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Callaham v. Stanish

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


June 4, 2010

MARK CALLAHAM, PLAINTIFF,
v.
STANLEY STANISH, M.D., ET. AL, DEFENDANTS,

The opinion of the court was delivered by: Judge Jones

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION*fn1

I. Statement of Facts and of the Case

A. Introduction

This case, which comes before the Court for consideration of a motion for summary judgment, presents a striking example of the challenges faced by inmates and corrections medical personnel in trying to address the medical needs of chronically-ill prisoners.

The plaintiff in this case, Mark Callaham, is one such chronically-ill inmate. Callaham is a state prisoner currently housed at the State Correctional Institution (SCI) Retreat. Callaham suffers from a chronic illness, Hepatitis C. As a result of this illness Callaham's immune system has been permanently compromised, making him susceptible to various other infections and ailments.

B. The History of Callaham's Medical Treatment

In the Fall of 2004, while serving his sentence, Callaham began experiencing a serious of rashes, and skin infections, which were both painful and unsightly. With respect to these skin conditions which afflicted Callaham, uncontested evidence confirms that prison officials engaged in a lengthy, if only intermittently successful, course of treatment for the plaintiff over the next several years.*fn2

This treatment began on August 27, 2004, when Callaham was seen by defendant Yarczower, who prescribed Aristocort creme for a rash that Callaham was experiencing. One month later, on September 24, 2004, Callaham was seen again by Yarczower and reported that the rash on his lower legs, arms, hands that had been ongoing for approximately one month, had not responded to the cream and was spreading.

Medical staff then began treating Callaham's skin condition in earnest throughout the Fall of 2004, following a multi-faceted program of treatment for this skin infection. As part of this treatment, blood work was ordered on Callaham to try to identify the source of the infection. In addition, medical staff conducted a series of further examinations of Callaham throughout the Fall of 2004, caring for this inmate on at least a half dozen occasions. During these examinations, Callaham was given various antibiotics and a biopsy was scheduled. In addition, Callaham was prescribed ointments and medications to be applied to the area of his rash, and further blood work was drawn to help establish a possible diagnosis of this rash.

Medical staff reviewed these laboratory studies throughout the Fall of 2004, and regularly saw Callaham, while noting that despite their efforts Callaham continued to experience complications due to this rash. During the winter months of 2004, medical personnel pursued a search for answers to these medical problems, prescribing a host of medications for Callaham including Aristocort creme, A&D ointment Benadryl, Dixocycline, Flaglyl, Vistaril, Bactrim, Tylenol and Prednisone. In addition, a further biopsy was ordered for Callaham in November 2004.

As 2004 drew to a close medical staff redoubled their efforts to address Callaham's skin rash and infections, treating and counseling him regularly, providing him with hypo-allergic soap, prescribing medications and ointments, and drawing additional blood work for analysis. Prison medical personnel also explained to Callaham the chronic nature of his illness, counseling himthat it was very likely the extent of these lesions was due to his Hepatitis C, which impaired his immune system, and that the scars from these skin conditions might persist for an extended period.

Throughout 2005 this course of treatment continued in an effort to curb Callaham's skin conditions. During this period, medical personnel saw and examined Callaham on a regular, often monthly, basis. Medical staff also provided Callaham with a variety of treatments in the form of medications, ointments, soaps, topical creams and steroids. Moreover, medical staff endeavored to address Callaham's needs through changes in his diet, ordering one cup of yogurt daily for him, in addition to special soaps, medications and ointments.

While at various times during early 2005 doctors noted improvement in Callaham's condition, and Callaham himself indicated that he felt better, the skin rash persisted and Callaham began voicing concerns about his aesthetic appearance. Medical staff tried to address Callaham's medical concerns, by treating this rash throughout the remainder of 2005, and employing an array of treatments, including yogurt, Aveeno soap, various ointments and medications. Medical records also document that doctors and staff met with Callaham regarding his concerns about his aesthetic appearance, discussing his medical history and other alternatives to help improve or reduce these pigmented scars. Moreover, further biopsies and tests were undertaken to resolve this chronic condition.

This course of treatment then continued to be carried on by prison medical personnel in 2006, with further testing and blood work ordered for Callaham, while doctors prescribed a range of medicated soaps, ointments and various drugs for his rash and skin lesions. Doctors also undertook additional treatments including steroid systemic injections, vitamin B-12 treatment, folic acid, varying topical steroids and kenalog injections. Doctors took these steps in an effort to both curb the rash and reduce its effect upon Callaham's appearance. Callaham was also informed that, due to his other medicals problems, this was a life-long condition which might improve over time but would always afflict him.

