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Anderson v. Bickell

United States District Court, M.D. Pennsylvania

February 28, 2017

T. BICKELL, et al., Defendants


          A. RICHARD CAPUTO United States District Judge

         I. Introduction

         Presently before the Court are Defendants' motions to dismiss Mr. Anderson's Amended and Supplemental Complaint. The Pennsylvania Department of Corrections (DOC) defendants have filed separate motions to dismiss addressing the Amended Complaint and the Supplemental Complaint, [1] while T. Parkes (Corizon employee) has filed a motion to dismiss the Amended Complaint. All motions have been briefed and are ripe for consideration.

         For the reasons that follow, the Court will grant the Defendants' motions to dismiss the Amended and Supplemental Complaints.

         II. Procedural History

         On August 18, 2014, Mr. Anderson filed his original Complaint in this matter against fourteen defendants who worked at two different correctional facilities: SCI-Camp Hill and SCI-Huntingdon. The majority of the defendants were employed by the DOC, while others were employed by Corizon Medical Services (Corizon), the contract medical care providers at SCI-Huntingdon.[2] (ECF No. 1, Compl.)

         On March 30, 2016, the Court granted in part, and denied in part, the DOC and Corizon defendants' motions to dismiss. See ECF Doc. 51. In the Order, Mr. Anderson was specifically advised as to which claims were dismissed with prejudice and those he could reassert in an amended complaint. (Id., pp. 29 - 30.) The following claims were dismissed as time barred as they accrued prior to August 18, 2012: (1) all claims against the SCI-Camp Hill defendants (J. Ditty; PA Dieburt; T. Henry; K. Moore; and I. Taggart) as Mr. Anderson was transferred to SCI-Huntingdon on August 30, 2011; (2) pre-August 18, 2012, claims related to the release of Plaintiff's medical records (I. Taggart; K. Jackson; C. Stubler; and C. Green); (3) Eighth Amendment medical claims concerning the scheduling of an October 2011 orthopedic consult, physical therapy or an MRI (M. Showalter; C. Boozel; and T. Parkes); (4) Eighth Amendment claims related to Grievance 407311 concerning his knee injury (C. Green; M. Showalter; Supt. Bickell; and C. Boozel) and (5) any pre-August 18, 2012 claims related to Mr. Anderson's receipt of a bottom bunk/bottom tier status (PA Riscigno). (Id., pp. 11 - 17.)

         Mr. Anderson's post-August 18, 2012 claim that K. Jackson, or any other defendant, violated his Eighth Amendment rights by denying him access to his medical records was dismissed with prejudice for failure to state a claim. (Id., pp. 20 - 22.)

         The following post-August 18, 2012, claims were subject to dismissal without prejudice and thus were permitted to be re-plead: (1) Eighth Amendment medical claims against Supt. Bickell, M. Showalter, C. Green, C. Stubler, PA Riscigno, C. Boozel and T. Parkes “for events that accrued between August 18, 2012 and August 18, 2014.” (Id., pp. 17 and 27); (2) Plaintiff's access-to-courts claim against Librarian Jeshonek; and (3) Plaintiff's Americans with Disabilities Act (ADA) claim against the SCI-Huntingdon defendants. (Id.)

         C. Boozel, a Corizon employee, sought dismissal of the Complaint based on improper service. (ECF No. 20.) His motion was denied (ECF No. 51, pp. 24 - 25) after it was noted that the Court, not Plaintiff, was responsible for any errors in service. (Id., p. 25.) Nonetheless, all claims against C. Boozel were dismissed as time-barred. Mr. Anderson was advised C. Boozel would be served with a copy of the amended complaint, if warranted, after the Court screened it pursuant to 28 U.S.C. § 1915.

         Mr. Anderson was granted twenty-one days to file an amended complaint. (Id., p. 30.) He was then granted an enlargement of time to file his amended complaint. (ECF No. 55.) After he failed to file an amended complaint or seek additional time to do so, the Court closed the case. (ECF No. 56.) After Mr. Anderson indicated his amended complaint was either lost or delayed in the mail, the matter was reopened. (ECF No. 63.)

