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Gregory Hammond v. Dept Corrections of Penn/Albion

September 17, 2012


The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

ECF Nos. 59, 63


KELLY, Magistrate Judge

Plaintiff, Gregory Plaintiff ("Plaintiff " or "Hammond"), is an inmate in the custody of the Pennsylvania Department of Corrections ("DOC"), and is currently incarcerated at the State Correctional Institution ("SCI") at Albion. Plaintiff brings this civil rights action against Defendants SCI Graterford/DOC of PA; Maxine Overton (Healthcare Administrator) ("Overton"); Christine Zirkle (RNS) ("Zirkle"); Daniel Telega (Physician's Assistant) ("Telega"); Officer F. Jablonski (Corrections Officer) ("Jablonski"); Melinda Adams (Superintendent) ("Adams"); and J. Korszniak ("Korszniak"), alleging that Defendants have been deliberately indifferent to his medical needs in violation of his rights provided by the Eighth Amendment to the United States Constitution.

Presently before the Court is a Motion to Dismiss Plaintiff's Amended Complaint submitted on behalf of Defendants Telega and Korszniak ("the Medical Defendants"), ECF No. 59, and a Motion to Dismiss Amended Consolidated Complaint submitted on behalf of Defendants SCI Graterford/DOC of PA, Overton, Zirkle, Jablonski and Adams ("the DOC Defendants"). ECF No. 63. For the reasons that follow, both Motions will be granted.


According to the Complaint, Plaintiff suffers from "Degenerate Joint Disease, Peripheral Neuropathy, Gout, back pain, Chronic Kidney Disease." ECF No. 58, ¶13. Plaintiff alleges that when he was brought into state custody in March of 2010, his kidneys required constant monitoring and maintenance of his medication. Plaintiff contends, however, that the medical staff at SCI Graterford changed his medications and improperly prescribed a "toxic cocktail of medications" until he was transferred to SCI Camp Hill on April 14, 2010. Id. at ¶¶ 14-17. Plaintiff alleges that the negligence and deliberate indifference of SCI Graterford's medical staff caused nephritis and irreparable damage to both kidneys. Id. at ¶¶ 13, 15.

With respect to Defendant Korszniak, Plaintiff claims that during an examination on March 31, 2010, Korszniak acted in an arrogant manner when Plaintiff complained of chronic kidney disease. Id. at ¶ 14. Plaintiff also alleges, however, that Korszniak admitted him to the infirmary for his "severe nausea, body aches and consistent cough." Id.

Plaintiff asserts that he was transferred to SCI Camp Hill on April 14, 2010, and that he was placed on "medical hold" from April 21, 2010 until August 16, 2010, because his "multiple illnesses and conditions presented a special and unique challenge, because the medications for each were causing a cross reactions, which made [him] ill." Id. at ¶ 20.

It appears that Plaintiff was transferred to SCI Albion on August 17, 2010. During the intake process, Plaintiff alleges that his medications, knee braces, elbow sleeve, wrist braces, muscle rub and various ointments were confiscated, and that he lost his bottom bunk and bottom tier status. Id. at ¶ 21. Plaintiff claims that he was told this was policy and that his property would be returned after he was seen by the doctor. Id. Plaintiff contends, however, that because he "slipped through the cracks somehow," he was not called to see a doctor and had to submit a "sickline" slip in order to get his property back. Id.

Plaintiff nevertheless alleges that he was seen by Defendant Telega on August 20, 2010. Id. at ¶ 21. Plaintiff complains that Telega was aloof, nonchalant, rude and unprofessional at the time and that he allegedly told Plaintiff that he was not allowed to have the items that were confiscated from him during intake. When Plaintiff asked for the muscle rub and A&D ointment, Telega allegedly told Plaintiff to go buy some Vaseline at the Commissary. Id. After Plaintiff challenged Telega's statement that A&D Ointment was the same as Vaseline, Telega allegedly became hostile and told Plaintiff, "we're through." Id.

Plaintiff alleges that thereafter Telega failed to adequately examine him or read his medical records which prevented anyone from learning of his terminal illnesses or chronic issues and that he consequently went without treatment for five months. Id. at ¶ 22. Plaintiff also claims that his knee braces, elbow sleeves and bottom bunk/bottom tier status were not returned for over 90 days. Id. Plaintiff contends that Telega was negligent in providing care and that Telega "made [it] his business to assure the Plaintiff could not be seen by anyone else or receive the items" confiscated from intake. Id. at ¶ 23. Plaintiff also takes issue with Telega's alleged failure to adhere to treatment recommended by doctors and, in particular, with Telega's alleged "dismissal" of his knee problems. Id. at ¶¶ 22-26, 42.

