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Walthour v. Tennis

February 4, 2008


The opinion of the court was delivered by: Judge Vanaskie



Joseph Walthour filed this pro se civil rights action pursuant to 42 U.S.C.§ 1983 on January 12, 2006. Plaintiff subsequently filed an Amended Complaint (Dkt. Entry 39) on September 18, 2006, and a Second Amended Complaint (Dkt. Entry 53) on March 8, 2007. Walthour names two categories of Defendants: (1) the "Medical Defendants," consisting of Kathleen Kennedy, Dr. John Symons, Dr. Christina Doll, Jodi Hicks, and Prisoners Health Services, and (2) the "Corrections Defendants," consisting of Franklin J. Tennis, Raymond Coffman, Jeffrey Rackovan, Sharon M. Burks, and Richard Ellers. Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs, contrary to the Eighth Amendment proscription against cruel and unusual punishment and in violation of his Fourteenth Amendment rights. Presently pending are motions to dismiss pursuant to FED. R. CIV. P. 12(b)(6) filed on behalf of the Medical Defendants (Dkt. Entry 55), and the Corrections Defendants (Dkt. Entry 57). Also pending are Plaintiff's motions to strike (Dkt. Entry 60) and for appointment of counsel (Dkt. Entry 54). For the reasons that follow, the Medical Defendants' Motion to Dismiss will be granted in part and denied in part, the Corrections Defendants' Motion to Dismiss will be granted, and Plaintiff's motions to strike and for appointment of counsel will be denied.


In his Complaint, Walthour alleges that, on December 20, 2004, he submitted a sick call request to the medical department at SCI-Rockview to obtain treatment for a circular rash on his left cheek, left side of his chest, and left side of his abdomen. On that same date, Defendant Kennedy visually examined him and diagnosed him with tinea corporis, a fungal infection commonly referred to as "ringworm." (Dkt. Entry 53 at 4, ¶ 18.) Kennedy gave him a shampoo containing selenium sulfide to apply to the affected areas. After two weeks of applying the shampoo, Plaintiff noticed that the medication was ineffective. (Id. at ¶ 20.)

On January 3, 2005, Walthour submitted a second sick call request to the SCI-Rockview medical department, stating that the rash had spread to the other side of his body. After visually examining Plaintiff on that same date, Defendant Kennedy gave him a topical antifungal cream containing Miconazole to apply to the affected areas. (Id. at ¶ 22.) Plaintiff requested that Kennedy take a culture of one of the affected areas in order to confirm the diagnosis, but Kennedy refused to do so and also refused to refer him to a doctor. (Id. at 5, ¶¶ 23-24.)

Walthour applied the topical antifungal cream for three weeks. Because he noticed that the rash continued to slowly spread, on January 24, 2005, he submitted a third sick call request, again complaining of a circular rash on his face, chest, and abdomen. Following an evaluation by Defendant Kennedy, Defendant Doll signed an authorization to prescribe a 250 milligram oral capsule of griseofulvin ultramicrosize ("Gris-PEG"), to be taken daily with food for thirty (30) days. (Id. at ¶¶ 27-28.) Immediately upon starting to take the Gris-PEG capsules, Plaintiff developed hives, excessive itching, fluid emission from the skin, burning sensation of the skin, peeling of the skin, excessive dryness of the skin, blurred vision, loss of vision in his right eye, and skin discoloration. (Id. at ¶ 29.)

On March 21, 2005, Walthour submitted his fourth sick call request, complaining of what appeared to be an allergic reaction to Gris-PEG. (Id. at 6, ¶ 32.) On that same date, Defendant Kennedy visually examined him but did not take any vital signs. (Id. at ¶ 33.)Plaintiff expressed concern that the Gris-PEG capsules seemed to be aggravating his condition. (Id. at ¶ 35.) Kennedy responded that he was experiencing his "immune system fighting off the tinea corporis along with the Gris-PEG." (Id. at ¶ 37.) Defendant Kennedy decided to refer him to be evaluated by Dr. Doll. She then obtained authorization from Defendant Symons to administer an increased dosage of Gris-PEG from 250 milligrams to 500 milligrams to be taken once daily for an additional thirty days while Plaintiff was waiting to be evaluated by Dr. Doll. (Id. at ¶ 35.)

