes for September 3, 10, and 17. ECF No. 84-1 at 92. According to the symbol key, and “M” stands for “Missed.” Id. The symbol key also notes that a “C” on the chart stands for “completed.” Id.
2. Inmate Request Slips
The record shows that Plaintiff submitted several Inmate's Request to Staff Member slips (“Inmate Request Slips”) in July 2015, all of which described issues he was having with reusing catheters cleaned with only soap and water, allegedly causing numerous UTIs. ECF No. 106-6 at 2-5. Plaintiff noted that before he started reusing the catheters, he had two UTIs in three years, Id. at 3; and within a year of being incarcerated, he contracted four UTIs, Id. at 2. CHCA Berrier responded that self-cathing is a clean technique, not sterile, and his UTIs could be from other issues. Id. at 2, 4. CHCA Berrier further responded that he is “supplied one catheter per day to use aseptic technique to self cath. not sterile technique”. Id. at 3, 4-5.
On August 21, 2017, Plaintiff submitted an Inmate Request Slip addressed to Defendant Medlock claiming that he did not receive all of the supplies he was prescribed and requested the rest of his supplies. ECF No. 106-6 at 6. He also requested BZK wipes to help prevent UTIs and noted that he was given red rubber catheters instead of the size 14 French plastic ones which were causing irritation. Id. CHCA Nidra Grego responded that he would be receiving the rest of his supplies. Id.
Between March and June of 2018, Plaintiff submitted four Inmate Request Slips complaining of the delivery of the wrong size or insufficient catheters and related supplies. ECF No. 102-9 at 2-7; ECF No. 106-6 at 8-9. Three of the four Inmate Request Slips were addressed to CHCA Nedra Rice and the fourth one was addressed to Defendant Medlock. Id. On March 19, 2018, Plaintiff requested that he be given the correct size catheters; Nurse Randoph (on behalf of CHCA Nedra Rice) responded that the size 14 French catheters were ordered and would be in on 3/26/18. ECF No. 102-9 at 2. On March 26, 2018, Plaintiff submitted another Inmate Request Slip because he was again given size 12 catheters despite being told by Nurse Randolph that he would get the size 14 catheters. Id. at 3. Plaintiff explained that he is going through the size 12 catheters and other supplies twice as fast as the size 12 catheters do not produce as much urine. Id. at 4. CHCA Nedra Rice responded that Plaintiff should address his concerns in a sick call and that once the size 14 catheters are available they will be dispensed to him. Id.at 3.
On May 28, 2018, Plaintiff again requested assistance with getting the correct size catheters, claiming that he is constantly getting the wrong size which has thrown his bladder system off as they are not emptying his bladder as they should. ECF No. 106-6 at 8. Defendant Medlock responded “12 fr. caths are in, nursing should bring over this week”. Id.
On June 12, 2018, Plaintiff requested that his supply of catheters be increased from 28 to 35 per week, due to his bladder system being thrown off by the use of the wrong size catheters. ECF No. 102-9 at 6. CHCA Nedra Rice responded that Plaintiff will receive 35 size 14 French catheters weekly. Id.
A fifth Inmate Request Slip was submitted in 2018 on October 5th by Plaintiff in which he requested instructions on what he needs to do to be able to utilize latex gloves when he self caths, as he was informed by Defendant Medlock that although inmates are not banned from using latex gloves, medical can no longer provide him with his weekly supply of gloves. Id. at 7. Plaintiff also requested that he be given BZK towelettes with his weekly supplies as he was trying to prevent future UTIs. Id. CHCA Wood responded that they are giving him the towelettes but he needs to get the gloves from the corrections officers. Id.
3. DC-ADM 804 Inmate Grievance System Policy
The DOC's grievance process consists of three steps: Step 1-Initial Filing of the Grievance; Step 2-Appeal to the Facility Manager/Superintendent; and Step 3-Appeal to the Secretary's Office of Inmate Grievances & Appeals (“SOIGA”) for Final Review. Decl. of Keri Moore at ¶ 9, ECF No. 84-1 at 78.
At step one, an inmate wishing to file a grievance must submit his grievance to the Facility Grievance Coordinator/designee within 15 working days after the event upon which the claim is based. DC-ADM 804, Sec. 1, Part A, ¶¶ 5 & 8, ECF No. 102-4 at 5-6. The Initial Review Response to the grievance must be provided to the inmate within 15 working days from the date the grievance was entered into the automated inmate grievance tracking system (“tracking system”). Id. at Sec. 1, Part C, ¶ 5.g., ECF No. 102-4 at 11. An extension of ten additional working days may be requested from the Facility Grievance Coordinator/designee if the investigation of the grievance is ongoing. Id. at ¶ 5.h., ECF No. 102-4 at 12. If an extension is granted, the extension must be entered in to the tracking system and the inmate must be notified in writing. Id. at ¶6.e.
At step two, an inmate may appeal an initial review response to the Facility Manager in writing within 15 working days from the date of the initial review response. Id. at Sec. 2, Part A, ¶ 1.a., ECF No. 102-4 at 16. The initial review response must be received by the inmate before any appeal to the Facility Manager can be sought. Id. at ¶ 1.b. With regard to extensions of time to file an appeal, Section 2, Part A, paragraph 2.c. of the DC-ADM 804 provides:
A time extension for filing an appeal will be considered on a case by case basis. The inmate must notify the Facility Manager of the reason for the delay. The Facility Manager/designee will consider the reason given and will also consider if the delay was caused by:
(1) a temporary transfer from the facility where the grievance should have been filed;
(2) a permanent transfer to another facility from the facility where the grievance should have been filed;
(3) Authorized Temporary Absence (ATA) for an extended period;
(4) another delay with mail delivery; and
(5) any other reason the Facility Manager/designee deems appropriate.
NOTE: If it is determined that a delay was caused by a circumstance listed above, a reasonable extension of time for filing shall be permitted.ECF No. 102-4 at 17 (emphasis in original). The Facility Manager/designee shall notify the inmate of the decision within 15 working days of receiving the appeal using the Facility Manager's Appeal Response form. Id. at ¶ 2.d. (1). The appeal response must include a brief statement of the reasons for the decision and must address all appeal points raised by the inmate including the determination that the appeal is frivolous. Id. at ¶ 2.d. (3).
Finally, at step three, if the inmate is not satisfied with the disposition of an appeal from the Facility Manager, he may submit an Inmate Appeal to Final Review within 15 working days from the date of the Facility Manager/designee's decision, addressed to the SOIGA. Id. at Sec. 2, Part B, ¶ 1.b. & i., ECF No. 102-4 at 19, 21. An extension of time for filing an inmate appeal to final review will be considered on a case to case basis following the same procedures as outlined above in Section 2, Part A, paragraph 2.c. of the DC-ADM 804. Id. at Sec. 2, Part B, ¶ 1.c. SOIGA must respond to the Appeal to Final Review within 30 working days of receipt unless otherwise extended and provide notice to the inmate which includes the decision and rationale. Id. at ¶ 2.a. (1) & 2.e. (a), ECF No. 102-4 at 22.
4. Plaintiff's Grievance History
Plaintiff filed three grievances in September of 2018 which are relevant to this lawsuit: Grievance nos. 758847, 759196, and 760823.
Grievance no. 758847, filed on September 17, 2018, alleged that Plaintiff did not receive his medical supplies as prescribed and ordered. ECF No. 102-3 at 2. Plaintiff claimed that the nurse who brought medications to J-block at 7:00 a.m. and 11:00 a.m. told him that he could not bring his supplies because someone hid them. Id. The nurse did not deliver Plaintiff's supplies on that date. ECF No. 102-3 at 2. Plaintiff further claimed that he asked the COs to call medical so his medical supplies can be brought to him, and in the past few weeks he has written multiple request slips to Nedra Rice CHCA and sick call slips in order to get his medical supplies and to receive the correct size and amount of supplies. Id. Plaintiff requested that the camera footage on J-block A-pod be preserved in order to prove this. Id. at 3. Because of the ongoing issue with his medical supplies, Plaintiff claims to have contracted several UTIs from having to reuse his catheters. Id. Plaintiff claims that this shows that the medical staff was deliberately indifferent to his serious medical need in violation of the Eighth Amendment and he intends to file a Section 1983 lawsuit. Id. at 2-3.
That nurse has since been identified as RN Brent. Am. Compl. at ¶ 7, ECF No. 38 at 7.
On September 18, 2018, Plaintiff filed grievance no. 759196 claiming that he still had not received his weekly medical supplies as prescribed and ordered. ECF No. 102-3 at 14. Plaintiff contends that because of the ongoing issue with him getting the right amount, size and type of catheters, he has had to increase the number of times he self-caths from four to five times a day. Id. When the nurse brought his medications at 11:00 a.m., he was told that there were no medical supplies to give him. Id. Plaintiff further claims that he has submitted request slips to the CHCA about this ongoing issue as well as sick call slips. Id. Plaintiff also claims that he has asked C.O. Burrie to call medical on multiple occasions to try and obtain his supplies, and he asks every nurse who brings his medications at 11, 4 and 7. Id. Plaintiff again requested that camera footage be preserved. Id. at 15. Because of the ongoing issue with his medical supplies, Plaintiff claims to have contracted several UTIs from having to reuse his catheters which he was told by Darla and Nedra Rice that it was okay to do, despite the manufacturer's statement on the packaging not to reuse the catheters. Id. Plaintiff claims that this shows that the medical staff was deliberately indifferent to his serious medical need in violation of the Eighth Amendment and he intends to file a Section 1983 lawsuit. Id. at 15.
On October 11, 2018, the Facility Grievance Coordinator, Rhonda House, issued a Notice of Staff Extension for grievance nos. 758847 and 759196, in order to appropriately investigate and respond, and that staff has been authorized to extend the response time by ten additional working days. Id. at 4, 18. That same date, CHCA Stephanie Wood issued Initial Review Responses to grievance nos. 758847 and 759196, denying both grievances. Id. at 8, 22. Plaintiff was instructed that if he has a problem in the future, to complete an inmate request slip directed to her. Id. at 8, 22. Although dated October 11, 2018, the Initial Review Responses were not reviewed and approved by the superintendent assistant until October 22, 2018. Id. Shortly after the Initial Review Responses were approved, on October 24, 2018, Plaintiff was transferred to SCI-Albion. See Cell History, ECF No. 102-2 at 2.
On November 30, 2018, Plaintiff wrote to the Facility Grievance Coordinator at SCI-Fayette, Rhonda House, requesting responses to grievance nos. 758847 and 759196; Plaintiff's request was received at SCI-Fayette on December 10, 2018. ECF No. 102-3 at 5. In his correspondence, Plaintiff indicates that the ten-day extension for the responses to his grievances had come and gone and he requests that the appropriate authorities respond to the grievances and provide him a copy at his new location in SCI-Albion. Id. Handwritten notations on Plaintiff's correspondence, which appear to have been made by Ms. House on December 13, 2018, indicate that the Initial Review Responses to grievance nos. 759196 and 758847 were sent on October 22, 2018 and October 25, 2018, respectively. Id.
On December 26, 2018, Plaintiff submitted an Inmate's Request to Staff Member directed to Ms. House, which was received at SCI-Fayette on January 4, 2019. Id. at 6. In that request, Plaintiff states that he received a response to his letter from Ms. House on December 26th in which she claims that the responses to grievance nos. 759196 and 758847 were sent to him on October 22, and October 25, 2018. Id. Plaintiff states that he never received the responses and requests that she send a copy of the responses and asks for an extension of time to respond. Ms. House responded on January 4, 2019 by directing Plaintiff to provide a cash slip for 50 cents. Id.
Plaintiff did so on January 20, 2019. Id. at 7. Plaintiff stated that because he never received the Initial Review Responses to these grievances, he may want to appeal the decisions and requested an extension and asked that any future possible appeals on these matters be accepted. On January 29, 2019, Ms. House responded by attaching copies of the Initial Review Responses and denying his request for an extension of time, stating that these responses were from October and that he had plenty of time before now to request copies and/or appeal. Id.
On February 6, 2019, Plaintiff filed an Inmate Appeal to Facility Manager with regard to grievance nos. 758847 and 759196. Id. at 9-10, 23-24. In support of his appeal of the Initial Review Response to grievance no. 758847, Plaintiff requests that his appeal be accepted as it is not his fault that it was filed late and explains that he never received the Initial Review Responses until February 6, 2019 only after inquiring about whether they were issued and then he had to pay to get copies. Id. at 9. In support of his appeal of the Initial Review Response to grievance no. 759196, Plaintiff stated that he was told by Nurse Brent on different occasions that he did not feel like carrying and bringing him all his supplies from medical to his cell, and that “Rachel” hid Plaintiff's supplies so he could not bring them to Plaintiff. Id. at 23.
“Rachel” has since been identified as Medical Defendant Rachel Medlock.
