Opinion
1:18-cv-0228 (Erie)
11-04-2020
David V. Jordan, Plaintiff v. Lieutenant Murin, Sergeant Cochran, Corrections Officer Baumcratz, Corrections Officer Lutz, Corrections Officer Palmer, Jordan Dray er, Craig Griffin, Jana Jordan, Tammy Laroache, Chaplain Kosarek, Heather G. McKeel, Tessa Adelekan, Dr. Alpert, Dr. Eslenberg, Sued In Their Individual Capacities, Defendants
SUSAN PARDISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS EISENBERG, ALPERT, and MCKEEL'S MOTION FOR SUMMARY JUDGMENT
ECF NO. 111
RICHARD A. LANZILLOC, United States Magistrate Judge
I. Recommendation
Before the Court is a motion for summary judgment filed by Defendants Dr. Eisenberg, Dr. Alpert, and Heather McKeel. See ECF No. 111. This motion has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation. For the reasons discussed below, it is respectfully recommended that the motion be GRANTED.
II. Background and Procedural Posture
Plaintiff David V. Jordan (Jordan) is an inmate in the custody of the Pennsylvania Department of Corrections at its State Correctional Institution at Phoenix (SCI-Phoenix). He alleges that while he was incarcerated at the State Correctional Institution at Forest (SCI-Forest), several corrections officers assaulted him on May 1, 2016, in retaliation for his having filed a lawsuit against a fellow corrections officer. Jordan claims that the guards punched him, slammed his head against a wall, tried to dislocate his shoulder, and twisted his fingers before throwing him to the ground. See ECF No. 133, p. 3.
In addition to nine current or former employees of the DOC, Jordan has also sued four individuals who provided medical services at SCI-Forest, including moving Defendants Eisenberg, Alpert and McKeel (Medical Defendants). His verified Complaint alleges that the Medical Defendants failed to provide appropriate medical treatment for his injuries following the altercation with the guards. Jordan's claims against the Medical Defendants appear at Counts 2, 4, 5 and 6 of the Complaint as follows: Count 2 asserts a First Amendment retaliation against McKeel; Counts 4, 5 and 6 assert Eighth Amendment deliberate indifference to serious medical needs claims against all three moving Medical Defendants; and Count 7 asserts an additional Eighth Amendment deliberate indifference claim against Alpert and McKeel. Jordan asserts all claims in this action pursuant to 42 U.S.C. § 1983. This Court has federal question jurisdiction under 28 U.S.C. § 1331.
Counts 1 and 3 are against defendants other than the three moving Medical Defendants.
The Medical Defendants have moved for summary judgment on all claims against them. In support of their motion, the Mbdical Defendants filed a Concise Statement of Material Facts and Brief. ECF Nos. 112, 113. In response, Jordan first asked the Court to “disregard” the Medical Defendants' motion. ECF No. 125. That request was denied, but Jordan was given more time to file a proper response. ECF No. 127. Jordan then filed his own Concise Statement of Material Facts but did not direcdy reply to the Medical Defendants' statement. ECF No. 130. He also filed a Counter Statement of Facts (ECF No. 130), an Appendix (ECF No. 131), a Response to the Defendants' motion (ECF No. 132), and a Brief in Support of the Response (ECF No. 133).
In addition, the factual allegations set forth in Jordan's verified Complaint, to the extent they are based upon his personal knowledge, will also be considered as evidence on summary judgment. Jackson v. Armel, 2020 WL 2104748, at *5 (W.D. Pa. May 1, 2020) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary judgment motion)). See also Brooks v. Ryler, 204 F.3d 102, 108 n.7 (3d Cir. 2000)(noting that an affidavit is “about the best that can be expected from [a pro se prisoner] at the summary judgment phase of the proceedings”); Boomer v. Lewis, 2009 WL 2900778, at *2 n.4 (M.D. Pa. Sept. 9, 2009) (“A verified complaint may be treated as an affidavit in support of or in opposition to a motion for summary judgment if the allegations are specific and based on personal knowledge.”). The Medical Defendants filed a Reply Brief (ECF No. 141) as well as a Response to Jordan's Concise Statement and Counter Statement of Facts (ECF No. 142). The Medical Defendants' motion is ripe for disposition.
III. Standard of Review
Federal Rule of Civil Procedure 56(a) requires a court to render 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). “|T]his standard provides that 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Id. at 248, 106 S.Ct. 2505; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). A dispute 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, 106 S.Ct. 2505; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
In determining whether a genuine issue of material fact remains for trial, a court must consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Moore v. Cartier, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Baril Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).
To defeat a properly supported motion for summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings but must identify evidence that demonstrates a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing the motion “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. V. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party may also rely on the lack of evidence to support an essential element of the opposing party's claim as a basis for the entry of summary judgment because “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, 106 S.Ct. 2548. See also Harter v. GAP. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
Jordan is proceeding pro se. Pro se pleadings are to be “liberally construed' and a pro se complaint, however in artfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89. 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 206 (1976)). Additionally, when considering a motion in a pro se plaintiff s case, a court must “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Holley v. Deft of Veteran's Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999). On a motion for summary judgment, however, “a pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point to competent evidence in the record that is capable of refuting a defendant s motion for summary judgment.” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (citation omitted). Put another way, just because a non-moving party is proceeding pro se, they are not relieved of their “obligation under Rule 56(c) to produce evidence that raises a genuine issue of material fact.” Id. (quoting Roykins v. Eucent Techs., Inc., 78 F. Supp, 2d 402, 408 (E.D. Pa. 2000)); see also Winfield v. Mazurkiewicz 2012 WL 4343176, *1 (W.D. Pa. Sept. 21, 2012).
