Buttolph v. PrimeCare Medical Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEVEN C. BUTTOLPH, :

Plaintiff, : 1:16-cv-0325

:

v. : Hon. John E. Jones III

:

PRIME CARE MEDICAL INC., :

et al., :

Defendants. :

MEMORANDUM

March 18, 2020

Steven C. Buttolph (“Buttolph” or “Plaintiff”), at all relevant times, an

inmate incarcerated at the Perry County Prison, New Bloomfield, Pennsylvania,

filed this civil rights action pursuant to 42 U.S.C. § 1983, on February 22, 2016,

naming as Defendants PrimeCare Medical Inc. (“PrimeCare”), Carl A. Hoffman,

D.O. (“Dr. Hoffman”), and Tanya Schisler, PA (“Schisler”). (Doc. 1).

Pending is Defendants’ motion (Doc 46) for summary judgment pursuant to

Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court will

grant Defendants’ motion for summary judgment.

I. STANDARD OF REVIEW

Summary judgment “should be rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340

(3d Cir. 1990). “[T]his standard provides that the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)

(emphasis in original); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990).

A disputed fact is “material” if proof of its existence or nonexistence would affect

the outcome of the case under applicable substantive law. Id.; Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is

“genuine” if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United

Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d

Cir. 1991).

The party moving for summary judgment bears the burden of showing the

absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d

Cir. 1996). Although the moving party must establish an absence of a genuine

issue of material fact, it need not “support its motion with affidavits or other

similar materials negating the opponent's claim.” Celotex, 477 U.S. 317, 323

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1986). It can meet its burden by “pointing out ... that there is an absence of

evidence to support the nonmoving party’s claims.” Id. at 325.

Once such a showing has been made, the non-moving party must go beyond

the pleadings with affidavits, depositions, answers to interrogatories or the like to

demonstrate specific material facts which give rise to a genuine issue. FED. R. CIV.

P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio, 475

U.S. 574, 586 (1986) (stating that the non-moving party “must do more than

simply show that there is some metaphysical doubt as to the material facts”);

Wooler v. Citizens Bank, 274 F. App’x 177, 179 (3d Cir. 2008). The party

opposing the motion must produce evidence to show the existence of every

element essential to its case, which it bears the burden of proving at trial, because

“a complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at

323; see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he

non-moving party ‘may not rely merely on allegations or denials in its own

pleadings; rather, its response must . . . set out specific facts showing a genuine

issue for trial.’” Picozzi v. Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011)

(quoting FED. R. CIV. P. 56(e)(2)). “Inferences should be drawn in the light most

favorable to the non-moving party, and where the non-moving party’s evidence

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contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple

BMW, Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

If the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at

322. The adverse party must raise “more than a mere scintilla of evidence in its

favor” and cannot survive by relying on unsupported assertions, conclusory

allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458,

460 (3d Cir. 1989). The mere existence of some evidence in support of the non-

movant will not be adequate to support a denial of a motion for summary

judgment; there must be enough evidence to enable a jury to reasonably find for

the non-movant on that issue. Anderson, 477 U.S. at 249–50.

II. STATEMENT OF MATERIAL FACTS

PrimeCare has a contract to provide medical services to inmates incarcerated

in Perry County. (Doc. 47, ¶ 1; Doc. 1, ¶ 1). Hoffman was the Medical Director

and supervising physician at Perry County Prison between January 1, 2009 and

June 1, 2014. (Doc. 47-5, p. 4). Hoffman never examined Buttolph. (Doc. 47-3,

p. 9). Schisler is a certified physician assistant who was employed by PrimeCare

to provide medical services to inmates at the Perry County Prison. (Doc. 47, ¶ 2;

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Doc. 53, ¶1).

A. 2009

Upon entering the Perry County Prison on January 11, 2009, Buttolph

underwent a Receiving Screening and Health Assessment. (Id. at 3; Id. at 1).

