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Kulp v. Duran

March 31, 2010

PATRICIA KULP, PLAINTIFF,
v.
WARDEN TOM DURAN, ET AL., DEFENDANTS



(Chief Judge Kane)

MEMORANDUM

Plaintiff Patricia Kulp ("Kulp") filed this counseled civil rights action pursuant to 42 U.S.C. § 1983 on July 2, 2008. Named as Defendants are Tom Duran, the warden at the Clinton County Correctional Facility ("CCCF"), Pennsylvania, and Clinton County. Kulp alleges that while confined at CCCF, Defendants denied her adequate medical care in violation of the Eighth and Fourteenth Amendments. Specifically, she claims that Defendants failed to provide care for her knee beginning in early July of 2006. She further contends that Defendants were deliberately indifferent when there was a delay in taking her for x-rays and performing blood work that was ordered. Kulp maintains that as a result of the deliberate indifference to her medical needs, her leg was subsequently amputated above the knee. As relief she seeks compensatory damages.*fn1

Pending before the Court is Defendants' motion for summary judgment. (Doc. No. 14.) For the reasons that follow, the motion will be granted.

I. Background

Viewed in the light most favorable to Kulp, the facts are as follows.*fn2 The Clinton County Correctional Facility has a policy in place regarding the provision of medical services to inmates which is provided to all correctional officers and the medical staff assigned by the Clinton Medical Associates ("CMA"), the contract medical care provider for CCCF. (Doc. No. 14-3, Duran Dep. at 20; Ex. 3.) While the medical policy indicates that the medical program is under the direction of the Warden, Defendants state that it is a collaborative effort between Warden Duran and Dr. Michael Greenberg, the CMA Medical Director. (Id.) The Deputy Warden for Treatment at CCCF is Jacqueline Motter. She is responsible for inmate orientation and various inmate programs. Inmate medical treatment, however, is the responsibility of medical personnel supplied to the prison by CMA. (Doc. No. 14-4, Motter Dep. at 4-5.)

The medical personnel who work at CCCF are not employees of the County or CCCF. They are contract employees assigned to CCCF through CMA, the contract provider. (Duran Dep. at 13.) While Kulp does not dispute this, she maintains that pursuant to prison policy, the Warden is responsible for the medical care rendered at the facility. CCCF has a contractual agreement with CMA wherein CMA agrees to provide physician's services for three (3) hours per week, and a nursing staff for sixteen (16) hours per day. (Duran Dep. at 13, Ex. 1.) Dr. Michael Greenberg serves as the physician at CCCF pursuant to the agreement with CMA. (Id. at 16.) Karen Frederick and Jeannie Schaeffer are LPNs employed by CMA who are assigned to work at CCCF for Dr. Greenberg. (Doc. No. 14-6, Frederick Dep. at 4-5; Doc. No. 14-7, Schaeffer Dep. at 5.)

Although the medical staff is employed by CMA, the facility itself has a policy through which inmates can receive medical care from CMA. Pursuant to the policy, an inmate receives an initial health screening at the time of his arrival and a physical examination within two weeks by a physician's assistant or doctor. (Doc. No. 14-3, Duran Dep. at 12, Ex. 3, Policy # 200-16) (Id. at 12.) If an inmate has a medical need during their incarceration, they are required to fill out a slip requesting to be seen in medical and describing their ailment. (Id.; Doc. No. 14-5, Kulp Dep. at 27.) This procedure is set forth in the Inmate Handbook provided to inmates upon their arrived at CCCF. (Doc. No. 14-4, Duran Dep. at 17; Ex. 2.) Any request slip is turned in by the inmate to the correctional officer on duty in their cell block. The officer then turns the slip into a lieutenant, who then provides it to medical personnel through the internal mail system or by placing it in the medical office. (Id. at 12; Kulp Dep. at 27; Motter Dep. at 8.) Neither the Warden nor the Deputy Warden review all requests made by inmates. (Motter Dep. at 8.)

Upon receipt of a sick call request by the nursing staff, the request is reviewed to determine whether it is an emergency, critical or non-critical. A sick call list is compiled and inmates are called to medical accordingly to be seen by the nurse on duty. (Doc. No. 14-6, Frederick Dep. at 29-30.) In a critical situation, the inmate is seen immediately. Otherwise, inmates who submit a request in the morning are called into medical after lunch. (Id.) If the request comes in after lunch, the inmate will be seen if it is an emergency. Otherwise, the inmate will be seen by the evening nurse or the following day. (Id. at 30-31.)

CMA staffs the facility with nurses from 7 a.m. to 11 p.m. (Frederick Dep. at 6.) The nursing staff conducts sick call several times a day, and inmates are seen based on the priority of their requests. (Duran Dep. at 12.) Not every inmate is seen by a physician. If an inmate's condition deviates from the nursing staff's set of protocols, they are referred to the doctor. (Frederick Dep. at 15-16.) Dr. Greenberg is usually at the facility on Thursday afternoons. (Id. at 16; Kulp Dep. at 66.) If an emergency occurs and the doctor is not present, the nurse will send the inmate to the hospital. (Frederick Dep. at 16.)

