Opinion
2:19-CV-01207-CB
01-31-2022
JOHN DALE PREACHER, Plaintiff v. CORRECT CARE SERVICES/SOLUTIONS, et al, Defendants
ECF NO. 233
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Motion for Summary Judgment (ECF No. 233) filed on behalf of Defendant Timothy Kross be GRANTED.
II. Background and Procedural Posture
Plaintiff John Dale Preacher (Preacher) is an inmate in the custody of the Pennsylvania Department of Corrections (DOC) and currently housed at its State Correctional Institution at Fayette. Acting pro se, Preacher commenced this action based on conduct and events that occurred during his prior incarceration at the State Correctional Institution at Somerset (SCI-Somerset) and the State Correctional Institution at Greene (SCI-Greene). He named thirty-four defendants, including Dr. Timothy Kross (“Kross”), a physician and employee of Correct Care Solutions, LLC. Correct Care Solutions provided medical services to inmates at SCI-Somerset pursuant to a contract with the DOC. Preacher claims that Kross acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment's prohibition against cruel and unusual punishment and seeks redress of this violation pursuant to 42 U.S.C. § 1983.
Preacher's Amended Complaint (ECF No. 119) is the operative pleading and statement of his allegations against Kross. Kross has moved for summary judgment and filed a supporting brief and Concise Statement of Material Facts. ECF Nos. 233-235. Preacher has filed a brief in opposition to the motion and a responsive Concise Statement and Appendix. ECF Nos. 260-262. Kross has filed a reply brief. ECF No. 266.
III. Material Facts
The following facts are derived from the parties' Concise Statements of Material Facts and the medical records produced by Kross as part of his comprehensive chronology of Preacher's medical treatment. Preacher was transferred to SCI-Somerset on June 9, 2017. ECF Nos. 235, 261. Kross provided medical services at SCI-Somerset from February 14, 2018 to June 30, 2018. ECF No. 235-1, p. 1. Although Preacher was under Kross's care for only four and a half months, it is necessary to address events and care before and after this period for background and context.
On November 1, 2017, four months before Kross arrived at SCI-Somerset, Preacher came to the medical department and reported that he had sustained an injury to his right hand earlier that day. According to the medical record for that visit, Preacher reported that a corrections officer had twisted his thumb while he was exiting the shower. Upon examination, Preacher was noted to have swelling at the base of his right thumb, decreased range of movement, and a raised, reddened area with skin intact and no drainage. The wound was cleaned and dressed, and Preacher was scheduled to return to the Medical Department the following day to further address his injury. ECF No. 235-4, p. 166. Preacher returned to the Medical Department on November 2, 2017. Records from this visit state that he reported his hand had been “jammed/jerked by C.O.” on the day before. Id. An x-ray of Preacher's hand was scheduled during this visit and performed on November 3, 2017. Its results showed an apparent “dislocation of the right thumb metacarpal at the carpometacarpal joint, with the thumb displaced about 5 mm laterally and posteriorly and radially to the carpal bones, ” but identified no fracture. ECF No. 235-5. The radiologist recommended clinical correlation with appropriate follow-up and CT evaluation. See id. The radiologist's findings were noted in an entry to Preacher's medical record dated November 6, 2017, and on November 9, 2017, Preacher was approved for a CT scan of his right hand. See id., p. 167.
The CT scan was performed on December 5, 2017. Its results showed some deformity at the base of the thumb metacarpal where an old, healed fracture was evident, but no acute fracture. Additional CT scan findings included abnormal alignment at the carpal-metacarpal joint of the thumb, with subluxation and almost dislocation of the thumb proximally in relation to the trapezium. The lunate was also observed to be abnormally sclerotic, and some cystic changes were noted. ECF No. 235-6, p. 11. The CT scan report was signed-off by Dr. Joseph Girone on December 21, 2017. See id.; ECF No. 235-3, p. 40.
On February 2, 2018, Preacher was seen via telemedicine by an outside physician at Somerset Orthopedics. This doctor discussed treatment options with Preacher and noted that Preacher's injury was slowly improving. The options discussed were continued observation or referral to a hand specialist. “Because of the abnormal CT scan, [the doctor] recommended that he be evaluated by a hand specialist.” ECF No. 235-6, p.10. On February 8, 2018, Preacher submitted an Inmate Request to Staff Member addressed to Brian Hyde, CHCA, requesting an update regarding his referral to a hand specialist and why he had not received medication for his hand pain. See ECF No. 262-2, p. 2. Preacher received a response to his request on February 9, 2018, advising him that he previously had been approved for ibuprofen or naproxen, which were available for purchase in the commissary. See id. That same day Preacher was approved for an off-site appointment with a hand specialist and review of radiology. See ECF No. 235-4, p. 130. All the medical measures taken up until this point were performed before Kross arrived at SCI-Somerset.
