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Orlando Baez v. Stanley Falor

September 24, 2012

ORLANDO BAEZ,
PLAINTIFF,
v.
STANLEY FALOR, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: District Judge Terrence F. McVerry

Chief Magistrate Judge Lisa Pupo Lenihan

ECF Nos. 193, 233, 234

MEMORANDUM OPINION

This case is before the Court on Defendants' Motion for Summary Judgment (ECF No. 193), Plaintiff's Motion for Emergency Medical Care (ECF No. 233), and Plaintiff's Motion to Compel (ECF No. 234). For the reasons that follow, Defendants' Motion will be granted and Plaintiff's Motions will be denied.

I.PROCEDURAL HISTORY

Plaintiff, Orlando Baez, a capital inmate presently incarcerated at the State Correctional Institution at Greene ("SCI-Greene") located in Waynesburg, Pennsylvania, commenced this civil action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. The original complaint was filed on November 7, 2006 in the United States District Court for the Eastern District of Pennsylvania and alleged violations of the Fourteenth and Eighth Amendments regarding the medical treatment that Plaintiff was provided while he was incarcerated at the State Correctional Institution at Graterford ("SCI-Graterford") and SCI-Greene. (ECF No. 6.) On January 25, 2007, prison officials from SCI-Greene filed a motion to transfer claims against them to the Western District of Pennsylvania. (ECF No. 14.) The Eastern District of Pennsylvania ordered a hearing on a rule to show cause as to why Plaintiff's claims against all Defendants associated with SCI-Greene should not be severed and transferred. (ECF No. 31.) Counsel was appointed for Plaintiff and the court deferred decision on transfer of claims against SCI-Greene Defendants to provide Plaintiff an opportunity to file a counseled response. (ECF Nos. 37, 38.)

On October 17, 2007, Plaintiff filed a motion requesting that he be transferred to SCIGraterford. (ECF No. 40). The court denied the motion to transfer without prejudice and gave Plaintiff leave to file a counseled amended complaint. (ECF No. 53.) On March 24, 2008, Plaintiff filed a motion for an immediate preliminary injunction relating to the medical care he was receiving at SCI-Greene. (ECF No. 61.) On May 6 and 7, 2008, the court held evidentiary hearings on Plaintiff's motion for preliminary injunction where Plaintiff, Dr. Byunghak Jin, and Dr. Stanley Falor testified. (ECF Nos. 69, 70, 72, 73.) After the evidentiary hearings, the parties took the deposition of Dr. Seaman and provided a transcript to the court. In June 2008, the parties submitted proposed findings of fact and conclusions of law. (ECF Nos. 74, 75.)

On July 22, 2008, Plaintiff, through counsel, filed an Amended Complaint. (ECF No. 77.) After an August 2008 teledermatology consult with Dr. Stephen Schleicher, Plaintiff requested that the court reopen the record for injunction to admit both Dr. Schleicher's report and Plaintiff's letter complaining about the consult. The court granted Plaintiff's request and ordered the record opened for supplementary evidentiary submissions to be followed by supplementary briefing by all parties. (ECF No. 89.) On May 4, 2009, the Honorable Norma Shapiro denied Plaintiff's request for preliminary injunctive relief finding that Plaintiff was receiving treatment in excess of the minimum required by the Eighth Amendment. (ECF No. 98.) On July 23, 2009, Plaintiff's claims arising from his incarceration at SCI-Greene were transferred to this Court.

(ECF No. 108.) Specifically, Plaintiff's claims against the following Defendants were transferred: Louis Folino, Superintendent of SCI-Greene ("Folino"); Dr. Stanley Falor ("Dr. Falor");*fn1 Diane Manson, CHCA ("Manson");*fn2 Shirley Hickman, PA-C ("Hickman"); Dr. Abimbola Talabi ("Dr. Talabi"); Sharon Burks, Chief Grievance Appeals Officer ("Burks"); Dr. Byunghak Jin ("Dr. Jin"); Debra Gress, CRNP ("Gress"); Michelle Howard-Diggs, PA-C ("Diggs"); and Prison Health Services ("PHS").*fn3 (ECF Nos. 108, 111.)

Defendants Folino and Burks filed a Motion for Judgment on the Pleadings (ECF No. 122), which this Court granted on November 8, 2011 (ECF No. 219). The remaining Defendants, excluding Defendant Mason, filed a Motion for Summary Judgment on September 6, 2011. (ECF No. 193.) A Brief in support of the Motion for Summary Judgment (ECF No. 206) and Concise Statement of Material Facts (ECF No. 204) with Appendix (ECF No. 205) were filed on September 28, 2011. A Supplemental Appendix (ECF No. 209) was filed on October 12, 2011 and a Supplement to the Motion for Summary Judgment (ECF No. 216) was filed on October 29, 2011. Plaintiff filed an Appendix in Opposition to Defendants' Motion for Summary Judgment on January 20, 2012. (ECF No. 220.) Defendants elected to file a Reply Brief (ECF No. 227) and Plaintiff filed a Sur-Reply Brief on June 6, 2012 (ECF No. 232). The Motion for Summary Judgment is now ripe for review.

II.BACKGROUND

A.Findings of Fact made by Judge Shapiro with regard to Plaintiff's Motion for Preliminary Injunction, Eastern District of Pennsylvania Case No. 06-4923 Relevant to this Court's review of the pending Motion for Summary Judgment are the following Findings of Fact made by Judge Shapiro on May 4, 2009, following hearings and submission of evidence in regards to Plaintiff's motion for injunctive relief filed in the United States District Court for the Eastern District of Pennsylvania.

Baez is a prisoner previously incarcerated at SCI-Graterford and currently incarcerated at SCI-Greene. Defendant Dr. Byunghak Jin, a general surgeon at SCI-Greene, is employed by Prison Health Services. Defendant Dr. Stanley Falor, a general practitioner employed by Prison Health Services, has worked at SCI-Greene since January, 1994. Baez testified Dr. Falor took his complaints seriously and treated him better than the other physicians. Dr. Falor has not been involved in Baez's care since August, 2006.