On March 22, 2019, the Facility Manager's Appeal Responses were issued by Mark Capozza dismissing Plaintiff's appeals of grievance nos. 758847 and 759196 as untimely. Defendant Capozza does not mention Plaintiff's request for an extension of time or the reasons for Plaintiff's delay in filing the appeal. Id. at 11, 25. On April 2, 2019, Plaintiff filed an Inmate Appeal to Final Review of grievance nos. 758847 and 759196 objecting to the dismissal of his appeal as untimely. Id. at 12, 26. On April 16, 2019, the Final Appeal Decision Dismissals were issued by the SOIGA on grievance nos. 758847 and 759196, dismissing the appeals as untimely. Id. at 13, 27.
Plaintiff filed a third grievance on September 24, 2018-grievance no. 760823-in which he claimed once again that he had not received his weekly supplies as prescribed and ordered. Id. at 28. Plaintiff alleges that the nurse that brought his medications at 11:00 a.m. claimed he was unable to bring his weekly supplies because the eye doctor was occupying the room where his supplies were held. Id. Because of this ongoing issue, Plaintiff claims he contracted yet again another UTI. Id. Also, Plaintiff states that he is being directed by PA Cowden and CHCA Nedra Rice to reuse catheters contrary to the packaging instructions warning against reusing catheters. Id.
On October 18, 2018, the Initial Review Response was issued denying grievance no. 760823 as frivolous, as K. Randolph, the Registered Nurse Supervisor, determined that Nurse Jenkins delivered Plaintiff's catheter supplies at 11:00 a.m. on September 24th. Id. at 30. In addition, RNS Randolph determined that Plaintiff's UTIs were ongoing and chronic in nature and he was treated by medical with antibiotics for his ongoing infections. Id. Subsequently, on October 22, 2018, Plaintiff filed an Inmate Appeal to Facility Manager disputing that his grievance was frivolous, contending that the camera footage will show that Nurse Jenkins did not deliver his supplies as prescribed and ordered. Id. at 31. On December 27, 2018, the Facility Manager Mark Capozza issued the Facility Manager's Appeal Response in which he upheld the denial of grievance no. 760823 as frivolous and denied the appeal and Plaintiff's requested relief. Id. at 32.
On January 20, 2019, Plaintiff filed an appeal of grievance no. 760823 to the SOIGA, claiming that the Facility Manager did not thoroughly investigate his claims. Id. at 33. Thereafter, on March 6, 2019, SOIGA issued the Final Appeal Decision Dismissal dismissing the appeal as untimely, explaining that Plaintiff's final appeal was due to SOIGA by January 18, 2019, however, it was not postmarked until February 4, 2019, and Plaintiff failed to provide a reason for the delay. Id. at 34.
5. Procedural History
On September 22, 2020, Plaintiff signed his Complaint and submitted it to prison officials for mailing; it was received and filed in the Court of Common Pleas of Fayette County, Pennsylvania on October 16, 2020. ECF No. 1-1. Defendants removed the case to this United States District Court on November 3, 2020. ECF No. 1.
The Medical Defendants and DOC Defendants filed motions to dismiss (ECF Nos. 8 and 10 respectively) which were granted in part and denied in part and Plaintiff was given leave to file an amended complaint. ECF Nos. 30 & 36. Plaintiff filed an Amended Complaint (ECF No. 38) on July 21, 2021. On August 13, 2021, the Medical Defendants moved to dismiss the Amended Complaint (ECF Nos. 41), while the DOC Defendants filed an Answer to the Amended Complaint (ECF No. 43). The Medical Defendants' motion to dismiss was granted in part and denied in part. ECF Nos. 50 & 56. Subsequently, the Medical Defendants filed an Answer to the Amended Complaint. ECF No. 57. Discovery was conducted and subsequently closed on April 5, 2022. ECF No. 77.
On May 23, 2022, the DOC Defendants filed a motion for summary judgment (ECF No. 81) on the remaining claims against them-Eighth Amendment deliberate indifference to a serious medical need, ADA claim against the DOC Defendants in their official capacities, and violation of the Equal Protection Clause of the Fourteenth Amendment.
The Medical Defendants filed a motion for summary judgment on June 8, 2022 (ECF No. 91) on the remaining claims against them-Eighth Amendment deliberate indifference to a serious medical need and violation of Equal Protection Clause of the Fourteenth Amendment. The motions have been fully briefed and responded to and are ripe for review.
B. Standard of Review-Summary Judgment
Summary judgment is appropriate when the moving party establishes “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). A genuine issue of material fact is one that could affect the outcome of litigation. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the non-moving party must present sufficient evidence of a genuine issue of material fact that precludes summary judgment. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). When considering the parties' arguments, the court is required to view all facts and draw all inferences in the light most favorable to the non-moving party. Id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of the non-moving party when in conflict with the moving party's claims. Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated where the non-moving party merely reasserts factual allegations contained in the pleadings. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate the existence of a genuine issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex Corp., 477 U.S. at 324).
Although courts must hold pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g., Barnett v. N.J. Transit Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff was still “required to designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories.. .sufficient to convince a reasonable fact finder to find all the elements of her prima facie case”) (citation and quotation omitted); Siluk v. Beard, 395 Fed.Appx. 817, 820 (3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural law.”); see also Zilich v. Lucht, 981 F.2d 694, 696 (3d Cir. 1992) (noting that despite liberal construction of the complaint, the pro se plaintiff “still has before him the formidable task of avoiding summary judgment by producing evidence ‘such that a reasonable jury could return a verdict for [him].'”) (quoting Anderson, 477 U.S. 242)).
C. Discussion
1. Exhaustion of Administrative Remedies
Both the DOC Defendants and the Medical Defendants argue that Plaintiff has failed to exhaust his administrative remedies and thus has procedurally defaulted his claims against them. As such, they request judgment as a matter of law on all claims. In response, Plaintiff submits that the DOC Defendants' actions in failing to consider the reasons for the delay in appealing the Initial Review Responses rendered the grievance process unavailable to him and therefore he has fully discharged the PLRA exhaustion requirements.
The Prison Litigation Reform Act (“PLRA”) mandates that an inmate exhaust “such administrative remedies as are available” before bringing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). Exhaustion is a “non-jurisdictional prerequisite to an inmate bringing suit” and when raised by a defendant it constitutes a threshold issue to be addressed by the court. See, e.g., Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018).
The Supreme Court has repeatedly observed that the PLRA's exhaustion requirement “is ‘mandatory': An inmate ‘shall' bring ‘no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638-39 (2016) (citing Woodford v. Ngo, 548 U.S. 81, 85 (2006) and Jones v. Bock, 549 U.S. 199, 211 (2007)). Exhaustion is mandatory under the PLRA regardless of the type of relief sought and the type of relief available through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Courts are not given discretion to decide whether exhaustion should be excused, Ross, 578 U.S. at 641, and there is no exception to the exhaustion requirement based on “futility.” Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) (citations omitted).
Importantly, the prison's grievance policy is what “define[s] the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; Spruill, 372 F.3d at 230-31 (the “prison grievance procedures supply the yardstick for measuring procedural default.”). Therefore, the procedural requirements for exhaustion in a given case “are drawn from the polices of the prison in question rather than from any free-standing federal law.” Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Spruill, 372 F.3d at 231).
The Court of Appeals has explained that if the defendant demonstrates that the inmate failed to exhaust his administrative remedies, then “the inmate plaintiff bears the onus of producing evidence that the on-the-books remedies were in fact unavailable to him or her.” West v. Emig, 787 Fed.Appx. 812, 814 (3d Cir. 2019) (citing Rinaldi, 904 F.3d at 268). “If there is no genuine dispute of material fact, then the exhaustion defense may be evaluated as a matter of law at summary judgment.” Id.
The Supreme Court explained in Ross that the term “available” means those “grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” 578 U.S. at 642 (quoting Booth, 532 U.S. at 738). See also Hardy v. Shaikh, 959 F.3d 578, 584 (3d Cir. 2020) (misleading or deceptive instructions from a prison official, as well as clearly erroneous statements, can render a grievance process unavailable). The Court of Appeals has further held “that as soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits prescribed by its own policies, it has made its administrative remedies unavailable and the prisoner has fully discharged the PLRA's exhaustion requirement” but only as to the matters complained of and the relief sought in the grievance. Shifflett, 934 F.3d at 365. Absent a situation where administrative remedies are not “available,” a court may not excuse an inmate's failure to exhaust “irrespective of any ‘special circumstances.'” Ross, 578 U.S. at 639.
The Pennsylvania Department of Corrections (“DOC”) has an official Inmate Grievance System that governs the grievance and appeals process in Pennsylvania correctional institutions. See 37 Pa. Code § 93.9. The Inmate Grievance System is set forth in DC-ADM 804 and “is intended to deal with a wide range of issues, procedures, or events that may be of concern to an inmate.” DC-ADM 804, § 1(A)(2). However, “[i]t is not meant to address incidents of an urgent or emergency nature” including allegations of sexual abuse or inmate misconduct charges, neither of which are implicated here. Id., § 1(A)(6) & (7).
The portions of the DC-ADM 804 that are relevant here are found in Section 2, Part A regarding step two of the grievance process-the inmate appeal of an initial review response. See Discussion, supra. If the inmate wishes to file an appeal of the initial review response, he must do so within fifteen working days from the date of the initial review response, but he must receive the initial review response before any appeal to the Facility Manager can be sought. DC-ADM 804 § 2, Part A, ¶¶ 1.a & b, ECF No. 102-4 at 16 (emphasis added). Also relevant here are the provisions for requesting and granting an extension of time to file an appeal. As discussed above, the inmate must notify the facility manager of the reason for the delay and the facility manager/designee will consider the reason given as well as whether the delay was caused by “a permanent transfer to another facility from the facility where the grievance should have been filed” and “any other reason the Facility Manager/designee deems appropriate.” Id. at § 2, Part A, ¶ 2.c(2) & (5), ECF No. 102-4 at 17.
Grievance Nos. 758847 and 759196
Based upon the facts outlined in Section II.A.4 entitled Plaintiff's Grievance History, the Court finds that the Court of Appeals decision in Hardy governs the issue presented here- whether the grievance process was unavailable to Mr. Ferreiras. In Hardy, the Court of Appeals considered when a prison grievance process is unavailable under the third situation of unavailability recognized by the Supreme Court in Ross v. Blake, 578 U.S. 632 (2016)-“when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” 578 U.S. at 644. In particular, the Hardy court clarified when a “misrepresentation” renders a grievance process unavailable. 959 F.3d at 585. The Court of Appeals found that the “critical test under Ross is not whether a misrepresentation is ‘clear' but whether that misrepresentation amounts to ‘interference with an inmate's pursuit of relief [that] renders the administrative process unavailable.'” Hardy, 959 F.3d at 586 (quoting Ross, 578 U.S. at 644); see also Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002)(holding that an inmate who failed to file a formal grievance had nonetheless sufficiently complied with the PLRA's exhaustion requirement because he had received misleading instructions from prison staff who told him to wait until an internal investigation was complete before filing a formal grievance, which was at odds with the grievance process, and then failed to inform him that the investigation was completed).
The Hardy court adopted a two-part test for determining when a grievance process is unavailable to an inmate because a misrepresentation thwarted his use of that process, which consists of an objective and subjective element. Id. at 587. “[T]o defeat a failure-to-exhaust defense based on a misrepresentation by prison staff, an inmate must show (1) that the misrepresentation is one which a reasonable inmate would be entitled to rely on and sufficiently misleading to interfere with a reasonable inmate's use of the grievance process, and (2) that the inmate was actually mislead by the misrepresentation.” Id. at 588-89. Applying that test here, Plaintiff has met his burden on both prongs.
Plaintiff claims to have been mislead into thinking that the responses had not yet been issued due to the fact that an extension of time notice was issued by the prison grievance coordinator and he had yet to receive copies of the responses as of November 30, 2018. Moreover, the grievance policy manual provides that the initial review response must be received by the inmate before any appeal to the facility manager can be sought. As Plaintiff had not yet received the responses, he could not have filed an appeal to the facility manager within fifteen working days of the issuance of the responses. The notice of extension of time issued by the grievance coordinator, together with the grievance policy not requiring an appeal to be filed until the initial review response is received, demonstrate that Plaintiff was misled into believing that the time for filing an appeal had not yet arose as he had not yet received the Initial Review Responses as of November 30, 2018, the date of his inquiry as to the status of his grievances. A reasonable inmate in Plaintiff's position would be entitled to rely on this information which was sufficiently misleading so as to interfere with the inmate's use of the grievance process to file a timely appeal to the facility manager. Thus, Plaintiff has satisfied the objective prong of the Hardy test.