To this end, our Local Rules require that “[a]lleged material facts set forth in the moving party's Concise Statement of Material Facts ... will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.” LCvR 56(E). The Court also may consider evidentiary materials in the record beyond the parties' concise statements and responses to it. See Scalia v. WTN Corp., 417 F.Supp.3d 658, 661 (W.D. Pa. 2019) (“rely[ing] on the record as a whole to determine the applicable material facts”). See also King v. Pennsylvania Dep't of Corr., 2020 WL 2897019, at *1 (W.D. Pa. June 1, 2020).
IV. Factual Background
Although he is now housed at SCI-Phoenix, the events underlying Jordan's claims occurred while he was incarcerated at SCI-Forest. On May 1, 2016, while confined in the restricted housing unit (RHU), corrections officers conducted a security search of Jordan's cell. ECF No. 99-21, pp. 15. A struggle between the corrections officers and Jordan ensued. Id. Defendant Lt. Murin witnessed the altercation and filed an incident report, which is part of the record. Id. The corrections officers directly involved (Defendants Baumcratz, Cochran, Drayer, and Griffin) also filed reports. Id., pp. 2-5. These reports relate that Jordan spit on and bit Baumcratz. The bite was severe enough that it broke Baumcratz' skin and the correctional officer was sent to a local hospital for treatment. A “spit hood” was placed over Jordan's head and his hands were handcuffed. He was placed on the floor outside his cell. Id., pp. 2-5.
Jordan disputes the DOC Defendants' version of events. He maintains that the cell inspection was a ruse, conducted in retaliation for his filing of another lawsuit against Defendant Drayer, a fellow corrections officer. ECF No. 133, p. 2. He claims that after being handcuffed, Baumcratz and Griffin “kicked around his legal papers” and told him to “stop filing shit.” Id. p. 3. According to Jordan, when Drayer arrived, the three guards attacked Jordan, “attempting to pull Plaintiff's shoulder out of its socket, punching him several times in the back of the head, slamming his head against the wall, choking him, twisting his fingers, and then slamming him on the ground.” Id. Defendants Cochran, Murin, and Lutz were present, but failed to intervene on Jordan's behalf. Id.
The conflicting versions of events during the search of Jordan's cell are not currently before the Court. The DOC Defendants have not moved for summary judgment and the claims against them will proceed accordingly. Thus, the Court is presently concerned solely with what happened after the altercation relating to the medical care-or lack thereof-that Jordan received.
Despite the additional time granted to the DOC Defendants Baumcratz, Cochran, Drayer, Griffin, Jana Jordan, Kosarek, LaRoache, Lutz, Murin, and Palmer for filing a motion (ECF No. 116), they did not move for summary judgment. Another defendant, Tessa Adelekan, has separately moved to dismiss or, in the alternative, for summary, judgment. See ECF No. 120. That motion is the subject of a separate Report and Recommendation.
After the altercation with the corrections officers, Jordan sought medical attention for injuries he claimed to have sustained. The Medical Defendants have provided more than 350 pages of Jordan's medical records which detail the medical treatment Jordan received, both before and after the altercation. See, generally, ECF No. 112-1, ECF No. 112-2. Jordan's history of medical treatment through May 20, 2016 is summarized in the following chart.
Date of Treatment
Attending Summary Personnel
Medical Treatment
August 5, 2015
Dr. Pavlock
Jordan reports leg pain and lower back pain; stated that 1 Naprosyn helped with pain; mild left knee and low back pain noted by physician (ECF No. 112-1, p. 158).