Baez alleges that since 2004, he has had constant pain in his stomach, chest, and heart. Baez testified he submitted sick call slips to SCI-Greene staff, but they ignored him, laughed, or walked away. The pain medication provided to Baez was ineffective. Dr. Jin acknowledged Baez had complained about stomach and abdominal pain, and ineffectiveness of pain medication, since arriving at SCI-Greene.

A. Lupus

After evaluating Baez's symptoms, Dr. Falor referred Baez to Dr. David E. Seaman, a rheumatologist who specializes in lupus. Lupus is a chronic, inflammatory systemic disease that can affect different organs in the body. There are two types of lupus: skin lupus, causing skin rashes, and systemic lupus, affecting the nervous, circulatory, lung and cardiovascular, and gastrointestinal systems. Skin lupus can become systemic lupus. Systemic lupus can be fatal.

There is no single diagnostic test for lupus; diagnosis depends on evaluating a number of symptoms and rest results. Symptoms of lupus include: malar rash, discoid rash, photosensitivity, oral ulcers, arthritis, serositis, renal disorder, neurologic disorder, hematologic disorder, immunologic disorder, high anti-double strain DNA level, and high antinuclear antibody level. Lupus has both latent and active stages, and symptoms can appear and recede.

Lupus has no cure, but treatment can slow progression of the disease. Skin lupus is treated with topical creams and oral medication.

Dr. Seaman saw Baez on June 29, 2006, and April 16, 2008. Dr. Seaman was not provided with Baez's medical records prior to the June, 2006 examination, and did not speak with Dr. Falor or Dr. Jin prior to or after examining Baez. Dr. Seaman observed excoriated, or "scabby," lesions on Baez's arms, back, trunk, and legs. In his June 29, 2006, report, Dr. Seaman stated he doubted Baez had systemic lupus but wanted to rule it out; he planned the following:

(1) Will obtain CBC, CR, LFT, TSH, ANA, DNA, ENA, C3, C4-SSA/B, CR, U/A.

(2) X-ray C spine and LS spine.

(3) CT of the abdomen.

(4) Suggest referral to GI, cardiology and dermatology. This will be deferred to Dr. Falor.

(5) Follow-up in one month in the Waynesburg office.

The cervical lumbar x-rays and CT scan of the abdomen were performed. In a July 11, 2006, progress note, Dr. Jin deferred any dermatology, cardiology, or gastrointestinal consult.

Baez was not returned to see Dr. Seaman one month after the first visit. According to the file Dr. Seaman maintained for Baez, "Vicki" from SCI-Greene called Dr. Seaman to schedule a one month follow up visit on July 26, 2006. The visit was rescheduled for September 6, 2006, because Dr. Seaman had ordered a "DES test" for Baez in August. A note in Baez's file stated Vicki from SCI-Greene called to cancel the September 6, 2006, office visit because Baez refused a CT scan. The note stated that if Baez decided to have the CT scan done, the visit would be rescheduled. Baez signed a consent form for a CT scan on September 11, 2006; the CT scan was performed on November 8, 2006. Baez was not returned for a second visit with Dr. Seaman until one and a half years after the CT scan was performed.

Baez's second visit with Dr. Seaman was on April 16, 2008. Dr. Seaman did not have an opportunity to review complete medical records before Baez's second visit. Dr. Seaman did not receive Baez's laboratory results until the second visit. Baez complained of arthralgia, abdominal pain, and heart pains.

After examination, Dr. Seaman suspected Baez had subacute cutaneous lupus, or skin lupus. Dr. Seaman wanted Baez to see a dermatologist for further evaluation, because there are multiple forms of skin lupus. At deposition, Dr. Seaman testified he could not state with any certainty that a delay in seeing a dermatologist would cause Baez injury in the future.

Baez's symptoms of a photosensitive skin rash, arthralgia, abnormal double strain DNA test results, high anti-nuclear antibody ("ANA") test results, and positive SS-A / SS-B test results are consistent with lupus. Dr. Seaman testified that as of the medical examination on April, 2008, Baez did not have a malar (butterfly-shaped cheek) rash, which is another symptom of lupus. Dr. Seaman has not received test results for the SS-A and SS-B antibodies, which might support a diagnosis of subacute cutaneous lupus or Sjogren's syndrome. Baez has had a recurring non-malar rash for approximately a year while at SCI-Greene, but has not been seen by a dermatologist at SCI-Greene. Dr. Seaman recommended that Baez see a dermatologist for his skin condition.

Dr. Seaman testified at his deposition that he had not determined whether Baez had lupus. After the April, 2008, medical examination, Dr. Seaman received x-rays of Baez; Dr. Seaman did not make any further diagnosis as a result. Dr. Seaman had not yet received SS-A or SS-B antibody tests, to help him determine whether Baez has skin lupus or Sjogren's syndrome. Dr. Seaman suggested a second rheumatology opinion.

Dr. Jin, who does not specialize in lupus, became medical director at SCI-Greene on October 1, 2006. Dr. Jin did not know for certain whether Baez has lupus. Lupus Erythematosis is listed on Baez's "problem list" dated March 22, 2006, and on Baez's progress notes of July 20, 2006. "Systemic lupus" is noted on May 8, 2006. Duplicate testing for lupus on May 8, 2006, returned positive results; anti-double strain DNA and antinuclear antibody tests returned positive; lab reports from March 21, 2006, and May 8, 2006, were positive for double strain DNA; and a lab report from July 8, 2006, showed high antinuclear antibody, elevated ESR, and high anti-double strain DNA results. Dr. Jin noted elevated anti-nuclear anti-body and elevated ESR levels in 2008, but stated in an April 23, 2008, letter that "no clinical traits of lupus" were shown.

