The opinion of the court was delivered by: Judge Caldwell
The pro se plaintiff, Darryl Orrin Baker, filed this civil-rights action arising from his imprisonment at the Satellite Prison Camp in Lewisburg, Pennsylvania, (SPC-Lewisburg).*fn1 The defendants are: (1) Troy Williamson, the retired warden; (2) C. Angelini, a unit manager; (3) J. Tokar, a retired counselor; (4) P. Forbes, a counselor; (5) Dr. A. Bussanich, clinical director; (6) S. Gosa, a physician's assistant; (7) B. Chambers, a disciplinary hearing officer; (8) R. Kerstetter, correctional programs specialist; (9) J. Geradi, a physician's assistant; (10) Bill True, case manager; (11) B. Ross, a correctional officer; and (12) Ross Boyd, a correctional officer. They have been sued in their individual and official capacities.
Plaintiff makes the following civil rights claims: (1) an Eighth Amendment medical claim; (2) a claim for denial of access to the courts; (3) a First Amendment retaliation claim because Plaintiff filed grievances and lawsuits; and (4) equal-protection and racial-discrimination claims.
We are considering the defendants' motion to dismiss some of the claims and for summary judgment on other claims. The motion to dismiss is governed by Fed. R. Civ. P. 12(b)(6), and the motion for summary judgment by Fed. R. Civ. P. 56.
Under Rule 12(b)(6), we must accept as true the factual allegations in the complaint and construe any inferences to be drawn from the allegations in Plaintiff's favor. See Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). The court is not limited to evaluating the complaint alone. It may consider documents that form the basis of a claim. Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). It may also consider "documents whose contents are alleged in the complaint and whose authenticity no party questions," even though they "are not physically attached to the pleading . . . ." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). When appropriate, the court may rely on public records, such as court filings. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999)(citing Pension Benefit Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
A complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, , 127 S.Ct. 1955, 1974, 167 L.Ed.2d. 929 (2007). Detailed factual allegations are not required, id. at , 127 S.Ct. at 1964-65; Pryor, supra, 288 F.3d at 564, only a "short and plain statement" showing the right to relief. Pryor, supra, 288 F.3d at 564 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) and quoting Fed. R. Civ. P. 8(a)(2)).
Under Rule 56, "[s]ummary judgment can only be granted '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.' Fed. R. Civ. P. 56(c). We 'must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.'" Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007)(quoted case omitted).
The amended complaint and the summary judgment record reveal the following background to Plaintiff's claims.*fn2
A. The Eighth Amendment Medical Claim
Plaintiff was assaulted on or about February 27, 2004, by two inmates while he was incarcerated at FCI-McKean, Bradford, Pennsylvania. He suffered a blowout fracture of his left eye. The record shows he received the following treatment while at McKean. Some five weeks after the assault, on April 9, 2004, a consultative CT scan was performed. The radiologist who performed the scan and the consulting physician noted that Plaintiff was complaining about double vision when he would look up. The radiologist noted "[no] obvious muscle entrapment," but that "the inferior rectus is very close to the ridge." (Doc. 38-3, CM/ECF p. 8).*fn3 The consulting physician opined that there were "possible adhesions to the inferior rectus muscle" and advised waiting to see if "the muscle entrapment is resolved." (Id., p. 7). On May 3, 2004, Plaintiff was seen by another consulting physician, who advised waiting six more weeks to see if the double vision resolved before doing anything. (Doc. 44, CM/ECF p. 54). On June 11, 2004, the latter physician advised that Plaintiff still had double vision when looking up and that he believed Plaintiff should have an operation to repair the blowout fracture and release the entrapment. However, he left the decision up to the McKean prison doctor. (Doc. 38-3, CM/ECF p. 10).
