Moy v. DeParlos

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TYREE TYQUAN MOY, : CIVIL ACTION NO. 1:18-CV-1575

:

Plaintiff : (Judge Conner)

:

v. :

:

DOCTOR KEENAN, KIM POORMAN, :

MAELYNNE MURPHY, ERIN :

DVORSCAK, IESHA LEATHERBURY- :

GLOVER, :

:

Defendants :

MEMORANDUM

Plaintiff Tyree Tyquan Moy (“Moy”), an inmate confined at the Lycoming

County Prison, in Williamsport, Pennsylvania, commenced this action pursuant to

42 U.S.C. § 1983 raising an Eighth Amendment inadequate medical care claim.

(Doc. 1). Moy subsequently filed an amendment to the complaint. (Doc. 8). The

remaining defendants are Kim Poorman, registered nurse (“RN”), Maelynne

Murphy, licensed practical nurse (“LPN”), Erin Dvorscak, LPN, and Iesha

Leatherbury-Glover, LPN (collectively, the “nurse defendants”), and William

Keenan, M.D. (“Dr. Keenan”). Before the court are two Rule 56 motions (Docs. 113,

116) filed by the nurse defendants and Dr. Keenan, respectively. For the reasons

set forth below, the court will grant each pending motion.

I. Factual Background & Procedural History1

On August 8, 2018, Moy commenced this action against the nurse defendants,

Dr. Keenan, and other prison employees. (Doc. 1). On August 22, 2018, Moy filed a

supplement to the complaint. (Doc. 8). At all relevant times, Moy was housed at the

Lycoming County Prison. (Doc. 1 at 4). Moy alleges that defendant Dr. Keenan

deprived him of three prescription eye drops, denied him access to nebulizer

asthma-related breathing treatments, and did not permit him to have a nebulizer

machine in his cell. He further alleges that the nurse defendants provided

inadequate medical care by denying and delaying medical treatment and ordered

the removal of a nebulizer machine from his cell.

By memorandum and order dated September 5, 2019, the court dismissed

certain claims and defendants from this case, specified the claims against the

remaining nurse defendants, and denied Dr. Keenan’s motion to dismiss. (Docs. 51,

52).

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise

statement of the material facts, in numbered paragraphs, as to which the moving

party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.

A party opposing a motion for summary judgment must file a separate statement of

material facts, responding to the numbered paragraphs set forth in the moving

party’s statement and identifying genuine issues to be tried. Id. Unless otherwise

noted, the factual background herein derives from defendants’ Rule 56.1 statements

of material facts and supporting exhibits. (Docs. 114, 117). Moy did not file a

response to defendants’ statements of material facts. The court accordingly deems

the facts set forth by defendants to be undisputed. See LOCAL RULE OF COURT

56.1; see also Doc. 130 ¶ 3 (advising Moy that failure to file responsive statements of

material facts would result in the facts set forth in defendants’ statements of

material facts being deemed admitted).

Defendants now move for summary judgment pursuant to Federal Rule of

Civil Procedure 56.2 (Docs. 113, 116). Moy did not oppose either motion and the

time for responding has now passed.3 The motions are ripe for disposition and

deemed unopposed pursuant to Local Rule 7.6.

II. Legal Standard

Through summary adjudication the court may dispose of those claims that do

not present a “genuine issue as to any material fact” and for which a jury trial

would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). The

burden of proof is upon the non-moving party to come forth with “affirmative

evidence, beyond the allegations of the pleadings,” in support of its right to relief.

Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P.

56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence

must be adequate, as a matter of law, to sustain a judgment in favor of the non-

moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see

also FED. R. CIV. P. 56(a), (e). Only if this threshold is met may the cause of action

proceed. Pappas, 331 F.Supp.2d at 315.

2 Because defendants raised the issue of exhaustion of administrative

remedies, the court notified the parties that it would consider exhaustion in its role

as factfinder in accordance with Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018)

and Small v. Camden Cnty., 728 F.3d 265 (3d Cir. 2013). (Doc. 138).

3 Moy was directed to file briefs in opposition to defendants’ motions and was

admonished that failure to file opposition briefs would result in defendants’ motions

being deemed unopposed. (Doc. 130) (citing M.D. PA. LOCAL RULE OF COURT 7.6);

(see also Doc. 6, Standing Practice Order in Pro Se Plaintiff Cases, at 2).

III. Nurse Defendants’ Rule 56 Motion

A. Statement of Undisputed Facts

Moy claims that on December 13, 2017, he inhaled smoke or fumes as a result

of maintenance work that was performed in his cell block, and that medical staff did

not treat his asthma or bronchitis for a period of two weeks. (Doc. 114 § 1). The

record reflects that on December 14, 2017 at approximately 4:15 a.m., Moy was

assessed at his cell by nurse Agnoni after he complained of shortness of breath.

(Doc. 114 ¶ 5). Moy’s oxygen saturation level was 98% on room air, his pulse was 64,

and he had no shortness of breath, no wheezing, and he was calm and not in any

distress. (Id. ¶ 6). Later that day, at approximately 6:25 p.m., Moy requested a

breathing treatment from defendant nurse Leatherbury-Glover after he refused his

medications. (Id. ¶ 7). Moy was not in medical distress at the time of evening

medication pass. (Id. ¶ 8). At 7:25 p.m., nurse Leatherbury-Glover requested that

Moy be brought to the medical department for a breathing treatment. (Id. ¶ 9).

Moy refused a breathing treatment and stated he did not need it that night. (Id.

¶ 10).

On December 15, 2017, nurse Leatherbury-Glover again assessed Moy. (Id.

¶ 11). Moy had no complaints regarding shortness of breath, coughing blood, or

vomit. (Id. ¶ 12). On December 16, 2017, nurse Leatherbury-Glover again assessed

Moy. (Id. ¶ 13). Moy had no complaints of difficulty breathing, coughing blood,

shortness of breath, or emesis. (Id. ¶ 14). Also on December 16, 2017, Moy

complained in an inmate request that he inhaled toxic fumes during maintenance

work in his cell block on December 13, 2017. (Id. ¶ 15). Brad Shoemaker, who was

Deputy Warden at the time, contacted the prison maintenance department and was

advised that the work that was done on K-Block on December 13, 2017 did not

involve anything toxic. (Id. ¶ 16). On December 17, 2017, nurse Leatherbury-Glover

assessed Moy for the fourth day in a row. (Id. ¶ 17). Moy had no complaints of

shortness of breath, coughing blood, or emesis. (Id. ¶ 18).

On December 18, 2017, Moy was treated by a prison physician but made no

complaints regarding smoke inhalation and did not complain about his breathing.

(Id. ¶ 19). Also on December 18, 2017, defendant nurse supervisor Poorman

responded to Moy’s inmate request about toxic fumes as follows: “The maintenance

department was contacted about these complaints related to the work they were

doing in K block. There was nothing toxic involved.” (Id. ¶ 20).

At his deposition, Moy testified that his only injury regarding this claim was

dizziness, and he stated that he has asthma and bronchitis. (Id. ¶ 21). Moy reported

a history of asthma and bronchitis at the time of his commitment to the prison on

November 29, 2017. (Id. ¶ 22). Moy has provided no evidence that those conditions

worsened as a result of the December 13, 2017 incident. (Id. ¶ 23).

On December 16, 2017, a nebulizer machine was placed in Moy’s cell for use

as needed. (Id. ¶ 24). Moy claims that nurse supervisor Poorman requested that

correctional staff remove the nebulizer machine from his cell, causing intentional

infliction of emotional distress. (Doc. 114 § 2). On December 20, 2017, the nebulizer

machine was removed from Moy’s cell due to misuse. (Id. ¶ 25). Although a

nebulizer machine was no longer in Moy’s cell, a nebulizer treatment was always

available to him if a nursing or medical assessment indicated that he needed a

treatment. (Id. ¶ 26). On December 20, 2017 at approximately 11:53 p.m., nurse

Hoover4 examined Moy after he requested a breathing treatment. (Id. ¶ 27). When

nurse Hoover arrived at Moy’s cell, he was sitting on the floor playing checkers with

his cellmate. (Id. ¶ 28). His oxygen saturation level was 95% on room air, he had no

difficulty speaking, and was not in any distress. (Id. ¶ 29). Based on this

assessment, nurse Hoover determined that Moy did not need a nebulizer treatment

at that time. (Id. ¶ 30).