         On July 21, 2016, Mr. Anderson filed an Amended Complaint (ECF No. 64) and a Supplemental Complaint (ECF No. 64-1), and sixty-four pages of supporting exhibits (ECF No. 64-2).[3]

         III. Allegations of the Amended and Supplemental Complaint [4]

         A. Amended Complaint (ECF No. 64)

         Named as Defendants are the following DOC Defendants: Supt. Bickell; K. Nicole (previously identified as Kerri Moore); C. Green, Unit Manager Hollibaugh; M. Showalter; acting Supt. J. Eckard; B. Jeshonek and Father Wireman. The following Corizon employees are named: C. Boozel; K. Jackson; T. Parkes; M. McConnell; M. Gomes and P. Price.[5]

         Mr. Anderson arrived at SCI-Camp Hill on April 5, 2011 to commence serving his state sentence. (ECF No. 64, p. 2.) In July 2011, while at SCI-Camp Hill, he fell injuring his back, right wrist and knee. (Id., ¶ 14.)

         On August 30, 2011, Mr. Anderson was transferred to SCI-Huntingdon. (Id.) Upon his arrival he advised medical staff that he was a diabetic and was suffering from pain from his July fall. (Id., ¶ 15.) On September 25, 2012, Mr. Anderson underwent corrective surgery for his wrist injury. (ECF No. 64, ¶ 17 and ECF No. 64-2, p. 31.) Two days later, “because he did not get a medical lay-in, ” Mr. Anderson was “forced” to return to work in the kitchen “under penalty of receiving a misconduct.” (Id.; ECF No. 64-2, pp. 33 - 34.) Consequently he re-injured his wrist. (ECF No. 64, ¶ 17.) He was then placed on medical lay-in until cleared by his doctor. (ECF No. 64-2, p. 33.) In response to his inquiry, CHCA Showalter advised Mr. Anderson he would not receive “lay-in” pay as his injury was not work related. (Id., p. 34.) Mr. Anderson was cleared for “light duty” work on November 7, 2012. (Id., p. 35.) Although prescribed Percocet by his physician, prison staff provided him Tylenol 3, which was “cut off” on November 10, 2012. (Id.) On November 27, 2012 his medication was reordered. (Id.) In January or February 2013, Mr. Anderson underwent a second corrective surgery to his wrist. (Id., p. 4.)

         “During all of this time, ” Mr. Anderson complained of blurred vision, back and knee pain. (ECF No. 64, ¶ 18.) He “is a diabetic and was refused insulin for over 3 years” as well as a “correct diabetic diet.” (Id., ¶¶ 23 - 24.) His elevated triglyceride levels were ignored by medical staff for “well over a year.”

         In September 2013, Mr. Anderson requested to be seen by a physician rather than a physician assistant because the “physician assistant only switch [his] medication constantly with no results” on his high sugar and triglycerides. (ECF No. 64-2, p. 23.) He disagrees with the physician assistant's statement that he is a “borderline diabetic.” (Id.) CHCA Price advised Mr. Anderson to sign up for sick call to schedule an appointment with a physician. (Id.)

         On January 24, 2014, Mr. Anderson wrote to CHCA Price asking to be seen by a physician because a physician assistant had changed his insulin resulting in higher sugar levels. (Id., p. 24.) He advised CHCA Price that he “wishes only to be seen by the doctor about [his] sugar and triglycerides.” (Id.) CHCA Price advised Mr. Anderson to sign up for sick call to schedule an appointment with the physician. (Id.)

         Mr. Anderson claims he has not received proper treatment for a torn meniscus in his right knee. (ECF No. 64, ¶ 19.) Mr. Anderson has held a bottom bunk/bottom tier housing designation, at the request of SCI-Huntingdon medical staff, due to right knee pain “possible meniscus tear” and later bilateral “degenerative knee joints” since March 2012. (ECF No. 64-2, pp. 47 - 48, 50 - 52, 55.) He has received knee braces or sleeves as early as August 2012. (Id., pp. 53 -54, 56 - 62.) Mr. Anderson alleges that once given the bottom bunk/bottom tier designation, he “cannot go beyond the first floor of any building inside the prison, you are not permitted to climb stairs”. (ECF No. 64, ¶ 21.) Any violation of this restriction subjects him to “receiving a misconduct.” (Id.)

         SCI-Huntingdon's law library is on the second floor of the institution. (Id., ¶ 28.) The chapel is located on the fourth floor. (Id., ¶ 25.) Although “medically restricted, ” Mr. Anderson is forced make the painful trek to the upper floors of the institution to access religious, psychological, school, dental, parole, and psychiatric services. (Id., ¶ 22.) He claims that SCI-Huntingdon's failure to provide these services for “disabled, restricted, disability, and handicap inmates” on the ground level is discriminatory. (Id.)

