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Sides v. Pennsylvania Dept. of Corr.

United States District Court, W.D. Pennsylvania

December 31, 2019

PENNSYLVANIA DEPT. OF CORR., et al., Defendants.


          Patricia L. Dodge Magistrate Judge

         For the reasons that follow, the Motion for Summary Judgment of Defendant Darla Cowden (ECF No. 120) is denied.

         I. Introduction

         Plaintiff, Anthony Sides, is an inmate currently housed at SCI Pine Grove. He is proceeding pro se in this civil action, which he brings under 42 U.S.C. § 1983. During all events in question, Plaintiff was housed at SCI Fayette in its Restricted Housing Unit ("RHU"). He filed j his Amended Complaint, which is the operative complaint, on June 20, 2018. (ECF No. 31). Defendant Cowden, who is a Physician Assistant at SCI Fayette, is one of several defendants named in the Amended Complaint.

         Plaintiff brings two claims against Defendant Cowden. In his first claim, he alleges in the Amended Complaint that she was deliberately indifferent to his serious medical needs in violation of his rights under the Eighth Amendment because she denied and/or delayed medical treatment to him for his fractured ribs. (ECF No. 31, ¶¶ 10-25). Specifically, Plaintiff alleges that he fell from his bed on May 19, 2017 and, as a result, he fractured his ribs and exacerbated a preexisting injury to his back. (Id., ¶¶ 10, 12). He alleges he informed Defendant Cowden of how and where he injured himself on May 22, 2017 and that she denied and/or delayed him medical care until X-rays that were taken in late June 2017 (approximately 39 days after he injured himself) confirmed that his ribs were fractured. (Id., ¶¶ 13-25). In his second claim, Plaintiff alleges that Defendant Cowden violated the right to privacy afforded to him by the Fourteenth Amendment because information about his sexually transmitted disease ("STD"), and his treatment related to it, were disclosed to other inmates and staff during the sick call visits she conducted at his cell door. (Id., ¶¶ 26-36).

         Presently before the Court is Defendant Cowden's Motion for Summary Judgment (ECF No. 120) and supporting documents (ECF Nos. 121-122). Plaintiff filed a brief in opposition to summary judgment (ECF No. 141) and supporting documents (ECF No. 140, 141-1). Defendant Cowden opted not to file a reply. (See ECF No. 146).

         II. Summary Judgment Standard

         The Federal Rules of Civil Procedure provide that: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial" or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In following this directive, a court must take the facts in the light most favorable to the non-moving party and must draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v. County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

         Although courts must hold pro se pleadings to "less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g., Barnett v. N.J. Transit Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff was still "required to designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories...sufficient to convince a reasonable fact finder to find all the elements of her prima facie case") (citation and quotation omitted); Siluk v. Beard, 395 Fed.Appx. 817, 820 (3d Cir. 2010) ("[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural law.").

         III. Discussion

         A. Plaintiffs Eighth Amendment Claim

         1. Relevant Facts [2]

         On Monday, May 22, 2017, Defendant Cowden saw Plaintiff at his cell door in response to a sick call request. In his affidavit, Plaintiff states that it was during this visit that he first informed her that he fell out of his bed, injured his ribs, and aggravated a pre-existing injury he sustained many years earlier as a result of a motor vehicle accident. According to Plaintiff, Defendant Cowden did not visually or physically examine him and accused him of malingering and trying to get medication to get high.[3] He told her that that was not the case and that he was in severe pain. (Pl's Aff, ¶¶ 8-10).

         Defendant Cowden disputes Plaintiffs version of events and maintains that he did not tell her that he fell out of bed or injured his ribs until June 23, 2017. In her declaration, she states that Plaintiff was not in acute distress when she observed him during the sick call visit on May 22, 2017. (Def s Deck, ¶ 21). She did not record in her progress notes that he told her he fell out of bed or that he complained of a rib injury. Defendant Cowden did note, however, that Plaintiff complained of neck and shoulder spasms which he stated stemmed from the pre-existing injury he sustained during a motor vehicle accident. (Def s Ex. A at 362-63; Def s Decl., ¶ 21). She does not dispute Plaintiffs contention that she suspected that he might be drug seeking. Her progress notes indicate that she had that concern. (Id.)

         In response to the May 22, 2017 sick call visit, Defendant Cowden prescribed Plaintiff Robaxin[4], which is a muscle relaxant, 500 mg. twice a day. (Id. at 355, 362). Plaintiff was given the Robaxin from May 22, 2017 through May 26, 2017 as ordered by Defendant Cowden. (ECF No. 122, ¶¶ 14-15, 17; ECF No. 140, ¶¶ 14-15, 17).

         On May 25, 2017, Defendant Cowden saw Plaintiff at his cell door after he filed a sick call request. She recorded in her progress notes that he was sitting on the floor and got up with ease, and that he complained of back pain. (Def s Ex. A at 362). On May 27, 2017, according to Defendant Cowden's orders, Plaintiff was provided with a 10-day supply of Motrin, 600 mg., to be taken orally three times a day with food. (ECF No. 122, ¶ 20; ECF No. 140, ¶ 20). Plaintiff also was provided with Flexeril, twice daily, which he took through May 30, 2017. (ECF No. 122, ¶ 22; ECF No. 140, ¶ 22).

