Walker v. Edwards

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM WALKER, :

Plaintiff : CIVIL ACTION NO. 3:20-2293

v. : (JUDGE MANNION)

DR. DAVID EDWARDS, :

Defendant :

MEMORANDUM

I. BACKGROUND

Plaintiff, William Walker, an inmate confined at the State Correctional

Institution, Camp Hill (“SCI-Camp Hill”), Pennsylvania, filed the above

caption civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). He

complains of an injury to his left foot when he was issued a pair of refurbished

boots. Id. The sole named Defendant is Dr. David Edwards. Id.

Presently before the Court is Defendant’s motion to dismiss Plaintiff’s

complaint. (Doc. 21). The motion is fully brief and is ripe for disposition. For

the reasons that follow, the Court will grant Defendant’s motion to dismiss.

II. ALLEGATIONS IN COMPLAINT

Plaintiff complains of inadequate medical care he received for an injury

to his left foot caused by a pair of refurbished boots. Although his complaint

is scant on details, his brief in opposition to Defendant’s motion to dismiss

outlines the treatment and consideration that was given to his wounds, as

follows:

• November 6, 2017: Plaintiff’s left foot wound was examined by

an unidentified physician assistant, who prescribed Nystatin (an

antifungal medication).

• December 11, 2017: Plaintiff’s left foot wound was examined

by an unidentified medical provider, who prescribed Terbinafine

Hydrochloride (an antifungal medication).

• January 8, 2018: Plaintiff’s left foot wound was examined by

an unidentified physician assistant, who prescribed Fluconazole

(an antifungal medication).

• January 16, 2018: Plaintiff’s left foot wound was examined by

an unidentified physician assistant, who prescribed Fluconazole

(an antifungal medication).

• January 29, 2018: Plaintiff’s left foot wound was examined by

an unidentified physician assistant, who prescribed “a packet of

unidentified pills.”

• February 2, 2018: Plaintiff’s left foot wound was examined by

an unidentified physician assistant, who advised Plaintiff that the

“medication needs time to work and [to] give the medication more

time.”

• Unknown date in February 2018: Plaintiff was seen by Dr.

Edwards, who denied Plaintiff’s request to be seen by a

podiatrist; however, he did “mandate Plaintiff’s left foot to receive

wound care treatment.” Plaintiff states that his wound care

treatment commenced on February 6, 2018 and continued

through June 26, 2018. During this period of time, Dr. Edwards

also continued the medications that were previously prescribed

for Plaintiff’s foot wound.

• April 23, 2018: Plaintiff was examined by Timothy Rutherford,

PA-C, who “issued Plaintiff a new pair of boots and a packet of

pills.”

• May 10, 2018: Plaintiff was examined by Timothy Rutherford,

PA-C, who examined Plaintiff and prescribed medication for his

foot wound.

• June 6, 2018: Plaintiff was examined by Timothy Rutherford,

PA-C, who examined Plaintiff and prescribed medication for his

foot wound.

• June 26, 2018: Plaintiff’s wound care treatment ended, and he

began using medication purchased from commissary.

• July 30, 2018: Plaintiff was examined by Vivian Henry, PA-C,

who diagnosed Plaintiff with Ulcerative Tinea Pedis,1 and

ordered “medical lay-in” for one month, with the hope that staying

off his foot would promote healing. Although he claims that PA

Henry also ordered a wound culture, he claims that this was not

done due to “bad decisions” by Dr. Edwards.

• August 7, 2018: Plaintiff was examined by Dr. Voorstad, and

new wound care treatment orders were issued. Wound care

1The most severe form of tinea pedis infection (also known as Athlete’s

Foot), called ulcerative tinea pedis, appears as blisters, pus-filled bumps

(pustules), and shallow open sores (ulcers). These lesions are especially

common between the toes but may involve the entire sole. Because of the

numerous breaks in the skin, lesions commonly become infected with

bacteria. Ulcerative tinea pedis occurs most frequently in people with

diabetes and others with weak immune systems. See

https://www.skinsight.com/skin-conditions/adult/tinea-pedis-athletes-foot.

commenced that day. He was also prescribed “the same

medications” that were previously prescribed by Dr. Edwards.

• August 16, 2018: Plaintiff was seen in telemedicine

consultation by dermatologist, Dr. Schleicher, who diagnosed

Plaintiff with Intertriginous Dermatitis.2 At that time, Dr.

