The opinion of the court was delivered by: Anita B. Brody, J.
In this § 1983 action, Darren L. Miller, a Pennsylvania State prisoner currently incarcerated at the State Correctional Institution at Pittsburgh ("SCI Pittsburgh"),*fn1 alleges: (1) deliberate indifference to his serious medical needs under the Eighth and Fourteenth Amendments to the United States Constitution, (2) retaliation under the First and Fourteenth Amendments, and (3) denial of due process under the Fourteenth Amendment. Each defendant, except for MHM Correctional Services, Inc. ("MHM"), which contracts to provide mental health services to inmates for the State Department of Corrections ("DOC"), moves for summary judgment.*fn2
With regard to the deliberate indifference claim against Defendants Mark Sokolski, R.N., Mark Fishstein, D.O., Felipe Arias, M.D., and Prison Health Services ("PHS"), I will grant summary judgment for Nurse Sokolski, Dr. Arias, and PHS, and I will deny summary judgment for Dr. Fishstein. With regard to Miller's retaliation and due process violation claims against Defendants Jeffrey Beard and David DiGuglielmo, I will grant summary judgment in favor of both defendants on mootness grounds.
Miller has been in state custody since August 1998. He spent his first three years of incarceration at SCI Pittsburgh, SCI Camp Hill, and SCI Greene. From January 2001 through July 2007, Miller was incarcerated at SCI Graterford. In July 2007, Miller was transferred to SCI Camp Hill and then was sent back to SCI Pittsburgh, where he currently resides. (Opp. to Dr. Fishstein's Mot. Summ. J. [hereinafter "Opp., Fishstein Mot."], Miller Dep. 8:13-22, July 31, 2008; Statement of Undisputed Facts ¶¶ 2, 3.) Miller's claims revolve primarily around three incidents: (1) the discontinuance of his psychotropic medications on July 25, 2005; (2) the discontinuance of his allergy and migraine medication in the fall of 2005; and (3) his transfer from SCI Graterford to SCI Camp Hill in 2007.
Miller directs his retaliation and due process claims against Jeffrey Beard, the Secretary of the DOC, and David DiGuglielmo, the Superintendent of SCI Graterford, in their official capacities.
A. Denial of Psychotropic Medication
1. History Prior to July 25, 2005
Miller has a lengthy and well-documented history of both mental illness and behavioral misconduct. Between 1998 and 2006, Miller was diagnosed with mental health conditions such as: (1) bipolar disease; (2) depressive disorder; (3) schizoaffective disorder; (4) impulse control disorder; and (5) severe antisocial personality disorder. (Id. at Statement of Undisputed Facts ¶ 5.) Until July 25, 2005, Miller was treated for these conditions with the following psychotropic medications, in varying combinations and dosages: (1) Seroquel, an antipsychotic agent; (2) Tegretol, an antiseizure medication used as a mood stabilizer and to counteract aggressive impulses; (3) Risperdal, a tranquilizer used for high anxiety and states of impulsivity; (4) Sinequan, which manages anxiety and depression and induces sleep; (5) Elavil, an antidepressant like Sinequan; (6) BuSpar, an anti-anxiety medication; (7) Klonopin, primarily used for the control of anxiety on a short-term basis; and (8) Lexapro, an antidepressant. (See id. at Ex. C; Ex. F, Fishstein Dep. 22:13-23:23, 72:19-21, Aug. 5, 2009.)
Miller also has a long history of misconduct. For example, between March 29, 1999 and May 30, 2006, Miller was cited for 96 behavioral violations, such as aggravated assault, threatening staff, using abusive or obscene language, sexual harassment, self-mutilation, indecent exposure, and property destruction. (See id. at Ex. C.) Due to the combination of his mental illness problems and his behavioral outbursts, Miller spent much of his time at SCI Graterford shuttling between the Restricted Housing Unit ("RHU"), the Special Needs Unit ("SNU"), an isolated area of the prison dedicated to housing mentally ill inmates, and the Psychiatric Observation Cell ("POC") Unit, which consisted of four individual cells for suicidal, homicidal, violent, psychotic, and delirious inmates. (See id. at Ex. F, Fishstein Dep. 8:15-22; 12:12-18.) He has also spent time at Waymart Hospital, a DOC mental health facility. (See id. at Ex. C.)
In January 2005, Dr. Mark Fishstein began working at SCI Graterford as a psychiatrist employed by MHM to provide mental health services to the prison's inmates. Dr. Fishstein began treating Miller soon after he arrived at SCI Graterford. He was aware of Miller's substantial mental health problems, (id. at Ex. F, Fishstein Dep. 25:17-21), and he relied heavily on psychotropic medications to manage Miller. For example, on March 10, 2005, Dr. Fishstein examined Miller, found him to be "verbally hostile," and possibly suicidal, and prescribed Seroquel for him. (Id. at Ex. J.) On April 21, 2005, after Miller was admitted to the POC on a suicide watch, (see id. at Ex. I), Dr. Fishstein prescribed Klonopin for him. (Id. at Ex. J.) On June 2, 2005, Dr. Fishstein met with Miller, noted that he reported feeling stable, and continued his prescriptions for Seroquel, Klonopin, Lexapro, and Tegretol. (Id. at Ex. K.)
