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Miszler v. Shoemaker

June 4, 2007

BERNARD VICTOR MISZLER, PLAINTIFF
v.
JEFFREY SHOEMAKER, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Plaintiff Bernard Victor Miszler commenced this litigation under 42 U.S.C. § 1983 alleging violations of the Eighth Amendment in connection with his confinement at the Susquehanna County Correctional Facility ("SCCF"). As an inmate at SCCF, Mr. Miszler participated in the work release program. On August 20, 2002, he was injured in the course of his employment and was treated at a hospital in Scranton, Pennsylvania. Following his discharge from the hospital and return to SCCF, Mr. Miszler claims he was denied adequate medical care. Mr. Miszler names as Defendants Jeffrey J. Shoemaker, Chief Probation Officer for Susquehanna County; Sheri Chapel, Probation Officer for Susquehanna County; William Brennan, Warden of SCCF; Charles J. Aliano, Lance Benedict, Robert Calvin Dean, Gary Marcho, and Lee Smith, members of the Susquehanna County Prison Board ("the Board Members"); and Susquehanna County.*fn1

Before the Court is Defendants' Motion for Summary Judgment. (Dkt. Entry 13.) This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). As will be explained below, there are genuine issues of fact material to whether Warden Brennan acted, or refused to act, with deliberate indifference to Mr. Miszler's serious medical needs. Consequently, summary judgment will be denied as to Warden Brennan. In all other respects, Defendants' motion will be granted.

I. BACKGROUND

A. Factual Background

Some time prior to August 20, 2002, Mr. Miszler was sentenced to a term of imprisonment of eleven months, to be served at SCCF. (Defs.' Statement of Undisputed Facts ("SUF - Defs."), Dkt. Entry 14-2, ¶¶ 1-2.) As part of his plea bargain, Mr. Miszler was granted immediate participation in the work release program. (Miszler Dep., Jan. 12, 2005, Dkt. Entry 16, at 8:5-8.) As a participant in the work release program, Mr. Miszler was allowed to leave the prison for a period of twelve hours per day, six days per week, in order to maintain his employment with Alkaz Construction ("Alkaz"). (Id. at 9:12-14; SUF - Defs. ¶ 3.)

On August 20, 2002, Mr. Miszler was at an Alkaz job site working to construct a log cabin home. (SUF - Defs. ¶ 4.) Besides Mr. Miszler, the only other individual present was Al Kazmierski, the owner of Alkaz. (Miszler Dep. 10:13-14.) Mr. Miszler was injured when a log stationed on a scaffold rolled off and struck him across his lower body. (Id. at 8:20-24; see also Discharge Summary, Ex. A. to Defs.' Reply Br., Dkt. Entry 24-2.)

Mr. Kazmierski transported Mr. Miszler to the Community Medical Center ("CMC") in Scranton, Pennsylvania. (SUF - Defs. ¶ 7.) There, X-rays revealed a "supracondylar fracture of the right distal femur." (Discharge Summary.) Mr. Miszler's treating physician, Dr. Chiavacci, performed a surgical procedure known as an "open reduction" that involved the insertion of a "retrograde rod." (Id.) Dr. Chiavacci also repaired a torn right quadriceps muscle. (Id.)

After Mr. Miszler arrived at CMC, he contacted his probation officer, Ms. Chapel, to apprise her of his misfortune. (Miszler Dep. 9:17-18, 10:20-25.) In light of Mr. Miszler's accident and hospitalization, the Court of Common Pleas for Susquehanna County issued an Order on August 20, 2002, placing Mr. Miszler on medical furlough until his release from CMC. (Ex. 1 to Miszler Dep., Dkt. Entry 16.) The Order further provided that Mr. Miszler's failure to return to SCCF upon his release would be deemed an escape. (Id.) Mr. Miszler denied that he was aware of the state court's August 20 Order while he was at CMC. (Miszler Dep. 11:11-20.)

Mr. Miszler was discharged from CMC on August 27, 2002, and returned to SCCF that morning. (SUF - Defs. ¶¶ 10-11.) In connection with his discharge, Mr. Miszler contends that Dr. Chiavacci referred him to Allied Services for rehabilitation. However, he did not go to Allied Services because he was told by Ms. Chapel that he must return to SCCF, and that his failure to return to SCCF would constitute an escape. (Miszler Dep. 11:24-12:5.) Besides Mr. Miszler's contention, there is nothing in the record documenting Dr. Chiavacci's alleged referral to Allied Services, nor is there any evidence that Dr. Chiavacci communicated this instruction to Allied Service, Ms. Chapel or any other SCCF employee.