On March 20, 2018, Preacher was transported to Allegheny Orthopedic Associates in Pittsburgh where he was evaluated by an orthopedic surgeon, Dr. Bradley Palmer. Reviewing his prior radiographic studies, Dr. Palmer noted that Preacher had a dislocation/subluxation of his right thumb CMC joint and cysts in the lunate and questionable SLAC wrist deformity. On examination, he noted mild swelling over the thumb CMC joint, tenderness to palpation, and crepitus with grind testing which also produced significant pain. Dr. Palmer had a long discussion with Preacher regarding his treatment options, which included immobilization of the thumb and wrist for 4 to 6 weeks and surgery for CMC arthrodesis. Preacher opted for immobilization. He was given a prescription to see the occupational therapist for a custom splint and was instructed to return for a follow-up appointment in six weeks. See ECF No. 235-6, p. 8. Dr. Palmer noted, “We are trying to determine if this is acute on chronic or acute injury. The x-rays demonstrate this is most likely a chronic injury which he made worse in November with his altercation.” Id.
On March 28, 2018, Kross ordered and approved Preacher for a follow-up orthopedic consult with Dr. Palmer for abnormal sclerosis of the lunate bone and possible avascular necrosis. ECF No 235-7, p. 1. The consult approval was electronically signed by Andrew Dancha, DO. Id. The record further indicates that Kross discontinued the consult referral on April 10, 2018. The reason noted in the record was “duplicate.” See id. In his affidavit in support of his motion for summary judgment, Kross states that he canceled the follow-up consult based on advice from “staff” who told him that the consult was a “duplicate” and that he did not cancel the consult to deny or delay any necessary care for Preacher. ECF No. 235-2. As noted, Kross ceased to have any involvement in Preacher's care as of June 30, 2018, when Kross left SCI-Somerset.
Between April 10 and Kross's departure from SCI-Somerset on June 30, Preacher made the following requests and inquiries to the Medical Department regarding his hand:
• March 13, 2018: Preacher submitted an Inmate's Request to Staff Member addressed to “Medical Director, ” inquiring about the recommended referral to the hand specialist and requesting an ace bandage and pain medicine. See ECF No. 262-2, p. 4.
• March 14, 2018: Preacher submitted an Inmate Request to Staff Member addressed to Brian Hyde (“Hyde”) asking why he has not been scheduled to see the hand specialist. See id. at 5. Hyde responded that he was not authorized to order a specialist and that it was likely the doctor did not believe a referral was medically necessary. See id.
• April 26, 2018: Preacher submitted an Inmate Request to Staff Member addressed to Hyde inquiring when he would have his next appointment with Allegheny Orthopedics. Preacher also asked to have his pain medication refilled. See id. at 6. Hyde replied that he is not authorized to order pain medication and that they were looking into an appointment date with the specialist. See id.
• April 30, 2018: Preacher submitted an Inmate Request to Staff Member addressed to the Medical Director wherein he stated that his hand was still very painful and inquired when he would be returning to the specialist. He also complained that he has submitted several sick calls for pain medication that had not been answered. See id. at 8.
• May 11, 2018: Preacher submitted an Inmate Request Form to Hyde stating he had been prescribed a splint for 4-6 weeks and needs a follow-up visit to determine whether surgery is necessary. Preacher questioned why there had been no follow-up visit with the specialist and his pain medication had been discontinued. See id. at 7, 9.
• May 14, 2018: Preacher submitted an Inmate Request to Staff Member addressed to the Medical Director, Dr. Kaufman. He asked when he would have his next appointment for therapy/surgery. He also asked for pain medication stronger than Tylenol. See id. at 10. In response, Preacher was advised to adhere to the sick call process to have his medicine addressed. See id.
• On May 21, 2018, Preacher filed Grievance 737769 complaining of improper handling of his healthcare concerns. See ECF No. 262-4. On August 22, 2018, the Grievance Officer determined that “Dr. Kross erroneously cancelled your Orthopedic consult on 4/10/2018. This has been addressed. Your case will be forwarded to the Orthopedic Surgeon as previously approved.” Id. at 3-4.
