The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
A. Relevant Procedural History
On October 15, 2007, Plaintiff Timothy Walker, a prisoner incarcerated at the State Correctional Institution at Albion, Pennsylvania ("SCI-Albion"), commenced this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Named as Defendants are: Marilyn Brooks, former Superintendent at SCI-Albion ("Brooks"); Nancy Giroux, Deputy Superintendent at SCIAlbion ("Giroux"); Dr. Mark Baker, a physician under contract to provide medical services to inmates at SCI-Albion ("Baker"); Daniel Telega, a physician's assistant under contract to provide medical services to inmates at SCI-Albion ("Telega"); Maxine Overton, Corrections Health Care Administrator at SCI-Albion ("Overton"); Christine Zirkle, a registered nurse at SCI-Albion ("Zirkle"); and the Pennsylvania Department of Corrections ("DOC"). [Document # 1]. Defendants Baker and Telega are hereafter referred to collectively as "Medical Defendants", while the remaining Defendants will be referred to collectively as "DOC Defendants."
In his complaint, Plaintiff alleges that Defendants violated his rights under the eight amendment to the United States Constitution by: (i) refusing to allow him to undergo medically- recommended hip replacement surgery, both while he was confined in SCI-Albion's Restricted Housing Unit ("RHU") and after he was released back to general population; and (ii) failing to give him strong enough medication for his pain. (Complaint at pp. 1-2). Plaintiff further challenges SCI-Albion's "blanket policy of classifying medically recommended surgeries not necessary to save the patient's life as 'elective' and failing to allow inmates in the RHU to elect surgeries necessary to alleviate severe pain." (Complaint at ¶ 96). Plaintiff also claims that Defendants' failure to grant him a reasonable accommodation to allow him to receive hip replacement surgery violated his rights under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, et seq. ("ADA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. ("Rehabilitation Act").
Both the Medical Defendants and the DOC Defendants have filed motions for summary judgment [Document ## 36 and 42, respectively], and Plaintiff has filed a consolidated response to the same. [Document # 48]. This matter is now ripe for consideration.
B. Relevant Factual History
On August 22, 2006, Defendant Baker referred Plaintiff to Dr. Habusta, an outside orthopedic surgeon, for a consultation regarding Plaintiff's progressive arthritis and pain in his left hip. (Document # 40, Exhibit A, Baker deposition transcript, at pp. 17-19). At the time, Plaintiff had been receiving Methadone, a narcotic, for his hip pain; however, the Methadone was discontinued on November 2, 2006, due to misuse, because Plaintiff was discovered "fishing medication" to other inmates. (Document # 40, Exhibit A, Baker deposition transcript, at p. 83; Exhibit E, Overton deposition transcript, at pp. 32, 34; and Exhibit G, Plaintiff deposition transcript, at pp. 32-33). After the Methadone was discontinued, Plaintiff was prescribed several different pain medications and muscle relaxants, at various times, including Diclophen, Ultram, Naprosyn, Ultram with Tylenol, Motrin, Flexeril, Parafon forte DFC, Baclofen, Elavil, and Voltaren. (Document # 40, Exhibit A, Baker deposition transcript, at pp. 79-83; Exhibit B, Telega deposition transcript, at pp. 29, 42, 55, 60; Exhibit F, Zirkle deposition transcript, at pp. 23, 24, 39, 51; and Exhibit G., Plaintiff deposition transcript, at p. 35).
Plaintiff saw Dr. Habusta on November 28, 2006, at which time Dr. Habusta recommended that Plaintiff undergo a left total hip arthroplasty. (Complaint at ¶ 22; Document # 40, Exhibit A, Baker deposition transcript, at pp. 27-28, 36; and Exhibit B, Telega deposition transcript, at p. 16). Dr. Habusta explained that the risks of hip replacement surgery included fracture, loss of blood, infection, and having to remove the replacement hip. (Document # 40, Exhibit G, Walker deposition transcript, at pp. 48-50). Plaintiff was also informed that he would need physical therapy after the surgery to aid his recovery. (Id. at p. 58; Exhibit A, Baker deposition transcript at p. 41).
