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Rock v. Asure

United States District Court, Middle District of Pennsylvania

March 6, 2014

WILLIAM ROCK, Plaintiff,
v.
DONNA ASURE, et al., Defendants.

Rambo Judge

REPORT AND RECOMMENDATION

Susan E. Schwab United States Magistrate Judge

The plaintiff, William Rock (“Rock”), a state prisoner currently detained at SCI Houtzdale, brings this civil rights action under 42 U.S.C. § 1983. The matter is presently proceeding via a second amended complaint. In his second amended complaint, Rock raises several constitutional claims under the Eighth Amendment deliberate indifference standard, in connection with a thumb injury he incurred while detained, post-sentencing, at the Monroe County Correctional Facility (“MCCF”). Pending before me are two motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, I recommend that the motions be granted.

I. Procedural History.

On October 5, 2011, Rock initiated this civil rights action by filing a complaint along with a motion to proceed in forma pauperis. Docs. 1 & 3. In the complaint, Rock named the following nine defendants: (1) Donna Asure (“Asure”), the Warden at MCCF; (2) Garry McFarland (“McFarland”), the Deputy Warden at MCCF; (3) Susan McCool (“McCool”), a Monroe County Commissioner; (4) Janet Weidensaul (“Weidensaul”), a Monroe County Commissioner; (5) John Doe Medical Company; (6) Dr. Jane Doe; (7) Nurse Jane Doe; (8) Linda Kelly (“Kelly”), the former Pennsylvania Attorney General; and (9) MCCF. Doc. 1 at 2. On October 13, 2011, Magistrate Judge Smyser conducted a screening analysis pursuant to 28 U.S.C. § 1915A and dismissed Rock's complaint without prejudice. Doc. 6. Judge Smyser further granted Rock leave to amend and leave to proceed in forma pauperis. Id.

On November 14, 2011, Rock filed his first amended complaint. Doc. 8. In the first amended complaint, Rock only named Asure, Dr. Jane Doe, and Nurse Jane Doe. Id. Thereafter, on November 17, 2011, Judge Smyser ordered that the amended complaint be served on the defendants; though, service could not be executed against the two Jane Does. Docs. 9, 11, & 12.

On December 1, 2011, Asure filed a motion to dismiss Rock's amended complaint. Doc. 16. Before the Court could issue a ruling on the merits, Rock filed a motion to amend the first amended complaint. Doc. 29. In his motion, Rock informed the Court that he had identified the two Jane Doe defendants. Id. at ¶ 2. Rock, however, failed to file a brief in support, and Judge Smyser deemed the motion withdrawn. Doc. 30. Nevertheless, Judge Smyser permitted Dr. Jane Doe to be substituted with Dr. Deborah Wilson (“Wilson”) and Nurse Jane Doe to be substituted for Grace Ramos-Huertas (“Huertas”). Id. As well, the Court later adopted Judge Smyser's Report and Recommendation wherein Asure's motion to dismiss was denied. Docs. 32 & 37.

After the Court denied Asure's motion to dismiss, Rock filed three motions to amend his first amended complaint. Docs. 46, 61, & 92. Rock's first motion to amend was dismissed for procedural reasons, see Doc. 58, and Chief Magistrate Judge Carlson determined that Rock's proposed second amended complaint failed to state a claim upon which relief could be granted, see Doc. 83. However, on December 17, 2012, I granted Rock's third motion to amend. Doc. 107.

On December 17, 2012, Rock filed his second amended complaint. Doc. 108. In his second amended complaint, Rock names the following 14 defendants: (1) Asure, (2) Wilson, (3) Huertas, (4) Paul James (“James”), (5) Dee Reiss (“Reiss”), medical staff at MCCF, (6) McFarland, (7) Richard Cuth (“Cuth”), grievance coordinator at MCCF, (8) McCool, (9) Theresa Merli (“Merli”), former Monroe County Commissioner and member of the MCCF Prison Board, (10) Todd Martin (“Martin”), the Monroe County Sherriff and member of the MCCF Prison Board, (11) David Christine (“Christine”), the Monroe County District Attorney and member of the MCCF Prison Board, (12) Marlo Merhige (“Merhige”), the Monroe County Controller and member of the MCCF Prison Board, (13) MCCF Prison Board, and (14) Monroe County. Doc. 108 at 2. The thrust of Rock's second amended complaint is that the defendants acted with deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. See generally, Doc. 108. As such, Rock seeks compensatory and punitive damages.

After Rock filed his second amended complaint, I screened it in accordance with 28 U.S.C. § 1915A. Doc. 109. I ultimately concluded that Rock failed to state a claim against McCool, Merli, Martin, Christine, and Mehrige - all members of the MCCF Prison Board, because Rock did not allege facts from which it could be reasonably inferred that their policies created an unreasonable risk of an Eighth Amendment violation, or, even if their policies did create such a risk, that they were aware of and indifferent to any risk. Id. at 8-9. As such, I recommended that those defendants be dismissed from the case. Id. On January 16, 2013, the Court adopted my recommendation. Doc. 137.

Subsequently, James, Huertas, Reiss, and Wilson filed a motion for summary judgment, a statement of facts, and corresponding brief in support.[1] Docs. 138, 139, & 140. Following an extension of time, Rock filed a brief in opposition (Doc. 149 & 149-1 at 1-4), two affidavits (Doc. 149-1 at 4-20; Docs. 149-1 at 21-25 & 149-2 at 1-17), and several exhibits (Docs. 149-2 at 19-25 & 149-3 at 1-16). The Medical Defendants did not file a reply brief and the time for doing so has since expired. Accordingly, the Medical Defendants' summary judgment motion is ripe for disposition on the merits.

