Cowher v. Pike County Correctional Facility

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MYRON COWHER,

Plaintiff, CIVIL ACTION NO. 3:16-CV-02259

v. (MEHALCHICK, M.J.)

PIKE COUNTY CORRECTIONAL

FACILITY, et al.,

Defendants.

AMENDED MEMORANDUM

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).

1 However, in his briefs in opposition to Defendants’ motions for summary judgment,

Cowher withdrew his claims for medical negligence and intentional infliction of emotional

distress against the Defendants. (Doc. 82, at 4, n. 1; Doc. 84, at 3, n. 1).

2

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

2 The material facts from the movant’s statement of facts will be deemed admitted,

unless the opposing party specifically disputes that fact in its response. See M.D. Pa. Local

Rule (“LR”) 56.1. Although separate counterstatements of fact not directly responsive to the

movant’s statement of fact are not contemplated by the Local Rule, the Court may consider

the entire record to ascertain the relevant factual background for this matter, but the Court

may assign those additional statements no evidentiary value. Rau v. Allstate Fire & Cas. Ins.

Co., No. 3:16-CV-0359, 2018 WL 6422121, at *2 (M.D. Pa. Dec. 6, 2018); Williams Controls,

Inc. v. Parente, Randolph, Orlando, Carey & Associates, 39 F. Supp. 2d 517, 519 n.1 (M.D. Pa.

1999); see also Ball v. Buckley, No. 1:11-CV-1829, 2012 WL 6681797, at *1 (M.D. Pa. Dec.

21, 2012) (declining to strike counterstatements of fact not directly responsive to the statement

of material fact in support of a motion, so that litigation could proceed without the

unnecessary delay that would be caused by striking the counterstatements and directing the

plaintiff to attempt to file a new counterstatement that more closely adheres to the Local Rules

of this Court.).

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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).

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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

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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, non-

union 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).

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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

3 Cowher disputes the date this note was made, asserting the note “appears to have

been made between May 23, 2016 and June 14, 2016.” (Doc. 81, at ¶ 70).

7

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, non-

union 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).

8

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

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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 DEPARTMENT OF CORRECTIONS

1. SCI Graterford

Cowher was transferred to SCI Graterford, and to the care of Correct Care, on

November 17, 2016. (Doc. 72 at ¶¶ 18, 132); (Doc. 73, at 7). Cowher’s medical history

included constipation, right hip issues, hypertension, acid reflux, and chronic pain. (Doc. 77,

at ¶ 33). Cowher reported additional medical history, notably a history of C4-C7 stenosis.

(Doc. 77, at ¶ 33). RN Link noted a current diagnosis of “C6-7 disc distortion with cord

involvement, C4-5 stenosis.” (Doc. 77, at ¶ 33). Cowher was placed in the infirmary for a

twenty-three-hour observational period, due to his ambulatory dysfunction and C-spine

herniations. (Doc. 77, at ¶ 33).

On November 18, 2016, Dr. David Edwards monitored Cowher in the infirmary.

(Doc. 77, at ¶ 35). Dr. Edwards noted a history of ambulatory dysfunction, a hip problem,

and C-spine herniation. (Doc. 77, at ¶ 35). Dr. Edwards planned to change Cowher’s housing

from the infirmary to the general prison population. (Doc. 77, at ¶ 35). On November 29,

2016, nursing staff at SCI-Graterford noted that Cowher was to be directly transferred to the

infirmary at SCI-Camp Hill due to his continued ambulatory dysfunction. (Doc. 76-1, at 127;

Doc. 77, at ¶ 35).

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2. SCI Camp Hill

On November 30, 2016, Cowher was transferred to SCI Camp Hill. (Doc. 77, at ¶¶ 37-

38). Upon his transfer to SCI Camp Hill, Cowher signed a receipt for an inmate handbook

and administrative directives. (Doc. 77, ¶ 39). Medical staff noted acute conditions of: C4-7

herniated discs, lumbar bulging discs, spinal stenosis, mild distortion spinal cord, numbness

right lower extremity, right meniscus tear, degenerative disc disease. (Doc. 77, at ¶ 38).

Medical staff also noted Cowher’s appendectomy, partial amputation of left hand with repair,

and left lower extremity shrapnel injury. (Doc. 77, at ¶ 38). The staff continued Cowher’s

prescribed medications – Flexeril, Colace, Naproxen, Pamelor, and Zantac. (Doc. 77, at ¶

38).

PA Okurowski noted that Mr. Cowher would be admitted to infirmary for 23-hour

observation to document gait/ambulatory baseline. (Doc. 77, at ¶ 40). During Cowher’s stay

in the infirmary, Cowher reported to Nurse Henderson that he was “doing well,” although he

complained of herniated discs in his neck as well as right hip pain and shoulder pain. (Doc.

77, at ¶ 41). On December 2, 2016, Cowher complained to nursing staff of right shoulder pain,

as well as back and neck pain; staff reviewed his MRI records and noted herniations and

bulging discs at several levels. (Doc. 77, at ¶ 42). Cowher was discharged from the infirmary

to the block and permitted to use a cane and a wheelchair. (Doc. 77, at ¶ 42). Cowher again

presented to sick call on December 5, 2016, when he asked for a cervical collar to wear at

night to prevent spasm in his neck and arm. (Doc. 77, at ¶ 43). PA Bates ordered the collar

and Cowher received it the same day. (Doc. 77, at ¶ 43). Cowher returned to sick call on

December 7, 2016, when he requested a medical mattress. (Doc. 77, at ¶ 44). CRNP Peace

wrote an order for the mattress. (Doc. 77, at ¶ 44).

