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David Cabello v. James L. Grace

March 15, 2011


The opinion of the court was delivered by: Judge Caldwell


I. Introduction

The pro se plaintiff, David Cabello, brought this civil rights action under 42 U.S.C. § 1983 against multiple Department of Corrections (DOC) staffers and medical-care providers at the Huntingdon State Correctional Institution (SCI-Huntingdon), in Huntingdon, Pennsylvania. Plaintiff is making an Eighth Amendment challenge to the medical care he received for his diabetes.*fn1 Before the Court is the medical-care defendants' Motion for Summary Judgment.*fn2 The medical-care defendants are: Physician Assistant (PA) Auman; Luis Araneda, M.D.; Olga Beresgovkava, M.D.; and Joseph Romeo, M.D..

For the reasons that follow, the court will grant the defendants' motion for summary judgment.

II. Background

In his Amended Complaint, Plaintiff alleges defendants violated his Eighth

Amendment rights when they failed to provide him adequate medical care for his borderline diabetic condition by continually ignoring his complaints of side effects from his medication. Id. On August 21, 2009, the court granted in part, and denied in part, the medical defendants' motion to dismiss. The court dismissed Cabello's retaliation claims against all medical defendants except PA Auman. Doc. 105 at p. 24.*fn3 The remainder of the motion was denied. Although Cabello was granted leave to file an amended complaint concerning his retaliation claim against the other medical defendants, he did not do so. Id.

To summarize Plaintiff's remaining allegations, Cabello claims that in April 2006, he was diagnosed with Type II diabetes by Dr. Beresgovkava and prescribed two 500 mg. tablets of Metformin daily. Doc. 32, Am. Compl. at p. 2. In February 2007, on Plaintiff's own initiative, he started taking only one tablet daily. Id. at p. 5. In April 2007, Dr. Klemick adjusted Cabello's prescription, prescribing only one 500 mg Metformin tablet daily because two tablets was "too much." Id. In November 2007, when Plaintiff went to renew his Metformin prescription, PA Auman advised him his liver enzymes were high. Id. On December 3, 2007, Cabello refused to take any Metformin. Since stopping his Metformin in December 2007 he has not suffered from the recurring side effects or adverse symptoms he previously experienced. Id.

Cabello believes he suffered for twenty months with a variety of ailments caused by his ingestion of Metformin. He claims to have suffered lightheadedness, weight loss, elevated liver enzymes, and abdominal pains, all symptoms of a "life-threatening condition called lactic acidosis from the accumulation of Metformin" in his system. Id. He claims that the defendants' "repeated long-term negligent treatment of plaintiff's medical condition, rather than intentional actions, may amount to deliberate indifference to a serious medical need." Id. at p. 3. He believes it unreasonable that defendants, medical professionals, did not take his medical complaints seriously and failed to follow his diabetes condition properly resulting in "pain and suffering and emotional injuries." Id. at pp. 6 - 7.

The medical defendants seek summary judgment on the grounds that: (1) there was no deliberate indifference to Cabello's medical needs; (2) he fails to produce evidence of an injury allowing him to recover monetary damages; and (3) he fails to state a retaliation claim against PA Auman.

III. Summary Judgment Standard

Under Fed. R. Civ. P. 56, summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In pertinent part, parties moving for, or opposing, summary judgment must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R. Civ. P. 56(c)(1)(A). In deciding a motion for summary judgment, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).

The moving party bears the initial responsibility of stating the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When a moving party has carried its burden, the burden shifts to the nonmoving party to demonstrate that an issue of material fact exists. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (citations omitted). "The non-moving party cannot rest on mere pleadings or allegations," El v. Southeastern Pennsylvania Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). Unsubstantiated arguments and statements made in briefs cannot be treated as evidence. Versarge v. Twp. of Clinton N.J., 984 F.2d 1359, 1370 (3d Cir. 1993). Allegations made without evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). "Conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment." Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir.2002). Hearsay testimony contained in affidavits or statements that would be inadmissible at trial may not be included in an affidavit to oppose summary judgment. Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Comp., 998 F.2d 1224, 1234 n. 9 (3d Cir. 1993). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). While "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" in determining whether a genuine factual question exists, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), summary judgment should not be denied unless there is sufficient evidence for a jury to reasonably find for the non-movant. Id. at 249, 106 S.Ct. at 2510; see also Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).

