# BROWN v. PHILLIPS

> District Court, E.D. Pennsylvania · March 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10400664

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GARTOR KIKI BROWN, :
:
Plaintiff, :
v. : CIVIL ACTION NO. 16-2566
:
RONALD PHILLIPS et al., :
:
Defendants. :

McHUGH, J. March 1, 2021

MEMORANDUM
This is a section 1983 action. Plaintiff Gartor Kiki Brown, a prolific pro se litigant with
numerous cases pending in the federal courts, alleges that prison officials denied him care for
serious medical needs, in violation of his Eighth Amendment rights. There are extensive medical
records, incident reports, and contemporaneous grievances, none of which support Mr. Brown’s
version of events. Having reviewed the evidence in detail, I am persuaded that this is a case
involving “two different stories, one of which is blatantly contradicted by the record.” Scott v.
Harris, 550 U.S. 372, 380 (2007). Because Mr. Brown has failed to produce evidence sufficient
to allow a reasonable jury to return a verdict in his favor, I will grant Defendant's motion for
summary judgment.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was incarcerated at the George W. Hill Correctional Facility on or around
January 23, 2015. Defs.’ Mot. Summ J. 2, Ex. A, ECF 64; Pl.’s Mot. Summ. J., Ex. 4, ECF 63.
Soon after, on February 7, 2015, Plaintiff reported trauma to his left eye. Pl.’s Mot. Summ. J. ¶¶
5-6 at 1, 3.1 Brown spent several weeks in the medical block following his reporting of the
injury. Pl.’s Mot. Summ. J. ¶¶ 9, 16 at 2; Defs.’ Mot. Summ. J. 2. At that time, Kristen Grady
was the Health Services Administrator for the George W. Hill Correctional Facility, performing
administrative duties for the medical department. Pl.’s Mot. Summ. J., Ex. C, Defs.’ Resp. to

Pl.’s Interrog. 1. Dr. Phillips was the medical director, charged with the treatment of inmates
assigned to him. Pl.’s Mot. Summ. J., Ex. C, Defs.’ Resp. to Pl’s Interrog. 2. Ms. Grady and Dr.
Phillips are the only remaining parties, as others were previously dismissed. ECF 38.2
By way of discovery, Defendants represent that they sent Plaintiff 1,300 pages of
documents on February 10, 2019 and 300 pages of documents on February 22, 2019. ECF 60 at
1-2. In addition, Plaintiff references a number of grievances that he filed related to this matter. I
required the Defendants in a related case to provide both the Plaintiff and the Court with all
grievances filed by the Plaintiff while housed at the George W. Hill Correctional Facility, which
necessarily included grievances pertinent to this case. Brown v. Delaware Cty. Brd. of Prison
Inspectors et al., No. 16-2485, ECF No. 45. Those grievances are now docketed in this case as

well. ECF 71.

1 Plaintiff has been inconsistent in describing the date of the injury. The initial complaint, the first amended
complaint, and the second amended complaint each aver that the assault by other inmates occurred in mid-January
2015, which, if true would have been prior to his admission at the George W. Hill Correctional Facility. Second
Am. Compl. 3; Pl.’s Mot. Summ. J. 6; First Am. Compl. 2, ECF 26; Compl. 2, ECF 5. However, since Brown now
contends that the injury occurred on February 7, 2015, following his admission to George W. Hill Correctional
Facility, and since the Defendants do not dispute that contention, I will proceed accordingly. See Pl.’s Mot. Summ.
J. ¶¶ 5-6 at 1 (describing “the February 7, 2015 incident” that occurred “in his cell” where he “sustained serious
injuries to the left eye, ribbs [sic], back, and other stabb [sic] wounds around his body”).

2 To the extent that Plaintiff also seeks relief against “Nurse Alassa,” I have dismissed his claims without prejudice
given his failure to make service, as is required under Fed. R. Civ. P. 4(m). ECF 68.
A. Plaintiff’s factual allegations
Plaintiff claims that the injury to his eye took place on February 7, 2015 and was the
result of a stabbing by other inmates in his cell. Pl.’s Mot. Summ. J. ¶ 5 at 1. He reported it the
same day. Id. He further alleges that, during the assault, he suffered bruising and contusions “on

his face, around his ribbs [sic], neck, back,” along with various stab wounds “on the back of his
wrist, right []arm . . . back, [and] right leg.” Id. ¶ 6 at 1, 4; see Second Am. Compl. 3.3
After the incident, Plaintiff alleges that the Defendants effectively ignored his multiple
injuries and denied him treatment. For example, Margaret Griffith, nurse practitioner, who saw
him the day of the injury, purportedly “never evaluated or diagnosed” him, erred by classifying
his eye injury as “minor,” and failed to document his other injuries. Pl.’s Mot. Summ J. ¶ 8 at 2,
6. Two days later, he met with Defendant Grady and showed her the bleeding to his eye and
other stab wounds, but according to Plaintiff she merely expressed that he “would have to see
[Dr.] Phillips.” Id. ¶ 10 at 2, 8. When Brown saw Dr. Phillips the following day, he described
the pain in his back, ribs, and face, but Dr. Phillips “ignored [his] serious injuries.” Id. ¶ 11 at 2.

