Ocampo v. Noel

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PHILLIP OCAMPO, :

Plaintiffs : CIVIL ACTION NO. 3:19-0091

V. : (JUDGE MANNION)

PAUL NOEL, et al., :

Defendants :

MEMORANDUM

|. Background

On January 15, 2019, Plaintiff, Phillip Ocampo, an inmate confined at

the Smithfield Correctional Institution (“SCl-Smithfield”), Huntingdon,

Pennsylvania, filed the above captioned pro se civil rights action pursuant

to 42 U.S.C. §1983. (Doc. 1).

On February 6, 2020, counsel entered an appearance on behalf of

Ocampo (Docs. 21, 22) and on March 12, 2020, filed a counseled amended

complaint. (Doc. 27). The named Defendants are as follows: Dr. Paul Noel,

Department of Corrections (“DOC”) Chief of Clinical Services; William H.

Dreibelbis, SCl-Smithfield Health Care Administrator; Gerald Hartman,

Registered Nurse Supervisor (“RNS”); Correct Care Solutions (“CCS”),

LLC; Wellpath, and the following physicians employed by either CCS or

Wellpath, Dr. Patel, Dr. Glen Wheeler, Dr. Jennifer Vasinda, and Dr.

Andrew Dancha. Id.

Presently before the Court is Defendant, Dr. Glen Wheeler’s motion

to dismiss Plaintiff's amended complaint, or, in the alternative, motion for

summary judgment.’ (Doc. 40).

Plaintiff's action raises professional negligence, vicarious liability or

Eighth Amendment deliberate indifference claims against all Defendants

for their treatment of his hernia. (Doc. 27). Plaintiff generally asserts that

Defendants failed to properly treat Plaintiffs inguinal hernia and delayed

surgical treatment. Id. Plaintiff alleges he suffered persistent pain from the

hernia and that it affected his ability to work and play sports. Id. Plaintiff

alleges that Defendants continued to delay surgical treatment until the

hernia was surgically repaired on February 14, 2020. Id.

Specifically, with respect to Defendant, Dr. Wheeler, Plaintiff alleges

that on September 25, 2017, Dr. Wheeler reviewed Plaintiff's ultrasound

results. id. Dr. Wheeler did not take any actions to facilitate the surgical

repair of Plaintiff's hernia. Id. He simply noted his intent to schedule Plaintiff

1 Answers to Plaintiff's amended complaint were filed on behalf of the

remaining Defendants. (Docs. 29, 39).

for a follow-up in four months’ time. Id. In the first week of November, 2017,

Defendant Dreibelbis spoke with Plaintiff about his medical situation. Id.

Defendant Dreibelbis told Plaintiff that his computer records indicated that

Defendant Dr. Wheeler had seen Plaintiff and Plaintiff stated that “this was

incorrect,” in that he had not seen a doctor or medical staff. Id. Defendant

Dreibelbis then told Plaintiff that he would be scheduled to see Defendant,

Dr. Patel for a consultation about the ultrasound results. Id. Plaintiff was

then seen by Dr. Patel on November 14, 2017. Id.

Defendant Wheeler's dispositive motion is ripe for disposition. For the

reasons set forth below, this Court will grant Defendant Wheeler’s motion

for summary judgment in part, and deny his motion, in part.

ll. 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 ts 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.AF.

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 de 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).

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).

lil. Statement of Undisputed Facts

On January 17, 2018, Plaintiff filed Grievance No. 716591, in which

he states the following:

And Now come, | , Philip Ocampo, who hereby respectfully files

this inmate complaint pursuant to Pa.Code 93.9(a) against

Correctional Health Care Administrator Mr. Dreibelbis, Dr.

Vasinda and Central Officer's Health Care Committee “Correct

Care Solutions” (who is in contract with the D.O.C. concerning

medical issues such as approvals and denials for surgery’s), for

Medical Negligence, Deliberate Indifference to my basic

medical needs, which violates by 8" Amendment to the United

States Constitution...

