Opinion

Simms v. Wetzel

Court
District Court, M.D. Pennsylvania
Filed
Apr 4, 2023
Cited by
0 cases
Authority
More cited than 29.2%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SHAWN M. SIMMS, :

Plaintiffs : CIVIL ACTION NO. 3:20-1411

v. : (JUDGE MANNION)

JOHN WETZEL, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Shawn M. Simms, an inmate currently confined at the Benner

Township State Correctional Institution, Bellefonte, Pennsylvania, filed the

above captioned civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1,

complaint). The matter is proceeding via a second amended complaint. (Doc.

137). The named Defendants are Dr. Andrew Dancha, Physician Assistant

Ethan Ernst, and Dr. Vernon Preston (“Medical Defendants”) and Sgt.

Drexler, C.O. Cummings, C.O. Pollock, C.O. Showers, and Sgt. Roberts

(“Corrections Defendants”). Id. Plaintiff’s second amended complaint

challenges, inter alia, the medical care he received regarding an injury to his

right foot. Id. Plaintiff seeks compensatory and punitive damages for the

Medical Defendants alleged deliberate indifference to Plaintiff’s “severe pain,

th

Presently before the Court is the Medical Defendants’ motion and

supplemental motion for summary judgment. (Docs. 146, 201). The motions

has been fully briefed and are ripe for disposition. For the reasons that follow,

the Court will grant the Medical Defendants’ motion and supplemental motion

for summary judgment.

II. Standard of Review

Federal Rule of Civil Procedure 56(a) requires the court to render

summary judgment “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[T]his standard provides that the mere existence

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

otherwise properly supported motion for summary judgment; the requirement

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. Id. at

248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An

issue of material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at

257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am.,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact,

the court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.

Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse

Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary

judgment, however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. When the party seeking

summary judgment satisfies its burden under Rule 56 of identifying evidence

which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with

affidavits, depositions, answers to interrogatories or the like in order to

demonstrate specific material facts which give rise to a genuine issue.

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

motion “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Electric Indus. Co. v. Zenith Radio,

475 U.S. 574, 586 (1986). When Rule 56 shifts the burden of production to

the nonmoving party, that party must produce evidence to show the

existence of every element essential to its case which it bears the burden of

proving at trial, for “a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d

846, 851 (3d Cir. 1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party.

White, 826 F.2d at 59. In doing so, the Court must accept the nonmovant’s

allegations as true and resolve any conflicts in his favor. Id. (citations

omitted). However, a party opposing a summary judgment motion must

comply with Local Rule 56.1, which specifically directs the oppositional party

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

paragraphs set forth in the statement required [to be filed by the movant], as

to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to 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.”

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

simply by citing the fact that he is a pro se litigant. These rules apply with

equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL

2853261, at *5 (M.D. Pa. July 20, 2010) (pro se parties “are not excused

from complying with court orders and the local rules of court”); Thomas v.

Norris, No. 02-CV-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)

(pro se parties must follow the Federal Rules of Civil Procedure).

III. Statement of Undisputed Facts

On January 17, 2019, Plaintiff was seen in medical by complaining that

600 pounds of weight fell on his right foot the prior afternoon while working

out in the gym. (Doc. 175-6, 175-7, Plaintiff’s Medical Records). He reported

that his right foot was painful when he moved it. Id. He stated he took some

Motrin for pain. Id. Plaintiff was given a cane for walking support and Motrin

samples. Id. He was excused from work and an X-ray of his right foot was

ordered. Id.

On January 18, 2019, Plaintiff’s orthopedic appointment was approved

by Dr. Dancha. Id. Plaintiff was seen by an outside orthopedic that day at

12:45 pm, where it was determined that the X-rays showed a right displaced

base of the fifth metatarsal fracture. Id. Plaintiff was given crutches. Id.

January 22, 2019, at 3:12 pm, Plaintiff was again seen in medical,

stating that he feels he may have re-injured his right food and wanted to

make sure alignment is still okay. Id. Plaintiff’s crutches were discontinued,

and Plaintiff was issued a wheelchair. Id. An X-ray was ordered as well as a

follow-up with orthopedics. Id.

On January 23, 2019, at 10:12 am, Plaintiff was seen for an orthopedic

appointment. Id. He stated that he may have re-broken the foot when he “fell

and put a lot of weight on it and felt it pop.” Id. X-rays show significant

worsening of fracture with increased displacement in comparison to initial x-

rays. Id. He was placed in a short cast and was referred back to orthopedics

to determine if fracture needs to be re-set. Id.

On January 25, 2019, Patient was placed on medline for follow up

fracture. Id. It was noted that Plaintiff was seen earlier this week and sent to

orthopedic for re-injury. Id. He is scheduled for surgery next week. Id.