As part of these on--going efforts, in early 2006, physicians arranged a dermatology consultation for Callaham which was conducted by a specialist in this field, Dr. Schleicher. During this consultation the dermatologist agreed that the treatment provided to Callaham was proper, and further explained to Callaham about the progress of treating the pigmented spots left by this rash, indicating that it might take years for some of Callaham's blemishes and scars to lessen. In order to address these aesthetic appearance concerns, the dermatologist suggested that one potential option might be treatment of the blemishes with a medication, Retin-A. While identifying this as one treatment option, Dr. Schleicher also noted that this treatment was not guaranteed to remove or reduce Callaham's blemishes.

Ultimately prison medical staff elected not to pursue this specific course of treatment for the hyper-pigmentation that was a side effect of this rash, but attempted to address these concerns about Callaham's aesthetic appearance through other alternate treatments. Prison medical personnel based their medical judgment not to apply Retin-A treatment on several considerations. First, Retin-A was not at the time a standard treatment for these lesions. In addition, Retin-A was not approved for this specific medical purpose, and the manufacturer's cautionary instructions regarding the use of the drug created medical and liability concerns for prison officials. Third, a review of the medical literature revealed that Retin-A had potentially severe side effects and complications. Finally, Retin-A was not a drug regularly available on the prison drug formulary. Accordingly, a non-formulary request for Retin-A was not approved by the prison district medical director for Callaham, but Callaham was provided other, alternate treatments. Callaham was informed of this medical judgment in 2006 during meetings with medical staff and disagreed with the doctors on their decision to forego this specific form of treatment, contending that he was entitled to the treatment.

While Callaham and the doctors disputed the necessity of this particular form of treatment for the hyper-pigmentation that was a side effect of the rash, Callaham continued to receive a full range of medical care from prison staff. Thus, Callaham was seen regularly and received treatment in the form of steroids, topical ointments, medications, soap and diet. Moreover, Callaham was transported to SCI-Mahanoy infirmary during 2006 for treatment of an abscess, and was later transferred to SCI-Dallas infirmary for further medical treatments.

Callaham has been seen continuously for his skin condition and other chronic conditions since 2006.

C. Procedural History

Dissatisfied with these medical outcomes Callaham filed this action in federal court in 2006. (Doc. 1) From the outset, Callaham's complaint acknowledged that he has received on-going health care for these skin conditions from prison medical staff. (Id., Doc. 62-9.) While conceding this extensive care, Callaham has focused on a single narrow issue, the dispute with medical staff concerning whether to use Retin-A, or some other medication, to mitigate the scarring resulting from this rash and infection. Thus the gravamen of Callaham's complaint is that this choice of treatment reflected such profound deliberate indifference to his medical needs that it rose to the level of cruel and unusual punishment forbidden under the Eighth Amendment to the Constitution.

After extensive litigation, this issue has been squarely joined in a summary judgment motion. That motion is supported by more than 300 pages of testimony, declarations and medical records. The motion is fully briefed by the parties, and is now ripe for resolution.

For the reasons set forth below, it is recommended that the motion for summary judgment should be granted.

II. Discussion

A. Rule 56-- The Legal Standard

The defendants have moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, which provides that "[t]he judgment sought should be rendered 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). The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

B. Legal Standards Governing Eighth Amendment "Deliberate Indifference" Claims in a Prison Medical Context

In this case, the gravamen of Callaham's complaint is that prison officials violated his rights under the Eighth Amendment to the United States Constitution by displaying "deliberate indifference" to his medical needs. Callaham faces an exacting burden in advancing this Eighth Amendment claim against prison officials in their individual capacities. To sustain such a claim, Callaham must:

[M]eet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious;" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions cases, "that state of mind is one of 'deliberate indifference' to inmate health or safety." Id. "Deliberate indifference" is a subjective standard under Farmer-the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.

Beers-Capitol v. Whetzel,256 F.3d 120, 125 (3d Cir. 2001).