On the other hand, the discharge instructions provided to -- and signed by -- Mr. Miszler on August 27 do not prescribe any rehabilitation or other physical therapy program at Allied Services or otherwise. (CMC Discharge Instructions, Ex. B to Defs.' Reply Br., Dkt. Entry 24-2.) Moreover, according to a discharge summary from CMC's Rehabilitation Department, Mr. Miszler attended five therapy sessions while at CMC, and demonstrated "improvement in level of functioning, independence or quality of life." The record further indicates that he was discharged from therapy on August 26, 2002, because "[a]ll goals established by patient or therapists were achieved." (CMC Discharge Summary -- Rehabilitation Dep't, Ex. C to Defs.' Reply Br., Dkt. Entry 24-2.)

At the time of his discharge, Mr. Miszler was given prescriptions by Dr. Chiavacci for three medications: Percocet, Lovenox, and Keflex, which is a brand name for Cephalexin, an antibiotic.*fn2 (See Discharge Instructions.) Specifically, Dr. Chiavacci prescribed 500 mg capsules of Cephalexin, to be ingested four times a day, and 40 mg prefilled syringes of Lovenox, to be injected subcutaneously once per day. (Id.; see also Exs. A-B to Alice Miszler Aff., Dkt. Entry 22 (receipts from CVS pharmacy).) Mr. Miszler was driven to SCCF by his wife, Alice, and their intent was to stop at a pharmacy on the way to have the prescriptions filled. However, Ms. Chapel advised Mrs. Miszler that she should not stop at a pharmacy because Mr. Miszler would not be permitted to bring the prescription medications into SCCF. (Alice Miszler Aff., Dkt. Entry 22, ¶ 10.) Instead, Mrs. Miszler was instructed to bring the prescription forms to SCCF so they could be filled by an SCCF employee. (Id.)

When the Miszlers arrived at SCCF, they were greeted by Warden Brennan, who received the prescription forms from Mrs. Miszler as her husband entered SCCF. (Id. ¶ 11.) The record does not disclose what, if anything, Warden Brennan did with the prescription forms after they were given to him. It is clear, however, that the prescriptions for Cephalexin and Lovenox were not filled by Warden Brennan or anyone else because the original forms were returned to Mrs. Miszler when her husband was released from SCCF. (Id. ¶ 18.)

Mr. Miszler was confined at SCCF from August 27 to August 29. He testified that he did not receive any of the prescribed doses of Cephalexin and Lovenox. (Miszler Dep. 16:20-21,18:11-21.) He also did not receive the Percocet, except for one dose given to him at approximately 4:00 p.m. on August 28. (Id. at 17:8-10.) Additionally, on August 28, Mrs. Miszler contacted SCCF to ascertain the status of her husband's medications. She was told that "it takes a while [sic] to get medication in Jail," suggesting that Mr. Miszler was not given any medications prior to this conversation and that none would forthcoming in the immediate future. (Alice Miszler Aff. ¶ 14.)

Defendants point to evidence in the record indicating that Mr. Miszler's prescription medications were administered to him, at least with respect to the Percocet and Cephalexin. A Medication Administration Record purports to show that Mr. Miszler received Cephalexin at 1700 hours on August 27; at 2100 hours on August 27; at 0630 hours on August 28; at 1700 hours on August 28; at 2100 hours on August 28; and at 0630 hours on August 29. (Medication Administration Record, Ex. 3 to Miszler Dep., Dkt. Entry 16.) Each administration is initialed by, presumably, an SCCF employee, though the identities are unknown. (Id.) Neither Mr. Miszler's name nor SCCF's name appear on the record, although there is a notation "Left Jail at 8-29-02 12:18," which is the approximate time that Mr. Miszler left SCCF on August 29. (Id.; see Miszler Dep. 16:22-24.) Defendants also refer to an untitled document purporting to show that Mr. Miszler received five doses of Roxicet, which is a brand name for Percocet, from August 28 to August 29.*fn3 (Medication Record, Ex. 4 to Miszler Dep., Dkt. Entry 16.) Unlike the Medication Administration Record, Mr. Miszler's name appears on this record, albeit incorrectly. Finally, Diane Barron, an SCCF corrections officer, testified that SCCF had Cephalexin onsite in its pharmaceutical stock room, and that Mr. Miszler's prescription for Percocet was filled at a nearby pharmacy. (Barron Dep., Nov. 3, 2005, Dkt. Entry 22, 12:3-9, 12:13-13:11.) On one occasion, she may have gone to the stock room herself to obtain Cephalexin for Mr. Miszler. (Id. at 13:7-11, 13:16-21.) However, she did not testify that she personally administered Cephalexin or any other medication to Mr. Miszler, or that she witnessed any SCCF employee give medication to Mr. Miszler.*fn4

