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Ozoroski v. Maue

February 18, 2009

STANLEY N. OZOROSKI, PLAINTIFF
v.
DR. FREDERICK R. MAUE, DR. JOHN S. REIDELL, WEXFORD HEALTH SOURCES, INC., DR. DAVID E. ROWE, PRISON HEALTH SERVICES, INC., DR. ADAM A. EDELMAN, MARVA CERULLO, CECILIA VELASQUEZ, CHERYL CANTEY, AND GAUDENZIA, D.R.C., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Stanley Ozoroski brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging that he was denied access to adequate medical treatment during his incarceration at the Rockview and Mahoney state correctional facilities, as well as a drug rehabilitation center in Philadelphia. Among defendants are state officials, private health care providers, physicians, and mental health professionals. Defendants have collectively filed four motions to dismiss the complaint on various procedural and substantive grounds. (Docs. 33, 35, 37, 47) For the reasons that follow, the motions will be granted in part and denied in part, and Ozoroski will be permitted to file an amended complaint against a limited number of defendants.

I. Statement of Facts*fn1

From 1993 to 2007, plaintiff Stanley Ozoroski ("Ozoroski") allegedly suffered through what can only be described as a torturous medical odyssey. In late 1993, Ozoroski was housed as an inmate at the Pennsylvania state correctional facility at Rockview ("SCI Rockview"). (Doc. 31 ¶ 1.) After suffering a hernia in his groin, Ozoroski underwent an exploratory laparoscopy on November 15, 1993. The procedure was performed by defendant John Reidell*fn2 ("Reidell"). (Id. ¶¶ 4-5.) During the surgery, Ozoroski's small bowel was perforated; Reidell attempted to surgically repair the damage, but his effort was purportedly unsuccessful. (Id. ¶¶ 6, 9.)

Ozoroski alleges that he was in immense pain for months following the surgery. He avers that the incision site was oozing "a green smelly substance." He was eventually diagnosed with peritonitis, a staphylococcal infection. (See id. ¶¶ 10-11.) Ozoroski complained about his condition, but was purportedly ignored by Reidell. (See id. ¶¶ 12-13.) On May 24, 1994, Ozoroski was taken to Centre County Hospital, where an emergency colostomy was performed. (Id. ¶ 17.) Two months later, prison physicians discovered compacted and petrified feces below Ozoroski's colostomy site. (Id. ¶ 18.) On August 23, 1994, Ozoroski was transferred to Holy Spirit Hospital, where he was subjected to invasive abdominal surgery. (Id. ¶¶ 19-22.) Six additional abdominal procedures were performed between August 1994 and February 1996. (Id. ¶ 23.)

Unfortunately, Ozoroski's medical difficulties continued. Additional complaints led to an examination on July 28, 1997 by Dr. Samuel Magee, a surgeon at Blair Hospital. Dr. Magee allegedly determined that Ozoroski's stomach and intestines were dysfunctional and required comprehensive surgical repair. (Id. ¶¶ 25-26.) Further review in October 1997 by Dr. Aaron Blazak, a surgeon at Geisinger Hospital, resulted in Blazak's offer to surgically correct Ozoroski's condition "with no complications." (Id. ¶ 27.) However, consistent with contractual arrangements, surgery required authorization by defendant Wexford Health Sources, Incorporated ("Wexford").*fn3 Wexford refused to authorize payment for the procedure. (Id. ¶ 31.) Dr. Blazak reexamined Ozoroski on December 24, 1998, August 23, 1999, and February 16, 2000. (Id. ¶¶ 28-30.) In each instance, Dr. Blazak recommended remedial abdominal surgery; in each instance, Wexford refused to authorize payment and the surgery was not performed. (Id. ¶¶ 28-31.)

On August 7, 2000, Ozoroski filed a formal grievance with SCI Rockview regarding Wexford's refusal to authorize surgery. The grievance was ultimately denied on September 19, 2001. (Id. ¶¶ 35, 39; Doc. 1, Ex. D.) A second grievance was filed on June 10, 2001.*fn4 (Doc. 31 ¶ 36.) Ozoroski was then examined by a Wexford physician-Dr. Moyer-on August 21, 2002. (Id. ¶ 40.) Dr. Moyer purportedly recommended surgery, but Wexford again refused to authorize payment. (Id.) This denial precipitated another grievance, which Ozoroski filed on October 28, 2002, (id. ¶ 41); the DOC subsequently rejected both the grievance and Ozoroski's appeal thereof, (id. ¶ 42; Doc. 1, Ex. F).

At some point in late 2003 or early 2004, Wexford's contractual relationship with the DOC was terminated, and defendant Prison Health Services, Incorporated ("PHS") became the DOC's contract health services provider. (Doc. 31 ¶¶ 50-51.) Yet, little changed with respect to Ozoroski's ability to procure outside surgical services. On November 10, 2003, defendant Dr. Frederick Maue*fn5 ("Maue") sent Ozoroski a letter denying a request to obtain surgery.*fn6 (Id. ¶ 44.) The following month, Ozoroski was examined by prison medical director Dr. Marsha Modery ("Modery"). (Id. ¶¶ 45-46.) Modery observed that Ozoroski was suffering from abdominal pain caused by a highly infected distended-strangulated intestine. (Id. ¶ 45.) She ordered prison officials to transport Ozoroski to the Good Samaritan Hospital, where he was examined by the resident surgeon, Dr. Fisher. (Id. ¶ 47.) Dr. Fisher recommended surgery as expeditiously as possible. (Id.) PHS regional director, Dr. Standish, recommended surgery as well. (Id. ¶ 51.)