Plaintiff has also provided sufficient evidence to satisfy the subjective prong of Hardy. The evidence shows that Plaintiff was actually mislead into believing that the Initial Review Responses had not been issued as of November 30, 2018 and therefore the time for filing an appeal to the facility manager had not yet been triggered. Plaintiff's 11/30/18 correspondence to Ms. House and his Inmate's Request to Staff Member directed to her on 12/26/18 in response to her 12/13/18 note that the Initial Review Responses were sent on 10/22/18 and 10/25/18 support his claim that he had not received the Initial Review Responses. In addition, Plaintiff's transfer to SCI-Albion occurred shortly after the responses were issued may have very well contributed to Plaintiff not receiving the responses that were sent on October 22nd and 25th. Moreover, the DOC Defendants have not provided any proof that Plaintiff actually received the responses as claimed by Ms. House, as is their burden in moving for summary judgment based on a failure to exhaust defense. As soon as Plaintiff learned in December of 2018 that the responses had been issued, he requested copies of them and asked for an extension of time to file an appeal if necessary once he received copies of the responses.
Although not precedential, the Court of Appeals decision in Brown v. Sprenkle, 827 Fed.Appx. 229 (3d Cir. 2020)(“Sprenkle”) is instructive here. In that case, the plaintiff/inmate did not receive the initial review response and maintained that he could not appeal to the next level until he had received the initial review response. Although he did not receive the initial review response, the plaintiff admitted he received a communication from the chief grievance officer on March 3, 2009, which stated among other things that an initial review response was completed on February 23, 2009. Id. at 231-32. The Court of Appeals found that once plaintiff knew that an initial review response had been issued, he should have informed the prison that he had not received it, and he should have requested, if necessary, an extension of time to file an appeal. Thus, the Court of Appeals concluded that the plaintiff failed to exhaust his administrative remedies. Id. at 232.
Here, Ferreiras did exactly what the Court of Appeals suggested in Sprenkle-once he found out that an initial review responses had been issued, he requested a copy as well as an extension of time to file an appeal. In addition, after a fair amount of time elapsed and he had not received the initial review responses, Ferreiras sent a letter to the grievance coordinator inquiring as to the status of his grievances. Moreover, none of the formal responses to Plaintiff's grievances and appeals indicates that the DOC considered Plaintiff's request for an extension of time or the reasons for his delay in filing his appeals as required by DC-ADM 804.
Based on the facts and circumstances enumerated above, as well as the Court of Appeals' discussion in Sprenkle and holdings in Hardy and Brown, the Court finds that the DOC made its administrative remedies unavailable to Plaintiff and therefore Plaintiff fully discharged the PLRA's exhaustion requirements as to the claims sought in grievance nos. 758847 and 759196. Accordingly, Plaintiff has not procedurally defaulted the claims raised in these grievances and it is recommended that the DOC Defendants' and Medical Defendants' requests that judgment be entered in their favor on the basis of procedural default be denied as to the claims arising from grievance nos. 758847 and 759196.
Grievance No. 760823
The Defendants also argue that Plaintiff has failed to exhaust his administrative remedies with regard to grievance no. 760823 and therefore he has procedurally defaulted the claims against them arising from this grievance. The Court agrees.
The evidence of record shows that the DOC issued its Initial Review Response denying grievance no. 760823 on October 18, 2018. Plaintiff filed a timely appeal to the Facility Manager on October 22, 2018. Defendant Capozza issued the Facility Manager's Appeal Response on December 27, 2018 upholding the denial of the grievance as frivolous. On January 20, 2019, Plaintiff filed an appeal to the SOIGA which was subsequently dismissed as untimely because Plaintiff's appeal was due to SOIGA by January 18, 2019 and Plaintiff failed to provide a reason for the delay.
The Court takes judicial notice of the 2018 and 2019 calendars which show that the fifteenth working day after December 27, 2018 is January 18, 2019.
As the Defendants have provided evidence to support their failure to exhaust defense as to grievance no. 760823, the burden shifts to Plaintiff to produce evidence that the DOC grievance remedies were not available to him. Plaintiff has failed to meet this burden.
Plaintiff responds that by submitting his appeal to SOIGA, he has exhausted his administrative remedies as to grievance no. 760823. This argument misses the mark. The DOC's grievance policy consists of three steps. The final step involves an appeal to the SOIGA within fifteen working days of the Facility Manager's Appeal Response. Plaintiff did not file a timely appeal to SOIGA and therefore, his appeal was dismissed as untimely. Thus, although Plaintiff may have exhausted his administrative remedies, he failed to follow the DOC's procedural rules for filing a timely appeal to the SOIGA and has not provided any reason for the delay. Therefore, he has procedurally defaulted the claims arising from grievance no. 760823. Woodford, 548 U.S. at 93; Spruill, 372 F.3d at 232.
Accordingly, the Court recommends that judgment be entered in favor of all Defendants on Plaintiff's claims arising from grievance no. 760823.
2. Statute of Limitations
The limitations period for civil actions brought under 42 U.S.C. § 1983 is determined by state law. Under Pennsylvania law, the applicable statute of limitations period for civil rights actions asserted under 42 U.S.C. § 1983 is two years. See 42 PA. CONS. STAT. § 5524. THE DATE WHEN A CIVIL RIGHTS ACTION ACCRUES, HOWEVER, IS A MATTER OF FEDERAL LAW. Wallace v. Kato, 549 U.S. 384, 388 (2007). A claim accrues when the plaintiff becomes aware, or should have become aware, of both the fact and injury and its causal connection to the defendant. See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (it is the wrongful act that triggers the start of the statute of limitations period); Keystone Ins. Co. v. Houghton, 863 F.2d 1125, 1127 (3d Cir. 1988) (a federal cause of action accrues when the plaintiff is aware, or should be aware, of the existence of and source of injury, not when the potential claimant knows or should know that the injury constitutes a legal wrong).
The DOC Defendants argue in the alternative that Plaintiff's claims arise out of events that occurred on September 17th and 18th, 2018, and since this lawsuit was commenced on September 22, 2020, the claims arising out of grievance nos. 758847 and 759196 are barred by the applicable statute of limitations. In opposition, Plaintiff responds that final appeals for grievance nos. 758847 and 759160 were issued on April 16, 2019, and grievance no. 760823 was denied on final review on March 6, 2019. Thus, Plaintiff contends that the claims raised against Defendants in these grievances are not time-barred and should not be dismissed. ECF No. 101 at 5.
The DOC Defendants also argue that tolling should not apply to the statute of limitations because Plaintiff has failed to exhaust his administrative remedies as to these grievances. However, this argument lacks merit as the Court has determined that Plaintiff has fully discharged the PLRA's exhaustion requirements with regard to grievance nos. 758847 and 759160.
As grievance no. 760823 was filed on September 24, 2018 with regard to events occurring on that date, the claims arising from that grievance are not time-barred as the present action was commenced on September 22, 2020, less than two years later. However, as found above, Plaintiff did not properly exhaust his administrative remedies with regard to grievance no. 760823, and therefore any claims based on that grievance have been procedurally defaulted.
In Pearson v. Sec'y Dep't of Corrections, 775 F.3d 598, 603 (3d Cir. 2015), the Court of Appeals officially held that the PLRA is a statutory prohibition that tolls Pennsylvania's statute of limitations while a prisoner exhausts his administrative remedies and directed the district court on remand to determine what period of time is tolled during the exhaustion. Id. at 604.
Regardless of whether the time period for tolling runs from the dates Plaintiff filed his grievances, September 17th and 18th, 2018 to the date the Initial Review Responses were issued-October 22, 2018-or until grievance nos. 758847 and 759196 were denied at the final appeal stages on March 6, 2019 and April 16, 2019, respectively, the statute of limitations was tolled for more than five days making the filing of his Complaint on September 22, 2020 timely. Accordingly, the Court finds that Plaintiff's claims arising from grievance nos. 758847 and 759196 are not time barred.
The Medical Defendants also submit that any claims asserted against them are time-barred. In support, they argue that grievances submitted in June and September of 2017 in which Plaintiff referenced Defendant Cowden are time barred as this Court has already determined that the continuing violation doctrine does not apply here. From this they extrapolate that because Plaintiff has not provided specific dates in his “grievances” and the grievances demonstrate he was aware of the issues raised in his pleadings well over two years before filing suit, his claims against the Medical Defendants are time barred.
The Medical Defendants' argument misses the mark. At issue here is the timeliness of grievance nos. 758847 and 759160, which they fail to address other than arguing generally that Plaintiff was aware of the issues raised well over two years before filing suit. As such, the Medical Defendants have not met their burden of proving that grievance nos. 758847 and 759160 are time-barred.
Accordingly, the Court recommends that the motions for summary judgment filed by the DOC Defendants and Medical Defendants requesting judgment in their favor on all claims, based the position that Plaintiff's claims are time-barred, be denied.
3. Equal Protection Clause Claim
Both the DOC Defendants and Medical Defendants have moved for summary judgment on Plaintiff's Equal Protection Clause claim. In his Amended Complaint, Plaintiff alleges that Defendant Randolph violated the Equal Protection Clause of the Fourteenth Amendment. ECF No. 38 at 5. In support, he refers to grievance no. 695186 dated September 5, 2017, in which he claims he requested to be placed in the infirmary because of his disability and the issues pertaining to his catheter supplies, and Defendant Randolph “did nothing” and denied his grievance. Id.; see also ECF No. 38-3 at 8-10. Plaintiff further alleges that Defendants violated the Equal Protection Clause:
Because of [his] disability and the ongoing issues [he] was experiencing[, he] requested multiple times to be placed in the infirmary but [his] request was denied. Meanwhile there were multiple inmates in similar conditions who were admitted into the infirmary or a section in the infirmary with an acronym, “P.O.C.” There was not any rational basis for the difference in treatment. At the time [he] was a diciplinary [sic] custody inmate as were the others. In fact, some were in wheelchairs but were not even paraplegics, D.C. status inmates in P.O.C. but for no justifiable reason, [his] requests were denied.ECF No. 38 at 18, ¶ 24.A.
As a preliminary matter, the Court must determine what evidence it may consider from the record being offered in support of Plaintiff's Equal Protection Clause claim. Upon a review of the entire record in this case, the Court found requests by Plaintiff to be placed in the infirmary in grievance nos. 693001, 695186, and 795196. See ECF No. 38-3 at 3, 6, 9, 12, 25. However, any evidence contained in grievances that are time-barred, i.e., grievance nos. 693001 and 695186, cannot be used to support Plaintiff's Equal Protection Clause claim. In its Report and Recommendation, this Court agreed that the continuing violation doctrine did not apply but noted that under the prison mailbox rule, Plaintiff's original Complaint was deemed filed on September 22, 2020. ECF No. 50 at 7, 14. The Court further found that if any of his claims accrued before September 22, 2018, Plaintiff would need to show that he filed suit asserting those claims within two years of that accrual-the date of the final denial of the grievance. Id. at 15. Plaintiff has failed to show that he initiated this action within two years of the date of the final denial of grievance nos. 693001 and 695186. Therefore, the Court cannot consider any evidence contained within these grievances in determining whether the Equal Protection Clause survives summary judgment.
Grievance no. 693001 was filed on August 22, 2017, wherein Plaintiff requested housing in the infirmary if possible. ECF No. 38-3 at 3. On August 30, 2017, Defendant Rice Grego issued the Initial Review Response denying his grievance stating he “d[id] not require housing in the infirmary as [he] will receive supplies as ordered.” ECF No. 38-3 at 4. Plaintiff reiterated his request to be placed in the infirmary in his appeal to the facility manager (ECF No. 38-3 at 6), but Defendant Capozza denied the appeal and requested relief on September 27, 2017 (id. at 7). No further appeal was taken by Plaintiff. Notwithstanding the fact that Plaintiff failed to fully exhaust his administrative remedies as to this grievance, the last decision issued in regard to it was dated September 27, 2017. Plaintiff's Complaint was filed on September 22, 2020, almost three years after the events occurred upon which grievance no. 693001 is predicated. Therefore, any Equal Protection Clause claim arising out of grievance no. 693001 has been procedurally defaulted and/or is time-barred.
Similar to grievance no. 693001, any Equal Protection Clause claim arising out of grievance no. 695186 has been procedurally defaulted and/or is time-barred. In Grievance no. 695186, which was filed on September 5, 2017 and denied in the Initial Review Response on September 18, 2017 by Defendant Randolph, Plaintiff requested to be placed in the infirmary to possibly prevent supply issues. ECF No. 38-3 at 9-10. Plaintiff appealed that response to the Facility Manager on September 22, 2017, stating that he requested to be placed in the infirmary throughout his time in the RHU to avoid supply issues but his requests continue to be denied/ignored. Id. 12. The Facility Manager, Defendant Capozza, responded on October 12, 2017 denying the appeal and requested relief. Id. at 13. Plaintiff did not appeal that decision to the SOIGA as he was entitled to do. Plaintiff's Complaint was filed on September 22, 2020, almost three years after the events occurred upon which grievance no. 695186 is predicated.
