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Leroy Jackson v. City of Philadelphia

June 13, 2012

LEROY JACKSON, PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM ORDER

AND NOW, this 13th day of June, 2012, upon consideration of (1) Prison Health Services ("PHS") Defendants' Motion for Summary Judgment (Doc. No. 74) and Plaintiff Leroy Jackson's responses thereto; (2) Defendant City of Philadelphia's Motion for Summary Judgment (Doc. No. 76) and Plaintiff's responses thereto; and (3) Plaintiff's "Motion for Reconsideration of Civil Federal Rule 15(c)(3)" (Doc. No. 89), it is hereby ORDERED as follows:

1. Plaintiff's "Motion for Reconsideration of Civil Federal Rule 15(c)(3)" (Doc. No. 89) is DENIED. Plaintiff's stand-alone complaint filed on April 28, 2011 (Doc. No. 36) shall remain the operative complaint in this matter.

2. Prison Health Services ("PHS") Defendants' Motion for Summary Judgment (Doc. No. 74) is GRANTED.

3. Defendant City of Philadelphia's Motion for Summary Judgment (Doc. No. 76) is HELD IN ABEYANCE. On or before Friday, June 22, 2012, the City shall inform the Court in writing as to what discovery, if any, it provided to Plaintiff in this matter. The City shall also furnish the Court with copies of any such discovery.

I. Factual Background and Procedural History*fn1

This matter concerns injuries sustained by Plaintiff Leroy Jackson ("Plaintiff" or "Jackson") while incarcerated as a pretrial detainee at Curran-Fromhold Correctional Facility ("CFCF") in Philadelphia, as well as the medical care Jackson received for those injuries. According to Jackson, on December 25, 2009, two inmates got into a fight, and the "response team" broke it up. (Doc. No. 36). Other response team members then grabbed Jackson, who was returning to his cell from church. (Doc. No. 85). While dragging Jackson back to his cell, the response team assaulted, hit, and kicked him, causing Jackson to suffer shoulder, back, and neck pain. (Id.). Later that day, Jackson asked C/O Lits*fn2 if he (Jackson) could "go to medical," but Lits denied his request. (Id.).

Jackson then wrote out and submitted a "sick call request" on a plain piece of paper. In it, Jackson complained of neck, shoulder, and back pain. However, Jackson did not indicate (1) the severity of the pain, or (2) that he needed emergency medical care. (Doc. No. 88, at 31). The next day, December 26th, Jackson submitted another sick call request reflecting that he "was ruffed [sic] up by C.O.'s yesterday and [his] neck shoulder and back is [sic] in pain." (Doc. No. 88, at 32). Again, no mention of severe or excruciating pain, and no indication that his situation was an emergency.*fn3 That same day, Jackson filed a grievance recounting his previous-day's encounter with the response team and C/O Lits' refusal to let Jackson seek medical treatment. (Doc. No. 88, at 22). This grievance, much like Jackson's sick call slips, reflects that Jackson was "in pain" without quantifying how much. (Id.). Jackson filed another grievance on December 28th, complaining that he still had not been seen by a doctor for his "neck back and shoulder" pain.

(Doc. No. 88, at 17).

On December 30, 2009, several days after Jackson first requested medical treatment, he was seen by Defendant Barbara McKennedy, a Registered Nurse. (Doc. No. 75-4 ("McKennedy Aff.") ¶¶ 3-4). McKennedy does not know why Jackson was not seen on December 28th or 29th, but he did not appear on her sick call list until December 30th, and she saw him that same day. (Id. ¶ 4). Policy calls for inmates to "see medical staff no later than early afternoon" on the day following a sick call request. (Doc. No. 88, at 29). Jackson declares that "when [he] presented himself for sick call, his neck was tilted to the side in a spasm and he was holding his right wrist with his left arm to keep it from moving because of the exscusating [sic] pain." (Doc. No. 85). Jackson has introduced the affidavits of several other inmates to back-up this claim. (See Doc. No. 88-1, at 54-58).

When McKennedy saw Jackson on December 30th, he was complaining of neck, back and shoulder pain. Her examination revealed that Jackson had no bruising on his neck, shoulder, and back areas, and that he had a full range of motion in his neck and arms. (McKennedy Aff. ¶ 5; Doc. No. 88, at 40). Additionally, Jackson had no shortness of breath, and his vital signs were normal. (Id.). In McKennedy's opinion, Jackson was not in severe pain, and she made no objective findings that there was anything significantly wrong with his neck, back, or shoulder. (McKennedy Aff. ¶ 6). As such, McKennedy recommended that Jackson rest, refrain from heavy lifting, and apply warm compresses as needed until he could be evaluated by a physician's assistant ("P.A."). (McKennedy Aff. ¶ 6; Doc. No. 88, at 40).