According to Plaintiff, Telega's superiors "took him at his word," and failed to look at Plaintiff's medical records for themselves. Id. at ¶ 22. As such, Plaintiff did not see a doctor for nearly five months and went a substantial period without HIV medications, and without his kidneys being monitored. Id. Plaintiff alleges that the SCI Albion medical department mocked his condition and that Telega was derelict in his duty by failing to adhere to the recommendations of doctors who had previously cared for him at SCI Camp Hill. Id. at ¶¶ 24-26. He also faults Telega for wanting to "pretend to examine him again" when there was already a previously diagnosed knee problem recorded in plaintiffs medical file. Id. at ¶ 23.

Plaintiff further complains that despite the fact that Telega was aware of Plaintiff's history of knee problems, Telega "chose not to do anything" thereby varying from the prescribed recommendations of doctors which culminated in his left knee giving out on July 8, 2011. Id. at ¶ 26. Plaintiff claims that he subsequently sustained another injury which has caused him to be in a wheelchair indefinitely. Id. Plaintiff also alleges, however, that he was given a stabilizer brace for his left knee and that he was seen by a Physical Therapist and/or Doctor concerning his knee injury on: August 29, 2011, September 20, 2011, November 1, 2011, November 10, 2011 and November 21, 2011. Although Plaintiff contends that it was recommended that he have weight training 5 days per week, "which has not yet happened," he acknowledges that he has arranged to have weight training two days per week. Id. at ¶¶ 60-62.

Plaintiff also alleges that Defendant Zirkle, SCI Albion's RN Supervisor, learned of his knee problems "and elected to do nothing." Id. at ¶ 27. Plaintiff claims that Zirkle "interjected" herself into this matter by responding to request slips that were not "titled to her" and "helped to forge an environment of negligence." Id.

With respect to Defendant Overton, Plaintiff contends that she "allowed" his rights to be violated as she was not only aware of the refusal to return his knee braces and elbow sleeves but that she failed to rectify the error. Id. at ¶¶ 28-42. Moreover, Plaintiff claims that Overton compounded the error by lying in her responses to Plaintiff's grievances, stating that his knee brace had been returned. Id. at ¶¶ 28-31. Plaintiff also asserts that Overton ignored previously diagnoses and treatment recommendations; that, in particular, she "overruled" the recommendations of a Physical Therapist on August 29, 2011, and that of a doctor on November 1, 2011; and that she prevented Plaintiff from being involved in any type of therapy or daily weight training. Id. at ¶¶ 29-32. As well, Plaintiff complains that Overton deliberately and willfully refused to provide him with proper medical treatment for knee and back pain and that she colluded with Defendants Adams and Telega to declare Plaintiff medically clear thereby ignoring all previously diagnosed conditions and recommendations. Id. at 33-42.

Plaintiff alleges that he was transferred to "DA Block" on August 21, 2010, but had not been told by medical that his bottom bunk and bottom tier status had been revoked. When Officer Jablonski assigned Plaintiff to a top tier and bunk, Plaintiff told him that he had restrictions. Plaintiff states that Jablonski called medical and was told that the restrictions had expired as of August 17, 2010. Id. at ¶ 43. Plaintiff alleges that Jablonski ignored his requests to change cells with an inmate assigned to a bottom tier and gave him a direct order to move to the top tier cell which, according to Plaintiff, placed him at risk of harm. Id. Plaintiff claims he was in pain until November 5, 2010, when he received a bilateral knee brace and until November 21, 2010, when he was returned to the bottom tier. Id.

Plaintiff alleges generally that Overton, Adams, Zirkle and Telega denied, hindered or delayed medical attention to him for over eleven months and only responded after his left knee gave way on July 8, 2011, and again on November 21, 2011. Id. at ¶ 46. According to Plaintiff, when his left knee gave way on July 8, 2011, he was examined by another Physician's Assistant and received an x-ray, ice bag, crutches, pain medications, and "long term care." Id. at ¶¶ 26, 47. On July 22, 2011, he received a walking cane which he used until November 21, 2011, when he was provided a wheelchair. Id. Although Plaintiff acknowledges that a knee stabilizer was ordered for his left knee on August 4, 2011, he alleges that he did not receive it until October 24, 2011, and had to walk "without the required protection," or any other aid. Id. at ¶ 48.

