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Tenon v. Dreibelbis

United States District Court, M.D. Pennsylvania

April 12, 2017

ANTHONY L. TENON, Plaintiff
v.
WILLIAM DREIBELBIS, et al., Defendants

          MEMORANDUM

          William W. Caldwell United States District Judge

         I. Introduction

         Plaintiff, Anthony L. Tenon, is an inmate at the State correctional institution at Smithfield, Pennsylvania. He filed this 28 U.S.C. § 1983 civil-rights suit alleging Eighth Amendment medical claims arising from treatment he received for a broken jaw. The defendants are: Dr. Ronald Long, at the relevant times the physician responsible for inmate medical care at the prison; and Dr. Ramesh Agarwal, a doctor who consulted one time on the care to be provided for the injury. Plaintiff claims each of the defendants violated the Eighth Amendment by failing: (1) to ensure a timely operation on his jaw; (2) to provide pain medication; and (3) to provide a soft diet.

         The defendants have each filed a motion for summary judgment. In moving for summary judgment, they both argue that Plaintiff has failed to show they were deliberately indifferent to his serious medical needs, an essential element of an Eighth Amendment medical claim. Dr. Agarwal also argues that he did not act under color of state law, an essential element of a civil-rights claim under section 1983.

         II. Procedural History

         In July 2012, Plaintiff initiated this lawsuit by filing his original complaint pro se. He named as defendants Dr. Long and Dr. Agarwal and three others: William Dreibelbis, the prison's health-care administrator; and Josh Mahute and Sean Tyson, both physician assistants at the prison. Plaintiff set forth Eighth Amendment claims against the defendants and a state-law claim for negligence, all arising from the treatment he received for his broken jaw.

         The magistrate judge conducted an initial screening of the complaint and recommended dismissal of all the claims except the ones against Dreibelbis. Before we acted on the recommendations, Plaintiff filed an amended complaint. In November 2012, the magistrate judge conducted an initial screening of the amended complaint. In December 2012, we adopted his report and recommendations and did the following, in pertinent part. We dismissed the following claims: (1) the Eighth Amendment medical claims against Defendants Mahute, Tyson, and Dr. Agawal; and (2) the state-law negligence claims against all the defendants. We permitted the Eighth Amendment claims to proceed against Dreibelbis and Dr. Long. See Tenon v. Dreibelbis, 2012 WL 6561378 (M.D. Pa. Dec. 17, 2012)(magistrate judge's report at 2012 WL 6561730).

         In November 2013, accepting the magistrate judge's report and recommendations, we granted Dreibelbis' and Dr. Long's motions for summary judgment. Tenon v. Dreibelbis, 2013 WL 5961081 (M.D. Pa. Nov. 7, 2013). In January 2015, the Third Circuit ruled that claims could not be made against the other defendants but decided that the Eighth Amendment claims could proceed against Dr. Agarwal and Dr. Long. The case was remanded for further proceedings. Tenon v. Dreibelbis, 606 F. App'x 681, 688 (3d Cir. 2015)(nonprecedential).[1]

         After remand, Plaintiff obtained counsel. Plaintiff was granted leave to file a second amended complaint against Dr. Long and Dr. Agarwal, in which he raised the Eighth Amendment claims now awaiting resolution. Dr. Agarwal filed a partial motion to dismiss, which we denied. Tenon v. Dreibelbis, 190 F.Supp.3d 412, 418 (M.D. Pa. 2016). The motions for summary judgment followed.

         III. Standard of Review

         Fed. R. Civ. P. 56 governs the grant of summary judgment. The moving party is entitled to summary judgment if he “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a). “Material facts are those that could affect the outcome of the proceeding, and a dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party.” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)(citation omitted).

         In pertinent part, parties moving for, or opposing, summary judgment must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “The non-moving party cannot rest on mere pleadings or allegations, ” El v. Southeastern Pennsylvania Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007), but “must set forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). We “must view all evidence and draw all inferences in the light most favorable to the non-moving party” and we will only grant the motion “if no reasonable juror could find for the non-movant.” Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008).

         IV. Background

         At the relevant time, Prison Health Services/Corizon was the private medical provider for medical care at the prison. (Doc. 121-5, ECF p. 15, Long Dep.). Defendant Dr. Long, board-certified in family practice, was the medical director at the prison and the regional medical director for the central region for Prison Health Services/Corizon. (Doc. 116, Long's statement of material facts (Long's SMF) ¶¶ 4-6, admitted by Plaintiff).

