The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID TEETER, :
Plaintiff, : 1:19-cv-1247
:
v. : Hon. John E. Jones III
:
JEFF BOLAND and KEVIN :
KOLLMAN, :
Defendants. :
MEMORANDUM
February 18, 2021
I. BACKGROUND
Plaintiff David Teeter (“Teeter”), at the relevant time, a state inmate in the
custody of the Pennsylvania Department of Corrections (“DOC”) incarcerated at
the State Correctional Institution at Benner Township (“SCI-Benner Township”),
Bellefonte, Pennsylvania, commenced this action on July 19, 2019, pursuant to 42
U.S.C. § 1983. (Doc. 1). Teeter, who has been diagnosed with Gender Dysphoria
(“GD”), and identifies as a female, alleges that Defendants Jeff Boland (“Boland”)
and Kevin Kollman (“Kollman”) acted with deliberate indifference to her serious
medical needs in violation of the Eighth Amendment right to adequate medical
care. She essentially alleges that Defendants violated the Eighth Amendment by
changing her estrogen dosage “without warning or consultation” and violating the
“current policy issued by the Pennsylvania Department of Corrections, which
requires the use of the [World Professional Association for Transgender Health]
[“]WPATH[”] for treatment of identified inmates.” (Doc. 1, p. 6, ¶ 40). She avers
that UpToDate software relied upon to adjust her estrogen dosage, “has no relation
to WPATH” and the “use of software other than WPATH violates the current
policy.” (Id. at ¶¶ 26-28). She also sets forth state law claims of negligence and
intentional infliction of emotional distress based on this conduct.
Presently pending are motions for summary judgment pursuant to Federal
Rule of Civil Procedure 56, filed by Defendant Kollman (Doc. 36) and Defendant
Boland (Doc. 45). Both motions are accompanied by supporting briefs (Docs. 39,
46) and Statements of Material Facts (Docs. 36-1, 47).
On September 24, 2020, an Order issued affording Teeter until November
13, 2020, to file opposition briefs and Statements of Material Facts in accordance
with Local Rule 56.1.1 (Doc. 48). The Court cautioned her that the failure to
adhere to the deadlines would result in the statements of material facts being
deemed admitted and the motions being deemed unopposed. She failed to respond.
Consequently, the Statement of Material Facts are deemed admitted and the
1 Local Rule 56.1 states that “[t]he papers opposing a motion for summary judgment shall
include a separate, short and concise statement of material facts, responding to the numbered
paragraphs set forth in the statement required [to be filed by the moving party], as to which it is
contended that there exists a genuine issue to be tried… All material facts set forth in the
statement required to be served by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing party.” See L.R. 56.1
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motions are deemed unopposed. For the reasons set forth below, the motions will
be granted.
II. 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).
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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
(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 in
order 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
4
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
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.
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III. STATEMENT OF MATERIAL FACTS
A. DOC Policy and GD Standards of Care Guidance
DOC policy 13.2.1, Access to Health Care Procedures Manual, Section 19,
Diagnosis and Treatment of Gender Dysphoria, outlines the guidelines to be
followed for the treatment of inmates diagnosed with GD. (Doc. 36-1, ¶ 41; Doc.
47, ¶ 30). Section 19 D. states, “[t]he latest version of Standards of Care for the
Health of Transsexual, Transgender, and Gender-Noncomforming People,
published by the World Professional Association for Transgender Health
(WPATH), will serve as guidelines for the overall health care of identified
inmates.” (Id.; Id.).
WPATH’s Standards of Care for the Health of Transsexual, Transgender,
and Gender-Nonconforming people does not provide specific hormone dosing
guidelines. (Id. at ¶ 42; Id. at ¶ 30). WPATH’s guidelines state, “To date, no
controlled clinical trials of any feminizing/masculinizing hormone regimen have
been conducted to evaluate safety or efficacy in producing physical transition. As
a result, wide variation in doses and types of hormones have been published in the
medical literature. In addition, access to particular medications may be limited by
a patient’s geographical location and/or social or economic situations. For these
reasons, WPATH does not describe or endorse a particular
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feminizing/masculinizing hormone regimen. Rather, the medication classes and
routes of administration used in most published regimens are broadly reviewed.”