Dr. Phillips remarked that he could get pain medication from the facility’s commissary—
assumedly meaning that the onus was on Plaintiff to obtain pain medication with his own funds.
Id.
The following week, on February 15, 2015, Plaintiff again met with Grady, making her
aware “that his serious injuries had worsen[ed], and that he was not on any pain medication.” P.
Mot. Summ. J. 8. He informed her that “he was not getting treated by the medical department or
medical officials” but was instead being “outright ignored.” Id. The next day, February 16,
2015, he met with Dr. Phillips for the second time, but Dr. Phillips “would only glance over his

3 Brown allegedly wrote a statement to prison officials on February 7, 2015, “asserting he was jumped and stabbed,”
but the statement is absent from the record. Pl.’s Mot. For Summ. J. ¶ 9 at 2.
shoulder and did not take the time to evaluate [him],” despite the fact that “he was still bleeding
. . . from the eye and other wounds.” Pl.’s Mot. Summ. J. ¶ 14 at 2. Dr. Phillips informed
Brown that he “did not need medication” and that he “wanted [the Plaintiff’s] eye to heal from
the inside out.” Id. According to Plaintiff, his meeting with Dr. Phillips the following week, on

February 21, 2015, was very much the same. Id. ¶ 16.
Plaintiff claims that prior to March 3, 2015, when he was taken on an outpatient visit to
meet with ophthalmologist Dr. Mielcarek regarding the injury to his eye, “he had yet to get
treatment from defendants.” Id. ¶ 19. At the appointment, Dr. Mielcarek, allegedly puzzled that
he had not received treatment, expressed to Plaintiff verbally that “without surgery you may not
see from that left eye.” Id. ¶ 20. Despite what Plaintiff claims was a dire prognosis, Dr.
Mielcarek prescribed eye drops, a follow up eye exam, and, according to Plaintiff, eyeglasses.
Id. Plaintiff claims that he met with Dr. Phillips the following day and described his ongoing
pain, and that Dr. Phillips confiscated the medication and told him “you can get treatment once
you go home.” Id. ¶ 21 at 2, 9. Plaintiff was then left without medication until after his release
date of March 28, 2015.4 Id. at 10; Pl.’s Mot. to Consult with Courts, ECF 67.

Plaintiff alleges that he filed a number of contemporaneous complaints about his need for
medical treatment but was consistently thwarted by various officials. For example, he “wrote
multiple complaint[s] on paper in grievance format, handing it over to officials but never
receiv[ing] anything back.” Pl.’s Resp. 5. “At no time,” Plaintiff alleges, “did he “receiv[e] a
reaspond [sic].” Id. He also states that he was informed by Warden David Burns at one point

4 Plaintiff does not aver a specific release date in any of his complaints. And he has made contradictory allegations
regarding such date in subsequent filings. See Pl.'s Mot. Summ. J. 10 (asserting that Plaintiff was released in May
2015); Pl.'s Mot. Consult with Courts 1 (asserting that Plaintiff's adult rap sheet would confirm he was released
around March 28, 2015). For the purposes of this motion, I will use the most recent (and specific) date that he has
provided: March 28, 2015.
that he was not receiving proper treatment because “you write a lot of grievances and you rub the
medical department the wrong way.” Second Am. Compl. 3. Similarly, Grady and Dr. Phillips
allegedly told him that his filing grievances motivated them to deny him any medical treatment.
Second Am. Compl. 4.

Plaintiff claims that the injuries from the February 7, 2015 assault, having never been
treated, ultimately resulted in his being unable to see out of his left eye. Pl.’s Mot. Summ. J. 9.
He also claims to have suffered “permanent damages including but not limited to back pain” and
scars. Id. at 4.
II. STANDARD FOR REVIEW
This Motion is governed by the well-established standard for summary judgment set forth
in Fed. R. Civ. P. 56(a), as described by Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Summary judgment will be granted when “the movant establishes that there is no genuine issue
of material fact and the movant is entitled to judgment as a matter of law.” West v. Tyco
Electronics Corp., 812 F.3d 319, 328 (3d Cir. 2016) (internal citations omitted). A dispute of

fact is “‘genuine’ if ‘a reasonable jury could return a verdict for the nonmoving
party.’” Id. (internal citations omitted). Moreover, “a plaintiff cannot resist a properly supported
motion for summary judgment merely by restating the allegations of his complaint, but must
point to concrete evidence in the record that supports each and every essential element of his
case.” Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d. Cir. 1996) (citing Celotex
Corp., 477 U.S. at 322). As stated at the outset, the Supreme Court has made clear that if a party
advances a version of events flatly contradicted by the record, “a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S.
at 380.
III. DISCUSSION
As recounted above, Plaintiff alleges that he suffered serious injuries to his eye, ribs,
back, and various other parts of his body on February 7, 2015 due to an assault and stabbing by
other inmates, all of which were left untreated by the Defendants.5 Plaintiff must demonstrate

that Dr. Phillips and Kristen Grady were “deliberately indifferent to . . . [his] medical
needs” and “that those needs were serious” in order to prevail on his section 1983 claim.
Pearson v. Prison Health Service, 850 F.3d 526, 534 (3d Cir. 2017) (internal citations omitted).
Deliberate indifference includes “intentionally denying or delaying access to medical care or
interfering with the treatment once prescribed.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104-
05 (1976)). It also includes “condition[ing] provision of needed medical services on the inmate's
ability or willingness to pay.” Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347
(3d Cir. 1987) (discussing numerous scenarios where the deliberate indifference standard is met).
A serious medical need is one where a “failure to treat can be expected to lead to substantial and
unnecessary suffering, and a doctor has diagnosed the condition, or the need for treatment would

be obvious to a lay person.” Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citing Colburn
v. Upper Darby Twp., 946 F. 2d 1017, 1023 (3d Cir. 1991)).
A. Plaintiff’s serious medical needs were limited to the injury to his left eye.