Preacher's course of treatment did not change materially after Kross was no longer involved. On September 1, 2018, he was seen by a nurse at SCI-Somerset for complaints unrelated to his hand. ECF No. 235-4, p.125. In December of 2018, Preacher was transferred from SCI-Somerset to SCI-Greene. See id., p. 110. On December 23, 2018, he was seen by Denise Daniel, MD, with whom Preacher discussed the prior cancelation of his recommended follow-up consultation with Dr. Palmer. Dr. Daniel noted that she would order physical therapy for Preacher and if that did not help, she would present the matter to collegial review for him to see a hand specialist. Preacher was apparently agreeable with this plan. See id., p. 108. Over the next month, Preacher received a referral for physical therapy and had his medication adjusted from Naprosyn to Voltaren and, after Voltaren upset Preacher's stomach, to Tylenol. See id., p. 105.
On March 14, 2019, Preacher returned to SCI-Somerset, and on March 19, 2019, Preacher was seen by Dr. Aaron Leininger of Allegheny Orthopedic Associates, for a follow-up evaluation of his right thumb and wrist pain. ECF No. 235-6, pp. 3-5. Dr. Leininger noted that Preacher had been seen about one year earlier for similar problems and found to have a subluxed CMC joint as well as scapholunate widening. At that time, Preacher was placed in a splint for 6 weeks and reported he had improvement from it, but that his symptoms had now returned. See id., p. 4-5. X-rays were taken, which Dr. Leininger felt showed a continued subluxed position of the basilar thumb joint, sclerotic borders at the base of the thumb joint with osteophytes less than 2 mm, scapholunate widening consistent with SLAC wrist, and sclerotic appearance of the lunate compared to prior x-rays. The plan was to obtain another splint for him as that had worked before. He would have his wrist immobilized for six weeks. He also performed a lidocaine with Celestone injection into the joint. He was to follow up in six weeks and was given a prescription for ibuprofen to take as needed. See id. Preacher was provided a thumb spica splint that same day. See ECF No. 235-4, p. 92. The record does not evidence that Dr. Leininger recommended surgery or any treatment beyond immobilization, a lidocaine with Celestone injection, ibuprofen, and continued monitoring as needed.
Preacher alleges that Kross's cancelation of his follow-up appointment with the hand specialist and his unresponsiveness to inquiries constituted deliberate indifference to his medical needs. He also contends that the resulting delay in treatment caused further injury to and deformation of his hand.
In addition to Preacher's medical record, Kross has produced the reports of two medical experts, Sachin Dheer, M.D., and Michael Rivlin, M.D, in support of his motion for summary judgment. Dr. Dheer is a physician certified in radiology by the American Board of Radiology. Based on his review of Preacher's radiographs, CT scan studies, and associated medical records, he opined that Preacher suffers from a “chronic instability of the 1st CMC joint (AKA-base of the thumb) due to long-standing, degenerative osteoarthritis, which predates the alleged date of injury (11/1/2017).” ECF No. 235-8, p. 32. Dr. Dheer further opined:
Based on the imaging findings and the additional reviewed records, the time between the initial and subsequent orthopedic hand evaluation(s) did not adversely affect or otherwise alter the medical management of the right
wrist/thumb pathology. The approximately 11 months between the alleged cancellation on April 10, 2018 and subsequent orthopedic evaluation on March 19, 2019 is of no consequence from a medical standpoint. The absence of any radiologic progression is proof of this fact. The management of the claimant's right thumb degenerative osteoarthritis and associated instability is no different than that which would have occurred had the evaluation been performed any sooner, or later for that matter, than April 2018.id., p. 33.
Dr. Rivlin is an Associate Professor of Hand and Orthopaedic Surgery at the Sidney Kimmel Medical College of Thomas Jefferson University in Philadelphia, Pennsylvania. Based on his review of medical records, Dr. Rivlin opined in material part as follows:
The findings on the imaging studies as well as a consultant reports point to a chronic process of thumb CMC degenerative arthritis with possible prior injury (potential previous Bennett fracture). The alleged mechanism of injury of being handcuffed is highly unlikely to have caused the above pathology. Although traumatic exacerbation of an underlying condition may occur, appropriate treatment with corticosteroid injection was provided to the patient to mitigate the exacerbation.