On December 29, 2017, Moy presented to the medical department with

complaints of shortness of breath. (Id. ¶ 31). Moy took a shower before walking to

the prison medical department. (Id. ¶ 32). Nurse supervisor Poorman assessed Moy

and noted that he was in no acute distress. (Id. ¶ 33). His oxygen saturation was

96% on room air and his lungs had good air movement. (Id. ¶ 34). However, nurse

supervisor Poorman assessed few rhonchi in Moy’s lung bases and noted that he

was not cooperative with deep breaths during auscultation. (Id. ¶ 35). Based on

this assessment, nurse supervisor Poorman determined that Moy should receive a

nebulizer treatment. (Id. ¶ 36).

Nurse supervisor Poorman reviewed at least three of Moy’s grievances

regarding his nebulizer machine and nebulizer treatments. (Id. ¶ 37). Upon review

of the medical chart, nurse supervisor Poorman determined that Moy requested a

breathing treatment thirteen times between December 6, 2017 and June 7, 2018,

and that each time he was assessed by a nurse. (Id. ¶ 38). Moreover, Moy refused a

4 Nurse Hoover was voluntarily dismissed from this action on February 18,

2021. (See Doc. 82).

breathing treatment four times when approached by a nurse to assess him. (Id.

¶ 39). During this timeframe, Moy was evaluated twice by a medical doctor for

breathing issues, and both times his evaluation was within normal limits. (Id. ¶ 40).

On June 7, 2018, Moy’s nebulizer treatments were discontinued by a medical doctor.

(Id. ¶ 41).

At his deposition, Moy acknowledged that the removal of the nebulizer

machine from his cell did not mean that he was precluded from receiving nebulizer

treatments. (Id. ¶ 42). Moy also acknowledged that he received nebulizer

treatments after the machine was removed from his cell. (Id. ¶ 43). Moy testified

that he cannot remember how, if at all, he was injured by the removal of the

nebulizer machine from his cell. (Id. ¶ 44).

Moy reported a food allergy to onions, which was documented on his medical

assessment upon commitment. (Id. ¶ 45). Generally, when Moy eats onions, he can

become short of breath and his throat can swell. (Id. ¶ 46). At his deposition, Moy

testified that he only went to a hospital once due to an allergic reaction to onions.

(Id. ¶ 47). This hospital visit was a brief emergency department visit in Philadelphia

in 2015 or 2016. (Id.)

Moy claims that, on January 11, 2018, he ate onions at 11:35 a.m. hidden in

his food, and that his treatment for a severe allergic reaction was delayed for

approximately one and one-half hours. (Id. ¶ 48; Doc. 8 at 4). The record reflects

that Moy was seen in the medical department less than one hour after he allegedly

ate onions on January 11, 2018. (Doc. 114 ¶ 49). Warden Brad Shoemaker reviewed

security video of Moy’s movement to and from the prison medical department on

January 11, 2018 and determined that Moy was sent to the medical department at

12:28 p.m. and remained there until 1:22 p.m. (Id. ¶ 50). On January 11, 2018,

defendant nurse Dvorscak did not report to work until 2:00 p.m., and would not

have been present at the prison when Moy was seen in the medical department

between 12:28 p.m. and 1:22 p.m. (Id. ¶ 51). According to the medical records,

nurse Dvorscak never saw or treated Moy on January 11, 2018. (Id. ¶ 52). If nurse

Dvorscak had seen or treated Moy, it would be noted in the medical chart. (Id.

¶ 53). Instead, Moy was seen by nurse Agnoni. (Id. ¶ 54). Moy testified that he did

not name nurse Agnoni as a defendant in this lawsuit because he liked her and

thought that she treated him well. (Id. ¶ 55). On January 11, 2018, nurse Agnoni

assessed Moy in the prison medical department for his complaint about eating

onions at lunch. (Id. ¶ 56). He was evaluated for approximately 60 minutes. (Id.

¶ 57). During that time, he had no swelling, no rash, and was in no distress. (Id.

¶ 58). Moy was treated with Benadryl. (Id. ¶ 59). At his deposition, Moy

acknowledged that he received medical treatment, including Benadryl, after he

allegedly ate onions on January 11, 2018. (Id. ¶ 60). When Moy was returned to his

cell from the prison medical department, he had no complaints. (Id. ¶ 61). At his

deposition, Moy could not describe any damages or injuries as a result of this

incident. (Id. ¶ 62).

Moy claims that defendant nurse Dvorscak intentionally denied medical

attention after a chicken bone in his lunch got caught in his throat. (Doc. 114 § 4).

The record reflects that on January 21, 2018, at approximately 2:25 p.m., nurse

Dvorscak received a call from a correctional officer that Moy had asked for a

breathing treatment. (Id. ¶ 63). The correctional officer informed nurse Dvorscak

that Moy was in no distress and showed no signs or symptoms of shortness of

breath. (Id. ¶ 64). After lockdown ended at 3:30 p.m., Moy was brought to the

medical department for a breathing treatment. (Id. ¶ 65). Moy was assessed by

nurse Dvorscak and had no complaints at that time. (Id. ¶¶ 66, 67). His oxygen

saturation was at 97% on room air and he showed no signs or symptoms of

shortness of breath. (Id. ¶¶ 67, 68). Later that day, nurse Dvorscak became aware

that Moy claimed he choked on a chicken bone that was in his lunch. (Id. ¶ 69).

Nurse Dvorscak documented that Moy was not complaining of blood, pain, throat

soreness, or swallowing a chicken bone when he was in the medical department

after lunch regarding his request for a breathing treatment. (Id. ¶ 70). Although

Moy complained that he had been bringing up blood from having a chicken bone in

his throat, nurse Dvorscak did not observe any bleeding. (Id. ¶ 71). Moy had no

signs or symptoms of distress while in the medical department after the alleged

incident with the chicken bone. (Id. ¶ 72). At his deposition, Moy testified that he

did not remember any treatment from nurse Dvorscak on January 21, 2018 and did

not testify as to any damage or injury because of this incident. (Id. ¶¶ 73, 74).

Moy claims that on March 3, 4, 5, 6, 7, 8, and 9, 2018, nurse Poorman

administered eye drops through his cell gate but was not wearing gloves. (Doc. 114

§ 5). Moy had been prescribed various eye drops by his treating ophthalmologists at

Geisinger Medical Center. (Id. ¶ 75). His eye drops were administered at times by

prison nurses, and at times self-administered by Moy. (Id. ¶ 76). According to the

medical records, on March 6, 2018, March 8, 2018, and March 9, 2018 at

approximately 8:00 a.m., nurse supervisor Poorman administered prednisolone

acetate and atropine sulphate eye drops to Moy. (Id. ¶ 77). Another nurse

administered Moy’s eye drops in the evening on those dates. (Id. ¶ 78). At the

deposition, nurse supervisor Poorman was only asked one question about giving

eye drops without wearing gloves; she testified that was normal procedure. (Id.

¶ 79). There is no county or prison policy that requires wearing gloves when

administering eye drops to inmates. (Id. ¶ 80). When administering eye drops, the

nurses’ hands do not touch the inmate’s eye and, thus, there is no opportunity to

transmit infection. (Id. ¶ 81). Moy could have administered the eye drops himself

and did so on numerous occasions. (Id. ¶ 82). Moy testified that the only alleged

injury regarding these incidents was an eye infection. (Id. ¶ 83). He testified that he

did not remember having an eye infection on or after March 2018. (Id. ¶ 84).

On June 8, 2018, July 19, 2018, and September 12, 2018, Moy was evaluated by

an ophthalmologist at Geisinger Medical Center. (Id. ¶ 85). No eye infections or

new issues of any kind were diagnosed by the ophthalmologist at any of these visits

to Geisinger Medical Center. (Id. ¶ 86). Moy was never diagnosed with any eye

infection during his commitment at the prison. (Id. ¶ 87).

The Lycoming County Prison has an established grievance policy which is

contained in the Inmate Handbook. (Id. ¶ 88). The grievance policy contains a

three-step process for the resolution of grievances: (1) the initial grievance, (2) an

appeal to the Warden, and (3) a final appeal to the Prison Board. (Id.) Moy received

a copy of the Inmate Handbook upon his commitment to the prison on November

29, 2017. (Id. ¶ 89). Moy never filed a grievance regarding his claim that prison

nurse supervisor Poorman allegedly administered eye drops without wearing

gloves. (Id. ¶ 90). Because Moy did not file any grievances regarding these alleged

incidents, the Deputy Warden, Warden, and County Prison Board were not

provided an opportunity to address this claim. (Id. ¶ 91). The nurse defendants

maintain that Moy failed to exhaust administrative remedies with respect to his

claim that nurse supervisor Poorman allegedly administered eye drops while not

wearing gloves on March 3-9, 2018. (Id. ¶ 92).