I agree that Plaintiff had serious medical needs relating to the injury to his eye, given his
diagnosis and treatment. But the record lacks any supporting evidence that Brown had additional
serious medical needs, such as contusions “on his face, around his ribbs [sic], neck, back,” along
with various stab wounds “on the back of his wrist, right []arm . . . back, [and] right leg.” Id. ¶ 6
at 1, 4; see Second Am. Compl. 3. See Dooley, 957 F.3d at 374 (serious medical needs are those

5 I note that these allegations are inconsistent with the injuries listed in his initial complaint, filed in June 2016, in
which he states that the lack of medical care resulted in damage to his vision and nightmares. Compl. 3.
in which a doctor has diagnosed the condition or those where the need for treatment would be
obvious to a lay person); Orsatti, 71 F.3d at 484 (“[A] plaintiff cannot resist a properly supported
motion for summary judgment merely by restating the allegations of his complaint”); Pearson,
850 F.3d at 537 (although extrinsic evidence is not necessarily required to survive a motion for

summary judgment on a deliberate indifference claim, the “surrounding circumstances [must] be
sufficient to permit a reasonable jury to” find in the non-movant’s favor). Therefore, I will grant
Defendants’ motion for summary judgment with regard to Plaintiff’s claims regarding injuries
other than that to his eye.
The origin of Plaintiff’s eye injury is in in dispute. But that dispute is not material. In
analyzing the Defendants’ motion, I will assume that Plaintiff’s left eye was injured during an
assault by other inmates on February 7, 2015.6 Even if it that is true, Defendant's
contemporaneous incident report, as well as ongoing reports in the days and weeks that
immediately followed while Plaintiff was housed in the medical block, list only an eye injury.

Despite receiving roughly 1600 pages of documents from the Defendants, Plaintiff has failed to
produce any evidence that he had other serious medical needs—or indeed any other medical
needs at all. ECF 60 at 2.
Reports made by two separate staff members on February 7, 2015, the date of the alleged
assault, note only the injury to Plaintiff’s eye. For example, staff member Isahia Cherry,

6 To support this contention, Brown has provided an undated affidavit from fellow inmate, Tarence Frazier. Pl.’s
Resp. to Defs.’ Mot. Dismiss, ECF 34, at 22. Frazier describes a conversation he had with another inmate named
“Tazz” about the fact that “Tazz” and Plaintiff had been fighting on February 7, 2015. Id. Most of the affidavit
would be inadmissible hearsay, but regardless, it still only refers to an injury to the eye. See id. Meanwhile,
Defendants point to a contemporaneous incident report written by staff member Isahia Cherry describing Plaintiff as
having stated that he poked himself in the eye. Pl.’s Mot. Summ. J., Ex. 8. I note that Plaintiff’s weekly medical
assessment of February 10, 2015 states that Brown “reports being poked in the eye before incarceration,” Defs.’
Mot. Summ. J., Ex. C at 38 (emphasis added), and reiterates that each of the complaints filed in this matter state that
the injury occurred in mid-January 2015. Compl. 2; First Am. Compl. 2; Second Am. Compl. 3.
responding to Plaintiff’s request for medical attention at 6:50pm, wrote an incident report stating
that Plaintiff “told me he needed to see a doctor because he poked himself in the eye. . ..” Pl.’s
Mot. Summ. J., Ex. 8. Within ten minutes, Plaintiff was evaluated by medical staff at the unit
infirmary. Id., Ex. D. Margaret Griffith, NP, conducted a full body exam at roughly 7:00pm,

and did not report injuries to Plaintiff’s back or ribs, nor stabbings in various other parts of his
body. Id. She affirmatively reported that Plaintiff had not complained of other injuries aside
from the injury to his eye. Id.
Further examinations in the days that immediately followed continued to reflect that
Plaintiff had no medical needs aside from the eye. On February 8, 2015, Nurse Griffith checked
Plaintiff again and noted only the issue with his eye. Defs.’ Mot. Summ. J., Ex. C, at 39-41.
Then, on February 9, 2015, a report from Raequel Madara, MSW, LCSW, stated that Plaintiff
“request[ed] to see an eye doctor for his eye injury” and that the patient “otherwise appeared to
be compensated.” Pl.’s Mot. Summ. J., Ex. E. On February 10, 2015, Stephanie Laflata
conducted a weekly medical assessment of the eye, reporting that Plaintiff “appears in no visual

distress,” and that he “offered no other somatic complaints.” Defs.’ Mot. Summ. J., Ex. C. That
same day, he was seen by Charles Stork, RN, during mental health segregation rounds, who
described his appearance as “neat and clean.”7 Pl.’s Mot. Summ. J., Ex. E. Then, on February
11, 2015, he was first seen by Dr. Phillips who described the trauma to Brown’s left eye but
listed no other injury. Id., Ex. G.8

7 One assumes that if Plaintiff was bleeding from multiple stab wounds, Stork would have noted it when describing
Plaintiff’s appearance.