The Court turns now to a discussion of the merits of Plaintiff's Equal Protection Clause claim. The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. Recently, the Court of Appeals in Stradford v. Secretary Pennsylvania Department of Corrections elaborated on the requirements for establishing a claim under the Fourteenth Amendment Equal Protection Clause:
The Supreme Court has said that “the equal protection of the laws is a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). At bottom, the Equal Protection Clause requires equal treatment of “all persons similarly situated.” Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Att'y Gen. N.J., 910 F.3d 106, 125 (3d Cir. 2018) (quoting Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 151 (3d Cir. 2005)).
To establish an equal-protection claim, a plaintiff “must show that the Government has treated it differently from a similarly situated party and that the Government's explanation for the differing treatment does not satisfy the relevant level of scrutiny.” Real Alternatives, Inc. v. Sec'y Dep't of Health & Hum. Servs., 867 F.3d 338, 348 (3d Cir. 2017) (emphasis removed) (citing City of Cleburne, 473 U.S. at 439-40, 105 S.Ct. 3249).
Because “equality” is a rhetorically ambiguous concept, it's easy to “invoke any existing descriptive inequality as a basis for asserting what is essentially a prescriptive grievance.” Peter Westen, Speaking of Equality:
An Analysis of the Rhetorical Force of “Equality” in Moral and Legal Discourse 279 (1990). But the Fourteenth Amendment proscribes unequal treatment only among persons similarly situated according to a relevant standard of comparison. See Nordlinger, 505 U.S. at 10, 112 S.Ct. 2326 (Persons are similarly situated under the Equal Protection Clause when they are alike “in all relevant respects.”). So an equal-protection challenge must allege more than “broad generalities” in identifying a comparator. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1204 (11th Cir. 2007).53 F. 4th 67, 73-74 (3d Cir. 2022) (footnote omitted).
Plaintiff was instructed in the Court's Report and Recommendation that he would be allowed to develop facts to support his conclusory allegations that he was denied placement in the infirmary while others similarly situated were placed there without a rational basis, and that Defendants may advance their argument against the Equal Protection Clause claim at the summary judgment stage. ECF No. 50 at 19. However, other than the conclusory allegations in paragraphs 5.A and 24.A of the Amended Complaint (ECF No. 38 at 5, 18), his statement in grievance no. 759196 and the related appeals (ECF No. 102-3 at 14-27; ECF No. 106-3 at 3548), and his arguments in opposition to the summary judgment motions (ECF No. 101 at 7-8; ECF No. 105 at 16-17), Plaintiff has failed to produce any evidence that could be construed as satisfying the elements of an Equal Protection Clause claim or raising a triable issue of fact as set forth below.
Plaintiff's counterstatements of facts filed at ECF Nos. 102 and 106 do not assert any facts relating to his Equal Protection Clause claim. However, Plaintiff does attach grievance no. 759196 and related appeals and responses thereto, to his counterstatements of fact. ECF No. 102-3 at 14-27; ECF No. 106-3 at 35-48.
DOC Defendants
In support of their motion for summary judgment as to Plaintiff's Equal Protection Clause claim, the DOC Defendants argue that, other than alleging in his Amended Complaint that other inmates in similar conditions were admitted to the infirmary while he was denied placement, Plaintiff fails to allege any other facts to support this conclusory allegation. Moreover, the DOC Defendants argue that Plaintiff has failed to allege that any of them specifically treated Plaintiff different from other individuals similarly situated. As such, the DOC Defendants claim that Plaintiff has failed to state a violation of the Equal Protection Clause.
Initially, the Court notes that in his opposition brief to the DOC Defendants' motion for summary judgment, Plaintiff alleges that Defendants Wood, Rice-Grego, Capozza and Randolph violated his rights under the Equal Protection Clause, yet his Amended Complaint fails to assert such a claim specifically against Defendants Wood, Rice-Grego and Capozza. In opposition to summary judgment, Plaintiff argues that even though he met the criteria to be housed in the infirmary (but fails to mention what those criteria are), he was not allowed to be housed in the infirmary for no justifiable reason. ECF No. 101 at 7. He further argues that there were other inmates in the infirmary with similar conditions to his who were allowed to be housed in the infirmary, but each of his requests through grievances and in several verbal conversations with the DOC Defendants (but does not say which ones) were denied irrationally and unjustifiably. Id. at 7-8. Plaintiff submits that his serious medical need was ignored while those with similar conditions were not and therefore, he was not treated equally. Id. at 8.
Plaintiff has failed to meet his burden of providing some affirmative evidence, not just mere allegations, to show there is a genuine issue of fact for trial. Barnett, 573 Fed.Appx. at 243. Although the Plaintiff does not cite specifically to his exhibits in support of his Counterstatement of Facts and/or arguments, the Court reviewed all of Plaintiff's exhibits and can find no support for his Equal Protection Claim against any of the DOC Defendants or, more specifically, Defendants Wood, Rice-Grego, Capozza and Randolph.
First, Plaintiff has not alleged or shown any personal involvement in the refusal to place him in the infirmary on the part of any of the DOC Defendants. While Plaintiff does allege that he requested to be placed in the infirmary and Defendants Rice-Grego and Randolph denied these requests, these denials were raised in grievance nos. 693001 and 695186 respectively which cannot be considered as the events giving rise to these grievances occurred more than two years before this case was commenced. In grievance no. 759196, Plaintiff requested that he be placed in the infirmary to avoid having to reuse catheters and contracting UTIs. ECF No. 38-3 at 24-25. Defendant Wood issued the Initial Review Response denying the grievance, and Plaintiff's appeal to the facility manager was denied by Defendant Capozza. Id. at 13, 27. Other than Defendants Wood's and Capozza's participation in the grievance process, Plaintiff has failed to produce any affirmative evidence to show or raise a question of fact that these Defendants participated in violating his rights under the Equal Protection Clause. A defendant's mere participation in the grievance process is insufficient to confer knowledge of, and acquiescence to, a constitutional violation. Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D.Pa. 2013); see also Sears v. McCoy, No. 1:17-cv-00869, 2017 WL 4012658, at *3 (M.D.Pa. Sept. 12, 2017) (“the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation.”). Thus, Plaintiff's Equal Protection Clause claim against Defendants Randolph, Rice-Grego, Wood and Capozza fails as a matter of law.
Moreover, Plaintiff has failed to show or raise a question of fact as to whether the other inmates placed in the infirmary were similarly situated to him. As the Court of Appeals explained in Stradford, the plaintiff must identify the alleged comparators, and must allege more than “broad generalities” in identifying a comparator. 53 F.4th at 74 (citation omitted). Individuals “are similarly situated under the Equal Protection Clause when they are alike ‘in all relevant respects.'” Id. (quoting Nordlinger, 505 U.S. at 10). Here Plaintiff has failed to identify any alleged comparators or point to any evidence to show that they are similarly situated-i.e., wheelchair bound paraplegics who must self-catheter four to five times a day and who requested placement in the infirmary. Plaintiff merely alleges in his Amended Complaint that other inmates were housed in disciplinary custody like him, and some were in wheelchairs but were not paraplegics, yet they were admitted into the infirmary while he was not. ECF No. 38 at 18, ¶24.A. These allegations, unsupported by any affirmative evidence or affidavit, fail to identify similarly situated comparators and therefore his equal protection claim against the DOC Defendants is doomed. Id. (citation omitted).
Accordingly, the Court finds that no reasonably jury could find in favor of Plaintiff on his Equal Protection Clause claim against the DOC Defendants.
Medical Defendants
The Medical Defendants also seek summary judgment in their favor on Plaintiff's Equal Protection Clause claim. In support, they argue that Plaintiff does not belong to a member of a suspect class, but merely contends that he did not receive medically necessary supplies and treatment that he should have received, not that he was singled out compared to others for any reason. The Medical Defendants further argue that the Amended Complaint fails to establish how he was treated differently than similarly situated others or that Defendants Cowden and/or Medlock specifically treated him differently than other similarly situated inmates.
In his opposition brief, Plaintiff now raises for the first time new theories of unequal treatment not previously raised in his Amended Complaint or in the operative grievances. See ECF No. 105 at 16-17. In fact, Plaintiff does not allege any unequal treatment specifically by the Medical Defendants in his Amended Complaint.
For example, in his opposition brief Plaintiff now claims that Defendant Cowden refused to test his urine after a remedy of antibiotics while other inmates similarly situated were placed on the call out for a follow-up to confirm that the inmate was cured of whatever ailed him. Id. at 16. He also claims that some inmates were housed in the infirmary for a short period of time until it was confirmed that the inmate was well again and then released back to the general population. Id. Plaintiff submits that Defendant Cowden refused to thoroughly treat him without any rational basis and he had to submit sick call slips for follow-up urinalysis and pay a fee unlike the other inmates. Id. Notwithstanding that Plaintiff has failed to point to any evidence in the record which shows how he and the other inmates were similarly situated, his own argument demonstrates that the other inmates were not similarly situated to him. Although unsworn and unsubstantiated, Plaintiff's statement that other inmates similarly situated were placed on the call out for a follow-up to confirm that the inmate was cured of whatever ailed him shows that he has no idea what the other inmates were being treated for. As such, the Court finds that no reasonable jury could find that the other inmates who were allegedly treated differently than him were similarly situated as it relates to follow-up urinalysis and infirmary holds.
Plaintiff also advances for the first time that he was treated unequally with regard to the use of gloves to self-catheter. Id. Plaintiff never alleged in his Amended Complaint or in any grievance for that matter, that in denying him gloves Defendants Medlock and Cowden treated him differently from similarly situated inmates.
In his Counterstatement of Facts to the Medical Defendants' Statement of Facts, Plaintiff sets forth statements to the effect that Defendant Cowden told him inmates were not allowed to have gloves anymore, while other inmate workers in the RHU had gloves at that time, and Defendant Cowden told him he had to ask the CHCA or the CO's on duty for gloves. ECF No. 106 at 7, ¶ 27. Plaintiff further states that when he asked the CO's for gloves they allegedly responded that they did not know anything about that and asked him if he had anything if writing. Id. at 8, ¶ 29. Plaintiff claims he asked Defendant Cowden for a copy of the email regarding the new gloves policy and she told him it was sent but refused to give him a copy. Id. Plaintiff does not cite to any evidence in the record to support these statements, nor has he provided an affidavit containing any of these alleged facts. Even if he had, these statements do not show that, or raise an issue of fact as to whether, the other inmates who had gloves were similarly situated to Plaintiff or that a justifiable basis for medical denying his request for gloves did not exist.
Moreover, the evidence of record does not bear out Plaintiff's claim that he received unequal treatment regarding the use of gloves. His medical records indicate that during a sick call on September 12, 2018, Defendant Cowden advised Plaintiff that pursuant to new instructions from the institution, inmates are not allowed to receive gloves (ECF No. 92-2 at 22), which was reiterated by Defendant Medlock in response to an Inmate Request Slip dated October 5, 2018, in which she stated that although inmates are not banned from using latex gloves, medical can no longer provide him with his weekly supply of gloves and that he needs to get gloves from the corrections officers (ECF No. 102-9 at 7). Plaintiff does not provide any evidence to the contrary other than his unsworn, unsubstantiated conclusory statements that other similarly situated inmates received gloves. Plaintiff's statements are insufficient to raise an issue of fact at the summary judgment stage. Moreover, Plaintiff did not file a grievance over the gloves issue and thus he did cannot base his Equal Protection Clause claim on conduct for which no grievance was filed.
Finally, Plaintiff submits that Defendant Cowden denied his request to be placed in the infirmary but does not point to any evidence in the record that supports this statement. Nor can the Court find any such evidence in the record. In addition, Plaintiff does not provide a date as to when Defendant Cowden allegedly denied his request or any evidence to show that the other inmates who were allegedly placed in the infirmary were similarly situated to Plaintiff-i.e., were wheelchair-bound paraplegics who needed to self-catheter four to five times a day. As such, the Court finds that no reasonable jury could find in favor of Plaintiff on his Equal Protection Clause claim against the Medical Defendants.
Accordingly, the Court recommends that the motions for summary judgment filed by all Defendants as to Plaintiff's Equal Protection Clause claim be granted.
