Morrison v. United States Of America

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GRAYTZ MORRISON, :

Plaintiff : No. 1:20-cv-01571

:

v. : (Judge Kane)

:

UNITED STATES OF AMERICA, et al., :

Defendants :

MEMORANDUM

Pending before the Court are Defendants Kyle Anderson (“Anderson”), Justin Miller

(“Miller”), and Larren Hofford (“Hofford”)’s motions for summary judgment filed pursuant to

Rule 56 of the Federal Rules of Civil Procedure. (Doc. Nos. 50, 52.) Also pending before the

Court is Defendants Anderson and Miller’s motion to file certain documents under seal, which

they filed in connection with their motion for summary judgment. (Doc. No. 48.) For the

reasons set forth below, Defendants Anderson and Miller’s motion for summary judgment will

be granted, Defendant Hofford’s motion for summary judgment will be denied, and Defendants

Anderson and Miller’s motion to file certain documents under seal will also be denied.

I. BACKGROUND

A. Procedural Background

Plaintiff Graytz Morrison (“Plaintiff”) is a former federal prisoner who was previously

incarcerated at the Low Security Allenwood Federal Correctional Institution in White Deer,

Pennsylvania (“LSCI Allenwood”). (Doc. No. 1.) Plaintiff was released from LSCI Allenwood

on July 28, 2020. See Federal Bureau of Prisons, Find an Inmate, available at

https://www.bop.gov/inmateloc/ (demonstrating that Plaintiff was “Released On: 07/28/2020”).

On July 27, 2020,1 the day before Plaintiff was released, he commenced the above-

captioned action by filing a complaint pursuant to the Federal Tort Claims Act (“FTCA”) and

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

(“Bivens”), asserting claims that he had received inadequate medical care while he was

incarcerated there. (Doc. No. 1.) Plaintiff named as defendants Anderson, Miller, Hofford, the

United States of America (“United States”), Warden D.K. White (“White”), United States Public

Health Service Provider Creveling (“Creveling”), Correctional Counselor Christopher Snyder

(“Snyder”), Special Investigative Agent J. Lyons (“Lyons”), and Lieutenant Carillo (“Carillo”).

(Id.) In an Order dated September 2, 2020, the Court directed service of the complaint upon

Defendants. (Doc. No. 5.)

After receiving several extensions of time, Defendants Anderson, Miller, White,

Creveling, Snyder, and Lyons filed a motion to dismiss Plaintiff’s complaint. (Doc. No. 24.)

Defendant Hofford subsequently filed a motion to join in the motion to dismiss (Doc. No. 28),

which the Court granted (Doc. No. 33). On June 22, 2021, the Court directed Plaintiff to show

cause why Defendant Carillo should not be dismissed pursuant to Rule 4(m) of the Federal Rules

of Civil Procedure. (Doc. No. 34.) Although Plaintiff filed what purported to be a certificate of

merit (Doc. No. 35), Plaintiff did not respond to the Court’s show cause Order and, accordingly,

on July 12, 2021, the Court dismissed Defendant Carillo from this action without prejudice (Doc.

No. 36).

1 Although the Court did not receive Plaintiff’s complaint until September 1, 2020, his

complaint is dated July 27, 2020 (Doc. No. 1 at 8) and, thus, is deemed filed as of that date. See

Pabon v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011) (noting that “[t]he federal ‘prisoner

mailbox rule’ provides that a document is deemed filed on the date it is given to prison officials

for mailing (citing Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998))).

2

The United States filed its motion to dismiss and/or for summary judgment on July 19,

2021 (Doc. No. 37), followed by its statement of material facts (Doc. No. 42) and supporting

brief (Doc. No. 43). That same day, the Court granted in part and denied in part the motion to

dismiss previously filed by Defendants Anderson, Miller, White, Creveling, Snyder, and Lyons.

(Doc. Nos. 38, 39.) More specifically, the Court granted the motion as to: (1) Plaintiff’s FTCA

claims against the individual Defendants; (2) Plaintiff’s Fifth Amendment due process claims;

and (3) Plaintiff’s Eighth Amendment claims against Defendants White and Creveling. (Id.)

The Court dismissed these claims with prejudice. (Id.) However, the Court denied the motion

with respect to Plaintiff’s Eighth Amendment claims against Defendants Anderson, Miller, and

Hofford. (Id.)

On July 26, 2021, Defendant Hofford filed her answer to the complaint (Doc. No. 40),

and, on August 2, 2021, Defendants Anderson and Miller filed their collective answer to the

complaint (Doc. No. 41). Thereafter, on September 15, 2021, the Court granted the United

States’ motion to dismiss and/or for summary judgment (Doc. No. 37) and dismissed with

prejudice Plaintiff’s FTCA claims against the United States. (Doc. Nos. 44, 45.)

On February 8, 2022, the Court, observing that Defendants Hofford, Anderson, and

Miller had filed answers to the complaint and that the six (6)-month period for discovery had

closed without a request from the parties for additional time to complete such discovery (Doc.

No. 39 at ¶ 4), ordered the parties to file any dispositive motions on or before April 4, 2022.

(Doc. No. 47.) In accordance with that Order, Defendants Anderson, Miller, and Hofford timely

filed their motions for summary judgment (Doc. Nos. 50, 52), as well as their supporting briefs

(Doc. Nos. 51, 53) and statements of material facts (Doc. Nos. 50-1, 52-1).