8 Plaintiff contends that he never encountered Stork or Laflata on these occasions. Pl.’s Mot. Summ. J. 6. He also
argues that he did not see Dr. Phillips that day, but in fact saw him earlier, on 2/10/15. See Pl.’s Mot. Summ. J. 7
(“Plaintiff did not encounter Phillips” on 2/11/15); id. at 4.
While Plaintiff remained in the medical block over the next two weeks, staff members
continued to evaluate him. Yet none of their reports indicate that the Plaintiff sustained
additional injuries. For example, Shelly Mealo, RN, who visited Plaintiff on February 13, and
Nurse Stork, who saw Plaintiff on February 14 and 15, each described his appearance as “neat

and clean” and his behavior as “appropriate.” Id., Ex. I-K. Nurse Griffith and Dr. Phillips
assessed Plaintiff separately on February 16 and each, in turn, discussed only his eye. Id., Ex. L,
M. On February 17, 2015, Nurse Mealo conducted another medical assessment and stated that
Plaintiff had “no other somatic complaints” aside from the eye. Defs.’ Mot. Summ. J., Ex. C.
Nurses Mealo, Stork, and Dorothy Murray checked Plaintiff during mental health rounds daily
from February 18-22. Pl.’s Mot. Summ. J., Ex. O-S. On February 24, Plaintiff was seen again by
Dr. Phillips. Id., Ex. T.9
Plaintiff wrote numerous notes, medical requests, and grievances around this time
regarding his medical treatment; none of them contains a reference to other injuries. For
example, Plaintiff wrote a medical request on February 22, 2015 that described ongoing

“problems with vision.” Id., Ex. 5. Similarly, Nurse Joanne McCabe reported another medical
request by Plaintiff on February 24, 2015, noting that Plaintiff reports “seeing double/blurry
vision, left eye.” Id., Ex. T. And a note Plaintiff wrote to Dr. Phillips dated February 24, 2015
regarding his imminent transfer out of the medical block again mentions only the eye—“I don’t
feel comfortable going back to block seeing double vision and eye still being red.” Id., Ex. 6.
Likewise, and as will be discussed further below, Plaintiff’s grievances, written on March 8,
2015 and March 9, 2015, address only his eye. ECF 71.

9 Plaintiff claims he never encountered Mealo on February 18, 2015, nor Dr. Phillips on 2/24/15. Pl.’s Mot. Summ.
J. 7.
In sum, Mr. Brown has failed to produce any evidence supporting his allegations about
the existence of serious medical needs with the exception of the injury to his eye.10 See Pearson,
850 F.3d at 537 (although extrinsic evidence is not necessarily required to survive a motion for
summary judgment on a deliberate indifference claim, the “surrounding circumstances [must] be

sufficient to permit a reasonable jury to” find in the non-movant’s favor); Dooley, 957 F.3d at
374 (a serious medical need is one where a “failure to treat can be expected to lead to substantial
and unnecessary suffering, and a doctor has diagnosed the condition, or the need for treatment
would be obvious to a lay person.”). Because Brown has failed to produce evidence from which
a reasonable juror could conclude that he had other serious medical needs, and given the trove of
medical records that suggest otherwise, I will grant Defendants’ motion with respect to those
alleged injuries. Defendants cannot be deliberately indifferent to medical needs that do not exist.
B. Plaintiff has failed to set forth evidence that Defendants were deliberately indifferent
to his eye injury.

Plaintiff alleges that Dr. Phillips and Health Administrator Grady were deliberately
indifferent to his eye injury. Yet ultimately, he has failed to produce evidence from which a
reasonable juror could so conclude. See Lanzaro, 834 F.2d at 346–47 (citing numerous scenarios
where deliberate indifference standard is met). For the reasons set forth below, I will grant
Defendants’ Motion for Summary Judgment with regards to Plaintiff’s claim that the treatment
of his eye violated the Eighth Amendment.

10 To the extent that Plaintiff has also pled that his unit in the medical block lacked heat and that he suffered
frostbite, he has similarly offered no supporting evidence; moreover, his allegations are flatly contradicted by other
evidence on the record. Second Am. Compl. 3; See Defs.’ Mot. Summ. J., Ex. C. For example, in the February 24,
2015 note to Dr. Phillips referenced above, Plaintiff requested to be allowed to stay in the medical block upon being
informed of his pending discharge, and made no mention of the lack of heat. Pl.’s Mot. Summ. J., Ex. 6. In fact,
nowhere on this record does the Plaintiff take issue with the heat in his cell. Moreover, Plaintiff’s full body
examinations on February 10, 2015 and February 17, 2015—conducted by different nurses—each describe
Plaintiff’s skin as “warm and dry.” Defs.’ Mot. Summ. J., Ex. C. A February 10, 2015 medical report describes his
circulation as “intact.” Id.
1. Dr. Phillips
Plaintiff’s alleges that Dr. Phillips was deliberately indifferent to his medical needs in
numerous ways. First, Dr. Phillips allegedly never examined Plaintiff or provided him
medication.11 Second, to whatever extent Dr. Phillips did provide care to the Plaintiff, he was
not properly engaged, but instead was “lackadaisical” in his treatment.12 Third, Dr. Phillips

purportedly interfered with treatment that was prescribed by an outside eye doctor.13 Pl.’s Mot.
Summ. J. 5, 10. Finally, Dr. Phillips was ostensibly motivated by non-medical factors—
specifically Plaintiff’s filing of numerous grievances—in denying Plaintiff care. Second Am.
Compl. 4.
Plaintiff’s claims are wholly unsupported by record evidence, which shows that after
Plaintiff reported the injury, he was transferred to the medical block for several weeks, where he
received consistent evaluation and treatment from numerous medical professionals, including Dr.
Phillips. Nurse Griffith attended to Plaintiff within minutes of his reporting the injury, which she
assessed as having resulted from a “foreign object” but which she described as “minor.” Pl.’s