At some point, Plaintiff was transferred to FCI-Elkton, Lisbon, Ohio. While incarcerated at Elkton, Plaintiff had another CT scan on March 28, 2005. The physician reviewing the scan noted that there was "[a] small amount of orbital fat extend[ing]" into the area of fracture and that the "left inferior rectus muscle extends to this defect but not through the defect," concluding that the muscle "does not appear to be entrapped." (Id., p. 11).
On August 11, 2005, Plaintiff's prison medical records indicate that he refused to cuff up to be taken to his appointment with the eye doctor and noted that Plaintiff continued to have a decrease in his vision, pain in his left eye and double vision when reading. He refused pain medication, saying Motrin and Naprosyn were no help. (Id., p. 12).
On or about August 26, 2005, Plaintiff was transferred to Lewisburg. On January 10, 2006, prison medical records indicate he wanted to see an eye specialist for his blowout fracture. It was noted in the record that this was his first complaint at Lewisburg about the fracture and that at his previous institution he had refused to see the ophthalmologist. Plaintiff was given 800 mg. tablets of ibubrofen for his pain and was referred for an ophthalmology consultation. (Id., p. 13).
Thereafter, Plaintiff continued to complain of pain in his left eye and double vision when he looked up. He was prescribed pain medication, such as ibuprofen, Naprosyn, and piroxicam. (Id., pp. 15-34). Often, notes made by medical personnel would refer to the March 2005 CT scan as establishing that there was no entrapment of the left inferior rectus muscle. (Id., pp. 18, 20, 24, and 27).
Plaintiff was scheduled for CT scans while at Lewisburg. One was scheduled for October 3, 2006, but Plaintiff did not appear. (Id., p. 27). Plaintiff did have a scan on October 31, 2006. In pertinent part, the report on this scan noted "chronic post traumatic deformities," "fat between the medial rectus and the medial wall of the orbit," and the inferior rectus muscle was "thickened, oriented obliquely and inferiorly positioned when compared to the contralateral muscle." (Id., p. 29; doc. 44, p. 76). On December 29, 2006, referring to a consultation made on June 13, 2006, Dr. Bussanich made a note "doubt surgery is the answer." (Doc. 38-3, p. 32).*fn4
Plaintiff was transferred to FCI-Sandstone, Sandstone, Minnesota, on or about March 27, 2007. He continued to complain of pain in his left eye. On February 12, 2008, as part of a consultation request, the clinical director there also noted the report on the March 2005 CT scan noting that the inferior rectus muscle was not extending through the fracture site.*fn5 (Doc. 44, p. 81).
In May 2005, Plaintiff filed a lawsuit in the United States District Court for the Western District of Pennsylvania. Under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, he sued the United States, FCI-McKean's warden, its medical department and one of the prison's officers for medical malpractice involving the treatment he received for his eye injury. Baker v. United States, No. 05-147, 2006 WL 3717382 (W.D. Pa. Dec. 14, 2006).*fn6
In connection with that lawsuit, the district court arranged for counsel to represent Plaintiff and a medical expert was retained. The expert submitted a report that there was medical malpractice in the treatment Plaintiff received at FCI-McKean. (Doc. 51-2, report, dated August 6, 2008). The expert opined as follows. First, within a few days of the injury, after the swelling had subsided, Plaintiff should have received a CT scan.*fn7 Second, the CT scan would have revealed that the inferior rectus muscle was entrapped because, contrary to the opinion of the physician reviewing the March 2005 CT scan, since the muscle is attached to the fat, entrapment of the fat is the same as entrapment of the muscle.*fn8 Third, at that time Plaintiff should have been given the option of having surgery performed, which had an excellent chance of restoring full function, or almost normal function, to the eye. If the first operation was not a success, then there should have been a wait of three to six months and a second operation performed, to "re-align" the eyes "as best possible." (Id., p. 91). On January 21, 2009, the lawsuit was tentatively dismissed as having been settled.
On some unspecified date, defendant True, a counselor, called Plaintiff into his office to sign forms so that Plaintiff could see an outside orbital specialist but ...