Rodriguez v. Lane

MIDDLE DISTRICT OF PENNSYLVANIA

EDWIN RODRIGUEZ, :

Plaintiff : CIVIL ACTION NO. 3:19-1134

v. : (JUDGE MANNION)

WARDEN KATHY P. LANE, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Edwin Rodriguez, an inmate formerly housed1 in the

Allenwood Federal Correctional Institution (“FCI-Allenwood”), White Deer,

Pennsylvania, filed the above captioned Bivens2 federal civil rights action

pursuant to 28 U.S.C. §1331. The named Defendants are Kathy Lane, former

FCI-Allenwood Warden; Micki Powanda, FCI-Allenwood Physician’s

Assistant; and Elizabeth Stahl, FCI-Clinical Director. Id.

Plaintiff alleges that “in or around 2011 or 2012, at FCI-Allenwood,

Plaintiff injured his lower back while working in the federal Unicor work area;”

specifically, “in the packing department while loading the trucks.” Id. Plaintiff

1 Plaintiff was released from custody and currently resides at 253 W.

Sedgley Avenue, Philadelphia, Pennsylvania, 19140.

2 Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

states that he was “sent to the medical department to be evaluated, was

prescribed pain medicine and never seen again.” Id.

Subsequently, “in or around 2013-2014 snow season at FCI-

Allenwood, Plaintiff re-injured the lower back while working as a compound

worker/orderly,” when “Plaintiff was ordered to shovel snow by Officer Stone,

even though this was not Plaintiff’s job detail.” Id. Plaintiff claims that while

shoveling, his shovel hit a cement ashtray which “hidden underneath the high

snow and stopped Plaintiff from pushing any further.” Id. Once he hit the

ashtray, “Plaintiff re-injured his lower back and a new injury occurred on his

right-side hip by the impact.” Id.

As a result of Plaintiff’s latest injury, Plaintiff claims that he has

doctored from 2014-2017, “was seen by numerous medical assistants/staff

at FCI-Allenwood and Plaintiff received no help but pain medication in the

form of Elavil, Meloxicam, Ibuprofen and Naproxen.” Id. Plaintiff states that

he has had X-rays and physical therapy, but still remains in “consistent

extreme pain in the lower back and hip area.” Id. He claims that he has been

recommended for an MRI, but “on February 8, 2018, the URC denied a

request for Plaintiff to receive an MRI due to the lack of clinical findings of

neuropathy to support the test.” Id. As a result, Plaintiff is “still in extreme

pain and does not know what the problem is or why it’s hurting this bad.” Id.

Thus, the Plaintiff filed the instant action claiming Defendants have

“impinged upon Plaintiff’s constitutionally-protected right by their actions of

neglecting, wanton, malicious, willful and deliberate indifference to follow the

proper statute/constitutional right of access to effective standard of care for

a serious medical need. Id. For relief, Plaintiff seeks compensatory and

punitive damages, as well as declaratory relief and injunctive relief. Id.

Presently before the Court is Defendants’ motion to dismiss and for

summary judgment. (Doc. 15). While Plaintiff has twice been granted an

opportunity to file a brief in opposition to Defendants’ motion, (Docs. 19, 22),

he has never filed a brief in opposition to Defendants’ motion.

For the reasons that follow, the Court will grant Defendants’ motion as

unopposed.

II. Standards of Review

a. Summary Judgment

Federal Rule of Civil Procedure 56(a) requires the court to render

summary judgment “if the movant shows that there is no genuine dispute as

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

law.” Fed. R. Civ. P. 56(a). “[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).

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

would affect the outcome of the case under applicable substantive law. Id. at

248; 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 Bhd. of Carpenters and Joiners of Am.,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact,

the court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.

Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse

Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary

judgment, however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. When the party seeking

summary judgment satisfies its burden under Rule 56 of identifying evidence

which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with

affidavits, depositions, answers to interrogatories or the like in order to

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

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the

motion “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio,

475 U.S. 574, 586 (1986). When Rule 56 shifts the burden of production to

the nonmoving party, that party must produce evidence to show the

existence of every element essential to its case which it bears the burden of

proving at trial, for “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 Harter v. G.A.F. Corp., 967 F.2d

846, 851 (3d Cir. 1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party.

