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Romero v. Folino

United States District Court, W.D. Pennsylvania

February 4, 2014

RICHARD ROMERO, JR., Plaintiff,
v.
LOUIS FOLINO, Facility, Superintendent, JOHN/JANE DOE, Director of Bureau of Health Care Services, DR. BYUNGHAK JIN, Facility Medical Director, NEDRA GREGO, RN Supervisor, JOHN MCANANY, RN Supervisor, Defendants.

REPORT AND RECOMMENDATION ECF Nos. 11, 27.

LISA PUPO LENIHAN, Chief Magistrate Judge.

I. RECOMMENDATION

For the reasons stated herein, it is respectfully recommended that the DOC Defendants' Motion to Dismiss (ECF No. 27) be granted on the ground that Plaintiff has failed to allege sufficient personal involvement on the part of Defendant John/Jane Doe but be denied on all other grounds. The Complaint should therefore be dismissed in its entirety against Defendant John/Jane Doe.

It is further recommended that Dr. Jin's Motion to Dismiss (ECF No. 11) be granted on the ground that Plaintiff has failed to state an equal protection claim but be denied on all other grounds. Plaintiff's equal protection claim should therefore be dismissed with prejudice.

II. REPORT

Plaintiff Richard Romero, Jr. ("Plaintiff') is an inmate in the custody of the Pennsylvania

Department of Corrections and is currently incarcerated at the State Correctional Institution at Greene ("SCI-Green"). He initiated this pro se prisoner civil rights action on May 17, 2013. In his Complaint (ECF No. 5) he alleges violations of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Generally, he alleges that he was denied medical treatment for a fungal infection in his toenail.

Defendants include employees and health care providers for the Pennsylvania Department of Corrections ("DOC") at SCI-Greene. They include Louis Folino (Superintendent); Nedra Grego (Registered Nurse Superyisor), John McAnany (Registered Nurse Supervisor), Dr. Byunghak Jin (Facility Medical Director), and John/Jane Doe (Director of the Bureau of Health Care Services).

Dr. Jin filed a Motion to Dismiss on July 11, 2013, and the remaining Defendants ("DOC Defendants") filed a Motion to Dismiss on August 8, 2013. (ECF Nos. 11, 27.) Plaintiff responded to both Motions. (ECF Nos. 29, 31.) Dr. Jin filed a reply to Plaintiffs response. (ECF No. 36.) The Motions are now ripe for review.

A. Background

The following allegations are included in Plaintiff's Complaint.

On November 12, 2011, Plaintiff submitted a sick call request seeking treatment for a toenail infection, which he believed to be Onychomycosis, a fungal infection of the nail. (ECF No. 5 at ¶ 10.) At that time he paid a $5.00 sick call fee. Id . On the sick call request form, he stated that his toenails had turned green and that one was beginning to deteriorate. Id. at ¶ 11. Petitioner alleges that Ms. West accosted him in the Restricted Housing Unit ("RHU") on November 14, 2011. Id. at ¶ 12. In disregard to his medical confidentiality, she demanded to see the infection then walked away from his door stating that there was nothing she could do to treat his condition. Id. at ¶¶ 13-14.

On November 17, 2011, Petitioner filed Grievacne #390254, complaining about the medical department's refusal to provide him with treatment for his infection. Id. at ¶ 15; (ECF No. 5-1 at p.1.) His grievance was denied by Nurse Supervisor Nedra Grego who stated that Ms. West, PAC assessed his toenails and concluded that there was "minimal discoloration" and that he did not have a fungal infection. Id. at ¶ 16; Id. at p.2. His appeal was denied by Supervisor Folino on January 10, 2012. (ECF No. 5-1 at p.4.) In response to his final appeal, Chief Grievance Officer Varner stated that the record had been reviewed by the Bureau of Health Care Services ("BHCS") who determined that Plaintiff was being provided with reasonable and appropriate medical care. Id. at p.6. It was also noted that Plaintiff had been evaluated by Dr. Jin on January 12, 2012, at which time the pros and cons of treatment were discussed. RI. After discussing treatment options, Plaintiff elected not to start treatment at that time. Id.