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In addition to their motion for summary judgment, Defendants Anderson and Miller have

also filed a motion seeking to file certain documents under seal (Doc. No. 48), along with the

documents that they seek to file under seal (Doc. No. 49). On April 22, 2022, the Court,

observing that Defendants Anderson and Miller had neither filed a brief in support of their

motion to seal, nor explained why their documents should remain under seal pursuant to the

standard articulated in In re: Avandia Marketing Sales Practices and Products Liability Litig.,

924 F.3d 662 (3d Cir. 2019) (“Avandia”), directed them to show cause why the documents

should remain under seal pursuant to the Avandia standard. (Doc. No. 54.) In response to the

Court’s Order, Defendants Anderson and Miller filed their brief in support on April 29, 2022.

(Doc. No. 55.)

As reflected by the Court’s docket, Plaintiff has neither filed a response to Defendants

Anderson, Miller, and Hofford’s pending motions, nor sought an extension of time in which to

do so. Thus, Defendants Anderson, Miller, and Hofford’s pending motions are ripe for the

Court’s resolution.

B. Factual Background

In accordance with the Court’s Local Rules, Defendants Anderson, Miller, and Hofford

have filed statements of material facts in support of their respective motions for summary

judgment. (Doc. Nos. 50-1, 52-1.) Plaintiff did not file his own statements of material facts,

responding to the numbered paragraphs set forth in the Defendants’ statements. Thus, under the

Court’s Local Rules, Defendants Anderson, Miller, and Hofford’s facts are deemed admitted

since:

A failure to file a counter-statement equates to an admission of all the facts set

forth in the movant’s statement. This Local Rule serves several purposes. First, it

is designed to aid the Court in its determination of whether any genuine issue of

material fact is in dispute. Second, it affixes the burden imposed by Federal Rule

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of Civil Procedure 56(e), as recognized in Celotex Corp. v. Catrett, on the

nonmoving party ‘to go beyond the pleadings and by her own affidavits, or by the

depositions, answers to interrogatories, and admissions on file, designated specific

facts showing that there is a genuine issue for trial.’ 477 U.S. 317, 324, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted) (emphasis added).

See Williams v. Gavins, No. 1:13-cv-0387, 2015 WL 65080, at *5 (M.D. Pa. Jan. 5, 2015), aff’d

sub nom. Williams v. Gavin, 640 F. App’x 152 (3d Cir. 2016) (unpublished) (emphasis in

original) (citation omitted).

Accordingly, the material facts in this Memorandum are derived from Defendants

Anderson, Miller, and Hofford’s statements of material facts. (Doc. Nos. 50-1, 52-1.) That

being said, however, the Court has conducted a thorough and impartial review of the record in

this matter. To the extent that there are any disputed issues of material fact that are relevant to

the Defendants’ motions for summary judgment, the Court expressly notes such disputes herein.2

Sometime around 12:00 a.m. on July 28, 2019, while Defendant Anderson was

performing rounds at LSCI Allenwood, Plaintiff, who was in the bathroom, was trying to figure

out what was wrong with himself and told Defendant Anderson that he did not “feel good” and

that “something was wrong with his stomach.” (Doc. No. 50-1 ¶ 1; Doc. No. 52-1 ¶ 2.) In

response to Plaintiff’s complaints, Defendant Anderson informed Plaintiff that there were no

medical staff available at that time, and also informed the Operations Lieutenant that Plaintiff

was having stomach pain and wished to seek medical attention. (Doc. No. 50-1 ¶ 2; Doc. No.

52-1 ¶ 3.) At one point Plaintiff, who was standing and leaning against a wall, also told

Defendant Anderson that he was in pain. (Doc. No. 50-1 ¶ 3; Doc. No. 52-1 ¶ 4.)

2 Defendants Anderson and Miller’s statement of material facts (Doc. No. 50-1) and Defendant

Hofford’s statement of material facts (Doc. No. 52-1) entirely overlap and, thus, the Court is able

to set forth their facts together in one section.

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After the 12:00 a.m. count, Plaintiff asked Defendant Anderson, who was in his office, if

he could sit in the shower, which Defendant Anderson allowed him to do. (Doc. No. 50-1 ¶ 4.)

Defendant Anderson observed Plaintiff doubled over in a chair with hot water running over him.

(Id. ¶ 5.) Defendant Anderson performed welfare checks on Plaintiff every fifteen (15) minutes

until he was relieved from duty. (Id. ¶ 6; Doc. No. 52-1 ¶ 5.) During his welfare checks of

Plaintiff, Defendant Anderson asked if Plaintiff’s pain level changed, and Plaintiff replied that it

was the same on every check. (Doc. No. 50-1 ¶ 8; Doc. No. 52-1 ¶ 6.) Plaintiff does not recall

telling Defendant Anderson, at any point, that he felt like he was going to die. (Doc. No. 50-1 ¶

9; Doc. No. 52-1 ¶ 7.)

Subsequently on that same day (i.e., July 28, 2019), Plaintiff went to medical, also

referred to as “Health Services,”3 where he was seen by Defendant Hofford, a registered nurse.

(Doc. No. 50-1 ¶¶ 10, 11, 45, 46.) According to Defendant Hofford, she performed a visual

medical assessment of Plaintiff and instructed him to return to his unit and to report to medical

for sick call the following day on July 29, 2019. (Id. ¶ 46; Doc. No. 52-1 ¶ 24.) Also according

to Defendant Hofford, she instructed Plaintiff to notify his unit officer to call medical if his pain

increased or got worse. (Doc. No. 50-1 ¶ 47; Doc. No. 52-1 ¶ 25.)

