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Milhouse v. Peoria

November 22, 2010

KAREEM HASSAN MILHOUSE, PLAINTIFF
v.
MARK J. PEORIA, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

On January 20, 2010, Plaintiff Kareem Hassan Milhouse ("Milhouse"), an inmate currently confined at the United States Penitentiary in Lewisburg, Pennsylvania ("USP-Lewisburg"), filed this Bivens*fn1 -styled complaint against three USP-Lewisburg officials*fn2 (collectively, "Defendants"). (Doc. 1.) Milhouse alleges that all Defendants have been deliberately indifferent to his serious medical needs while he has been incarcerated at USP-Lewisburg since April 2009.

Before the court is a motion to dismiss and for summary judgment filed on behalf of Defendants. (Doc. 13.) For the reasons set forth below, the motion for summary judgment will be granted.

I. Background

A. Facts

Milhouse was initially incarcerated at USP-Lewisburg from April 8, 2008 through December 2, 2008. (Doc. 15 ¶ 1.) On December 2, 2008, Milhouse was transferred to the United States Penitentiary at Canaan in Waymart, Pennsylvania. (Id. ¶ 2.) However, on April 2, 2009, he was transferred back to USP-Lewisburg in order to participate in the Special Management Unit ("SMU") program. (Id. ¶ 3.) Although Milhouse does not reference any specific dates in his complaint, it appears that he is generally averring that the overall treatment he received at USP-Lewisburg for his various medical conditions since his return in April 2009 has been inadequate.

Defendants assert that Milhouse has filed at least 90 inmate requests to staff member ("cop-outs") to USP-Lewisburg's medical department and over 300 requests for administrative remedy within the nine months preceding the filing of their statement of material facts. (Id. ¶ 7.) Their statement of material facts references many of Milhouse's cop-outs and medical staff evaluation notes over that time period.*fn3 In his opposition to the instant motion, Milhouse attaches as exhibits a number of his cop-outs and requests for administrative remedy. (See Docs. 18, 33, 35, 44, 46, 54, 55.) For purposes of disposition of the instant motion, the court will first set forth Defendants' account of USP-Lewisburg medical staff's efforts to address Milhouse's medical complaints, as well as any additional or disputed records filed by Milhouse in opposition to the motion. Following this recitation of facts, the court will set forth Milhouse's account of his filing of requests for administrative remedy. However, the court initially notes that Defendants generally assert that Milhouse has been seen by Defendant PA Peoria almost on a daily basis, and continues to be medically evaluated and treated on a consistent basis by the institution's medical staff. (Id. ¶¶ 8-9.) In his counter statement of material facts, Milhouse asserts that, instead, PA Peoria is attempting to kill him by failing to provide medical attention. (Doc. 16 ¶ 20.)

i. Cop-Outs

On July 1, 2009, Milhouse submitted a cop-out with complaints of blood in his stool and requested prednisone, pain medication, and an inhaler. (Doc. 15 ¶¶ 12, 13; Doc. 14-5 at 40-41.) After assessing Milhouse, PA Peoria submitted a consultation request for a colonoscopy due to Milhouse's rectal bleeding with abdominal pain. (Doc. 14-5 at 41.) He prescribed an inhaler and Naproxen for an unspecified backache, and told Milhouse to follow up at sick call as needed. (Id.)

On July 2, 2009, Milhouse submitted a cop-out with a complaint that he has not yet received high blood pressure medicine and requested allergy tablets. (Doc. 15 ¶ 14; Doc. 14-5 at 38-39.) It was noted that Milhouse has benign essential hypertension and allergic rhinitis. (Doc. 14-5 at 38.) PA Peoria issued the allergy tablets, but informed Milhouse that he had not been prescribed high blood pressure medication. (Id.) He also noted that Milhouse should follow up at sick call and the chronic care clinic as needed. (Id.)

On July 9, 2009, Milhouse submitted a cop-out requesting high blood pressure medication. (Doc. 15 ¶ 15; Doc. 14-5 at 36-37.) In response, he was again reminded that he had not been prescribed anti-hypertensives. (Doc. 14-5 at 36.)

On July 10, 2009, Milhouse submitted a cop-out requesting a refill of prednisone and allergy tablets. (Doc. 14-5 at 34-35.) PA Peoria issued the prescriptions and instructed Milhouse to follow up at sick call as needed. (Id.) Later that same day, Milhouse submitted another cop-out with a number of complaints, including chest pain, extremities pain, and pain from a use of force incident. (Doc. 15 ¶ 16; Doc. 14-5 at 32-33.) He was seen at his cell and assessed for depressive disorder and antisocial personality disorder. (Doc. 14-5 at 32-33.) PA Peoria further noted the following: "I informed patient that I would not be addressing any of his multiple somatic complaints. Patient is extremely time intensive, is anxious, and dwells on somatic symptoms. He presents to Health Services almost daily. I do not see this changing."*fn4 (Id. at 33.)

