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Noah Carter v. Dr. Ralph Smith

June 13, 2011

NOAH CARTER
v.
DR. RALPH SMITH, ET AL.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

In this action, plaintiff Noah Carter alleges that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment.*fn1 Defendants Knauer, Stanishefski and DiGuglielmo ("commonwealth defendants") have filed a motion for summary judgment. Defendants Prison Health Services, Smith and Stefanic ("medical defendants") have filed a separate motion for summary judgment. Plaintiff has filed one response brief in opposition to both motions and defendants have filed reply briefs. For the following reasons I will grant the motions.

BACKGROUND

Plaintiff has been incarcerated at SCI-Graterford since 1977. Carter Dep. 7:18-1977 (Apr. 23, 2010) (Def.'s Ex. R.) (Doc. No. 57). In 1999, he began to feel severe pain in his back. Id. at 92:18-24. His efforts to obtain effective treatment of his condition form the basis of this lawsuit.

I. Plaintiff's Efforts to Obtain an MRI and CT Scan of his Spine and Brain On September 18, 2001, plaintiff was examined by Anthony Iaccarino, a PHS physician.

Id. at 2-4. Iaccarino referred plaintiff to a neurology consultation with an outside physician and ordered CT scans of plaintiff's head and lumbosacral spine. See id. The three orders were sent to Ralph Smith, PHS's medical director at Graterford, for approval. See id. Smith disapproved the neurological referral, questioning whether "[a]ny diagnostic studies (x-rays, CT scan, EMG) [were] performed prior to neurology intervention?" and whether "he [had] been worked up in past for this disorder?" See id. at 2. Smith likewise disapproved Iaccarino's request for a CT of plaintiff's head, requesting that Iaccarino "[p]lease indicate whether there is cervical symptomatology (is right-sided weakness, involvement of the upper right extremity). If so, has cervical film been reviewed?" See id. at 3. Smith also disapproved Iaccarino's request for a CT of plaintiff's lumbosacral spine. Id. at 4. In explaining this decision, he wrote "[h]as plaintiff been treated aggressively for chronic lumbosacral strain in the past? Any response to muscle relaxants, physical therapy, short-term lumbosacral supportive device? Any findings consistent with lumbosacral radiculopathy?" Id.

Smith testified that he disapproved the order because he knew that the neurologist would want to see such "baseline studies" before proceeding with the CT scan. See Smith Dep. 58:19-24 (Apr. 29, 2010) (Def.'s Ex. T). Additionally, Smith thought that the basic tests might reveal the cause of plaintiff's symptoms without having to refer plaintiff to an outside physician for the neurological tests. Id. at 59:13-20. Handling the diagnosis in this manner was "good medical practice" according to Smith, see id. at 60:6-10, and eliminated the security risks associated with transporting prisoners outside the prison. Id. at 61:2-17. With respect to the CT scans that Iaccarino had ordered, Smith concluded that Iaccarino was "[proceeding] out of order." Id. at 73:6-7. Iaccarino should have attempted to diagnose the cause of plaintiff's symptoms by undertaking an x-ray and an "adequate physical examination" before seeking outside consultation. Id. at 71:3-11, 73:8. Smith also believed that by pursuing such in-house diagnostic techniques first Stan Stannish, PHS's regional medical director, would be more likely to approve outside tests if they proved to be necessary. Id. at 74:9-12. Smith denied that he disapproved the CT tests for economic reasons. Id. at 74:13-75:1.

On December 5, 2001, J.C. Korszniak, a physician's assistant employed by PHS, examined plaintiff and ordered an MRI of his brain. See Def.'s Ex. V at 10 (Consultation Record). Smith disapproved the order the next day on the grounds that he did not have the physician's report from plaintiff's recent visit to the hospital for a "stroke work-up." See Smith Dep. 79:1-10. He thought that plaintiff may have undergone an MRI as part of the stroke work-up and, if so, did not want to order duplicative tests. See id. at 79:7-9. Smith again testified that he did not disapprove Korszniak's order for economic reasons. See id. at 80:4-6. In fact, he stated categorically that "[he] wouldn't base [his] decision [to disapprove a test] on economics." Id. at 80:22-24.