WPATH “strongly recommend[s] that hormone providers regularly review the
literature for new information and use those medications that safely meet
individual patient needs with available local resources.” (Doc. 36-1, ¶¶ 44, 45;
Doc. 47, ¶¶ 39-41). “The SOC [standards of care] are intended to be flexible in
order to meet the diverse health care needs of transsexual, transgender, and
gender-nonconforming people.” (Doc. 47, ¶ 40). “The criteria put forth in this
document for hormone therapy and surgical treatments for gender dysphoria are
clinical guidelines; individual health professionals and programs may modify
them.” (Id.).
“UpToDate will serve as guidelines for the specific medical treatment of
inmates who require hormone therapy. UpToDate is a propriety online software
program that is nationally recognized for providing evidence-based and peer-
reviewed medical information.” (Doc. 36-1, ¶ 42; Doc. 47, ¶ 30). Pursuant to
13.2.1, Section 19 H. 5., the Site Medical Director, “shall utilize UpToDate (or
alternate source of medical information approved by the Bureau of Health Care
Services (“ BHCS”)) for clinical guidance in selecting medications and dosages.”
(Doc. 47, ¶ 31). Up-to-Date recommended Estradiol valerate dosing between 5 mg
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and 30 mg every two weeks. Moreover, Up-to-Date states that, “Serum estradiol
should not exceed the peak physiologic range: 100 to 200 pg/mL.” (Doc. 36-1, ¶¶
46, 47).
B. Corrections Health Care Administrator
Defendant Boland is a registered nurse serving in the administrative role as
the Corrections Health Care Administrator (“CHCA”). (Doc. 47, ¶ 8). He does
not have the ability to prescribe medication or to alter the medications prescribed
by a physician and is not directly involved in the day-to-day medical care of the
inmates at SCI-Benner Township. (Doc. 47, ¶¶ 9, 10).
According to policy 13.2.1, Section 19, J, the CHCA’s role, with respect to
inmates diagnosed with GD, is to compile evaluations conducted by psychology,
psychiatry, and medical staff regarding an inmate’s GD diagnosis and forward the
information to the BHCS. (Id. at ¶ 32). The CHCA also forwards inmates’
individual recovery plan packets to the Gender Dysphoria Treatment Review
Committee and receives them back at the institution following the Committee’s
review. (Id.).
The policy further indicates that inmates diagnosed with GD shall be seen by
the Site Psychiatrist every 90 days and by the LPM/LP/PSS every 30 days, or more
frequently if clinically indicated. (Id. at ¶ 33). Inmates diagnosed with GD and
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prescribed medications, shall be followed by the Site Medical Director for the first
three months, following which they will be placed into a Chronic Care Clinic and
scheduled to be evaluated by the Medical Director/designee at a minimum of every
six months. (Id. at ¶ 34).
C. Teeter’s Treatment
Upon entering into DOC custody on April 27, 2015, Teeter presented with a
GD diagnosis and reported that she had taken hormone replacement treatment and
testosterone blockers prior to incarceration. (Doc. 36-1, ¶¶ 2, 3; Doc. 47, ¶ 11).
DOC medical staff reviewed and confirmed the diagnosis. (Doc. 47, ¶ 11). On
October 9, 2015, Andrew Dancha, D.O. discussed with Teeter her GD diagnosis,
advised her of the side effects of hormone therapy treatment, and agreed upon a
plan of prescribed hormone therapy which initially consisted of a prescription for
30mg of estradiol to be administered on the first and fifteenth each month, for a
total of 60mg each month with hormone levels to be checked every three months.
(Doc. 36-1, ¶ 6; Doc. 47, ¶¶ 12, 13).
Through the DOC’s Chronic Care Clinic, Teeter receives regular assessment
and treatment, including blood work and testing to determine estrogen and
testosterone levels. (Doc. 47, ¶¶ 14, 15). Between the initial prescription and July
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2018, her hormone levels were checked regularly and adjusted as needed. (Doc.
36-1, ¶¶ 7-31).
