United States District Court, M.D. Pennsylvania
October 5, 2005.
SHAWN C. PALMER, Plaintiff,
DAUPHIN COUNTY PRISON, et al., Defendants.
The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Plaintiff, Shawn Palmer, an inmate at the State Correctional
Institution at Coal Township, Pennsylvania, commenced this pro
se action with a civil rights complaint filed pursuant to the
provisions of 42 U.S.C. § 1983. Named as Defendants are Dauphin
County Prison ("DCP") in Harrisburg, Pennsylvania, as well as the
following DCP officials: (1) Warden Dominick DeRose; (2) Deputy
Wardens James M. DeWees and Elizabeth Nichols; (3) Treatment
Evaluator Michele Jiszenka; (4) Head Nurse Tom Toolen;*fn1
and (5) Dr. Jane Doe. Plaintiff alleges mistreatment by
Defendants while he was previously incarcerated at DCP, and he
claims "denial of adequate medical treatment and care, cruel and unusual punishment, deliberate
indifference, wanton and unnecessary infliction of emotional
distress, gross negligence, mental anguish, denied access to the
courts, professional incompetence, subordinate [sic], deprivation
of character, due process and equal protection of the law." (Doc.
1 at 2.) Thereafter, Plaintiff filed a supplemental complaint
(Doc. 42) alleging further acts of mistreatment by Defendants
during a short return to DCP. Plaintiff seeks declaratory and
injunctive relief, compensatory and punitive damages, and
Presently before the Court is: (a) the "Jane Doe"*fn2
Defendant's motion to dismiss or, in the alternative, for summary
judgment (Doc. 19); (b) Tom Toolan's motion to dismiss or, in the
alternative, for summary judgment (Doc. 34); and (c) the motion
for summary judgment (Doc. 15) filed by Dominick DeRose, James
DeWees, Michelle Jeszenka and Deputy Nichols ("corrections
Defendants"). The motions have been briefed, and they are ripe
for disposition. For the following reasons, the motions will be
granted, and the complaint will be dismissed as it relates to DCP
under 28 U.S.C. § 1915. II. Background
Plaintiff challenges the sufficiency of his medical care he
received while incarcerated at DCP from April 9, 2003 to June 26,
2003 (Doc. 1; Doc. 17, Ex. A) as well as from December 15, 2004
to December 22, 2004 (Doc. 42 at 2-3.) During an intake medical
screening at DCP on April 9, 2003, Plaintiff noted left leg
weakness, precipitated by a gunshot wound he suffered in 2000,
for which Plaintiff's private physician prescribed a metal cane
to assist in ambulation. (Doc. 17, Ex. B at 1.; Ex. C).
Plaintiff's medical history was conveyed by telephone to Dr.
Jackson, and the doctor ordered: (a) bottom bunk/tier assignment
for thirty (30) days; (b) use of one (1) crutch for thirty (30)
days; and (c) referral to a physician's assistant for evaluation.
Subsequently, Plaintiff was relocated within the prison several
times,*fn3 and his crutch was taken from him by nurse Toolan
after Plaintiff was observed walking without his crutch on May 8
and May 9, 2003. He claims that these actions were
retaliatory*fn4 (Doc. 1 at ¶¶ 14-15), for assistance he
rendered to another inmate. On May 14, 2003, after his crutch had
been taken, Plaintiff slipped and fell while exiting the shower. (Id. ¶ 17.) Plaintiff was seen by medical
personnel. (Id.) He was prescribed Motrin for his reported
head, back, neck and jaw pain (Id. ¶ 18) and his crutch was
returned (Id. ¶ 22.) Although Plaintiff requested x-rays, none
were taken. (Id. ¶ 24.)
For the duration of his 2003 incarceration at DCP, Plaintiff
made repeated complaints of head, back, and jaw pain, and he
filed no fewer than twenty-seven (27) inmate request forms
related to his malady. (Id., Ex. D). The record indicates that
Plaintiff was seen by medical personnel no fewer than twenty-four
(24) times in the period of April 9, 2003 through June 26, 2003,
yet Plaintiff continued to challenge the sufficiency of
treatment. (Id., Exs. N and O). This action ensued.
