United States District Court, E.D. Pennsylvania
MAURICE D. HARPER, Plaintiff,
CORIZON, LOUIS GIORLA, MICHELLE FARRELL, FRANK ABELLO, MARIEL TRIMBLE, and PANTAL JEAN, Defendants.
ROBERT F. KELLY, Sr., District Judge.
Presently before this Court is Plaintiff, Maurice D. Harper's ("Harper") "Motion for A Temporary Restraining Order And A Preliminary Injunction Order To Show Cause And Temporary Restraining Order, " the Response in Opposition filed by Defendant, Corizon, and the Reply by Harper in the from of a Declaration. For the reasons set forth below, the Motion is denied.
Harper filed suit against Defendants under the Civil Rights Act, 42 U.S.C. § 1983, alleging deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Comp. at 6. Specifically, Harper alleges that Defendants have ignored his need to see an Ear, Nose and Throat Specialist ("ENT Specialist") regarding his acid reflux disease, which has resulted in a hole on the left side of his throat. Id. at 3. Harper filed his "Motion for A Temporary Restraining Order And A Preliminary Injunction Order To Show Cause And Temporary Restraining Order" on May 14, 2014. In support of his claim, Harper states:
I have not been provided with a healthy diet and sent to see an ENT Specialist because there is an informal policy at Curran-Fromhold to giving low priority to medical needs of inmates diagnose [sic] with acid reflux disease and of refusing to provide them with medical care outside the prison unless their medical condition is life-threatening.
(Pl.'s Mot. for TRO and/or Prel. Inj., Harper Decl. ¶ 7.)
On June 17, 2014, Defendants were ordered to show cause in writing as to why Harper's request for injunctive relief should not be granted. On July 18, 2014, Corizon filed a Brief in Opposition to Harper's Motion for Preliminary Injunctive Relief which included a Certification of a physician employed by Corizon, Bruce Blatt, M.D., dated July 18, 2014. (Def.'s Br. Opp'n Pl.'s Mot. for TRO and/or Prel. Inj.; Ex. A., Blatt Decl.) Dr. Blatt, a Board Certified Internist who is a licensed physician in the Commonwealth of Pennsylvania, is employed by Corizon at the Philadelphia Prison System. (Id. ¶¶ 1-3.) Dr. Blatt stated that he examined Harper's Prison Medical Chart which contained entries made at the time of the medical encounters with Harper. (Id. ¶ 5.) Dr. Blatt states that "[o]n October 18, 2103, Physician's Assistant Sarskaya requested a referral for an ENT Specialist for post nasal drip, and a possible visual opening on the left side of the pharynx with purple appearance of the uvula." (Id. ¶ 7.) Dr. Blatt further states that "[t]he ENT referral of October 18, 2013, was not approved apparently because it was determined that Mr. Harper did not have a hole in his throat.'" (Id. ¶ 8.) Dr. Blatt listed nine dates from November 2013 through March 2014 in which Harper was seen by members of the prison medical staff mainly pertaining to throat and digestive issues. (Id., ¶ 9.) According to Dr. Blatt, he examined Harper on May 16, 2014. (Id. ¶ 11.) He states that "[b]ased upon my examination of the patient, it was my opinion that an ENT (ear, nose, and throat) referral was NOT medically necessary. Based upon my examination of the patient, the patient did NOT have a hole in his throat.... I scheduled a follow-up appointment in 30 days." (Id.)
Dr. Blatt states that a barium swallow test of Harper took place on June 19, 2014, at Bustleton Radiology. (Id., ¶ 14.) According to Dr. Blatt, "[t]he report dated June 29, 2014, states the esophagus demonstrates no obstruction or constricting lesion or hiatal hernia. No free gastoesophageal reflux was noted. The Impression is: (1) the hypopharynx is normal roentgenographically; (2) The esophagus is negative to thin liquid barium." (Id.) Dr. Blatt states that he reviewed the June 19, 2014 barium swallow report and "[t]he report means that the patient's throat is normal." (Id.)
Dr. Blatt states that, on June 27, 2014, he spoke with Harper in the Medical Department. (Id., ¶ 16.) He states that he reviewed the barium swallow test results with Harper. (Id.) Additionally, he states that he "told Mr. Harper that there was no evidence of pharyngeal or esophageal lesion and no reflux. The patient does NOT have a hole in his throat." (Id.) Dr. Blatt states that "[e]ven though the barium swallow was normal, I ordered a consult for ENT due to the patient's persistent complaints of pharyngeal discomfort. That referral has not taken place yet." (Id.) Dr. Blatt concludes his Certification by stating that
It is my opinion within a reasonable degree of medical certainty, that Mr. Harper does not have any emergent medical conditions. The patient's current medical conditions consisting of complaints about swallowing and rectal bleeding are already being addressed by the medical staff. It is also my opinion based upon my own examination of the patient that he does not have a hole in his throat.
(Id., ¶ 17.)
Harper's Declaration replies to Dr. Blatt's Certification by stating that he and two hospital transport officers viewed the barium swallow x-ray and saw a dark spot the size of a quarter on his throat. (Pl.'s Decl., ¶¶ 7-11.) Harper states that when he explained that he had viewed a dark spot to Dr. Blatt, he was told that "it may have been the result of an [sic] air pocket." (Id., ¶ 8.) Harper's Declaration includes exhibits consisting of various personal medical records and Sick Call Requests. (Id., Exs. A-C.)
II. LEGAL STANDARD
Through either a TRO or a permanent injunction, Harper seeks the following: to arrange for an examination and a plan of treatment by a qualified ENT Specialist; to be provided with a healthy diet; and to have an ENT Specialist's plan of treatment to be put into effect. (Pl.'s Mot. for TRO and/or Prel. Inj., Pl.'s Decl., ¶ 16.) Though there are distinct standards necessary to attain a TRO and a ...