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Houser v. Folino

United States District Court, Western District of Pennsylvania

June 24, 2014

DARIEN HOUSER, Plaintiff,
v.
LOUIS S. FOLINO, Superintendent, SCI-Greene, DR. JIN, MD, PA DIGGS, and LUCAS-ANTONICH, [1]Defendants.

REPORT AND RECOMMENDATION TO DENY MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 193, 198)

Cynthia Reed Eddy United States Magistrate Judge

I. Recommendation

For the reasons set forth in this Report and Recommendation, the motions for summary judgment filed on behalf of Superintendent Louis S. Folino (ECF No. 193), and the Medical Defendants (ECF No. 198) should be denied.

II. Report

A. Pertinent Procedural History and Background

Amended Complaint (ECF No. 81) - The Operative Complaint

Plaintiff Darien Houser filed his Amended Complaint, pro se, on July 31, 2012. (ECF No. 81). The Amended Complaint alleges claims arising from the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C. § 12101, and various state trespass causes of action, and names dozens of defendants within the Pennsylvania Department of Corrections at his place of confinement, SCI-Greene, each of whom is an official, corrections officer, employee, agent or medical health care provider involved in treatment of Plaintiff’s numerous medical ailments and requests for treatment and in processing related grievances. This Court designated the Amended Complaint as the “operative complaint, ” and directed the Clerk of Court to file it as such. Order of August 6, 2012 (ECF No. 82), at 4-5.

Following discovery, Commonwealth Department of Corrections defendants filed a motion to schedule a mediation (ECF No. 132), which this Court granted. On November 20, 2012, this Court convened a mediation at SCI-Greene, at which Plaintiff and representative defendants for the categories of defendants, with their counsel, attended. Minute Entry (ECF No. 138). The mediation was unsuccessful for the most part, although Plaintiff agreed to withdraw any claims against Dr. Asad Kahn, M.D. Id. and Order of November 21, 2012 (ECF No. 139).

Shortly after the mediation, however, Mr. Houser filed a “Motion for Partial Voluntary Dismissal/ and or Notice of Voluntary Dismissal” (ECF No. 140), which stated, in its entirety and verbatim, as follows:

1. Plaintiff, wish to voluntarily dismiss all claims except claims as to Superintendent Folino, PA Diggs, [CRNP Michelle Lucas-Antanovich] and Dr. Jin, for failure to provide treatment and or to provide timely adequate and appropriate treatment as to Plaintiff’s Lump in chest, ringing of ears, mask on face and knot in right testicle. And Dr. Jin, PA Diggs and PA Lukas, failure to educate patient as to risk and side effects of medication prior to them being issued to the patient. Also above defendants’ failure to act, as to the denial and failure to provide medical treatment, that is still needed today.
* * *
Wherefore, for the foregoing reasons, Plaintiff request the partial voluntary dismissal be granted as mentioned in item one of this document and or recognize “NOTICE OF VOLUNTARY DISMISSAL” of the entire case be docket and filed pursuant to Rule 41(a)(1), (a)(i) F.R.Civ.P. without prejudice.
Plaintiff’s Motion for Partial Voluntary Dismissal/ and or Notice of Voluntary Dismissal

(ECF No. 140), at 1-2.

On December 5, 2012, this Court entered an order stating “plaintiff’s Motion for Partial Voluntary Dismissal (ECF No. 140) is GRANTED, ” and noting “that the only remaining defendants, as identified by the plaintiff, are: Superintendent Folino, PA Diggs, Lucas/Antonich [sic] and Dr. Jin. All other defendants are dismissed, with prejudice.” The Order further stated “that claims, other than those claims described in paragraph 1 of plaintiff’s Motion for Partial Voluntary Dismissal, are likewise dismissed, with prejudice.” Order of December 5, 2012 (ECF No. 144).