(Doc. 45-1 at 35, Official Inmate Grievance). Plaintiff's grievance continues

with a two-page description of his alleged substandard medical treatment

and denial of corrective surgery, rendered by “various PA’s, Dr. Patel

(Former Doctor), (CHCA) Dreibelbis and Dr. Vasinda,” for Plaintiff's hernia.

ld. For relief, Plaintiff requested to have his “surgery request reinstated”

and if not, then Plaintiff seeks “monetary damages against Pennsylvania

Department of Corrections, D.O.C. Medical Health Care Provider ‘Correct

Care Solutions’ and the above-named staff members violating my 8"

Amendment to the U.S. Constitution.” Id. Plaintiff's grievance does not

identify Defendant, Dr. Wheeler, by name, or contain any reference to any

action or inaction on behalf of Dr. Wheeler. Id.

By response dated February 1, 2018, Grievance No. 716591 was

upheld in part and denied in part as follows:

In your grievance you make claims to deliberate indifference

and medical negligence against CHCA Dreibelbis, Dr. Vasinda

and CCS utilization review committee for denying your request

for a hernia repair. You state that on 12/29/2017 you had a visit

with Dr. Vasinda in which she informed you that the CCS Health

Care Committee denied your surgical request and instructed

you to wear a hernia belt. You also state on 1/4/2018 PAC

Harris spoke to you about your denial and state she would

made a second request. You were then informed on 1/6/2018

by PAC Harris of a second denial. You claim that this denial is

based on the fact that a hernia is not “life threatening”. You

claim that this denial could place your life and health in danger.

You claim that the denial is based on cost saving. You are

seeking to have your surgical request reinstated and

unspecified monetary damages as corrective actions.

In reviewing your grievance | have spoken to both CHCA

Dreibelbis and Dr. Vasinda. | have also reviewed your medical

records since 9/5/2017 when you were first examined by PAC

Riley concerning your ingroinal (sic) pain. At that visit PAC Riley

requested an ultrasound to determine the cause of your

ingroinal(sic) pain. That ultrasound was completed on 9/22/17

and the report was reviewed by Dr. Wheeler on 9/25/17. The

ultrasound report “showed a small to moderate hernia that

increased in size with a Valsalva.” This meant at that time that

you had a hernia and it was reducible. This meant that your

hernia was not causing loss of function or tissue damage. Dr.

Wheeler noted in his review of the record to have you followed

on PA line for four months and an order was written to have this

scheduled. It is not noted whether this report was reviewed with

you. On 11/14/17 you were seen through sick call requesting

information regarding your hernia as you had not been informed

on anything since your 9/22/17 ultrasound appointment. At that

appointment PAC Harris reviewed your ultrasound and

requested an MD line visit. You were then seen by Dr. Patel on

11/15/17. At that visit he verified your hernia and was going to

discuss your hernia at the weekly collegial review. He ordered

to have you seen in two weeks on MD line. On 11/29/17 Dr.

Vasinda also examined you and was going to check on the

status of your surgical request. | cannot find any

documentation, for that time, either in your medical record or

with CCS if any consult review was requested for a surgical

hernia repair.

You were not to medical again until 12/29/17 when you were to

see Dr. Vasinda. At that time she informed you that your hernia

repair surgery was denied and she ordered you a hernia belt.

The hernia belt need to be ordered. You were then seen on PA

line on 1/4/18 by PAC Harris. She noted at this visit that you

were having increased pain and that she would re-submit your

surgical request for collegial review. It is apparent from

speaking with Dr. Vasinda and reviewing her progress notes

from this visit, that she presented your hernia repair issue at a

weekly collegial review, despite the fact that | cannot find any

documentation to back this claim.

A consult review was submitted on 1/12/18 for collegial on the

same date. At that teleconference review with CCS review

committee it was recommended that instead of surgical repair

that you have an alternative treatment plan of an MD follow up.

| cannot find documentation that you have been scheduled for

an MD follow up yet but on 1/12/18 you were to PA line again

and saw PAC Harris. She informed you that per Dr. Vasinda,

your surgical request was denied at the collegial review. She

also noted that you did not have your hernia belt yet.

When | spoke with CHCA Dreibelbis regarding your grievance

he was well aware of your hernia issue as he has spoken with

you directly several times. He noted that after a conversation

with you in November of 2017 he had you seen by Dr. Patel.

