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Cowher v. Pike County Correctional Facility

United States District Court, M.D. Pennsylvania

July 23, 2019

MYRON COWHER, Plaintiff,
v.
PIKE COUNTY CORRECTIONAL FACILITY, et al., Defendants.

          AMENDED MEMORANDUM

          KAROLINE MEHALCHICK, UNITED STATES MAGISTRATE JUDGE

         Before the Court are two Motions for Summary Judgment submitted by both sets of Defendants, PrimeCare and Correct Care. For the reasons set forth herein, the Court grants the Defendants' motions for summary judgment.

         I. Background and Procedural History

         Plaintiff Myron Cowher (“Cowher” or “Plaintiff”) commenced this action on November 10, 2016, while incarcerated at the Pike County Correctional Facility. (Doc. 1, at ¶ 1). The operative complaint in this action is Cowher's second amended complaint, filed on June 27, 2017 against the following Defendants: Pike County, Warden Craig A. Lowe, Assistant Warden Jonathan J. Romance, Assistant Warden Robert E. McLaughlin, PrimeCare Medical Inc., Kendle Jeminola, Denise Jeminola, Derek Hughes, Thomas J. Weber, Todd W. Haskins, the Pennsylvania Department of Corrections (“DOC”), Superintendent Theresa Delbalso of State Correctional Institute (“SCI”) Mahanoy, Laurel Harry of SCI Camp Hill, and Correct Care Solutions. (Doc. 29, at 1-2).

         Defendants DOC, Theresa Delbalso, Laurel Harry, Pike County, Craig A. Lowe, Jonathan J. Romance, and Robert E. McLaughlin were previously dismissed from this action. (Doc. 44); (Doc. 56 at ¶ 2); (Doc. 70, at 1). The remaining defendants are PrimeCare Medical Inc., Kendle Jeminola, Denise Jeminola, Derek Hughes, Thomas J. Weber, Todd W. Haskins (the “PrimeCare Defendants” or “PrimeCare”) and Correct Care. Cowher brings an Eighth Amendment deliberate indifference claim and a Monell claim against both the Prime Care and Correct Care Defendants. (Doc. 29, at 11; 19). Cowher also asserts state law claims against both Defendants. (Doc. 29, at 15; 17).[1] Specifically, Cower alleges the Defendants acted unlawfully and with deliberate, intentional, willful, unreasonable, malicious, and/or reckless indifference to his need for surgery and to following his prescription medication regiment, by failing to recognize the need for medical attention, and failing to provide medical care, all in violation of his Eighth Amendment rights. (Doc. 29). Cowher's claims against the PrimeCare Defendants arise from his medical treatment by those defendants during his incarceration at the Pike County Correctional Facility from May 23, 2016 through November 17, 2016, when he was transferred to SCI-Graterford. (Doc. 72 at 6 ¶ 18; at 36 ¶ 132); (Doc. 73 at 7). His claims against Correct Care stem from his medical treatment at SCI Camp Hill, SCI Graterford, and SCI Mahanoy. (Doc. 77 at 1 ¶ 2).

         Cowher seeks “compensatory damages, including damages for pain and suffering and emotional distress in excess of $75, 000.00, as well as attorney's fees under 42 U.S.C. § 1988 and punitive damages, pre- and post- judgment interest, delay damages, and… other monetary relief.” (Doc. 29 at 22).

         Following the close of discovery, both the PrimeCare Defendants and Correct Care moved for summary judgment (Doc. 71; Doc. 75) and submitted briefs in support (Doc. 73; Doc. 76) and statements of material facts (Doc. 72; Doc. 77). Both the PrimeCare Defendants and Correct Care aver that the undisputed record does not support either Cowher's claim of deliberate indifference to a serious medical need, his Monell claim, or his remaining state law claims of negligence and intentional infliction of emotional distress. Additionally, Correct Care submits that Cowher failed to exhaust his administrative remedies and is thus barred from pursuing his claims in this Court. Cowher filed briefs in opposition to the motions for summary judgment (Doc. 82; Doc. 84), and answers to each statement of facts (Doc. 81; Doc. 83). The PrimeCare Defendants filed a reply brief (Doc. 84) and an answer to Cowher's responsive statement of facts (Doc. 86).

