United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, Chief District Judge.
For the reasons stated herein, it is respectfully recommended that the Court grant the pending Motions to Dismiss filed at ECF Nos. 28, 31 and 39. Although unnecessary if Defendants' Motions to Dismiss are granted, it is further recommended that the Court grant Plaintiff's Motion for Transcripts filed at ECF No. 60, and allow Plaintiff to obtain a transcript of the hearing held before the undersigned on November 18, 2013. However, Plaintiff should be required to pay for the cost of the transcript in accordance with the fees of this Court.
Plaintiff William Basemore ("Plaintiff") is an inmate in the custody of the Pennsylvania Department of Corrections and currently incarcerated at the State Correctional Institution at Greene (SCI-Greene). He initiated this pro se prisoner civil rights suit on May 13, 2013, alleging numerous violations of his constitutional rights arising out of injuries he sustained while employed as a maintenance worker in the prison and his medical care and housing accommodations thereafter. Defendants include various employees of the Department of Corrections ("DOC") and several health care providers at SCI-Greene. The DOC Defendants include: Irma Vihlidal (Correctional Health Care Administrator); Louis Folino (SCI-Greene Superintendent); Denise Hilberting (Registered Nurse); John McAnany (Registered Nurse Supervisor); Nedra Rice-Grego (Registered Nurse Supervisor); John Wetzel (Secretary of the PA DOC); Paul Palya (Unit Manager); Marie Balesterie (Counselor); T. McNair (Unit Manager); and Dorina Varner (Chief Grievance Officer). The Medical Defendants include: Dr. Jin (SCI-Greene Medical Director); Dr. Parks (Physician); and Dr. Balk (Physician). Service was unable to be effectuated on Defendant Leon Moore (PHS Administrator).
The allegations in Plaintiff's Complaint are as follows.
Plaintiff's Work Injuries and Subsequent Medical Treatment
Plaintiff injured his back and hip on November 26, 2011, while working as a custodial maintenance worker at SCI-Greene and transferring office and custodial supplies from a trailer to a janitorial cart. ECF No. 3, Plaintiff's Comp., at ¶ 18. CO Aberegg noticed that he was in pain and instructed him to sign up for sick call. Id . Approximately three days after the incident, he was evaluated by medical staff and prescribed Motrin 400mg for his pain. Id . He claims that the medicine did not help relieve his pain even though he often took two at a time, three times a day. Id.
While working on December 5, 2011, Plaintiff injured his back, hip, left leg and foot. Id . at ¶ 19. CO Aberegg notified medical and Plaintiff was immediately seen by Dr. Jin. Id . Plaintiff claims that he continued to take the prescribed Motrin throughout December and subsequent months. Id.
Plaintiff informed medical that the Motrin was not helping, so the dosage was increased to 600mg. Id . Plaintiff later complained that it still did not help his pain, so he was prescribed Flexirol for eight to ten days. Id . Because that did not help his pain either, numerous medications were prescribed thereafter, including Ultram, Naprosyn, Tylenol and Vicodin. Id . Plaintiff claims that those medications were similarly ineffective at ameliorating his pain. Id . He allegedly experienced sharp episodes of pain in cyclical patterns that worsened whenever he would sit during the evenings. Id.
Grievance #395403 and Related Medical Care
On December 30, 2011, Plaintiff filed Grievance #395403 claiming that his pain had worsened and seeking better medical treatment. Def. App'x Ex. 1, ECF No. 36-1 at p.2. His grievance was denied by Tracy Shawley because it was not submitted within 15 working days. Id . at p.3.
Plaintiff received an x-ray in January 2012. ECF No. 3 at ¶ 20. Dr. Jin informed him that the x-ray showed bone deterioration and abnormally aligned vertebrae. Id . Plaintiff received physical therapy three months later but he claims that he had to request it by sick call slip. Id.
In late January 2012, Plaintiff met with Dr. Parks and asked for an increase in pain medication, claiming that his pain worsened whenever he sat more than 15-20 minutes at a time. Id . at ¶ 24. Plaintiff claims that Dr. Parks' response was, "And then you will want more and more." Id . Plaintiff also claims that during this meeting he informed Dr. Parks that his pill-line pass was about to expire so Dr. Parks renewed it for the month of February. Id.
On January 30, 2012, Plaintiff sent a Request to Staff Member form to Vihlidal complaining about the statement that Dr. Parks had made to him regarding wanting an increase in his pain medication. Id . Plaintiff said that there was no history of drug use or abuse in his 48 years in the DOC. Id.