Furthermore the patient's pattern of wrist arthritis is most likely caused by a scapholunate tear which is usually due to an injury. The results of scapholunate advanced collapse as evidenced on multiple radiographs and CT scan above. Due to this it is likely that the patient had sustained prior injury or injury to the hand and wrist which may have contributed to his development of carpometacarpal arthritis and some degree.
Orthopedic treatment of degenerative thumb CMC arthritis is mainly by using braces and injections, which have been made available to the patient. These are elective and temporizing measures. Surgical intervention may provide long-term improvement if elected but is not required for this condition. The above notes demonstrate appropriate delivery of care. No delay to treatment has been identified. A canceled appointment or increased time to see a specialist does not lead to progression or other detrimental outcome of the pathology.
ECF No. 235-9, p. 4.
The Court recently granted Preacher's Motion to Supplement the Record (ECF No. 267) with “Exhibit 5” (ECF No. 267-1), which is a physical therapy note regarding Preacher dated January 28, 2020. Under the heading of “subjective, ” the physical therapist stated that “patient complains of numbness in his right hand with increased writing.” See ECF No. 267-1 (medical symbols and abbreviations interpreted). He also listed “objective” findings of “decreased range of motion with flexion and extension and decreased strength, ” and he recommended “patient education/instruction with range of motion exercises as tolerated.” See id. (medical symbols and abbreviations interpreted). Under “assessment, ” the physical therapist listed “right carpel tunnel” and “patient with hypersensitivity, ” and under “plan” he stated, “focus on flexionextension as tolerated.” See id. (medical symbols and abbreviations interpreted).
The Court understands that Preacher has submitted this physical therapy note in support of his position that he has sustained a further injury or disability because of Kross's cancelation of his follow-up consultation with the hand specialist twenty-one months earlier. Even if the therapist's “assessment” of “right carpel tunnel” can be considered a medical diagnosis, however, the note does not associate or relate this assessment to any prior decisions or actions by Kross or any other medical provider. The record includes no evidence that the delay in Preacher being seen for a follow-up consultation with the hand specialist resulted in Preacher sustaining any further injury or disability.
IV. Standard and Scope 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. See 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. See 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. See 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 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. See 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).
V. Discussion and Analysis
Preacher's Eighth Amendment claim against Kross asserts that he acted with deliberate indifference to his serious medical needs when he canceled the follow-up consultation with the hand specialist and did not respond to his requests for pain medication and the status of the referral. Kross argues that he is entitled to summary judgment because the record does not support a finding of deliberate indifference or that his conduct caused Preacher to sustain any further injury or disability.
To support a violation of the Eighth Amendment, a plaintiff must produce evidence to support two requirements: First, the deprivation of rights alleged must have been, objectively, “sufficiently serious, ” and second, a prison official's act or omission must result in the denial of “the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). Deliberate indifference to a prisoner's serious medical need involves the “unnecessary and wanton infliction of pain” within the ambit of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). To support an Eighth Amendment claim based on the right to medical care, a prisoner must produce evidence to support findings that (1) he had a serious medical need, and (2) the defendant was aware of this need and was deliberately indifferent to it. See West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978); see also Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir. 1987).
The seriousness of a medical need may be demonstrated by showing that it is “‘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 Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979)). Moreover, “where denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious.” Id. The record is plainly adequate to support this first element of Preacher's claim. Immediately following his injury, it was assessed as one requiring medical attention and diagnostic testing, including an x-ray and a CT scan. The results of these tests, in turn, prompted assessments by outside specialists and further treatment.
The Court must next assess whether Kross acted with a culpable state of mind or, in other words, acted with deliberate indifference when he canceled Preacher's follow-up consultation with the hand specialist and did not personally respond to his requests for pain medications and information. Either actual intent or recklessness will afford an adequate basis to support a finding of deliberate indifference. See Estelle, 429 U.S. at 105. “[Deliberate indifference is a subjective state of mind that can, like any other form of scienter, be proven through circumstantial evidence and witness testimony.” Pearson v. Prison Health Servs., 850 F.3d 528, 535 (3d Cir. 2017). Deliberate indifference has been found where a prison official “knows of a prisoner's need for medical treatment but intentionally refuses to provide it[, ]” or “prevents a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993) (citing Lanzaro, 834 F.2d at 346-47)). The defendant's “acts or omissions, ” however, must have been “sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106; accord White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
In contrast to deliberately indifferent conduct, errors of judgment, even gross errors, are not constitutional violations; liability requires subjective, not objective, culpability. See Farmer, 511 U.S. at 843 n.8. A “plaintiff alleging deliberate indifference must show more than negligence or misdiagnosis of an ailment.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001); Rouse, 182 F.3d at 197; Spruillv. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (“Allegations of medical malpractice are not sufficient to establish a Constitutional violation.”). Thus, “the mere receipt of inadequate medical care does not itself amount to deliberate indifference-the defendant must also act with the requisite state of mind when providing that inadequate care.” Pearson, 850 F.3d at 535.