On May 7, 2018, Moy was involved in a fight with another inmate. (Id. ¶ 93).

Nurse Leatherbury-Glover assessed Moy after the fight and made two notes in the

medical record regarding this incident. (Id. ¶¶ 94, 95). Although Moy had a small

scratch to his right cheek under his eye, and slight swelling to the side of his eye,

Moy initially denied an ice pack. (Id. ¶ 96). Moy had no complaints of pain and had

no concerns. (Id. ¶ 97). Moy later complained of pain and burning in his right eye.

(Id. ¶ 98). Nurse Leatherbury-Glover assessed Moy’s right eye again and observed a

swollen lower eyelid and the corner eye was almost closed shut due to swelling. (Id.

¶ 99). Nurse Leatherbury-Glover also assessed the right eye and noted no redness,

no bleeding, and swelling only to the area where Moy was hit. (Id. ¶ 100). Moy was

offered an ice pack again, which he accepted this time. (Id. ¶ 101). Moy was

provided medication and eye drops and expressed no other concerns. (Id. ¶ 102).

Nurse Leatherbury-Glover documented Moy’s demand to be seen by a doctor. (Id.

¶ 103). The following day, on May 8, 2018, defendant nurse Murphy treated Moy for

complaints of right eye pain and swelling related to a fight the day before. (Id.

¶ 104). His right eye was swollen and red, but there was no bleeding or drainage.

(Id. ¶ 105). Moy was already receiving eye drops and Motrin that day, and nurse

Murphy treated his pain and swelling with an ice pack for 24 hours. (Id. ¶ 106).

In May 2018, Moy was receiving eye drops twice per day, and Motrin three

times per day. (Id. ¶ 107). Moy was offered Motrin 400 mg three times per day in

the days and weeks after the inmate-on-inmate fight on May 7, 2018, some of which

he refused. (Id. ¶ 108). On May 8, 2018, Moy refused Motrin 400 mg at 8:00 a.m., but

received it at 12:00 p.m. and 6:00 p.m. (Id. ¶ 109). Nurse Murphy administered the

6:00 p.m. dose of Motrin to Moy. (Id. ¶ 110). At his deposition, Moy acknowledged

that he was treated at the prison medical department with an ice pack and

antibiotic ointment for a scratch under his eye. (Id. ¶ 111). When asked how he was

injured as a result of his medical care following this incident, Moy testified that his

injury from the fight was not properly assessed. (Id. ¶ 112).

Following this incident, Moy was seen by an ophthalmologist at Geisinger

Medical Center on June 8, 2018, July 19, 2018, and September 12, 2018. (Id. ¶ 113).

At his deposition, Moy acknowledged that he was seen by an ophthalmologist at

Geisinger Medical Center on the dates identified in his medical records. (Id. ¶ 114).

On May 13, 2018, nurse Dvorscak went to Moy’s cell to administer eye drops.

(Id. ¶ 115). After successfully administering the first eye drop, nurse Dvorscak was

about to administer a second drop when Moy claimed that he had been poked in the

eye. (Id. ¶ 116). Nurse Dvorscak responded that she had not gotten close enough to

Moy’s eye to make contact with him. (Id. ¶ 117). Defendants maintain that if nurse

Dvorscak contacted the surface of Moy’s eye with the tip of the eye drop bottle, it

was an accident and not intentional or deliberate. (Id. ¶ 118). Nurse Dvorscak

brought Moy to the medical department for assessment. (Id. ¶ 119). Moy

complained that his eye felt irritated or scratched. (Id. ¶ 120). Moy had no swelling,

no scratches, no redness, or anything out of the ordinary regarding his eye. (Id.

¶ 121). Moy was already taking Motrin at the time and had an appointment with the

prison physician scheduled for May 17, 2018. (Id. ¶ 122). On May 17, 2018, Moy saw

a doctor at the prison for a vision recheck. (Id. ¶ 123). On May 24, 2018, Dr. Keenan

requested that Moy be seen at Geisinger Ophthalmology. (Id. ¶ 124). On June 8,

2018, July 19, 2018, and September 12, 2018, Moy was seen at Geisinger

Ophthalmology. (Id. ¶ 125). At his deposition, Moy testified that he did not

remember being seen in the prison medical department or receiving medical

treatment on May 13, 2018. (Id. ¶ 126). Moy testified he did not know how, if at all,

he was injured or harmed as a result of this incident. (Id. ¶ 127).

Moy never filed a grievance regarding his claim that he was poked in the eye

by nurse Dvorscak on May 13, 2018. (Id. ¶ 128). Because Moy did not file a

grievance regarding this alleged incident, the Deputy Warden, Warden, and County

Prison Board were not provided an opportunity to address this claim. (Id. ¶ 129).

The nurse defendants maintain that Moy failed to exhaust the administrative

remedies made available to him relative to his claim that he was poked in the eye by

nurse Dvorscak on May 13, 2018. (Id. ¶ 130).

On June 14, 2018 at approximately 9:45 p.m., nurse Leatherbury-Glover

examined Moy after he complained of another incident of alleged allergic reaction

to onions. (Id. ¶ 132). Nurse Leatherbury-Glover assessed Moy’s oxygen saturation

level at 100% on room air, noted that his pulse was normal, there were no signs of

respiratory distress or allergic reaction, and he was in no distress. (Id. ¶¶ 133, 134).

Moy had been speaking in a raspy voice. (Id. ¶ 135). However, as Moy began to

curse and raise his voice, nurse Leatherbury-Glover noted that his raspy voice

returned to normal, and he continued to yell with a clear voice. (Id. ¶¶ 136, 137).

Nurse Leatherbury-Glover documented no swelling to oral area, no hives, and no

respiratory distress. (Id. ¶ 138). Following assessment, nurse Leatherbury-Glover

determined that Moy required no medical treatment. (Id. ¶ 138).

That night at approximately 11:00 p.m., nurse Hoover also assessed Moy. (Id.

¶ 139). Moy was in no visible distress, his oxygen saturation level was 97% on room

air, and his pulse was 70. (Id. ¶ 140). Moy had no swelling of his lips, no hives, no

rash, he did not complain of tongue or throat swelling, and did not have any

difficulty speaking. (Id. ¶¶ 143, 144). Nurse Hoover did not assess any clinical

reason to give Benadryl. (Id. ¶ 145). At his deposition, Moy acknowledged that

nurse Leatherbury-Glover assessed him after the incident and treated him with

Benadryl. (Id. ¶ 146). Also at the deposition, the only injuries Moy described

relative to this claim were a tight chest, sore throat, and trouble standing. (Id.

¶ 147).

On or about June 25, 2018, Moy submitted Grievance 06-11 regarding, inter

alia, his claim of an allergic reaction to onions on June 14, 2018. (Id. ¶ 148). Upon

review, Deputy Warden Ryan Barnes timely denied Grievance 06-11 on the basis

that Moy’s claim of inadequate health care was unfounded. (Id. ¶ 149). Moy did not

appeal the denial of Grievance 06-11 to the Warden, as required by step 2 of the

Inmate Handbook’s grievance procedure. (Id. ¶ 150). Because Moy did not file any

appeal of the denial of Grievance 06-11, the Warden and the County Prison Board

were not provided an opportunity to address this claim. (Id. ¶ 151). The nurse

defendants maintain that Moy failed to exhaust administrative remedies with

respect to his claim regarding treatment by nurse Leatherbury-Glover for an

alleged allergic reaction on June 14, 2018. (Id. ¶ 152).

Moy claims that, on June 27, 2018, defendant Dvorscak failed to check his

lungs after he once again, allegedly, ate onions. (Doc. 114 § 9). In his amended

complaint, he admits that the nurse Dvorscak provided Benadryl and assessed his

blood oxygenation. (Id.) The record reflects that on June 27, 2018, nurse Dvorscak

assessed Moy after he complained to a correctional officer about an allergic reaction

to onions. (Id. ¶ 153). Moy was escorted to the medical department via wheelchair

for assessment. (Id. ¶ 154). Moy talked with a forced, raspy voice and requested a

breathing treatment for acid reflux. (Id. ¶ 155). Upon assessment by nurse

Dvorscak, Moy’s oxygen saturation was 100% on room air, and his pulse was 72. (Id.

