Opinion
1:20-cv-320
01-25-2023
JAMES EARL GEORGE, Plaintiff v. MS. JERI SMOCK, CHCA, et al, Defendants
SUSAN PARADISE BAXTER United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
ECF NO. 69
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD A. LANZILLO Chief United States Magistrate Judge
I. Recommendation
It is respectfully recommended that the motion for summary judgment filed by Defendants Daniel Stroup and Wellpath, LLC [ECF No. 69] be granted.
II. Report
A. Procedural Background
Plaintiff James Earl George, an inmate incarcerated at the State Correctional Institution at Albion (SCI-Albion), initiated this civil rights action pursuant to 42 U.S.C. § 1983 on November 10, 2020. ECF No. 1. George later filed his Amended Complaint - the currently operative pleading - on March 17, 2021. ECF No. 33. Of the four Defendants identified in that pleading, two remain: Wellpath, LLC, the entity contracted to provide medical services to inmates at SCI-Albion, and Physicians Assistant (PA) Daniel Stroup. Id.
The Court dismissed two other Defendants - SCI-Albion Superintendent Michael Clark and Corrections Health Care Administrator Jeri Smock - by ordered dated December 21, 2021. ECF No. 49.
In his pleading, George generally averred that Stroup displayed deliberate indifference to his serious medical needs in violation of the Eighth Amendment by failing to provide adequate diagnostic testing and treatment for George's chronic lower back condition. ECF No. 33. According to George, Stroup examined him on several occasions between August 8, 2019, and October 23, 2020, but refused to take appropriate action to diagnosis the source of his chronic pain, such as by referring him to an outside physician or ordering an MRI or CT scan. Id. at 2-4. George also generally alleged that Stroup had been “falsifying his medical records” and “practicing medicine ... as a medical doctor ... for close to two (2) years without the proper training or M.D. certificate.” Id. at 3-4.
Following the close of discovery, Defendants filed a Motion for Summary Judgment, supporting brief, Concise Statement of Material Facts, and appendix of exhibits. ECF Nos. 6971. Plaintiff responded by filing a brief in opposition and several supporting exhibits. ECF No. 73. For the reasons explained below, Defendants' motion should be granted.
The Court has jurisdiction over Plaintiffs claims pursuant to 28 U.S.C. § 1331. This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
B. Factual Background
The following factual recitation is derived primarily from George's medical records, see ECF Nos. 69-2 and 73-1 through 73-3, and Defendants' concise statements of fact, to the extent they are supported by the record. See ECF No. 70. According to George, he visited Stroup on August 8, 2019, for treatment of right groin pain and left lumbar pain. ECF No. 70 ¶ 3. George reported a history of groin injury stemming from prior power lifting activity. Id. On examination, George had a full range of motion to the right hip on flexion, extension, and abduction. Id. Stroup assessed him with right hip pain and ordered an x-ray of George's right hip and pelvis. Id. George underwent an x-ray the following day. Id. ¶ 4. That test revealed no radiographic evidence of an acute fracture. Id.
In evaluating which facts are undisputed, the Court notes that Plaintiff failed to properly respond to Defendant's Concise Statement of Material Facts, as required by Local Rule 56.C. 1. This rule requires non-moving parties to a motion for summary judgment to file a responsive concise statement in which they must: respond to each numbered paragraph in the movant's concise statement; admit or deny the facts contained in the movant's concise statement; set forth the basis for denial if any fact within the movant's concise statement is not entirely admitted by the nonmoving party, with appropriate citation to the record; and set forth, in separately numbered paragraphs, any other material facts at issue. See LCvR 56.C. 1. To the extent that Plaintiff has failed to respond to any concise statement of material fact, that concise statement of material fact must be “deemed admitted.” LCvR 56.E. Nevertheless, the Court is mindful of Plaintiffs pro se status and will consider any facts properly alleged in Plaintiffs pro se responses that specifically contradict Defendant's statement of facts, to the extent that they are supported by the record. Boyd v. Citizens Bank of Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that “[t]o the extent Plaintiffs statement of‘fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted”).
On August 15, 2019, George visited Stroup to discuss his ongoing pain and to review the results of his x-ray. Id. ¶ 5. Stroup noted that George's x-ray showed mild joint space narrowing without cysts or spurring. Id. Upon examination, Stroup noted increased pain with straight leg raise in area of right hip and assessed George with arthralgia. Id.