At the time of Dr. Habusta's recommendation, Plaintiff was confined in SCI-Albion's Restricted Housing Unit ("RHU"). Because of the lack of good postoperative care and physical therapy follow up in the RHU, the hip replacement surgery was deferred until after Plaintiff was released from the RHU. (Document # 40, Exhibit A, Baker deposition transcript, at p. 54-55).
On December 6, 2006, Defendant Baker reviewed Dr. Habusta's recommendations and ordered a course of physical therapy, which was not typically provided to inmates in the RHU. (Document # 40, Exhibit A, Baker deposition transcript, at pp. 42-43; Exhibit E, Overton deposition transcript, at p. 52). The physical therapist gave Plaintiff exercises he could do on his own in the RHU while awaiting surgery. (Document # 40, Exhibit G, Walker deposition transcript, at pp. 52-53).
Plaintiff was released from the RHU at the end of August 2007. (Complaint at ¶ 31). Defendant Baker saw Plaintiff on October 17, 2007, and requested approval for Plaintiff's hip replacement surgery on October 25, 2007. (Document # 40, Exhibit A, Baker deposition transcript, at pp. 61, 95). The surgery was subsequently postponed because preoperative blood work revealed a low platelet count. After repeat blood work showed Plaintiff's platelet count to be stable, he was scheduled for surgery, which was performed on March 10, 2008. (Id. at p. 98).
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine as to any material fact and that the moving party is entitled to a judgment as matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(non-movant must present affirmative evidence-more than a scintilla but less than a preponderance-to support his claims). When deciding a motion for summary judgment, a court must draw all reasonable inferences in the light most favorable to the non-movant. Bailey v. United Airlines, 279 F.3d 194, 198 (3d Cir. 2002) quoting Battaglia v. McKendry, 233 F.3d 720, 722 (3d Cir. 2000). Nonetheless, a party opposing summary judgment must do more than rest upon mere allegations, general denials, or vague statements, rather, "the party opposing the motion must go beyond its pleadings and designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories showing there is a genuine issue for trial." In re Ikon Office Solutions, 277 F.3d 658, 666 (3d Cir. 2002).
On a motion for summary judgment, the district court may not weigh the credibility or weight of the evidence, rather, it may only determine the existence of a triable issue of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). A genuine issue is one in which the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
1. Eighth Amendment Claims
In the medical context, a constitutional violation under the Eighth Amendment occurs only when state officials are deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976). "In order to establish a violation of [the] constitutional right to adequate medical care, evidence must show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference to a serious medical need involves the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104. Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or "persistent conduct in the face of resultant pain and risk of permanent injury" White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
Mere misdiagnosis or negligent treatment is not actionable as an Eighth Amendment claim because medical malpractice is not a constitutional violation. Estelle, 429 U.S. at 106. "Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted).
Here, Plaintiff claims that Defendants violated his Eighth Amendment rights by: (i) deliberately delaying his access to medical services for a serious medical need for non-medical reasons; (ii) creating and/or enforcing a blanket policy of classifying medically recommended surgeries not necessary to save the patient's life as "elective" and failing to allow inmates in the RHU to elect surgeries necessary to alleviate severe pain; (iii) deliberately failing to provide him with a medically recommended surgery because of his housing status; (iv) deliberately withholding needed medical treatment as an incentive to improve his behavior; and (v) deliberately failing to provide him with and/or delaying the provision of a medically recommended surgery after his release from RHU. (Complaint at ¶¶ 95-99).
i. Expert Medical Testimony
The Medical Defendants argue that Plaintiff cannot establish an Eighth Amendment claim because he has failed to obtain medical expert testimony to prove that the delay in providing hip replacement surgery caused him actual harm.*fn2 Based upon the record, this Court disagrees that medical expert testimony ...