These principles apply with particular force to Eighth Amendment claims premised upon inadequate medical care. 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, 105 (1976). To establish a violation of his constitutional right to adequate medical care in a prison setting, Callaham is required to point to evidence that demonstrates both (1) a serious medical need, and (2) 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 may be evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, 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 by "persistent conduct in the face of resultant pain and risk of permanent injury," White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, 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). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Clark v. Doe, 2000 U.S. Dist. LEXIS 14999, 2000 WL 1522855, at *2 (E.D.Pa. Oct. 13, 2000)("courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care"). Thus, such complaints fail as constitutional claims under § 1983 since "the exercise by a doctor of his professional judgment is never deliberate indifference. See e.g. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990) ('[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.')". Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997). Applying this exacting standard, courts have frequently rejected Eighth Amendment claims that are based upon the level of professional care that an inmate received; see, e.g., Ham v. Greer, 269 F. App'x 149 (3d Cir. 2008); James v. Dep't of Corrections, 230 F. App'x 195 (3d. Cir. 2007); Gillespie v. Hogan, 182 F. App'x 103 (3d Cir. 2006); Bronson v. White, No. 05-2150, 2007 WL 3033865 (M.D. Pa. Oct. 15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D. Pa. 1997), particularly where it can be shown that significant medical services were provided to the inmate but the prisoner is dissatisfied with the outcome of these services. Instead, courts have defined the precise burden which an inmate must sustain in order to advance an Eighth Amendment claim against a healthcare professional premised on allegedly inadequate care, stating that:

The district court [may] properly dis[miss an] Eighth Amendment claim, as it concerned [a care giver], because [the] allegations merely amounted to a disagreement over the proper course of his treatment and thus failed to allege a reckless disregard with respect to his . . . care. The standard for cruel and unusual punishment under the Eighth Amendment, established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104 (1976), and its progeny, has two prongs: 1) deliberate indifference by prison officials and 2) serious medical needs."It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute 'deliberate indifference.' " "Nor does mere disagreement as to the proper medical treatment support a claim of an eighth amendment violation." . . . . [The inmate] alleged no undue delay in receiving treatment and, as the district court noted, the evidence he presented established that he received timely care . . . . Although [an inmate plaintiff] may have preferred a different course of treatment, [t]his preference alone cannot establish deliberate indifference as such second-guessing is not the province of the courts.

James, 230 F.App'x. at 197-198 (citations omitted).

In short, in the context of the Eighth Amendment, any attempt to second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts since such determinations remain a question of sound professional medical judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).

Furthermore, it is well-settled that an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim. SeeTaylor v. Norris, 36 Fed. Appx. 228, 229 (8th Cir.2002) (deliberate indifference claim failed when it boiled down to a disagreement over recommended treatment for hernias and decision not to schedule a doctor's appointment); AbdulWadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir.1996) (inmate's disagreement with selection of medicine and therapy for sickle cell anemia falls well short of demonstrating deliberate indifference); Sherrer v. Stephen, 50 F.3d 496, 497 (8th Cir.1994) (inmate's "desire for a replacement joint instead of fusion surgery is merely a disagreement with the course of medical treatment and does not state a constitutional claim"); Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir.1994) (prison provided escalating level of treatment for inmates's ailments over time, and inmate's disagreement with course of medical treatment was insufficient basis for Eighth Amendment violation); Czajka v. Caspari, 995 F.2d 870, 871 (8th Cir.1993) (inmate's mere disagreement with doctor's informed decision to delay surgery does not establish Eighth Amendment claim); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir.1990) (inmate failed to prove deliberate indifference where his complaints represented nothing more than mere disagreement with course of his medical treatment); Lair v. Oglesby, 859 F.2d 605, 606 (8th Cir.1988) (disagreement about whether doctor should have prescribed medication does not result in constitutional violation); Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir.1985) (Inmate failed to state facts indicating doctor deliberately disregarded his medical problem; inmate's disagreement as to proper medical treatment does not give rise to Eighth Amendment violation). Therefore, where a dispute in essence entails no more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as constitutional claims under § 1983 since "the exercise by a doctor of his professional judgment is never deliberate indifference." Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997)(citations omitted).

C. Callaham Has Failed to Establish An Eighth Amendment "Deliberate Indifference" Claim in a Prison Medical Context

In this case, judged against these exacting standards, it is evident that Callaham has not met the legal and factual threshold necessary to sustain an Eighth Amendment claim of deliberate indifference to his serious medical needs. Therefore, it is recommended that the Court find that the defendants are entitled to summary judgment on this Eighth Amendment claim.

At the outset, it is entirely undisputed that the plaintiff received extensive, ongoing medical treatment for these skin conditions over the span of more than two years. During this time Callaham was examined and treated on dozens of occasions. He received a wide array of treatments including medications, ointments, soaps, dietary changes, and steroids. These treatments were designed both to address these skin infections, and to ameliorate the cosmetic consequences of these rashes and infections. Numerous health care professionals committed their time and talents to this treatment, meeting with Callaham, evaluating test results, counseling and caring for him. Indeed, Callaham was provided with a medical consultation with a specialist, a dermatologist, in an effort to address his needs. All of this on-going care is undisputed in the factual record, and is fatal to Callaham's claim that these health care professionals have been deliberate indifferent to his medical needs since "the exercise by a doctor of his professional judgment is never deliberate indifference. See e.g. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990) ('[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.')". Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997).