While Plaintiff was at medical, Defendant Hofford called Defendant Anderson. (Doc.

No. 50-1 ¶¶ 10, 11, 45; Doc. No. 52-1 ¶ 23.) Defendant Anderson recalled speaking with

someone from medical on July 28, 2019, while Plaintiff was there, about whether Defendant

3 LSCI Allenwood’s Health Services Unit provides twenty-four (24)-hour medical coverage

that includes in-house mid-level practitioner/paramedic/RN coverage for sixteen (16) hours per

day. (Doc. No. 50-1 ¶ 43; Doc. No. 52-1 ¶ 21.) Should in-house coverage not be available, then

an on-call mid-level practitioner (physician assistant/nurse practitioner) will be available via cell

phone. (Doc. No. 50-1 ¶ 44; Doc. No. 52-1 ¶ 22.)

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Anderson had sent Plaintiff to Health Services or whether Plaintiff went to Health Services on

his own. (Doc. No. 50-1 ¶ 11.) Defendant Anderson does not recall his response to this

question. (Id.) Plaintiff testified at his deposition that he did not hear exactly what Defendant

Anderson said to Defendant Hofford on the phone, only that Defendant Anderson was aware that

Plaintiff was not feeling well. (Id. ¶ 12; Doc. No. 52-1 ¶ 8.) Plaintiff states in his affidavit,

however, that he could not hear what Defendant Anderson said to Defendant Hofford. (Doc. No.

50-1 ¶ 12.)

Defendant Anderson did not prevent Plaintiff from going to medical (id. ¶ 16), did not

have any objections to Plaintiff being at medical that day (id. ¶ 13), and did not have Plaintiff

written up for being there (id.). According to the Brady A Unit Log, Defendant Anderson

advised Plaintiff to go to medical for sick call. (Id. ¶ 14.) Plaintiff does not know if Defendant

Anderson tried calling medical during this relevant period of time. (Id. ¶ 16.) Plaintiff also

confirmed that Defendant Anderson is not an EMT, nurse, or physician. (Id. ¶ 15.)

Although Plaintiff is not sure if he saw Defendant Anderson when he returned from

medical (id. ¶ 17), Plaintiff recalls speaking with Defendant Miller who “was trying to be

helpful.” (Id. ¶ 18.) After speaking with Plaintiff, Defendant Miller stated that he would call

Defendant Hofford and try to help Plaintiff—which Plaintiff “was glad about[.]” (Id. ¶ 19.) At

approximately 8:00 a.m. on July 28, 2019, in response to Plaintiff’s complaints that he was in

severe pain, Defendant Miller called medical and was informed by Defendant Hofford that she

was not going to see Plaintiff because she had just spoken with him in Health Services. (Id. ¶ 20;

Doc. No. 52-1 ¶ 9.)

Plaintiff was subsequently informed by his cellmate that Defendant Miller wanted to

speak with him. (Doc. No. 50-1 ¶ 21.) Plaintiff walked to Defendant Miller, who explained that

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he “tried” (id. ¶ 23), but informed Plaintiff that Defendant Hofford would not see him and that he

should go to the pill line and emergency sick call in the morning (id. ¶ 22). Plaintiff generally

claims that Defendant Miller was decent in his approach with him, that Defendant Miller was

genuine, and that Defendant Miller may have informed him that if his condition got worse, he

should go back to medical. (Id. ¶ 24.)

When Plaintiff spoke with Defendant Miller during these occasions, Plaintiff was leaning

against the door and holding his stomach, but standing in the correctional officers’ office. (Id. ¶

25.) In addition, Plaintiff told Defendant Miller that he did not feel well, but he is uncertain if he

ever told Defendant Miller that he felt like he was going to die or “to that real degree of how [he]

felt.” (Id. ¶ 26; Doc. No. 52-1 ¶ 10.)

Ultimately, Defendant Miller told Plaintiff that he could not allow Plaintiff to go to

medical because Defendant Hofford had specifically stated that Plaintiff “cannot” be there and

that he could wait for emergency sick call in the morning. (Doc. No. 50-1 ¶ 27; Doc. No. 52-1 ¶

11.) It was unclear to Plaintiff if he needed permission from a correctional officer to go to the

pill line for his condition. (Doc. No. 50-1 ¶ 28.) Plaintiff recalled that Defendant Miller, who

was the most genuine, may have come to his cell to check on him at one point. (Id. ¶ 29.)

Similar to Defendant Anderson, Plaintiff confirmed that Defendant Miller is not an EMT, nurse,

or medical professional of any kind. (Id. ¶ 30.)

Defendant Hofford confirmed that she was contacted by Defendant Miller after Plaintiff

departed medical and that she informed Defendant Miller that she was not going to see Plaintiff

because she had just spoken with him prior to the phone call. (Id. ¶ 48; Doc. No. 52-1 ¶ 26.)

According to Defendant Hofford, she provided Plaintiff the opportunity to fully explain his

medical concerns, but ultimately, based upon the symptoms he described, as well as her own

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observations, believed that no further medical assessment or intervention was warranted. (Doc.

No. 50-1 ¶ 49; Doc. No. 52-1 ¶ 27.)

