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Yates v. Miller

United States District Court, W.D. Pennsylvania

January 23, 2017

YVONNE I. BRADLEY YATES Plaintiff,
v.
BRIAN MILLER, Warden, and DR. DOMENICK DILIO Defendants.

          MEMORANDUM OPINION ECF Nos. 62 & 67

          LISA PUPO LENIHAN United States Magistrate Judge

         Presently before the Court are Motions for Summary Judgement filed by Defendants Dr. Domenick Dilio (ECF No. 62) and Warden Brian Miller (ECF No. 67). For the reasons discussed below, both Motions will be granted.

         FACTS

         The following facts are undisputed unless otherwise indicated and are taken from the parties' Concise Statements of Facts and Responses thereto at ECF Nos. 64, 69 and 73. The Court also relies on the exhibits attached to the parties' respective briefs where appropriate.[1]

         Plaintiff Yvonne I. Bradley (Yates) (“Plaintiff”) proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 arising out of Plaintiff's incarceration at the Fayette County Prison (“FCP”) between July 11, 2012 through April 2014. (ECF Nos. 64 & 73 ¶ 1.)

         A. Facts pertaining to Dr. Dominic DiLeo[2]

         Upon entering FCP on July 11, 2012, Plaintiff underwent a health assessment and intake screening. (ECF Nos. 64 & 73 ¶ 2.) A document entitled “Medical History and Physical Exam” is dated July 12, 2012 and indicates that Plaintiff's neck was normal with no indication of a mass. The document also reflects, among other health assessments, Plaintiff's temperature, pulse, respirations and blood pressure. Plaintiff denies that a physical took place on that date because she only provided answers to questions asked of her. (ECF Nos. 64 & 73 ¶ 3.)

         Plaintiff was housed at the Green County Jail from August 2012 until November 2012. (ECF Nos. 69 & 73 ¶ 22.)

         Upon return to FCP, another document entitled “Annual History & Physical” dated July 8, 2013, includes the same information as noted above along with a result for blood glucose testing. Again, Plaintiff denies that a physical examination by Dr. DiLeo took place on that date because she only provided answers to questions asked of her. (ECF Nos. 64 & 73 ¶ 4.)

         Thereafter, in September 2013, Plaintiff was committed to Torrance State Hospital and remained in that institution through December 23, 2013, when she was discharged back to FCP. (ECF Nos. 64 & 73 ¶ 5; ECF Nos. 69 & 73 ¶ 23.) When Plaintiff returned to FCP in December 2013, the women's quarters had been moved upstairs. (ECF Nos. 69 & 73 ¶ 24.)

         On February 11, 2014, Plaintiff was seen by the medical unit for complaints of chest pain, headache and a lump on the left side of the neck, below the jaw. (ECF Nos. 64 & 73 ¶ 6.) According to medical notes, Plaintiff had a lump on the left side of her neck which had been ongoing for the past two months. The notes further indicate that the mass measured “2cm x 2 cm” and was non-tender. Plaintiff denies the above in part, but does not indicate any basis for the denial, nor does she include an appropriate reference to the record that might reflect her basis for partial denial.[3] (ECF Nos. 64 & 73 ¶ 7.)

         Plaintiff underwent mobile x-rays which showed a soft tissue abnormality in the left neck. Plaintiff was prescribed an antibiotic, Cephalexin, 500 milligrams. On that same day, Dr. DiLeo ordered a comprehensive metabolic panel and CBC. Plaintiff also underwent an ultrasound of the left-side neck lump on February 12, 2014. The ultrasound showed that the mass measured 2.8 centimeters at the greatest diameter and showed some vascularity. It was recommended that the Plaintiff undergo a CT scan for further evaluation. Plaintiff presented for a general sick call on February 18, 2014. Dr. Dileo noted that the neck mass appeared to have decreased in size with antibiotics. Plaintiff was ordered to undergo a CT scan of the neck on February 28, 2014. Plaintiff admits the above in part, stating that Dr. DiLeo infers that the mass grew in two (2) weeks. (ECF Nos. 64 & 73 ¶¶ 8-11.)

         On February 28, 2014, the CT scan of Plaintiff's neck was performed at Uniontown Hospital. The CT scan noted that the lump did not appear to invade the surrounding fat planes and appeared to be benign. The report noted that the lump may represent a pleomorphic adenoma or an enlarged lymph node. On April 1, 2014, Plaintiff was seen at a general sick call for a follow up with regard to the mass on her neck. Dr. DiLeo indicated that the mass was apparently either a lymph node or a pleomorphic adenoma. It was also noted that the left neck mass was now “1 cm x 1 cm, ” which was smaller than the prior evaluation. On April 22, 2014 Plaintiff had a follow-up appointment with Dr. DiLeo in regard to the left submandibular cyst.