Indeed, in his pleadings Callaham has conceded that he received on-going medical care, a concession that defeats this Eighth Amendment claim. For example, Callaham's complaint outlines in detail repeated treatments that he received. (Doc. 1) Moreover, while Callaham is plainly dissatisfied with his medical outcomes, he has acknowledged in his deposition testimony that he received continuing medical treatment for these lesions between 2004 and 2006.(Doc 62-9.)

Because the longstanding course of this treatment thoroughly rebuts any claim of deliberate indifference to his medical needs, Callaham is reduced in his pleadings to contesting one specific aspect of this treatment--the decision in February 2006 to address the cosmetic effects of this rash, and its hyper-pigmentation, through a form of medicine other than Retin-A. Thus, stripped to its essentials, Callaham's claim is not that he was denied or deprived treatment. Rather, it is simply a dispute between an inmate and his health care providers over the precise nature of this treatment; a dispute that turns on a difference of opinion regarding the efficacy of alternate medications.

As a legal matter disputes between inmates and medical professionals concerning which of several available medications to use in treating a specific medical problem simply do not rise to the level of a constitutional infraction involving deliberate indifference to a serious medical need. Indeed, courts have repeatedly held that when an inmate's Eighth Amendment claim entails nothing more than a disagreement concerning which type of medication to prescribe for a particular ailment, prison officials are entitled to a judgment in their favor as a matter of law. See e.g., Gause v. Diguglielmo, 339 F.App'x 132 (3d Cir. 2009)(dispute over choice of medication does not rise to the level of an Eighth Amendment violation); Innis v. Wilson, 334 F.App'x 454 (3d Cir. 2009)(same); Whooten v. Bussanich, 248 F.App'x 324 (3d Cir. 2007)(same); Ascenzi v. Diaz, 247 F.App'x 390 (3d Cir. 2007)(same). In fact, in the specific context of prison medical treatment for scarring resulting from skin conditions, the United States Court of Appeals for the Third Circuit has held that a dispute between an inmate and prison physicians regarding whether to use Retin-A for some other substitute medication to address the cosmetic effects of a skin condition as a matter of law does not amount to deliberate indifference to an inmate's medical needs. Rozzelle v. Rossi, 307 F.App'x 640 (3d Cir. 2008).

Rozzelle is instructive here in several respects. First, as a legal matter Rozzelle rejects the theory advanced by Callaham that a dispute between an inmate and health care providers regarding the specific choice of drugs to treat the aesthetic effects of a skin condition amounts to cruel and unusual punishment in violation of the Eighth Amendment. Moreover, as a factual matter Rozzelle rebuts Callaham's suggestion that prison medical staff categorically refuse to provide Retin-A to inmates since in Rozzelle the inmate was being treated with Retin-A, but insisted that this Retin-A treatment violated his rights under the Eighth Amendment, arguing instead that he was constitutionally entitled to a different medicine. Finally, Rozzelle illustrates the dangers inherent in accepting inmate invitations to extend constitutional doctrine into the details of prison medical treatment, since the inmate in Rozzelle would have had the court declare Retin-A treatment, the precise form of treatment demanded here by Callaham, to be cruel and unusual punishment.*fn3

Thus, in its present posture, Callaham's Eighth Amendment claims should be dismissed since those:

[A]llegations merely amounted to a disagreement over the proper course of his treatment and thus failed to allege a reckless disregard with respect to his . . . care. The standard for cruel and unusual punishment under the Eighth Amendment, established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104 (1976), and its progeny, has two prongs: 1) deliberate indifference by prison officials and 2) serious medical needs. "It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute 'deliberate indifference.' " "Nor does mere disagreement as to the proper medical treatment support a claim of an eighth amendment violation." . . . . [The inmate] alleged no undue delay in receiving treatment and, as the district court noted, the evidence he presented established that he received timely care . . . . Although [an inmate plaintiff] may have preferred a different course of treatment, [t]his preference alone cannot establish deliberate indifference as such second-guessing is not the province of the courts.

James, 230 F.App'x. at 197-198.(citations omitted).

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion for summary judgment (Doc. 61) be GRANTED.

The parties are further placed on notice that pursuant to Local Rule 72.3: Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions

Submitted this 4th day of June, 2010.

Martin C. Carlson United States Magistrate Judge


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