         As the medical director at the prison, Dr. Long supervised the physician assistants and nurses who provided the daily medical care to the inmates. (Doc. 121-5, ECF pp. 12-13, Long Dep.). Dr. Long would thus have been monitoring the treatment Plaintiff received from physician assistants and nurses. (Id., ECF p. 24). If Dr. Long believed a particular medical problem could not be handled at the prison, he would refer it to an outside specialist. (Id., ECF pp. 17-18). If the specialist recommended surgery, Dr. Long would review the chart and arrange for the surgery to be performed. (Id., ECF p. 18).

         As the regional medical director in charge of the Pennsylvania central region, Dr. Long was required to sign off on consultations requested at other prisons, and either approve them or provide an alternative treatment plan. (Id., ECF pp. 13-14). Dr. Long would thus sometimes sign off on a referral to an outside doctor both as the prison's medical director and as the regional medical director. (Id., ECF p. 18).

         On July 21, 2010, Plaintiff broke his jaw after a fall in his cell caused by a diabetic seizure. (Doc. 116, Long's SMF ¶ 9, admitted by Plaintiff; Doc. 121-7, ECF p. 1, progress notes dated July 21, 2010); Doc. 121-3, ECF p. 12, Tenon Dep.). Plaintiff sought treatment that day (Doc. 121-7, ECF p. 1, progress notes dated July 21, 2010) and walked to the infirmary himself. (Doc. 121-3, ECF p. 12, Tenon Dep.). He complained of mouth pain and was able to talk and eat with slight discomfort. (Doc. 121-7, ECF p. 1, progress notes dated July 21, 2010; Doc. 111, Agarwal's SMF ¶ 10, admitted by Plaintiff). He was prescribed ibuprofen (Motrin), 600 mg. three times a day, for seven days. (Doc. 110-5, ECF p. 53, physicians' order form; Doc. 116-2, ECF pp. 53-54, Long Dep.).

         On July 29, 2010, almost eight days later, Plaintiff was again seen in the infirmary, complaining of bilateral mandible pain. (Doc. 111, Agarwal's SMF ¶ 11, admitted by Plaintiff). Physician assistant Mahute discontinued the Motrin and prescribed Tylenol, 500 mg., twice a day, and naprosyn (Aleve), 500 mg. twice a day, both to be taken for a week. (Doc. 110-5, ECF p. 53, physician's order form; Doc. 116-2, ECF pp. 14-15, Long Dep.; Doc. 111, Agarwal's SMF ¶ 12, admitted by Plaintiff). Plaintiff stated he received the Tylenol and the Aleve. (Doc. 110-5, ECF pp. 20-21, Tenon Dep.).

         On July 29, 2010, Mahute also filled out a dietary order form, checking the box for a soft diet for Plaintiff. (Doc. 121-9, ECF p. 1). Dr. Long did not cosign this order nor does he recall seeing it. (Doc. 121-5, ECF pp. 31-33, Long Dep.). The procedure is that after he signs off on the order, the DOC would be responsible for carrying it out. (Doc. 121-5, ECF pp. 34, Long Dep.).

         On July 29, 2010, Mahute also ordered an X-ray of the bilateral mandible. (Doc. 110-5, ECF p. 53, physician's order form; Doc. 111, Agarwal's SMF ¶ 13, admitted by Plaintiff). X-rays were taken on the same day and read by the radiologist on August 2, 2010. The X-ray report stated:

Four views of the mandible were obtained. There is a mandibular fracture at the left body of the mandible near the angle of the mandible. Elsewhere, there is no apparent fracture or other acute bony abnormality. There is no evidence of a mass lesion. Soft tissue or dental abnormality is not excluded.

(Doc. 110-5, ECF p. 62, radiology report). Under “Impression, ” the report stated: “left mandibular fracture at the body of the mandible near the angle of the mandible.” (Id.).

         Also on July 29, 2010, Mahute requested a consultation with an off-site physician. (Doc. 110-5, ECF p. 57, “consultation record, ” Form DC-441). He described Plaintiff's history as a “Rt mandibular fracture[, ] possible ORIF.”[2] He noted that the consultation should be done “ASAP.” (Id.). Dr. Long approved the referral the next day, July 30, 2010, to an ear, nose and throat specialist. (Id.; Doc. 116, Long's SMF ¶ 10, admitted by Plaintiff in pertinent part). Approving the referral was the first time Dr. Long was aware Plaintiff had a broken jaw. (Doc. 116-2, ECF p. 14).

         On July 30, 2010, Plaintiff submitted a “sick call request” to the prison, indicating that he needed “to talk to a P.A. about getting stronger pain medication for my broken jaw because the Motrin is not working at all.” (Doc. 111, Agarwal's SMF ¶ 14, admitted by Plaintiff; Doc. 110-5, ECF p. 73, sick call request).