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On December 20, 2016, Dr. Voorstaad evaluated Cowher in the MD line, noting a

herniation of Cowher’s cervical spine. (Doc. 77, at ¶ 48). Cowher reported that he saw

neurosurgeon while at county who wanted to do surgery, but that he was since transferred

into the DOC and the surgery had yet to take place. (Doc. 77, at ¶ 48). On December 29,

2016, Cowher returned to the MD line to follow up regarding his chronic pain related to

cervical disc disease and herniation. (Doc. 77, at ¶ 50). Dr. Voorstaad continued Cymbalta,

discontinued Nortriptyline, and was unable to renew Flexeril. (Doc. 77, at ¶ 50).

3. SCI Mahanoy

Cowher was transferred to SCI Mahanoy on January 11, 2017, and his Intra-System

Transfer Reception Screening form was completed that same day. (Doc. 77, at ¶¶ 51-52). The

screening form noted Cowher’s chronic conditions and problems, including his cervical

disorder not otherwise specified, pain/neuropathy (right sided), gastroesophageal reflux

disease (GERD), and constipation. (Doc. 77, at ¶ 52). The screening form also noted his

medical history, including previous surgeries, and his then-present medications, including

Cymbalta and Zantac. (Doc. 77, at ¶ 52). The form also noted that Cowher was limited to

bottom bunk/bottom tier due to a mobility impairment, was not able to engage in weight

lifting, was limited to passive sports, and used physical aids, including a cane, a wheelchair

for distance, and both hard and soft cervical collars. (Doc. 77, at ¶ 52).

On January 16, 2017, Cowher met with PA Miller and reported that he was supposed

to have cervical disc surgery while at SCI Camp Hill. (Doc. 77, at ¶ 53). Cowher stated that

he had all his MRI records in his cell. (Doc. 77, at ¶ 53). Cowher brought his hospital records

to sick call on January 18, 2017, and reported that he needed surgery. (Doc. 77, at ¶ 54).

Cowher also relayed that he was supposed to get the surgery but “was shipped” to SCI

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Mahanoy instead. (Doc. 77, at ¶ 54). PA Palmigiano explained to Cowher that she was not

sure if the MRI reports that he had in his possession could be accepted into his medical chart.

(Doc. 77, at ¶ 54). Cowher was prescribed Flexeril, Pamelor, and Naprosyn. (Doc. 77, at ¶

54). Cowher provided copies of his MRIs to the medical department on January 20, 2017,

and these copies were placed into his medical chart. (Doc. 77, at ¶ 55).

On January 31, 2017, PA Palmigiano scheduled Cowher on the MD line regarding

pain management and to discuss an MRI of his spine. (Doc. 77, at ¶ 58). On February 8, 2017,

Dr. Rodgers reviewed Cowher’s prior MRIs with him, noting cervical issues, including

herniated discs. (Doc. 77, at ¶ 59). Cowher reported intermittent pain shooting down his right

arm and back. (Doc. 77, at ¶ 59). Cowher also reported that prior to his incarceration, and

while in the county system, he was seen by neurosurgery twice, and that surgery on his C-

spine was recommended. (Doc. 77, at ¶ 59). Some of the paperwork reviewed by Dr. Rodgers

indicated Cowher had significant cervical issues. (Doc. 83, at ¶ 4).

Dr. Rodgers wrote an order to obtain Cowher’s visit notes and recommendations from

his previously seen neurosurgeon, Dr. Rajjoub, of Lycoming Neurosurgical Associates. (Doc.

77, at ¶ 59). Dr. Rogers testified that even if an inmate arrives with a pre-existing scheduled

surgery, and provides supporting medical records such as MRI reports, Correct Care must

still secure copies of the records from the original providers as needed to complete the patient’s

medical chart. (Doc. 84, at ¶¶ 2, 10-11).

Dr. Rodgers again evaluated Cowher in the MD line on March 1, 2017. (Doc. 77, at ¶

62). At this time none of Cowher’s outside medical records had been obtained, but Dr.

Rodgers told Cowher that he would put in another request. (Doc. 77, at ¶ 62). Cowher stated

that Pamelor seemed to be working pretty good for his pain. (Doc. 77, at ¶ 62). Dr. Rodgers

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noted that, while Cowher was wheelchair bound, he was oriented and in no acute distress.

(Doc. 77, at ¶ 62). Dr. Rodgers’ assessment included C-spine degenerative disc disease with

neuropathy. (Doc. 77, at ¶ 62).

On April 21, 2017, Cowher stated to PA Miller that he needed a temporary medication

refill due to neck and back pain. (Doc. 77, at ¶ 73). Cowher presented in his wheelchair, but

PA Miller noted Cowher was alert and in no distress. (Doc. 77, at ¶ 73). PA Miller noted that

the medications were refilled. (Doc. 77, at ¶ 73).

Cowher was subsequently released from DOC custody on July 6, 2017. (Doc. 77, at ¶

84).

D. GRIEVANCE HISTORY

Cowher filed a number of grievances while in DOC Custody – three of which relate to

his claims in this case, and none of which were properly exhausted. On March 28, 2017, while

incarcerated at SCI Mahanoy, Cowher commenced grievance number 670733. Therein,

Cowher grieved the pace of scheduling his neck surgery, the treatment provided for his knee

and back, and the denial of certain medical prescriptions. (Doc. 76-2, at 8). Prison staff denied

grievance number 670733 on initial review. (Doc. 76-2, at 6). Cowher’s response was due on

April 8, 2017, but he did not file an appeal. (Doc. 76-2, at 7; Doc. 77, at ¶ 69).

On April 13, 2017, Cowher commenced grievance number 673492, which pertained

to his appointments for neurology and physical therapy. (Doc. 76-2, at 14). Prison staff denied

the grievance on initial review. (Doc. 76-2, at 12). Cowher appealed this denial to the facility

manager on April 26, 2017, who denied Cowher’s appeal on May 11, 2017. (Doc. 76-2, at 9-

11). Cowher did not further appeal this grievance. (Doc. 77 at ¶ 79).

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On April 20, 2017 Cowher commenced grievance number 674917, complaining that

he needed prescribed medication, specifically Naprosyn, Zantac, and Rantidine [sic]. (Doc.

