United States District Court, M.D. Pennsylvania
September 22, 2005.
FRANCISCO GONZALEZ, Plaintiff
JOHN NASH, ET AL., Defendants.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER Background
This pro se civil rights action was initiated by Francisco
Gonzalez, an inmate presently confined at the Schuylkill Federal
Correctional Institution, Minersville, Pennsylvania
("FCI-Schuylkill"). Service of the original complaint was
On August 26, 2004, Plaintiff filed a proposed amended
complaint which named two individuals as Additional Defendants.
See Doc. 22. By Order dated November 30, 2004, the amended
complaint was deemed a supplemental complaint.
Named as Defendants are FCI-Schuylkill and the following prison
employees: Warden John Nash; Associate Warden Deneen Sweet;
Recreation Supervisor Fred Thompson; Teacher Keith Maurer; Health
Services Administrators Charleston Iwuagwu and Edgardo Ong;
Physician Assistants ("PA") David Steffan and Kenton Hubble;
Correctional Counselors Kranzel and Smith; and Doctor Russell C. Hendershot.
Plaintiff states that on the afternoon of April 7, 2001, while
jogging on the prison track, he "tripped in a small ditch/pit in
the track." Doc. 1, Attachment #1, p. 1. As a result of this
fall, Gonzalez purportedly injured his left knee and twisted his
ankle. Upon being apprised of Plaintiff's injury, Officer Maurer
contacted the prison's Medical Department and was told to "send
me over." Id. After arriving at the Medical Department,
Plaintiff was examined by PA Hubble who allegedly concluded that
he had suffered a minor sprain. Before being sent back to his
housing unit, Gonzalez was given an ice pack and the use of a
By the next day, Plaintiff's condition had purportedly worsened
so he returned to the medical department and filled out a request
form asking to be seen by a doctor. Throughout the following
month, Gonzalez contends that the injury to his left knee
continued to deteriorate requiring him to make various return
visits to the medical department. During those visits. Plaintiff
was given pain medication. Finally, on May 2, 2001, Gonzalez had
an appointment with Doctor Ross, who recommended the taking of an
Plaintiff contends that due to the Defendants' negligent
diagnosis and inadequate treatment, he developed an infection
which required him to undergo surgery. After a prolonged delay,
Gonzalez underwent surgery on September 12, 2002. During this procedure, 25% of Plaintiff's leg muscle had to be removed due to
the infection. His original complaint additionally contends that
Plaintiff was not provided with needed rehabilitation following
the operation. Gonzalez's final assertion is that Defendant
Kranzel, who is described as being racially biased, retaliated
against him by interfering with his attempts to obtain relief via
the prison administrative remedy procedure. He concludes that due
to Defendants' negligence he has suffered painful, permanent
injury to his leg. His original complaint seeks compensatory
In his supplemental complaint (Doc. 22), Plaintiff names Health
Care Administrator Ong and Medical Director Doctor Hendershot as
Additional Defendants. Plaintiff states that on April 23, 2003,
Doctor Michael Borofsky, a rheumatologist, diagnosed him as
having monoarthritis, prescribed physical therapy and recommended
that he undergo MRI testing. Gonzalez indicates that Defendants
failed to comply with Doctor Borofsky's recommended course of
treatment. He further indicates that he has not been provided
with adequate medical care because he speaks only Spanish.
Presently pending is the Defendants' motion requesting entry of
summary judgment. See Doc. 35. The motion has been briefed and
is ripe for disposition.
Defendants argue that they are entitled to entry of summary judgement in their favor on the grounds that: (1) the claims for
monetary damages against Defendants in their official capacities
are barred by the Eleventh Amendment; (2) FCI-Schuylkill is not a
properly named Defendant; (3) Gonzalez failed to exhaust his
available administrative remedies with respect to his claims
regarding an unsafe track at FCI-Schuylkill and being denied
grievance forms by Defendant Kranzel; (4) all claims predating
March 22, 2002 are time barred; (5) there are no assertions of
personal involvement in constitutional misconduct raised against
Defendants Nash, Sweet, Maurer, Iwuagwu, Hubble, Steffan, Smith
Ong, or Hendershot and (6) Defendants are entitled to qualified
Standard of Review
Summary judgment is appropriate if the "pleadings, depositions,
answers to interrogatories, admissions on file, together with
affidavits, if any, 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).