Modery informed Ozoroski on March 21, 2004 that his surgery was delayed until defendant Dr. Adam Edelman ("Edelman"), director of PHS, was able to examine photographs of Ozoroski's hernia site. (Id. ¶ 52.) PHS then denied Ozoroski's request for surgery on April 23, 2004. (Id. ¶ 56.) A subsequent surgery request was denied by PHS on June 23, 2004. (Id. ¶ 62.) These denials led Ozoroski to file another grievance on June 28, 2004, which led to another rejection by the DOC. (Id. ¶ 63.) Ozoroski alleges that he appealed this rejection on July 13, 2004, but that he never received a response from the DOC. (Id.)

On September 25, 2004, Ozoroski received notification from the Veterans' Administration ("VA") that he was enrolled in its health care system and was scheduled for an appointment on December 17, 2004.*fn7 (Id. ¶¶ 66-67.) Attendance at the appointment required Ozoroski to obtain permission for prerelease from prison officials. (See id. ¶ 68.) On October 15, 2004, the prison unit manager, Ms. MacKnight, notified Ozoroski that he was ineligible for prerelease. (Id.) When Ozoroski requested justification for this determination, Ms. MacKnight allegedly explained that she was under a specific order to refrain from filing an application for Ozoroski's prerelease to the VA. This order was purportedly issued by the prison Health Care Administrator at the state correctional facility at Mahoney*fn8 ("SCI Mahoney"), defendant Marva Cerullo ("Cerullo"). (Id.) Ozoroski filed another grievance on November 9, 2004; it too was rejected. (Id. ¶ 74.)

At least three different physicians examined Ozoroski between December 9, 2004, and December 2006. (See id. ¶¶ 78-86.) Each physician allegedly recommended that Ozoroski receive abdominal surgery. (See id.) Dr. Paul Meade at Geisinger Medical Center cautioned that, without surgery, Ozoroski was unlikely to live much longer. (Id. ¶ 84.) Ozoroski claims that in spite of Dr. Meade's warning, he "was continually denied medical treatment for his condition . . . by the prison's contract health care providers." (Id. ¶ 86.) In December 2006, Ozoroski was transferred from SCI Mahoney to the Gaudenzia Drug Rehabilitation Center of Philadelphia, administered by defendant Gaudenzia, D.R.C. ("Gaudenzia"). (Id. ¶ 87.) Dr. Kenneth Widom, also at Geisinger Medical Center, examined Ozoroski prior to his transfer and purportedly recommended surgery. (Id.) Dr. Widom told Ozoroski to contact him in order to schedule an operation after he was transferred to Gaudenzia. (Id.)

Ozoroski arrived at Gaudenzia and notified his medical supervisor, Ms. Marsh, that he needed to use the telephone in order to arrange an appointment with Dr. Widom. (Id. ¶ 88.) According to the complaint, Ms. Marsh purportedly denied him access to a telephone. (Id.) Ozoroski's unit manager at Gaudenzia, Mr. Means, refused subsequent requests for a telephones. (Id. ¶ 89.) On January 11, 2007, Ozoroski met with an individual at Gaudenzia named Ernie Bellos ("Bellos"). After explaining that the Gaudenzia staff had denied him access to the telephones, Bellos facilitated Ozoroski's attempts to contact the VA. (Id. ¶¶ 91-94.) From January 2007 to October 2007, Ozoroski attended several appointments at the VA, which eventually culminated in abdominal surgery in October 2007. (Id. ¶ 100.) The operation required the removal of 50% of Ozoroski's intestinal tract. (Id. ¶ 101.)

On January 14, 2008, Ozoroski commenced the instant action by filing a complaint with this court. (Doc. 1.) Ozoroski alleges that all defendants, including three against whom the complaint lodges no factual averments,*fn9 collectively violated his constitutional rights by acting with deliberate indifference to his medical needs and depriving him of adequate medical care. (See Doc. 31.) He requests both equitable and monetary relief. (Id.) When Ozoroski prepared his complaint, he was scheduled for transfer from Gaudenzia to the VA hospital in Lebanon, Pennsylvania. (Doc. 31 ¶ 151.) After filing, however, he was allegedly returned to SCI Mahoney, where he is currently incarcerated. (Id.) Ozoroski subsequently amended his complaint in order to include allegations of retaliatory transfer. Defendants have filed four separate motions to dismiss on various grounds.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests."

Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of other federal laws. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kopec v. Tate, 361 F.3d 772, 775-76 (3d Cir. 2004). To establish a claim under this section, the plaintiff must show the deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).

In the action sub judice, Ozoroski alleges that defendants were deliberately indifferent to his serious need for abdominal surgery. He further avers that he has been repeatedly denied surgery and reasonable medical care since 1994. As a result of this deliberate indifference, Ozoroski contends that he was forced to endure excruciating pain and the eventual loss of half of his intestinal tract. Defendants have raised several defenses to Ozoroski's claims, including inter alia Eleventh Amendment sovereign immunity, expiration of the statute of limitations, and failure to state a claim for relief under the Eighth Amendment. Sua sponte, the court also recognizes deficiencies regarding the sufficiency of service. These issues are addressed seriatim.

A. Eleventh Amendment Immunity

Ozoroski brings Eighth Amendment claims against both Maue and Cerullo as state officials acting in their official capacity. Maue is chief of the Clinical Services Bureau for the DOC's Health Care Services department; Cerullo is the health care administrator at SCI Mahoney. (Doc. 31 ¶¶ 7, 13.) Ozoroski's official capacity claims are barred by the Eleventh Amendment, which precludes private federal litigation against a state and its agencies.*fn10 Hans v. Louisiana, 134 U.S. 1, 15-16 (1890); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Lombardo v. Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008). For purposes of the Eleventh Amendment, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office."*fn11 Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, Ozoroski's official capacity claims represent nothing more than an attempt to bring suit against agencies of the state.*fn12 As such, they are ...


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