White, 826 F.2d at 59. In doing so, the Court must accept the nonmovant’s

allegations as true and resolve any conflicts in his favor. Id. (citations

omitted). However, a party opposing a summary judgment motion must

comply with Local Rule 56.1, which specifically directs the oppositional party

to submit a “statement of the material facts, responding to the numbered

paragraphs set forth in the statement required [to be filed by the movant], as

to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement

required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard

simply by citing the fact that he is a pro se litigant. These rules apply with

equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL

2853261, at *5 (M.D. Pa. July 20, 2010) (pro se parties “are not excused

from complying with court orders and the local rules of court”); Thomas v.

Norris, No. 02-CV-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)

(pro se parties must follow the Federal Rules of Civil Procedure).

b. MOTION TO DISMISS

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to

state a claim upon which relief can be granted.” Under Rule 12(b)(6), we

must “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint

need only contain “a short and plain statement of the claim,” Fed.R.Civ.P.

8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Id. at 570. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels

and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is

not bound to accept as true a legal conclusion couched as a factual

allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim must

include at least a discernible factual basis to survive a Rule

12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588

F.3d 180, 184 (3d Cir. 2009) (per curiam).

In resolving the motion to dismiss, we thus “conduct a two-part

analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual

elements from the legal elements and disregard the legal conclusions. Id. at

210-11. Second, we “determine whether the facts alleged in the complaint

are sufficient to show that the plaintiff has a “plausible claim for relief”.” Id. at

211 (quoted case omitted).

III. Statement of Undisputed Facts

Plaintiff, Rodriguez was housed in FCI-Allenwood from September 27,

2001 until July 30, 2018. (Doc. 16-1 at 7). During his incarceration at FCI-

Allenwood, he was followed in chronic care clinic for Hepatitis C, Psoriasis,

Allergic Rhinitis, and a myriad of pain complaints including low back pain,

spasm of muscles, ankle pain, wrist pain, shoulder pain, etc. (Doc. 16-1 at

1-579, 2013-2018 Medical Records).

Rodriguez was known to the treatment team as having a history of

“Drug Use Disorder” prior to incarceration with Heroine and Methadone,

which often translates into hyperalgesia, increased encounters with medical

providers, and other opioid seeking behaviors. Id.

3 The Local Rules of Court provide that in addition to filing a brief in

opposition to the moving party’s brief in support of its motion, “[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 [of material facts filed by the moving party]...as to

which it is contended that there exists a genuine issue to be tried.” M.D. Pa.

L.R. 56. 1. The Rule further requires the inclusion of references to the parts

of the record that support the statements. Id. Finally, the Rule states that the

statement of material facts 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 id. Unless otherwise noted, the factual

background herein is taken from Defendants’ Rule 56.1 statement of material

facts. (Doc. 16). Plaintiff did not file a response to Defendants’ statement of

facts in compliance with M.D. Pa. L.R. 56.1. Thus, the Court deems the facts

set forth by Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed. R.

Civ. P. 56(e)(2).

In 2011-2012, Rodriguez alleged he injured his lower back while

working in a UNICOR work area while loading trucks and that he received

pain medicine. Id.

In 2013, Rodriguez was seen by an Orthopedic Surgeon, who

recommended Prednisone and Mobic (Non-Steroidal Anti-Inflammatory

Medication). Id. Rodriguez did not have any symptoms or x-ray findings to

clinically warrant any type of surgical intervention. Id. He admitted that he

was able to regularly exercise five days per week by “running and doing a

thirty-minute exercise session of push-ups, pull-ups, burpees, squats, dips,

and abdominal exercises as reported by Rodriguez. Id.

A review of Rodriguez’s medical record reveals that, in addition to pain

medications, multiple x-rays were done during 2014 and 2017, to include a

right shoulder x-ray, (which was negative), a left ankle and foot x-rays, which

were negative except for arthritis of his heel bone. Id. Rodriguez reported

low back pain on March 16, 2015, and he had a lumbar spine x-ray which

was negative except for mild degenerative disc disease. Id. Rodriguez was

seen a month later for his lower back pain and denied pain at that time. Id.

Rodriguez was seen on May 16, 2017, for exacerbation of lower back

pain, a new lumbar spine x-ray was ordered which showed no radiographic

evidence for acute compression fracture or malalignment; minimal facet

arthropathy at L3-4 through L5-S1; disc spacing is preserved. Id. Rodriguez’s

cervical spine x-ray was also negative except for mild degenerative disk

disease at C6-C7. Id.