77, at ¶ 79). Prison staff denied Cowher’s grievance on initial review. (Doc. 76-2, at 15).

Although Cowher’s response was due May 15, 2017, he did not appeal the denial of this

grievance. (Doc. 76-2, at 16; Doc. 77, at ¶ 78).

Following his release from custody on July 6, 2017, personnel for the Secretary’s Office

of Inmate Grievances and Appeals (“SOIGA”) reported that Cowher had not filed anything

with their office. (Doc. 77, at ¶ 87). Cowher does not dispute that he failed to appeal his

grievances through Final Review with SOIGA. (Doc. 83, at ¶¶ 33-99).

E. POST-INCARCERATION SURGERY

On November 18, 2017, after he was released from custody, Cowher had surgery for

an anterior cervical discectomy and fusion (C4-7). (Doc. 72, at ¶ 138; Doc. 82, at 3). Dr.

Michael Haak performed this surgery at Geisinger Medical Center. (Doc. 72, at ¶ 138; Doc.

82, at 3). On April 25, 2018, Dr. Haak also performed surgery on Cowher’s lumbar spine.

(Doc. 72, at ¶¶ 144, 146).

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “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). A fact is “material” only if it might

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary

15

judgment motion, all inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the movant’s, then the

non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir.

1994).

A federal court should grant summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

The Court need not accept mere conclusory allegations, whether they are made in the

complaint or a sworn statement. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). In

deciding a motion for summary judgment, the court’s function is not to make credibility

determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.

Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249.

Finally, “although the party opposing summary judgment is entitled to the ‘benefit of

all factual inferences in the court's consideration of a motion for summary judgment, the

nonmoving party must point to some evidence in the record that creates a genuine issue of

material fact.’” Velentzas v. U.S., No. 4: CV -07-1255, 2010 WL 3896192, at *7 (M.D. Pa.

August 31, 2010) (quoting Goode v. Nash, 241 F. App’x. 868, 868 (3d. Cir. 2007) (citation

omitted). The opposing party “cannot rest solely on assertions made in the pleadings, legal

memorandum, or oral argument.” Velentzas, 2010 WL 3896192, at *7. If the non-moving

party “fails to make a showing sufficient to establish the existence of an element essential to

[the non-movant's] case, and on which [the non-movant] will bear the burden of proof at

16

trial,” Rule 56 mandates the entry of summary judgment because such a failure “necessarily

renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);

Jakimas v. Hoffmann–La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

B. EXHAUSTION OF CLAIMS AGAINST CORRECT CARE

In moving for summary judgment, Correct Care asserts Cowher failed to exhaust his

administrative remedies with respect to all of the claims he asserts in this action. (Doc. 76, at

5).4 In response, Cowher contends that the grievances he filed put Correct Care on “notice of

[his] complaint.” (Doc. 84, at 4). Cowher argues that he satisfied the Prison Litigation Reform

Act’s (“PLRA”) exhaustion requirement because the purpose of exhaustion “is to provide

notice of the prisoner’s grievances and a chance for the prison system to address them.”(Doc.

84, at 4). In support of this argument, Cowher relies solely on two non-binding cases from the

Fourth and Fifth Circuits. (Doc. 84, at 4).

The PLRA mandates that prisoners exhaust all available administrative remedies prior

to initiating a suit under § 1983 for the deprivation of Constitutional rights. 42 U.S.C. §

1997e(a). As the statutory language makes clear, § 1997e(a) applies equally to § 1983 actions,

which involve state actors, and to Bivens5 actions, which involve federal actors. Nyhuis v. Reno,

4 The PrimeCare Defendants do not move for summary judgment on the basis of

failure to exhaust administrative remedies. As such, the Court only examines whether

Cowher exhausted his administrative remedies as to his claims against Correct Care. As

discussed infra, Cowher’s claims against Correct Care did not accrue until after he initiated

this lawsuit, after he was transferred into DOC custody, and after Correct Care assumed his

treatment during his incarceration with the DOC.

5 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971).

17

204 F.3d 65, 68 (3d Cir. 2000); see also Dillon v. Rogers, 596 F. 3d 260, 272-73 (3d Cir. 2010)

(noting that exhaustion under the PLRA is a threshold issue, and that “the judge should

usually resolve disputes concerning exhaustion prior to allowing the case to proceed to the

merits.”). “[T]he PLRA amended § 1997e(a) in such a way as to make exhaustion of all

administrative remedies mandatory—whether or not they provide the inmate-plaintiff with

the relief he says he desires in his federal action.” Nyhuis, 204 F. 3d at 67; see also Spruill v.

Gillis, 372 F.3d 218, 227 (3d Cir. 2004). Even where the relief sought is unavailable through

administrative remedies, prisoners must pursue their claims through prison channels prior to

commencing related litigation in federal courts. See Woodford v. Ngo, 548 U.S. 81, 85 (2006).

Further, inmates must see their grievances through to the final level of review possible

under the administrative review system in place. Woodford, 548 U.S. at 93. Compliance with

the prison’s internal grievance system, as opposed to rules defined by the PLRA itself, is

needed to satisfy the PLRA’s exhaustion requirement. See Small v. Camden Cnty., 728 F.3d

265, 272 (3d Cir. 2013); Moore v. Lamas, NO. 3:12-CV-223, 2017 WL 4180378, at *6 (M.D.

Pa. Sept. 21, 2017). Claims not made within the parameters set forth by the prisons, and

therefore not reviewed on the merits, are considered procedurally defaulted, precluding courts

from considering those claims. See Spruill, 372 F.3d at 227-32.

Courts may take “judicial notice of the Pennsylvania Department of Corrections'

(DOC) policy statement, DC–ADM 804, captioned Inmate Grievance System.” See Ali v.