Dr. Jin first decided not to follow Dr. Seaman's recommendations to refer Baez to gastroenterology and dermatology specialists because he did not agree it was necessary. Dr. Jin concluded Baez did not have lupus because he did not see any symptoms during an April 8, 2008, examination. Baez testified he did not disrobe during examinations by Dr. Jin, and Dr. Jin has never seen Baez's skin, other than his face and head. Dr. Falor agreed with Dr. Jin's initial decision not to send Baez for a dermatology consult after reviewing Baez's medical chart and because of his familiarity with Dr. Jin. As prison doctors, Dr. Falor and Dr. Jin have been instructed to take cost into consideration when evaluating whether to follow a consultant's recommendation.

Dr. Jin later changed his mind and arranged a dermatology consult for Baez. Baez was seen by Dr. Stephen Schleicher, via teledermatology on August 18, 2008. Dr. Schleicher was not able to detect any rashes but noted that Baez was "belligerent and uncommunicative" during the exam; Baez reportedly said, "I will not communicate unless my lawyer is present." Dr. Schleicher recommended an ANA test every quarter, as well as a lupus band test, but did not state definitively that Baez had systemic lupus or Sjogren's syndrome.

Dr. Jin sent Baez to a second dermatological consult off-site on December 8, 2008. The December 15, 2008 lab report analyzing tests taken during that consult stated that the results were non-specific for lupus or other ANA-related autoimmune disorders. After Dr. Jin forwarded these results to him, Dr. Seaman would not state conclusively that Baez had lupus or any other systemic autoimmune disorder. However, on Dr. Seaman's recommendation, Dr. Jin arranged for Baez to be seen by a rheumatology specialist at the University of Pittsburgh's Lupus Center of Excellence.

On February 20, 2009, Baez was seen by Dr. Fotios Koumpouras at the University of Pittsburgh, who diagnosed him as having systemic lupus, and possibly secondary Sjogren's syndrome. Dr. Koumpouras recommended courses of medication and tests to treat Baez's lupus, as well as his secondary joint pain and dry mouth. Dr. Koumpouras also requested repeat follow-up visits with Baez every six months.

B. Rectal bleeding

Baez complained of rectal pain while at SCI-Greene, but medical staff did not respond to his first sick call slip regarding rectal bleeding. Baez's complaints of rectal bleeding have been documented in progress notes. On June 18, 2007, Baez tested positive for blood in the stool that cannot be detected by the naked eye. Blood in the stool can result from internal bleeding. Dr. Falor testified the hemoccult test showed the extent of Baez's bleeding was not serious because the blood counts did not change appreciably. Dr. Jin conceded further investigation must be done to determine why Baez is experiencing rectal bleeding.

Baez also complained of rectal bleeding during his second visit with Dr. Seaman. Dr. Seaman recommended that Baez see a gastroenterology specialist for the rectal bleeding. Dr. Seaman acknowledges rectal bleeding is unrelated to his specialty, and his recommendation for gastrointestinal consult was not meant to aid the diagnosis of lupus.

On April 8, 2008, Dr. Jin conducted a rectal exam of Baez, but Baez testified he did not disrobe during the exam. Baez has received no diagnosis or treatment of his rectal bleeding. Appropriate responses to rectal bleeding might include a colonoscopy and a gastrointestinal consult.

Memorandum dated May 4, 2009 (ECF No. 98) (internal citations omitted).

B.Summary of Plaintiff's Medical Records

In addition to the above recitation of facts, the following is a summary of Plaintiff's medical records by year since arriving at SCI-Greene.

1.2005

On the day Plaintiff arrived at SCI-Greene, April 28, 2005, he was examined and placed on the sick call list to be seen by a physician's assistant. Plaintiff stated that he had chronic abdominal pain since December 2004 and that he had a biopsy performed a month earlier but did not know the results. (ECF No. 209-1 at 4.) Throughout the months of April and May, Plaintiff complained of chest and abdominal pain. He was seen by numerous nurses and physician's assistants, including Defendants Hickman and Diggs, and prescribed medication for his pain such as Motrin and Feldene. (ECF No. 209-1 at 1-4; No. 205-6 at 33-34, 47-50.) They also ordered an EKG, chest x-ray, and blood studies, which all returned normal. (ECF No. 205-5 at 15-16, 33.) Plaintiff was examined by Dr. Talabi on May 31, 2005. (ECF No. 205-6 at 47-48.) Plaintiff reported continuous chest and abdominal pain but Dr. Talabi found no significant abnormalities. (ECF No. 205-6 at 47-48.) He did, however, order DP II, Erythrocyte Sedimentation Rate ("ESR"), and reactive protein tests as well as an EKG and a repeat EKG. (ECF No. 205-5 at 32.) Dr. Talabi also saw Plaintiff for non-specific abdominal pain on June 9, 2005. (ECF No. 205-6 at 46.) He reviewed Plaintiff's lab results, which showed no significant findings except for an elevated ESR, and a repeat test was ordered. (ECF No. 205-5 at 46; 205-6 at 32.)

Throughout June and July, Plaintiff continued to complain of pain and was seen by Hickman on numerous occasions who observed Plaintiff to be in no acute distress. (ECF No. 205-6 at 42-46.) His chart was reviewed by Dr. Falor on June 26, 2005, and it was noted that Plaintiff's EKG was within normal limits and that his pain was non-specific. (ECF No. 205-6 at 45.) Lab tests were ordered to be repeated in September. (ECF No. 205-5 at 31.) Plaintiff was seen by Dr. Falor again on July 27, 2005, and Dr. Falor's assessment was puzzling pain along the milk line. (ECF No. 205-6 at 41-42.) He ordered lab work to measure Plaintiff's serum prolactin levels, which returned within normal limits. (ECF No. 205-5 at 31.)

Plaintiff was seen by Hickman, Diggs, and physician's assistant Nancy Zeigler numerous times in the month of August. (ECF No. 205-6 at 39-40.) Again, he was observed to be in no acute distress but complained of the same chest and abdominal pain. (ECF No. 205-6 at 39-40.) Plaintiff's chart was forwarded to Dr. Falor, who saw Plaintiff on August 25, 2005. (ECF No. 205-6 at 39.) Dr. Falor conducted an examination and found pain and tenderness along Plaintiff's vestigial milk line. (ECF No. 205-6 at 39.) He was going to research this finding and he ordered Plaintiff Ultram for his pain. (ECF No. 205-5 at 30; 205-6 at 39.) Several days later, Plaintiff complained that he was still in pain despite taking Ultram but he was advised by Diggs to continue with his medication. (ECF No. 205-6 at 39.)