On July 6, 2018, Defendant Kollman modified Teeter’s dosage to 20 mg of
estradiol to be administered on the first and fifteenth of each month, for a total of
40 mg each month. ( Doc. 36-1, ¶ 32; Doc. 47, ¶ 16). Defendant Kollman again
saw Teeter on September 10, 2018 in the Chronic Care Clinic; no changes were
made. (Doc. 36-1, ¶ 33).
On November 15, 2018, Teeter submitted an inmate request form to
Defendant Kollman inquiring about the change in dosage. (Id. at ¶ 19). Defendant
Kollman informed her that the hormone dosage had not been changed since July of
2018. Defendant Kollman also explained that the lab results indicated her estrogen
level was “above goal and testosterone level below goal,” and that he could have
reduced the dosage further, but chose not to do so at that time. (Id. at ¶ 20).
On November 29, 2018, Teeter submitted an inmate request form to
Defendant Boland, expressing concerns about her current hormone dosage. (Id. at ¶
21). In his response, Defendant Boland informed Teeter that he discussed her
concerns with Defendant Kollman, who informed him that the dosage had not
been adjusted since July of 2018 and that, according to DOC guidelines, the lab
results indicated that the current dosage was correct. (Id. at ¶¶ 22, 23).
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Teeter submitted Grievance Number 778458, regarding her request to have
her hormone dosage modified to the prior dosage of 60mg/month. (Id. at ¶ 23). In
denying the grievance, Registered Nurse Supervisor (“RNS”) Lisa Campbell
(“RNS Campbell”), noted that a review of Teeter’s lab results from March 2018
through September 2018, revealed an increase in her estrogen levels and her
testosterone levels continued to decrease, following the reduction in estrogen in
July of 2018. She further noted that “pursuant to DOC policy 13.2.1, Section 19,
WPATH serves as the guideline for overall healthcare; however, the UpToDate
software program will be utilized by the Medical Director for guidance regarding
selecting medications and determining the dosage.” (Id. at ¶¶ 25, 26). She
reminded Teeter that she will continue to be seen in Chronic Care Clinic for GD
and that Dr. Kollman will continue to monitor and adjust her medication as he
deems medically necessary. (Id. at ¶ 27). RNS Campbell also stated “there is no
evidence that Dr. Kollman is negligent in the care provided to you, is not following
policy or has decreased your estrogen dosage to a dangerous level as you claim.”
(Id. at ¶ 28). The denial of the grievance was upheld on all levels of appeal and on
final review the Secretary’s Office of Inmate Grievances and Appeals determined
that Defendant Kollman provided reasonable and appropriate medical care. (Id. at
¶ 29).
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On January 18, 2019, Teeter informed psychologist James Thurston
(“Thurston”) that she was experiencing stress due to physical complications with
her gender transition and incorrect dosing of her estrogen shots. (Doc. 36-1, ¶ 35).
On February 19, 2019, she reported to psychiatrist Shella Khatri, MD that she was
upset about the decrease in her hormone but denied experiencing any psychiatric
symptoms or need for medications. (Id. at ¶ 37). She reported that she was
sleeping and eating fine, and denied experiencing depression, anxiety, or mood
swings. (Id.).
On March 12, 2019, at Chronic Care Clinic, Teeter reported to Defendant
Kollman that she was having night sweats and nocturnal erections and claimed that
her condition had worsened. (Id. at ¶ 38). Defendant Kollman noted that Teeter’s
labs were now closer to goal and scheduled a follow-up appointment with Chronic
Care Clinic in six months. (Id.).
On March 18, 2019, Thurston evaluated her for Z Code (single cell housing
accommodation) continuation. (Id. at ¶ 39). He recommended continuation of the
in Z Code as Teeter appeared and identified as a female. (Id.).
On August 27, 2019, Defendant Kollman reviewed Teeter’s chart and
renewed her estradiol. (Id. at 40).
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IV. 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).
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
13
F.3d 526, 534 (3d Cir. 2017) (alteration in original) (quoting Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999)).
A. Defendant Boland
Defendant Boland seeks an entry of summary judgment based on a lack of
personal involvement. 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)). In other words, defendants in
Section 1983 civil rights 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.