On February 1, 2019, Plaintiff was operated on at Mount Nittany

Medical Center. Id. The operative note dictated by Dr. Barter stated that

Plaintiff underwent an open reduction internal fixation, right displaced base

of the 5th metatarsal fracture. Id. Plaintiff was given discharge instructions

and told to leave his cast in place until otherwise instructed and to keep the

cast dry. Id. Plaintiff returned from MNMC after having same day surgery to

his right foot 5th metatarsal fracture. Id. He was using a wheelchair. Id. He

was placed in the infirmary for twenty-three hour observation. Id.

On February 2, 2019, Plaintiff was seen by PA Reisinger. Id. He denied

much pain. Id. He was able to move his leg a little against gravity but does

not have full range of motion yet. Id. It was noted that he can bare full weight

on left leg for self transfers. Id. He was cleared to return to block with Tylenol

prn and T3 ordered for two more days. Id. Follow up with orthopedics as

directed. Id.

On February 6, 2019, Plaintiff reported to medical that security would

not allow him to have a plastic bag in order to wrap his cast in the shower so

he managed the best he could. Id. He “notes [the case] got soaked so he

removed the cast.” Id. Plaintiff’s case was discussed with Dr. Dancha, who

is in agreement to send the patient back to orthopedics to have casting

performed. Id. Dr. Dancha personally spoke to security staff two days ago

who stated that it is never an issue to provide a plastic bag with cast in place

in order to shower, so not sure where the misunderstanding or problem is

occurring. Id. Dr. Dancha told patient he needs to be compliant with medical

recommendation as this will be his third trip to orthopedics in three weeks.

Id. On February 6, 2019, Plaintiff was seen by the Orthopedic Office for a

recast. Id.

On February 15, 2019, Plaintiff was seen by PA Ernst. Id. Plaintiff

claimed that security is still not allowing him to obtain a bag to shower and

recently slipped when coming out the shower and would like an X-ray to

make sure he did not hurt his foot. Id. It was noted that medical would not

proceed with x-rays because he Plaintiff has an orthopedic follow up today,

and will await evaluation and recommendations. Id. PA Ernst ordered a

garbage bag as needed for Simms. Id. At Plaintiff’s orthopedic follow up that

same day, Plaintiff’s sutures were removed, and a follow up was ordered in

3-4 weeks for X-rays when out of cast. Id.

On March 7, 2019, a nursing progress note was added to Plaintiff’s

medical record, stating that Plaintiff was witnessed by CO Bivens to

ambulate on both feet without crutches approximately 25-30 yards then

downstairs for a visit. Id. The note assessed Plaintiff as is non-compliant with

orders from orthopedic doctor. Id.

March 14, 2019, Plaintiff was seen for his orthopedic follow up. Id. It

was noted that the X-rays show well aligned and healing 5th metatarsal

fracture and Plaintiff was permitted to take his boot off for bathing and

sleeping. Id. A follow up was ordered in four weeks for X-rays. Id.

On March 25, 2019, Plaintiff’s cane was returned and on March 28,

2019, Plaintiff received an orthopedic boot. Id.

On April 2, 2019, a Mental Health Contact Note reveals that Plaintiff

was worried about being made to live in a dorm setting, stating that he “is

not interested in living in the dorms due to negative experiences.” Id.

On April 24, 2019, Plaintiff begin to wean from boot to a regular shoe,

X-rays taken noted a complete healing of right 5th Metatarsal. Id.

April 25, 2019, consult note from surgeon states X-rays show

everything is well aligned and healed fracture of the 5th metatarsal, no

tenderness. Id. Two week weaning protocol, no running or jumping for four

weeks. Id. Plaintiff may return to regular work. Id. When the report was

received it was signed and reviewed by Dr. Preston. Id.

At a May 9, 2019, at a medical follow up, Plaintiff stated he was fine

and building strength in his toes. Id. It was noted that he saw orthopedics ten

days ago and x-rays were normal. Id. Orthopedics recommended that patient

return to regular activities in four weeks. Id. No acute distress was noted,

right foot appears normal, and toes with full range of motion. Id. Plaintiff was

scheduled for PT on May 22, 2019. Id.

On May 22, 2019, it was noted that PT no follow up is needed. Id.

Plaintiff had right ankle full range of motion, strength 5/5; normal gait, 5th toe

functional range of motion, doing well. Id. Thus, it was determined to

discontinue physical therapy. Id.

On June 7, 2019, Plaintiff was cleared for placement in the RHU

(Restricted Housing Unit) for possession of contraband. Id. On this date,

Plaintiff turned in his boot because it is no longer needed. Id.