[T]he 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 all other facts immaterial. The moving party
is "entitled to a judgment as a matter of law"
because the nonmoving party has failed to make a
sufficient showing on an essential element of her case with respect to which
she has the burden of proof. "[T]he standard [for
granting summary judgment] mirrors the standard for a
directed verdict under Federal Rule of Civil
Procedure 50(a). . . ."
Celotex Corp. v. Catrett, 477 U.S. 317
, 322-23, (1986).
The moving party bears the initial responsibility of stating
the basis for its motion and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. The moving party can discharge that burden by
"`showing' . . . that there is an absence of evidence to support
the nonmoving party's case." Celotex, supra,
106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden,
the nonmoving party must present "affirmative evidence" to defeat
the motion, consisting of verified or documented materials.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Issues of fact are "genuine only if a reasonable jury,
considering the evidence presented could find for the nonmoving
party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir.
1988). Only disputes over facts that might affect the outcome of
the suit will preclude the entry of summary judgment. Id. In
evaluating a motion for summary judgment, the entire record must
be examined in the light most favorable to the nonmoving party.
The initial argument raised by Defendants is that the portion
of Gonzalez's action which seeks monetary relief against them in their official capacities must be dismissed under the
Eleventh Amendment. The Eleventh Amendment provides:
The judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by citizens of another state, or by citizens
or subjects of any foreign state.
"[C]laims for money damages against the prison officials in
their official capacity are claims for retroactive relief and
hence are barred by the Eleventh Amendment." Doe v. Wagginton,
21 F.3d 733
(6th Cir. 1994) (citing Edelman v. Jordan,
415 U.S. 651
, 663 (1974). The Court of Appeals for the Third Circuit in
Laskaris v. Thornburgh, 661 F.2d 23
, 26 (3d Cir. 1981),
similarly concluded that an "action in federal court for damages
or back pay against a state official acting in his official
capacity is barred because such retrospective relief necessarily
depletes the state treasury." Pursuant to the above discussion,
Plaintiff's claims to the extent that they seek monetary
compensation from the Defendants in their official capacities are
clearly barred by the Eleventh Amendment and will be dismissed.
The United States and other governmental entities are not
persons and therefore not proper defendants in a federal civil
rights action. Accardi v. United States, 435 F. 2d 1239, 1241
(3d Cir. 1970); see also Hindes v. F.D.I.C., 137 F.3d 148,
159 (3d Cir. 1998).
Similarly, a prison or correctional facility is not a person
for purposes of a civil rights claim. See Fischer v. Cahill,
474 F.2d 991, 992 (3d Cir. 1973); Philogene v. Adams County
Prison, Civ. No. 97-0043, slip op. at p. 4 (M.D. Pa. Jan. 30,
1997) (Rambo, C.J.); Sponsler v. Berks County Prison, Civ. A.
95-1136, 1995 WL 92370, at *1 (E.D. Pa. Feb. 28, 1995). Pursuant
to the above standards, FCI-Schuylkill is clearly not a person
and may not be sued under Bivens. See Thompkins v. Doe, No.
99-3941, slip op. at 3 (3d Cir. March 16, 2000). Consequently,
summary judgment will be entered in favor of FCI-Schuylkill.
Statue of Limitations
Defendants next argue that any claim predating March 22, 2002
is barred by Pennsylvania's applicable statute of limitations. In
reviewing the applicability of the statute of limitations to an
action filed pursuant to § 1983, a federal court must apply the
appropriate state statute of limitations which governs personal
injury actions. Wilson v. Garcia, 471 U.S. 261, 276 (1985);
Cito v. Bridgewater Twp. Police Dep't, 892 F.2d 23, 25 (3d Cir.