During the screening and assessment, he informed Marilyn Williams, LPN that he

uses Proctosol for bleeding hemorrhoids, which began approximately one year

prior to his incarceration. (Id. at 3-5; Id.). Nurse Williams contacted Ms. Schisler

who issued an order that he be provided Proctosol cream. (Id. at 4; Id. at 1).

B. 2010

On September 21, 2010 Buttolph requested medical attention for a painful

hemorrhoid. (Doc. 54, ¶ 3). Schisler examined him on September 29, 2010, and

assessed him as having a large thrombosed hemorrhoid in the 3 o’clock position

and a non-thrombosed hemorrhoid at the 9 o’clock position. (Doc. 47, ¶¶ 8,9; Id.).

After discussing the risks and benefits of an incision and drainage procedure with

Buttolph, Schisler cleansed the area with betadine and anesthetized the area

with Lidocaine, lanced the hemorrhoids with a scalpel, and re-cleansed the area.

(Doc. 47, ¶¶ 10-12)1. Schisler instructed him to use Epsom Salt compresses with

1 In his statement of material facts, Buttolph states that Schisler used “unsterile, used, inmate

shower towels and placed them directly on the open cut to soak up the blood.” (Doc. 54, ¶ 5).

This statement is contradicted by his deposition testimony in which he testified that the towels

were clean towels from the laundry cart and that, in any event, he is not advancing a claim based

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washcloths three times a day for a week, to use a seat cushion, prescribed Proctosol

hemorrhoid cream three times a day as needed, Tucks medicated pads, Tramadol

50mg three times a day as needed for pain, ASA 325mg once a day, and scheduled

a follow-up appointment in two weeks. (Doc. 47, ¶ 13). According to Buttolph, his

pain medication was delayed for over a week. (Doc. 54, ¶ 6). He returned for his

follow-up appointment on October 6, 2010. (Doc. 47, ¶ 14; Doc. 54, ¶ 7).

Following an examination, Schisler directed him to continue the Proctosol and

Tucks pads as prescribed and follow up as needed. (Id. at 14, 15; Id. at 7).

He began experiencing problems again on or about November 15, 2010.

(Doc. 54, ¶ 8). Schisler issued a verbal order for use of Epsom salt compresses

three times per day as needed. (Doc. 47, ¶ 17; Doc. 54, ¶ 9).

C. 2011

Schisler next examined Buttolph on March 8, 2011 during a chronic care

appointment. (Id. at 18; Id.). It was noted that Plaintiff’s external hemorrhoids

were stable. (Id.; Id.).

During an April 20, 2011 examination, Schisler documented that Buttolph

had severe hemorrhoids, including one small tender thrombosed hemorrhoid, and

prescribed Anusol, Tucks pads, stool softeners and indicated that prior treatment

on this conduct. (Doc. 47-3, p. 7). He simply doesn’t “believe a doctor or PAC in any other

facility would have ever grabbed towels in a non-emergency situation.” (“Id.”).

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included an incision and drainage. (Id. at 20, 21; Id. at 10). Schisler offered to

lance and drain the small hemorrhoid; Buttolph declined that option. (Doc. 54, ¶

11).

On June 8, 2011, Schisler noted that his hemorrhoid condition was

unchanged. (Doc. 47, ¶ 22; Doc. 54, ¶ 13, 14). The hemorrhoid cream and Tucks

pads were continued. (Id.; Id.). Schisler again examined him on September 21,

2011, for renewal of medications and again continued the hemorrhoid medications.

(Id. at ¶ 24; Id. at 15).

On November 2, 2011, Buttolph notified the medical department that his

hemorrhoids were bothering him. (Doc. 54, ¶ 16). On November 16, 2011,

Schisler examined him based on his complaint of rectal bleeding. (Id. at 25; Id. at

17). The bleeding had stopped, but swelling of his hemorrhoids had

increased, and he complained of constipation. (Id. at 26; Id.). Schisler ordered the

continued use of Tucks, Proctosol and added Colace to address the constipation.