He also made it quite clear that he cannot deny or approve any

surgical requests. Also Dr. Vasinda was aware of your hernia

surgery requests. She has made a request through the consult

review committee for your hernia and she has examined you

herself. She is aware that currently your hernia is still reducible

which a clinical indicator for surgery is and that your case has

been offered an alternative treatment plan of continued MD line

follow up. At this point she is aware that you will need to

continue to be followed through PA or MD lines in case your

clinical status changes related to your hernia.

| find that your grievance is upheld in part and denied in part.

The portion that is denied is your claim to deliberate

indifference and medical negligence. | can find no evidence of

negligence or deliberate indifference. It is apparent that CHCA

Dreibelbis, Dr. Vasinda an the medial staff have provided the

community standard of care for your medical needs. You have

had your surgical requests reviewed by the CCS review

committed as is the standard practice for all requested consults.

It is also noted that despite having pain, your hernia has not

met the criteria needed for surgical repair per the CCS review

committee. | do find merit in the fact that you were ordered a

hernia belt and you have not received it as of yet. You also were

not notified of your plan of care following your ultrasound in

September of 2017. The status of your hernia belt will be

verified and provided to you immediately. The medical staff will

be trained to notify the patients when any changes to plans of

care are occurring.

(Doc. 41-1 at 37, Initial Review Response). Plaintiff filed an appeal to the

Facility Manager (Doc. 41-1 at 39, Appeal), which was denied on February

20, 2018, finding that the “grievance officer, RNS Hartman provided

[Plaintiff] with a complete and thorough response in regards to [his] issues,”

and “the documentation and records indicate that proper care has been

provided.” (Doc. 41-1 at 41, Facility Manager’s Appeal Response).

10

On February 25, 2018, Plaintiff filed a final appeal to the Secretary’s

Office of Inmate Grievance & Appeals (Doc. 41-1 at 42), who, on March 22,

2018, referred the appeal to the Bureau of Health Care Services for further

review (Doc. 41-1 at 34) and by decision dated April 26, 2018, upheld

Plaintiff's grievance responses as follows:

Your issue of not being provided proper medial care was

reviewed by the staff at the Bureau of Health Care Services.

The Bureau of Health Care Services reviewed the medical

record and determined that the medical care provided was

reasonable and appropriate including the treatment of your right

inguinal hernia. The findings of this review concur with the Initial

Review Response dated 2/1/18. These clinical decisions are

made by your attending practitioner. You are encouraged to

participate in your treatment plan and to discuss your concerns

or changes of condition with a practitioner. No evidence of

wrong doing was identified. Therefore, your requested relief is

denied.

(Doc. 41-1 at 31, Final Appeal Decision).

iV. Discussion

A. Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act (“PLRA’), “[nJo action shall be

brought with respect to prison conditions under section 1983 of this title, or

any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

11

exhausted.” 42 U.S.C. §1997e(a). This language is mandatory. Ross v.

Blake, 136 S. Ct. 1850, 1856 (2016). Moreover, the “exhaustion

requirement applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they

allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S.

516, 532 (2002).

The PLRA also mandates that inmates “properly” exhaust

administrative remedies before filing suit in federal court. Woodford v. Ngo,

548 U.S. 81, 93 (2006). “Proper exhaustion demands compliance with an

agency's deadlines and other critical procedural rules because no

adjudicative system can function effectively without imposing some orderly

structure on the course of its proceedings.” Id. at 90-91. Such requirements

“eliminate unwarranted federal-court interference with the administration of

prisons, and thus seek[ ] to ‘affor[d] corrections officials time and

opportunity to address complaints internally before allowing the initiation of

a federal case.” Id. at 93 (quoting Porter, 534 U.S. at 525). Courts have

concluded that inmates who fail to fully or timely complete the prison

grievance process are barred from subsequently litigating claims in federal

courts. See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir. 2000); Bolla v.

12

Strickland, 304 Fed.Appx. 22 (3d Cir. 2008); Jetter v. Beard, 183 Fed.Appx.

178 (3d Cir. 2006).

Defendant Wheeler argues that Plaintiff failed to exhaust his

administrative remedies with respect to his claims against him. Plaintiff

does not dispute that Dr. Wheeler was not identified in his grievance;

however, he argues, pursuant to Jones v. Bock, 549 U.S. 199 (2007), that

“name all defendants” requirement is a prison requirement and not the

PLRA’s, which defines the boundaries of proper exhaustion.