Plaintiff contends that he sent a request to Overton on September 9, 2011, seeking information about the stabilizer's delay and inquiring as to why his medical records reflect that he was receiving therapy when none had been provided. Id. at ¶ 49. On September 19, 2011, when he failed to receive a response from Overton, Plaintiff filed Grievance No. 381685 complaining about the delay, the inaccurate notation in his medical records and "gross negligence and medical malpractice." Id. at ¶ 50.

With respect to Defendant Adams, Plaintiff alleges that he wrote directly to her as the acting superintendent at SCI Albion informing her of the alleged lack of medical care he was receiving but that she offered no solution, displayed an unwillingness to get involved, and eventually took a "hostile stance." Plaintiff complains that Adams failed to properly investigate complaints or to remain free from the influence of other staff members and that it was a conflict of interest for Adams to serve as a Grievance Coordinator and the "superintendent assistant" at the same time. Id. at ¶¶ 51-52, 62.

Plaintiff also alleges that he was sent to the RHU on November 14, 2010, and that he was without either of his two asthma inhalers. Id. at ¶ 53. Plaintiff's numerous requests to corrections and medical staff about his need for the inhalers, however, allegedly went unheeded resulting in him having asthma attacks on November 16, 2010, and again on November 18, 2010. Id. Plaintiff claims that during these incidents he pressed his call button and was told that medical would be notified, but no one came. Upon being released from the RHU on November 19, 2010, Plaintiff allegedly discovered that his asthma inhalers were missing from his property and he was sent to the housing unit without them. Id. When, according to Plaintiff, he was later placed in a smoking cell he suffered another asthma attack, requiring him to be taken to the infirmary. While there, Plaintiff allows that he received two injections, two emergency breathing treatments, and was held for 24-hour observation. Id.

Plaintiff subsequently filed Grievance No. 344212 and presently takes issue with Defendant Zirkle's initial response to the Grievance wherein she stated that Plaintiff "contends" to have asthma. Plaintiff complains of Zirkle's "audacity as a nurse, to question the validity of Plaintiff's condition." Id. at ¶ 54.

Plaintiff also alleges that he had serious dental needs when he was transferred to SCIAlbion and that he should have been on "high priority" to receive dental care. According to Plaintiff, he was nevertheless passed over for an entire year until he was seen by Dr. Logan on August 19, 2011. Id. at ¶ 55. Plaintiff alleges that when he advised Dr. Logan that he was "immune compromised," Dr. Logan inquired whether that was due to HIV and terminated Plaintiff's appointment when he learned of his HIV status. Id. Plaintiff contends that Dr. Logan then indicated that Plaintiff would be placed back on a waiting list and should not expect to be called back anytime soon. Id.

Plaintiff subsequently filed Grievance No. 389147, and complains that the response thereto inaccurately reports that he received dental treatment: on August 19, 2011, September 15, 2011, September 22, 2011, October 4, 2011, and October 21, 2011. Id. at ¶ 56. While Plaintiff maintains that his requests for dental treatment were refused on: August 19, 2011, August 30, 2011, September 8, 2011, September 22, 2011, and September 19, 2011, and that he has had no treatment since October 24, 2011, he later acknowledges that he was seen by Dr. Logan on September 15, 2011, October 4, 2011 and October 22, 2011, and that Dr. Logan extracted teeth each time. Id. Nevertheless, Plaintiff has not named a specific individual as a Defendant relative to his dental treatment but simply states that the Dentist Department is under the "authoritive [sic] umbrella of Ms. Overton's supervision." Id. at ¶ 57.

Plaintiff initiated this action on November 8, 2010, by filing a Motion for Leave to Proceed in Forma Pauperis along with a Complaint naming "Dept Corrections of Penna/Albion" as the sole Defendant. ECF No. 1. On February 15, 2011, Plaintiff filed an Amended Complaint naming SCI/Graterford/DOC of PA, Overton, Zirkle, Telega, Jablonski and Adams as Defendants. ECF No. 11. Plaintiff filed a Consolidated Complaint against these same Defendants on November 30, 2011, ECF No. 47, and on January 11, 2012, Plaintiff filed another Consolidated Complaint adding J. Korszniak as a Defendant. ECF No. 58.*fn1

A Motion to Dismiss Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) was filed by the Medical Defendants on January 13, 2012. ECF No. 59. On February 13, 2012, the DOC Defendants filed a Motion to Dismiss Amended Consolidated Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). ECF No. 63. Plaintiff responded to the Motions on February 10, ...

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