A. Plaintiff's June 2002 Request to Staff Member

In response to Smith's disapproval of these four referrals, plaintiff filed a form entitled "inmate's request to staff member." See Inmate's Request to Staff Member from plaintiff to DiGuglielmo (June 26, 2002) (Def.'s Ex. C). In the request form, plaintiff stated that prison doctors had referred him for "cat scans" and an MRI. He sought clarification as to why the tests had not yet been scheduled. Id. Julie Knauer, a correctional health care administrator and medical grievance officer employed by PHS, responded several weeks later that "[plaintiff's] CT consults written on 9/18/01 for CT of head and CT of spine were disapproved by Dr. Smith on 9/19/01. [Plaintiff's] MRI consult written on 12/5/01 was disapproved by Dr. Smith on 12/6/01." Id.

B. Grievance Number 29209 - Plaintiff's August 2002 Effort to Obtain CT Scans of his Back

Unsatisfied with Knauer's response, plaintiff filed grievance number 29209 on August 27, 2002, complaining that the disapproval of the referral orders constituted a denial of medical treatment. See Grievance No. 29209 from plaintiff to L. Hatcher (Aug. 27, 2002) (Def.'s Ex. C). Knauer responded to grievance number 29209 on September 12, 2002. See Official Inmate Grievance Initial Review Response from Knauer to Plaintiff (Sep. 12, 2002) (Def.'s Ex. C). She stated that plaintiff had received an ultrasound on January 15, 2002, the results of which were normal. Id. She also stated, without explanation, that the referrals for the CT scans and MRI were disapproved by Smith. Id. She indicated, however, that Smith had scheduled plaintiff for a consultation with a neurologist in September 2002 and promised that Smith would carefully review the neurologist's recommendation. Id. Knauer testified at her deposition that she did not have the authority to uphold plaintiff's grievance and order the medical department to conduct the tests that had been ordered. Knauer Dep. 94:15-24 (Apr. 9, 2010) (Def.'s Ex. D).

On September 30, 2002, plaintiff visited Dr. Ayeesha Kamal, a neurologist at Temple University. She diagnosed plaintiff as either having suffered a stroke or having a lesion on his central nervous system. She ordered an MRI of plaintiff's head and spine to obtain additional information. She requested that plaintiff return within two weeks of the completion of the MRI for further treatment.

In a response to Knauer's denial of his grievance, plaintiff suggested that Knauer's reference to plaintiff's ultrasound was her attempt to "evad[e] the real issue." See Answer of Grievance No. 29209 (Oct. 7, 2002) (Def.'s Ex. C.). Anticipating that Kamal would be prevented by prison administrators from reordering an MRI and/or a CT scan, he argued that such prevention would constitute cruel and unusual punishment. Id.

On October 7, 2002, Vaughn, the Superintendent of Graterford, sent a memorandum to plaintiff indicating that he would "uphold the Grievance Officer's action in this case. The Medical Department is in the best position to address your concerns and take the appropriate action." See Memo. from Vaughn to plaintiff (Def.'s Ex. C). Despite his dissatisfaction with Vaughn's decision, plaintiff did not file an appeal because "[he] was told that the medical department [would] address [his] concerns." See Pl.'s Dep. 103:13-15.

On November 4, 2002, plaintiff underwent the MRI ordered by Kamal, which revealed an "intermedullary cord lesion" extending from the C3 region of his cervical spine to the C6 region.

