United States District Court, M.D. Pennsylvania
ANTHONY L. TENON, Plaintiff
WILLIAM DREIBELBIS, et al., Defendants
William W. Caldwell United States District Judge
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
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.
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.
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
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
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.
Standard of Review
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).
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
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).
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).
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).
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,
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.).
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.).
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.).
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.” 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).
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
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.).
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).
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.).
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.).
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
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).
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.