On February 3, 2012, Plaintiff submitted a sick call slip to medical but he was told to leave medical when he would not sign a cash slip. Id . He claimed that he did not have to sign a cash slip because the condition for which he was seeking treatment was chronic and on-going and he had already signed a cash slip for it once before. Id . Later that day, Plaintiff went to pill-line with his renewed pass but Nurse Hilberting took it from him, tore it up, and said, "You're done." Id.
Grievance #399797 and Related Medical Care
On February 6, 2012, Plaintiff filed Grievance #399797. Def. App'x Ex. 4, ECF No. 36-4 at pp. 2-3. He claimed that he was not getting the proper treatment for his pain and that he should not have to sign another cash slip because his medical problems were chronic and ongoing. Id . He sought reinstatement of and an increase in his medication and $1, 000 for every hour he had to go without it. Id . Plaintiff filed an amendment to his grievance on February 15, 2012. Id . at p.5. His main complaint was that he was not being prescribed or treated for his bone deterioration, which Dr. Jin had noted in his x-rays. Id . He requested to be seen by a chiropractor instead of a physical therapist. Id.
His grievance was denied by Nurse McAnany on February 22, 2013. Id . at p.4. Nurse McAnany stated that Plaintiff was required to sign a cash slip prior to being seen and that his pill-line pass was destroyed because his medications expired on February 3, 2012, and were not valid until the end of February. Id. He informed Plaintiff that he was scheduled to see Dr. Jin the following week and that Dr. Jin had agreed to put him back on the Naproxen at 500mg and Ultram at 50mg but he could not increase the Ultram dosage because he was already at the maximum dosage. Id . Plaintiff's medications were reinstated the morning of February 8, 2012. Id . at p.6. At this time he was given Vicodin and Robaxin, a muscle relaxer. Id.
Plaintiff appealed the denial of Grievance 399797 in an appeal dated February 27, 2012. Id . In the appeal, Plaintiff complained that his medication made him constipated and that he had requested but not received Metamucil. Id . He also complained that medical was not doing anything to correct his work injuries, choosing instead to treat him with narcotics. Id . He alleged deliberate indifference to his medical needs. Id.
The denial of his grievance was upheld by Superintendent Folino on March 14, 2012. Id . at p.7. On March 17, 2012, Plaintiff filed another amendment to his grievance. Id . at p.9. He complained that medical was continuously misdiagnosing him with arthritic pain when he believed he had sciatic nerve injury. Id . He further complained that medical was not giving him treatment for his bone deterioration and that the pain associated with it was starting to affect his ability to ambulate. Id . He again requested to be seen by a chiropractor instead of a physical therapist. Id . His request was denied by Tracy Shawley on April 13, 2012. Id.
Plaintiff appealed, and on April 5, 2012, Chief Grievance Officer Dorina Varner referred Plaintiff's grievance appeal to the Bureau of Health Care Services. Id . at p.8. On May 4, 2012, Varner denied Plaintiff's final appeal of Grievance #399797, stating that the review by Bureau of Health Care Services showed that the medical care with which Plaintiff was being provided was reasonable and appropriate, and there was no evidence of neglect or deliberate indifference to his medical needs. Id . at p.10.
Plaintiff's Housing Conditions and Request for ADA Accommodations
On April 16, 2012, Plaintiff sent a Request to Staff Member to CHCA Vihlidal regarding his housing conditions. ECF No.3 at ¶ 21. He informed her that the conditions of his confinement were counterproductive to his physical therapy because he had to climb stairs because his cell that was on the top tier, the stool in his cell did not have back support and the toilet in his cell did not have support or side-railings. Id.
Plaintiff was seen by his Physical Therapist, John, on April 19, 2012, at which time Plaintiff was told that the location of his problem was in his L5 and S1 vertebrae. Id . PT John advised Plaintiff that he needed to sit up straight to support his back. Id.
On April 16, 2012, Plaintiff submitted a Request to Staff Member to CHCA Vihlidal requesting handicap accommodations. Id . at ¶ 25. Plaintiff alleges that he never received a response to his Request so he forwarded a copy of the Request to CHCA Vihlidal's supervisor, Deputy Capoza, on April 24, 2012. Id . On May 8, 2012, CHCA Vihlidal finally responded informing Plaintiff that he would be placed on Dr. Jin's line to have his physical abilities re-evaluated. Id.