Plaintiff believes that the last time he saw Defendant Miller was right before Plaintiff

went to his position with food services on July 28, 2019. (Id. ¶ 31.) At approximately 1:59 a.m.

on July 28, 2019, Operations Lieutenant, Lieutenant Tomas Carrillo (“Lt. Carrillo”) spoke with

Plaintiff, who was having stomach pain but stated that he could wait to be seen by medical staff

when they arrived at 6:00 a.m. (Id. ¶ 32; Doc. No. 52-1 ¶ 12.) Lt. Carrillo does not recall

contacting the on-call physician because Plaintiff said he was okay to wait until medical would

arrive at 6:00 a.m. (Doc. No. 50-1 ¶ 33; Doc. No. 52-1 ¶ 13.)

On that same date, at approximately 5:10 a.m., Lt. Carrillo did a health and welfare check

on Plaintiff who informed Lt. Carrillo that he was feeling okay and would go to sick call when it

opened at 6:00 a.m. (Doc. No. 50-1 ¶ 34; Doc. No. 52-1 ¶ 14.) Lt. Carrillo called Health

Services when it opened based upon Plaintiff’s statements to ensure Plaintiff would be seen.

(Doc. No. 50-1 ¶ 35; Doc. No. 52-1 ¶ 15.) However, Lt. Carrillo is not sure with whom he

spoke at Health Services. (Doc. No. 50-1 ¶ 35.)

Despite trying to vomit, Plaintiff did not get sick at any point. (Id. ¶ 36.) In addition,

Plaintiff took fiber pills to make himself go to the bathroom, which he believed helped. (Id. ¶

37; Doc. No. 52-1 ¶ 16.) By the morning of July 29, 2019, Plaintiff, whose pain had lessened,

went to see Physician’s Assistant (“PA”) Stoltz in medical. (Doc. No. 50-1 ¶ 38; Doc. No. 52-1

¶ 17.) When initially speaking with Plaintiff, PA Stoltz explained that he did not know if

Plaintiff’s condition was appendicitis, but thought that it could be. (Doc. No. 50-1 ¶ 39; Doc.

No. 52-1 ¶ 18.)

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PA Stoltz then had Plaintiff lay down, and PA Stoltz performed an examination of

Plaintiff’s stomach by touching various points to determine if Plaintiff had appendicitis. (Doc.

No. 50-1 ¶ 40.) Plaintiff testified at his deposition that, after PA Stoltz performed this

examination, he explained to Plaintiff that he had appendicitis and that he would need to be taken

to the hospital for emergency surgery. (Doc. No. 51-1 at 19.) Plaintiff was then taken from the

prison to the hospital. (Doc. No. 50-1 ¶ 40 (explaining that Plaintiff was transported in a prison

van, not an ambulance).) At the hospital, Plaintiff underwent surgery for the removal of his

appendix. (Doc. No. 51-1 at 19.)

At his deposition, Plaintiff testified that he had not been informed by any physician that

he should have had his appendix operation prior to July 29, 2019, or that not having his appendix

removed before that date made his condition any worse. (Doc. No. 50-1 ¶ 41; Doc. No. 52-1 ¶

19.) Additionally, Plaintiff testified at his deposition that, except for telling PA Stoltz on July

29, 2019, that he was unable to eat, Plaintiff does not recall if he relayed this information to any

of the correctional officers or anyone else. (Doc. No. 50-1 ¶ 42; Doc. No. 52-1 ¶ 20.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) requires the Court to render summary judgment “if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). “[T]his standard provides

that the mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

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

outcome of the case under applicable substantive law. See id. at 248; Gray v. York Newspapers,

10

Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477

U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283,

1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the Court must view

the facts and all reasonable inferences in favor of the nonmoving party. See Moore v. Tartler,

986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992);

White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary

judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his

or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56

of identifying evidence that demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required to go beyond his pleadings with affidavits, depositions, answers to

interrogatories, or the like in order to demonstrate specific material facts that give rise to a

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

motion “must do more than simply show that there is some metaphysical doubt as to the material

facts.” See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule

56 shifts the burden of production to the nonmoving party, that party must produce evidence to

show the existence of every element essential to its case that it bears the burden of proving at

trial, for “a complete failure of proof concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.” See Celotex, 477 U.S. at 323; see also

Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

As noted supra, when determining whether an issue of material fact exists, the Court must

consider the evidence in the light most favorable to the nonmoving party. See White, 862 F.2d at

11

59. In doing so, the Court must accept the nonmovant’s allegations as true and resolve any

conflicts in his favor. See id. (citations omitted). However, a party opposing a summary

judgment motion must comply with Local Rule 56.1, which specifically directs the oppositional

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

forth in the statement required [to be filed by the movant], as to which it is contended that there

exists a genuine issue to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in

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

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

the fact that he is a pro se litigant. These rules apply with equal force to all parties. See Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se parties “cannot

flout procedural rules—they must abide by the same rules that apply to all other litigants”).