On July 15, 2009, Milhouse was seen by PA Hemphill for complaints of a twisted ankle and swollen right arm. (Doc. 15 ¶ 18; Doc. 14-5 at 30-31.) He also requested antacid medication and denied any chest pain. (Doc. 14-5 at 30.) PA Hemphill prescribed Ibuprofen for the ankle and arm pain and antacid tablets. (Id. at 31.) Milhouse was advised that he should expect tenderness in the ankle for up to 30 days. (Id.)

On July 17, 2009, Milhouse was prescribed medication for stomach discomfort, per his request of the same day. (Doc. 15 ¶ 19; Doc. 14-5 at 28-29.)

On July 21, 2009, Milhouse submitted a cop-out with complaints of stomach pains, blood in his stool, swollen ankle, insomnia, chest pain, and racing thoughts. (Doc. 15 ¶ 20; Doc. 14-5 at 26-27.) In his report, PA Peoria noted that Milhouse does not want to see him because he thinks PA Peoria is trying to kill him. (Doc. 14-5 at 26.) Milhouse was assessed for external hemorrhoids, depressive disorder, antisocial personality disorder, a sprain and strain of an unspecified site of the ankle, heartburn, insomnia, ulcerative colitis, internal hemorrhoids, abdominal pain, and chest pain. (Id. at 26-27.) He was advised to follow up at sick call or the chronic care clinic as needed. (Id. at 27.) Further, he was informed that he may see a different provider at the time of his next chronic care clinic visit. (Id.) In his counter statement of material facts, Milhouse asserts that he was neither treated for depressive order nor informed that he could see a different provider. (Doc. 16 ¶¶ 21, 22.)

On July 23, 2009, Milhouse was seen for complaints of asthma, and prescribed an inhaler. (Doc. 14-5 at 25.) Also on July 23, 2009, PA Peoria addressed two cop-outs sent by Milhouse on July 14 and 20, 2009, respectively. (Doc. 15 ¶¶ 23, 24; Doc. 14-5 at 23-24.) In the cop-out dated July 14, 2009, Milhouse requested a blood pressure reading and various medications, including blood pressure medicine and prednisone. (Doc. 14-5 at 23.) In the cop-out dated July 20, 2009, Milhouse complained of blood in his stool and dizziness. (Id.) He requested a chronic care clinic visit and various medications, including lisinopril, an inhaler, prednisone, and allergy tablets. (Id.) He was assessed for benign essential hypertension, external hemorrhoids, asthma, antisocial personality disorder, ulcerative colitis, internal hemorrhoids, and allergic rhinitis. (Id. at 24.) Milhouse was advised to follow up at sick call or the chronic care clinic as needed, and was discharged to the housing unit with asthma restrictions. (Id.) He was also informed that he could pursue a prescription of lisinopril at the time of his chronic care clinic visit. (Id.) It was noted that he was not on any anti-hypertensives, and that his prescriptions for an inhaler and prednisone had been filled the previous day. (Id.)

On August 3, 2009, PA Peoria addressed two cop-outs sent by Milhouse, one with no date and the other dated August 1, 2009. (Doc. 15 ¶ 25; Doc. 14-5 at 21-22.) In these cop-outs, Milhouse complained of continued ankle pain, and requested more prednisone and pain medication. (Id. at 21.) He was assessed for a sprain and strain of an unspecified site of the ankle and for ulcerative colitis. (Id.) Further, he was prescribed Ibuprofen, but informed that the prescription for prednisone will not be refilled so frequently. (Id. at 22.) He was also told to follow up at sick call or the chronic care clinic as needed. (Id.)

On August 5, 2009, PA Peoria addressed a cop-out sent by Milhouse on August 4, 2009. (Doc. 15 ¶ 26; Doc. 14-5 at 19-20.) Milhouse was assessed for asthma and allergic rhinitis. (Doc. 14-5 at 19.) His prescription for an inhaler was renewed, and he was told to follow up at sick call or the chronic care clinic as needed. (Id.)

On August 10, 2009, PA Peoria addressed a cop-out sent by Milhouse on August 9, 2009. (Doc. 15 ¶ 27; Doc. 14-5 at 17-18.) In the cop-out, Milhouse complained of continued ankle pain. (Doc. 14-5 at 17.) He also requested allergy tablets and prednisone. (Id.) It was noted that his soft shoe request was pending. (Id.) In addition, he was assessed for ulcerative colitis and allergic rhinitis. (Id.) He was told to follow up at sick call or the chronic care clinic as needed. (Id.)

