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Thomas K. Turner v. Mr. Jesse Kirsch

April 12, 2010


The opinion of the court was delivered by: Goldberg, J.


Plaintiff, Thomas Turner, initiated this civil rights action pursuant to 42 U.S.C. § 1983 (§ 1983) against various Defendants, alleging that he was denied necessary medical treatment while incarcerated at the Berks County Correctional Facility, inLeesport, Pennsylvania. Before the Court are the Motions for Summary Judgment of Defendants Paula Dillman-McGowan, Joetta Kline, Cynthia Sheldon, Drue Wagner, Jesse Kirsch and Erik Von Kiel. (Doc. Nos. 74-75, 77.) For the following reasons, we will grant summary judgment in favor of Defendants Kline, Wagner and Kirsch, and deny summary judgment as to the remaining Defendants.


On April 29, 2006, Plaintiff injured his right ankle while walking on a basketball court during a stoppage in play. Plaintiff described hearing an audible "pop," and was immediately taken to the medical unit where he was examined by a nurse. Thereafter, on May 1, 2006, Plaintiff was evaluated by Jesse Kirsch, a Physicians Assistant for PrimeCare Medical, Inc. (PrimeCare), the medical service provider for the Berks County Prison. Kirsch performed a "Thompson test" on Plaintiff's ankle, which was negative,*fn2 and noted that Plaintiff had a right ankle sprain and a possible Achilles tendon strain or partial tear. Kirsch ordered an x-ray of Plaintiff's right heel bone and wrapped his ankle in an ace bandage.*fn3 Kirsch also scheduled a follow-up appointment for May 5, 2006. Kirsch's treatment plan was reviewed and approved by Dr. Drue Wagner, who at the time, was the Assistant Corporate Director for PrimeCare and a resident physician. (Pl. State. Facts ¶ 13; Doc. No. 80, Ex. O at 827-28; Kirsch Depo. pp. 186-89.)

Plaintiff testified that he told Kirsch during their initial meeting that "it was more than a sprained ankle" and insisted on the second opinion of a doctor. According to Plaintiff, Kirsch responded "you don't know nothing, you haven't been to medical school." Plaintiff also testified that he informed Nurse Paula Dillman-McGowan that he believed his injury was more serious than initially diagnosed and that Kirsch told him he could not see the doctor. Plaintiff claims that Dillman-McGowan said "give it a couple of days and see if you see the doctor and if not address a sick call slip to me and I'll take care of it." (Turner Depo. pp. 68-69, 73.)

On May 4, 2006, an x-ray was performed on Plaintiff's ankle, which revealed "[n]o acute fracture." The x-ray report also included a note suggesting an MRI, "[i]f there is a concern regarding an Achilles tear and further imaging is required[.]" On the same day, Plaintiff filled out a "sick call request," addressed to Dillman-McGowan, asking why he had not seen a "specialist like [she] said." The next day, Kirsch completed his follow-up examination of Plaintiff. Kirsch again performed a "Thompson test," which was negative, recommended that Plaintiff use ace wraps, ice and moist heat, and ordered pain medication. On May 15, 2006, Plaintiff filled out another "sick call request" asking Dillman-McGowan why he had not been evaluated by a specialist. (Doc. No. 80, Ex. O at 829, Q, S, T.)

On May 16, 2006, Kirsch again evaluated Plaintiff. He noted that Plaintiff was "doing well" and diagnosed him with a "resolving Achilles strain / partial tearing." Kirsch continued the initial treatment plan, prescribed him pain medication, and at Plaintiff's request, referred him to Dr. Erik Von Kiel for further evaluation. Later that day, Dillman-McGowan responded to Plaintiff's sick call request of May 15, 2006, noting that he was "seen by [Kirsch on] 5/16/06 [and] scheduled to see [a] physician [on] 5/17/06." However, for reasons not disclosed in the record, Plaintiff did not see Dr. Von Kiel on May 17, 2006 or over the course of the next twelve days. (Doc. No. 80, Ex. O at 829, 832, T.)

On May 29, 2006, Plaintiff submitted another sick call request, reflecting that his "back ache[d]" and his "leg [was] still swollen a little[, and that he] ache[s] all the time, Constantly!" He also noted that he had "not seen the Doctor yet." On May 31, 2006, Plaintiff was evaluated by a nurse "at sick call" and complained that his "foot [was] still hurting bad." (Doc. No. 80, Ex. O at 832, U.)

On June 1, 2006, Kirsch again directed that Plaintiff be "refer[ed] to Dr. Von Kiel" for a second opinion regarding his right "achilles / Ankle (? Partial tear)[.]" Kirsch also discontinued Plaintiff's prescription for "Motrin" and prescribed another medication. On June 5, 2006, Dr. Von Kiel evaluated Plaintiff, and ordered another x-ray. On June 12, 2006, upon receipt and review of the x-ray report, Von Kiel diagnosed Plaintiff as having a "[p]artial Achilles tendon tear v. earlier [fracture]" and referred Plaintiff to outside orthopedic specialist, Dr. Zeferino Martinez. (Doc. No. 80, Ex. O at 828-29, 831-32; Kirsch Depo. pp. 266-69; Von Kiel Depo. p. 94.)