Similarly, on May 17, 2013, Asure, Cuth, and McFarland filed a summary judgment motion, a statement of facts, and corresponding brief in support.[2] Docs. 162, 163, & 164. On June 13, 2013, Rock filed a brief in opposition and an answer to the Non-Medical Defendants' statement of facts. Docs. 167, 168, & 169. The Non-Medical Defendants did not file a reply brief, and their time for doing so has since lapsed. Accordingly, this motion is also ripe for disposition on the merits.[3]

II. Factual Statement.[4]

On September 29, 2009, Rock was sentenced in Pennsylvania state court to serve 5.5 to 12 years in state prison. After he was sentenced, Rock was placed in custody at MCCF pending transfer to a state correctional facility. See Doc. 163-7 at 5-6. On Sunday, October 11, 2009, while Rock was naked and cleaning himself, he fell inside of his cell at MCCF and injured his thumb on the toilet. Doc. 149-1 at 22, ¶ 6; see Doc. 163-1 at 1. Subsequently, Huertas came to examine Rock and noted abnormal joint movement in the left thumb. Id. at 2. Based on her notes, Huertas was ordered to send Rock to the Pocono Medical Center in order to rule out a possible bone fracture. Id.

At approximately 9:26 p.m., on that same evening, Rock was taken to the Pocono Medical Center, where he was seen by Dr. Robert Liegner (“Liegner”). Doc. 139-1 at 2; see Doc. 163-1 at 3-4. According to Rock's medical records, Liegner assessed Rock with Gamekeeper's Thumb and diagnosed him with a rupture of the left thumb ulnar collateral ligament. Doc. 139-1 at 2. Consequently, Liegner prescribed Tylenol with Codeine #3 (“Tylenol #3”). Id. at 5, 7. Rock was to take 1-2 Tylenol #3 tablets every four hours as needed. Id. Liegner also recommended that Rock consult with a hand specialist “later [that] week.” Id. at 7. Liegner also provided Rock with the names of two specialists that he (Rock) might contact for consultation. See id.

After he met with Liegner at Pocono Medical Center, Rock was returned to MCCF around 10:17 p.m. Upon Rock's return to MCCF, he informed Huertas and Wilson that he was in pain and that he needed to see a specialist “within 5 days.”[5]Doc. 149-1 at 23, ¶¶ 10-11. Rock, however, did not see a specialist within Liegner's recommended time frame. Nevertheless, Reiss' notes from October 23, 2009, reflect that Rock was scheduled to meet with a specialist at Lehigh Valley Orthopedics on November 4, 2009. Doc. 139-2 at 7. Moreover, according to Wilson, on October 12, 2009, she ordered that a consult with a specialist be scheduled for Rock. Doc. 139-10 at 4. Wilson further testified that she has no control over specialists' schedules, and Rock has not provided any evidence supporting the proposition that a specialist could have seen him within the same week that he injured his thumb.

On October 29, 2009, due to an undisclosed emergency at MCCF, Rock's appointment to see a specialist was rescheduled to November 11, 2009. Doc. 139 at ¶ 42. In addition to not knowing details about the emergency or who actually cancelled Rock's appointment, it remains unclear why his consultation needed to be cancelled since it was not scheduled to take place for another six days.

Subsequently, on November 2, 2009, Rock filed a grievance complaining that he had not yet seen a specialist. Doc. 163-4. Rock's grievance was received on November 5, 2009, and it was marked “denied” because Rock's consultation had already been rescheduled. See Id . McFarland was responsible for answering the grievance after Cuth investigated it by calling the medical department at MCCF. Doc. 163-8 at 2. As well, on the day after Rock's grievance was received, he was transferred to SCI Graterford. As a result, Asure never saw the grievance, because it was impossible for Rock to have completed the final step in the appeal process. See Doc. 163 at 52; see also Docs. 163-5 & 163-7 at 1-2. Also, Rock's rescheduled appointment was ultimately cancelled because he was transferred to SCI Graterford. Doc. 139 at 43; see Doc. 139-6 at 18. Rock has not adduced any evidence that Asure or any defendant at MCCF had the authority to delay or postpone his transfer to state custody, much less that any of the non-medical defendants were aware of Rock's medical condition prior to the filing of his grievance.

Prior to his transfer to SCI Graterford, Rock received only 1 Tylenol # 3 tablets four times per day, contrary to Liegner's original prescription. Doc. 149-1 at 23, ¶ 14. According to Wilson, however, a new prescription was written for Rock upon his return to MCCF, from the Pocono Medical Center, so that Rock could receive his medications within the prison's pill-dispense schedule. Doc. 139-10 at 3. In addition, Wilson testified that because Tylenol #3 is considered a controlled substance, the prison does not permit a prescription of “1 to 2” tablets per day. Id. Wilson clarified that the reason behind the policy is to prevent controlled substances from being left over inside of the prison in instances where the prisoner requires only one tablet. See Id . Pursuant to the new prescription, therefore, Rock was scheduled to receive only 1 tablet four times per day, as needed, for five days. Id. If the dosage did not work, Wilson would have raised the dosage to two tablets. Id. Further, the prescription was written only to cover the expected time period between the time of prescription ...


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