On September 6, 2005, Plaintiff was examined by Dr. Talabi. (ECF No. 205-6 at 38.) His assessment was non-specific pain and he noted that he was going to discuss the case with Dr. Falor. (ECF No. 205-6 at 38.) Dr. Talabi also saw Plaintiff on September 15, 2005. (ECF No. 205-6 at 37.) Plaintiff complained of pain along the nipple line, and Dr. Talabi's assessment was chronic chest and abdominal pain. (ECF No. 205-6 at 37.) Dr. Talabi discontinued the Ultram and ordered Phenylgesic pain medication. (ECF No. 205-5 at 30.) Plaintiff later complained to Hickman that neither the Phenylgesic nor Ultram relieved his pain and that they both caused digestive complications. (ECF No. 205-6 at 37.) She ordered serum protein electrophoresis and urine microalbumin tests. (ECF No. 205-5 at 29.)

In October, Plaintiff complained of skin lesions. (ECF No. 205-6 at 36.) He saw Diggs on October 4, 2005, who observed multiple hyperpigmented areas on Plaintiff's torso. (ECF No. 205-6 at 36.) Her assessment was dermatitis and she ordered Diprosone cream. (ECF No. 205-5 at 29; No. 205-6 at 36.) On October 11, 2005, Plaintiff was informed that additional testing would be required because his lab results reported elevated protein levels. (ECF No. 205-6 at

35.) On October 18, 2005, Plaintiff reported to Gress that his chest, heart, and stomach still hurt and that the Phenylgesic pain medication failed to help and caused him more pain. (ECF No. 205-6 at 34-35.) Gress noted his elevated protein and globulin levels as well as elevated ESR of unknown etiology. (ECF No. 205-6 at 34.) She discontinued the Phenylgesic and waited for the results of Plaintiff's protein electrophoresis results. (ECF No. 205-5 at 29; No. 205-6 at 34.) Plaintiff's lab results returned on October 24, 2005, and he was placed on the sick call list to discuss the results. (ECF No. 205-5 at 28; No. 205-6 at 34.) Hickman ordered x-rays of the skull, spine, and pelvis, all of which returned as normal except for the lumbosacral spine which showed some straightening but otherwise appeared normal. (ECF No. 205-5 at 13-14, 28.)

Plaintiff was seen by Dr. Falor on November 17, 2005. (ECF No. 205-6 at 32-33.) Plaintiff reported that the Phenylgesic upset his stomach and that nothing had relieved his pain. (ECF No. 205-6 at 32.) He also reported that the worse pain was located where a biopsy had been performed in March at SCI-Graterford. (ECF No. 205-6 at 32.) Plaintiff stated that he had skin bumps all over his chest, back, arms, and thighs but that they had gradually disappeared. (ECF No. 205-6 at 33.) Dr. Falor found a firm raised scar on the left milk line with darker pigmentation and multiple red follicules over Plaintiff's body. (ECF No. 205-6 at 33.) He noted Plaintiff's elevated protein and globulin levels and their unknown etiology. (ECF No. 205-6 at 33.) He felt that Plaintiff had folliculitis and a painful scar from the biopsy surgery. (ECF No. 205-6 at 33.) He ordered Vicodin, Doxycycline, and Erythromy cream. (ECF No. 205-5 at 28.) Dr. Falor referred Plaintiff to Dr. Jin for continuity of care and follow-up and noted that he was going to speak to Dr. Jin regarding a possible biopsy of Plaintiff's scar. (ECF No. 205-5 at 28; No. 205-6 at 31, 33.)

Plaintiff continued to complain of chest and abdominal pain when he was seen by Hickman later that month. (ECF No. 205-6 at 31.) He was examined by Dr. Jin on November 28, 2005. (ECF No. 205-6 at 30-31.) Dr. Jin explained that Plaintiff most likely had a hyper-sensitive scar from the March biopsy that showed benign fibrofatty tissue and he questioned whether Plaintiff's pain was real or phantom. (ECF No. 205-6 at 30-31.) He offered to perform a Re-excision of the affected area with subsequent steroid injections to relieve Plaintiff's discomfort but Plaintiff refused stating that he did not trust Dr. Jin to do anything for him. (ECF No. 205-6 at 30.) Dr. Jin then planned to follow-up with Plaintiff in two months concerning his complaints of chest and stomach pain and noted that Plaintiff's medical visits would be limited to monitoring his complaints unless something changed. (ECF No. 205-6 at 30.)

Throughout December, Plaintiff submitted sick call slips for the same chest and abdominal pain. (ECF No. 205-6 at 27-29.) His chart was reviewed by Hickman and Diggs on several occasions who noted that Plaintiff's symptoms had not changed and he was seen by Gress who attempted to explain Plaintiff's condition, findings, and treatment plan. (ECF No. 205-6 at 27-29.) Plaintiff was informed that he would be seen by Dr. Jin in the new-year. (ECF No. 205-5 at 27; No. 205-6 at 27.)

2.2006

Plaintiff continued to complain of the same pain in January and he was seen by Diggs on several occasions before being seen by Dr. Jin on January 25, 2006. (ECF No. 205-6 at 25-26.) Dr. Jin examined Plaintiff and again discussed steroid injections to relieve Plaintiff's pain. (ECF No. 205-6 at 25.) Plaintiff initially agreed but refused the injections when Dr. Jin went to perform them on February 1, 2006. (ECF No. 205-5 at 3, 27; No. 205-6 at 24-25.) On February 9, 2006, Dr. Falor was able to palpate a cord of tissue around Plaintiff's milk line but he could find no cases with this type of issue in his research. (ECF No. 205-6 at 24.) Plaintiff reported no relief from any prescribed pain medications. (ECF No. 205-6 at 24.) Dr. Falor was going to perform more research and consider Indocin for the pain, which was ordered by Diggs on February 17, 2006. (ECF No. No. 205-5 at 26; 205-6 at 24.)

