United States District Court, E.D. Pennsylvania
David Robinson, an inmate at the State Correctional Institute
at Graterford (“SCI-Graterford”), brings this
counseled action against Corizon Health, Inc.
(“Corizon”), prison healthcare providers, and the
Commonwealth of Pennsylvania. He alleges violations of his
constitutional rights under the First, Eighth, and Fourteenth
Amendments, together with several state law tort claims.
Defendants are Corizon; Bruce Blatt, M.D.; Raymond Machak,
P.A.; Richard Kosierowski, M.D.; Margarita McDonald, M.D.;
Richard Stefanic, M.D.; John Zaro, D.O.; Frank Masino,
P.A.-C. (“Medical Defendants”); and the
Commonwealth of Pennsylvania. Plaintiff's claims relate
to Defendants' failure to diagnose and treat his kidney
Count I, Plaintiff alleges that the Medical Defendants'
treatment of him violated his Eighth and Fourteenth Amendment
rights. In Count II, Plaintiff alleges that
Corizon had a custom, policy, and practice of deliberate
indifference to his medical needs in violation of the Eighth
Amendment. In Count IV, Plaintiff alleges corporate
negligence against Corizon, and in Count V, he alleges
intentional infliction of emotional distress against all
Corizon, Dr. Blatt, Dr. McDonald, Dr. Kosierowski, Dr. Zaro,
and P.A. Machak move for summary judgment. (Doc. No.
Plaintiff has filed a Response in which he states that he is
unable to respond in good conscience to Defendants'
Motion for Summary Judgment because any response would be
without factual basis or merit. (Doc. No. 112.) For reasons
that follow, the Court will grant the Motion for Summary
1975, Plaintiff David Robinson has been incarcerated at
SCI-Graterford. (Doc. No. 95 ¶ 59.) He is serving a life
sentence. As noted, Plaintiff's claims center on Corizon
and the Medical Defendants' failure to detect and treat
his kidney cancer.
Plaintiff's Medical History and Care
inmate at SCI-Graterford, Plaintiff received medical
treatment through the Chronic Care Clinics
(“CCC”) run by Corizon. (Doc. No. 64 ¶¶
31, 34.) In 2000, Plaintiff saw Dr. Kosierowski and was told
that he had high blood pressure after suffering from a
nosebleed. (Doc. No. 94-4 at 53:13-54:13.) From that point
on, Plaintiff was prescribed medication for high blood
pressure. (Id. at 54:10-13.)
the next approximately eleven years, Plaintiff was seen by
various medical providers at SCI-Graterford for high blood
pressure and other issues. In his deposition, Plaintiff
testified that around 2006, he asked Dr. Kosierowski if his
blood pressure medicines could cause cancer, but that Dr.
Kosierowski did not answer him. (Doc. No. 94-4 at
59:22-60:2.) Plaintiff did not speak to any other doctor,
including Drs. Blatt, McDonald, and Zaro and P.A. Machak,
about whether the medicine he took caused cancer.
(Id. at 60:6-21.)
March 15, 2006, Plaintiff again was seen in the CCC for
hypertension. (Id. ¶ 11.) On Plaintiff's
medical chart from that day is the following notation:
“UA: Trace protein Micro Albumin [sic] 5.2 Hi.”
(Id.) Plaintiff alleges that when the kidneys are
damaged, small amounts of albumin leak into the urine, a
condition known as microalbuminuria. (Doc. No. 64 ¶ 52.)
This condition can be caused by high blood pressure, and if
not treated can lead to kidney disease. (Id. ¶
53.) Almost one month later, because of the protein that had
been seen in Plaintiff's urine analysis, Dr. Zaro added
ACE inhibitors for renal protection. (Doc. No. 95 ¶ 14.)
He was seen two more times in 2006. (Id.
¶¶ 15, 16.)
February 27, 2007, a doctor ordered Plaintiff to receive the
medications Mevacor, HCTZ, Prinivel, ASA, and Elavil.
(Id. ¶ 19.) About two weeks later, he was seen
for hard stools and blood in his stool. (Id. ¶
20.) On August 14, 2007, when P.A. Korszniak examined
Plaintiff, his blood pressure was 128/66. (Id.
¶ 21.) From 2007 to 2009, the Mevacor, HCTZ, Prinivel,
ASA, and Elavil medications were renewed. (See id.
