The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Plaintiff, Tony Lee Mutschler, is a state prisoner who was incarcerated at the State Correctional Institution Albion ("SCI Albion") at the time of the events at issue in this case. Pending before the Court is Defendants' motion for summary judgment [ECF No. 62]. For the reasons set forth below, the Court will grant the motion.
Plaintiff has filed this civil action pursuant to 42 U.S.C. § 1983 against Sandy Malena, a Registered Nurse who is now retired but who previously worked at SCI Albion, and Maxine Overton, that prison's Corrections Health Care Administrator. Plaintiff has numerous health problems, including a neurogenic bladder condition, which necessitates that he use a catheter.*fn2 [ECF No. 64, ¶¶ 2-3]. When he was at SCI Albion, he would go to the infirmary to pick up his medical supplies, including catheters, urine bags, leg straps, and adult diapers. [Id., ¶ 6]. Malena worked at the infirmary and was one of the individuals who handed out the supplies to the inmates. According to Defendants, there are over 2000 inmates at SCI Albion and roughly a third of them come to the infirmary for various medical supplies and medications, making the infirmary a busy place. [Id., ¶ 39].
Plaintiff also has a latex allergy, which is documented in his medical record. [Id., ¶ 5]. In his complaint [ECF No. 4] and amendment thereto [ECF No. 18], he claims that in October of 2008, Malena gave him a catheter that contained latex. About two months after this incident, he spoke with Overton and she assured him that it would not happen again. Plaintiff alleges that on March 14, 2009, Malena once again issued him a catheter containing latex. He contends that he was "almost" given the product a third time on April 10, 2009, by "another" nurse. [ECF No. 4, § IV.A and C]. Plaintiff claims that both Malena and Overton were recklessly indifferently to his medical needs, in violation of his rights under the Eighth Amendment. As relief, he seeks, inter alia, money damages. [ECF No. 4 at 4; ECF No. 18 at 1].
The parties have completed discovery. On March 8, 2012, Defendants filed the pending Motion For Summary Judgment [ECF No. 62 ], an accompanying Brief [ECF No. 63], their Concise Statement of Undisputed Material Facts [ECF No. 64], and their exhibits [ECF Nos. 65, 69]. Plaintiff has filed a response to Defendants' motion, which he has entitled Motion In Supporting Factual Positions of Plaintiff Valid Claim [ECF No. 70].*fn3
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004).
The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989) (the non-movant must present affirmative evidence -- more than a scintilla but less than a preponderance -- which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Garcia v. Kimmell, 381 F.App'x 211, 213 (3d Cir. 2010) (per curiam) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)).
When considering a motion for summary judgment, the Court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).
Because Plaintiff is proceeding pro se, the Court is required to liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, this does not require the Court to credit his "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Thus, for example, the mere allegation by Plaintiff that Defendants were deliberately indifferent to his serious medical needs is insufficient to establish that there is a genuine issue of material fact. Rather, the allegation must be supported by evidence, which the Court will evaluate under the standard described above to determine if there is merit beyond mere conclusions.
The Local Rules of this Court also required Plaintiff to file a Responsive Concise Statement (with an appendix of documents referenced therein), which responded to each numbered paragraph in Defendants' Concise Statement of Material Facts by: (1) admitting or denying whether each fact contained in Defendants' document is undisputed and/or material; (2) setting forth the basis for the denial if any fact contained in Defendants' document is not admitted in its entirety, with appropriate reference to the record; and, (3) setting forth in separately numbered paragraphs any other material facts that are allegedly at issue, and/or that he asserts are necessary for the Court to determine the motion for summary judgment. W.D. Pa. LCvR 56(C)(1). Plaintiff did not file a document in which he responded to each numbered paragraph in Defendants' Concise Statement of Material Facts. A litigant's failure to file the required responsive concise statement works to his detriment. "[A]lleged material facts set forth in the moving party's Concise Statement of Material Facts ... which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement by the opposing party." W.D. Pa. LCvR 56(E). See also Carnegie Mellon University v. Marvell Technology Group, Ltd., No. 09-cv-290, 2011 WL 1044652, at *3 (W.D.Pa. Mar. 18, 2011); 84 Lumber Co., L.P. v. Bryan Const. Co., No. 09-cv-1030, 2011 WL 666209, at *5 (W.D.Pa. Feb.14, 2011). In his response to Defendant's motion for summary judgment [ECF No. 70], Plaintiff does set forth in separately numbered paragraphs a few facts that he contends are disputed, and the Court has considered those in evaluating whether summary judgment is appropriate.
