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Evans v. Rozum

December 16, 2009


The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge

MEMORANDUM OPINION Re Dkt. Nos. [121]; [131]; [137]; and [157]

HAY, Chief Magistrate Judge

This is a prisoner civil rights case, which was the subject of earlier proceedings in which the Court granted in part and denied in part motions to dismiss filed by the two sets of defendants. Dkt. [83] (memorandum opinion). Familiarity with that earlier memorandum opinion and order, disposing of the motions to dismiss is presumed. As a consequence of the earlier proceedings, only the following claims remain: (1) two Section 1983 claims for (a) deliberate indifference against all of the defendants and (b) retaliation claims against all of the defendants under the First Amendment; (2) ADA retaliation claims against all of the defendants; (3) retaliation claims under the Rehabilitation Act against all of the defendants; (4) state constitutional law claims against all defendants; (5) a claim for punitive damages against all defendants; and (6) a state law claim of intentional infliction of emotional distress against PHS and Dr. McGrath.

Procedural and Factual History

James D. Evans ("Plaintiff") is a state prisoner incarcerated at SCI-Somerset. The Second Amended Complaint is the operative complaint. Dkt. [36]. The operative complaint named the following defendants: Gerald Rozum, Superintendent of SCI-Somerset; Joseph Visinsky, Health Care Administrator; Steven Gates, Deputy Superintendent of SCI-Somerset; Daniel Gehlman, Major of Security; Lt. John Doe (in charge of RHU on January 13, 2008), subsequently identified as Richard Doyka; and the Department of Corrections (collectively, "the DOC Defendants")*fn1 as well as Dr. Timothy McGrath, the Medical Director at SCI-Somerset, and Prison Health Services, Inc. ("PHS"), the private company hired by DOC to provide health care to the inmates at SCI-Somerset. The court will refer to Dr. McGrath and PHS as "the Medical Defendants." Plaintiff has named all of the natural person defendants in both their individual and official capacities.

Plaintiff filed a motion for summary judgment, Dkt. [121], a brief in support, Dkt. [122], a pretrial statement, Dkt. [123], a concise statement of material facts, Dkt. [124], and Plaintiff's second appendix of exhibits, numbered 23 to 55, Dkt. [125]. Plaintiff had earlier filed a partial motion for summary judgment, Dkt. [72], which was mooted by his filing of the present summary judgment motion. In support of the partial summary judgment motion, Plaintiff submitted exhibits, numbered 1 to 22, Dkt. [76], to which he refers in support of his present summary judgment motion and in opposition to the Defendants' summary judgment motions.

The Medical Defendants filed their response to Plaintiff's summary judgment motion, Dkt. [139], and their counter statement of facts, opposing Plaintiff's statement of material facts, Dkt. [140]. The DOC Defendants filed their counter statement of facts, opposing Plaintiff's statement of facts, Dkt. [150], and an appendix of exhibits in support thereof, Dkt. [151], and their response to Plaintiff's summary judgment motion, Dkt. [152].

There were some intervening proceedings in which Plaintiff sought to strike many of the affidavits of the Defendants, which proceedings resulted in the striking of the affidavits, but thereafter amended affidavits were ultimately permitted to be filed to cure the deficiencies. Ultimately, Plaintiff filed a responsive pleading to the Medical Defendants' Counter Statement of Material Facts. Dkt. [166](which is wrongly identified on the docket as a "Brief"). Plaintiff also filed a responsive pleading to the DOC Defendants' Counter Statement of Material Facts. Dkt. [174].

In the meanwhile, the DOC Defendants filed their own motion for summary judgment, Dkt. [131], a brief in support, Dkt. [132], and a Concise Statement of Material Facts, Dkt. [133] (with evidentiary materials attached).

Similarly, the Medical Defendants filed a Concise Statement of Material Facts, Dkt. [135], an appendix of evidentiary materials, Dkt. [136], their summary judgment motion, Dkt. [137], and a brief in support of their summary judgment motion, Dkt. [138]. In the Medical Defendants' brief in support of their summary judgment motion, they incorporated the arguments made by the DOC Defendants in support of the DOC Defendants' summary judgment motion and brief. Dkt. [138] at 16.

Thereafter, the DOC defendants filed a supplemental motion for summary judgment, Dkt. [147], incorporating the brief in support of the summary judgment motion that the Medical Defendants had previously filed, i.e., Dkt. [138].