         On August 4, 2010, about a week after his last visit, Plaintiff was seen in the prison medical service for ankle pain after injuring his ankle. (Doc. 111, Agarwal's SMF ¶ 15, admitted by Plaintiff; Doc. 110-5, ECF p. 49, progress notes). On August 5, 2010, Plaintiff was prescribed Motrin, 600 mg., three times a day for two weeks, for ankle pain. (Doc. 110-5, ECF pp. 21-22, Tenon Dep.; Doc. 110-5, ECF p. 54, physician's order form). Plaintiff testified that as of August 5, 2010, he still had Motrin for pain, but his complaint was that it was not working. (Doc. 110-5, ECF p. 29, Tenon Dep.).

         On August 5, 2010, Plaintiff submitted an “inmate request to staff member” addressed to Dr. Long, stating that he needed to speak to him about his broken jaw, complaining that he had been waiting three weeks to get his jaw fixed, stating that he had submitted a sick call slip to obtain “stronger pain medication for [his] broken jaw, and that the Motrin that had been prescribed by physician assistants was “not working at all, ” although Plaintiff also explained he was receiving the Motrin for a sprained ankle, not his jaw. (Doc. 110-5, ECF p. 74, “inmate request” form; Doc. 110-5, ECF pp. 17-18, Tenon Dep.; Doc. 111, Agarwal's SMF ¶ 16, admitted by Plaintiff). In the form, Plaintiff also complained that he could not sleep at night or eat food because of the pain. (Doc. 110-5, ECF p. 74, “inmate request” form).

         According to Plaintiff, Dr. Long did not respond to this request slip. (Doc. 121-3, ECF pp. 22-23, Tenon Dep.). According to Dr. Long, he did not see the request slip, or he would have responded. The slips typically would come to him, but a lot of times a request slip addressed to him does not reach him. (Doc. 121-5, ECF pp. 26-27, Long Dep.).

         On August 5, 2010, Plaintiff was seen again for his ankle. (Doc. 110-5, ECF p. 50, progress notes; Doc. 111, Agarwal's SMF ¶ 17, admitted by Plaintiff). Plaintiff stated that the Motrin ran out by August 14, 2010. (Doc. 110-5, ECF pp. 18-19, Tenon Dep.).

         The July 30, 2010, referral for a consultation was made to Dr. Agarwal. (Doc. 110-5, ECF p. 57, “consultation record”). Dr. Agarwal practices otolaryngology (specializing in the ear, nose and throat) and, as part of his practice, from time to time examined prisoners at his office as an off-site consultant. (Doc. 111, Dr. Agarwal's statement of material facts (Agarwal's SMF) ¶ 3, admitted by Plaintiff). Dr. Agarwal has done outside consulting for prisons for about fifteen to twenty years, and less than five percent of his practice involves prison consultations. (Doc. 118-8, ECF p. 9, Agarwal Dep.). Dr. Agarwal was not employed by the Pennsylvania Department of Corrections (DOC). (Doc. 111, Dr. Agarwal's statement of material facts (Agarwal's SMF) ¶ 3, admitted by Plaintiff).

         The consultation was performed pursuant to DOC policy 13.2.1, Access to Health Care Procedures Manual, Section 6.n.2.b.vi and vii. (Doc. 110-4, ECF pp. 49-50, Long Dep.; Doc. 111, Agarwal's SMF ¶ 21, admitted by Plaintiff). That section authorizes “off-site specialty consultations.” The section anticipates the specialist will record his findings and recommendations and that a review would occur by prison personnel of any recommendations by the specialist requiring immediate attention. (Doc. 110-4, ECF pp. 69-70, DOC policy).

         Plaintiff was transported to Dr. Agarwal's office on August 5, 2010, for the consultation, the only time Dr. Agarwal saw Plaintiff. (Doc. 111, Agarwal's SMF ¶¶ 4 and 21, admitted by Plaintiff). Plaintiff would have brought with him the Form DC-441 and other medical records. (Doc. 110-3, ECF pp. 15-17, Agarwal Dep.). The consultation lasted about thirty-five to forty minutes. (Doc. 110-3, ECF p. 19, Agarwal Dep.; Doc. 111, Agarwal's SMF ¶ 30). During the consultation, Dr. Agarwal took a history from Plaintiff and reviewed the records sent to him by the prison, including Plaintiff's medication record showing the pain medications Motrin, Naprosyn (i.e., Aleve) and Tylenol. (Doc. 111, ...


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