Plaintiff was seen by Dr. Talabi on February 28, 2006. (ECF No. 205-6 at 23.) Dr. Talabi noted Plaintiff's most recent lab results and ordered additional testing, including an anti-nuclear antibody ("ANA") test. (ECF No. 205-5 at 26; No. 205-6 at 23.) He also ordered Naprosyn. (ECF No. 205-5 at 26.) Dr. Talabi saw Plaintiff again on March 14, 2006. (ECF No. 205-6 at 20-21.) He noted Plaintiff's prolactin, protein, and globulin levels; sedimentation rate; and the results of his ANA test and decided to order a H. Pylori antibody test. (ECF No. 205-5 at 25; No. 205-6 at 20-21.) After speaking with Dr. Talabi, Dr. Falor ordered an anti-double stranded DNA ("anti-dsDNA") test in place of the H. Pylori antibody test. (ECF No. 205-5 at 25; No. 205-6 at 20.)

On March 20, 2006, Plaintiff requested different or more pain medication because the Naprosyn was not working. (ECF No. 205-6 at 19.) Dr. Talabi reviewed Plaintiff's chart and noted that there were no objective findings to support Plaintiff's chest and abdominal complaints. (ECF No. 205-6 at 18-19.) He noted Plaintiff's lab results and ordered a chest x-ray and numerous medications, including Pepto-Bismol, Tetracycline, Metronidazole, and Prilosec. (ECF No. 205-5 at 25; No. 205-6 at 18-19.) A chest x-ray was performed, which returned normal, but one view could not be obtained. (ECF No. 205-5 at 12.) Plaintiff later refused the Prilosec and Metronidazole, and he requested an increase in his pain medication because the Naprosyn was ineffective. (ECF No. 205-6 at 17-18.)

Plaintiff was seen by Dr. Falor on April 6, 2006. (ECF No. 205-6 at 16-17.) Dr. Falor noted that the anti-dsDNA and ANA tests reported positive for a possible diagnosis of Lupus and Plaintiff reported that his niece had Lupus. (ECF No. 205-6 at 16-17.) Dr. Falor saw Plaintiff for a follow-up on April 19, 2006. (ECF No. 205-6 at 15.) Plaintiff reported that he did not get relief from the Naprosyn. (ECF No. 205-6 at 15.) Dr. Falor ordered a rheumatology consult. (ECF No. 205-5 at 24; No. 205-6 at 15.) Several days later, Diggs ordered a repeat anti-dsDNA test and Gress ordered Ultram for Plaintiff's pain. (ECF No. 205-5 at 24.) Shortly thereafter, Plaintiff refused the Ultram, claiming that it made his condition worse and, as such, it was discontinued. (ECF No. 205-5 at 24; No. 205-6 at 14.)

Plaintiff's repeated anti-dsDNA test also returned positive for a possible diagnosis of Lupus. (ECF No. 205-6 at 14.) Plaintiff was seen by Dr. Falor on May 16, 2006, and he ordered a trial of Methadone pain medication. (ECF No. 205-6 at 13.) Dr. Falor informed Plaintiff that the rheumatology consult had been approved and he was going to follow-up with Plaintiff after the consultation. (ECF No. 205-6 at 13.) Prior to the consultation, however, Plaintiff continued to complain of pain and he was seen by Gress, Dr. Falor, and Dr. Jin on numerous occasions. (ECF No. 205-6 at 11-12.) They advised that they would try to follow the rheumatologist's recommendations after Plaintiff's consultation. (ECF No. 205-6 at 12.) Plaintiff had an EKG and lateral x-ray performed on May 26, 2006. (ECF No. 205-5 at 23.) The EKG returned as non-specific and the chest x-ray returned normal. (ECF No. 205-5 at 11; No. 205-6 at 11.)

On June 8, 2006, Plaintiff complained to Dr. Falor that his cell was dusty and that he had pain that radiated down his back. (ECF No. 205-6 at 11.) Dr. Falor noted that Plaintiff had been on numerous medications and that his pain was unresponsive to non-narcotics. (ECF No. 205-6 at 10-11.) He also noted that Plaintiff had refused steroid injections. (ECF No. 205-6 at 11.) He ordered Salsalate, Ranitidine, and Lioresal. (ECF No. 205-5 at 23.) On June 14, 2006, Plaintiff told Diggs that the medication Dr. Falor gave him for his neck and spine pain helped but did not do anything for his "Lupus." (ECF No. 205-6 at 10.) He was encouraged to speak frankly about his symptoms and concerns to the rheumatologist. (ECF No. 205-6 at 10.) Plaintiff requested different pain medication when he was seen by Gress on June 19 and 21, 2006. (ECF No. 205-6 at 9-10.) She noted that Plaintiff was soon to be seen by the rheumatologist, with whom he was encouraged to address the lack of success he had been having with pain medication. (ECF No. 205-6 at 9-10.)

Plaintiff was seen by rheumatologist, Dr. David Seaman on June 29, 2006. (ECF No. 205-5 at 9; No. 205-6 at 9.) In his report, Dr. Seaman noted that no outside records were available for his review and that Plaintiff was "a somewhat poor historian." (ECF No. 205-5 at 9.) Plaintiff told Dr. Seaman of his constant pain since December 2004, and he also stated that he had a recurrent rash on his arms, legs, buttocks, and groin area that worsened with sun exposure. (ECF No. 205-5 at 9.) Plaintiff also complained of dry mouth and chronic back and neck pain that worsened with activity and improved with rest. (ECF No. 205-5 at 9.) Dr. Seaman noted Plaintiff's abnormal ANA and anti-dsDNA tests. (ECF No. 205-5 at 9.) He performed a physical examination, which resulted in no objective findings except for excoriated lesions on Plaintiff's arms, back, trunk, and legs. (ECF No. 205-5 at 9.) He also noted Plaintiff's biopsy scar, which was "exquisitely tender" and sensitive. (ECF No. 205-5 at 9.) Based on his examination, he doubted Plaintiff had Systemic Lupus Erythematosus ("SLE") but recommended that numerous tests be performed in order to rule out that finding. (ECF No. 205-5 at 9.) He also suggested an x-ray of the spine, a CT scan of the abdomen, and referrals to a gastroenterologist, cardiologist, and dermatologist. (ECF No. 205-5 at 9.) However, he deferred such referrals to Dr. Falor. (ECF No. 205-5 at 9.) He recommended that Plaintiff be seen again in one month. (ECF No. 205-5 at 9.)