August 18, 2015
n/a
Jordan seen after an altercation with another inmate; 1 swelling in his left hand was observed as well as a small abrasion; a scratch was noted on Jordan's thumb; fracture of left hand suspected so x-ray was ordered (ECF No. 112-1, P. 159)
August 21, 2015
n/a
Jordan's left hand was x-rayed; surgery of left hand done at Kane Community Hospital (left fourth metacarpal diaphysis fracture osteosynthesis with two K-wires) (ECF No. 112-1, pp. 63, 170-80)
November 30, 2015
CRNP Zupsic
Jordan seen at his cell door for request for eyeglasses, and complaints of left knee pain; some swelling noted of left calf/shin; arthritis noted; x-ray ordered of left knee; support hosiery ordered; Jordan refused Ibuprofen (ECF No. 112-1, d. 142)
December 2, 2015
CRNP McKeel
Jordan's sick call had to be rescheduled for security reasons 1 (Jordan holding wicket to his cell door closed) (ECF No. 112-1, p. 143)
December 7, 2015
CRNP McKeel
Jordan seen for leg/knee pain; swelling on lower left 1 leg/ankle noted; Jordan not wearing support hosiery; refused to squat for evaluation; x-ray results had not come in; Tylenol was ordered
December 9, 2015
CRNP McKeel
Jordan seen for complaints of knee pain; Tylenol discussed; 1 Ace wrap bandage was permitted by prison security for knee/leg support; instructed to exercise knees and apply warm compresses; BMI elevated and was encouraged to lose weight
December 10, 2015
CRNP McKeel
McKeel tried to see Jordan about re-order of x-ray because 1 Jordan had refused to allow the procedure. Jordan called McKeel a "bitch" and accused her of falsifying his medical charts; no physical evaluation could take place (ECF No. 112-1, pp. 35, 139)
December 14, 2015
n/a
x-ray of Jordan's left knee done; prior gunshot wound noted; healed fracture with rod and distal locking screws noted; soft tissue swelling noted but no acute fracture or dislocation seen; mild degenerative changes also observed (ECF No. 112-1, pp. 69, 139)
December 18, 2015
Dr. Eisenberg
Jordan seen at sick call for complaints of knee and lower leg 1 pain; complained that the hardware and bullet fragments in his leg was causing increasing pain; telemed conference with specialist planned; Relafen prescribed, twice daily (ECF No. 112-1, pp. 59-61, 83)
December 21, 2015
"Dr. Kostopoulos
Follow up visit with orthopedic surgeon from prior hand surgery; fall range of motion observed; Jordan could make a fist; fracture considered fully healed; if any discomfort continued, Jordan would be seen in 9 months (ECF No. 112-1, pp. 6, 62-63)
December 22, 2015
CRNP McKeel
Jordan attempted to be seen for sick call; Jordan refused treatment (ECF No. 112-1, pp. 34, 136)
December 28, 2015
n/a
Jordan received x-ray of left femur; prior gunshot wound noted; bullet fragments present (ECF No. 112-1, p. 68)
January 13, 2016
CRNP |_McKeel
Jordan tried to be seen for sick call; Jordan refused treatment (ECF No. 112-1, pp. 33, 137)
January 15, 2016
CRNP McKeel
Jordan attempted to be seen for sick call; demanded | treatment by an orthopedic surgeon; did not want to see a nurse practitioner; Jordan refused offers of treatment (ECF No. 112-1, pp. 32, 137)
January 22, 2016
Dr. Eisenberg
Jordan seen for pain from bullet fragments; no acute distress 1 was observed; some swelling noted in left knee and calf muscle; physician explained this would be a chronic condition; Relafen dosage increased for 30-days (ECF No. 112-1, p. 134)
February 17, 2016
CRNP McKeel
Jordan refused to be seen at sick call; Jordan refuses 1 treatment offered (ECF No. 112-1, p. 31)
February 22, 2016
CRNP McKeel
Jordan attempted to be seen about reordering of Relafen; 1 refused McKeel's offer of treatment
February 24, 2016
CRNP McKeel 1
Jordan attempted to be seen about reordering of Relafen; 1 refused McKeel's offer of treatment
March 1, 2016
CRNP McKeel, additional nurse; 2 corrections officers present
Jordan seen for pain - requested Naproxen; then indicated he did not want pain medication; following exam, McKeel noted possible arthritis in left knee; range of motion exercises discussed; visit was terminated by security staff for Jordan's "disrespectful behavior" (ECF No. 112-1, p. 28, 128)
j March 3, 2016
Dr. Eisenberg
Jordan seen for complaints of left knee and leg as per bullet fragment, lower back pain; normal range of motion observed; Relafen re-ordered (ECF No. 112-1, p. 126)
May 1, 2016
Nurse Jordan
Came to Jordan's cell to conduct assessment; Jordan refused to be examined; no obvious injury or distress observed I (ECF No. 112-1, p. 126)
|~May2, 2016
CRNP Adelekan
Came to Jordan's cell re: complaints of pain. Relafen not relieving Jordan's symptoms; no complaints of bladder/bowel issues; slight inability to lift shoulder noted; visual exam showed no discoloration or swelling of lower back; continue with Relafen; offered Tylenol but Jordan refused (ECF No. 112-1, p. 127)
May 5, 2016
CRNP McKeel
Saw Jordan at his cell for complaints of thumb numbness; 1 Jordan denied any pain; Jordan complained of neck pain and decreased range of motion to his left side; Jordan was alert and oriented; Jordan was argumentative during exam, yelling at times; full range of motion of left thumb observed; no discoloration; continue Relafen; offered Tylenol, but Jordan told McKeel "you're a liar"; unable to fully evaluate because of Jordan's behavior; exam terminated when Jordan escalated aggressive behavior; Jordan refused further treatment (ECF No. 112-1, p. 122-23)
May 5, 2016"
Dr. Alpert
Jordan seen for complaints regarding left thumb; x-ray 1 ordered for cervical spine and Tylenol prescribed (ECF No. 112-1, pp. 80, 123)
May, 2016 1
Dr. Eisenberg
x-ray of Jordan's spine conducted; mild scoliosis and 1 reversal of curvature with degenerative changes were noted (ECF No. 112-1, p. 67)
May 18, 2016
CRNP McKeel
McKeel responded to sick call (placed on May 15, 2016) but 1 examination was canceled for security reasons given Jordan's inappropriate and aggressive behavior and use of inappropriate language toward McKeel (ECF No. 112-1, p. 123)
May 20, 2016
Dr. Eisenberg
Jordan examined for complaints of thumb numbness, neck 1 and lower back pain; no acute distress noted; no distortion or discoloration on the thumb, neck, or spine; range of motion of neck and lower back was normal; Relafen discontinued; Clinoril and Prednisone were requested.
