The opinion of the court was delivered by: (Judge Conner)
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 of defendants Kloptoski, Irene Bezdziecki*fn1 , Rendell, Beard, Burks, Varner, Lucas, Goldberg, Fogel, Ginnochetti, Leskowski, Miskell, Wynder, Mooney, McGrady, Demming, Kneiss and Miller. (Doc. 200.) Defendants seek entries of judgment on the following remaining claims: (a) the Americans with Disabilities Act claim; (b) the First Amendment retaliation claim; (c) the Eighth Amendment claim of denial of adequate medical treatment against defendant Irene; and (d) the Eighth Amendment conditions of confinement claim against Wynder, Mooney, McGrady and Miller. (Doc. 215, at 3; Doc. 216, at ¶ 8; Doc. 231, at ¶ 8.) For the reasons set forth below, the motion will be granted with respect to the Eighth Amendment claim of denial of adequate medical treatment against defendant Bezdziecki. Defendants have failed to comply with Federal Rule of Civil Procedure 56(c) and Local Rule 56.1 with regard to the Americans with Disabilities Act claim, the First Amendment retaliation claim, and the Eighth Amendment conditions of confinement claim. Consequently, the motion will be stricken as to these claims and defendants will be afforded the opportunity to re-file a properly supported motion.
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 nonmoving 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 nonmoving 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.
Federal Rule of Civil Procedure 56(c) sets forth the requirements for supporting factual assertions contained in a motion for summary judgment. FED. R. CIV. P. 56(c). The pertinent portions of the Middle District of Pennsylvania Local Rules of Court provide that, "[a] motion pursuant to Fed.R.Civ.P. 56 shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." See M.D. Pa. LR 56. 1. Although defendants submitted a statement of facts (Doc. 216), the statement is not in compliance with either set of rules. Specifically, although defendants move on all remaining claims, the statement of material facts only includes facts related to the Eighth Amendment claim pending against defendant Bezdziecki.*fn2 Consequently, this is the only portion of the motion that will be considered. The remainder of the motion will be stricken without prejudice to defendants to re-file a properly supported motion within the time period set forth in the accompanying Order of Court.
II. Statement of Material Facts
Plaintiff received medical treatment for injuries sustained in a fall
in the shower at SCI-Dallas on December 14, 2006. (Doc. 216, ¶¶ 9-10;
Doc. 231, at ¶ 9-10.) He reported to the medical department and was
seen by defendant Bezdziecki at 10:50 p.m. (Id. at ¶¶ 10, 39 Id. at ¶¶
10, 39.) He reported that he had fallen in the
shower because the velcro strap on his shower shoe came loose causing
him to fall and hit his head, left shoulder, and rib area.*fn3
(Id.) He had a hematoma on the left side of his head, but did
not lose consciousness. (Id.) The medical records indicate that he was
examined by defendant Bezdziecki who documented that he had no vision
problems, did not suffer from nausea and did not experience vomiting.
(Doc. 216, at ¶ 10.) His hand grips and the strength of his feet were
checked and found to be equal and strong. (Id.) He rated his pain as a
3 or 4 on a scale of 1 to 10. (Id.) In citing to his deposition
testimony, plaintiff disputes that defendant Bezdziecki examined him
or performed any of the assessment tests. He also states that he
suffered from nausea and rated his pain as a 4 on a scale of 1 to 5.
(Doc. 231, at ¶
10.) He was instructed to report for sick call the following day.
(Doc. 216, at ¶ 10; Doc. 231, at ¶ 10.)
On his December 15, 2006 follow-up appointment, he was seen by physician's assistant, Lynn A. Maguschak ("P.A. Maguschak"). (Doc. 216, at ¶¶ 11, 42; Doc. 231, at ¶¶ 11, 42.) It was noted that he ambulated slowly, but was neurologically intact. (Doc. 216, at ¶ 11.) Mild edema in his left temporal area was noted. (Id.) He experienced pain upon palpation to his left ribs, but did not present with swelling or echymosis.*fn4 (Id.) A chest x-ray with attention to his left ribs was ordered. (Id.; Doc. 217-3, at 4.) He was instructed to take Tylenol #3 and Motrin as needed.*fn5 (Doc. 216, at ¶ 11.) He also states that although pain medication was ordered, he personally informed Maguschak and Bezdziecki "he went to the window to get this medication on a number of occasions and was told they did not have his medication." (Doc. 231, at ¶ 11, citing to medication chart.) "Plaintiff had a few remaining Motrin in his cell that were issued some time ago as self meds prior to his injuries but were not sufficient for the entire time that he suffered pain." (Doc. 232, at 10.)
On December 18, 2006, plaintiff received chest x-rays, with attention to his left ribs, due to a fall. (Doc. 217-1, at 5.) The x-rays were normal.*fn6 (Doc. 216, at ¶ 14.)
On December 21, 2006, plaintiff reported to sick call complaining of persistent pain in his left rib area. (Doc. 216, at ¶ 15; Doc. 231, at ¶ 15.) P.A. O'Brien observed some echymosis overlying the left 8th and 9th ribs. (Id.) There was tenderness, but no palpable deformity. (Doc. 216, at ¶ 15.) Plaintiff was instructed to take Tylenol #3 for pain management. (Id.) O'Brien also ordered additional x-rays of the ribs. (Id.) The following week, he returned to sick call complaining of a cough and rib pain. P.A. O'Brien prescribed Guaifenesin and told him to return if his symptoms increased. (Doc. 216, at ¶ 17; Doc. 231, at ¶ 17.) Between December 21, 2006, and January 2, 2007, he underwent x-rays of his left ribs. (Doc. 216, at ¶ 16.) The x-rays were negative for any type of fracture or break. (Id.) Plaintiff has never seen x-ray results, but he testified at his deposition that O'Brien informed him that the x-ray results were normal and showed no fracture but that he had torn cartilage. (Id. at ¶¶ 48-49; Id. at ¶¶ 48-49.)
On January 9, 2007, he was again seen by P.A. O'Brien for complaints of a persistent cough and rib pain. O'Brien continued the Guaifenesin and ordered a chest x-ray and Bactrim. (Doc. 216, at ¶ 18: Doc. 231, at ¶ 18.) Two days later, he was given a chest x-ray, which was negative. (Id. at ¶ 19; Id. at ¶ 19.) He was then seen on March 16, 2007, requesting a refill of his Tylenol #3. (Id. at ¶ 20; Id. at ¶ 20.) O'Brien wrote a refill prescription.*fn7 (Id.)
Section 1983 of Title 42 of the United States Code offers private citizens a cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to ...