On September 8, 2019, a nurse at SCI-Albion examined George for complaints of low back pain and groin pain. Id. ¶ 6. George reported that his symptoms had begun on August 15, 2019. Id. The nurse planned to refer him to another provider to rule out kidney stones. Id.
A nurse practitioner, Erin Hayton, saw George on September 10, 2019, for his complaint of “off and on” pain in the right lower quadrant of his abdomen. Id. ¶ 7. George explained that his pain began in 2009 and that previous interventions had been ineffective. Id. He also reported pain in his back. Id. During the exam, Hayton palpated George's right groin and noted an enlarged lymph node. Id. She also examined George's lower back and noted paraspinal tenderness of the lumbosacral region without deformity or knotting. Id. Hayton placed a consult for an ultrasound and reviewed stretching exercises with George. Id.
George underwent an ultrasound of his bilateral inguinal lymph nodes on October 9, 2019. Id. ¶ 9. The impression included bilateral inguinal adenopathy with uncertain etiology which may be reactive or neoplastic. Id. Clinical correlation was recommended and either further evaluation with biopsy or a follow-up ultrasound in six to eight weeks after appropriate treatment of any acute process. Id.
On November 8, 2019, George met with Stroup to review his recent ultrasound results. Id. ¶ 10. George expressed dissatisfaction that he had been scheduled with Stroup but reluctantly agreed to hear the ultrasound report. Id. Stroup noted enlarged lymph nodes and planned to have George follow up with another physician, Dr. Amanda Hartwell, to review the next treatment steps. Id.
On November 12, 2019, Dr. Hartwell received a message from providers at UPMC Hamot Interventional Radiology indicating that Dr. Aaron Rucks had reviewed George's ultrasound images and agreed with the sonogram report to follow up with another study in eight weeks. Id. ¶ 11. Dr. Rucks noted that the lymph nodes were normal in size and opined that there was no need for a biopsy at that time. Id.
Dr. Hartwell met with George two days later to discuss the ultrasound and enlarged lymph nodes. Id. ¶ 12. During the exam, Dr. Hartwell noted that George was agitated, aggressive, and insistent that something was wrong with him. Id. He stated that he was experiencing frequent and bad-smelling urination and that his lower back and pelvis hurt. Id. George refused to let Dr. Hartwell examine the inguinal area/lymph nodes during the exam. Id. Dr. Hartwell assessed George with lymphadenopathy and pelvic pain and ordered a repeat ultrasound, lab work, and urine cultures. Id.
On November 15, 2009, George underwent an x-ray at the request of Dr. Hartwell. ECF No. 73-3 at 4. That study found no radiographic evidence of acute cardiopulmonary disease but noted “multilevel disc space narrowing with endplate spurring and/or bridging osteophyte formation within the visualized spine.” Id. George contends that Stroup never discussed the spinal osteoarthritis with him, instead noting only that he didn't have any heart problems. ECF No. 73 ¶ 8.
On December 13, 2019, Stroup met with George as a follow up to his recent lab work, ultrasound, and a chest X-ray. ECF No. 70 ¶ 13. Stroup noted that the chest x-ray was benign with osteoarthritis of the spine. Id. He also noted that the results of the lab work had not been posted yet, but that the ultrasound revealed bilateral lymph nodes at upper normal. Id. Stroup planned to monitor the lymph nodes for the next two months. Id
On January 3, 2020, George underwent an x-ray study of his left hip, lumbar spine, and abdomen. Id. ¶ 15. The study of the left hip revealed no radiographic evidence of an acute fracture. Id. The study of the lumbar spine revealed no radiographic evidence of an acute fracture or subluxation. Id. Finally, the study of the abdomen revealed nonspecific bowel-gas pattern. Id.
George underwent another ultrasound of his bilateral inguinal regions on January 8, 2020. Id. ¶ 16. The results of that test indicated that the number of bilateral lymph nodes had decreased since the prior ultrasound and that all lymph nodes were now normal in morphology. Id.
On January 10, 2020, Stroup met with George to review his recent lab work and X-ray results. Id. ¶ 17. Stroup noted that the lab work and X-rays were non-contributory to the etiology of bilateral inguinal lymph node enlargement and that George's ultrasound results had not come back yet. Id. Stroup planned to follow up again once the results of the ultrasound were received. Id.
