Opinion
Civil Action No. 99-5691 (JBS).
October 3, 2000
SHAUN HARRELL, #278584, BAYSIDE STATE PRISON, Leesburg, New Jersey, Pro Se Plaintiff.
John J. Farmer, Jr., ATTORNEY GENERAL OF NEW JERSEY, By: Robert P. Shane, Deputy Attorney General, Trenton, New Jersey, Attorneys for Defendant Scott A. Faunce.
Christine M. English-Martin, Esquire, LALLY, HOLTZMAN, GILLIGAN QUASTI, Linwood, New Jersey, Attorneys for Defendant Correctional Medical Services, Inc.
OPINION
Shaun Harrell ("Harrell") is a state prisoner currently confined at Bayside State Prison ("BSP") in Leesburg, New Jersey. On December 3, 1999, Harrell filed a complaint in this Court alleging that Scott A. Faunce ("Faunce"), the State of New Jersey Department of Corrections, and Correctional Medical Services, Inc. ("CMS") were denying his right to adequate medical treatment in violation of the Eighth Amendment and his civil rights under 42 U.S.C. § 1983. In his complaint, Harrell demands proper medical care and unspecified damages. Presently before this Court is defendant CMS's motion for summary judgment, joined by defendant Faunce, pursuant to Fed.R.Civ.P. 56 on plaintiff's complaint. For the reasons discussed below, this Court will grant summary judgment with respect to both defendants and dismiss Plaintiff Harrell's suit with prejudice.
The State of New Jersey Department of Corrections was dismissed as a defendant pursuant to this Court's December 10, 1999 Order, because it is not a "person" as defined under 42 U.S.C. § 1983.
Defendant CMS was incorrectly named by plaintiff as "Medical Department" in the caption of his complaint.
I. BACKGROUND
In his complaint, plaintiff alleges that he began experiencing severe back and thigh pain in or about July, 1999, which made it difficult for him to sleep and walk around. Plaintiff also claims that defendants CMS and Faunce knew about and disregarded his medical conditions. Plaintiff admitted in his deposition, however, that he had received medical attention since he first arrived at BSP, stating, "I've been down in medical ever since I've been here. So I've seen every medical person that you could possibly see, and they all know me by my first name, because I've been in there so many times." (Shane Aff., Ex. 6, T 28-5 to T 28-9).
The medical records submitted by defendants confirm that plaintiff received continuous medical care while at BSP. (Def's Mot. for Summ. J., Ex. D). Between March 11, 1999 and February 29, 2000, plaintiff received medical treatment at least seventeen times. On March 11, 1999, plaintiff reported hemorrhoids and associated pain to L. Cook. (Id. at D-39). On March 25, 1999, plaintiff reported a sore throat and ear pain and requested an HIV test. (Id. at D-41). Plaintiff's HIV test was negative. (Id. at D-44). On April 14, 1999, plaintiff was prescribed an ointment for hemorrhoids. (Id. at D-43). On May 18, 1999, plaintiff requested treatment for hemorrhoids. On May 24, 1999, plaintiff advised Dr. Michael Jefferson that he had a toothache and that he wanted his wisdom teeth pulled. (Id. at D-46). On June 28, 1999, plaintiff reported continued tooth pain. (Id. at D-50).
On June 30, 1999, plaintiff received cream to treat his hemorrhoids. (Id. at D-51). On July 13, 1999, plaintiff advised C. Dion, R.N., that he had been experiencing hemorrhoid and burning leg pain for approximately two months. Plaintiff admitted that he had a surgical rod in his right leg and a pin in his knee. (Id. at D-52). On July 26, 1999, plaintiff advised M. Forester, R.N., that he wanted an x-ray to evaluate his buttock and leg pain. (Id. at D-53). On August 3, 1999, plaintiff was treated for hemorrhoids and cold symptoms. (Id. at D-55). On August 6, 1999, Dorcas Dada, R.N., observed a cut on plaintiff's left eyelid, which arose after he was injured in a basketball game. (Id. at D-57).