¶ 156). Nurse Dvorscak assessed Moy’s lungs and determined that his lungs

sounded clear. (Id. ¶ 157). Nurse Dvorscak gave him Benadryl. (Id. ¶ 158). During

this assessment, a correctional officer found a pill that appeared to be Gabapentin

hidden in Moy’s sock. (Id. ¶ 159). An argument ensued and Moy’s voice was fine.

(Id. ¶ 160). At his deposition, Moy acknowledged that nurse Dvorscak assessed him

after he ate onions on this date and treated him with Benadryl. (Id. ¶ 161). Also at

the deposition, Moy could not state how he might have been injured or harmed as a

result of this incident. (Id. ¶ 162).

Moy never filed a grievance regarding his claim of alleged inadequate

medical care by nurse Dvorscak on June 27, 2018. (Id. ¶ 163). Because Moy did not

file a grievance regarding this alleged incident, the Deputy Warden, Warden, and

County Prison Board were not provided an opportunity to address this claim. (Id.

¶ 164). The nurse defendants maintain that Moy failed to exhaust the available

administrative remedies regarding his claim of alleged inadequate medical care by

nurse Dvorscak on June 27, 2018. (Id. ¶ 165).

Moy claims that at unspecified times, defendant Murphy denied medical

treatment and delayed treatment for his serious medical need. (Doc. 114 § 10). At

his deposition, Moy was unable to identify any date, time, or circumstance in which

nurse Murphy allegedly provided inadequate medical care. (Id. ¶ 166). Moy was

unable to describe any serious medical condition for which care was denied or

delayed by nurse Murphy. (Id. ¶ 167). Moy could not identify or describe any

injuries or damages causally related to any of nurse Murphy’s actions. (Id. ¶ 168).

Moy testified that the details regarding this claim are contained in an unspecified

grievance that he testified was filed. (Id. ¶ 169). Moy never submitted a grievance

regarding any claim of alleged denial or delay of medical care by nurse Murphy.

(Id. ¶ 170). Because Moy did not file a grievance regarding an alleged delay or

denial of medical care by nurse Murphy, the Deputy Warden, Warden, and County

Prison Board were not provided an opportunity to address this claim. (Id. ¶ 171).

The nurse defendants maintain that Moy failed to exhaust the administrative

remedies relative to any claims regarding alleged denial or delay of medical care by

nurse Murphy. (Id. ¶ 172).

Moy claims that each nurse defendant, at unspecified times, administered

eye drops with painted fingernails and while not wearing gloves which caused pain,

infections in his eyes, and violated prison policy. (Doc. 114 § 11). There is no county

or prison policy that prohibits nail polish or requires nurses to wear gloves when

administering eye drops. (Id. ¶ 173). Moy did not provide any specific facts

regarding this claim, other than his personal belief that the failure to wear gloves

while administering eye drops, and doing so with fingernail polish, can cause eye

irritation. (Id. ¶ 174). Moy was never diagnosed with an eye infection during his

commitment at the prison. (Id. ¶ 175). He was seen by an ophthalmologist on

multiple occasions while incarcerated at the prison. (Id. ¶ 176). At his deposition,

Moy testified that he did not know which, if any, prison policy was allegedly violated

by any defendant. (Id. ¶ 177). The nurse defendants are not aware of any instances

of an inmate who developed an eye infection as a result of a nurse administering

eye drops with painted fingernails or without wearing gloves. (Id. ¶ 178).

Moy never submitted a grievance regarding his claim that prison nurse

supervisor Poorman administered eye drops while wearing nail polish or without

wearing gloves. (Id. ¶ 179). In early August 2018, Moy submitted a grievance

regarding, inter alia, his claim that prison nurses Dvorscak, Leatherbury-Glover,

Murphy, and Hoover allegedly wore nail polish and did not wear gloves while

administering eye drops. (Id. ¶ 184). On August 7, 2018, Deputy Warden Ryan

Barnes timely denied Grievance 08-01 on the basis that nursing staff was not

violating any policy and that Moy had an eye appointment on July 19, 2018 and had

no eye infection. (Id. ¶ 181). Moy did not appeal the denial of Grievance 08-01 to the

Warden, as required by step 2 of the Inmate Handbook’s grievance procedure. (Id.

¶ 182). Because Moy did not appeal to the denial of Grievance 08-01, the Warden

and the County Prison Board were not provided an opportunity to address this

claim. (Id. ¶ 183). The nurse defendants maintain that Moy failed to exhaust his

administrative remedies with respect to his claim that nurses Poorman, Dvorscak,

Leatherbury-Glover, and Murphy treated him with eye drops while wearing nail

polish and not wearing gloves. (Id. ¶ 184).

B. Discussion

1. Exhaustion of Administrative Remedies

Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner must

pursue all available avenues of relief through the applicable grievance system

before initiating a federal civil rights action. See 42 U.S.C. § 1997e(a); Booth v.

Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the

forms of relief sought and offered through administrative avenues.”). Section 1997e

provides, in relevant part:

No 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 exhausted.

42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory. Williams v. Beard,

482 F.3d 637, 639 (3d Cir. 2007); Booth, 532 U.S. at 742 (holding that the exhaustion

requirement of the PLRA applies to grievance procedures “regardless of the relief

offered through administrative procedures”); see also Nyhuis v. Reno, 204 F.3d 65,

68 (3d Cir. 2000) (holding that that PLRA’s exhaustion requirement applies to

Bivens claims).

The Third Circuit has further provided that there is no futility exception to

Section 1997e’s exhaustion requirement. See Nyhuis, 204 F.3d at 75-76. Courts

have typically required across-the-board exhaustion by inmates seeking to pursue

claims in federal court. See id. Additionally, courts have interpreted this

exhaustion requirement as including a procedural default component, holding that

inmates must fully satisfy the administrative requirements of the inmate grievance

process before proceeding with a claim in federal court. See Spruill v. Gillis, 372

F.3d 218 (3d Cir. 2004); Oriakhi v. United States, 165 F. App’x 991, 993 (3d Cir. 2006)

(nonprecedential) (providing that “there appears to be unanimous circuit court

consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement by

exhausting administrative remedies after the filing of the complaint in federal

court”). Courts have also concluded that inmates who fail to complete the prison

grievance process in a full and timely manner are barred from subsequently

litigating claims in federal court. See, e.g., Booth, 206 F.3d 289 (3d Cir. 2000) aff’d,

532 U.S. 731 (2001); Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008)

(nonprecedential).

This broad rule favoring full exhaustion allows for a narrowly defined

exception: if the actions of prison officials directly caused the inmate’s procedural

default as to a grievance, the inmate will not be required to strictly comply with the

exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).

However, courts also recognize a clear “reluctance to invoke equitable reasons to

excuse [an inmate’s] failure to exhaust as the statute requires.” Davis v.

Warman, 49 F. App’x 365, 368 (3d Cir. 2002) (nonprecedential). Thus, an inmate’s

failure to exhaust will be excused only “under certain limited circumstances,”

Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005) (nonprecedential), and an

inmate can defeat a claim of failure to exhaust only by showing “he was misled or

that there was some extraordinary reason he was prevented from complying with

the statutory mandate,” see Warman, 49 F. App’x at 368.

In the absence of competent proof that an inmate was misled by corrections

officials, or some other extraordinary circumstances warranting a departure from

strict compliance with the exhaustion requirement, courts frequently reject inmate

requests for their failure to exhaust to be excused. An inmate, therefore, cannot

excuse a failure to comply with these grievance procedures in a timely manner by

simply claiming that his efforts constituted “substantial compliance” with this

statutory exhaustion requirement. See Harris, 149 F. App’x at 59. Furthermore, an

inmate cannot avoid this exhaustion requirement by merely alleging that the

administrative policies were not clearly explained to him. See Warman, 49 F. App’x

at 368. Consequently, an inmate’s confusion regarding these grievances procedures

does not, alone, excuse a failure to exhaust. See Casey v. Smith, 71 F. App’x 916,

918 (3d Cir. 2003) (nonprecedential).

