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Harris v. Ebbert

July 2, 2010

ROBERT LEE HARRIS, JR., PLAINTIFF
v.
DAVID J. EBBERT, ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

The pro se plaintiff, Robert Lee Harris, an inmate at FCI-Allenwood, White Deer, Pennsylvania, filed this Bivens action.*fn1 In his original complaint, he sought injunctive relief requiring the defendants to provide him with an operation for femoral nerve entrapment syndrome, which would assist him with chronic right leg weakness. Shortly after the complaint was filed, Plaintiff did have the operation.

The operation mooted the original complaint, but Plaintiff asserted he still had some claims that had not been resolved by the operation. We granted him leave to file an amended complaint. The defendants are: (1) David J. Ebbert, the prison's warden; (2) James Brady, M.D., the former clinical director; (3) Jay Miller, M.D., a medical officer; (4) Ron Laino, health services administrator; (5) Debra Spotts, assistant health services administrator; and (6) Michaeleen Powanda, a physician's assistant. They have been sued in their individual and official capacities.

In his amended complaint, Plaintiff alleges the defendants violated the Eighth Amendment by being deliberately indifferent to his need for physical therapy after he complained in September 2008 to Dr. Brady about muscle weakness and atrophy in his right leg and foot. He seeks injunctive and monetary relief.

We are considering the defendants' motion to dismiss, or in the alternative, for summary judgment, which argues that there was no Eighth Amendment violation because Plaintiff has been receiving appropriate medical care after the operation, which does not have to include physical therapy.

After review of the parties' submissions, we agree with the defendants that Plaintiff has failed to establish an Eighth Amendment claim. However, since Plaintiff mistakenly believed that we had limited his amended complaint to matters occurring after the operation, we will grant him leave to file a second amended complaint raising the claim he omitted from his amended complaint.

II. Standard of Review

Under Fed. R. Civ. P. 56, the moving party is entitled to summary judgment "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)(2). The party opposing summary judgment "may not rely solely on allegations or denials in its own pleadings...." Fed. R. Civ. P. 56(e)(2). Nor may he rely on statements in briefs. Smith v. Kyler, 295 F. App'x 479, 481 (3d Cir. 2008)(per curiam)(nonprecedential)(quoting Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511-12 (3d Cir. 1994)). "[R]ather, [his] response must -- by affidavits or as otherwise provided in [Rule 56] -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). "'The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Colwell v. Rite-Aid Corp., 602 F.3d 495, 501 (3d Cir. 2010)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986)).

III. Background

A. Plaintiff's Amended Complaint

In pertinent part, the amended complaint alleges the following. On September 16, 2008, defendant Dr. Brady examined Plaintiff and diagnosed him with right quadricep atrophy, right hip flexor weakness and decreased dorsiflexion of the right foot. (Doc. 28, Am. Compl. ¶ 16). Plaintiff continued to complain about pain and weakness in the right leg and being forced to walk with a limp as a result of the condition of his right leg and foot. (Id. ¶ 17). Plaintiff was never given any physical therapy, shown how to perform rehabilitative exercises, or any educational materials on how to perform such exercises. (Id. ¶ 18). When Plaintiff asked the medical staff and the physician's assistants, the only answer they gave him was to consult his doctor or health-care provider, but Plaintiff had not seen his doctor since the operation. (Id. ¶ 19). Plaintiff was told to walk and not lift anything over twenty pounds. (Id. ¶ 20). One physician's assistant told him to "suck up the pain and stop complaining," (id.), this remark coming after Plaintiff had collapsed in his cell from the pain in his lower back, and he had to be taken to the prison hospital for a toradol injection. (Id.). Previously, he had been given only Motrin. (Id.). When Plaintiff wrote to Dr. Miller about the physician's assistants' "deliberate indifference," Dr. Miller apologized but told Plaintiff that any physical therapy would have to be done by himself. (Id. ¶ 21).

Plaintiff avers that "[p]hysical therapy is an important part of treatment" for patients who have had surgery or who are trying to recover from physical injuries, (id., p. 3), and that it is a "mandatory aspect[ ]" of modern medicine. (Id.).

Plaintiff alleges that Dr. Brady was deliberately indifferent by not treating Plaintiff after the defendant diagnosed Plaintiff's problems with his right leg and foot, (id. at p. 5), nor has Plaintiff received any treatment for those conditions. Plaintiff avers that Dr. Miller; physician's assistant Powanda; health services administrator, Ronald Laino; and assistant health services administrator, Debra Scott "all have access and periodically review [Plaintiff's] medical file[,] ...


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