Superintendent SCI Camp Hill, No. 1:CV-14-1851, 2015 WL 5913197, at *3 (M.D. Pa. Oct. 7,

2015) (internal citations omitted). The Inmate Grievance System (“IGS”) requires a concern

about prison life to be filed initially with the Facility Grievance Coordinator. DC-ADM 804

§ 1(A)(5). If the inmate receives an unfavorable response to his initial filing, he must appeal

18

within fifteen working days to the Facility Manager. DC-ADM 804, §2(A)(1)(a-b). If the

inmate receives an unfavorable response from the Facility Manager’s review, he must appeal

within fifteen working days to the Final Review. DC-ADM 804, § 2(B)(1)(b). A proper appeal

to Final Review must include a written appeal to the SOIGA. DC-ADM 804 § 2(B)(1)(j)(5).

A prisoner may not fulfill the PLRA's exhaustion requirement by exhausting

administrative remedies after the filing of the complaint in federal court. Glaster v. Fed. BOP-

Inmate Designation and Custody Classification Pers. / Officer, No. 3:CV–08–0193, 2009 WL

2515787, at *2 (M.D. Pa. Aug. 13, 2009) (quoting Oriakhi v. United States, 165 F. App’x 991,

993 (3d Cir. 2006) (not precedential)). “Under the [PLRA], prisoners may file supplemental

complaints if the claims in question 1) have truly accrued since the beginning of the suit and

2) are exhausted per 42 U.S.C. § 1997e(a) before the supplement is filed.” Moneyham v. Potter,

NO. 3:15-cv-00436, 2017 WL 4079543, at *4 (M.D. Pa. Aug. 3, 2017) (emphasis omitted)

(report and recommendation adopted 2017 WL 4073794 (M.D. Pa. Sept. 14, 2017) (quoting Boone

v. Nose, 530 F. App’x 112, 113 n.1 (3d Cir. 2013) (per curiam)). Finally, transfer to another

facility does not excuse the PLRA's exhaustion requirement. Ball v. Bower, No. 1:10–CV–

2561, 2011 WL 6782621, *5 (M.D. Pa. Oct. 13, 2011) (report and recommendation adopted 2011

WL 6782428, Dec. 21, 2011) (citing Williamson v. Wexford Health Sources, Inc., 131 F. App'x

888, 890 (3d Cir.2005)).

Here, Cowher filed the initial complaint in this matter on November 10, 2016. (Doc.

1). At that time, Cowher was incarcerated at Pike County Correctional Facility, and Prime

Care provided his medical care. (Doc. 72, at ¶ 132). Cowher’s prison transfer, which occurred

in the interim between his filing of the initial complaint and his filing of the operative

complaint, resulted in a change of his medical care provider from Prime Care to Correct Care.

19

(Doc. 72, at ¶ 132); (Doc. 73, at 7); (Doc. 77, at ¶ 2). Correct Care did not provide any

allegedly constitutionally deficient care to Cowher until after he filed the initial complaint.

Cowher filed an amended complaint, the operative complaint in the instant action, on June

27, 2017. (Doc. 29). At that time, Cowher was incarcerated at SCI-Mahanoy, and Correct

Care provided his medical care. (Doc. 77, at ¶ 2). Cowher named Correct Care as a Defendant

for the first time in that amended complaint. (Doc. 29, at ¶ 20). Thus, in order for the Court

to consider Cowher’s claim of deliberate indifference against Correct Care, first asserted in

the amended complaint, his claim must 1) have accrued since the filing of his initial complaint

and 2) be properly exhausted. See Moneyham, 2017 WL 4079543, at *4 (citing Boone, 530 F.

App’x at 113 n.1). A deliberate indifference claim accrues “when a plaintiff knows or has

reason to know of the injury which is the basis of the action.” Monroe v. Hogsten, 2009 WL

1138123, at *4-5 (M.D. Pa. Apr. 27, 2009) (citing Gentry v. Resolution Trust Corp., 937 F.2d

899, 919 (3d Cir. 1991)). Based on the above, Cowher’s additional deliberate indifference

claim against Correct Care would not have accrued until after he filed the initial complaint in

this matter. See Monroe, 2009 WL 1138123, at *4-5 (citing Gentry, 937 F.2d at 919).

District courts must determine whether any of the claims in a suit are unexhausted,

then dismiss those claims from the suit and proceed only with those claims which are

exhausted. See Jones v. Bock, 549 U.S. 199, 223-24 (2007) (holding no total exhaustion rule for

PLRA suits). Each grievance that relates to each distinct incident forming the basis of a

complaint must be exhausted. See also Small v. Camden Cty., 728 F.3d 265 , 268 (3d Cir. 2013)

(approving district court’s process of determining whether plaintiff “properly filed a grievance

and thereafter exhausted each of the fourteen incidents of which he complained”); see also

Mitchell v. Dodrill, 696 F. Supp. 2d 454, 465 (M.D. Pa. 2010) (consolidating two actions then

20

requiring prisoner-plaintiff to file amended complaint because exhaustion must be complete

at the time of filing an amended complaint).

Thus, at issue is whether Cowher properly exhausted his claim against Correct Care

once it accrued. Proper exhaustion of Cowher’s claims against Correct Care requires him to

appeal unfavorable grievances to SOIGA in writing. See Small, 728 F.3d at 272; DC-ADM

804 § 2. Here, Cowher filed three grievances concerning Correct Care’s provision of medical

care regarding his back or shoulder pain while in DOC Custody.

Cowher failed to appeal the initial denial of two of these grievances, numbers 670733

and 674917, to the Facility Manager. (Doc. 77, at ¶ 69); (Doc. 77, at ¶ 78). Notably, the

deadlines for Cowher to complete an appeal (April 8, 2017, as to grievance number 670733,

and May 15, 2017, as to grievance number 674917) passed before Cowher filed the amended

complaint in this matter. (Doc. 76-2, at 7; Doc. 76-2, at 16). Thus, it is evidence that Cowher

did not exhaust his administrative remedies as to these two grievances. Cowher, however, did

appeal the third grievance, number 673492, to the Facility Manager. (Doc. 76-2, at 10-11).

