United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
MAURICE B. COHILL SENIOR U.S. DISTRICT COURT JUDGE
On October 2, 2013, Defendants Raymond Sobina, William McConnell, Scott Breckenridge, Col. Hewitt and Ralph Lucas ("the DOC Defendants") filed a partial motion for summary judgment [ECF# 112] and on October 8, 2013, Defendants Daniel S. Telega, Tammy Mowery, Dr. Mark Baker and Dr. Valerie Gilreath ("the Medical Defendants") filed a motion for summary judgment [ECF#116]. On June 2, 2014, Magistrate Judge Baxter issued a Report and Recommendation ("R&R") [ECF#134] in which she recommended that the Medical Defendants' Motion for Summary Judgment be granted in part and denied in part as follows:
- Granted on the basis of failure to exhaust as to the claims against Baker and Gilreath;
- Denied on the basis of failure to exhaust as to the claims against Mow[e]ry and Telega;
- Denied on the basis of failure to show deliberate indifference to a serious medical need.
Defendants Baker and Gilreath should be dismissed as parties to this action.
R&R, p. 1. Magistrate Judge further recommended that the DOC Defendants' Motion for Summary Judgment be granted in part and denied in part as follows:
- Denied on the basis of failure to exhaust;
- Granted with regard to the deliberate indifference claim against Defendant Lucas based upon delay in medical treatment;
- Granted as to the retaliation claims based on Misconduct B144269 for Possession of Contraband and the concomitant cell search of February 2nd, and Misconduct A913573 for Refusal to Obey an Order;
- Denied as to the retaliation claims based on the termination of employment and the cell searches of February 10th, February 14th and March 8th.
Defendant Lucas should be dismissed as a party to this action.
Id. Thereafter, on June 19, 2014, Daniel Telega and Tammy Mowery (the "Medical Defendants") filed Objections to Magistrate Judge Baxter's R&R [ECF #138] and on June 24, 2014, Plaintiff filed objections to the R&R [ECF #140]. For the reasons which follow, the Court will adopt the R&R of the Magistrate Judge, as supplemented, as the Opinion of the Court.
I. Legal Analysis.
A. Standard of Review.
Rule 72(b)(3) of the Federal Rules of Civil Procedure provides: "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.
B. Objections to Report and Recommendation filed by the Medical Defendants Daniel S. Telega and Tammy Mowery.
With this mandate in mind, we turn first to the Medical Defendants' Objections to the R&R. Plaintiffs claims against these Defendants are based upon Plaintiffs contention that he received inadequate medical care following an assault by Defendant Hewitt, a guard at SCI-Albion, on or about January 28, 2010. Their first objection is that Magistrate Judge Baxter had ruled in an earlier Report and Recommendation that summary judgment should be granted as to Plaintiffs claims against Defendant Mowrey and therefore, because there was neither new evidence nor new argument introduced, summary judgment again should be granted in their favor on said claims.
As an initial matter, the motions, responses thereto, and evidence introduced by the parties in this round of summary judgment motions was not identical to those submitted by the parties in the first round of summary judgment motions. More importantly, because the earlier R&R was never adopted by this Court as its Opinion, the legal analyses and holdings contained therein are not "the law of the case" and Magistrate Judge Baxter was, and this Court is, free to examine the "new" motions for summary judgment and supporting evidence, and Plaintiffs oppositions thereto and supporting evidence, without consideration of any analyses or conclusions contained in the earlier R&R.
The Medical Defendants next contend that Magistrate Judge Baxter erred when she determined that these defendants failed to adequately prove that Plaintiff did not timely exhaust his administrative remedies as to his claim that Ms. Mowery violated his rights on February 11, 2010 when she failed to provide him needed medical treatment, see R&R, pp. 16-17. Defendants' Objections, pp. 3-4.
We agree with Magistrate Judge Baxter's analysis of this issue. The Medical Defendants' argument essentially is that because Ms. Overton denied grievance #08385 on March 19, 2010, and thereafter, on April 6, 2010, Ms. Adams noted on April 6, 2010, in response to Plaintiffs March 31, 2010 "Inmate Request to Staff Member, " that "[i]t appears you [Plaintiff] are continually trying to receive free copies. The responses are distributed when they are completed, " that the only conclusion can be "that the DOC responded in a timely manner to the grievance and to each Request to Staff Member submitted by Plaintiff. The administrative process was available to Mr. Marshall. However, he did not avail himself of that process by failing to appeal grievance #308385 in a timely manner." Id. at p. 4. The problem with this contention is that at the summary judgment stage, it is the Defendants' burden to establish that Plaintiff failed to exhaust his administrative remedies and in doing so, we are to view all evidence of record in a light most favorable to the non-moving party, here the Plaintiff. Under this standard of review, viewing the evidence of record in a light most favorable to Plaintiff, the evidence presented by Defendants does not establish that Plaintiff ever received Ms. Overton's decision and therefore, they have not met their burden of establishing that Plaintiff failed to exhaust his administrative remedies as to grievance #308385.
The Medical Defendants further argue that Magistrate Judge Baxter erred when she denied summary judgment with respect to Plaintiffs claim of deliberate indifference to Plaintiffs serious medical need claims against Defendant Telega and Mowery based upon their lack of medical treatment of Plaintiff on January 28, 2010 (Telega) and February 1 and 11 (Mowery), see R&R at pp. 20-21, because "Plaintiff has failed to produce any evidence, other than his own general conclusory statements, to substantiate he has a serious medical condition; and ... Plaintiff has failed to provide any evidence to support his contention that Defendants knew of his serious medical condition and failed to provide treatment for that condition." Defendants' Objections, p. 2.
On these issues, Magistrate Judge Baxter recommended: "Summary judgment should be denied in this regard because there are disputed material issues of fact as to whether Plaintiffs condition rose to the level of a serious medical need and whether Telega's actions on January 28th and Mow[e]ry's actions on February 1st and 11th constituted deliberate indifference towards that need." R&R, p. 20. In support of her conclusion, the magistrate judge cited to the Affidavits of Defendants Telega and Gilreath and of Plaintiff and stated:
Although Plaintiffs medical records are part of the evidentiary record before this Court, Plaintiff contradicts almost every notation through his own affidavits and contends that these allegedly false notations are part of the cover-up of the assault by Hewitt. Because this Court cannot weigh the credibility of evidence on a summary judgment analysis and because the Court must draw inferences in the light ...