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Jeronimo Rosado. Jr v. Robert Virgil

September 28, 2011


The opinion of the court was delivered by: Magistrate Judge Baxter


United States Magistrate Judge Susan Paradise Baxter.


A. Relevant Procedural History

On June 29, 2009, Plaintiff Jeronimo Rosado, Jr., a prisoner formerly incarcerated*fn2 at the State Correctional Institution at Forest in Marienville, Pennsylvania (ASCI-Forest@), filed this civil rights action pursuant to 42 U.S.C. ' 1983 against Roger S. Virgil, M.D. (AVirgil@), and Doctor Pierson (APierson@), ophthalmologists under contract to perform medical services for inmates at SCI-Forest; Dr. Robert Maxa (AMaxa@), identified as director of the medical department at SCI-Forest; Rhonda Sherbine (Sherbine@) and Nicole Brown (ABrown@), physician assistants at SCI-Forest; James Wesberger (AWesberger@), identified as the AHIV/AIDS Specialist@ for SCI-Forest; and the following employees of the Pennsylvania Department of Corrections (collectively referred to herein as ADOC Defendants@): Donald Skunda (ASkunda@); Brenda Hale (AHale@); T.L. Grahm (AGrahm@); Edward Whitman (AWhitman@); Paul A. Ennis (AEnnis@); Kurt Granlund (AGranlund@); Eric D. Ray (ARay@); Stephanie Whitmyre (AWhitmyre@); Daniel G. Lee (ALee@); Deborah Lipchey (ALipchey@); Paul Zofcin (AZofcin@); Michael C. Barone (ABarone@); Rachel Springer (ASpringer@); Judith B. Selvey (ASelvey@); Catherine McVey (AMcVey@); C/O/ Thompson (AThompson@); K.P. Reisinger (AReisinger@); Jeffrey A. Beard (ABeard@); Amie Powers (APowers@); Sharon M. Dombrowski (ADombrowski@); Christina Kennedy (AKennedy@); James E. Horne (AHorne@); John Sawtelle (ASawtelle@); Edward Wojock (AWojock@); Timothy L. Mark (AMark@); David S. Novitsky (ANovitsky@); Ms. Lutz (ALutz@); Lisa Headinger (AHeadinger@); Mr. Houghes (AHoughes@); and DA Woodard (AWoodard@).

By Opinion and Order dated September 27, 2010, this Court dismissed all claims against Defendants Pierson, Maxa, Sherbine, and Brown, and said Defendants were terminated from this case. Defendants Virgil, Wesberger and the DOC Defendants remain.

In his pro se Complaint, Plaintiff claims that Defendants Virgil and Wesberger were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment and Fourteenth Amendment due process rights. In addition, Plaintiff makes several claims against various DOC Defendants, including: (i) Eighth Amendment deliberate indifference to serious medical needs claims against Defendants Skunda, Headinger, and Hale; (ii) a retaliation claim arising from a misconduct Plaintiff received from Defendant Thompson; (iii) a due process claim regarding institutional programming; (iv) a due process claim regarding the denial of parole; (v) a due process claim arising from his placement on grievance restriction; (vi) a due process claim that he was denied witnesses at a misconduct hearing; (vii) an access to courts claim alleging that SCI-Forest=s therapeutic community policy was not kept in the library; and (viii) an access to courts claim alleging that a package he mailed to the Parole Board was intercepted.

Defendants Wesberger, the DOC Defendants, and Virgil each filed an Answer to Plaintiff=s Complaint. (ECF Nos. 90, 103, and 115, respectively). Defendant Wesberger also filed a cross-claim against all Defendants seeking indemnification in the event he is found liable for Plaintiff=s claims against him. [ECF No. 90]. This cross-claim was answered by Defendant Virgil [ECF No. 94] and the DOC Defendants [ECF Nos. 108, 137]. The parties have since completed discovery.

All Defendants have now filed motions for summary judgment [ECF Nos. 164 (Wesberger), 173 (DOC Defendants), and 177 (Virgil)], arguing that Plaintiff=s claims fail as a matter of law. Plaintiff has filed his own motion for summary judgment [ECF No. 182], as well as a response in opposition to the Defendants= motions for summary judgment. [ECF No. 183]. This matter is now ripe for consideration.

B. Relevant Factual History

On December 12, 2006, Plaintiff received a corneal transplant in his right eye, which was performed by Defendant Virgil Ainside basement of an unknown hospital.@ (ECF No. 6, Complaint, at & 38). Plaintiff alleges that after surgery the stitches were left in his eye too long, which allegedly caused an infection. (Id.).

