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Wall v. Buschman

United States District Court, M.D. Pennsylvania

February 27, 2015

MITCHELL WALL, Plaintiff,
v.
DR. BRIAN BUSCHMAN, et al., Defendants.

MEMORANDUM

EDWIN M. KOSIK, District Judge.

Mitchell Wall ("Plaintiff"), an inmate confined at the United States Penitentiary at Allenwood, Pennsylvania, files this Bivens[1] civil rights action alleging deliberate indifference to his medical needs by denying him a lower bunk status. The only remaining defendant is Dr. Brian Buschman, Medical Officer/Physician at USP-Allenwood.[2] Presently pending is Defendant's motion for summary judgment (Doc. 78.) For the reasons that follow, the motion will be granted.

I. Background

In addressing a previous motion to dismiss and for summary judgment filed by the Defendants in this action, the Magistrate Judge set forth the relevant background of this action, as follows, in her Report and Recommendation of November 7, 2013:

On August 2, 2011, Plaintiff fractured his back. (Doc. 1, Compl. ¶ 11). He was placed in a handicap cell in segregation for two days, and then taken for x-rays and tests. He then met with a neurosurgeon who recommended continued treatment with a lumbrosacral corset for three months, which Plaintiff states he never received. (Doc. 1, Compl. ¶¶ 12, 13). Plaintiff was issued a lower bunk permit through October 5, 2011, prescribed medication for the night, provided a wheelchair, switched to a handicapped cell in the Special Housing Unit, and instructed to keep weight bearing to a minimum for the next 24 hours. (Doc. 28, ¶¶ 11-12).
In November and December of 2011, Plaintiff alleges he asked Defendants Neylon, Potope, and Buschman for a lower bunk and was denied each time. (Doc. 1, Compl. ¶¶ 16-20). On January 31, 2012, Plaintiff had a follow-up examination with the neurosurgeon. The surgeon wrote a slip for a lower bunk. (Doc. 1, Compl. ¶ 22; Doc. 1 at 52). According to Plaintiff, a prison officer immediately handed the recommendation to Buschman, (Doc. 1, Compl. ¶ 23), and Buschman rejected Plaintiff's request for a lower bunk. A few days later, Plaintiff asked Defendant Potope for a lower bunk and told him the surgeon recommended a lower bunk. Potope told Plaintiff he did not qualify for a lower bunk. (Doc. 1, Compl. ¶ 24).
According to Defendants, Buschman was not aware of the neurosurgeon's lower bunk recommendation until February 15, 2012. The surgeon hand wrote the recommendation for the lower bunk on a slip, and typed up an assessment. The typed up assessment did not include the request for the lower bunk. (Doc. 29, Br. in Supp. at 7). The lower bunk recommendation was not entered into the system until February 15, 2012, when the report was reviewed by Plaintiff's Physician Assistant. (Doc. 1, p. 52). According to Defendants, following any type of consultation, a note is placed in the mailbox of the physician assistant of the inmate. (Doc. 29, Br. in Supp. at 7-8). The computer records indicate that a bottom bunk assignment was made on February 15, 2012. (Doc. 29, Br. in Supp. at 8.) Plaintiff was issued a Medical Duty Status slip for a lower bunk on February 17, 2012. (Doc. 29, Br. in Supp. at 9).
On February 16, 2012, Plaintiff states that he fell and injured his back while climbing down from his upper bunk assignment. (Doc. 1, Compl. ¶ 25.) Plaintiff was transported to a local hospital for six days following the incident and had surgery on his lower back. (Doc. 1, Compl. ¶ 28-33). Plaintiff received a lower bunk from February 21, 2012, when he returned to the facility after his back surgery, until September 6, 2012. On September 6, 2012, Plaintiff requested a bottom bunk assignment from Defendant Buschman and was told by Defendant Buschman he did not qualify for a lower bunk. (Doc. 1, Compl. ¶ 39).

(Doc. 53 at 2-3, 11/7/13 Report and Recommendation.)

Following the filing of the complaint by Plaintiff on October 23, 2012, Defendants filed a motion to dismiss and for summary judgment. On November 11, 2013, the Magistrate Judge issued a Report recommending that the court: (1) grant Defendants' motion to dismiss all Defendants in their official capacities, with prejudice, pursuant to Fed.R.Civ.P. 12(b)(1); (2) grant Defendants' motion to dismiss Defendants Neylon and Potope, with prejudice, pursuant to Fed.R.Civ.P. 12(b)(6); and (3) deny Defendants' motion for summary judgment as to Defendant Buschman pursuant to Fed.R.Civ.P. 56. (Doc. 53.)

In denying the motion for summary judgment, the Magistrate Judge found a material issue of fact to exist with respect to whether Plaintiff's back condition was a serious medical need. A genuine issue of material fact was also found to exist as to whether Defendant Buschman knew and disregarded the neurosurgeon's recommendation of lower bunk status on January 31, 2012. (Id. at 13.)

After adopting the above recommendations, Defendant Buschman was directed to file his answer to the complaint. (Doc. 60). An answer was submitted on April 21, 2014. (Doc. 61.) Following a period of discovery and several enlargements of the scheduling deadlines, Defendant Buschman filed a motion for summary judgment on August 25, 2014. The motion is ripe for consideration.

II. Summary Judgment Standard

To prevail on a motion for summary judgment, the moving party must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).

In making a summary judgment determination, a court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007). "[S]ummary judgment is essentially put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). The moving party has the burden of showing the absence of a genuine issue of material fact, but the nonmoving party must present affirmative evidence from which a jury might return a verdict in the nonmoving party's favor. Liberty Lobby, 477 U.S. at 256-57, 106 S.Ct. at 2514. It is well-settled that: "[o]ne cannot create an issue of fact merely by... denying averments... without producing any supporting evidence of the denials." Thimons v. PNC Bank, NA, 254 F.Appx. 896, 899 (3d Cir. 2007)(citation omitted). "[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient." Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Thus, allegations made without evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). The court's function in deciding a motion for summary judgment is not to make credibility determinations or weigh evidence, but rather, to simply "determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

III. Eighth Amendment Standard

Plaintiff alleges that the denial of a lower bunk status medical slip constitutes deliberate indifference in violation of the Eighth Amendment. The Eighth Amendment constitutionally protects prisoners against "unnecessary and wanton infliction of pain contrary to contemporary standards of decency." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). "Unnecessary and wanton infliction of pain" may include failure to provide adequate inmate medical care because inmates rely on prison officials to treat their medical conditions. Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976). Failure to provide adequate medical care to an inmate may therefore form the basis of an Eighth Amendment claim. Id.

To establish an Eighth Amendment claim based on failure to provide medical care, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id., at 106. A plaintiff must show that he has "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate ...


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