The Lycoming County Prison has an Inmate Grievance Policy that was in

effect at all times relevant to the instant action. (Doc. 114 ¶¶ 88-89; Doc. 115 at 431-

37). Under the policy, an initial grievance must be filed on a grievance form with

the Deputy Warden. (Doc. 115 at 435). The Deputy Warden will then issue a

decision. (Id.) If the Deputy Warden denies the grievance, the inmate may file an

appeal to the Warden. (Id.) Inmates who are dissatisfied with the response of the

Warden have the right to appeal that decision to the Prison Board. (Id.) The Prison

Board’s decision is final. (Id.)

During Moy’s incarceration at the Lycoming County Prison, he never filed

any grievance regarding his claim that nurse supervisor Poorman administered eye

drops in March 2018 without wearing gloves, that nurse Dvorscak poked him in the

eye on May 13, 2018, that nurse Dvorscak a failed to check his lungs after he ate

onions on June 27, 2018, and that nurse Murphy denied and delayed care at an

unspecified time. It is undisputed that Moy failed to file for any administrative

remedies with respect to these claims.

It is also undisputed that Moy failed to fully exhaust available administrative

relief with regard to the following claims. On June 25, 2018, Moy submitted

Grievance 06-11 regarding his claim against nurse Leatherbury-Glover for her

treatment of an alleged allergic reaction to onions on June 14, 2018. Deputy

Warden Ryan Barnes timely denied Grievance 06-11 and found that Moy’s claim of

inadequate health care was unfounded. Moy did not appeal the denial of this

grievance.

In August 2018, Moy submitted Grievance 08-01 regarding his claim that

nurses Dvorscak, Leatherbury-Glover, and Murphy wore nail polish and did not

wear gloves while administering eye drops, which included a Monell claim

regarding a purported prison policy regarding wearing nail polish and gloves while

administering eye drops to inmates. On August 7, 2018, Deputy Warden Ryan

Barnes timely denied Grievance 08-01 on the basis that the nursing staff was not

violating any policy, Moy had attended an eye appointment on July 19, 2018, and

Moy had no eye infection. Moy did not appeal the denial of this grievance.

The uncontroverted evidence reflects that Moy failed to appeal the denials of

Grievances 06-11 and 08-01 to the Warden, as required by step 2 of the Lycoming

County Prison’s grievance procedure. In light of the undisputed facts and relevant

evidence of record, the court concludes that Moy has failed to produce any evidence

to overcome the nurse defendants’ summary judgment motion and cannot argue

against summary judgment by merely relying on unsupported assertions,

inferences based upon a speculation or conjecture, or unverified, conclusory

allegations. Under Rule 56, Moy was required to go beyond his pleadings with

affidavits or the like in order to establish the existence of a genuine dispute of

material fact. See Celotex Corp., 477 U.S. at 324. Because he has failed to do so, the

court concludes that Moy has not properly exhausted the above-referenced claims,

and the nurse defendants are entitled to the entry of summary judgment in their

favor on these claims.

2. Deliberate Indifference to Medical Needs5

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 Cnty. Corr.

Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197

(3d Cir. 1999)). A serious medical need is “one that has been diagnosed by a

physician as requiring treatment or one that is so obvious that a lay person would

recognize the necessity for a doctor’s attention.” Monmouth Cnty. Corr.

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

unnecessary and wanton infliction of pain results as a consequence of denial or

delay in the provision of adequate medical care, the medical need is of the serious

nature contemplated by the eighth amendment.” Id. (citation omitted). 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.” See

Farmer v. Brennan, 511 U.S. 825, 837 (1994). A mere difference of opinion between

5 Moy’s claims are based on his status as a pretrial detainee. Pretrial

detainees may assert Section 1983 claims for inadequate medical care under the

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

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

838 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 Moy’s

claims under the same standard used to evaluate similar claims brought under the

Eighth Amendment. See id. at 581-82.

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

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

112, 113 (10th Cir. 1976), cert. denied, 450 U.S. 1041 (1981).

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

played an “affirmative part” in the alleged misconduct and “cannot be predicated

solely on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353

(3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). “A

defendant in a civil rights action must have personal involvement in the alleged

wrongs. . . . Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207-08; see

also Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257, 270 (3d

Cir. 2003). Such allegations, however, must be made with appropriate particularity

in that a complaint must allege the particulars of conduct, time, place, and person

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

mere hypothesis that an individual defendant had personal knowledge or

involvement in depriving the plaintiff of his rights is insufficient to establish

personal involvement. See Rode, 845 F.2d at 1208.

With respect to Moy’s inhalation of smoke on December 13, 2017, the

undisputed evidence establishes that Moy was treated by a prison nurse

immediately after the alleged incident. His oxygen saturation level was 98% on

room air, his pulse was 64, and he had no shortness of breath, no wheezing, and he

was calm and not in any distress. Later that day, Moy was offered a breathing

treatment, but he refused treatment. On December 15, 16, and 17, 2017, Moy’s

breathing was assessed as normal. On December 18, 2017, Moy was treated by a

prison doctor and had no complaints about smoke or breathing.

When nurse supervisor Poorman ordered the removal of the nebulizer

machine from Moy’s cell on December 20, 2017, she explained that he was misusing

the machine. The undisputed evidence reflects that nebulizer treatments were

always available to Moy, and he continued to receive treatments after the machine

was removed from his cell. The record also reflects that Moy refused breathing

treatments on several occasions.

When Moy presented for treatment on January 11, 2018 after eating onions,

nurse Agnoni conducted an examination and noted that he had no swelling, no

rash, and was not in distress, and concluded that he should be treated with

Benadryl. The record is devoid of evidence that nurse Dvorscak had any personal

involvement in Moy’s medical care on January 11, 2018.

On January 21, 2018, Moy purportedly choked on a chicken bone. On that

day, nurse Dvorscak treated Moy in the medical department for a breathing

treatment and Moy never mentioned that he choked on chicken bone, and she did

not observe any bleeding or other signs and symptoms of distress.

On May 7, 2018, nurse Leatherbury-Glover examined Moy after he engaged

in a fight and noted a scratch on his right cheek under his eye and slight swelling to

the side of his eye. Nurse Leatherbury-Glover offered Moy an ice pack, but he

refused it, and he did not have any complaints of pain or any other concerns at that

time. When Moy made additional complaints regarding his eye later that day, nurse

Leatherbury-Glover again assessed him and noted eye swelling, but no redness or

bleeding. Moy was provided an ice pack and Motrin 400 mg.

The record demonstrates that, on each and every occasion noted, the nurse

defendants rendered adequate medical attention and treatment based on Moy’s

symptoms, complaints, and tests, and provided him treatment options. Moy’s

claims essentially amount to a “mere disagreement as to the proper medical

treatment,” which does not support a claim of deliberate indifference. See Lanzaro,

834 F.2d at 346. 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.” Pearson v. Prison Health Service, 850 F.3d 526, 535 (3d Cir.

2017). There simply is no evidence, at any point during the various events and

medical interactions, that the nurse defendants intentionally denied Moy medical

treatment, delayed access to medical care, or interfered with any prescribed course

of medical treatment. Summary judgment will be entered in favor of the nurse

defendants.

3. Monell Claim

A municipality may be held liable under Section 1983 “if the governmental

body itself ‘subjects’ a person to a deprivation of constitutional rights or ‘causes’ a

person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60

(2011) (quoting Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658, 692 (1978)).

Thus, a plaintiff seeking to impose constitutional liability on a municipality must

meet the difficult burden of proving that “action pursuant to official municipal

policy” caused their injury. Monell, 436 U.S. at 691, 694. This requires the plaintiff

to identify an official or unofficial municipal policy—including “decisions of a

government’s lawmakers, the acts of its policymaking officials, and practices so

persistent and widespread as to practically have the force of law,” Connick, 563 U.S.

at 61 (citations omitted), and demonstrate that said policy was the “moving force”

behind his injury, Berg v. Cnty. of Allegheny, 219 F.3d 261, 275-76 (3d Cir. 2000)

(quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).

Additionally, the absence of a policy may provide the basis for a Monell claim

if sufficiently pled. In Natale, the Third Circuit determined that a prison with “no

policy ensuring that an inmate having need of medication for a serious medical

condition would be given that medication during the first 72 hours of . . .

incarceration” constituted a “‘particular[ly] glaring omission’ in a program of

medical care.” Natale, 318 F.3d at 584-85 (quoting Brown, 520 U.S. at 410-11).