III. Legal Standard
The Jane Doe Defendant, now identified as Dr. MaryBeth Jackson,
and Tom Toolan have filed motions to dismiss or, in the
alternative, for summary judgment (Docs. 19 and 34). The motions
to dismiss are based upon a contention that Plaintiff's complaint
fails to state a claim upon which relief can be granted, as
provided by Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Rule 12(b) provides in part as follows:
If, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim
upon which relief can be granted, matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule
56. . . .
Fed.R.Civ.P. 12(b). The motions both incorporate by reference
the statement of material facts not in dispute (Doc. 16) and the
exhibits (Doc. 17) submitted by the corrections Defendants in
support of their motion for summary judgment (See Doc. 20 at
2-3; Doc. 36 at 2-3). Since the court will not exclude the
supplemental materials, and since Plaintiff has responded to the
motions for summary judgment, the motions to dismiss will be
construed as motions for summary judgment under Rule 12(b).
Accordingly, with the exception of DCP, all of the Defendants
have filed motions for summary judgment. Under Federal Rule of
Civil Procedure 56(c), summary judgment may be entered only "if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the 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). The party moving for summary judgment has
the burden of proving that there is no genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Additionally, on summary judgment, the inferences to be drawn
from the underlying facts must be viewed in the light most
favorable to the non-moving party. Mraz v. County of Lehigh,
862 F. Supp. 1344, 1347 (E.D. Pa. 1994). Moreover, Rule 56 provides that the adverse party may not
simply sit back and rest on the allegations contained in the
pleadings. Rather, the adverse party must show by affidavits,
pleadings, depositions, answers to interrogatories, and
admissions on file that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e). When addressing a summary judgment motion, our
inquiry focuses on "whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is
so one-sided that one party must prevail as a matter of law."
Anderson, 477 U.S. at 251-52 (emphasis added).
IV. Deliberate Indifference*fn5
To state a viable § 1983 claim, Plaintiff must establish (1)
that the alleged wrongful conduct was committed by a person
acting under color of state law, and (2) that the conduct
deprived the plaintiff of a right, privilege, or immunity secured
by the Constitution or laws of the United States. Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000). Both elements must be
present to sustain a § 1983 action, and Plaintiff fails to
satisfy the second. The Constitutional issue implicated in this case is the Eighth
Amendment requirement that prison officials provide adequate
medical care to inmates, and make reasonable efforts to assure
prisoner health and safety. Farmer v. Brennan, 511 U.S. 825,
832 (1994). That duty is violated when prison officials know of
and disregard an excessive risk to inmate health or safety. Id.
at 837. Not every illness or injury enjoys constitutional
protection; only serious medical needs or injuries will give rise
to constitutional scrutiny. Gerber v. Sweeney,
292 F.Supp.2d 700, 706 (E.D. Pa. 2003). A serious medical need is one that has
been diagnosed by a physician as requiring treatment, or one that
is so obvious that a layperson would recognize the need for a
doctor's attention. Monmouth County Correctional Institutional
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987); McCabe
Prison Health Services, 117 F.Supp. 2d 443, 450 (E.D. Pa. 1997).
In Estelle v. Gamble, 429 U.S. 97 (1976), as here, the
prisoner/plaintiff claimed that inadequate medical treatment
violated his Eighth Amendment protection from cruel and unusual
punishment. The Supreme Court acknowledged that the government
has an obligation to provide medical care to its prisoners, but
held that a constitutional violation does not occur unless the
Plaintiff can show Defendants had a "deliberate indifference to
serious medical needs of prisoners" which constitutes
"unnecessary and wanton infliction of pain." Id. at 104
(citation omitted). Plaintiff fails to establish that any of the Defendants were deliberately
indifferent to serious medical needs.
A. Dr. Jackson and Tom Toolan
Plaintiff concedes that he received medical care for his pain,
but he argues that Dr. Jackson and Tom Toolan ("medical
Defendants") were deliberately indifferent because the prescribed
pain medication did not work. (Doc. 1 at ¶ 16.) ("on May 13,
2003, Plaintiff informed prison medical personnel that . . . the
[T]ylenol and [M]otrin are not working.") Assuming that
Plaintiff's leg, neck, back, head, and jaw pain constituted a
serious medical condition, Plaintiff fails to allege any facts
that would establish deliberate indifference by the medical
Defendants. 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. If inadequate treatment
results simply from an error in medical judgment, there is no
constitutional violation. Id.