Immediately upon starting the increased dosage of Gris-PEG, Walthour experienced a more intense reaction, including hives, blurred vision, loss of vision in the right eye, deeper skin discoloration of the face, neck, chest, and abdomen, uncontrollable itching, fluid emission from his face, excessive fatigue, excessive thirst, and disruption of sleep. (Id. at ¶ 39.) On April 1, 2005, he informed Corrections Officers Swelley and John that the medication he had been prescribed was causing skin discoloration, excessive itching, and vision loss in his right eye. (Id. at ¶ 41.) Because the Corrections Officers were concerned that Plaintiff might become a target for an assault in the housing unit, they contacted Defendant Kennedy on April 1, 2005 to ask when Plaintiff would be evaluated by Defendant Doll. (Id. at ¶ 42.) Defendant Kennedy acknowledged the physical condition of Plaintiff's face, and "abruptly disconnected the phone call" without saying when Dr. Doll would see him. (Id. at 43.) The Corrections Officers ordered Plaintiff to submit a Department of Corrections Administrative Grievance ("DC-ADM") 804 to Defendant Rackovan, who was Defendant Tennis's assistant, to inform them of Defendant Kennedy's treatment plan. (Id. at ¶ 44.)

On April 4, 2005, Dr. Doll examined Plaintiff. On April 11, 2005, she performed a punch biopsy on his left chest. On April 22, 2005, Plaintiff saw Defendant Kennedy, who informed him that he was cured of the tinea corporis. (Id. at ¶ 48.)

On April 24, 2005, Walthour consulted the Physician's Desk Reference in the prison library and learned that Gris-PEG is an antibiotic derived from a species of penicillin. (Id. at ¶ 52.) He is allergic to penicillin, and his allergy is noted in his medical history and Pennsylvania Department of Corrections ("DOC") medical record. (Id. at ¶ 53). Plaintiff immediately filed a DC-ADM 804 grievance and DC-135A request to staff form, which he directed to all Defendants. (Id. at ¶ 56.) He also made numerous requests to be evaluated by the prison's contract dermatologist, Dr. Dunn. (Id. at ¶ 57.)

Walthour contends that the Medical Defendants were deliberately indifferent to his medical needs because they were aware that he was allergic to penicillin yet prescribed a medication that is a derivative of penicillin. He further claims that his Fourteenth Amendment rights were violated because he was not given information about the medical treatment before it was administered so that he could decide whether to submit to it. Further, he claims that the Medical Defendants administered Gris-PEG knowing that it causes cancerous liver tumors in male species, and thus subjected Plaintiff to the risk of future harm. Walthour contends that the Corrections Defendants knew that the Medical Defendants were deliberately indifferent to his medical needs through the grievances he submitted, yet failed to act. As relief, Walthour requests compensatory and punitive damages.


A. Motions to Dismiss Complaint

In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, the Court must accept the truth of the plaintiff's factual allegations. Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). A complaint has to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief] requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Id. at 1964-65 (citation omitted). To survive a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965.

To state a § 1983 claim, Walthour must plead two essential elements: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived 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). Furthermore, "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). However, the personal involvement requirement may 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). A doctor under contract to a state to provide medical services to prisoners is considered to be acting under color of state law, West v. Atkins, 487 U.S. 42, 54 (1988), and the principles just mentioned apply in that context as well. Hetzel v. Swartz, 909 F. Supp. 261, 264 (M.D. Pa. 1995).

In order to establish a claim against Defendants for inadequate medical care under § 1983 based on the Eighth Amendment, Walthour must show "(i) a serious medical need, and (ii) acts or omissions . . . that indicate deliberate indifference to that need." Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). 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). In addition, "'if unnecessary and wanton infliction of pain' results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment." Id. (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).

A prison official acts with deliberate indifference to an inmate's serious medical needs when he "knows of and disregards an excessive risk to inmate health or safety . . . ." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a complaint that a physician "has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment . . . ." Estelle, 429 U.S. at 106. "A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id. at 107. "[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or medical ...

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