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Michael Burke v. Dr. Mark Baker

April 10, 2012

MICHAEL BURKE, PLAINTIFF
v.
DR. MARK BAKER, ET AL., DEFENDANTS.



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

OPINION AND ORDER

United States Magistrate Judge Susan Paradise Baxter

I. INTRODUCTION

A. Relevant Procedural History

On August 18, 2009, Plaintiff Michael Burke, a prisoner incarcerated at the State Correctional Institution at Albion, Pennsylvania (ASCI-Albion@), filed this civil rights action pursuant to 42 U.S.C. ' 1983 against the following Defendants: Dr. Mark Baker (ABaker@), a physician under contract with the Department of Corrections (ADOC@) to provide medical services to inmates at SCI-Albion; Christine Zirkle (AZirkle@), a nurse employed by the DOC at SCI-Albion; Maxine Overton (AOverton@), Chief Health Care Administrator at SCI-Albion; and C.O. Byerly (AByerly@) and C.O. Boyd (ABoyd@), corrections officers at SCI-Albion. [ECF No. 9, Complaint]. All Defendants other than Defendant Baker will hereafter be referred to collectively as ADOC Defendants.@

In his pro se Complaint, Plaintiff claimed that Defendants were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights.

Both Defendant Baker and the DOC Defendants filed motions to dismiss [ECF Nos. 14 and 27, respectively] asserting that Plaintiff failed to state claims against them upon which relief may be granted. On May 13, 2010, this Court issued a Report and Recommendation (AR&R@) recommending that Defendant Baker=s motion to dismiss be granted, and that the DOC Defendants= motion to dismiss be granted as to Plaintiff=s claims against Defendants Boyd, Overton, and Zirkle, but denied as to Plaintiff=s claim against Defendant Byerly. [ECF No. 41]. Plaintiff filed objections to this Court=s R&R on June 1, 2010, and an oral argument on said objections was heard by District Judge Sean J. McLaughlin on July 27, 2010. After oral argument, District Judge McLaughlin issued an Oral Order adopting this Court=s recommendation that Plaintiff=s claims against Defendants Overton and Zirkle be dismissed and that the DOC Defendants= motion to dismiss Plaintiff=s claim against Defendant Byerly be denied; however, Judge McLaughlin declined to adopt this Court=s recommendation that Plaintiff=s claims against Defendant Baker and Defendant Boyd be dismissed. (See Judge McLaughlin=s Oral Order dated July 27, 2010). As a result, Plaintiff=s Eighth Amendment claims against Defendants Baker, Boyd, and Byerly were allowed to proceed beyond the pleading stage.

Plaintiff subsequently obtained counsel to represent him in this action, and an amended complaint was filed on Plaintiff=s behalf on May 23, 2011. [ECF No. 127]. In his amended complaint, Plaintiff reiterates his Eighth Amendment claims against Defendants Baker, Boyd, and Byerly, and also raises retaliation claims against Defendants Baker and Boyd. Defendants filed timely answers to Plaintiff=s amended complaint [ECF Nos. 128, 129], and the parties have since completed discovery.

On January 16, 2012, Defendant Baker filed a motion for summary judgment [ECF No. 135], arguing that Plaintiff has failed to state a claim under the Eighth Amendment and has failed to exhaust his administrative remedies with regard to his retaliation claim. Defendants Boyd and Byerly filed their own motion for summary judgment on January 20, 2012 [ECF No. 139], asserting that Plaintiff cannot establish any of his claims against them. Plaintiff has filed responses to both motions. [ECF Nos. 144, 147]. As of March 23, 2012, all parties have consented to the jurisdiction of the United States Magistrate Judge. [ECF Nos. 152, 153, 154]. This matter is now ripe for consideration.

B. Relevant Factual History

On October 19, 2007, Plaintiff saw Defendant Baker and informed him that he suffered a slip and fall accident that was causing extreme lower back pain. (ECF No. 127, Amended Complaint at & 9). Defendant Baker noted normal reflexes and no leg or herniated disc symptoms; but some muscle pain and mild scoliosis was noted, for which he prescribed Neurontin. (ECF No. 138-2 at p. 4). An x-ray of Plaintiff=s thoracic and lumbar spine was taken on October 22, 2007, which confirmed that Plaintiff had mild mid to lower dorsal scoliosis, as well as congenital variation of the S1 segment on the left. (ECF No. 138-4). Plaintiff again saw Defendant Baker on November 19, 2007, at which time Defendant Baker doubled the Neurontin dosage and discontinued an anti-inflammatory medication. (ECF No. 138-2 at p. 4).