In his complaint, Plaintiff claimed that in October of 2008, Malena was working at the infirmary and gave him medical supplies, including a catheter. [See also ECF No. 64, ¶ 7]. He did not read the package labeling and did not notice the word "latex" printed on the label. [Id., ¶ 8]. He put the catheter on around 10 p.m. before he went to bed, and when he woke in the morning he was having a reaction from the exposure to the latex. [Id., ¶ 9]. He went to the garbage and found the packaging, which indicated the catheter contained latex. [Id., ¶ 10]. Plaintiff says he was seen in medical several hours later by Daniel Telega, a Physician's Assistant at SCI Albion. [Id., ¶ 11].
Although he initially thought that this incident had occurred in October of 2008 (he used the date October 7 in his subsequent grievance), Plaintiff's medical records demonstrate that September 23, 2008, was the date he was seen by Telega regarding a rash that Plaintiff believed was caused by latex exposure. [Id., ¶¶ 13-14]. Plaintiff saw Telega again for additional treatment on October 16 and 23, and then on November 5, 2008. [Id., ¶¶ 18-21]. He was also seen by Dr. Bashline on October 10, 2008, because he was "still having problem with penis rash[.]" In his notes for November 5, 2008, Telega wrote: "Per inmate, 'everything healed except for the top.' PA noted meatal rash mostly resolved with eschar superior to meatus[.]" Dr. Bashline saw Plaintiff five days later on November 10 and he wrote "No mention of penis rash." [ECF No. 65-2 at 12, Defs' Ex. 6].
Defendants have submitted evidence to support their contention that Malena was not working on the days that this first incident allegedly occurred (September 22 or 23, 2008, or October 7, 2008). [ECF No. 64, ¶¶ 63-65]. Plaintiff has not submitted any evidence to refute Defendants' evidence in this regard.
For the next few months, Plaintiff had no further problems and was not given any latex catheters. [Id., ¶ 22]. However, by the middle of January he decided to file a grievance over the incident. On January 12, 2009, he filed Grievance No. 256793 on the required DC-ADM 804 form. He wrote:
[My] grievance is the [incompetence] of the medical dept. I have allergies they are "A.S.A. and Latex." Medicalgave me my medical supply and there was latex in some of the stuff they gave me. I did not [sic] there was latex. I have to trust in them not to give me the wrong stuff. But they did give me stuff with latex and I used it not know[ing] it had latex. And I to [sic] an allergy reaction to it my penis turned black and started to get a bunch of little bubbles on the head of my penis. This happened around 10-7-8. I seen the PA about it. He said to use zinc oxide. Did not help. Went back to him on 10-23-08 he gave me some miconazole told me to use it for 30 days. I did it took 60 days to clear up. I need to see the total damage if any before I filed a grievance. I now have scars on my penis. They look disgusting to me like I have some kind of disease now they show real bright and [stick] out like a sore thumb.
Seeing it makes me depressed being deformed.. I would like to have a talk with the head of medical to see if we can't come to some kind of agreement . between me and medical dept. [ECF No. 65-1 at 4, Defs' Ex. 1].*fn4
Overton was assigned to respond to Plaintiff's grievance and she met with him on January 22, 2009. [ECF No. 64, ¶ 28]. He told her that he had written the grievance because he wanted to make sure that the mistake did not happen again. [Id., 5]. According to Overton, Plaintiff was critical of the medical department and nursing staff generally, and did not complain about any particular individual. [Id., ¶ 33]. Plaintiff disputes this. He stated during his deposition that he told Overton that Malena was the one who had given him the latex catheter. [ECF No. 65-1 at 31, Defs' Ex. 4]. He admitted to Overton that he had looked at the catheter at the time, but did not notice it was latex either. [ECF No. 64, ¶ 31]. He said that he had had no further problems with his supplies since October. [Id., ¶ 32].
During their meeting, Plaintiff also told Overton that he wanted to be able to pick up his medical supplies once a week, rather than on Monday, Wednesday and Friday, as scheduled. [Id., ¶ 34]. Overton informed Plaintiff that she would look into a weekly pick-up for his supplies. [Id., ¶ 35]. Although she could not confirm that he in fact had received a latex catheter, she assured him they would do their best to make sure mistakes do not happen. [Id., ¶¶ 36, 37]. She subsequently passed this information on to the medical and nursing staff supervisors, reminding everyone of the need to be careful when distributing supplies. [Id., ¶ 38]. Overton states that she did not discuss Plaintiff's allegation with Malena because he had not mentioned Malena to her. [Id., ¶ 56-57].
On January 26, 2009, Overton issued the Initial Review Response ("IRR") to Grievance No. 256793:
[Plaintiff] was interviewed on January 22, 2009. He contends that on or around October 7, 2008 he was given latex catheters which caused him to have an allergic reaction. [Plaintiff] states he was seen and treated by PA Telega. [Plaintiff] states he wrote the grievance so the mistake does not happen again. [Plaintiff] admits that he looked at the catheter that was issued and did not notice that it was latex. [Plaintiff] admits that he has not had ...