On August 18, 1999, plaintiff submitted a medical request to Charles Leone and asked that his back and thigh pain be addressed. Plaintiff also advised Leone that he had been terminated from his prison job and that he was waiting for reassignment. (Scardone Aff., Ex. S). On August 19, 1999, x-rays of the right hip, pelvis, and right femur revealed a femur rod with interlocking screws surrounded by extensive calcification related to post-surgical change. Delphia M. Clarke, M.D., recommended a comparison with previous x-rays to ensure that plaintiff's surgical rod had not migrated. A lumbar spine x-ray was normal. (Def's Mot. for Summ. J. at D-59 to D-63). On August 23, 1999, plaintiff advised C. Claudio, R.N. that his medical needs were being addressed. (Scardone Aff., Ex. S). On August 26, 1999, plaintiff was prescribed Naprosyn and an orthopedic consultation was recommended. On September 10, 1999, plaintiff received an orthopedic consult with Brian Palmer, D.O. for treatment of hip, leg and buttock pain. Dr. Palmer prescribed therapy and an MRI to rule out a herniated disc. (Def's Mot. for Summ. J. at D-64). Plaintiff requested treatment for back, leg and buttock pain on several other occasions in September. On September 19, 1999, plaintiff communicated with Faunce and advised him that his Eighth Amendment rights were being violated because prison officials were not providing him with adequate medical care. (Faunce Aff., ¶ 6, Ex A).
On October 6, 1999, plaintiff reported anal itching to a health care provider. On October 20, 1999, plaintiff received a lumbar spine MRI, which revealed disc degeneration with a small central/left paracentral herniated disc at L5-S1. Dr. Palmer prescribed therapy and Relafen. On November 1, 1999, plaintiff requested a back brace. (Def's Mot. for Summ. J. at D-79). On November 10, 1999, Dr. Palmer discussed the results of plaintiff's MRI with him and prescribed Tylenol and Annusol. (Id. at D-9). On November 12, 1999, plaintiff requested treatment for back pain and associated difficulty sleeping and standing, and requested the results of his MRI. On November 13, 1999, plaintiff failed to report for an appointment with Carol Muhlbaier, R.N. (Id. at D-82). On November 15, 1999, plaintiff reported back pain and anal itching to M. Forester, R.N. (Id. at D-83). On November 18, 1999, plaintiff failed to report to a scheduled appointment after requesting treatment for back pain. (Id. at D-84).
On November 23, 1999, plaintiff communicated with Faunce regarding his back pain. (Faunce Aff., Ex. A). In his letter, plaintiff advised Faunce that he did not feel he was getting adequate medical treatment for his back pain and requested assistance. (Id.). On December 10, 1999, C. Claudio, R.N., answered plaintiff's letter to Faunce and advised him that his complaints were being addressed by medical personnel. (Id.). On December 17, 1999, plaintiff was given a back brace. (Def's Mot. for Summ. J. at D-102). On December 21, 1999, plaintiff began physical therapy to treat his back pain. (Id. at D-86). On January 28, 2000, plaintiff was prescribed Celebrex for chronic lower back pain. (Id. at D-10). On February 29, 2000, plaintiff requested and was prescribed Tylenol and Celebrex for back pain. (Id. at D-12).
Despite plaintiff's extensive medical records indicating continuous treatment for hemorrhoids and back pain, plaintiff filed a complaint in this Court alleging that CMS and Faunce were denying his right to adequate medical treatment in violation of the Eighth Amendment and his civil rights under 42 U.S.C. § 1983. Plaintiff admits to receiving all of the treatments noted in his medical records, but claims that such treatment was ineffective. (Shane Aff., Ex. 6, T 46-14 to T 47-1). Despite these complaints, plaintiff admitted in his deposition on May 22, 2000, that he "can't possibly say that they didn't provide me with the proper treatment when [he] present [sic] them with [his] problem." (Id. at T 54-3 to T 54-5). Plaintiff stated that he filed suit because his back pain was not resolved by the continuous treatment he received and he did not know what else to do.
II. DISCUSSION
A. Summary Judgment Standard
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986);Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996);Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert.dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However,
the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial.Celotex, 477 U.S. at 322-23. In such situations, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-30 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").