Plaintiff alleges that on October 2, 2008, fluorescent eye drops were placed in his right eye, which revealed an ulceration inside the cornea due to a herpes simplex infection. (Id. at & 39). He alleges that the infection spread from his right cornea to his left eye=s upper eyelid and into his mouth. (Id. at & 40). He was prescribed Ablue oblong pills@ that he took five times daily for a period of five days, which made the infection go away in his eyes and face; however, he alleges that he continues to have an ulceration inside his mouth Athe size of a cigarette butt,@ for which he claims Defendant Skunda has denied proper treatment. (Id.). In addition, Plaintiff alleges that the herpes Aulceration@ occasionally recurs inside both eyes, causing watering, blurry vision, sensitivity to light, and sharp pain. (Id. at & 41). Plaintiff alleges further that complications from the right eye surgery performed by Defendant Virgil has severely impaired the vision in his left eye. (Id. at & 42).

On August 22, 2008, Plaintiff filed a grievance against Defendant Skunda, among others, Afor minimizing the rash around [his] eyes/face@ and for failing to check the back of his right eye. (Id. at & 43). Defendant Skunda responded to Plaintiff=s grievance by informing Plaintiff that the rash was eczema and was unrelated to the health of his eyes. (Id. at & 45).

Plaintiff believes that the herpes infection Amay have been triggered by the chemicals found in eye drops or by the infected corneal transplant....@ (Id. at & 52). He further opines that the swelling in his right upper eyelid may be a AChalazion Disorder caused by the infected corneal transplant that triggered a blockage of an oil secreting gland,@ which he believes then caused cataracts in his right eye and AMyasthenia Gravis, an Autoimmune Disorder ... causing the left and right upper eye lid to droop down and curl....@ (Id. at & 53). Alternatively, Plaintiff opines that the cataracts in his right eye Amay have been caused by long term treatment with Corrico Steroid drugs,@ for which he claims Defendants Virgil and Skunda, among others, are responsible because they should have prescribed the Aright eye drops@ and taken him off the ACorrico Steroid drugs on time.@ (Id. at & 56).

Plaintiff states that he continues to experience vision problems associated with his corneal transplant, for which Defendant Virgil issued him gas permeable contact lenses. (Id. at & 70). Plaintiff claims that Defendants Virgil and Skunda, among others, led him to believe that the stitches in his eye were permanent, but he alleges that they should have been removed one year after his surgery. (Id. at && 73-79). The stitches were ultimately removed on January 9, 2009, a little more than two years after the surgery. (Id. at & 80).

Plaintiff claims that Defendants Hale, Virgil, and Skunda, among others, should have tested him for HIV/AIDS before his corneal transplant surgery. (Id. at & 84). Instead, Plaintiff underwent a blood test on or about November 5, 2008, and on November 11, 2008, Defendant Hale informed him that the test results came back negative for HIV/AIDS. (Id. at & 86).

Nonetheless, on November 25, 2008, while reviewing his medical records, Plaintiff noticed that his HIV/AIDS test results were sent to Defendant Wesberger, and that his medical file was marked with a red tag, which he believes indicated that he was HIV/AIDS positive. As a result, Plaintiff became stressed and began questioning the veracity of Defendants Hale, Skunda and Virgil, among others. (Id. at & 88-89). Accordingly, a re-test was done on March 16, 2009, and came back Anon-active.@ Nonetheless, Plaintiff claims the result was fabricated. (Id. at & 91). Instead, Plaintiff believes that HIV/AIDS caused the complications that allegedly resulted from his corneal transplant, including the Chalazion Disorder and Myasthenia Gravis he claims to have contracted. (Id. at && 91-92).

Aside from his medical complaints, Plaintiff alleges, inter alia, that all Defendants worked together to keep him from participating in the Therapeutic Community Program that would make him Aeligible for possible parole release.@ (Id. at & 111).

C. Standard of Review

1. Summary Judgment

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted if the Apleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.@ Rule 56(e)(2) further provides that when a motion for summary judgment is made and supported, Aan opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must B by affidavits or as otherwise provided in this rule B set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.@

A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. Fed.R.Civ.P. 568. The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party=s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004).

The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party Amust present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue.@ Garcia v. Kimmell, 2010 WL 2089639, at * 1 (3d Cir. 2010) quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).

When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita ...

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