In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510).

Middle District Local Rule 56.1 explains that facts set forth in a concise statement of material facts, complete with references to the parts of the record that support the statements, "will be deemed to be admitted unless specifically denied or otherwise controverted" by the opposing party as required by the rule. See M.D. Pa. Local Rule 56.1; Accord Fed. R. Civ. P. 56(c) and 56(e)(2).*fn4

IV. Statement of Undisputed Facts

We take this background from the properly supported factual assertions in the parties' briefs and the evidentiary submissions.

David Cabello was born on December 20, 1972. Doc. 129, Defs.' Statement of Uncontested Facts (DSF) at ¶ 28. Prior to his incarceration he was a drug addict and drank excessively. Doc. 131-9, Ex. H, Cabello Dep. at p. 28. Before he was transferred to the DOC, Cabello was advised that he was a borderline diabetic. Id. He entered the DOC in 2004, and has resided at SCI-Huntingdon since January 2005. Id. at p.8. Cabello suffers from mental illness. Id. at p. 47. He is bipolar and suffers from post-traumatic stress disorder and anxiety for which he takes several medications, and on occasion, has been housed at SCI-Waymart for psychiatric reasons. Id. at p. 9. Plaintiff took Remeron for his mental health issues from 2004 to 2006. DSF at ¶ 31. He requested to stop taking this medication in early 2006. Doc. 131-10, Ex. I, Cabello's Med. Records at pp. 4, 5, and 9.

On January 17, 2006, Dr. Araneda met with Cabello. Dr. Araneda's progress note from the encounter indicates that diabetes runs in Cabello's family and that he has a history of "elevated LFT."*fn5 Doc. 131-10 at p. 2. Cabello's mother is an insulin dependent diabetic. DSF at ¶ 68. On January 26, 2006, Cabello had a fasting blood sugar (FBS) of 138, and a two hour glucose test of 139. Id. at p. 3. Both results were elevated. Doc. 131-14, Ex. L, Araneda Decl. at ¶ 7. A normal range was 70-109. Id. At that time, Cabello refused to accept a special diet or exercise. Id. He was placed on the diabetes chronic care clinic list and given information about diabetes. Id. He was advised that he was a borderline diabetic. Doc. 131-10 at p. 3.

On February 7, 2006, Cabello returned to the medical unit, seeking to be placed on a diabetic diet. DSF at ¶ 64. PA Mills, a non-defendant, wrote an order for the diet. Id. On April 7, 2006, Cabello was counseled about his compliance with the diet. Id. at ¶ 66. He received additional information packets on diabetes. Id. at ¶ 67.

On April 7, 2006, Dr. Beresgovkava discussed the results of Cabello's March 2006, HGBA1C*fn6 test with him explaining that was elevated. Id. at ¶ 68. His January 2006 HGBA1C test was also elevated. Doc. 131-10 at p. 10. Cabello was given extensive education on diabetes, diet, and added to the diabetes chronic care clinic, and started on Glucophage.*fn7 Id. at ¶ 68. Dr. Beresgovkava prescribed Cabello one tablet of Glucophage 500 mg. by mouth BID (twice daily) for 180 days. Doc. 131-10 at p. 12. He was scheduled to see Dr. Beresgovkava in four weeks. Id. On May 3, 2006, Cabello was seen by Dr. Beresgovkava and denied any side effects from the Glucophage. Id. at ¶ 69; Doc. 131-10 at p. 14.

On June 6, 2006, Cabello complained that his blood sugar had not been checked since August 2004. He was advised that it was last checked on May 31, 2006. DSF at ΒΆ 71. His HBCA1C at the time was 5.9. Doc. 131-10 p. 19. Ten days later, he was seen in the RHU, and sought information as to his recent blood studies. PA ...

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