Corrections Officer Barron also explained why Mr. Miszler would not have received any injections of Lovenox while he was confined at SCCF. SCCF personnel are not qualified to administer injection medications to inmates. (Id. at 23:14-17.) Injection medications are only administered if the inmate is capable of administering the medication himself, such as a diabetic. (Id. at 24:2-4.) Since Mr. Miszler was not trained to self-inject the Lovenox, he could not receive this medication while at SCCF.

On August 29, 2002, Mr. Miszler was granted a medical furlough by the Court of Common Pleas for Susquehanna County until September 11, 2002.*fn5 (Order of Court of Aug. 29, 2002, Ex. 2 to Miszler Dep., Dkt. Entry 16.) Mr. Miszler's right leg had swelled and he exhibited other symptoms. (Alice Miszler Aff. ¶ 19.) According to Mrs. Miszler, Warden Brennan told her at the time of her husband's release that SCCF did not want "responsibility" for Mr. Miszler due to his condition. (Id.) Additionally, Warden Brennan returned Mr. Miszler's original prescription forms for Cephalexin and Lovenox without an explanation as to why neither prescription had been filled. (Id. ¶ 18.) On their way home from SCCF, the Miszlers stopped to see Mr. Miszler's daughter, who obtained the medications at a nearby CVS pharmacy. (Id. ¶¶ 20-21; Miszler Dep. 19:7-20:11.)

Subsequent to his release from SCCF, Dr. Chiavacci discovered that Mr. Miszler's wound had become infected. Mr. Miszler's expert, P. Christopher Metzger M.D., reviewed Mr. Miszler's medical records and summarized those records in his expert report. Mr. Miszler had a follow-up visit with Dr. Chiavacci on September 3, 2002. (Miszler Dep. 20:17-23; Expert Report of P. Christopher Metzger, M.D. ("Metzger Report"), Ex. E to Defs.' Reply Br., Dkt. Entry 24-2, at 1.) Mr. Miszler was "doing well" at the time, the "wound looked good," and roentgenograms taken during the visit displayed the fracture in satisfactory alignment with the "internal fixation device in the expected position."*fn6 (Metzger Report, at 1.) Mr. Miszler was next seen on September 13, 2002. Dr. Chiavacci discovered an infection had developed around the wound, at which point "antibiotics were once again started." (Id.) Another visit occurred three days later, the medical records noting drainage from the surgical incision. (Id.) On October 7, 2002, Mr. Miszler was readmitted to CMC, where he was "taken to the operating room [and] underwent debridement of the right thigh wound, thorough irrigation, and the placement of a 'wound vac.'" (Id.) Mr. Miszler was subsequently evaluated by Dr. Chiavacci on several occasions. Dr. Chiavacci noted that Mr. Miszler's fracture was healing and that he exhibited adequate range of motion. (Id.) He also concluded, however, that Mr. Miszler had sustained a loss of quadriceps strength, and that "a partial disability was present, as well as a residual cosmetic deformity." (Id.)

In addition to Dr. Chiavacci, Mr. Miszler was treated by Dr. Gregory Bormes, a plastic surgeon. (Id. at 2.) On November 18, 2002, a skin graft was placed over the infected area. (Id.) The skin graft eventually healed, but Dr. Bormes also opined that the disfigurement of the right thigh area was permanent, and he noted the presence of muscle weakness. (Id.)

After reviewing Mr. Miszler's medical records, and assuming that Mr. Miszler had not received the Cephalexin prescribed by Dr. Chiavacci for several days after his return to SCCF on August 27, Dr. Metzger opined that "withholding these antibiotics could certainly have been deleterious to his wound." (Id.) Dr. Metzger stated in his report that "crush injuries [like Mr. Miszler's] are more prone to infection, particularly when an open reduction with internal fixation has taken place." (Id.) The deep wound infection that developed necessitated additional "surgical intervention," including the debridements and the skin graft. (Id.) Dr. Metzger concluded that proper administration of Mr. Miszler's antibiotics while at SCCF "would have minimized the ...


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