In addition to conducting sick call times, nurses are in the cell blocks four (4) times per day on weekdays to distribute medication, and can discuss any medical concerns at those times. (Duran Dep. at 12, 14; Frederick Dep. at 13, 25 and 32; Kulp Dep. at 26-28; Doc. No. 14-8, Miller Dep. at 10.) Nurses try to see every inmate each day during medication disbursement. (Frederick Dep. at 13.) Kulp received medications from the nurse twice per day. (Kulp Dep. at 44.) If an inmate raises a medical concern with the nurse during medication disbursement, she will listen to the problem but direct the inmate to fill out a request slip, unless it is an emergency. Any conversation with an inmate during this time would not be noted in the records by the nursing staff. (Frederick Dep. at 25.)

If an inmate makes a medical complaint to a correctional officer, the officer would direct the inmate to fill out a request slip to be delivered to medical staff. If it was an emergency situation, the officer would document the complaint and then notify the medical staff. (Duran Dep. at 15-16, 26.)

Kulp was arrested seven (7) times for shoplifting prior to being incarcerated at CCCF. (Kulp Dep. at 10-12.) She was committed to CCCF on May 6, 2006, to serve a 10-20 month sentence. (Id.) While there, Warden Duran did not know her. (Duran Dep. at 9.) Following her arrival, she was given a physical examination on May 11, 2006. It was noted that she had a history of osteosarcoma (cancer) to the knee, and two total knee replacements. (Duran Dep. at 24-25; Ex. 4). In addition, she suffered from Hepatitis C, and had a history of intravenous drug abuse. (Id.) While during the exam Kulp stated she had not engaged in heroin or cocaine use for two years, a drug test conducted at the time of Kulp's commitment was positive for marijuana and cocaine. (Doc. No. 14-13, Substance Abuse Admission/Denial Form.)

Kulp was seen in medical on the dates of May 8 and 12, 2006, but she was not seen by medical staff for complaints relating to leg pain until July 13, 2006. (Duran Dep. at 25; Ex. 4.) While Kulp admits this fact, she states that her condition was observed by correctional staff prior to July 13, 2006. She believes that she complained to several correctional officer about her condition between July 7, 2006 and July 13, 2006. (Kulp Dep. at 68-69.) When she complained to Officer Tippler, he told the nursing staff when they came in to dispense medications. (Id. at 70.) Officer LaRosa told Kulp to speak to medical. Another officer assisted Kulp in getting to the phone on one occasion. (Id. at 34-35.) Officer Blazina assisted her onto the medical table on the date she left CCCF. Kulp further states that her mother directly requested a medical furlough from Warden Duran on her behalf due to her condition. Kulp maintains that Duran failed to act upon the request. (Doc. No. 29, Kulp Dep. at 6-8.) Duran may have been aware of a medical furlough request since he recalls contacting Kulp's sentencing judge the weekend she went to the hospital, and following up with a letter dated July 18, 2006. (Duran Dep. at 41-42, Ex. 9.)

Deputy Warden Motter was involved in a disciplinary matter for Kulp which resulted in her placement in administrative segregation on July 6, 2006. (Motter Dep. at 8, 11; Duran Dep. at 34-35; Kulp Dep. at 29-30.) On this date Kulp was helping to deliver food trays within the prison when she came upon her boyfriend's daughter, who was also incarcerated at CCCF. Kulp kissed her in violation of CCCF policy which does not allow inmates to touch one another. (Kulp Dep. at 21-22; Motter Dep. at 8-9; Duran Dep. at 36, Ex. 7.)

Kulp does not recall having any difficulty walking around the prison while distributing food trays on July 6, 2006. (Kulp Dep. at 23.) She did not require crutches, a wheelchair or any other assistance at that time. (Id.) Following the incident, Kulp was placed in segregation pending a disciplinary meeting with Motter and Correctional Officer Harris which took place on July 11, 2006. (Motter Dep. at 9-11.) According to the block movement logs Kulp did leave her cell block on July 7, 2006 to be seen in medical. (Duran Dep at 31.) According to the medical worksheets maintained by the medical staff, she received a Pegasys shot for her Hepatitis C on that occasion. (Id., Ex. 4.)

While an inmate is in lockdown they are confined to their cells for 23 hours a day. They are provided one hour for recreation, telephone use, visits or showers. (Motter Dep. at 10; Duran Dep. at 10, 38.) Such inmates are still permitted access to request slips and to be seen for sick call, separate from the one hour allowed for recreation. (Kulp Dep. at 30-31.) Segregated inmates are not limited in any way regarding medical treatment. (Frederick Dep. at 26.)

