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Philip Carpenter v. Superintendent Kloptoski

March 22, 2012

PHILIP CARPENTER,
PLAINTIFF
v.
SUPERINTENDENT KLOPTOSKI, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Plaintiff Philip Carpenter ("Carpenter"), a state inmate incarcerated at the State Correctional Institution at Dallas, Pennsylvania ("SCI-Dallas"), commenced this civil action on December 15, 2008. The matter is presently proceeding via an amended complaint filed on July 22, 2009. (Doc. 39.) Ripe for disposition is the motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, filed on behalf defendants Donald O'Brien, Physician's Assistant ("PA O'Brien" or "O'Brien"), Stanley Bohinski, Doctor of Osteopathic Medicine. ("D.O. Bohinski or "Bohinski"), and Cheryl Wisniewski Bunk, Physician's Assistant ("PA Wisniewski" or "Wisniewski"). (Doc. 166.) For the reasons set forth below, the motion will be granted.

I. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

The pertinent portions of the Middle District of Pennsylvania Local Rules of Court, which are set forth in the Standing Practice Order served upon plaintiff on December 15, 2008 (Doc. 7), provide that, in addition to filing a brief in response to the moving party's brief in support, "[t]he papers opposing a motion for summary judgment shall include a separate, short and concise statement of material facts responding to the numbered paragraphs set forth in the statement [of material facts filed by the moving party] . . . , as to which it is contended that there exists a genuine issue to be tried." See M.D. Pa. LR 56. 1. The rule further states that the statement of material facts required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party. See id. Although Carpenter submitted a statement of facts (Doc. 178), the statement is not in compliance with the Local Rules of Court. Specifically, he failed to include a separate, short and concise statement of material facts responding to the numbered paragraphs set forth in the statement of material facts filed by defendant. Carpenter filed a nine-page statement of facts containing thirty-five paragraphs which, beyond the procedural history set forth at the beginning of the statement, does not correspond in any manner with the 124 paragraphs of facts set forth in defendant's statement and are, in part, irrelevant to the claims against defendants. (Docs. 173, 178.) Therefore, to the extent that plaintiff has failed to controvert material facts contained in defendants' statement (Doc. 173), they will be deemed admitted.

II. Statement of Material Facts

Carpenter has been incarcerated at SCI-Dallas, and housed on F-Block for the past twenty-five years. (Doc. 39, at 1.) On December 14, 2006, a loose velcro strap on plaintiff's shower shoe caused him to fall in the shower and hit his head, left shoulder and ribs. (Doc. 173, ¶¶ 12, 43; Doc. 178, ¶ 13.) He did not lose consciousness. (Doc. 173, ¶¶ 12, 45.) He was taken by wheelchair to the medical department and examined by Nurse Irene. (Doc. 173, ¶¶ 12, 44; Doc. 178, ¶ 17.) He had a hematoma on the left side of his head, but no vision problems. (Doc. 173, ¶ 12.) He was thoroughly examined and rated his pain as a three or four on a scale of one to ten. (Id.) He was advised to return to sick call the next morning. (Id. at ¶¶ 12, 46)

The following day, Carpenter was seen by physician's assistant, Lynn A. Maguschak ("PA Maguschak").*fn1 (Doc. 173, ¶ 13.) It was noted that Carpenter was ambulating slowly. (Id.) Although he was neurologically intact, he had some mild edema in his left temporal area. (Id.) He had no swelling or bruising to his left ribs, but experienced pain on palpation. (Id.) PA Maguschak ordered x-rays with particular attention to the left rib area. (Id.) It was also noted that Carpenter had pre-existing orders for pain medication and that he should take the pain medication. (Id. at ¶¶ 13-15.)

On December 18, 2006, he underwent x-rays of his chest with attention to his left ribs. (Doc. 173, ¶¶ 16, 86.) The x-rays were normal. (Id. at ¶¶ 16, 59)

On December 21, 2006, Carpenter reported to sick call in moderate distress due to persistent pain in his left rib area. (Doc. 173, ¶¶ 17, 58.) Defendant PA O'Brien, a physician's assistant licensed to practice in the Commonwealth of Pennsylvania, employed by Prison Health Care Industries, examined him and noted bruising and tenderness in the area of the eighth and ninth ribs, but detected no deformity. (Id. at ¶¶ 17, 83, 87) PA O'Brien told him to use his prescribed medication for pain management and ordered additional x-rays of the ribs. (Id. at ¶¶ 17, 88) He had no involvement in the distribution of medication to Carpenter; this function is reserved for the nurses. (Id. at ¶ 90.)

Between December 21, 2006, and January 2, 2007, Carpenter underwent additional x-rays of his chest and left ribs. (Doc. 173, at ¶¶ 18, 92) The x-rays were read by Dr. Dovydaitis on January 3, 2007. (Id. ¶¶ 18, 91.) They were negative for any type of fracture or break. (Id. ¶¶ 18-91-92.)

On December 27, 2006, he returned to sick call complaining that he had been coughing for a few days and he still had rib pain. (Id. at ¶ 19.) PA O'Brien prescribed him Guaifenesin and told him to return if his symptoms persisted.*fn2 (Id.) On January 9, 2007, he presented with the same symptoms and complaints. (Id. at

¶ 20.) PA O'Brien continued the Guaifenesin prescription, added a prescription for Bactrim, and ordered another chest x-ray.*fn3 (Id. at ¶¶ 20, 93.) The chest x-ray was taken two days later and was negative. (Id. at ¶¶ 21, 94.)

Carpenter's next interaction with PA O'Brien was on March 16, 2007, when he requested that his Tylenol #3 be reordered. (Doc. 173, at ΒΆΒΆ 22, 64, 95.) He saw PA O'Brien on three additional occasions: (1) he had left shoulder and neck pain on April 18, 2007; (2) on September 24, 2007, he requested a prescription refill; ...


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