On May 23, 2012, Plaintiff submitted another Request to Staff Member to CHCA Vihlidal. ECF No. 36-2 at p.4. He complained that it had been fifteen day since he received her May 8, 2012 response informing him that he would be placed on Dr. Jin's line to have his physical abilities re-evaluated and he was seeking "information" that would put him in a "mental comfort zone" pending his up-coming evaluation because he was still working in a janitorial position and was concerned about physical strain that would worsen his condition. Id . Plaintiff alleges that his physical abilities were never re-evaluated by Dr. Jin. ECF No. 3 at ¶ 25.
Plaintiff was seen again by PT John on May 10, 2012. Id . at ¶ 22. Prior to adjustment, John informed Plaintiff that Plaintiff's hips did not rotate in sync when bending forward and backward. Id.
Plaintiff was seen by PT John once more on June 21, 2012. Id . at ¶ 23. John had to adjust Plaintiff's hips again to regain proper alignment. Id . John told Plaintiff that his L5 vertebrae was unaligned again and he advised Plaintiff for a second time to sit up straight and support his lower back. Id . John informed Plaintiff that a back brace was forthcoming. Id.
Plaintiff's Medical Records and Grievance #410387
Plaintiff submitted a Request to Staff to Nurse Supervisor Rice-Grego on April 23, 2012. ECF No. 3 at ¶ 25. He requested access to his medical records so that he could make copies. Id . He said that he was entitled to make copies pursuant to the Medical Records Act (Act 26), 42 Pa.C.S. §§ 6151-6161, and pursuant to the memorandum issued to all inmates by Secretary Wetzel on January 10, 2012, which concerned copying charges for medical records. Id . Nurse Rice-Grego responded by telling Plaintiff that he could not have copies of his medical file. Id.
On April 30, 2012, Plaintiff submitted Grievance #410387 with regard to the denial of his request to make copies of his medical records. ECF No. 36-2 at p.2. His grievance was denied by CHCA Vihlidal on May 17, 2012. Id . at p.3. She stated that the Directive issued by Secretary Wetzel did not apply to inmates and that pursuant to DOC policy the only exception to inmates receiving copies is when an inmate is representing himself in a court case. Id.
Plaintiff appealed the denial of his grievance. Id . at pp.6, 8. He contended that the denial of his request was based on a misinterpretation of his grievance and of the Medical Records Act. Id . He asked Superintendent Folino to remand the grievance to CHCA Vihlidal so that she could act in accordance with the Act. Id . Folino denied his appeal on June 29, 2012, stating that records are only released pursuant to DC-ADM 003. Id . at p.10. Plaintiff's final appeal to Chief Grievance Officer Varner was dismissed on August 10, 2012, for failing to submit required documentation for proper review. Id . at p.11. However, Plaintiff alleges that Superintendent Folino defaulted because he did not respond to the first level grievance appeal within the time allowed under DOC policy. ECF No. 3 at ¶ 25. Instead, the appeal was denied 22 days after it was submitted. Id.
Plaintiff submitted Grievance #411306 on May 7, 2012. ECF No. 35-3 at pp.2-3. He complained that he had sent a Request to CHCA Vihlidal, and also informed her superior, Deputy Capoza that the conditions of his confinement were problematic to his recovery. Id . He complained that he had to walk up and down stairs because his cell was on the top tier, that the toilet in his cell had no support railings and that the desk stool had no back support. Id . He sought to be assigned to a handicap cell per DC-ADM 006 policy, Reasonable Accommodations for Inmates with Disabilities; to be assessed for nerve and bone damage via nMRI and CAT scan, to undergo any invasive or non-invasive procedure deemed necessary; and to meet personally with CHCA Vihlidal. Id . Plaintiff's grievance was denied by Nurse Supervisor McAnany on May 28, 2012. Id . at p.4. Nurse McAnany stated that Dr. Jin believed Plaintiff did not require a handicap cell, an MRI or a CAT scan, and that Plaintiff was currently being provided with physical therapy and medication to improve his symptoms. Id.
Plaintiff appealed the denial of his grievance in an appeal dated June 4, 2012. Id . at p.5. He complained that Nurse McAnany did not do any investigation or research prior to denying his grievance and that he was not impartial or a doctor and therefore his observations should not be relied upon. Id . at p.5. Plaintiff's appeal was denied by Superintendent Folino on July 3, 2012. Id . at p.6. His final appeal was dismissed by Chief Grievance Officer Dorina ...