The opinion of the court was delivered by: Judge Conner
Presently before the court is the report (Doc. 162) of the Honorable Martin C. Carlson, United States Magistrate Judge, recommending that defendants' motions (Docs. 92, 98, 100, 101) for summary judgment be granted and plaintiff's motion (Doc. 146) to quash submission of defendant Prison Health Services' expert report be denied as moot. Plaintiff Stanley Ozorozski ("Ozoroski") filed objections (Doc. 168) to report and recommendation, as have defendants Cecilia Velasquez and Cheryl Cantey ("Velasquez" and "Cantey") (Doc. 163), Dr. Adam Edelman ("Dr. Edelman") (Doc. 165), and Wexford Health Sources, Inc. ("Wexford") (Doc. 167). For the reasons set forth below, the court will adopt in part and reject in part the report and recommendation and grant summary judgment in favor of defendants on all claims.
Plaintiff Stanley Ozoroski ("Ozoroski"), an inmate in the Pennsylvania state correctional system, filed the instant action pursuant to 42 U.S.C. § 1983 alleging he was denied necessary medical treatment. His lengthy medical issues stem back to 1993 when he underwent a hernia repair operation in which he suffered a perforation of the small bowel. Ozoroski underwent at least six additional surgeries all addressing various medical problems in his abdominal area linked to the 1993 hernia operation. From 1993 through 2007, Ozoroski has been examined or treated by more than twenty different physicians. Prison and medical officials monitored and treated Ozoroski's condition constantly. Despite treatment, Ozoroski continued to suffer abdominal problems and developed an enterocutaneous fistula.*fn2 The Pennsylvania Department of Corrections ("DOC") approved several outside surgical consults and off-site examinations for his condition, but ultimately pursued a non-surgical course of treatment. Ozoroski believed that his condition required surgical treatment, but prison healthcare provider refused to approve the surgery.
The record contains varying opinions of multiple physicians regarding the advisability of surgery. Some physicians recommended surgery; others concluded that surgery would be too risky due to the serious morbidity and mortality rates. On numerous occasions the DOC denied Ozoroski's requests for surgery after review and consultation on his medical file. In December 2006, Ozoroski was released into the custody of Gaudenzia Drug Rehabilitation Center, although he remained under the control of the DOC. With the assistance of the Veterans Affairs Hospital in Philadelphia, Pennsylvania, Ozoroski had surgery to repair his abdomen on October 8, 2007, at the University of Pennsylvania Hospital.
Ozoroski filed his initial complaint on January 14, 2008 naming multiple defendants. (Doc. 1). Ozoroski alleges that the repeated denial of surgery constituted deliberate indifference to his serious medical needs in violation of the Eighth Amendment. He further contends that the defendants retaliated against him by denying him surgery after he submitted administrative grievances with the prison. Subsequent to the filing of three amended complaints (see Docs. 7, 31, 68) and the disposition of a multitude of motions to dismiss (see Docs. 33, 35, 37, 47, 71, 79), the remaining named defendants filed motions for summary judgment on January 14, 2010 (Doc. 92) and January 15, 2010 (Docs. 98, 100, 101) respectively. The remaining defendants are: Dr. Frederick R. Maue ("Dr. Maue"), Chief of Clinical Services of the Bureau of the Department of Corrections; Marva Cerullo ("Cerullo"), a Healthcare Administrator at SCI-Mahanoy; Wexford, a corporation contracted with the Pennsylvania Department of Corrections to provide healthcare services to inmates from September 1996 to September 2003; Prison Health Services ("PHS"), another healthcare provider contracted to provide healthcare services to inmates from 2003 through all relevant dates to this action; Dr. Edelman, Director of Prison Health Services; Cecilia Velasquez, Director of Gaudenzia, a company contracted with the DOC to provide rehabilitation services to inmates; and Cheryl Cantey, head medical supervisor of Gaudenzia. After full briefing, this court referred the motions, as well as a motion (Doc. 146) filed by Ozoroski to quash the expert report of PHS, to Magistrate Judge Carlson. (See Doc. 161).
