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Richard Mosley v. Superintendent Brian Coleman

December 30, 2011

RICHARD MOSLEY, PLAINTIFF,
v.
SUPERINTENDENT BRIAN COLEMAN, DR. HERBIK, HEAD MEDICAL DOCTOR, DIRECTOR RICHARD S. ELLERS, ERIC ARMEL, DEPUTY SUPERINTENDENT, SUE BERRIER, R.N. (ACTING) HEALTH CARE ADMINISTRATOR, ROBERT TRETINIK, R.N. ) (FORMER) HEALTH CARE ADMINISTRATOR CO, CHRIS MYERS, PHYSICIAN'S ASSISTANT, DARLA KAY COWDEN, PHYSICIAN'S ASSISTANT, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

OPINION KELLY, Magistrate Judge

Plaintiff, Richard Mosley ("Mosley"), is a prisoner currently in the custody of the Pennsylvania Department of Corrections ("DOC"), at the State Correctional Institution at Fayette ("SCI-Fayette"). He has brought this action against Defendants pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging that Defendants have demonstrated deliberate indifference to his medical needs in violation of his rights under the Eighth Amendment to the Constitution.

Presently before the Court is a Motion to Dismiss Plaintiff's Complaint submitted by Defendants Dr. Herbik ("Herbik"), Chris Myers ("Myers") and Darla Kay Cowden ("Cowden") (collectively, "the Medical Defendants"), and a Motion to Dismiss Complaint submitted by Defendants Superintendent Brian Coleman ("Coleman"), Director Richard S. Ellers ("Ellers"), Deputy Superintendent Eric Armel ("Armel"), R.N. Sue Berrier ("Berrier"), and R.N. Robert Tretinik ("Tretinik") (collectively, "the DOC Defendants"). For the reasons that follow, both motions will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

In his Complaint, Mosley alleges that after experiencing "breathing difficulties" late in 2008, he submitted a sick call request and was evaluated by Defendant Cowden. ECF No. 1, § IV.C. ¶¶ 1, 2. Cowden allegedly diagnosed Mosley as having allergies and prescribed medication. Id. at ¶¶ 2, 3. Mosley nevertheless contends that his symptoms got worse and on December 16, 2008, he submitted another sick call request. Id. at ¶ 4. Mosley was then evaluated by Defendant Myers who apparently agreed with Cowden's diagnosis and continued Mosley on the previously prescribed medication. Id. at ¶ 5. On January 6, 2009, Mosley was again evaluated after submitting another sick call request; he was diagnosed with Rhinitis and prescribed Ipratropiom Bromide. Id. at ¶ 6.

Mosley, however, apparently continued to experience nasal discharge and difficulty breathing and was seen by the medical staff at SCI-Fayette a number of times over the ensuing months, which included being evaluated by Defendants Herbik and Tretnik on August 20, 2009. Plaintiff alleges that Herbik and Tretinik told him at the time that he couldn't breathe because he is a heavy smoker. Mosley also submitted a number of grievances and Inmate Requests to Staff throughout the year complaining about his situation and the treatment he was receiving. Id. at ¶¶ 7-21.

On January 28, 2010, Mosley again submitted a sick call request and was examined by a doctor who allegedly told him that he had been misdiagnosed as having allergies and that he actually had an upper respiratory infection; the doctor prescribed Robitussin PM. Id. at ¶¶ 22-23. Mosley alleges that he nevertheless continued to experience breathing problems as well as severe chest pains and requested to be transferred to a prison where he could receive proper treatment.

According to Mosley, those requests were denied notwithstanding the fact that Myers and Cowden continued to refuse to provide him with treatment. Id. at ¶¶ 24-28.

On July 8, 2010, Mosley met with Dr. Phillip Balk and Defendants Herbik, Armel and Berrier, at which time Defendants allegedly refused to discuss Mosley's medical care. Id. at ¶ 29. Mosley, however, was subsequently seen by Dr. Murray Sachs who diagnosed him with a bronchial condition and prescribed allergy medication. Id. at ¶¶ 30-31. Mosley was also seen by Herbik again around the same time. According to Mosley, he asked Herbik for a CT scan or to be seen by a specialist at an outside hospital. Both requests were denied. Id. at ¶¶ 32-35.

On July 23, 2010, Mosley asked to discontinue his prescription for Benadryl, believing that it may have been the cause of some of his symptoms. Mosley was told he would nevertheless be given a replacement medication because he had a throat infection. Id. at ¶¶ 38-39.

On October 13, 2010, Mosley was seen again by Cowden after complaining of severe chest pains and was sent for an x-ray. Id. at ¶ 40. On October 21, 2010, Mosley again went to sick call complaining of chest pains and was evaluated by Dr. Balk. Dr. Balk allegedly confirmed that he had bronchial fluid and told Mosley that the illness was not curable. Id. at ¶ 41. Mosley alleges that another physician subsequently ordered new medication for him and indicated that there was no need for outside care. Id. at ¶ 44.

Thereafter, Mosley claims that he filed a complaint against Herbik with the Bureau of Investigations and was informed by Jim Thornhill on October 27, 2010, that his claims were found to be credible. Id. at ¶ 45.

After experiencing severe chest pains and shortness of breath again on December 9, 2010, Mosley went to sick call where he was evaluated by Dr. Dascani. At that time, Dr. Dascani diagnosed Mosley with Chronic Obstructive Pulmonary Disease. Id. at ¶ 46.

Plaintiff filed the instant Complaint on January 26, 2011, alleging that Defendants were deliberately indifferent to serious medical needs in violation of his rights under the Eighth Amendment. ECF No. 1. The Medical Defendants filed a Motion to Dismiss Plaintiff's Complaint on March 24, 2011, and the DOC Defendants filed a Motion to Dismiss on April 4, 2011. ECF Nos. 16, 27. Plaintiff responded to the motions on April ...


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