The opinion of the court was delivered by: Judge Munley
Before the court are objections by both the plaintiff (Doc. 185) and the defendant (Doc. 190) to the report and recommendation of United States Magistrate Judge Thomas M. Blewitt (Doc. 164) in this case. The matter has been fully briefed and is ripe for disposition.
On January 3, 2004, plaintiff was an inmate at the United States Penitentiary in Allenwood, Pennsylvania ("USP Allenwood"). On that day, he suffered from a painful earache, and had discovered that he was leaking pus from his right ear. (Complaint (hereinafter "Complt.) at 4). That evening, he told Defendant Frimpong of his condition. (Defendant's Deposition (hereinafter "Deposition"), Attached as an exhibit to Defendant's Brief in Support of Motion for Summary Judgment (hereinafter "Summary Judgment Brief") (Doc. 166) at 20). According to the plaintiff, PA Frimpong told him that he could do nothing because he was simply passing out pill- line medication and not taking sick calls. (Id.). As sick call was not available on the weekend, plaintiff would have to wait until Monday for assistance. (Id.). The plaintiff, his cell mate, and Frimpong argued for a few minutes. (Id. at 20-21). Plaintiff tried to convince Frimpong to get him some medicine from the infirmary but Frimpong refused. (Id. at 21).*fn1 Frimpong then left, and plaintiff received no treatment. January 3, 2004 was a Saturday, and plaintiff did not receive medical attention for the rest of that weekend. (Id. at 21-22). Plaintiff had no more contact about his earache with the defendant. (Id. at 22). He complained of his ear infection again on Monday, January 5, and officers arrived at plaintiff's cell to take him for a medical examination. (Id. at 27). Plaintiff claims he could not leave his cell because his cellmate refused to cooperate with officers. (Id.). Eventually, plaintiff received treatment on January 6, 2004. (Id. at 33). A PA brought him Amoxicillin tablets. (Id.). On January 12, 2004, plaintiff saw a prison doctor about his alleged hearing loss and other complaints. (Id. at 34).
Plaintiff alleges that he realized at 7:45 a.m. on January 5, 2004 that he had completely lost his hearing in his right ear. The prison soon conducted tests to determine what injuries plaintiff had suffered. A test administered on January 12, 2004 by prison medical staff revealed that plaintiff suffered from bilateral hearing loss. (See Chronological Record of Medical Care, results of exam dated January 12, 2004, attached as an exhibit to summary judgment brief, at 15). The examination also revealed a mild swelling of the right eardrum and mild redness of the right ear canal. (Id.). The prison ordered a consultation with an ENT doctor and advised plaintiff to continue with his prescribed medication. (Id.). On February 13, 2004, Vicki Egli, a licensed hearing aid fitter, evaluated plaintiff using audiometric testing. (Letter from Vicki Egli to Ron Laino July 9, 2004, id. at 20). She reported that plaintiff had misrepresented the degree of his hearing loss; he seemed able to hear normal speech with and without earphones, but claimed he could not hear out of either ear when she did her tests with the audiometer. (Id.). Nearly two years later, on September 27, 2005, plaintiff again complained of pain in his right ear. (Id. at 10). A physician's assistant examined him and reported mild redness in the right ear canal, but no discharge or swelling. (Id.). The eardrum was intact without perforation. (Id.). She found no problems in the right ear. (Id.) Plaintiff received drops for the right ear and advice to stop putting water in the ear. (Id.). Egli again tested plaintiff on November 18, 2005, finding no responses from his right ear. (Id. at 18). She questioned that response. (Id.).
Faced with continued complaints from the plaintiff, the prison conducted more extensive testing. An examination by clinical audiologist Sandra M. Chamberlain on March 6, 2006 found plaintiff responding on a functional level, which meant that plaintiff's claims of hearing loss were "contrived." (Id. at 21). A Stenger test, designed to reveal when a claimed hearing loss is not genuine, also found that plaintiff did not suffer the hearing problems he alleged. (Id.). These results led to evaluation of the plaintiff by an ENT specialist at the Geisinger Medical Center in Danville, Pennsylvania on May 30, 2006. At that examination, plaintiff was scheduled to undergo an ABR test, a diagnostic test that measures brain wave activity in the auditory centers of the brain in response to a series of clicks presented to each ear. (Id. at 23). He refused to cooperate. (Id.). Dr. Mark E. Whitaker, who examined plaintiff, confirmed that plaintiff had not lost his hearing in his right ear. (Id.). He did not rule out mild hearing loss in that ear, but urged the plaintiff to be more compliant with tests in order to determine what treatment was necessary. (Id.). B. Procedural History
On July 16, 2004, plaintiff filed a pro se Bivens*fn2 action, naming two employees of the prison as defendants. (See Complt.). Both Diane Inch and Clemente Frimpong were employed as Physician's Assistants (PAs) by the Federal Bureau of Prisons. Plaintiff claimed that he did not receive proper medical care for a serious ear infection. This lack of care, he alleged, resulted in profound hearing loss. Plaintiff sought several million dollars in damages and release from the six years remaining on his prison term.
After the court completed an initial screening of the complaint and ordered that the complaint be served on the defendants, defendants filed motions to dismiss the complaint. On March 16, 2005, the Magistrate Judge recommended that the complaint be dismissed with respect to defendant Inch, but that the complaint against defendant Frimpong be continued (See Report and Recommendation (Doc. 49)). This court adopted that recommendation and remanded the case to the magistrate judge (See Memorandum and Order (Doc. 53)). After this court adopted (See (Memorandum and Order (Doc. 106)) the magistrate judge's subsequent recommendation to deny Defendant Frimpong's motion for summary judgment based on qualified immunity (See Report and Recommendation (Doc. 103)), discovery commenced. When discovery ended, defendant filed a second motion for summary judgment (Doc. 158) on June 21, 2006. On October 11, 2006, Magistrate Judge Blewitt issued a report and recommendation that proposed we grant summary judgment to the defendant because the plaintiff had failed to produce evidence by which a court could conclude that defendant had been deliberately indifferent to plaintiff's serious medical need. (See Doc. 184). The magistrate judge found that plaintiff had indeed suffered a serious medical need, but that plaintiff had failed to present evidence that showed he was injured as a result of defendant's failure to procure him immediate treatment for his injury.
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
As the magistrate judge ruled on a motion for summary judgment, we will apply that standard as well. Granting summary judgment is proper 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. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[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 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts ...