The opinion of the court was delivered by: Judge Caputo
Plaintiff, Frederick Geib, is an inmate at the State Correctional Institution in Waymart ("SCI-Waymart"), Pennsylvania. He filed this civil rights action on August 30, 2004, pursuant to 42 U.S.C. § 1983 alleging inadequate medical treatment for his injured hand in violation of the Eighth Amendment. Named as Defendants are the following SCI-Waymart officials: Jeff James, Unit Manager; Dr. Bekele, prison physician; Mrs. Loomis, physician's assistant; and Donald Fiske, Health Care Administrator. As relief Geib seeks proper medical treatment, physical therapy, evaluation by a medical expert and compensatory damages.
On October 4, 2005, a Memorandum and Order was issued wherein motions to dismiss the complaint filed by Defendants James, Loomis and Fiske were granted. (Doc. 73.) A motion to dismiss filed by Defendant Bekele was denied. Presently before the court is Bekele's motion for summary judgment. (Doc. 142.) Also pending are the following motions filed by Plaintiff: (1) motion to sustain the action*fn1 (Doc. 143); (2) motion to quash Defendant's brief in support of summary judgment and statement of uncontested facts (Doc. 147); (3) motion for leave to file brief in opposition to the summary judgment motion (Doc. 153); and (4) motion for the appointment of counsel (Doc. 157).
On October 22, 2002, while proceeding to his prison job, Plaintiff injured his hand when he attempted to open a door at the same time another inmate was coming through the door. Plaintiff was provided with an ice pack and Motrin by a nurse in the prison medical department. (Doc. 144, Ex. B, Geib Dep. at 10.) Plaintiff put in a sick call slip for the next day and returned to work. The following day, Defendant Bekele examined Plaintiff, ordered x-rays of his wrist and planned for an orthopaedic consult. (Id., Ex. C, Progress Notes.) On October 24, 2002, x-rays of the wrist were taken and Plaintiff was informed the next day by Bekele that he had a broken bone and would be seeing an outside specialist for treatment. (Id., Ex. B at 23-24.) On the same date, Bekele wrote a consultation referral for Plaintiff to see Dr. Mogerman, an orthopaedic surgeon. The referral was approved on October 26, 2002, and the appointment scheduled for October 31, 2002. (Id., Ex. E, Consultation Record; Ex. D.) The consultation referral noted:"Injury to Rt. wrist and x-ray showed fracture of navicular with avulsion." (Id.)
On October 31, 2002, Dr. Mogerman examined Plaintiff, reviewed the x-rays from the prison and placed a cast on his hand. (Id., Ex. B at 27.) Mogerman's examination report noted his initial impressions of an acute contusion/sprain injury of the right wrist and hand, and to "rule out occult fracture right wrist and hand region." (Id., Ex. E.) The report further stated that Plaintiff had a chronic non-union of an old right scaphoid fracture, and noted that he had reviewed Plaintiff's radiographs on the right wrist with the left side for comparison. . .", indicating that Mogerman had two different x-rays at the time of the exam.*fn2 He further concluded that no significant fracture was detected. It was noted that Plaintiff was to be seen for a follow-up in 7-10 days. (Id.)
On November 1, Bekele wrote for a follow-up visit for Plaintiff with Dr. Mogerman, which was scheduled for November 11, 2002. (Id., Ex. E at 11/11/02; Ex. C at 1/1/02 and Ex. D at 11/6/02.) Plaintiff was examined by Mogerman on November 11, 2002. The original cast was removed and, according to Mogerman's notes, a new short-arm cast was applied. Plaintiff was to continue under the current care plan and return in 4-6 weeks. (Id., Ex. E.) Plaintiff alleges that he was sent back to Mogerman on this occasion because the wrong x-rays had been sent on the first visit. (Doc. 1, Compl. at 5.) He claims that because of the error, Mogerman took a new x-ray and replaced the original cast with a new cast which covered his thumb and hand. (Doc. 144, Geib Dep. at 30.) According to Plaintiff, Mogerman told him the bone was separated and that "a break in that area didn't get a good supply" which is why he positioned the thumb the way he did in the new cast. (Id.)
On November 13, 2002, Bekele ordered 500 mg of Naprosyn for pain. On November 22, 2002, Bekele saw Plaintiff for complaints of "pain using the right hand in cast." He wrote for a follow up referral with Dr. Mogerman noting "Follow up of navicular fracture in cast," with the appointment scheduled for December 9, 2002. (Id., Ex. E at 12/9/02; Ex. D at 11/22/02.) On December 4, 2002, Bekele ordered another course of 500 mg Naprosyn for Plaintiff. (Id., Ex. D at 12/4/02.)