Rodriguez’s lumbar x-ray on May 19, 2017, showed no fractures of

malalignment, with mild arthritis at L3-L4 and through L5-S1, with disc

spacing preserved. Id. Rodriguez was referred to Physical Therapy for

further evaluation and treatment of low back pain, but after three sessions

with the therapist and trial of a home exercise program, he was still reporting

back pain not supported by physical exam findings or the x-ray. Id. The

Physical Therapist stopped the therapy pending further PCP evaluation and

imaging since no subjective improvement was reported by Rodriguez. Id.

Rodriguez requested a lumbar MRI on December 11, 2017. Id. A

thorough review by the Utilization Review Committee (URC) of Rodriguez’s

symptoms and x-rays revealed that the MRI was not clinically warranted. Id.

Rodriguez’s exam on December 11, 2017, revealed full lumbar range of

motion with intact forward flexion, hyperextension, lateral bending, and

rotation. Id. Rodriguez had full and symmetric sensation and strength to his

lower extremities and no neurologic deficits. Id.

On April 16, 2018, Rodriguez was evaluated for his lower back pain by

the physician, at which time there was no clinical need for further imaging,

given the normal lumbar x-ray and lack of progressive neurologic symptoms.

Id. A thorough review of Rodriguez’s medical record did not reveal any

findings suspicious for nerve root compression, spinal stenosis, lumbar

degenerative disc disease, neurological deficits or any other clinical finding

that would warrant a lumbar MRI. Id. Rodriguez did not have any clinical

indicators for a lumbar MRI. Id. The following was noted regarding

Rodriguez’s continued complaint of unspecified back pain:

Hx Low Back Pain: Last lumbar x-ray showed normal vertebral

bodies, with preserved disc spaces, with straightening of normal

lordosis, and minimal facet arthropathy at L3-L4 through L5-S1.

There was no radiologic evidence of malalignment of acute

compression fractures. Patient has normal lumbar range of

motion, no numbness, tingling, atrophy, or any other signs of a

radiculopathy. He reports normal urinary and bowel function.

Denies saddle aesthesis and reports normal neurological function.

He tells me he “pulled” his back 5 years ago in UNICOR and that

his back has not been the same. So far, patient has had non-

specific backpain that has not improved with Physical Therapy or

NSAIDS. He has not had any serious progressive neurologic

deficits, nor any other underlying conditions based on frequent

medical evaluations and therefore no medical indication for an

MRI. In talking to patient today, he does have an unrealistic

expectation for a “pain free” life. We talked about the fact that he

walked in my office comfortably, sat in the exam table carrying a

normal conversation, with normal blood pressure. None of these

findings clinically corelate with a serious medical condition that

would warrant further imaging at this time.

(Doc. 16-2 at 429).

IV. Discussion

1. The Bivens Action

Plaintiff’s constitutional claims are filed pursuant to 28 U.S.C. §1331,

in accordance with Bivens v. Six Unknown Named Agents of the Fed. Bureau

of Narcotics, 403 U.S. 388. (1971). Under Bivens, the District Court has

federal question jurisdiction pursuant to 28 U.S.C. §1331 to entertain an

action brought to redress alleged federal constitutional or statutory violations

by a federal actor. Bivens, supra. Pursuant to Bivens, “a citizen suffering a

compensable injury to a constitutionally protected interest could invoke the

general federal question jurisdiction of the district court to obtain an award of

monetary damages against the responsible federal official.” Butz v.

Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the

federal equivalent of an action brought pursuant to 42 U.S.C. §1983 and the

same legal principles have been held to apply. See Paton v. LaPrade, 524

F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D.

Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa.

1992). In order to state an actionable Bivens claim, a plaintiff must allege

that a person has deprived him of a federal right, and that the person who

caused the deprivation acted under color of federal law. See West v. Atkins,

487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D.

Pa. 1992).

2. Personal Involvement

“A defendant in a civil rights action must have personal involvement in

the alleged wrongs; liability cannot be predicated solely on the operation of

respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.

1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (citing

Rode). “Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207.

Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir.

1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995). As

explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs.... [P]ersonal involvement can

be shown through allegations of personal direction or of actual

knowledge and acquiescence. Allegations of participation or

actual knowledge and acquiescence, however, must be made

with appropriate particularity.

Rode, 845 F.2d at 1207.

