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