However, after receiving the Facility Manager’s denial of his grievance, Cowher did not

appeal this grievance to Final Review. (Doc. 77 at ¶ 79). The Facility Manager’s denial is

dated May 11, 2017, and Cowher would have had fifteen working days to appeal to final

review from the date he received this denial. (Doc. 76-2, at 9). While the record does not

disclose when Cowher received this denial, he does not dispute that he failed to timely appeal

any of his grievances to Final Review. (Doc. 76-2, at 8, 14, 17). Therefore, Cowher’s claims

against Correct Care are procedurally defaulted.

21

C. COWHER’S EIGHTH AMENDMENT DELIBERATE INDIFFERENCE CLAIMS

Cowher submits that Defendants were deliberately indifferent to his serious medical

needs in not scheduling his cervical spine surgery, and in their decisions about his medication.

With regard to PrimeCare, Cowher submits that PrimeCare was deliberately indifferent to his

serious medical need by delaying and changing his medications, and postponing the surgery

due to “bureaucracy and an unwillingness to assume financial responsibility” for the surgery.

(Doc. 82, at 7). As to Correct Care, Cowher argues that Correct Care displayed deliberate

indifference to his serious medical need by not scheduling surgery that was previously

scheduled by other providers, and instead chose “to engage its bureaucracy.” (Doc. 84, at 5).

To establish an Eighth Amendment medical claim, a plaintiff “must show (i) a serious

medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference

to that need.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). A serious medical need is “one that has

been diagnosed by a physician as requiring treatment or one that is so obvious that a lay

person would easily recognize the necessity for a doctor's attention.” Monmouth Cnty. Corr.

Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, “if unnecessary

and wanton infliction of pain results as a consequence of denial or delay in the provision of

adequate medical care, the medical need is of the serious nature contemplated by the eighth

amendment.” Lanzaro, 834 F.2d at 347 (citations omitted). A serious medical need exists if

failure to treat such condition would constitute a “denial of the minimal civilized measure of

life's necessities.” Farmer v. Brennan, 511 U.S. 824, 825 (1994).

A prison official acts with deliberate indifference to an inmate's serious medical needs

when he “knows of and disregards an excessive risk to inmate health or safety; the official

22

must both be aware of facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.

Deliberate indifference is manifested by an intentional refusal to provide care, delayed

medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of

reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll,

991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of

permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990). However, prison

medical authorities are given considerable latitude in the diagnosis and treatment of inmate

patients. Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979). Mere

negligence, unsuccessful medical treatment, or medical malpractice do not give rise to a §

1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to

establish deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Spruill v. Gillis,

372 F.3d 218, 237 (3d Cir. 2004); Lanzaro, 834 F.2d at 346. Further, a prison doctor's failure

to perform additional diagnostic tests does not constitute cruel and unusual punishment. See

Estelle, 429 U.S. at 107. The key question is whether the defendant has provided the inmate

with some type of treatment, regardless of whether it is what the inmate desires. Farmer v.

Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. Feb. 29, 1988); see, e.g., Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises

professional judgment his behavior will not violate a prisoner's constitutional rights.”).

The deliberate indifference prong of an adequacy of care claim in particular contains

both an objective component, the “adequacy of the medical care[,]” and a subjective

component, the “individual defendant’s state of mind.” Pearson v. Prison Health Serv., 850 F.3d

526, 536 (3d Cir. 2017). “[A] plaintiff must set forth evidence of an objectively serious medical

23

need. A medical need qualifies as serious … if… it is one that has been diagnosed by a

physician as requiring treatment or is so obvious that a lay person would easily recognize the

necessity for a doctor’s attention.” Young v. Kazmerski, 266 F. App’x 191, 193 (3d Cir. 2008)

(citing Lanzaro, 834 F.2d at 346-47) (quotations omitted). Here, there is no real dispute by the

parties as to the seriousness of Cowher’s medical need. Rather, the lies in whether or not

either set of defendants were deliberately indifferent to that need.

Where, as here, “a prisoner has received some amount of medical treatment, it is

difficult to establish deliberate indifference, because prison officials are afforded considerable

latitude in the diagnosis and treatment of prisoners.” Palakovic v. Wetzel, 854 F.3d 209, 227-28

(3d Cir. 2017); accord United States ex rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir.

1979) (“[w]here a prisoner has received some medical attention and the dispute is over the

adequacy of treatment, federal courts are generally reluctant to second guess medical

judgments and to constitutionalize claims which sound in state tort law.”). “When medical

care is provided, [courts] presume that the treatment of a prisoner is proper absent evidence that

it violates professional standards of care.” Pearson, 850 F.3d at 535 (emphasis added); accord

Brown v. Borough of Chambersburg, 903 F.2d 274. 278 (3d Cir. 1990) (“[I]t is well established

that as long as a physician exercises professional judgment his behavior will not violate a

prisoner’s constitutional rights.”); Lanzaro, 834 F.2d at 346 (“[M]ere disagreement as to the

proper medical treatment” does not “support a claim of an eighth amendment violation.”);

Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (“[T]he propriety or

adequacy of a particular course of treatment ... remains a question of sound professional

judgment.”). Neither a prisoner’s personal, subjective dissatisfaction with the care he has been

provided, nor his disagreement with the professional judgment of trained medical staff, in and

24

of itself, is sufficient to establish deliberate indifference. See Hairston v. Director Bureau of

Prisons, 563 F. App’x. 893. 895 (3d Cir. 2014); White v. Napoleon, 897 F.2d 103, 110 (3d Cir.

1990): Andrews v. Camden Cty., 95 F. Supp. 2d 217, 228 (D.N.J. 2000).

There are, however, “circumstances in which some care is provided yet it is insufficient

to satisfy constitutional requirements.” Palakovic, 854 F.3d at 228. For example, prison

officials “cannot deny reasonable requests for medical treatment ... [when] such denial

exposes the inmate ‘to undue suffering or the threat of tangible residual injury.” Palakovic, 854

F.3d at 228 (citations and internal quotations omitted). Likewise, “knowledge of the need for

medical care may not be accompanied by the intentional refusal to provide that care.”