Rule 41(a), Dismissal of Actions, provides that a Plaintiff may voluntarily dismiss a case without prejudice by filing a Notice of Voluntary Dismissal, and that the plaintiff may dismiss an action without a court order by filing (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. Fed.R.Civ.P. 41(a)(A). Generally, unless the notice or stipulation states otherwise, the dismissal is without prejudice. Fed.R.Civ.P. 41(a)(1)(B).

Although Plaintiff herein styled his Notice of Voluntary Dismissal a “Motion for Partial Voluntary Dismissal/ and or Notice of Voluntary Dismissal” (ECF No. 40), it was actually a notice of dismissal under Fed.R.Civ.P. 41(a)(1)(A)(i).” See Collins v. Lincoln Caverns, Inc., 2011 WL 4625552, *2 (M.D.Pa. 2011) (citing, inter alia, Ventura–Vera v. Dewitt, 417 F.App'x 591, 591–92 (8th Cir. 2011) (liberally construed, pro se plaintiff's motion to dismiss was effectively a Rule 41(a)(1)(A)(i) notice of dismissal)). Because Defendants had neither answered nor filed a motion for summary judgment at the time, Plaintiff had a right to voluntarily dismiss any or all of his claims without prejudice. For that reason, this Court vacated its Order of December 5, 2012 (ECF No. 144), because it purported to dismiss all claims other than those described in paragraph one of Plaintiff’s Motion for Partial Voluntary Dismissal “with prejudice.” Memorandum and Order Regarding Discovery Motions (ECF No. 184).

Remaining Claims and Defendants

From the foregoing, the only remaining defendants and claims are those described in paragraph one of Plaintiff’s Notice of Partial Voluntary Dismissal, namely:

Claims as to Superintendent Louis S. Folino, PA Diggs, CRNP Michelle Lucas Antanovich and Dr. Byunghak Jin, M.D., Medical Director, “for failure to provide treatment and or to provide timely adequate and appropriate treatment as to Plaintiff’s lump in chest, ringing of ears, mask on face and knot in right testicle, ” and claims as to Dr. Jin, PA Diggs and CRNP Lucas Antanovich, for “failure to educate patient as to risk and side effects of medication prior to them being issued to the patient.” For purposes of addressing the summary judgment motions, the Court will refer to these remaining claims for failure to provide timely and appropriate treatment of the several medical conditions as follows: (a) lump in chest, or breast enlargement; (b) ringing of ears, or tinnitus; (c) mask on face; and (d) knot in testicle. Additionally, (e) the failure to educate patient as to side effects of medication before administering them to Plaintiff, with resulting negative consequences of which Plaintiff complains, may be treated as a fifth claim.[2]

B. Motions for Summary Judgment

1. Superintendent Folino’s Motion for Summary Judgment (ECF No. 193)

In his Motion for Summary Judgment, Superintendent Folino argues that Mr. Houser cannot prevail on his claim for deliberate indifference to his serious medical needs under the Eighth Amendment because at best, Plaintiff’s complaints about his medical care amount to “mere disagreement” with the physician’s diagnosis and treatment plans, and that prison officials who are not physicians, such as Superintendent Folino, cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already under the care of medical personnel including physicians. More specifically, Superintendent Folino argues as follows:

[T]he record demonstrates that plaintiff was under the care of medical staff and received an extraordinary amount of professional medical treatment and attention for a long list of medical issues, including blood pressure, weight related issues, complaints of swelling, breast enlargement and tinnitus.[FN 2] . . .
The medical records from 2009 through mid-2012 reveal a similar scenario, in which plaintiff had ready access to health care, and medical professionals addressed his complaints and provided appropriate care, notwithstanding his repeated challenges and non-compliance . . . .
[Footnote 2] There are sporadic references in plaintiff’s medical chart, mostly prior to March 2008, of a testicle lump or wart and face mask, but counsel cannot locate these particular issues in a grievance that was appealed to Folino. As with his other medical issues, these are conditions where plaintiff was examined and merely disputes the treatment recommended.