Mot. Summ. J., Ex. D. She immediately prescribed Prednisone, a corticosteroid, SMZ-TMP DS,
an antibiotic, Diphenhydramine, an antihistamine, and Ibuprofen for what she described as “left
eye conjunctivitis.” Id. The following morning, Nurse Griffith checked Plaintiff again, found a
corneal abrasion, and added an eye ointment to the list of medications Plaintiff was already

11 Plaintiff alleges that “at no time did he get treatment” for the injury to his eye. Pl.’s Mot. Summ J., ¶ 17 at 2.
Plaintiff was “deprived of medication,” including pain medication, despite being in “excruciating pain.” Id. at ¶¶ 6,
17, at 2.

12 Plaintiff states that rather than perform an evaluation, Dr. Phillips “would only glance over . . . [Plaintiff’s]
shoulders.” Id. at 6. Indeed, although Plaintiff acknowledges meeting with Dr. Phillips numerous times, he contends
that “most of the encounters” involved Dr. Phillips “briefly stop[ping] and talk[ing] for 30 seconds at the time.” Id.
at 5.

13 Dr. Phillips “confiscate[d] the medication” that Dr. Mielcarek had prescribed and ignored the eye doctor’s
suggestion that he receive eyeglasses.” Id. at ¶ 21.
receiving. Defs.’ Mot. Summ. J., Ex. C. That same afternoon, she noted that the Plaintiff was
“ac[d]epting [sic] meds and care.” Id. Then, on February 10, 2015, Stephanie Laflata performed
a medical evaluation, noting that Plaintiff complains of “painful left eye with associated blurred
vision,” that she observed no discharge from the eye, and that she scheduled a follow up

appointment with Dr. Phillips. Defs.’ Mot. Summ. J., Ex. C.
Dr. Phillips began meeting with the Plaintiff regularly the following day, February 11,
2015. Id., Ex. G. He diagnosed Plaintiff with a subconjunctival hemorrhage, and prescribed a
new ointment—Gentamicin—to be applied to his eye for three days. Id. On February 14, 2015,
Dr. Phillips elected to continue with this same treatment for an additional three days. Id., Ex. J.
On February 16, 2015, Dr. Phillips saw Plaintiff in his office, reported that there was “no pain or
drainage,” and noted that he would refer Plaintiff to an outside ophthalmologist to perform an
additional slit-lamp examination. Id., Ex. L. Nurse Griffith followed up with a note that
described the injury as “healing” and a prescription for Diphenhydramine and Ibuprofen for five
more days. Id., Ex. M. On February 17, 2015, Nurse Mealo conducted another medical

assessment and noted that Plaintiff continued to have “blurred vision.” Ex. N. A week later, on
February 24, 2015, Dr. Phillips saw Plaintiff again, stating that “Cornea, Pupil, and Iris look
good,” and cleared him to leave the medical block. Id., Ex. T. Plaintiff was also seen by Nurse
JoAnne McCabe that day, who similarly made no reference to complaints of pain, but rather only
to continued complaints of “blurred vision.” Id., Ex. T.
Plaintiff acknowledges having multiple meetings with Dr. Phillips,14 but nevertheless
denies that he was evaluated or treated with medication, and further denies that the pain and the
bleeding ever stopped. Id. at 4, 6. He similarly maintains that Nurse Griffith, though meeting

14 He states that his encounters with Dr. Phillips were on or around 2/10/15, 2/16/15, 2/21/15, and 3/4/15. Id. at 4, 6.
with him on the date of his injury, “never evaluated or diagnosed” him, nor provided him with
medication. Id. at ¶ 8 at 2. Instead, he states that Dr. Phillips instructed him that he could “get
pain meds” from the facility’s commissary himself.15 Id. He also denies meeting with Laflata
on February 10, and that any evaluation occurred on February 17. Id. at ¶ 11, 6, 7.16

Plaintiff’s allegations stand in stark contrast to the great weight of record evidence
described above, which shows that Plaintiff was evaluated on an ongoing basis by three nurses
and a doctor, as well as prescribed pain medication for at least two weeks following the injury.17
Additionally, Plaintiff’s allegations are conspicuously absent from two contemporaneous notes
he sent on February 22, 2015 and February 24, 2015, in which he maintains that his eye is still
red and still afflicted with blurry vision, but fails to mention any pain or bleeding, or any denial
of medication or treatment. Id., Ex. 6, Ex. U.
Plaintiff’s contention that Dr. Phillips was deliberately indifferent to his medical needs is
further contradicted by Plaintiff’s visit with an outside specialist, ophthalmologist Dr. Mielcarek
on March 3, 2015. Here, the record reveals not only that the Dr. Phillips timely ensured that

Plaintiff was evaluated by an outside specialist (within 24 days of the reported injury), but also
that Dr. Mielcarek confirmed Dr. Phillips’ diagnosis and recommended a substantially similar
treatment plan—more eye drops. Ex. M, V.18 Dr. Mielcarek also recommended a follow-up eye

15 According to the facility’s inmate handbook, “commissary orders are filled based on funds actually in your
account at the time the order is placed.” Def’s Mot. Summ. J., Ex. E, at 26.