There is also a “critical distinction” between allegations of a delay or denial of a recognized need for medical care and allegations of inadequate medical treatment. See id. (citation omitted). Because “mere disagreement as to the proper medical treatment does not support a claim of an eighth amendment violation” when medical care is provided, we presume that the treatment of a prisoner is proper absent evidence that it violates professional standards of care. Lanzaro, 834 F.2d at 346; see Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[I]t is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights”)). Moreover, where a plaintiff alleges a delay in receiving medical treatment, the “objective seriousness of the deprivation should . . . be measured by reference to the effect of the delay in treatment.” Baez v. Falor, 2012 WL 4356768, at *44 (W.D. Pa. Sept. 24, 2012) (citing Mantz v. Chain, 239 F.Supp.2d 486, 504 (D.N.J. 2002)); see also Brown v. Cohen, 2012 WL 2120281, at *5 (E.D. Pa. June 12, 2012) (summary judgment granted to prison officials where inmate failed to present evidence establishing that his injuries were exacerbated or caused by a delay in treatment).
It is undisputed that Preacher received medical attention regarding his hand injury including “in-house” physical examinations, an x-ray study, a CT scan, a telemedicine appointment with a hand specialist, an off-site appointment with an orthopedic specialist, a hand splint, and prescription and over-the-counter pain medications. Some of this treatment preceded Kross's term as a medical supervisor, some treatment continued into his term, and further treatment occurred after Kross's departure. Preacher attended his first off-site orthopedic appointment on March 20, 2018, about a month after Kross arrived at SCI-Somerset. In April, Kross canceled his follow-up appointment with the hand specialist. Preacher's medical records noted that the consult was canceled as a “duplicate.” In Kross's affidavit he states, “On or about April 10, 2018, I was advised by staff that the consultation could be discontinued and was told then that the consultation was a ‘duplicate'. I relied on staff who advised that the follow-up appointment could be cancelled as a duplicate.” ECF No. 235-2, p. 2. Kross does not identify the staff member or members upon whose advice he relied when he canceled Preacher's followup consultation with Dr. Palmer. Kross further attests that he “did not intentionally and/or deliberately cancel Mr. Preacher's follow-up orthopedic consult” or “intentionally and/or deliberately cancel Mr. Preacher's follow-up orthopedic consult in order to delay Mr. Preacher's medical treatment.” Id.
Examined in its entirety and in the light most favorable to Preacher, the record is insufficient to support a jury's finding that Kross acted with deliberate indifference to Preacher's medical needs. It was Kross who, on March 28, 2018, ordered and approved Preacher for a follow-up orthopedic consult with Dr. Palmer. There is no evidence in the record to support that Kross canceled this appointment less than two weeks later to delay or deny necessary medical care to Preacher. Whether Kross canceled the appointment based on the advice of other staff or due to his own error, this act alone does not support a finding of deliberate indifference. A finding of deliberate indifference is further belied by the fact that Kross was only one of multiple medical providers involved in Preacher's care. Kross's involvement in Preacher's care ended on June 30, 2018, and treatment decisions or delays after this date cannot be reasonably attributed to Kross. And even if they could, the record includes no support for a finding that the elevenmonth delay in Preacher's follow-up consultation with the hand specialist resulted in his sustaining any further injury or disability. Preacher's reliance on the physical therapy notes dated January 28, 2020 is unavailing. The notes' assessment reference to “carpel tunnel” does not represent a medical diagnosis and, even if it is considered as such, the record includes no evidence that this condition was causally related to any conduct of Kross. The only medical evidence in the record offered to a reasonable degree of medical certainty is the reports of Dr. Dheer and Dr. Rivlin, both of whom opine that the delay in Preacher's follow-up appointment with the hand specialist resulted in no harm to Preacher.