On January 20, 2020, George visited with Hayton as a follow-up to his latest ultrasound. Id. ¶ 18. George reported that he felt something was “wrong” with his back and requested an ultrasound of his kidneys. Id. He also explained that stretching by reaching towards his toes did not provide relief for his back pain and that his stomach hurt in the epigastric region. Id. George reported having daily bowel movements and increased flatulence and stated that his stomach only felt better when sleeping. Id. After reviewing George's recent ultrasound and test results, Hayton noted that his lymph nodes were improving bilaterally with normal morphology and that his lab work, including the urinalysis, was all within normal limits. Id. Upon examination, Hayton noted that George's back pain was reproduceable with palpation to the left lower back but that no deformity or mass was noted. Id. George's abdomen was also within normal limits upon visible inspection. Id. Hayton assessed him with lower back pain, abdominal pain, and inguinal adenopathy (improving). Id. She then attempted to discuss exercises for lower back stretching, but halted the conversation when George became interruptive and argumentative. Id. She also discussed possible etiologies of his stomach pains, noting that it could self-resolve, and reassured him that his lymphadenopathy was improving and would likely resolve over time. Id. George agreed to be tested for an STD to rule out infectious causes for his adenopathy. Id. George lodged several requests for an MRI to “found out what is wrong with [him],” but Hayton noted there was no medical indication for that procedure. Id.
On January 21, 2020, George visited another physician, Dr. Lisa Baird, to discuss his concern that his previous diagnosis of bilateral inguinal adenopathy had resolved without treatment. Id. ¶ 19. He reported pain in his left lower back and midline epigastric/thoracic regions, noting that the pain in his back “moved” like it was alive and moving on its own. Id. He described the pain as being dull and non-radiating and indicated that it had started several years ago but become chronic the previous September. Id. He also reported sharp groin pain. Id. Following a physical exam, Dr. Baird's assessment included essential hypertension, gastroesophageal reflux disease (GERD) vs. peptic ulcer disease (PUD), and pelvic rotation. Id. She instructed George to discontinue caffeine and to look for a pattern in what he eats to see if anything makes it better or worse. Id. Dr. Baird prescribed Hydrochlorothiazide (HCTZ) and seven days of Omeprazole 40 mg. Id. She also assured George that his lymph nodes were normally sized on both the ultrasound and by palpation and explained that one of the reasons that lymph nodes enlarge is to fight off an infection, after which they return to normal size. Id. Finally, she planned to obtain a stool hemoccult and directed George to engage in home exercises. Id.
Stroup met with George on February 28, 2020, as a follow-up to abnormal lab work. Id. ¶ 20. George denied urinary retention issues at that time. Id. Stroup's assessed him with hyperlipidemia, prescribed Atorvastatin 20mg, and planned to order additional lab work in two months to monitor George's lipids. Id.
On March 19, 2020, George again reported to Stroup with symptoms of continued left groin pain. Id. ¶ 22. George complained that the prison's medical staff was not doing anything to figure out what had caused his inguinal lymph node to swell in the first place and repeatedly demanded an immediate MRI. Id. Stroup noted that George's inguinal lymph node had been assessed by ultrasound twice in the past six months and by interventional radiology who had declined to biopsy after a 2019 ultrasound. Id. Stroup reviewed the results of George's recent lab work, x-rays, ultrasounds, and interventional radiology and entered an order for Voltaren 50 mg, twice daily, for the pain. Id.
On August 21, 2020, Stroup examined George again for his complaint of continued pain in his left lower back. Id. ¶ 28. George reported that his pain increased when rolling in bed, doing pushups, and bending over, but improved with rest. Id. George further indicated that Motrin, Aspirin, and hot showers were ineffective in relieving his pain. Id. Following an exam, Stroup ruled out abscess or soft tissue mass of the lower lumbar region and indicated that George would be referred to Dr. Baird for further examination of his left lower back. Id.
On October 5, 2020, Stroup followed up with George regarding his abnormal urinalysis and his complaint of continued pain in his left flank. Id. ¶ 32. George denied gross hematuria or typical urinary burning. Id. Stroup noted that George's recent x-ray revealed no abnormality and that the January 20 ultrasound had revealed regional lymph nodes within normal limits. Id. Stroup planned to obtain an additional x-ray study to rule out kidney/bladder stones. Id.
George's abdomen x-ray took place on October 5, 2020. Id. ¶ 33. Examination of the x-ray revealed intact bony structures and no evidence of a foreign body. Id. Impression included nonspecific bowel-gas pattern. Id.