_While the PLRA, itself, does not require a prisoner to have named

each individual whom he sues in a prior grievance, Jones, 549 U.S. at 218

(2007), “prisoners are required to complete the administrative review

process in accordance with rules that are defined by the prison grievance

process”—including the rules relating to whom must be identified in the

grievance. Byrd v. Shannon, 715 F.3d 117, 127 (3d Cir. 2013) (citing Jones,

549 U.S. at 218). If a prisoner fails to properly exhaust the available

administrative remedies, he cannot bring suit on such claim(s) in federal

court. Goins v. Longstreet, 2013 WL 869644, at *5 (W.D. Pa. Feb. 13, 2013)

(citing Oliver v. Beard, 2011 WL 4565787, at *7 (M.D. Pa. Sept. 29, 2011);

Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004)).

13

The Pennsylvania Department of Corrections (“DOC”) has

implemented an official Inmate Grievance System, which is governed by

Administrative Directive 804 (“DC-ADM 804”). (Doc. 47-2 at 2-36). The

relevant provision of the prison grievance process is DC-ADM 804 §1.A.11,

which, at the time Plaintiff filed his grievances, stated, in pertinent part, “The

inmate shall identify individuals directly involved in the event(s).” The only

grievance that relates to Plaintiff's medical treatment is Grievance 7165971.

This grievance does not mention Dr. Wheeler. By failing to identify

Defendant Wheeler either by name or title, Plaintiff procedurally defaulted

his claim against him. See Spruill, 372 F.3d at 227-32.

Relying on Spruill, Plaintiff argues that “[t]he Third Circuit has held

that the prison can excuse an inmate’s failure to specifically name

individuals by identifying the unidentified persons and acknowledging that

they were fairly within the compass of the prisoner's grievance.” (Doc. 47

at 16).

In Spruill, although the Court found that the prisoner had procedurally

defaulted his claims, it went on to hold that the prison’s grievance process

excused the procedural default on the facts before it.

.. The grievance officer’s “Initial Review Response’ (the first-

level determination under the Grievance System Policy)

14

identified Brown by name. Although the response identified

Brown only as someone who had seen Spruill in the course of

his medical visits, it is not to be expected that a response

rejecting Spruill’s grievances on the merits would identify any

malfeasance on Brown's part. The purpose of the regulation

here is to put the prison officials on notice of the persons

claimed to be guilty of wrongdoing. As such, the prison can

excuse an inmate’s failure to do so by identifying the

unidentified persons and acknowledging that they were fairly

within the compass of the prisoner's grievance.

The point is close, but we conclude that the prison grievance

officer's recognition that Brown was involved in the events that

Spruill complained of excused any procedural defects in

Spruill’s initial grievances. Spruill’s grievances and suit are not

about specific instances of insulting treatment by Brown-there

would be no constitutional violation there anyway. Rather, the

grievances and the suit are about a larger-scale denial of

adequate medical care, in which prison officials clearly knew

Brown was alleged to be implicated. Thus we reject the District

Court's dismissal of Spruill’s suit against Brown on these

grounds.

Spruill, 372 F.3d at 234—235.

In the instant action, like Spruill, Plaintiff did not identify Defendant

Wheeler in his grievance or appeals therefrom and so he did not “put [him]

on notice of the persons claimed to be guilty of wrongdoing” within the

contemplation of Spruill. However, in Spruill, the prison official charged with

responding to Spruill’s initial grievance identified Brown by name in the

response, with the consequence that the Court of Appeals held the prison

had excused the procedural default. Like Spruill, Plaintiffs initial review

15

response specifically identified Dr. Wheeler as having reviewed Plaintiff's

ultrasound on September 25, 2017 and noting in his review of the record

that Plaintiff is to be followed on PA line for four months. Thus, because

Plaintiff's grievance, like Spruill’s is “about a larger-scale denial of adequate

medical care,” the Court finds that the mention of Dr. Wheeler in the Initial

Review Response brings Dr. Wheeler within the compass of the Plaintiff's

grievance and excuses any procedural default with respect to Plaintiff's

claim against him. See Williams v. Beard, 482 F.3d 637, 640 (3d Cir. 2007)

(reversing summary judgment on exhaustion grounds, even though the

plaintiff procedurally defaulted by failing to name the defendant in his

grievance, because “the [initial response] evidences knowledge on the part

of prison officials not only that there was a problem, but that [the unnamed

Defendant] was involved”). Thus, Plaintiffs procedural default is excused,

and Defendant Wheeler is not entitled to summary judgment on Plaintiff's

failure to exhaust administrative remedies as to him.