The medical records also reveal that Jordan was seen by prison medical staff for complaints of pain on numerous occasions after the May 1, 2016 incident. For example, Jordan was treated for neck pain stemming from a “lump” on his chest on September 7, 2016. An abscess was noted on his chest and Tylenol was ordered for pain. ECF No. 112-1, pp. 108-09. He was also prescribed Bactrim. Id. Security personnel concluded the visit when Jordan became belligerent. Id. He was seen again for neck pain on September 19, 2016 and prescribed Mobic for thirty days. Id., p. 104. He refused to be seen by Defendant McKeel on October 7, 2016 but saw CRNP Sutherland on October 14, 2016 for knee pain. Id., pp. 101. His prescription for Mobic was stopped and Naprosyn was prescribed instead. Id. Jordan continued to place sick calls (October 19, 2016, October 24, 2016, and January 11, 2017), but refused to be seen by CRNP McKeel when she responded. Id., pp. 20, 96, 97, 100). Jordan was seen by CRNP Sutherland on January 18, 2017 for continued knee/leg pain. Id., pp. 78, 96. Sutherland offered Jordan a steroid injection, but Jordan declined. On January 19, 2017, Jordan's left knee was again x-rayed and mild degenerative changes were noted. Id., p. 66. McKeel tried to see Jordan again on April 6, 2017 in response to a sick call but Jordan refused to see her. Id., p. 92.
Jordan was transferred to SCI-Camp HUI on June 21, 2016 and returned to SCI-Forest on July 26, 2016. ECF No. 112, ¶¶ 65-68.
Mobic (generic meloxicam) is a nonsteroidal anti-inflammatory drug for the treatment of pain or inflammation. See Stauffer v. Saul, No. CV 18-3031, 2020 WL 1239475, at *3 (E.D. Pa. Feb. 26, 2020), report and recommendation adopted, 2020 WL 1233570 (E.D. Pa. Mar. 13, 2020) (citing https://www.dmgs.com/mobic.html (last visited Feb. 19, 2020)).
Naprosyn is a brand name of naproxen, which is used to treat pain or inflammation caused by conditions such as arthritis, spondylosis, tendinitis, and bursitis. See Scott v. Berryhill, 2018 WL 1660322, at *5 (E.D. Pa. Mar. 16, 2018), report 9 and recommendation adopted, 2018 WL 1635650 (E.D. Pa. Apr. 4, 2018) (citing http://www.drugs.com/naproxen.html (last visited Feb. 20, 2018)).
VII. Discussion and Analysis
Jordan's Complaint implicates the Medical Defendants in five of its seven counts. At Count 4, Jordan charges that McKeel, Alpert, and Eisenberg intentionally denied him medical care, constituting deliberate indifference in violation of the Eighth Amendment. ECF No. 3, ¶¶ 171-178. Count 5 claims the three Medical Defendants denied Jordan's “reasonable requests for medical treatment, ” thereby exposing him to “undue suffering or the threat of tangible physical injuries” in violation of the Eighth Amendment. Id., ¶¶ 179-181. At Count 6, Jordan similarly alleges that the Medical Defendants “engaged in denial/delay of medical treatment that resulting (sic) in unnecessary and wanton infliction of pain or a life-long handicap or permanent loss” in violation of the Eighth Amendment. Id., ¶¶ 182-184. At Count 7, Jordan alleges that McKeel and Alpert purposefully delayed medical treatment “based on a non-medical reason” thereby violating his Eighth Amendment rights. Id., ¶¶ 185-198. Finally, Count 2 asserts a First Amendment retaliation claim solely against McKeel. Id., ¶¶ 156-167. There, Jordan alleges that McKeel retaliated against him by performing a “false and retaliatory medical examination to help cover-up the beating” that he received from the corrections officers. Id., ¶ 163.
A. Because the record does not support a finding that the Medical Defendants were deliberately indifferent to Jordan's serious medical needs, their motion for summary judgment should be granted as to Jordan's Eighth Amendment claims.
Counts 4, 5, 6 and 7 of the Complaint allege that the Medical Defendants acted with deliberate indifference to Jordan's serious medical needs. Even were the Court to assume that Jordan's injuries after the May 1, 2016 altercation constituted a serious medical need, the summary judgment record here could not support a finding that any of the Medical Defendants acted with deliberate indifference to that need. See, e.g., Kokinda v. Pennsylvania Dep't of Corr., 797 Fed.Appx. 69, 71 (3d Cir. 2019). Thus, summary judgment should be granted to the Medical Defendants on those claims.
Deliberate indifference to a serious medical need involves the “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This indifference can manifest in an intentional refusal to provide care, in delaying medical treatment for non-medical reasons, in the denial of prescribed medical treatment, or reasonable requests for treatment that result in suffering or risk of injury. Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993). Deliberate indifference can also be found where prison medical personnel continue with persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
When it comes to claims of deliberate indifference, there is a “critical distinction” between allegations of a delay or denial of a recognized need for medical care and allegations of inadequate medical treatment. Pearson v. Prison Health Service, 850 F.3d 526 535 (3d Cir. 2017) (quoting United States ex rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). A claim alleging the delay or denial of medical treatment requires inquiry into the subjective state of mind of the defendant and the reasons for the delay, which like other forms of scienter can be proven through circumstantial evidence and witness testimony. Id. But “[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Id. (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). Furthermore, courts “disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment... [which] remains a question of sound professional judgment.” Inmates of. Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)) (alterations in original). “[I]t is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.” Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). “Mere disagreement as to the proper medical treatment [does not] support a Haim of an [E]ighth [A]mendment violation.” Monmouth Cty. Corr. Institutional Inmates v. Lanyaro, 834 F.2d 326, 346 (3d Cir. 1987); see also Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (explaining that deliberate indifference requires something “more than negligence”).