Daniel Giroux, a physician's assistant, examined George on October 20, 2020, for his urinary complaints. Id. ¶ 34. George reported that he had been experiencing pain in his left flank and left groin for over a year but that “it was much worse” that morning. Id. Giroux noted that George's recent abdominal x-ray revealed no kidney stones. Id. On examination, George complained of tenderness to the left flank when palpated. Id. Giroux rendered a preliminary diagnosis of urinary tract infection and notified Stroup of George's symptoms and dipstick results. Id. George was issued Bactrim and Motrin for the urinary tract infection. Id.
On October 23, 2020, Stroup again met with George to assess the treatment of his urinary tract infection and his complaints of leg pain. Id. ¶ 35. George reported that his urinary tract infection symptoms had improved but noted radicular pain through his back and legs. Id. Stroup planned to continue George's antibiotics as ordered and to follow up after treatment. Id.
Stroup met with George on November 10, 2020, as a follow up to his continued complaints of neuropathic symptoms in his left leg. Id. ¶ 36. George acknowledged that the antibiotic treatment had been effective in reducing the pain from his urinary tract infection. Id. Stroup reviewed the results of George's recent groin ultrasounds and noted that the number of bilateral lymph nodes had decreased and that all lymph nodes now had a normal morphology. Id. Stroup discussed the impact of reactive lymphadenopathy during infection/inflammation and potential for neuropathic symptoms stemming from compression of nerves. Id. George remained adamant that he needed a definitive answer and fix for his symptoms. Id. He also indicated that he had been seen multiple times by midlevel providers without definitive resolution. Id. Stroup planned to refer him to the site medical director for evaluation of his left leg neuropathy and lymphadenopathy. Id.
George initiated the instant action that same day. See ECF No. 1. George maintains that Stroup and Wellpath failed to provide any treatment for his lower back pain, erroneously focusing on his groin, hips, and lymph nodes. ECF No. 73 ¶ 10. Supplemental medical records supplied by George indicate that he underwent an MRI of the lumbar spine on February 9, 2022, which noted the following indications of degenerative spinal disease:
For the purposes of this report, L5/S1 is considered the last fully segmented lumbar segment. There is straightening of the lumbar lordosis without significant listhesis. Vertebral body heights are maintained. There is evidence of multilevel osteophytosis, ligamentum flavum hypertrophy and facet arthropathy present, most prominent in the lower lumbar spine. Multilevel loss of intervertebral disc height also
present compatible with degenerative disc disease. Degenerative bone marrow signal changes are noted.
ECF No. 73-1 at 1.
C. Standards of Review
Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F .2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must to go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
D. Analysis
As noted above, George's sole claim in this action alleges that Defendants Stroup and Wellpath failed to diagnose and treat the source of his lower back pain. There is no question that the Eighth Amendment's prohibition against cruel and unusual punishment applies to allegations of deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97 (1976) (stating that “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment”) (internal quotation omitted). To establish a violation of his constitutional right to adequate medical care, a plaintiff is required to allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
In the instant case, George's claim focuses on Stroup's alleged failure to offer any meaningful treatment for his back pain between August 8, 2019, and October 23, 2020. According to George, he presented to Stroup with complaints of hip, groin, and back pain, but Stroup “decided to focus only on Plaintiffs hip diagnosis,” disregarding an X-ray study of his chest and spine that indicated “multilevel disc space narrowing with endplate spurring and/or bridging osteophyte formation within the visualized spine.” While George does not appear to dispute that he was provided with routine access to medical care at SCI-Albion, he accuses Stroup of intentionally ignoring his complaints of lower back pain to avoid providing treatment.
Allegations of deliberate indifference must satisfy “a high threshold.” Anderson v. Bickell, 2018 WL 5778241, at *2 (3d Cir. Nov. 2, 2018). It is well-settled that “an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.” Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as constitutional claims because “the exercise by a doctor of his professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.”)). “Therefore, where a dispute in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as a constitutional claim under § 1983.” Tillery, 2018 WL 3521212, at *5 (citing Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009) (characterizing a dispute over medication as the type of “disagreement over the exact contours of [plaintiffs] medical treatment” that does not violate the constitution)).