Several days later, Jackson wrote out another sick call slip reiterating that he was "in pain" and had not yet been seen by a P.A. despite Nurse McKennedy's referral. (Doc. No. 88, at 34).

Jackson submitted a grievance to the same effect on January 6, 2010. (Doc. No. 75-2, at 4). Two days later, on January 8, 2010, Jackson was seen by Defendant Karen McKinney, P.A. (Doc. No. 85, at 3; Doc. No. 75-5 ("McKinney Aff.") ¶¶ 4-5). McKinney avers that she saw Jackson the first day he appeared on her patient list, and she does not know why Jackson did not show-up on the list sooner. (McKinney Aff. ¶ 4).

Upon examination, McKinney determined that Jackson was not experiencing any acute distress. He had minimal decreased range of motion in his neck and very minimal decreased range of motion in his right shoulder. (McKinney Aff. ¶ 5; Doc. No. 88, at 41). Jackson also had mild tenderness and tightness between the spine and right shoulder blade. (Id.). In McKinney's medical opinion, Jackson was only experiencing mild discomfort, so she prescribed a ten-day regimen of Percogesic (pain medication). (Id.). McKinney also educated Jackson on stretching exercises for his shoulder, neck, and upper back to help relieve his discomfort. (Id.). Nothing in McKinney's examination indicated that Jackson needed further medical treatment, other than the stretching and pain medication she ordered. (McKinney Aff. ¶ 6).

One week later, on January 15, 2010, Jackson complained that he had not yet received the pain medication McKinney had prescribed. (Doc. No. 88, at 33). Records reflect that Jackson received his pain medication on the 15th, the day of his complaint. (McKinney Aff. ¶ 8; McKennedy Aff. ¶ 8; Doc. No. 75 Ex. F, at PHS 160, 163). Neither Nurse McKennedy nor P.A. McKinney were personally involved in the process of administering medications to Jackson, and neither one can explain the delay in providing Jackson with the Percogesic. (McKinney Aff. ¶ 8; McKennedy Aff. ¶ 8).

Notably, Jackson did not complain of shoulder or back pain during a "chronic care" visit to his physician on March 16, 2010, two months after he initially received treatment from Defendants McKennedy and McKinney. (Doc. No. 75 Ex. F ("Arias Aff.") ¶ 8). However, Jackson did complain of back and shoulder pain two weeks later, during a visit with McKinney on March 29, 2010. (McKinney Aff. ¶ 9). At that time, Jackson had more pain in his back than in his shoulders and reported no radiation of pain. (Id.). Jackson also said that the previously prescribed Percogesic had been helpful. (Id.). McKinney's examination revealed that Jackson had full range of motion in his shoulders but complained of pain in his right shoulder when he lifted his arm above his head. (Id.). McKinney observed no deformity in Jackson's right shoulder. (Id.). Based on Jackson's complaints, she prescribed Percogesic for fourteen days on an as-needed basis. (Id.).

A week or so later, on April 9, 2010, Nurse McKennedy saw Jackson in regards to his high blood pressure and eczema. (McKennedy Aff. ¶ 10). Jackson did not complain about shoulder or back pain during this visit. (Id.). In fact, Jackson's medical records reveal that he was subsequently seen by medical providers, including his treating physician and a physician's assistant, on April 12, 2010; April 19, 2010; May 27, 2010; and July 28, 2010, and made no complaints of shoulder or back pain during any of these visits. (Arias Aff. ¶ 10; Doc. No. 75 Ex. F, at PHS 004-007). Instead of reporting his pain (if indeed it was ongoing), Jackson apparently decided to self-medicate, buying Tylenol at the commissary and fashioning a sling out of an old t-shirt. (Doc. No. 85, at 4).

Then, on September 15, 2010, during another chronic care visit, Jackson reported pain and a decreased range of motion in his right shoulder. (Arias Aff. ΒΆ 11). At that time, x-rays were ordered and a routine consultation with an orthopedist was requested on Jackson's behalf. (Id.). X-rays taken on September 16th revealed only minor ...


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