III. DISCUSSION

Plaintiff has asserted an Eighth Amendment claim against Defendants Anderson, Miller,

and Hofford pursuant to Bivens, claiming that they were deliberately indifferent to his serious

medical needs while he was incarcerated at LSCI Allenwood. (Doc. Nos. 1, 38, 39.) The Court

previously determined that a Bivens remedy is available for Plaintiff’s Eighth Amendment claim

against Defendants Anderson, Miller, and Hofford. See (Doc. No. 38 at 10-19); see also Carlson

v. Green, 446 U.S. 14, 23-25 (1980) (extending an implied cause of action for money damages

pursuant to Bivens under the Eighth Amendment’s Cruel and Unusual Punishment Clause in the

prison medical care context); Shorter v. United States, 12 F.4th 366, 372 (3d Cir. 2021)

(explaining that “[i]f a case does not present a new Bivens context, the inquiry ends there, and a

Bivens remedy is available”). Thus, the Court begins its discussion with an overview of the

Eighth Amendment.

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The United States Constitution “does not mandate comfortable prisons, . . . but neither

does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in

prison and the conditions under which he is confined are subject to scrutiny under the Eighth

Amendment[.]” See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation and internal citation

and quotation marks omitted). In the context of prison medical care, the Eighth Amendment

“requires prison officials to provide basic medical treatment to those whom it has incarcerated.”

See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999); Farmer, 511 U.S. at 832 (explaining

that the Eighth Amendment imposes a duty on prison officials to, inter alia, ensure that prisoners

receive adequate medical care (citations omitted)). As explained by the United States Supreme

Court, prison officials violate the Eighth Amendment “when they are deliberately indifferent to

an inmate’s serious medical need.” See Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020)

(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

“[T]he concept of a serious medical need . . . has two components, one relating to the

consequences of a failure to treat and one relating to the obviousness of those consequences.”

See Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). The “condition must be

such that a failure to treat can be expected to lead to substantial and unnecessary suffering,

injury, or death[,]” and “the condition must be 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.” See id. (citation and internal quotation marks omitted).

The concept of “deliberate indifference” requires that the prison official actually knew of

and disregarded “an excessive risk to inmate health or safety[.]” See Farmer, 511 U.S. at 837.

This means that the prison official was aware of facts from which the inference could be drawn

that an excessive risk of harm exists, and the prison official must also draw that inference. See

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id. The United States Court of Appeals for the Third Circuit (“Third Circuit”) has found

deliberate indifference when a “prison official: (1) knows of a prisoner’s need for medical

treatment and intentionally refuses to provide it; (2) delays necessary medical treatment based on

a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical

treatment.” See Rouse, 182 F.3d at 197 (citation omitted).

The Court now turns to Defendants Anderson, Miller, and Hofford’s motions for

summary judgment. Because the Defendants have filed separate motions, the Court first

addresses Defendant Hofford’s motion, and then addresses Defendants Anderson and Miller’s

motion.

A. Defendant Hofford

Defendant Hofford argues that she is entitled to summary judgment because Plaintiff did

not have a serious medical need, and because she was not deliberately indifferent to Plaintiff’s

medical needs. (Doc. No. 53 at 8, 10-14.) Although Plaintiff has not opposed Defendant

Hofford’s motion for summary judgment, the Court has conducted a thorough and impartial

review of the record in this matter. Having done so, the Court is unpersuaded by Defendant

Hofford’s arguments.

As an initial starting point, the Court concludes that Plaintiff’s appendicitis, for which he

was required to undergo an appendectomy, constitutes an objectively serious medical need under

the Eighth Amendment. See Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)

(stating that, “[i]n this case, the parties agree that [the prisoner-plaintiff’s] appendicitis and

urethral tear both constitute serious medical needs, and, as we noted the first time this case was

appealed, we think it beyond question that both medical issues were serious” (citations omitted));

Brown v. Osmundson, 38 F.4th 545, 550 (7th Cir. 2022) (stating that the prisoner-plaintiff could

14

“easily satisfy” the first inquiry under an Eighth Amendment analysis since “[a]ppendicitis is an

‘objectively serious medical condition’ that, left untreated, leads to a perforated (or ruptured)

appendix, requiring invasive surgery to avoid serious injury and death”); Blackmore v.

Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004) (concluding, in the context of an Eighth

Amendment claim, that the detainee-plaintiff’s appendicitis was a serious medical need even

though his appendix did not rupture and an appendectomy was successfully performed without

complication).4

Next, the Court concludes that there is a genuine dispute of material fact as to whether

Defendant Hofford was deliberately indifferent to Plaintiff’s serious medical need of

appendicitis. Although Defendant Hofford argues that “[i]t is improbable that Plaintiff can

substantiate deliberate indifference on [her part] because her medical training and an in-person

evaluation of Plaintiff didn’t show that [his] symptoms were an emergency” (Doc. No. 53 at 14),

the Court finds that this argument is belied by the evidence of record.

In his complaint, Plaintiff alleges that when he arrived at Health Services on July 28,

2019, he collapsed in the lobby in front of Defendant Hofford who “immediately began

screaming at [him], demanding he get off of the floor.” (Doc. No. 1 at 10, ¶ 19.) Plaintiff

alleges that Defendant Hofford proceeded to question him about whether his unit officer knew

that he was at Health Services. (Id.) Plaintiff claims that, after she called the unit officer (i.e.,

Defendant Anderson), she “demanded” that Plaintiff return to his housing unit. (Id. ¶ 20.)

Plaintiff further claims that she did not provide him any “treatment, evaluation, or observation”

4 Defendant Hofford’s attempts to argue otherwise are not only unpersuasive but are more

appropriately asserted in connection with the second part of an Eighth Amendment analysis—

i.e., deliberate indifference. See, e.g., (Doc. No. 53 at 10-13 (asserting arguments based upon

her own subjective perception of the interaction she had with Plaintiff on July 28, 2019, in order

to argue that his medical need was not objectively serious under the Eighth Amendment).)