B. Eighth Amendment Deliberate Indifference

The Eighth Amendment “requires prison officials to provide basic

medical treatment to those whom it has incarcerated.” Rouse v. Plantier,

182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97

16

(1976)). In order to establish an Eighth Amendment medical claim, an

inmate must allege acts or omissions by prison officials sufficiently harmful

to evidence deliberate indifference to a serious medical need. See Spruill

v. Gillis, 372 F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Ctv.

Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). In the context of

medical care, the relevant inquiry is whether the defendant was: (1)

deliberately indifferent (the subjective component) to (2) the plaintiff's

serious medical needs (the objective component). Monmouth Ctv. Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); West v. Keve,

571 F.2d 158, 161 (3d Cir. 1979).

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

Cty. Corr. Inst. Inmates, 834 F.2d at 347. “[I]f 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.” Young v. Kazmerski, 266 Fed.

Appx. 191, 193 (3d Cir. 2008)(quoting Monmouth Cty. Corr. Inst. Inmates,

834 F.2d at 347). Assuming arguendo that the Complaint did satisfy the

17

serious medical need threshold, there are no facts asserted which could

establish that could support a claim of deliberate indifference.

With respect to the subjective deliberate indifference component, the

Supreme Court has established that the proper analysis for deliberate

indifference is whether a prison official “acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Farmer v. Brennan, 511

U.S. 825, 841 (1994). 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

[as] medical malpractice does not become a constitutional violation merely

because the victim is a prisoner.” Estelle, 429 U.S. at 106.

When a prisoner has actually been provided with medical treatment,

one cannot always conclude that, if such treatment was inadequate, it was

no more than mere negligence. See Durmer v. O’Carroll, 991 F.2d 64, 69

(3d Cir. 1993). It is true, however, that if inadequate treatment results

simply from an error in medical judgment, there is no constitutional

violation. See id. However, where a failure or delay in providing prescribed

treatment is deliberate and motivated by non-medical factors, a

constitutional claim may be presented. See id.; Ordonez v. Yost, 289 Fed.

18

Appx. 553, 555 (3d Cir. 2008)(“deliberate indifference is proven if

necessary medical treatment is delayed for non-medical reasons.”).The

Court of Appeals for the Third Circuit in Durmer added that a non-physician

defendant cannot be considered deliberately indifferent for failing to

respond to an inmate's medical complaints when he is already receiving

treatment by the prison’s medical staff. However, where a failure or delay

in providing prescribed treatment is deliberate and motivated by non-

medical factors, a constitutional claim may be presented. See id.

The record reveals that on September 22, 2017, Plaintiff underwent

an ultrasound, which Dr. Wheeler reviewed with him on September 25,

2017. The ultrasound report “showed a small to moderate hernia that

increased in size with a Valsalva.” Dr. Wheeler noted in his review of the

record to have Plaintiff followed on PA line for four months and an order

was written to have this scheduled.

Plaintiff alleges that Defendant Wheeler was deliberately indifferent

to Plaintiffs medical need by not “tak[ing] any actions to facilitate the

surgical repair of [Plaintiff's] hernia” and “simply noted his intent to schedule

[Plaintiff] for a follow-up in four month's time.” (Doc. 27 at 13).

19

Plaintiff's grievance history regarding Defendant, Dr. Wheeler, clearly

demonstrates that Plaintiff received medical attention, and that the attention

Plaintiff received lacks the requisite deliberate indifference to support a

Section 1983 claim. Upon Plaintiff's first complaint of pain on September 5,

2017, when he was by PAC Riley concerning pain regarding his hernia, he

was scheduled for an ultrasound, which he received on September 22,

2017 and results were discussed on September 25, 2017. Thus, Plaintiff's

own admission averts any deliberate indifference with respect to treatment

for his injury. Plaintiff claims Dr. Wheeler was deliberately indifferent for

recommending a recheck? in four months and for not ordering surgery.