Palakovic, 854 F.3d at 228. The court should also consider the effect of denying medical

treatment under any particular circumstances, including where such denial or delay results in

unnecessary and wanton infliction of pain, or causes an inmate to suffer a life-long handicap

or permanent loss, or render a condition irreparable. Banks v. Beard, No. 2:03CV659, 2006

WL 2192015, at *13 (W.D. Pa. Aug. 1, 2006). Outside of such situations, each claim must be

evaluated to determine whether the treatment or lack thereof implicates the “broad and

idealistic concepts of dignity, civilized standards, humanity and decency” that provide the

underpinnings for defining the reaches of the Eight Amendment. Banks, 2006 WL 2192015,

at *13 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).

Both PrimeCare and Correct Care submit that they are entitled to summary judgment

in part because Cowher has not produced expert medical testimony in support of his claim.

(Doc. 73, at 14, 16; Doc. 78, at 28-29). In response, Cowher avers that PrimeCare’s changing

of his medication, and the fact that it ultimately approved his surgery, is extrinsic evidence

precluding summary judgment on his Eighth Amendment claim against PrimeCare. (Doc.

25

82, at 8). Cowher further submits that the fact that surgery was already scheduled when he

arrived in state custody is extrinsic evidence precluding summary judgment in favor of Correct

Care. (Doc. 84, at 5).

1. Delays and Changes to Cowher’s Medication

As to Cowher’s claims related to delays and changes in his pain medication, the Court

finds that the undisputed evidence in the record does not amount to deliberate indifference

under the Eighth Amendment. “[S]poradic delays (not exceeding four days at any one time)

in providing prescription medication … do not amount to deliberate indifference.” Ayala v.

Terhune, 195 F. App’x 87, 91 (3d Cir. 2006). Here, Cowher testified that he thinks he went

four or five days without pain medication “a couple times.” (Doc. 81, at ¶¶ 3-17). Cowher

going four or five days without medication is insufficient to survive summary judgment. See

Ayala, 195 F. App’x at 91. Furthermore, Cowher’s allegations that sometimes his medication

was mixed up, or that he was given the wrong dosage, are insufficient to show that the named

defendants acted with a culpable state of mind. See Rouse v. Plantier, 182 F.3d 192, 197 (3d

Cir. 1999). Thus, Cowher’s deliberate indifference claim related to the administering of his

medications does not survive summary judgment. See also Hartman v. Corr. Med. Serv., 366 F.

App’x 453, 455 (3d Cir. 2010) (dismissing plaintiff’s complaint as not based on an Eighth

Amendment deliberate indifference theory when “his allegations reflect his frustrations with

repeated occurrences of medication lapses, as well as his disagreement with the manner in

which defendant… directed that all of [plaintiff]'s medications be administered by medical

staff”). Accordingly, the motions for summary judgment by PrimeCare and Correct Care are

GRANTED on this ground.

26

2. Delay and Denial of Surgery

Cowher’s deliberate indifference claim related to the delay or denial of surgery also

fails. In evaluating deliberate indifference in an adequacy of care claim, as Cowher brings

here, medical expert testimony may be necessary to establish deliberate indifference where,

as laymen, the jury would not be in a position to determine that the particular treatment or

diagnosis fell below a professional standard of care. Pearson v. Prison Health Serv., 850 F.3d

526, 536 (3d Cir. 2017); see also Jackson v. Ivens, 565 F. App’x 115, 118 (3d Cir. 2014) (citing

Montgomery v. Pinchak, 294 F.3d 492, 504 (3d Cir. 2002) (“[w]hile the parties do not dispute

that sarcoidosis is a serious medical issue, the necessary treatment for sarcoidosis is not

obvious to a lay person”)); Capozzi v. Pigos, 640 F. App’x 142, 144 (3d Cir. 2016) (upholding

district court’s grant of summary judgment when prisoner-plaintiff’s eighth amendment claim

“involve[d], at bottom, a dispute with his doctors over whether surgery [was] currently

appropriate”); Mitchell v. Gershen, 466 F. App’x 84, 87 (3d Cir. 2011) (“[I]n order to sustain

his deliberate indifference claim based on his objection to the type of diagnosis and treatment

he received, [plaintiff] needs … expert testimony because the ability to diagnose a foot

infection and determine the proper treatment and medication protocol is not readily apparent

to lay persons.”). Evaluating whether medical treatment is adequate presents an objective

question typically beyond the competence of a non-medical professional, and this requires a

prisoner to offer extrinsic proof regarding the quality of medical care to defeat the

presumption that the medical care provided to him or her was adequate. Gershen, 466 F. App’x

at 87; Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (“[P]rison authorities are accorded

considerable latitude in the diagnosis and treatment of prisoners.”); Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises

27

professional judgment his behavior will not violate a prisoner’s constitutional rights.”).

Nonetheless, expert testimony may not be required where other forms of extrinsic evidence

may suffice. Pearson, 850 F.3d at 536; Brighthwell v. Lehman, 637 F.3d 187, 194 n.8 (3d Cir.

2011). Extrinsic proof of the quality of medical care may include a training manual,

photograph, or medical records. Pearson, 850 F.3d at 536.

Cowher submits that PrimeCare’s decision to approve the surgery only after it decided

to pay for it is evidence of deliberate indifference. (Doc. 82, at 8). The denial of medical care,

when based on non-medical factors such as cost, may violate the Eighth Amendment. See

Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).

However, “prisoners do not have a constitutional right to limitless medical care, free of the

cost constraints under which law-abiding citizens receive treatment.” Winslow v. Prison Health

Serv., 406 F. App’x 671, 674 (3d Cir. 2011) (citing Reynolds v. Wagner, 128 F.3d 166, 175 (3d

Cir. 1997).6 Here, the record contains some evidence that PrimeCare considered cost in

deciding not to provide Cowher’s surgery. (Doc. 72-4, at 17); (Doc. 72-5, at 42). PrimeCare’s

“release of financial responsibility” states that PrimeCare will not pay for surgery which is

elective or cosmetic in nature. (Doc. 72-5, at 42). However, Cowher testified that cost was never

brought up regarding PrimeCare’s decision not to pay for the surgery. (Doc. 72, at ¶ 106; Doc.