Moy alleges that the nurse defendants violated various prison policies and

procedures. (Doc. 8 at 7-8, 14). He asserts that the nurse defendants violated prison

policy by failing to promptly refer him to an eye doctor, and that the defendant

nurses violated prison rules and procedures by administering eye drops while

wearing nail polish and without wearing gloves. (Id.) Moy’s claim in the form of a

violation of a municipal policy under Monell fails. Monell requires a plaintiff to

plead the existence of a policy or lack thereof, a policymaker that effectuated said

policy, and a constitutional violation whose “moving force” was the policy in

question. See Monell, 436 U.S. at 690-91, 694. Not a single named defendant is a

policymaker effectuating an official policy which is the “moving force” behind the

alleged constitutional violation under Monell. Cf. id. Additionally, the evidence

reflects that there is no county or prison policy that prohibits nail polish or requires

nurses to wear gloves when administering eye drops to inmates. Summary

judgment will be entered in favor of the nurse defendants on the Monell claim.

IV. Defendant Keenan’s Rule 56 Motion

A. Statement of Undisputed Facts

At all relevant times, Dr. Keenan was the Medical Director of the Lycoming

County Prison. (Doc. 117 ¶ 4). Regarding the claims asserted against Dr. Keenan,

Moy alleges that Dr. Keenan was the “head prison doctor,” and that Moy was either

denied medical care or received inadequate medical care for (1) a significant pre-

incarceration traumatic eye injury involving a detached retina, and (2) his asthma.

(Id. ¶ 6). Moy alleges that Dr. Keenan acted with deliberate indifference to his

serious medical needs in violation of his Constitutional rights. (Id.) Specifically,

Moy alleges that he was denied access to prescription eye drops, that he was not

permitted to keep a nebulizer in his cell, and that he was denied nebulizer

treatments. (Id. ¶ 7).

On August 15, 2017, prior to Moy’s commitment to Lycoming County Prison,

Moy sustained serious traumatic injuries to his right eye. (Id. ¶ 8). The right eye

injuries included retinal detachment, multiple lacerations to the eyelid, and a

ruptured globe. (Id. ¶ 9). On August 15, 2017, Dr. Matthew Koehler of Geisinger

Medical Center operated to repair the ruptured globe and lacerations of the upper

eyelid. (Id. ¶ 10). On August 15, 2017, Moy was discharged from Geisinger Medical

Center. (Id. ¶ 11). On August 16, 2017, Moy was assessed by Geisinger

Ophthalmology in the Eye Clinic. (Id. ¶ 12). On that date, Dr. Onishi prescribed

three prescription eye drops: Atropine (a pain reliever), Pred Forte (a steroid), and

Ocuflox (an antibiotic). (Id. ¶ 13). Moy filled all three of the eye drop prescriptions

on August 16, 2017. (Id. ¶ 14). The Atropine prescription of August 16, 2017 did not

include refills. (Id. ¶ 15). The Pred Forte prescription of August 16, 2017 had one

refill. (Id. ¶ 16). The Ocuflox prescription of August 16, 2017 had three refills. (Id.

¶ 17). Geisinger Medical Center records provided to the prison reflect that a new

Atropine prescription, without a refill, was called in to Weis Pharmacy on August

27, 2017. (Id. ¶ 18). Moy filled the August 27, 2017 Atropine prescription on

September 6, 2017. (Id. ¶ 19).

On August 31, 2017, Moy was seen at the Geisinger Eye Clinic and reported

that he had run out of his prescription Ocuflox eye drops the day before. (Id. ¶ 20).

On August 31, 2017, the prescription for Ocuflox was discontinued by Moy’s

ophthalmologist. (Id. ¶ 21). Also on August 31, 2017, a vitrectomy surgery was

scheduled for September 5, 2017 to repair Moy’s detached retina. (Id. ¶ 22). At the

August 31, 2017 appointment, Moy was seen by a physician assistant who noted that

he was using the prescription Pred Forte eye drops six times per day, as opposed to

four times per day. (Id. ¶ 23). There is no record that Moy was seen at Geisinger on

September 5, 2017, or on any date between the August 31, 2017 appointment and his

commitment to the Lycoming County Prison on November 29, 2017. (Id. ¶ 24).

On September 14, 2017, Moy filled the August 27, 2017 Pred Forte and

Ocuflox prescriptions at Weis Pharmacy. (Id. ¶ 25). The Ocuflox prescription was

discontinued by Moy’s ophthalmologist on August 31, 2017. (Id.) On October 18,

2017, Moy called his Geisinger ophthalmologist and requested a refill of Atropine

and Pred Forte. (Id. ¶ 26). The ophthalmologist’s office called in a prescription to

Weis Pharmacy for both prescriptions on that date. (Id.) The October 18, 2017 Pred

Forte prescription included one refill and the Atropine prescription included no

refills. (Id. ¶ 27). There is no record of Moy filling either of the October 18, 2017

prescriptions at Weis Pharmacy prior to his incarceration on November 29, 2017.

(Id. ¶ 28).

Moy was committed to Lycoming County Prison on November 29, 2017. (Id.

¶ 29). Upon incarceration, Moy did not have any prescription medications with him.

(Id. ¶ 30). However, according to the Prison Medical Admission documentation

prepared by prison medical staff, Moy reported that he had prescriptions for three

types of eye drops. (Id. ¶ 31). Moy indicated that he used Weis Pharmacy. (Id.

¶ 32). At his deposition, Moy testified that he did not recall filling prescriptions at

any other pharmacy from August 2017 through November 2017. (Id. ¶ 33).

When inmates are admitted to the prison with prescription medications,

prison medical staff contacts the inmate’s pharmacy to verify that the medications

are current. (Id. ¶ 34). Thus, consistent with prison policy and procedure, the

prison nurses contacted Weis Pharmacy to verify the status of Moy’s eye medication

prescriptions. (Id. ¶ 35). It is charted in the Lycoming County Prison records that

Weis Pharmacy reported that Moy had only one available prescription: a

prescription for Pred Forte, but the medication was last filled by Moy on September

14, 2017, more than two months before his commitment to the prison. (Id. ¶ 36). It

was therefore determined that upon his commitment to the Lycoming County

Prison on November 29, 2017, Moy had only one active prescription for Pred Forte

eye drops. (Id. ¶ 37). Further, on November 29, 2017, the on-call prison physician,

who is not a party to this lawsuit, issued a verbal order by phone which denied Pred

Forte for Moy due to pre-incarceration non-compliance. (Id. ¶¶ 38, 39). Dr. Keenan

co-signed that order. (Id. ¶ 38).

On December 1, 2017, Moy was seen by nurse Hoover regarding right eye

pain and discomfort. (Id. ¶ 40). Also on December 1, 2017, nurse Hoover requested

Moy’s Geisinger Medical Center medical records and Williamsport Hospital

Emergency Room medical records. (Id. ¶ 41). On December 4, 2017, Moy requested

his three eye drop prescriptions, and prison physician Dr. Jaussi, who is not a party

to this action, noted that the prescriptions for the eye drops had not yet been

confirmed by the pharmacy. (Id. ¶ 42).

On December 4, 2017, Moy filed Grievance 12-08, alleging that he had not

been provided his prescription eye drops, and had been told that the prescriptions

were not current. (Id. ¶ 43). On December 10, 2017, Dr. Keenan ordered prison

nurses to request Moy’s ophthalmology records from Dr. Crabtree at Geisinger. (Id.

¶ 44). On December 16, 2017, Dr. Keenan charted that he had reviewed Moy’s

Geisinger Medical Center records and that Moy had not been seen at Geisinger

since August 2017. (Id. ¶ 45). Also on December 16, 2017, Dr. Keenan ordered

prison nurses to contact Geisinger Ophthalmology to determine if they wished to

see Moy for a follow-up appointment. (Id. ¶ 46). On December 18, 2017, nurse

Poorman charted that she had called Geisinger Ophthalmology, and was told that

prior to Moy’s incarceration, he failed to appear for two scheduled surgeries and

Geisinger Ophthalmology had attempted unsuccessfully to contact Moy several

times to schedule follow-up treatment. (Id. ¶ 47). The Geisinger records confirmed

the same. (Id.) Failure to appear for a scheduled surgery or pursue recommended

follow-up care constitutes non-compliance with medical care and treatment. (Id.

¶ 48).

On December 19, 2017, Geisinger Ophthalmology contacted the prison and

scheduled a follow-up appointment for January 23, 2017, with Dr. Onishi, Moy’s

ophthalmologist. (Id. ¶ 49). Dr. Onishi did not order medications on December 19,

2017. (Id. ¶ 50). On December 21, 2017, nurse Poorman noted that she had again

contacted Weis Pharmacy, which reported that Moy had two prescriptions for

Atropine and Ofloxacin; however, neither prescription had been filled since

September 2017. (Id. ¶ 51). Failing to fill and use prescription medications as

prescribed constitutes non-compliance and misuse. (Id. ¶ 52).