         Examination of the neck showed an abnormal submandibular mass which was unchanged. It was also noted that the Plaintiff was to be transferred to SCI-Pittsburgh, and it was recommended that she see an ENT after transfer. Plaintiff was thereafter transferred from FCP. Plaintiff denies the above in part, but does not indicate any basis for the denial, nor does she include an appropriate reference to the record that might reflect her basis for partial denial. (ECF Nos. 64 & 73 ¶¶ 12-15.)

         In her deposition, Plaintiff admits that she was seen and evaluated by Dr. DiLeo on several occasions; that two rounds of medication were ordered for treatment of the lump; that she received a “scan” off site at Uniontown Hospital that was ordered by Dr. DiLeo; that Dr. DiLeo followed-up with Plaintiff after the scan; that he advised her as to the condition of the lump; that she was sent out for a second round of diagnostic studies for a possible x-ray or other scan; that she was provided a diagnosis from Dr. DiLeo that the lump was benign; and that she was seen by him in April 2014 in reference to the condition of the lump, shortly before she was transferred from FCP. (Bradley Deposition, ECF No.65-9 at 9-11.) [hereinafter “ECF No. 65-9 at ”].

         Finally, the Court notes that in her Second Amended Complaint, Plaintiff avers that she “has gone through rigorous cancer treatments due to Dr. Dileo's [] proven negligence.” (Second Amended Complaint, ECF No. 36 ¶ 13.) [hereinafter “ECF No. 36 ¶ ”].

         B. Facts Pertaining to Warden Brian Miller

          Facts relating to Plaintiff's Access to the Courts Claim

         Plaintiff entered FCP in July 2012 on charges relating to the fraudulent sale of a vehicle and a separate action for kidnapping. (ECF Nos. 69 & 73 ¶ 1.) When Plaintiff was arrested in connection with these charges, she had $5, 237.00 in cash on her person. The money was seized as evidence. (ECF Nos. 69 & 73 ¶ 2.)

         On August 13, 2012, Plaintiff sought use of the law library. The request was approved and she was permitted to use the library on August 15, 2012. Plaintiff denies this statement in part indicating that a 30 minute usage of the library in 20 months was hardly adequate. (ECF Nos. 69 & 73 ¶ 3.)

         On January 22, 2013, bail was set and the criminal information was filed against Plaintiff for Theft by Deception, among other charges, in the Court of Common Pleas of Fayette County relating to the fraudulent sale of a vehicle. It was alleged, inter alia, that Plaintiff defrauded victim Paula Marie Thorpe out of about $11, 000 in connection with the sale. (ECF Nos. 69 & 73 ¶ 4.)

         On March 26, 2013, the Court appointed public defender Jeffrey Whiteko (“Whiteko”) to represent Plaintiff in this matter until another attorney hired by Plaintiff could enter his/her appearance. (ECF No. 70-3 at 8.) On April 30, 2013, Whiteko petitioned the Court for an evaluation of Plaintiff's competency and the pretrial conference was continued. In response to Plaintiff's counsel's motion, the Court ordered that Plaintiff be evaluated at Torrance State Mental Hospital. On August 23, 2013, the Court determined that Plaintiff was not competent to stand trial and that Plaintiff was to receive inpatient treatment at Torrance. (ECF Nos. 69 & 73 ¶ 6.) Thereafter, Plaintiff was transferred to Torrance State Mental Hospital from September through December 2013. She was then transferred back to FCP and was deemed competent for trial at that time. (ECF Nos. 69 & 73 ¶ 7.)

         On December 31, 2013, Paula Thorpe filed a Motion for Return of Evidence, seeking the money she gave to Plaintiff during the course of the theft. This Motion was denied without prejudice on the basis that the money was evidence in the criminal case and could be paid back as restitution. (ECF Nos. 69 & 73 ¶ 8.)

         During the trial, Plaintiff was represented by the Public Defender's Office. (ECF Nos. 69 & 73 ¶ 9.) On February 5, 2014, Plaintiff was found guilty by a jury on all charges. On the claim of Theft by Deception, the jury found that Plaintiff had defrauded in the amount of $11, 000. (ECF Nos. 69 & 73 ¶ 10.)

         On February 13, 2014, Judge Joseph M. George, Jr. imposed sentencing on Plaintiff in relation to the conviction for Theft by Deception. Plaintiff was sentenced to make restitution in the amount of $10, 663.88 to victim Paula Marie Thorpe. (ECF Nos. 69 & 73 ¶ 11.) During sentencing, Plaintiff was represented by the Public Defender's Office. (ECF Nos. 69 & 73 ¶ 12.) The Court ordered that the amount of $5, 237.00 found on Plaintiff at the time of the crime be returned to Thorpe and be considered partial restitution. Plaintiff denies this statement in part but does not indicate any basis for the denial, nor does she include an appropriate reference to the record that might reflect her basis for partial denial. (ECF Nos. 69 & 73 ¶ 13.)

         Plaintiff has appealed her conviction and sentence both through post-trial motions and to the appellate court. Throughout these proceedings and currently, Plaintiff was and is represented by the Public Defender's Office. Her conviction still stands. In response to an interrogatory as to what “personal property” she allegedly ...


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