(Id. at 27; Id.). During his follow-up appointment the next week, Schisler noted

several small non-thrombosed hemorrhoids and indicated that three hemocult tests

were negative. (Id. at 28, 29; Id.). Schisler ordered x-rays, a urine analysis and

additional medications to address the constipation. (Id. at 30; Id.).

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D. 2012

On January 12, 2012, Schisler noted that Buttolph continued to suffer with

pain from hemorrhoids, rectal bleeding and clots and instructed him to continue his

course of treatment. (Doc. 54, ¶¶ 18, 19).

Buttolph’s annual exam, conducted on March 21, 2012, noted that his

hemorrhoids were stable. (Doc. 47, ¶ 31; Doc. 54, ¶ 20).

On August 28, 2012, he submitted a sick call request stating “I need to get a

remedy for my Hemorrhoids. They keep me in pain… I have been here 44

months.” (Doc. 54, ¶ 21; Doc. 53-2, p. 37). Schisler examined him on September

5, 2012, where he presented with complaints of bleeding and enlarged

hemorrhoids; Schisler continued his medications. (Doc. 47, ¶¶ 32, 33; Doc. 54, ¶

22, 23).

On November 28, 2012, after examining Buttolph as part of the chronic care

clinic process, Schisler continued his medications and scheduled him for a follow-

up appointment ninety days later. (Id. at 34; Id. at 23).

E. 2013

On January 8, 2013, Buttolph wrote to the Pennsylvania State Attorney

General stating that he needed knee surgery and noting that he needed to see a

medical specialist for other medical issues. (Doc. 54, ¶ 24). In the letter, he

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pointed out that he has been in the custody of Perry County for four years and that

he believes it reasonable to expect different treatment than other county inmates.

(Doc. 53-2, p. 62). Thereafter, emails were exchanged between Buttolph and

various attorneys; PrimeCare informed the attorneys that the hemorrhoid procedure

was an elective procedure. (Doc. 54, ¶¶ 25-28).

During his February 13, 2013, follow-up appointment, no new complaints

were made, and his medications were continued. (Doc. 47, ¶¶ 35, 36; Doc. 54, ¶

29). This is Buttolph’s last documented treatment by Schisler. (Id. at 37; Id.).

Schisler avers that she provided medical treatment consistent with the

standard of care based upon the information in her possession and available to her

at the time she rendered treatment. (Doc. 47, ¶ 38). Buttolph disputes this with the

following statements:

30. Plaintiff disputes defendants # 38 by declaring that Ms. Schisler

was the person in charge of directly dealing with his medical issues

from January 2009 until sometime Mid-year 2013 and therefore had

intimate knowledge of plaintiff’s serious medical need. This is verified

by Ms. Schisler’s own entries into plaintiff’s medical record. Ms.

Schisler thought that plaintiff’s hemorrhoids were so serious she

needed to perform a surgical procedure in an unsterile environment

using unsterile instruments to try and rectify his medical problem and

relieve pain.

31. Plaintiff further declares that Ms. Schisler believed plaintiff

suffered from cont severe hemorrhoids and they were so serious as to

offer to perform a second surgery under the same unsterile conditions.

Ms. Schisler further described plaintiff’s hemorrhoids as recurrent, and

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that he suffered from continued rectal bleeding, clots, had a long

history, suffered from pain, had enlarged hemorrhoids and then admits

that this has been occurring x yrs. In fact, a time period of

approximately 3 yrs. from the time of the first surgery until she left PCP

in Mid-year 2013. See, Exhibit C at 00005-8 and 00010-11, and 00013.

32. Plaintiff disputes Ms. Schisler provided treatment to plaintiff

with standard of care based on the information in her possession. Ms.

Schisler herself stated and wrote that plaintiff had a serious and severe,

chronic condition for a long period of time. Ms. Schisler knew that the

medical plan she was using on plaintiff was not taking care of plaintiff’s

hemorrhoids or alleviating the pain he was suffering due to his

condition but doggedly pursued it anyway thereby knowingly

subjecting plaintiff to the wanton infliction of pain.