4. Eighth Amendment - Deliberate Indifference to Serious Medical Need
In his Amended Complaint, Plaintiff alleges that he has a serious medical need by virtue of his status as a wheelchair-bound paraplegic since 2010 who needs to self-catheter to relieve his bladder four to five times a day, and in order to do this, he requires adequate and proper medical supplies be delivered to him as prescribed on a timely basis. ECF No. 38 at 15, ¶ 22.A. He must also take medication to control bladder spasms. Id. Plaintiff further alleges that all Defendants were deliberately indifferent to his serious medical needs as they knew of and disregarded the excessive risk of harm to him by failing to carry out the prescribed medical orders for a specific amount, type, and size of catheters and other supplies, week after week continuously for so long. Id. at 15-16, ¶ 22.B. In addition, Plaintiff alleges that he was instructed by medical staff to reuse cathethers which was so inappropriate that it constituted intentional mistreatment likely to seriously aggravate his condition. Id. Also, he contends that the repeated UTIs he contracted are proof of deliberate indifference because of the “serious cumulative effect from the repeated denial of care.” Id. Specifically, as to each named Defendant, Plaintiff alleges:
Defendant Capozza - Plaintiff alleges that he responded to five grievances after Plaintiff appealed the initial review responses, that Defendant Capozza was made aware of all the issues with receiving his supplies, reusing catheters per the staff's instructions, and his request to be placed in the infirmary, but Capozza denied his appeals and requested relief. ECF No. 38 at 2, ¶ 2.A; ECF No. 38-3 at 7 (grievance no. 693001); ECF No. 38-3 at 13 (grievance no. 695186). Defendant Capozza also dismissed Plaintiff's appeals of grievance nos. 758847 and 759196 as untimely (ECF No. 38-3 at 20 & 31), and denied Plaintiff's appeal to the facility manager of grievance no. 760823 and the requested relief (ECF No. 38-3 at 39).
Defendant Nedra Rice-Grego - Plaintiff alleges that she is responsible for overseeing the medical department and its operations at SCI-Fayette. She responded to grievance no. 693001, in which Plaintiff set forth issues he was experiencing with not receiving his medical supplies as prescribed and ordered, having to reuse catheters, and his request for placement in the infirmary to resolve these issues being denied. Plaintiff alleges he sent multiple Inmate Request Slips to Defendant Rice-Grego to which she responded but the issues continued. She allegedly told him that it was okay to reuse and re-sterilize catheters even though the packaging clearly instructs not to reuse catheters. Id. at 3, ¶ 3.A; 38-3 at 15 (grievance no. 758847).
Defendant Stephanie Wood - Plaintiff alleges that Defendant Wood provided the Initial Review Responses to grievance nos. 759196 and 758847, in which Plaintiff explained the ongoing issues he was having with nurses failing to bring him supplies causing him to reuse catheters and exposing him to injury and harm. ECF No. 38 at 4, ¶ 4.A; ECF No. 38-3 at 14-15, 17 (grievance no. 758847); ECF No. 38-3 at 24-25, 27 (grievance no. 759196). In her response to grievance nos. 758847 and 759196, Defendant Wood stated that Plaintiff receives his supplies every Monday on daylight. ECF No. 38-3 at 17, 27. Yet Plaintiff claims he did not receive any supplies on Monday, September 17, 2018, and still had not received his supplies as of 7:00 a.m. and 11:00 a.m. on September 18, 2018. ECF No. 38 at 4, ¶ 4.A; ECF No. 38-3 at 14 & 22-23. The nurse who delivered meds on September 17, 2018 claimed that Plaintiff's supplies were hidden because he could not find them and the next day another nurse stated that there were no supplies to give Plaintiff. Id. Plaintiff alleges that Defendant Wood confirmed that his supplies were never hidden and that they were in fact available. ECF No. 38 at 4, ¶ 4.A. Plaintiff also alleges that he requested to be housed in the infirmary because of his disability and the issues with medical staff regarding his supplies but Defendant Wood refused. Id.; ECF No. 38-3 at 24-25, 27 (grievance no. 759196). In addition, Plaintiff alleges that Defendant Wood responded to an
Inmate Request Slip dated October 5, 1028 informing Plaintiff that he had to ask the COs now for gloves when he needed them to self-catheter (ECF No. 38-3 at 1); however, Plaintiff contends the COs never provided him with any gloves (ECF No. 38 at 4, ¶ 4.A).
Defendant K. Randolph - Plaintiff alleges that Defendant Randolph is the registered nurse supervisor at SCI-Fayette and that he responded to grievance no. 695186 in which Plaintiff requested to be placed in the infirmary because of his disability and the issues regarding his medical supplies, but Defendant Randolph did nothing and denied his grievance. ECF No. 38 at 5, ¶ 5.A; ECF No. 38-3 at 10. Plaintiff takes issue with Defendant Randolph's response that Plaintiff was provided with health education on how to clean and reuse his catheters, as “clearly soap and water does not resterilize catheters” especially in light of the instructions on the catheter packaging which states not to reuse or re-sterilize catheters. Id. In grievance no. 760823 filed on September 24, 2018, Plaintiff claims that his supplies were not brought to him as prescribed and ordered. ECF No. 38 at 5, ¶ 5.A; ECF No. 38-3 at 34. Plaintiff disputes Defendant Randolph's statement in the Initial Review Response that Nurse Jenkins delivered his catheter supplies at 11:00 a.m. on September 24, 2018, and claims that camera footage of his cell block will substantiate that he did not receive his supplies as stated by Defendant Randolph. ECF No. 38 at 5, ¶ 5.A; ECF No. 38-3 at 35, 38.
Defendant Brian - Plaintiff alleges that Defendant Brian is a nurse at SCI-Fayette who is responsible for delivering and administering all medications and supplies to inmates in the RHU. ECF No. 38 at 6. Plaintiff alleges that Defendant Brian failed to bring his weekly supplies on August 14th and 21st, 2017. Id. at ¶ 6.A. The alleged conduct of Defendant Brian is the basis for grievance no. 693001 which is dated August 22, 2017. The events giving rise to this grievance occurred more than two years before Plaintiff filed suit.
Defendant Nurse Brent - Plaintiff alleges that Nurse Brent is also responsible for delivering and administering all medications and supplies to inmates in the RHU. ECF No. 38 at 7. Plaintiff contends that on September 17, 2018, Nurse Brent came to his cell twice to deliver his medication but failed to bring him his supplies as prescribed and ordered, leaving him without a choice but to reuse catheters. Id. at ¶ 7.A. Nurse Brent allegedly told Plaintiff that all of his supplies were hidden because he could not find them anywhere. Id. Nurse Brent allegedly said he would look for the supplies and bring them to Plaintiff later, but he never did. Id. Plaintiff filed grievance no. 758847 regarding this incident. Id.; ECF No. 38-3 at 14-15. The next day, on September 18, 2018, Nurse Brent again brought Plaintiff's medication but failed to bring his supplies, stating that there were not any supplies to give him. ECF No. 38 at 7, ¶ 7.A. Nurse Brent allegedly told Plaintiff he understood the harm Plaintiff was claiming resulted from having to reuse catheters, but there was nothing he could do. Id. In response, Plaintiff filed grievance no. 759196. Id.; ECF No. 38-3 at 22-23. At approximately 4: 00
p.m. on September 18th, Plaintiff claims that Nurse Brent still did not have any of Plaintiff's supplies when he dropped off his medications, but allegedly told him that Rachel Medlock is the staff member responsible for making his supplies available and that she was the one who hid his supplies. ECF No. 38 at 7, ¶ 7.A. At approximately 7:00 p.m. on September 18th, Nurse Brent returned with only three size 12 French catheters (which was the wrong size and amount) and allegedly told Plaintiff that he did not want to carry all of his supplies from medical. Id.
Defendant Mark Jenkins - Plaintiff alleges that Defendant Jenkins is one of the nurses who failed to bring him his medical supplies as prescribed and ordered. Id. at 9, ¶ 9.A. In the Initial Review Response to grievance nos. 758847 and 759160, Defendant Wood confirmed that Defendant Jenkins was one of the nurses responsible for bringing his supplies every Monday on daylight. Id.; ECF No. 38-3 at 17, 27. Plaintiff further alleges that Defendant Jenkins again failed to bring his medical supplies on September 24, 2018, and he lied to Plaintiff when he stated that the reason he could not bring his supplies was because the eye doctor was occupying the room where Plaintiff's supplies were located. Id. Plaintiff claims that the eye doctor does not come before 8:00 a.m. and supplies are gathered up and passed out at the 7:00 a.m. “nurse line.” Id. According to Plaintiff, Defendant Jenkins' failure to bring his supplies resulted in Plaintiff having to reuse his catheters and contracting another UTI. Id. Plaintiff filed grievance no. 760823 regarding the events on September 24, 2018. Id.; ECF No. 38-3 at 34.
Defendant Bobeck - Plaintiff alleges that Defendant Bobeck is a nurse at SCI-Fayette who is responsible for delivering and administering all medications and supplies to the RHU. ECF No. 38 at 11. According to Defendant Wood, Defendant Bobeck is one of the nurses who is responsible for bringing him his supplies every Monday. Id. at ¶ 11.A; ECF No. 38-3 at 17 (grievance no. 758847) & 27 (grievance no. 759169). He further alleges that she failed to bring him his supplies as prescribed and ordered on multiple occasions from June 2018 to October 2018. ECF No. 38 at 11, ¶ 11.A.
Defendant Carter - Plaintiff alleges that Defendant Carter is a nurse at SCI-Fayette who is responsible for delivering and administering all medications and supplies to the RHU. Id. at ¶ 12. According to Defendant Wood, Defendant Carter is one of the nurses who is responsible for bringing him his supplies every Monday. Id. at ¶ 12.A; ECF No. 38-3 at 17 (grievance no. 758847) & 27 (grievance no. 759169). He further alleges that Defendant Carter failed to bring him his supplies as prescribed and ordered on multiple occasions from June 2018 to October 2018. ECF No. 38 at 11, ¶ 12.A.
Defendant Sanner - Plaintiff alleges that Defendant Sanner is a nurse at SCI-Fayette who is responsible for delivering and administering all medications and
supplies to the RHU. ECF No. 38 at 11, ¶ 13. According to Defendant Wood, Defendant Sanner is one of the nurses who is responsible for bringing him his supplies every Monday. Id. at ¶ 13.A; ECF No. 38-3 at 17 (grievance no. 758847) & 27 (grievance no. 759169). He further alleges that Defendant Sanner failed to bring him his supplies as prescribed and ordered on multiple occasions from June 2018 to October 2018. ECF No. 38 at 11, ¶ 13.A.
Defendant Burrie - Plaintiff alleges that Defendant Burrie is a C.O. 1 employed at SCI-Fayette who worked in the “bubble” (the area with all of the buttons and controls) in the RHU. Id. at 12, ¶ 14. Defendant Burrie usually responded to Plaintiff when he hit the call button. Id. at ¶ 14.A. Plaintiff would request that Burrie contact medical and ask them to bring his supplies. Id. Plaintiff explained to Burrie in great detail his condition and his need for his supplies. Id. Initially, Burrie contacted medical as Plaintiff requested and his supplies were delivered when the nurse came to pass out medications. Id. After this started to become a weekly request, Burrie allegedly told Plaintiff that he would no longer call medical and that he should speak to medical when they come to pass out medications or submit a sick call slip or Inmate Request slip. Id. Plaintiff references grievance nos. 693001,695186, 758847, 759196, and 760823 in support of his claim against Defendant Burrie; however, only grievance nos. 758847 and 759196 actually mention that Plaintiff asked the C.O.'s or C.O. Burrie specifically to call medical for his supplies. Id.; ECF No. 38-3 at 14, 22, 24. Moreover, these two grievances do not allege that Defendant Burrie or the other C.O.s refused to call medical when Plaintiff requested that they do so. ECF No. 38-3 at 14, 22, 24.
Defendants John Does 1 through 4 - Plaintiff has also sued four unidentified corrections officers at SCI-Fayette who were working in the RHU from June 2018 to October 2018. ECF No. 38 at 13, ¶ 15. When they were making their rounds, Plaintiff explained to them the ongoing issues he was having with receiving his supplies and the UTIs he was continuously contracting from having to reuse his catheters. Id. at ¶ 15.A. Plaintiff claims that he asked for their help to contact medical or a lieutenant on duty to get his supplies, but they ignored him and did nothing to help him. Id. In grievance nos. 758847 and 759196, Plaintiff claims that he asked the C.O.'s or C.O. Burrie specifically to call medical for his supplies. ECF No. 38-3 at 14, 22, 24. Moreover, these two grievances do not allege that Defendant Burrie or the other C.O.s refused to call medical when Plaintiff requested that they do so. Id.