On June 11, 2019, Plaintiff saw the orthopedist and it was

recommended that he return to work but no running or jumping for four

weeks. Id. At this time, Plaintiff stating that he needed his bottom bunk

renewed as he hurt his foot while climbing the ladder. Id. Plaintiff bottom

bunk status was extended, and an X-ray follow up as needed. Id.

On June 12, 2019, a follow up X-ray of Plaintiff’s right foot was ordered.

Id.

On June 14, 2019, Plaintiff requested an X-ray of his foot to evaluate

the hardware. Id. He was told one was already ordered on June 12, 2019.

Id.

On June 17, 2019, Plaintiff was attempting to be seen for a follow up

visit, but because there was not enough security staff to take him out of cell,

his visit had to be rescheduled. Id.

On June 21, 2019, Plaintiff presented to medical with “pinpoint

tenderness at old fracture site.” Id. He was seen by PA Ernst. Id. It was

recommended that Plaintiff continue PT exercises and using NSAID’s. Id.

Orthopedics recommended that he participate in activity as tolerated. Id. X-

rays showed intact hardware and no fracture. Id. Plaintiff had full range of

motion in his foot and full strength of 5/5. Id. He was told to continue his

previous PT exercises. Id.

On September 6, 2019, Plaintiff presented to medical and was seen by

PA Ernst. Id. PA Ernst entered the following note:

31 y/o male with IED, anxiety and BPD presents with right foot

pain. Notes he was getting off top bunk when he got a hot poker

sensation on the lateral aspect of right foot and jumped off ladder

landing on foot due to the pain. Notes pain with pressure and

slowly increasing swelling of right ankle.

Chart review notes patent lower bunk ran out less than a month

ago. Back in June when his lower bunk ran out patient came

down stating he hurt himself on ladder as well where lower bunk

was reinstated, but had no hardware issues. Patient did have

ORIF of right 5 metatarsal fracture back in February and is back

to full functionality at this time per orthopedics.

Patient in past has shown to do self-destructive behavior by

getting splint wet and removing case on his own which results in

having to have surgical revision.

Id. PA Ernst observed that Plaintiff’s gait was steady and without ataxia; no

edema appreciated of right foot and full range of motion of toes. Id. PA Ernst

ordered an X-ray of the right foot and ankle. Id. PA Ernst noted that a

“personal review of the X-ray today does not show malalignment, acute

fracture” and the “hardware looks to be intact.” Id. PA Ernst concluded with

the following note:

Patient was advised of imaging. Can use Motrin as needed for

pain. After this recommendation, patient states, “That’s it.” Then

requested lower bunk status. Stated it is not medically necessary

at this time based on imaging and examination. He then stated,

“You know I am going to be back down here, right?” Given this

interaction, it seems that patient is looking for secondary gain of

lower bunk status at this time. Advised patient that SMD is in

agreement that lower bunk is not medically indicated at this time

after review of case with him. Advised to follow up as needed.

Id.

IV. Discussion

A. Eighth Amendment Medical Claim

In order to establish an Eighth Amendment medical claim, a plaintiff

must show “(i) a serious medical need, and (ii) acts or omissions by prison

officials that indicate deliberate indifference to that need.” Natale v. Camden

Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one

that has been diagnosed by a physician as requiring treatment, or one that

is so obvious that a layperson would recognize the need for a doctor’s

attention. Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987). In addition, “if unnecessary and wanton

infliction of pain results as a consequence of denial or delay in the provision

of adequate medical care, the medical need is of the serious nature

contemplated by the eighth amendment.” Id.

A prison official acts with deliberate indifference to an inmate’s serious

medical needs when he “knows of and disregards an excessive risk to inmate

health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). Thus, a complaint that a physician or a medical department “has

been negligent in diagnosing or treating a medical condition does not state

a valid claim of medical mistreatment under the Eighth Amendment ...”

Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a “medical decision

not to order an X-ray, or like measures, does not represent cruel and unusual

punishment. At most it is medical malpractice.” Id., 429 U.S. at 107. “[A]s

long as a physician exercises professional judgment his behavior will not

violate a prisoner’s constitutional rights.” Brown v. Borough of

Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor’s

disagreement with the professional judgment of another doctor is not

actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment,

or medical malpractice does not give rise to a §1983 cause of action, and an

inmate's disagreement with medical treatment is insufficient to establish

deliberate indifference. See Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.

1993).

Further, a prison administrator cannot be found deliberately indifferent

under the Eighth Amendment because he or she fails to respond to the

medical complaints of an inmate being treated by a prison physician, or

because, as non-physicians, they defer to the medical judgment of the

inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical

prison personnel had “a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner,” liability

may be imposed. Spruill, 372 F.3d 236.