Defendant Boland argues that he is a registered nurse, not a doctor and that
“Pennsylvania’s Professional Nursing Law, 63 P.S. § 211 et seq., prohibits nurses
14
from providing medical diagnoses or prescribing medical, therapeutic or corrective
measures. 63 P.S. § 212; Corrigan v. Methodist Hospital, 107 Fed. Appx. 269, 272
(3d Cir. 2004); Earls v. Sexton, 2010 WL 2179627, *1 (M.D. Pa. May 28, 2010) (a
nurse may not make a diagnosis as part of their employment). Therefore, [he] is
statutorily precluded from making a medical diagnosis and prescribing medical or
corrective measures.” (Doc. 47, p. 5). In a Third Circuit non-precedential opinion,
in arguing that its nursing staff could not be liable to plaintiff, a medical provider
directed the court to Pennsylvania’s Nursing Regulations. See Boomer v. Lewis,
541 F. App’x. 186, 192 n.6 (3d Cir. 2013) (noting that PrimeCare’s nurses “point
out in their brief, there is a limit to what treatment they are allowed to provide
under Pennsylvania’s Professional Nursing Law, 63 P.S. § 211 et seq. See, e.g., 63
P.S. § 212(1) (disallowing ‘medical diagnosis or prescription of medical
therapeutic or corrective measures’ ”)).
He further argues that his role is administrative in nature and that he is not
involved with the inmates’ day-to-day medical care. As noted supra, the DOC
policy defines the CHCA’s role with respect to inmates diagnosed with GD as
purely administrative. As such, Boland contends that he was not personally
involved with Teeter’s medical care and lacked the ability to alter the hormone
therapy prescribed by her treating physician. (Doc. 46, p. 6).
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It is undisputed that, as a nurse, Boland is prohibited from providing medical
diagnoses or prescribing medical, therapeutic, or corrective measures. The fact
that his role was limited to administerial duties is also uncontested. The record is
devoid of evidence that Defendant Boland had any personal involvement in the
adjustment of Teeter’s estrogen dosing or any involvement in her overall medical
care. Accordingly, he is entitled to an entry of summary judgment.
B. Defendant Kollman
It is undisputed that Teeter had serious medical needs as an individual with
GD. At issue is whether Kollman acted with deliberate indifference in treating
Teeter’s GD and in relying on the UpToDate software in adjusting her estrogen
dosage. Deliberate indifference occurs when prison officials “intentionally deny[ ]
or delay[ ] access to medical care or interfer[e] with the treatment once
prescribed.” 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
16
evidence that it violates professional standards of care.” Id. As long as a physician
exercises professional judgment, his or her behavior does not violate an inmate’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
Defendant Kollman acted with deliberate indifference. On every occasion Teeter
presented for treatment at the Chronic Care Clinic, Kollman conducted necessary
tests and assessments and rendered treatment, prescribed medication, and offered
medical advice. There is not a single instance where Teeter sought medical
attention and was denied. Her main argument, that he adjusted her hormone
therapy dosage in accordance with the guidance provided by the UpToDate
software, in contravention of DOC policy and WPATH directives, has no support
in the record. In fact, the record clearly establishes that WPATH does not describe
or endorse a particular hormone regimen. WPATH strongly recommends that
medical providers administering hormone therapy “regularly review the literature
for new information and use those medications that safely meet individual patient
needs with available local resources.” (Doc. 36-1, ¶¶ 44, 45; Doc. 47, ¶¶ 39-41).
Finally, the DOC’s Access to Health Care Procedures Manual, 13.2.1, Section 19
(Diagnosis and Treatment of Gender Dysphoria), Part D(2) states, “Up-To-Date
17
will serve as guidelines for the specific medical treatment of inmates who require
hormone therapy.”
Teeter’s claim amounts to a “mere disagreement as to the proper medical
treatment.” Lanzaro, 834 F.2d at 346. It is clear that professional judgment was
exercised by Defendant Kollman in addressing Teeter’s GD and rendering her
treatment while in his care. As such, we are precluded from finding that he acted
with the “obduracy and wantonness” necessary to sustain an Eighth Amendment
violation, see Whitley v Albers, 475 U.S. 312, 319 (1986). Defendant Kollman is
entitled to an entry of summary judgment.
V. CONCLUSION
Based on the foregoing, Defendants’ motions (Docs. 36, 45) for summary
judgment are deemed unopposed and will be granted.
A separate Order will issue.
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