Medical Defendant Cowden - Plaintiff alleges that Defendant Cowden was the staff member that he saw almost every time he submitted a sick call slip regarding his weekly supplies and UTI issues. ECF No. 38 at 8, ¶ 8.A. He alleges that at the sick call visits, Defendant Cowden reminded him that he was in prison and that he should not expect adequate healthcare. Id. Plaintiff alleges that he told Defendant Cowden that the reason he was getting UTIs was having to reuse
catheters because he was having issues with the nurses bringing him his supplies every week. Id. Defendant Cowden allegedly told Plaintiff that she previously had to self-catheter and had no issues reusing catheters that she washed with soap and water, and that he should do the same, even though the packaging instructs that catheters are not to be reused or re-sterilized. Id.; ECF No. 102-3 at 3, 15. Cowden allegedly told Plaintiff to ignore the instructions on the catheter packaging as it was just a ploy for the company to make more money. ECF No. 38 at 8, ¶ 8.A. Plaintiff expressed his concerns to Defendant Cowden about his pattern of contracting UTIs and the possibility of the antibiotics no longer being effective from continued use, which is why he requested that his urine be checked a few days after the antibiotic treatment to confirm that the UTI had resolved. Id. Cowden allegedly refused his request, stating that it was not necessary to followup because he self-catheters and is prone to contract UTIs and that if he wanted his urine retested, he had to submit a sick call slip and pay a $5.00 fee. Id. Plaintiff further alleges that Defendant Cowden's refusal to test his urine to check if the antibiotics cured his UTIs shows that she was deliberately indifferent to his serious medical needs. Id. at 16, ¶ 22.B. The record shows that Defendant Cowden saw Plaintiff on September 12, 2018 for a sick call visit, at which Plaintiff complained about receiving the wrong sized catheters and inquired as to why he did not receive any gloves. ECF No. 92-2 at 22. Defendant Cowden informed Plaintiff that they were out of size 14 catheters so he would have to use size 12 catheters until the 14's came in, and that pursuant to new instructions from the institution, inmates were not allowed to receive gloves so he must make sure to wash his hands well, then cathe, then wash his hands after cathing. Id. See also Part II, Section A, subsection 1. Medical History, supra, at pgs. 10-11. In response, Plaintiff requested BZC wipes which Defendant Cowden had delivered on the next pill line. Id. On October 15, 2018, Plaintiff was seen in the RHU by Defendant Cowden for a sick call visit at which Plaintiff asked her to inform the COs that he was to receive gloves but must return them when he has used them. ECF No. 92-2 at 15. Cowden advised the lieutenant about the gloves and he requested a copy of the email from CHCA. Id. Cowden's progress note indicates that she would send the CHCA email with instructions about the gloves, but it does not indicate that this information was provided to Plaintiff. Id. See also Part II, Section A., subsection 1. Medical History, supra.
Medical Defendant Rachel Medlock - Plaintiff alleges that she is a medical provider at SCI-Fayette responsible for making and processing all medically related orders and purchases for the care of the inmates, and restocking and restoring all medical supplies and devices at the institution. Id. at 10. Plaintiff alleges that he discussed verbally with Defendant Medlock in great detail the issues he was having with receiving adequate and correct medical supplies in a timely manner. Id. at 10, ¶ 10.A. Plaintiff alleges that the reason Nurse Brent could not bring him his supplies was because Defendant Medlock hid them. Id. It is known that Plaintiff's prescription calls for size 14 French catheters, but he was constantly receiving size 12 French catheters which were not relieving his bladder
properly. Id. On May 28, 2018, he submitted an Inmate Request Slip to Defendant Medlock explaining this and she responded by stating “12 fr. Caths are in, nursing should bring over this week.” Id.; ECF No. 106-6 at 8. Plaintiff claims that Defendant Medlock's response is adding to his problems, by refusing to help him and failing to intervene to resolve an issue that was within her job description. ECF No. 38 at 10, ¶ 10.A. On October 5, 2018, Plaintiff submitted an Inmate Request Slip requesting instructions on what he needed to do to be able to use latex gloves when he self caths, as Defendant Medlock informed him that although inmates are not banned from using gloves, medical can no longer provide him with his weekly supply of gloves. ECF No. 102-9 at 7.
The grievances referenced by Plaintiff are grievance nos. 693001, 695186, 758847, 759196, and 760823. However, the only operative grievances in this lawsuit are nos. 758847 and 759196, as grievance nos. 693001 and 695186 were filed outside the statute of limitations and the claims in grievance no. 760823 are procedurally defaulted.
To state a claim for deliberate indifference, a plaintiff must satisfy the two-part test drawn from Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “First, plaintiff must make an ‘objective' showing that the deprivation was ‘sufficiently serious,' or that the result of defendant's denial was sufficiently serious. Additionally, the plaintiff must make a ‘subjective' showing that defendant acted with ‘a sufficiently culpable state of mind'” - i.e., “deliberate indifference.” Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). None of the Defendants is arguing that Plaintiff 's required use of a catheter to relieve his bladder and necessary supplies is not a serious medical need.
As to the second prong, the plaintiff “must make a subjective showing that defendant acted with a sufficiently culpable state of mind.” Pinchak, 294 F.3d at 499. The level of culpability is “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Thomas v. Dragovich, 142 Fed.Appx. 33, 36 (3d Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). A prison official must “know of an excessive risk to an inmate's health or safety and affirmatively disregard it.” Innis v. Wilson, 334 Fed.Appx. 454, 456 (3d Cir. 2009) (citing Farmer, 511 U.S. at 835-38). The Third Circuit Court of Appeals 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) (citations omitted).
Non-medical defendants cannot be deliberately indifferent “simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.” Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). “If a prisoner is under the care of medical experts . . . a non-medical prisoner official will generally be justified in believing that the prisoner is in capable hands.” Spruill, 372 F.3d at 236 (discussing Durmer, 991 F.2d at 69). “[A]bsent 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.” Id. at 236.
DOC Defendants
In support of their motion for summary judgment on Plaintiff's Eighth Amendment deliberate indifference claim, the DOC Defendants advance two arguments. First, that Plaintiff has failed to show that they exhibited the requisite state of mind of being deliberately indifferent. In support of this argument, the DOC Defendants submit that the record shows that Plaintiff was provided his medical supplies every Monday in the month of September 2018, and that in each of grievance nos. 758847, 759196, and 760823 the DOC Defendants reviewed his medical records and spoke with attending nurses regarding his allegations. The DOC Defendants submit that Plaintiff's medical records show that he received his medical supplies and was being treated with several antibiotics. They maintain that there is no indication from the record that any of them “affirmatively disregarded” Plaintiff's serious medical need. Second, as to the non-medical Defendants, the DOC Defendants argue that Plaintiff's medical records indicate that he was under the care of the prison's medical staff and that he was being provided his medical supplies. They submit that nothing in the record suggests that the non-medical DOC Defendants knew or had any reason to believe that Plaintiff was being mistreated or not treated at all. ECF No. 82 at 8-9.
In opposition, Plaintiff responds that every week one of the nurses named as a Defendant failed to bring him his medical supplies as prescribed and ordered which led to a UTI. In each of his grievances, Plaintiff requested that the camera footage on his cell block be reviewed and preserved as it would show that he was not receiving his weekly supplies every Monday as prescribed and ordered. However, Plaintiff maintains that the DOC Defendants failed to do so contrary to their own policies and procedures, and this allowed Defendants to continue to violate his rights. While at SCI-Fayette, Plaintiff was instructed to reuse catheters even after he was prescribed an increased amount of supplies for the purpose of not reusing catheters. Plaintiff submits that he contracted so many UTIs at SCI-Fayette (two to four each year from 2014 to 2018) and was given antibiotics so many times that they were becoming ineffective and required that stronger doses be prescribed. By contrast, Plaintiff claims he has only had two UTIs after he was transferred to SCI-Albion from October of 2018 to June of 2022 (the date he filed his opposition brief), as he receives his supplies as prescribed and ordered for the most part. Thus, Plaintiff submits that the DOC Defendants, instead of addressing the issue in order to prevent harm or correct a constant wrongdoing, did nothing and allowed the violations to continue and get worse. For these reasons, Plaintiff argues that the DOC Defendants are not entitled to summary judgment.
As to the DOC Defendants who are not nurses, Plaintiff argues that they failed to act and thoroughly investigate, outright lied and allowed the harm to continue even though each of them was made aware of what was taking place and the harm it was causing. As such, the nonmedical DOC Defendants affirmatively disregarded his health and safety and can be charged with the Eighth Amendment scienter requirement of deliberate indifference because they had actual knowledge that the medical defendants were mistreating him and they failed to act. ECF No. 101 at 6-7.
The Court finds that the record evidence raises a genuine question of fact as to whether Defendants Brent, Rice-Grego, Bobeck, Carter and Sanner were deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment. With regard to Defendant Brent, as noted above, the evidence shows that he was aware of Plaintiff's need to receive his catheters and supplies as ordered in a timely fashion yet he failed to deliver them twice on September 17, 2018 and again failed to deliver the ordered supplies the next day until 7:00 p.m., resulting in Plaintiff having to reuse catheters. Defendant Brent's responses could certainly be construed as deliberate indifference by a jury, as the record shows he was likely aware of the harms from having to reuse catheters but claimed there were no supplies or they were hidden, which is contrary to what Defendant Wood stated in her Initial Review Response to grievance nos. 758847 and 759196. Defendant Brent claimed there was nothing he could do. Later on September 18th, Defendant Brent returned with only three catheters which were the wrong size and amount, as he did not wish to carry all of Plaintiff's supplies from medical. This evidence is enough to raise a question of fact as to whether Defendant Brent was deliberately indifferent to Plaintiff's serious medical needs.
The Court also finds that the record evidence raises a genuine question of fact as to whether Defendant Rice-Grego was deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment. The evidence shows that she was aware of the issues Plaintiff was having with his catheters and supplies based on her Initial Review Response to grievance no. 693001 on August 30, 3017 and Inmate Request Slips submitted to her between March and June 2018. Moreover, she allegedly told Plaintiff that it was okay to reuse and resterilize catheters despite the caution against doing so on the packaging, which shows that she condoned such advice given by some of the other Defendants. As supervisor of the medical department and its operations, Defendant Rice-Grego may be found liable under a supervisory liability theory. In order to maintain a claim under a theory of supervisory liability, a plaintiff must show: (1) that the supervising official personally participated in the activity; (2) that the supervising official directed others to violate a person's rights; or (3) that the supervising official had knowledge of and acquiesced in a subordinate's violations. See Santiago v. Warminster Twp., 629 F.3d 121, 129 & n.5 (3d Cir. 2010) (citing A.M. ex. rel. J.M.K. v. Luzerne Cnty., 372 F.3d 572, 586 (3d Cir. 2004)). To impose liability under the knowledge and acquiescence theory, there must be “both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's assertion could be found to have communicated a message of approval to the offending subordinate.” Colburn v. Upper Darby Twp., 838 F.2d 663, 673 (3d Cir. 1988). The record here shows or at least raises a question of fact as to both of these elements. As such, Plaintiff has raised a question of fact as to whether Defendant Rice-Grego was deliberately indifferent to Plaintiff's serious medical needs in September of 2018.
As to DOC Defendants Bobeck, Carter, and Sanner, viewing the evidence in the light most favorably to Plaintiff, it shows that they failed to bring Plaintiff's medical supplies on multiple occasions from June 2018 to October 2018. Their alleged non-delivery of Plaintiff's supplies as ordered could be construed by a reasonable jury as preventing a prisoner from receiving needed or recommended treatment which the Court of Appeals has held is sufficient to show deliberate indifference. Rouse, 182 F.3d at 197. As such, Plaintiff has raised a genuine question of fact as to whether Defendants Bobeck, Carter, and Sanner were deliberately indifferent to Plaintiff's serious medical needs.
On the other hand, the Court finds that the record evidence fails to show or raise a genuine question of fact as to whether the remaining DOC Defendants were deliberately indifferent to Plaintiff's serious medical needs. It is clear from the record that Defendant Capozza's only involvement was his participation in the grievance process, i.e., issuing the facility manager's appeal response. Moreover, there is no evidence to show that Defendant Capozza, as a non-medical prison official, had any reason to believe that the medical staff was mistreating or not treating Plaintiff. Thus, Plaintiff has failed to establish the Eighth Amendment scienter requirement of deliberate indifference with regard to Defendant Capozza.
Similar to Defendant Capozza, Defendant Wood's only alleged involvement is her participation in the grievance process, i.e., denying Plaintiff's grievance nos. 758847 and 759196 in the Initial Review Response. In his Amended Complaint, Plaintiff disputes Defendant Wood's findings in response to these grievances but does not point to any evidence in the record to show that Defendant Wood knew that Plaintiff was not receiving his medical supplies. Nor does the record show that she had any involvement in the failure to deliver his medical supplies in September of 2018 as ordered and prescribed. Thus, no reasonable jury could conclude that Defendant Wood was deliberately indifferent to Plaintiff's serious medical need from this record. Likewise, Wood's denial of Plaintiff's request to be placed in the infirmary in grievance no. 759196 does not show deliberate indifference on her part. The record evidence shows that Wood believed that Plaintiff was receiving his supplies-this suggests that placement in the infirmary was not necessary. Thus, Plaintiff's claim of deliberate indifference against Defendant Wood consists merely of her involvement in the grievance process and, as such, fails as a matter of law.
Nor does Defendant Wood's response to Plaintiff's Inmate Request Slip dated October 5, 2018 show deliberate indifference on her part to the serious medical needs set forth in grievance nos. 758847 and 759196. Plaintiff cannot use events occurring after the alleged misconduct to show deliberate indifference and, in any event, he did not file a grievance with regard to the gloves issue.
