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Benjamin Velasquez v. David Diguglielmo

September 28, 2012


The opinion of the court was delivered by: Juan R. Sanchez, J.


Pro se Plaintiff Benjamin Velasquez, a prisoner in the State Correctional Institution (SCI) in Albion, Pennsylvania (SCI--Albion), who was formerly housed in the State Correctional Institution in Graterford, Pennsylvania (SCI--Graterford), brings claims pursuant to 42 U.S.C. § 1983 against various prison personnel, alleging violations of his First, Eighth, and Fourteenth Amendment rights. Velasquez's First and Fourteenth Amendment claims arise out of his placement in administrative custody at SCI--Graterford on two separate occasions in February 2008 and subsequent transfer to the State Correctional Institution in Huntingdon, Pennsylvania (SCI--Huntingdon), in June 2008, allegedly in retaliation for grievances he filed about his inadequate medical care. Velasquez also alleges Defendants violated his Eighth Amendment rights by denying him treatment for his anxiety and insomnia during his stay in administrative custody from February to June 2008. All Defendants have moved for summary judgment.*fn1 For the reasons set forth below, Defendants' motions will be granted.


Velasquez is an inmate with a variety of medical issues, including meatal stenosis, a urologic problem*fn3 ; hypertension; and chronic low back pain. Of particular relevance to this case, he has also suffered from anxiety and insomnia for which he has been prescribed Klonopin and other similar medications intermittently over the past ten years. Dep. of Benjamin Velasquez 19, Nov. 29, 2011; ECF No. 100 at 26 (progress notes reflecting a February 2006 diagnosis of "Anxiety Disorder NOS"). At some point in 2007, a doctor or psychologist at SCI--Graterford discontinued Velasquez's prescription for Klonopin. Velasquez Dep. 84-87.

On December 17, 2007, Velasquez met with Holly Schweitzer, a Certified Registered Nurse Practitioner, concerning the renewal of his anxiety and insomnia medication. Id. at 22. Under the supervision of Dr. Mark Fishstein, a psychiatrist, Schweitzer prescribed Remeron for Velasquez. Id. at 22-24; Schweitzer Aff. ¶ 3. Velasquez took the new drug, but experienced unpleasant side effects. Velasquez Dep. 22, 24. He complained to Schweitzer, who thereafter arranged for him to meet with Dr. Fishstein on December 20. Id. at 25. Velasquez contends Dr. Fishstein advised him Fishstein would put him back on Klonopin; however, his medication did not change. Id. at 26; ECF No. 95 at 30.

On January 10, 2008, Velasquez saw Schweitzer in the dispensary area of the prison and asked to speak with her. Velasquez Dep. 26. Velasquez told Schweitzer he was having side effects from his medication and requested new medication from her, noting he had previously been told he would be put back on Klonopin. Id. at 36-37, 124. Velasquez also asked Schweitzer who her boss was and told her he was going to write to her boss in Harrisburg because he was not being treated for his medical condition. Id. at 125.

Schweitzer thereafter completed an incident report in which she described her encounter with Velasquez-an encounter she characterized as "inappropriate contact"-as follows:

The above inmate [i.e., Velasquez] saw me entering the nurse's office on the evening of Thursday, Jan 10th, at approximately 6:45 p.m. The inmate followed me, and was waiting for me outside the office when I exited. At that time, there were a few people inside the dispensary, but no other security present in the hallway. The inmate stated, "hey I need to talk to you". I told the inmate I did not have time at the moment to speak with him. He said, "I had a problem with that medication", I replied, "please put in a slip to medical or psychiatry, requesting to be seen".

The inmate then stated, "who is your boss", "I am going to write your boss in Harrisburg".

I then exited the area, as I was not comfortable with the way the inmate approached me, and had already directed him to the appropriate action if there was a concern in regard to medication.