At some point during these visits in the spring of 2005, Miller was caught hoarding his medication. At that time, Miller admitted to a medical professional that he was hoarding and explained that he was contemplating suicide by overdosing on his medication. (Id. at Ex. P.)
Nurse Mark Sokolski began working at SCI Graterford in 2001. He was often staffed in different wings of the prison, but by 2005 his primary duty involved the administration of medication in the RHU. Typically, Nurse Sokolski would prepare the inmates' medication and then go from cell to cell, accompanied by a correctional officer ("CO"), depositing the appropriate medication in a wicket attached to the inmate's cell door. He was supposed to watch the inmate take the medication, but he admits that on occasion he failed to do so. (Id. at Ex. G, Sokolski Dep. 17:10-19:4, Apr. 23, 2009.)
Miller, a frequent resident of the RHU, was well known to Nurse Sokolski. Nurse Sokolski had treated Miller prior to 2005 on occasion in the prison's infirmary, in the POC, and in the SNU. (Id. at Ex. G, Sokolski Dep. 9:14-11:14.) Nurse Sokolski knew that Miller had a long history of serious mental health problems and that Miller was under Dr. Fishstein's close supervision and psychiatric care. (Id. at Ex. G, Sokolski Dep. 15:11-14; 14:18-19.) In the RHU, Miller was frequently verbally abusive towards Nurse Sokolski when the nurse came to dispense his medications. (Id. at Ex. G, Sokolski Dep. 19:23-20:5; Ex. A, Miller Dep. 22:19-23:8.) Nurse Sokolski admits that Miller's abuse upset him. (Id. at Ex. G, Sokolski Dep. 21:10-18.)
2. July 25, 2005 Incident and Follow-up Care
On July 25, 2005, Nurse Sokolski visited Miller's cell to give him his medications. Nurse Sokolski wrote in Miller's medical records that Miller said, "[Expletive] you, you [expletive] nurse, I'll take my [expletive] meds when I want to." (Id. at Ex. L.) Miller admits that he verbally abused Nurse Sokolski, but claims that the nurse had cursed at him first. Miller denies saying that he would not take his medication. (Id. at Ex. A, Miller Dep. 79:6-16.) Nurse Sokolski also wrote that Miller was "playing games" with his medication and was deliberately and hazardously noncompliant with his medication. (Id. at Ex. L.) Nurse Sokolski wrote that he discussed the situation with Dr. Fishstein who told him to discontinue Miller's medication until further notice ("discontinuance order"). Dr. Fishstein also ordered that Miller be put in the POC until Dr. Fishstein could examine him. (Id.)
On August 29, 2005, Miller wrote a letter to Dr. Fred R. Maue, Chief of Clinical Services at the DOC's Bureau of Health Care Services, in which Miller complained that he was denied his medications and that Dr. Fishstein refused to see him. (Id. at Ex. A, Miller Dep. 31:13-32:3.) It is not clear whether Dr. Fishstein was aware of the letter, but on August 30, 2005, he made his first attempt to follow up with Miller. Dr. Fishstein was unable to see Miller that day and he did not change his discontinuance order. (Id. at Ex. K.)
On September 18, 2005,*fn4 Miller filed an official grievance in which he stated that his medications had been abruptly discontinued and that Dr. Fishstein refused to see him. (See id. at Ex. P.) Miller's grievance was denied on September 26, 2005 by Myron Stanishefski, a DOC Health Care Administrator. Stanishefski explained to Miller that his medications had been discontinued because of his aggressive behavior towards the staff and his history of hoarding medication. Stanishefski informed Miller that he was scheduled to see a psychiatrist on September 26, 2005. (Id.)
On September 27, 2005, Dr. Fishstein made a second attempt to see Miller, but RHU officials requested that the doctor refrain from seeing Miller that day. (Id. at Ex. K.) On October 4, 2005, Dr. Fishstein examined Miller for the first time since the July 25 incident. He noted that Miller was "hostile . . . [and] defiant," and that Miller refused to answer questions about his mental health. Dr. Fishstein concluded that Miller had no clinical need for psychotropic medications and decided to have his psychology colleagues monitor Miller's behavior. (Id. at Ex. N.)
On October 5, 2005, the day after Dr. Fishstein's examination, Miller appealed the denial of his grievance. Without referencing his meeting with Dr. Fishstein, Miller argued that he had been accused of aggressive behavior many times before, and had admitted to hoarding several months prior to July 25, and yet he had never been denied his medications. He could not understand why officials were citing such behavior to support their decision to discontinue his psychotropic medications. Miller asserted that Nurse Sokolski disliked him and had threatened that he would make sure that Miller's medications would be discontinued. (Id. at Ex. P.)