33. It is further proven by her own entries that Ms. Schisler allowed

plaintiff to suffer for years and now claims she did everything she could

based on her knowledge. The dispute of this claim is that her

replacement, Mr. Navarro, based on just 4 months knowledge realized

that plaintiff needed care and treatment that could not be provided at

PCP.

34. It is further proved by the letter from Dr. Burick that plaintiff

suffered from PRE-OPERATIVE rectal bleeding and significant

hemorrhoid disease.

35. These facts prove that Ms. Schisler did not act as a reasonable

person or doctor would have instead acting with deliberate indifference

to her patients [sic] serious medical needs.

(Doc. 54, ¶¶ 30-35).

Buttolph next complained of discomfort from hemorrhoids on August 13,

2013. (Doc. 47, ¶¶ 40, 41: Doc. 54, ¶ 36). Specifically, he stated “My Roids are

completely swollen shut!! Extreme pain, Severe bleeding. I got some Epsom salts

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but not helping. Can’t put medicine on as can’t get past to do so. Size of marbles

all around. I think elective is out the door. Pain. Hard to sit, walk and lay

down!!!” (Doc. 53-2, p. 39). He received treatment on August 15, 2013. (Doc.

47, ¶¶ 40, 41; Doc. 54, ¶ 36). He received further treatment on September 5, 2013.

(Id.; Id.). On October 9, 2013, he requested sick call stating “Hemorrhoids are

taking a toll. Lots of heavy clotting – nonstop bleeding. Stomach is constantly

upset now.” (Doc. 53-2, p. 41).

On December 11, 2013, Paul Navarro, CRNP arranged for Buttolph to be

seen by an outside specialist (Carlisle Surgical Institute) for a colonoscopy and

possible hemorrhoidectomy. (Doc. 47, ¶ 42; Doc. 54, ¶ 36). Adam J. Burick, D.O.

performed a hemorrhoidectomy on January 23, 2014. (Id. at 43; Id.). Carlisle

Surgical Institute continued to treat Buttolph until March 14, 2014, when Dr.

Burick determined that no additional follow-up was necessary. (Id. at 44; Id.).

F. 2014

On or about May 29, 2014, Plaintiff was transferred to the custody of

the Pennsylvania Department of Corrections (“DOC”). (Id. at 45; Id.)

Hemorrhoids were listed as a chronic condition on Buttolph’s Transfer of Health

Information form provided by PrimeCare. (Id. at 46; Id.).

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III. DISCUSSION

Section 1983 of Title 42 of the United States Code offers private citizens a

cause of action for violations of federal law by state officials. See 42 U.S.C. §

1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. . . .

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v.

Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under §1983, a

plaintiff must allege “the violation of a right secured by the Constitution and laws

of the United States, and must show that the alleged deprivation was committed by

a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

A. Statute of Limitations

Defendants argue that the action is barred by the statute of limitations. In

relying on prior court opinions, Buttolph misapprehends that it is “well-settled”

that the date on which the cause of action accrued is January 6, 2014. (Doc. 53, p.

12). Neither the February 28, 2017 Memorandum of this Court (Doc. 26), nor the

September 19, 2018 Opinion of the United States Court of Appeals for the Third

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Circuit (Doc. 34-1), concluded that January 6, 2014, constituted a definitive

accrual date. Rather, this Court, in considering Defendants’ Rule 12(b)(6) motion,

and in liberally construing the complaint, as required, concluded that his “claims

accrued, at the very latest, on January 6, 2014.” (Doc. 26, p. 9). This conclusion is

solely based on the four corners of the original complaint and the documents

attached thereto. (Doc. 1). In concluding that Buttolph’s original complaint “was

sufficient to withstand dismissal on statute-of-limitations grounds at the Rule

12(b)(6) stage[,]” the Third Circuit noted that “[i]n so deciding, we need not

determine the applicable claim-accrual date as a matter of law.” (Doc. 34-1, p. 3,

n. 2). Since the issuance of these opinions, Buttolph has amended the complaint

(Doc. 37), the parties have engaged in discovery, and the Court now has before it a

motion for summary judgment. It is against this backdrop and with the benefit of a

full record that we consider the statute of limitations issues anew.

