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Damien Henry v. Todd Buskirk

September 26, 2011

DAMIEN HENRY,
PLAINTIFF
v.
TODD BUSKIRK, ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Damian Henry filed this prisoner civil rights action against prison officials at Northampton County Prison ("NCP") alleging (1) an Eighth Amendment claim for civil rights violations under 42 U.S.C. § 1983, (2) violations of the Americans with Disabilities Act, (3) violations of his right to equal protection under the laws, (4) violations of the Rehabilitation Act, and (5) retaliation by defendants in violation of his First and Fourteenth Amendment rights. The three remaining defendants -- Todd Buskirk, Bill Sweeney, and Mike Bateman ("Defendants") -- filed a motion for summary judgment. Mr. Buskirk is the Warden, Mr. Sweeney is the Deputy Warden, and Mike Bateman is the Head of the Classification Department at NCP. Mr. Henry has failed to come forward with evidence showing a dispute of material fact for any of his claims. For the reasons set forth below, I will grant the defendants‟ motion.

I. BACKGROUND*fn1

Prior to his incarceration at Northampton County Prison ("NCP"), Mr. Henry was shot seven times in the lower extremities of his body, sustaining injuries to his lower back, right leg and ankle. (Doc. No. 46*fn2 attach. 1*fn3 at ¶ 1, Henry Dep. at 14-15). Mr. Henry underwent two separate surgeries in March 2007 and June 2007 to repair his broken right leg. (Henry Dep. at 14-15). Mr. Henry was committed to NCP on September 17, 2007. (Doc. No. 46, attach. 1 at ¶ 1). Upon his entry to NCP, Mr. Henry was on crutches and placed in the Medical Housing Unit. (Id. at ¶ 2-3). On September 27, 2007, Mr. Henry was medically released to the general population. (Id. at ¶ 5). Mr. Henry alleges that Dr. Victoria Gessner, of PrimeCare Medical, Inc., cleared Mr. Henry to be housed in the general prison population, "exposing him to unsafe and dangerous conditions within the prison, having to navigate with crutches two tier levels up two flights of stairs." (Compl. at ¶ 16).

On September 27, 2007, Mr. Henry was walking down a set of stairs on the unit with crutches to take a shower and fell, landing on his right leg and side. (Doc. No. 46, attach. 1 at ¶ 6). Mr. Henry was transported to St. Luke‟s Hospital and returned with instructions to remain in medical housing for three days or until evaluated by a physician. (Id. at ¶ 7). Mr. Henry was returned to the Medical Unit at NCP and was seen by Dr. Gessner on September 28, 2007. (Id. at ¶ 8). Mr. Henry was discharged from medical housing and returned to H-tier in a wheel chair with instructions to shower on H-tier. (Doc. No. 46 at Exh. 5). Mr. Henry alleges that Dr. Gessner met with Mr. Henry and "overruled" a St. Luke‟s physician‟s recommendation that he remain in the Medical Housing Unit, sending him back to the general population. (Compl. at ¶ 25).

On October 4, 2007, an NCP correctional officer approached medical to obtain crutches to assist Mr. Henry to move to and from the shower on his unit. (Doc. No. 46, attach. 1 at ¶ 10). On November 23, 2007, Mr. Henry slipped in the shower. (Id.) NCP officials notified medical officials and medical personnel arrived to examine Mr. Henry. (Id. at Exh. 8). On November 30, 2007, Mr. Henry tripped on the stairs because he was carrying soap and a towel in his left hand. (Id. at ¶ 10, 12). He was immediately seen by a nurse and seen by medical personnel every day or every other day for follow up medical care after the fall. (Id. at ¶ 11).

There is a grievance procedure permitting inmates to file grievances and raise complaints or concerns with NCP administration. (Id. at ¶ 20). NCP issues an Inmate Handbook to all inmates at NCP and the Handbook directs inmates who need medical assistance to file a medical grievance with PrimeCare. (Id at ¶ 23). On January 18, 2008, Mr. Henry wrote a letter to Warden Buskirk advising him of his concerns with his medical condition. (Id. at ¶ 21). Warden Buskirk responded to Mr. Henry‟s complaint and advised him to follow the proper procedures for filing a grievance. (Id. at ¶ 22). On or about March 5, 2008, Mr. Henry again wrote Warden Buskirk‟s office. (Id. at ¶ 24). Warden Buskirk responded to Mr. Henry‟s complaint on March 24, 2008 and again directed him to follow the established policy and protocol regarding a medical grievance at NCP. (Id. at ¶ 25). Mr. Henry acknowledges that Warden Buskirk responded to his complaints and directed him to the medical department. (Id. at ¶ 26).

II. STANDARD OF REVIEW

Summary judgment is appropriate when "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). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

A party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing relevant portions of the record, including depositions, documents, affidavits, or declarations, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or showing that an adverse party cannot produce admissible evidence to support the fact. FED. R. CIV. P. 56(c). Summary judgment is therefore appropriate when the non-moving party fails to rebut the moving party=s argument that there is no genuine issue of fact by pointing to evidence that is Asufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.@ Celotex Corp., 477 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992).

Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255. There must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Id. at 248. A party asserting that a fact is genuinely disputed must support the assertion by citing to depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials. FED. R. CIV. P. 56(c)(1).

III. DISCUSSION

A.Eighth and Fourteenth Amendment Deliberate Indifference Claims ...


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