Schleicher prescribed “an unidentified packet of pills, and an

unidentified topical powder.”

• November 26, 2018: Plaintiff presented to sick call with

complaints of wounds now also on his right foot (the wounds

were previously limited to his left foot). Plaintiff was examined by

an unidentified physician assistant, who prescribed medications

that resolved Plaintiff’s condition.

• February 11, 2019: Plaintiff’s wounds recurred, and he was

seen by Mark Collins, PA-C, who examined Plaintiff and,

thereafter, sent him to the infirmary “for a culture to be taken a

second time.”

• February 14, 2019: Plaintiff discussed the culture results with

Dr. Voorstad, and the treatment plan was continued.

• March 11, 2019: Plaintiff was examined by an unidentified

physician assistant, and an “unidentified medication” was

prescribed.

• May 7, 2019: Plaintiff was examined by an unidentified

physician assistant, and an “unidentified medication” was

prescribed.

• May 13, 2019: Plaintiff’s bilateral foot wounds were examined

by Greg Forsyth, PA-C; however, no new medications were

ordered.

2Intertrigo (also known as intertriginous dermatitis) is an inflammatory

condition of skin folds, induced or aggravated by heat, moisture, maceration,

friction, and lack of air circulation. See

https://www.medscape.com/answers/1087691-37481/what-is-intertrigo-

intertriginous-dermatitis.

• May 29, 2019 and June 11, 2019: Plaintiff’s bilateral foot

wounds were examined by Greg Forsyth, PA-C.

• July 2, 2019: Dr. Voorstad recommended bilateral foot soaks

in Iodine; however, Plaintiff alleges that after three or four days,

the Iodine caused damage to his feet. He claims this resulted in

pain, and he was given crutches for ambulation.

• July 8, 2019: Plaintiff was seen by a podiatrist Dr. Barbacci,

who diagnosed Plaintiff with Erythrasma Interdigital3; however,

he did not recommend any additional treatment.

• July 12, 2019: Plaintiff asked Greg Forsyth, PA-C to excuse

him from work; however, PA Forsyth refused.

• July 15, 2019: Plaintiff was seen by Dr. Voorstad, who

prescribed pain medication.

• July 18, 2019: Plaintiff was seen by Dr. Voorstad for his

bilateral foot wounds; however, he claims Dr. Voorstad “did not

supply Plaintiff with comfortable footwear or permission to wear

open ventilated shower shoes.”

• July 29, 2019: Plaintiff was examined by Mark Collins, PA-C,

who ordered a third wound culture. Also, that day, he was

examined by Dr. Voorstad.

• July 31, 2019: Plaintiff was placed in the prison’s infirmary for

observation of his wounds. He remained in the infirmary through

August 18, 2019.

3Erythrasma is a superficial infection of the skin caused by

Corynebacterium minutissimum, a gram-positive, non-spore-forming

bacillus. The disorder typically presents as macerated, scaly plaques

between the toes or erythematous to brown patches or thin plaques in

intertriginous area. See https://www.uptodate.com/contents/erythrasma.

• August 5, 2019: Plaintiff returned to see the podiatrist, Dr.

Barbacci, who assured Plaintiff that his “conditions are

improving.”

• January 3, 2020: Plaintiff was seen by Dr. Voorstad after his

foot wounds recurred. At that time, Dr. Voorstad ordered

resumed wound care treatment.

• January 20, 2020: Justin Rutherford, PA-C examined Plaintiff’s

feet and prescribed Clindamycin.

• January 23, 2020: Dr. Voorstad examined Plaintiff and made

the decision to discontinue Clindamycin (an antibiotic), and

instead prescribed Ciprofloxacin (an antibiotic). He also ordered

additional wound care services.

• February 7, 2020: Plaintiff was examined by Dr. Voorstad.

(Doc. 23, “Brief in Support of Plaintiff’s Opposition”).

On December 8, 2020, Plaintiff filed the instant action in which he

seeks compensatory and punitive damages for his “pain and suffering

mentally and physically caused by the discomfort” of “inadequate

medications” and treatment provided by the “Defendant’s negligence and

deliberate indifference”. (Doc. 1).

