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Walthour v. Tennis

September 9, 2009


The opinion of the court was delivered by: Judge Vanaskie



Joseph Walthour, proceeding pro se, initiated this action pursuant to 42 U.S.C. § 1983 while previously confined at the Rockview State Correctional Institution, Bellefonte, Pennsylvania (SCI-Rockview).*fn1 An Amended Complaint (Dkt. Entry # 39) was filed on September 18, 2006, and a Second Amended Complaint (Dkt. Entry # 53) was subsequently submitted on March 8, 2007.*fn2

By Memorandum and Order dated February 4, 2008, the Corrections Defendants' motion to dismiss was granted and Defendants Franklin Tennis, Raymond Coffman, Jeffrey Rackovan, Sharon Burks, and Richard Ellers were dismissed as parties to this action. (Dkt. Entry # 72.) In addition, dismissal was granted in favor of two Medical Defendants, Jodi Hicks and Prison Health Services. (Id.) Remaining Medical Defendants are Physician Assistant (PA) Kathleen Kennedy, SCI-Rockview Medical Director Dr. John Symons, and Dr. Christina Doll, all of whom worked at SCI-Rockview during the relevant time period. (Dkt. Entry # 88, ¶¶ 2-4.)

With respect to his surviving claims, Plaintiff's Second Amended Complaint contends that after developing a circular rash on his left cheek, left side of his chest and left side of his abdomen, Walthour submitted a sick call request to the SCI-Rockview Medical Department on December 20, 2004. PA Kennedy visually examined Plaintiff that same day and diagnosed him as having tinea corporis, a fungal infection more commonly referred to as ringworm. (Dkt. Entry # 53, ¶ 18.) Walthour was given a shampoo containing selenium sulfide to apply to the affected areas. After using the shampoo for two (2) weeks, Plaintiff noticed that his condition was persisting. (Id. at ¶ 20.)

Walthour states that when the rash spread to the other side of his body, he submitted a second sick call request on January 3, 2005. Plaintiff was again seen by Kennedy, who gave him a topical antifungal cream containing Micconazole and told him to apply it to the affected areas. (Id. at ¶ 22.) However, it is alleged that PA Kennedy refused Plaintiff's requests to be referred to a doctor and that a culture be taken in order to confirm her diagnosis.

Despite using the antifungal cream for three (3) weeks, Plaintiff's rash purportedly continued to slowly spread. A third sick call request was submitted by Plaintiff on January 25, 2005. Following an evaluation by Kennedy, Defendant Doll signed an authorization for Plaintiff to be prescribed Griseofluvin Ultramicrosize (Gris-Peg). Plaintiff was to take one 250 milligram oral capsule of Gris-Peg daily with food for 30 days. (Id. at ¶¶ 27-28.) Upon taking Gris-Peg, Walthour claims that he immediately developed hives; excessive itching; fluid emission; burning sensation; excessive dryness and peeling of the skin; blurred vision; loss of vision in his right eye; and skin discoloration. (Id. at ¶ 29.)

On March 21, 2005, Plaintiff submitted a fourth sick call request. When Walthour expressed concern that the Gris-Peg was aggravating his condition, Kennedy allegedly responded that Plaintiff's immune system and the medication were fighting off the ringworm. However, Kennedy referred Plaintiff to be evaluated by Dr. Doll and obtained authorization from Dr. Symons to prescribe Plaintiff an increased dosage of Gris-Peg (from 250 milligrams to 500 milligrams daily for an additional 30 days).

Upon taking the increased dosage, Walthour purportedly experienced a more intense reaction, including hives, blurred vison, loss of vison 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. He informed Correctional Officers Swelley and John of the problems being caused by the medication. The correctional officers telephoned Kennedy that same day and asked when Plaintiff would be seen by Dr. Doll. Kennedy purportedly failed to provide an answer, indicating only that the medical staff was aware of the Plaintiff's condition. As a result, the correctional officers allegedly advised Walthour to submit a grievance to Superintendent's Assistant Rackovan.

Three days later, on April 4, 2005, Doctor Doll examined Plaintiff. A punch biopsy of Plaintiff's left chest was taken on April 11, 2005. On April 22, 2005, Kennedy informed Plaintiff that he was cured of ringworm.

Walthour states that he is allergic to penicillin and that this allergy is noted in his medical history and DOC medical records. After conducting his own research, Plaintiff discovered that Gris-Peg is an antibiotic derived from a species of penicillin. Consequently, his Second Amended complaint contends that the remaining Medical Defendants acted with deliberate indifference by prescribing a medication that is a derivative of penicillin and by waiting three (3) days to provide him with treatment following his severe allergic reaction of April 1, 2005.

Presently pending is the Remaining Defendants summary judgment motion. (Dkt. Entry # 85.) The motion has been briefed and is ripe for consideration.*fn3


Defendants Symons, Doll and Kennedy claim entitlement to summary judgment on the grounds that: (1) the absence of expert testimony precludes consideration of Plaintiff's claims; (2) the evidence of record does not support a reasonable inference of deliberate indifference; and (3) the claims against ...

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