16 Rather, he describes multiple meetings with “Nurse Alyssa,” which appear nowhere on the record. Id. at 2.

17 To the extent that Plaintiff additionally alleges that there were nights in which he had no mattress while staying in
the medical block, and that this exacerbated his injury, he has first and foremost provided no evidence that he was
forced to sleep without a mattress, nor that he ever complained of this deprivation at the time. As noted previously,
his February 24, 2015 letter to Dr. Phillips requesting to stay in the medical block upon learning of his discharge
certainly appears to contradict this allegation. Id., Ex. 6.

18 Dr. Mielcarek is deceased. Pl.’s Mot. Summ. J., Ex. A, Defs.’ Am. Answers to Pl.’s Requests for Admission, No.
28. However, his written records are capable of admission at trial as business records under Federal Rule of
exam, and Dr. Phillips saw Plaintiff the following day, which Plaintiff readily admits. Id. at 4;
Defs.’ Mot. Summ. J., Ex. C. And although Plaintiff asserts that Dr. Mielcarek recommended
eyeglasses, unlike the eye drops, such a recommendation does not appear in the doctor’s record.
After the appointment with ophthalmologist Dr. Mielcarek, the record documents show

that the Plaintiff consistently refused his eye drops when multiple nurses attempted to administer
them.19 On March 5, 6, 7, 8, and 10, various officials submitted forms to this effect. Pl.’s Mot.
Summ J., Ex. W. For each of three nurses—Cassidy, Whitaker, and Small—who were unable to
administer Plaintiff’s eye drops, there is an accompanying signature of a second party attesting
as a witness.20 Id. In sum, there is no evidence that Dr. Phillips interfered with the medication
prescribed by Dr. Mielcarek.21
In conclusion, Plaintiff has produced no evidence corroborating his claims that Dr.
Phillips “intentionally den[ied] or delay[ed] access to medical care” or that Dr. Phillips

Evidence 803(6), and therefore can be considered on a motion for summary judgment. See Stelwagon Mfg. Co. v.
Tarmac Roofing Systems, 63 F.3d 1267, 1275 n. 17 (3d Cir. 1992). In contrast, Dr. Mielcarek’s alleged verbal
statements, that Plaintiff would lose vision in his left eye unless he underwent surgery, would not be admissible,
even though they relate to medical care, as they do not fit within the categories allowed by Rule 803(4)(B). It also
bears mention that the alleged verbal statements are totally inconsistent with both the written records and the course
of treatment recommended by Dr. Mielcarek.

19 Plaintiff alleges that an affidavit from a fellow inmate contradicts the Defendants’ story with regard to his refusal
to take medication, citing to Exhibit 11, but there is no such exhibit attached to Plaintiff’s motion.

20 This is also corroborated by a March 9, 2015 grievance filed by Plaintiff regarding a shift commander who
Plaintiff describes as having unfairly “put him in the spotlight” for not having taken his eye drops. ECF 71.

21 Plaintiff filed a grievance on March 8, 2015 stating prescription glasses “might help” with his ongoing pain. ECF
71. I note first that the grievance does not contain a request for pain medication but rather constitutes a request for
eyeglasses. Moreover, it was filed in the midst of Plaintiff’s weeklong, clear refusal to take the medication which
had already been prescribed by Dr. Mielcarek. Pl.’s Mot. Summ J., Ex. W. And there is no record evidence that Dr.
Mielcarek suggested eyeglasses, nor prescribed pain medication—indeed there is not even an allegation from
Plaintiff that Dr. Mielcarek had prescribed pain medication. See Anderson, 477 U.S. at 252 (“The mere existence of
a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff”); Spruill v. Gillis, 372 F.3d 218, 225, 236–38 (3d Cir. 2004) (inmate’s
complaints that pain medication prescribed was insufficient to treat debilitating pain rose to the level of a
constitutional violation at motion to dismiss, but would “need to be fleshed out with further evidence”).
“interfer[ed] with the treatment once prescribed.” Pearson, 850 F.3d at 534 (citing Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976)). Therefore, Plaintiff’s claim that Dr. Phillips denied care
because he filed grievances also fails—medical care was neither delayed nor denied. See
Pearson, 850 F.3d at 537 (to survive motion for summary judgment, “surrounding circumstances

[must] be sufficient to permit a reasonable jury to find that the delay or denial was motivated by
non-medical factor.”). Nor, for that matter, has Plaintiff produced evidence that Dr. Phillips
“conditioned provision of needed medical services on the inmate's ability or willingness to pay.”
Lanzaro, 834 F.2d at 347 (internal citations omitted). See Port Auth. of New York & New Jersey
v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (“When opposing a motion for
summary judgment, the party bearing the burden of persuasion in the litigation is obligated ‘to
identify those facts of record which would contradict the facts identified by the movant.’”)
(internal citations omitted).
Finally, to the extent that Plaintiff challenges Dr. Phillips’s medical judgments or accuses