         Both motions for summary judgment are ripe for review. The following facts are material to the motions for summary judgment.[2]

         A. Cowher's Pre-Incarceration Medical History

         In 2008, Cowher underwent surgery for a right meniscus tear and for left-sided arthritis. (Doc. 72, at ¶ 1). On April 16, 2016, Cowher suffered a work-related injury. (Doc. 72, at ¶ 2). On April 27, 2016, Cowher saw medical providers at a MedExpress and reported that he was suffering from shoulder and back pain, as well as leg numbness, stemming from his work-related injury. (Doc. 72, at ¶ 2). Cowher received X-Rays, which did not reveal any significant medical abnormality, and MedExpress recommended that Cowher receive an MRI. (Doc. 72, at ¶¶ 3-4). Cowher underwent three MRI's in early May 2016, none of which noted an urgent need for surgery. (Doc. 72, at ¶¶ 7-8, 10).

         On May 10, 2016, a MedExpress physician “recommended that MedExpress arrange for the cervical spine MRI and re-schedule the neurosurgery appointment that was previously scheduled to occur on June 21, 2016, to occur sooner.” (Doc. 72, at ¶ 9). Cowher met with Dr. Dana Louise Vanino, a neurologist at Geisinger Medical Center, on May 19, 2016. (Doc. 72, at ¶ 12). Dr. Vanino recommended that Cowher be evaluated by a neurosurgeon. (Doc. 72, at ¶ 13). At his final evaluation at MedExpress on May 21, 2016, the physician noted “significant findings mostly on cervical MRI; Intensity: Now-4.” (Doc. 72, at ¶ 14); (Doc. 72-1, at 14); (Doc. 81, at ¶ 14).

         B. Incarceration at Pike County Correctional Facility

         Cowher began his incarceration at the Pike County Correctional Facility on May 23, 2016, with an expected end date of August 4, 2016. (Doc. 72, at ¶¶ 16-17). Cowher first presented to the PrimeCare Medical Defendants at the Correctional Facility on May 23, 2016 and received medical care from them through November 17, 2016. (Doc. 72, at ¶ 19). At Cowher's intake screening evaluation, LPN Melissa Erickson noted Cowher walked with a cane, was taking a few medications at the time, and stated a medical history which included cervical stenosis of spinal canal and disc herniation C4-C7. (Doc. 72, at ¶ 20). She assigned Cowher a bottom bunk and allowed him to retain his cane and neck brace. (Doc. 72, at ¶ 20). At his intake evaluation, Cowher stated he had not taken any of his medications since May 20, 2016 because he did not want to be medicated during his trial. (Doc. 72, at ¶ 22).

         PrimeCare verified Cowher's prescriptions with his outside medical providers, who ordered that: Cowher's course of Flexeril be completed by May 24, 2016; his course of Neurontin be completed by May 29, 2016; and his course of Prednisone taper be completed by June 16, 2016. (Doc. 72, at ¶ 24). On May 24, 2016, Dr. Wloczewski of PrimeCare met with Cowher and noted mild distortion with C6-C7 of the spinal cord, C4-C5 stenosis, and that a neurosurgery office appointment was scheduled for June 21, 2016. (Doc. 72, at ¶ 30). Dr. Wloczewski issued orders for Cyclobenzaprine (aka Flexeril), Nortriptyline rather than Gabapentin (aka Neurontin), and the Prednisone taper. (Doc. 72, at ¶ 31). The neurosurgery office appointment was moved to May 31, 2016; however, Cowher did not attend this appointment. (Doc. 72, at ¶¶ 33, 40).