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for his medical condition. (Id.) Finally, Plaintiff alleges that, approximately two (2) hours later,

when Defendant Miller contacted Health Services on his behalf, Defendant Hofford “again

refused to treat him.” (Id. ¶ 22.)

The Court finds that there is evidence of record supporting these specific factual

allegations contained in Plaintiff’s complaint. More specifically, Plaintiff’s sworn affidavit,

which is attached as an exhibit to his complaint, not only reiterates these allegations, but

elaborates that Defendant Hofford “did not provide [him] an opportunity to explain [his]

symptoms” and “did not instruct [him] to notify the unit officer if the pain increased[.]” (Id. at

34.) Additionally, Plaintiff’s sworn deposition testimony further expands on these allegations.

(Doc. No. 51-1 at 12-16 (testifying, inter alia, that Defendant Hofford screamed at him after he

collapsed on the floor at Health Services, that she never asked him what was wrong, that she did

not care and only cared about who had sent him to Health Services, and that when Defendant

Miller subsequently contacted Health Services on his behalf, she refused to see him).)

The Court further finds that this evidence is in direct contradiction to other evidence of

record. More specifically, in Defendant Hofford’s affidavit, she states as follows: Plaintiff did

not collapse at Health Services; she did not scream at him; she provided him with an opportunity

to fully explain his medical concerns; she completed a visual medical assessment of him; and she

notified him to inform his unit officer if his symptoms worsened. (Doc. No. 51-8.) Additionally,

in Defendant Hofford’s “Clinical Encounter – Administrative Note[,]” which appears to reflect

her notes from her interaction with Plaintiff at Health Services on July 28, 2019, she states, inter

alia, that Plaintiff “slowly lowered himself down on the floor[,]” that she questioned him about

whether “his [CO] knew” he had come to Health Services, and that “[h]e was out of bounds” by

being there and, thus, she “would not see him at this time.” (Doc. No. 1 at 33). In this Note,

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Defendant Hofford also states that she instructed Plaintiff to report to sick call in the morning

and that, if his condition got worse, to have “his CO call medical, otherwise sick call and

Monday.” (Id.)

Thus, even though Plaintiff did not file a response to Defendant Hofford’s motion for

summary judgment, the Court cannot turn a blind eye to the genuine dispute of material fact that

exists in the record concerning whether Defendant Hofford acted with deliberate indifference to

Plaintiff’s serious medical need of appendicitis on July 28, 2019, at LSCI Allenwood. See

Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (recognizing its prior precedent that

a district court should not grant “summary judgment solely on the basis that a motion for

summary judgment was not opposed”). More specifically, the Court finds that there is evidence

in the record upon which a reasonable factfinder could conclude that Defendant Hofford

intentionally denied Plaintiff’s need for medical treatment or delayed such treatment for a non-

medical reason (i.e., for Plaintiff being in Health Services without, allegedly, permission from

his unit officer). See Rouse, 182 F.3d at 197 (finding deliberate indifference when a “prison

official: (1) knows of a prisoner’s need for medical treatment and intentionally refuses to provide

it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a

prisoner from receiving needed or recommended medical treatment” (citation omitted)).

To conclude otherwise would require the Court to resolve the factual dispute in the record

by weighing the evidence and making a credibility determination as to whose version of the

events is more believable, which is inappropriate in connection with a motion for summary

judgment. See Anderson, 477 U.S. at 249 (instructing that, “[a]t the summary judgment stage[,]

the judge’s function is not himself to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue for trial”); Carvalho-Grevious v. Delaware

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State Univ., 851 F.3d 249, 262 (3d Cir. 2017) (stating that “[c]redibility determinations are for

the factfinder and are inappropriate at the summary judgment stage” (citation omitted)).

Accordingly, for all of these reasons, the Court will deny Defendant Hofford’s motion for

summary judgment.

B. Defendants Anderson and Miller

Defendants Anderson and Miller argue that they are entitled to summary judgment

because Plaintiff did not have a serious medical need, and because they were not deliberately

indifferent to Plaintiff’s medical needs. (Doc. No. 51 at 7, 11-19.) The Court agrees in part.

As discussed above, the Court finds that Plaintiff’s appendicitis, for which he was

required to undergo an appendectomy at the hospital, constitutes a serious medical need under

the Eighth Amendment. However, the Court finds that, with respect to Defendants Anderson

and Miller, there is no evidence of record to create a genuine dispute of material fact that they

acted with deliberate indifference to that serious medical need. More specifically, there is no

evidence of record that Defendants Anderson and Miller actually knew of and disregarded an

excessive risk to Plaintiff’s health or safety. See Farmer, 511 U.S. at 837 (explaining that the

prison official must be aware of facts from which the inference could be drawn that an excessive

risk of harm exists, and the prison official must also draw that inference).

Additionally, while the Third Circuit has found deliberate indifference in three (3)

instances, the Court finds that none of those instances are applicable here. See Rouse, 182 F.3d

at 197 (finding deliberate indifference when a “prison official: (1) knows of a prisoner’s need for

medical treatment and intentionally refuses to provide it; (2) delays necessary medical treatment

based on a non-medical reason; or (3) prevents a prisoner from receiving needed or

recommended medical treatment” (citation omitted)). Indeed, there is no evidence of record to

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suggest that Defendants Anderson and/or Miller, who Plaintiff acknowledges are not medical

professionals, intentionally refused to provide him with medical treatment or otherwise

prevented him from, or delayed him in, receiving such treatment from medical professionals.