Upon return to SCI-Greene, Dr. Falor ordered x-rays of Plaintiff's cervical spine and lumbar spine as per Dr. Seaman's recommendation. (ECF No. 205-6 at 9.) Dr. Falor also ordered numerous lab studies and a CT scan of Plaintiff's abdomen. (ECF No. 205-6 at 9.) A follow-up appointment with Dr. Seaman was made but later cancelled due to Plaintiff's refusal to consent to the CT scan. (ECF No. 205-5 at 8; No. 205-6 at 8.)

Plaintiff saw Dr. Jin on July 11, 2006, at which time Plaintiff stated that he had Lupus. (ECF No. 205-6 at 7.) Dr. Jin explained that Plaintiff had an increased antibody level that suggested Lupus. (ECF No. 205-6 at 7.) He informed Plaintiff that he had no signs or physical evidence of Lupus and that Dr. Seaman concurred with this assessment. (ECF No. 205-6 at 7.) Dr. Jin indicated that he discussed the case with the Regional Medical Director who agreed to have the abdominal CT scan and x-rays performed despite the remote possibility of finding any pathology. (ECF No. 205-6 at 7.) He deferred any dermatology, gastroenterology, or cardiology consults at that time. (ECF No. 205-6 at 6.) Also on July 11, 2006, Plaintiff had x-rays of his cervical spine which showed no fractures. (ECF No. 211-2 at 3.) All bony appendages were normal, but there were some possible mild degenerative changes. (ECF No. 211-2 at 3.) The x-rays of his lumbosacral spine were normal. (ECF No. 93-2 at 4.)

Plaintiff continued to complain of pain and request pain medication throughout July. (ECF No. 205-6 at 4-6.) He was seen by Gress who noted that a treatment plan was in progress per Dr. Falor. (ECF No. 205-6 at 5-6.) Plaintiff was seen by Dr. Falor on July 20, 2006. (ECF No. 205-6 at 4-5.) Plaintiff had no new complaints of pain but informed Dr. Falor that he did not want to be seen anymore by Dr. Jin. (ECF No. 205-6 at 5.) Dr. Falor planned to follow-up with Dr. Seaman after Plaintiff's abdominal CT scan was performed. (ECF No. 205-6 at 4.) On August 9, 2006, Dr. Falor reviewed Plaintiff's chart and test results and felt that Plaintiff may have Sjogren's syndrome. (ECF No. 205-6 at 3.) He again noted that he would follow-up with Dr. Seaman after the CT scan. (ECF No. 205-6 at 3.)

In July, Gress approached Plaintiff to obtain his consent for the CT scan but Plaintiff refused to sign the consent form. (ECF No. 205-6 at 4.) Plaintiff wanted to speak to his attorney and have him read the form before consenting. (ECF No. 205-6 at 4.) The appointment with Dr. Seaman was going to be rescheduled pending the consent. (ECF No. 205-6 at 3.) In August, Plaintiff again refused to sign the consent form but later signed after altering it. (ECF No. 205-5 at 6; No. 205-6 at 2.) He was informed that the form was not valid because he had altered it and then he stated that he no longer wanted to sign the form. (ECF No. 205-6 at 1-2.)

Plaintiff later agreed to sign the consent form, which he in fact signed on September 11, 2006. (ECF No. 205-5 at 50; No. 205-5 at 5.) Plaintiff had a CT scan of his abdomen performed at SCI-Smithfield on November 8, 2006, which returned normal. (ECF No. 205-5 at 10.) He was transferred back to SCI-Greene on November 11, 2006. (ECF No. 205-5 at 48-49.)*fn4

3.2007

Plaintiff had a physical examination performed by Dr. Minhi Park on April 12, 2007. (ECF No. 205-5 at 48.) Dr. Park reviewed the results of Plaintiff's lab tests performed in March 2007 and noted that Plaintiff's vital signs were stable. (ECF No. 205-5 at 48.)

On May 11, 2007, Plaintiff was transferred to Lancaster County concerning his criminal matters. (ECF No. 205-5 at 2.) Upon his return on June 7, 2007, he was examined by a nurse who noted that he was in no acute distress and had no injuries from the transport. (ECF No. 205-5 at 48.)

On June 11, 2007, Plaintiff was seen by Diggs for complaints of rectal bleeding. (ECF No. 205-5 at 47.) He reported bleeding on and off for about a year. (ECF No. 205-5 at 47.) He stated that it had gotten worse while he was in Lancaster. (ECF No. 205-5 at 47.) He also wanted to discuss his chest pain and Lupus. (ECF No. 205-5 at 47.) Diggs performed a rectal examination and found no external lesions. (ECF No. 205-5 at 47.) He was given instructions on obtaining three consecutive stool samples for testing. (ECF No. 205-5 at 47.) Diggs also discussed testing for HIV, to which Plaintiff was agreeable. (ECF No. 205-5 at 47.) Plaintiff's chart was given to Dr. Jin for review. (ECF No. 205-5 at 46.) On June 15, 2007, Plaintiff was given three hemoccult test kit slides and instructed on how to use them. (ECF No. 205-5 at 21, 46.) Dr. Jin reviewed Plaintiff's chart and Diggs' rectal examination. (ECF No. 205-5 at 46.) He noted that he was going to wait for the test results. (ECF No. 205-5 at 46.) Plaintiff returned two hemoccult test slides, one of which showed the presence of occult blood and one of which did not. (ECF No. 205-5 at 45.) On June 18, 2007, Dr. Jin noted the hemoccult test results and that he would follow-up as needed. (ECF No. 205-5 at 45.)

