The opinion of the court was delivered by: Eduardo C. Robreno, J.
Proceeding pro se, Jose Burgos ("Burgos") brings this action against
Philadelphia Prisons Systems,*fn1 Prison
Services, Inc. ("PHS"),*fn2 Dr. Skliros,*fn3
Linda Maher, Major Osie M. Butler, Corrections Officer Jose
Castro ("Castro"), and Lieutenant Lake. Plaintiff alleges that he was
denied adequate health care when he was not taken to an orthopedic
surgeon for over forty days when he was suffering from a broken arm.
Plaintiff claims that this delay in treatment violates his
constitutional right to be free from cruel and unusual punishment as
applied through the Fourteenth Amendment of the United States
Currently before the Court are Defendants' two motions for summary judgment: (1) filed by Defendants Prison Health Services, Inc., Linda Maher, and Dr. Skliros, and (2) filed by Defendants Major Butler and Lieutenant Lake. First, the Court will address the applicable law. Second, the Court will apply the law to each Defendant to determine whether or not summary judgment is appropriate.
For the reasons set forth below, the Court concludes that summary judgment will be granted for Defendants Dr. Skliros, Major Butler, and Lieutenant Lake. Meanwhile, summary judgment will be denied as to Defendants Prison Health Services, Inc. and Linda Maher.
Below are the facts taken from Plaintiff's affidavit and his deposition testimony as they are viewed in the light most favorable to Plaintiff as the non moving party. On November 3, 2005, Burgos was shot in the arm during an incident with Philadelphia Police Officers. (Plf.'s Dep. at 9-10.) Burgos was treated at Albert Einstein Medical Center where a metal rod was surgically implanted into his arm to repair the fracture by Dr. Laurie Hirsh, an orthopedic surgeon. (Plf.'s Dep. at 11.) Burgos was released to the Philadelphia Prison System on November 9, 2009. (Plf.'s Dep. at 11- 12.)
On March 8, 2006, Burgos fell from the top bunk of his cell, causing a re-injury to his arm. (Plf.'s Dep. at 13-14 & 17-18; Plf.'s Aff. ¶ 33.) Burgos' cellmate helped him to the cell block's staff desk where Castro was sitting. Burgos requested that he be allowed to go to "medical"*fn4 but Castro denied his request. (Plf.'s Aff. 33.) Burgos and his cellmate then asked the other staff member, who called Lieutenant Lake. After seeing Burgos and his injuries, Lake granted Burgos' request to go to Medical. (Plf.'s Aff. ¶ 34.)
Once at medical, Dr. Skliros physically examined Burgos. Then, he instructed Burgos to return to his cell to retrieve his identification card. A staff member unlocked his cell so that he could get his card but Castro tried to close the door before Burgos could exit. Burgos put his foot in between the door and the frame to block Castro from closing the door. Burgos began to leave and Castro then pinned him and his injured arm in the door frame, causing Burgos pain. (Plf.'s Aff. ¶ 39.)
An x-ray of Burgos' arm was taken the next day, March 9, 2006, revealing that he had fractured it. (Plf.'s Dep. at 26, 31.) Dr. Skliros wrote a referral for Burgos to go back to Albert Einstein for surgery because it was important for the continuity of care for Burgos to return to the orthopedic surgeon who had originally operated on his arm, stating that "it had to be done immediately." (Plf.'s Dep. at 35.)
Dr. Skliros sent this referral to Linda Maher, who then forwarded it to Dr. Kalu, Regional Medical Director, who approved it on March 9, 2006. Dr. Skliros also prescribed a sling for Burgos, which he did not receive until after March 17, 2006. (Plf.'s Aff. ¶ 40 & 41.) At the time of Burgos' injury there was a contract dispute between the City of Philadelphia and Albert Einstein which caused Albert Einstein to suspend services to inmates until these contract matters were resolved. (Kalu Aff. ¶ 16.)
On March 16, 2006, Burgos complained of bruising and possible internal bleeding in his broken arm. On March 17, 2006, Dr. Skliros saw Burgos again and noting that Burgos had not yet received the sling he had prescribed, he re-ordered it. (Kalu Aff. at 20.) On March 19, 2006, Burgos told a Sergeant Anderson that his arm was black and red. Anderson notified Defendant Major Butler. (Plf.'s Aff. at 27.) Burgos was seen by a nurse practitioner and Dr. Skliros who immediately sent Burgos to the Frankford Hospital Emergency Room to rule out deep vein thrombosis. Burgos was then transferred to the Prison Health Services Wing (PHSW) on March 20, 2006 and remained there until March 27, 2006, when he requested to be placed back in general population. (Plf.'s Dep. at 43 and 51.)