On February 10, 2008, Plaintiff was examined for neck pain by Dr. Valerie Gilreath, a staff neurosurgeon, who prescribed Prednisone, but did not alter Plaintiff=s pain medications. (Id. at p. 5). Defendant Baker followed up with Plaintiff on March 6 and 24, 2008, and noted that Plaintiff had a normal gait with no leg muscle weakness, no muscle atrophy, normal reflexes, and was able to get on and off the exam table, while shackled, without difficulty. (Id. at pp. 5-6; ECF No. 138-3 at p. 5). Nonetheless, Defendant Baker increased Plaintiff=s dose of Neurontin from 1200 mg/day to 1800 mg/day, due to Plaintiff=s complaints of pain. (ECF No. 138-34, Defendant Baker=s deposition transcript, at p. 39 (internal p. 77)).

In July 2008, Plaintiff underwent a course of on-site physical therapy at the request of Defendant Baker. On July 10, 2008, the physical therapist noted that Plaintiff=s reports of pain and radiating pain were inconsistent, and she recommended stretching and strengthening exercises for the lower back. (ECF No. 138-3 at p. 6). On July 11, 2008, Defendant Baker=s colleague, Dr. Bashline, recommended that Plaintiff follow-up with physical therapy in 1-2 months. (ECF No. 138-2 at p. 8; ECF No. 138-5). After Plaintiff suffered a fall on or about July 23, 2008, Defendant Baker prescribed Soma, increased the dosage of Neurontin, and ordered an MRI, which was taken on August 15, 2008. (ECF No. 138-2 at p. 8; ECF No. 138-3 at p. 7).

The results of the MRI showed Abroad-based posterior disc herniation@ at L4/L5, which caused a Aminor degree of left neural foramen encroachment no significant central canal stenosis.@ (ECF No. 138-6 at p. 2). Defendant Baker discussed these results with Plaintiff on August 28, 2008, referred Plaintiff to orthopedics for a treatment plan and recommendations, and prescribed Ultram for pain relief. (ECF No. 138-2 at p. 9; ECF No. 138-3 at p. 8).

On September 22, 2008, Plaintiff followed up with physical therapy, at which time he complained about Aback stiffness almost on a daily basis.@ (ECF No. 138-5). Plaintiff was told to continue his exercise program and to implement good body mechanics. (Id.).

Plaintiff was scheduled for an orthopedic consult on October 10, 2008, but the appointment was canceled by the orthopedist and rescheduled for October 24, 2008. (ECF No. 138-3 at p. 9). On October 24, 2008, Plaintiff was examined by Jonathan L. Kates, M.D., an orthopedist, via webcam. (ECF No. 138-3 at p. 10). Dr. Kates noted that Plaintiff had a normal gait and got off and on the examination table without difficulty. (ECF No. 138-8 at p. 1). Dr. Kates then referred Plaintiff to his partner, Gary L. Schmidt, M.D., for further evaluation. (Id.). Dr. Schmidt evaluated Plaintiff the same day, via webcam, and noted that Plaintiff was Avery argumentative and manipulative during the examination,@ and Awould not cooperate for straight leg raise testing.@ (Id.). Dr. Schmidt noted further that Plaintiff had Agiveway strength@ during strength testing, and Areally would not cooperate at either ankle.@ (Id. at p. 2). Dr. Schmidt did not find Plaintiff=s MRI results impressive and did not believe Plaintiff had a Asurgical disk.@ Instead, Dr. Schmidt recommended that Plaintiff go to a Pain Clinic for a left L4-5 nerve root block, and told him not to take any pain pills for his back pain, but to take an occasional Soma, a muscle relaxant. (Id.).

On October 31, 2008, Plaintiff requested an increase in his dosage of Ultram, but this request was denied by Defendant Baker as there was no indication for an increase. On the same date, Defendant Baker discontinued Plaintiff=s Benadryl prescription due to misuse. (ECF No. 138-2 at p. 15; ECF No. 138-3 at p. 11). Plaintiff=s Soma prescription was subsequently continued on November 14, 2008. (ECF No. 138-2 at p. 16).

Plaintiff failed to show for a follow-up visit with Defendant Baker on November 17, 2008. (ECF No. 138-3 at p. 11). Defendant Baker next saw Plaintiff on December 2, 2008, at which time Plaintiff=s prescriptions of Soma and Neurontin were increased, and Plaintiff was referred for an EMG test. (ECF No. 138-2 at p. 16). The EMG was performed on December 24, 2008, and the results were normal with a suggestion of Abilateral very mild remote L4 radiculopathies.@ (ECF No. 138-9 at p. 3). Defendant Baker increased Plaintiff=s Ultram dosage on January 8, 2009, and referred Plaintiff to Tri-State Neurological Surgeons for a determination of whether surgery was needed. (ECF No. 138-2 at p. 17; ECF No. 138-34, Defendant Baker=s deposition transcript, at pp. 59-60 (internal pp. 117-118).