This leaves the issue of whether Kross's failure to respond to requests for medication and information can support a finding of deliberate indifference. At the outset, the Court notes that the record belies a finding that Preacher was denied pain medication. On February 8, 2018, Preacher submitted an Inmate Request to Staff Member addressed to Brian Hyde, CHCA, that included an inquiry about medication for his hand pain. See ECF No. 262-2, p. 2. The response to this request is dated February 9, 2018. It advised Preacher that he previously had been approved for ibuprofen or naproxen and that they were available for purchase in the commissary. See id. See also ECF No. 235-4, p. 109 (noting approval of naproxen 500mg).
While it appears that Preacher requested pain medications stronger than ibuprofen and naproxen, Kross's failure to prescribe such medications is not deliberate indifference in this case. The Court of Appeals for the Third Circuit has recognized that a decision to prescribe nonnarcotic medications, such as Motrin or Tylenol, despite an inmate's request for stronger pain medication is a disagreement concerning treatment and not deliberate indifference. See Allah v. Thomas, 679 Fed.Appx. 216, 219 (3d Cir. 2017) (allegations that medical providers should have prescribed medications stronger than Motrin for inmate's back and leg pain amounted “to ‘mere disagreement as to the proper medical treatment' and were thus insufficient to state a plausible constitutional violation”). See also Hairston v. Lappin, 2013 WL 5701637, at *23 (M.D. Pa. Oct. 18, 2013), aff'd sub nom. Hairston v. Dir. Bureau of Prisons, 563 Fed.Appx. 893 (3d Cir. 2014) (citing Abdul-Wadoodv. Nathan, 91 F.3d 1023, 1024-35 (7th Cir. 1996)) (inmate's disagreement with selection of medicine and therapy for sickle cell anemia falls well short of demonstrating deliberate indifference); Wilson v. Jin, 2016 WL 8345955, at *16 (W.D. Pa. Nov. 14, 2016) (“plaintiff is not constitutionally entitled to the treatment of his choice and it cannot be assumed that stronger pain medication would have successfully relieved his pain”), report and recommendation adopted, 2017 WL 750484 (W.D. Pa. Feb. 24, 2017), aff'd, 698 Fed.Appx. 667 (3d Cir. 2017); Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011)) (prisoner's claim that Motrin medication was insufficient and that stronger pain medication was required for his wrist injuries did not state a deliberate indifference claim); Harris v. Westchester Cnty. Med. Ctr., 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011) (“The failure to provide stronger pain medication does not constitute deliberate indifference.”); Wright v. Genovese, 694 F.Supp.2d 137, 160 (N.D.N.Y. 2010) (“Differences in opinions between a doctor and an inmate patient as to the appropriate pain medication clearly do not support a claim that the doctor was deliberately indifferent to the inmates ‘serious medical needs.'”). While the Third Circuit has also recognized that refusal to increase the strength of pain medication in the face of repeated complaints of severe, persistent pain may under extreme circumstances constitute deliberate indifference, see Tenon v. Dreibelbis, 606 Fed.Appx. 681, 686 (3d Cir. 2015) (per curium), the record in this case falls well short of this threshold.
This conclusion is further reinforced by the fact that multiple doctors continued to treat Preacher's hand pain with over the counter, non-narcotic medications well after Kross no longer had any involvement in Preacher's care. In early 2019, Preacher had his medication adjusted from Naprosyn to Voltaren and, after Voltaren upset Preacher's stomach, to Tylenol. See ECF No. 235-4, p.125. On February 7, 2019, Dr. Leininger of Allegheny Orthopedics continued Preacher on ibuprofen. See ECF No. 235-6, pp. 4-5
Furthermore, two of the six medical inquires Preacher submitted during Kross's employment at SCI-Somerset were made prior to Preacher's first off-site visit, no inquiries were addressed to Kross by name, and only one was addressed to “Medical Director” after his first off-site appointment. Although Kross did not respond to any of the requests, the record includes no evidence that he was aware of them or responsible for doing so. Given the absence of evidence to support a finding that Kross intentionally neglected Preacher's medical needs, Kross is entitled to judgment in his favor as a matter of law.
VI. Conclusion
For the foregoing reasons, it is respectfully recommended that Kross's Motion for Summary Judgment (ECF No. 233) be GRANTED.
VII. Notice to the Parties Concerning Objections
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, the Parties have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. The failure to file timely objections will constitute a waiver of their appellate rights.