On August 17, 2009, PA Peoria addressed a cop-out sent by Milhouse on August 13, 2009. (Doc. 15 ¶ 28; Doc. 14-5 at 15-16.) In the cop-out, Milhouse requested prednisone and pain medication for his back and ankle. (Doc. 14-5 at 15.) He was assessed for a backache, a sprain and strain of an unspecified site of the ankle, and ulcerative colitis. (Id. at 15.) Ibuprofen was prescribed , but his request for prednisone was denied. (Id.)

On August 21, 2009, PA Peoria addressed a cop-out sent by Milhouse on August 20, 2009. (Doc. 15 ¶ 29; Doc. 14-5 at 13-14.) In the cop-out, Milhouse submitted a request for anti-fungal cream, foot drops for a toe nail fungus, and an xray for his left ankle. (Doc. 14-5 at 13.) Milhouse was seen at his cell, and PA Peoria noted fungus in Milhouse's groin area and recorded that Milhouse had previously stepped in a hole in his cell in July 2009, was given an ace wrap, but claimed it has not helped. (Id.) PA Peoria prescribed cream for his fungus. (Id. at 14.)

On August 27, 2009, Milhouse was seen by a general surgeon for rectal bleeding. (Doc. 15 ¶ 31; Doc. 14-5 at 12.) The surgeon recommended a colonoscopy to rule out polyps, and, as a result, a consult for a colonoscopy was written. (Doc. 14-5 at 12.) However, after Milhouse wrote several cop-outs to staff indicating that he was refusing the colonoscopy because of government experiments,*fn5 PA Peoria presented him with a refusal form which he signed on November 17, 2009. (Doc. 14-3 at 39-40; Doc. 14-5 at 42-45.)

On August 31, 2009, PA Peoria addressed two cop-outs sent by Milhouse on August 21 and 24, 2009, respectively. (Doc. 15 ¶ 32; Doc. 14-5 at 8-11.) In the first cop-out, Milhouse requested a "soft-shoe pass for left ankle surgery." (Doc. 14-5 at 10.) PA Peoria noted that he would not issue a soft shoe pass to Milhouse because he was already wearing issued soft shoes. (Id.) In the second cop-out, Milhouse requested that "something be done immediately otherwise 'this is deliberate indifference of inadequate medical care.'" (Doc. 14-5 at 8.) PA Peoria noted that he was interpreting the request as one for an examination and x-ray of his left ankle, as well as a soft shoe pass. (Id.) He noted that he would inform Milhouse that his concerns had been documented. (Id.)

On September 10, 2009, Milhouse's prescriptions for anti-fungal cream and Ibuprofen were refilled. (Doc. 15 ¶ 33; Doc. 14-5 at 6-7.) In addition, the pharmacy was notified for an over-the-counter ("OTC") form for Milhouse's indigent status for prescriptions. (Doc. 14-5 at 6.)

On September 14, 2009, PA Peoria addressed three cop-outs sent by Milhouse, two on September 10, 2009, and a third on September 12, 2009. (Doc. 15 ¶¶ 34, 35; Doc. 14-5 at 2-4.) In the first cop-out sent on September 10, 2009, Milhouse requested a refill of Ibuprofen and an inhaler. (Doc. 14-5 at 2.) In the second cop-out, Milhouse requested allergy tablets and stated that the Ibuprofen is not working. (Id.) PA Peoria noted that Milhouse was not indigent, refilled the prescription for Ibuprofen, and referred Milhouse to the commissary for the allergy tablets. (Id. at 2-3.) In the cop-out sent on September 12, 2009, Milhouse again requested an inhaler. (Id. at 2.) Further, in an administrative note generated on September 14, 2009, it was noted that Milhouse was seen by an optometrist on that date. (Id. at 4.)

On September 15, 2009, PA Peoria addressed a cop-out sent by Milhouse on September 2, 2009. (Doc. 15 ¶ 36; Doc. 14-4 at 50; Doc. 14-5 at 1.) In the cop-out, Milhouse complained of pain in his ankle and rectal bleeding. (Doc. 14-4 at 50.) He was seen at his cell, where he also requested nasal spray. (Id.) A prescription for nasal spray was submitted and Milhouse was advised to follow-up at sick call as needed. (Doc. 14-5 at 1.)

On September 16, 2009, Milhouse submitted a request for more allergy tablets. Doc. 15 ¶ 37; Doc. 14-4 at 48-49.) It was noted that Milhouse is not indigent and therefore he was referred to the commissary for allergy tablets. (Doc. 14-4 at 48.)