Brief for Defendant Folino (ECF No. 194), at 3-4 (emphasis added).

Moreover, Defendant Folino asserts there is “no evidence to suggest . . . [he] had a reason to believe, or actual knowledge, that medical personnel were not treating or mistreating plaintiff. . . . While Folino may have had general knowledge of plaintiff’s medical condition and problems, through grievances and otherwise, that knowledge is not enough to sustain liability under the Eighth Amendment. Moreover, that knowledge, as reflected above, included constant reports that plaintiff was being treated and followed closely by professionals.” Id., at 7.

2. Medical Defendants’ Motion for Summary Judgment (ECF No. 198)

Medical Defendants, Dr. Byunghak Jin, “PA Diggs, ” and CRNP Michelle Lucas Antanovich, filed a Motion for Summary Judgment seeking judgment in their favor on the basis of the governing two year statute of limitations and, on the merits, because “even if one assumes a serious medical condition, Plaintiff has failed to allege facts that would permit a jury to conclude that the medical defendants subjectively acted with a sufficiently culpable state of mind. Medical Defendants’ Brief in Support of Motion for Summary Judgment (ECF No. 199) at 7 (emphasis in original).

Further, Medical Defendants argue that the “allegations in plaintiff’s amended complaint clearly demonstrate continuous medical treatment from that time forward for various complaints, with plaintiff essentially arguing that it was either ineffective or not what he had specifically requested. As such, Medical Defendants cannot be said to have intentionally refused to provide any medical treatment.” Id., at 9 (emphasis added). According to these Defendants, the “continuous medical treatment” Plaintiff has received insulates them from liability under section 1983 because “deliberate indifference is generally not found when some level of medical care has been offered to the inmate.” Id., (emphasis added) (citing Clark v. Doe, 2000 WL 1522855, at *2 (E.D.Pa. 2000)). Because “Plaintiff received care for his various physical complaints . . . [any] attempt to second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts since such determinations remain a question of sound professional judgment.” Id., (citing Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)).

3. Defendants’ Theme

The overarching theme of Defendants’ briefs in support of their motions for summary judgment may be fairly characterized as follows: Mr. Houser received “an extraordinary amount” of continuous, professional medical treatment and attention “for a long list of medical issues” from 2007 to the present. Ipso facto, Superintendent Folino and Medical Defendants cannot be found to have been deliberately indifferent to any of Plaintiff’s serious medical needs.

C. Defendants’ Concise Statements of Material Facts

The Local Rules of Civil Procedure requires each motion for summary judgment to be accompanied by

a separately filed concise statement setting forth the facts essential for the Court to decide the motion for summary judgment, which the moving party contends are undisputed and material, including any facts which for purposes of the summary judgment motion only are assumed to be true. The facts set forth in any party's Concise Statement shall be stated in separately numbered paragraphs. A party must cite to a particular pleading, deposition, answer to interrogatory, admission on file or other part of the record supporting the party's statement, acceptance, or denial of the material fact[.]

LCvR 56.B.1.

Superintendent Folino’s Concise Statement of Material Facts (“CSMF”) sets out the following facts which, he claims, are undisputed and material. The first of these repackages Defendants’ mantra as a fact: “During the time frame at issue in this action (March 2008 through mid-2012), plaintiff was under the care of medical staff at SCI-Greene and received an extraordinary amount of professional medical treatment and attention for a long list of medical issues, including blood pressure, weight related issues, complaints of swelling, breast enlargement and tinnitus.” Folino CSMF, (ECF No. 195), ¶ 2. Superintendent Folino next prefaces discussion of Plaintiff’s actual treatment with the assertion that many of the “medical staff’s examinations and discussions with plaintiff centered on his non-compliance with medications” and, in support thereof, he cites to “(Exh’s 15-19 and 22)” of his Appendix. Id., ¶ 3.

The “specific” facts alleged to be undisputed and material are set forth below.