         Mr. Anderson was continually advised that if he felt his medical issues prevented him from accessing areas of the institution, he should address his concerns with the medical department. (ECF No. 64-2, pp. 19 - 22.) He was also advised that “accommodations are made on individual basis for inmates who need it.” (Id., p. 21.) In June 2013, Superintendent Bickell advised Mr. Anderson that the DOC's Central Office Inmate Disability Accommodations Committee had reviewed, and denied, his request for “an accommodation in accordance with DC ADM 006 Reasonable Accommodations for Inmates and Disabilities” after determining that his “medical condition does not rise to the level of a disability.” (ECF No. 64-2, p. 49.)

         From August 2012 through 2015, Mr. Anderson worked in SCI-Huntingdon's kitchen. (Id., p. 63.) He claims that because religious services and law library are both open Sunday morning at the same time, he is forced to chose between foregoing his religious practices or using the law library to access the courts. (ECF No. 64, ¶ 25.) On January 4, 2013, Mr. Anderson requested to be scheduled for the law library on Mondays. For scheduling reasons he was given a Wednesday afternoon appointment. He then wrote to the library staff advising them that because of his work schedule he only has Sunday and Monday off. (ECF No. 64-2, p. 36.) As such, he needs to be scheduled for the law library on Monday morning and afternoon as he “can't go on Sunday (religion).” (Id.) He was then scheduled for Monday. Mr. Anderson advised the library staff that he works “Tuesday through Saturday in the morning and Thursday is [his] commissary day and [he has] to go to commissary in the afternoon because [he] work[s] on Thursday morning.” (Id., p. 37.) He complained that staff scheduled him for “whatever day [they chose] instead of giving [him] the day [he] requested.” (Id.) Staff replied that he could not dictate library scheduling and that where his scheduled time conflicts with his work, school or programming schedule he should advise staff. (Id.)

         On May 8, 2013, Mr. Anderson's request to be placed on the Tuesday morning law library list was denied due to lack of available space. He was advised that he could be scheduled for another day. (Id., p. 40.) His May 17, 2013, request to be scheduled for Tuesday and Wednesday mornings so he could go to library with someone who was helping him on a pro se appeal was also denied. (Id., p. 41.) However, he was scheduled for Friday morning that week and advised there were legal aides to assist him. (Id.) After Mr. Anderson advised library staff he worked Friday mornings, he was scheduled for a Tuesday evening slot. (Id., p. 42.) Mr. Anderson then wrote to law library staff asking “[h]ow hard is it to put a person on a call-out for the exact day and time they request?” (Id.) He sought to be removed from the Tuesday night list and placed on the Tuesday and Wednesday morning list. (Id.) Staff advised him that the time he requested was full and he was scheduled for law library time “according to your work, programs, or school ... but specific days can not always be scheduled.” (Id.) In June 2013 Mr. Anderson requested that his Tuesday night law library slot be switched to Tuesday and Wednesday mornings. His request was denied as those time slots were filled. (Id., p. 44.)

         On August 20 and 21, 2013, Mr. Anderson's law library appointments were cancelled by staff after he failed to show for his scheduled law library times on August 13 and 14, 2013. (Id., p. 45.) He claims he missed these scheduled times because he had medical appointments. Library staff asked Mr. Anderson to have medical staff verify this information. (Id.) Mr. Anderson missed his law library appointment on January 10, 2014 because he had a tooth pulled and his law library appointment on January 16, 2014, because he had the flu. (Id., p. 46.) As requested by Mr. Anderson, CHCA Price confirmed this information for him to show the law library staff. (Id.)

         In January 2015, Mr. Anderson advised law library staff that his work schedule had changed. His previous days off were “Thursday and Friday” but now were “Tuesday and Wednesday”. (Id., p. 38.) He requested staff to change his scheduled time in the law library. (Id.) He was then scheduled for Tuesday evening and Thursday morning. (Id.) Later that week he wrote to staff asking to switch his scheduled library time and has a court deadline to meet. (Id., p. 39.) Library staff scheduled him for Tuesday, Wednesday and Thursday evening “until your deadline 2/9/15.” (Id.)

         Next, Mr. Anderson claims Ms. Hollibaugh, his Unit Manager, does not assist him to resolve issues but refers “all of his grievances to the grievance coordinator until after he filed this lawsuit.” (ECF No. 64, ¶ 26.)

         Finally, Mr. Anderson alleges that he has unsuccessfully tried to receive a copy of his medical records since his arrival at SCI-Huntingdon in August 2011. On December 12, 2013 he requested a copy of his medical and mental health records be sent to Angus Love, Esquire, of the PA Institutional Law Project. (ECF No. 74, p. 6.) K. Jackson witnessed his completion of the appropriate records request form but Mr. Anderson claims he has yet to receive the records. Defense counsel in this case, in response to Mr. Anderson's discovery request for his medical records, made them available ...

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