A claim brought pursuant to 42 U.S.C. § 1983 is subject to the same statute

of limitations that applies to personal injury tort claims in the state in which such a

claim arises. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Kach v. Hose, 589

F.3d 626, 639 (3d Cir. 2009). Buttolph’s claim arose in Pennsylvania; thus, the

applicable statute of limitations is Pennsylvania’s two-year statute of limitations

for personal injury actions. 42 PA. CONS. STAT. ANN. § 5524(2). The statute of

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limitations period accrues when the plaintiff knows or has reason to know of the

injury which is the basis of the section 1983 action. See Garvin v. City of Phila.,

354 F.3d 215 (3d Cir. 2003); Genty v. Resolution Trust Corp., 937 F.2d 899, 919

(3d Cir. 1991).

Defendants argue that Buttolph “definitely knows by 2012 or 2013 he

thought he needed additional treatment that he was not receiving.” (Dc. 48, p. 20).

They cite to his January 2013 letter to the Pennsylvania Attorney General and his

deposition testimony wherein he states that by February 2013, he began to

complain about the medical treatment he was receiving at the Perry County Prison.

(Id.).

Buttolph argues that “mid-July 2014 should be the date that he knew or

should have known of his serious medical issues because after reading his medical

files he finally knew the FULL extent of his hemorrhoids.” (Doc. 53, p. 14)

(emphasis in original). He also offers that he “could argue that January 23, 2014,

should be the latest date of knowing the full extent as Dr. Burick explained it

would take a second surgery to complete the hemorrhoidectomy.” (Id. at 13, 14).

In so arguing, he seems to be invoking Pennsylvania’s discovery rule which is “an

exception to the requirement that a complaining party must file suit within the

statutory period.” Communications Network International, Ltd., 187 A.3d at 961

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(quoting Meehan v. Archdiocese of Philadelphia, 870 A.2d 912, 919 (Pa. Super.

Ct. 2005)). The discovery rule is applicable where the plaintiff “is reasonably

unaware that his or her injury has been caused by another party’s conduct.”

Gleason v. Borough of Moosic, 609 Pa. 353, 15 A.3d 479, 484 (2011). If the

discovery rule is applicable, the running of the statute of limitations is tolled. Id.

Buttolph expressed dissatisfaction with his treatment as early as 2012. On

August 28, 2012, in his sick call request he stated “I need to get a remedy for my

Hemorrhoids. They keep me in pain… I have been here 44 months.” (Doc. 54, ¶

21; Doc. 53-2, p. 37). In January 2013, he sent a letter to the Pennsylvania State

Attorney General informing the Attorney General that he has been in the custody

of Perry County for four years and needs to see a medical specialist for various

medical issues. (Doc. 54, ¶ 24). Thereafter, emails were exchanged between

Buttolph and various attorneys. At that time, PrimeCare informed the attorneys that

the hemorrhoid procedure was an elective procedure. (Doc. 54, ¶¶ 25-28). In his

August 11, 2013 request for sick call he stated “[m]y Roids are completely swollen

shut!! Extreme pain, Severe bleeding. I got some Epsom salts but not helping.

Can’t put medicine on as can’t get past to do so. Size of marbles all around. I

think elective is out the door. Pain. Hard to sit, walk and say down!!!” (Doc. 53-

2, p. 39).

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Based on the above, the Court concludes that Buttolph’s cause of action

accrued in August 2013, if not earlier. By this time, he had expressed that the

remedies provided thus far did not resolve his issues, had written to the state

attorney general, had attorneys approach PrimeCare on his behalf, and had been

notified that PrimeCare considered any surgical procedure related to his

hemorrhoids to be elective.