II. Grievance Number 45405 - Plaintiff's February 2003 Efforts to Schedule a Follow-up Visit with a Temple University Hospital Neurologist Plaintiff filed grievance number 45405 on February 28, 2003. See Grievance No. 45405 from plaintiff to L. Hatcher (Feb. 28, 2003) (Def.'s Ex. C). In that grievance, he asserted that the November 4, 2002 MRI revealed that his "medical condition had worsened and a knot had appeared on [his] spinal column." Id. As a result of his condition, plaintiff alleged that on November "12-14" he was approved "to revisit the neurologist [Kamal] at Temple Hospital for treatment." Id. Plaintiff believed that his visit to Kamal would occur within "30-60 days after approval." Id. He followed up on December 10, 2002 with his unit manager "Mr. Kovalchik" who "got in touch with J. Knauer and was told [plaintiff] was approved to go to Temple for treatment." Id. On January 28, 2003, however, Iaccarino notified plaintiff that no order had been issued for plaintiff to revisit the neurologist. Id. Via the February 28, 2003 grievance, plaintiff again requested that he be permitted to visit the neurologist. Id.

Knauer responded to grievance number 45405 on March 17, 2003. See Official Inmate Grievance Initial Review Response from Knauer to Plaintiff (Mar. 17, 2003) (Def.'s Ex. C). She noted that plaintiff returned to Temple on March 3, 2003. Id. The neurologist, however, requested the "actual MRI films," which apparently were unavailable at the time of plaintiff's visit. Id. Knauer informed plaintiff that "the clinic coordinator received the MRI films today [March 17, 2003] and will call to set up your return visit to Temple." Id. Plaintiff testified at his deposition that he ultimately did return to Temple on March 19, 2003. Pl.'s Dep. 105:8-10. Nevertheless, plaintiff believes that he appealed Knauer's decision to the Superintendent. Id. at 105:11-16. No documentation of such an appeal appears in the record.

While plaintiff was at Temple he received, pursuant to Kamal's instructions, intravenous steroids, a spinal tap and a lumber puncture. Kamal examined plaintiff again on April 28, 2003 to determine whether the March 19, 2003 treatment had had any effect on plaintiff's condition. She determined that the steroid treatment had not been effective but that the lesion was stable. She recommended a repeat MRI within three to four months.

On July 28, 2003, plaintiff underwent an MRI which indicated that the mass was stable. On October 21, 2003, plaintiff visited with Dr. Allen Weber, a neurologist, who noted that plaintiff's lesion was stable. He recommended that plaintiff schedule a follow-up visit in three months.

III. Grievance Number 75662 - Plaintiff's February 2004 Efforts to Visit Internal Medicine Personnel and a Neurologist On February 10, 2004, Carter filed grievance number 75662 wherein he complained that

his scheduled visits with "internal medicine personnel" and with Dr. Weber had both been cancelled. See Grievance No. 75662 from plaintiff to L. Hatcher (Feb. 10, 2004) (Def.'s Ex. C). Knauer responded on March 3, 2004. See Official Inmate Grievance Initial Review Response from Knauer to Plaintiff (Mar. 3, 2004) (Def.'s Ex. C). She noted that plaintiff had been "seen in chronic clinic on February 25, 2004." Id. She conceded that the neurologist had requested a follow up visit in approximately three months but informed plaintiff that before scheduling the visit PHS would first determine whether such a consultation was "medically indicated." Id. At her deposition, Knauer explained that whenever an outside physician recommended a certain course of treatment the prison medical director or one of PHS's physicians would review the recommendation. Knauer Dep. 117:8-20. If the reviewing physician agreed with the outside physician's recommendation he or she would write a consult, allowing the prisoner to receive the recommended treatment. Id.

Plaintiff appealed Knauer's decision to DiGuglielmo who was, by then, serving as Superintendent of Graterford. See Appeal of Grievance from plaintiff to DiGuglielmo (Def.'s Ex C). He argued first that Knauer's assertion that plaintiff was examined on February 25, 2004 by medical staff in the chronic clinic was false. Id. According to plaintiff, he had been examined by a licensed practical nurse in the cholesterol clinic, not by an internal medicine physician in the chronic clinic. Id. He also noted that in October of 2003 the neurologist had recommended that plaintiff return within three months for further treatment. Id. Plaintiff asserted that the neurologist intended to begin treatment of plaintiff's spinal problem during the follow up visit. Id. He also noted that this was not the first time that a neurologist had indicated that plaintiff needed treatment for the lesion on his spine. Id.