81, at ¶ 106).

6 The Court in Winslow upheld summary judgment for defendants responsible for

providing prisoner-plaintiff’s medical care despite “some record evidence suggesting that

Defendants considered the cost of [plaintiff’s] treatment” because “the record is equally clear

that [defendants] did not focus exclusively or even predominantly on cost and that the

treatment that they ordered was consistent with their professional judgment.”

28

In response to Correct Care’s motion for summary judgment, Cowher submits that

“Correct Care chose instead to engage its bureaucracy rather than secure the surgery that

everyone else said was warranted,” including requesting an inmate’s medical records through

the DOC as opposed to ordering treatment based on the inmate’s “obvious needs.” (Doc. 84,

at 5, 7). Cowher also argues that Correct Care was deliberately indifferent to his serious

medical need by waiting to secure medical records, as opposed to relying on a pre-scheduled

surgery. (Doc. 83, at ¶ 2; 10-11). The undisputed record, however, establishes that an order

for medical records is processed through the DOC’s Medical Records Department, not

through Correct Care, and as such, Correct Care was not able to obtain Cowher’s records

from his incarceration at Pike County Correctional Facility, including his records with Dr.

Rajjoub. (Doc. 76, at 35-37). Further, Correct Care submits that Cowher’s condition was not

urgent such that “subvert[ing] the normal consultation process and order[ing] an emergency

consultation” would have been warranted. (Doc. 76, at 37).

It is also undisputed from the record that Correct Care used various treatments to

address Cowher’s back and shoulder pain. For example, Cowher was provided a medical

mattress at SCI Graterford. (Doc. 77, at ¶ 44). Cowher requested and received a cervical collar

to prevent spasms in his neck and down his arm. (Doc. 77, at ¶ 43). When Cowher presented

to SCI Mahanoy in January 2017, his physical aids included a cane, wheelchair for distance,

and both hard and soft cervical collars. (Doc. 77, at ¶ 52). This record, undisputed by Cowher,

demonstrates that DOC medical personal attended to his back and shoulder pain, and that

Correct Care officials addressed Cowher’s complaints of pain with medication throughout his

incarceration with the DOC. (Doc. 77, at ¶ 49, ¶ 52, ¶ 54, ¶ 62, ¶ 73).

29

Both sets of Defendants produced expert reports that concluded the defendants were

not deliberately indifferent to Cowher’s serious medical needs. Specifically, PrimeCare

produced expert testimony recounting the medications Cowher received, and its expert found

that the treatment which Cowher received was “in concert with conservative care for spinal

disc disease with radiculopathy.” (Doc. 72, at ¶ 149). Notably, Cowher did not point to record

evidence to dispute this testimony. (Doc. 81, at ¶¶ 148-152). Cowher’s allegation that

PrimeCare considered cost in deciding to deny him elective surgery, coupled with record

evidence which shows the decision was consistent with professional judgment, is insufficient

to create a disputed material fact on the subjective prong of this deliberate indifference claim.

See Winslow, 406 F. App’x at 672, 675; see also Fantone v. Herbik, 528 F. App’x 123, 125-26;

126 n. 3 (3d Cir. 2013) (evidence which shows defendants reviewed MRI’s and x-rays of

prisoner-plaintiff’s ailment, but did not refer him for elective surgery, does “not

demonstrate… the [defendants] had a sufficient[ly] “culpable state of mind”). The undisputed

record evidence indicates Cowher twice consulted with Dr. Rajjoub while under PrimeCare’s

medical care, in July and October of 2016. (Doc. 72, at ¶¶ 66; 101; Doc. 81, ¶¶ 66, 99-104).

On both occasions, Dr. Rajjoub discussed surgery and non-surgical alternatives, including

doing nothing. (Doc. 72 at ¶¶ 66; 101). At the October appointment, although Cowher

indicated that he wished to proceed with surgery, surgery was not the only recommendation

made by Dr. Rajjoub. (Doc. 72-8, at 9). On neither occasion did Dr. Rajjoub state Cowher’s

current treatment plan was not effective, or that Cowher was not responding to it. See Brown

v. Deparlos, 2011 WL 1158289, at *3, 5 (M.D. Pa. March 28, 2011); (Doc. 72-8, at 9, 16).

Ultimately, medical personal at Pike County Correctional Facility determined Cowher’s

surgery was “elective” in nature. (Doc. 72, at ¶¶ 75, 105; Doc. 81 at ¶¶ 74-79, 105). Further,

30

despite Cowher’s assertion that Dr. Rajjoub did not discuss non-surgical alternatives, which

led Cowher to believe that surgery was necessary, Cowher does not cite to any record evidence

supporting this assertion. (Doc. 72-11, at 14). “Averments that are ‘entirely unsupported by

the record and directly contrary to ... testimony,’ or that are ‘offered solely to defeat summary

judgment,’ may be disregarded.” Jugan v. Econ. Premier Assurance Co., 728 F. App’x 86, 91 (3d

Cir. 2018) (quoting Daubert v. NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017)).

Cowher has not provided any extrinsic evidence to show the course of treatment was

improper, and the course of treatment for a cervical spine and bulging disc issue would not be

obvious to a lay person. See Jackson v. Ivens, 565 F. App’x 115, 118 (3d Cir. 2014). Moreover,

where medical care is provided, the Court presumes the care to be adequate. See Pearson v.