On January 2, 2018, Moy filed Grievance 1-03 alleging that he had not been

given his prescription eye drops for a detached retina. (Id. ¶ 53). On January 15,

2018, Dr. Keenan examined Moy for complaints related to his asthma and right eye.

(Id. ¶ 54). Dr. Keenan noted that an ophthalmology consult was scheduled. (Id.)

Dr. Keenan did not order Ocuflox, Atropine, or Pred Forte in December 2017 or

January 2018. (Id. ¶ 55). He based this decision on the information from Weis

Pharmacy that Moy had not filled prescriptions for any eye drops since September

2017, a review of the Geisinger records, an examination of Moy, the nature of Moy’s

eye injury (a detached retina), and the fact that it appeared that Moy’s

ophthalmologist had intended the use of Ocuflox, Atropine, and Pred Forte eye

drops to be temporary. (Id.)

Pred Forte has significant ophthalmologic contraindications for long-

term use, including vision loss. (Id. ¶ 56). Therefore, it would not have been

reordered or restarted without an order from Moy’s ophthalmologist. (Id.) Ocuflox

is a short-term antibiotic medication and Atropine is a short-term medication used

to provide comfort. (Id. ¶¶ 57, 58). Thus, neither of these medications would have

been reordered or restarted without an order from Moy’s ophthalmologist. (Id.)

Further, based on Geisinger Ophthalmology records, the Ocuflox prescription had

been discontinued on August 31, 2017, and the medication was not medically

indicated because Moy did not have signs or symptoms of an infection. (Id. ¶ 59).

On January 23, 2018, Moy was seen at Geisinger Ophthalmology. (Id. ¶ 60).

At that appointment, a vitrectomy was planned, but not scheduled. (Id. ¶ 61). Moy

was not prescribed Atropine, Pred Forte, or Ocuflox at the January 23, 2018

ophthalmology appointment. (Id. ¶ 62). Instead, Moy was directed to use non-

prescription artificial tears as needed, and to sleep with an eye patch. (Id. ¶ 63).

On February 21, 2018, Moy was transported to Geisinger for a planned

vitrectomy surgical procedure, to address the detached retina. (Id. ¶ 64). However,

during pre-operative preparations, Moy refused to undergo the surgery, and he was

immediately returned to the prison. (Id.)

On February 22, 2018, prison medical staff received verbal orders from

Geisinger ophthalmologist Dr. Steven J. Marks for prescriptions for Pred Forte and

Atropine eye drops. (Id. ¶ 68). Lycoming County Prison Medication Administration

records show that Moy received eye medication, or it was offered and was denied by

him, on a daily basis thereafter. (Id. ¶ 69). Moy was unable to remember what

specific injuries, if any, he suffered as a result of not receiving eye drops, and did

not produce any evidence of any injuries suffered. (Id. ¶ 67).

The Lycoming County Prison has an established grievance policy which is

contained in the Inmate Handbook. (Id. ¶ 69). The grievance policy contains a

three-step process for the resolution of grievances: (1) the initial grievance, (2) an

appeal to the Warden, and (3) a final appeal to the Prison Board. (Id. ¶ 69). Moy

received a copy of the Inmate Handbook upon his commitment to the Prison on

November 29, 2017. (Id. ¶ 70).

On December 4, 2017, Moy filed Grievance 12-08 complaining that he had not

been provided his prescription eye drops and that he was told that his prescriptions

were not current. (Id. ¶ 71). On December 8, 2017, Deputy Warden Brad

Shoemaker sought information from nurse Poorman about this medication. (Id.

¶ 72). On December 12, 2017, nurse Poorman advised that Moy’s eye issue was

known to prison medical staff, and that a physician did not approve of the eye drops

upon commitment because Moy had not filled any eye drop prescriptions since

September 2017. (Id.) Also on December 12, 2017, nurse Poorman reported that

prison medical staff had faxed a release of information to Geisinger twice in an

attempt to retrieve Moy’s records. (Id. ¶ 73). On December 12, 2017, Deputy

Warden Shoemaker denied Grievance 12-08 and noted that Moy’s medications were

not approved due to his non-compliance prior to incarceration, and that medical

was waiting to receive Moy’s records from Geisinger. (Id. ¶ 74). Moy appealed the

denial of Grievance 12-08 to Warden Kevin DeParlos. (Id. ¶ 75). On January 31,

2018, Warden DeParlos denied the appeal. (Id. ¶ 76). On February 23, 2018, the

Prison Board received the third-level appeal of Grievance 12-08, along with other

grievance appeals from Moy. (Id. ¶ 77). On March 8, 2018, the Prison Board denied

Grievance 12-08. (Id. ¶ 78).

On January 2, 2018, Moy filed Grievance 1-03 complaining that he had not

received prescription eye drops for treatment of his detached retina. (Id. ¶ 79).

Upon receiving Grievance 1-03, Deputy Warden Shoemaker requested details about

Moy’s medications from nurse Poorman. (Id. ¶ 80). Nurse Poorman explained that

she had personally spoken to the pharmacy, who reported that Moy had been

prescribed three different eye drops by his Geisinger ophthalmologist, that two of

those prescriptions were last filled on September 14, 2017, and the third was filled

on September 6, 2017, meaning “if he were using them as prescribed he should

have had to refill them again prior to his incarceration date of 11/29.” (Id. ¶ 81). On

January 15, 2017, Deputy Warden Shoemaker denied Grievance 1-03 and explained

that Moy’s medications were reviewed by a physician and not approved, and that

the prison had scheduled an appointment for Moy with his eye doctor. (Id. ¶ 82).

On that same date, Moy appealed the denial of Grievance 1-03 to Warden

DeParlos. (Id. ¶ 83). On January 31, 2018, Warden DeParlos denied the appeal of

Grievance 1-03 and explained that Moy was seen by his eye doctor on January 23,

2018, and that the eye doctor suggested that Moy use artificial tears as needed and

wear an eye shield while sleeping. (Id. ¶ 84). Warden DeParlos further commented

that although Moy was provided an eye shield, he was non-compliant with wearing

it as directed. (Id. ¶ 85). Warden DeParlos also noted that the prison was awaiting a

date for a vitrectomy retinal repair surgery to be scheduled. (Id. ¶ 86). Moy

appealed the second denial of Grievance 1-03 to the Prison Board. (Id. ¶ 87). The

appeal was received on February 23, 2018. (Id.) The Prison Board denied

Grievance 1-03 because it was a medical-related issue that had previously been

reviewed and addressed. (Id. ¶ 88).

On December 3, 2017, Moy presented to the medical department with

complaints related to his asthma and requested an inhaler. (Id. ¶ 89). Upon

assessment, it was noted that Moy was not in any distress and that pharmacy

records indicated that he had not filled his Albuterol nebulizer treatment

prescription since November 8, 2016, more than one year prior to his incarceration.

(Id.) In December 2017, Moy was permitted to keep a nebulizer in his cell. (Id.

¶ 90). However, corrections officers subsequently removed the nebulizer from

Moy’s cell on December 20, 2017. (Id. ¶ 91). In an email dated December 29, 2017,

nurse Poorman explained to Warden Shoemaker that she did not want a nebulizer

in Moy’s cell due to improper use. (Id. ¶ 92). Dr. Keenan was not aware that Moy

had a nebulizer in his cell in December 2017. (Id. ¶ 93). Dr. Keenan was not

involved in the decision to place the nebulizer in Moy’s cell in December 2017, nor

was he involved in the decision or order to remove the nebulizer from Moy’s cell on

December 20, 2017. (Id. ¶ 94).

When an inmate requests a breathing treatment because of asthma, the

inmate is assessed by a member of prison medical staff to determine if a breathing

treatment is indicated. (Id. ¶ 95). Nebulizer breathing treatments are administered

when objective findings indicate the need. (Id. ¶ 96). At his deposition, Moy

testified that after the nebulizer was removed from his cell, he still had access to

nebulizer breathing treatments. (Id. ¶ 97). Moy also testified that he did not

remember the nebulizer being removed from his cell or how the removal of the

nebulizer injured him. (Id. ¶ 98). On December 6, 14, 23, and 29, 2017, as well as

January 2 and 15, 2018, Moy requested nebulizer breathing treatments, but then

refused the treatments. (Id. ¶ 99). Further, on the following dates, Moy requested

nebulizer breathing treatments, but was not administered the treatments because

medical staff determined that he did not have a need for it: December 12, 14, 20, and

23, 2017; January 11, 2018; February 1 and 10, 2018; April 9, 2018; May 15, 18, 22, and

28, 2018; June 3, 7, and 27, 2018. (Id. ¶ 100).