On February 11, 2009, Plaintiff was found to have two paper cups containing pills that he did not receive in the medication line. (ECF No. 138-34, Defendant Baker=s deposition transcript, at p. 68 (internal pp. 134-35). As a result, Defendant Baker discontinued Plaintiff=s prescriptions for Soma and Neurontin, due to misuse. (Id.; ECF No. 138-2 at p. 17).

On February 25, 2009, Plaintiff was seen by Dr. Isam Khoja, a neurosurgeon, who diagnosed Plaintiff with Achronic back pain secondary to degenerative disc bulge at the level of L4-5,@ for which he recommended physical therapy and epidural injections by Dr. Rai (ECF Nos. 138-10 and 138-11). Dr. Khoja also recommended that Plaintiff be started on Celebrex, hydrocodone 7.5/325, and Soma (ECF No. 138-11 at p. 3). If Plaintiff did not show any improvement in six weeks, Dr. Khoja indicated that he Amay need to undergo an L4-5 lumbar interbody fusion.@ (Id.).

On March 3, 2009, Defendant Baker discontinued Ultram and prescribed Vicodin 5mg Aper the neurosurgeon,@ titrated Baclofen increasing from 5 mg to 10 mg (as a substitute for Soma), and Celebrex 200 mg. (ECF No. 138-2 at p. 18).). In addition, Defendant Baker referred Plaintiff to Dr. Rai, a pain specialist; however, on March 6, 2009, Dr. Noel, the State Medical Director, rejected Defendant Baker=s referral and alternatively ordered that conservative treatment be continued. (ECF No. 138-12). On March 20, 2009, Defendant Baker referred Plaintiff to Dr. Khoja for a follow-up visit, which was scheduled for April 27, 2009. (ECF No. 138-2 at p. 19). On the same date, Defendant Baker discontinued Baclofen and reinstated the prescription for Neurontin. (ECF No. 138-2 at p. 20).

Plaintiff was subsequently seen by Dr. Khoja on April 27, 2009, at which time Dr. Khoja wrote two new prescriptions: Methadone, 10 mg titrated to 20 mg if there is no pain improvement, and Lyrica, 50 mg at differing times for six days, then 75 mg for six weeks. (ECF No. 138-14). Dr. Khoja also discussed with Plaintiff the option of spinal fusion surgery, and he recommended an MRI of Plaintiff=s thoracic and lower cervical spine. (ECF No. 138-13 at p. 2).

On April 30, 2009, while Plaintiff was housed in the restricted housing unit (ARHU@), he Abegan having violent back spasms and collapsed multiple times.@ During one of these spasms, Plaintiff allegedly cut his left arm on the rusted edge of a desk. (ECF No. 127, Amended Complaint, at & 26; ECF No. 138-25 at p. 8). Plaintiff buzzed the RHU control room a number of times seeking medical attention, and Defendant Byerly, the control room officer, responded by telling Plaintiff to fill out a sick call slip. (ECF No. 141-1, Defendant Byerly=s deposition transcript, at pp. 35, 36, 39, 40). Defendant Byerly also sent Defendant Boyd to Plaintiff=s cell to check on Plaintiff. (Id. at p. 38; ECF No. 141-4, Defendant Boyd=s deposition transcript, at p. 20). Plaintiff then showed Defendant Boyd the cut on his arm, which Defendant Boyd described as Anot bleeding to an extent@ and merely needing a AScooby-Doo Band-Aid.@ (ECF No. 141-4, Defendant Boyd=s deposition transcript, at pp. 21, 56). Nonetheless, Defendant Boyd was informed that medical had already been contacted. (Id. at pp. 21-24).

On May 1, 2009, Plaintiff noticed blood in his urine and notified his counselor, Michael Brumagin (ABrumagin@), that he needed to see a doctor, but that RHU control told him to fill out a sick call slip. (ECF No. 141-8, Brumagin=s deposition transcript, at pp. 19, 25). Brumagin then saw Defendant Baker and explained Plaintiff=s medical condition, at which time Defendant Baker responded that unless it was an emergency Plaintiff would have to submit a sick call slip. (Id. at pp. 29, 53, 55, 56). Since, Brumagin had never seen Plaintiff have a back spasm, collapse in pain, or urinate blood, he did not think there was an emergency, so he told Defendant Byerly to tell Plaintiff to put in a sick call slip. (Id. at pp. 26, 28, 31, 47).