A mere difference of opinion between the prison's medical staff and the

inmate regarding the diagnosis or treatment which the inmate receives does

not support a claim of cruel and unusual punishment. Farmer v. Carlson, 685

F. Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v. Jones, 562 F.2d

22, 24 (10th Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received

treatment, courts have consistently been reluctant to second guess the

medical judgment of the attending physician. Little v. Lycoming County, 912

F. Supp. 809, 815 (M.D. Pa.), aff’d, 101 F.3d 691 (3d Cir. 1996). The key

question is whether the defendant has provided the plaintiff with some type

of treatment, regardless of whether it is what the plaintiff desires. Farmer v.

Carlson, 685 F. Supp. at 1339.

Here, the record evidence demonstrates that Plaintiff received

substantial medical attention, and that the attention Plaintiff received lacks

that requisite deliberate indifference to support a Section 1983 claim.

Specifically, Plaintiff was immediately evaluated and treated after injuring his

right foot. Additionally, within a seven month span after his injury, Plaintiff

was evaluated approximately twenty-one times by prison medical staff,

outside orthopedics and outside hospitals. In response to this injury, Plaintiff

received numerous X-rays, various pain medications, physical therapy, a

medical lay-in, an approval for surgery, and a wheelchair, cane, crunches,

and a lower bunk status, to accommodate him. There is no indication,

whatsoever, that at any time medical treatment was denied or intentionally

withheld.

At best, Plaintiff’s allegations demonstrate Plaintiff’s disagreement with

the type of treatment rendered and, most specifically, with the medical

department’s termination of his lower bunk status.1 However, his mere

disagreement with the course of action that the medical department took

based on the symptoms he presented, is not enough to state a §1983 claim.

Sample v. Diecks, 885 F.2d 1099, 1109 (3d Cir. 1989) (citing Estelle, 429

U.S. at 105–06 (in the medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute an unnecessary and

wanton infliction of pain or to be repugnant to the conscience of mankind) ).

This is particularly so in light of the fact that there are no facts set forth in

Plaintiff’s complaint or attached exhibits that demonstrate that any named

Defendant intentionally withheld medical treatment from Plaintiff in order to

inflict pain or harm upon Plaintiff. Farmer, 511 U.S. at 837; Rouser, 12 F.3d

at 197. Thus, the allegations in the Plaintiff’s complaint amount to nothing

more than Plaintiff’s subjective disagreement with the treatment decisions

and medical judgment of the medical staff at the prison. Where, as here, an

inmate is provided with medical care and the dispute is over the adequacy

1 While the Court is cognizant that refusal to honor bottom bunk and

floor passes can be interpreted as deliberate indifference to the need for

medical treatment prescribed by prison authorities, see Hemingway v. Gosa,

No. 1:19-CV-583, 2019 WL 3857856, at *7 (M.D. Pa. Aug. 16, 2019), the

record before this Court more than amply demonstrates that Plaintiff’s right

foot had healed and there was no longer a medical need for a bottom bunk.

of that care, an Eighth Amendment claim does not exist. Nottingham v.

Peoria, 709 F. Supp. 542, 547 (M.D. Pa. 1988). At most, the allegations in

the complaint only rise to the level of mere negligence. As simple negligence

cannot serve as a predicate to liability under §1983, Hudson v. Palmer, 468

U.S. 517 (1984), Plaintiff’s civil rights complaint fails to articulate an arguable

claim against any of the named Defendants. See White, 897 F.2d at 108-

110. As such, the Medical Defendants’ motion for summary judgment will be

granted as to Plaintiff’s Eighth Amendment medical deliberate indifference

claim.

B. State Law Claims

The Court declines to exercise supplemental jurisdiction over any state

law claims. When a district court has dismissed all claims over which it had

original jurisdiction, the Court may decline to exercise supplemental

jurisdiction over the pendent state law claims. See 28 U.S.C. §1367(c)(3).

The Court’s decision regarding the exercise of supplemental jurisdiction is

one that should be based on “the values of judicial economy, convenience,

fairness, and comity.” See Carnegie Mellon Univ. v. Cohill, 484 U.S. 343,

350 (1988). Ordinarily, when all federal claims have been dismissed and only

state law claims remain, the balance of these factors indicates that the

remaining claims properly belong in state court. See id. In the absence of a

viable federal claim and finding nothing to distinguish this matter from the

ordinary case, the Court finds that the balance of factors in this case “point[s]

toward declining to exercise jurisdiction over the remaining state law claims.”

See id. at 350 n.7. Accordingly, the Court having granted the Medical

Defendants’ motion for summary judgment on Plaintiff’s Eighth Amendment

deliberate indifference claims, will dismiss Plaintiff’s state law claims of

profession negligence against Defendants pursuant to 28 U.S.C.

§1367(c)(3).

V. CONCLUSION

For the reasons set forth above, the Court will grant the Medical

Defendants’ motions to dismiss and will close the above captioned action.

An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: April 4, 2023

20-1411-02

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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