On December 18, 2011, Plaintiff filed Grievance #394074. (ECF No. 5 at ¶ 20); (ECF No. 5-5 at p.1.) He complained that Ms. West falsely reported the condition of his infection, that she was incorrect in her medical assessment, that he was wrongfully and fraudulently denied his $5.00 sick call fee because treatment was not provided, and that he would file suit if he was not reimbursed his $5.00 fee or provided with treatment for his infection. Id . His grievance was denied by Nurse McAnany on January 5, 2012, who stated that Plaintiff's allegations were false and that there was a sick call system in place that he could utilize if he believed his condition worsened. Id . ¶ 22; Id. at p.2. Plaintiff's appeal was denied by Superintendent Folino on January 27, 2012. (ECF No. 5-5 at p.4.) In response to his final appeal, wherein Plaintiff complained that the Superintendent was biased, Chief Grievance Officer Varner again noted the review by the BHCS and the evaluation by Dr. Jin on January 12, 2012.[1] (ECF No. 5 at ¶¶ 23-24); (ECF No. 5-5 at pp.5-6.)

Plaintiff disagrees with Varner's representation of his visit with Dr. Jin. Instead, he alleges that Dr. Jin "glanced" at his feet and diagnosed the condition as Onychomycosis. Id. at ¶¶ 24, 25. He told Plaintiff that the condition would stay with him for the rest of his life and informed him that he would not prescribe any treatment. Id . When Plaintiff questioned Dr. Jin's judgment, Dr. Jin allegedly became hostile and started to yell at Plaintiff. Id. at ¶ 26.

On January 12, 2012, Plaintiff filed Grievance #397448. Id. at ¶ 27; (ECF No. 5-7 at p.1.) In the grievance he complained that Dr. Jin would not prescribe him treatment to rid his fungal infection and that Dr. Jin became verbally abusive when Plaintiff inquired as to why he would not do so. Id . His grievance was denied by Tracy Shawley on grounds that the issue had already been addressed in his prior Grievances #394074 and #390254. Id. at ¶ 28; (ECF No. 5-7 at p.2.) Superintendent Folino agreed with Tracy Shawley and Plaintiff's grievance appeal was denied on January 27, 2012. Id. at ¶ 29; (ECF No. 5-7 at p.4.) His final app was dismissed by Varner on March 13, 2012. Id .; (ECF No. 5-7 at p.6.)

Plaintiff claims that Defendants "covered up" their refusal to provide him with medical treatment. (ECF No. 5 at ¶ 31.) He also alleges that Defendants refused to process his sick call slips dated January 2, 2013, and January 8, 2013. Id. at ¶ 32. He complained about this in Grievance # 443374, that he filed on January 9, 2013. Id. at ¶ 33; (ECF No. 5-8 at p.1.) He acknowledged the grievances that he previously had filed and stated that he had requested and was denied treatment for his toenail infection on two prior occasions. (ECF No. 5-8 at p.1.) He said that he was denied treatment the first time because Ms. West claimed that he had lied about the condition of his toenail and he said that he was denied treatment the second time under the guise that he refused it. Id . He claimed that medical staff were falsifying his records and he requested disciplinary action against Dr. Jin, Nurse Grego, Nurse McAnany and the rest of the medical staff. Id . CHCA Irma Vihlidal stated that there was nothing in Plaintiff's medical chart to indicate that he required treatment and she denied Plaintiff's grievance on January 24, 2013. Id. at p.2; (ECF No. 5 at ¶ 34.) On appeal, Plaintiff claimed that the alleged reasons why he was not provided with medical care were contradictory and false. Id. at p.3; Id . ¶¶ 34, 35. He posed the question of why Dr. Jin was talking about treatment options with him if there was nothing in his chart to indicate that he needed treatment. Id . Superintendent Folino dismissed Plaintiff's appeal stating that Plaintiff made discourteous comments to the medical staff. Id. at p.4; Id. at ¶ 36. Plaintiff's final appeal was dismissed because it was not presented in a courteous manner. Id. at pp.5-6; Id. at ¶ 37.

Plaintiff alleges violations under the Eighth and Fourteenth Amendments. He claims that Defendants were deliberately indifferent to his serious medical needs and that he was denied equal protection of the laws. Specifically, his alleges that:

1. Defendants deliberately denied him medical treatment. Id. at ¶ 38.
2. Defendants refused to investigate his claims. Id. at ¶ 38.
3. Defendant John/Jane Doe refused to investigate contrary claims that were relied on to deny him medical treatment. Id. at ¶ 39.
4. Defendants Nurse Grego, Nurse McAnany, and Superintendent Folino refused to investigate the malfeasance of Ms. West when the matter was brought to their attention ...

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