The United States Supreme Court clarified its decision in
Wilson when it held that "courts considering § 1983 claims
should borrow the general or residual [state] statute for
personal injury actions." Owens v. Okure, 488 U.S. 235, 250 (1989). Pennsylvania's applicable personal injury statute of
limitations is two years. See 42 Pa. Cons. Stat. Ann. § 5524(7)
(Purdon Supp. 1996); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d
Cir. 1993); Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d
Cir.), cert. denied, 474 U.S. 950 (1985). Finally, the statute
of limitations "begins to run from the time when the plaintiff
knows or has reason to know of the injury which is the basis of
the Section 1983 action." Gentry v. Resolution Trust Corp.,
937 F.2d 899, 919 (3d Cir. 1991) (citations omitted).
Defendants correctly note that Gonzalez signed his original
complaint on March 22, 2004. In Houston v. Lack, 487 U.S. 266
(1988), the United States Supreme Court established that a
prisoner's complaint is deemed filed at the time it was given to
prison officials for mailing to the Court. This "mailbox rule"
resulted from the Court's concern that prisoners had no choice
but to rely upon prison authorities for the filing of their legal
papers. The Court in Houston also noted that if a question
regarding timeliness of a filing date arises, a prisoner would
not likely be able to establish that prison staff were
responsible for any delays in the filing of such papers. See
id. at 271. Pursuant to the standards announced in Houston,
Gonzalez's complaint will be deemed filed as of March 22, 2004.
The question of when a cause of action accrues is a question of
federal law. Smith v. Wambaugh, 887 F. Supp. 752, 755 (M.D. Pa.
1995). A § 1983 claim accrues when the facts which support the claim reasonably should have become known to
Gonzalez's allegations of a long term deliberate indifference
to his medical needs indicate a continuous or ongoing violation
of his rights. If a defendant's conduct is part of a continuing
practice, an action is timely so long as the last act evidencing
the continuing pattern falls within the limitations period.
Brenner v. Local 514, 927 F. 2d 1283, 1295 (3d Cir. 1991).
Plaintiff's complaint states that he was injured on April 7,
2001. The next day he requested to be seen by a doctor. He was
not seen by a doctor until May 2, 2001. It is unclear from the
complaint when surgery was recommended, but it was performed on
September 12, 2002.
According to the Defendants, Gonzalez was treated for pain in
his right foot and left heel on March 26, 2001. He was seen again
for his foot problem on April 20, 2001. On May 2, 2001 an
orthopedist examined his right foot and left heel and diagnosed
him with questionable metatarsalgia and possible Kohler's
disease. He was also told that a bone scan x-ray would be
performed if there was no improvement. Defendants maintain that
Plaintiff did not raise any complaint regarding his left knee
until June 22, 2001.
In his opposing brief, Gonzalez acknowledges that the first
time he complained about his left knee was "indeed on June 15, 2001 or sometime after the original fall." Doc. 44, p. 5.
As previously noted, this action is deemed filed as of March
22, 2004. Clearly there are material facts in dispute as to when
the Plaintiff's claim accrued. However, it is apparent to this
Court that the Plaintiff's allegations assert that there was a
continuing pattern of deliberate indifference. Thus, under the
standards set forth in Brenner, the Court will not grant
summary judgment on the basis of Defendants' statute of
The summary judgment motion next argues that there are no
assertions that Defendants Nash, Sweet, Thompson, Mauer, Iwuagwu,
Hubble, Steffan, Smith, Ong or Hendershot had personal
involvement in any acts of constitutional misconduct.
A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements: (1) that the conduct
complained of was committed by a person acting under color of
law, and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States. Groman v. Township of Manalapan, 47 F.3d 628,
638 (3d Cir. 1995); Shaw by Strain v. Strackhouse,
920 F.2d 1135, 1141-42 (3d Cir. 1990).
Civil rights claims cannot be premised on a theory of
respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988). Rather, each named defendant must be shown,
via the complaint's allegations, to have been personally involved in
the events or occurrences which underlie a claim. See Rizzo v.
Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison
Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in Rode:
A defendant in a civil rights action must have
personal involvement in the alleged wrongs. . . .
[P]ersonal involvement can be shown through
allegations of personal direction or of actual
knowledge and acquiescence. Allegations of
participation or actual knowledge and acquiescence,
however, must be made with appropriate particularity.
Rode, 845 F.2d at 1207.