         On June 2, 2017, Defendant Cowden prescribed Plaintiff Mobic, a nonsteroidal antiinflammatory medication. The 30-day supply of Mobic was to be administered to Plaintiff with instructions to take one tablet orally twice daily with food for pain. (ECF No. 122, ¶ 24; ECF No. 140, ¶ 24).

         There is no dispute that Plaintiff was complaining of rib pain by June 19, 2017. Defendant Cowden recorded in her progress notes for that day that he had placed a sick call request regarding that issue. She also wrote that he was "out to yard" during the sick call conducted on that date and that he could re-sign up. (ECF No. 122, ¶ 25; ECF No. 140, ¶ 25; DefsEx. A at 361).

         The next day, on June 20, 2017, Plaintiff was scheduled for X-rays. The "Release from Responsibility for Medical Treatment" form signed on that date indicates that the X-rays were to image his cervical and lumber spine, and that Plaintiff refused the procedure because "he state[d] the wrong X-rays were ordered" and that he needed X-rays of the left side of his ribs. (Def s Ex. A at 347). Defendant Cowden maintains she did not order the wrong X-rays. In support, she cites the response that Plaintiff received to Grievance #683299, in which he had accused her of negligence and deliberate indifference. It indicates that Defendant Cowden ordered the June 20, 2017 X-rays for Plaintiffs "complaints of neck and back pain dating back to May 2017." (Id. at 237). Plaintiff counters that there is nothing in either Defendant Cowden's progress notes or physician order indicating when or for what purpose the June 20, 2017 X-rays were ordered. (Id. at 354, 357-63).

         On June 21, 2017, Plaintiff signed up for sick call complaining of pain in his side and ribs. He was not seen by Defendant Cowden that day. In her progress notes, she recorded that he was "out to yard" during sick call and the he could re-sign up. (ECF No. 122, ¶ 25; ECF No. 140, ¶ 25; DefsEx. A at 361).

         According to Defendant Cowden, it was not until her sick call visit with Plaintiff on June 23, 2017 that he first informed her that he fell out of bed and injured his ribs. (Def s Decl., ¶ 26; Def s Ex. A at 263, 360-64). As set forth above, Plaintiff maintains he told her that information on May 22, 2017. (Pl's Aff, ¶ 8). In her declaration, and as reflected in her progress notes, Defendant Cowden explains that Plaintiff informed her during the June 23, 2017 sick call visit that it hurt to take deep breaths and to lay on his side, that he had no medication, and that he needed something for his pain. Defendant Cowden examined Plaintiff during this visit and determined that he was able to take deep breaths with no guarding and he had no issues breathing. She also determined that he was not guarding his left shoulder and did not appear to have any restricted range of motion. (Def s Deck, ¶ 26; Def s Ex. A at 360-61).

         Defendant Cowden reviewed Plaintiffs medication records and noted that he was given Motrin on May 27, 2017 through June 2, 2017 and Mobic was ordered on June 2, 2017 through July 30, 2017. Since his 30-day supply of Mobic was dispensed on June 3, 2017, Defendant Cowden determined that Plaintiff should not be out of that medication if he had taken it properly. Therefore, Defendant Cowden discontinued the order of Mobic and prescribed in its place Tylenol, to be given under direct observation, until July 2, 2017. She directed that Plaintiffs prescription for Mobic would resume on July 3, 2017, and like the Tylenol, it was to be given under direct observation. (Def s Decl., ¶ 26; Def s Ex. A at 360-61).

         On that same day, on June 23, 2017, Defendant Cowden ordered X-rays for Plaintiffs left ribs and left shoulder. She discontinued Plaintiffs current prescription for Mobic and prescribed him extra strength Tylenol, which was administered to Plaintiff from June 23, 2017 through July 2, 2017. (ECF No. 122, ¶¶ 28-29; ECF No. 140, ¶¶ 28-29).

         On June 27, 2017, Plaintiff underwent X-rays of his left shoulder and left ribs. The X-rays of his left shoulder showed no fracture or dislocation. The X-rays of his left ribs showed "fractures of the left posterior approximately eighth and ninth ribs displaced 2-3 mm that may not be acute." (Def s Ex. A at 349; ECF No. 122, ¶ 30; ECF No. 140, ¶ 30). In her declaration, Defendant Cowden avers that "[r]ib fractures are relatively common and can result from activity as simple as strenuous coughing or even minor traumatic injury. Most such non-displaced rib fractures like those indicated in [Plaintiffs] X-rays do not require any treatment other than analgesia for pain while ribs heal themselves." (Def s Decl., ¶ 28) (emphasis added).

         Defendant Cowden reviewed Plaintiffs X-ray results on June 30, 2017 and visited with him at his cell that same day to explain them. She advised him to continue to avoid strenuous activities and that his ribs would take approximately six weeks to heal. During this same visit, Defendant Cowden noted that Plaintiff was able to take deep breaths, but said that it hurts, and that he had no respiratory issues. She advised Plaintiff that her plan was to continue to monitor him, repeat X-rays in ...

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