III. MOTION TO DISMISS

Federal notice and pleading rules require the complaint to provide the

defendant notice of the claim and the grounds upon which it rests. See

Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff

must present facts that, accepted as true, demonstrate a plausible right to

relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that

the pleader is entitled to relief,” a complaint may nevertheless be dismissed

under Federal Rule of Civil Procedure 12(b)(6) for its “failure to state a claim

upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the court

accepts as true all factual allegations in the complaint and all reasonable

inferences that can be drawn from them, viewed in the light most favorable

to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show

that their claims are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The plausibility

standard requires more than a mere possibility that the defendant is liable

for the alleged misconduct: “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has

alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” See

Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a

district court must take when reviewing a 12(b)(6) motion: (1) identify the

elements that a plaintiff must plead to state a claim; (2) identify any

conclusory allegations contained in the complaint that are “not entitled” to the

assumption of truth; and (3) determine whether any “well-pleaded factual

allegations” contained in the complaint “plausibly give rise to an entitlement

to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)

(internal citations and quotation marks omitted). The Third Circuit has

specified that in ruling on a Rule 12(b)(6) motion to dismiss for failure to state

a claim, “a court must consider only the complaint, exhibits attached to the

complaint, matters of public record, as well as undisputedly authentic

documents if the complainant's claims are based upon these documents.”

See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d

Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful

that a document filed pro se is “to be liberally construed.” See Estelle v.

Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully

pleaded,” must be held to “less stringent standards than formal pleadings

drafted by lawyers” and can be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support

of his claim that would entitle him to relief. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972).

IV. DISCUSSION

A. Eighth Amendment Medical Claim

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 (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 Cty. 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).

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. 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.

Plaintiff has failed to satisfy the deliberate indifference requirement of

Estelle. Assuming without deciding that Plaintiff suffered from a serious

medical need or condition, Plaintiff’s pleadings clearly demonstrate that

Plaintiff received medical attention, and that the attention Plaintiff received

lacks the requisite deliberate indifference to support a Section 1983 claim.

Thus, Plaintiff’s own admission averts any deliberate indifference with

respect to treatment for his injury. Specifically, Plaintiff states that he was

seen by medical for his condition, provided wound care, and was given

various medications by various medical professionals.

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

type of treatment rendered. This is particularly so in light of the fact that there

are no allegations in the complaint that Defendant Edwards intentionally

withheld medical treatment from Plaintiff in order to inflict pain or harm upon

Plaintiff. Farmer, 511 U.S. at 837; Rouse, 12 F.3d at 197. Thus, the

allegations in the Plaintiff’s complaint amount to nothing more than Plaintiff’s

subjective disagreement with the treatment decisions and medical judgment

of the medical staff at the prison. Where, as here, an inmate is provided with

medical care and the dispute is over the adequacy of that care, an Eighth

Amendment claim does not exist. Nottingham v. Peoria, 709 F. Supp. 542,

547 (M.D. Pa. 1988). At most, the allegations in the complaint only rise to

the level of mere negligence. As simple negligence cannot serve as a

predicate to liability under §1983, Hudson v. Palmer, 468 U.S. 517 (1984),

Plaintiff’s civil rights complaint fails to articulate an arguable claim. See

White, 897 F.2d at 108-110.

B. Professional Negligence

Pennsylvania Rule of Civil Procedure 1042.3 requires that a plaintiff

file a certificate of merit (“COM”) from a medical expert with respect to a

professional negligence claim against the United States.4 Rule 1042.3

provides as follows:

(a) In any action based upon an allegation that a

licensed professional deviated from an acceptable

professional standard, the attorney for the plaintiff, or

the plaintiff if not represented, shall file with the

complaint or within sixty days after the filing of the

complaint, a certificate of merit signed by the attorney

or party that either

(1) an appropriate licensed professional has supplied

a written statement that there exists a reasonable

probability that the care, skill or knowledge

exercised or exhibited in the treatment, practice or

work that is the subject of the complaint, fell

outside acceptable professional standards and

that such conduct was a cause in bringing about

the harm, or

(2) the claim that the defendant deviated from an

acceptable professional standard is based solely

on allegations that other licensed professionals for

whom this defendant is responsible deviated from

an acceptable professional standard, or

(3) expert testimony of an appropriate licensed

professional is unnecessary for prosecution of the

claim.

4A COM must be filed for a Pennsylvania state professional negligence

claim or the claim will be dismissed. Velazquez v. UPMC Bedford Memorial

Hospital, 328 F.Supp.2d 549, 558 (W.D. Pa. 2004).

PA. R. CIV. P. 1042.3(a).