Prison Health Serv., 850 F. 3d 526, 535 (citing Brown v. Borough of Chambersburg, 903 F.2d 274,

278 (3d Cir. 1990)). PrimeCare may consider costs when denying elective surgery, so long as

the treatment PrimeCare provides is consistent with its sound medical judgment. See Winslow,

406 F. App’x at 672, 675. Thus, even assuming, arguendo, that Cowher created a triable issue

regarding the objective prong of his deliberate indifference claim, Cowher has not created a

genuine issue of material fact regarding the subjective prong of his deliberate indifference

claim against PrimeCare. See Fantone, 528 F. App’x at 125-26; 126 n. 3; Gershen, 466 F. App’x

at 87.

Correct Care also produced expert testimony regarding the adequacy of Cowher’s

care. According to expert testimony from Dr. Winer, “[i]n 75% of patients with [Cowher’s]

presentation, no surgery is every [sic] necessary, hence the first approach to care.” (Doc. 72-

9, at 2). Therefore, the only expert testimony regarding the adequacy of Correct Care’s

treatment reveals no disputed material fact regarding the adequacy of that treatment. Even

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assuming the record contained evidence that the treatment was inadequate, “the mere receipt

of inadequate medical care does not itself amount to deliberate indifference” when there is no

evidence that said treatment violated proper standards of care. Pearson, 850 F. 3d at 535 (citing

O’Carroll, 991 F.2d at 69 n. 13; Brown, 903 F.2d at 278); see also Serrano v. Folino, 339 F. App’x

254, 256-57 (3rd Cir. 2009) (summary judgment warranted when record “indicates that

[prisoner-plaintiff] received frequent medical attention, including an MRI, a recommendation

that he receive physical therapy, and an assessment by a team of physicians, including an

orthopedic specialist” and prisoner-plaintiff’s claim that “knee surgery was improperly

withheld rests entirely on his allegation that [defendant physican] promised to recommend

knee surgery and did not do so”). Further, although there may be a question of fact regarding

the motives of the prison doctor responsible for delaying treatment when delay eliminates the

possibility of that treatment’s effectiveness, there is no dispute that the outcome of Cowher’s

surgery was not affected by the delay. Cf. O’Carroll, 991 F.2d at 68-69 (finding question of fact

regarding prison physician’s intent precluded summary judgment on deliberate indifference

claim when inmate suffered stroke pre-incarceration, repeatedly notified prison authorities of

his deteriorating condition, prison physician sent plaintiff to a neurologist who “specifically

recommended physical therapy,” and it was “undisputed that physical therapy must take

place within approximately eighteen months of a stroke to be effective,[and so] time was of

the essence”). As such, even if Cowher had exhausted his administrative remedies against

Correct Care, the record is devoid of any disputed material fact precluding summary judgment

on the deliberate indifference claim against Correct Care.

For these reasons, summary judgment is GRANTED in favor of Prime Care and

Correct Care as to Cowher’s Eighth Amendment medical needs claim.

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D. COWHER’S MONELL CLAIMS

PrimeCare and Correct Care seek summary judgment on Cowher’s Monell claims. A

claimant can seek to hold a municipality liable with respect to its constitutionally deficient

customs or policies. Berg v. Cnty. of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (citing Monell

v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 696 (1978)). “[A] municipality may be

liable under section 1983 only if it can be shown that its employees violated a plaintiff’s civil

rights as a result of a municipal policy or practice.” Williams v. Borough of West Chester, 891

F.2d 458, 467 (3d Cir. 1989) (internal citations omitted). Further, “private physicians or

hospitals which provide medical services to inmates pursuant to a contract with the

prison may be held liable in a civil rights suit.” Little v. Lycoming Cnty., 912 F. Supp. 809, 815

(M.D. Pa. 1996) (citing West v. Atkins, 487 U.S. 42, 54 (1988)).

However, regardless of any policy or practice it may have adopted, a medical services

contractor, such as PrimeCare or Correct Care, cannot be held vicariously liable under Monell

unless one of the individual defendants “is primarily liable under section 1983 itself.”

Williams, 891 F.2d at 467; see also City of L.A. v. Heller, 475 U.S. 796, 799 (1986) (municipal

liability requires an underlying constitutional violation). As discussed above, Cowher failed

to exhaust his claims against Correct Care. Further, he has not created a genuine issue of

material fact regarding his deliberate indifference claim against both PrimeCare and Correct

Care. Accordingly, Cowher cannot maintain a Monell claim against PrimeCare or Correct

Care, and summary judgment is entered in their favor. See Heller, 475 U.S. at 796.

E. COWHER’S STATE LAW CLAIMS

Cowher’s amended complaint asserts state law negligence and intentional infliction of

emotional distress claims. (Doc. 29, at 15; 17). However, in his briefs in opposition to

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Defendants’ motions for summary judgment, Cowher withdrew his claims for medical

negligence and intentional infliction of emotional distress against the Defendants. (Doc. 82,

at 4, n. 1; Doc. 84, at 3, n. 1). As such, it does not appear that any claims remain against the

Defendants. However, to the extent any state law claims do remain, the Court declines to

exercise supplemental jurisdiction over those state law claims. 28 U.S.C. § 1367(c)(3); Kach v.

Hose, 589 F.3d 626, 650 (3d Cir. 2009); Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108

S.Ct. 614, 98 L.Ed.2d 720 (1988).

III. CONCLUSION

Cowher failed to exhaust his administrative remedies against Correct Care, and on

that basis, Correct Care is entitled to summary judgment in its favor. Further, having

considered the record before this Court in a light most favorable to Cowher, the Court finds

that the undisputed material facts in the record establish that both Correct Care and the

PrimeCare defendants are entitled to summary judgment on Cowher’s claim of Eighth

Amendment deliberate indifference to a serious medical need, and Cowher’s Monell claims

against these Defendants. Finally, Cowher has withdrawn his state law claims, and as such

no claims remain pending against these Defendants. Therefore, Defendants’ motions for

summary judgment (Doc. 71); (Doc. 75) will be granted, and judgment entered in favor of

Defendants.

An appropriate Order follows.

BY THE COURT:

Dated: July 23, 2019 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

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