On March 25, 2004, in response to plaintiff's appeal of Knauer's decision, DiGuglielmo modified Knauer's decision. See Memorandum from DiGuglielmo to plaintiff (Mar. 25, 2004) (Def.'s Ex. C). He stated "you have a lengthy history of problems with your back. A consult was written. Dr. Arias will see you on 3/28/04 and I am hopeful that he will address your concerns." Id.

When asked at his deposition whether he was satisfied with DiGuglielmo's decision, plaintiff answered

I had to be. I had to wait and see what they [were] going to do. The response says he's modifying the decision, that I would be seen by the doctor to address my concerns. I had to wait to see when they were going to schedule me to see the doctor and see what they were going to do. Once they did not do it, then I had to file a grievance again.

Pl.'s Dep. 109:5-12.

Despite the fact that DiGuglielmo indicated to plaintiff that he would be seen by Dr. Arias, it appears that plaintiff was instead examined by Dr. Weber as part of a "follow-up neurological consultation for chronic right hemiparesis and sensory disturbances." See Letter from Allan Weber, M.D. to Felipe A. Arias, M.D. (July 21, 2004) (Def.'s Ex. C); Pl.'s Dep. 109:13-17. Plaintiff underwent an MRI during the examination. After the examination, Weber sent a letter to Arias detailing his findings and recommendation. See Letter from Weber to Arias. Weber noted that the lesion remained stable but recommended that plaintiff receive Zanaflex for "paralumbar muscular tension" and a "physical therapy evaluation" involving stretching exercises and a strengthening program. Id. Finally, Weber recommended that plaintiff undergo a "repeat MRI of just the cervical spine in approximately one year to ensure stability of [the] lesion." Id. Plaintiff testified that prison officials did not give him Zanaflex but instead prescribed "some substitute [medication]." Pl.'s Dep. 111:6-11.

IV. Grievance Number 93634 - Plaintiff's August 2004 Efforts to Obtain a Renewal of his Prescriptions and an Appointment with an Internist On August 23, 2004, plaintiff filed grievance number 93634, complaining that he had been "overlooked" for an internal medicine appointment to renew his prescriptions.

See Grievance No. 93634 from plaintiff to Wendy Moyer (Aug. 23, 2004) (Def.'s Ex. C). According to the grievance, plaintiff also wished to visit the internist "to speak with him about [plaintiff's] medical condition." Id. Plaintiff had written to Knauer on August 8, 2004 in an attempt to have his appointment scheduled. Id. He asserted that he had not received a response from Knauer and that as of the date of his grievance, his prescriptions had run out and his condition had deteriorated. Id.

Plaintiff's grievance was reviewed by defendant Myron Stanishefski, the correctional health care administrator. See Official Inmate Grievance Initial Review Response from Stanishefski to Plaintiff (Aug. 26, 2004) (Def.'s Ex. C). Stanishefski wrote:

Dear Mr. Carter:

You are correct. You should have been seen in July for chronic clinic. You were seen on August 24, 2004. We will ensure that this does not occur again in the future.

Id. Plaintiff testified that he was only partly satisfied with this response because although Stanishefski asserted that this problem would not occur again according to plaintiff it happened "over and over and over and over." Pl.'s Dep. 112:21 - 113:2. Plaintiff does not remember if he appealed to DiGuglielmo on this basis, see Pl.'s Dep. 113:6-8, but no evidence of such an appeal appears in the record.