Further, the discovery rule is not applicable because Buttolph was clearly

aware of his alleged injury and its cause in August 2013. There simply is no

argument or allegation that he was unaware of the alleged injuries to the extent the

discovery rule could plausibly toll the statute of limitations.

The complaint filed on February 22, 2016, was clearly filed beyond the

expiration of the two-year statute of limitations. Defendants are therefore entitled

to an entry of summary judgment.

B. Merits

Even had the action been timely commenced, Defendants would be entitled

to an entry of summary judgment on the merits. Pretrial detainees may assert

Section 1983 claims for inadequate medical care under the Fourteenth

Amendment’s substantive due process clause. See Natale v. Camden Cty. Corr.

Facility, 318 F.3d 575, 581 (3d Cir. 2003); Colburn v. Upper Darby Twp., 838

16

F.2d 663, 668 (3d Cir. 1988). “[T]he Fourteenth Amendment affords pretrial

detainees protections at least as great as the Eighth Amendment protections

available to a convicted prisoner.” Natale, 318 F.3d at 581. We will evaluate

Buttolph’s claim under the same standard used to evaluate similar claims brought

under the Eighth Amendment. Id. at 581-82.

In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that

prison officials violate the Eighth Amendment when they are deliberately

indifferent to a prisoner’s serious medical needs. Id. at 104-05. To succeed on such

a claim, “a plaintiff must make (1) a subjective showing that ‘the defendants were

deliberately indifferent to [his or her] medical needs’ and (2) an objective showing

that ‘those needs were serious.’” Pearson v. Prison Health Serv., 850 F.3d 526,

534 (3d Cir. 2017) (alteration in original) (quoting Rouse v. Plantier, 182 F.3d 192,

197 (3d Cir. 1999)).

1. Defendant Schisler

It is undisputed that Buttolph had serious medical needs as a pretrial

detainee due to his hemorrhoid condition. Essentially at issue is whether Schisler

acted with deliberate indifference in treating Buttolph’s hemorrhoid condition.

Deliberate indifference occurs when prison officials “intentionally deny[ ] or

delay[ ] access to medical care or interfer[e] with the treatment once prescribed.”

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Pearson, 850 F.3d at 534 (quoting Estelle, 429 U.S. at 104-05). A mere complaint

“that a physician has been negligent in diagnosing or treating a medical condition

does not state a valid [constitutional] claim of medical mistreatment[.]” Estelle,

429 U.S. at 106. Moreover, “mere disagreement as to the proper medical

treatment does not support a claim of” deliberate indifference. Pearson, 850 F.3d

at 535 (internal quotations omitted). Rather, where there has been medical care,

“we presume that the treatment of a prisoner is proper absent evidence that it

violates professional standards of care.” Id. As long as a physician exercises

professional judgment, his or her behavior does not violate a detainee’s

constitutional rights. See Brown v. Borough of Chambersburg, 903 F.2d 274, 278

(3d Cir. 1990).

No reasonable factfinder could conclude from the record before us that

Schisler acted with deliberate indifference. On every occasion Buttolph presented

for treatment, Schisler examined him, took into consideration his hemorrhoid

symptoms and complaints, rendered treatment and medical advice, and prescribed

medications. There is not a single instance where Buttolph requested medical

attention and was denied. His main argument, that he should have been referred to

a specialist or scheduled for surgery sooner, constitutes a “mere disagreement as to

the proper medical treatment.” Lanzaro, 834 F.2d at 346. It is clear from the

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record that Schisler employed professional judgment in treating Buttolph’s

condition every time he presented with complaints and symptoms. See Brown, 903

F.2d at 278. This precludes a finding that she acted with the “obduracy and

wantonness” necessary to sustain an Eighth Amendment violation, see Whitley v

Algers, 475 U.S. 312, 319 (1986).

