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Gerald Funk v. Dr. Stan Stanish

March 31, 2011

GERALD FUNK,
PLAINTIFF,
v.
DR. STAN STANISH, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Chief Judge Kane)

MEMORANDUM

Gerald Funk ("Funk"), an inmate confined at the State Correctional Institution at Coal Township ("SCI-Coal Township"), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 26, 2010. In the complaint Funk sets forth violations of his First and Eighth Amendment rights, as well as various state law claims. The alleged incidents occurred at the State Correctional Institution at Houtzdale ("SCI-Houtzdale"), his former place of confinement, and SCI-Coal Township. Named as Defendants are Randall Britton, Superintendent at SCI-Houtzdale, and David Varano, Superintendent at SCI-Coal Township. Also named are SCI-Houtzdale employees Dr. Muhammad Naji and William Civiello, Physician's Assistant, as well as SCI-Coal Township employees Dr. Stan Stanish and Lieutenant Stephen Gooler. Presently pending is a motion to dismiss the complaint filed by Medical Defendants Stanish, Naji, and Civiello.*fn1 (Doc. No. 13.) Also pending is a partial motion to dismiss the complaint filed by Defendants Britton, Varano, and Gooler. (Doc. No. 26.) For the reasons that follow, the motion to dismiss filed by Defendants Stanish, Naji, and Civiello will be granted. The motion to dismiss filed by Defendants Britton, Varano, and Gooler will be granted in part and denied in part.

I. Allegations in the Complaint

In this action Funk sets forth allegations of inadequate medical care and retaliation spanning a three-and-a-half year time period beginning in September of 2006, through the filing of the complaint on March 26, 2010. While confined at SCI-Houtzdale, Funk began experiencing testicular pain and was provided with an athletic supporter. In the end of November 2006, he was seen in medical following his collapse due to testicular pain while working in the prison kitchen. Funk was provided with Motrin and placed on the sick call list. On December 1, 2006, he was seen by a physician's assistant who noted his chronic pain and the need for a scrotal ultrasound. According to Funk, the ultrasound was never performed until August 2008.

On December 11, 2006, Funk was seen by another physician's assistant for testicular pain and referred to Dr. Naji. On December 14, 2006, Dr. Naji performed a cursory examination, and noted that Funk's pain was most likely due to mild trauma. Funk was advised he needed time to heal, and he was told to return in six months if the pain persisted. He was also continued on Motrin.

On January 8, 2007, Funk was seen in medical due to an injury sustained to his right arm while working at the prison. A nurse noted minimal swelling and pain. Ice was applied and he was put on the sick call list. He was seen on January 17, 2007, at which time a partial tear of the tendon was suspected. From January 30, 2007, through April 9, 2007, Funk was seen on five occasions for arm and elbow pain. On March 1, 2007, he was provided with an elastic elbow sleeve. The following week, Dr. Naji assessed Funk as suffering from "elbow tendonitis." An x-ray was ordered by a physician's assistant on April 9, 2007. On May 16, 2007, during a routine physical, Funk complained to Dr. Naji about his persisting testicular pain. Funk was told to return in six to twelve months if the problem continued, and Dr. Naji refused to provide any other treatment.

Funk states that his athletic supporter was confiscated on June 2, 2008. On June 5, 2008, he attended sick call and complained to a physician's assistant that he was suffering from arm, elbow, and testicular pain, and that his athletic supporter had been confiscated. The physician's assistant refused to discuss the testicular pain issue. However, the physician's assistant noted Funk's arm pain and that Funk was wearing a splint. Funk's request for a CT scan and an MRI went unanswered. On June 9, 2008, Funk was seen by Civiello for testicular pain. A notation of "testicular pain unknown echology. ? whether overreaction" was noted by Civiello on Funk's chart. (Doc. No. 1 at ¶ 39.) Civiello did order an athletic supporter.

Funk submitted a sick call request on June 29, 2008, complaining of severe testicular pain, particularly when getting up and down from his bunk bed. Later that day he was picked up by a prison ambulance after he collapsed from pain. Following an examination by a nurse, it was noted that the left side of Funk's groin was firmer than the right, and crutches were issued. He was scheduled for sick call the following day. On June 30, 2008, Civiello conducted a follow-up examination. Funk described how the pain increased with exertion, particularly when climbing in and out of his bunk. He also requested tests including an ultrasound, a CT Scan and an MRI, as well as an appointment with a specialist. When Funk requested to be referred to Dr. Naji to make the necessary arrangements, Civiello insisted that nothing was wrong with Funk. After Funk threatened to file a grievance, Civiello told him he would get his test. A stomach x-ray was later ordered, and Funk was referred to Dr. Naji to determine if an ultrasound was necessary.*fn2

On July 1, 2008, Funk received the athletic supporter ordered on June 9, 2008. A stomach x-ray was also performed and Funk was seen by Dr. Naji. Funk alleges that although he told Dr. Naji about his severe testicular pain and the problems with lifting and climbing, Dr. Naji ignored him. Funk states that even though Dr. Naji palpitated his stomach and testicles, Dr. Naji avoided the areas that needed to be examined. Dr. Naji informed Funk that he probably had a kidney stone, and that he did not want to see him anymore. No prescriptions were given to Funk.

The following day Funk collapsed while climbing out of his bunk. The incident was documented on Funk's Block Card after it was reported by his cellmate. (Doc. No. 1, Compl. Ex. A, Watkins Decl.) The block officer thereafter moved Funk to a bottom bunk.