On March 21, 2006, Dr. Smith examined Burgos and ordered Burgos warm compresses. Smith also issued Burgos a pass to receive extra blankets and pillows to assist him in elevating his arm for comfort. (Plf.'s Dep. at 22.) Burgos was not given these items so on March 22, 2006 he went to retrieve them on his own from a closet. Corrections Officer Fallen told him to put the items back in the closet and that Burgos could not have them. Then, Corrections Officer Brian ordered him to "lock it up," meaning to return to his cell and shut the door so that it could be locked with him inside.
When Burgos responded by telling Brian that he should not have to because he did nothing wrong, Brian began throwing Burgos' personal items into the hallway. When Burgos again refused to "lock it up" until after he retrieved his items, both Brian and Fallen physically grabbed Burgos, pinned his arms behind his back, and handcuffed his wrists. Burgos alleges that both Fallen and Brian were aware of his broken arm. Fallen and Brian held Burgos pinned down by his back while Burgos was "screaming" and "crying" on the floor of his cell floor because of the pain, when Corrections Officer Rivera sprayed Burgos' face with mace. (Plf.'s Aff. at 13-16.)
On or about March 24, 2006, Burgos' mother and step father visited him in prison. During the visit they noticed the bad bruising of Burgos' arm and that he was in a lot of pain. While in the visiting room, they had pictures taken of Burgos' arm as evidence. (Velez Aff.; Rivera Aff.; Plf.'s Dep. at 77.)
According to Burgos, he wrote many grievances concerning his lack of effective medical treatment. In response, Major Butler made arrangements for Burgos to be transferred to the Detention Center to receive treatment in the Prison Health Services Wing. (Plf.'s Dep. at 77.) Around April 5 or 6, 2009, Major Butler called Burgos to her office to discuss the grievances he had filed concerning his medical care and assisted him in completing an appeal to the Case 2:08-cv-01179-ER Document 47 Filed 10/09/09 Page 4 of 11 Commissioner. (Plf.'s Dep. at 58.) On April 19, Burgos received a letter from Commissioner King in response to his grievance appeal filed April 6, 2006 informing him that he would be taken to Albert Einstein the following day. (Id.)
Burgos was taken to Albert Einstein and examined by a doctor at that facility on April 20, 2006. The same orthopedic surgeon that operated on Burgos before, Dr. Hirsh, examined Burgos and asked the corrections officers that escorted him why he had not been brought in earlier. X-rays were taken that showed that the bone was re-healing over the rod. She told Burgos that he had the option of undergoing a surgery where his arm would be re-broken and there would be a chance that he would permanently lose all feeling in his arm. The alternative, Dr. Hirsch explained, was to leave his arm as it was with permanent limited mobility. Burgos chose not to have the surgery. (Plf.'s Dep. at 60.)
III. PROCEDURAL BACKGROUND
Pro se Plaintiff, Jose Burgos, filed this § 1983 action against the Philadelphia Prison System, the Prison Health Services, Inc. and individuals associated with those institutions, including Dr. Skliros,*fn5 Linda Maher, Major Osie M. Butler, C/O Castro, and Lieutenant Lake, alleging these Defendants violated his constitutional rights by failing to provide adequate medical treatment for his broken arm while he was incarcerated at the Curran Fromhold Correctional Facility ("CFCF").
In September 2008, this case was placed in civil suspense to accommodate Plaintiff as he made the transition from imprisonment to parole. (Doc. no. 21.) In December 2008, after a status and scheduling conference with the parties, this case was returned to the active docket. At that time, Defendants were instructed to take Plaintiff's deposition and to file any motions for summary judgment by February 13, 2009.
On February 13, 2009, Defendants filed a motion to dismiss for lack of prosecution, arguing that they had been unable to take Plaintiff's deposition, or otherwise proceed with the case, because Plaintiff had absconded from a halfway house and was a fugitive. (Doc. no. 24.) On March 24, 2009, Plaintiff filed a motion seeking leave to reschedule his deposition to a later date. The Court granted Plaintiff's motion, and directed Defendants to reschedule ...