On September 18, 2009, Milhouse was seen by Clinical Director Dr. Pigos for his left ankle pain. (Doc. 15 ¶¶ 38, 39; Doc. 14-4 at 45-47.) Milhouse stated that he had not yet been examined or treated for the left ankle pain. (Doc. 14-4 at 45.) His pain scale was marked at "2." (Id.) When asked if he had any other medical concerns at that time, Milhouse stated no. (Id.) Upon examination, it was noted that he had full range of motion, no swelling, and no deformities. (Id. at 46.)

On September 28, 2009, PA Peoria addressed four cop-outs sent by Milhouse sent in September 2009. (Doc. 15 ¶¶ 40, 41; Doc. 14-4 at 42-44.) In a cop-out dated September 19, 2009, Milhouse requested a refill of the anti-fungal cream. (Doc. 14-4 at 42.) PA Peoria noted that Milhouse was no longer indigent. (Id.) In a cop-out dated September 24, 2009, Milhouse requested high blood pressure medication and anti-fungal cream. (Id.) It was noted that Milhouse has no history of hypertension and the pharmacy does not have a record of prescriptions for anti-hypertensives for Milhouse. (Id.) In a cop-out dated September 25, 2009, Milhouse requested that his blood sugar and cholesterol be checked, requested allergy tablets and high blood pressure medication, and complained of pain in his left ankle and lower back. (Id.) It was noted that he has not previously been prescribed medication for his cholesterol. (Id.) In addition, it was noted that labs that were previously ordered by staff were refused by Milhouse. (Id.) Finally, it was noted that an x-ray of Milhouse's ankle was ordered on September 16, 2009. (Id.) In a cop-out dated September 27, 2009, Milhouse requested high blood pressure medication and allergy tablets. (Id. at 43.) In response to these cop-outs, PA Peoria noted that because Milhouse was no longer indigent he would refer Milhouse to the commissary for a refill of the anti-fungal cream and allergy tablets. (Id. at 44.) In addition, he noted that no lab work would be requested at that time because Milhouse had previously refused the requested labs. (Id. at 43-44.) Milhouse was informed to follow-up at sick call or the chronic care clinic as needed. (Id. at 43.)

On September 29, 2009, PA Peoria addressed a cop-out sent by Milhouse on September 28, 2009. (Doc. 15 ¶ 42; Doc. 14-4 at 40-41.) In the cop-out, Milhouse requested pain medication for pain in his ankle and right forearm. (Doc. 14-4 at 40.) It was noted that Milhouse was no longer indigent and resultantly he was referred to the commissary for medication refills. (Id.)

On September 30, 2009, PA Peoria addressed a cop-out sent by Milhouse on September 29, 2009. (Doc. 15 ¶ 43; Doc. 14-4 at 38-39.) In the cop-out, Milhouse requested high blood pressure medication and stated that his ankle was in pain. (Doc. 14-4 at 38.) PA Peoria noted that he was not prescribing anti-hypertensives for Milhouse, who is normotensive. (Id.) In addition, he informed Milhouse that he can purchase an analgesia from the commissary for his ankle pain. (Id.)

On October 2, 2009, PA Peoria addressed two cop-outs sent by Milhouse on September 30 and October 1, 2009, respectively. (Doc. 15 ¶ 44; Doc. 14-4 at 36-37.) In the cop-out dated September 30, 2009, Milhouse complained of chest pain. (Doc. 14-4 at 36.) In the cop-out dated October 1, 2009, Milhouse requested allergy tablets. (Id.) PA Peoria noted that he would refer Milhouse to the commissary for allergy tablets, and also advise him that he would not be working in the SMU the following week "so he may take a holiday from writing me daily cop-outs." (Id. at 37.)

On October 7, 2009, Milhouse stoppped Dan DeLeon, RN, during his rounds of the SMU and informed him that he had previously been on high blood pressure medication, but had no specific complaint at that time. (Doc. 15 ¶ 45; Doc. 14-4 at 33-34.) However, he was given a refill of his inhaler. (Doc. 14-4 at 34.)

On October 19, 2009, PA Peoria addressed four cop-outs sent by Milhouse in October 2009. (Doc. 15 ΒΆ 46; Doc. 14-4 at 29-32.) In the first one, undated, Milhouse requested pain medication and stated that he previously received Naproxen for a back injury. (Doc. 14-4 at 29.) In a cop-out dated October 15, 2009, Milhouse stated that his blood pressure was taken by a nurse on October 7, 2009, and it was high. (Id.) In a cop-out dated October 16, 2009, Milhouse complained of abdominal pain. (Id.) In a cop-out dated October 18, 2009, Milhouse requested high blood pressure medication and Naproxen for chronic back pain. (Id.) He was ...


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