him of negligence or being “lackadaisical” in his care, his claims fail as a matter of law. See
Pearson, 850 F.3d at 538 (complaint that physician has been negligent does not state a valid
claim of medical mistreatment under the Eighth Amendment) (internal citation omitted). In fact,
aside from Plaintiff’s allegations, there is nothing on the record from which a reasonable juror
could even conclude that the treatment Plaintiff received was unsuccessful. Plaintiff states that
he was released in late March 2015, yet has provided no evidence from outside medical
professionals corroborating the permanent loss of vision in his left eye. See Pl.’s Mot. to Consult
with Courts, ECF 67. Moreover, the record reveals that he was eventually re-admitted to George
W. Hill Correctional Facility, but Plaintiff has neither averred nor provided any evidence to
corroborate further requests for treatment that he has made. Indeed, after re-admittance, he filed
13 grievances, none of which complain of the vision lost in his left eye.22
All record evidence points to Dr. Phillips’ active, ongoing, and effective engagement in
Plaintiff’s medical treatment, including with regards to pain management. Plaintiff’s “version of
events is so utterly discredited by the record that no reasonable jury could have believed him.”23

Scott, 550 U.S. at 380. Therefore, I will grant Defendants’ Motion with regard to Plaintiff’s
claims against Dr. Phillips.
2. Plaintiff has failed to produce evidence from which a reasonable juror could
conclude that Kristen Grady was indifferent to his serious medical needs.

Plaintiff alleges that he informed Health Administrator Grady he was not receiving pain
medication on two separate occasions in February 2015, that Grady “did not have reason[] to
believe that the Plaintiff was . . . undergoing treatment while he was housed in medical,” and
therefore that Grady was deliberately indifferent when she failed to assist him with obtaining
pain medication in response to these requests. Pl.’s Mot. Summ. J. 8. Since I have already
concluded that there were no additional injuries beyond those to his left eye, I will analyze only
whether Grady was deliberately indifferent to his medical needs with regard to that injury.

22 The only mention of Plaintiff’s eyes appears in a Grievance filed on May 24, 2016, more than a year later, in
which he complains of experiencing “watery eyes” and “mucus buildup,” as well as being in imminent danger,
because of “particles of lint and dust being dispersed into [his] current cell through the ventilation system.” ECF 71.

23 Plaintiff claims that Defendants failed to provide documents in discovery or have destroyed certain evidence,
including “Exhibit H,” and photographs and X-rays that were taken on February 7, 2015. Pl.’s Mot. Summ J. 5, 10.
He also states that he filed more grievances than are accounted for on this record. Id. at 5. There is no evidence
anywhere in the record that X-rays were taken by the prison. It is troubling to the Court that the record includes no
photographs of Brown’s face/eye because it appears they were taken. Id., Ex. 8, Ex. 2, Pl.’s Req. for Admission No.
3. But there is substantial evidence that Brown’s injuries were conscientiously dealt with over a long period of time.
The diagnosis and treatment plan of the outside specialist consulted, Dr. Mielcarek, are consistent with those of Dr.
Phillips. Id. Given all the other evidence available, the lack of photographs does not weigh against the conclusion I
reach here.
As discussed at length above, Plaintiff began receiving medical treatment and was
prescribed pain medication within ten minutes of reporting the injury on February 7, 2015. The
record further reflects that he was accepting medication as of February 8, 2015. Therefore, no
reasonable juror could conclude that Grady had reason to believe Plaintiff was being mistreated

if, in fact, he informed her he was not receiving pain medication the following day. If Grady had
inquired in response to such a complaint, either by speaking with Nurse Griffith or reading her
report, the contemporaneous evidence at the time would have been that Plaintiff was indeed
receiving medication.24 Moreover, there are no complaints or grievances filed by Plaintiff
indicating that he complained of being denied pain medication in February 2015. ECF 71.
Therefore, his claim against Grady fails as a matter of law. See Pearson, 850 F.3d at 540 (a non-
medical prison official is not chargeable with deliberate indifference, “absent a reason to believe
(or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a
prisoner.”) (internal citations omitted). I will therefore grant Defendants’ motion with regard to
Plaintiff’s claims against Defendant Grady.

C. Plaintiff’s Sworn Statements

As discussed above, there is a lack of any corroborating evidence for Mr. Brown's claim
that he had serious medical needs aside from the injury to his eye, as well as his claim that the
Defendants were deliberately indifferent to that injury. This case, like others I have adjudicated
involving the same Plaintiff, therefore raises the difficult question of whether Plaintiff’s
testimony by itself creates a genuine issue of fact. See, e.g., Brown v. Phillips, No. CV 16-3887,
2020 WL 6158230, at *3 (E.D. Pa. Oct. 21, 2020). A plaintiff's sworn statement, standing alone,
can certainly be sufficient to survive a motion for summary judgment. See Jackson v. University