Moreover, while Plaintiff underwent an appendectomy at the hospital for his appendicitis, there

is no evidence of record that, at the time of their interactions with Plaintiff, Defendants Anderson

and/or Miller knew of any facts from which the inference could be drawn that there was an

excessive risk of harm to Plaintiff’s health or safety or that they actually made that inference.

Rather, the evidence suggests that Plaintiff stated to them only that he did not feel good,

that something was wrong with his stomach, that he had pain, and that he clutched his stomach.

(Doc. No. 51-1 at 9, 12, 15, 17.) The evidence also suggests that, from the perspective of

Defendants Anderson and Miller, Plaintiff was able to stand and ambulate throughout the prison

from his cell to the shower, to the correctional officers’ office, and to Health Services. (Id. 9, 11,

12, 16, 17.) Finally, and again, from the perspective of Defendants Anderson and Miller,

Plaintiff was being seen by medical professionals in Health Services for his complaints. (Doc.

No. 51-2 at 2; Doc. No. 51-4 at 1.) All of this evidence is only further underscored by the

undisputed fact that Plaintiff was not suspected to have appendicitis until he was examined by

PA Stoltz during the morning of July 29, 2019, a time period after which Defendants Anderson

and Miller already had their interactions with Plaintiff.5 (Doc. No. 51-1 at 18-19.)

Accordingly, for all of these reasons, the Court concludes that Defendants Anderson and

Miller are entitled to judgment as a matter of law. The Court will, therefore, grant their pending

5 This does not change the Court’s conclusion that there is evidence in the record upon which a

factfinder could conclude that Defendant Hofford acted with deliberate indifference to Plaintiff’s

serious medical need, even thought PA Stoltz did not suspect appendicitis until the following

day.

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motion for summary judgment. The Court will defer entry of judgment in their favor until the

conclusion of the case. See Farmer, 511 U.S. at 844 (explaining that “prison officials who

lacked knowledge of a risk cannot be said to have inflicted punishment[,]” and, thus, “[p]rison

officials charged with deliberate indifference might show, for example, that they did not know of

the underlying facts indicating a sufficiently substantial danger and that they were therefore

unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that

the risk to which the facts gave rise was insubstantial or nonexistent”).

C. Defendant Anderson and Miller’s Motion to Seal

As set forth above, Defendants Anderson and Miller, in addition to submitting their

motion for summary judgment to the Court, have also submitted a motion seeking to file certain

documents under seal (Doc. No. 48), as well as the documents that they seek to file under seal

(Doc. No. 49). On April 22, 2022, the Court, observing that Defendants Anderson and Miller

had neither filed a brief in support of their motion to seal, nor explained why the documents

should remain under seal pursuant to the standard articulated in Avandia, 924 F.3d 662, directed

them to show cause why the documents should be kept under seal pursuant to that standard.

(Doc. No. 54.) In accordance with the Court’s Order, Defendants Anderson and Miller filed

their supporting brief on April 29, 2022. (Doc. No. 55.)

In their supporting brief, Defendants Anderson and Miller argue that the documents they

seek to file under seal contain confidential healthcare related information concerning Plaintiff

and are subject to protections pursuant to the Health Insurance Portability and Accountability

Act (“HIPAA”). (Id. at 1-2.) Defendants Anderson and Miller further argue that the docket in

this case is not under seal and, thus, in order to maintain the confidentiality of, and ensure

HIPAA protections for, Plaintiff’s medical records, they request that the Court keep these

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documents under seal. (Id. at 2.) In connection with their arguments, Defendants Anderson and

Miller have cited to a number of factors set forth by the Third Circuit in Avandia, and they have

conducted an analysis of those factors with respect to this case. (Id. at 2-4.) Based upon their

analysis, Defendants Anderson and Miller argue that their motion to seal should be granted. (Id.)

Having reviewed their arguments, the Court is unpersuaded.

At the outset, the Court observes that the factors cited to by Defendants Anderson and

Miller, which were originally set forth by the Third Circuit in Pansy v. Borough of Stroudsburg,

23 F.3d 772, 787-91 (3d Cir. 1994) (“Pansy”), are the factors that courts consider when

determining whether “good cause” exists for a protective order to issue pursuant to Rule 26 of

the Federal Rules of Civil Procedure. See Avandia, 924 F.3d at 671 (explaining that the party

seeking a protective order over discovery material pursuant to Fed. R. Civ. P. 26(c)(1) “must

demonstrate that good cause exists for the order[,]” and further explaining that courts consider

the various Pansy factors in order to determine which such good cause exists (citations and

internal quotation marks omitted)).

Here, however, there is no motion pending before the Court that seeks the issuance of a

protective order under Rule 26 of the Federal Rules of Civil Procedure. This is particularly

problematic for Defendants Anderson and Miller in light of the Third Circuit’s 2019 decision in

Avandia. As discussed in that case, the standard governing protective orders under Rule 26 is

fundamentally different from standard that governs the common law right of public access to

judicial records:

In short, while the Pansy factors may provide useful guidance for courts

conducting the balancing required by the common law test, the Pansy factors do

not displace the common law right of access standard. The difference is not

merely semantic—the Pansy factors are not sufficiently robust for assessing the

public’s right to access judicial records. Unlike the Rule 26 standard, the

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common law right of access begins with a thumb on the scale in favor of

openness—the strong presumption of public access.