Later in June, Plaintiff refused to consent to the HIV testing and refused all blood work that had been ordered by Dr. Jin on June 18, 2006. (ECF No. 205-5 at 21, 45.) On June 27, 2007, a nurse noted that Plaintiff had an itchy rash on his right axilla, right arm, chest, and groin area. (ECF No. 205-5 at 45.) Dr. Jin was notified and he ordered Benadryl for the affected areas. (ECF No. 205-5 at 20, 45.) Plaintiff was seen by Diggs the following day and reported having a rash for 24 hours. (ECF No. 205-5 at 44.) Plaintiff reported little response from the Benadryl. (ECF No. 205-5 at 44.) He denied allergies or taking over the counter medications. (ECF No. 205-5 at 44.) Her assessment was dermatitis of an unknown etiology. (ECF No. 205-5 at 44.) She ordered Amlactin cream and a Medrol dose pack. (ECF No. 205-5 at 20.) The issue was discussed with Dr. Jin, who ordered Plaintiff Vistaril. (ECF No. 205-5 at 20.) He was housed in the infirmary for treatment. (ECF No. 205-5 at 20.)

On July 29, 2007, Plaintiff reported improved symptoms and the rash resolving. (ECF No. 205-5 at 43.) He stated that the itching was gone, and he was allowed to return to his cell after being examined by Dr. Jin. (ECF No. 205-5 at 42-43.) Dr. Jin examined Plaintiff the next day. (ECF No. 205-5 at 42.) He felt that Plaintiff may have had an allergic reaction, which responded to steroids and antihistamines. (ECF No. 205-5 at 42.) Plaintiff was discharged back to his cell and the Benadryl was discontinued. (ECF No. 205-5 at 19, 42.)

On August 1, 2007, Plaintiff complained that the rash had returned and he also complained of pain from his Lupus. (ECF No. 205-5 at 41.) He was seen by Dr. Jin on August 3, 2007. (ECF No. 205-5 at 41.) Dr. Jin examined Plaintiff and found no rash on his trunk or upper extremities. (ECF No. 205-5 at 41.) The lower extremities were improving and had a fading rash. (ECF No. 205-5 at 41.) Plaintiff stated that he still had some itching and Dr. Jin ordered Benadryl. (ECF No. 205-5 at 19, 41.)

Plaintiff again complained of a rash on November 16, 2007. (ECF No. 205-5 at 40.) He was seen by nurse practitioner Michelle Lukas whose assessment was dermatitis of an unknown etiology. (ECF No. 205-5 at 40.) She ordered Benadryl, and Plaintiff was kept in the infirmary for 23-hour observation. (ECF No. 205-5 at 18, 39-40.) He was later seen by Diggs who ordered a Medrol dose pack and calamine lotion. (ECF No. 205-5 at 18.) He was discharged from the infirmary and sent back to his cell. (ECF No. 205-5 at 18.)

4.2008

On April 5, 2008, Plaintiff was seen by Dr. James Caramanna for abrasions to his right wrist secondary to handcuffs. (ECF No. 205-5 at 39.) He claimed that he was assaulted by corrections officers while being transported to a video conference for a civil suit and that the officers placed his handcuffs on too tightly. (ECF No. 205-5 at 38.) Plaintiff was examined and there were no neurological deficits noted, only superficial abrasions. (ECF No. 205-5 at 39.) He was offered medication, which he declined, and Dr. Caramanna ordered an x-ray of both wrists, which returned normal. (ECF No. 205-5 at 18, 39; No. 209-1 at 23.) There was no evidence of any new fracture. (ECF No. 209-1 at 23.) On April 7, 2008, he saw Lukas who examined his writs and found that he had full range of motion and minimal swelling. (ECF No. 205-5 at 38.) He was able to make a fist. (ECF No. 205-5 at 38.) Her assessment was that he had a minor abrasion and she ordered Motrin. (ECF No. 205-5 at 17, 37.)

Dr. Jin conducted an examination on April 8, 2008. (ECF No. 205-5 at 37.) He noted that Plaintiff had not been seen in several months. (ECF No. 205-5 at 37.) There was no evidence of any dermatological problem. (ECF No. 205-5 at 37.) He ordered several lab tests, which included DP II, ANA, and anti-dsDNA tests. (ECF No. 205-5 at 17.) He also ordered a second rheumatology consult with Dr. Seaman. (ECF No. 205-5 at 17.)

The following day, Plaintiff complained of chest, stomach, back, neck, spinal, kidney, and joint pain. (ECF No. 205-5 at 36.) He stated that his pain was caused by Lupus and his abdominal pain increased if he ate too much, too quickly. (ECF No. 205-5 at 36.) He also had a fear of moving his bowels because of rectal bleeding. (ECF No. 205-5 at 36.) He was examined and the nurse practitioner noted that he had good bowel sounds and no enlarged organs. (ECF No. 205-5 at 35-36.) She noted that a rheumatology consult was pending, she ordered Diprosone cream, and she was going to schedule him for a rectal exam. (ECF No. 205-5 at 35-36; No. 209-2 at 7.)

On April 14, 2008, he complained to Diggs of continuing pain in his right wrist. (ECF No. 209-3 at 35.) He reported increased irritation with writing or typing. (ECF No. 209-3 at 35.) His exam showed that he had full range of motion in the wrist. (ECF No. 209-3 at 35.) His grip strength was 4/5. (ECF No. 209-3 at 35.) He had no bony deformity. (ECF No. 209-3 at 35.) The Motrin was discontinued and Naprosyn was ordered. (ECF No. 209-2 at 7.)