Although there is no heightened pleading standard for § 1983
actions, Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004),
the record is devoid of any evidence that Dr. Jackson or Tom
Toolan were deliberately indifferent to Plaintiff's serious
medical needs. To the contrary, the record supports a conclusion that
Plaintiff was treated by the medical Defendants for his pain and
leg injury when requested.
In reference to Dr. Jackson, Plaintiff alleges that after his
intake assessment, Dr. Jackson ordered lower bunk/tier placement
and the use of a crutch, to accommodate Plaintiff's leg injury.
Although Dr. Jackson later approved removal of the crutch from
Plaintiff, Dr. Jackson's decision to remove Plaintiff's crutch
does not amount to an Eighth Amendment violation, notwithstanding
Plaintiff's assertion that his private physician had prescribed
such a device. "[A]s long as a physician exercises professional
judgment [her] behavior will not violate a prisoner's
constitutional rights." Brown v. Borough of Chambersburg,
903 F.2d 274, 278 (3d Cir. 1990). One doctor's disagreement with the
professional judgment of another doctor is not actionable under
the Eighth Amendment. White v. Napolean, 897 F.2d 103, 110 (3d
Cir. 1990). Moreover, although Plaintiff alleges that Dr. Jackson
denied return of his crutch after his fall in the shower (Doc. 1
at ¶ 21), Dr. Jackson did return Plaintiff's crutch*fn6 and
returned him to the prison's medical block (Id. at ¶ 22).
Further, Plaintiff's claim that Dr. Jackson failed to order
x-rays after his fall in the shower despite his repeated requests
does not establish deliberate indifference. A "medical decision not to order an x-ray, or like measures, does not
represent cruel and unusual punishment." Estelle,
429 U.S. at 107. At best, Plaintiff's allegations against Dr. Jackson
establish a dispute over diagnosis and treatment, but he does not
present any evidence of a "substantial risk" to a "serious
medical condition" caused by Dr. Jackson's treatment.
Plaintiff also alleges that prison nurse Tom Toolan instigated
removal of the crutch in retaliation for Plaintiff's assistance
to another inmate. However, Plaintiff presents no evidence to
support his bare assertion of retaliation,*fn7 and in his
complaint he concedes that Toolan determined Plaintiff was "no
longer in need of his cane and/or crutch" based upon his
"personal observation of Plaintiff." (Doc. 1 at ¶ 15.) This is
confirmed and elaborated in the record. On June 28, 2003, Toolan
wrote a memorandum to Plaintiff's attorney, Joshua Lock, in
response to Lock's inquiries regarding Plaintiff's medical
treatment. In the memorandum, Toolan confirms that Corrections
Officer Shumberger had observed Plaintiff walking without his
crutch on May 8, 2003, and Toolan personally observed Plaintiff
walking without his crutch on May 9, 2003. (Doc. 17, Ex. C). "[A]fter review of the medical
record, the physician discontinued the use of a crutch." (Id.)
However, the crutch was returned on May 14, 2003, after the
shower fall. Ultimately, the record supports a conclusion that
Toolan's removal of the cane was based upon his personal
observation, as well as the observation of C.O.Shumberger, and
Plaintiff has presented no evidence to suggest that Toolan's
actions constituted retaliation or deliberate indifference to
Plaintiff's serious medical needs.
B. Corrections Defendants
It is well-established that "[A] defendant in a civil rights
action must have personal involvement in the alleged wrongs;
liability cannot be predicated solely on the operation of
respondent superior." Rode v. Dellarciprete, 845 F.2d 1195,
1208 (3d Cir. 1988). The personal involvement requirement can be
satisfied by a showing of "personal direction or of actual
knowledge and acquiescence." Id.; Pansy v. Preate,
870 F. Supp. 612, 630 (M.D. Pa. 1994), aff'd mem., 61 F.3d 896 (3d
Cir. 1995). Nevertheless, an official who actually knew of a
substantial risk to inmate health or safety will not be liable
where the official acted reasonably in response, even if the harm
ultimately ensues. Id. at 844. Further, a non-physician
defendant will not be liable for deliberate indifference where
the inmate is receiving treatment by the prison's medical staff.
Durmer v. O'Carroll, 991 F.2d 64, 69 (3rd Cir. 1993).