As to Defendant Brian, the conduct forming the basis of Plaintiff's deliberate indifference claim against him allegedly occurred on August 14, 2017 and August 21, 2017, which was raised in grievance no. 693001. Plaintiff failed to properly exhaust this grievance and, in any event, the last appeal decision was issued on September 27, 2017 putting the alleged misconduct outside the statute of limitations. Therefore, Plaintiff is precluded from maintaining a deliberate indifference claim against Defendant Brian.
Plaintiff is likewise precluded from maintaining his Eighth Amendment deliberate indifference claim against Defendant Jenkins. Although there is evidence to show that Defendant Jenkins was one of the nurses who failed to bring Plaintiff his medical supplies, his claim against Defendant Jenkins arises out of grievance no. 760823, which has been procedurally defaulted. Moreover, Plaintiff's statements in grievance no. 760823 cannot be used to establish the scienter requirement for claims that arose in grievances filed prior to grievance no. 760823.
As to Defendant Randolph, the conduct forming the basis of Plaintiff's deliberate indifference claim against him arose out of his denials of Plaintiff's grievance nos. 695186 and 760823. However, Plaintiff failed to properly exhaust grievance no. 695186 and, in any event, the last appeal decision was issued on October 12, 2017 putting the alleged misconduct outside the statute of limitations. In addition, Plaintiff procedurally defaulted grievance no. 760823. Moreover, it is clear from the record that Defendant Randolph's only involvement was his participation in the grievance process. Therefore, Plaintiff is precluded from maintaining a deliberate indifference claim against Defendant Randolph.
Finally, as to Defendant Burrie, it is clear from the record that the conduct forming the basis of Plaintiff's deliberate indifference claim against him arose out of grievance nos. 758847 and 759196, which are the only grievances that actually mention that Plaintiff asked the C.O.'s or C.O. Burrie specifically to call medical for his supplies. Plaintiff does not state in those grievances that Defendant Burrie refused to call medical when Plaintiff requested that he do so. Moreover, there is no evidence to show that Defendant Burrie, as a non-medical prison official, had any reason to believe that the medical staff was mistreating or not treating Plaintiff. Indeed, the record shows that Plaintiff submitted Inmate Request Slips or sick call slips to medical when he had issues with receiving his supplies, which tends to show that Plaintiff was being treated by the medical staff. Thus, Plaintiff has failed to establish the Eighth Amendment scienter requirement of deliberate indifference with regard to Defendant Burrie.
Defendants John Doe 1 through 4
Defendants John Doe 1 through 4 have yet to be identified and served in this case; thus, Plaintiff's claims against them still remain. Nonetheless, the Court recommends a sua sponte grant of summary judgment for the following reasons.
The Supreme Court recognizes “that district courts . . . possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that [he] had to come forward with all of [his] evidence.” Celotex Corp., 477 U.S. at 326; see also Gibson v. Mayor & Council of City of Wilmington, 355 F.3d 215, 222 (3d Cir. 2004) (citing Chambers Dev. Co. v. Passaic Cnty. Utils. Auth., 62 F.3d 582, 584 n.5 (3d Cir. 1995)). Before a district court grants summary judgment to a non-moving party it must first place the adversarial party on notice that the court is considering such sua sponte action. See Gibson, 355 F.3d at 223. The Third Circuit explained that “notice” means “that the targeted party ‘had reason to believe the court might reach the issue and receive a fair opportunity to put its best foot forward.'” Id. at 223-24 (quoting Leyva v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir. 1999) citing Jardines Bacata, Ltd. v. Diaq-Marquez, 878 F.2d 1555, 1561 (1st Cir. 1989)) (internal quotation marks omitted). Additionally,
[w]here it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court, a sua sponte grant of summary judgment against that party may be appropriate if those materials show no material dispute of fact exists and that the other party is entitled to judgment as a matter of law.Id. at 224 (quoting Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir. 1996)). Despite the general notice requirement to the nonmoving party, the Third Circuit has concluded that, notice to the adversarial party is not required in three circumstances: (1) when there exists a fully developed record; (2) when the adversarial party would not be prejudiced by a sua sponte grant of summary judgment; and (3) when the decision is based on a purely legal issue. Id.
Although a district court's sua sponte grant of summary judgment must be undertaken with the utmost caution given the serious consequences to the adversarial party, in this instance such action is appropriate. Plaintiff's Eighth Amendment deliberate indifference claims against the Doe Defendants are identical and arise from the same set of factual allegations as his claims against the moving DOC Defendants to which he responded in his opposition brief. Specifically, he maintains that the Doe Defendants acted with deliberate indifference to his medical needs by ignoring his requests for help to contact medical or a lieutenant to get his supplies, which is almost identical to his claim against Defendant Burrie. Thus, Plaintiff was on fair notice that the Court would consider summary judgment in favor of the Doe Defendants on these claims because they are coexistent to the claims against Defendant Burrie.
Moreover, because the claims against moving Defendant Burrie and the Doe Defendants are virtually identical, there is no additional evidence needed to fully develop the record. All of the evidence Plaintiff could potentially proffer in support of his deliberate indifference claims against the Doe Defendants is in the record presently before the Court.
Nor will Plaintiff be prejudiced by the sua sponte granting of summary judgment in favor of the Doe Defendants. Plaintiff had the opportunity to present his case against the DOC Defendants and fully responded to their summary judgment motion.
Finally, as with moving Defendant Burrie, the record simply does not reflect that the Doe Defendants were deliberately indifferent to Plaintiff's medical needs. The Court can find no evidence in the record to show that the Doe Defendants, as a non-medical prison officials, had any reason to believe that the medical staff was mistreating or not treating Plaintiff. Indeed, the record shows that Plaintiff submitted Inmate Request Slips or sick call slips to medical when he had issues with receiving his supplies, which tends to show that Plaintiff was being treated by the medical staff.
Accordingly, the Court finds that summary judgment in favor of the Doe Defendants is warranted.
In summary, for the reasons set forth above, the Court finds that a reasonable factfinder could find that the Defendants Brent, Rice-Grego, Bobeck, Carter, and Sanner were deliberately indifferent to Plaintiff's serious medical needs in September of 2018. As to Defendants Capozza, Wood, Randolph, Brian, Jenkins, Burrie, and John Does 1 through 4, the Court finds that no reasonable factfinder could find that they were deliberately indifferent to Plaintiff's serious medical needs in September of 2018, and therefore, they are entitled to judgment as a matter of law in their favor. Thus, the Court recommends that summary judgment be granted in favor of DOC Defendants Capozza, Wood, Randolph, Brian, Jenkins, Burrie, and John Does 1 through 4 on Plaintiff's Eighth Amendment deliberate medical indifference claim, but that summary judgment be denied as to Defendants Brent, Rice-Grego, Bobeck, Carter and Sanner.
Medical Defendants
In support of their motion for summary judgment, the Medical Defendants argue that none of Plaintiff's allegations of deliberate indifference by them are supported by any evidence, let alone credible evidence. Rather, the Medical Defendants submit that the evidence they have proffered demonstrates that Plaintiff received a great deal of care and attention and there can be no genuine issue of material fact suggesting that anyone was deliberately indifference to his serious medical needs. In particular, the Medical Defendants submit that the medical records from August 2016 to October of 2018 show that Plaintiff received ongoing medical treatment from them at SCI-Fayette for all of his complaints, requests, and reports regarding his health, especially those related to his need for self-catheterization supplies. ECF No. 84 at 8-15. The Medical Defendants maintain that the record evidence further demonstrates that Plaintiff received urinalyses, urine culture and sensitivity lab tests, self-catheterization supplies on a consistent basis and when requested, updated orders of his supplies based on his needs, testing for UTI diagnoses, and treatment for UTIs. Id. at 15-16.
This evidence of Plaintiff's medical treatment at SCI-Fayette is set forth in detail in Part II, Section A, subsection 1. Medical History, supra.
With regard to Defendant Cowden, it is argued that she did not deny Plaintiff medical treatment at any point in time. In support, she points to her response on June 11, 2018 to Plaintiff's complaint that his supply of catheters was running low, stating that more catheters would be delivered on the 2 p.m. to 10 p.m. shift. ECF No. 92-2 at 34. On September 12, 2018, in response to a request from Plaintiff for BZC wipes due to a change in protocol resulting in Plaintiff no longer receiving disposable gloves to self-catheterize, Defendant Cowden sent over nine BZC wipes on the next pill line. Id. at 22-23. Defendant Cowden argues that the record demonstrates that she saw and treated Plaintiff for his complaints regarding medical supplies and UTIs, including advising him as to whether or not he had UTIs, educating him as to the bacteria causing his UTIs and the need to be more attentive to hand washing and cleanliness, ordering lab tests to determine whether he had UTIs, and advising him of the results. ECF No. 94 at 19. As to Plaintiff's claims that she told him to reuse catheters, that he should not expect to get adequate health care because he was in prison, or that he had to expect to get UTIs because he self-caths, Defendant Cowden denies these accusations but submits that they are irrelevant as there was no lapse whatsoever in the actual care and attention Plaintiff received, describing his accusations as “pitiful aspersions.” Id. at 17.
Defendant Cowden also claims that she got Plaintiff a copy of the email from CHCA regarding the new gloves protocol but the record does support this statement. First of all, the date referenced by Defendant Cowden-October 18, 2018-is incorrect. The sick call visit to which she is referring took place on October 15, 2018. See ECF No. 92-2 at 15. Moreover, her progress note does not indicate that she provided a copy of the email to Plaintiff; rather, it suggests that a copy of the email was sent to the lieutenant as he was the one who was requesting a copy. Id.
Defendant Medlock argues that the allegations against her consist of three general notions. First, because she was the person responsible for ordering medical supplies, whenever Plaintiff was short on catheters, obtained the wrong size, or was delayed in receiving them, she must be ipso facto liable because this was her job. Defendant Medlock submits that this argument fails because the record is devoid of any evidence proving that he genuinely had problems receiving catheters and other supplies regularly and consistently, or at least not to the level of deliberate indifference. Second, as to the complaint that Defendant Medlock advised him that he would no longer be issued disposable gloves, she was simply the bearer of a message about such a policy and not responsible for it; she cannot be held liable simply for informing him of the policy. Finally, as to the allegation that Defendant Medlock hid his supplies, she cannot prove a negative and the burden of proof does not impose such a duty upon her. Rather Plaintiff has the burden of offering some evidence that it is true and he has not. ECF No. 94 at 17-18.
The Medical Defendants argue that while Plaintiff may be dissatisfied with the treatment he received, the Eighth Amendment does not require that a prisoner receive every medical treatment that he requests or that is available elsewhere. In support, they cite Young v. Quinlan, 960 F.2d 351, 358 n. 18 (3d Cir. 1992), for the proposition that mere disagreements over medical judgment do not state Eighth Amendment claims as there are typically several acceptable ways to treat an illness. As the record demonstrates that neither Defendant Cowden nor Defendant Medlock denied Plaintiff medical treatment or access to his supplies, the Medical Defendants submit that Plaintiff received constitutionally appropriate medical care and therefore they are entitled to summary judgment on his Eighth Amendment deliberate indifference claim.
In response, Plaintiff advances several arguments. First, as to Defendant Cowden, he submits that on August 1, 2016, he was prescribed four catheters a day so he would not have to reuse any catheters due to frequent UTIs (ECF No. 92-1 at 28) and an order was entered for 28 size 14 French catheters and related supplies to be delivered every Monday (Id. at 5, 28). See ECF No. 105 at 5. Plaintiff contends, and the Court agrees, that his medical records show that Defendant Cowden was aware of his condition, the prescription and order, and why it was necessary, as she personally responded to many of his sick call slips for suspected UTIs. ECF No. 105 at 5-7. Plaintiff submits that despite her knowledge of his condition and prescription, and the manufacturer's instruction on the packaging not to reuse catheters, Defendant Cowden instructed him to reuse catheters when his supplies were not delivered on time, thus causing him to contract UTIs. Id. at 5-7. Plaintiff also contends that at times Defendant Cowden refused to do a follow-up urinalysis to confirm that the antibiotic treatment cleared up the UTI. Id. at 6. As a result, he was forced to submit a sick call slip for the same issue and pay the $5 to $15 fee all over again. Id. Finally, Plaintiff submits that Defendant Cowden told him that because he is in prison, not to expect adequate health care. Id.