Prior to her disciplinary hearing, Kulp submitted a request slip to Motter apologizing for her infraction of the rules, and explaining her relationship with the other inmate that she had kissed. (Kulp Dep. at 23-25, Ex. 2; Motter Dep. at 10.) This is the same request slip that would be used to request sick call. (Kulp Dep. at 26.) Kulp believes that at the time she wrote the request slip apology to Motter she was in pain from her leg, and had directed request slips to the Warden and to medical about her condition. (Id. at 28, 33) Kulp believes her cellmate assisted her out to the yard on July 11, 2006, the day of her disciplinary meeting. Kulp believes her leg was swollen and painful that day, but that she was able to walk with a limp. (Id. at 32.)

Motter released Kulp from disciplinary segregation following the hearing, and does not recall Kulp having made any medical complaint to her or request for medical attention during the July 11, 2006 disciplinary meeting. (Motter Dep. at 9-10, 14-15.) Kulp also does not recall discussing her condition that day with Motter. (Kulp Dep. at 33.)

Correctional Officer Thomas LaRosa believes that Kulp complained to him on two occasions that she had pain in her leg. While he does not recall when the complaints were made, he believes that at least one complaint came while she was in lockdown. (Doc. No. 14-9, LaRosa Dep. at 4-10, 15.) While he did not personally observe Kulp's leg at the time of the complaints, he did instruct her to fill out a medical request slip for the nurse. He then put the slips into the internal mail to be given to the lieutenant as per procedure. (Id. at 4-11.) LaRosa recalls seeing Nurse Schaeffer in the cell block talking to Kulp about her condition after the first request slip was turned in. (Id. at 12-13.) While he recalls seeing nurses come in to talk with Kulp on other occasions, he does not recall whether it was with respect to the second complaint she made to him.

Kulp believes that she started complaining about her knee on July 7, 2006, and is not sure whether Dr. Greenberg was present at CCCF between July 7, 2006, and when she saw him on July 13, 2006. (Kulp Dep. at 66-67.) On July 13, 2006, she complained of a painful knee that "goes out" on her, and stated that she had knee replacement surgery on two prior occasions. (Duran Dep. at 26, Ex. 4.) Defendants state there are no documents in Kulp's medical record or the prison's files which reflect any complaints of pain in her knee prior to July 13, 2006. Kulp denies this statement. (Duran Dep. at 26-27, Ex. 4; Doc. No. 24, Kulp SMF ¶ 93.)

Between May and July 13, 2006, Kulp saw the nurses twice a day for medication, and one additional time every week for her shot. (Kulp Dep. at 62-63.) On July 13, 2006, following complaining to Nurse Frederick during medication disbursement about pain in her leg, Kulp put in a sick call request to be seen by Frederick. (Id. at 62.) Frederick examined her on that date, and observed no swelling or ecchymosis (bruising). She did not take Kulp's temperature. (Id. at 21.) Kulp denies that she had not made any prior complaints of pain to medical staff during sick call up until that time. (Doc. No. 15, Pl's SMF ¶ 100.) Defendants maintain that if she had, it would have been included in her CCCF medical records and there are no such notations. (Frederick Dep. at 8; Duran Dep., Ex. 4.)

After examining Kulp, Frederick recommended that she be seen by Dr. Greenberg because of her history of cancer and knee replacement. (Frederick Dep. at 9; Duran Dep. at 26, Ex. 4.) Greenberg saw Kulp the same day. Kulp states that her knee was painful and swollen, but that she does not believe she required assistance walking that day. (Kulp Dep. at 64.) Kulp believes she should have been sent to the hospital between July 7 and 13, 2006, and believes she expressed this to Greenberg on July 13, 2006. (Id. at 67-68.) Greenberg's notes from the July 13, 2006 appointment indicate that Kulp's joint was warm and tender, but does not indicate the presence of any swelling or redness. (Duran Dep., Ex. 4.) Kulp was given ibuprofen and blood work and knee x-rays were ordered. (Kulp Dep. at 64; Duran Dep. at 29, Ex. 4.) "Stat" was not indicated on the blood work order, and therefore it was the responsibility of the nurses to carry out the orders at their discretion. (Frederick Dep. at 9, 12.) After examining Kulp on July 13, 2006, Greenberg also directed the nurses to obtain Kulp's medical records from Shadyside Hospital. Nurse Frederick did so the following day. (Duran Dep., Ex. 4.)

Frederick does not recall any correctional officers notifying her of any leg complaints made by Kulp, but no such record would have been made of any such reports because protocol requires that the medical staff be notified via the sick call request procedure. (Frederick Dep. at 18-19, 23-24.) Between July 13, 2006 and July 18, 2006, the medical progress notes do not indicate that Kulp was examined by any medical professional, but the "Med Sheet" reveals that she received a Pegasys injection on July 14, 2006. (Frederick Dep. at 22; Duran Dep, Ex. 4.) If an inmate was unable to walk to the medical room the ...


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