4. In 2008, plaintiff was seen at sick call by a nurse, Physician’s Assistant or medical doctor over 35 times (which excludes the 3 weeks he spent in the infirmary in April and May 2008 while waiting for a new wheelchair). (Exh. 15.)
5. Dr. Jin examined and met face to face with plaintiff on at least 6 different occasions in 2008 (not to mention the numerous visits in the infirmary), and addressed plaintiff’s sore throat, his concerns with medications, his refusal to take medications, and a knee brace. (Exh. 15, entries for 1/24, 2/7, 3/14, 9/8, 10/27, 11/24.)
6. Dr. Jin’s entries on 1/31/08 reflect that he believed plaintiff’s enlarged breast was due to gynecomastia, based on the previous ultrasound that he had ordered. (Exh. 15.)
7. Plaintiff’s medical records from 2009 through mid-2012 reveal a similar scenario, in which plaintiff had ready access to health care, and medical professionals addressed his complaints and provided appropriate care, notwithstanding his repeated challenges and non-compliance. (Exh. 16-19 and 22.)
8. In 2009, plaintiff was seen at least 30 times on sick call (including 6 visits with physicians), for blood pressure, back and knee braces, athletes foot, hand injury, double mattress. (Exh. 16.)
9. In 2010, he was seen on sick call at least 60 times (including 17 or more visits with physicians). (Exh. 17.)
10. Drs Jin, Balk and Park saw plaintiff at least 12 times from July to November 2010 for swelling and edema, which would flare up and then resolve. (Exh. 17).
* * *
13. In 2011, plaintiff was seen by medical staff at least 45 times (including 16 visits with physicians and multiple infirmary stays from 9/12 to 9/14, 9/23-9/26). (Exh. 18.)
14. Plaintiff was sent to Westmoreland Hospital on 9/21/11 for his edema and throat/lip swelling, and Dr. Gorby confirmed the angioedema diagnosis. (Exh. 19, entries for 9/21, Exh. 20 – consultations, and Exh. 21 – Westmoreland Hospital summary)
15. In 2012, plaintiff was seen for sick call at least 20 times through May (including 9 visits by Dr. Jin or other physicians). (Exh. 19.)
16. Plaintiff refused to come in from yard on several occasions to be seen by Dr. Jin pursuant to his sick call requests, and on one occasion, Dr. Jin even went to the yard to see plaintiff – e.g., entries for 1/23, 1/24, 1/27 in Exh. 19.
17. Numerous consultation records in plaintiff’s medical chart reflect that medical staff at Greene sent plaintiff for x-rays repeatedly, and referred him for physical therapy. (Exh. 20.)
* * *
21. Folino was made aware as far back as 2007 that medical had ordered an ultrasound for plaintiff’s complaint of a right chest lump, and that the medical director considered this diagnostic tool to be better than a mammogram. (Grievance 178743 -Exh. 2, p. 2-3; see also Exh. 14, p. 2 – Grievance 438919 dated 12/5/12, noting that after Dr. Jin discussed the results, gynecomastia or excess breast tissue, plaintiff had no further complaints.)
22. Also, Superintendent Folino would have noted that medical (Dr. Caramanna) was following plaintiff for his claim of tinnitus (ringing in the ears). (Grievance 206763 – Exh. 3, p. 4-5.)
23. In response to a grievance in 2010, the Nursing Supervisor explained that Mr. Houser had an audiogram for his tinnitus complaint in 2007, and the results were “not clinically significant.” (Grievance 337961 – Exh. 8, p. 2, 3.)
24. Significantly, even though a referral had been made for an evaluation by the MD on 10/7/10, just two days after reporting the tinnitus to staff, plaintiff had failed to show up for this MD follow up. (Exh. 8, p. 4; and Exh. 9.)
25. Folino would have been made aware that Dr. Jin and the medical staff were treating plaintiff for his complaints of swelling and were taking seriously his concerns with ...

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