By the same token, “the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice standing alone is not a constitutional violation.” Tillery, 2018 WL 3521212, at *5 (quoting Estelle, 429 U.S. at 106). “Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d at 67 (citations omitted). Thus, “courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.” Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018) (quoting Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)). See also Wisniewski v. Frommer, - Fed.Appx. -, 2018 WL 4776165, at *3 (3d Cir. Oct. 3, 2018) (noting that “there is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'”) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017)).
Applying these principles to the instant case, the Court finds ample evidence in the record to establish that Stroup and the medical staff at SCI-Albion provided George with “some level of medical care.” Hensley, 2018 WL 4233021, at *3. Stroup and other health care providers examined George on at least seventeen occasions during the pertinent timeframe in response to his complaints of back and stomach pain. To diagnose the source of his symptoms, George underwent lab work, multiple X-rays, and at least two ultrasounds. Those tests were successful in eliminating kidney stones, bladder stones, and urinary tract infections as potential causes for George's pain. To the extent that George complains that he should have received an MRI, it is well-settled that an inmate's objection to the type of medications and procedures ordered by prison physicians is precisely the type of “disagreement between an inmate and doctors over alternate treatment plans” that falls well short of a constitutional violation. Tillery, 2018 WL 3521212, at *5. Indeed, these types of claims frequently arise - and are routinely rejected - in the prison setting. See, e.g., Foye v. Wexford Health Sources, Inc., 675 Fed.Appx. 210, 215 (3d Cir. 2017) (medical defendants were not deliberately indifferent for failing to order an MRI consult at the inmate's request); Rhines v. Bledsoe, 388 Fed.Appx. 225, at 227 (3d Cir. 2010) (decision not to order diagnostic MRI was not deliberate indifference).
In response to the foregoing, George attempts to fine-slice his medical history, arguing, in essence, that the medical care outlined above focused entirely on his hip and groin to the exclusion of his back. This reasoning is insufficient to salvage his claim. It is apparent from his medical records that Stroup and the SCI-Albion medical staff believed that George's back pain was related to the known pathology in his hip and groin. Stroup explained to George that the impact of his swollen lymph nodes during infection or inflammation includes the potential for neuropathic symptoms - such as radiating pain in the lower back and legs - stemming from the compression of surrounding nerves. As such, it appears that Stroup made a medical decision to focus his treatment on George's hip and groin. Even if ultimately incorrect, that exercise of medical judgment does not represent deliberate indifference. Tillery, 2018 WL 3521212, at *5 (“[T]he mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice standing alone is not a constitutional violation.”) (quoting Estelle, 429 U.S. at 106).
Finally, George alleges that Stroup practiced medicine on him “without the proper training or M.D. certificate.” ECF No. 33 at 4. This argument can be quickly rejected. As a factual matter, a licensure search by the Pennsylvania Bureau of Professional and Occupational Affairs indicates that Stroup has been fully licensed as a Medical Physician Assistant in the Commonwealth of Pennsylvania since September 2005. See ECF No. 69-3. And, as a legal matter, courts in this district have consistently recognized that a CRNP or physician's assistant is a qualified medical professional who is entitled to deference for the exercise of medical judgment. See, e.g., McGinnis v. Hammer, 751 Fed.Appx. 287, 292 (3d Cir. 2018) (rejecting deliberate indifference claim against physician's assistant because the defendant exercised his professional medical judgment); Bryant v. Kaskie, 744 Fed.Appx. 39, 42 (3d Cir. 2018) (applying deliberate indifference analysis to nurse practitioner). See also Simonds v. Delaware County, 2015 WL 289974, at *6 (E.D. Pa. Jan. 21, 2015) (noting that, in Spruill, “the Court of Appeals expressly considered a physician's assistant to be a medical expert for the purposes of deliberate indifference liability under § 1983) (citing Spruill, 372 F.3d at 237).
In short, the undisputed evidence of record belies the viability of George's Eighth Amendment claim. Summary judgment is warranted.
As an independent basis for summary judgment, the Court also notes that George has failed to identify any evidence to support his claim against Wellpath. It is axiomatic that § 1983 liability cannot proceed “under a theory of respondent superior or vicarious liability.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003). Rather, “the touchstone of the § 1983 action against a government body,” or a non-govemment entity performing a state function, such as Wellpath, “is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution.” Monell v. Department of Social Services, 436 U.S. 658, 690 (1978)). George has not adduced any evidence to support the existence of a relevant custom or policy.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion for summary judgment be granted. Judgment should be entered in favor of Defendants Daniel Stroup and Wellpath, LLC as to all claims.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).