As to Defendant Medlock, Plaintiff argues that she failed to supply him with prescribed size 14 French catheters continuously, and instead he was given a mixture of sizes which did not work or caused him so much irritation that it caused him to bleed from inside his penis. Id. As a result, Plaintiff claims he experienced bladder spasms like never before and now has to self-cath five times a day. Id. In response to Plaintiff's Inmate Request Slip dated May 28, 2018 complaining that he was constantly receiving the wrong size catheters, Defendant Medlock stated that size 12 French catheters were in and nursing will deliver this week, thus perpetuating the continued delivery of “unprescribed problematic supplies” according to Plaintiff. Id. See also ECF No. 106-6 at 8. Because Defendant Medlock is responsible for making and processing all medically related orders and purchases for the inmates and stocking and storing all medical supplies and devices, Plaintiff submits that she was responsible every time his medical supplies were not available. ECF No. 105 at 6.
Plaintiff contends that the Medical Defendants' conduct as described above deliberately deprived him of his prescribed supplies as ordered in violation of his rights under the Eighth Amendment and is not merely a disagreement over a medical judgment, as the Medical Defendants contend. Id. at 7. Moreover, Plaintiff submits that the ongoing issues with his medical supplies continuously exposed him to harm and caused multiple UTIs, proving that he was denied medical care in such a way that can clearly be described as “greater than mere negligence.” Id. at 9. In support, Plaintiff cites to Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), for the proposition that deliberate indifference has been found where defendants intentionally refused to provide medical care, delayed medical treatment for non-medical reasons, denied prescribed medical treatment, or denied reasonable requests for treatment that resulted in suffering or risk of injury. Plaintiff also cites White v. Napoleon, 897 F.2d 103, 109-111 (3d Cir. 1990), for the proposition that deliberate indifference may be found where prison officials persist in a particular course of treatment “in the face of resultant pain and risk of permanent injury.” Such is the case here, Plaintiff maintains, from having so many UTIs and going through back-to-back antibiotic treatments, requiring heavier doses and stronger antibiotics to clear up the UTIs and resulting in him having to self-cath five times a day instead of four. ECF No. 105 at 9.
Finally, Plaintiff submits that the Medical Defendants' argument that he received thorough and timely medical care because he submitted sick call slips and was seen by medical staff and a prescription was written and recorded in his file is meaningless. Id. at 9-10. He further submits that medical care is not thorough if a prescription is ordered and the actions of the Defendants prevent the prescription from being carried out. Id. at 10. Nor, Plaintiff argues, may medical care be considered timely if he is prescribed to receive his supplies on Monday mornings and they are not available to be delivered at that time, or are not delivered until Monday night or Tuesday, causing him to reuse catheters. Id. He further submits that it is not adequate health care to give him a prescription and then disregard it by instructing him to do something, i.e., reuse catheters, which can cause harm and is obviously contrary to the prescription. Id.
Although the Medical Defendants argue that on every single occasion that Plaintiff thought he might have a UTI, a urinalysis was done and on most occasions, he was begun on prophylactic antibiotics pending the results, and the infections was successfully cleared with antibiotic treatment, showing that they went well beyond the minimum required of them on numerous occasions, this argument misses the essence of Plaintiff's deliberate indifference claim. Plaintiff's complaint is that if he had received the prescribed amount and size of his catheters and other supplies on time he would not have had to reuse catheters, which led to numerous UTIs. By instructing him to reuse catheters or use the wrong size catheters contrary to the prescription and order entered on August 1, 2016, the Medical Defendants displayed deliberate indifference to the resulting harm of contracting UTIs. Even though the antibiotics cleared up the UTIs, Plaintiff submits and the evidence shows that the medical staff had to change his antibiotics over the course of time due to the prescribed antibiotics no longer being effective to treat the UTIs. As such, Plaintiff's concerns about the overuse of antibiotics and their effectiveness to treat future UTIs are valid.
Weighing all of the record evidence in the light most favorable to Plaintiff, the Court finds that the record raises a genuine question of fact as to whether the Medical Defendants were deliberately indifferent to his serious medical needs.
Defendant Cowden denies many of Plaintiff's claims, thus raising genuine issues of fact as to whether she was deliberately indifferent to Plaintiff's serious medical needs. Defendant Cowden attempts to get around these factual disputes by arguing that they are irrelevant. The Court disagrees as they clearly go to the essence of Plaintiff's Eighth Amendment claim. The record shows that on three Mondays in September of 2018, the delivery of his catheters and supplies was missed. Plaintiff has not voiced a mere disagreement or dissatisfaction over medical treatment; he has proffered evidence to show that he did not receive the prescribed medical treatment as ordered which resulted in UTIs. In addition, a reasonable jury could find that instructing Plaintiff to reuse catheters when his prescribed supplies were not delivered on time, knowing of the increased risk of harm, i.e., contracting UTIs, shows that Defendant Cowden was deliberately indifferent to Plaintiff's serious medical needs.
On the other hand, there is no evidence in the record to support Plaintiff's claim that Defendant Cowden refused to order follow-up a urinalysis to confirm that the antibiotic treatment cleared up his infection. A review of Plaintiff's medical records shows that Defendant Cowden did not refuse any requests for follow-up urinalyses as no such requests were made during sick call visits with Defendant Cowden on 9/12/16, 6/12/17, 8/14/17, and 2/22/18. See Discussion, supra, at Part II, Section A, subsection 1. During a January 24, 2018 sick call visit, Plaintiff requested a follow-up urinalysis to a UTI he had on December 5, 2017, and Defendant Cowden informed him that a follow-up urine culture was done on January 5, 2017 and revealed no UTI. Id. As such, no reasonable jury could find that Defendant Cowden was deliberately indifferent to Plaintiff's serious medical needs based on his treatment for UTIs.
As to Defendant Medlock, her argument that Plaintiff has not produced any evidence to show he had a problem with receiving catheters regularly and consistently is disingenuous. The pharmacy records show that Plaintiff did not receive his catheters and supplies on three Mondays in September of 2018, which is also documented in grievance nos. 758847, 759196, and 760823. See Discussion, supra, at Part II, Section A, subsections 1 and 4. Moreover, Plaintiff's Inmate Request Slip on May 28, 2018 shows that Defendant Medlock was aware of the recurring issue of Plaintiff receiving the wrong size catheters, and as the person responsible for ordering the supplies, she could have ensured that the correct size of catheters was ordered and maintained in stock. Yet her response to this recurring issue was to tell Plaintiff that size 12 catheters were in and would be delivered. This evidence raises a genuine issue of fact as to whether Defendant Medlock was deliberately indifferent to Plaintiff's serious medical needs.
As to Plaintiff's claim that Defendant Medlock hid his supplies, the Court finds that a genuine question of fact exists here as well. Plaintiff has proffered evidence that Defendant Brent told him on September 17, 2018 that “someone” hid his supplies thus preventing their delivery. See grievance no. 758847. Plaintiff claims that the “someone” is Medlock as she is the medical provider responsible for ordering and stocking the medical supplies for the inmates at SCI-Fayette. Although this evidence is thin, viewing it in the light most favorable to Plaintiff, a reasonable jury could find that Defendant Medlock's failure to make Plaintiff's prescribed supplies available at the scheduled delivery time shows that she was deliberately indifferent to his serious medical needs.
On the other hand, Plaintiff's allegations regarding the issue with him not receiving latex gloves from medical after the new institutional policy went into effect does not raise an Eighth Amendment violation as to Defendant Medlock. The evidence shows that she clearly was only providing information to Plaintiff on the new protocol. Thus, the Court finds that no reasonable jury could find that Defendant Medlock was deliberately indifferent to Plaintiff receiving latex gloves for self-cathing and, in any event, Plaintiff did not file a grievance over this issue.
In summary, the record evidence raises genuine issues of fact as to whether the Medical Defendants were deliberately indifferent to Plaintiff's serious medical needs. Accordingly, the Court recommends that summary judgment be denied as to Plaintiff's Eighth Amendment claim of deliberate indifference against the Medical Defendants.
5. ADA Claim Against DOC Defendants
There remains an ADA claim against the DOC Defendants in their official capacities. Plaintiff alleges that he requested multiple times to be placed in the infirmary, but his requests were denied. ECF No. 38 at 18, ¶ 24.A. Plaintiff claims that if he had been placed in the infirmary or in P.O.C., he would have been housed in the same area where his catheter supplies were located. Id. He maintains that these requests were requests for a reasonable accommodation which were denied by the DOC Defendants in violation of the Americans with Disabilities Act. Id.
Although not defined in the Amended Complaint, the Court knows from prior cases that P.O.C. stands for psychiatric observation cell.
Title II of the ADA provides, in relevant part, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity.” 42 U.S.C. § 12132. In order to establish a violation under Title II, a plaintiff must show (1) that he is a qualified individual with a disability; (2) who was denied the opportunity to participate in or benefit from the services, programs, or activities of a public entity, or was otherwise subject to discrimination by that entity; and (3) by reason of his disability. Furgess v. Pa. Dep't of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019)(citation omitted); Bowers v. Nat'l Coll. Athletic Ass'n, 475 F.3d 524, 553 n. 32 (3d Cir. 2007)(citation omitted).
The DOC Defendants have moved for summary judgment on Plaintiff's ADA claim arguing that Plaintiff has failed to establish the second and third elements of an ADA claim under Title II. For purposes of this motion, they do not dispute that Plaintiff is disabled, thus satisfying the first element. ECF No. 82 at 11. As to the second element, the DOC Defendants argue that Plaintiff has failed to establish that he was excluded from participation or denied benefits of the DOC's services, programs or activities. They submit that the record shows that Plaintiff was provided medical services and had access to such, citing Plaintiff's medical records (Ex. H) at ECF No. 84-1 at 87-92. As to the third element, the DOC Defendants argue that nothing in the record shows that the alleged denial of his request to be placed in the infirmary was because of his disability.
In opposition, Plaintiff responds that he was denied access to the infirmary and constantly denied his prescribed supplies, or constantly given the wrong supplies or less supplies from what was prescribed and ordered for him. ECF No. 101 at 8. Plaintiff contends that by not being allowed to be housed in the infirmary while others in similar conditions such as his constitutes a form of discrimination, and requests that the DOC Defendants' motion for summary judgment as to the ADA claim be denied.
The Court finds that although a question of fact exists with regard to the second element, there is no evidence in the record to show that Plaintiff has established the third element or at least raised an issue of fact as to that element. With regard to the second element, the pharmacy records show that the regular delivery of Plaintiff's catheter and other supplies was missed on September 3, 10, and 17, 2018 and on October 8, 2018. ECF No. 84-1 at 92; ECF No. 102-6 at 15, 17. Also, the sick call slip on September 12, 2018 indicates that the reason for his visit was to complain about receiving the wrong sized catheters and not receiving any gloves. ECF No. 92-2 at 22. On September 25, 2018, Plaintiff was seen at a sick call visit for possible UTI and medical supplies. Id. at 21; ECF No. 84-1 at 89. On October 15, 2018, Plaintiff was seen for a sick call visit to find out why he was no longer receiving gloves from medical. ECF No. 92-2 at 15. This evidence supports Plaintiff's claim or at least raises an issue of fact as to whether he was being denied access to his medical supplies. To the extent Plaintiff's ADA claim is predicated on the alleged denial of his request to be placed in the infirmary, this argument is precluded based on procedural default, the expiration of the statute of limitations, and his failure to produce any evidence of personal involvement by the DOC Defendants. See Discussion, supra, in Section C, subsection 3, regarding Plaintiff's Equal Protection Clause claim.
As to the third element of Plaintiff's ADA claim, the Court agrees that the record does not contain any evidence to show or raise a question of fact that Plaintiff was denied access to his medical supplies because of his disability. As Plaintiff has failed to produce affirmative evidence of all three elements of his ADA claim, no reasonable jury could find in favor of him on his ADA claim against the DOC Defendants and therefore, they are entitled to summary judgment as a matter of law.
Accordingly, the Court recommends that the DOC Defendants' motion for summary judgment on Plaintiff's ADA claim be granted and judgment entered in their favor as to this claim.
II. CONCLUSION
For the reasons set forth above, it is respectfully recommended that the Motion for Summary Judgment filed by the DOC Defendants (ECF No. 81) be granted as to all DOC Defendants on Plaintiff's Equal Protection clause and Americans with Disabilities Act claims and that judgment be entered in their favor on these claims. It is further recommended that the Motion for Summary Judgment filed by the DOC Defendants be granted as to DOC Defendants Capozza, Wood, Randolph, Brian, Jenkins, Burrie, and John Does 1 through 4 on Plaintiff's Eighth Amendment deliberate indifference claim and that judgment be entered in their favor on that claim. It is further recommended that the Motion for Summary Judgment filed by the DOC Defendants be denied as to DOC Defendants Brent, Rice-Grego, Bobeck, Carter, and Sanner on Plaintiff's Eighth Amendment deliberate indifference claim.
It is further recommended that the Motion for Summary Judgment filed by the Medical Defendants (ECF No. 91) be granted as to Plaintiff's Equal Protection Clause claim and that judgment be entered in their favor on that claim. It is further recommended that the Motion for Summary Judgment filed by the Medical Defendants be denied as to Plaintiff's Eighth Amendment deliberate indifference claim.
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, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.