Although Plaintiff infers that the corrections Defendants are
liable in a supervisory capacity (Doc. 1 at ¶ 9; "Defendant [Jackson] is also
head of the complete medical department and it's [personnel]"),
there is nothing in the complaint to implicate these Defendants
in any acts of deliberate indifference to Plaintiff. Defendants
have attached thirty (30) inmate request forms filed by Plaintiff
while he was at DCP. (Doc. 20, Ex. C). Most, but not all, of the
inmate requests relate to Plaintiff's complaints about the
medical care. However, the requests also typically contain a
notation that some relief or altered medical attention was
provided promptly in response to these complaints. Thus, the
record is devoid of evidence or an inference that the corrections
Defendants knew of and disregarded a substantial risk to
Plaintiff's serious medical condition, or that they knowingly
acquiesced in any substandard treatment to Plaintiff.
C. Dauphin County Prison
As it relates to Dauphin County Prison, Plaintiff's complaint
will be dismissed as legally frivolous under the Prison
Litigation Reform Act ("PLRA"), pursuant to the provisions of §
1915(e)(2)(B)(i). Plaintiff is proceeding in forma pauperis.
(See Doc. 9.) The PLRA established new obligations for
prisoners who file civil rights actions in federal court, and
wish to proceed in forma pauperis. Section 1915(e)(2) of the
PLRA requires the court to dismiss "the case at any time if the
court determines that . . . (B) the action or appeal (i) is
frivolous. . . ." 28 U.S.C. § 1915(e)(2)(B)(i). This section applies equally to cases that are
factually, as well as legally, frivolous. Neitzke v. Williams,
490 U.S. 319, 327-28 (1989).
An action is legally frivolous if it is based upon an
indisputably meritless legal theory. Wilson v. Rackmill,
878 F.2d 772, 774 (3d Cir. 1989). Indisputably meritless legal
theories are those "in which it is . . . readily apparent that
the plaintiff's complaint lacks an arguable basis in law. . . ."
Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). "[T]he
frivolousness determination is a discretionary one," and trial
courts "are in the best position" to determine when an indigent
litigant's complaint is appropriate for summary dismissal.
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
As previously noted, the Plaintiff must establish that the
alleged wrongful conduct was committed by a state actor and that
it deprived the plaintiff of a right under the Constitution or
laws of the United States. Nicini, 212 F.3d at 806. Plaintiff
fails to identify any conduct of DCP that has abridged a right or
privilege of the Plaintiff. As with the other Defendants, under
the most liberal interpretation, Plaintiff's allegations merely
establish a difference in the course of treatment pursued by the
prison medical staff and the treatment preferred by Plaintiff.
Moreover, a non-physician defendant will not be liable for
deliberate indifference where the inmate is receiving treatment
by the prison's medical staff. Durmer, 991 F.2d at 69. Thus, as
it relates to DCP, "it is . . . readily apparent that the
plaintiff's complaint lacks an arguable basis in law." Roman, 904 F.2d at 194. Thus, the
complaint will be dismissed as it relates to Dauphin County
Since Plaintiff has not established deliberate indifference or
retaliation by Defendants, Defendants' motions for summary
judgment will be granted, and the case will be dismissed against
Dauphin County Prison under 28 U.S.C. § 1915(e)(2)(B)(i). An
appropriate order will issue. ORDER
In accordance with the foregoing memorandum, IT IS HEREBY
1) Dr. Marybeth Jackson's motion to dismiss or, in the
alternative, for summary judgment (Doc. 19) is construed as a
motion for summary judgment, and the motion is GRANTED.
2) Tom Toolan's motion to dismiss or, in the alternative, for
summary judgment (Doc. 34) is construed as a motion for summary
judgment, and the motion is GRANTED.
3) The motion for summary judgment filed by Dominick DeRose,
James DeWees, Michelle Jeszenka, and Deputy Nichols (Doc. 15) is
GRANTED. 4) The Plaintiff's complaint is DISMISSED as it relates to
Dauphin County Prison, pursuant to 28 U.S.C. 1915(e)(2)(B)(i).
5) The Clerk of Court is directed to enter judgment in favor of
Defendants and against Plaintiff, and the Clerk of Court shall
mark this case closed.
6) Any appeal from this Order shall be deemed frivolous,
without probable cause, and not taken in good faith.
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