Schweitzer Ex. C.*fn4 Velasquez agrees the first two paragraphs of Schweitzer's report are factually accurate; however, he disagrees with her reaction to the exchange, as he maintains he was respectful toward Schweitzer at all times and there were security stations and cameras nearby. Velasquez Dep. 28, 123, 125-26.

Around this time, Velasquez's brother appears to have called Superintendent DiGuglielmo's office and expressed concern about Velasquez's medical care. The precise nature of Velasquez's brother's concerns is not clear from the record. Velasquez has submitted an affidavit from his brother in which his brother affirms he spoke with a secretary in the Superintendent's office and asked for help, and spoke with "Doctor Schweitzer" about Velasquez's medical condition and medication; however, the affidavit does not indicate when the call occurred or what was discussed.*fn5

ECF No. 102-1 at 49. On January 11, 2008, J. Knauer, a Correctional Health Care Administrator, noted in Velasquez's file she had received a message from the Superintendent's office that Velasquez's brother was concerned about a "phone call to Dr. Fishstein." ECF No. 100-2 at 14. Knauer reported she had spoken with Fishstein and Schweitzer and Velasquez was "being followed [with an] appropriate treatment plan." Id.

On January 15, 2008, Schweitzer conducted a review of Velasquez's chart and discussed her security and medication concerns regarding Velasquez with Dr. Polmueller, the head of psychiatric services, recounting that Velasquez had become "verbally intimidating" when she declined to discuss medication issues with him in the dispensary on January 10. Schweitzer Ex. D. Polmueller agreed it was appropriate to avoid the use of benzodiazepines such as Klonopin for Velasquez because of his alcohol and drug history and current methadone use. See id.*fn6

Also on January 15, Velasquez met with A.C. King from the psychiatry department and Lt. Hawkins regarding his family members' calls to the prison about his deteriorating physical and mental health. ECF No. 95 at 30; Velasquez Dep. 139-40. During the meeting, Velasquez appears to have signed a mental health informed consent document, consenting to meet with the psychology department for the purpose of review by the Psychiatric Review Team (PRT). ECF No. 95 at 41. Velasquez contends King told him during the meeting he would no longer be treated by the mental health department, but would be treated by regular sick call, and that the informed consent memorialized his agreement to this plan. Velasquez Dep. 139-41.*fn7

The following day, a PRT meeting was held to review Velasquez's need for psychiatric care. Schweitzer Ex. H; see also Schweitzer Ex. E. At the meeting, which was attended by representatives of the psychology, psychiatry, and medical departments, a decision was made to remove Velasquez from the mental health roster and to have the medical department address his treatment needs. Schweitzer Exs. E, H. This decision was based in part on the participants' determination that there was no need for Velasquez to continue on the mental health roster "when no identifiable[] psychiatric disorder was present." Schweitzer Ex. E. Participants also agreed it was unnecessary to treat Velasquez's insomnia with medication. Id.

In late January or early February 2008, Velasquez complained to Dr. Stefanic about his damaged penis, an interaction he characterizes as a "verbal grievance." Velasquez Dep. 114-15. On February 4, Velasquez submitted informal grievances to Correctional Health Care Administrator Myron Stanishefski regarding the inadequacy of the treatment he was receiving for the injuries to his penis, and to Charles Fixx, the Director of Psychological Services, regarding his need for treatment for his anxiety and insomnia.*fn8 Decl. of Wendy Shaylor Ex. A. Stanishefski responded on February 19, noting Velasquez was scheduled to see both the urologist and Dr. Stefanic and directing him to bring his concerns to their attention. ECF No. 100 at 76. Velasquez also appears to have received a response to his memo to Fixx, as there is a handwritten note on some versions of the memo stating "[o]nly doctors can evaluate/treat and/or prescribe medication" and directing Velasquez to "work conjunctively w/medical and MH staff in determining the best form of treatment for your individual needs," although it is not clear who wrote the note. ECF No. 95 at 30.