2. Defendants Hoffman and Prime Care

a. Hoffman

Buttolph argues that “Dr. Hoffman admits to being Ms. Schisler’s direct

supervisor and to signing and approving all treatments rendered by Ms. Schisler.

Dr. Hoffman was/is the President and Corporate Medical Director of PrimeCare

and, as such, signs for PrimeCare every time he signed plaintiff’s medical records

and approved the treatment or lack of treatment to plaintiff’s hemorrhoids. Dr.

Hoffman’s signature carries the weight and power of Primecare the corporation

thereby creating policy when he signed the medical records.” (Doc. 53, p. 19).

Individual liability will be imposed under Section 1983 only if the state actor

played an “affirmative part” in the alleged misconduct. See Evancho v. Fisher,

423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1998)). Liability “cannot be predicated solely on the operation of

respondeat superior.” Id. In other words, defendants in Section 1983 civil rights

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actions “must have personal involvement in the alleged wrongs . . . shown through

allegations of personal direction or of actual knowledge and acquiescence.”

Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003); Rode, 845 F.2d at 1207-08.

A plaintiff must establish the particulars of conduct, time, place, and the person

responsible. Evancho, 423 F.3d at 354; Rode, 845 F.2d at 1207-08. When a

plaintiff merely hypothesizes that an individual defendant may have had

knowledge of or personal involvement in the deprivation of his or her rights,

individual liability will not follow. Atkinson, 316 F.3d at 271; Rode, 845 F.2d at

1207-08.

“[T]here are two theories of supervisory liability, one under which

supervisors can be liable if they established and maintained a policy, practice or

custom which directly caused the constitutional harm, and another under which

they can be liable if they participated in violating plaintiff's rights, directed others

to violate them, or, as the persons in charge, had knowledge of and acquiesced in

their subordinates’ violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129

n.5 (3d Cir. 2010) (quotation and alteration marks omitted).

With regard to the second theory, a plaintiff must show that each defendant

personally participated in the alleged constitutional violation or approved of it.

C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005); see also

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Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

(finding that in a § 1983 suit, “each Government official, his or her title

notwithstanding, is only liable for his or her own misconduct”). Liability “cannot

be predicated solely on the operation of respondeat superior.” Id. See also

Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 227 (3d Cir. 2015)

Buttolph fails to produce evidence to show the existence of every element

essential to either theory of supervisory liability. A blanket statement that

Hoffman signed, and approved treatment plans administered by Schisler, is

insufficient. Buttolph fails to establish that Hoffman established and maintained a

policy, practice or custom which directly caused the constitutional harm, or that he

personally participated in violating his rights, directed Schisler to violate them, or,

as the persons in charge, had knowledge of and acquiesced in Schisler’s alleged

violations. Moreover, his opposing argument confirms that he is seeking to impose

liability on Hoffman based solely on his role as Schisler’s supervisor. (Doc 53, p.

19).

b. PrimeCare

PrimeCare, as a private entity contracted by a prison to provide health care

for inmates, cannot be held liable for the acts of its employees under respondeat

superior or vicarious liability. Natale v. Camden County Corr. Facility, 318 F.3d

21

575, 583 (3d Cir. 2003) (citing Monell v. New York City Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978)). To hold PrimeCare liable, Buttolph “must provide evidence

that there was a relevant [PrimeCare] policy or custom, and that the policy caused

the constitutional violation [he] allege [s].” Id. (citing Bd. of County Comm’rs of

Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997)). A plaintiff can

establish causation by “demonstrating the municipal action was taken with

‘deliberate indifference’ as to its known or obvious consequences.” Id. at 407.

Buttolph wholly fails to meet his burden concerning a relevant PrimeCare policy or

custom that caused a constitutional violation. PrimeCare is entitled to summary

judgment.

IV. CONCLUSION

Based on the foregoing, Defendants’ motion (Doc. 46) for summary

judgment will be granted.

An appropriate Order will issue.