1. Counts 4, 5 and 6: Jordan was not denied medical care.
At Counts 4, 5 and 6, Jordan contends that the Medical Defendants denied him medical treatment. ECF No. 3, ¶¶ 171-184. This claim is contrary to the record, including Jordan's extensive medical records, the authenticity of which he does not dispute. As detailed supra., the Medical Defendants have submitted over 300 pages of Jordan's medical records. ECF No. 112-1; 112-2. Since the May 1st incident, Jordan was seen by the prison medical department several times. The medical records reveal that immediately after the incident with the corrections officers, Jordan was evaluated by medical personnel. ECF No. 112-1, pp. 126-127. Defendant Alpert saw Jordan on May 5, 2016, in response to Jordan's complaints of numbness in his thumb and Alpert ordered an x-ray. Id. at 123. Alpert also ordered a spinal x-ray for Jordan. Id. at 80, 123. The spinal x-ray took place four days later and revealed no fractures or dislocations. Id. at 67. Eisenberg examined Jordan on May 20, 2016, in response to Jordan's continued complaints of thumb numbness as well as neck and lower back pain. Id. at 120. Eisenberg examined Jordan's thumb, did not notice any discoloration or dislocation, and adjusted Jordan's prescription medication. Id.
Count 4 contends that McKeel, Alpert, and Eisenberg “engaged in intentional denial of medical care to constitute deliberate indifference to serious medical need.” ECF No. 3, ¶ 177. At Count 5, Jordan contends that McKeel, Alpert, and Eisenberg “engaged in the denial of reasonable requests for medical treatment and such denial exposed Plaintiff to undue suffering and/or threat of tangible physical injuries.” Id., ¶ 180.
The summary judgment record also reflects instances in which Defendant McKeel provided Jordan with treatment for his complaints both before and after his altercation with the corrections officers. The medical records establish that shortly after the altercation, McKeel saw Jordan based on his complaints of thumb numbness. ECF No. 112-1, pp. 122-23. Jordan's medical records state that at that time, Jordan denied any pain and McKeel noted he had no discoloration in his thumb and demonstrated a full range of motion in his arms and shoulder. Id. Despite these negative findings, she continued Jordan's Relafen prescription and suggested additional Tylenol, which Jordan refused, calling her a “liar.” Id. According to Jordan s medical records, McKeel also attempted to respond to Jordan's sick call request on May 18, 2016 but was unable to examine him because of his aggressive and threatening language toward her. Id. Security intervened and cancelled McKeel's visit that day. Id.
Given this, the record establishes that Medical Defendants did not deny Jordan medical care post-altercation and summary judgment should be granted in their favor on Counts 4, 5 and 6. See, e.g., Aurel v. Wexford Health Sources, Inc., 2018 WL 3048832, at *8 (D. Md. June 19, 2018) (“The medical records and affidavits of Dr. Getachew speak for themselves. There is no dispute that Aurel has been seen countless times by physicians, nurses, and physician assistants for his many complaints. He has been prescribed a host of medications for his conditions .... Lab tests were performed. He received CT scans; x-rays, and a colonoscopy. Although Aurel may be dissatisfied with the course of treatment and the views of the health care staff, the testing and treatment he received has more than satisfied the constitutional requirements under the Eighth Amendment.”); Atwell v. Cavan, 557 F.Supp.2d 532, 545 (M.D. Pa. 2008), affd, 366 Fed.Appx. 393 (3d Cir. 2010) (“We also find that Plaintiffs undisputed medical records speak for themselves.”).
Jordan does dispute certain factual assertions contained in the medical records and has placed a Declaration to that effect on the record. See ECF No. 131-8. As to Defendants Drs. Alpert and Eisenberg, Jordan makes the general accusation in his Declaration that they “did not follow Department Policy where they never treated Jordan's neck and back injuries as though they were fractures.” Id., ¶ 1. He then advances the argument that these Defendants were “responsible for causing Jordan to receive near-total lack of medical treatment despite his complaint of injuries.” Id., ¶ 5. Jordan's Declaration, however, does not identify any dispute of material fact concerning the medical treatment he received from Alpert or Eisenberg. For example, Jordan's Declaration acknowledges that Alpert and Eisenberg examined him, ordered and reviewed x-rays of his neck and spine, and changed his prescription medication from Relafen to Clinoril and Prednisone. ECF No. 131-8, ¶¶ 4-5. Thus, his Declaration's conclusory assertions that he was denied care are insufficient to create a material issue of fact as to deliberate indifference. Jordan acknowledges that he received treatment from these providers, rendering his dispute to a mere disagreement about the treatment he received. 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.” In v. Stroup, 2020 WL 5819602, at *5 (W.D. Pa. Sept. 30, 2020) (citing Tilley v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases)). Such complaints fail to state 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 Ch. 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 pain medication as the type of “disagreement over the exact contours of [plaintiffs] medical treatment” that does not violate the constitution)).