Plaintiff's original complaint indicates that PA Hubble
provided the initial treatment following his alleged April 7,
2001 injury. It is also indicated that Hubble underestimated the
extent of Gonzalez's injury. The original complaint also
indicates that Defendants Thompson and Maurer were responsible
for the maintenance of the running track. Plaintiff's
supplemental complaint clearly identifies Defendants Ong and
Hendershot as members of the prison's Medical Department and
asserts that those two defendants committed deliberate
indifference through their failure to implement a course of
treatment recommended by Doctor Borofsky on April 23, 2003. This
Court is satisfied that the above assertions sufficiently allege
personal involvement in constitutional misconduct by Doctor
Hendershot, Health Care Administrator Ong, PA Hubble, and
Thompson and Maurer. However, a review of both the original and supplemental
complaints establishes that there are no factual assertions that
Defendants Nash, Sweet, Iwuagwu, Steffan and Smith had any
personal involvement or acquiescence in the alleged violations of
Plaintiff's constitutional rights. It appears that Gonzalez is
attempting to establish liability against those officials solely
on the basis of the supervisory positions which they occupy
within the prison. However, such assertions are insufficient for
establishing liability under Bivens.
Other than the fact that those five (5) officials are named as
Defendants, there are no assertions whatsoever regarding them
made by the Plaintiff. Consequently under the standards announced
in Rode, Defendants Nash, Sweet, Iwuagwu, Steffan and Smith are
entitled to entry of summary judgment.
Defendants assert that Plaintiff failed to exhaust his
available administrative remedies with respect to his claims
regarding interference by Defendant Kranzel with his attempts to
obtain administrative relief and his contention of an unsafe
running track at FCI-Schuylkill. Furthermore, based on the
non-exhaustion of those claims, Gonzalez's entire action should
be dismissed under the total exhaustion rule.
42 U.S.C. § 1997e(a) provides as follows:
No action shall be brought with respect to prison conditions under Section 1979 of the Revised
Statutes of the United States (42 U.S.C. 1983), or
any other federal law, by a prisoner confined in any
jail, prison, or other correctional facility until
such administrative remedies as are available are
Section 1997e(a) requires administrative exhaustion "irrespective
of the forms of relief sought and offered through administrative
avenues." Porter v. Nussle, 122 S.Ct. 983
, 992 (2002); Booth
v. Churner, 532 U.S. 731
, 741 n. 6 (2001). Claims for monetary
relief are not excused from the exhaustion requirement. Nyhuis
v. Reno, 204 F.3d 65
, 74 (3d Cir. 2000). Dismissal of an
inmate's claim is appropriate when a prisoner has failed to
exhaust his available administrative remedies before bringing a
civil rights action. Ahmed v. Sromovski, 103 F. Supp. 2d 838
843 (E.D. Pa. 2000). "[E]xhaustion must occur prior to filing
suit, not while the suit is pending." Tribe v. Harvey,
248 F.3d 1152, 2000 WL 167468, *2 (6th Cir. 2000) (citing Freeman v.
Francis, 196 F.3d 641
, 645 (6th Cir. 1999)).
An inmate's failure to comply with the administrative
exhaustion requirement constitutes an affirmative defense. See
e.g., Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 2000),
cert. denied, 532 U.S. 1065 (2001); Jenkins v. Haubert,
179 F.3d 19, 29 (2d Cir. 1999); Robinson v. Dalton, 107 F.3d 1018,
1021 (3d Cir. 1997) (failure to exhaust administrative remedies
is an affirmative defense in a Title VII case). Consequently, a
prisoner does not have to allege in his complaint that he has exhausted administrative remedies. Ray v. Kertes, 285 F.3d 287
(3d Cir. 2002). Rather, it is the burden of a defendant asserting
the defense to plead and prove it. Id.; Williams v. Runyon,
130 F.3d 568, 573 (3d Cir. 1997); Charpentier v. Godsil,
937 F.2d 859 (3d Cir. 1991); Fed.R.Civ.P. 8(c).
The BOP has established a multi-tier Administrative Remedy
Program whereby a federal prisoner may seek review of any aspect
of his imprisonment.*fn1 See 28 C.F.R. §§ 542.10-542.19
(1998). "This program applies to all inmates confined in
institutions operated by the Bureau of Prisons, to inmates
designated to Community Corrections Centers (CCCs) under Bureau
of Prisons' responsibility, and to former inmates for issues that
arose during their confinement but does not apply to inmates
confined in other non-federal facilities." Id. at § 542.10.
The program provides that, with certain exceptions, ". . . an
inmate shall first present an issue of concern informally to
staff, and staff shall attempt to informally resolve the issue
before an inmate submits a Request For Administrative
Remedy."*fn2 Id. at § 542.13(a). Next, if informal
resolution fails, the inmate must submit "a formal written
Administrative Remedy Request, on the appropriate form (BP-9),"
within 20 "calendar days following the date on which the basis
for the Request occurred." Id. at § 542.14(a). If a valid
reason for delay is given, an extension of the filing time may be
granted. Id. at 542.14(b). The Warden has 20 calendar days from
the date the Request or Appeal is filed in which to respond.