Plaintiff filed his counter statement of material facts in opposition to the DOC Defendants' statement of material facts. Dkt. [159]. Plaintiff also filed a brief in opposition to the DOC Defendants' Motion for Summary Judgment and Supplemental Motion for Summary Judgment. Dkt. [168]. In addition, Plaintiff filed his counter statement of material facts in opposition to the Medical Defendants' statement of material facts. Dkt. [160]. Simultaneous to the filing of Plaintiff's counter statement, he also filed two sets of evidentiary appendices: Dkt. [161], Plaintiff's Third Appendix with exhibits numbering 56 to 63, and Dkt. [162], Plaintiff's Fourth Appendix with exhibits numbering 64 to 84. Later, Plaintiff filed his brief in opposition to the Medical Defendants's motion for summary judgment. Dkt. [169]. Plaintiff also filed his Fifth Appendix of Evidentiary Materials with Exhibits numbering 85-96, Dkt. [170].*fn2

The summary judgment motions are now ripe for disposition. All parties have consented to have the Magistrate Judge exercise plenary jurisdiction and enter final judgment. Dkt. Nos. [34]; [43]; [69]; [70] & [71].

Standard of Review

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden to show or point out why there is no genuine issue of material fact. Walters ex rel. Walters v. General Motors Corp., 209 F.Supp.2d 481, 484 (W.D. Pa. 2002). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial . . ." or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing the summary judgment evidence, the Court has no duty to search the record for triable issues; rather, it need rely only on those portions of the evidentiary record to which the nonmoving party directs its attention. See Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992).

"The substantive law governing the dispute will determine which facts are material, and only disputes over those facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004)(internal quotations omitted). An issue of material fact is genuinely disputed only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587. The inquiry involves determining whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). If a court, having reviewed the evidence with this standard in mind, concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary judgment may be granted. Anderson, 477 U.S. at 249-50. Moreover, it is not enough for the non-movant to show that there is some dispute as to facts, rather, "only disputes over facts that might affect the outcome of the suit will prevent summary judgment." Anderson, 477 U.S. at 248. AccordRexnord Holdings v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) ("[T]he mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]"); Dykes v. DePuy, Inc., 140 F.3d 31, 36 (1st Cir. 1998) ("summary judgment is not precluded by just any factual quibble").

In short, the summary judgment motion is an evidence testing device to see if there is sufficient evidence to support a party's position with respect to an issue for which that party bears the burden of proof at trial so as to justify holding a trial. See, e.g., Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001)(summary judgment "is the . . . moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.").


As noted above there are two section 1983 claims remaining. One is for deliberate indifference in violation of the Eighth Amendment standards. The second is for retaliation in violation of the First Amendment standards.

In order to make out a claim under Section 1983, a plaintiff must demonstrate that the conduct of which he is complaining has been committed under color of state or territorial law and that it operated to deny him a right or rights secured by the Constitution and laws of the United States. The plaintiff must also establish that it was the acts of the defendant which caused the constitutional deprivation.

Mosley v. Yaletsko, 275 F.Supp.2d 608, 613 (E.D.Pa. 2003)(citations omitted).

A. Eighth Amendment Deliberate Difference Claims

The Supreme Court has explained that analysis of a violation of the Eighth Amendment standards*fn3 involves a two pronged inquiry: (1) an objective inquiry into the qualitative nature of the harm suffered by the victim of the alleged punishment, and (2) a "subjective inquiry" into the mind of the person inflicting the harm. See Wilson v. Seiter, 501 U.S. 294 (1991). The plaintiff bears the burden of proof as to both the subjective and objective prongs for, as the Court of Appeals has explained, in order to "survive a summary judgment on an Eighth Amendment claim asserted under 42 U.S.C. § 1983, a plaintiff is required to produce sufficient evidence of (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation." Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997). In cases such as this one -which involves a purported denial of medical care - to prove the subjective component of an Eighth Amendment claim, a plaintiff has the burden of proving that the defendant acted with deliberate indifference. Estelle v Gamble, 429 U.S. 97 (1976); Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). "Deliberate indifference" occurs when a prison "official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994).As a corollary of the deliberate indifference standard, negligence by staff at the prison, medical personnel and physicians in treating prisoners is not sufficient to state an Eighth Amendment violation. Estelle, 429 U.S. at 105-06. Mere delay in medical treatment without more is insufficient to state a claim of deliberate medical indifference. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 408 (9th Cir. 1985).