Jordan's Declaration contests Defendant McKeel's actions more specifically. He does not dispute that McKeel saw him at his RHU cell door in response to his sick call request on both May 5, 2016, and May 18, 2016. Id., at ¶3. He also does not dispute McKeel's recitation of his symptoms:
Jordan agrees that he complained about thumb numbness and neck pain. Jordan agrees he had decreased range of motion to move his neck to the left side. Jordan agreed he had 9/10 on the pain scale. Jordan agrees he stated that this related to where he was assaulted by corrections offices on May 1, 2016.Id., ¶ 3. But he pointedly denies that on May 5, 2016, McKeel offered to prescribe him Tylenol; disagrees that he acted belligerently towards her; refutes that he called her a liar; and rejects McKeel's claim that she was unable to examine him because of his aggressive behavior. Id., ¶ 2. He also denies yelling at staff, referring to McKeel as a “bitch, ” and using other derogatory language against her on May 18, 2016. Id., ¶ 3. According to Jordan, McKeel also refused to physically examine him on both dates. Id., ¶ 4.
a. Treatment by McKeel and Alpert on May 5, 2016.
These factual disputes are not material to the question whether McKeel's actions or inactions constituted deliberate indifference. The Court of Appeals instructs that, “[a]n important distinction exists between a factual dispute, and a factual dispute that is material. Summary judgment is . correctly granted in many situations where the parties genuinely dispute facts but where the dispute is not material to the adjudication of the case.” Razak v. Uber Technologies., 951 F.3d 137, 146 n.8 (3d Cir. 2020); see also Verma v. 3001 Castor, Inc., 937 F.3d 221, 229 (3d Cir. 2019). A factual dispute is genuine where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248.
So then, construing these factual disputes in the light most favorable to Jordan as the nonmoving party, the differences they highlight are not material as to whether Defendant McKeel was deliberately indifferent to Jordan's medical needs. For example, McKeel's purported failure to offer a prescription for Tylenol is immaterial. Jordan's contention that she did not prescribe him Tylenol (after noting in his medical chart that she did) is “evidence that she either forgot” or that, as Jordan suggests, she bed. See, e.g., Rega, 2011 WL 7094571, at *6 (W.D. Pa. Dec. 13, 2011), report and recommendation adopted as modified, 2012 WL 224894 (W.D. Pa. Jan. 25, 2012). If she forgot to provide the prescription, that is at most, negligence, which is not sufficient to state an Eighth Amendment violation. Rega, 2011 WL 7094571, *2 (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). If she lied about the Tylenol, as Jordan claims, “lying to a patient does not constitute deliberate indifference” either. Id. (citing Young-Flynn v. Wright, 2007 WL 241332, at *17 (S.D.N.Y., Jan. 26, 2007) (“merely providing a prisoner with incorrect information regarding his medical condition or care does not constitute a constitutional violation, even if the act of providing false information is intentional”). And, in any event, given the wide latitude that medical professionals have in prescribing medications, Jordan does not state a plausible claim for deliberate indifference based on Jordan's failure to prescribe Tylenol. See In v. Stroup, 2020 WL 5819602, at *8 (W.D. Pa. Sept. 30, 2020).
McKeel says that she offered Tylenol to Jordan, but that he refused because he did not want to pay for the medication. ECF No. 112-1, p. 123. Jordan claims this is a lie. ECF No. 131-8, ¶ 2.
This Court has previously noted that medications Eke Tylenol, Prilosec and others are available over-the-counter. See Rega, 2011 WL 7094571, at *12. Thus, to the extent that Jordan had access to such via commissary purchases, then he cannot make out an Eighth Amendment deliberate indifference claim based on McKeel's failure to provide Tylenol given his ability to acquire it for himself. See Rega, 2011 WL 7094571, at *12 (citing Irons v. Samu, 2010 WL 749797, at *10 (D. Colo., March 2, 2010) (“The plaintiff also attests that Dr. Bloor was deliberately indifferent to his health care needs because he asked her for Motrin; she said he could purchase Motrin at the canteen; he informed her that he had already taken four pills and was still in pain; and she responded that she would not be able to do anything for him at that time.... It is undisputed that the plaintiff could purchase Motrin from the canteen. The plaintiffs allegation that Dr. Bloor refused to provide it to him in the clinic does not show that she knew of and disregarded an excessive risk to his health.”); Wolff v. New Hampshire Dept, of Corrections, 2008 WL 924530, at *4 (D.N.H. April 2, 2008) (“Finally, I note that Wolff also raised allegations at the evidentiary hearing regarding the prison's failure to provide him with his requested dosage of ibuprofen and the prison pharmacy's failure to fill his prescription for Mylanta. See Testimony of Wolff at 4446, With respect to both claims, Wolff has failed to show that the prison officials acted with ‘deliberate indifference to [his] serious medical needs' by not increasing his dosage of ibuprofen and by requiring him to purchase a liquid antacid at the canteen rather than providing Mylanta at the prison pharmacy.”); Mitchell v. Valdez, 2007 WL 1228061, at *2, n. 2 (N.D. Tex., April 25, 2007 (“Several courts have rejected claims brought by prisoners alleging deliberate indifference on the part of jail officials for foiling to dispense medication where the same or substantially similar medication was available for purchase at the commissary.”).