¶¶ 22, 25-27, 32, 35-36.) Throughout that period of
time, Plaintiff was seen periodically by the medical
professionals, and his blood pressure fluctuated. (See
id. ¶¶ 24, 37, 88.)
and 2010, Plaintiff was seen at times for annual exams,
hypertension, and high blood pressure, which continued to
fluctuate. (See id. ¶¶ 37, 39, 41, 42, 47,
49.) In those years, Plaintiff continued to smoke cigarettes
but reported no shortness of breath, chest pain, headaches,
or dizziness. (See id. ¶¶ 37, 49.) On
August 24, 2009, Dr. Zaro decreased his dose of HCTZ
medicine, added the medication Norvasc, ordered him to have
his blood pressure checked twice weekly for three weeks, and
told him to stop smoking. (Id. ¶ 37.) On
December 14, 2009, Dr. McDonald ordered that Plaintiff have
his blood pressure checked twice weekly for four weeks.
(Id. ¶ 41.) Just over a month later, his HCTZ
and Elavil doses were increased. (Id. ¶ 43.)
February 3, 2010, P.A. Machak ordered laboratory studies and
renewed Plaintiff's blood pressure medications.
(Id. ¶ 45.) On August 18, 2010, Plaintiff
complained t o D r. McDonald that he had not received his
HCTZ since May 2010. (Id. ¶ 47.) Dr. McDonald
discontinued the Mevacor, restarted the HCTZ, and ordered
blood pressure checks twice weekly for four weeks.
(Id.) She also ordered Prinivel, ASA, increased
Elavil, and Norvasc, as well as laboratory studies.
(Id. ¶ 48.) On September 23, 2010,
Plaintiff's Norvasc dosage was increased. (Id.
¶ 49.) Plaintiff was examined in January and February
2011. (Id. ¶¶ 50, 51.) In February 2011,
Plaintiff complained of blood in his urine. (Id.
¶¶ 77, 78.) Dr. Kosierowski told Plaintiff that it
would clear in a couple of days, and in three days, it did.
(Id. ¶ 79.)
March 9, 2011, Plaintiff was examined by Dr. Stefanic, after
complaining about diffuse abdominal pain for three days.
(Id. ¶ 52.) Dr. Stefanic examined
Plaintiff's stomach and believed that he had possible
constipation. (Id.) He gave Plaintiff a laxative and
told him to return that evening if no improvement occurred.
(Id.) The same day, a different doctor saw Plaintiff
for abdominal pain. (Id. ¶ 53.) Plaintiff
reported vomiting the previous night, and his last bowel
movement was on March 7, 2011. (Id.) Plaintiff was
transferred to the emergency room for possible acute bowel
days later, Plaintiff returned from the hospital with a
diagnosis of possible kidney cancer, and three days after, he
was diagnosed with kidney cancer and transferred to
SCI-Pittsburgh. (Id. ¶¶ 54, 55.) On May
21, 2011, he underwent a right nephrectomy, which is the
surgical removal of his right kidney. (Id. ¶
56.) Then, on September 27, 2011, a portion of his left
kidney was removed. (Id. ¶ 57.) In his
deposition, Plaintiff testified that none of his family
members had kidney cancer. (Id. ¶ 61.) He never
asked his surgeon how people get kidney cancer. (Id.
¶ 110.) Plaintiff believes, however, that the different
blood pressure medicine he was prescribed caused him to
develop kidney cancer. (Id. ¶ 92.)
cancer physician who saw Plaintiff in 2011 did not state
whether he had cancer in 2006, and Plaintiff does not know if
Dr. Kosierowski knew in 2006 whether Plaintiff had cancer
when he spoke to him about the condition. (Id.
¶¶ 93, 94.) Further, no medical professional ever
told Plaintiff that his cancer could be traced to 2006.
(Id. ¶ 95.) He has no evidence that Drs.
Kosierowski, McDonald, and Zaro, or P.A. Machak knew in 2006
that he had cancer. (Id. ¶¶ 97-100.)
Plaintiff Did Not Exhaust the Grievance Process
Commonwealth of Pennsylvania Department of Corrections
(“DOC”) policy DC-ADM 804 applies to every inmate
and establishes the procedures for the review of inmate
grievances. (Doc. No. 94-11.) The policy outlines a
three-step system for handling inmate grievances. First,
initial grievances must be submitted to the Facility
Grievance Coordinator using the DC-ADM 804, Part 1 Form.
(Id., Part IV.A.6.) The policy provides:
7. The inmate will include a statement of the facts relevant
to the claim. The text of the grievance must
be legible, understandable,
and presented in a courteous manner . . . .
The inmate will identify any person(s) who may have
information that could be helpful in resolving the grievance.
. . .
8. The inmate must submit a grievance for initial review to
the Facility Grievance Coordinator within 15 working days
after the event upon which the claim is based.
* * *
14. The inmate must sign and date the grievance or appeal.
(Id., Part IV.A.7-8, 14 (emphasis in original).) A
Grievance Officer will provide to the inmate an Initial
Review decision within ten days of receipt of the grievance.
(Id., Part IV.B.)
“[a]n inmate may appeal an Initial Review decision . .
. to the Facility Manager in writing, within
10 working days from the date of
the Initial Review decision . . . ...