Initially, the Court notes that Plaintiff does not allege, and there is no

indication in the record that Dr. Wheeler was actually responsible for any

decision to deny Plaintiff surgery.

2 To the extent that Plaintiff claims that Dr. Wheeler did not schedule

the follow-up appointment after viewing the ultrasound on September 25,

2017, Plaintiff's own complaint reveals that he was examined, not even two

months later, by Dr. Patel on November 14, 2017, who then presented

Plaintiff's case to the Review Committee. Thus, Plaintiff was seen and

treated shortly after Dr. Wheeler’s brief involvement in his care, the alleged

failure to schedule an appointment, clearly does not rise to the level of a

constitutional violation. Williams v. Jin, 701 Fed. Appx. 78, 79-81 (3d Cir.

2017) (physician’s non-surgical treatment of prisoner’s right inguinal hernia

for nearly four years did not constitute deliberate indifference).

20

However, an inmate’s disagreement with the diagnosis or course of

treatment does not establish “deliberate indifference” under the Eighth

Amendment. Estelle, 429 U.S. at 106. Numerous courts when asked to

determine whether a prisoner’s Eighth Amendment right has been violated

for a doctor’s failure to recommend surgery to treat a prisoner's hernia have

found that the treatment plan and decision to recommend surgery for a

hernia lies squarely within the medical judgment of the treating physician

and does not constitute an Eighth Amendment violation. McCabe v.

Pennsylvania Dep’t of Corr., No. 1:CV-12-00293, 2012 WL 6055024, at *7

(M.D. Pa. Dec. 5, 2012), aff'd, 523 Fed. Appx. 858 (3d Cir. 2013) (no Eighth

Amendment violation for failing to treat a prisoner's reducible hernia with

surgery); Brown v. Beard, 445 Fed.Appx. 453, 455 (3d Cir. 2011) (no Eighth

Amendment violation where prison medical staff treated prisoner's

umbilical hernia with pain medication and abdominal binder rather than

recommending surgery); Winslow v. Prison Health Servs., 406 Fed.Appx.

671 (3d Cir. 2011).

For example, in Winslow Prison Health Servs., the Court of

Appeals for the Third Circuit in a non-precedential opinion determined that

prison doctors did not act with deliberate indifference to prisoner's medical

21

needs by not recommending surgery for the treatment of the prisoner's

hernia and instead prescribing a hernia belt, even though the prison doctors

considered the cost of the prisoner's treatment in declining to order surgery.

406 Fed.Appx. 671, 675 (3d Cir. 2011). The doctors testified that the

standard treatment for an inguinal hernia was non-surgical and that with

proper treatment that the prisoner’s hernia could heal without surgery, and

although the prisoner provided his own expert who testified that hernias

generally require surgery, the court found that this amounted to negligence

which does not demonstrate a deliberate indifference to the prisoner's

medical needs. Id.

Here, it is undisputed that Plaintiff was seen by Dr. Wheeler, and

other medical personne! on numerous occasions for treatment of his

inguinal hernia and Dr. Wheeler concluded that his course of treatment

would be to follow-up on Plaintiffs hernia in four months. As previously set

forth, an inmate’s disagreement with medical treatment is insufficient to

establish deliberate indifference under the Eighth Amendment. Durmer,

991 F.2d at 69; Spruill, 372 F.3d at 235. To the extent that Plaintiff argues

that the treatment of his inguinal hernia was delayed, and that Dr. Wheeler

interfered with his access to treatment, it seems that he is arguing that Dr.

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Wheeler’s failure to recommend surgery constitutes delayed treatment and

denial of access to treatment. This argument is rejected, as Plaintiff merely

disagrees with the course of treatment prescribed to him, which is not

actionable under the Eighth Amendment.