On May 4, 2009, Defendant Baker ordered a urine dipstick test, for which a nurse went to Plaintiff=s cell and requested a urine sample. (ECF No. 138-2 at p. 21; ECF No. 127, Amended Complaint, at & 36). The next day, Defendant Baker saw Plaintiff to discuss Dr. Khoja=s findings, at which time Plaintiff demanded narcotics and was described as being Abelligerent, impulsive, easily argumentative.@ (ECF No. 138-34, Defendant Baker=s deposition transcript, at p. 92 (internal pp. 182-83); ECF No. 138-3 at p. 18). On examination, Defendant Baker noted muscle spasms and referred Plaintiff for x-rays of his cervical spine. (ECF No. 138-3 at p. 18). Defendant Baker also prescribed Robaxin, a muscle relaxer, which was to be discontinued once Lyrica became available, and Methadone, once available, at which time Vicodin was to be discontinued. The Lyrica and Methadone were prescribed as recommended by Dr. Khoja, although in smaller doses. (ECF No. 138-34, Defendant Baker=s deposition, at pp. 93-94 (internal pp. 185-187); ECF No. 138-2 at p. 22).

On May 7, 2009, the results of Plaintiff=s cervical x-rays revealed minimal degenerative changes and Acervical curve reversal suggest[ing] muscle spasm.@ (ECF No. 138-16). On May 9, 2009, Plaintiff=s urinalysis results returned, showing no signs of infection and no gross blood in Plaintiff=s urine. (ECF No. 138-15; ECF No. 138-34, Defendant Baker=s deposition transcript, at p. 104 (internal p. 207)).

On May 11, 2009, Plaintiff was seen be Daniel Telega (ATelega@), a physician=s assistant, who found Plaintiff to be in no acute distress, but ordered x-rays to rule out kidney stones, which revealed only incidental findings. (ECF No. 138-2 at p. 22). At that time, Plaintiff asked to have his Robaxin medication reinstated, but Telega denied the request, noting that Plaintiff was already on Aescalating Lyrica and Methadone.@ (ECF No. 138-3 at p. 19).

On May 22, 2009, Defendant Baker referred Plaintiff for an MRI of the cervical and thoracic spine, which was scheduled for July 1, 2009. (ECF No. 138-2 at p. 23). On the same date, Defendant Baker referred Plaintiff for a follow-up visit with Dr. Khoja, which was scheduled for August 12, 2009. (Id.). The July 1, 2009 MRI showed Aminimal discogenic changes@ on Plaintiff=s cervical spine, with Atiny central disc protrusions ... that do not cause impingement upon the cord,@ and a normal thoracic spine. (ECF No. 138-19). On July 21, 2009, Defendant Baker examined Plaintiff and reviewed with him the MRI results, noting no neural impingement and good overall pain control. (ECF No. 138-3 at p. 20; ECF No. 138-34, Defendant Baker=s deposition transcript, at p. 142 (internal p. 282)).

On August 12, 2009, Dr. Khoja saw Plaintiff for the third time and noted that Plaintiff was taking Lyrica and Dolophine (also known as Methadone) and that the source of Plaintiff=s neck pain was uncertain. (ECF No. 138-17). Dr. Khoja did not recommend cervical infusion Atill pain source identif[ied],@ and instead recommended an epidural injection, which was previously Arefused by insurance company.@ (Id.). Dr. Khoja also recommended the following prescriptions for a period of six weeks: Robaxin 750 mg, Celebrex 200 mg, Lyrica 100 mg, and Methadone 20 mg. (ECF No. 138-20).

Defendant Baker followed up with Plaintiff in the RHU on August 15, 2009, noting that Plaintiff was able to get on and off the examination table without difficulty and was argumentative, demanding an increase in his medications. (ECF No. 138-3 at p. 21). Defendant Baker noted further that Plaintiff exhibited stable gait and vital signs, no arm or leg atrophy, Ano true muscle spasm@ upon palpation, and no new acute leg radiculopathy. (Id. at p. 22; ECF No. 138-34, Defendant Baker=s deposition transcript, at p. 145 (internal pp. 288-89)). Defendant Baker found no medical necessity to increase Methadone, but instead maintained Plaintiff=s Methadone dosage at 10 mg, but prescribed all remaining medications suggested by Dr. Khoja, at the dosages recommended. (ECF No. 138-2 at p. 25; ECF No. 138-3 at p. 22). Defendant Baker also referred Plaintiff for an EMG, which was performed on October 8, 2009, and revealed carpal tunnel syndrome. (ECF No. 138-21).

In or around September 2009, after receiving notice of the instant lawsuit naming him as a Defendant, Defendant Baker removed himself from the day-to-day care of Plaintiff, and made himself available only for medical emergencies and reordering medications, if other doctors were unavailable to do so. (ECF No. 138-34, Defendant Baker=s deposition transcript, at p. 153, 155 (internal pp. 304-5, 308)). After that time, Plaintiff=s day-to-day care ...


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