If a plaintiff fails to file the required certificate within sixty (60) days of

filing the complaint, the proper procedure in federal practice is to file a motion

pursuant to Federal Rule of Civil 12(b)(6) to dismiss the professional

negligence claim without prejudice. Stroud v. Abington Mem’l Hosp., 546

F.Supp.2d 236, 250 (E.D. Pa. 2008). “[T]he sixty-day deadline for filing a

COM will be strictly construed and not lightly excused.” Id. The rule applies

to pro se as well as represented plaintiffs and constitutes a rule of

substantive state law with which plaintiffs in federal court must comply. See

Iwanejko v. Cohen & Grigsby, P.C., 249 Fed.Appx. 938, 944 (3d Cir. 2007);

Maruca v. Hynick, 2007 WL 675038, at *3 (M.D. Pa. 2007) (“[T]he language

of Rule 1042.3(a) – i.e., ‘or the plaintiff if not represented ... shall file ... a

certificate of merit’ expressly requires that a pro se plaintiff must file a

certificate of merit,”).

Failure to file a certificate of merit under Rule 1042.3(a), or a motion

for extension under Rule 1042.3(d), is fatal unless the plaintiff demonstrates

that his failure to comply is justified by a “reasonable excuse.” Perez v.

Griffin, 304 Fed.Appx. 72 (3d Cir, 2008) (per curiam) (nonprecedential); see

also Womer v. Hilliker, 908 A.2d 269, 279-80 (Pa. 2006) (holding that a court

may reconsider judgment entered for failure to comply with Rule 1042.3 if

the plaintiff demonstrates a “reasonable excuse” for the noncompliance); Pa.

R. Civ. P. 1042.6 (authorizing entry of non-pros judgment if a malpractice

plaintiff fails to comply with Rule 1042.3).

In the instant case, Walker was required to file a COM producing expert

testimony that the treatment of his alleged condition was causally related to

any injury for which he seeks compensation. Walker filed his complaint on

December 8, 2020. Thus, he was required to file a COM on or before

February 8, 2021. Plaintiff’s filing of his COM is now long overdue and as

such, Plaintiff’s professional negligence claim will be dismissed.

C. Res judicata

On September 22, 2020, Plaintiff filed Walker v. Edwards, et al., Civil

No. 3:20-cv-1714, in which he names the following SCI-Camp Hill

employees: Dr. David Edwards, Dr. Voorstad and Physician’s Assistant Greg

Forsyth. Id. Plaintiff’s action complains of an injury to his feet when he was

issued a pair of refurbished boots. Id. By Memorandum and Order dated

March 11, 2022, this Court granted Defendants’ motion to dismiss Plaintiff’s

complaint for failing to articulate an arguable claim for deliberate indifference

to a serious medical need. Id. Plaintiff raised the same claims against

Defendant Edwards that are now alleged in the instant action. Id. No appeal

was filed from the Court’s March 11, 2022 Memorandum and Order. Id.

Res judicata, also known as claim preclusion, bars a subsequent suit

where there has been: “(1) a final judgment on the merits in a prior suit

involving (2) the same claim and (3) the same parties or their privies.”

E.E.O.C. v. U.S. Steel Corp., 921 F.2d 489, 493 (3d Cir. 1990). “The doctrine

of res judicata bars not only claims that were brought in a previous action,

but also claims that could have been brought.” Marmon Coal Co. v. Eckman,

726 F.3d 387, 394 (3d Cir. 2013). Res judicata “encourages reliance on

judicial decisions, bars vexatious litigation, and frees the courts to resolve

other disputes.” Brown v. Felsen, 442 U.S. 127, 131 (1979).

Here, Plaintiff has not filed an appeal to the United States Court of

Appeal for the Third Circuit, within thirty days of this Court’s March 11, 2022

Memorandum and Order, thus, there is a final judge on the merits of the

same claims and against the same parties. As such, Plaintiff’s complaint is

barred by res judicata and dismissal of the same is appropriate.

V. LEAVE TO AMEND

The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be inequitable

or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Here, it is clear from the facts alleged in the pro se complaint that any

attempt to amend the plaintiff’s §1983 claims against the named Defendant

would be futile. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Thus,

the Court will dismiss the Plaintiff’s §1983 claims without leave to amend.

VI. CONCLUSION

For the reasons set forth above, the Court will grant Defendant’s

motion to dismiss. (Doc. 21).

A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: August 23, 2022

20-2293-01