Id. at § 542.18.
If not satisfied with the Warden's response, an inmate may
appeal on the appropriate form (BP-10) to the Regional Director
within 20 calendar days of the date the Warden signed the
response. Id. at § 542.15. Finally, if the inmate is
dissatisfied with the Regional Director's response, that decision
may then be appealed on the appropriate form (BP-11) to the General Counsel within 30 calendar days from the date the
Regional Director signed the response. Id. "When the inmate
demonstrates a valid reason for delay, these time limits may be
extended." Id. The Regional Director has 30 calendar days to
respond and the General Counsel has 40 calendar days in which to
respond. Id. at § 542.18.
The response time provided for at each level may be extended in
writing "once by 20 days at the institution level, 30 days at the
regional level, or 20 days at the Central Office level." Id.
Additionally, "[i]f the inmate does not receive a response within
the time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that level."
It is undisputed that Plaintiff fully exhausted his
administrative appeals regarding his medical treatment related
claims. See Doc. 45, p. 19. However, Defendants assert that
Plaintiff's claims relating to an unsafe running track at
FCI-Schuylkill and alleged retaliatory and discriminatory
interference by Defendant Kranzel were not exhausted.
In support of their argument, Defendants have submitted an
undisputed declaration under penalty of perjury by FCI-Allenwood
Attorney-Advisor John Wallace. See Doc. 42, Exhibit 3. Wallace
states that in the three years or so prior to February, 2005,
Plaintiff filed sixteen (16) administrative grievances regarding
his medical treatment and the calculation of his good time credits. None of those grievances concerned the condition of the
running track or the purported interference by Defendant Kranzel.
As previously noted, Plaintiff's jogging related injury
occurred on April 7, 2001. According to exhibits submitted by
Plaintiff, the alleged interference by Kranzel occurred in
August-September, 2003. Despite Plaintiff's argument that
Defendant Kranzel interfered with his ability to obtain
administrative relief, the undisputed record establishes that
Gonzalez initiated numerous administrative grievances during the
same periods of time that he was allegedly injured on the running
track and subjected to interference by Kranzel. Specifically,
during the months following Plaintiff's April, 2001 jogging
accident, he filed grievances concerning his medical care in
August, October and November, 2001. Two other medically related
grievances were submitted in 2002, and six (6) similar grievances
were filed in 2003. Plaintiff filed five grievances in 2004. Ten
(10) of the above listed grievances were filed during or
following the period of time in which Kranzel allegedly denied
the Plaintiff access to the administrative remedy procedure.
Consequently, the undisputed record clearly establishes that
Plaintiff failed to exhaust his available administrative remedies
with respect to his unsafe running track and interference by
Kranzel assertions. Since Gonzalez has also not set a valid reason as to why he should be excused from the
exhaustion requirement, entry of summary judgment on the basis of
non-exhaustion with respect to said claims is appropriate.
However, the Defendants' accompanying request that the
non-exhaustion of administrative remedies with respect to those
allegations also warrants dismissal of Gonzalez's unrelated
medical claims is denied.
The moving Defendants next argue that summary judgment is
appropriate because the undisputed facts establish that there was
no deliberate indifference to any serious medical need of the
Plaintiff. Rather, they contend that this is simply a case where
a prisoner is disagreeing with the type of medication which he is
According to the Defendants, prior to his FCI-Schuylkill
confinement, Plaintiff sought medical attention on March 16, 2000
for a running related injury to his left knee. He arrived at
FCI-Schuylkill on February 15, 2001. On March 26, 2001, Gonzalez
complained of pain in his right foot and left heel. He was placed
on anti-inflammatory medication and referred to an orthopedist.
Defendants contend that there are no medical records indicating
that Plaintiff injured his left knee in a running accident on
April 7, 2001.
On May 2, 2001, Plaintiff was seen by an orthopedist who
diagnosed with questionable metarsalgia and possible Kohler's disease. A bone scan x-ray was recommended if there was no
improvement. He underwent follow-up treatment for additional
complaints of right foot pain. On June 22, 2001, Gonzalez
allegedly for the first time at FCI-Schuylkill, complained of
left knee pain and was treated for swelling behind his left knee.