         Cowher's next neurosurgery appointment was scheduled to take place on July 19, 2016. (Doc. 72, at ¶ 46). However, on June 7, 2016, PrimeCare did not approve the July 19th surgery because workers' compensation would not pay for the surgery while Cowher was incarcerated. (Doc. 72, at ¶ 48). On June 9, 2016, PA-C Andrew McMaster evaluated Cowher for his complaint of pain. (Doc. 72, at ¶ 49). PA McMaster discontinued Robaxin and added Flexeril, but otherwise continued with Cowher's previously prescribed medication. (Doc. 72, at ¶ 49). On June 16, 2016, PrimeCare increased Cowher's dosage of Flexeril from 5 mg to 10 mg, in light of Cowher's muscle spasms. (Doc. 72, at ¶ 55). On June 28, 2016, Dr.

         Wloczewski evaluated Cowher and assessed that he had chronic pain, thereby increasing Cowher's dosage of Nortriptyline for nerve pain from one capsule at bedtime to two. (Doc. 72, at ¶¶ 59-60). The following day Cowher underwent X-rays for his right hip and pelvis, which showed Cowher had a normal right hip, and a “normal limited pelvis.” (Doc. 72, at ¶ 61).

         On July 12, 2016, PrimeCare approved Cowher's July 19th neurosurgery appointment, but again noted that the workers' compensation carrier continued to refuse to pay for the appointment while he was incarcerated. (Doc. 72, at ¶ 64). On July 19th, Dr. Rajjoub, of Lycoming Neurological Associates, reviewed three of Cowher's previous MRIs and noted a variety of ailments. (Doc. 72, at ¶ 65). Dr. Rajjoub documented the following treatment plan:

Discussed the findings with Mr. Cowher at length. Explained surgery and alternatives. Explained non-surgical treatment and risks including doing nothing. Explained risks such as infection, numbness, pain, paralysis, weakness, hoarse voice, swallowing difficulty, pain, blood loss, CSF leak, nonunion of fusion, instability, vocal cord paralysis or voice change, etc. He indicated understanding and wishes to proceed with surgery. Please call to arrange for anterior cervical diskectomy C6-7 with allograft bone and instrumentation. B proteins are not used in this procedure.

(Doc. 72, at ¶ 66).

         Dr. Rajjoub's evaluation did not recommend Cowher undergo lumbar back, knee, or hip surgery of any kind, but noted that an anterior cervical diskectomy C4-5 and C6-7 with allograft bone and instrumentation should be arranged. (Doc. 72, at ¶ 68; Doc. 81, at ¶ 66). On July 19, 2016, LPN Kimberly Montauredes documented that “[p]atient is recommended to have cervical diskectomy with fusion - will have HSA call office to schedule.” (Doc. 72, at ¶ 70).[3]

         As of July 21, 2016, Cowher was scheduled for cervical surgery to occur at Williamsport Hospital on September 2, 2016. (Doc. 72, at ¶ 71). On July 26, 2016, PrimeCare noted “Corporate will NOT pay for surgery. If Pt. wants it he must pay on his own.” (Doc. 81, at ¶ 72). In late July, PrimeCare made orders for certain prescription medications on Cowher's behalf. (Doc. 72, at ¶¶ 74, 77, 78). On August 7, 2016, LPN Kimberly Montauredes evaluated Cowher with respect to his complaints that his musculoskeletal pain was not relieved by his current medications. (Doc. 72, at ¶ 81). However, Cowher was to continue with the medication regimen until such time as he could be further evaluated by a medical provider. (Doc. 72, at ¶ 81).

         On August 11, 2016, the Honorable Gregory H. Chelak sentenced Cowher to a period of incarceration, to be served in State Correctional Institutions, where PrimeCare would no longer be responsible for providing Cowher's medical care. (Doc. 72, at ¶ 82). On September 1, 2016, HSA Kendle Jeminola completed a Transfer of Health Information, noting Cowher's chronic and acute health problems. (Doc. 72, at ¶ 84).