Furthermore, Plaintiff's allegation that the Dr. Wheeler denied Plaintiff

surgery because of cost constraints does not support a claim of deliberate

indifference. The Third Circuit held in Winslow, supra, that the naked

assertion that a defendant considered or operated based on an effort to

contain costs does not set forth an adequate factual basis to support a claim

predicated on deliberate indifference. Id. at 674. In Winslow, the prisoner

alleged that he had been diagnosed with a hernia and that the decision to

treat his hernia with a belt instead of with surgery was improperly motivated

by non-medical factors, principally cost. Id. at 672-73, 675. The plaintiff

alleged that he was harmed by the prison’s medical provider's “policies to

save money [.]” Id. at 674. The Third Circuit held as follows:

For one thing, the complaint’s allegation that Winslow was

harmed by “policies to save money” is exceedingly conclusory;

the complaint does not provide any indication either of (1) what

the relevant policies are, (2) what basis he has for thinking that

“policies to save money” affected his medical treatment, or (3)

what specific treatment he was denied as a result of these

policies. More fundamentally, the naked assertion that

Defendants considered cost in treating Winslow’s hernia does

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not suffice to state a claim for deliberate indifference, as

prisoners do not have a constitutional right to limitiess medical □

care, free of cost constraints under which law-abiding citizens

receive treatment. See Reynolds v. Wagner, 128 F.3d 166, 175

(3d Cir.1997) (“[T]he deliberate indifference standard of Estelle

does not guarantee prisoners the right to be entirely free from

the cost considerations that figure in the medical-care decisions

made by most non-prisoners in our society.”); Johnson v.

Doughty, 433 F.3d 1001, 1013 (7th Cir.2006) (“The cost of

treatment alternatives is a factor in determining what

constitutes adequate, minimum-leveil medical care, but medical

personnel cannot simply resort to an easier course of treatment

that they know is ineffective.” (citations omitted)); Caines _v.

Hendricks, No. 05-1701, 2007 U.S. Dist. LEXIS 9453, 2007 WL

496876 at *8 (D.N.J. Feb.9, 2007) (“[I]t is not a constitutional

violation for prison authorities to consider the cost implications

of various procedures, which inevitably may result in various

tests or procedures being deferred unless absolutely

necessary.”).

Winslow, 406 F. App’x at 674-75.

As stated in Winslow, the deliberate indifference standard “does not

guarantee prisoners the right to be entirely free from the cost

considerations that figure in the medical-care decisions made by most non-

prisoners in our society.” Reynolds v. Wagner, 128 F.3d 166, 275 (3d

Cir.1997). “Resources are not infinite and reasonable allocation of those

resources, taking into account cost, does not amount to deliberate

indifference even if a prisoner does not receive the most costly treatments

or his treatments of choice.” Brightwell v. Lehman, No. Civ.A. 03-—205J,

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2006 WL 931702, at *8 (W.D.Pa. April 10, 2006). In this regard, the Court

notes that the Eighth Amendment does not require a prison to provide an

inmate “with the most sophisticated care money can buy.” United States v.

DeCologero, 821 F.2d 39, 42 (1st Cir. 1987). Nor are prison medical

officers required to be blind to assessing the risks and costs of various

treatment options. Furthermore, it is also clear that a dispute regarding

whether doctors erred in this cost-benefit assessment, which is the essence

of the medical art, sounds in negligence only and may not be cast as a

constitutional violation.

Accordingly, Dr. Wheeler be entitled to summary judgment on

Plaintiff's Eighth Amendment claims.

C. State Law Claims

Although Plaintiff is attempting to raise state law medical negligence

claim against Defendant, Dr. Wheeler, there are no remaining federal

claims against him. Accordingly, the Court declines to exercise jurisdiction

over Plaintiffs state law medical negligence claim asserted against Dr.

Wheeler. See 28 U.S.C. §1367(c)(3); see also Leisure v. Lancaster Cty.

Prison, 750 F. App’x 89, 92 (3d Cir. 2018) (affirming district court’s decision

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to decline exercising supplemental jurisdiction over plaintiff's state

negligence claim after dismissing all original jurisdiction claims).

V. Conclusion

For the reasons set forth above, Defendant, Dr. Wheeler’s motion for

summary judgment will be granted, in part and denied, in part. The Court

will deny Defendant Dr. Wheeler’s motion for summary judgment based on

Plaintiffs’ failure to exhaust administrative remedies. Defendant, Dr.

Wheeler's motion for summary judgment based on Plaintiffs Eighth

Amendment medical claim will be granted.

A separate Order shall issue.

3| Malachy €. Mannion

MALACHY E. MANNION

United States District Judge

DATE: January 31, 2022

19-0101-01

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