He was diagnosed as suffering from a baker's cyst of the knee. An
EKG and x-ray were ordered. Four (4) days later the x-ray was
taken and the EKG was performed the next day.
Plaintiff was evaluated by an orthopedic surgeon on August 3,
2001. This evaluation ruled out a torn meniscus and recommended
an MRI. On September 14, 2001, an MRI was ordered for Plaintiff's
left knee. The MRI was performed on November 19, 2001.
On December 7, 2001, a physician referred Plaintiff to an
orthopedic specialist after noting MCL tender, MRI PLL partial
tear, MCL eclusion and degenerated meniposis. Arthroscopic
surgery was recommended on March 22, 2002. Plaintiff was given a
knee brace to restrict knee movement on April 18, 2002. He was
diagnosed with a deranged knee and a lumbo-sacral sprain on April
30, 2002. Gonzalez was diagnosed with arthritis of the knee and
prescribed medication on May 12, 2002. He was next diagnosed with
a probable tear of median meniscus and posterior cruciate
ligament on June 3, 2002. Three (3) days later he was examined by
an orthopedic surgeon. He underwent arthroscopic surgery on
September 12, 2002. The diagnosis following surgery was arthritis with no mechanical problem. Gonzalez was thereafter
treated on various dates for complaints of left knee pain.
He was referred to a rheumatologist on November 19, 2002.
Plaintiff was given a steroid injection on Aril 18, 2003. On
April 23, 2003, Plaintiff had a rheumatology consultation. He was
diagnosed with monoarthitis and physical therapy was recommended.
Doctor Hendershot informed the Plaintiff on April 24, 2003 that
there was no need for formal physical therapy, however, he was
referred for a physical therapy evaluation. A knee strap was
prescribed on March 9, 2004. Beginning on August 16, 2004 (after
the initiation of this action), Plaintiff began complaining of
pain in his right knee.
Pursuant to the Supreme Court's decision in Estelle v.
Gamble, 429 U.S. 97 (1976), an inmate plaintiff must demonstrate
that prison officials have breached the standard of medical
treatment to which he was entitled. The government has an
"obligation to provide medical care for those whom it is
punishing by incarceration." Id. at 103.
However, a constitutional violation does not arise unless there
is "deliberate indifference to serious medical needs of
prisoners" which constitutes "unnecessary and wanton infliction
of pain." Id. at 104 (citation omitted). The Court of Appeals
for the Third Circuit has held that not every injury or illness
enjoys constitutional protection; only serious medical needs are actionable. Colburn v. Upper Darby Township, 946 F.2d 1017,
1023 (3d Cir. 1991); West v. Keve, 571 F.2d 158, 161 (3d Cir.
1978). Furthermore, a complaint that a physician or a medical
department "has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment [as] medical malpractice
does not become a constitutional violation merely because the
victim is a prisoner." Estelle, 429 U.S. at 106.
A later decision by the Supreme Court addressed the issue of
what standard should be applied in determining deliberate
indifference in Eighth Amendment cases. The Court established
that the proper analysis is whether a prison official "acted or
failed to act despite his knowledge of a substantial risk of
serious harm." Farmer v. Brennan, 511 U.S. 825, 841 (1994). The
Court of Appeals for the Third Circuit in Durmer v. O'Carroll,
991 F.2d 64, 69 (3d Cir. 1993), added that a non-physician
defendant cannot be considered deliberately indifferent for
failing to respond to an inmate's medical complaints when he is
already receiving treatment by the prison's medical staff.
However, where a failure or delay in providing prescribed
treatment is deliberate and motivated by non-medical factors, a
constitutional claim may be presented. See id.
Under Farmer, deliberate indifference is a subjective
standard in that the prison official must actually have known or been aware of the excessive risk to inmate safety. Beers-Capitol
v. Whetzel, 256 F. 3d 120, 125 (3d Cir. 2001). This requirement
of actual knowledge means that "the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference." Farmer, 511 U.S. at 837. In Beers-Capitol it
was also recognized that a defendant's knowledge of a risk can be
proved indirectly by circumstantial evidence.
Based on the record to date, there are clearly material facts
in dispute as to whether delays in implementing recommended
medical testing and treatment constituted deliberate indifference
by the remaining Defendants.