On July 10, 2008, Funk saw Dr. Naji again regarding complaints of testicular pain. Dr. Naji informed him that the x-rays taken on July 1, 2008, showed the possibility of a small kidney stone and that this could be responsible for his pain. Funk disagreed with this diagnosis. Dr. Naji ordered a kidney ultrasound. The order was later changed to a testicle ultrasound following objections from Funk. On July 14, 2008, Funk submitted Grievance #236073 setting forth facts regarding his testicular pain issues and requesting to see a specialist. The grievance and related appeals were denied.

Dr. Naji saw Funk again for complaints of testicular pain on August 6, 2008, and informed Funk that he did not have a kidney stone. Dr. Naji then told Funk that his pain was imaginary and a psychological problem. Funk's request for a referral to a psychologist to prove Dr. Naji wrong was denied. However, Dr. Naji did order a testicle ultrasound to convince Funk that nothing was wrong.

On September 3, 2008, Funk was seen by Dr. Naji to obtain a refill for acetaminophen for his testicular pain. Funk informed Dr. Naji that having a bottom bunk assignment was helping his pain. Dr. Naji informed Funk that his ultrasound showed a Hydrocele in his testicles but that would not cause pain. Dr. Naji told Fund that he was "done with this issue." (Doc. No. 1 ¶ 56.). An entry was made by Dr. Naji in Funk's chart which read "[r]esolved testicle pain."

On October 3, 2008, Funk filed Grievance #245548 complaining about the inadequate medical treatment he was receiving for his testicular pain. The grievance was rejected because the same claims were previously addressed in Grievance #236073 filed on July 14, 2008. Another grievance was submitted on October 4, 2008 (Grievance #245549), complaining about Dr. Naji's discontinuance of chronic medications in response to Funk's complaints. Funk then filed Grievance #247403 on October 20, 2008, raising the same claims set forth in Grievance #236073. These grievances and the appeals therefrom were all denied.

On October 9, 2008, Funk submitted Grievance #246385 challenging the rejection of Grievance #245548 filed on October 3, 2008. Another grievance (#247538) was submitted by Funk on October 21, 2008, complaining of retaliatory acts by Dr. Naji in response to Funk's filing of complaints and grievances. Funk states he thereafter stopped seeking medical care for his testicular pain until January 2009, due to the adverse behavior of the medical staff regarding his problem.

On January 6, 2009, Funk submitted a sick call request due to the testicular pain he was experiencing. He was seen by a physician's assistant who provided him with Tylenol/Ibuprofen. When Funk requested to see Dr. Naji to obtain a referral to see a specialist, he was told by the physician's assistant that Dr. Naji had resolved his testicular pain issues and found that no specialist was necessary because the problem was psychological. Although Funk requested the imposition of a five to ten pound lifting restriction, only a thirty pound restriction was ordered.

Funk was seen by Civiello on February 2, 2009, in response to a sick call request for serious testicular pain. Funk complained about having to carry in excess of ten pounds at his prison job. Although Funk requested a "physical exertion" test and to be seen by a specialist, these requests were denied. A grievance filed by Funk with respect to Civiello's actions (#260359) was denied.

On February 17, 2009, Funk states he collapsed in pain at his prison job after carrying twenty-five pound boxes. He was seen by Civiello on February 27, 2009, again for increasing testicular pain. A request for a five pound lifting restriction was denied, and Funk was advised to either toughen up or change his job. Funk states that Civiello performed a cursory hernia examination but refused to palpitate the areas Funk desired. Requests for a short medical lay-in and to see a specialist were denied. A grievance filed with respect to this matter (#263361) was also denied. While an appeal was pending before Defendant Britton, Funk states that he sustained another head injury after a fall on March 9, 2009, due to sharp testicular pains. His appeals with respect to Grievance #263361 were subsequently denied.

During the month of March 2009, Funk was seen several times by medical staff at SCIHoutzdale. On March 23, 2009, he submitted a request slip to Dr. Naji complaining about the inadequate treatment he had received from Civiello on February 27, 2009, and requesting an examination. Funk was seen by Dr. Naji for testicular pain on April 16, 2009. While Dr. Naji refused to address Funk's complaints, Dr. Naji did prescribe medication for allergy problems Funk was experiencing. On June 12, 2009, Funk filed Grievance #276952 with respect to the failure to be evaluated by medical personnel regarding sick call requests submitted in June complaining of headaches and testicular pain. The grievance and appeals were all denied.

On June 15, 2009, a grievance (#276957) was submitted by Funk claiming that he was told he was going to be transferred due to the complaints he was making about the medical department at SCI-Houtzdale. He further stated that Britton had threatened this action would occur. The grievance was rejected on June 16, 2009, on the basis that it presented two separate issues, and therefore needed to be resubmitted as two grievances. The same day, Funk was transferred to SCI-Coal Township. Funk alleges that the transfer was a retaliatory act by Britton, who previously informed Funk that such transfers happen to people who complain. When Funk arrived at SCI-Coal Township, he was told by Officer Custer that he was transferred from SCI-Houtzdale due to his filing of grievances, even though the official reason given for the transfer was the need by the Office of Population Management to move Level 2 inmates. Grievances pursued by Funk following his transfer with respect to this issue were unsuccessful.

The remaining claims in the complaint are with respect to Funk's medical treatment at SCI-Coal Township. He arrived on June 16, 2009, with orders to wear an athletic supporter and a forearm brace due to his continuing testicular and arm pain. In July 2009, Funk was seen in the SCI-Coal Township medical department for testicular and arm pain. While there, he explained his history with respect to both matters. On July 29, 2009, Funk was injured while lifting during his job on the food service line. He ...


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