Jordan also disputes that he acted aggressively toward McKeel on May 5, 2016, rejecting her notation in the medial record that Jordan's behavior prevented her from examining him on that date. Again, this dispute is immaterial for purposes of summary judgment. Although Jordan disputes McKeel's observation that he acted aggressively towards her, he does not dispute that she responded to his sick call request on May 5, 2016, and that she performed an examination. Jordan does not challenge her observations that his “capillary refill” was normal, that his skin was “warm, ” and that his “radial pulse” was positive. See ECF No. 112-1. p. 122. Further, Jordan does not dispute McKeel's notation that she “palpated [his thumb] through the wicket.” Id. Thus, she did examine Jordan in some fashion on May 5, 2016 and his Declaration merely highlights a dispute over the extent of that care. This factual disagreement is immaterial because an Eighth Amendment deliberate indifference claim does not exist when an inmate is provided with medical care and the dispute is over the adequacy of that treatment. Norris v. Frame, 585 F.2d 1183, 1186 (3d Cir. 1978) (“Where the plaintiff has received some care, inadequacy or impropriety of the care that was given will not support an Eighth Amendment claim.”).
Jordan disputes that McKeel's efforts to treat him amounted to a physical examination. But this dispute is likewise immaterial. The Court of Appeals for the Third Circuit has not found it deliberately indifferent for physicians and other medical personnel to perform only a visual examination of an inmate, even when doing so may result in a misdiagnosis. See Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (decision to only visually examine prisoner's chest for complaints of pain instead of pressing on the ribs was an exercise of professional judgment and thus not deliberately indifferent, even though doctor misdiagnosed two broken ribs as bruising). Thus, whether she visually or physically examined him is of no moment for purposes of the Eighth Amendment. The point is that she examined him and rendered an assessment based on that examination.
Jordan's factual disputes regarding Defendant McKeel's examination on May 5, 2016 are also immaterial because Dr. Alpert responded to Jordan's sick call later that same day. See ECF No, 1211, pp. 80, 123. This dispute further clarifies that Jordan's claim against McKeel actually alleges a delay, not a denial, of medical care. That is, McKeel responded to Jordan's sick call at approximately 12:49 PM and Dr. Alpert responded at approximately 3:00 PM-a delay of a little less than three hours on the same day. ECF No. 112-1, p. 123. Even assuming that Jordan acted appropriately toward McKeel, he has not disputed her notation that he would be evaluated by another medical provider in the future if Jordan was cooperative. Id. And Jordan was so evaluated by Dr. Alpert's a short time later. Id.
A prison official may manifest deliberate indifference by “intentionally denying or delaying access to medical care.” Estelle, 429 U.S. at 104-05. But Jordan's factual disputes concerning his behavior are immaterial because, even if true, he still has not pointed to any evidence that the minimal delay between McKeel and Alpert's response on May 5, 2016 caused him harm. See, e.g., Brooks v. Tyler, 204 F.3d 102, 105 n.4 (3d Cir. 2000) (finding no deliberate indifference where there was no evidence that any harm resulted from the delay in treatment); Joh v. Subey, 709 Fed.Appx. 729, 731 (3d Cir. 2017) (finding brief delay in examining plaintiff after his initial injury did not state a claim for deliberate indifference). See also Tyner v. Cty. of Lancaster, 2020 WL 4284301, at *7 (E.D. Pa. July 27, 2020).
b. May 18-20, 2016.
Likewise, any factual dispute about his behavior towards McKeel on May 18, 2016 are immaterial. As a matter of undisputed fact, he was seen by McKeel when she responded to his sick call on May 18 2016, and that appointment was rescheduled to May 20, 2016, when Jordan was seen by Dr. Eisenberg. While Jordan may not agree with the treatment he initially received from McKeel, other medical personnel continued to treat him and he has not alleged any harm occurred to him in the meantime. See, e.g., Shivers v. Connections, 2020 WL 3893043, at *4 (D. Del. July 10, 2020). Therefore, the factual disputes Jordan identifies concerning his interaction with McKeel are not material to the resolution of his claims. Jordan does not dispute that he was seen by Dr. Eisenberg two days after McKeel's May 18th visit. His Declaration does not dispute that Eisenberg examined him, discontinued his prescription for Relafen, prescribed Clinoril, and tapered Jordan's Prednisone prescription to a lower dose. ECF No. 121-1, p. 120.
Again, even accepting Jordan's version of his interaction with McKeel on May 18, 2016, the record does not support a finding that the resultant two-day delay in treatment represented deliberate indifference or caused Jordan any harm. See, e.g., Brooks, 204 F.3d at 105 n.4. Jordan does not dispute that McKeel responded in a timely fashion to Jordan's sick call request on May 18th, attempted to evaluate him, and rescheduled his appointment, which took place two days later. This minor delay in treatment does not meet the threshold from which a reasonable jury could find deliberate indifference. See, e.g., Parker v. Butler Cty., Pennsylvania, 2020 WL 6268333, at *2 (3d Cir. Oct. 26, 2020); Carson v. Wetgel, 2019 WL 7283283, at *5 (W.D. Pa. Dec. 27, 2019), appeal dismissed, WL 5034304 (3d Cir. Mar. 25, 2020).
Thus, Jordan cannot meet his burden of demonstrating that Eisenberg, Alpert or McKeel was deliberately indifferent to his serious medical needs. See, e.g., Green v. Ferdarko, 2018 WL 2009087, at *5 (W.D. Pa. Apr. 30, 2018). Because the record cannot support a finding that medical treatment provided to Jordan was delayed in violation of Jordan's rights under the Eighth Amendment, summary judgment should be granted in favor of the Medical Defendants as to this claim.