In this case, Rodriguez is suing Defendant, Lane, based solely on her

supervisory capacity as former warden. While it is clear that this Defendant

has been sued because of her supervisory position, “liability cannot be

predicated solely on the operation of respondeat superior.” Rode, 845 F.2d

at 1207; see also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citing

Rode, 845 F.2d at 1207). “[V]icarious liability is inapplicable to Bivens and

§1983 suits;” therefore, “a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A defendant’s

contemporaneous personal knowledge and acquiescence is required in

order to establish personal knowledge. Rode, 845 F.2d at 1207-08.

Moreover, non-medical personnel such as Defendant Lane cannot be

considered deliberately indifferent for failing to respond to an inmate’s

medical complaints when the inmate is already receiving treatment from the

prison’s medical staff. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)

(quoting Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993)). The undisputed

evidence clearly shows that Rodriguez was being treated for his complaints.

Thus, Defendant Kane is entitled to judgment as a matter of law.

3. Eighth Amendment Medical Claim

In order 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

Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also 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 layperson would recognize the need for a doctor's

attention. Monmouth County Correctional 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.” Id.

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 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 v. Brennan, 511 U.S. 825, 837

(1994). Thus, a complaint that a physician or a medical department “has

been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment ...”

Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision

not to order an X-ray, or like measures, does not represent cruel and unusual

punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s

long as a physician exercises professional judgment his behavior will not

violate a prisoner's constitutional rights.” Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor’s

disagreement with the professional judgment of another doctor is not

actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment,

or medical malpractice does not give rise to a §1983 cause of action, and an

inmate's disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.

1993).

Further, a prison administrator cannot be found deliberately indifferent

under the Eighth Amendment because he or she fails to respond to the

medical complaints of an inmate being treated by a prison physician, or

because, as non-physicians, they defer to the medical judgment of the

inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical

prison personnel had “a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner,” liability

may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison’s medical staff and

the inmate regarding the diagnosis or treatment which the inmate receives

does not support a claim of cruel and unusual punishment. Farmer v.

Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v.

Jones, 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113

(10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received

treatment, courts have consistently been reluctant to second guess the

medical judgment of the attending physician. Little v. Lycoming County, 912

F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key

question is whether the defendant has provided the plaintiff with some type

of treatment, regardless of whether it is what the plaintiff desires. Farmer v.

Carlson, 685 F. Supp. at 1339.

Assuming, without deciding, that Plaintiff’s medical needs were serious

in the constitutional sense, the record evidence more than amply

demonstrates that Plaintiff received medical attention, and that the attention

Plaintiff received lacks the requisite deliberate indifference to support a

Section 1983 claim. Plaintiff, himself, admits that he has been provided

medical treatment, including medication, physical therapy, and exercises.

(Doc. 1 at 2-3).

At best, Plaintiff’s complaint demonstrates his disagreement with the

type of treatment rendered, specifically, not being approved for an MRI.

Though he may have disagreed with Utilization Review Committee’s

assessment that an MRI was not medically necessary, his disagreement with

the course of action that was taken is not enough to state a §1983 claim.

Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989) (citing Estelle, 429

U.S. at 105-06 (in the medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute an unnecessary and

wanton infliction of pain or to be repugnant to the conscience of mankind)).

This is particularly so in light of the fact that there are no allegations in the

complaint that any of the Defendants intentionally withheld medical treatment

from Plaintiff in order to inflict pain or harm upon Plaintiff. Farmer; Rouse. To

that extent, the record demonstrates that Plaintiff had been referred for x-

rays, physical therapy and referred to an Orthopedic Surgeon for further

treatment and care of his back pain, shows that Defendants continue to be

attentive to Plaintiff’s situation.

Thus, the Plaintiff’s complaint amounts to nothing more than Plaintiff’s

subjective disagreement with the treatment decisions and medical judgment

of the Utilization Review Committee at the prison. Where, as here, an inmate

is provided with medical care and the dispute is over the adequacy of that

care, an Eighth Amendment claim does not exist. Nottingham v. Peoria, 709

F. Supp. 542, 547 (M.D. Pa. 1988). Defendants’ motion for summary

judgment will be granted.

VI. Conclusion

Based upon the undisputed facts of record, Defendants’ motion to

dismiss and for summary judgment will be granted.

An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: March 10, 2021

19-1134-01