Magistrate Judge Carlson issued his report and recommendation (Doc. 162) on February 14, 2011. Judge Carlson recommended granting defendants' motions for summary judgment. He concluded that the statute of limitations bars suit in the present matter against Wexford, Dr. Maue and Cerullo and that the continuing violation doctrine is not applicable to Ozoroski's claims. He further determined that the exercise of defendants' professional medical judgment could not rise to the level of deliberate indifference necessary to establish an Eighth Amendment violation. Judge Carlson also briefly addressed Ozoroski's First Amendment retaliation claim. He recommended granting summary judgment in favor of PHS on the claim, but expressed some hesitancy as to the remaining defendants, asserting that they failed to brief the issue. Velasquez and Cantey filed objections (Doc. 163) on February 17, 2011, Dr. Edelman filed objections (Doc. 165) on February 23, 2011, Wexford filed objections (Doc. 167) on February 26, 2011, and Ozoroski filed objections (Doc. 168) on March 1, 2011.
A. Standard of Review for a Motion for Summary Judgment
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact," and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). A motion for summary judgment places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
B. Standard of Review for a Magistrate Judge's Recommendation
Where objections to a magistrate judge's report and recommendation are filed, the court must perform a de novo review of the contested portions of the report. Supinski v. United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3 (M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). "In this regard, Local Rule of Court 72.3 requires 'written objections which . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for those objections.'" Id. (citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL 4186951, at *6 (M.D. Pa. Sept. 8, 2008)).
Ozoroski filed multiple objections to the report and recommendation of Judge Carlson. Essentially, he contends that Judge Carlson "went above and beyond" the court's role at the summary judgment stage to determine whether issues of material fact exist to preclude summary judgment. (Doc. 168 ¶¶ 4-5). His assertions include that Judge Carlson erroneously: (1) stated that Ozoroski's last grievance was filed in 2005 (id. ¶ 6); (2) stated that Ozoroski refused medical treatment in January 2006 (id. ¶ 9); (3) concluded that peer review articles on treatment of enterocutaneous fistula and documents from defendants' websites are inadmissible hearsay (id. ¶¶ 10, 14); (4) concluded that the continuing violation theory is inapplicable (id. ¶ 12); and (5) determined that the exercise of a physician's discretion is not deliberate indifference (id. ¶ 15). Defendants object to the suggestion that they failed to move for summary judgment on the retaliation claim.
1. Continuing Violations Doctrine
Ozoroski argues that the continuing violation doctrine applies to his claims because all of the events that give rise to his cause of action occurred while he was under the ultimate control of the Pennsylvania Department of Corrections. Accordingly, the continuing violation doctrine should apply to all actions by individual and corporate defendants employed or contracted with the DOC establishing a continuing pattern and practice of denying Ozoroski medical care. Judge Carlson concluded that the continuing violations doctrine is inapplicable in the instant matter because the evidence does not support the aggregation of defendants. Rather, Judge Carlson observed that several of the defendants "had only isolated and discrete contact with Ozoroski" or had no duty to provide medical services after the expiration of their contracts with the DOC. (Doc. 162, at 33-34). Judge Carlson further concluded that Ozoroski's refusal of medical care in January of 2006 triggered the application of the statute of limitations. (Id. at 34). Judge Carlson's report and recommendation on the issue is well-reasoned and thorough. The court adopts it.
Section 1983 claims are subject to the state's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). In Pennsylvania the limitations period is two years. 42 PA. CONS. STAT. §5524. The limitations period begins to run when the plaintiff knows or has reason to know of the injury upon which the cause of action is based, unless some exception tolls the running of limitations period. See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).
The continuing violations doctrine is an equitable exception to the running of the statute of limitations. It applies 'when a defendant's conduct is part of a continuing practice,' see Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting Brenner v. Local 514, United Bd. Of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)), and the conduct is 'more than the occurrence of isolated or sporadic acts.' Id. (quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995)). Under the doctrine, a plaintiff may bring suit for otherwise time-barred acts "so long as the last act evidencing the continuing practice falls within the limitations period." Id. A court should consider three factors in determining the applicability of the continuing violation doctrine: (1) subject matter-similar conduct; (2) frequency-recurring or isolated conduct; and (3) degree of permanence-conduct of an unchanging nature as to trigger an awareness of and duty to assert rights. Id. ...