B. The record does not support Jordan's illegal retaliation claim against McKeel.
To prevail on his illegal retaliation claim against McKeel (Count 2), Jordan must prove that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take the adverse action. Armstrong v. Turman, et al., 2020 WL 5545270, at *3 (W.D. Pa. Sept. 16, 2020) (citing Watson v. Ropum, 834 F.3d 417, 422 (3d Cir. 2016); Rauser v. Hom, 241 F.3d 330, 33334 (3d Cir. 2001)). An “adverse action” is one that would “deter a person of ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). A causal link is established when the protected conduct “was a substantial or motivating factor in the decision to discipline [a plaintiff].” Carter v. McGrady, 292 B.5B\52, 158 (3d Cir. 2002).
Jordan claims that McKeel conducted a “false” examination and “falsified” his medical records in retaliation for his having filed grievances against her and others. ECF No. 3, ¶¶ 132-33. Specifically, he claims:
On May 5, 2016, soon after McKeel learned the Plaintiff had filed Grievance 624114 concerning denying the Plaintiff access from receiving medical care against Adelekan and McKeel, in response, McKeel performed a false and retaliatory medical examination to help cover up the beating that the Plaintiff suffered for the filing of Grievance and sick call Requests.
On May 18, 2016, soon after and twelve days after the Plaintiff filed Grievance 624924 and three days after Plaintiff submitted a sick call Request concerning the continued pain in his neck, back, as well as a loss of feeling in his left thumb .... At this time, McKeel having retaliated against the Plaintiff by her refusing him medical attention in addition to a subsequent falsification of medical records.Id., ¶¶ 109, 132-33. Thus, Jordan asserts that McKeel retaliated against him in two ways-by inaccurately recording what transpired during her medical examination of Jordan on May 5, 2016, and by denying him necessary medical treatment. The second of these two assertions is easily dispatched. As discussed above, the record in this case does not support a finding that McKeel or any other Medical Defendant denied Jordan necessary medical care. Indeed, the record establishes that while Jordan continued to file grievances against McKeel, she continued to respond to his sick call requests and to provide medical treatment. Even after the interaction between her and Jordan became contentious, she nonetheless attempted to treat Jordan despite the filing of grievances against her.
Further, upon close examination, Jordan's assertion that McKeel retaliated against him by falsifying an entry in his medical records also fails to support his claim. Jordan apparency contends that McKeel understated the extent of his injuries and overstated the extent of her examination on May 5, 2016. As to the first contention, the record is clear that the follow-up assessment of Jordan's injuries and condition included x-rays and other diagnostic tests and that the results of these tests fully supported the treatment Jordan received for his injuries. While the test results included findings such as mild scoliosis and other degenerative conditions, these were far from unusual for an individual of Jordan's age and, as discussed, Jordan received treatment and medications to address them. In addition, McKeel's observations in her entry for the May 5, 2016, examination were entirely consistent with the objective findings of these subsequent tests, and Jordan has offered no evidence to controvert their accuracy. Further, even if McKeel's report of the encounter with Jordan included inaccuracies, they would have to be examined in the overall context of Jordan's medical records to determine whether they would “deter a person of ordinary firmness” from exercising his First Amendment rights. See Hauser v. Hom, 241 F.3d 330, 333 (3d Cir. 2001); see also Mitchell v. Hom, 318 F.3d 523, 530 (3d Cir. 2003). Here, the inaccuracies alleged by Jordan do not meet this threshold. Indeed, McKeel's entry is consistent with Jordan's overall medical history and, as such, the alleged inaccuracies therein cannot be viewed as material or a deterrent to the exercise of his First Amendment rights.
By way of brief summary of this extensive record, Jordan filed four grievances on May 1, 2016, concerning his altercation with corrections officers. ECF No. 112-2, pp. 8-17. None of these grievances mentioned McKeel by name, although the DOC's response noted McKeel's attempts to treat Jordan and Jordan's subsequent aggressive behavior. See id. pp. 12-14. On May 3, 2016, Jordan filed Grievance 624434 against Defendant McKeel (ECF No, 112-2, p, 32), but that did not stop her from responding to Jordan's sick call request on May 5, 2016. ECF No. 112-1, p. 122.
Thus, Jordan cannot claim any adverse action by McKeel because of his filing a grievance against her. In fact, she continued her attempts to treat Jordan through May 18, 2016, shortly before Jordan was transferred from SCI-Forest to SCI-Camp Hill. Id., p. 123. And while Jordan continued to file grievances against her upon his return to SCI-Forest, she continued to treat him. See, e.g., ECF No. 112-2, pp. 76-85; ECF No. 112-1, pp. 22, 107. The entire record highlights Jordan's continued filing of grievances against McKeel, and her continued efforts to treat him regardless of those filings need not be detailed in this opinion. The summary judgment record is clear that Jordan suffered no materially adverse actions by McKeel based on his filing of grievances against her. Thus, he cannot establish a retaliation claim and her motion for summary judgment on this claim should be granted.
VIII. Conclusion
Given the foregoing, it is respectfully recommended that the Medical Defendants' Motion for Summary Judgment (ECF No. 111) be granted and that judgment be entered in their favor.
IX. Notice
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. Plaintiffs failure to file timely objections will constitute a waiver of his appellate rights.