Plaintiff was seen by Dr. Seaman on April 16, 2008. (ECF No. 209-1 at 21.) Dr. Seaman noted in his report that Plaintiff's CT scan of the abdomen was unremarkable but that his labs from 2006 showed a higher titer DNA and positive double-stranded DNA. (ECF No. 209-1 at 21.) Plaintiff stated that he continued to have an intermittent rash but that his last "outbreak" was in November 2007. (ECF No. 209-1 at 21.) He also stated that he continued to have vague abdominal pains and "heart pains" and vague pain in his hands, wrists, neck, and back. (ECF No. 209-1 at 21.) Following an examination, Dr. Seaman noted that he suspected Plaintiff had Subacute Cutaneous Lupus Erythematosus but he doubted Plaintiff had idiopathic Systemic Lupus Erythematosus. (ECF No. 209-1 at 21.) He also felt that Plaintiff could have secondary Sjogren's syndrome. (ECF No. 209-1 at 21.) He noted that repeat ANA, DNA, and SS-A/B tests were pending. (ECF No. 209-1 at 21.) Because Plaintiff also complained of rectal bleeding, he encouraged Plaintiff to follow-up with Dr. Jin for consideration of a gastroenterology referral. (ECF No. 209-1 at 21.)

On April 17, 2008, Diggs went to see Plaintiff but he was not in his cell. (ECF No. 209-3 at 34.) He had been placed on restricted movement by security following his return from Dr. Seaman's consultation. (ECF No. 209-3 at 34.) Also on that day, Dr. Jin saw Plaintiff and noted that Plaintiff was in no distress and showed no physical evidence of discomfort. (ECF No. 209-3 at 34.) Plaintiff claimed that the guards had retaliated against him earlier in the month by placing his handcuffs on too tightly. (ECF No. 209-3 at 34.) Dr. Jin explained that the x-rays of his wrists were negative. (ECF No. 209-3 at 33.) He also discussed Plaintiff's visit with Dr. Seaman and noted that Dr. Seaman's report was still pending. (ECF No. 209-3 at 33.)

Dr. Jin examined Plaintiff on April 28, 2008, after he complained of chest, heart, back, neck, spinal, kidney, wrist, and joint pain. (ECF No. 209-3 at 31-32.) He noted that Plaintiff was able to walk into the triage room with a normal gait and in no distress. (ECF No. 209-3 at 31.) Dr. Jin examined Plaintiff and documented his findings. (ECF No. 209-3 at 31-32.) There were no rashes found on Plaintiff's face, upper extremities, or lower extremities. (ECF No. 209-3 at 31-32.) He had full range of motion in his knees. (ECF No. 209-3 at 31-32.) His chest was clear. (ECF No. 209-3 at 31.) His heart had regular rate and rhythm with no murmurs. (ECF No. 209-3 at 31-32.) He also reported no rectal bleeding at that time. (ECF No. 209-3 at 32.) Plaintiff left the exam room while Dr. Jin was explaining his findings. (ECF No. 209-3 at 32.)

On May 23, 2008, he saw a nurse practitioner for the same complaints. (ECF No. 209-3 at 30.) She scheduled him to see Dr. Jin, whom he later saw on May 28, 2008. (ECF No. 209-3 at 30.) Plaintiff complained that he was in the same pain he had been in for the last four years and that he never received any pain medication. (ECF No. 209-3 at 30.) Dr. Jin observed that Plaintiff walked into the triage room without any difficulty, with a normal gain, and in no distress. (ECF No. 209-3 at 30.) He found no significant findings upon examination and noted that Plaintiff had been given numerous pain medications on many occasions. (ECF No. 209-3 at 29.) He ordered Motrin, a DP II test, and an ESR test. (ECF No. 209-2 at 6.) Plaintiff's lab results were reviewed on June 6, 2009. (ECF No. 209-3 at 29.) It was noted that Plaintiff had elevated protein and globulin levels and an ESR of 23. (ECF No. 209-3 at 29.) Medical was going to follow-up as needed. (ECF No. 209-3 at 29.)

Plaintiff refused a rectal examination on July 14, 2008. (ECF No. 209-3 at 28.) On August 6, 2008, Dr. Jin took pictures of Plaintiff's scalp and neck for his upcoming dermatological consult with dermatologist Dr. Stephen M. Schleicher. (ECF No. 209-2 at 5; No. 209-3 at 28.) Plaintiff had a teledermatology consultation with Dr. Schleicher on August 8, 2008, but was upset, angry, and refused to speak because he wanted to see the doctor in person. (ECF No. 209-3 at 27-28.) The consultation was terminated because of Plaintiff's refusal to cooperate. (ECF No. 209-3 at 27-28.) However, Dr. Jin ordered several lab tests following the consult. (ECF No. 209-2 at 5.)

On August 18, 2008, Dr. Schleicher issued a report based on the materials sent to him by Dr. Jin and from his observation of Plaintiff during the consultation. (ECF No. 209-1 at 19.) He noted that Plaintiff was belligerent and uncommunicative during the teledermatology session. (ECF No. 209-1 at 19.) He reported that Plaintiff stated he was "tricked" by the medical staff, having been told that Dr. Schleicher would examine him in person, and the session was terminated because Plaintiff would not communicate unless his lawyer was present. (ECF No. 209-1 at 19.) Dr. Schleicher recommended repeat ANA tests and noted that Plaintiff had no signs of Lupus except for his lab results. (ECF No. 209-1 at 19.) As such, he did not feel that therapy for the disease was necessary. (ECF No. 209-1 at 19.) He did, however, report that a lupus band test could be performed, which involved a punch biopsy of the skin to check for immunoglobulin deposition, a sign of systemic lupus. (ECF No. 209-1 at 19.)

Dr. Jin reviewed Plaintiff's lab results on August 20, 2008, and he reviewed Plaintiff's chart on November 3, 2008. (ECF No. 209-3 at 27.) He noted that Plaintiff had not submitted a sick call request since August 8, 2008. (ECF No. 209-3 at 27.) He ordered repeat lab work. (ECF No. 209-2 at 5.) Dr. Park reviewed Plaintiff's lab work on November 11, 2008, and she noted no significant changes from prior lab testing. (ECF No. 209-3 ...


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