At the December 9, 2002 appointment, Mogerman informed Plaintiff that the bone was not healing, and recommended that a bone graft be performed. (Id., Ex. B at 36-37.) Plaintiff was informed that Mogerman would perform the surgery which would be scheduled at the next available time. (Id. at 37-38.) At this appointment, his cast was also removed, and an ace bandage was applied. Plaintiff was also instructed to begin exercises on his own. (Id., Ex. E at 12/9/02.)
Prior to surgery Plaintiff was seen on several occasions by Mogerman, Bekele and Dr. Stanish, another prison physician. Stanish saw Plaintiff of December 16, 2002, in response to complaints of pain in his right wrist. Naprosyn was ordered for Plaintiff and a referral written to see Dr. Mogerman, scheduled for January 27, 2003. (Id., Exs. C, D at 12/16/02; Ex. E at 1/27/03.) On December 19, 2002, Bekele wrote another order for 500 mg of Naprosyn for 15 days. This order was renewed on January 2, 2003, and again on January 28, 2003. (Id., Ex. C at 1/2/03 and 1/28/03; Ex. D at 12/29/02.)
On January 27, 2003, Mogerman examined Plaintiff and noted "painful non-union right scaphoid." (Id., Ex. E at 1/27/03.) In the examination record, Mogerman noted Plaintiff's desire to proceed with the bone graft as previously discussed. (Id.)
On January 31, 2003, Plaintiff's bone graft surgery was scheduled to take place on March 26, 2003 at Marian Community Hospital. (Id. Ex. C at 1/31/03). On March 3, 2003, further pain medication was ordered by a physician's assistant at the prison. On March 26, 2003, Plaintiff was taken to Marion Community Hospital where Dr. Mogerman performed the surgery. (Id., Ex. F.) Plaintiff was returned to the prison later that evening. (Id., Ex. B at 39-42.) Upon return, he was examined by Bekele and admitted to the prison infirmary. (Id., Ex. C at 3/27/03; Ex. D at 3/26/03.)
On March 28, Bekele ordered 600 mgs of Motrin for 30 days. On April 2, 2003, he ordered for Plaintiff the antibiotic Kefelx, as well as a 7 day course of MS-Contin for pain. (Id.) Bekele also scheduled a follow up with Dr. Mogerman for April 14, 2003. (Id., Ex. E at 4/14/03.) At this appointment, Mogerman x-rayed Plaintiff's wrist and noted that the clinical and x-ray exams were satisfactory at the bone graft and graft donor site. It was also noted that a "new long-arm thumb spica cast" was applied. (Id., Ex. E at 4/14/03.)
On April 15, 2003, Bekele wrote for a consultation referral with Dr. Mogerman, which was scheduled for May 5, 2003. At this appointment, Plaintiff was examined, his x-rays reviewed and a short-arm thumb spica cast was applied. Plaintiff saw Mogerman again the following day after complaints that the cast was too tight. The cast was split and the area re-wrapped with fiberglass to give Plaintiff more room. (Id., Ex. E, 5/6/03 Report & Consultation Record.)
On May 9, 2003, Bekele wrote another follow up consultation referral for Plaintiff to see Mogerman for June 16, 2003. On said date, he was examined and x-rayed. According to Plaintiff, Mogerman informed him he wanted to put a splint on and that he had called the prison and was told by someone there that a splint was available for Plaintiff. (Doc, 144, Ex. A, Compl. at 5; Ex. B, Geib Dep. at 46-48.) Plaintiff was returned to the prison at that time wearing an ace bandage. In the notes from Mogerman's consultation record from this visit, however, it is noted that an exam was conducted and x-rays taken, however there is no mention of or order for the use of a splint. (Doc. 144, Ex. E, Consultation Record at 6/16/03.) Plaintiff states that upon his return to the prison, a nurse informed him that the prison did not have the particular splint he wants and one would have to be ordered. (Id., Ex. B at 48-49.)
On June 17, 2003, Bekele wrote an order for a "cock-up splint" to be worn by Plaintiff for 90 days. (Id., Ex. D at 6.17.03; Ex. G at ¶ 9.) Plaintiff states that while waiting for the arrival of the splint, he reinjured his hand, believing he possibly did so during the night while he was sleeping. (Id., Ex. B at 50.) He saw physician's assistant Heffernan at the prison who wrote a referral for Dr. Mogerman, which was approved by Defendant Bekele. On June 23, 2005, Mogerman x-rayed Plaintiff's hand and placed it in another cast. Mogerman noted that there was pain and swelling in the right wrist indicating a sprain, and that a short-arm cast ...