24 The same is true for Plaintiff’s claim that Grady was deliberately indifferent when Plaintiff made a similar
complaint to her on February 15, 2015, four days after he began seeing Dr. Phillips. P. Mot. Summ. J. 8.
of Pittsburgh, 826 F.2d 230, 236 (3d Cir. 1987); Pearson, 850 F.3d at 537 (extrinsic evidence is
not necessarily required to survive a motion for summary judgment on a deliberate indifference
claim, so long as “surrounding circumstances . . . [are] sufficient to permit a reasonable jury to”
find in the non-movant’s favor). In narrow circumstances, however, sworn testimony may not

suffice to establish a genuine issue of material fact, particularly where the nonmoving party
essentially “reassert[s] factually unsupported allegations contained in its pleadings.” Williams v.
Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). As the Third Circuit recognized
in Williams, the Supreme Court's trilogy of cases on summary judgment25 requires district courts
to make “difficult, fact-specific” judgments. Id. at 460–61.
I confronted this same problem in another case brought by Mr. Brown, Brown v. Phillips,
No. CV 16-3887, 2020 WL 6158230, at *3 (E.D. Pa. Oct. 21, 2020). After analyzing relevant
case law, I concluded that in some circumstances even sworn testimony or affidavits might not
suffice to provide enough evidence to enable a jury to reasonably find for the non-moving party

on the issue. Id.; see Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). This is another case
where I am also persuaded that Plaintiff's testimony does not create a genuine dispute of fact,
especially given the presence of contrary and abundant medical evidence, including the report of
an outside doctor. Cf. Bushman v. Halm, 798 F.2d 651, 661 (3d Cir. 1986) (“[I]n the absence of
any contrary medical evidence, plaintiff's sworn testimony must be taken as true for purposes of
creating a fact issue.”) (emphasis added).
The penalty of perjury has attached to Plaintiff's sworn testimony and it must therefore be
accorded substantial weight. However, at this stage of the litigation, Plaintiff has received

25 Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita
Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574 (1986).
roughly 1,600 pages of records through discovery and yet can only reiterate the allegations from
his pleadings, which are entirely contradicted by records completed at the time. See Williams,
891 F.2d at 460. For Plaintiff to be correct, at a minimum, fourteen different prison
employees would need to have falsified contemporaneous reports.26 See Brown, 2020 WL

6158230, at *4 (granting Dr. Phillips’ motion for Summary Judgment against the same Plaintiff
under similar circumstances); Orsatti, 71 F.3d at 484; Pearson, 850 F.3d at 537. In
short, Plaintiff's version of events is highly improbable, and although there are multiple ways it
might have been corroborated by the record, there is no supporting evidence. Given that, a
reasonable jury could not conclude that the Plaintiff is the subject of the conspiracy and coverup
that he alleges.
In that regard, I return to the fact that Plaintiff is a highly experienced pro se litigant,
with multiple cases before this Court. In Brown v. Upper Darby Police Dept., No. 16-2255,
2020 WL 733108 (E.D. Pa. Feb. 13, 2020), Plaintiff alleged that he was brutally beaten while
police were trying to secure a DNA sample after arrest, an incident that he alleged was captured

on videotape. The incident was indeed recorded but revealed no assault. At summary judgment,
Brown then alleged for the first time that a separate beating ostensibly occurred in another room
without recording capability. I refused to entertain his new and contradictory theory of liability
for a variety of reasons, including the Third Circuit's decision in Martin v. Merrell Dow Pharm.,
Inc., 851 F.2d 703, 705-06 (3d Cir. 1988), which cautioned district courts not to place weight
upon transparent attempts to defeat summary judgment. The issue here is different, but the only

26 I say “at a minimum” because to the extent that Mr. Brown suffered serious injuries one presumes he would have
continued to raise them after March 9, 2015, given that he was not released until the end of March. See Pl.’s Mot. to
Consult with Courts, ECF 67. One also presumes he would be able to point to unfulfilled requests to be seen by
medical providers after being re-admitted to the George W. Hill Correctional Facility in 2016.
injury reasonably supported by the record, Mr. Brown’s eye, was treated. Plaintiff cannot prove
other injuries that rise to the level of a “serious medical condition.” An outside specialist was
timely consulted with respect to the eye, and his diagnosis and treatment did not differ from
prison doctors in any meaningful way. Consequently, Plaintiff’s claims under Section 1983 fail

as a matter of law.
D. Administrative Exhaustion
Defendants argue in the alternative that Plaintiff has failed to exhaust administrative
remedies under the Prison Litigation Reform Act (PLRA).27 The “PLRA’s exhaustion
requirement . . . requires inmates to exhaust ‘available’ administrative remedies before
challenging prison conditions in federal court.” Hardy v. Shaikh, 959 F.3d 578, 583–84 (3d Cir.
2020) (citing 42 U.S.C. § 1997e(a)). Where, as here, the prison’s grievance procedure is
provided to the prisoner in writing, the prison is obligated to follow such a procedure. If a
prisoner does not properly exhaust his available administrative remedies, he procedurally
defaults his claim. See Spruill, 372 F.3d at 230; Defs.’ Mot. Summ. J., Ex. D.

The record reflects that Plaintiff failed to comply with the prison’s two-step grievance
process, having failed to appeal either of the two grievances he filed in March 2015. ECF 71.
But Plaintiff claims that the option to file an appeal was unavailable to him. Pl.’s Resp. 5. I need
not resolve this question, having already concluded that the Plaintiffs’ claims fail on the merits.28

27 “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a).

28 The Third Circuit has recently outlined the procedures required so that a court may resolve such threshold factual
disputes without the participation of a jury. See Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018) (internal
citations omitted).
IV. CONCLUSION
Because Plaintiff cannot show that the Defendants were deliberately indifferent to his
serious medical needs, Defendants’ Motion for Summary Judgment will be granted. Plaintiff’s
Motion for Summary Judgment will be denied. An appropriate Order follows.

/s/ Gerald Austin McHugh
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10400664. Public record. Not legal advice.