On February 11, Licensed Psychology Manager Robert Dromboski met with Velasquez to inform him he had been removed from the mental health roster due to the lack of an "identified disorder to treat," and he was no longer to request psychiatric assistance for his insomnia as the medical department would be coordinating all of his care. See Schweitzer Ex. F; Shaylor Decl. Ex.

A. Dromboski thereafter sent an email to Schweitzer, copied to Stanishefski, Fixx, and Mental Health Director Robert Maier, reporting on the meeting. Schweitzer Ex. F.

On February 18, Velasquez filed a formal grievance (no. 218661) regarding the prison's failure to treat his insomnia and other medical problems. Shaylor Decl. Ex. A. Velasquez alleged a pattern of deception by prison officials, including King's representation on January 15 that staff would meet with him "in a few days" about the treatment of his insomnia and Dromboski's representation on February 11 that Stanishefski would "call [him] over" on February 13 to treat him for his insomnia, neither of which happened. Id. He also referred to the medical problems he had experienced from taking Trazodone and requested "proper medication; penis repaired; [and] monetary compensation." Id. Although Velasquez submitted his grievance on February 18, the grievance coordinator at SCI--Graterford did not receive it until two days later on February 20. Id.; Shaylor Decl. ¶ 4.

On February 19, concerned by the psychology department's delay in communicating the decision to remove Velasquez from the mental health roster to him, Schweitzer sent a letter to William Radle, the Lieutenant assigned to internal security at SCI--Graterford, following up on her earlier incident report regarding Velasquez. Schweitzer Ex. H. In her letter, Schweitzer elaborated on the fear she felt during her January 10 encounter with Velasquez based on his demeanor in approaching her that night, as well as on an earlier occasion in December 2007, when he "presented to [her] as unreasonable and demanding in his pursuit of a particular medication." Id. Schweitzer explained she had omitted details of the fear element of the encounter from her original incident report believing the situation would be promptly addressed by the psychology department; however, given the delay in enacting the PRT decision, she continued to have safety concerns regarding Velasquez. In particular, Schweitzer noted Velasquez apparently had been present in the "J treatment area" (presumably within the mental health department) on January 31, notwithstanding the decision made at the PRT meeting two weeks earlier.*fn9 Id. Schweitzer's letter concluded by requesting a separation from Velasquez due to her fear and apprehension of him and "the unpredictability of possibly meeting him again within the prison." Id.

The following day, Radle placed Velasquez in administrative custody in the Restricted Housing Unit (RHU) pending an investigation of Schweitzer's allegations. Radle Decl. ¶ 7 & Ex.

C. The form memorializing Radle's action lists the "incident date" as January 10, 2008, the date of Velasquez's encounter with Schweitzer in the dispensary, but does not specifically mention Schweitzer, instead describing the reason for the action as "the inmate is a danger to himself/herself or others." Radle Decl. Ex. C.

On February 22, Radle interviewed Schweitzer unofficially and reported the following to DiGuglielmo and Deputy Superintendents John Murray, Michael Lorenzo, and Alan Williamson:

[i]t appears that inmate Velasquez is pursuing RN Schweitzer, in what she described as inappropriate manner, but I cannot determine at this point if its over an attraction he has for her or if its over an issue he has with her concerning his medication. Inmate Velasquez has been known to sell other medications he has been prescribed and was asking RN Schweitzer to recommend he be place[d] on Klonopin.

ECF No. 95 at 54; Radle Decl. ¶¶ 9-10. Radle also advised Schweitzer had requested a separation from Velasquez, whom he had placed in administrative custody "pending direction from PRC [i.e., Program Review Committee]." ECF No. 95 at 54; Radle Decl. ¶ 10.

Because Velasquez had been transferred to the RHU, he missed a scheduled appointment with Dr. Stefanic on February 22; however, he was seen in the RHU by Dr. Arias for renewal of ...

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