According to the record, arthroscopic surgery was recommended
on March 22, 2002, but not performed until September 12, 2002.
The diagnosis following that surgery concluded that there was no
mechanical problem with Plaintiff's left knee but that he was
suffering from arthritis. The diagnosis recommended that the
prisoner be provided with physical therapy. Additional medical
care was subsequently provided and there is evidence that
Gonzalez missed two follow-up appointments with the orthopedic
surgeon. Plaintiff made a complaint of not being provided with
physical therapy during November, 2002. On December 25, 2002,
Gonzalez fell and again injured his left knee.
On April 24, 2003, Doctor Hendershot determined that there was no need for formal physical therapy. A subsequent physical
therapy evaluation also did not recommend physical therapy. The
record indicates that the physical therapy recommendation made
following Gonzalez's surgery was not followed. However, there was
a difference in opinion by trained medical personnel as to
whether physical therapy was needed. There has also been no
showing by the Plaintiff that the lack of physical therapy has
caused him any actual injury.
Based on this Court's review of the undisputed record, the
Plaintiff's allegations sound in negligence. He was clearly
provided with regular medical care including arthroscopic
surgery, MRI testing, x-ray and EKG testing, as well as
consultations with both an orthopedic surgeon and a
rheumatologist. He also underwent a physical therapy evaluation.
The failure of Gonzalez to be provided with physical therapy due
to a disagreement between physicians is a question of negligent
medical care and does not set forth a viable claim of deliberate
indifference under the standards announced in Estelle.
Defendants are also entitled to entry of summary judgment with
respect to the Plaintiff's remaining claim.
Defendants also claim entitlement to qualified immunity.
Qualified immunity is an affirmative defense which must be
pleaded by the defendant official. Id.; Verney v.
Pennsylvania Turnpike Comm'n, 881 F. Supp. 145, 149 (M.D. Pa. 1995). In
Harlow v. Fitzgerald, 457 U.S. 800 (1982), the United States
Supreme Court held "that government officials performing
discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Id. at 818; Sherwood v.
Mulvihill, 113 F.3d 396, 398-99 (3d Cir. 1997); Showers v.
Spangler, 957 F. Supp. 584, 589 (M.D. Pa. 1997). It has also
been held that "qualified immunity is coextensive for suits
brought against state officials under 42 U.S.C. § 1983 (1982),
and for suits brought directly under the Constitution against
federal officials." People of Three Mile Island v. Nuclear
Regulatory Commissioners, 747 F.2d 139, 144 n. 9 (3d Cir. 1984)
(citing Butz v. Economou, 438 U.S. 478, 504 (1978)).
The United States Supreme Court in Saucier v. Katz,
533 U.S. 194 (2001), established a two part test for analyzing qualified
immunity claims. See also Curley v. Klem, 298 F.3d 271 (3d
Cir. 2002); Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002). The
initial inquiry in a qualified immunity examination is whether
"the facts taken in the light most favorable to the plaintiff
show a constitutional violation." Bennett, 274 F.3d at 136.
Based on the conclusions set forth earlier herein, this Court
has concluded that Plaintiff's allegations do not set forth a viable Bivens claim. Consequently, the first prong of
Saucier has not been satisfied. Further discussion of the
Defendants' qualified immunity argument is not required. An
appropriate Order will enter.
AND NOW, THIS 22nd DAY OF SEPTEMBER, 2005, in accordance
with the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendants' motion for summary judgment (Doc. 35)
2. The claims against the Defendants in their
official capacities are barred by the Eleventh
3. FCI-Schuylkill is not a properly named defendant
and therefore entitled to entry of summary judgment.
4. Since there are no allegations of personal
involvement set forth against them, Defendants Nash,
Sweet, Iwuagu, Steffan and Smith are entitled to
entry of summary judgment.
5. Plaintiff's claims that Defendant Kranzel denied
him access to the administrative remedy procedure and
that Defendants Thompson and Maurer failed to
maintain the prison's running track are dismissed for
failure to exhaust administrative remedies. 6. Summary judgment is also granted in favor of the
remaining Defendants with respect to Plaintiff's
remaining claims of deliberate indifference to his
7. The Clerk of Court is directed to close the case.
8. Disposition of this action does not preclude
Plaintiff from pursuing a tort action regarding his
claim of negligent medical care, if he so chooses.
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