We take up the DOC Defendants' motion for summary judgment first. The DOC Defendants eventually provided affidavits and medical records that met the requirements of Fed.R.Civ.P. 56, which they point to as indicating that the record lacks evidence of the subjective prong of deliberate indifference as well as the objective prong. See Dkt. [188]. This was sufficient to meet their initial summary judgment burden so as to shift the burden to Plaintiff to come forward with his evidence. Plaintiff's first Eighth Amendment claim seems to be the following: 1) denial of bowel program supplies from Sunday January 13, 2008 to Thursday, January 17, 2008. See, e.g., Dkt. [16] at 13, ¶ 51 (but Plaintiff claims this denial was from Friday January 11, 2007, at 10:30 pm, which was the last time he did his bowel program with all of the necessary supplies. However, he was, in fact, not denied his complete supplies until January 13, 2008, when he requested them); id., at 14, ¶ 56.

The summary judgment record, read in a light most favorable to Plaintiff establishes that when he was sent into the RHU for a disciplinary violation on Sunday January 13, 2008, at approximately 7:40 A.M. (Dkt. [16] at 10, ¶ 34), Defendant Doyka, not knowing exactly what supplies Plaintiff was medically required to have in order to do his bowel program, Dkt. [133] at 5, ¶ 41, ordered around 11 A.M., (see id. at ¶ ¶ 37-38) that Plaintiff not receive lubricant, and only receive some but not all of the other supplies Plaintiff was ordered to have by Dr. McGrath in order to do his bowel program. Lt. Doyka made these orders based apparently upon heightened security concerns attendant upon Plaintiff being in the RHU. See Dkt. [133] at 5, ¶ 37. Plaintiff claims he was denied some of his supplies to do the bowel program, even though Plaintiff asserts that during prior stays in the RHU, he was permitted to have all of his supplies. As a consequence of him being denied all of his supplies in the RHU on January 13, 2008, Plaintiff filed an Accommodation Request to Defendant Visinsky on January 13, 2008 but which was not stamped received by the medical department until the following day. Dkt. [76-17] at 1. The entire text of the accommodation request was as follows:

Dear Sir,

I am filing this under DC ADM 006 Accomodation [sic] Request. I am a T12/L1 paraplegic [and] I do a bowel program [and] use a foley catheter [and] night drange [sic, possibly "drainage"] bag/leg bag.

I am requesting an accomodation [sic] as follows:

1[.] to have my bowel program done at or after 8:45 pm count -- the time I have always done my bowel program in the RHU [and] general population.

2[.] to have (2) chucks pads; (2) surgilube; (2) bags (to dispose of the chucks); (5) gloves; [and] (1) fleets enema in my cell to do my bowel program.

Id, Defendant Visinsky responded to the accommodation request noting that "Medical [i.e., the Medical Department] can make the item available but security [i.e, the Security Department of the RHU] rules on how they are distributed." Id. Plaintiff also filed an emergency grievance on January 13, 2008 to the Grievance Coordinator, Ms. Sroka, who received it on January 14, 2008 and responded to it that same date, indicating that she was referring the emergency grievance to Medical. Dkt. [76-18] at 1. Plaintiff complains that he never received an answer to that grievance. Dkt. [123] at 19, ¶ 91. Plaintiff also claims that Ms. Sroka sent the emergency grievance to Visinsky specifically on January 14, 2008. However, there does not appear to be any evidence of record that Plaintiff pointed to which shows that Visinsky, rather than someone else in the Medical Department, ever saw this emergency grievance. On January 14, 2008, Plaintiff was again offered the limited supplies in order to perform his bowel program but again refused, noting that he needed all of his medical supplies in order to properly perform his bowel program. Dkt. [123] at 20, ¶ 92. The same thing happened on January 15, 2008. Id., at ¶ 93. On January 15, 2008, Plaintiff sent request forms to Gates, Dkt. [76-20] and to Defendant Superintendent Rozum, Dkt. [76-21], concerning the needed bowel program supplies. It appears that Mr. Gates responded on January 16, 2008, indicating that "I have already instructed the RHU Lt. to advise all RHU staff [that] you are permitted to have in your possession the items/quantities listed above." Dkt. [76-20]. It is not clear when Defendant Rozum saw Plaintiff's January 15, 2008 request form but Defendant Rozum promptly replied to the request form on January 17, 2008, in pertinent ...

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