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Caldwell v. Fogel

September 21, 2009


The opinion of the court was delivered by: Hay, Chief Magistrate Judge

Chief Magistrate Judge Amy Reynolds Hay

Re: Dkt. Nos. 38 & 41


Clay Caldwell ("Plaintiff"), a frequent pro se litigator who is well known to this Court, has filed yet another prisoner civil rights complaint. Plaintiff is a prisoner, serving a life sentence for murder, and was recently transferred to SCI-Greensburg. However, the current complaint concerns the time he was housed in SCI-Greene.

In his current suit, Plaintiff names nine defendants, all of whom worked at SCI-Greene. Plaintiff makes two main complaints: (1) that Defendants have exhibited deliberate indifference to his serious medical needs, i.e., peeling skin on his feet (due to, he surmises, the fact that he worked in the prison kitchen and sometimes the cleaning solution, which he used to wash the food carts, got into his shoes) and hip and knee pain; and (2) that Defendants are taking money out of his account to pay for medications that he should not be charged for under DOC policy.

(Doc. 18 at ¶¶ 9, 13). These actions are said to have violated Plaintiff's constitutional rights. He specifies the time frame for the alleged constitutional violations as being from May 24, 2007 to the present, i.e, to the time he signed his pro se complaint, which was May 28, 2008.

Factual Background

On May 24, 2007, Dr. Park, a defendant herein, examined Plaintiff's feet and ordered some medicated cream for them, namely Tinactin and Clotrimazole. (Doc. 18 at ¶ 1). On November 19, 2007, some six months later, Certified Registered Nurse Practitioner Lukas, a defendant herein, assessed Plaintiff's feet through the cell door and ordered A & D ointment, which Plaintiff complains was not the treatment that Dr. Park had ordered. (Id.). However, the exhibits Plaintiff attaches to his complaint indicate that Dr. Park had only ordered the Tinactin and Clotrimazole for one month. (Doc. 18-2 at 18). Plaintiff complains that his right foot started to bleed in between the toes and pus formed as well after the second time he used the A&D ointment, "not knowing that it was not for Athlete's Foot but for dry skin." (Id. at ¶ 2). Plaintiff complains that no one "told Nurse M.L. Lukas to change Doctor Park's medicine for my feet, and she never read my chart, when she just ordered A& D ointment." (Id.) Plaintiff complains that Defendants Lukas ordered "the wrong medication and . . . [provided] the wrong diagnosis of my problem from her not reading my medical chart." (Id. at ¶ 3).

On December 12, 2007, Physician's Assistant M.L. Howard-Diggs, who is a defendant herein, assessed Plaintiff's feet and ordered Clotrimazole cream for both feet, which Plaintiff notes is only "half the medicine Dr. Park ordered[,]" i.e., Plaintiff did not also obtain an order for Tinactin from Defendant Howard-Diggs. (Id.).

Plaintiff also complains that he was being wrongly charged for these medications and that Defendant Nurse Supervisor Irma Vihlidal even indicated in a grievance response that Plaintiff "would not be charged for the medication from P.A. Howard-Diggs." (Id.). Plaintiff further indicated that Defendant Nurse Vihlidal made this statement "in grievance # 209696, which is still in appeal stage in Camp Hill, Director of Health Care Services[.]" (Id.).

The only mention of Defendant Jeff Martin is that Plaintiff is awaiting a response from Jeff Martin, Deputy Superintendent, Facility Manager at SCI-Greene, for a reply as to Grievance Number 225577, dated April 16, 2008, wherein he complains that his money is being taken out of his account to pay for medications that according to DOC policy, he should not be charged for. (Id.; see also id. at ¶ 9) (citing Exhibit A 7 to 10); id., at 25 ("your [sic] taking money from my account for on going medical care which is in violation with DC-820 pages 2 and 3 (VI.A.2.G P[)]").

In addition to his foot condition, Plaintiff apparently complained of hip and knee pain and requests for bottom bunk status as well as bottom tier status, apparently meaning thereby that Plaintiff would be celled on the first floor tier and not have to walk up steps to the second tier in the cell-housing area. On March 21, 2008, Defendant Howard Diggs apparently informed Plaintiff that he has bottom bunk and bottom tier status and that she was ordering new medicine for pain in Plaintiff's lower back and hip. (Id. at ¶ 5).

On March 24, 2008, Plaintiff received a reply to his inquiries and was told that he had a bottom bunk order but no bottom tier order. (Id. at ¶ 6). Plaintiff complains that on March 28, 2008, he was seen by Defendant Lukas who told him that he did not have bottom tier status nor was he permitted to have a plastic chair in his cell and that if Plaintiff wanted such, she would have to talk with Dr. Jin; Plaintiff then advised her that Dr. Jin was the one who first approved Plaintiff for bottom tier status. (Id. at ¶ 7).

Next, Plaintiff complains that on April 8, 2008, his feet were examined by Defendant Lukas for the first time in person and not through the cell door and that Defendant Lukas gave Plaintiff an opportunity to explain how the problems with Plaintiff's feet began with the cleaning solution from the kitchen getting into Plaintiff's shoes. (Id. at ¶ 8).

Next, Plaintiff complains that on May 1, 2008, Defendant Lukas came to Plaintiff's cell and asked him to lift his foot up to the cell window and Plaintiff again explained what he thought was the cause of his foot problems, i.e., exposure to chemicals in the water in the kitchen that had gotten into his shoes. According to Plaintiff, Defendant Lukas had changed medications for his feet one month earlier from Clotrimazole to Betamethasone DP. (Doc. 18 at ¶ 10). Plaintiff alleges that Defendant Lukas stated to him that she was not going to give him, i.e., reorder, the medication even though he reportedly told her the new medication was working. (Id.). Apparently exasperated, Plaintiff requested to see a dermatologist on May 4, 2008. (Id.).

On May 5, 2008, Plaintiff saw Defendant Lukas on sick call and he told her that he wanted to see a dermatologist for his foot problem and she said no. (Id. at ¶ 11). Plaintiff complains that she is denying him the right to see a specialist after a year of "the wrong medicine, wrong diagnosis by her and other medical staff here at SCI-Greene." (Id.).

Plaintiff next alleges that he exhausted all administrative remedies in the first grievance, i.e., Number 209696, but that the Bureau of Health Care Services Director Alan B. Fogel and Chief Deputy Grievance Officer Cindy S. Watson, still refuse to answer the final part where it is clear that Plaintiff suffered from the "wrong medication and wrong diagnosis and [that] no money should have been taken" out of Plaintiff's account for these medical services. (Id. at ¶ 12). This is the only specific mention of Defendants Watson and Fogel in the complaint. Finally, Plaintiff offers the following summary of his claims:

Medical Staff know that this was not Athlete's Foot but kept giving me Athlete's Foot medication when I explained to them it started from chemicals in the water at work that got into my boots, but medical [staff] did not listen to me and my feet are still peeling, cracking, sometimes bleeding; this is a total disregard for my health and safety from Doctors, Nurses and PA's along with other prison officials[;] a deliberate indifference to my serious medical needs. To when I ask for a skin specialist I was told "no" I would not get to see a dermatologist, why not[,] they can't seem to get it right even when I tell them it was (chemicals) [sic], this is a wanton infliction of pain by medical staff also.

The Medical Staff that allowed and/or took part in this inadequate health care and malpractice along with the wanton and blatan[t] infliction of pain, the deliberate indifference to my serious medical needs, is a violation to my constitutional rights, to have my serious medical needs taken care of even when the staff can't and won't do it, but instead just take money for care I'm not getting. They all know of the wrong ...

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