# Morrison v. United States Of America

> District Court, M.D. Pennsylvania · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10412996

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412996

## How later opinions describe it (automated extraction)

- noting that pro se parties “cannot flout procedural rules—they must abide by the same rules that apply to all other litigants”
- 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)
- explaining that the party seeking a protective order over discovery material pursuant to Fed. R. Civ. P. 26(c)(1
- 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)
- 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

## Opinion text

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).

3
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
4
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.
5
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.)

6
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

7
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

8
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.)

9
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.

12
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

13
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).)
15
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

17
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

18
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

20
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.

23
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412996. Public record. Not legal advice.