The non-moving party, here the plaintiff, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50;Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
B. Eighth Amendment and 42 U.S.C. § 1983 Claims
Plaintiff has alleged that, by failing to cure his back and thigh pain, defendants acted under the color of state law to deprive him of his Eighth Amendment right to be free of cruel and unusual punishment, and thus violated 42 U.S.C. § 1983. To properly state a claim under 42 U.S.C. § 1983 for depravation of medical treatment in violation of the Eighth Amendment, a plaintiff must show that the defendant acted with "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Taylor v. Plousis, 101 F. Supp.2d 255, 262 (D.N.J. 2000).
The Third Circuit has defined a serious medical need as one that "has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988). A medical need could also be deemed serious when a delay in treatment would result in the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 103.
To establish deliberate indifference, plaintiff must demonstrate that the official knew of and disregarded plaintiff's serious medical needs.Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (requiring a level of culpability between the extremes of mere negligence and actual malice); Rode v. Dellarciprete, 845 F.2d 1195 (3rd Cir. 1988) (holding that defendant must have some type of personal involvement in the incidents alleged to have violated plaintiff's rights). Essentially, "plaintiff must establish that each defendant knew of and disregarded an excessive risk to inmate safety." Taylor, 101 F. Supp.2d at 263 (citing Farmer, 511 U.S. at 537, 114 S.Ct. at 1970).
Here, plaintiff claims that he is being denied treatment for serious back pain. Because plaintiff has consistently complained of back and leg pain for over a year, and because he has a medical rod implanted in his femur, plaintiff's pain could be classified as a serious medical condition. Plaintiff also claims that defendants CMS and Faunce were deliberately indifferent to his medical need. Even if this Court were to accept plaintiff's first claim that his condition was sufficiently "serious" as defined in this Circuit, plaintiff's claim for relief under 42 U.S.C. § 1983 would still fail because he has not offered any proof that any defendant was deliberately indifferent to his condition.
Plaintiff himself admits that he received regular and continuous care since he arrived at BSP for his back and leg pain. Plaintiff maintains, however, that because he still experiences back pain, the care administered by CMS was not adequate and therefore deprived him of his rights. This position is incorrect. A mere difference of opinion between patient and doctor as to the course of treatment used to treat an ailment does not establish a violation under 42 U.S.C. § 1983. See Lanzaro, 834 F.2d at 346; Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977);Massey v. Hutto, 545 F.2d 45, 46 (8th Cir. 1976). Plaintiff's subjective desire for additional or different treatment also fails to establish a violation of his Eighth Amendment rights. See Stackhouse v. Marks, 556 F. Supp. 270, 272 (M.D.Pa. 1982), aff'd, 707 F.2d 1404 (3rd Cir. 1983).
Plaintiff Harrell's condition was evaluated by doctors and nurses over a period of one year. Based on the findings of x-rays and an MRI, those medical professionals treated his condition with anti-inflammatory medication, hemorrhoid cream and physical therapy. Although he claims that this treatment was not effective, plaintiff admitted in his deposition that he could not say that the treatment he received in response to his complaints was not proper. (Shane Aff., Ex7, T 54-3 to T 54-5).
Viewing the evidence presented in a light most favorable to the non-moving plaintiff, this Court finds that no reasonable jury could find that Defendants CMS and/or Faunce were deliberately indifferent to plaintiff's serious medical needs. The moving parties have met their burden of showing that no genuine issue of material fact exists to be decided, and therefore this Court must grant defendants' summary judgment motion as a matter of law.
III. CONCLUSION
For the reasons stated above, the Defendants' motions for summary judgment pursuant to Fed.R.Civ.P. 56 are granted and Plaintiff Harrell's suit is dismissed with prejudice.
ORDER
This matter having come before the Court upon the motion of Defendant CMS, and joined by Scott A. Faunce, for summary judgment pursuant to Fed.R.Civ.P. 56 to dismiss plaintiff Harrell's Eighth Amendment and 42 U.S.C. § 1983 claims; and this Court having considered the parties' submissions; and for the reasons expressed in an opinion of today's date;
IT IS this day of October 2000 hereby
ORDERED that defendant CMS's motion for summary judgment, which appears on the docket as 16-1, and defendant Faunce's motion for summary judgment, which appears on the docket as 19-1, be and hereby are,GRANTED, and Plaintiff's claim be, and hereby is dismissed with prejudice.