         On September 12, 2016, LPN Erickson evaluated Cowher and assessed him with back pain and referred him to a provider. (Doc. 72 at, ¶ 86). On September 20, Dr. Wloczewski evaluated Plaintiff's right hand and assessed Plaintiff as possibly having Raynaud's disease and ordered a trial of Norvac. (Doc. 72, at ¶ 89). On October 6, 2016, Paulina Foley, PA-C re-evaluated Plaintiff's right hand because he reported that the trial of Norvac was ineffective. (Doc. 72, at ¶ 95). On October 18, 2016, Cowher underwent the pre-operative consultation with Dr. Rajjoub. (Doc. 72, at ¶ 99). Dr. Rajjoub noted Cowher's diagnosis of Raynaud's disease and documented the ongoing pain in his cervical spine, shoulder and/or arm, and right hip, as well as numbness and/or tingling to his low back. (Doc. 72, at 99). Pre-admission testing and surgical instructions were provided. (Doc. 72, at ¶ 99). Dr. Rajjoub's notes from October 18, 2016 specifically include:

Discussed the findings with Mr. Cowher at length. Explained surgery and alternatives. Explained non-surgical treatment and risks including doing nothing. Explained risks such as infection, numbness, pain, paralysis, weakness, hoarse voice, swallowing difficulty, pain, blood loss, CSF leak, nonunion of fusion, instability, vocal cord paralysis or voice change, etc. He indicated understanding and wishes to proceed with surgery. Please call to arrange for anterior cervical diskectomy C4-5 and C6-7 with allograft bone and instrumentation. B proteins are not used in this procedure.

(Doc. 72, at ¶ 101).

         Dr. Rajjoub did not recommend that Plaintiff undergo any further lumbar back or hip treatment (including, but not limited to surgery, as a result of this office appointment.) (Doc. 72, at ¶ 104).

         On October 19, 2016, Cowher received a Release of Financial Responsibility, which outlined that the surgery he requested was either elective or cosmetic in nature. (Doc. 72, at ¶ 105) (emphasis added). PrimeCare is not required to provide elective or cosmetic surgeries. (Doc. 72, at ¶ 105). Cowher would need to assume personal financial responsibility for such procedures. (Doc. 72, at ¶ 105). Specifically, the Release states “I understand that PrimeCare Medical, Inc. will schedule the treatment but is not responsible for payment.” (Doc. 72-5, at 42). Cowher refused to sign the document; however, it was signed by HSA Jeminola and another staff witness. (Doc. 72, at ¶ 105); (Doc. 72-5, at 42); (Doc. 82, at ¶ 105). Cowher testified in his deposition that he never saw this document because a “Nurse Bill” covered the form and told him that he would not get the surgery if he did not release PrimeCare for any liability. (Doc. 81, at ¶ 106). On October 20, Cowher told PA Pauline Foley that the neurosurgeon found his symptoms were caused by a cervical spine issue, not Raynaud's disease. (Doc. 72, at ¶ 107). PrimeCare documented that Cowher's cervical spine surgery would occur on January 4, 2017, as that was the first available date. (Doc. 72, at ¶ 108).

         On November 3, 2016, PA Foley evaluated Cowher and offered an increase in his pain medications, an additional x-ray (the earlier hip x-ray was normal), and crutches. (Doc. 72, at ¶ 119). According to the notes, Cowher “was not happy with this response" and declined the offer of crutches in favor of a cane. (Doc. 72, at ¶ 119). PA Foley prescribed Ultram and ordered a pelvic x-ray to be taken the next day. (Doc. 72, at ¶ 119). On November 4, 2016, right hip and pelvis X-rays revealed no fracture, dislocation, or abnormalities. (Doc. 72, at ¶ 121). The following afternoon LPN Tara Donaghy observed Cowher walking without his cane during medication pass. (Doc. 72, at ¶ 122). On November 16 or 17, 2016, PrimeCare shared the results of the November 4th X-rays with Cowher. (Doc. 72, at ¶ 144). On November 17, 2016, HAS Jeminola spoke to personnel at SCI Graterford to arrange Cowher's transfer to that facility, where PrimeCare would no longer provide healthcare to Cowher. (Doc. 72, at ¶¶ 130; 132). During this conversation, HAS Jeminola noted Cowher's surgery was scheduled for January 4, 2017. (Doc. 72, at ¶ 130).

         C. Incarceration with the ...


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