On October 11, 2005, Miller wrote to Dr. Maue again. He reiterated his previous complaints that the staff was attempting to "grind him up"--punish him--in retaliation for his grievances against them. He asserted that without his medications, he was hearing voices and feeling depressed and irritable. (Id. at Ex. A, Miller Dep. 32:22-34:5.)
On October 12, 2005, Superintendent DiGuglielmo denied Miller's appeal, citing Miller's admission that he had hoarded medication and been aggressive towards the staff. On October 26, 2005, Dr. Maue responded to Miller's October 11 letter. Dr. Maue explained to Miller that his medications had been discontinued due to his non-compliance. Dr. Maue also noted that the SCI Graterford staff had reported that Miller was defiant and hostile towards them and had thrown bodily fluids on the COs. Dr. Maue wrote that he would tell Dr. Fishstein that Miller felt that his psychotropic medications improved his behavior, but he also encouraged Miller to establish a better relationship with the staff and work on being compliant when medication was prescribed for him. (See Opp. to Dr. Arias Mot. Summ. J. [hereinafter "Opp., Arias Mot."], Ex. A.)
On November 1, 2005, Dr. Fishstein spoke with Miller at Miller's cell. Dr. Fishstein noted that Miller was "stable" but "quietly defiant," so he decided to continue monitoring Miller without prescribing him any medication. (Opp., Fishstein Mot., Ex. N.) On December 2, 2005, Miller filed a final appeal, in which he stated that he was being denied medications because of his aggressive actions, the very behavior that the medications were intended to control. Miller asserted that his medications were discontinued for punitive, rather than medical, reasons. On December 28, 2005, Miller's final appeal was dismissed as untimely.*fn5 (Id. at Ex. P.)
On June 20, 2006, Dr. Fishstein provided a summary of Miller's treatment from July 25, 2005 forward. Dr. Fishstein wrote that Miller's medications were intended to control his agitation and aggression, but that Miller misused them. Dr. Fishstein also noted that Miller interacted with the staff in a violent and degrading manner. Dr. Fishstein underlined that after he discontinued Miller's medications, there was no change in Miller's behavior. Dr. Fishstein felt that this confirmed that there was "no primary psychiatric diagnosis--and that all [of Miller's] behavior was . . . willful and self-determined." (Id. at Ex. O.)
After the incidents of July 25, 2005, Dr. Fishstein never again prescribed psychotropic medications for Miller. However, on December 19, 2006, Dr. Sheila McDermott began prescribing Risperdal, a tranquilizer, and Mirtazapine, an antidepressant, for Miller. (Id. at Ex. R.) In addition, on May 4, 2007, a psychiatrist examining Miller noted that he was compliant during the interview and appeared stable. Miller, however, asked to be put on Tegretol because it helped his mood; the psychiatrist then prescribed Risperdal and Tegretol for him. (Id. at Ex. S.)
B. Denial of Migraine and Allergy Medication
Prior to 2005, Miller was prescribed Albuterol, CTM, and saline nasal spray for seasonal allergies and asthma, and Midrin for migraine headaches. (See id. at Exs. C, H, & L.) In the early summer of 2005, Miller began asking repeatedly that his Midrin prescription be renewed even though his order was still valid. When, on August 14, 2005, Dr. Felipe Arias determined that Miller's prescription did need to be renewed, he ordered a three month supply of Midrin for Miller consisting of a maximum of 10 pills a month. (See Dr. Arias' Mot. Summ. J., Ex. E.)
On October 11, 2005, in addition to complaining about the discontinuance of his psych-otropic medications, Miller wrote to Dr. Maue and stated that he was not receiving Midrin and that Dr. Felipe Arias had discontinued his CTM medication. (Opp., Fishstein Mot., Ex. A, Miller Dep. 34:6-23.) On October 17, 2005, Dr. Arias renewed Miller's CTM prescription for 90 days. (Dr. Arias' Mot. Summ. J., Ex. E.) On October 26, 2005, Dr. Maue replied to Miller, writing that he would ask Dr. Arias to evaluate Miller's need for Midrin. (Opp., Arias Mot., Ex. A.)
On November 29, 2005, Miller filed a grievance in which he stated that on November 21, 2005, he had asked Nurse Sokolski for his migraine headache medicine and that Nurse Sokolski had replied that the infirmary had run out of the medication. Miller wrote that there had been several instances in which Nurse Sokolski had told him that his Midrin prescription needed to be reordered, but when Miller asked a different nurse later, the Midrin was available for him. Miller asserted that Nurse Sokolski threatened to have Miller's doctor discontinue the Midrin if Miller continued to ...