On December 20, 2017, Moy filed Grievance 12-18 complaining that his

nebulizer was removed from his cell. (Id. ¶ 102). On December 29, 2017, Deputy

Warden Shoemaker denied Grievance 12-18, stating that medical staff would

provide breathing treatments to Moy based on an assessment of need due to

respiratory distress. (Id. ¶ 103). Moy appealed the denial of Grievance 12-18 to

Warden DeParlos. (Id. ¶ 103). On February 16, 2018, Warden DeParlos denied the

appeal based upon the finding that Moy’s medical file reflected that his medical

needs were being addressed and that Moy had refused medical care on more than

one occasion. (Id.) Moy appealed the Warden’s denial of Grievance 12-18 to the

Prison Board. (Id. ¶ 105). The Prison Board denied Grievance 12-18. (Id.)

Throughout Moy’s incarceration at the Lycoming County Prison, although

the nebulizer was removed from his cell due to misuse, it was available to him for

breathing treatments whenever an assessment indicated a need for a breathing

treatment. (Id. ¶ 106).

On December 28, 2017, Dr. Schwab discussed inhaler overuse with Moy. (Id.

¶ 107). That same day, Moy filed Grievance 1-02, complaining that he had not

received a breathing treatment upon request. (Id. ¶ 108). Deputy Warden

Shoemaker denied Grievance 1-02 based upon reports from the medical

department that Moy had been uncooperative with a nurse during his examination.

(Id. ¶ 109). On January 8, 2018, Moy appealed Grievance 1-02 to Warden DeParlos.

(Id. ¶ 110). On January 31, 2018, Warden DeParlos denied Grievance 1-02 because

Moy’s medical file indicated that he was uncooperative with medical staff and that

he displayed no breathing problems. (Id. ¶ 111). There is no evidence that Moy

appealed Grievance 1-02 to the Prison Board. (Id. ¶ 112).

On June 23, 2018, Moy filed Grievance 06-13 due to the discontinuation of his

breathing treatments. (Id. ¶ 113). Deputy Warden Barnes denied Grievance 06-13.

(Id. ¶ 114). There is no indication that Moy appealed Grievance 06-13 to the

Warden. (Id. ¶ 115).

Moy has not set forth any evidence that he filed any subsequent grievances

regarding breathing treatments prior to his transfer to the State Correctional

Institution, Benner Township. (Id. ¶ 116). Moy also has not produced any evidence

to refute the above-stated facts. (Id. ¶¶ 68, 101, 117).

B. Discussion

1. Exhaustion of Administrative Remedies

As stated, at all relevant times, the Lycoming County Prison had in place an

inmate grievance policy, which is set forth in the prison’s Inmate Handbook. The

Lycoming County Prison Inmate Handbook sets forth detailed specific instructions

to be followed by inmates. The grievance policy contains a three-step process for

resolution: (1) the initial grievance, (2) an appeal to the Warden, and (3) an appeal to

the Prison Board. A grievance is not exhausted unless all reviews and appeals are

timely taken and denied. Failure to complete these three steps precludes an action

under Section 1983 by an inmate, pursuant to the PLRA. See 42 U.S.C. § 1997e(a).

On December 28, 2018, Moy submitted Grievance 1-02 complaining that he

had not received a breathing treatment upon request. Deputy Warden Shoemaker

denied Grievance 1-02 based upon reports from the medical department that Moy

was uncooperative with a nurse during his examination. Moy appealed to Warden

DeParlos. On January 31, 2018, Warden DeParlos denied Grievance 1-02 and found

that Moy’s medical file indicated that he was uncooperative with medical staff and

that he displayed no breathing problems. Moy did not appeal the denial of this

grievance to the Prison Board.

On June 23, 2018, Moy filed Grievance 06-13 regarding the discontinuation of

his breathing treatments. Deputy Warden Barnes denied grievance. Moy did not

appeal the denial of this grievance to the Warden.

It is undisputed that Moy failed to fully exhaust available administrative

relief with regard to the alleged denial of breathing treatments as set forth in

Grievance 1-02 and Grievance 06-13. Because Moy failed to exhaust available

administrative remedies as required by the PLRA, Dr. Keenan is entitled to an

entry of summary judgment on this claim. Even if Moy had properly exhausted this

claim, Dr. Keenan would be entitled to summary judgment on the merits, as

discussed below.

2. Deliberate Indifference to Medical Needs

a. Eye Injury

When Moy presented for treatment in December 2017 and January 2018, Dr.

Keenan considered his symptoms and, after he conducted an examination, assessed

the eye injury, reviewed the medical records, considered the fact that Moy’s

ophthalmologist had intended the use of the eye drops to be temporary, and that

Moy was noncompliant with refilling the eye drops prior to incarceration, Dr.

Keenan concluded that he would not reorder the Ocuflox, Atropine, or Pred Forte

eye drops. Dr. Keenan also noted that Pred Forte may cause significant harm if

used on a long-term basis and would not be reordered without an order from Moy’s

ophthalmologist. He also noted that both Ocuflox and Atropine are short-term

medications and would not have been reordered without an order from Moy’s

ophthalmologist.

No reasonable factfinder could conclude from the record before the court

that Dr. Keenan acted with deliberate indifference. On every occasion Moy

presented for treatment, Dr. Keenan examined him, took into consideration his

symptoms and complaints, and rendered treatment and medical advice. There is

not a single instance where Moy requested medical attention and was denied. His

main argument, that he should have received previously prescribed eye drops,

constitutes a “mere disagreement as to the proper medical treatment.” See

Lanzaro, 834 F.2d at 346. It is clear from the record that Dr. Keenan employed

professional judgment in treating Moy’s eye condition every time he presented with

complaints and symptoms. See Brown, 903 F.2d at 278. This precludes a finding

that Dr. Keenan acted with the “obduracy and wantonness” necessary to prove an

Eighth Amendment violation. See Whitley v Algers, 475 U.S. 312, 319 (1986). Dr.

Keenan is entitled to an entry of summary judgment.

b. Asthma

Moy next asserts that Dr. Keenan exhibited deliberate indifference related to

the removal of a nebulizer machine from his cell and the denial of asthma related

breathing treatments. However, Moy also acknowledges that nurse supervisor

Poorman was responsible for the removal of the nebulizer machine from his cell

and that the prison nurses denied nebulizer treatments. (Doc. 1 at p. 10; Doc. 8 at 2

¶ 2; Doc. 115 at 77, Deposition of Tyree Tyquan Moy (“Moy Dep.”)). Moy fails to

establish that Dr. Keenan had any personal involvement in the removal of the

nebulizer from his cell, or the denial of breathing treatments. Moreover, Moy

testified that he continued to receive nebulizer treatments after the machine was

removed from his cell and he cannot recall if he was injured by the removal of the

machine from his cell. (Doc. 115 at 78-79, Moy Dep.).

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

played an “affirmative part” in the alleged misconduct. See Evancho, 423 F.3d at

353 (quoting Rode, 845 F.2d at 1207). 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. See Atkinson, 316

F.3d at 271; Rode, 845 F.2d at 1207-08. Moy failed to present any evidence that Dr.

Keenan ordered the removal of the nebulizer machine from his cell or that he

denied a breathing treatment. As such, Dr. Keenan is entitled to summary

judgment on this claim.

3. Monell Claim

To the extent that Moy sets forth a Monell claim against Dr. Keenan, this

claim fails. As stated supra, Monell requires a plaintiff to plead the existence of a

policy or lack thereof, a policy maker that effectuated said policy, and a

constitutional violation whose “moving force” was the policy in question. See

Monell, 436 U.S. at 690-91, 694. Dr. Keenan is not a policymaker effectuating an

official policy which is the moving force behind the alleged constitutional violation.

Moy has not presented any evidence to refuse these facts. Dr. Keenan is entitled to

judgment in his favor on the Monell claim.

V. Conclusion

We will grant defendants’ motions (Docs. 113, 116) and enter judgment in

their favor. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: February 16, 2022