A. Plaintiff's March 2005 Letter to Stanishefski Seeking a Consultation with an Internist

On March 22, 2005, plaintiff wrote to Stanishefski to raise his concern that he had not yet seen an internist. See Inmate's Request to Staff Member from plaintiff to Stanishefski (Mar. 22, 2005) (Def.'s Ex. C). Plaintiff asserted in that letter that he had been seen by a physician about his cholesterol but that he had not been permitted to consult with an internist regarding the lesion on his spine. Id. Jean Wooster, a registered nurse employed by PHS, responded that plaintiff had been seen in the chronic care clinic on February 8, 2005. Id. Plaintiff could not remember whether he had been seen in the chronic care clinic as Wooster asserted. Pl.'s Dep. 114:8-10. In any event, he testified that he was not satisfied with Wooster's response but did not offer any particular reasons for his dissatisfaction. Id.

V. Grievance Number 146347 - Plaintiff's March 2006 Assertion that he Had Been Receiving Inadequate Medical Treatment Plaintiff filed grievance number 146347 on March 9, 2006 asserting several inadequacies with the medical treatment that he had been receiving. See Grievance No. 146347 from plaintiff to Wendy Moyer (Mar. 9, 2006) (Def.'s Ex. C). He asserted that he filed the grievance because he was "in severe pain and nothing [was] being done about it, despite [having brought it] to the attention of the medical department." Id. He stated that Dr. Standish*fn2 had suggested that plaintiff visit an internist in February 2006 but that "the [suggested] appointment never took place . . . ." Id. He also noted that "in the interim the medication [he] was taking ran out and was never renewed" and that the "the groin and hip brace that was prescribed for [him] by the internal medicine doctor and others was never given to [him]." Id. According to plaintiff, the hip and groin braces had been prescribed more than three years prior to the date of the grievance. Id. Plaintiff also complained that he had been scheduled for an appointment in June 2005 to consult with a neurologist*fn3 but that appointment had not occurred. Id. When plaintiff raised these concerns with "Major Feild"*fn4 he received only an appointment with the cholesterol clinic. Id.

Stanishefski upheld grievance number 146347 on March 24, 2006. See Official Inmate Grievance Initial Review Response from Stanishefski to Plaintiff (Mar. 24, 2006) (Def.'s Ex. C). Stanishefski stated that plaintiff had been seen in the chronic clinic on January 9, 2006 and had a follow-up visit scheduled for April 3, 2006 during which his asthma and cholesterol would be treated. Id. The response also noted that plaintiff had been seen by a prosthetics company on January 25, 2006 and that he should have received the requested braces by the time the grievance was filed. Id. It appeared that the prosthetics company had been delayed because they were "waiting on a quote"--presumably for the manufacturing of the braces. Id. Stanishefski promised that plaintiff would have an MRI scheduled to determine the state of the lesion on his spine. Id.

Plaintiff appealed to DiGuglielmo because he believed that the concerns he expressed in grievance number 146347 had not been addressed in Stanishefski's response. See Appeal of Grievance No. 146347 from plaintiff to DiGuglielmo (undated) (Def.'s Ex. C). He noted that he had not received the consultations with a neurologist or with an internist that had been recommended. Id. He asserted that instead of sending him to the appropriate physicians "the medical department sent [him] to a cholesterol clinic just to say that [he had] seen a doctor." Id. He also complained again that more than three years after he had been prescribed hip and groin braces he still had not received the braces. Id. He reminded DiGuglielmo that DiGuglielmo himself had checked on the status of the braces more than two years prior to the date of the appeal. Id. Plaintiff also took issue with Stanishefski's assertion that the prosthetics company was delayed because it was waiting on a quote. According to plaintiff, the brace that had been delayed because of an issue with the quote was a foot brace. Id. Finally, plaintiff asserted that he was supposed to have been seen on April 3, 2006 by the chronic clinic for his asthma and cholesterol but that visit had not yet been scheduled. Id.

On April 18, 2006, in response to plaintiff's appeal DiGuglielmo modified Stanishefski's decision. See Memorandum from DiGuglielmo to plaintiff (Apr. 18, 2006) (Def.'s Ex. C). DiGugliemo stated that plaintiff had received an MRI on April 17, 2006. Id. He also promised to "follow up with PHS staff to see where [the] consult for the brace is." Id. He acknowledged, however, that "[f]rom [his] ...


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