Dr. Martinez evaluated Plaintiff, at his office, on June 21, 2006, and diagnosed him with "what appears to be a partial tear" of his right Achilles tendon. Martinez prescribed a brace to immobilize Plaintiff's ankle, an MRI and pain medication. Later that day, Plaintiff met with Dillman-McGowan for a follow-up appointment and she filled out the necessary paperwork to provide Plaintiff with the prescribed brace and MRI. (Doc. No. 80, Ex. O at 831, V, W; Dillman-McGowan Depo. pp. 78-83; Turner Depo. p. 111; Pl. State. Facts ¶ 30.)

Cynthia Sheldon, Health Services Administrator for PrimeCare, was responsible for ordering medical devices, such as the cast brace prescribed by Dr. Martinez. Sheldon testified that when she informed Dr. Von Kiel that the brace was only available through a "specialty" supplier, he told her not to order the brace as he would "take care of it." Sheldon explained that at Von Kiel's direction, she did not order the brace. (Pl. State. Facts ¶ 5; Sheldon Depo. pp. 73-74, 129-30.)

On July 3, 2006, Plaintiff received an MRI of his right ankle which revealed a "rupture" of his right Achilles tendon. On the same day, Dr. Von Kiel noted that Plaintiff should "use [the] brace-device currently available for inmate here now." The next day, Kirsch reviewed the MRI with Plaintiff. He also recommended that Plaintiff be moved to the lower tier of his prison unit, ordered him medication and referred him to Dr. Martinez for a follow-up visit.*fn4 Dr. Von Kiel reviewed Plaintiff's treatment on July 17, 2006, and made reference to the "brace" prescribed by Dr. Martinez. He testified that it appeared that PrimeCare was still trying to locate a brace for Plaintiff at this time. (Pl. State. Facts ¶¶ 33-34; Doc. No. 80, Ex. Z, O at 834-36; Von Kiel Depo. p. 133.)

On July 24, 2006, Plaintiff was evaluated by Dr. Martinez. He concluded that Plaintiff's Achilles tear was "chronic" and that "[c]ertaintly at this point it is too late to put him in a brace and/or cast." He noted that Plaintiff could either choose to have the tendon surgically repaired or "accept it as simply a limitation that he has at the present time." Dr. Martinez concluded that surgical repair would be very difficult, since the injury was now "2 1/2 months old[,]" and recommended that he be referred to a foot and ankle specialist if he decided to pursue surgery. (Doc. No. 80, Ex. AA.)

On July 26, 2006, Dr. Von Kiel placed an order moving Plaintiff to the medical unit where he could be issued crutches. He also referred Plaintiff to Dr. Thomas Shannon of Berks Foot & Ankle Surgical Associates, who evaluated Plaintiff on August 2, 2006. On August 3, 2006, Dr. Von Kiel discontinued Plaintiff's move to medical housing and, therefore, effectively rescinded his prescription for crutches, which are not permitted in the prison's general housing unit.*fn5 On the same day, Dillman-McGowan evaluated Plaintiff in his cell. Plaintiff testified that he asked her about the brace prescribed to him by Dr. Martinez and she told him that "it wasn't her job to give to [him], but she agreed well you do need a brace, but she said when you get it, you'll get it, try to hang in there." Plaintiff did not, however, receive a brace or any other similar device. (Doc. No. 80, Ex. O at 837, EE; Pl. State. Facts ¶¶ 39, 42; Turner Depo. p. 114.)

On August 24, 2006, Dr. Shannon's office faxed a letter to the prison, setting out the costs for surgical repair of Plaintiff's Achilles tendon and noting that Dr. Shannon "was looking at a tentative date of 9/13/06" for the surgery. PrimeCare did not respond to the fax, and on September 12, 2006, Dr. Shannon sent a letter to the prison referencing Plaintiff's surgery. Also on this date, Plaintiff addressed a grievance form to Cynthia Sheldon, claiming that he had received "inadequate medical treatment" and was being denied surgery. Plaintiff testified that Sheldon came to his cell and told him that he would receive the treatment that he needs, but "she's having financial problems and she's finding it difficult to find someone, a specialist, . . . that's willing to operate on an inmate." He also testified that she said he would "be placed in the hole for harassment" if he continued to submit such complaints. (Doc. No. 80, Ex. DD, EE, FF; Turner Depo. p. 150.)

Plaintiff was scheduled to receive surgery on September 28, 2006.*fn6 On September 26, however, he left on a writ to Chester County and did not return until October 6, 2006. His surgery was rescheduled and ultimately performed by Dr. Shannon on November 1, 2006. After surgery, Plaintiff was moved to the medical unit where he received crutches and a wheelchair. (Doc. No. 80, Ex. O at 842-44.)

On November 14, 2006, Plaintiff was transferred to SCI -- Graterford. After the move, he began physical therapy, which he apparently continued throughout most of 2007. Plaintiff claims that his condition did not improve. On November 12, 2007, Plaintiff underwent a second surgery to fully repair his Achilles tendon. (Pl. State. Facts ¶¶ 54-57) (reflecting second Achilles surgery was performed by Dr. Dane Wukick of the University of Pittsburgh).


According to Federal Rule of Civil Procedure 56(c), summary judgment is proper "if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56. A party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish an element essential to that party's case, and on which that ...

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