See Avandia, 924 F.3d at 676. While the Court finds that this alone offers a basis for denial of

Defendant Anderson and Miller’s pending motion to seal, the Court will briefly discuss the

import of Avandia and why Defendants have failed to meet their burden here.

“[T]he common law presumes that the public has a right of access to judicial materials.”

Id. at 672. Thus, “[i]n both criminal and civil cases, a common law right of access attaches to

judicial proceedings and records.” See id. (citation and internal quotation marks omitted). This

right of access “includes the right to attend court proceedings and to inspect and copy public

records and documents, including judicial records and documents.” See id. (citation and internal

quotation marks omitted). And, “[w]hether the common law right of access applies to a

particular document or record turns on whether that item is considered to be a judicial record.”

See id. (explaining that “[a] judicial record is a document that has been filed with the court . . .

or otherwise somehow incorporated or integrated into a district court’s adjudicatory

proceedings” (citation and internal quotation marks omitted)). As explained by the Third

Circuit, “documents filed in connection with a motion for summary judgment are judicial

records.” See id. (citation omitted).

However, “[t]he presumption [of access] is just that, and thus may be rebutted.” See id.

(citation and internal quotation marks omitted). The party seeking to overcome the presumption

of access carries “the burden of showing that the interest in secrecy outweighs [that]

presumption.” See id. (citation and internal quotation marks omitted). More specifically, the

party “must show that the material is the kind of information that courts will protect and that

disclosure will work a clearly defined and serious injury to the party seeking closure.” See id.

(citation and internal quotation marks omitted).

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Because of the strong presumption in favor of openness, “the routine closing of judicial

records to the public” is simply not permitted. See id. (citation and internal quotation marks

omitted). As a result, the Court “must articulate the compelling, countervailing interests to be

protected, make specific findings on the record concerning the effects of disclosure, and provide[

] an opportunity for interested third parties to be heard.” See id. (citation and internal quotation

marks omitted).

Here, the Court is presented with slightly unusual circumstances. More specifically,

Defendants Anderson and Miller have filed a motion to seal Plaintiff’s medical record. (Doc.

Nos. 48, 49, 55.) In other words, Defendants Anderson and Miller are not seeking to protect

their own interests; they are seeking to protect Plaintiff’s interests. (Id.) As discussed above,

however, Avandia places the burden on the movant to show, inter alia, that disclosure of the

document will work a clearly defined and serious injury to the movant. See Avandia, 924 F.3d

at 672 (stating that “[t]he movant must show that the material is the kind of information that

courts will protect and that disclosure will work a clearly defined and serious injury to the party

seeking closure” (emphasis added) (citation and internal quotation marks omitted)).

Consequently, the Court finds that Defendants Anderson and Miller have not articulated any

injury that they will allegedly sustain if the information contained in Plaintiff’s medical record is

disclosed, much less a “clearly defined and serious injury.” See id. (citation and internal

quotation marks omitted).

Moreover, to the extent that Defendants Anderson and Miller seek to protect Plaintiff

from any potential injury as a result of disclosure of his medical record, the Court finds that their

arguments are unpersuasive. Plaintiff’s medical record is four (4) pages long, lists an

“[e]ncounter [d]ate” of July 29, 2019, and identifies PA Stoltz as the medical provider. (Doc.

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No. 49 at 1.) Generally speaking, Plaintiff’s medical record sets forth PA Stoltz’s notes from his

encounter with Plaintiff at LSCI Allenwood on that date. (Id. at 1-3.) The Court, having

reviewed this record, observes that two (2) of the four (4) pages from this document are attached

as exhibits to Plaintiff’s complaint. Compare (Doc. No. 49 at 1, 3) with (Doc. No. 1 at 18, 19).

The Court further observes that the two (2) pages that have been attached to Plaintiff’s complaint

contain the most substantive information out of all four (4) pages comprising his medical record.

Accordingly, while the Court certainly appreciates the efforts of Defendants Anderson

and Miller to protect Plaintiff’s medical information, the Court finds that they have not, as the

movants, met their burden under the standard articulated by the Third Circuit in Avandia. As a

result, the Court will deny their motion to seal. In denying their motion, the Court believes that

the underlying purposes of the common law right of access will be furthered here. See Avandia,

924 F.3d at 672 (explaining that the common law “right of access promotes public confidence in

the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed

by the court” and provides the public with “a more complete understanding of the judicial system

and a better perception of its fairness” (citation and internal quotation marks omitted)).6

IV. CONCLUSION

Thus, for the reasons that are set forth above, the Court will grant Defendants Anderson

and Miller’s motion for summary judgment, and the Court will deny Defendant Hofford’s

motion for summary judgment. In addition, the Court will deny Defendants Anderson and

Miller’s motion to file certain documents under seal. An appropriate Order follows.

6 To the extent that Defendants Anderson and Miller have loosely referenced HIPAA, their

reference has neither been specifically articulated nor fully developed in order for the Court to

properly address it at this time. (Doc. No. 55 at 2.) Moreover, and as discussed above, Plaintiff

has attached the most substantive portions of this medical record to his complaint and, thus, has

elected to make those portions a part of the Court’s public docket in this case.

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